AGREEMENT FOR OPERATION OF THE
CITY OF COSTA MESA TENNIS CENTER
THIS AGREEMENT is made and entered into this othe day of February, 1998, by and between the CITY OF COSTA MESA, a municipal corporation, ("CITY") and HANK LLOYD'S ORANGE COUNTY TENNIS, INC. "LESSEE").
RECITA I S:
WHEREAS, CITY owns twelve (12) tennis courts ("Costa Mesa Tennis Center") located at TeWinkle Park; and
WHEREAS, the CITY is authorized by the provision of
Government Code Section 37396 to lease CITY park and recreation real property for the provision of services and property improvements consistent with public park and recreation purposes; and
WHEREAS, CITY and LESSEE agree that the primary objective for LESSEE'S performance under this Agreement is to maximize: (1) the public use of Tennis Center, and (2) the revenue to be received by . the CITY as a result thereof.
WHEREAS, this Agreement is intended to supersede all prior agreements.
NOW, THEREFORE, the parties agree as follows:
1. DEMISED PREMISES
1.01 CITY hereby leases to LESSEE for its management
and operation the real property consisting of the Tennis Center.
The name of the Tennis Center shall remain the same unless otherwise changed by CITY.
1.02 The premises, as shown on Exhibit A, shall be
used only and exclusively for Tennis Center operations and tennis related activities and for no other purposes whatsoever.
1.03 LESSEE acknowledges that he has personally
inspected the premises and the surrounding area and evaluated the extent to which the physical condition thereof will affect the operation of the Tennis Center. LESSEE accepts the premises in their present physical condition and agrees to make no demands upon CITY for any improvements or alteration except as provided herein.
1.04 LESSEE shall improve the premises in accordance
with the provisions set forth in Sections 6.01 through 6.05 hereinafter and the attached Exhibit B. All such improvements shall be at LESSEE'S sole expense.
1 improvements, additions, alterations
changes to the premises shall be subject to prior written approval by the City Manager, securing oi applicable permits and compliance such terms and conditions as may be imposed by the city Manager.
1.06 LESSEE hereby acknowledges the title of CITY in
and to the premises and the improvements located thereon, and covenants and agrees never to assail, contest or resist said title.
Ownership of all existing structures, and of all
structures, buildings and/or improvements constructed by LESSEE upon the premises and all alterations, additions or betterments thereto, shall immediately vest and be vested in CITY at all times during and after the term hereof, without compensation being paid Such structures, buildings and/or improvements shall be surrendered to CITY remainder of the premises upon
termination of this Agreement.
The term of this Agreement shall be for a period
(5) years commencing on the date on which the latter of LESSEE and CITY approve agreement.
commencement of the term may be extended as provided in Section
2.03 on application by LESSEE.
In the event LESSEE holds over beyond the term
with the consent, express or implied of CITY, such holding shall to month only, subject to the conditions of this
Agreement, shall not be a renewal thereof, and shall be at the monthly compensation provided herein.
LESSEE shall have the option for two extensions of
term of this Agreement, each for an additional five (5) vear period, provided that prior to the expiration of the term receives a written exercise of said option, signed by LESSEE, no later than sixty (60) days before the expiration of the term. The extensions of the term of this Agreement for each additional five (5) year period shall be on the same terms and conditions as provided herein. LESSEE'S option to extend the term of this Agreement also be conditioned on all of the following:
A. LESSEE is in good faith compliance with the terms
of this Agreement;
B. This Agreement has not been canceled as outlined in
Section 20 of this agreement by CITY prior to
the expiration of the term of this Agreement;
C. LESSEE has not been found by CITY to be in default
due to insolvency of LESSEE;
2 D. LESSEE has not been found by CITY to have
abandoned, vacated or discontinued operations for
period in excess of twenty-four hours; and
LESSEE has received satisfactory performance
evaluations from CITY.
3. LESSEE'S BASIC SERVICE OBLIGATIONS:
3.01 LESSEE shall establish and provide recreational
competitive tennis programming to the general public,
lesson instruction and other miscellaneous tennis
programs, and will furnish and maintain a professional tennis shop an adequate inventory, at the Tennis Center
facilities in TeWinkle Park in the city of Costa Mesa, under the terms and conditions set forth below:
Pro shop and tennis courts shall be open at minimum
Monday through Friday from 9 a.m. to 9 p.m., and on Saturday and Pro shop and tennis courts may be
closed during inclement weather. Pro shop and tennis courts shall be open on select holidays, and/or may have abbreviated hours of operation, which must be posted thirty (30) days prior to each holiday. right schedule courts for
tournaments and matches involving local high schools and colleges upon thirty (30) days advance written notice to LESSEE.
LESSEE shall have exclusive use of a maximum of six (6) or private lesson instruction Monday through
Sunday from 7 a.m. to 3 p.m., and eight (8) courts for instruction Monday through Friday from 3 p.m. to 9 p.m. The remainder of the courts to be left available for general public walk-on
individual reservation play.
LESSEE may reserve up to eight (8) courts for school practice, league play, or tournaments, from 7 a.m. to 6 p.m. Monday through Friday, and from 7 a.m. to 5 p.m. on weekends. Other group rentals may reserve up to six
Monday through Friday, and from 7 a.m. to 5 p.m. on weekends." The remainder of the courts are to be left available for reservations.
Should the courts not be reserved for individual general public use as of forty-eight (48) hours prior to the event, LESSEE may use remaining available courts as necessary for the event.
LESSEE may have use of all twelve (12) courts a maximum of four times per year for open tournaments, each subsequent to approval by the CITY. Day (s) and operational times of each tournament are also subject to CITY approval.
Facility rental rates and tournament participation rates will be based on prevailing public facilities in the
Orange County area determined by LESSEE and approved by CITY. 3 will attempt to secure
at Costa Mesa and Estancia High Schools during non-school time, as provided for in the Newport-Mesa Unified School District Agreement, for use by the LESSEE
purpose of providing tennis programming on behalf of the CITY.
D. LESSEE shall offer group and/or private lesson
instruction, for children (up to 12 years of age), of out and through 17 years of age), adults (18 to 54 years age) and senior citizens (over 55 years of age) for a combined minimum of twenty (20) hours per week.
Rates will be based on prevailing rates for other public facilities in the Orange County area determined by LESSEE and approved by CITY.
E. Courts for individual walk-on play and/or reservations will be made available to the public. Walk-on and reservation services are available for anyone, on a nondiscriminatory basis.
Court reservations and/or walk-on play shall be for sixty (60) o1 ninety (90) minute intervals. Time available for reservations and/or walk-on play, and the total number of courts available for of use, will vary dependent upon lesson instruction,
and other court rental use, tournaments, as
provided for in section 3.01B of this contract.
reservation rates will be based on prevailing
facilities in the Orange County area
and approved by CITY. "Annual Pass"
packages may be offered at prevailing rates determined by the CITY may elect to change rates upon
thirty (30) day advance written notice to LESSEE. Rates must be adequately posted at the pro shop and/or on the tennis courts.
Additional recreational competitive tennis
programs, approved by the CITY, are to be developed and provided by the LESSEE. Examples of such programming includes, but is not limited to: singles and doubles nights, recreation and competitive ladders, gender-specific activities, instructional
clinics and academies, special events, etc.
G. Scholarship and fee assistance programs for low income children and youth, subject to CITY approval, are to be developed and provided by the LESSEE.
H. Outreach, promotional and advertising efforts, subject to CITY approval, will be developed and provided by LESSEE, the purpose of which to attract new tennis players to the facility and to tennis as a recreational activity.
LESSEE shall be solely responsible for operation of the pro shop; hiring of Center instructors and other staff; all pro shop inventory and related items; reservation scheduling during operational hours; controlling of lights; handling of all program registration and associated with all programming and court 4 use rentals; keeping of accurate records of all revenue from programming, sales, court walk-ons reservations, and
all
services provided at the Costa Mesa Tennis Center.
Subject to CITY approval, LESSEE shall create a method
for collection program
participant facility
satisfaction evaluation information, for the purpose of review by CITY and LESSEE.
3.02 Building and Equipment Maintenance
A. LESSEE shall, at its expense, keep and maintain the
premises and all building, structures, improvements, fixtures, trade fixtures, equipment utility
systems which may now or
hereafter exist thereon, in good,
operable, useable and sanitary
order and repair and in a good, safe and first-class condition throughout the term of this Agreement, providing for such repairs, replacements, rebuilding and restoration as may be required by the City Manager. LESSEE shall be responsible for maintenance of the restrooms, furnishings and
shrubs & landscaping surrounding
and in courtyard area, including proper watering and
weeding.
All such repairs and/or any modifications or additions to the facilities shall have the approval by the City Manager prior to their implementation by LESSEE.
LESSEE shall pay all telephone charges. LESSEE shall
be responsible for all janitorial supplies. LESSEE shall further responsible replacement of damaged articles
including broken windows, broken clogged toilets,
drapes, doors, interior furnishings, carpets,
and fixtures. LESSEE shall
be responsible for annual cleaning of carpets and drapes, and for general cleaning of the interior of the pro shop. LESSEE shall be responsible for repainting of the interior of the pro shop as deemed necessary by CITY. LESSEE shall be responsible for weekly washing and maintenance of courts. LESSEE shall be responsible for security of courts and lights. LESSEE shall be responsible for emptying trash from pro shop to outside
receptacles
daily cleanup of pro shop patio area. LESSEE shall be responsible for maintenance of courts, including washing courts, nets, center
straps, windscreens, as well as replacement of nets and straps, when deemed necessary by CITY.
Should LESSEE fail, after ten (10) days notice from
CITY, to perform its obligations hereunder, CITY in addition to
all other available remedies may, but shall not be obligated to exercise
Right-of-Entry, enter upon the premises and perform
LESSEE's failed obligations, using any equipment or materials on the premises suitable for such purposes. LESSEE shall forthwith on demand reimburse CITY for its
costs so incurred including
indirect overhead costs as determined by the City
Manager.
5 It is hereby understood and agreed by LESSEE that CITY does not have any duty nor shall it be called upon to make any improvements, replacements or repairs whatsoever to the premises structures, improvements, fixtures, trade fixtures,
equipment and utilities during the term hereof, except as provided by the following:
CITY shall provide a tennis pro shop structure and
shall be responsible for maintenance of exterior lights, including replacing lights when necessary. CITY shall also be responsible for maintenance of grounds outside of the fenced in tennis courts courtyard area, including landscaping, lighting, parking lot driveways and walkways. CITY shall identify 55 parking
spaces in the northwest parking lot closest to the Center for use by Tennis Center participants. CITY shall pay all utilities except telephones. CITY shall be responsible for repainting the exterior of the pro shop as deemed necessary by CIll and Ior repair of any and all damage to the tile roof unless caused by the willful misconduct of LESSEE'S officers, employees or guests. CITY shall be responsible for repair of damage to the exterior of the pro shop due to weather.
may offer additional maintenance
services mutually agreed upon in writing by CITY
LESSEE shall be responsible for all damages, excluding tile roof, and losses to the pro shop due to vandalism. This includes the pro shop structure, excluding tile roof, and all fixtures and inventory within the pro shop.
4. PAYMENT OF RENTAL:
LESSEE shall pay CITY for the use granted herein a
monthly amount equal to: 10% of gross from all court-use revenue sources (i.e. lessons, tournament entries, hourly court rentals annual reservation passes, etc. ) and 5% of gross of pro shop $1000, whichever is greater, commencing one hundred
eighty (180) days after commencement of this contract.
the first ninety (90) days of the contract no payment will be made by LESSEE to CITY, and for the second (90) ninety days the minimum payment of $1000 will be paid by LESSEE to CITY.
Payment shall be made on a monthly basis to CITY
before the fifteenth (15th) day of the calendar
following each month of the term provided for herein, unless that date falls on a weekend or CITY holiday, in which case payment may be made on the first business day thereafter. Payment shall be made by check or draft issued and payable to the City of Costa Mesa and received by the City's Finance Director, 77 Fair Drive, Mesa, California 92626, such other place maybe
designated to LESSEE. A late payment charge of ten
percent (108) shall be added to any late payment that is received after the date in which payment is due. Postmarks will not be 6 accepted. However, the late payment charge may be waived whenever the City Manager makes written findings that the late payment is excusable by reason of extenuating circumstances. CITY shall not be obligated at any time during the term to notify LESSEE of the accumulation of late payment charges.
5. ACCOUNTING RECORDS
sales shall be recorded by means of cash
registers which publicly display the amount of each sale and automatically issue a customer's pre-numbered receipt
the amount recorded on a slip. or verify
cases have locked-in sales totals and transactions register shall in all 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. technical
or electrical
failure of the cash register, LESSEE shall record by hand all collections, and issue sequentially pre-numbered" customer's receipt in like manner • Under no circumstances
conduct sales shall LESSEE
such sales are not recorded and customer
receipts are not issued.
LESSEE shall be required to maintain a method of
accounting, to satisfaction of CITY, which correctly and accurately receipts,
construction costs, and disbursements,
financing of LESSEE in
connection authorized
operations. The method
accounting, including bank accounts established for the authorized operations, shall be separate from the accounting system used for any other business operated by LESSEE or for recording
financial affairs. personal
Such method shall include the keeping of the
following documents:
A. Regular books accounting such as general
ledgers.
Journals including any supporting and underlying
documents such as vouchers, checks, tickets, bank statements, etc.
State and Federal income tax returns and sales tax
checks and other documents providing payment of sums
shown which shall be kept in confidence by CITY.
Cash register tapes (daily tapes may be separate
but shall be retained so that from day to day the sales can be identified).
Any other reporting that the Finance
Director and/or City Manager deems necessary for proper reporting of receipts.
All documents, books and accounting records shall
be open for inspection reinspection at any reasonable time the term Agreement and for
thereafter. four (4) years
addition, CITY may from time to time conduct an
audit and reaudit of the books and business conducted by LESSEE and observe the operation of the business so that accuracy of the 7 records can be confirmed. LESSEE acknowledges that CITY intends to audit the books and records of LESSEE at least once prior to the expiration of the first year of the term of this Agreement. information obtained in connection with CITY'S inspection of records or audit shall be treated as confidential and exempt from public disclosure thereof
possible excepting notification of
termination of this contract, the averaged revenues from the most recent five (5) year period from LESSEE operations may be made available to the prospective bidders.
In the event that an audit or review conducted by
Finance Director and/or City Manager finds that
LESSEE'S non-compliance with its obligation to report gross receipts in connection with its operations authorized herein, loss and/or a projected loss of revenue to CITY can be
determined, the City Manager may, at his option, (1) bill LESSEE for said losses, said amount to be paid to CITY within thirty (30) days following billing therefor unless otherwise extended by the City Manager, and/or (2) use the Security Deposit as provided for herein; and/or (3) assess liquidated damages. The parties agree that it will be impracticable or extremely difficult to fix the extent of actual damages resulting from the failure of LESSEE to correctly report gross receipts; and a projected loss of revenue The parties hereby agree that under the current
circumstances a reasonable estimate of such damages is $100 per day of period as determined by CITY, and
that LESSEE shall be liable to CITY for liquidated damages in said
5.04.01 Should the City Manager find that the additional payment due to CITY exceeds two percent (2%) of the total amount which should have been paid as determined by such review or audit and observation, and there being no reasonable basis for the failure to report and pay thereon, LESSEE shall also pay the cost the audit as determined by CITY and pay any penalty for the delinquent payments.
shall furnish the City Manager with
• gross receipts report showing the amount payable therefrom to CITY. Such a report shall accompany each monthly payment required to be made as provided herein. The quarterly reporting period shall be by calendar month. In addition thereto, LESSEE shall furnish the City Manager with monthly revenue and expense reports and an annual and loss statement a balance
sheet prepared by a person and in a form acceptable to said City Manager. monthly report
submitted with the monthly rental payment. The annual financial statement shall be submitted within sixth (60) days of the close of an Agreement year. Said closing date shall be determined by reference date for commencement
provided.
6. REQUIRED CAPITAL IMPROVEMENT PROGRAM
6.01 A Capital Improvement Program shall be prepared by LESSEE and approved by the City Manager which shall indicate the description of each improvement project, the estimated improvement costs, and the projected time frame for commencement
and
completion of the improvement project. All twelve (12) tennis courts are to be resurfaced, all six (6) wind screens and all twelve (12) court nets will be replaced, and all agreed upon pro shop improvements will be completed within ninety (90) days from commencement of this contract. Exhibit B, attached hereto and prepared by CITY and LESSEE, is a list of the Capital Improvements Program.
The City Manager and LESSEE may mutually agree
from time to time that various capital improvement (s) shall be completed as necessary to improve and/or ensure the useability of the premises. LESSEE shall pay for the cost of all of the capital improvements in the Capital Improvement Program from LESSEE'S own Within thirty (30) days of execution of this Agreement, LESSEE shall provide a Faithful Performance Bond
form
approved by the City Attorney in an amount equal to $25,000.
Provided said bond shall be returned to LESSEE
on completion of
capital improvements in a value equal to said bond.
Prior to commencement of construction, LESSEE
obtain the City Manager's written approval of all plans, specifications and construction cost estimates (minimum of bids or proposals) for the improvements to be constructed upon the demised premises. No modification of said plans, specifications, or improvements, including landscaping, shall be made by LESSEE without approval thereof by the City Manager. LESSEE agrees that CITY may have site at any time during the
improvement period an inspector who shall have the right of access to the premises and the construction work.
6.04 The parties agree that any delay in the
construction due to fire, earthquake, war, labor dispute or other events beyond the control of LESSEE shall extend the time in which said construction must be completed by the length of time of such delay.
6.05 LESSEE shall construct,
maintain perform,
all construction and installations covered by this
Agreement in a good and workmanlike manner and with high quality materials, and shall furnish tools, equipment, labor and material necessary to perform and
to complete same, Upon
completion of the improvements, LESSEE shall furnish
the City
of as-built construction
drawings and operating manuals for building equipment and systems; written warranties. Upon termination of this
Agreement whether by expiration of term or cancellation, LESSEE warranties furnished by other
connection with the provision of labor and/or material
to the works of improvement covered by this Agreement.
Upon
9 by and consultation with CITY'S Risk Manager or City
Attorney, LESSEE shall provide such insurance coverage as City reasonably necessary for contemplated
construction project.
OPERATING RESPONSIBILITIES
Compliance with Laws : LESSEE shall conform to
abide by all CITY 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 tennis Center operation hereunder and/or any construction authorized herein, must be first obtained from the
regulatory agency having jurisdiction thereover.
Compliance with Rules and Regulations :
shall conform to and abide by all rules and regulations of the City Council and the City Manager insofar as the same or any of them are applicable. LESSEE shall conform to CITY'S Drug Workplace Policy, Policy No. 100-5, which is attached hereto and incorporated herein by this Failure to establish a
program, employees, or inform CITY of a drug related
workplace conviction a material breach of this
Agreement CITY may immediately terminate this
Agreement.
Disorderly Persons : exercise
reasonable allow any loud, boisterous
disorderly persons to loiter about the premises.
Illegal Activities : LESSEE shall not
knowingly permit any illegal activities to be conducted upon the premises.
LESSEE shall not post signs upon the
premises unless prior written approval therefore is obtained from the City Manager.
Public Use : LESSEE shall use its best efforts
maximize the public use of Tennis Center and the facilities thereon.
LEESEE'S Staff and Employment Practices:
shall maintain an adequate and proper staff. The City Manager may at any time give LESSEE written notice to the effect that the conduct or action of a designated employee of LESSEE is, in the reasonable belief of the City Manager, detrimental to the interest of the public patronizing the premises. Following City Manager's written therefor LESSEE shall, City Manager's
discretion: (1) terminate such employee's work assignment at the demised premises or (2) LESSEE shall meet with representatives of the City Manager to consider the appropriate course of action with respect to such matter and LESSEE shall take reasonable measures under the circumstances to assure the City Manager that the conduct and activities of LESSEE'S employee will not be to the interest of the public patronizing the
premises.
LESSEE warrants that it fully complies with all
regarding employment of aliens and others, and that all its employees performing services hereunder meet the citizenship or alien status requirements contained in federal and state statutes regulations including, but not limited the Immigration
and Control Act of 1986 P.L. 99-603). LESSEE
obtain, Irom all covered employees performing services hereunder, all verification and other documentation of employment eligibility required federal statutes and regulations
currently exist and as they may be hereafter amended.
shall retain such documentation for all covered employees for the period prescribed by law. LESSEE shall indemnify, defend, and harmless, the CITY, its officers and employees from employer sanctions and any other liability which may be assessed against LESSEE or CITY or both in connection with any alleged violation of federal statutes or regulations pertaining to the eligibility for employment of persons performing services under this Agreement.
Sanitation : No offensive matter or refuse or
substance constituting unnecessary, unreasonable,
fire hazard, or material detrimental to the public health shall be permitted to remain on the premises and LESSEE shall prevent any accumulation thereof from occurring.
Security Devices : LESSEE may provide any legal
devices, mechanism, equipment designed for the purpose
protecting the premises from theft, burglary vandalism, provided approval for installation thereof is
obtained from the City Manager. All purchases and installation thereof shall be at LESSEE'S expense. During the last thirty (30) days preceding the termination of this Agreement, LESSEE same from the premises, for those items of
personalty have been furnished by CITY or have been so
removal therefrom cannot be accomplished
without damage to the realty as determined by the City Manager. unsafe condition of the premises, as well immediately correct any any unsafe practices
occurring thereon. LESSEE shall obtain emergency medical care for member of the public who thereof,
illness, occurring premises.
cooperate fully with CITY in the investigation of any injury or occurring on the premises, including a prompt report thereof to the City Manager.
The premises shall not be used for
habitation, other than a night watchman or patrolman as approved by the City Manager.
8. ADVERTISING AND PROMOTIONAL MATERIALS
shall not promulgate nor caused to be
distributed any advertising, or promotional materials unless prior approval is obtained from City Manager. Said approval shall not unreasonably withheld or delayed and shall be deemed
given if no objection is made within fifteen (15) days following the request for approval. Such materials include, are not limited to: advertising newspaper, magazines and trade
journals, and radio and/or television commercials.
Credit in Promotional Materials: LESSEE
any advertising or promotional materials promulgated by LESSEE shall contain the words "City of Costa Mesa" and "Costa Mesa Tennis Center" prior to listing the LESSEE business name unless specifically approved otherwise by the City Manager. • 9. DESTRUCTION OF DEMISED PREMISES
In the event the demised premises shall be totally
or partially destroyed by a risk covered by the insurance coverage required herein, LESSEE either restore the premises
terminate this Agreement. CITY shall make the loss adjustment with the insurance company insuring the loss and receive payment of the proceeds of insurance. If the destruction is from a risk for which insurance coverage is not required or provided under said policy of insurance, CITY shall either restore the premises terminate Agreement. Said insurance proceeds, if any,
shall be held for the benefit of LESSEE only in the event of an election by LESSEE to restore the premises and shall be disbursed in installments as construction progresses for payment of the upon satisfactory performance of the work
required, as evidenced by certification of completion by the City Manager and release of mechanic's liens by all persons furnishing labor and materials thereon. If the proceeds of insurance are insufficient to pay the actual costs of restoration, LESSEE shall deposit the amount of the deficiency with the CITY upon demand therefor by the City Manager, and said sums shall be held for payment of said costs disbursed in the manner heretofore provided. Any undistributed funds shall be retained by CITY and credited to the rental reserved over the remaining term of this Agreement. . IF LESSEE elects to restore the demised premises, plans, specifications, and construction cost estimates
restoration thereof shall be prepared by LESSEE and forwarded to City Manager for approval prior to the performance of any work thereon. be prepared and submitted in a
timely manner following adjustments of the loss and receipt of the proceeds of insurance by CITY. The required construction shall be performed licenses bondable
thereof who shall be required to carry comprehensive liability and property damage insurance, workers' compensation insurance, and standard fire, and extended coverage insurance, with vandalism and malicious mischief endorsements, during period
construction, in amounts equal to the insurance limits required herein, or as otherwise determined by CITY. Said construction 12 shall be commenced promptly following the approval thereof by the Manager, issuance of permits therefor by governmental
agencies jurisdiction thereover, and posting
construction site by CITY with notice of nonresponsiblity, shall be diligently prosecuted to completion. All work shall be performed accordance approved
specifications, unless therein are approved in advance
thereof by City Manager. LESSEE agrees that CITY may have on the at any time during the construction period an inspector who shall have the right of access to the demised premises and the occurring thereon. LESSEE, commencement of the
construction work, shall notify City Manager in writing of the identity, place of business, and telephone number of responsible person (s) in charge of the construction to be occurring thereon.
All construction shall be performed in workmanlike
Upon completion of the restoration,
immediately record notice of completion with the Registrar- Recorder.
If the premises are restored, this Agreement shall
continue in full force and effect, except that the payment to be made by LESSEE shall be abated and/or other relief afforded to the City Manager may determine damage
restoration interferes with the Tennis Center operation provided a claim therefor is filed with the City Manager within one hundred (100) days of notice of election to restore premises. Any such claim shall be denied if the destruction of the demised premises is found by the City Manager to have been caused by the fault or neglect of LESSEE. cooperate in
determination of the abatement and/or other relief to be provided by furnishing all information requested relative to the Tennis operation, and permitting examination and audit of
accounting records kept in connection with the conduct thereof.
LESSEE shall cooperate in the restoration of the
demised premises by vacating and removing therefrom all items of inventory, trade fixtures, equipment and furnishings for periods as are required for the restoration thereof.
9.04 aforesaid provisions for abatement and/or
other shall also be applicable to a total
, partial
destruction of the demised premises by the aforementioned causes, except that the relief to be provided shall be based upon extent City Manager may determine that the reduction
in the
or More has alected the tennis Conte or total
LESSEE agrees to accept the remedy heretofore
provided in the event of a destruction of the demised premises hereby waives any and all additional rights remedies for compensation that are presently available or may
hereafter be made available under the laws and statutes of this 13 10. CONSTRUCTION BY CITY AFFECTING DEMISED PREMISES
10.01 In the event CITY shall construct or cause to be
constructed a new facility on the demised premises, this Agreement shall continue in full force and effect, except that the payments to be made by LESSEE shall be abated and/or other relief afforded • City Manager may decaine the to the extent that the City Manager may determine the construction interferes with the authorized operations, provided
therefor is filed with the City Manager within one hundred (100) days of the commencement of construction. LESSEE agrees that the provisions apply to improvements
constructed pursuant to the Capital Improvements Plan.
LESSEE agrees to cooperate with CITY in the event
the construction the premises by vacating and removing
therefrom all items of inventory, fixtures, equipment and furnishings for such periods as are required by the construction of the new facilities. LESSEE 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 operation permitting examination and audit of all accounting records kept in connection with the conduct thereof.
10.03 Following completion of the new facility, LESSEE
shall resume its operations therefrom within thirty (30) days of written notice from the City Manager that the premises are tenantable.
aforementioned provisions of this
shall also be applicable in the event of performance of work • demised premises that requires a partial or total closure thereof, except that the abatement and/or other relief to be provided shall be based extent the City Manager may
determine that the reduction in the public's use of the demised premises due to the partial or total closure thereof, has affected LESSEE'S operations.
agrees to accept the remedy heretofore
provided in the event of construction upon the demised premises, and hereby waives any and all additional rights and remedies for relief or compensation that are presently available or may be made available hereafter under the laws and statutes of this State.
INDEPENDENT CONTRACTOR
11.01 This Agreement is by and between the CITY and
LESSEE and is not intended, and shall not be construed, to create the relationship of agent, servant, employee, partnership, joint venture or association, as between CITY and LESSEE.
LESSEE understands and agrees that all persons
furnishing services to LESSEE pursuant to this Agreement are, for purposes of Workers' Compensation liability, employees solely of LESSEE and not of CITY.
14 11.03 shall bear the sole responsibility and
liability for furnishing and shall furnish Workers' Compensation benefits for injuries from or connected with
services performed on behalf of LESSEE pursuant to this Agreement.
12. SECURITY DEPOSIT
Prior to the commencement of the term of this
Agreement, LESSEE shall pay to the CITY a sum of $1,000 equal to one (1) month's minimum rent. In lieu thereof, LESSEE may deposit said amount in a bank whose deposits are insured under the Federal Deposit Insurance Act (123 U.S.C. Section 1811 et seq), provided that a certificate of deposit is delivered to the City Manager giving CITY the exclusive right to withdraw any or all of said during the Agreement. LESSEE
shall be
entitled to any and all interest accruing from said certificate of deposit: security faithful
performance of all covenants, promises and conditions assumed by herein, and may applied in satisfaction and/of
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 discontinuance of Tennis Center
operations; completion of construction; and payment of mechanic's Application of amounts on deposit 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. In the event any or all said
applied in satisfaction and/or mitigation of damages LESSEE shall immediately deposit sums as are necessary to restore the security deposit to the full amount required hereunder. Said sum shall be returned to LESSEE upon termination of this Agreement any amounts that may be withheld therefrom by CITY
heretofore provided.
13. HOLD HARMLESS AND INDEMNIFICATION
agrees to indemnify, defend and
harmless CITY, its agents, officers and employees from and against any and all liability, expense, including defense costs and legal fees, and claims for damages of any nature whatsoever, including, but not limited to, bodily injury, death, personal injury, property damage arising from or connected with LESSEE'S operations or its services hereunder, including any worker's compensation suits, liability or expense, arising
connected
services performed on behalf of LESSEE by any person pursuant to this Agreement. LESSEE'S duty to indemnify CITY shall survive the expiration or other termination of this Agreement.
14. INSURANCE
Without limiting LESSEE'S indemnification of CITY,
LESSEE shall provide and maintain at its own expense during the term of this Agreement the
following program(s) of insurance
covering its operations hereunder. Such insurance shall be
15 provided by insurer (s) satisfactory to CITY'S Risk Manager or City Attorney and evidence of such programs satisfactory to CITY shall be delivered to the City Manager on or before the effective date of this Agreement. evidence shall specifically identify this Agreement and shall contain express conditions that CITY is to be given written notice at least thirty (30) days in advance of any modification or termination of any program of insurance. insurance, with the exception of Workers' Compensation insurance, shall be primary to and not contributing with any other insurance maintained by CITY, and shall name CITY and its officers and employees as additional insureds.
14.01.01 During the periods of time of normal operations and non-construction periods, LESSEE shall provide and maintain the following forms and amounts of insurance:
Liability: Comprehensive General Liability
insurance endorsed Independent Contractor, Premises-
Operations, Products/Completed Operations, Contractual, Broad Form Property Damage, and Personal Injury with a combined single limit ONE MILLION DOLLARS ($1,000,000.00)
occurrence. If such insurance is written on a Claims Made Form, such insurance shall be endorsed to provide an extended reporting period of not less than five years following termination of this Agreement.
B. Workers' Compensation:
Compensation insurance in amount and Program of Workers' form meet
applicable requirements of the State of
California, including Employers' Liability with a $500,000 limit covering all persons providing services by or on behalf of LESSEE and all risks to such persons under this Agreement.
Property Coverage: (1) Personal Property
Insurance for the actual cash value against the hazards of fire,. theft, burglary, vandalism and malicious mischief.
14.02 Failure on the part of LESSEE to procure or
maintain required insurance shall constitute a material breach of contract upon which CITY may immediately terminate this Agreement.
14.03 Conduct of LESSEE'S operations shall not commence until LESSEE has complied with the aforementioned insurance requirements. Further, said operations, whether in whole or in part, shall be subject to suspension by the City Manager during any period that LESSEE fails to maintain said policies in full force and effect.
14.04 The specified amount of liability insurance
required herein may be subject to renegotiation on an annual basis. Should either party request renegotiation with respect to the amount of liability insurance to be provided, the
determination thereof shall be established through mutual negotiations between the parties. LESSEE shall continue to provide liability insurance in the amount currently being provided 16 pending final renegotiation thereof in the manner heretofore provided.
14.04.01 Subsequent to such renegotiation as hereinbefore described, and with concurrence of CITY'S
Risk Manager and
City Attorney, the City Manager shall prepare and execute, and the LESSEE shall execute, the appropriate amendment to this Agreement.
14.05 No cancellation provision in any insurance policy shall be
construed in derogation of the continuous duty of LESSEE to furnish insurance during the term of this Agreement. At least thirty (30) days prior to the expiration of any such policy, signed • and with
all
endorsements required by this Section, showing that such insurance coverage has been renewed or extended shall be filed with the City Manager.
15. TAXES AND ASSESSMENTS
The property interest conveyed herein may be
subject to personal property taxation and/or assessment thereon, and in the event thereon, and in the event thereof, LESSEE shall pay before delinquency all lawful taxes, assessments, fees charges which at any time may be levied by the State, County, CITY or any other tax assessment-levying body upon the premises and any improvements located thereon.
LESSEE shall also pay all taxes, assessments, fees
and charges on goods, merchandise, fixtures, appliances and
equipment owned or used therein.
16. TRANSFERS
16.01 shall not, without the prior written
consent of the City Manager assign, hypothecate, or mortgage this Agreement or sublease or license any portion of the premises. Any attempted ass'consent hypothecation, mortgage, sublease or license of the City Manager shall render this
Agreement null and void.
16.02 Each and all of the provisions, agreements, terms, covenants and conditions herein contained
LESSEE shall be binding be performed by
upon any transferee thereof.
authorized shall not be
transferable by testamentary disposition the state laws of intestate succession, as the rights, privileges, and use conferred by this Agreement shall terminate prior to the date for expiration thereof in the of the death of LESSEE occurring within the term herein provided. Additionally, neither this Agreement nor any interest therein shall be transferable proceedings in attachment execution against LESSEE or in
voluntary or
involuntary proceedings bankruptcy insolvency
receivership taken by or against LESSEE, or by any process of law including proceedings under the Bankruptcy Act.
17 Shareholders and/or partners
transfer, exchange, assign divest themselves of
interest they may have therein. However, in the event any sucr sale, transfer, exchange, assignment or divestment is affected ir a way as to give majority control of LESSEE to any persons, corporation, partnership or legal entity other than the majority controlling interest therein at the time of execution of this Agreement, approval thereof shall be required. Consent to any such transfer shall only be refused if the City Manager finds that the transferee is lacking in experience and/or financial ability to render and provide service for the operation of the Center.
16.05 prohibition herein contained shall not
applicable with respect to transfers of this Agreement arising exercise of a power of sale or judicial foreclosure
pursuant to terms and conditions of a hypothecation
mortgage previously approved by the City Manager.
16.06 In reference to Section 16.05, the CITY'S consent with regard to successive transfers of this Agreement arising from exercise of a power of sale or judicial foreclosure or the assignment of the Agreement in lieu of foreclosure, pursuant to trust previously approved by CITY, shall
not be unreasonably withheld.
event LESSEE shall request the prior
consent of City Manager to give, assign, transfer or grant of this Agreement, and subsequently the City Manager gives consent to the assignment, a transfer fee equal
percent (1%) of the gross sales price shall be paid to CITY. Said sum shall be payable to CITY in full either within thirty (30) days after said consent is given or prior to the close of any whichever occurs first. to the City Manager's
consent to such assignment, the assignor (1) shall deliver to assignee a written schedule of all sums due and owing to CITY from the assignor with such schedule being in form and content subject to the approval of the City Manager in all respects and (2) shall deliver to the City Manager, as part of the acceptance of assignment, a written acknowledgment by the assignee that the assignee (a) affirms the sums due and owing to CITY and (b) accepts responsibility for payment of such sums directly to CITY.
17. NON-DISCRIMINATION AND CIVIL RIGHTS COMPLIANCE
17.01 LESSEE hereby certifies and agrees that it will
comply with Title VI of the Civil Rights Act of 1964, Section 504 the Rehabilitation Act of 1973, the Age Discrimination Act of 1975, the Americans With Disabilities Act of 1991, Title IX of the Education Amendments of 1972, where applicable, and Title 43, part 17 of the Code of Federal Regulations Subparts A and B, to the end that no persons grounds creed,
national origin, political affiliation, marital status, or handicap, be subjected to discrimination under the privileges and use granted by this Agreement or under any project, program or activity supported by this Agreement.
LEESEE certifies
employed thereby, are and shall be treated equally without regard because of race, creed, color, national origin, political affiliation, handicap
compliance state laws
discrimination in employment, prohibiting
including but not limited to, the
Federal Civil Rights Act of 1964; the Unruh Civil Rights Act; the Cartwright Act; Fair Employment Practices Act
Americans With Disabilities Act.
LESSEE certifies and agrees that subcontractors,
and vendors thereof shall be selected without
regard to
creed, color, national origin,
political affiliation, marital status, sex, age or handicap.
17.04 employment records shall be
inspection and reinspection at any reasonable time during the term of this Agreement for the purpose of verifying the practice of non-discrimination by LESSEE in the areas heretofore described.
CITY finds that any of the above provisions
been violated, the same shall constitute a material breach of contract upon which CITY may determine to cancel, terminate, or suspend this Agreement. While CITY right to
determine independently that the non-discrimination provisions of this Agreement have been violated, in addition, a determination by California Fair Employment and Housing Department
Federal Equal Employment Opportunity Commission that LESSEE has violated State or Federal non-discrimination laws or regulations shall constitute a finding by CITY that LESSEE has violated the non-discrimination provisions of this Agreement.
parties
violates the non-discrimination provisions contained herein, CITY shall, at its option, be entitled to a sum of One Thousand Dollars ($1,000) pursuant to California Section 1671
liquidated damages in lieu of canceling, terminating or suspending this Agreement. further agrees that One Thousand Dollars ($1,000) is reasonable sum under circumstances
existing at the time of the execution of this Agreement.
EASEMENTS
18.01 CITY reserves the right to establish, grant or
utilize easements or rights-of-way over, under,
along and across
the demised premises for utilities and/or public access to the demised premises provided CITY shall exercise
such rights in a
manner avoid substantial interference
operations to be condicted hereunder.
Should the establishment of
easements permanently deprive LESSEE of the use of a portion ol the premises, an abatement of payments shall be provided in an proportional the total area of the premises in the
before and after conditions.
19 19. CANCELLATION
Upon the occurrence of any one or more of the
of default hereinafter described, this Agreement shall be subject to cancellation. As a condition precedent thereto, the City Manager shall give LESSEE ten (10) days notice by registered or certified mail of the date set for cancellation thereof; the grounds therefor; and that an opportunity to be heard thereon will be afforded on or before said date, if request is made therefor.
Upon cancellation CITY shall have the right to
possession including all improvements,
premises thereon,
equipment, and inventory located and use same for the
purpose of satisfying and/or mitigating all damages arising from a breach of this Agreement.
19.03 . Action by CITY to effectuate a cancellation
forfeiture of possession shall be without prejudice to
exercise of any other rights provided herein or by law to remedy a breach of this Agreement.
trustee, beneficiary, mortgagee or
(hereinafter: Lender) under a hypothecation or mortgage previously approved by the City Manager shall have the right at any time during the term of this Agreement to undertake any and all action that may be required in order to prevent a cancellation of this Agreement and forfeiture of the operation. Accordingly, the City Manager shall a copy of any intended cancellation of this Agreement to any of the aforementioned parties whose security affected thereby; and request thereof for
postponement, extend the date set therefor by such time City Manager finds reasonable in order to allow said parties to correct the therefor or to provide a new LESSEE under a power of sale or foreclosure contained in the hypothecation or mortgage, who upon transfer thereto shall become responsible for the correction thereof within such time as may be allowed by the City Manager.
In reference to Section 20.04 of this Agreement,
the City Manager shall provide a notice of default to Lender, provided that such Lender shall have previously registered with the City Manager by written notice specifying the name and address said Lender, same time the City Manager provides
notice to the LESSEE. With regard to monetary defaults and other defaults curable by Lender, the City
shall not terminate this Agreement so long as Lender,
receiving notice such defaults and within a reasonable
time after the expiration of LESSEE'S curative periods to cure the as provided in Section 21., commences promptly to pay or institute foreclosure proceedings to foreclose the deed of trust and proceeds with the due diligence thereafter to prosecute such proceedings to a conclusion or to cure the defaults. regard to defaults which cannot be cured by lender, the City Manager shall not terminate this Agreement so long Lender, receiving notice such defaults and with a reasonable time 20 after the expiration of the LESSEE'S curative periods to cure the defaults, institutes promptly for foreclosure proceedings foreclose proceeds with
diligence
thereafter to prosecute such proceedings to a conclusion. In the event that this Agreement is rejected by a trustee in bankruptcy due to LESSEE'S bankruptcy, CITY shall provide to Lender or assignee an option to enter into a new lease agreement with CITY and conditions contained in this
Agreement and for the balance of the term thereof.
20. EVENTS OF DEFAULT
20.01 abandonment, vacation or discontinuance
of
tennis Center operations the demised premises
for more than
twenty-four (24) consecutive hours.
20.02 failure of LESSEE to punctually pay or make
the payments herein due, where the delinquency
continues
beyond ten (10) days following written notice for payment thereof.
20.03 The failure of LESSEE to operate in the manner
required by this Agreement, where such failure continues for more than ten (10) days after written notice from the City Manager to correct the condition therein specified.
20.04 The failure to maintain the premises and the
improvements constructed thereon in the state of repair required hereunder, and sanitary, safe and
a Clure continues for more than ten (10) satisfactory
condition, where
days after written notice from the City Manager for correction thereof, provided where fulfillment of such obligation
requires activity over a period of time and LESSEE shall have immediately, following receipt of such notice,
commenced to
perform whatever may be required to cure the particular default and continues such performance diligently, said time limit may be waived in the manner and to the extent allowed by the City Manager.
20.05 The failure of LESSEE to keep, perform and observe all other promises, covenants, conditions and agreements set forth in this Agreement, such failure continues for more
thirty (30) days after written notice from the City Manager for correction thereof, provided that where fulfillment
obligation requires activity over a period of time and LESSEE shall have commenced to perform whatever may be required to cure the particular default within ten (10) days after such notice and continues such performance diligently, said time
limit may
waived in the manner and to the extent allowed by the
Manager.
20.06 The filing of a voluntary petition in bankruptcy
by LESSEE; the adjudication of LESSEE as a bankrupt; the appointment of any receiver of LESSEE'S assets; the making of a general assignment for the benefit of creditors; a petition or 21 answer seeking an arrangement for the reorganization of LESSEE Federal Reorganization Act, including petitions
answers under Chapters Bankruptcy Act; the
occurrence of any act which operates to deprive LESSEE permanently of the rights, powers and privileges necessary for the proper conduct and operation of the Tennis Center; the levy of attachment or execution which substantially interferes
LESSEE'S operations under this Agreement and which attachment or execution is not vacated, dismissed, stayed or set aside within a period of sixty (60) days.
20.07 Determination by the City Manager, the State Fair Employment Commission, or the Federal Equal Employment Opportunity Commission of discrimination having been practiced by LESSEE in violation of state and/or federal laws thereon.
Transfer of the majority controlling interest
LESSEE to persons other than those who are in control at the time of the execution of this Agreement without approval thereof by the City Manager.
LESSEE'S material misrepresentation of fact (s) in
"Affidavit to Accompany Proposals", which was required to be submitted in response to the "Request For Proposals" , which was to be submitted in response to the Request for Proposals used in the solicitation for this Agreement, which by this
reference is incorporated herein as if fully set forth.
20.10 Failure to have submitted schematic plans and/or
drawings or before the date (s) designated in this
Agreement for submission thereof.
20.11 Failure to have commenced required construction or any phase thereof on or before the date designated in this Agreement for commencement thereof.
20.12 Failure to have completed construction on or
before the date designated in this Agreement for completion thereof.
21. DEFAULT FOR INSOLVENCY
21.01 CITY, through its City Manager, may immediately
terminate this Agreement default in
occurrence of any of the following:
City Manager determines that LESSEE is
insolvent. shall be deemed to be insolvent if it has
ceased to pay its debts in the ordinary course of business or cannot pay its debts as they become due, whether it has committed an act of bankruptcy or not, and whether insolvent within the meaning of Federal Bankruptcy Law or not.
The appointment of a Receiver or Trustee for
C. The execution by LESSEE of an assignment for the
benefit of creditors.
21.02 The rights and remedies of CITY provided in this
shall not be exclusive and are in addition to any other rights and remedies provided by law or under this Agreement.
21.03 provision d sortin than te otto Many
22. WAIVER
Any waiver by CITY of any breach of any one or
the covenants, conditions, terms and agreements herein
contained shall not be construed to be a waiver of any subsequent or other breach of the same or of any other covenant, condition, term or agreement herein contained, nor shall failure on the part of CITY to require exact, full and complete compliance with any of the covenants, conditions, terms or agreements herein contained be construed as in any manner changing the terms of this Agreement or stopping CITY from enforcing the full provisions thereof.
22.02 No delay, failure, or omission of CITY to re-enter the premises or to exercise any right, power, privilege or option, arising from default, nor any subsequent
acceptance
payments then or thereafter shall impair any such right, power, privilege or option, be construed as a waiver of or
acquiescence in such default or as a relinquishment of any right.
22.03 No notice to LESSEE shall be required to restore
or revive "time of the essence" after the waiver by CITY of any default.
22.04 No option, right, power, remedy or privilege of
CITY shall be construed as being exhausted by the exercise thereof in one or more instances. The rights, powers, options, privileges and remedies given CITY by this Agreement shall be cumulative.
23. RIGHT-OF-ENTRY
Should LESSEE be deemed deficient,
in its performance of its obligations required
hereund a Cry in addition to all other available remedies may. but shall not be so obliged, enter upon the premises and correct LESSEE'S deficiencies using CITY forces, equipment
materials on the premises suitable for such purposes, or by employing a separate private contractor. CITY'S costs
incurred, including direct indirect overhead
determined by the City Manager, shall be reimbursed to CITY by and/or its sureties within thirty (30) days of demand
thereof.
abandonment, vacation
discontinuance of operations for a period in excess of twenty-four (24) hours, LESSEE hereby irrevocably appoints CITY as an agent 23 for continuing operation of the services granted herein, and in connection therewith authorizes the officers and employees thereof take possession the premises, including
improvements, equipment and inventory thereon; and (2) remove any and all persons or property on said premises and place any such property in storage for the
LESSEE; and (3) sublease or license the premises; and (4) after payment of all expense of such subleasing or licensing apply all payments realized therefrom to the satisfaction and/or mitigation all damages arising from LESSEE'S breach of this Agreement.
Entry by the officers and employees of CITY upon the premises for the purpose of exercising the authority conferred hereon as agent of LESSEE shall be without prejudice to the exercise of any other rights provided herein or by law to remedy a breach of this Agreement.
SURRENDER
expiration hereof,
cancellation thereof as herein provided, LESSEE shall peaceably premises and any and all improvements located thereon
deliver up the same to CITY in a reasonably good condition, ordinary wear and tear expected, subject to the right of CITY to demand removal thereof.
24.02 Upon expiration of the term of this Agreement,
LESSEE shall execute and deliver to CITY within thirty (30) days after service of written demand, a good and sufficient quitclaim deed of the LESSEE'S interest in this Agreement and the demised premises. Should LESSEE to deliver to CITY a
quitclaim deed as aforesaid, a written notice by CITY reciting the failure of the LESSEE to execute and deliver the quitclaim deed, shall after ten (10) days from the date of recordation of the notice be conclusive evidence against LESSEE and all persons claiming under LESSEE of the termination of this Agreement.
25. INTERPRETATION
This Agreement shall be interpreted according to
the interpretation of contracts,
prescribed in Part 2 of Division 3 of the California Civil Code commencing with Section 1635.
25.02 The headings herein contained are for convenience reference only and are not intended to define or limit the scope of any provision thereof.
25.03 following words as used herein shall be
construed to have the following meaning, unless otherwise apparent from the context in which they are used:
"City Manager": City Manager or his designee.
"State": The State of California.
"Finance Director": Finance Director of the City of Costa Mesa.
24 "Tennis Center Operation": The privilege of engaging in the activities authorized herein on the public property designated therefor.
"Capital Improvement": Any construction project which
extends the useful life and/or increases
the capacity of the
tennis Center facilities.
"Building Official": CITY'S Director of Development
Services, his authorized representative, or his successor in • interest.
"Gross Receipts": Except as specifically provided by policy statement issued by the City Manager, the term "gross receipts" as in this lease, is defined cash receipts,
assets, property or other things of value, including but not to: gross charges, sales, rentals, fees, gratuities and commissions made or earned by LESSEE and/or all the assignees, sublessees, Licensees, permittees concessionaires thereof, whether collected or accrued from any business, use or occupation, or any combination thereof, originating, transacted, or performed in whole or in part, on the premises, including but not limited to rentals, the rendering or supplying of services and the sale of wares or merchandise. receipts shall include the
of any manufacturer's or importer's excise tax included in of any property or material through the
manufacturer or importer is also the retailer
thereof, and it is
immaterial whether the amount of such excise tax is stated separate charge.
25.03.01 Except specifically provided below or by
written policy statement issued by the City Manager, there shal! no deduction receipts for overhead cost or
expense of operations, without limitation
salaries, commissions, gratuities, goods,
interest, amortization, credit, collection costs, discount from credit card operations, insurance and taxes. Bona fide bad actually incurred by LESSEE or its sublessees, assignees, licensees, concessionaires and permittees may be deducted receipts. shall however, be no deduction for bad
debts based on past experience or transfers to a bad debt reserve.
Subsequent collection of bad debts previously not reported as receipts shall be included in gross receipts at the time they are collected.
25.03.02 Except as specifically provided below or by
written policy statement issued by the City Manager,
gross
receipts reported by LESSEE and its sublessees,
asSignees,
licensees, concessionaires and permittees, must include the full usual charge for any services,
goods, rentals or facilities
provided by LESSEE or its sublessees,
assignees, licensees,
concessionaires or permitees. Gross receipts shall not include the following: direct taxes imposed upon the consumer and collected therefrom by LESSEE such as, but not limited to, Federal, State, or Municipal retail sales taxes, or related direct taxes, which 25 direct taxes paid periodically by LESSEE to a governmental agency accompanied by a tax return statement; receipts from fees or charges made for tennis instructions; receipts derived from the rental of tennis equipment which are leased by LESSEE specifically for tournament purposes but not to exceed the cost to LESSEE of such tennis equipment; and receipts from entry fees or
charges made for special tournaments.
25.03.03 The City Manager, by written policy statement
consistent with recognized and accepted business and accounting practices, upon consultation with LESSEE, and with the approval of the Finance Director and City Attorney, may further interpret the term "gross receipts" as used in this Agreement.
In the event of any conflict in the definition or
interpretation of any word, responsibility, service schedule between the Lease Agreement and the exhibits attached hereto, said conflict or inconsistency shall be resolved by giving precedence in the following priority order: first to the Agreement; then to the Exhibits to the Agreement.
FORCE MAJEURE/TIME EXTENSIONS
otherwise specifically provided
hereinbefore, and in the event either party hereto shall be delayed or prevented from performance act required
hereunder by reason of Acts of God, litigation to which LESSEE is not a plaintiff, or other cause without fault and beyond control of the party obligated, performance of such act shall be excused for the period of time of the delay as determined by the City Manager. An extension of time for any such cause shall only be for a period of time equivalent to the enforced delay. LESSEE'S inability obtain financing shall not be grounds for
extension of time. City Manager shall prepare and execute, and shall execute the appropriate document acknowledging any extension of time granted pursuant to this section.
LESSEE'S NON-COMPLIANCE AND LIQUIDATED DAMAGES
If the City Manager determines that there
deficiencies in LESSEE'S performance the Tennis
operations authorized and required herein, the City Manager wili provide written notice LESSEE to. correct
deficiencies within twenty-four (24) hours following notification. the event that LESSEE fails to correct the
deficiencies within the prescribed time frames the City Manager at his option; (1) use the Security Deposit as provided for herein, (2) exercise its rights under paragraph 23.01 (Right-of- Entry) herein, and/or (3) assess liquidated damages pursuant to the schedule hereinafter listed.
27.02.01 The parties agree that it will impracticable
extremely difficult to fix the extent of actual damages resulting from the failure of the LESSEE to comply with the obligations herein required, authorized,
specified. The parties
circumstances a reasonable estimate of such damage is $100 per day each day of the period of time that the deficiencies
and that LESSEE shall be liable to CITY for liquidated damages in said amount.
27.02.02 The parties further agree that it will be
impracticable or extremely difficult to fix the • extent of actual resulting from the failure of the LESSEE to comply with obligations for demised premises grounds maintenance required and specified. The parties hereby agree that under
the current
circumstances a reasonable estimate of
such damages is $100 per
period of time that the deficiencies
exist, that LESSEE be liable to CITY for liquidated
damages in said amount.
28. TENNIS CENTER EVALUATION REPORT
28.01 • CITY and LESSEE agree that the overall condition and playability of the Tennis Center,
provided by LESSEE, and the condition of the buildinas thereon is I te primary importance to both parties. this Agreement specifies, the standards of performance deemed necessary for
proper maintenance and services, CITY will develop a Tennis Center Evaluation Report to document LESSEE'S performance pursuant to said standards.
28.02 CITY'S Tennis Center Evaluation Report will be
completed by an authorized representative (s) of the City Manager after an inspection
representative(s). CITY shall make every reasonable effort to conduct such inspections a regular basis and
LESSEE or his
authorized representative will be invited to participate in the inspection tour of the premises.
On or before the second (2nd) anniversary of this Agreement and each two (2) years thereafter,
CITY will present a Tennis
LESSEE based inspections
conducted of the Tennis Center for the preceding time period. provide comments CITY On the Tennis
Evaluation Report prior to CITY'S City Council consideration of City Manager shall present the Tennis Center
Evaluation Report in a public hearing to CITY'S City
Council
within a reasonable time after providing the report to LESSEE.
The Tennis Center Evaluation Report may be accepted or modified by City Council based on evidence received at the public hearing.
The Tennis Center Evaluation Reports may be considered by City determining whether deny LESSEE'S
application for the extensions of the term of this Agreement.
28.03 update, and/or The City Manager resententhe right to modify! general format of the
Evaluation Report forms in
order to provide for a suitable
instrument for the documentation of LESSEE'S performance. 27 29. NOTICES
29.01 Any notice required to be given under the terms of this Agreement or any law applicable thereto may be: (1) delivered by personal envelope, with
postage paid, addressed to the person on whom it is to be served, return receipt requested, and deposited in a post office, mailbox, sub-post office, substation or mail chute, or other like facility regularly maintained by the United States Postal Service. address to be used for any notice served by mail upon LESSEE shall indicated signature or such other place as may
hereafter be designated in writing to the City Manager by LESSEE.
Any notice served by mail upon CITY shall be addressed to the City Manager, 77 Fair Drive, Costa Mesa, California 92626, or such other place as may hereafter be designated in writing to LESSEE by the City Manager. Service by mail shall be deemed complete upon deposit in the above-mentioned manner.
30. SEVERABILITY
30.01 . If any provision of this Agreement is determined to be illegal, invalid, or unenforceable by a court of competent jurisdiction, remaining provisions hereof shall not be
affected thereby and shall remain in full force and effect.
31. CONTRACT ENFORCEMENT AND AMENDMENTS TO THIS AGREEMENT
31.01 The City Manager shall be responsible for the
enforcement of this Agreement on behalf of CITY and shall be assisted therein by those officers and employees of CITY having duties in connection with the administration thereof.
31.02 Any officers and/or authorized employees of CITY
may enter upon the demised premises at any and all reasonable times for the purpose of determining whether or not LESSEE is complying with the terms and conditions hereof, or for any other purpose incidental to the rights of CITY within the demised premises.
31.03 In event either party commences
proceedings for the enforcement of this Agreement, the • prevailing party shall be entitled to recover its attorney's and costs incurred in the action brought thereon.
31.04 This document may be modified only by further
written agreement between the parties. Any such modification shall not be effective unless and until
especial yaut orden
the case CITY, unless otherwise
hereinbefore, until executed by the Mayor of CITY.
28 32. ENTIRE AGREEMENT
32.01 This document, and the exhibits attached hereto,
constitutes the entire agreement between CITY and LESSEE for the Tennis Center operations and granted herein.
agreements, promises and representations respect thereto, other than contained herein, are expressly revoked, as it has been the intention of the parties to provide for a complete integration within the provisions of this document, and the exhibits attached hereto, the terms, conditions, promises and covenants relating the Tennis Center operation and the demised premises to be used in the conduct thereof.
IN WITNESS WHEREOF LESSEE has executed this Agreement, or caused it to be duly executed,
and CITY, by order City
Council, has caused this Agreement to be executed on its behalf by the Mayor of CITY and attested by the City Clerk of CITY on the day and year first above written.
Mailing Address: HANK LLOYD'S ORANGE COUNTY
TENNIS, INC.,
LESSEE:
HANK LLOYD'S TENNIS
34205 DOHENY PARK RD. Tumpthey Buint
By:
CAPISTRANO BEACH, CA 92624 President
Title:
By: Hank Hand
Hank Lloyc
Title: Secratang-Treesen
CIRT OF COSTA MESA:
Butt
Mayor
ATTEST:
APPRONED AS TO FORM:
• Marex T. / Monas Cathe 2-6•98
Deputy City Clerk City Attorney
City Council Approved On:
12-15-97
29 TEWINKLE
PARK COSTA MESA JUNIPERO.
TENNIS CENTER
JUNIPERO DRIVE NEWPORT BLVD.
880 Junipero
Costa Mesa, CA 92626
PARKING (714) 557-0211
55 parking spaces 55 FWY.
plus 4 handicapped
parking spaces
EXHIBIT A 123-4
516
P& R
Storage LEGEND
55 Parking spaces
H Handicap parking (4)
Public pay phone
Sidewalk
Trees (in grand planters)
Water fountain
P&R Pro-shop & restrooms
1-12 Tennis courts
0-43 Lights standards
SS Shade Structure
* 2227-72 € rev. 1/5/98
:
EXHIBIT B
CAPITAL IMPROVEMENIS PROGRAM
Within ninety (90) days of the commencement of this contract, the LESSEE shall:
IMPROVEMENT ESTIMATED COST*
Resurface and restripe all twelve $21,600 total
(12) tennis courts
Replace all six • (6) windscreens $12,000 total
Replace all twelve (12) court nets $ 1,200 total
Replace pro shop doors $ 800 total
Installation and lease of alarm (unknown)
for pro shop
GRAND TOTAL $ 35,600
Should the cost to resurface and restripe the tennis courts, replace
installation ton indeen alarm to place prep do cost alarm for pro shop, estimate provided herein, LESSEE shall pay the additional cost to complete specified capital improvement projects above)
31 CITY OF COSTA MESA, CALIFORNIA
COUNCIL POLICY
POLICY EFFECTIVE
NUMBER DATE PAGE
SUBJECT
DRUG-FREE WORKPLACE 100-5 8/8/89 1 of 3
BACKGROUND
Under the Federal Drug-Free Workplace Act of 1988, passed as part of omnibus drug legislation enacted November 18, 1988, contractors and grantees funds must certify that they will provide
drug-free workplaces. At the present time, the City of Costa Mesa, as a sub-grantee of Federal funds under a variety of programs, is required to abide by this Act. has expressed its
support of the national effort to eradicate drug abuse through the creation of a Substance Abuse Committee, institution of a City-wide D.A.R.E. all local schools and other activities in
support of a drug-free community. This Policy is intended to extend that effort to contractors and grantees of the City of Costa Mesa in the elimination of dangerous drugs in the workplace.
PURPOSE
It is the purpose of this Policy to:
1. Clearly state the City of Costa Mesa's comnitment to a arug-free society.
2. Set forth guidelines to ensure that public, private, and nonprofit organizations receiving funds from the City of Costa Mesa share the commitment to a drug-free workplace.
POLICY
The City Manager, under direction by the City Council, shall take the necessary steps see that the following provisions are included in all contracts and agreements entered into by the City of Costa Mesa involving the disbursement of funds.
1. Contractor or Sub-grantee hereby certifies that it will provide a drug-free workplace by:
A. Publishing a statement notifying employees that
the unlawful manufacture, distribution, dispen-
sing, possession, or use of a controlled substance
is prohibited in Contractor's and/or sub-grantee's
workplace, specifically the job site or location
included in this contract, and specifying the ac-
tions that will be taken against the employees for
violation of such prohibition;
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CITY OF COSTA MESA, CALIFORNIA
COUNCIL POLICY
POLICY EFFECTIVE
JBJECT DRUG-FREE WORKPLACE NUMBER DATE PAGE
100-5 8/8/89 2 of 3
B. Establishing a Drug-Free Awareness Program to
inform employees about:
1. The dangers of drug abuse in the workplace;
2. Contractor's and/or sub-grantee's policy of
maintaining a drug-free workplace;
3. Any available drug counselling, rehabilita-
tion and employee assistance programs; and
4. The penalties that may be imposed upon
employees for drug abuse violations occur-
ing in the workplace;
C. Making it a requirement that each employee to be
engaged in the performance of the contract be given
a copy of the statement required by Subparagraph A;
D. Notifying the employee in the statement required by
Subparagraph 1 A that, as a condition of employment
under the contract, the employee will:
1. Abide by the terms of the statement; and
2. Notify the employer of any criminal drug
statute conviction for a violation occurring
in the workplace no later than five (5) days
after such conviction;
E. Notifying the City of Costa Mesa within ten (10)
days after receiving notice under Subparagraph
1 D 2 from an employee or otherwise receiving
he actual notice of such conviction:
Taking one of the following actions within thirty
days of receiving notice under Subparagraph
1 D 2 with respect to an employee who is so con-
victed:
1. Taking appropriate personnel action against
such an employee, up to and including ter-
mination; or
33 CITY OF COSTA MESA, CALIFORNIA
COUNCIL POLICY
POLICY EFFECTIVE
_BJECT NUMBER DATE PAGE
DRUG-FREE WORKPLACE •
100-5 8/8/89 3 of 3
2. Requiring such employee to participate satis-
habilitation program approved for such pur-
agency, law enforcement, or other appropriate
agency;
G. Making a good faith effort to maintain a drug-free
workplace through implementation of Subparagraphs
1 A through 1 F, inclusive.
2. Contractor and/or sub-grantee shall be deemed to be in violation of this Policy if the City of Costa Mesa deter- mines that:
A. Contractor and/or sub-grantee has made a false
certification under Paragraph 1 above;
B. Contractor and/or sub-grantee has violated the
certification by failing to carry out the re-
quirements of Subparagraphs 1 A through 1 G
above:
C. Such number of employees of Contractor and/or
sub-grantee have been convicted of violations
of criminal drug statutes for violations occur-
ring in the workplace as to indicate that the
Contractor and/or sub-grantee has failed to
make a good faith effort to provide a drug-free
workplace.
3. Should any Contractor and/or sub-grantee be deemed to be in violation of this Policy pursuant to the provisions of 2 A, B, and C, a suspension, termination or debarment pro- ceeding subject to applicable Federal, State, and local laws shall be conducted. Upon issuance of any final
decision under this section requiring debarment of a Con- tractor and/or sub-grantee, the Contractor and/or sub-
shall be ineligible for award of any contract,
agreement or grant from the City of Costa Mesa for a
period specified in the decision, not to exceed five (5) years. Upon issuance of any final decision recommending against debarment of the Contractor and/or sub-grantee, the Contractor and/or sub-grantee shall be eligible for compensation as provided by law.
34