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02-09-2010 CC Rpt A10 COUNCIL AGENDA STAFF REPORT CITY CLERK USE ONLY RECEIVED ;^r='4 Meeting Date: February 9, 2010 2010 FEB `2 Ph I2= 59 F Public Hearing: 0 OFFICE OF CITY CLERK Discussion Item: o CHINO HILLS Consent Item: DATE: February 2, 2010 TO: HONORABLE MAYOR AND CITY COUNCIL MEMBERS FROM: CITY MANAGER SUBJECT: CONCESSION STAND OPERATIONS AGREEMENT FOR CHINO HILLS COMMUNITY PARK RECOMMENDATION: Authorize execution of a License Agreement with the Unified Youth Sports Groups of Chino Hills formerly known as the Chino Hills Youth Sports Group Association for the operation of the concession stand at Chino Hills Community Park through December 31, 2010. BACKGROUND/ANALYSIS: The City and the Chino Hills Youth Sports Group Association executed a License Agreement relative to the operation of the concession stand at the old Chino Hills Community Park on February 21, 1996. Over time the license agreement has been extended through amendments, to December 31, 2009. (Agreement attached) Over this past year, the Chino Hills Youth Sports Group Association has changed their name to Unified Youth Sports Groups of Chino Hills as well as their "consultant," which is Michelle Mercier-Robinson, former President of Canyon Hills Little League. Ms. Robinson is now responsible for the day to day operations of the Concession Stand at Chino Hills Community Park. The Unified Youth Sports Groups of Chino Hills consists of volunteers from Chino Hills and Canyon Hills Little League, Pony Baseball, Chino Hills Girls Softball and Junior All American Football, which are qualified users of field space through the City Council- adopted Field Allocation Policy, The profits generated from the concession stand allow the aforementioned groups to pay for the direct costs associated with light usage at Chino Hills Community Park. Note: American Youth Soccer Organization (AYSO) chooses not to participate and does not receive any revenues generated from the concession stand. P4 AGENDA DATE: February 9, 2010 / PAGiE TWO SUBJECT: CONCESSION STAND OPERATIONS AGREEMENT FOR CHINO HILLS COMMUNITY PARK Staff recommends that the City continue its relationship with the new group, Unified Youth Sports Groups of Chino Hills as the exclusive operator of the concession stand at Chino Hills Community Park. REVIEWED BY: This item has been reviewed by the Finance Director and Contract Compliance Officer. FISCAL IMPACT: City receives monthly rental fees of$100 per month. Respectfully submitted, Recommended by: MiChaelt. Fleager, Cit J./ rathan Marshall, t,•ommunity Services Director CITY OF CHINO HILLS LICENSE AGREEMENT FOR FOOD CONCESSION AT CHINO HILLS COMMUNITY PARK THIS LICENSE AGREEMENT ("License Agreement" or "Agreement" herein) is made and entered into this day of , 2010 by and between the CITY OF CHINO HILLS, a California general law municipal corporation hereinafter called "City", and Unified Youth Sports Group of Chino Hills, a non-profit, tax exempt, youth sports group hereinafter called "Concessionaire." WITNESSETH WHEREAS, The City Council of the City of Chino Hills has determined that it would be desirable in connection with the maintenance of a public park and recreation program at Chino Hills Community Park to provide and make available to the public using said park, food and soft drink services; and THEREFORE, the parties hereto, for and in consideration of the mutual covenants and promises herein contained, do mutually agree one with the other as follows: 1. PARTIES TO THE AGREEMENT are: A. THE CITY OF CHINO HILLS, a California general law municipal corporation, having its principal office at 14000 City Center Drive, Chino Hills, California 91709. B. Unified Youth Sports Group of Chino Hills, a non-profit, tax exempt, youth sports group, having its principal mailing address at P.O. Box 2831, Chino Hills, California 91709. 2. REPRESENTATIVES OF THE PARTIES AND SERVICE OF NOTICES The representatives of the parties who are primarily responsible for the administration of this Agreement, and to whom formal notices, demands and communications shall be given are as follows: 072297 City of Chino Hills License Agreement for Food Concession Page 2 A. The principal representative of the City (hereinafter referred to as "Director") shall be: Community Services Director City of Chino Hills 14000 City Center Drive Chino Hills, CA 91709 B. The principal representative of the Concessionaire shall be: Unified Youth Sports Group of Chino Hills P.O. Box 2831 Chino Hills, CA 91709 C. Formal notices, demands and communications to be given hereunder by either party shall be made in writing and shall be affected by personal delivery or by mail. Any such notices and written communications by mail shall be conclusively deemed to have been received by the addressee five (5) days after the deposit thereof in the U.S. Mail, first-class postage prepaid and properly addressed as noted above. D. If the name of the principal representative designated to receive the notices, demands or communications, or the address of such person, is changed, written notice shall be given to the other party within five (5) working days of said change. 3. TERM A. This license agreement shall be in effect commencing upon approval of both parties and continuing through December 31, 2010 and shall be extended for additional increments of time only by mutual written agreement. The terms of the license agreement shall be reviewed by the City and Concessionaire each November. Either party wishing to amend the agreement shall notify the other party in writing of the desired amendment. A written response must be made within seven (7) days of request for amendment. City of Chino Hills License Agreement for Food Concession Page 3 B. It is agreed that the City may terminate this Agreement upon three (3) days written notice given at any time after it finds that Concessionaire has violated any term or provision of this Agreement. As a nonexclusive and cumulative alternative, in the event of the default by the Concessionaire in the performance of any condition or covenant of this Agreement, the City may elect to continue said Agreement and hold Concessionaire liable for the performance of the conditions and covenants of this Agreement. Whether or not the City terminates this Agreement, Concessionaire shall be liable for any damages incurred by the City by reason of said default. It is further agreed that either party may terminate this Agreement without cause by giving sixty (60) days written notice. D. Upon termination of this License Agreement by either party, Concessionaire shall remove equipment and trade fixtures installed at its sole cost and expense and restore in substantially the same condition the interior and any fixtures of said premises which had been heretofore removed or altered for the installation of subsequent fixtures within fourteen (14) days after termination of this License Agreement. 4. GRANT OF LICENSE AGREEMENT TO OPERATE CONCESSION STAND The City hereby grants to the Concessionaire, upon the terms and conditions herein set forth, a license to operate the concession stand at Chino Hills Community Park to provide food vending services, said license to consist of the following rights: A. The exclusive use of the concession stand building and the right to operate, for the benefit of the general public, food vending services in the concession stand. No sale of food shall be made by anyone other than the Concessionaire to the general public at said park, except as otherwise provided herein. B. City agrees that it will not, during the term of this License Agreement, grant similar rights to any other person to provide general, at-large food vending services; provided, however, the City reserves the right to authorize the erection, use and operation of temporary concession stands to serve the general public in connection with City-sponsored special community wide activities City of Chino Hills License Agreement for Food Concession Page 4 and events not exceeding a total of ten (10) days each year. In addition, the City reserves the right to grant other licenses to non- profit civic organizations to hold community recreational activities where food and refreshments are sold to or consumed by the general public not exceeding ten (10) days in any calendar year. In the event that the City grants such temporary concession stands, it shall be within the City's authority to order the permanent concession stand to cease operations during the special event by providing written notice to the Concessionaire ten (10) days in advance of the scheduled event. Special events will be scheduled according to the City of Chino Hills Field Allocation Policy. C. Concessionaire agrees that the concession stand shall be used by the Concessionaire solely for the purpose of maintaining a food and concession stand and for no other purposes. D. This agreement shall not be construed as granting Concessionaire any right, title, or interest in any property of the City or said concession stand, except for the right to use the concession stand on and subject to the terms and provisions of this Agreement. E. City shall have exclusive rights to use the concession stand for ten (10) events per year for City sponsored events. All events shall be scheduled when Chino Hills Community Park is not booked for other events. 5. CONCESSIONAIRE'S OBLIGATIONS REGARDING CONCESSION STAND BUILDING, UTILITIES, ETC. A. REPAIR/MAINTENANCE/IMPROVEMENTS Concessionaire acknowledges that, prior to execution of this License Agreement, it has inspected, or has had the opportunity to inspect, the concession stand and has determined it to be in an acceptable condition. Concessionaire shall provide, at its sole expense, any modifications or improvements to the building and immediate environs that are reasonably necessary, but no such changes may be made without prior written consent of the Director. Upon the termination of this Agreement, all changes, alterations, additions, repairs, fixtures and improvements to or upon the concession stand shall become the property of the City without liability on its part to pay for the same. City of Chino Hills License Agreement for Food Concession Page 5 Concessionaire further agrees that any redecorating of the interior of said premises, if and when needed, shall be at his sole expense and with prior written approval by the Director. The City as part of their overall facility maintenance plan will determine a timeline for touch-up and re-painting of the interior of the concession stand per a schedule of use by the Concessionaire as to not disrupt concession stand operations. B. UTILITIES City agrees to furnish, at City's cost and expense, water services and exterior trash receptacles to reasonably meet the requirements of the food vending services to be provided by the Concessionaire. Concessionaire agrees to provide reimbursement to the City for the cost of concession stand electricity as determined by the Director per a submitted appliance list, payable not later than 30 days after receipt of billing. C. RIGHT TO INSTALL TRADE FIXTURES AND EQUIPMENT Concessionaire shall have the right, at its sole cost and expense, to install in the concession stand its trade fixtures, equipment and other personal property. Provided that Concessionaire is not in breach or default under this Agreement, and provided that Concessionaire repairs all damage occasioned thereby, Concessionaire shall have the right to remove such trade fixtures, equipment and other personal property at any time during the term of this Agreement. Prior to the expiration of this Agreement, Concessionaire shall remove all such trade fixtures, equipment and other personal property from the concession stand (making any necessary repairs occasioned thereby), and shall restore the concession stand to substantially its condition at the commencement of the term of this Agreement, reasonable wear and tear only excepted. D. MAINTENANCE City shall clean, maintain and repair the exterior structure of the concession stand, except that if the same is necessary due to the acts or negligence of Concessionaire or its agents, contractors, servants or employees, the costs and expenses thereof shall be payable by Concessionaire. City of Chino Hills License Agreement for Food Concession Page 6 Concessionaire further agrees that all fixtures and equipment, including any supplied by the City, shall be reasonably and properly maintained in good condition and repair by the Concessionaire at his sole expense during the term of this Agreement. 6. CONCESSIONAIRE'S OPERATING RESPONSIBILITIES During the term of this Agreement, the Concessionaire shall provide the following food vending services and adhere to the following operational requirements: A. SNACK BAR SERVICES For the purpose of this Agreement, the term "food and refreshment" shall include food, soft drinks, ice cream products, and other related food, dairy and beverage products. For the purpose of simplification, these items herein allowed to be sold by the Concessionaire are hereinafter referred to as "food". The Concessionaire shall be solely responsible for obtaining, preparing, selling and delivering said food. B. BEVERAGE PROVIDER Per a separate exclusive sales agreement between the City and beverage company the Concessionaire shall be mandated to sell only drink product supplied by chosen beverage provider. 1. MENU The menu shall include, but need not necessarily be limited to, hot dogs, chips, soft drinks, and candy. Chewing gum or items containing chewing gum, peanuts, and sunflower seeds cannot be sold. 2. NEW ITEMS/OPERATIONS Concessionaire may engage in rental of equipment, sale of non-food items and other endeavors, which increase revenue, cut costs or improve service subject to prior written approval by the Director for each new operation. Items available for sale should be of the nature appropriate to the family oriented park. City of Chino Hills License Agreement for Food Concession Page 7 City shall have the right to deny or approve new items proposed for sale or new operations. Request shall be made in writing and Director shall give an answer in writing within seven days of request. If no response is received, the request shall be deemed to be approved until otherwise notified in writing. 3. PRICES The Concessionaire shall strive to set prices for items for sale that are in line with Concessionaire's costs and the price of similar products in the community. Concessionaire shall have the authority to reduce the prices but cannot increase the price without prior written consent from the Director. Request shall be made in writing and Director shall give an answer in writing within seven days of request. If no response is received the request, shall be deemed to be approved until notice is provided to the contrary. 4. EVENTS Concessionaire shall sell only from within the concession stand and shall not conduct programs, events, or activities in the park without prior written approval of the Director. 7. LICENSE AGREEMENT FEE AND RELATED PROVISIONS A. LICENSE AGREEMENT FEE: As consideration for the rights and privileges granted to Concessionaire herein, Concessionaire shall pay to the City an annual License Agreement Fee equal to One Hundred Dollars ($100) per month; one half, Six Hundred Dollars ($600) payable on May 31 and one half, Six Hundred Dollars ($600) payable on November 30 each year; provided, that such License Agreement Fee shall be subject to annual adjustment by the City to an amount which the City determines, in its sole discretion, is necessary to cover the documented costs incurred by the City with respect to this Agreement and performance by the City of its obligations hereunder. B. DEPOSIT: Concessionaire shall provide a one thousand dollar ($1,000) security deposit, payable by cashier's check upon City of Chino Hills License Agreement for Food Concession Page 8 execution of Agreement. Upon termination of the Agreement, an inspection will be conducted of the concession stand to determine if any charges will be assessed against the deposit for damage other than usual wear and tear. At the option of the City, such deposit may also be used to reimburse the City for any costs or damages incurred by the City as a result of a default by Concessionaire hereunder. C. BUSINESS LICENSE: Concessionaire shall possess a City Business License and all other licenses and permits necessary for its use and operation of the concession stand and the sale of food therefrom. Submitted Documentation of non-profit status would allow the annual fee to be waived, however an annual renewal is required and may be obtained through the City's Finance Department. D. RULES, LAWS AND REGULATIONS: Concessionaire agrees to observe and comply with all rules, regulations and laws now in effect or which may be enacted during the continuation of this Agreement relating to its use and operation of the concession stand and the sale of food therefrom. E. TAXES AND ASSESSMENTS: Concessionaire shall pay all applicable taxes and/or assessments. F. CONCESSIONAIRE STATUS: Concessionaire acknowledges that it is an independent contractor and is not an employee, partner, joint venture nor agent of the City. All persons retained by or through Concessionaire in connection with the performance of this Agreement shall be deemed to be Concessionaire's employees, and not the employees of the City. It is further understood and agreed upon that nothing herein contained shall be construed to constitute the City as having any authority or responsibility for the operation of said concession stand. Concessionaire shall be solely responsible and in charge of the operation of said concession stand. 8. GENERAL OPERATING REQUIREMENTS City of Chino Hills License Agreement for Food Concession Page 9 A. EMPLOYEE STANDARDS (Employee shall mean persons employed or assigned to work at the concession stand whether as a paid employee or under volunteer status.) 1. All employees shall be legally qualified for employment and shall be compensated in the manner required by law. Concessionaire shall comply with employment laws and all laws establishing minimum safety standards. 2. Concessionaire shall employ or assign persons to work at the stand whose appearance, behavior or reputation is appropriate for a family oriented park. Said persons shall be identifiable by name tag or uniform. 3. Concessionaire shall staff the concession stand at all times with a minimum of two employees. 4. Paid employees of Concessionaire shall, at Concessionaire's sole cost, be fingerprinted and background investigations conducted. Concessionaire shall employ no person in connection with the services provided under this Agreement who has been convicted of a felony within four years from the date of the commencement of employment. B. STANDARDS OF PERFORMANCE 1. SAN BERNARDINO COUNTY ENVIRONMENTAL HEALTH SERVICES DEPARTMENT: Concessionaire shall obtain and maintain all health certificates required by law, and shall post the same as may be required by law on Concessionaire's equipment or designated premises, including but not limited to requirements for all food handlers to possess a valid, un expired Food Worker Certification Card (food handler permit). 2. EQUIPMENT: Concessionaire shall install or operate only equipment that meets applicable health and safety requirements, including but not limited to, National Sanitary Foundation Standards. Concessionaire shall, at its sole City of Chino Hills License Agreement for Food Concession Page 10 expense, maintain fixtures and equipment in good order and repair during the term of this Agreement. 3. MAINTENANCE OF SERVICE AREAS: All areas occupied by Concessionaire shall be kept in a neat, clean, presentable, and sanitary condition, and no nuisance of any kind shall be conducted or permitted by Concessionaire in or around any service areas. 4. INVENTORY: Concessionaire shall at all times maintain an adequate inventory of food and supplies necessary to service the demand of the public for the food items identified in the Concessionaire's approved Price List. C. TRASH RECEPTACLES/EXTERIOR APPEARANCE 1. Concessionaire shall purchase, at its cost, a trash cart with wheels to dump accumulated trash within the courtyard area and inside concession stand building and deposit in bins located in the parking lot as the cart becomes full or at the end of each night. 2. City, as pad of Chino Hills Community Park's Facility Maintenance Contract will be responsible to pressure wash area within the courtyard area surrounding the concession stand building and exterior of building once per month, or as needed. D. SIGNAGE 1. Concessionaire shall post a menu sign visible to the public, within the stand stating prices and may not display other signs nor distribute handbills without prior written approval of the Director. 2. City shall purchase, at its cost, an outdoor sign depicting the name of the concession stand building. E. PROHIBITED ITEMS: Under no circumstances shall the Concessionaire possess, sell, maintain, distribute, or give any illegal drug, drug paraphernalia, any tobacco products of any nature, alcoholic beverages of any nature, chewing gum, products City of Chino Hills License Agreement for Food Concession Page 11 in the shell (peanuts, sunflower seeds), or any item in glass containers to any person from the concession stand. Concessionaire agrees to remove any item from sale if notified in writing to do so by the Director, within one day after receipt of the notification. F. HOURS OF OPERATION/SCHEDULING: Concessionaire agrees to be open for business daily when events are scheduled by the City of Chino Hills unless prior written approval is given by Director. 1. Changes to hours of operations may be mutually agreed upon by Concessionaire and Director and documented by submission of a revised Exhibit "B" initialed by both parties. 2. Concessionaire shall not conduct programs, events, or activities in the park without prior written approval by the Director. 3. City shall provide written notice of scheduled events for which the Concessionaire is required to be open at least ten (10) days in advance and shall notify the Concessionaire as soon as practical whenever events are canceled or postponed. 4. Concessionaire shall have the right to cease operations in the event of inclement weather as determined by cancellation of games, practices, or scheduled events. G. ASSIGNMENT; SUBCONTRACTING: This License Agreement, and the license granted under it, are personal to Concessionaire, and neither this License Agreement nor said license may be assigned, transferred, hypothecated or encumbered. If Concessionaire is a corporation, the sale or transfer of all or a substantial part of the assets of Concessionaire or the sale or transfer of any of the stock of Concessionaire shall be deemed to be a prohibited assignment; and if Concessionaire is a partnership, the sale or transfer by a partner of its partnership interest or the admission of a new partner shall be deemed to be a prohibited assignment. In addition, and without limiting the foregoing, Concessionaire shall not subcontract with any person or entity with respect to the performance of all or any part of Concessionaire's duties or obligations under this Agreement or with respect to the City of Chino Hills License Agreement for Food Concession Page 12 operation of the concession stand, without the prior written consent of the City, which consent may be given or withheld in the City's sole discretion and may be made subject to such conditions as the City may deem it appropriate to impose in its sole discretion. H. VEHICULAR ACCESS: 1. Concessionaire shall have access to the concession stand for delivery and pickup when a representative of the City is present. No vehicle shall be driven on the sidewalk to deliver and or pickup goods and services for the concession stand. All product must be hand carted from the parking lot, 2. Concessionaire shall provide City with a schedule for deliveries and pickups for the concession stand that could occur between the hours of 8:00 a.m. — 4:00 p.m., Monday thru Friday. I. SECURING FACILITY: Concessionaire shall be responsible to secure/lock the concession stand at the end of each day of operation. J. USE OF PREMISES: Said premises shall not be used for fighting, loud or raucous noise or conduct, consumption or use of alcoholic beverages, dangerous or illegal drugs, immoral, unlawful, obscene or riotous conduct, and if the Director should ascertain that said premises are being used by anyone engaged in any of the aforementioned conduct, said Director may immediately cause said premises to be closed and to remain closed until said Director is assured that control has been restored to said premises. 9. INSURANCE AND INDEMNIFICATION This agreement is made upon the express condition that (1) the City, its officers, agents and employees, are to be free from all LIABILITY AND CLAIMS FOR DAMAGES by reason of any injury to any person, including Concessionaire or his agents or employees, or property of any kind whatsoever, and to whomsoever belonging, including Concessionaire, from any cause or causes whatsoever while in, upon, or in any way City of Chino Hills License Agreement for Food Concession Page 13 connected with said concession stand or the appurtenances thereof or arising out of any service performed or food sold or delivered by Concessionaire or his agents during the term of this agreement; the (2) Concessionaire agrees and warrants that no person, including Concessionaire, his agents, representatives, employees, volunteers and subcontractors, shall operate any vehicle in connection with the services performed, or food sold or delivered, pursuant to this Agreement and that (3) Concessionaire further agrees and warrants that any and all items necessary to fulfill the terms of this Agreement shall be delivered by vendors. A. INSURANCE: Concessionaire shall procure and maintain for the duration of the License Agreement insurance against claims for injuries to persons or damages to property which may arise from or in connection with the operation and use of the concession stand and the performance of the work hereunder by the Concessionaire, his agents, representatives, employees, volunteers, or subcontractors. Minimum Scope of Insurance Coverage shall be at least as broad as: 1. Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001). Minimum Limits of Insurance Concessionaire shall maintain limits no less than: 1. General Liability: $2,000,000 per occurrence for bodily injury, personal injury and property damage. If Commercial General Liability Insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit. Deductibles and Self-insured Retentions Any deductibles or self-insured retentions must be declared to and approved by the City of Chino Hills. At the option of the City of Chino Hills, either: the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the City of Chino Hills, its officers, officials, employees and volunteers; or the City of Chino Hills License Agreement for Food Concession Page 14 Concessionaire shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses. Other Insurance Provisions The General liability policies are to contain, or be endorsed to contain, the following provisions: 1. The City of Chino Hills, its officers, officials, employees, agents and volunteers are to be covered as insureds as respects: liability arising out of activities performed by or on behalf of the Concessionaire; products and completed operations of the Concessionaire; premises owned, occupied or used by the Concessionaire; or automobiles owned, leased, hired or borrowed by the Concessionaire. The coverage shall contain no special limitations on the scope of protection afforded to the City of Chino Hills, its officers, officials, employees, agents or volunteers. 2. For any claims related to this project, the Concessionaire's insurance coverage shall be primary insurance as respects the City of Chino Hills, its officers, officials, employees, agents and volunteers. Any insurance or self-insurance maintained by the City of Chino Hills, its officers, officials, employees, agents or volunteers shall be excess of the Concessionaire's insurance and shall not contribute with it. 3. Any failure to comply with reporting or other provisions of the policies including breaches of warranties shall not affect coverage provided to the City of Chino Hills, its officers, officials, employees, agents or volunteers. 4. The Concessionaire'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. 5, 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 of Chino Hills. City of Chino Hills License Agreement for Food Concession Page 15 Acceptability of Insurers Insurance is to be placed with insurers with a current A.M. Best's rating of no less than A:VII. Verification of Coverage Concessionaire shall furnish the City of Chino Hills with original endorsements effecting coverage required by this clause. The endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf. The endorsements are to be on forms provided by the City of Chino Hills. All endorsements are to be received and approved by the City of Chino Hills before work commences. As an alternative to the City of Chino Hills' forms, the Concessionaire's insurer may provide complete, certified copies of all required insurance policies, including endorsements effecting the coverage required by these specifications. Subcontractors Concessionaire shall include all subcontractors as insureds under its policies or shall furnish separate certificates and endorsements for each subcontractor. All coverages for subcontractors shall be subject to all of the requirements stated herein. B. INDEMNIFICATION: Concessionaire hereby agrees to indemnify, defend and hold harmless the City, its officers, officials, employees, agents and volunteers from and against any and all claims, demands, actions, liabilities, losses, damages, judgments, liens, penalties, costs and expenses, including reasonable attorneys' fees, which City may suffer or incur as a result of (i) Concessionaire's use and operation of the concession stand and its sale of food therefrom, including, without limitation, product liability claims, (ii) any activity, work or things done, permitted or suffered or omitted to be done, by Concessionaire or its agents, employees, servants or contractors, in or about the concession stand, (Hi) any act, or failure to act, by Concessionaire in connection with its performance of this Agreement, and (iv) any negligence of Concessionaire or its agents, employees, contractors and servants. C. LOSS OF INCOME: If it is necessary, for any reason, to preclude access to the services areas herein designated whether for reasons of repair, maintenance, improvement or alteration of the City's park facility, or otherwise, the City shall have no liability City of Chino Hills License Agreement for Food Concession Page 16 whatsoever and Concessionaire assumes the risk of any loss of income or continuance of expenses incurred, and releases the City from all claims in regard thereto. D. DAMAGE/LOSS Concessionaire shall assume liability for any damage or loss within the interior of the concession stand due to vandalism, theft, utility disruption, or act of God. City shall not be liable to Concessionaire or any other person for any damage to said concession stand or on account of any loss, damage, or injury to any person or property therein or thereon caused by said concession stand or the appurtenances thereof being out of repair or by reason of defect in said concession stand or the equipment therein contained, or by burglary, fire, water, electricity, or other cause, or occasioned by the bursting, leaking or overflow of any plumbing, or any waste or water, or similar cause in or about said concession stand. If during the term of this agreement any of said concession stand shall be totally or partially destroyed by fire, earthquake, act of God, or by the elements, or by other causes, independent of any act of negligence of the Concessionaire or his agents, so as to render the same unfit for the uses for which intended, the City shall at its absolute discretion have the option of terminating this Agreement or causing said structures to be repaired or reconstructed. 10. DISPUTE RESOLUTION A. The Director, and on appeal, the Parks and Recreation Commission, shall have the authority to establish procedural rules and regulations not inconsistent with the terms and conditions herein set forth. B. The Director shall make a good faith effort to immediately bring to the attention of the Concessionaire any areas of service or other matters for which Concessionaire is responsible under this agreement, which the Director believes are deserving of special attention. D. Any dispute between the Concessionaire and the City as to the Concessionaire's duties hereunder shall, in the first instance, be City of Chino Hills License Agreement for Food Concession Page 17 discussed in good faith by the Director and the Concessionaire. If the dispute cannot be resolved, the Director shall submit the matter to the Parks and Recreation Commission, and, thereafter, if the matter remains unresolved, to the attention of the City Council. 11. ATTORNEY'S FEES If an action is brought because of the Concessionaire's default, or for the recovery of any amounts due to City under the provisions of this Agreement, or because of the breach of any other covenant herein contained on the part of the Concessionaire to be kept or performed, Concessionaire shall pay to the City such reasonable attorney's fees as may be fixed by the court. In the event the City does not prevail in any such action, the City shall pay to Concessionaire such reasonable attorney's fees as may be fixed by the court, 12. CITY'S RIGHT TO INSPECT City shall have the right to inspect the concession stand at all reasonable times, without prior notice, in order to assure full compliance with the terms and conditions of this Agreement. 13. WAIVER OF BREACH Waiver by either party of any single breach of this Agreement shall not be deemed to be a waiver of any breach of any other provision herein. 14. FOOD OF PATRONS PERMITTED Nothing herein shall require the City to adopt any rules or regulations prohibiting park patrons from bringing their own food to any City park. ADDITIONAL RULES The City hereby grants to the Director and the Concessionaire does hereby acknowledge and agrees to comply therewith, the power and authority to prepare in writing and to deliver to the Concessionaire additional rules and regulations pertaining to the use of said facilities not inconsistent with the terms and provisions of this agreement and where the Director in the exercise of his discretion, has found said rules reasonable and necessary in order to carry out the terms and provisions of this Agreement. In addition, it is agreed by and between the parties City of Chino Hills License Agreement for Food Concession Page 18 hereto that the City Council may from time to time adopt additional rules and regulations pertaining to the use and operation of this concession where not otherwise specifically covered herein and where the City Council has determined the same are reasonably necessary in order to protect the public health, safety and welfare or where necessary in the promotion of the public welfare and use of the park sites and facilities and Concessionaire covenants and agrees in such an event to comply with such rules and regulations when so delivered to him or any responsible managing agent or employee on the premises. 15. AUTHORITY AND NOTICE The City delegates to its City Manager all necessary authority to carry out the terms and provisions of this Agreement and the Director shall serve as representative of the City in connection with this Agreement. 16. UNIFIED YOUTH SPORTS GROUP OF CHINO HILLS Concessionaire acknowledges and agrees that the City has no involvement with nor responsibility to or for the Unified Youth Sports Group of Chino Hills, or any activities of or respecting the Unified Youth Sports Group of Chino Hills. City of Chino Hills License Agreement for Food Concession Page 19 IN WITNESS WHEREOF, this Agreement is executed by the parties in Chino Hills, California. CITY: CONCESSIONAIRE: CITY OF CHINO HILLS W.C. "Bill" Kruger, MAYOR • Date: By:vi e, ifa /5-6.4141k, Group Representative ATTEST: iii Date: /— TO MARY MCDUFFEE, CITY CLERK APPROVED AS TO FORM: MARK D. HENSLEY, CITY ATTORNEY