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HomeMy WebLinkAbout16-Parks & Rec ---.- - - - - - -- ~ I " , . CITY OF SAN BERNA"INO - REQUEST Fdt COUNCIL ACTION From: Annie F. Ramos, Director Subject: RESOLUTION APPROVING AMENDMENT NO. 1 TO THE AGREEMENT WITH BRIAN WINKING AND Dept: Parks, Recreation & Community Services JAMES A. CRAMER RELATING TO THE OPERATION OF A TENNIS PRO SHOP AT PERRIS HILL PARK. Date: December 17, 1990 Synopsis of Previous Council action: October 1987 - Counci 1 adopted resolution cancelling agreement for pro shop operations. January 8, 1990 - Council adopted Resolution 90-16, authorizing a one year agreement to operate the pro shop with the current conces- sionaires. "', Recommended motion: , " Adopt Resolution. ...... .>" '~"'.1 ,." ~.,,-... .,-- ~ ~n~ Contact person: John A. Kramer Phone: 5031 Supporting data attached: Staff Report & Agreement Ward: 2 FUNDING REQUIREMENTS: Amount: NfA Source: (Acct. No.! (Acct. Description) Finance: Council Notes: "'5.0:'6:? Agenda Item No /6 . CITY OF SAN BERN.DINO - REQUEST Fe COUNCIL ACTION RESOLUTION APPROVING AMEND- STAFF REPORT MENT NO. 1 TO THE AGREEMENT WITH BRIAN WINKING AND JAMES A. CRAMER RELATING TO THE OPERATION OF A TENNIS PRO SHOP AT PERRIS HILL PARK. Prior to the operation by the existing concessionaire, the tennis Pro Shop at perris Hill Park had not been operated since the retirement of the previous operator on October 1, 1987. There had been no interest in its operation since its closure. The previous operator generated minimal revenue, the majority coming from lessons and not merchandise or food sales or service. The department has since engaged in direct sponsorship of tennis lessons at a much greater return for the City (30% versus 5%), making the pro shop operations potential for profitability even less. The department was approached last year with a proposal to operate the facility for merchandise and food sales, and racket restringing service. The department with the assistance of the Purchasing Department negotiated the conditions of the agreement with the parties involved. The agreement provided a return to the city of fifteen percent (15%) of gross revenues. Total revenue to the city was $553 in the first six months of operation. Additionally, the operation of the pro shop to provide merchandise, refreshments or racket restringing service to the tennis patrons is highly desirable as a service to the public. The negotiated agreement was utilized in 1989 as advantage to the city to avoid the costs associated with the bid procedure and guaranteeing the highest possible return. The amendment extends the agreement for one year and deletes Brian Winking who is away at school, as a licensee. The parties to the agreement concur with the conditions and are desirous of an extension. There have been no inquiries from any other parties regarding the operations of the pro shop. Approval is recommended. AFR:u (STAFFRE:PROSHOP) 12/17/90 75-0264 . . . 1 2 RESOLUTION OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF AMENDMENT NO. 1 TO THE AGREEMENT WITH BRIAN WINKING 3 AND JAMES A. CRAMER RELATING TO THE OPERATION OF A TENNIS PRO SHOP AT PERRIS HILL PARK, TO DELETE BRIAN WINKING AS A LICENSEE 4 AND TO EXTEND THE TERM OF THE AGREEMENT FOR AN ADDITIONAL ONE YEAR PERIOD. 5 6 7 RESOLUTION NO. BE IT RESOLVED BY THE MAYOR AND COMMON CITY OF SAN BERNARDINO AS FOLLOWS: COUNCIL OF THE SECTION 1. The Mayor of the city of San Bernardino is 8 hereby authorized and directed to execute on behalf of said city 9 Amendment #1 to the agreement with James A. Cramer relating to 10 the operation of a Tennis Pro Shop at perris Hill Park, to 11 delete Brian Winking as a licensee and to extend the term of the 12 Agreement for an additional one year period, a copy of which is 13 attached hereto, marked Exhibit "A" and incorporated herein by 14 reference as fully as though set forth at length. 15 SECTION 2. The authorization granted hereunder shall 16 expire and be void and of no further effect if the agreement is 17 not executed by both parties and returned to the office of the 18 city .Clerk within 60 days following effective date of the 19 resolution. 20 I HEREBY CERTIFY that the foregoing resolution was duly 21 adopted by the, Mayor and Common Council of the city of San 22 Bernardino at a meeting thereof, held on the 23 day of , 1990, by the following vote, 24 to wit: 25 26 12/17/90 -1- 27 28 , . . 1 RESOLUTION OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF AMENDMENT NO. 1 TO THE AGREEMENT WITH BRIAN WINKING 2 AND JAMES A. CRAMER RELATING TO THE OPERATION OF A TENNIS PRO SHOP AT PERRIS HILL PARK, TO DELETE BRIAN WINKING AS LICENSEE 3 AND TO EXTEND THE TERM OF THE AGREEMENT FOR AN ADDITIONAL ONE YEAR PERIOD. 4 5 6 7 8 9 COUNCIL MEMBERS AYES NAYS ABSTAIN ESTRADA REILLEY FLORES MAUDSLEY MINOR 10 11 12 13 14 15 16 17 18 19 20 POPE-LUDLAM MILLER City Clerk The foregoing resolution is hereby approved this day of , 1991. W. R. Holcomb, Mayor City of San Bernardino 21 Approved as to form an legal content: " 22 /J..-,. -; ~,~ y Attorney FR:u (RESO-TENPROSHOP) 25 12/17/90 26 27 28 -2- . . 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 . . ~QE~~~~!!~ (Operation of Tennis Pro Shop Facility-perris Hill Park) THIS AGREEMENT is made and entered into this day of 1991, between the CITY OF SAN BERNARDINO, a municipal corporation, referred to as "city":, and James A. cramer, 3035 Casa Lama, San Bernardino, California 92404 referred to as "Licensee". city and Licensee agree as follows: 1. Licensee shall operate the Tennis Pro Shop locat- ed at perris Hill Park, 997 Highland Avenue, San Bernardino, california, commencing upon the effective date of this agreement, and continuing for a period of one year there- after, and shall pay to City fifteen percent of the gross sales receipts from the Tennis Pro Shop and refreshment services, monthly, on or before the tenth day of the month following the calendar month for which concession fees are payable. 2. The specifications and provisions relating to the Tennis Pro Shop facility at perris Hill Park are attached hereto and incorporated herein by reference as fully as though set forth at length. The parties hereto agree that each shall be bound by each and all of the specifications set forth herein. 12/5/90 . 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 . . AGREEMENT RELATIVE TO THE ,OPERATION OF FACILITY-PERRIS HILL PARK. TENNIS PRO SHOP 3. This agreement shall be effective as of the date set forth above, that date being the date on which the last of the required signatures has been affixed hereto. IN WITNESS WHEREOF, the parties have executed this agreement on the day and year first above written. CITY OF SAN BERNARDINO ATTEST: BY City Clerk By Approved as to form a legal cont~nt: k 2-1-'"'-<> - ~'- 'ty Attorney (TENNISPROSHOP) 12/5/90 -2- . . . SPECIFICATIONS AND PROVISIONS 1. LICENSEE: THE SUCCESSFUL PROPOSER SHALL BE LICENSEE: LICENSEE SHALL BE GRANTED THE RIGHT AND PRIVILEGE TO OPERATE AND MAINTAIN A TENNIS PRO SHOP FOR THE SALE OF REFRESHMENTS, TENNIS EQUIP- MENT AND SERVICES AT PERRIS HILL PARK. THIS RIGHT IS EXCLUSIVE UNLESS OTHERWISE STATED HEREIN. SPECIFICALLY, LICENSEE SHALL: PAY FOR AND OBTAIN ALL LICENSES AND PERMITS NECESSARY FOR THE OPERATIONS GRANTED; COMPLY WITH ALL STATE, COUNTY OR CITY LAWS OR ORDINANCES PERTAINING TO THE OPERATION OF A CONCESSION; AND GENERALLY PROVIDE REFRESHMENT AND SERVICES AS NEEDED. 2. PREMISES : THE PREMISES TO BE LICENSED INCLUDE THE TENNIS PRO SHOP AND SPECTATOR AREAS OF PERRIS HILL TENNIS COURTS. LICENSEE SHALL BE PERMITTED TO USE VENDORS IN THE SPECTATOR SEATING AREAS. 3. OPERATING RESPONSIBILITIES : IN THE EVENT LICENSEE FAILS TO PERFORM THE ACTIONS NECESSARY TO COMPLY WITH THESE PROVISIONS, THE CITY MAY IMMEDIATELY EXERCISE OPTION UNDER DEFAULT PROVISIONS (ITEM 9) OF THIS DOCUMENT. A. CLEANLINESS: LICENSEE.. SHALL KEEP THE LICENSED PREMISES AND ALL THE SPECTATOR AREAS CLEAN AT ALL TIMES. NO OFFENSIVE REFUSE MATTER, ANY SUBSTANCE CONSTITUTING AN UNNECESSARY, UNREASONABLE FIRE HAZARD (OR MATERIAL DETRIMENTAL TO THE PUBLIC HEALTH AND SAFETY) SHALL BE PERMITTED OR REMAIN THEREON, AND LICENSEE SHALL PREVENT ANY SUCH MATTER OR MATERIAL FROM BEING OR ACcmroLATING UPON SAID PREMISES, AND SHALL IMMEDIATELY CLEAN THE SPECTATOR AREAS OF ALL DEBRIS CAUSED BY EXERCISING CONCESSION RIGHTS. B. CONDUCT: LICENSEE SHALL AT ALL TIMES CONDUCT HIS BUSI- NESS IN A QUIET AND ORDERLY MANNER TO THE SATISFACTION OF THE CITY. C. DISORDERLY PERSONS: LICENSEE SHALL USE HIS BEST EFFORTS TO PERMIT NO INTOXICATED PERSON OR PERSONS, PROFANE OR INDECENT LANGUAGE, OR BOISTEROUS OR LOUD CONDUCT IN OR ABOUT THE PRE- MISES AND WILL CALL UPON THE AID OF PEACE OFFICERS TO ASSIST IN MAINTAINING PEACEFUL CONDITIONS. LICENSEE SHALL NOT KNOWINGLY PERMIT THE USE OR POSSESSION OF NARCOTICS ON THE PREMISES. D. EMPLOYEES: LICENSEE SHALL PROVIDE SUCH EMPLOYEES AS MAY BE REQUIRED TO RENDER COURTEOUS SERVICE TO THE PUBLIC. . . . E. MERCHANDISE: SOFT DRINKS SHALL BE DISPENSED OR SOLD IN CANS OR PAPER CUPS ONLY, RATHER THAN ANY TYPE OF BOTTLE OR CAN. ALL MERCHANDISE INCLUDING BUT NOT LIMITED TO SPORTING GOOD, FOOD, DRINKS, BEVERAGES, CONFECTIONS, REFRESHMENTS, ETC, SOLD OR KEPT FOR SALE BY LICENSEE SHALL CONFORM TO ALL FEDERAL, STATE AND MUNICIPAL LAWS, ORDINANCES AND REGULATIONS IN EVERY RESPECT. THE HANDLING OF ALL EDIBLE MERCHANDISE IS SUBJECT TO COUNTY, STATE AND LOCAL SANITATION REQUIREMENTS. THE SALE OF BEER, WINE OR OTHER INTOXICATING LIQUORS WILL NOT BE PERMITTED UNLESS AUTHORIZED UNDER THE TERMS AND CONDITIONS OF ORDINANCE #1554 OF THE CITY OF SAN BERNARDINO. F. HOURS/DAYS OF OPERATION: LICENSEE SHALL KEEP THE CONCES- SION OPEN DURING SUCH HOURS AS REQUIRED BY THE CITY TO ADEQUAT- ELY SERVE PUBLIC DEMAND. GENERALLY, THIS WILL MEAN DURING ALL SCHEDULED USES OF PERRIS HILL PARK TENNIS COURTS ANY DEVIATION OF SUCH OPERATION SHALL BE SUBJECT TO THE PRIOR APPROVAL OF THE CITY IN WRITING. G. EQUIPMENT, FURNISHINGS AND EXPENDABLES: ANY ADDITIONAL EQUIPMENT AND FURNISHINGS REQUIRED FOR SAID CONCESSION SHALL BE PURCHASED AND INSTALLED BY THE LICENSEE AT HIS OWN EXPENSE. LICENSEE SHALL PURCHASE ALL EXPENDABLES AT HIS OWN EXPENSE, SAID EXPENDABLES TO REMAIN HIS PERSONAL PROPERTY. UPON TERMI- NATION OF THIS AGREEMENT, LICENSEE SHALL HAVE THE RIGHT TO REMOVE HIS EQUIPMENT AND FURNISHINGS, EXCLUDING IMPROVEMENTS, FROM THE PREMISES AND SHALL BE ALLOWED A PERIOD OF THIRTY (30) DAYS TO MAKE SUCH REMOVAL: AND IF NOT REMOVED WITHIN THAT PERIOD, SAID EQUIPMENT, FURNISHINGS AND EXPENDABLES SHALL BE AND BECOME THE PROPERTY OF THE CITY. H. MAINTENANCE OF EQUIPMENT: LICENSEE SHALL PROVIDE ALL MAINTENANCE, REPAIR AND SERVICE REQUIRED ON ALL EQUIPMENT USED IN THE,PRO SHOP, WHETHER LICENSEE OR CITY OWNED. INSOFAR AS SANITATION AND APPEARANCE OF THE PRO SHOP ARE INVOLVED, THE CITY MAY DIRECT LICENSEE TO PERFORM NECESSARY REPAIRS AND MAINTENANCE TO LICENSEE-OWNED EQUIPMENT. NO EQUIPMENT PROVIDED BY CITY SHALL BE REMOVED OR REPLACED BY LICENSEE WITHOUT THE PRIOR WRITTEN CONSENT OF THE CITY AND IF CONSENT IS SECURED, SUCH REMOVAL AND/OR REPLACEMENT MAY BE AT THE EXPENSE OF THE LICENSEE. THE CITY MAY DIRECT THAT CERTAIN MAINTENANCE OR REPAIRS TO CITY-OWNED AND INSTALLED EQUIPMENT BE PERFORMED WHERE SUCH WORK IS NECESSARY TO PROTECT THE PREMISES OR TO PROVIDE A CLEAN, ATTRACTIVE AND WELL MAINTAINED PREMISES. THE CITY WILL BEAR THE EXPENSE, WHEN THE WORK PERFORMED IS ON PREMISES OWNED AND OPERATED BY THE CITY. I. PERSONAL ATTENTION: THE PRO SHOP MANAGER IS THE PERSON WITH WHOM THE CITY MAY DEAL ON A DAILY BASIS REGARDING THE SUBJECT PRO SHOP. CITY PREFERS THAT THE PRO SHOP MANAGER BE THE LICENSEE HIMSELF (IF LICENSEE IS AN INDIVIDUAL), ONE OF THE PARTNERS (IF LICENSEE IS A PARTNERSHIP) OR AN OFFICER OF THE CORPORATION (IF LICENSEE IS A CORPORATION). ANY OTHER PERSON SELECTED BY LICENSEE AS PRO SHOP MANAGER SHALL BE SKILLED IN . . i. '. MANAGEMENT OF BUSINESSES SIMILAR TO THE LICENSED PRO SHOP. .THE PRO SHOP MANAGER SHALL DEVOTE SUFFICIENT TIME AND ATTENTION TO THE OPERATION OF THE PRO SHOP AND SHALL PROMOTE, INCREASE AND DEVELOP THE BUSINESS AND RENDER EVERY POSSIBLE SERVICE AND CONVENIENCE TO THE PUBLIC. IF HE IS NOT HIMSELF, THE LICENSEE, THE PRO SHOP MANAGER SHALL BE FULLY ACQUAINTED WITH LICENSEE'S OPERATIONS AND CONTRACT OBLIGATIONS, AND AUTHORIZED BY LICENSEE TO ACT IN HIS BEHALF AND FULFILL HIS OBLIGATIONS IN THE DAY-TO-DAY OPERATION OF THE SUBJECT PRO SHOP. J. SIGNS AND ADVERTISEMENTS: NO SIGNS OF ANY KIND SHALL BE DISPLAYED UNLESS SO APPROVED BY THE CITY, WHO MAY REQUIRE REMOVAL OR REFURBISHMENT OF ANY SIGN PREVIOUSLY APPROVED. LICENSEE SHALL NOT PERMIT VENDORS TO DISPLAY WARES INSIDE OR OUTSIDE THE BUILDING OR'ON SAID PROPERTY UNLESS WRITTEN PERMIS- SION IS SECURED FROM THE CITY, AND SUCH PERMISSION SHALL BE SUBJECT TO REVOCATION AT ANY TIME. IN EACH FACILITY LICENSED HEREUNDER, A SIGN SHALL BE POSTED IN A PROMINENT PLACE STATING THAT THE PRO SHOP IS OPERATED UNDER AN AGREEMENT ISSUED BY THE CITY. K. TAXES: LICENSEE SHALL PAY ALL TAXES AS REQUIRED BY ANY LAW, STATUTE OR ORDINANCE. L. USE OF AREA: LICENSEE SHALL NOT INTERFERE WITH THE PUBLIC'S ENJOYMENT AND USE OF THE LICENSED PREMISES OR SUR- ROUNDING PUBLIC PROPERTY FOR THE PURPOSES FOR WHICH THEY WERE INTENDED. HE SHALL NOT USE THE LICENSED PREMISES FOR ANY PURPOSE WHICH IS NOT ESSENTIAL TO THE LICENSED OPERATIONS. HE SHALL NOT RENT, SELL, LEASE OR OFFER ANY SPACE FOR STORING OF ANY ARTICLE OR ARTICLES WHATSOEVER WITHIN OR ON THE LICENSED PREMISES OTHER THAN HIS OWN EQUIPMENT WITHOUT THE WRITTEN CONSENT OF THE CITY. M. UTILITIES: LICENSEE SHALL PAY ALL CHARGES FOR TELEPHONE, SERVICE NECESSARY TO CARRY ON THE LICENSED PRO SHOP BUILDING OPERATIONS THE TELEPHONE NUMBER SHALL BE PLACED IN THE NAME OF THE FACILITY AND SHALL NOT BE TRANSFERABLE TO ANY OTHER LOCATION. CITY SHALL SUPPLY WATER, ELECTRICAL AND GAS UTILITY SERVICES. N. VENDING MACHINES: LICENSEE SHALL FIRST RECEIVE WRITTEN APPROVAL FROM THE CITY BEFORE INSTALLING OR PERMITTING VENDING MACHINES TO BE INSTALLED. O. ACCIDENTS: LICENSEE SHALL COOPERATE FULLY WITH CITY IN THE INVESTIGATION OF ACCIDENTS OCCURRING ON THE LICENSED PREMISES. IN THE EVENT OF INJURY TO A PATRON OR CUSTOMER, LICENSEE SHALL ENSURE THAT THE INJURED PERSON RECEIVES PROMPT . . . AND QUALIFIED MEDICAL ATTENTION, AND AS SOON AS POSSIBLE THEREAFTER, HE SHALL SUBMIT A CITY NON-EMPLOYEE ACCIDENT OR ILLNESS REPORT". LICENSEE SHALL NOTIFY THE CITY OF ANY HAZARDOUS CONDITION WHICH COULD LEAD TO INJURY. P. WORK MUST BE SAFE: IT SHALL BE THE LICENSEE'S RESPONSI- BILITY TO INSURE THAT ALL MATERIALS, EQUIPMENT AND WORK OPERA- TIONS ARE IN CONFORMITY WITH CAL-OSHA STANDARDS AND THAT ALL NECESSARY PRECAUTIONS ARE UNDERTAKEN AT ALL WORK AREAS WHICH MAY CONSTITUTE A HAZARD TO PROPERTY AND/OR LIFE. 1. THE LICENSEE AGREES TO SAVE FROM HARM AND TO PROTECT THE CITY, ITS ELECTIVE AND APPOINTIVE BOARDS, COMMISSIONS, OFFICERS, AGENTS AND EMPLOYEES FROM EVERY CLAIM OR DEMAND WHICH MAY BE MADE BY REASON OF: 2. ANY INJURY TO PERSONS OR PROPERTY SUSTAINED BY THE LICENSEE OR BY ANY PERSON, FIRM OR CORPORATION EMPLOYED DIRECTLY OR INDIRECTLY BY HIM UPON OR IN CONNECTION WITH HIS WORK, HOWEVER CAUSED. 3. ANY INJURY TO PERSON OR PROPERTY SUSTAINED BY ANY PERSON, FIRM OR CORPORATION, CAUSED BY ANY ACT, NEGLECT, DEFAULTS OR OMISSION OF THE LICENSEE OR OF ANY PERSON, FIRM OR CORPORATION, DIRECTLY OR INDIRECTLY EMPLOYED BY HIM UPON OR IN CONNECTION WITH HIS WORK WHETHER THE SAID INJURY OR DAMAGE OCCURS UPON OR ADJACENT TO THE WORK. THE LICENSEE AT HIS OWN COST, EXPENSE AND RISK SHALL DEFEND ANY AND ALL ACTIONS, SUITS, OR OTHER LEGAL PROCEEDINGS THAT MAY BE BROUGHT OR INSTITUTED AGAINST THE CITY ON ANY SUCH CLAIM OR DEMAND, AND PAY OR SATISFY THE JUDGEMENT THAT MAY BE RENDERED AGAINST THE CITY IN ANY SUCH ACTION, SUIT OR LEGAL PROCEEDINGS OR RESULT THEREOF. 4. ~ : THE TERM OF THE LICENSE AGREEMENT SHALL BEGIN UPON THE EXECUTION OF THE AGREEMENT BY 1THE PARTIES AND SHALL EXPIRE ONE (1) YEAR THEREAFTER (UNLESS PREVIOUSLY TERMINATED IN ACCORDANCE WITH OTHER PROVISIONS OF THE LICENSE AGREEMENT) . 5. RENTAL : MONTHLY RENTAL SHALL BE A PERCENTAGE OF THE GROSS SALES RECEIPTS. SPECIAL ATTENTION SHOULD BE PAID TO THE DEFINITION OF GROSS SALES RECEIPTS SET UP THEREIN. THE LICENSEE SHALL PAY TO THE CITY ON A QUARTERLY BASIS A CONSIDERATION PURSUANT TO THIS AGREEMENT FOR THE OPERATION DURING THE PRECEDING QUARTER. IF SAID CONSIDERATION IS BASE ON THE GROSS SALES RECEIPTS, THE TERM GROSS SALES RECEIPTS IS DEFINED TO MEAN THE TOTAL AMOUNT OF THE SALE PRICE OF ALL SALES, OR THE TOTAL . '. CHARGED OR RECEIVED FOR THE PERFORMANCE OF ANY ACT OR SERVICE (WHETHER SUCH ACT OR SERVICE IS DONE AS A PART OF OR IN CONNECTION WITH THE SALE OF GOODS, WARES, MERCHANDISE OR NOT), FOR WHICH A CHARGE IS MADE OR CREDIT IS ALLOWED, INCLUDING ALL RECEIPTS, CASH, CREDITS AND PROPERTY OF ANY KIND OR NATURE. THE RENTAL PAYMENT SHALL BE ADDRESS TO: DIRECTOR OF FINANCE CITY HALL 300 NORTH "D" STREET SAN BERNARDINO, CA 92418 IN THE EVENT LICENSEE FAILS TO SUBMIT HIS RENTAL PAYMENT BY THE DATE IT IS DUE, AN ADDITIONAL PAYMENT OF TWO PERCENT (2%) OF THE AMOUNT DUE WILL BE CHARGED FOR EACH MONTH OR FRACTION THEREOF SAID RENT REMAINS UNPAID. THIS CHARGE IS INTENDED TO COMPENSATE CITY FOR ADDITIONAL ACCOUNTING AND ADMINISTRATIVE COSTS. 6. IMPROVEMENTS : AS SET OUT IN THE SPECIFICATIONS FOR THE SUBJECT PRO SHOP. NO IMPROVEMENTS MAY BE MADE BY LICENSEE UNLESS SPECIFICALLY AUTHORIZED BY THIS AGREEMENT OR PERMIT. HOWEVER, CITY SHALL HAVE THE RIGHT TO AUTHORIZE LICENSEE TO MAKE ADDITIONAL IMPROVEMENTS, AND THE CITY MAY AUTHORIZE LICENSEE TO MAKE MINOR IMPROVEMENTS, INCLUDING UTILITY CHANGES WHEN THEY DEEM SUCH IMPROVEMENTS TO BE IN CITY'S BEST INTEREST. IN ADDITION, CITY MAY, FROM TIME TO TIME, MAKE CERTAIN IMPROVEMENTS WHICH IT DEEMS TO BE ADVANTAGEOUS OR NECESSARY FOR THE PROTECTION OF PUBLIC PROPERTY. UNLESS SPECIFIED IN THIS AGREEMENT OR IN SUBSEQUENT. AUTHORIZATION, IMPROVEMENTS MADE AT THE SOLE COST AND EXPENSE OF LICENSEE ARE WITHOUT REDUCTION IN RENTALS OR ANY OTHER FINANCIAL COMPENSATION BY THE CITY. 7 . LIABILITY : THE LICENSEE AT LICENSEE'S OWN COST AND EXPENSE, SHALL MAINTAIN THROUGHOUT THE TERM OF THIS AGREEMENT: (1) A POLICY OR POLICIES OF COMPREHENSIVE LIABILITY INSURANCE WITH A MINIMUM LIMIT OF LIABILITY OF ONE MILLION DOLLARS ($1,000,000) COMBINED SINGLE LIMIT FOR BODILY INJURY AND PROPERTY DAMAGE. AND WHICH MEETS THE FOLLOWING REQUIREMENTS : 1. NO DEDUCTIBLE CLAUSE IS PERMITTED. 2. THERE IS TO BE NO AGGREGATE AMOUNT. 3. PROVIDES COVERAGE FOR "ALL OPERATIONS OF THE INSURED CON- DUCTED ON CITY PROPERTY", AND CONTAINS A DESCRIPTION OF THE WORK PERFORMED BY THE INSURED (THIS MAY REQUIRE POLICY (IES) COVERING PREMISES OCCUPIED, PRODUCTS SOLD, AMUSEMENT LIABILITY OR AUTOMOBILES USED). ---1----:---- . . . . 4. ALL SIGNATURES MUST BE HANDWRITTEN ON ANY POLICY CERTIFI- CATE, OR ENDORSEMENT: RUBBER STAMP SIGNATURES ARE NOT ACCEPTABLE. 5. THE CITY OF SAN BERNARDINO SHALL BE NAMED AS AN ADDITIONAL INSURED AS RESPECTS ALL OPERATIONS OF THE INSURED. 6. SAID POLICY SHALL CONTAIN A CANCELLATION CLAUSE READING IN SUBSTANCE AS THE FOLLOWING APPROVED NOTICE: "IT IS AGREED THAT THIS POLICY SHALL NOT BE CANCELLED OR THE AMOUNTS OF COVERAGE PROVIDED HEREIN REDUCED UNTIL THIRTY (30) DAYS AFTER THE CITY SHALL HAVE EVIDENCED BY RETURN RECEIPT OF REGISTERED MAIL ". 7. NO POLICY SHALL BE ACCEPTABLE UNLESS FIRST APPROVED BY THE CITY. 8. DEFAULT AND CANCELLATION : IN THE EVENT THAT LICENSEE SHALL DEFAULT IN THE PERFORMANCE OR FULFlLLMENT OF ANY COVENANT OR CONDITION HEREIN CONTAINED, NEGLECTS OR REFUSES TO PAY THE CONSIDERATION OR ANY PART THEREOF WITHIN THIRTY (30) DAYS AFTER THE SAME IS DUE, THEN CITY MAY, AT ITS OPTION WITHOUT NOTICE OR DEMAND UPON LICENSEE OR UPON ANY PERSON CLAIMING BY, THROUGH OR UNDER LICENSEE, IMMEDIATELY CANCEL AND TERMINATE THIS AGREEMENT AND TERMINATE EACH AND EVERY RIGHT OF LICENSEE AND SUCH PERSON, IN WHICH EVENT THE PREMISES SHALL REVERT TO CITY, TOGETHER WITH ANY AND ALL IMPROVEMENTS PLACED THEREON THE CITY MAY THEREUPON ENTER INTO AND UPON THE LEASED PREMISES AND REPOSSESS THE SAME AND EXPEL LICENSEE AND ANY EMPLOYEE, AGENT OR OTHER REPRESENTATIVE OF THE LICENSEE. THE RIGHTS AND REMEDIES OF THE CITY, AS HEREIN SET FORTH, ARE CUMULATIVE AND SHALL IN NO WAY BE DEEMED TO LIMIT ANY OF THE OTHER PROVISIONS OF THIS LEASE OR OTHERWISE TO DENY TO THE CITY ANY RIGHT OR REMEDY AT LAW OR IN EQUITY WHICH THE CITY MAY HAVE OR ASSERT AGAINST LICENSEE UNDER ANY LAW IN EFFECT AT THE DATE HEREOF OR WHICH MAY HEREAFTER BE ENACTED OR BECOME EFFECTIVE: IT BEING THE INTENT HEREOF THAT THE RIGHTS AND REMEDIES OF THE CITY, AS HEREINABOVE SET FORTH, SHALL SUPPLEMENT AND BE IN ADDITION TO AND IN AID OF THE OTHER PROVISIONS OF THIS LEASE AND OF ANY RIGHT IN ADDITION TO THE ABOVE CONSIDERATIONS. THIS LEASE MAY BE TERMINATED BY MUTUAL CONSENT BY GIVING A THIRTY (30) DAY WRITTEN NOTICE. 9. ASSIGNMENT. SUBLEASE : LICENSEE SHALL NOT ASSIGN THIS LEASE OR ANY INTEREST THEREIN OR SUBLET THE LEASED PREMISES, OR ANY PART THEREOF, OR ANY RIGHT OR PRIVILEGE APPURTENANT TO IT, OR ALLOW ANY PERSON OTHER THAN LICENSEE AND HIS AGENTS AND EMPLOYEES TO OCCUpy OR USE THE PREMISES WITHOUT THE PRIOR WRITTEN CONSENT OF THE CITY. ANY UNAUTHORIZED ASSIGNMENT OR SUBLEASE SHALL BE VOID, AND SHALL TERMINATE THIS LEASE AT THE CITY'S OPTION. ~u_ T~ --~ . . 10. BUSINESS RECORDS : LICENSEE SHALL BE REQUIRED TO MAINTAIN A METHOD OF ACCOUNTING OF THE RECEIPTS AND DISBURSEMENTS IN CONNECTION WITH THE SUBJECT PRO SHOP WHICH SHALL CORRECTLY AND ACCURATELY REFLECT THE GROSS SALES RECEIPTS AND DISBURSEMENTS RECEIVED OR MADE BY LICENSEE FROM THE OPERATION AND CONCESSION. THE METHOD OF ACCOUNTING, INCLUDING BANK ACCOUNTS, ESTABLISHED FOR THE SUBJECT PRO SHOP SHALL BE SEPARATE FROM THE ACCOUNTING SYSTEM USED FOR ANY OTHER BUSINESS OPERATED BY LICENSEE OR FOR RECORDING LICENSEE'S PERSONAL FINANCIAL AFFAIRS. SUCH METHOD SHALL INCLUDE THE KEEPING OF THE FOLLOWING DOCUMENTS: 1. REGULAR BOOKS OF ACCOUNTING, SUCH AS GENERAL LEDGERS. 2. JOURNALS INCLUDING ANY SUPPORTING AND UNDERLYING STATE- MENTS, ETC. 3. STATE AND FEDERAL INCOME TAX RETURNS AND SALES TAX RETURNS AND CHECKS AN OTHER DOCUMENTS PROVIDING PAYMENT OF SUMS SHOWN. 4. CASH REGISTER TAPES OR RECEIPTS (DAILY TAPES OF RECEIPTS SHALL NOT BE SEPARATED AND SHALL BE RETAINED ON CONTINUOUS ROLLS, SO THAT FROM DAY TO DAY THE SALES CAN BE IDENTI- FIED). 5. ANY OTHER ACCOUNTING RECORDS THAT THE CITY, AT ITS DISCRE- TION DEEMS NECESSARY FOR PROPER REPORTING OF RECEIPTS. ALL DOCUMENTS, BOOKS AND ACCOUNTING RECORDS SHALL BE OPEN FOR INSPEC- TION AND REINSPECTION AT ANY REASONABLE TIME DURING THE TERM OF THE LICENSE AGREEMENT OR PERMIT AND FOR A REASONABLE PERIOD, NOT TO EXCEED ONE YEAR, THEREAFTER. IN ADDITION, CITY MAY FROM TIME TO TIME CONDUCT AN AUDIT AND REAUDIT OF THE BOOKS AND BUSINESS CONDUCTED BY LICENSEE AND OBSERVE THE OPERATION SO THAT ACCURACY OF THE ABOVE RECORDS CAN BE CONFIRMED. IF THE REPORT OF GROSS SALES MADE BY LICENSEE TO THE CITY SHALL BE FOUND TO BE LESS THAT THE AMOUNT OF. GROSS SALES, DISCLOSED BY SUCH AUDIT AND OBSERVATION, LICENSEE SHALL PAY THE CITY WITHIN THIRTY (30) DAYS AFTER BILLING ANY ADDITIONAL RENTALS DISCLOSED BY SUCH AUDIT. IF DISCREPANCY EXCEEDS TWO PERCENT (2%) AND NO REASONABLE EXPLANATION IS GIVEN FOR SUCH DISCREPANCY, LICENSEE SHALL ALSO PAY THE COST OF THE AUDIT. LICENSEE SHALL TRANSMIT A PROFIT AND LOSS STATEMENT AND A BALANCE SHEET FOR THE LICENSED OPERATIONS, PREPARED IN A FORM ACCEPTABLE TO THE CITY WITHIN SIXTY (60) DAYS OF THE CLOSE OF EACH OF LICENSEE'S FISCAL OR CALENDAR YEARS DURING THE TERM OF THE LICENSE AGREEMENT. THE PROFIT AND LOSS STATEMENT SHALL SET FORTH AN EXPENSE ACCOUNT ENTITLED "COMPENSATION TO OFFICERS" OR AN ACCOUNT HAVING SOME SIMILAR TITLE. THE AMOUNT SHOWN OPPOSITE THIS ITEM SHALL INCLUDE ALL SALARIES OR OTHER COMPENSATION FOR SERVICES DERIVED FROM THE LICENSED OPERATION BY LICENSEE, MEMBERS OF HIS FAMILY, OFFICERS . . . OF THE LICENSEE'S CORPORATION, DIRECTORS, SHAREHOLDERS, ANY INDIVIDUAL OWNING STOCK INDIRECTLY AND OTHER PERSONS EMPLOYED BY LICENSEE TO MANAGE THE OPERATIONS OR SUPERVISE LICENSEE'S EMPLOYEES. THESE SALARIES OR OTHER COMPENSATION SHALL NOT BE INDICATED IN ANY OTHER EXPENSE CATEGORY. ALL INFORMATION OBTAINED CONNECTION WITH CITY'S INSPECTIONS OF RECORDS OR AUDITS SHALL BE RECEIVED AND MAINTAINED IN CONFIDENCE AND SHALL NOT BE DISCLOSED TO ANYONE NOT DIRECTLY CONNECTED WITH THE OFFICIAL BUSINESS OF THE CITY. BEFORE BEGINNING OPERATIONS, LICENSEE SHALL CONTACT THE FINANCE DEPARTMENT TO ARRANGE FOR OTHER SPECIFIC ACCOUNTING RECORDS PROCEDURES. 11. REGULATIONS. INSPECTION AND DIRECTIVES : LAW AND ORDINANCES: LICENSEE SHALL CONDUCT HIS BUSINESS IN ACCORDANCE WITH ALL LAWS, ORDINANCES, RULES AND REGULATIONS APPLICABLE TO SUCH BUSINESS AS SET FORTH BY THE CITY, COUNTY, STATE AND FEDERAL GOVERNMENT. RIGHT OF INSPECTION: AUTHORIZED CITY REPRESENTATIVES, AGENTS AND EMPLOYEES SHALL HAVE THE RIGHT TO ENTER UPON THE LICENSED PREMISES AT ANY AND ALL REASONABLE TIME FOR THE PURPOSE OF INSPECTION AND OBSERVATION OF LICENSEE'S OPERATIONS. SAID INSPECTIONS MAY BE MADE BY PERSONS IDENTIFIED TO LICENSEE AS CITY EMPLOYEES, SUPERVISORS, ETC. INSPECTIONS MAY BE MADE FOR THE PURPOSE SET FORTH BELOW; HOWEVER, THE NUMERATIONS BELOW SHALL NOT BE CONSTRUED TO LIMIT THE CITY'S RIGHT OF INSPECTION FOR ANY PURPOSE INCIDENTAL TO THE RIGHTS OF THE CITY: 1. TO DETERMINE IF THE TERMS AN CONDITIONS OF THE AGREEMENT ARE BEING COMPLIED WITH. 2. TO OBSERVE TRANSACTIONS BETWEEN LICENSEE AND PATRONS IN ORDER TO EVALUATE THE COURTESY EXTENDED TO AND METHOD OF DEALING WITH THE PUBLIC, THE PERFORMANCE AND CALIBER OF LICENSEE'S EMPLOYEES, AND THE METHODS FOR RECORDING RE- CEIPTS. THE INFORMATION OBTAINED ON THESE INSPECTIONS WILL BE USED TO EVALUATE LICENSEE ION ORDER TO' PROVIDE A BASIS FOR AN ACTION BY THE CITY FOR THE RENEWAL OR DENIAL OF RENEWAL OF THE CONCESSIONS. 12. LICENSEE SHALL QUIT AND SURRENDER POSSESSION OF SAID PREMISES TO THE CITY IN AS GOOD AND USEABLE A CONDITION, SUBJECT TO NORMAL WEAR AND TEAR, ACCEPTABLE TO THE CITY, AS THE SAME WERE IN AT THE TIME OF THE FIRST OCCUPATION THEREOF BY LICENSEE.