1.02                                                                            The concession shall be exclusive only within the confines of the Frank G. Bonelli Regional County Swim Park.

 

2.                CONCESSION PREMISES .

 

2.01                                                                            See Amd 3 p.2

 

2.02                                                                            The concession premises shall be used only and exclusively for concession purposes, and such other purposes as are related thereto provided express approval therefor is granted by the Director, and for no other purposes whatsoever.

 

2.03                                                                            Concessionaire acknowledges personal inspection of the concession premises and the surrounding area and evaluation of the extent to which the physical condition thereof will affect the concession. Concessionaire accepts the concession premises in their present physical condition, and agrees to make no demands upon County for any improvements or alteration thereof.

 

2.04                                                                            Concessionaire shall construct the improvements hereinafter required upon the concession premises. Any other improvements, additions, alterations, repairs or changes thereto shall be subject to prior approval thereof by the Director; securing of applicable permits therefor; and compliance with such terms and conditions relating thereto, as may be imposed thereon by the Director. All construction shall be at Concessionaire’s expense.

 

2.05                                                                            Concessionaire hereby acknowledges the title of County and/or any other public agencies having jurisdiction thereover, in and to the concession premises and the improvements located thereon, and covenants and agrees never to assail, contest or resist said title.

 

2.06                                                                            Ownership of all structures, buildings or improvements constructed by Concessionaire upon the concession premises and all alterations,

 

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additions or betterments thereto, shall remain in Concessionaire until termination of this agreement. Upon termination thereof, whether by expiration of the term, cancellation, forfeiture or otherwise, ownership thereto shall vest in County without compensation being paid therefor, and such structures, buildings and/or improvements shall be surrendered with the concession premises, unless demand for the removal thereof shall be given by the Director at least ninety (90) days prior to the date of termination. Should Concessionaire fail to remove said structures, buildings and improvements, same may be sold, removed or demolished, and Concessionaire shall reimburse County for any cost or expense in connection therewith in excess of any consideration received by County as a result of said sale, removal or demolition.

 

2.5          OPTION.

 

2.5.01                                                                   County grants to Concessionaire this option to lease the land described in Exhibit B until the third (3rd) anniversary date of this contract.

 

2.5.02                                                                   Concessionaire may not assign this option and the rights thereunder without the express written consent of the Director.

 

2.5.03                                                                   Only if Concessionaire has performed the acts set forth herein as consideration for the option or is in the diligent and continuous performance thereof, may be exercise this option.

 

2.5.04                                                                   If Concessionaire has performed the acts constituting consideration for the option within the period therefor, including any extension(s) thereof, as provided in this agreement, Concessionaire may exercise this option by tender of written notice of exercise of option. This notice shall be

 

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addressed to the Board of Supervisors of County; and signed by each individual Concessionaire with an acknowledgment of each signature by a person authorized to attest thereto by law.

 

2.5.05                                                                   Service of the notice shall be made in the manner provided by the agreement for notices, except that in addition to the officer designated for

 

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service of notice on County, copies of the notice shall also be served upon the Director at 550 South Vermont Avenue, Los Angeles, California 90020, or such other place as may hereinafter be designated in writing to Concessionaire by Director, and upon the County Parks Director, 453 South Vermont Avenue, Los Angeles, California 90020.

 

2.5.06                                                                   Upon exercise of the option the Director shall prepare a lease amendment to this lease and concession agreement, as amended, and submit same for approval and execution by Concessionaire and the Board of Supervisors of County. The lease amendment shall convey a leasehold estate in the land described in Exhibit B as the Phase Two Area for use as a planned recreational development area [without any development being prescribed therefor as a condition for continuation of possession and rights of user granted therein.] The covenants and conditions related to the required development program for the leasehold estate conveyed is the land described in Exhibit B as the Phase Two Planned Recreational Development shall provide for diligent performance of the construction obligation; commencement of construction following County’s posting of the site with a notice of nonresponsibility; County approval of final plans and specifications, including landscaping; County inspection and access to the construction; extensions for force majeure and good cause; warranty of materials and workmanship, performance and payment bonds, personal surety on security deposit on amounts and form as required for the development.

 

2.5.07                                                                   If Concessionaire fails to exercise this option within the period therefor, including any extension(s) thereof, the option shall automatically terminate without notice to Concessionaire and all rights of Concessionaire shall immediately cease.

 

2.5.08                                                                   The consideration for this option shall be completion of development on the land described in Exhibit A.

 

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2.5.09                                                                   County grants a license to Concessionaire to use the land described in Exhibit B for the option period, including any extension(s) thereof, for the purpose of conducting thereon such investigations, studies and tests as may be required for development of the works of improvement to be constructed thereon.

 

2.5.10                                                                   Concessionaire shall notify the Director at least forty-eight (48) hours prior to the start of any investigation of soil conditions by means of soil borings. Test locations shall be barricaded to prevent public access thereto during the boring thereof and backfilled following removal of all soils therefrom.

 

2.5.11                                                                   The stockpiling of excavated material and the storage of any materials, tests or equipment shall be subject to the satisfaction of the Director.

 

2.5.12                                                                   Concessionaire shall not interfere with the public use and enjoyment of the areas of the Frank G. Bonelli Regional County Park located outside of the licensed premises.

 

2.5.13                                                                   Optionee shall immediately correct any unsafe condition and/or unsafe practices arising out of and in the course of the use of the license granted.

 

2.5.14                                                                   Concessionaire shall save, keep and hold harmless County and all of its officers, agents and employees from all damages, suits, costs or expenses in law or equity, including costs of suit and expenses for legal services that may at any time arise or be set up by any person, including the agents, servants and employees of Concessionaire, and/or County, for personal injury, death and/or property damage arising out of the use of the licensed premises, when caused by an act or omission on the part of Concessionaire or the agents, servants, and employees thereof, that allegedly constitutes:

 

a. Negligence;

 

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b. Creation of maintenance of a dangerous condition of public property;

 

c. Breach of warranty, express or implied;

 

d. Defectiveness of product; or

 

e. Intentional infliction of harm.

 

2.5.15                                                                   In the event of any of the aforementioned persons recovers a judgment against County or any of its officers, agents or employees, by reason of any of the aforementioned acts or omissions, Concessionaire shall indemnify same in an amount equal to the judgment entered.

 

3.                TERM.

 

3.01                                                                            See Amd 3 p.2

 

3.02                                                                            See Amd 3 p.2

 

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4.                PAYMENT .

 

4.01                                                                            See Amd 3 p.3 & Amd 3-A p.3

 

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4.02                                                                            See Amd 3 p.5

 

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5.                ACCOUNTING RECORDS.

 

5.01                                                                            Concessionaire shall be required to maintain a method of accounting which shall to the satisfaction of the Auditor-Controller correctly and accurately reflect the gross receipts and disbursements of Concessionaire in connection with the concession. The method of accounting, including bank accounts, established for the concession shall be separate from the accounting system used for any other business operated by Concessionaire or for recording Concessionaire’s personal financial affairs. Such method shall include the keeping of the following documents:

 

a.                Regular books of accounting such as general ledgers.

 

b.               Journals including any supporting and underlying documents such as vouchers, checks, tickets, bank statements, etc.

 

c.                State and Federal income tax returns and sales tax returns

 

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and checks and other documents providing payment of sums shown which shall be kept in confidence by County.

 

d.                                       Cash register tapes (daily tapes may be separated but shall be retained so that from day to day the sales can be identified).

 

e.                                        Any other reporting records that the Auditor-Controller deems necessary for proper reporting of receipts.

 

5.02                                                                            All sales shall be recorded by means of cash registers which publicly display the amount of each sale and automatically issue a customer’s receipt or certify the amount recorded in a sales slip. Said cash registers shall in all cases have locked-in sales totals and transaction counters which are constantly accumulating and which cannot, in either case, be reset, and in addition thereto, a tape located within the register on which transaction numbers and sales details are imprinted. Beginning and ending cash register readings shall be made a matter of daily record.

 

5.03                                                                            All documents, books and accounting records shall be open for inspection and reinspection at any reasonable time during the term of this agreement and for twelve (12) months thereafter. In addition, the Auditor-Controller may from time to time conduct an audit and reaudit of the books and business conducted by Concessionaire and observe the operation of the business so that accuracy of the above records can be confirmed. If the report of gross sales made by Concessionaire to the Auditor-Controller should be found to be less than the amount of gross sales disclosed by such audit and observation, Concessionaire shall pay the delinquent amount within thirty (30) days of billing therefor. If the additional amount due exceeds two percent (2%), and there is no reasonable basis for the failure to report and pay thereon, Concessionaire shall also pay the cost of the audit and the penalty heretofore provided for delinquent payments. All information obtained in connection with the Auditor-Controller’s inspections of records or audit shall be treated as confidential information and exempt from public disclosure thereof.

 

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5.04                                                                            Concessionaire shall furnish the Auditor-Controller with a monthly gross receipts report showing the amount payable therefrom to the County. Such a report shall accompany each monthly payment required to be made as provided herein. The monthly reporting period shall be by calendar month, rather than monthly anniversary date of the effective date of the concession agreement. In addition thereto, Concessionaire shall furnish the Auditor-Controller with an annual profit and loss statement and a balance sheet prepared by a person and in a form acceptable to said officer. The annual financial statements shall be submitted within sixty (60) days of the close of an agreement year. Said closing date shall be determined by reference to the date for commencement of the term herein provided.

 

6.                REQUIRED CONSTRUCTION .

 

6.01                                                                            Concessionaire shall construct a planned recreational development upon the concession premises in accordance with the development program therefor that have heretofore been prepared by Concessionaire and approved by County and are attached herewith as Exhibit D.

 

6.02                                                                            Concessionaire shall commence construction of the above described improvements, including facilities for gas, water, electricity, sewage and telephone service, following County’s posting of the construction site with a notice of nonresponsibility, and shall diligently prosecute and complete name. In no event shall the completion of this responsibility be extended beyond July 1, 1983.

 

6.03                                                                            No modification of said final plane and specification or of said improvements, including landscaping, shall be made by Concessionaire without approval therefor by the Director.

 

6.04                                                                            Concessionaire agrees that County may have on the site at any time during the construction period an inspector who shall have the right of access to the concession premises and the construction work. Concessionaire shall, at the commencement of the construction work, notify the Director in

 

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writing of the identity, place of business and telephone number of Concessionaire’s on-the-job representative. Said representative shall be Concessionaire’s prime consultant for the inspector of County.

 

6.05                                                                            The parties agree that any delay in the construction due to fire, earthquake, war, labor dispute or other events beyond the control of Concessionaire shall extend the time in which said construction must be completed by the length of time of such delay.

 

6.06                                                                            Concessionaire shall construct, perform, complete and maintain all construction and installations covered by this agreement in a good and workmanlike manner and with high quality materials, and shall furnish all tools, equipment, labor and material necessary to perform and complete the same, and hereby expressly warrants that all said materials and workmanship will be free from defects.

 

6.07                                                                            It is understood that the construction required herein may, at the discretion of Concessionaire, be constructed in phases, each phase being separated from the other by a period of time to be determined by Concessionaire. However, the nature of the construction to be performed in each phase and the time interval between phases shall be subject to approval by the Director. In no event shall the phasing of the construction required herein extend the completion thereof beyond the date heretofore provided. Should the required construction be phased as herein provided, diligent prosecution thereof shall require commencement of each phase on or before the date selected for commencement thereof.

 

7.                ADDITIONAL CAPITAL IMPROVEMENT .

 

7.01                                                                            See Amd 3 p.6

 

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8.                RENTAL CREDIT .

 

 

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9.                BONDS .

 

9.01                                                                            Concessionaire shall purchase performance and payment bonds from corporations duly authorized to issue surety bonds by the State before constructing any works of improvement upon the concession premises. Each bond shall name Concessionaire as principal, company as surety, and County as obliges thereon. The payment bond shall also inure to the benefit of all claimants, as said term is presently defined by Section 3085 of the State Civil Code, or may hereafter be amended, so as to give such persons a right of action to recover thereon in any suit brought to foreclose the liens provided for in Title 13 of Part 4 of Division 3 of said Civil Code or in a separate suit brought upon the bond. Each bond shall be in a sum equal to ONE HUNDRED PERCENT (100%) of the costs for construction of the works of improvement to be located upon the concession premises, as estimated by the Director. The condition of the performance bond shall be such that if the principal shall well and truly perform the construction herein required, pursuant to the approved plans and specifications therefor, then surety shall no longer be bound thereon. The condition of the payment bond shall be such that if the principal shall well and truly pay, or cause to be paid, all claims for labor, materials, appliances, terms, or power, or either or all, performed, furnished or contributed in connection with said works of improvement, then surety shall no longer be bound thereon. Said bonds shall be subject to approval by the Director as to sufficiency and liability of sureties named thereon. Said bonds shall be maintained in full force and effect by Concessionaire until said works of improvement have been completed and claims for labor and materials have been paid.

 

9.02                                                                            The Director may accept in lieu of the bonds heretofore described, the performance and payment bonds of corporations duly authorized to issue surety bonds by the State, naming as principal a licensed contractor employed by Concessionaire to construct works of improvement on the concession

 

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promises, provided each bond is in an amount equal to the percentage hereinabove provided for said bonds of the cost of the construction to be performed by said contractor; names County as an additional obligee; contains terms and conditions substantially similar to the requirements heretofore specified; and is satisfactory as to sufficiency and liability of sureties named thereon.

 

9.03                                                                            The Director may also accept in lieu of the bonds heretofore described, the promise of one or more individuals to pay County in the event of a default of Concessionaire to well and truly perform the construction, pursuant to the approved plans and specifications therefor, and to pay claimants, as herein defined, in the event of a default of Concessionaire to pay or cause to be paid, all claims for labor, materials, appliances, terms, or power, or either or all, performed, furnished or contributed in connection with said works of improvement, provided corporate surety bonds cannot be obtained; the surety-ship obligation is in writing; the liability as surety and/or guarantor of said principal obligation is commensurate with Concessionaire, becomes absolute upon breach and can be exonerated only by performance or payment; and the sufficiency of the individuals to discharge their liability thereon is justified to the satisfaction of said officer.

 

9.04                                                                            Concessionaire shall have the option to deposit with the Auditor-Controller cash or United States Government securities in all respects satisfactory to said officer in lieu of the surety obligations herein required. Said cash or securities shall be deemed deposited with County to secure full and satisfactory performance of the principal obligations heretofore described for which surety is required, and shall be released upon satisfactory performance thereof, as evidenced by certification of completion by the Director and release of mechanic’s liens by all persons furnishing labor and material thereon.

 

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10.          OPERATING RESPONSIBILITIES.

 

10.01                                                                      Compliance with Law.

 

Concessionaire shall conform to and abide by all municipal and county ordinances, and all state and federal laws and regulations, insofar as the same or any of them are applicable; and where permits and/or licenses are required for the concession and/or any construction authorized herein, the same must be first obtained from the regulatory agency having jurisdiction thereover.

 

10.02                                                                      Compliance with Rules and Regulations .

 

Concessionaire shall conform to and abide by all rules and regulations of the Board of Supervisors, the Director, and the Director of Parks and Recreation insofar as the same or any of them are applicable.

 

10.03                                                                      Disorderly Persons .

 

Concessionaire agrees to not allow any loud, boisterous or disorderly persons to loiter about the concession premises.

 

10.04                                                                      Illegal Activities .

 

Concessionaire shall not permit any illegal activities to be conducted upon the concession premises.

 

10.05                                                                      See Amd 3 p.10

 

10.06                                                                      Noninterference.

 

Concessionaire shall not interfere with the public use of Frank G. Bonelli Regional County Park.

 

10.07                                                                      See Amd 3 p.10

 

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10.08                                                                      Days and Hours of Operation . See Amd 3 p.12

 

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10.09                                                                      Prices .

 

Concessionaire shall at all times maintain a complete list or schedule of the prices charged for all goods or services, or combinations thereof, supplied to the public on or from the concession premises. Said prices shall be fair and reasonable based upon the following considerations: that the concession is intended to serve the needs of the public for the goods and/or services supplied at a fair and reasonable cost; comparability with prices charged for similar goods and/or services supplied in the Los Angeles Metropolitan Area; and reasonableness of profit margin is view of the cost of providing same in compliance with the obligations assumed in this agreement. In the event the Director notifies Concessionaire that prices being charged are not fair and reasonable, Concessionaire shall have the right to confer with the Director and justify said prices. Following reasonable conference and consultation thereon, Concessionaire shall make such price adjustments as may be ordered by the Director. Concessionaire may appeal the determination of the Director to the Board of Supervisors, whose decision thereon shall be final and conclusive. However, Concessionaire shall comply with the ordered price adjustment pending the appeal and final ruling thereon by the Board of Supervisors.

 

10.10                                                                      Removal of Objectionable Goods and Services .

 

Concessionaire shall immediately remove or withdraw from sale any goods or services which may be found objectionable to the public welfare by the Director following receipt of written notification therefor.

 

10.11                                                                      Utilities .

 

Concessionaire shall provide and pay for any necessary utilities, including water and electricity consumed by Concessionaire in the construction, maintenance and operation of the planned recreational development. The telephone number shall be placed in the name of the concession and shall not be transferred to any other location. Concessionaire waives any and all claims against County for compensation for loss or damage caused by a defect, deficiency

 

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or impairment of any utility system, water system, water supply system, drainage system, waste system, heating or gas system, electrical apparatus or wires serving the concession premises.

 

10.12                                                                      Sanitation .

 

No effective matter or refuse or substance constituting an unnecessary, unreasonable or unlawful fire hazard, or material detrimental to the public health, shall be permitted or remain on the concession premises and within a distance of fifty (50) feet thereof, and Concessionaire shall prevent any accumulation thereof from occurring. Concessionaire shall see that all refuse is collected as often as necessary, and in no case less than twice a week, and shall pay all charges which may be made for the removal thereof. Concessionaire shall furnish all equipment and materials necessary, including trash receptacles of the size, type and number required by the Director, to maintain the concession premises and the area within a distance of fifty (50) feet thereof in a sanitary condition;

 

10.13                                                                      Maintenance .

 

Concessionaire shall be responsible for maintaining the concession premises in good and substantial repair and condition; and in compliance therewith shall perform all repairs to or replacement of all improvements and equipment thereon, including the painting thereof, upon written request therefor by the Director. In addition to this general requirement Concessionaire shall perform any and all repairs required for the maintenance thereof in compliance with all Laws applicable thereto.

 

10.14                                                                      Security Devices.

 

Concessionaire may provide any legal devices, installations, or equipment designed for the purpose of protecting the concession premises from theft, burglary or vandalism, provided written approval for installation is first

 

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obtained from the Director. All purchases and installations thereof shall be at Concessionaire’s expense.

 

10.15                                                                      Safety .

 

Concessionaire shall immediately correct any unsafe condition of the concession premises, as well as any unsafe practices occuring thereon. Concessionaire shall obtain emergency medical care for any member of the public who is in need thereof, because of illness or injury occurring on the concession premises. Concessionaire shall cooperate fully with County in the investigation of any accidental injury or death occurring on the concession premises, including a prompt report thereof to the Director.

 

10.16                                                                      Trade Fixtures .

 

Concessionaire shall provide and install all appliances, furniture, fixtures and equipment that are required for the concession. During the last thirty (30) days preceding the termination of this agreement, Concessionaire shall remove same from the concession premises, other that for those items of personalty which have been furnished by County or so affixed that their removal therefrom cannot be accomplished without damage to the realty. Should Concessionaire fail to so remove said appliances, furniture, fixtures and equipment within said thirty (30) day period, Concessionaire shall lose all right, title and interest in and thereto, and County may elect to keep same upon the premises or to sell, remove or demolish same. Concessionaire shall reimburse County for any cost incurred in excess of any consideration received from the sale, removal or demolition thereof.

 

10.17                                                                      Merchandise.

 

Concessionaire shall provide and maintain the necessary investory of concession merchandise required to meet the needs of the public therefor. All food and beverages sold or kept for sale by Concessionaire shall be first-class in quality, wholesome and pure, and shall conform to the federal, state and County food laws, ordinances and regulations in all respects. No adulterated, misbranded or impure articles shall be sold or kept for sale by Concessionaire,

 

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and all merchandise kept on hand by Concessionaire shall be stored and handled with due regard for sanitation. In the event food is below first class, the Director shall have the right to order the improvement of the quality of any food kept or offered for sale.

 

10.18                                                                      See Amd 3 p.12

 

10.19                                                                      Habitation .

 

The concession premises shall not be used for human habitation, other than as approved night watchman or patrolman, except for concession premises resigned, constructed and operated for the express purpose of accommodating human habitation.

 

11.          DESTRUCTION OF CONCESSION PREMISES AND/OR FRANK G. BONELLI SWIM PARK

 

11.01                                                                      In the event the concession premises shall be totally or partially destroyed from a risk covered by the insurance required herein, Concessionaire shall either restore the premises or terminate this agreement. If the destruction is from a risk for which coverage is not required or provided under said policy of insurance, County and/or Concessionaire shall either restore the premises or terminate this agreement. County shall make the loss adjustment with the insurance company insuring the loss and receive payment of the proceeds of insurance. Said proceeds shall be held for the benefit of Concessionaire only in the event of an election by Concessionaire to restore the premises and shall be disbursed in installments as construction progresses for payment of the costs of restoration upon satisfactory performance of the work required, as evidenced by certification of completion by the Director and release of mechanic’s liens by all persons furnishing labor and material thereon. If the proceeds of insurance are insufficient to pay the actual costs

 

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of restoration, Concessionaire shall deposit the amount of the deficiency with the Auditor-Controller upon demand therefor by the Director, and said sums shall be held for payment of said costs and disbursed in the manner heretofore provided. Any undisbursed funds shall be retained by County and credited to the rental reserved over the remaining term of the agreement to the extent that any funds remaining at end of term will be reimbursed to Concessionaire by County. If Concessionaire elects to restore the concession premises, plans, specifications, and construction cost estimates for the restoration thereof shall be prepared by Concessionaire and forwarded to Director for approval prior to the performance of any work thereon. Said documents shall be prepared and submitted in a timely manner following adjustment of the loss and receipt of the proceeds of insurance by County. The required construction shall be performed by Concessionaire and/or licensed and bondable contractor(s) thereof who shall be required to carry public liability and property damage insurance, worker’s compensation insurance, and standard fire and extended coverage insurance, with vandalism and malicious mischief endorsements, during the period of construction, in amounts equal to the insurance limits required herein. Said construction shall be commenced promptly following the approval thereof by the Director, issuance of permits therefor by governmental agencies having jurisdiction thereover, and posting of the construction site by County with notice of nonresponsibility and shall be diligently prosecuted to completion. All work shall be performed in accordance with the approved plans and specifications, unless changes therein are approved in advance thereof by Director. Concessionaire agrees that County may have on the site at any time during the construction period as inspector who shall have the right of access to the concession premises and the work occurring thereon. Concessionaire shall, at the commencement of the construction work notify Director in writing of the identify, place of business, and telephone number of responsible person(s) in charge of the construction to be occurring thereon.  All construction shall be performed

 

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in a good and workmanlike manner. Upon completion of the restoration, Concessionaire shall immediately record a notice of completion with the Registrar-Recorder.

 

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11.02                                                                      If the premises are restored, this agreement shall continue in full force and effect, except that the payments to be made by Concessionaire shall be abated and/or other relief afforded to the extent that the Director may determine the damage and/or restoration interferes with the concesiion, provided a claim therefor is filed with the Director within one hundred (100) days of notice of election to restore the premises. Any such claim shall be denied, if the destruction of the concession premises is found by the Director to have been caused by the gross neglect of Concessionaire. Concessionaire agrees to cooperate in the determination of the abatement and/or other relief to be provided by furnishing all information requested relative to the concession, and permitting examination and audit of all accounting records kept in connection with the conduct thereof.

 

11.03                                                                      Concessionaire shall cooperate in the restoration of the concession premises by vacating and removing therefrom all items of inventory, trade fixtures, equipment and furnishings for such periods as are required for the restoration thereof.

 

11.04                                                                      The aforesaid provisions for abatement and/or other relief shall also be applicable to a total or partial destruction of Frank C. Bonelli Swim Park by the aforementioned causes, except that the relief to be provided shall be based upon the extent the Director may determine that the reduction in the public’s use of Frank G. Bonelli Swim Park due to the partial or total closure thereof has affected the concession.

 

11.05                                                                      Concessionaire agrees to accept the remedy heretofore provided in the event of a destruction of the concession premises and/or Frank G. Bonelli Swim Park and hereby waives any and all additional rights and remedies for relief or compensation that are presently available or may hereinafter be made available under the laws and statutes of this state.

 

12.          CONSTRUCTION BY COUNTY AFFECTING CONCESSION PREMISES AND/OR FRANK G. BONELLI REGIONAL COUNTY PARK .

 

12.01                                                                      In the event County shall construct or cause to be constructed a new facility for the concession, this agreement shall continue in full force

 

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and effect, except that the payments to be made by Concessionaire shall be abated and/or other relief afforded to the extent that the Director may determine the construction interferes with the concession, provided a claim therefor is filed with the Director within one hundred (100) days of commencement of construction.

 

12.02                                                                      Concessionaire agrees to cooperate with County in the event the construction affects the concession premises by vacating and removing therefrom all items of inventory, trade fixtures, equipment and furnishings for such periods as are required by the construction of the new facilities. Concessionaire further agrees to cooperate in the determination of the abatement and/or other relief to be provided by furnishing all information requested relative to the concession and permitting examination and audit of all accounting records kept in connection with the conduct thereof.

 

12.03                                                                      Following completion of the new facility, Concessionaire shall resume the concession therefrom within thirty (30) days of notice from the Director that the concession premises are tenantable.

 

12.04                                                                      The aforementioned provisions of this section shall also be applicable in the event of performance of work on Frank C. Bonelli Regional County Park that requires a partial or total closure thereof, except that the abatement and/or other relief to be provided shall be based upon the extent the Director may determine that the reduction in the public’s use of Frank G. Bonelli Regional County Park due to the partial or total closure thereof, has affected the concession.

 

12.05                                                                      Concessionaire agrees to accept the remedy heretofore provided in the event of construction upon the concession premises and/or Frank G. Bonelli Regional County Park, and hereby waives any and all additional rights and remedies for relief or compensation that are presently available or may be made available hereinafter under the laws and statutes of this state.

 

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13.          SECURITY DEPOSIT .

 

13.01                                                                      Prior to the commencement of this agreement, Concessionaire shall pay to the Auditor-Controller the sum of TWENTY THOUSAND-EIGHT HUNDRED THIRTY-THREE DOLLARS AND 33/100 ($20,833.33). In lieu thereof, Concessionaire may deposit said amount in a commercial bank or savings and loan association acceptable to the Auditor-Controller, provided that a certificate of deposit is delivered to said officer giving County the right to withdraw any or all of said amount during the term of this agreement. Concessionaire shall be entitled to any and all interest accruing from said certificate of deposit. In addition to said sum, Concessionaire shall purchase a performance bond in the amount of FORTY-ONE THOUSAND SIX HUNDRED SIXTY-SIX DOLLARS and 66/100 ($41,666.66) from a corporation duly authorized to issue surety bonds by the State prior to the commencement of this agreement. Said bond shall [ILLEGIBLE] Concessionaire as principal, company as surety, and County as obligee thereon.

 

13.02                                                                      Said sum and bond shall serve as security for faithful performance of all covenants, promises and conditions assumed by Concessionaire herein, and may be applied in satisfaction and/or mitigation of damages arising from a breach thereof, including, but not limited to, delinquent payments; correction of maintenance deficiencies; securing required insurance; loss of revenue due to abandonment, vacation or discontinuance of concession operations, discrimination; refunding of deposits for scheduled events which are required to be cancelled due to abandonment, vacation or discontinuance of concession operations; completion of construction; and payment of mechanic’s liens. Application of amounts on deposit and/or under said bond in satisfaction and/or mitigation of damages shall be without prejudice to the exercise of any other rights provided herein or by law to remedy a breach of this agreement.

 

13.03                                                                      In the event any or all of said sum and/or bond are applied in satisfaction and/or mitigation of damages, Concessionaire shall immediately deposit such sums and/or renew said bond in such amounts as are necessary to restore the

 

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security deposit to the full amount required hereunder.

 

13.04                                                                      Said sum shall be returned to Concessionaire upon termination of this agreement less any amounts that may be withheld therefrom by County as heretofore provided.

 

14.          HOLD HARMLESS AND INDEMNIFICATION .

 

14.01                       See Amd 3 p.13

 

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15.          INSURANCE .

 

See Amd 3 p.14

 

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16.          TAXES AND ASSESSMENTS .

 

16.01                                                                      The property interest conveyed herein may be subject to real property taxation and/or assessment thereon, and is the event thereof, Concessionaire shall pay before delinquency all lawful taxes, assessments, fees or charges which at any time may be levied by the State, County, City or any other tax or assessment-levying body upon the concession premises and any improvements located thereon.

 

16.02                                                                      Concessionaire shall also pay all taxes, assessments, fees and charges on goods, merchandise fixtures, appliances and equipment owned or used therein.

 

17.          TRANSFERS .

 

17.01                                                                      Concessionaire shall not, without written consent of the Director, assign, hypothecate, or mortgage this agreement or sublease or license any portion of the concession premises. Any attempted assignment, hypothecation, mortgage,

 

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sublease or license without the consent of the Director shall render this agreement null and void. Consent to the foregoing shall not be unreasonably withheld by the Director.

 

17.02                                                                      Each and all the provisions, agreements, terms, covenants and conditions herein contained to be performed by Concessionaire shall be binding upon any transferee thereof.

 

17.03                                                                      This agreement or any interest therein shall not be transferable in proceedings in attachment or execution against Concessionaire, or in voluntary or involuntary proceedings in bankruptcy or insolvency or receivership taken by or against Concessionaire, or by any process of law including proceedings under Chapter X or XI of the Bankruptcy Act.

 

17.04                                                                      Shareholders and/or partners of Concessionaire may transfer, sell, exchange, assign or divest themselves of any interest they may have therein. However, in the event of any such sale, transfer, exchange, assignment or divestment is effected in such a way as to give majority control of Concessionaire to any persons, corporation, partnership or legal entity other than the majority controlling interest therein at the time of the execution of this agreement, approval thereof shall be required. Consent to any such transfer shall only be refused if the Director finds that the transferee is lacking in experience and/or financial ability to conduct the concession.

 

17.05                                                                      The prohibition herein contained shall not be applicable with respect to transfers of this agreement arising from the exercise of a power of sale or judicial foreclosure pursuant to the terms and conditions of a hypothecation or mortgage previously approved by the Director.

 

17.06 & 17.07                           See Amd 3 p.17

 

18.          NONDISCRIMINATION .

 

18.01                                                                      See Amd 3 p.18

 

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