golf course concession contract 3399A3399 ` -.I
AGREEMENT
THIS CONCESSION AGREEMENT (this "Agreement" or this
"Concession Agreement ") is entered into for reference as of
October 22, 2004 by and between the CITY OF EL SEGUNDO
( "CITY "), a California municipal corporation, and Lane Donovan
Golf Partners, LLC ( "OPERATOR "), a California Limited Liability
Company.
RECITALS
A. CITY and OPERATOR have contemporaneously entered into that
certain agreement entitled "Management Agreement for the
Operation and Maintenance of the E1 Segundo Golf Course and
Related Facilities" (the "Management Agreement ") with respect to
the management and operation of the E1 Segundo Golf Course and
related facilities (the "E1 Segundo Golf Facility ") as described
in the Management Agreement.
B. Included in the E1 Segundo Golf Facility is a food and
beverage dining facility (the "Restaurant ") as described in the
Management Agreement.
C. The Management Agreement provides that purchase and sale of
alcoholic beverages at or by the Restaurant will be done
pursuant to this Concession Agreement.
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D. The parties by this Concession Agreement desire to set
forth the terms and conditions under which alcoholic beverages
will be purchased and sold at the E1 Segundo Golf Facility.
NOW, THEREFORE, in consideration of the mutual promises and
covenants contained herein, and for good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto, intending to be legally bound,
hereby agree as follows:
1.
The following terms shall be defined as follows for the
purposes of this Agreement:
1.1 Actual Liquor Costs. "Actual Liquor Costs" shall mean
the actual amount paid by OPERATOR for the purchase of
Liquor (cost of goods) to be sold at or by E1 Segundo
Golf Facility.
1.2 Actual Gross Liquor Revenue. "Actual Gross Liquor
Revenue" shall mean any and all revenues earned
directly attributable to or from the sale of Liquor at
or by the E1 Segundo Golf Facility.
1.3 Director. "Director" shall mean the City Manager of
CITY or his authorized and appointed designee.
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1.4 E1 Segundo Golf Facility. "El Segundo Golf Facility"
shall mean all of the buildings, grounds, fixtures,
structures, restrooms, equipment, computers,
irrigation and controls, tools, vehicles, fencing and
all appurtenances thereto involving the Golf Course,
Storage Space, Pro Shop, Restaurant, maintenance
building, Driving Range and any other area located on
or at the real property described in Exhibit A to the
Management Agreement.
1.5 Liquor. "Liquor" shall mean beer and wine, as defined
by Sections 23006 and 23007 of the California Business
and Professions Code and shall not include any other
alcoholic beverage as defined by Section 23004 of the
California Business and Professions Code.
1.6 Operating Year.
A. The first Operating Year shall commence on the
date that the OPERATOR commences operations of the
E1 Segundo Golf Course Facility and end on
September 30, 2005 or if this Agreement is sooner
terminated on such termination.
B. Unless this Agreement has been sooner terminated,
each Operating Year thereafter shall comprise the
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period of twelve (12) full calendar months, commencing
on October 1 and ending on September 30, or if this
Agreement is sooner terminated on such termination.
The final Operating Year shall end on the termination
of this Agreement.
1.7 Restaurant. "Restaurant" shall mean the food and
beverage dining facility located at the E1 Segundo
Golf Facility and shown on the diagram attached to the
Management Agreement as Exhibit B.
2. TERM OF
The term of this Agreement shall be coterminous with the
term of the Management Agreement and shall automatically
terminate concurrently with the termination of the Management
Agreement.
3. PURCHASE AND SALE OF LIQUOR.
OPERATOR, upon commencement of and throughout the term and
renewal of this Agreement, shall engage in the sale of Liquor
(beer and wine) at the E1 Segundo Golf Facility. OPERATOR shall
not engage in the sale of any other alcoholic beverage at the
E1 Segundo Golf Facility. Unless consented to in writing by the
Director, Liquor shall be sold only at the Restaurant.
OPERATOR, at its cost, shall be responsible for the purchase of
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Liquor, the procurement and renewal of its licenses from the
Alcoholic Beverage Control Board and the payment of taxes on or
for the sale of Liquor.
4. OWNERSHIP OF ACTUAL GROSS LIQUOR REVENUE.
The Actual Gross Liquor Revenue is owned by and the
property of OPERATOR, not CITY.
5. Revenues and Payments.
5.1 Commission Fee to CITY. For each month of each
Operating Year, OPERATOR shall pay to CITY a
commission fee ( "Commission Fee ") as consideration for
CITY's agreement to allow OPERATOR to act as the
concessionaire for the Liquor sales at the E1 Segundo
Golf Facility. The monthly Commission Fee to be paid
by OPERATOR shall equal ten percent (100) of the
Actual Gross Liquor Revenue, determined on an accrual
basis, for each month of the Operating Year at issue.
OPERATOR shall pay the Commission Fee to CITY on a
monthly basis on or before the fifteenth (15th) day of
the month immediately succeeding the month for which
payment is being made.
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6. LICENSES
OPERATOR shall obtain and maintain a license issued by the
Department of Alcoholic Beverage Control and all other state and
local licenses and permits necessary for the lawful sale,
distribution and consumption of Liquor by, on or at the
El Segundo Golf Facility. Except as otherwise required by law,
all such licenses and permits shall be issued in the name of
OPERATOR. The costs, fees and charges incurred in obtaining and
maintaining these licenses and permits shall be born by
OPERATOR. On termination of this Agreement, OPERATOR shall
cause to be transferred such license to the person or other
entity with which the CITY has contracted with to operate the
liquor concession with respect to the El Segundo Golf Facility.
If the OPERATOR so transfers the liquor license, the City shall
cause the OPERATOR to be reimbursed for reasonable and ordinary
costs, fees and charges incurred by OPERATOR in obtaining the
original license.
7. REPORTS
7.1 Annual Report. OPERATOR shall submit to CITY, for its
review and approval, on or before forty -five (45) days
after the end of each Operating Year, an annual report
( "Annual Report ") of the Actual Gross Liquor Revenue
during the previous Operating Year. Each Annual
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Report shall be in such form and with such
information, and in such detail, as the Director may
from time to time reasonably specify.
7.2 Monthly Reports and Transactions. By the twentieth
(20th) day of the immediately succeeding month,
OPERATOR shall provide CITY with monthly reports of
the previous month's Actual Gross Liquor Revenue in
such form and with such information and in such detail
as the Director may from time to time reasonably
specify.
7.3 Accounting Records. OPERATOR shall maintain a method
of accounting for all the revenues and cost of goods
in connection with the purchase and sale of Liquor at
or by the Restaurant which shall be in accordance with
generally accepted accounting principles and correctly
and accurately reflect the gross Liquor receipts and
cost of goods. OPERATOR shall establish and implement
adequate internal controls for the Liquor
transactions. The accounting established for the
Liquor transactions shall be separate from the
accounting used for any other business operated by
OPERATOR, except for the business described in the
Management Agreement, and shall include the keeping of
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cash register tapes for the identification of day -to-
day sales and any other accounting records that the
Director reasonably specifies.
7.4 Audit of Records. All documents, books and accounting
records kept by OPERATOR pursuant to this Article 6
shall be open for inspection by CITY at any reasonable
time for a period expiring three (3) years after the
conclusion of the applicable Operating Year. In
addition, CITY or its authorized representative may,
from time to time, conduct an audit of the accounting
of the Liquor transactions covering the three (3)
Operating Years immediately preceding the date of the
audit and observe the operation of the business
related thereto. CITY will use reasonable efforts to
minimize the interruption with the normal operation of
the Restaurant during any inspection or audit
performed pursuant to the provisions of this Section.
7.5 Public Records. All information obtained in
connection with the CITY's inspections of the records
or audits may be or become subject to public
inspection and /or reproduction as public records.
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8. INSURANCE AND
8.1 Insurance. OPERATOR shall obtain and keep in full
force and effect during the term of this Agreement the
insurance required of OPERATOR by the Management
Agreement in accordance with and in compliance with
Section 10 of the Management Agreement.
8.2 Indemnity.
A. Sub3ect to Section 10.3 of the Management
Agreement, OPERATOR undertakes and agrees to defend,
protect, indemnify and hold harmless CITY and all of
its elective and appointive boards, commissions,
officers, officials, volunteers, agents and employees
from and against all suits, judgments, causes of
action, claims, losses, demands and expenses,
including, but not limited to, attorney's fees and
costs of litigation arising from third party claims,
damage and liability of any kind or nature whatsoever,
for death or in3ury to any person or damage or
destruction of any property of CITY, OPERATOR or third
party, arising from the performance of or failure to
perform under this Agreement by or on the part of
OPERATOR or its officers, agents, subcontractors or
employees.
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B. OPERATOR shall defend, indemnify and hold
harmless CITY for any fines imposed by administrative
regulatory bodes relating to the sale of Liquor at
the El Segundo Golf Facility to the extent such arise
from the acts or omissions of OPERATOR.
C. CITY does not and shall not waive any rights
against OPERATOR which it may have by reason of the
indemnity provisions of Section 8.2 because of the
acceptance by CITY of any of the insurance polices
described in Section 8.1. The insurance required by
Section 8.1 is not in satisfaction of OPERATOR's
obligations under Section 8.2 which shall apply,
regardless of whether or not the insurance policies
referred to herein shall have been determined to be
applicable.
9. REPRESENTATIONS AND
9.1 Accuracy of Representations and Warranties. OPERATOR
and CITY represent and warrant to each other that each
on its part is authorized to execute this Agreement
and that the representations and warranties of such
party contained in this Agreement do not contain any
untrue statement of a material fact or omit any
material fact necessary in order to make the
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statements contained herein not misleading or
incomplete.
9.2 Survival of Representations and Warranties. OPERATOR
and CITY represent and warrant to each other that the
representations and warranties made by such party
shall be true as of the date this Agreement is
executed and thereafter and shall survive the
execution, performance and termination of this
Agreement.
10. OBLIGATION TO NOT DI
OPERATOR shall not discriminate against any person or group
of persons on account of age, race, color, creed, religion,
ancestry, national origin, gender or disability in the execution
of any activities under this Agreement. Neither OPERATOR nor
any person claiming under or through it shall establish or
permit any prohibited practice of discrimination in the hiring
of staff, selection of vendors and operators, the access to and
use of the E1 Segundo Golf Facility or in the execution of any
other activity under this Agreement. OPERATOR shall adopt and
implement such policies, practices and procedures or
modifications in policies, practices and procedures as are
necessary to afford goods, services, facilities, privileges,
advantages and accommodations to individuals with disabilities.
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OPERATOR shall at the meetings, pursuant to Section 6.11 of the
Management Agreement, report on such policies, practices and
procedures and modifications, and on their implementation, and
shall consult with the Director and take such further action as
the Director may require.
11. MISCELLANEOUS
11.1 Entire Agreement. This Agreement and the documents
expressly referred to herein constitute the entire
agreement among the parties with respect to the subject
matter hereof and supersede any prior agreement or
understanding among the parties with respect to such
subject matter.
11.2 Severability. If any provision of this Agreement or
the application of such provision to any party or
circumstance shall be invalid, the remainder of this
Agreement or the application of such provision to
other parties or circumstances shall not be effected
thereby.
11.3 Notices. All notices, requests, demands, consents and
other communications required or permitted to be given
by this Agreement shall be in writing and personally
delivered or placed in the United States Mail,
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properly addressed and with full postage prepaid,
certified and return receipt requested. Such notices
shall be deemed received at the earlier of (a) the
date actually received, or (b) 5 business days after
such mailing. Such notices shall be sent to the
parties at the following addresses, unless other
addresses are furnished by appropriate notice:
If to CITY, to:
City of E1 Segundo
350 Main Street
E1 Segundo, California 90245
Attention: City Manager
If to OPERATOR, to:
Lane Donovan Golf Partners, LLC
1800 Carbon Canyon Road
Chino Hills, California 91709
Attn: Mike Donovan
11.4 Assignment; Subcontract. OPERATOR may only assign any
of its rights or delegate or subcontract any of its
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duties under this Agreement only in accordance with
and subject to the provisions of Section 12.4 of the
Management Agreement and only as a part of any such
assignment, delegation or subcontract under the
Management Agreement.
11.5 Counterparts. This Agreement may be executed in one
or more counterparts, all of which shall constitute
one in the same instrument.
11.6 Heading. The article and section headings in this
Agreement are for convenience of reference only, and
shall not be deemed to alter or affect the meaning or
interpretation of any provisions hereof.
11.7 Construction. This Agreement shall be construed and
enforced according to the laws of the State of
California - without regard to any otherwise governing
principals of conflicts of laws. This agreement shall
be construed neutrally and not in favor of or against
any party.
11.8 Amendment. This Agreement shall not be modified or
amended except by written agreement executed by both
of the parties.
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11.9 Further Actions. Each party shall take such further
actions as may reasonably be required to implement the
provisions of this Agreement.
11.10 Independent Contractor. OPERATOR is and shall at all
times remain as to the CITY a wholly independent
contractor. The personnel performing the services
under this Agreement on behalf of OPERATOR shall at
all time under OPERATOR's exclusive direction and
control. Neither CITY nor any of its officers,
employees or agents shall have control over the
conduct of OPERATOR or any of OPERATOR's officers,
employees or agents, except as set forth in this
Agreement. OPERATOR shall not at any time or in any
manner represent that it or any of its officers,
employees or agents are in any manner officers,
employees or agents of the CITY. OPERATOR shall not
incur or have the power to incur any debt, obligation
or liability whatever against CITY, or bind CITY in
any manner.
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IN WITNESS WHEREOF, the parties have duly executed
this Concession Agreement as of the date first set forth above
at E1 Segundo, California.
CITY OF EL SEGUNDO
ayor
ATTEST:
C y C1 r /
Lane DJonpban Golf
,LLC
By: ( ILl -
Its: YKe L63C
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