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Home My WebLink About25B - AGMT ZOO FOODREQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MAY 1, 2018 TITLE: APPROVE AN AGREEMENT WITH BEAN SPROUTS, LLC, DBA BEAN SPROUTS TO PROVIDE FOOD CONCESSION SERVICES AT THE SANTA ANA ZOO {STRATEGIC PLAN NO. 5,5C) r ClMANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on 15' Reading ❑ Ordinance on 2n° Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER Authorize the City Manager and Clerk of the Council to execute an agreement with Bean Sprouts, LLC, dba Bean Sprouts to provide food concession services at the Santa Ana Zoo with a 6% revenue share to the City on the first $500,000 (8% revenue share above $500,000) that includes a $8,400 per quarter lease guarantee and an initial investment by Bean Sprouts of $50,000 in capital improvements for the period April 17, 2018 to March 31, 2023, with two, three-year renewal options, subject to non -substantive changes approved by the City Manager and City Attorney. DISCUSSION The Santa Ana Zoo at Prentice Park receives 275,000 visitors per year from all over Orange County. To enhance the visitor experience, the Zoo food concession provides a variety of hot and cold meals, beverages, and snack food items. The Zoo's food concession facility is designed to service customers both inside and outside the Zoo. In addition, the Zoo has a large private picnic area and 150 -seat amphitheater that is suitable for private parties up to 500 people. These areas are often used for catering private and company picnics and after-hours events operated by the City and Friends of Santa Ana Zoo (FOSAZ). The existing Zoo concessionaire was selected in 2010. On October 26, 2017, a Request for Proposals (RFPs) was issued to solicit proposals for providing concession services at the Santa Ana Zoo. An evaluation committee consisting of three representatives from the Santa Ana Zoo, one representative from the Friends of the Santa Ana Zoo and one representative from the Parks, Recreation and Community Services, Recreation Division reviewed and rated the proposals. The proposals were evaluated according to the criteria listed in the RFP, which includes vendor credentials and experience, operations and menu and marketing. The results of the RFP evaluation were as follows: 2513-1 Approve an Agreement Bean Sprouts, LLC, dba Bean Sprouts to Provide Food Concession Services at the Santa Ana Zoo May 1 2018 Page 2 Vendor Score Bean Sprouts 477 Knowlwoods 353 PFD Management 278 Beans Sprouts' sole focus is serving family destinations and the importance of the visitor experience. They complement their environmentally responsible and sustainable efforts with high- quality ingredient guidelines that emphasize organic, hormone- and antibiotic -free offerings. With a menu that includes sandwiches, salads, pizzas, and organic espresso bar alongside our "Imaginibbles kids" menu. Santa Ana Zoo staff believes that their operational philosophy is in line with the new mission and goals illustrated in the recently adopted Zoo Master Plan. Additionally, the fresh, non -fried menu food options will lend themselves to quicker service to customers. Bean Sprouts is the current concessionaire for the Discovery Science Center. The evaluation committee determined that this was beneficial in that they have experience in a similar setting within the same City. The agreement will provide the City with a 6% share of gross revenues with an increase to 8% for revenues exceeding $500,000. A guarantee of $8,400 per quarter will be provided to the City, which is equal to the amount the City receives from the current concessionaire. Additionally, Beans Sprouts will have an initial investment for capital improvements of the facility in the amount of $50,000 to be undertaken by Beans Sprouts with approval by the City. That along with their start-up costs estimated at $148,750 for equipment, staff recruitment, staff training, signage and permits brings their opening investment to $198,750. For this reason, the Parks, Recreation and Community Services Agency is requesting a longer than usual agreement for the City of five years with two, three year renewal options. Staff discussed the matter with the consultant working on the Master Plan and determined that based on the proposal offered by Beans Sprouts that the length is reasonable. Beans Sprouts is anticipated to open their doors when the physical improvements are complete and they receive final approval from the Orange County Health Department. The City is providing up to 120 days from approval of the contract to complete the improvements. The current Zoo concessionaire will continue to operate. The concession agreement with the current vendor is scheduled to expire on June 30, 2018. The Zoo will make accommodations with other sources, such as food trucks, to cover the period from when the current concessionaire closes to when the new operator opens. 25B-2 Approve an Agreement Bean Sprouts, LLC, dba Bean Sprouts to Provide Food Concession Services at the Santa Ana Zoo May 12018 Page 3 STRATEGIC PLAN ALIGNMENT Approval of this item allows the City to meet Goal #5 - Community Health, Livability, Engagement & Sustainability, Objective #5 (Promote a strong arts and culture infrastructure), Strategy C (Promote arts and culture by partnering with artist groups and merchants to hold events celebrating art in public plazas, parks and other City -controlled open space). FISCAL IMPACT Funds will be deposited in the following account for the specified years: Accounting Unit FY 18/19-21/22 FY 22/23 Amounts reflect the guaranteed quarterly amount. Any additional amount will also be deposited in the above account. Revenue for the first quarter will be based on actual opening date. If the agreement is renewed, funds will be deposited in the following account for the specified years: Unit FY22/23 FY 23/24-27/28 FY 28/29 Sale Concession (no. 01113002-53313) $8,400 Gerardo Mouet Executive Director Parks, Recreation and Community Services Agency Exhibit: 1. Agreement — Beans Sprouts APPROVED AS TO FUNDS AND ACCOUNT: Francisco Gutierrez Executive Director Finance and Management Services Agency 25B-3 25B-4 FOOD SERVICE CONCESSION AGREEMENT FOR SANTA ANA ZOO THIS AGREEMENT is made and entered into this lst day of May, 2018 by and between Bean_ prouts ,Q-.-a"WiSconsin Limited Liability Company doing business as Bean Sprouts ("Bean Sprouts"), and the City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California ("City"). RECITALS A. The City desires to retain a vendor that has expertise in providing healthy kid -friendly food and beverages for the Santa Ana Zoo ("Zoo"). B. City issued a Request for Proposal ("RFP") No. 17-128 for Zoo Concessions on October 26, 2017 incorporated by reference herein. C. Bean Sprouts. submitted a proposal for food service and a financial proposal dated November 30, 2017 and was selected by City staff to recommend to the City Council for approval to provide concessions at the Zoo. Bean Sprouts represents that it is willing and able to provide the services set forth in its proposal, as modified during negotiations. Bean Sprouts proposals in response to City's RFP are incorporated herein by reference. D. In undertaking the performance of this. Agreement, Bean Sprouts represents that it is knowledgeable in its field and that any services performed by Bean Sprouts under this Agreement will be performed in compliance with such standards as may reasonably be expected from a professional in the field of food and beverage service. NOW THEREFORE, in consideration of the mutual and respective promises, and subject to the terms and conditions hereinafter set forth, the parties agree as follows: 1. DEFINITIONS a. Fiscal Year- July IS` to June 30. b. Go Live Date- The date upon which Bean Sprouts opens for business to the public. A date to be mutually agreed upon by the parties to this Agreement in writing. The date will be at least 120 days (or such other time as mutually agreed) after this Agreement is fully executed to allow for improvements to the Premises, after Bean Sprouts receives authorization from the Orange County Health Care operation to serve food and beverages to the public, and after any other required licenses and permits to operate are obtained by Bean Sprouts. c. Gross Revenues- includes all amounts of any kind or charges received by Bean Sprouts for business conducted by it at the Premises, or in connection with the operation of Bean Sprouts' rights and privileges under this Agreement without deduction or exclusion unless specifically authorized by this Agreement; provided that Gross Revenues shall not include (i) sales taxes which are separately stated and that Bean Sprouts is required to collect from customers and pay to a taxing authority and (ii) authorized discounts given to employees, volunteers or members. Gross Revenues includes all transactions regardless of whether they were conducted using cash, credit, debit, exchange or otherwise and without regard to whether these amounts are actually collected by Bean Sprouts. No deduction shall be made for Page 1 of 17 25B-5 bad debts. Gross Revenues also includes any part of Bean Sprouts business conducted pursuant to the terms of this Agreement by any party other than Bean Sprouts. All of the Gross Revenues collected in such a manner will be treated as if they had been collected by Bean Sprouts directly. Each charge or sale upon installment or credit shall be treated as a receipt for the full price in the month in which such charge or sale is made, irrespective of the time when, or whether, Bean Sprouts actually received payment. d. The Premises- The concession building at the Zoo. A diagram of the location is attached hereto and marked as Exhibit A. 2. SCOPE OF SERVICES Bean Sprouts shall perform during the term of this Agreement food concession services at the Zoo described below and outlined in Bean Sprouts proposal for food service at the Zoo dated November 30, 2017. 3. LEASE PAYMENTS AND QUARTERLY LEASE GUARANTEE a. In consideration for the concession rights granted by this Agreement, Bean Sprouts agrees to pay the City lease payments for the Premises on a monthly basis 6% of its gross revenues from concession sales at the Zoo for the previous month for the first $500,000 per fiscal year and thereafter 8% of its gross revenues on a monthly basis from concession sales at the Zoo for the previous month for any revenues in excess of $500,000 per fiscal year. Monthly payments related to gross revenue will begin on the seventh day of the month after the Go Live Date and will continue to be due on the seventh day of each month until this Agreement expires or is terminated. b. Bean Sprouts agrees to a minimum quarterly lease guarantee of $8400 a quarter in the event that Bean Sprouts gross revenues from concessions do not exceed $8400 a quarter. The lease guarantee will start on the first day of the month after the Go Live Date and will continue thereafter until this Agreement expires or is terminated. c. In the event that Bean Sprouts is delinquent in paying any payments due under this Agreement for more than thirty (30) days, City shall be entitled to collect interest on those delinquent funds in the maximum amount allowed by law at the time. City will also be entitled to attorney's fees expended in collecting the delinquent amounts. City will also be entitled to any and all other remedies available pursuant to the law. 4. TERM This Agreement shall commence on the date first written above and continue until the date which is five (5) years after the Go Live Date ,unless terminated earlier in accordance with Section 21, below. The City has the option to extend the term of the agreement for up to two (2) additional three (3) year periods subject to approval of Bean Sprouts. The initial term, together with any Page 2 of 17 r extension terms, are referred to herein as the "Term." 5. ATTENDANCE GUARANTEE The Zoo's monthly attendance for the 2017 fiscal year are set forth on Exhibit B attached hereto (the "Attendance History"). Within ten (10) days of the end of each month during the Term, the Zoo Manager shall provide to Bean Sprouts updated daily attendance statistics reflecting the attendance numbers for the previous month. If, at anytime during the Term, the attendance at the Zoo falls to 90% or less of the figures shown in the Attendance History on a rolling twelve-month basis, then the City and Bean Sprouts will negotiate in good faith to reduce the payments required to be made by Bean Sprouts set forth.in Section 3 hereof. If, at any time during the Term, the visitor base at the Zoo falls to 75% or less of the figures shown in the Attendance Projections on a rolling twelve-month basis, then Bean Sprouts shall have the right to terminate this Agreement by providing ninety (90) days' written notice to City. 6. USE OF PREMISES AND RIGHTS OF BEANSPROUTS a. Use of Premises- Bean Sprouts shall use the Premises for the preparation and sale of to the public of food and non-alcoholic beverages, both at the Premises and for Zoo - based catering, and for preparation and sale of such other food and beverage items that shall be approved from time to time by City and for storage, office and administrative functions in connection with Bean Sprouts' operations under this Agreement. Bean Sprouts shall additionally have the right to sell branded retail items including but not limited to games and books but City will have the right to approve retail items. Bean Sprouts shall not use the premises for any purpose other than set forth herein. b. Rights Not Exclusive- The City may grant rights to other vendors to sell non- alcoholic and snack items and also retains those rights for the City in the Zoo gift shop or any additional Zoo shops that may be opened during the Term of this Agreement; provided, however, that, during the Tenn, the City will not, and will not grant rights to other vendors to, sell branded food products and beverages which are marketed as "kid -centric" and healthy. This provision does not apply to promotions where food or beverages may be given away, private parties where food is catered or brought in from an outside vendor, or to food brought by guests for personal consumption. c. Premises Taken "As Is"- Bean Sprouts takes the Premises without any improvement, repair or modification by the City; provided that City represents and warrants (i) that, to its knowledge, no Hazardous Substances have been used or stored in, on or about the Premises and (ii) that the structural components and mechanical systems of the Premises are in good working order. "Hazardous Substances" shall mean petroleum products and those substances included within the' definitions of "hazardous substances," "hazardous materials," "toxic substances," "solid waste" or "infectious waste" under all present or future federal, state and municipal laws, ordinances, rules and regulations applicable to the environmental and ecological condition of the Premises, and the rules and regulations of the Federal Environmental Protection Agency and any other federal, state or municipal agency or governmental board or Page 3 of 17 25B-7 entity having jurisdiction over the Premises. d. Ownership. Use of Furniture. Fixtures and Equipment- City is the owner of the furniture, fixtures and equipment located at the Premises which may be used by Bean Sprouts in whole or in part for the preparation and service of food and beverages at the Premises. At the commencement of this Concession Agreement, City and Bean Sprouts will take.inventory of all Zoo furniture, fixtures and equipment. Furniture, fixtures, and equipment will be returned to City upon termination or expiration of this Agreement, in the same condition as received, ordinary wear and tear expected. To the extent that Bean Sprouts acquires additional built in furniture, fixtures and equipment for use at the Premises, all such additional built in furniture, fixtures and equipment will become property of the City. e. Improvements and Refurbishments to be made by Bean Sprouts- Within thirty (30) days after the execution of this Agreement, Bean Sprouts shall submit to City its proposed modifications to the Premises. City will have the sole right to approve or deny said proposed modifications to the Premises in whole or in part and/or to require such changes, if any, in such plans and specifications, as City shall deem necessary or desirable in its reasonable judgment including, without limitation, changes to comply with applicable building codes, health and safety regulations or other legal requirements or to make Premises more suitable for the services Bean Sprouts is obligated to provide pursuant to this Agreement. City will notify Bean Sprouts within fifteen (15) after receipt of the proposed modifications whether any changes to the proposed modifications will be required by City and if so, what changes will be requested. All proposed modifications to the Premises will be made at Bean Sprouts' expense. At a minimum, Bean Sprouts' proposed modifications to the Premises will include an investment in capital improvements, upgrades in equipment, signage, and people as outlined more fully in Bean Sprouts Financial Proposal dated November 30, 2017. f. Completion of Improvements to Premises -Following City's approval of the Bean Sprouts' proposed modifications to the Premises, Bean Sprouts shall take such action as is necessary to commence the construction and implementation of the Bean Sprouts Improvements to the Premises no later than one hundred and twenty days (120) of City's final approval of the proposed modifications; provided, that Bean Sprouts shall not be required to expend in excess of $200,000 in the aggregate on the proposed modifications. In the event that modifications necessary to comply with building codes, the Santa Ana Municipal Code and Charter, and/or the Health Department exceed $200,000 in the aggregate, the parties agree to meet and confer on a mutually agreeable solution to pay for the additional expenses, which may include a rent reduction or period of free rent. All improvements to the Premises will comply with applicable building codes, the Santa Ana Municipal Code and Charter, and any other legal requirements. Bean Sprouts will obtain all necessary permits and licenses at its expense for all improvements to the Premises. g. Title to Vest in the Cit v- Title to all Bean Sprouts Improvements constructed, installed or placed in the Premises by Bean Sprouts under this Concession Agreement shall immediately vest in the City subject to Bean Sprouts right to use those improvements during the term of this Agreement. Page 4 of 17 r h. Maintenance and Repairs of the Premises -Except for maintenance and repairs necessitated by the willful acts or negligence of Bean Sprouts, or its agents, employees, invitees, licensees or customers, City shall be responsible for the costs of maintaining the exterior of the Premises, roof, foundation and structural components of the Premises as well as the parking lot, exterior and landscaped areas. City shall also be responsible for the replacement of all mechanical systems (including without limitation electric, HVAC and plumbing) when they reach the end of their useful life. City will have sole discretion to determine whether the mechanical systems have reached the end of their useful life. The City will use reasonable standards in the industry to determine when mechanical systems have reached the end of their useful life. Bean Sprouts shall be responsible for maintaining the interior of the Premises throughout the term of this Agreement in good condition. City acknowledges that normal wear and tear will occur. Bean Sprouts will be responsible at its expense as follows: 1) Repairs and maintenance for all equipment, furniture, and fixtures used within the Premises including but not limited to light fixtures, light bulbs, starters, equipment motors, and other similar items; 2) Cleaning of the Premises; 3) Equipment storage and maintenance 4) Storage and/or disposal of grease and flammable materials; 5) Storage and disposal of garbage. City shall designate location(s) of garbage bins. 6) Repair and maintenance (but not replacement) of all water, sewer and electrical lines maintained inside the Premises; 7) Repair and maintenance of floor within the Premises. i. Alterations not Allowed Unless Authorized by City- Alteration other than the proposed modifications and improvements discussed herein are not allowed to the Premises unless approved in writing by the City before the alterations are made; provided that Bean Sprouts may make non-structural changes, that do not require a building permit, to the interior of the Premises only, and which do not, individually, require more than $3,000 in expenditures, by providing City at least thirty (30) days prior written notice thereof. j. Satellite Carts -Bean Sprouts may have satellite carts at the Carrousel Plaza between the carrousel line and the train rides and/or at the Conservation Education Theater. When carts are not in use, they must be stored in the non-public area of the Zoo. Additional carts may be allowed with the Zoo Manager's prior approval. Sales from any satellite carts shall be included in Bean Sprouts' monthly concessions sales. 7. RIGHTS OF THE CITY City has all rights and powers provided by law which have not been expressly granted to Bean Sprouts pursuant to this Agreement, including but not limited to: Page 5 of 17 25B-9 a. Right of Entry and Right to Inspect Premises- City shall have the right to enter the Premises and inspect Premises. Except in the case of an emergency, City will provide reasonable notice of not less than twenty four (24) hours to Bean Sprouts of any inspection. b. Right to Restrict. Access to Areas of the Zoo- The Premises is located at the Santa Ana Zoo. Bean Sprouts right of access does not include non-public areas of the Zoo. City reserves the right to restrict or deny access to areas of the Zoo which do not include the Premises including but not limited to non-public areas of the Zoo. c. Right to Suspend or Terminate the Agreement- City has the right to terminate the Agreement as specified in this Agreement. In addition, City has the right to suspend any and all aspects of this Agreement for good cause. Good cause includes but is not limited to failure to comply with the Orange County Health Care Agency requirements related to food service and safety, excessive pricing, failure to comply with any applicable laws including but not limited to discrimination laws, labor and employment laws, building codes, health and safety provisions, and any other applicable local, state, or federal laws or regulations. City will notify Bean Sprouts in writing of any intent to suspend services under this Agreement and Bean Sprouts will be afforded at least ten (10) days to cure any default which underlies such suspension except for any health or safety issue. City and Bean Sprouts will confer on any potential suspension pursuant to this section but City will be entitled to the final determination about whether to suspend any portion or all services pursuant to this Agreement and for how long, provided that Bean Sprouts has failed to cure the default underlying the suspension as set forth above. d. Declarations of War, Local, State or National Emergency City is not responsible for any disruption of Bean Sprouts services under this Agreement when such disruption is due to a state of war, declaration of local, state or national emergency; provided that any disruption which results in all or a portion of the Premises being untenantable or inadequate for Bean Sprouts' business shall result in a proportional abatement of the Lease Payments required under Section 3. Any decrease in attendance due to any of the aforementioned events would not be included for purposes of calculating the attendance guarantee specified in this Agreement. e. Future Development- City reserves the right to make changes to the Zoo property in the future. To the extent possible, City will use due care to cause the least amount of disruption to Bean Sprouts' services and to the Premises as possible. 8. OPERATIONAL STANDARDS a. Bean Sprouts shall provide services pursuant to this Agreement.in a first class manner and shall maintain the Premises in a neat, clean, and orderly condition at all times. b. Bean Sprouts shall keep facilities free of all rodents and insects. Animals shall only be allowed as required by law. c. Bean Sprouts will provide marketing materials including graphics, menus and Page 6 of 17 25B-10 operational materials that are consistent with the overall Zoo aesthetic. d. Bean Sprouts will provide an array of kid -friendly and healthy food and drink options for Zoo patrons. Bean Sprouts and City will agree to meet and confer in the event that City determines additional food or beverage items should be added to the services provided by Bean Sprouts. Some food items may be restricted due to possible problems related to excessive litter or potential animal health issues. e. Bean Sprouts will endeavor to provide sustainable and environmentally conscious food options and serving -ware, consistent with the conservation -based mission of the Zoo. f. Bean Sprouts will limit the use of single -use plastics (plastic water bottles, straws, lids, plastic disposable utensils, single -serving condiment packages and similar plastic items). g. Bean Sprouts shall maintain the standard of quality and the quantity of similar food and beverage establishments offering a similar menu in Orange County, California. City shall have the right to approve any and all food and beverage items offered to Zoo patrons pursuant to this Agreement. h. Bean Sprouts shall maintain an "A" rating for sanitation pursuant to the regulations of the Orange County Health Care Agency and the State of California. i. Bean Sprouts shall provide prompt and efficient service. Bean Sprouts shall make certain that there.are a sufficient amount of employees on staff at the Premises at all times to ensure prompt and efficient service to Zoo patrons. Bean Sprouts shall make sure that its employees do not use foul or profane language, that they dress appropriately, and do not act in a manner at the Premises or on Zoo property which is disruptive, sexually explicit, harmful to the animals, or overly loud or boisterous. In particular, Bean Sprouts will impress upon their employees that service is provided in large part to minors and families. j. Bean Sprouts will not allow their employees to smoke, vape, consume alcohol, or consume illegal drugs on the premises or within the Zoo property at all time. k. Bean Sprouts will conduct background checks on all employees pursuant to the law and will comply with Penal Code section 290.95(c). 1. Bean Sprouts will appropriately train their employees on food safety, hand washing techniques, and any other matters relevant and necessary for individuals working in a business that prepares and serves food to the public. m. All food or beverage service employees shall be on the payroll of Bean Sprouts. All persons employed by Bean Sprouts and working at the Premises shall be in uniform, acceptable to the City, at all times. Said Bean Sprouts employees will adhere to all Zoo rules and regulations while on Zoo property or the Premises. n. Bean Sprouts will continually maintain the front of the concession stand in a clean condition. This includes cleaning the tables and chairs, picking up all trash and emptying trash cans in the outside eating area near the concessions stand. o. Trash from inside the Premises may be enclosed in proper containers behind the Premises in the service area but must be removed to the Zoo's dumpster on a daily basis before closing. No plastic bags of trash or cardboard boxes are to be stacked in the service area. All trash cans in the Premises and adjacent outdoor eating areas must be emptied at the end of the day. p. Bean Sprouts will comply with all applicable labor and employment laws and Page 7 of 17 25B-11 p. Bean Sprouts will comply with all applicable labor and employment laws and regulations. Bean Sprouts will be responsible for withholding of all payroll taxes and reporting of wages and any all worker's compensation injuries that may occur. q. Hours of Operation- Bean Sprouts shall keep facilities at the Premises open seven (7) days a week from 10 a.m to 4:00 p.m., except for Thanksgiving Day, Christmas Day, and New Years' Day, and any other day upon which the Zoo is closed. r. Pricing- The prices charged by Bean Sprout shall be similar to those charged by family destinations in Southern California for similar foods or beverages. In the event that City determines that prices charged by Bean Sprout pursuant to this Agreement are not consistent with restaurants located within family destinations, the City will meet and confer and make such adjustments that are necessary to keep prices competitive as compared to restaurants located within family destinations in Southern California selling similar foods and beverages. Pricing shall be obvious and easy to read and determine by Zoo patrons. s. Cooperation with any Successor- Bean Sprouts agrees to cooperate with any successor Bean Sprouts in the event of termination or expiration of this Agreement and to do so with the least amount of disruption as is possible for the Zoo patrons and the. -City; .. .... .. . t. Avoidance of Liens- in the performance of work done pursuant to any propose modifications or improvements to the Premises, Bean Sprouts shall keep the Premises free and clear of any mechanics or materials liens. Bean Sprouts shall indemnify and hold harmless City against any such liens or claims of lien's filed by Bean Sprouts contractors or material suppliers. U. On -Site Manager- Bean Sprouts will hire a qualified food service manager for its operations at the Premises. Such person will have the experience necessary to manage operations and employees and will have full power and authority to accept service of all notices. provided for herein and to oversee operation of the concession business herein authorized. Said manager will be on site during regular business hours and if unavailable, a responsible subordinate will be in charge and available. 9. ANNUAL AUDIT Within ninety (90) days of the end of the fiscal year, Bean Sprouts will provide to the City a statement of its total gross revenues for the past fiscal year or portion thereof as applicable. The financial report shall be prepared by an accounting firm approved by the City's Executive Director of the Finance and Management Agency. Said report will comply with Government Accountability Standards.. If such audit reveals that there was an underpayment of monthly gross receipts due to City pursuant to this Agreement, Bean Sprouts will pay to City the amount of the underpayment within sixty (60) days of the date of the final accounting report. If such audit reveals overpayment of monthly gross receipts paid to the City pursuant to this Agreement, Bean Sprouts will notify City in writing within sixty (60) days of the date of the final accounting Page 8 of 17 25B-12 report and any overpayment will be credited to Bean Sprouts for any obligation under this Agreement which is due or coming due. If the Agreement has expired or been terminated, then City will pay the amount of overpayment to Bean Sprouts within sixty (60) days of the date City is notified of the overpayment in writing. Bean Sprouts acknowledges that all financial reports prepared pursuant to this Agreement and submitted to the City will become a public record pursuant to California Government Code section 6250 et seq. 10. UTILITIES The City will pay utilities which includes water, gas and electricity. 11. INDEPENDENT CONTRACTOR Bean Sprouts shall, during the entire term of this Agreement, be construed to be an independent contractor and not an employee of the City. This Agreement is not intended nor shall it be construed to create an employer-employee relationship, a joint venture relationship, or to allow the City to exercise discretion or control over the professional manner in which Bean Sprouts performs the services which are the subject matter of this Agreement; however, the services to be provided by Bean Sprouts shall be provided in a manner consistent with all applicable standards and regulations governing such services. Bean Sprouts shall pay all salaries and wages, employer's social security taxes, unemployment insurance and similar taxes relating to employees and shall be responsible for all applicable withholding taxes. 12. INSURANCE Prior to undertaking performance of work under this Agreement, Bean Sprouts shall maintain and shall require its subcontractors, if any, to obtain and maintain insurance as described below: a. Commercial General Liability Insurance. Bean Sprouts shall maintain commercial general liability insurance naming the City, its officers, employees, agents, volunteers and representatives as additional insured(s) and shall include, but not be limited to protection against claims arising from bodily and personal injury, including death resulting therefrom and damage to property, resulting from any act or occurrence arising out of Bean Sprouts' operations in the performance of this Agreement, including, without limitation, acts involving vehicles. The amounts of insurance shall be not less than the following: single limit coverage applying to bodily and personal injury, including death resulting therefrom, and property damage, in the total amount of $1,000,000 per occurrence, with $2,000,000 in the aggregate. Such insurance shall (a) name the City, its officers, employees, agents, and representatives as additional insured(s); (b) be primary and not contributory with respect to insurance or self-insurance programs maintained by the City; and (c) contain standard separation of insureds provisions: b. Business automobile liability insurance, or equivalent form, with a combined single limit of not less than $1,000,000 per occurrence. Such insurance shall include Page 9 of 17 25B-13 coverage for owned, hired and non -owned automobiles C. Worker's Compensation Insurance. In accordance with the provisions of Section 3700 of the Labor Code, Bean Sprouts, if Bean Sprouts has any employees, is required to be insured against liability for worker's compensation or to undertake self-insurance. Prior to commencing the performance of the work under this Agreement, Bean Sprouts agrees to obtain and maintain any employer's liability insurance with limits not less than $1,000,000 per accident. d. If Bean Sprouts is or employs a licensed professional such as an architect or engineer: Professional liability (errors and omissions) insurance; with a combined single limit of not less than $1,000,000 per claim with $2,000,000 in the aggregate. e. The following requirements apply to the insurance to be provided by Bean Sprouts pursuant to this section: i. Bean Sprouts shall maintain all insurance required above in full force and effect for the entire period covered by this Agreement. ii. Certificates of insurance shall be furnished to the City upon execution of this Agreement and shall be approved by the City. iii. Certificates and policies shall state that the policies shall not be canceled or reduced in coverage or changed in any other material aspect without thirty - (30) days -prior written notice to the City. -------- iv. Bean Sprouts shall supply City with a fully executed additional insured endorsement. f. If Bean Sprouts fails or refuses to produce or maintain the insurance required by this section or fails or refuses to furnish the City with required proof that insurance has been procured and is in force and paid for, the City shall have the right, at the City's election, to forthwith terminate this Agreement. Such termination shall not affect Bean Sprouts' right to be paid for its time and materials expended prior to notification of termination. Bean Sprouts waives the right to receive compensation and agrees to indemnify the City for any work performed prior to approval of insurance by the City. 13. INDEMNIFICATION Bean Sprouts agrees to defend, and shall indemnify and hold harmless the City, its officers, agents, employees, contractors, special counsel, and representatives from liability: (1) for personal injury, damages, just compensation, restitution, judicial or equitable relief arising out of claims for personal injury, including death, and claims for property damage, which may arise from the negligent operations of Bean Sprouts' business, its subcontractors, agents, employees, or other persons acting on its behalf which relates to the services described in section 1 of this Agreement; and (2) from any claim that personal injury, damages, just compensation, restitution, judicial or equitable relief that has been caused by Bean Sprouts' material breach of the terms of this Agreement. This indemnity and hold harmless agreement applies to all claims for damages, just compensation, restitution, judicial or equitable relief suffered, or alleged to have been suffered, by reason of the events referred to in this Section or by reason of the terns of, or effects, arising from this Agreement. City may make all reasonable decisions with respect to its representation in any legal proceeding. Page 10 of 17 25B-14 14. RECORDS Bean Sprouts shall keep records and invoices in connection with the work to be performed under this Agreement. Bean Sprouts shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any services, expenditures, and disbursements charged to the City for a, minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Bean Sprouts under this Agreement. All such records and invoices shall be clearly identifiable. Bean Sprouts shall allow a representative of the City to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement during regular business hours. Bean Sprouts shall allow inspection of all work, data, documents, proceedings, and activities related to this Agreement for a period of three (3) years from the date of final payment to Bean Sprouts under this Agreement. Bean Sprouts shall install and record all sales and charges by means of cash registers or other comparable devices that display to the customer the amount of the transaction and automatically issue a receipt. The cash registers shall be equipped with devices that lock in sales totals and other transaction records, or with counters which are not re-settable and which record transaction numbers and sales details. Totals registered shall be read and recorded by Bean Sprouts at the beginning and._end of each business day. All voided transactions shall be supported by the _..__ .._. __ sup original cash register tape with supervisory approval documented. 15. CONFIDENTIALITY If either party receives from the other information which due to the nature of such information is reasonably understood to be confidential and/or proprietary, the party receiving such information agrees that it shall not use or disclose such information except in the performance of this Agreement, and further agrees to exercise the same degree of care it uses to protect its own information of like importance, but in no event less than reasonable care. "Confidential Information" shall include all nonpublic information of a party. Confidential Information includes not only written information, but also information transferred orally, visually, electronically, or by other means. Information disclosed to either party by any subsidiary and/or agent of the other party shall be considered Confidential Information. The foregoing obligations. of non-use and nondisclosure shall not apply to any information that (a) has been disclosed in publicly available sources; (b) is, through no fault of a receiving party, disclosed in a publicly available source; (c) is in rightful possession of a receiving party without an obligation of confidentiality; (d) is required to be disclosed by operation of law; or (e) is independently developed by a receiving party without reference to information disclosed by the City. 16. CONFLICT OF INTEREST CLAUSE Bean Sprouts covenants that it presently has no interests and shall not have interests, direct or indirect, which would conflict in any manner with performance of services specified under this Agreement. City covenants that it presently has no interests and shall not have interests, direct or indirect, which would conflict in any manner with performance of services specified under this Agreement. Page 1 I of 17 25B-15 17. DISCRIMINATION Bean Sprouts shall not discriminate because of race, color, creed, religion, sex, marital status, sexual orientation, age, national origin, ancestry, or disability, as defined and prohibited by applicable law, in the recruitment, selection, training, utilization, promotion, termination or other employment related activities. Bean Sprouts affirms that -it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations. 18. INTELLECTUAL PROPERTY a. Bean Sprouts' Intellectual Property. Bean Sprouts is the owner of the rights to certain trademarks, service marks and logotypes, including the registered service marks, "Bean Sprouts" and "Imaginibbles," used in the operation of its restaurant businesses (which, together with any future marks developed by or for the use of Bean Sprouts based upon any variation of the names "Bean Sprouts" or "Imaginibbles," are collectively referred to herein as the "Bean Sprouts Marks"). City hereby acknowledges and agrees that Bean Sprouts is the sole and exclusive owner of the Bean Sprouts Marks and that City shall obtain no right, title or interest or Sprouts' use of the Bean Sprouts Marks in carrying out its obligations hereunder. City further acknowledges and agrees that Bean Sprouts will conduct its operations hereunder using the Bean Sprouts Marks in its sole discretion. b. City's Intellectual Property. City is the owner of the rights to certain trademarks, service marks and logotypes, used in the operation of its businesses (which, together with any future marks developed by or for the use of City are collectively referred to herein as the "City Marks"). Bean Sprouts hereby acknowledges and agrees that City is the sole and exclusive owner of the City Marks and that Bean Sprouts shall obtain no right, title or interest in or to any of the City Marks through this Agreement or through City's use of the City Marks in carrying out its obligations hereunder. 19. EXCLUSIVITY AND AMENDMENT This Agreement represents the complete and exclusive statement between the City and Bean Sprouts, and supersedes any and all other agreements, oral or written, between the parties. In the event of a conflict between the terms of this Agreement and any attachments hereto, the terms of this Agreement shall prevail. This Agreement may not be modified except by written instrument signed by the City and by an authorized representative of Bean Sprouts. The parties agree that any terms or conditions of any purchase order or other instrument that are inconsistent with, or in addition to, the terms and conditions hereof, shall not bind or obligate Bean Sprouts or the City. Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which is not embodied herein. Page 12 of 17 25B-16 20. ASSIGNMENT AND SUBLETTING a. Inasmuch as this Agreement is intended to secure the specialized services of Bean Sprouts, Bean Sprouts may not assign, transfer, delegate, or subcontract.any interest herein without the prior written consent of the City and any such assignment, transfer, delegation or subcontract without the City's prior written consent shall be considered null and void. Nothing in this Agreement shall be construed to limit the City's ability to have any of the services which are the subject to this Agreement performed by City personnel or by other concessionaries retained by City. b. Bean Sprouts has no right to sublet the Premises. 21. TERMINATION a. By City- If Bean Sprouts breaches any of the provisions of this Agreement, City shall provide written notice thereof to Bean Sprouts, and shall thereafter afford Bean Sprouts thirty (30) days in which to cure any such breach. If Bean Sprouts fails to cure such breach during such cure period, this Agreement will terminate upon the expiration of the cure period. of this Agreement, Bean Sprouts shall provide written notice thereof to City, and shall thereafter afford City thirty (30) days in which to cure any such breach. If City fails to cure such breach during such cure period, this Agreement will terminate upon the expiration of the cure period. These termination rights are in addition to the termination right set forth in Section 5 hereof. 22. WAIVER No waiver of breach, failure of any condition, or any right or remedy contained in or granted by the provisions of this Agreement shall be effective unless it is in writing and signed by the party waiving the breach, failure, right or remedy. No waiver of any breach, failure or right, or remedy shall be deemed a waiver of any other breach, failure, right or remedy, whether or not similar, nor shall any waiver constitute a continuing waiver unless the writing so specifies. 23. JURISDICTION - VENUE This Agreement has been executed and delivered in the State of California and the validity, interpretation, performance, and enforcement of any of the clauses of this Agreement shall be determined and governed by the laws of the State of California. Both parties further agree that Orange County, California, shall be the venue for any action or proceeding that may be brought or arise out of, in connection with or by reason of this Agreement. 24. PROFESSIONAL LICENSES Bean Sprouts shall, throughout the term of this Agreement, maintain all necessary licenses, pennits, approvals, waivers, and exemptions necessary for the provision of the services hereunder Page 13 of 17 25B-17 and required by the laws and regulations of the United States, the State of California, the City of Santa Ana and all other governmental agencies. Bean Sprouts shall notify the City immediately and in writing of its inability to obtain or maintain such permits, licenses, approvals, waivers, and exemptions. Said inability shall be cause for termination of this Agreement. 25. MISCELLANEOUS PROVISIONS a. Each undersigned represents and warrants that its signature herein below has the power, authority and right to bind their respective parties to each of the terms of this Agreement, and shall indemnify City fully, including reasonable costs and attorney's fees, for any injuries or damages to City in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. b. All Exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this Agreement. 26. NOTICE Any notice, tender, demand, delivery, or other communication pursuant to this Agreement shall be in writing and shall be deemed to be properly given if delivered in person or mailed by first class or certified mail, postage prepaid, or sent by fax or other telegraphic communication in manner To City: Clerk of the City Council City of Santa Ana 20 Civic Center Plaza (M-30) P.O. Box 1988 Santa Ana, CA 92702-1988 Fax: 714-647-6956 With courtesy copies to: Executive Director, Parks, Recreation and Community Services Agency City of Santa Ana 20 Civic Center Plaza (M-23) P.O. Box 1988 Santa Ana, California 92702 Fax: 714-647-4211 To Bean Sprouts: Bean Sprouts, LLC dba Bean Sprouts 655 South Main Street Suites 200-317 Orange, California 92868 Fax: persons: Sonia R. Carvalho City Attorney City of Santa Ana 20 Civic Center Plaza (M-29) P.O. Box 1988 Santa Ana, California 92702 Fax: 714-647-6515 Page 14 of 17 25B-18 A party may change its address by giving notice in writing to the other party. Thereafter, any communication shall be addressed and transmitted to the new address. If sent by mail, communication shall be effective or deemed to have been given three (3) days after it has been deposited in the United States snail, duly registered or certified, with postage prepaid, and addressed as set forth above. If sent by fax, communication shall be effective or deemed to have been given twenty-four (24) hours after the time set forth on the transmission report issued by the transmitting facsimile machine, addressed as set forth above. For purposes of calculating these time frames, weekends, federal, state, County or City holidays shall be excluded. IN WITNESS WHEREOF, the parties hereto have executed this. Agreement the date and year first above written. ATTEST: Maria D. Huizar Clerk of the Council APPROVED AS TO FORM: SONIA R. CARVALHO City Attorney By: �i�t L� kF. lti". Fu; Laura A. Rossini Senior Assistant City Attorney RECOMMENDED FOR APPROVAL: GERARDO MOUET Executive Director Parks, Recreation and Community Services Agency CITY OF SANTA ANA Raul Godinez II City Manager BEAN SPROUTS, LLC By: Title: Page 15 of 17 25B-19 EXHIBIT A DIAGRAM SHOWING LOCATION OF PREMISES 25B-20 SANTA.-AMA�, 25B-21 SRI 1 PLA •L[1 •RO490T TIT SANTA.-AMA�, 25B-21 PLA •L[1 •RO490T TIT SANTA.-AMA�, 25B-21 EXHIBIT B MONTHLY ATTENDANCE RECORDS FOR SANTA ANA ZOO FOR 2017 Page 17 of 17 25B-22 COSA - Unit Qty By Allocation Includes Transactions from 1/1/2017 to 12/31/2017 Begin Time: None End Time: None Office Code: 200 H Batch Month 1st present ation City of Santa Ana 1st present ation Orange County 2nd 3rd present present ation ation all all countie countie s s Adult Adult PM Adult PM WKND Adult WKND Assemb ly present ation Child Child PM Child PM WKND Child WKND January 2017 .1 4 4 3 1,961 526 657 1,629 2 1,132 190 236 636 February 2017 0 4 4 1 1,931 454 591 1,409 0 1,142 125 185 497 March 2017 01 31 2 01 3,759 6801 8801 2,929 1 2,9961 207 3551 1,245 April 2017 0 2 2 0 4,461 1,118 1,116 3,430 0 4,046 517 422 1,390 May _2017 0 5 4 2 4,371 736 '550 2,551 1 4,301 215 225 843 June 2017 0 2 2 0 3,735 694 629 1,825 0 3,865 263 206 751 July 2017 0 3 3 1 3,656 929 682 2,379 0 3,309 628 272 897 August WU 0 5 5 1 3,065 639 560 1,881 1 2,406 330 256 741 September 2017 0 1 1 0 1,767 393 698 1,827 0 514 103 266 692 October 2,017 0 2 1 2 0 1,242 410 589 2;093 0 431 104 215 827 November2017 0 6 4 0 2,487 473 532 2,217 0 1,128 185 160 858 December 2017 0 0 0 01 2,392 509 4961 1,705 0 1,080 162 158 '656 Total 1 37 33 8 34,827 7,561 7,980 25,875 5 26,350 .3,029 2,9561 10,033 Report Date: 4/6/2018 5:16:56 PM -Wovah - Page 1 of 5 25B-23 CCSA -Unit Qty By Allocation Includes Transactions from 1/1/2017 to 12/31/2017 Begin Time: None End Time: None Office Code: ZOO Batch Month city Employ ee city Pass Discou nt Promot ion Discou nt Zoo Adult Discou nt Zoo Child Discou DSC nt Zoo Free Senior Adult DSC Free Child Educati on Chaper one Educati on Student Educati on Teacher FOSAZ Membe r FOSAZ Pass January2017 25 34 60 45 21 6 0 0 9 83 13 4,035 152 February 2017 34 30 16 34 23 8 0 0 112 446 28 3,774 153 March 2017 50 901 51 381 261 5 21 3 165 6831 54 5,331 194 Ap012017 73 80 48 59 32 2 0 0 0 0 123 5,707 397 May 2017 46 27 25 32 19 4 0 0 0 0 143 4,948 335 June 2017 51 14 9 72 54 13 0 .0 0 0 15 4,587 309 July 2017 44 20 5 40 36 6 0 0 0 0 0 5,019 541 August 2017 45 17 12 49 16 5 1 3 0 0 0 4,574 459 September 2017 12 17 16 22 8 5 0 0 0 0 1 4,153 359 October 2017 19 13 5 23 4 4 0 0 0 0 13 3,547 452 November 2017 35 33 15 40 20 3 0 0 52 301 43 4,664 912 December 2017 23 18 1 16 7 4 2 0 0 6 9 4,350 1,966 Total 457 393 263 470 266 65 5 6 338 1,513 442 54,689 6,229 Report Date: 4/6/2018 5:16:56 PM - iNovah - Page 2 of 5 25B-24 C®SA - Unit qty By Allocation Includes Transactions from 1/1/2017 to 12/31/2017 Begin Time: None End Time: None Office Code: ZOO 0 Batch Month Free Adult Free Child Free Child Promot ion Free Senior Other Zoo Discou nt Other Zoo Discou nt Adult Other Zoo Discou nt Child Other Zoo Discou nt Senior Other Zoo Free Membe r Overpa yment Rental SAR Adult SAR Child January 2017 458 17 1 2 14 2 0 1 61 0 332 151 137 February 2017 11 0 0 0 29 0 0 0 31 1 483 235 149 March 2017 36 1 1 01 181 4 31 0 69 11 579 414 312 April 2017 32 0 3 0 65 0 0 0 96 Stj 569 225 198 May 2017 117 240 1 0 62 0 0 0 74 15 549 344 152 June 2017 2 1 4 0 72 3 0 1 138 4 805 196 136 July 2017 54 38 12 1 91 0 0 0 181 2 556 336 274 August 2017 1 1 8 2 52 0 0 0 86 1 270 309 280 September 2017 6 0 0 0 58 0 0 0 43 0 568 321 219 October 2017 1 0 14 38 0 94 0 0 0 48 1 506 447 427 November 2017 12 0 0 2 114 0 0 0 35 1 279 169 115 December 2017 1 1 01 61 0 1341 91 4 1 1 691 01 280 123 97 Total 730 312 74 7 803 18 7 3 931 77 5,776 3,270 2,496 Report Date: 4/6/2018 5:16:56 PM - iNovah - Page 3 of 5 25B-25 COSA - Unit Qty By Allocation Includes Transactions from 1/1/2017 to 12/31/2017 Begin Time: None End Time: None Office Code: ZOO Batch Month BAR Child Under3 SAR Senior Scout Scout Parent / Sibling Self- Guided Visit Adult Self- Guided Visit Child Senior Senior PM Senior PM WKND Senior WKND Under 3 ZOO Zoo Explore Explore rAdult r Student January 2617 12 6 15 16 0 0 306 38 39 177 824 0 0 February 2017 36 2 77 67 0 0 332 52 45 164 957 0 0 March 2017 79 171 0 01 01 0 5801 821 74 3381 2,6331 0 0 April 2017 31 18 14 18 0 0 629 150 76 339 2,637 446 2,190 May 2017 74 7 82 74 0 0 493 56 54 260 2,062 515 2,581 June 2017 41 30 0 0 0 0 585 73 52 237 1,875 45 - 245 July 2017 45 14 0 0 0 0 504 124 69 264 2,016 0 0 August 2017 42 8 0 0 0 0 567 87 55 240 1,644 0 0 September 2017 50 14 0 0 130 .117 376 48 49 198 1,442 0 0 October 2017 72 a 0 0 156 121 279 58 41 238 1,282 14 21 November 2017 1 45 5 7 12 163 212 436 61 55 251 1,584 130 302 December 2017 13 5 0 0 151 129 942 63 40 192 1,511 16 128 Total 540 114 195 187 600 579 5,529 892 649 2,898 20,467 1,166 5,467 Report Date: 4/6/2018 5:16:56 PM -Wovah - Page 4 of 5 25B-26 COSA - Unit Qty By Allocation Includes Transactions from 1/1/2017 to 12/31/2017 Begin Time: None End Time: None Office Code: Z00 Batch Month Zoo Lab Chaper one Zoo Lab Student Total January 2017 0 0 14,073 February 2017 0 0 13,672 March 2017 0 01 24,990 April 2017 0 0 30,812 May 2017 0 0 27,195 June 2017 0 0 21,621 July 2017 0 0 23,051 August 2017 0 0 18,724 September 2017 0 0 14,494 October 2017 20 53 13,933 November 2017 0 0 18,158 December 2017 0 0 16,968 Total 20 53 237,69 1 Report Date: 4/6/2018 5:16:56 PM -Wovah - Page 5 of 5 25B-27 25B-28