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HomeMy WebLinkAboutThe Pub 2024-01-12COU No. 2324-140 City of Ukiah Concession Services for Ukiah Sports Complex PAGE 1 OF 15 AGREEMENT FOR UKIAH SPORTS COMPLEX CONCESSION SERVICES This Agreement, made and entered on January 12, 2024 (“Effective Date”), by and between CITY OF UKIAH, CALIFORNIA, hereinafter referred to as "City" and Fun Times Inc., DBA: The Pub, a for-profit corporation organized and in good standing under the laws of the state of California, hereinafter referred to as "Contractor". RECTIALS: 1. The City owns the Ukiah Sports Complex, a three field public facility with a Concession Building for food and beverage service, and surrounding grounds located at River Road Exit., Ukiah, CA. 2. It is the desire of the City to contract for Concession Services at the Ukiah Sports Complex. AGREEMENT: In consideration of the above-recited facts and the terms and conditions as set forth below, the parties agree as follows. 1. TERMS. A. The initial contract term shall be two (2) years and may be extended for an additional term based on vendor performance and a mutual agreement by both parties. The renewal may be up to three (3) additional one-year periods. The contract term shall not exceed five (5) years. B. The City shall provide the use of the concession store premises to the food service vendor. C. The Contractor will pay for the expense of all utilities of the concession facility during the term of the agreement. D. The City shall not be responsible for any equipment repairs or furnishings of the concession facility during the contract term. 2. CONCESSION LICENSE. City hereby grants to Contractor a license for the use of the Concession Building for the term of this Agreement. The license to use the Concession Building shall coincide with the term of this Agreement, and shall terminate when this Agreement terminates. The Concession Building includes all existing fixtures & equipment, specifically the ice machine, keg cooler, refrigerator, freezer, stove burner, and deep fryer. It shall be the Contractor's responsibility for equipment maintenance and to replace any damaged equipment at the Contractor's expense. Contractor shall use the Concession Building only for the management and operation of the Ukiah Sports Complex, and for no other purpose. 3. INDEPENDENT CONTRACTOR. COU No. 2324-140 City of Ukiah Concession Services for Ukiah Sports Complex PAGE 2 OF 15 The CONTRACTOR'S relationship to the City in the performance of this Agreement is that of an independent contractor. The personnel performing services under this Agreement shall at all times be under the Contractor's control and exclusive direction, and shall be employees of the Contractor, and not employees of the City, and shall not be entitled to the benefits provided by the City to its employees, including but not limited to pension plans, health insurance and unemployment insurance. 4.SCOPE OF SERVICES. Hours of Operation The park is open daily from dawn to dusk. The food service vendor will be responsible for closing the concession every evening. The Concession shall be open during sports and recreation activities that typically run on weekdays throughout the year and weekly (Mon – Fri from, 6 – 10 pm) during the May through October months. The vendor shall ensure that the hours of operation align with the park’s sports and recreation activities. The vendor shall adjust hours as needed and mutually agreed upon by the vendor and City to meet the needs of the park and serve the park patrons. Ukiah Sports Complex Game & Tournament Schedule Typically, League Nights run from the first week of May through the end of October (the schedule may vary slightly based on the weather). Certain nights of the week are more popular than others and thus will require additional staffing. The City runs three-weekend tournaments per year and accepts weekend rentals for tournaments throughout the year if field conditions allow. Concession Services The selected food service vendor shall manage and operate Ukiah Sports Complex Concession and provide services as follows: A.The food service vendor will be the sole food and beverage sales provider at the Ukiah Sports Complex. The food service vendor shall offer a reasonably priced menu that contains popular, healthy, freshly prepared foods including pre-packaged snacks. The food service vendor may also expand and vary the menu selections from time to time with the mutual agreement of the City. B.The food service vendor shall provide excellent customer service and shall ensure that concession store employees extend high-quality service demonstrating a courteous and pleasant attitude to all park patrons. C.The food service vendor shall have a sufficient number of concession attendants to render quick and efficient services to patrons. D.The food service vendor shall be responsible for the sanitation and cleanliness of the concession area and all equipment within the concession area and routinely clean and disinfect frequently contacted surfaces during the concession operation. E.The food service vendor shall remove all trash from the concession area and dispose of it properly. The City of Ukiah will provide trash receptacles and a dumpster. The food service vendor is responsible for moving the receptacles to the parking lot for emptying when they are full. COU No. 2324-140 City of Ukiah Concession Services for Ukiah Sports Complex PAGE 3 OF 15 F.The food service vendor will be responsible for providing all food, beverages, supplies, personnel, insurance, and all other items necessary to operate the concession store to the standards required by the Mendocino County Health Department. G. The City subscribes to a “green building” philosophy. The food service vendor shall manage the concession operations to minimize trash products and maintain reusable and recycling efforts to the best ability and will dispose of its own recycling. H. The City will provide the food service vendor access to the concession facility. It is the vendor’s responsibility to provide furnishing and equipment and to pay for any additional utility work that may be necessary, provided that it is approved by the City. I. The food service vendor agrees to operate the concession during the softball season and during tournaments. The concession will be in operation when games are played, opening at least 30 minutes prior to the start of the first game and closing at a minimum 15 minutes after the conclusion of the final game. J. The food service vendor shall be responsible for turning on the field lights when needed, and turning out the lights after the last game of the evening. K. The food service vendor shall maintain the annual maintenance of the range hood and ANSUL system (fire suppression). L. The food service vendor shall maintain appropriate insurance for protection against fire, theft, accident liquor and general liability. Food service vendor's insurance shall name the City of Ukiah as additionally insured on all policies for the Concession Building. M. The food service vendor shall maintain appropriate insurance for protection against fire, theft, accident and general liability. Food service vendor's insurance shall name the City of Ukiah as additionally insured on all policies for the Concession Building. N. The City will provide paper towels and toilet paper for the bathrooms and is responsible for keeping the bathrooms stocked with these items. The food service vendor shall be fully responsible for the opening, closing and custodial services of the bathroom facilities. The food service vendor shall clean and stock the bathrooms each night that games are played during the softball season and tournaments. On dates and events that the food service vendor is not operating the concession, the City will maintain the bathrooms. 5.SHARED REVENUE BY THE CONTRACTOR. A.Definition of Gross Revenue The term "Gross Revenue" as used in this Agreement shall mean the gross selling price of all products and services sold in or from the Concession Building by Contractor, its employees, sub-contractors or agents, whether for cash or on credit, without exclusion, except as specifically excluded by this subsection or as otherwise agreed to in writing by City. Gross Revenue shall include the value of all products or services given away or traded. B.Amount of Payments of Gross Revenue as defined above: The Contractor shall pay to City the following percentage Fifteen percent (15%) of Gross Revenue (No deductions) COU No. 2324-140 City of Ukiah Concession Services for Ukiah Sports Complex PAGE 4 OF 15 6. RECEIPT OF REVENUE AND PAYMENT. A. Register of Receipts An annual statement must be provided by the Contractor that details the gross receipts derived from all sales at the Concession Building no later than January 15th of each year. B. Payment to the City of Ukiah The Contractor shall pay the fee due to the City of Ukiah on an annual basis. The fee must be accompanied by documentation verifying the payments due to the City. 7. ACCOUNTING AND FINANCIAL STATEMENTS. A. Financial Record Keeping. Contractor shall install and maintain a system of cash management, records and accounts, in a form approved by the City, which complies with Generally Accepted Accounting Principals ("GAPP"), consistently applied, from which the amounts of fees, gross revenues from all sources, and other financial data necessary to fulfill the requirements of this Agreement readily can be ascertained. Contractor shall permit City, through its designated representatives, to inspect and audit such accounts and all other records of Contractor at any time upon demand. B. Accounting. Contractor shall keep true and accurate books and records in accordance with GAPP, consistently applied, and which are subject to audit in accordance with GAPP, showing all transactions related to the operations covered by this Agreement. C. Financial Statements. The City may require complete financial statements for the operations covered by this Agreement satisfactory in form to the City, prepared by a Certified Public Accountant with an unqualified opinion annexed thereto including, but not limited to: • Comparative balance sheets if available; • Comparative operating statements if available; • Changes in investment in property and equipment; • Changes in Contractor's equity. Such financial statements shall be submitted to the City within ninety (90) days following the last day of the Fiscal Year covered by the City's request, and shall include a written statement directed to the City prepared by the Certified Public Accountant that the payments to the City of the year covered by the City's request have been made within the terms and conditions of this Agreement. City agrees that said financial statements shall be submitted on a confidential basis and shall not be disclosed to third parties unless required by statute or regulation. 8. HAZARDOUS MATERIALS. A. Definition As used herein, the term "Hazardous Material" shall mean any waste, material or substance (whether in the form of a liquid, a solid, or a gas and whether or not air- borne), which is or is deemed to be a pollutant or a contaminant, or which is or is deemed to be hazardous, toxic, ignitable, reactive, corrosive, dangerous, harmful or injurious, or which presents a risk, to public health or to the environment, or which is or may become regulated by or under the authority of any applicable local, state or federal laws, judgments, ordinances, orders, rules, regulations, codes or other governmental restrictions, guidelines or requirements, or any amendments or successor(s) thereto. COU No. 2324-140 City of Ukiah Concession Services for Ukiah Sports Complex PAGE 5 OF 15 B. Hold Harmless Contractor and City shall indemnify, defend and hold harmless the other party and its officers, officials, employees and agents with respect to all losses arising out of or resulting from the release of any Hazardous Material in or about the Concession Building, or the violation of any law enacted for the protection of the environment or regulating Hazardous Material, by that party or that party's agents, contractors, or invitees. This indemnification includes all losses, liabilities, obligations, penalties, fines, claims, actions (including remedial or enforcement actions of any kind and administrative or judicial proceedings, orders, or judgments), damages (including consequential and punitive damages), and costs (including attorney, consultant, and expert fees and expenses) resulting from the release or violation. This indemnification shall survive the expiration or termination of this Agreement. B. Allowable Materials Contractor shall not use or bring into the Concession Building any Hazardous Material other than Hazardous Materials commonly used on equipment or household hazardous materials commonly used in connection with cleaning. Contractor shall use, store and dispose of all such Hazardous Material in strict compliance with all applicable statutes, ordinances and regulations in effect during the term of this Agreement. 9. TAXES. A. Definition. As used in this Agreement, the term "Taxes" shall include any form of tax or assessment, possessory interest tax, license fee, license tax, tax or excise on rent, or any other levy, charge, expense or imposition (individually and collectively "impositions") imposed by any Federal, State, County or City, on any interest of Contractor in the Concession Building, its improvements, fixtures, inventory, or any other aspect of its business. B. Payment of Taxes by Contractor. Contractor shall pay all taxes attributable to the Concession Building when due and payable. Pursuant to Section 107.6 of the Revenue and Taxation Code, City hereby advises, and Contractor recognizes and understands, that this Agreement may create a possessory interest subject to property taxation and that the Contractor may be subject to the payment of property taxes levied on such interest. Contractor shall pay taxes directly to the Assessor on or before the date such taxes are due and payable. 10. INSURANCE. Insurance Liability. Without limiting Consultant's obligations arising under Paragraph 6.2 Consultant shall not begin work under this Agreement until it procures and maintains for the full period of time allowed by law, surviving the termination of this Agreement insurance against claims for injuries to persons or damages to property, which may arise from or in connection with its performance under this Agreement. A. Minimum Scope of Insurance Coverage shall be at least as broad as: 1. Insurance Services Office ("ISO) Commercial General Liability Coverage Form No. CG 20 10 10 01 and Commercial General Liability Coverage – Completed Operations Form No. CG 20 37 10 01. 2. ISO Form No. CA 0001 (Ed. 1/87) covering Automobile Liability, Code 1 "any auto" or Code 8, 9 if no owned autos and endorsement CA 0025. COU No. 2324-140 City of Ukiah Concession Services for Ukiah Sports Complex PAGE 6 OF 15 3. Worker's Compensation Insurance as required by the Labor Code of the State of California and Employers Liability Insurance. 4. Errors and Omissions liability insurance appropriate to the consultant’s profession. Architects’ and engineers’ coverage is to be endorsed to include contractual liability. B. Minimum Limits of Insurance Consultant shall maintain limits no less than: 1. General Liability: $1,000,000 combined single limit per occurrence for bodily injury, personal injury and property damage including operations, products and completed operations. If Commercial General Liability Insurance or other form with a general aggregate limit is used, the general aggregate limit shall apply separately to the work performed under this Agreement, or the aggregate limit shall be twice the prescribed per occurrence limit. 2. Automobile Liability: $1,000,000 combined single limit per accident for bodily injury and property damage. 3. Worker's Compensation and Employers Liability: Worker's compensation limits as required by the Labor Code of the State of California and Employers Liability limits of $1,000,000 per accident. 4. Errors and Omissions liability: $1,000,000 per occurrence. C. Deductibles and Self-Insured Retentions Any deductibles or self-insured retentions must be declared to and approved by the City. At the option of the City, either the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects to the City, its officers, officials, employees and volunteers; or the Consultant shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses. D. Other Insurance Provisions The policies are to contain, or be endorsed to contain, the following provisions: 1. General Liability and Automobile Liability Coverages a. The City, it officers, officials, employees and volunteers are to be covered as additional insureds as respects; liability arising out of activities performed by or on behalf of the Consultant, products and completed operations of the Consultant, premises owned, occupied or used by the Consultant, or automobiles owned, hired or borrowed by the Consultant for the full period of time allowed by law, surviving the termination of this Agreement. The coverage shall contain no special limitations on the scope-of-protection afforded to the City, its officers, officials, employees or volunteers. b. The Consultant's insurance coverage shall be primary insurance as respects to the City, its officers, officials, employees and volunteers. Any insurance or self-insurance maintained by the City, its officers, officials, COU No. 2324-140 City of Ukiah Concession Services for Ukiah Sports Complex PAGE 7 OF 15 employees or volunteers shall be in excess of the Consultant's insurance and shall not contribute with it. c. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to the City, its officers, officials, employees or volunteers. d. The Consultant's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. 2. Worker's Compensation and Employers Liability Coverage The insurer shall agree to waive all rights of subrogation against the City, its officers, officials, employees and volunteers for losses arising from Consultant's performance of the work, pursuant to this Agreement. 3. Professional Liability Coverage If written on a claims-made basis, the retroactivity date shall be the effective date of this Agreement. The policy period shall extend from January 12, 2024 to January 12, 2029. 4. All Coverages Each Insurance policy required by this clause shall be endorsed to state that coverage shall not be suspended, voided, canceled by either party, reduced in coverage or in limits except after thirty (30) days prior written notice by certified mail, return receipt requested, has been given to the City. E. Acceptability of Insurers Insurance is to be placed with admitted California insurers with an A.M. Best's rating of no less than A- for financial strength, AA for long-term credit rating and AMB-1 for short-term credit rating. F. Verification of Coverage Consultant shall furnish the City with Certificates of Insurance and with original Endorsements effecting coverage required by this Agreement. The Certificates and Endorsements for each insurance policy are to be signed by a person authorized by that insurer to bind coverage on its behalf. The Certificates and Endorsements are to be on forms provided or approved by the City. Where by statute, the City's Workers' Compensation - related forms cannot be used, equivalent forms approved by the Insurance Commissioner are to be substituted. All Certificates and Endorsements are to be received and approved by the City before Consultant begins the work of this Agreement. The City reserves the right to require complete, certified copies of all required insurance policies, at any time. If Consultant fails to provide the coverages required herein, the City shall have the right, but not the obligation, to purchase any or all of them. In that event, the cost of insurance becomes part of the compensation due the contractor after notice to Consultant that City has paid the premium. G. Subcontractors COU No. 2324-140 City of Ukiah Concession Services for Ukiah Sports Complex PAGE 8 OF 15 Consultant shall include all subcontractors or sub-consultants as insured under its policies or shall furnish separate certificates and endorsements for each sub-contractor or sub-consultant. All coverage for sub-contractors or sub-consultants shall be subject to all insurance requirements set forth in this Paragraph 6.1. 11. WAIVER OF SUBROGATION. Contractor and City hereby waive and release any and all right of recovery against the other, including employees and agents, arising during the Term for any and all loss or damage to any property located within or constituting a part of the building in which the Concession Stand is located, including loss of rental income, which loss or damage arises from the perils covered by Fire and Extended Coverage Policy to the extent such loss or damage is not within a deductible and is actually paid under the policy. This mutual waiver is in addition to any other waiver or release contained in this Agreement. City and Contractor shall each have their insurance policies issued in such form as to waive any right of subrogation which might otherwise exist. 12. INDEMNITY. Contractor shall indemnify, defend, and hold harmless City and its officers, officials, employees, agents and volunteers from and against any and all liability, loss, damage, expense, costs (including without limitation costs and fees of litigation) of every nature occurring at the Concession Building or arising out of or in any way connected with Contractor's operations under this Agreement, except such loss or damage which was caused by the sole negligence or willful misconduct of City. Contractor shall promptly notify City or any death, serious injury or substantial property damage occurring on or about the Concession Building. 13. UTILITIES. Contractor shall pay one hundred percent (100%) of the utilities, including electric, gas, for the Concession Building. The City shall not be liable in damages for any failure or interruption of any utility or service, unless caused by an act or failure to act by City. No failure or interruption of any utility or service, unless caused by City, shall entitle Contractor to terminate this Agreement. 14. REPAIRS AND MAINTENANCE. A. Contractor's Duties. Contractor shall, during the term of this Agreement (except for normal wear and tear, damage by casualty or condemnation, and that caused by City) maintain and keep in good order, condition, and repair the interior nonstructural portions of the Concession Building, including all improvements constructed by Contractor therein, including, but not limited to, the following: the interior surface of exterior walls; all windows, doors, door frames, and door closures; all plate glass, storefronts and showcases; all carpeting and other floor covering; and all interior plumbing, doors, door locks, display windows, window casements, light bulbs, installed therein. Contractor shall as necessary, or when required by governmental authority, make modifications or replacements of the foregoing. The parties acknowledge that the premises are public property which the City has a responsibility to ensure are used in a manner which effectively serves the public. Accordingly, the City has a greater interest than most owners in ensuring the quality of the maintenance and operation of the premises. At all times, Contractor shall maintain and operate the Concession Building in a first-class manner, and furnish and maintain a standard of service at least equal to the better class of similar businesses during the entire term of this agreement. Contractor shall keep all fixtures, furnishings and equipment within those portions of the facility occupied by Contractor clean, neat, safe, sanitary, in good order and in first-class condition and repair at all times. Contractor COU No. 2324-140 City of Ukiah Concession Services for Ukiah Sports Complex PAGE 9 OF 15 shall maintain and operate the Concession Building in accordance with the highest commercial standards of cleanliness and shall keep the Concession Building clean and free from rubbish. Any repair work must be done according to the manufactures guidelines. The City will not reimburse the Contractor for any maintenance costs. B. City Duties. City shall, at its sole cost and expense, maintain, repair and replace the following: the foundation, roof, roofing, building exteriors, and structural portions of the Concession Building. City shall repair any damage or defects caused by the negligence of City, its agents or contractors, or by any previous City work done improperly. Contractor shall give City notice of such repairs as may be required under the terms of this Article, and City shall proceed forthwith to effect the same with reasonable diligence, but in no event later than thirty (30) days after having received notice. If the time required to make the repairs exceeds thirty (30) days, the City shall commence the repairs within that time and exercise due diligence to complete them in a reasonable time. C. Right of Entry. The License granted to Contractor does not restrict the City and its authorized officers, employees or contractors from entering the Concession Building at any time for any legitimate municipal purpose, including, but not limited, to inspection, repair, maintenance or emergency response. City shall exercise due care when entering the Concession Building to avoid harm to or loss of trade fixtures, inventory, equipment or other personal property owned by Contractor which is located within the Concession Building. 15. ALTERATIONS. A. Prior Consent. Contractor shall not, without City's prior written consent, make any structural alterations, improvements, or additions of a structural nature, or exterior design modifications in, or install any exterior signs, decoration or painting, or build any fences, or install any radio or television antennae, loud speakers, sound amplifiers or similar devices on the roof or exterior of the Concession Building, or make any changes to the exterior of the Concession Building or any of the surrounding areas (hereinafter "Alterations") without City's prior written consent. B. Proposal for Improvements. Any Alterations shall be presented to City in written form for conceptual approval. If conceptually approved, Contractor shall submit proposed detailed plans. City shall respond to any such submission promptly within thirty (30) working days after receipt. If City fails to respond within such thirty-day period, Contractor may give City ten (10) days written notice of its intention to proceed with the proposed Alteration. If City fails to respond within such ten-day period, City shall be deemed to have given its consent to the proposed Alteration. If City shall give its consent, the consent shall be deemed conditioned upon Contractor acquiring a permit to do the work from appropriate governmental agencies, the furnishing of a copy thereof to City prior to the commencement of the work and the compliance by Contractor of all conditions of said permit in a prompt and expeditious manner. C. Quality of Work All work with respect to alterations must be done in a good and professional manner and diligently prosecuted to completion to the end that the improvements on the Concession Building shall at all times be a completed unit except during the period of work. Any such Alterations shall be performed and done strictly in accordance with the laws and ordinances relating thereto. Contractor shall have the work performed in such a manner so as not to unreasonably obstruct the access of any other Contractor in the Building. 16. MECHANICS LIENS. COU No. 2324-140 City of Ukiah Concession Services for Ukiah Sports Complex PAGE 10 OF 15 A. Responsibility for Payment Contractor hereby agrees that it will pay or cause to be paid all costs for work done by it or caused to be done by it on the Concession Building, and it will keep the Concession Building free and clear of all mechanics' liens on account of work done by Contractor or persons claiming under it. B. Security If Contractor shall desire to contest any claim of lien, it shall furnish City adequate security pursuant to Section 3143 and such other applicable provisions of the California Civil Code, plus estimated costs and interest, or a bond of a responsible corporate surety in such amount as is necessary to release the lien, or provide City with evidence that enforcement of the lien is stayed. If a final judgment establishing the validity or existence of a lien for any amount is entered, Contractor shall pay and satisfy the same at once. C. In Case of Default If Contractor shall be in default in paying any charge for which a mechanics' lien claim and suit to foreclose the lien have been filed, and shall not have given City security to protect the Concession Building and City against such claims of Lien, then City may, but shall not be obligated to, pay the said claim and any costs, and the amount so paid, together with reasonable attorneys' fees incurred in connection therewith, shall be immediately due and owing from Contractor to City, and Contractor agrees to and shall pay the same with interest at the legal rate. D. Notice of Lien Should any claims of lien be filed against the Concession Building or any action affecting the title to such property be commenced, the party receiving notice of such lien or action shall forthwith give the other party written notice thereof. 17. DAMAGE AND DESTRUCTION. In the event of the partial or total damage or destruction of the building of which the Concession Building is a part during the Term or any extensions thereof, from any cause, City shall, to the extent of the proceeds available to City, forthwith repair and reconstruct said building to substantially the same condition which said building was in immediately prior to such damage or destruction, provided such repairs or reconstruction can be made under then existing laws and regulations. Notwithstanding anything to the contrary, in the event the Concession Building is (1) partially or totally damaged or destroyed by a cause or casualty other than those covered by said insurance and the City does not elect to repair such damage at its sole cost, or (2) the Concession Building is partially or totally damaged or destroyed by any cause at any time during the last two (2) years of the Term hereof (including any Option Terms, if exercised), or (3) in the event the building in which the Concession Building is situated is damaged or destroyed by any cause or casualty to the extent that more than thirty-three percent (33%) of the replacement cost thereof at the time of such damage or destruction is uninsured, then either party may elect to terminate this Agreement by giving notice of such termination within ninety (90) days after the occurrence of such damage or destruction; provided that, with respect to the occurrence of an event specified above, if either party elects to terminate this Agreement, the other party shall have thirty (30) days after receipt of such notice of termination to notify the other of its election to repair and rebuild the buildings and other improvements so damaged or destroyed at its cost and expense in which event this Agreement shall not be terminated, such repairs and rebuilding to be performed as soon as reasonably possible. If there is a partial destruction of the Concession Building but the Contractor can reasonably continue to operate the Concession Building, notwithstanding such destruction and prior to the repair of such damage, the Contractor may continue to perform under this Agreement. 18. CONTRACTOR DEFAULTS. COU No. 2324-140 City of Ukiah Concession Services for Ukiah Sports Complex PAGE 11 OF 15 The occurrence of any one or more of the following events shall constitute a material default and breach of this Agreement by Contractor: A. Material default and breach: 1. Any failure by Contractor to make any payment to City required hereunder as and when due where such failure continues for ten (10) days after receiving written notice from City of such failure. 2. A failure by Contractor to observe and perform any other provisions of this Agreement to be observed or performed by Contractor, where such failure continues for thirty (30) days after written notice thereof by City to Contractor; provided, however, that if the nature of such default is such that the same cannot reasonably be cured within such thirty (30) day period, Contractor shall not be deemed to be in default if Contractor shall within such period commence such cure and thereafter diligently prosecute the same to completion. 3. Repeated violations of the same provision of this agreement for an unreasonable number of times. Contractor shall be deemed to have committed a repeated violation for an unreasonable number of times if Contractor fails to perform the same provision more than three times over the course of this agreement and each time City gives Contractor notice of such violation, even if Contractor subsequently cures the violation. 3. The making by Contractor of any general assignment for the benefit of creditors; the filing by or against Contractor of a petition to have Contractor adjudged a bankrupt of or a petition for reorganization or arrangement under any law relating to bankruptcy (unless, in the case of a petition filed against Contractor, the same is dismissed within sixty (60) days); the appointment of a trustee or receiver to take possession of substantially all of Contractor's assets located at the Concession Building, or of Contractor's interest in this Agreement, where possession is not restored to Contractor within thirty (30) days; or the attachment, execution or other judicial seizure of substantially all of Contractor's assets located at the Concession Building or of Contractor's interest in this Agreement, where such seizure is not discharged within thirty (30) days. B. In the event of any such default by Contractor, then in addition to any other remedies available to City at law or in equity, City shall have the immediate option to terminate this Agreement and all rights of Contractor hereunder by giving written notice of such intention to terminate. If City so terminates this agreement, then in addition to any other remedies available to City at law or in equity, Contractor shall pay City's reasonable costs in providing interim operations and in obtaining a new operator of the Concession Building. C. In the event of any such default by Contractor, City shall also have the right, with or without terminating this Agreement, to terminate Contractor's license to use the Concession Building and the City may take exclusive possession of the subject premises, including all improvements, equipment and inventory thereon, remove all persons and property therefrom by summary proceedings or otherwise; such property may be removed and stored in a public warehouse or elsewhere at the cost of and for the account of Contractor. 19. CITY DEFAULTS COU No. 2324-140 City of Ukiah Concession Services for Ukiah Sports Complex PAGE 12 OF 15 If City should be in default in the performance of any of its obligations under this Agreement, which default continues for a period of more than thirty (30) days after receipt of written notice from Contractor specifying such default, or if such default is of a nature to require more than thirty (30) days for remedy and continues beyond the time reasonably necessary to cure (provided City must have undertaken procedures to cure the default within such thirty (30) day period and diligently pursue such efforts to cure to completion), Contractor may, in addition to availing itself of any other remedies available at law and in equity, at its option, upon written notice, terminate this Agreement. 20. SURRENDER OF PREMISES. Upon expiration or termination of this Agreement, Contractor shall quit and surrender the Concession Building with all the improvements thereon in as good state and condition as the same were when Contractor commenced the use thereof pursuant to this Agreement, reasonable wear and tear excepted. Upon expiration or termination of this Agreement, Contractor agrees, unless otherwise permitted in writing by City, to remove all personal property belonging to Contractor. Contractor shall, at its own expense, repair all damage to the Concession Building including, but not limited to, any damages caused by the removal of its personal property. All improvements shall remain the property of the City and shall not be removed by Contractor. All personal property belonging to the City or purchased with City funds shall remain the property of the City and shall not be removed by Contractor. 21. SUBORDINATION. Contractor shall, upon City's request, subordinate this Agreement in the future to any first lien placed by City upon the Concession Building or building of which the Concession Building forms a part with an insurance company, bank or any other institutional lender, provided that such lender executes a non disturbance agreement providing that if Contractor is not then in default under this Agreement, this Agreement shall not terminate as a result of the foreclosure of such lien, or conveyance in lieu thereof, Contractor's rights under this Agreement shall continue in full force and effect and its possession be undisturbed except in accordance with the provisions of this Agreement. 22. ASSIGNMENT. Contractor acknowledges that City has entered into this Agreement based upon the unique qualifications of Contractor. Accordingly, Contractor shall not assign this Agreement, sublet the Concession Building, enter into franchise, license or concession agreements with respect thereto or otherwise transfer this Agreement or any interest, right or obligation therein (collectively "Assignment" or "Assign") without first procuring the written consent of City. Moreover, Contractor shall not permit a Change of Control of Contractor without the prior written consent of City. "Change of Control" means that anyone other than Staci McGrew acquire 10% or more of the stock of the Contractor or anyone other than Staci McGrew acquire a controlling interest in the Contractor by any means. Notwithstanding anything contained herein to the contrary, City may assign, in whole or in part, City's interest this Agreement, and may sell all or part of the Building. In the event of any sale or exchange of the Concession Stand by City and/or an assignment by City of this Agreement, City shall be and is hereby entirely freed and relieved of all liability under any and all of its covenants and obligations contained in or derived from this Agreement arising out of any act, occurrence or omission relating to the Concession Building or to this Agreement occurring after the COU No. 2324-140 City of Ukiah Concession Services for Ukiah Sports Complex PAGE 13 OF 15 consummation of such sale or exchange and/or assignment, provided such purchaser or exchange has assumed City's obligations under this Agreement. 23.NOTICES. Whenever notice, payment or other communication is required or permitted under this Agreement, it shall be deemed to have been given when personally delivered, fax or deposited in the United States mail with proper first class postage affixed thereto and addressed as follows: CONTRACTOR THE PUB Staci McGrew 585 North State St Ukiah, CA. 95482 CITY City of Ukiah C/o City Manager Ukiah Civic Center 300 Seminary Ave. Ukiah, CA. 95482 Either party may change the address to which notices must be sent by providing notice of that change as provided in this paragraph. 24.WAIVER OF BREACH. One or more waivers of a breach of any covenant, term or condition of this Agreement by either party shall not be construed by the other party as a waiver of a subsequent breach of the same covenant, term or condition. The consent or approval of either party to or of any act by the other party of a nature requiring consent or approval shall not be deemed to waive or render unnecessary consent to or approval of any subsequent similar act. 25.RELATIONSHIP OF PARTIES. Nothing herein contained, either in the method of computing rent or otherwise, shall create between the parties hereto, or be relied upon by others as creating, any relationship of partnership, association, joint venture, employer/employee or otherwise. The sole relationship or the parties hereto shall be that of an independent contractor. 26.LAWS OF CALIFORNIA. The laws of the State of California shall govern the validity, performance and enforcement of this Agreement. Should either party institute legal suit or action for enforcement of any obligation contained herein, it is agreed that the venue of such suit or action shall be in Ukiah, Mendocino County. 27.INTEGRATION OF REPRESENTATIVES. It is understood that there are no oral agreements or representations between City and Contractor which affect this agreement. This agreement supersedes and cancels any and all previous agreements, negotiations, arrangements, advertisements, or representations and understandings between the City and Contractor or displayed to Contractor by city with respect COU No. 2324-140 City of Ukiah Concession Services for Ukiah Sports Complex PAGE 14 OF 15 to the Concession Building operation. There are no other representations or warranties between the parties. 28. TITLES. The titles of Articles and sections herein are for convenience only and do not in any way define, limit or construe the contents thereof. 29.VOID PROVISIONS. If any provision of this Agreement shall be determined to be void by any court of competent jurisdiction, then such determination shall not affect any other provisions of this Agreement and all such other provisions shall remain in full force and effect; and it is the intention of the parties hereto that if any provision of this Agreement is capable of two constructions, only one of which would render the provision valid, then the provision shall be the meaning which renders it valid. 30.FORCE MAJEURE. Any prevention, delay or stoppage due to strikes, lockouts, labor disputes, acts of God, inability to obtain labor or other materials or reasonable substitutes therefore, governmental restrictions, governmental regulations, governmental controls, enemy or hostile governmental action, civil commotion, fire or other casualty, and other causes beyond the reasonable control of the party obligated to perform any term, covenant or condition of this Agreement, shall excuse the performance by such party for a period equal to any such prevention, delay or stoppage except the obligations imposed with regard to rental and other charges to be paid by Contractor pursuant to this Agreement. 31.TIME IS OF THE ESSENCE. Time is of the essence in the performance of each provision of this Agreement. 32.COMPLIANCE WITH GOVERNMNET REGULATIONS. Contractor shall promptly comply with all Fire Code, Building Code and State Fire Marshal requirements and make necessary corrections in a timely manner. Contractor shall include Fire Safety as part of the training program for new employees, especially managers. In addition, Contractor shall promptly comply with all laws, ordinances, orders, and regulations promulgated by any governmental agency and affecting the Concession Building and their cleanliness, safety, occupation and use. Failure to comply which results in three or more citations for any one condition in any twelve-month period from any governmental or regulatory agency or body will be deemed to be cause for termination of this agreement without opportunity to cure such default. Contractor shall not perform any acts or carry on any practices that may damage the facilities and improvements located upon the Golf Course or Pro Shop or that may be a nuisance or menace to customers. 33.INSPECTIONS. City or its duly authorized representatives, or agents and other persons for it, may enter upon the Concession Building at any and all reasonable times during the term of this agreement for the purpose of determining whether or not Contractor is complying with the terms and conditions hereof or for any other purpose incidental to right of City 9.0 SIGNATURES Feb 12, 2024 Kristine Lawler (Feb 12, 2024 13:51 PST) Kristine Lawler Feb 12, 2024