HomeMy WebLinkAboutGUSTAFSON, ALICE - Alice's Breakfast in the Park - 1995-08-21Council/Agency Meeting Held: O�
Deferred/Continued to:
Approved ❑ Conditionally Approved ❑ Denied
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Cit Jerk' Signat r
Council Meeting Date: 2/2/2009
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Department ID Number: ED 09-07
CITY OF HUNTINGTON BEACH
REQUEST FOR CITY COUNCIL ACTION
SUBMITTED TO: HONORABLE MAYOR AND CITY COUNCIL MEMBERS
SUBMITTED BY: FRED A. WILSON, CITY ADMINISTR
PREPARED BY: STANLEY SMALEWITZ, DIRECTOR tOECCONOMIC DEVELOPMENT'
JIM B. ENGLE, DIRECTOR OF COMMUNITY SERVICE
SUBJECT: APPROVE AMENDMENT NO. 3 TO LEASE AGREEME'T BETWEEN
CITY AND ALICE GUSTAFSON FOR ALICE'S BREAKFAST IN THE
PARK
Statement of Issue, Funding Source, Recommended Action, Alternative Action(s), Analysis, Environmental Status, Attachment(s)
Statement of Issue: The City Council is asked to approve Amendment No. 3 with Alice
Gustafson which allows a two year extension of the Alice's Breakfast in the Park lease.
Funding Source: N/A
Recommended Action: Motion to:
Authorize the Mayor and City Clerk to approve and execute the Amendment No. 3 to Lease
Agreement between the City of Huntington Beach and Alice Gustafson.
Alternative Action(s):
Do not approve the Amendment No. 3 to Lease Agreement between the City of Huntington
Beach and Alice Gustafson.
REQUEST FOR CITY COUNCIL ACTION
MEETING DATE: 2/2/2009 DEPARTMENT ID NUMBER: ED 09-07
Analysis:
Alice's Breakfast in the Park (since 1980) has been an institution in Huntington Beach for
over 28 years. Alice's in short is the epitome of a "Mom and Pop" operation that makes it
unique and therefore almost impossible to replicate by another operator. Prior to the
current location at Central Park, Alice Gustafson and her husband operated another
restaurant on the pier, End of the Pier Cafe, from 1976 until the pier and restaurant were
destroyed in 1988. The owner, Alice Gustafson, has requested to continue to operate
Alice's Restaurant "as is" for an additional two more years, retiring in September of 2010.
Alice's has developed extensive business goodwill over the past three plus decades.
This goodwill has been demonstrated by their many loyal customers via the 1,900
signatures on the petition presented and the 20 "public comment" speakers that attended
the October 6 City Council meeting. By allowing an orderly transition from Alice's to a new
tenant in 2010, it is anticipated that the new tenant may be able to continue the tradition of
Alice's Breakfast in the Park. The loss of the goodwill at this juncture could lead to an
unintended "pushback" on any new tenant if the proposed extension is not granted simply
by reason that the current customers may feel Alice's was not treated fairly given their long
history in the city.
This proposed two-year extension can be key to the continued success of the current and
future restaurant operation, in that, the customer base is more likely to continue supporting
the future new tenant.
Alice will need to meet minimum repairs and maintenance on the building justifying the
lower percentage rent. This will require the monthly spraying of the building for termites by
Alice's with proof of the service being sent to the Economic Development Department. In
addition, Alice's has met the City's current insurance requirements.
City staff is currently continuing the "Request for Qualification" evaluation process in order
to select a new future tenant at this Central Park location. Should a qualified current .
proposer be selected and willing to continue negotiations under this proposed prolonged
timeline, staff will then negotiate a lease and process any required
building/permit/entitlement concurrently with the goal of commencing construction
improvements immediately after the termination of Alice's Restaurant (September 15,
2010), and ideally having the new operation commence business summer of 2011.
On October 20, 2008, the City Council approved an H-item regarding this issue which
directed the Economic Development staff to prepare a lease extension for Alice's Breakfast
in the Park. The Amendment No. 3 clearly states that the lease will expire on September
15, 2010 with no option to extend or renew. The lessee shall, on a monthly basis, treat
and/or spray the building for termites and provide proof of the service to the Economic
Development Department.
-2- 1/20/2009 8:19 AM
REQUEST FOR CITY COUNCIL ACTION
MEETING DATE: 2/2/2009 DEPARTMENT ID NUMBER: ED 09-07
Strategic Plan Goal: C-2 — Provide quality public services with the highest professional
standards to meet community expectations and needs, assuring that the city is sufficiently
staffed and equipped overall.
Environmental Status: N/A
Attachment(s):
city Clerk's
'.e- N u m. •- r
Ro.
1.
Qesqr.iption
Lease Agreement between the City of Huntington Beach and Alice
Gustafson, effective February 1, 1995.
2.
Amendment No. 1 to Lease Agreement, effective February 1, 1996.
3.
Amendment No. 2 to Lease Agreement, effective July 1, 2000.
4.
Amendment No. 3 to Lease Agreement.
5.
Certificate of Insurance.
-3- 1/13/2009 8:18 AM
ATTACHMENT #1
LEASE AGREEMENT BETWEEN THE CITY OF
HUNTINGTON BEACH AND ALICE GUSTAFSON
TABLE OF CONTENTS
1. DESCRIPTION OF PREMISES
2. ORIGINAL TERM
3. OPTION TO EXTEND
4. TERMS AND CONDITIONS
5. HOLD OVER
6. RENT
7. GROSS SALES DEFINED
8. GROSS SALES EXCLUSIONS
9. BOOKS AND RECORDS
10. STATEMENT OF GROSS SALES
11. PERMITTED USE
12. PAYMENT OF UTILITY CHARGES
13. PERSONAL PROPERTY TAXES
14. REAL PROPERTY TAXES
15. MAINTENANCE BY LESSEE
16. MAINTENANCE OF SHOW WINDOW GLASS
17. ALTERATIONS AND LIENS
18. INSPECTION BY LESSOR
19. SURRENDER OF PREMISES
20. INSTALLATION AND REMOVAL OF TRADE FIXTURES
21. TRADE FIXTURES AS SECURITY FOR LEASE
22. UNREMOVED TRADE FIXTURES
23. SIGNS
24. PARTIAL DESTRUCTION
25. TOTAL DESTRUCTION
26. INSURANCE PROCEEDS
27. ABATEMENT OF RENT
28. CONDEMNATION COMPENSATION
29. RELOCATION AND ASSISTANCE
30. SUBLEASING OR ASSIGNING AS BREACH
31. ABANDONMENT BY LESSEE
32. DEFAULT BY LESSEE
33. INSOLVENCY OF LESSEE
34. CUMULATIVE REMEDIES
35. WAIVER OF BREACH
36. FORCE'MAJEURE - UNAVOIDABLE DELAYS
37. CARE OF PREMISES - MAINTENANCE DEPOSIT
38. SECURITY DEPOSIT
39. EMERGENCY CLOSING OR CLOSING
40. DELIVERIES OF SUPPLIES
41. PARKING
42. NOTICE
43. LESSEE'S RIGHT TO RENEGOTIATE
44. INSURANCE HAZARDS
45. WASTE OR NUISANCE
46. COMPLIANCE WITH LAW
47. BINDING ON HEIRS
49. PARTIAL INVALIDITY
49. SOLE AND ONLY AGREEMENT
50. TIME OF ESSENCE
51. INDEMNIFICATION/HOLD HARMLESS
52. WORKERS COMPENSATION
53. INSURANCE
54. TERMINATION OF PRIOR LEASE
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6/alice/4/18/95�
LEASE AGREEMENT BETWEEN
THE CITY OF HUNTINGTON BEACH
AND ALICE GUSTAFSON
THIS AGREEMENT is made and entered into thisyMday of , 1995, by
and between THE CITY OF HUNTINGTON BEACH, a municipal corporation of the State of
California (hereinafter referred to as "LESSOR'), and ALICE GUSTAFSON, (hereinafter
referred to as "LESSEE").
WHEREAS, LESSOR owns certain real property (hereinafter referred to as the
"Premises"), in the City of Huntington Beach, and LESSEE desires to lease the aforesaid
Premises in the manner set forth below.
NOW, THEREFORE, the parties covenant and agree as follows:
SECTION 1. DESCRIPTION OF PREMISES
LESSOR hereby leases to LESSEE that certain real property commonly known and
described as ALICE'S BREAKFAST IN THE PARK, located in the City of Huntington Beach,
and as outlined on the attached map marked as Exhibit A.
SECTION 2. ORIGINAL TERM
This lease shall be for a term of five (5) years commencing at 12:01 A.M. on February
1, 1995, and ending at 12:01 A.M. on January 30, 2000, unless sooner terminated as herein
provided.
SECTION 3. OPTION TO EXTEND
LESSEE is hereby granted and shall, if not then in default under this lease, have an
option to extend the term of this lease for an additional period of three five (5) year extensions
by mutual agreement only from the expiration of this lease, exercisable by LESSEE with City
Council approval upon no less than six (6) months prior written notice, on the same terms,
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covenants, and conditions and subject to the same exceptions and reservations contained in
this lease. The City Council's approval to LESSEE's exercise of an option to extend the term
of this lease shall not be withheld if LESSEE is, at the time of the exercise of an option, in full
compliance with the terms of this lease.
SECTION 4. TERMS AND CONDITIONS
LESSOR may upon three (3) days notice in writing to LESSEE for rent and thirty (30)
days notice in writing to LESSEE for covenants, terminate this agreement and the lease
granted herein without liability to the LESSOR in the event of failure of LESSEE to comply with
any of the terms or conditions or agreements hereof, or when public necessity so requires.
In the event of termination, LESSEE shall be allowed fifteen (15) days after notice
within which to cure the failure or default which gave rise to such termination; provided, further
that if the nature of LESSEE's default is such that more than fifteen (15) days are reasonably
required for its cure, then LESSEE shall not be deemed to be in default if LESSEE
commences such cure within said fifteen (15) day period and thereafter diligently prosecutes
such cure to completion.
SECTION S. HOLD OVER
Should LESSEE hold over and continue in possession of said Premises after expiration
of the terms of this lease or any extension thereof, LESSEE's continued occupancy of said
Premises shall be considered a month -to -month tenancy subject to all the terms and conditions
of this lease.
SECTION 6. RENT
LESSEE agrees to pay to LESSOR as rent for the use and occupancy of said Premises
a sum equal to the following percentages of the amount of gross sales as defined in this
Article, made each month by LESSEE in, on or from said Premises.
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Sales Volume
$1.00 - $100,000
$100,001 - $200,000
$200,001 - plus
Percentage Rate
10.5%
12.5%
14.5%
The rent specified in this section shall be paid by LESSEE to LESSOR at 2000 Main
Street, Huntington Beach, California, 92648, or at such other place or places as LESSOR may
from time to time designate by written notice delivered to LESSEE, within fifteen (15) days
after the end of the calendar month during which the gross sales on which it was computed
were made. A late charge equal to one and one-half percent (1%Z%) per month shall be added
on the 10th day after any payment hereunder is due, but unpaid.
SECTION 7. GROSS SALES DEFINED
For the purposes of this Article, the term "gross sales" shall mean the total selling price
of all merchandise or services sold or rendered in, or property rented on, or from said Premises
by LESSEE, her sublessees, licensees, or concessionaires, whether for cash or on credit, and
if on credit whether or not paid, and shall include, without limitation:
(a) Proceeds from all automatic vending, weighing, and other machines
owned and operated by LESSEE in or on said Premises;
(b) Commissions received by LESSEE from such automatic vending,
weighing, and other machines not owned by LESSEE but operated in or on said
Premises;
(c) Commissions received by LESSEE from the operation of public
telephones in or on said Premises;
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(d) Proceeds from sales based on orders solicited or taken from, in, or on
said Premises for merchandise or services to be delivered or rendered off, or from
sources outside, said Premises.
SECTION 8. GROSS SALES EXCLUSIONS
Notwithstanding the provisions of Section 7 of this lease, the term "gross sales" shall
not include the following items, and such items may be deducted from "gross sales" to the
extent they have been included therein or have been included in a prior computation of "gross
sales" on which a percentage rental has been paid under this lease to LESSOR:
(a) Any sales or excise taxes otherwise includable in "gross sales" as
defined in this Article become part of the total selling price of merchandise. or services
rendered in, from, or on said Premises where LESSEE must account for and remit the
taxes to the government entity or entities by which they are imposed; and
(b) Any transfer of merchandise from said Premises to the manufacturer or
supplier from whom it was obtained by LESSEE.
SECTION 9. BOOKS AND RECORDS
LESSEE shall at all times keep or cause to be kept on the said Premises full, complete,
and accurate records and books of account showing the total amount of gross sales as
defined in this Article made each calendar month in, on, or from said Premises. Furthermore,
LESSEE shall at the time of sale and in the presence of the customer cause the full selling
price of each piece of merchandise and each service rendered in, on, or from said Premises to
be recorded in a cash register or cash registers that have cumulative totals and are sealed in a
manner approved by LESSOR. LESSEE agrees to maintain on said Premises for a period of
three (3) years following the close of each calendar month all records and books of account
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and all cash register tapes showing or in any way pertaining to the gross sale made in, or from
said Premises during such calendar month.
SECTION 10. STATEMENT OF GROSS SALES
At the time specified in Section 6 of this lease for the payment of the rent specified in
that section, LESSEE shall deliver to LESSOR a true and accurate statement signed by
LESSEE or by an authorized employee of LESSEE showing the total gross sales made during
the preceding calendar month in, on, or from said Premises and the amount of rent then being
paid calculated on such gross sales pursuant to this lease. LESSOR may at any time within
three (3) years after receiving any such statement, at her own cost and expense, cause all
books, records, and cash register tapes described in Section 9 of this lease for the calendar
month purportedly covered by the statement to be audited by a public or certified public
accountant selected by LESSOR. LESSEE shall on receiving written notice of LESSOR's
desires for such an audit deliver and make available all such books, records, and cash register
tapes to the public or certified public accountant selected by LESSOR. Furthermore, LESSEE
shall promptly on demand reimburse LESSOR for the full cost and expense of the audit should
the audit disclose that the questioned statement understated gross sales or the rent payable
because of gross sales by five (5) percent or more.
SECTION 11. PERMITTED USE
The Premises are let for the purpose of operation of a park concession for the sale of
merchandise, food, and other such uses as may from time to time be approved in writing by
LESSOR. LESSOR reserves the right to prohibit the sale of any item or article which is
objectionable or beyond the scope of the merchandise necessary for proper service to the
public or public safety. The prices for the merchandise sold shall be fixed by LESSEE, and
LESSOR reserves the right to establish and revise a schedule of maximum prices for any or all
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items sold or rented to the public by LESSEE; provided, however, that such schedule of
maximum prices established by LESSOR shall be reasonable and in accordance with the best
interests of the public, the LESSEE, and the LESSOR.
SECTION 12. PAYMENT OF UTILITY CHARGES
LESSEE shall pay, and hold LESSOR and the property of LESSOR free and harmless
from, all charges for the furnishing of gas, water, electricity, telephone services, and other
public utilities to said Premises during the term of this lease or any extension thereof and for
the removal of garbage and rubbish from said Premises during the term of this lease or any
extensions thereof.
SECTION 13. PERSONAL PROPERTY TAXES
LESSEE shall pay before they become delinquent all taxes, assessments, or other
charges levied or imposed by any governmental entity on the furniture, trade fixtures,
appliances, and other personal property placed by LESSEE in, on, or about said Premises
including, without limiting the generality of the other terms used in this section, any shelves,
counters, vaults, vault doors, wall safes, partitions, fixtures, machinery, plant equipment, office
equipment, television or radio antennas, or communication equipment brought on said
Premises by LESSEE.
SECTION 14. REAL PROPERTY TAXES
All real property taxes or possessory interest taxes and assessments levied or
assessed against said Premises by any governmental entity, shall be paid, before they
become delinquent by LESSEE.
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SECTION 15. MAINTENANCE
LESSOR shall, at her own cost and expense, maintain in good condition and repair the
items as follows:
Exterior roof
Exterior walls
Structural supports
Sewers
Foundation of said Premises
Electrical from power pole to circuit breaker
Installation of gas service to the Premises, up to the meter.
LESSEE shall, at her own cost and expense, maintain in good condition and repair the
items and work as follows:
Painting of the interior of the Premises
Painting of the exterior of the Premises
All windows/glass
Removal of Graffiti
Repairs of damage caused by vandalism
Rugs and carpeting
Tenant improvements
Electrical, downflow of circuit breaker
LESSOR shall promptly be reimbursed by LESSEE for the full cost of any such repairs
made by LESSOR.
Except as otherwise expressly provided in Section 15 and 16 of this lease, LESSEE
shall at her own cost and expense keep and maintain all portions of said Premises as well as
all improvements on said Premises and all facilities appurtenant to said Premises in good order
and repair and in as safe and clean a condition as they were when received by LESSEE from
LESSOR, reasonable wear and tear also excepted.
SECTION 16. MAINTENANCE OF SHOW WINDOW GLASS
LESSEE shall, at her own cost and expense, repair and replace any glass in any show
window on said Premises that becomes broken regardless of cause, including show window
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glass that is broken by fire, by act of God, except by fault of LESSOR, or by fault of some
employee or agent of LESSOR. Furthermore, LESSEE shall at her own cost and expense at
all times during the term of this lease carry adequate plate glass insurance on the glass in all
show windows on said Premises to perform the repair and replacement requirements of this
section. Should LESSEE fail to repair or replace any glass broken in a show window or fail to
maintain adequate plate glass insurance on the glass in show windows on said Premises,
LESSOR may replace or repair the broken glass or secure such insurance and LESSEE will
promptly reimburse LESSOR for the cost thereof and pay LESSOR interest on such costs at
the rate of ten (10) percent per annum from the date the costs were.ncurred by LESSOR to
the date they are reimbursed to LESSOR by LESSEE.
SECTION 17. ALTERATIONS AND LIENS
LESSEE shall not make or permit any other person to make any alterations to said
Premises or to any improvement thereon or facility appurtenant hereto without the written
consent of LESSOR first had and obtained, unless such alteration is at a cost of under
$5,000.00. LESSEE shall keep the Premises free and clear from any and all liens, claims, and
demands for work performed, materials furnished, or operations conducted on such Premises
at the instance or request of LESSEE. Furthermore, any and all alterations, additions,
improvements, and fixtures, except furniture and trade fixtures, made or placed in or on said
Premises by LESSEE or any other person shall on expiration or sooner termination of this
lease become the property of LESSOR and remain on said Premises provided, however, that
LESSOR shall have the option on expiration or sooner termination of this lease of requiring
LESSEE, at LESSEE's sole cost and expense, to remove any or all such alterations, additions,
improvements, or fixtures from said Premises.
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SECTION 18. INSPECTION BY LESSOR
LESSEE shall permit LESSOR or LESSOR's agents, representatives, or employees to
enter said Premises at all reasonable times for the purpose of inspecting said Premises to
determine whether LESSEE is complying with the terms of this lease and for the purpose of
doing other lawful acts that may be necessary to protect LESSOR's interest in said Premises
under this lease or to perform LESSOR's duties under this lease.
SECTION 19. SURRENDER OF PREMISES
On expiration or sooner termination of this lease, or any extensions or renewals of this
lease, LESSEE shall promptly surrender and deliver said Premises to LESSOR in as good
condition as they are now at the date of this lease, reasonable wear and tear and repairs
herein required to be made by LESSOR excepted.
SECTION 20. INSTALLATION AND REMOVAL OF TRADE FIXTURES
LESSEE shall have the right at any time and from time to time during the term of this
lease and any renewal or extension of such term, at LESSEE's sole cost and expense, to
install and affix in, to, or on said Premises such items, herein called "trade fixture", for use in
LESSEE's trade or business as LESSEE may, in her sole discretion, deem advisable. Any and
all such trade fixtures that can be removed without structural damage to said Premises or any
building or improvements on said Premises shall, subject to Section 21 of this lease, remain
the property of the LESSEE and may be removed by LESSEE at any time prior to the
expiration or sooner termination of this lease.
SECTION 21. TRADE FIXTURES AS SECURITY FOR LEASE
Subject to and to be subordinated to any security interest which LESSEE may give to
any leading institution and/or financing source for the purpose of obtaining financing for the
purchase of trade fixtures and equipment or the operation of said Premises, LESSEE hereby
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grants to LESSOR a security interest in all trade fixtures and equipment owned by LESSEE
and now or hereafter placed on said Premises by LESSEE as security for the faithful
performance of all the terms, conditions and covenants of this lease to be performed by
LESSEE. Any rights or rights of removal of trade fixtures given LESSEE by the provisions of
Section 20 of this lease shall be exercisable only if, at the time of removal, LESSEE is not in
default in performance of this lease. LESSEE may, however, at any time she is not in default
in performance of this lease, trade in or replace any trade fixture free of the security interest
created by this section and this security interest will then attach to the item that replaced such
trade fixture. On default in performance of any obligation of this lease to be performed by
LESSEE, LESSOR shall immediately have as to the trade fixtures the remedies provided to a
secured party under the Uniform Commercial Code as enacted in the State of California.
SECTION 22. UNREMOVED TRADE FIXTURES
Any trade fixtures described in this Article that are not removed from said Premises by
LESSEE within thirty (30) days after the expiration or sooner termination, regardless of cause,
of this lease shall be deemed abandoned by LESSEE and shall automatically become the
property of LESSOR as owner of the real property to which they are affixed and not simply
because of the lien described in Section 21 of this lease.
SECTION 23. SIGNS
LESSEE shall not place nor maintain, nor permit any other person to place or maintain,
on or in any exterior door, wall, or window of said Premises any sign, awning, canopy,
marquee, or other advertising without the express written consent and approval of LESSOR.
Furthermore, LESSEE shall not place any decoration, lettering, or advertising matter on the
glass of any interior or exterior shop window of said Premises without the written approval and
consent of LESSOR. Should LESSOR consent to any such sign, awning, canopy, marquee,
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decoration, or advertising matter, LESSEE shall maintain it at all times during this lease in r
good appearance and repair. On expiration or sooner termination of this lease, any of the
items mentioned in this section not removed from said Premises by LESSEE on such
expiration or termination of this lease may, without damage or liability, be destroyed by
LESSOR. This lease is expressly contingent upon approval of all signs by both LESSOR and
LESSEE.
SECTION 24. PARTIAL DESTRUCTION
Should said Premises of the building on said Premises be partially destroyed by any
cause not the fault of LESSEE or any person in or about said Premises with the consent,
express or implied, of LESSEE, this lease shall continue in full force and effect and LESSOR,
at LESSOR's own cost and expense, shall promptly commence and diligently continue and
complete the work of repairing and restoring said Premises to their prior condition providing
such work can be accomplished under all applicable governmental laws and regulations within
one hundred eighty (180) working days; provided, however, LESSEE may terminate this Lease
if LESSEE gives LESSOR written notice of LESSEE's intention to do so within sixty (60) days
following such a partial destruction.
SECTION 25. TOTAL DESTRUCTION
Should said Premises or the building on said Premises be so far destroyed by any
cause not the fault of LESSEE or any person in or about said Premises with the consent,
express or implied, of LESSEE that they cannot be repaired or restored to their former
condition within one -hundred eighty (180) working days, LESSOR may, at LESSOR's option:
(a) Continue this lease in full force and effect by repairing and restoring, at
LESSOR's own cost and expense, said Premises to their former condition; or
(b) Terminate this lease by giving LESSEE written notice of such termination.
6/1dalicehOM95 1 ]\
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(c) LESSEE may, however, terminate this Lease if LESSEE gives LESSOR written
notice of LESSEE's intention to do so within sixty (60) days following such total destruction.
SECTION 26. INSURANCE PROCEEDS
Any insurance proceeds received by LESSOR because of the total or partial
destruction of said Premises or the building on said Premises shall be the sole property of
LESSOR, except LESSEE shall be compensated for loss to leasehold improvements and
fixtures beyond any and all insurance proceeds including business interruption insurance
which would ordinarily flow to the benefit of LESSEE.
SECTION 27. ABATEMENT OF RENT
Should LESSOR elect under Section 25 of this lease or be required under Section 24
of this lease to repair and restore said Premises to their former condition following partial or full
destruction of said Premises or the building on said Premises:
(a) LESSOR shall have full right to enter said Premises and take possession
of so much of said Premises, including the whole of said Premises, as may be
reasonably necessary to enable LESSOR promptly and efficiently to cant' out the work
of repair and restoration; and
(b) The percentage rent described in Section 24 of this lease shall be not
abated for the time LESSEE is prevented from using the whole of said Premises.
SECTION 28. CONDEMNATION COMPENSATION
All compensation and damages awarded for a total taking of the PREMISES shall
belong to and be the sole property of LESSOR, and LESSEE shall have no claim to any
amount or part of any award except, however, that LESSEE shall be entitled to receive the
portion of any award attributable to the taking of those leasehold improvements and fixtures
that LESSEE has the right to remove under this lease but does not remove from the
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PREMISES; or when LESSEE does remove the fixtures or improvements, a reasonable
amount for removal and relocation expenses, provided that amount does not exceed the
market value of the improvements and fixtures.
This Lease shall have no condemnation value to LESSEE.
SECTION 29. RELOCATION AND ASSISTANCE
In the event this lease is terminated for any legal reason by LESSOR, LESSEE shall
not be entitled to any relocation rights or benefits and, except those itemized in Section 28,
expressly waives such benefits and rights under City, State or Federal Relocation Assistance
Plans. LESSEE shall be entitled to receive non -monetary relocation benefits and LESSOR
shall make every effort possible to relocate LESSEE to another available comparable site.
However, if another comparable site is not available upon which to relocate LESSEE, then, in
that event, LESSEE shall have no rights to receive monetary assistance and/or monetary
benefits.
SECTION 30. SUBLEASING OR ASSIGNING AS BREACH
LESSEE shall not encumber, assign, or otherwise transfer this lease, any right or
interest in this lease, or any right or interest in said Premises or any of the improvements that
may now or hereafter be constructed or installed on said Premises without the express written
consent of LESSOR first had and obtained. Neither shall LESSEE sublet said Premises or
any part thereof or allow any other person, other than LESSEE's agents, servants, and
employees, to occupy said Premises or any part thereof without the prior written consent of
LESSOR. A consent by LESSOR to one assignment, one subletting, or one occupation of
said Premises by another person shall not be deemed to be a consent to any subsequent
assignment, subletting, or occupation of said Premises by another
assignment, transfer, or subletting without the prior written consent of
Any encumbrance,
whether it be
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s
voluntary or involuntary, by operation of law or otherwise, is void and shall, at the option of
LESSOR, terminate this lease. The consent of LESSOR to any encumbrance, assignment
including occupation or transfer hereof of LESSEE's interest in this lease or the subletting by
LESSEE of said Premises or parts of said Premises shall not be unreasonably withheld;
however, LESSOR shall have the right of first refusal to meet any bona fide offer of
assignment, sale, sublease or transfer of LESSEE's interest in this Lease on the same terms
and conditions of such offer and, agrees to exercise or refuse such right in writing within thirty
(30) days of notice by LESSEE. Such right shall not apply, however, to assignments,
transfers, or sublettings to immediate family members of LESSEE, a family trust, or to any
corporate entity of which LESSEE, or any of LESSEE's immediate family, are sole
stockholders.
If LESSOR does not exercise this right, LESSOR shall approve LESSEE's request for
assignment, sale, sublease, or transfer provided that LESSEE is not in default at the time of
request.
SECTION 31. ABANDONMENT BY LESSEE
Should LESSEE breach this lease and abandon said Premises prior to the natural
expiration of the term of this lease, LESSOR may:
(a) Continue this lease in effect by not terminating LESSEE's right to
possession of said Premises, in which. event LESSOR shall be entitled to enforce all
her right and remedies under this lease, including the right to recover the rent specified
in this lease as it becomes due under this lease;
(b) Terminate this lease and recover from LESSEE:
(1) The worth at the time of award of the unpaid rent which had been
earned at the time of termination of the lease;
14
6/klalice/4118/95 � ( �
J;
(2) The worth at the time of award of the amount by which the
unpaid rent which would have been earned after termination of the lease until the time
of award exceeds the amount of rental loss that LESSEE proves could have been
reasonably avoided;
(3) The worth at the time of award of the amount by which the
unpaid rent for the balance of the term of this lease after the time of award exceeds the
amount of rental loss that LESSEE proves could be reasonably avoided; and
(4) Any other amount necessary to compensate LESSOR for all
detriment proximately caused by LESSEE's failure to perform her obligations under this
lease.
SECTION 32. DEFAULT BY LESSEE
Should LESSEE default in the performance of any of the covenants, conditions, or
agreements contained in this lease, LESSEE shall have breached the lease and LESSOR
may, in addition to the remedy specified in the subparagraph (b) of Section 35 of this lease, re-
enter and regain possession of said Premises in the manner provided by the laws of unlawful
detainer of the State of California then in effect.
SECTION 33. INSOLVENCY OF LESSEE
The insolvency of LESSEE as evidenced by a receiver being appointed to take
possession of all or substantially all of the property of LESSEE, or the making of a general
assignment for the benefit of creditors by LESSEE, or filing a petition in bankruptcy shall
terminate this lease and entitle LESSOR to re-enter and regain possession of said Premises.
15
6/k/alice/4/18/95 V �
The remedies given to LESSOR in this Article shall not be exclusive but shall be
cumulative and in addition to all remedies now or, hereafter allowed by law or elsewhere
provided in this lease.
SECTION 35. WAIVER OF BREACH
The waiver by LESSOR of any breach by LESSEE of any of the provisions of this lease
shall not constitute a continuing waiver or a waiver of any subsequent breach by LESSEE
either of the same or another provision of this lease.
SECTION 36. FORCE MAJEURE - UNAVOIDABLE DELAYS
Should the performance of any act required by this lease to be performed by either
LESSOR or LESSEE be prevented or delayed by reason of an act of God, strike, lockout,
labor troubles, inability to secure materials, restrictive governmental laws or regulations, or any
other cause except financial inability not the fault of the party required to perform the act, the
time for performance of the act will be extended for a period equivalent to the period of delay
and performance of the act during the period of delay will be excused; provided, however, that
nothing contained in this section shall excuse the prompt payment of rent by LESSEE as
required by this lease or the performance of any act rendered difficult solely because of the
financial condition of the party, LESSOR or LESSEE, required to perform the act.
SECTION 37. CARE OF PREMISES - MAINTENANCE DEPOSIT
(a) LESSEE shall paint, stain or seal the Premises' wood, trim, etc., a
minimum of every five years, unless it is mutually determined by LESSOR and
LESSEE, that such work shall be needed sooner than five years. All exterior metal
surfaces shall be painted no less than once each year except the roof.
16
Wa1iW4/1&95 �
(b) Any and all graffiti shall be removed by LESSEE at her own expense
from the leased Premises within forty-eight (48) hours of notice thereof.
(c) LESSEE shall not obstruct, cause or permit any obstruction surrounding
the Premises or any part thereof in any manner whatsoever.
(d) LESSEE shall comply with all written notice served by LESSOR with
regard to the care and maintenance of the Premises.
Any written notice hereunder shall specify the work to be done, the estimated cost
thereof, and the period of time deemed to be reasonably necessary for completion of such
work. Should LESSEE fail to comply with LESSOR's written notice within fifteen (15) days, or
within a time deemed reasonably necessary of the time specified therein, LESSEE shall pay
over to LESSOR the estimated cost of such work as set forth in the notice. Upon receipt of
such sum, LESSOR shall then proceed to cause the required work to be performed.
SECTION 38. SECURITY DEPOSIT
Upon execution hereof, LESSEE shall continue to maintain at all times hereunder, a
security deposit with LESSOR as previously deposited in a sum of One Thousand Dollars
($1,000) to guarantee the repair and maintenance of the leased Premises as provided
hereinabove. Such deposit may be in the form of cash or an assignment of.certificate of
deposit or savings account. The form of any such assignment shall be approved by the City
Attorney. The interest accrued on said deposit shall be paid to LESSEE annually.
SECTION 39. EMERGENCY CLOSING OR CLOSING TO EFFECT
REPAIR/REMODELING THE PREMISES.
LESSOR may close the park without liability therefore at any time it deems necessary
for the protection of life, limb or property, or upon reasonable notice to effect any repair,
remodeling or rebuilding deemed necessary by LESSOR.
17
6/k/alice/4/18/95
SECTION 40. DELIVERIES OF SUPPLIES.
LESSOR shall establish the days and times deliveries of supplies may be made and
advise LESSEE in writing thereof.
SECTION 41. PARKING.
LESSEE shall be permitted to erect signs at the twenty (20) parking spaces adjacent to
the restaurant, which signs shall indicate parking for restaurant patrons on Saturdays, Sundays
and holidays.
LESSOR shall establish the days and times when LESSEE's and LESSEE's employees
and number of automobiles, trucks, and other motorized and non -motorized vehicles may park
and where and advise LESSEE in writing thereof.
SECTION 42. NOTICE.
Any written notice, given under the terms of this agreement, shall be either delivered
personally or mailed, certified mail, postage prepaid, addressed to the party concerned, as
follows:
CITY OF HUNTINGTON BEACH:
Mr. Ron Hagan
Director of Community Services
City of Huntington Beach
2000 Main Street, P.O. Box 190
Huntington Beach, CA 92648
LESSEE:
Ms. Alice Gustafson
P.O. Box 111
Huntington Beach, CA 92648
SECTION 43. LESSEE'S RIGHT TO RENEGOTIATE LEASE.
If, in the event, LESSOR shall at some future time within the term of this lease or any
extension thereof, redevelop the immediate area on which said Premises is situated, or the
immediate adjacent surrounding area thereto, to the extent that one or more new eating
facilities are constructed and situated either on said immediate area or adjacent thereto, and,
18
6A dalice/4/20/95 Y
j\\j
in such event, LESSEE can demonstrate that such has or will cause her to be detrimentally
affected thereby, then, in such event, LESSEE shall have the right to request that the terms,
conditions, and provisions of this lease be renegotiated. The parties agree that each shall deal
with the other in good faith.
SECTION 44. INSURANCE HAZARDS.
LESSEE shall not commit or permit the commission of any acts on said Premises nor
use or permit the use of said Premises in any manner that will increase the existing rates for or
cause the cancellation of any fire, liability, or other insurance policy insuring said Premises or
the improvements on said Premises. LESSEE shall, at her own cost and expense, comply
with any and all requirements of LESSOR'S insurance carriers necessary for the continued
maintenance at reasonable rates of fire and liability insurance policies on said Premises and
the improvements on said Premises.
SECTION 45. WASTE OR NUISANCE.
LESSEE shall not commit or permit the commission by others of any waste on said
Premises; LESSEE shall not maintain, commit, or permit the maintenance or commission of
any nuisance as defined in Section 3479 of the California Civil Code on said Premises; and
LESSEE shall not use or permit the use of said Premises for any unlawful purpose.
SECTION 46. COMPLIANCE WITH LAW.
LESSEE shall at LESSEE's own cost and expense comply with all statutes, ordinances,
regulations, and requirements of all governmental entities, both federal and state and county
or municipal, relating to LESSEE's use and occupancy of said Premises whether such
statutes, ordinances, regulations, and requirements be now in force or hereinafter enacted.
The judgment of any court of competent jurisdiction, or the admission by LESSEE in a
proceeding brought against LESSEE by any government entity, that LESSEE has violated any
6lk/alicel4J18/95 ....................
such statute, ordinance, regulation, or requirement shall be conclusive as between LESSOR
and LESSEE and shall be ground for termination of this lease by LESSOR.
SECTION 47. BINDING ON HEIRS AND SUCCESSORS.
This lease shall be binding on and shall inure to the benefit of the heirs, executors,
administrators, successors and assigns of the parties hereto.
SECTION 48. PARTIAL INVALIDITY.
Should any provision of this lease be held by a court of competent jurisdiction to be
either invalid, void, or unenforceable, the remaining provisions of this lease shall remain in full
force and effect unimpaired by the holding, so long as the reasonable expectations of the
parties hereto are not materially impaired.
SECTION 49. SOLE AND ONLY AGREEMENT.
This instrument constitutes the sole and only agreement between LESSOR and
LESSEE respecting said Premises, the leasing of said Premises to LESSEE, or the lease term
herein specified, and correctly sets forth the obligations of LESSOR and LESSEE to each
other as of its date. Any agreements or representations respecting said Premises or their
leasing by LESSOR to LESSEE not expressly set forth in this instrument are null and void.
SECTION 50. TIME OF ESSENCE.
Time is expressly declared to be the essence of this lease.
SECTION 51. INDEMNIFICATION, DEFENSE, HOLD HARMLESS
LESSEE shall indemnify and save and hold harmless LESSOR, its officers and
employees, from any and all liability, including any claim of liability and any and all losses or
costs arising out of the negligent performance of this agreement by LESSEE, her officers or
employees or from any willful misconduct of LESSEE, her officers or employees while
engaged in the performance of this agreement.
6l20
k/alice/M18l95 �1 U
SECTION 52. WORKERS' COMPENSATION
LESSEE shall comply with all of the provisions of the Workers' Compensation
Insurance and Safety Acts of the State of California, the applicable provisions of Division 4 and
5 of the California Labor Code and all amendments thereto; and all similar state or federal acts
or laws applicable; and shall indemnify, defend and hold harmless LESSOR from and against
all claims, demands, payments, suits, actions, proceedings and judgments of every nature and
description, including attorney's fees and costs presented, brought or recovered against
LESSOR, for or on account of any liability under any of said acts which may be incurred by
reason of any work to be performed by LESSEE under this Agreement.
LESSEE shall obtain and furnish evidence to LESSOR of maintenance of statutory
workers' compensation insurance and employers' liability in an amount of not less than
$500,000 bodily injury by accident, each accident, $500,000 bodily injury by disease, each
employee, and $1,000,000 bodily injury by disease, policy limit.
SECTION 53. INSURANCE
In addition to the workers' compensation insurance and LESSEE's covenant to
indemnify LESSOR, LESSEE shall obtain and furnish to LESSOR the following insurance
policies covering the PREMISES:
(a) General Liability Insurance. A policy of general public liability
insurance, including motor vehicle coverage. Said policy shall indemnify LESSEE, her officers,
agents and employees, while acting within the scope of their duties, against any and all claims
of arising out of or on or in connection with the Premises, and shall provide coverage in not
less than the following amount: combined single limit bodily injury and property damage,.
including products/completed operations liability and blanket contractual liability, of $1,000,000
per occurrence and in the annual aggregate. Said policy shall name LESSOR, its officers, and
employees as Additional Insureds, and shall specifically provide that any other insurance
coverage which may be applicable to the PREMISES shall be deemed excess coverage and
that LESSEE'S insurance shall be primary.
(b) Fire Insurance. In order that the business of LESSEE and the gross
sales of LESSEE as defined in this lease may continue with as little interruption as possible,
LESSEE shall, during the full term of this lease and any renewals or extensions thereof,
maintain at LESSEE'S own cost and expense an insurance policy issued by a reputable
company authorized to conduct insurance business in California insuring for their full insurable
value all fixtures and equipment and, to the extent possible, all merchandise that is, at any
time during the term of this lease or any renewal or extension thereof, in or on the Premises
against damage or destruction by fire, theft, or the elements.
LESSEE shall also maintain in force during the entire term of this agreement, a
standard broad form fire insurance policy in which the LESSOR is named and which any and
all losses are made payable to LESSOR. The face amount of the policy shall be for ninety
(90) percent of the replacement value of the Premises, and be in a form acceptable to the City
Attorney.
REST OF PAGE NOT USED
22
6/k/alice/4118/95 `
I
SECTION 54. TERMINATION OF PRIOR LEASE
Concurrently with the parties' execution of this Lease, the previous Lease for this
Premises, executed in or about 1987 by LESSOR and LESSEE's deceased husband, shall be,
and the same hereby is, terminated.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by and through their authorized officers the day, month and year first above written.
LESSEE: LESSOR:
ALICE GUSTAFSON
By: ke
is-r�-hs
ATTEST:
• w
City Clerk
CITY OF HUNTINGTON BEACH, a municipal
corporation of the State of California
Mayor
APPROVED AS FORM:
City Attorney 1,W /d>r-
23
6/Walice/4/18/95
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Huntington Beach Qn.4*6,
(714) 848-0670
(located in Huntington Beach Central Park)
CHKD. BY DATE SHEET NO. OF
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GARRY ADEN INSURANCE
25522 JERONIMO RD STE lA
A'IT•^SION VIEJO CA 92691
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THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS
NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AmeNO,
EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW,
COMPANY A
UTTER
COMPANY
INSURED LETTER
JOHN , AL I CE , DOWNEY AND MARYBETTi COMPANY
GUSTAFSON BEA: LETTER r+
ALICE' S BREAKFAST IN THE PARK COMPANY
6622 LAKEVIEW DRIVE LETTER
HUNTINGTON BEACH CA 92648 COMPANY E
; LETTER
COMPANIES AFFORDING COVERAGE
TRUCK INSURANCE EXCHANGE
tHt$ I$ TO CERTIFY THAT POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUEDTO THE INSURED NAMED ABOVE FOR THE POLICY PERIOOINOICATED.
NOTWITHSTANDING ANY RBGUIRSMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESDE.CT TO WHICH THIS CERTIFICATE MAY
BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUEa.IECT TO 4LL THE. TERMS, EXCLUSIONS, AND CONDI-
TIONS OF $UGH POLICIES.
CO ——^M— POUCY EFFECTIVE FOLICY EXPIRAi1tJN LIABILITY LIMITS IN THOUSANDS
LTR TYPE t�f INSURANCE POLICY NUMBER DATE {MM;DDIYN DA,E IMM,nIiM^ _ A AGORECIATE
_ Lr..i. VHHI NLl.
GENERAL LIABILITY--
NODIt �
COMPREHENSIVE FORM INJUFY $ — $
i { PREMISESIOPERATIONS PA(7VEF+TY
JNDERGROUND OAMAC+E: ,
F r,P0SION & COLLAPSE HAZARD 01496 80 35 3/ 17 / 9 5 3/ 17 / 9 6 _..._._-... _.. _
?R(0UCTFJC0MPLETEO OPERATIONS
CO:T,RAC'.1AL CO*+BiN@U $1 000 g00
;ONTRACTORS—
BROAD I IROPERTY DAMAGE � -
L
PERSON,, •!! ,rftr ADD INSURED ENDORSEMENT AlinC'rIE I PERSONAL INJURY $
AUTOMO&'LE LIAERLETY
ANY AUTO .a� OFa51xt! $
ALL OWNED AUTOS (PRIV. PASS.)
1€�RMV
ALL OWNED AUTOS RPASS") ,^ I $ a[a A taoFai I c
HIRED AUTOS :�iRC)o x� �C10 i Fr+Ovl:nre i'
NON -OWNED AUTOS GAIL �tiT -CT 'E� i O DAMA()F $ €'
'rne�
GARAGE LIABILITY BSI. Del)"It-7 CiLY At
B.dr1v
I �1cl81NE0 $
EXCESS LIABILITYVZf
UMBRELLA FORM I s' d Po
OTHER THAN UMBRELLA FORM I
WORKF"' COMPENSATION i ytA!U}t)Rr 1-_
AND I $ IEACH ACCIUENTI
EMPLOYERS' LIABILITY $ 1015EASE-POLICY LIMIT)
$ --(DISEASE EACH EMPLOYE
'LOCATIONSNEHICLESISPECIAL ITEMS
CITY OF HUNTINGTON BEACH SHOULD ANY OF THE ABOVE D€SCRIBED POLICIES BE CANCELLED BEFORE THE EX.
PIRATION DATE THEREOF, THE ISSUING COMPANY )f_*Wjtqftft
2000 MAIN ST MAIL3 0 DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE
HUNTINGTON BEACH. CA 92648
f�ttach to your pofoytvith tiro same policy number shwpm on this ettdotsel:°^t=t
mod od:
r� QBA:
Mailing Addmss:
E 410
i:, Edition
JOHN,ALKE,DOWNEY AND MARYBETH
ALICE13 BREAKFAST IN THE PARK
GUSTAFSON 0022 LAKEVIEW DRIVE Agent i'Acy riumber
HUNTINGTON BEACH, CA 92649 97-27_0711 `i i4=)-89-35
' tit iho ( ofar?any
dot innAtWd in the
�•� Dot:kl+utlotts
L .., bon: OUBTAPBON 6622 LAKEVIEW DttlItlll" HUMTi UTON
8 CiN, CA 92640
(same as show unless wlten*q slater! here)
FEffeethra Olde: Lialit of Llablil(ys s1,,;,>'J,Ut1J ::'tt acs ;.trance
0*3/17/ $
Additional Insured Endorsement
(Special Sentinel)
.tf�prti
In comMorallon of the premium m agree vAh you to the fobtdrig•
t . The ittsuratzce pravt(led by this pollf y for (bodily Injury fabifty and property danv)p �-,tsia�y �t^. r t rer7ge
D- Business liability insurance chef *o apply to the mldhional insured named Vc twi. ` _' ot,ty v�io ct
to anoccurrence arising out of the ovinership, walntottatyc* or use of that pail of tlt,,
or by Yost.
2.'Thl%*Wrance does root apply to.
(a) Anyoccurance Mich takes place after you cease to occupy the insured locatim
(b) Any, Structure alterations, new coitetttiction or dentotitlon operations•perfOrmed by _ i:,t a, t 'ti;litlgoal
kwared named bellow. f
3. The addltional insured shell not be construed or deemed to be a subscriber to the Cur-i ny i, ,)4'g tlr.s policy.
4. The "ditional insured shell not be or become fable for arty premium payments dux u:• %r, IN,, pv`(,y.
5. If thls policy is terminated €or any reason v* shall give 30 days notice In writhig to tttn %ircd aamect
bolaW 'Y
TNts;ondorsoment Is part gfyour policy. it Superseder; and controls anyt tng tr: tit^ ccrntir:ty.
tt to: henwise subject to eill oth& terms of the p�licy.
Addiliontai CITY OF HUNTIt'8QT0N BEACtt 1Ts AGENT,1%1FFICEUS, AND EMt'f,0YEE1;
> {Itt trod: 2000 AMAIN BT.
HUM71NOTON BEACH, CA 92048
A rthortzod ReprrCrt 1*,.1;'e
t 4t.03 2110IN
•
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ATTACHMENT #2
AMENDMENT NO. 1
TO LEASE AGREEMENT BETWEEN THE
CITY OF HUNTINGTON BEACH AND ALICE GUSTAFSON
THIS AMENDMENT is made and entered into the 'ILrtay of 4 , 1996,
by and between the CITY OF HUNTINGTON BEACH, a California municipal corporation,
hereinafter referred to as `CITY," and ALICE GUSTAFSON, (hereinafter referred to as
"LESSEE").
WHEREAS, CITY and LESSEE are parties to a Lease Agreement, effective February
1, 1995, entitled Lease Agreement Between the City Of Huntington Beach and Alice
Gustafson" and
CITY and LESSEE wish to amend certain sections of the Lease Agreement to more
precisely define the intent of the parties,
NOW, THEREFORE, it is agreed by CITY and LESSEE -as follows:
1. SECTION 6. RENT shall read as follows:
LESSEE agrees to pay to LESSOR as rent for the use and occupancy of said
Premises a sum equal to the following percentages of the amount of the cumulative
annual gross sales as defined in this Article, made each month by LESSEE in, on or
from said Premises.
Annual Sales Volume
Percentage Rate
$1.00 - $100,000
10.5%
$100,001 - $200,000
12.5%
$200,001 - plus
14.5%
The rent specified in this section shall be paid by LESSEE to LESSOR at 2000
Main Street, Huntington Beach, California, 92648, or at such other place or places as
LESSOR may from time to time designate by written notice delivered to LESSEE, within
fifteen (15) days after the end of the calendar month during which the cumulative
annual gross sales on which it was computed were made.. A late charge equal to one
and one-half percent (1 Y2%) per month shall be added on the 10th day after any
payment hereunder is due, but unpaid.
2. SECTION 10. STATEMENT OF GROSS SALES shall read as follows:
At the time specified in Section 6 of this lease for the payment of the rent
specified in that section, LESSEE shall deliver to LESSOR a true and accurate
statement signed by LESSEE or by an authorized employee of LESSEE showing the
total gross sales made during the preceding calendar month in, on, or from said
Premises and the amount of rent then being paid calcuiated on the cumulated annual
E-
3/k/ahoc=&2/22/96
gross sales pursuant to this lease. LESSOR may at any time within three (3) years
after receiving any such statement, at her own cost and expense, cause all books,
records, and cash register tapes described in Section 9 of this lease for the calendar
month purportedly covered by the statement to be audited by a public or certified public
accountant selected by LESSOR. LESSEE shall on receiving written notice of
LESSOR's desires for such an audit deliver and make available all such books,
,records, and cash register tapes to the public or certified public accountant selected by
'LESSOR. Furthermore, LESSEE shall promptly on demand reimburse LESSOR for the
full cost and expense of the audit should the audit disclose that the questioned
statement understated gross sales or the rent payable because of gross sales by five
(5) percent or more.
3. TERM
These amendments are effective as of February 1., 1996, and run through the term of
the original Lease Agreement.
4. REAFFIRMATION
Except as specifically modified herein, all other terms and conditions of the original
Lease Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by and through their authorized offices the day, month and year first above written.
ALICE GUSTAFSON
REVIEWED AND APPROVED:
City ministrator
3/k/aliceamd=3/96
CITY OF HUNTINGTON BEACH, A
municipal corporation of the State of
California
Mayor
City Clerk
APPROVED AS TO FORM:
f-1- - t - _D�zi.'1b
(or . Ci Attorney 21aN
INITIATEOAN0 APPROVED:
Direddr of rj#mmunity Services
2
ATTACHMENT #3
I
AMENDMENT NOA TO LEASE AGREEMENT
BETWEEN THE CITY OF HUNTINGTON BEACH
AND ALICE GUSTAFSON
THIS AMENDMENT No is made and entered into this 4th . day. of December
2000, by and between THE CITY OF HUNTINGTON BEACH, a municipal corporation of the
State of California (hereinafter referred to as "LESSOR"), and ALICE GUSTAFSON
(hereinafter referred to as "LESSEE").
WHEREAS, LESSOR and LESSEE are parties to a Lease Agreement, effective February
1,1995, entitled "LEASE AGREEMENT BETWEEN THE CITY OF HUNTINGTON BEACH
AND ALICE GUSTAFSON," which Lease is hereinafter referred to as "the Lease Agreement;"
and
LESSOR and LESSEE wish to amend the Lease Agreement to more provide for a change
in the amount of rent to be paid thereunder by LESSEE to the LESSOR,
NOW, THEREFORE, the parties covenant and agree as follows:
1. AMENDMENT OF SECTION 6 ENTITLED "RENT"
Section 6 of the Lease Agreement, entitled "Rent," is hereby amended to read as follows:
SECTION 6. RENT
LESSEE agrees to pay to LESSOR as rent for the use and occupancy of
said Premises a sum equal to the following percentages of the amount of gross
` sales as defined in this Article, made each month by LESSEE in, on or from said
Premises.
Annual Sales Volume Percentage Rate
$1.00 - $100,000 5%
$100,0014200,000 6%
$200,001 plus 7%
The rent specified in this section shall be paid by LESSEE to LESSOR at
2000 Main Street, Huntington Beach, California, 92648, or at such other place or
places as LESSOR may from time to time designate by written notice delivered to
LESSEE, within fifteen (15) days after the end of the calendar month during
which the gross sales on which it was computed were made.
z 1
g*2000AgrecAlice Gustafson Amendment No.(version 1.1)
ris 00-294
11-15-2000
2. AMENDMENT OF SECTION 15 ENTITLED "MAINTENANCE"
Section 15 of the Lease Agreement, entitled "Maintenance", is hereby amended to read as
follows:
SECTION 15. MAINTENANCE
LESSEE shall, at her own cost and expense, maintain in reasonable condition and
repair the items and work as follows, but not limited to:
Exterior roof
Exterior walls
Painting of the exterior and interior of the Premises
All windows/glass
Removal of Graffiti
Repairs of damage caused by vandalism
Rugs and carpeting
Tenant improvements
Electrical, downflow of circuit breaker
LESSOR shall promptly be reimbursed by LESSEE for the full cost of any such
repairs made by LESSOR, if any.
LESSEE shall at her own cost and expense keep and maintain all portions of said
Premises as well as all improvements on said Premises and all facilities appurtenant to said
Premises in good order and repair and in as safe and clean a condition as they were when
received by LESSEE from LESSOR, reasonable wear and tear excepted.
' 3. TERM
This amendment is effective as of July 1, 2000. The term of the Lease Agreement shall
expire on October 31, 2002. If the term of the Lease Agreement is extended beyond October 31,
2002 by mutual agreement of the parties as provided herein, LESSOR may thereafter terminate
the Lease Agreement upon thirty (30) days prior written notice to LESSEE.
4. AMENDMENT OF SECTION 3 ENTITLED "OPTION TO EXTEND"
Section 3 of the Lease Agreement, entitled "Option to Extend," is hereby amended to
read as follows:
SECTION 3. OPTION TO EXTEND
Lessee is hereby granted and shall, if not then in default under this lease, have an
option to extend the term of this lease for a single additional period of six months by mutual
agreement only from the expiration date of this lease, exercisable by LESSEE with LESSOR'S
approval, by and through the City Administrator, upon no less than thirty (30) days prior written
% 2
g:4:2000Agree:Alice Gustafson Amendment No. `l, (version I.1)
rls 00-294
11-15-2000
NW'15-20M. 16:54 FfcO't:Cvt61AFSOi BRUHEHcj IU:f1453b.` -%J1 r.ema-�ru
Mt,-15-2M 16:43 r-?TY OF HUNTINGTON W-PIcN 724 374 1590 P.►cs
. 1 j
notice, on the same terms, covenants and conditions and subject to the same exceptions and
3ewvations contained in this tease.
5, REATFUMATION
Except w spmficZy modif icd hsresn, all aches terms and conditions of the original
uaw Agre=cat shall remain in fall force such effect.
IN WT'fNESS ViMUMF, the patties hereto have Caused this Agreement to be executed
by and through their authorized officers the day, mcadi and year fast above written.
0
3
&;4'.ZCf Av=A%= Clown Arr*et NoA CverVon 1.1?
rls 00-244
11.152000
hOV-M-MOO 04:47n1 TEL,)714 374 15592—
CffY OF HUN MO TON REACH, a
muaieinat comoration of the State of Califomia
yor
APPROM AS TO FORM:
I rr is /mom
.ea- City Attorney -1
Rq-n4T -N1;)tAFFROV
pirectordn�nis vc Services
ATTACHMENT
. I,
AMENDMENT NO. 3 TO LEASE AGREEMENT
BETWEEN THE CITY OF HUNTINGTON BEACH
AND ALICE GUSTAFSON
THIS AMENDMENT NO. 3 is made and entered into this day of
zee,Mv.A&Y , 200-, by and between the CITY OF HUNTINGTON BEACH, a
municipal corporation n (hereinafter referred to as "City), and ALICE GUSTAFSON, an
individual (hereinafter referred to as "Lessee").
WHEREAS, City and Lessee are parties to a lease agreement, effective
February 1, 1995, entitled Lease Agreement Between the City of Huntington Beach and
Alice Gustafson, for the Lease of Real Property Commonly Known and Described as Alice's
Breakfast in the Park, located in the City of Huntington Beach, and
City and Lessee are parties to Amendment No. 1 to Lease Agreement Between City
of Huntington Beach and Alice Gustafson, effective February 1, 1996, and ,
City and Lessee are parties to Amendment No. 2 to Lease Agreement Between the
City of Huntington Beach and Alice Gustafson, effective July 1, 2000, and
City and Lessee wish to amend certain sections of the Lease Agreement to extend the
term of the Agreement, and
City and Lessee mutually desire to amend the Lease Agreement, hereinafter referred
to as Amendment No. 3, as provided below,
NOW, THEREFORE, IT IS AGREED by City and Lessee as follows:
1. RENT
Lessee agrees to pay City as rent for the use and occupancy of said premises a
sum equal to the following percentages of the amount of gross sales as defined in this Article,
made each month by Lessee in, on or from said premises.
ANNUAL SALES VOLUME PERCENTAGE RATE
$1.00 - $100,000 5%
$100,001 - $200,000 6%
$200,000 Plus 7%
The Rent specified in this section shall be paid by Lessee to City at 2000 Main Street,
Huntington Beach, California 92648, or at such other place or places City may from time to
time designate by written notice delivered to Lessee, within fifteen (15) days after the end of
the calendar month during which the gross sales on which it was computed were made.
08-1849/273 86
2. LEASE TERM
This Amendment is effective as of January 1, 2009. The term of the Lease
Agreement shall expire on September 15, 2010.
3. NO OPTION TO EXTEND/RENEW
Lessee shall have no option to extend or renew the term of the Lease. The Lease
Agreement will not be considered a month to month tenancy after September 15, 2010.
4. INSURANCE AND INDEMNITY
Lessee must comply with City Resolution 2008-63 concerning insurance and
indemnity requirements.
5. CARE OF PREMISES
Lessee shall, on a monthly basis, treat and/or spray the building for termites,
and provide proof of the service to the Economic Development Department.
6. REAFFIRMATION
Except as specifically modified herein, or as specifically modified in prior
amendments, all other terms and conditions of the original Lease Agreement shall remain in
full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by
and through their authorized offices the day, month and year first above written.
LESSEE: CITY OF HUNTINGTON BEACH,
a muni ' al orporation
C �+
Alice Gustafson Ma or
APPROVED AS TO
FORM:
� Y ��
ity Attorney Yk `U J OS 1-1 S"-007
INITIATED AND APPROVED:
Director o cono is evelopment
08-1849/27386 2
ATTAC H M E N T
■
ACORDTM CERTIFICATE OF LIABILITY INSURANCE DATE(MM/DDNYYY)
1 7 2009
PRODUCER Phone: (760) 304-7120 Fax: (619) 699-2145 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION
Alliant Insurance Services, Inc. ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE
License #: OC36861 HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR
ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW.
570 Rancheros Drive, Suite 100
San Marcos CA 92069
INSURERS AFFORDING COVERAGE NAIC #
INSURED INSURERA:Golden Eagle Ins CO 10375
Breakfast In The Park INSURER B:Employers Com ensation Insura 11512
P.O. Box 111
Huntington Beac CA 92648 INSURERC:
INSURER D:
INSURER E:
CAVFRAGFS
THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED.
NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS
CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE
TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS.
INSR
LTR
DD'L
SR
POLICY NUMBER
POLICYEFFECTIVE
DATE (MWDD1YY1
PDUCYEXPIRATION
DATE fMMIDDIYYILIMITS
A
X
GENERALLIABILITY
CBP9908279
11/17/2008
11/17/2009
EACHOCCURRENCE
$1, 000,000
X COMMERCIAL GENERAL LIABILITY
PREMISES(Ea O RENT ED
ocwrence
$500 000
CLAIMS MADE a OCCUR
MED EXP(Anyone person)
$ 1Q 000
PERSONAL&ADV INJURY
$ 1 000 000
GENERAL AGGREGATE
$ 2 0 0 0 0 0 0
GEN'L AGGREGATE LIMIT APPLIES PER:
PRODUCTS-COMP/OP AGG
$ 2 000 000
7X POLICY PRO- LOC
A
AUTOMOBILE
LIABILITY
ANYAUTO
CBP9908279
11/17/2008
ll/17/2009
COMBINED SINGLE LIMIT
(Ea accident)
$ 1, 000, 000
BODILY INJURY
(Per person)
$
ALL OWNED AUTOS
SCHEDULEDAUTOS
BODILY INJURY
(Per accident)
$
X
X
HIRED AUTOS
NON-OWNEDAUTOS
PP OVED AS
® ��
(PerOaccldentPERTY )AMAGE
$
R I�ICd`7
GARAGELIABILITY
- -- -
AUTO ONLY -EA ACCIDENT
$
OTHERTHAN EAACC
$
ANYAUTO
$
AUTO ONLY: AGG
EXCESSIUMBRELLA LIABILITY
EACH OCCURRENCE
$
OCCUR CLAIMS MADE
AGGREGATE
$
$
DEDUCTIBLE
$
RETENTION $
B
WORKERS COMPENSATION AND
EIG10853600
6/30/2008
6/30/2009
-X T CYTATU- OEH-
E.L. EACH ACCIDENT
$1 Q Q Q Q Q Q
EMPLOYERS' LIABILITY
ANY PROPRIETORIPARTNERIEXECUTIVE
-
E.L. DISEASE -EA EMPLOYEE
$ 000 000
OFFICERIMEMBER EXCLUDED?
E.L. DISEASE - POLICY LIMIT
$ l, Q00, 000
If es, describe under
SPECIAL PROVISIONS below
OTHER
::1
DESCRIPTION OF OPERATIONS I LOCATIONS / VEHICLES I EXCLUSIONS ADDED BY ENDORSEMENT / SPECIAL PROVISIONS
City of Huntington Beach its officers, its elected or appointed officials, agents, officers, employees are named as
additional insured/landlord as respects to: 6622 Lakeview, Huntington Beach, CA.92648
CEKTIFICATEHULUtK UANUti-LAIIIJ14*10 cLay notice for non 'Payment
SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED
BEFORE THE EXPIRATION DATE THEREOF, THE ISSUING INSURER
City Of Huntington Beach WILL ENDEAVOR TO MAIL 30 DAYS WRITTEN NOTICE TO THE
2000 Main Street CERTIFICATE HOLDER NAMED TO THE LEFT, BUT FAILURE TO DO SO
Huntington Beach CA 92648 SHALL IMPOSE NO OBLIGATION OR LIABILITY OF ANY KIND UPON
THE INSURER, ITS AGENTS OR REPRESENTATIVES.
AUTHORIZED REPRESENTATIVE
ACnRn 95l9nnimm
CORPORATION 1988
IMPORTANT
If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. A statement
on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s).
If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may
require an endorsement. A statement on this certificate does not confer rights to the certificate
holder in lieu of such endorsement(s).
DISCLAIMER
The Certificate of Insurance on the reverse side of this form does not constitute a contract between
the issuing insurer(s), authorized representative or producer, and the certificate holder, nor does it
affirmatively or negatively amend, extend or alter the coverage afforded by the policies listed thereon.
ACORD 25 (2001/08)
POLICY NUMBER: COMMERCIAL GENERAL LIABILITY
CG 20 11 01 96
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
ADDITIONAL INSURED - MANAGERS OR LESSORS OF
PREMISES
This endorsement modifies insurance provided under the following:
COMMERCIAL GENERAL LIABILITY COVERAGE PART
SCHEDULE
1. Designation of Premises (Part Leased to You):
2. Name of Person or Organization (Additional Insured):
3. Additional Premium:
(If no entry appears above, the information required to complete this endorsement will be shown in the Declara-
tions as applicable to this endorsement.)
WHO IS AN INSURED (Section 11) is amended to include as an insured the person or organization shown in the
Schedule but only with respect to liability arising out of the ownership, maintenance or use of that part of the prem-
ises leased to you and shown in the Schedule and subject to the following additional exclusions:
This insurance does not apply to:
1. Any `occurrence" which takes place after you cease to be a tenant in that premises.
2. Structural alterations, new construction or demolition operations performed by or on behalf of the person or
organization shown in the Schedule.
City of Huntington Beach its officers, its elected or appointed officials, agents, officers, employees
are named as additional insured/landlord as respects to: 6622 Lakeview, Huntington Beach, CA. 92648.
CG 20 11 01 96 Copyright, Insurance Services Office, Inc., 1994 Page 1 of 1 11
DATE (MMM
® EVIDENCE OF PROPERTY INSURANCE 1/20/20DIYYYY>
11/20/2008
ADDITIONAL INTEREST NAMED BELOW. THIS EVIDENCE OF PROPERTY INSURANCE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE
AFFORDED BY THE POLICIES BELOW.
AGENCY (PHONENo. Ezn 760-304-7120 COMPANY
C.
Alliant Insurance Services, Inc. Golden Eagle Ins Co
570 Rancheros Dr, Suite 100 CA,
San Marcos CA 92069
NC Nob19-699-2125 I ADDRESS: jharrington@al1iant insurance.
CODE: I SUB CODE:
CUSTOMER ID#: BR000030
INSURED
Breakfast In The Park
P.O. Box III
Huntington Beac CA 92648
LOCATIONIDESCRIPTION
6622 Lakeview, Huntington Beach, CA 92648
LOAN NUMBER
POLICY NUMBER
CBP9908279
EFFECTIVE DATE EXPIRATION DATE
11/17/2008 11/17 /2009 CONTINUED UNTIL
n TERMINATED IF CHECKED
THIS REPLACES PRIOR EVIDENCE DATED:
THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED.
NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS
EVIDENCE OF PROPERTY INSURANCE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS
SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS.
GUVtKAGtINhVKMATION
COVERAGE I PERILS I FORMS
AMOUNT OF INSURANCE
DEDUCTIBLE
Building, Special Form, Replacement Cost, 90% coinsurance
$257,.830
$1,000
Business Personal Property, Special Form, Replacement Cost, 90% coinsurance
$188,938
$1,000
Business Income With Extra Expense, Actual Loss Sustained, 12 months
12 months
ALS
uuwu
CANCELLATION
SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, THE ISSUING INSURER WILL ENDEAVOR TO
MAIL 30 DAYS WRITTEN NOTICE TO THE ADDITIONAL INTEREST NAMED BELOW, BUT FAILURE TO MAIL SUCH NOTICE SHALL IMPOSE NO OBLIGATION
OR LIABILITY OF ANY KIND UPON THE INSURER, ITS AGENTS OR REPRESENTATIVES.
ADDITIONAL INTEREST
NAME AND ADDRESS
City of Huntington Beach
2000 Main Street
MORTGAGEE
LOSS PAYEE
ADDRIONAL INSURED
LOAN#
Huntington Beach CA 92648
AUTHORIZ REPRESENTATI E
M%'VKU A IcuuotuI I Op ACORD CORPORATION 1993-2006. All rights reserved.
The ACORD name and logo are registered marks of ACORD
INITIATING DEPARTMENT:
Economic Development Department
SUBJECT:
Approve Amendment No. 3 to Lease Agreement
between the City and Alice Gustafson for Alice's
Breakfast in the Park
COUNCIL MEETING DATE;
February 2, 2009
RCA ATTACHMENTS
STATUS
Ordinance (w/exhibits & legislative draft if applicable)
Attached
❑
Not Applicable
Resolution (w/exhibits & legislative draft if applicable)
Attached
❑
Not Applicable
Tract Map, Location Map and/or other Exhibits
Attached
❑
Not Applicable
Contract/Agreement (w/exhibits if applicable)
Attached
(Signed in full by the City Attorney)
Not Applicable
❑
Subleases, Third Party Agreements, etc.
Attached
El
(Approved as to form by City Attorney)
Not Applicable
Certificates of Insurance (Approved by the City Attorney)
Attached
Not Applicable
❑
Fiscal Impact Statement (Unbudgeted, over $5,000)
Attached
❑
Not Applicable
Bonds (If applicable)
Attached
❑
Not Applicable
Staff Report (If applicable)
Attached
❑
Not Applicable
Commission, Board or Committee Report (If applicable)
Attached
❑
Not Applicable
Findings/Conditions for Approval and/or Denial
Attached
❑
Not Applicable
EXPLAHAT�QM FOR fflSSUG /ATTACh;IG�iv ENT
REVIEWED
RET RED
FOR AADED
Administrative Staff
Deputy City Administrator (Initial)
( )
City Administrator (Initial)
( )
( )
City Clerk
( )
FOR RETURN OF ITEW.
Wall dw Space For City Clerk's Use Only)'
RCA Author: T. Krause ext. 1529
City of Huntington Beach
2000 Main Street • Huntington Beach, CA 92648
OFFICE OF THE CITY CLERK
JOAN L. FLYNN
CITY CLERIC
February 4, 2009
Alice Gustafson
Breakfast In The Park
P. O. Box 111
Huntington Beach, CA 92648
Dear Ms. Gustafson:
Enclosed is a duly executed copy of Amendment #3 to the Lease Agreement between the
City of Huntington Beach and Alice Gustafson for the lease of real property commonly
known as Alice's Breakfast in the Park.
Sincerely,
i"I-) +4)
n L. Flynn, CMC
City Clerk
Enclosure: Agreement
JF:pe
U followup:agnntltr
Sister Cities: Anjo, Japan • Waitakere, New Zealand
1 Telephone: 714-536-5227 )
l 0
I�/1.i+hSL �s
Date: October 13, 2008
Subject: COUNCIL MEMBER ITEM FOR OCTOBER 20, 2008, CITY
COUNCIL MEETING — TWO YEAR EXTENSION OF ALICE'S
BREAKFAST IN THE PARK LEASE
STATEMENT OF ISSUE:
Alice's Breakfast in the Park (since 1980) has been an institution in Huntington Beach
for over 28 years. Alice's in short is the epitome of a "Mom and Pop" operation that
makes it unique and therefore almost impossible to replicate by another operator. Prior
to the current location at Central Park, Alice Gustafson and her husband operated
another restaurant on the pier, End of the Pier Cafe, from 1976 until the pier and
restaurant were destroyed in 1988. The owner, Alice Gustafson, has requested to
continue to operate Alice's Restaurant "as is" for a final two more years, retiring in
September of 2010.
Alice's has developed extensive business goodwill over the past three plus decades.
This goodwill has been demonstrated by their many loyal customers via the 1,900
signatures on the petition presented and the 20 "public comment" speakers that
attended the October 6th City Council meeting. By allowing an orderly transition from
Alice's to a new tenant in 2010, it is anticipated that the new tenant may be able to
continue the tradition of Alice's Breakfast in the Park. The loss of the goodwill at this
juncture could lead to an unintended "pushback" on any new tenant if the proposed
extension is not granted, simply by reason that the current customers may feel Alice's
was not treated fairly given their long history in the city. This proposed two-year
extension can be key to the continued success of the current and future restaurant
operation, and as a result the customer base is more likely to continue supporting the
future new tenant, thereby nullifying any potential loss from continuing the existing
percentage rent. As stated, Alice will need to meet minimum repairs and maintenance
on the building, also justifying the lower percentage rent.
This will require the monthly spraying of the building for termites by Alice's, with proof of
the service being sent to the Economic Development Department. In addition, Alice's
will be required to meet the City's insurance requirements.
lola�o /C-�; 00 r
Council Member Item for October 20, 2008, City Council Meeting —
Two Year Extension of Alice's Breakfast in the Park Lease
Page 2
October 13, 2008
Concurrently it is requested that City staff be directed to continue the current "Request
for Qualification" process to select a new future tenant at this Central Park location.
Should a qualified current proposer be selected and willing to continue negotiations
under this proposed prolonged timeline, staff should then negotiate a lease and process
any required building/permit/entitlement concurrently with the goal of commencing
construction improvements immediately after the termination of Alice's Restaurant
(September 15, 2010), and ideally having the new operation commence business
summer of 2011.
RECOMMENDED ACTION:
1. Direct the Economic Development Department to prepare a lease extension for
Alice's Breakfast in the Park to expire in September 2010 and to continue with the
current Request for Qualification process with the newly proposed timeframe.
xc: Fred Wilson, City Administrator
Paul Emery, Deputy City Administrator
Bob Hall, Deputy City Administrator
Joan Flynn, City Clerk
Stanley Smalewitz, Economic Development Director
Jim Engle, Community Services Director
Z
Council/Agency Meeting Held: 20 - 00
boo �s
Def /Continued to: 2- (�-` �C
7>�4
Approved ❑ Conditionally Approved ❑ Denied
_
PA - y CI
k' Signaturer_ - -�
Council Meeting Date: November 20, 2000
Department ID Number: QAS 007043
CITY OF HUNTINGTON BEACH
REQUEST FOR ACTION
SUBMITTED TO: HONORABLE MAYOR AND CITY COUNCIL MEMBERS
SUBMITTED BY: RAY SILVER, City Administrator
PREPARED BY: CLAY MARTIN, Interim Director of Adminstrative Services
2
SUBJECT: APPROVE AMENDMENT NO `1 OF THE LEASE AGREEMENT
BETWEEN THE CITY OF HUNTINGTON BEACH AND ALICE
GUSTAFSON, D/B/A BREAKFAST IN THE PARK
Statement of Issue, Funding Source, Recommended Action, Alternative Action(s), Analysis, Environmental Status, Attachment(s)
Statement of Issue: Should Council approve and authorize the Mayor and City Clerk to
execute Amendment No. 1 to the Lease Agreement, dated August 21, 1995, between the
City of Huntington Beach and Alice Gustafson, d/b/a Breakfast in the Park?
Funding Source: Under Amendment No.'' and using the last 12 months net sales, the City
would receive approximately $30,000 less rent revenue per year for the next two (2) years.
Recommended Action:
1. Approve and authorize the Mayor and City Clerk to execute Amendment No. 1 to the
Lease Agreement, dated August 21, 1995, between the City of Huntington Beach and
Alice Gustafson, d/b/a Breakfast in the Park.
Alternative Action(s): 2
1) Do not approve Amendment No. "11,, to t17L Lease Agreement.
2) Direct staff to revise Amendment No. 1. and reconsider at a future date.
J
REQUEST FOR ACTION
MEETING ®ATE: November 20, 2000 DEPARTMENT I® NUMBER: AS 00-043
Analysis:
The building structure which the City provides to Alice Gustafson, the lessee, to run the
Breakfast in the Park business was built over 30 years ago and barely complys with the
minimum health and safety codes due to the facility being beyond its depreciated life of 25
years. The structure since it was built has had minimal reinvestment by the City to maintain
the roof, exterior siding, -structural components, and utility connections and has fallen into a
state of terminal disrepair due to the lack of a consistent maintenance program. The City, as
the lessor, is obligated to maintain the core building components in a good condition.
The proposed amendment to the lease agreement reduces the amount of rent the City will
receive from approximately $48,000 to $18,000 (or a reduction of $30,000) per year for the
next two years. Further, this amendment is in lieu of a five (5) year extension the City would
execute with Alice Gustafson to retain her as the operator while the City finalizes its decision
whether to rebuild the structure. The City, by the amendment, receives two main benefits: ,
(1) The responsibility to maintain and repair the building will be shifted from the City to
the Lessee and the Lessee for the next two years will be required to make the
needed siding repairs, exterior painting, termite extermination, etc. The repairs, at a
minimum, are estimated to be over $20,000.
(2) The City will abate any relocation or business closure expenses it would incur if and
when the City rebuilts the structure. By signing a two year agreement rather than a
standard five year extension, the Lessee has agreed to continue to operate this park
amenity and use any difference to sustain the business during the typical 1 year
construction window. The potential goodwill and relocation expenses, at a minimum,
are estimated to be over $80,000.
The City, by the amendment, is not obligated to rebuild the structure at the end of the two
year period. However, if the City does not rebuild, the City should at that time consider
closing or removing the structure.
Environmental Status: None
Attachment(s):
R
9
2
AMENDMENT NO."I, TO LEASE AGREEMENT
BETWEEN THE CITY OF HUNTINGTON BEACH
AND ALICE GUSTAFSON
THIS AMENDMENT No."f s made and entered into this 4th day of December
2000, by and between THE CITY OF HUNTINGTON BEACH, a municipal corporation of the
State of California (hereinafter referred to as "LESSOR"), and ALICE GUSTAFSON
(hereinafter referred to as "LESSEE").
WHEREAS, LESSOR and LESSEE are parties to a Lease Agreement, effective February
1, 1995, entitled "LEASE AGREEMENT BETWEEN THE CITY OF HUNTINGTON BEACH
AND ALICE GUSTAFSON," which Lease is hereinafter referred to as "the Lease Agreement;"
and
LESSOR and LESSEE wish to amend the Lease Agreement to more provide for a change
in the amount of rent to be paid thereunder by LESSEE to the LESSOR,
NOW, THEREFORE, the parties covenant and agree as follows:
1. AMENDMENT OF SECTION 6 ENTITLED "RENT"
Section 6 of the Lease Agreement, entitled "Rent," is hereby amended to read as follows:
SECTION 6. RENT
LESSEE agrees to pay to LESSOR as rent for the use and occupancy of
said Premises a sum equal to the following percentages of the amount of gross
sales as defined in this Article, made each month by LESSEE in, on or from said
Premises.
Annual Sales Volume Percentage Rate
$1.00 - $100,000 5%
$100,001-$200,000 6%
$200,001 plus 7%
The rent specified in this section shall be paid by LESSEE to LESSOR at
2000 Main Street, Huntington Beach, California, 92648, or at such other place or
places as LESSOR may from time to time designate by written notice delivered to
LESSEE, within fifteen (15) days after the end of the calendar month during
which the gross sales on which it was computed were made.
2
g:4:2000Agree:Alice Gustafson Amendment No.�1 (version 1.1)
rls 00-294
11-15-2000
2. AMENDMENT OF SECTION 15 ENTITLED "MAINTENANCE"
Section 15 of the Lease Agreement, entitled "Maintenance", is hereby amended to read as
follows:
SECTION 15. MAINTENANCE
LESSEE shall, at her own cost and expense, maintain in reasonable condition and
repair the items and work as follows, but not limited to:
Exterior roof
Exterior walls
Painting of the exterior and interior of the Premises
All windows/glass
Removal of Graffiti
Repairs of damage caused by vandalism
Rugs and carpeting
Tenant improvements
Electrical, downflow of circuit breaker
LESSOR shall promptly be reimbursed by LESSEE for the full cost of any such
repairs made by LESSOR, if any.
LESSEE shall at her own cost and expense keep and maintain all portions of said
Premises as well as all improvements on said Premises and all facilities appurtenant to said
Premises in good order and repair and in as safe and clean a condition as they were when
received by LESSEE from LESSOR, reasonable wear and tear excepted.
3. TERM
This amendment is effective as of July 1, 2000. The term of the Lease Agreement shall
expire on October 31, 2002. If the term of the Lease Agreement is extended beyond October 31,
2002 by mutual agreement of the parties as provided herein, LESSOR may thereafter terminate
the Lease Agreement upon thirty (30) days prior written notice to LESSEE.
4. AMENDMENT OF SECTION 3 ENTITLED "OPTION TO EXTEND"
Section 3 of the Lease Agreement, entitled "Option to Extend," is hereby amended to
read as follows:
SECTION 3. OPTION TO EXTEND
Lessee is hereby granted and shall, if not then in default under this lease, have an
option to extend the term of this lease for a single additional period of six months by mutual
agreement only from the expiration date of this lease, exercisable by LESSEE with LESSOR'S
approval, by and through the City Administrator, upon no less than thirty (30) days prior written
% 2
g*2000Agree:Alice Gustafson Amendment No. `], (version 1.1)
r1s 00-294
11-15-2000
I
NOV-,15-E'UCIO 16,-'54 FROM; C-3-t5TRFEI-t4 BROTHERS 7145470742 T 0 - 714 �-1-U F . M3row
P�A1-15-20�3C3 16:43 CITY OF HUNTINGTON PEACH 714 :374 1S90 P.04
notice on the same tents, covenants and conditions mid subject to the same cxccpticQs and
reservations contained M this base.
Except w specifically modified harein, all ether Ums and conditions of the original
Ixw- Agrmment shall remain in fiffl farce and effect.
IN WTrNESS WHMEOF, the pales hmL4a have ram this AgMMCM t€1 be executed
by and through their authorized offices the day, nwnth and year first eve written.
ATI TEST: 1
**�
CITY OF HUNTMOTON REACH, a
municroal corporation of the State of California
4�
vor
APPROVED AS TO FORM:
City Attorney
!!ND APPROVED: WIILA- TfiD _ APFIROVED'
� m mstrEtor Director o r dim3P.. tivc scm'ces
2
1t-Z Ao-w-,'6 Qot:3 `L --ii AT- a&revi tin.l C'wmlon'7 1.1)
11-13-20W
9
T."sr_`GV'SAt Ct l�tiSE
RCA ROUTING 91HEET
INITIATING DEPARTMENT:
Administrative Services
SUBJECT:
APPROVE AMENDMENT NO. 1 BETWEEN THE CITY
SAND ALICE GUSTAFSON, BREAKFAST IN THE PARK
COUNCIL MEETING DATE:
November 20, 2000
RCA ATTACHMENTS:
STATUS
Ordinance (w/exhibits & legislative draft if applicable)
Not Applicable
Resolution (w/exhibits & legislative draft if applicable)
Not Applicable
Tract Map, Location Map and/or other Exhibits
Not Applicable
Contract/Agreement (w/exhibits if applicable)
(Signed in full by the City Attorney)
Not Attached (Explain)
Subleases, Third Party Agreements, etc.
(Approved as to form by City Attorney)
Not Applicable
Certificates of Insurance (Approved by the City Attorney)
Not Applicable
Financial Impact Statement (Unbudget, over $5,000)
Not Applicable
Bonds (If applicable)
Not Applicable
Staff Report (If applicable)
Not Applicable
Commission, Board or Committee Report (If applicable)
Not Applicable
Findings/Conditions for Approval and/or Denial
Not Applicable
EXPLANATION FOR MISSING ATTACHMENTS
Waiting for Paul D'Alessandro to return to the office 11/15 to sign the agreement in final
form.
EXPLANATION FOR RETURN: OF ITEM:
0 1LC:-M7 � �R
2000 MAIN STREET CALIFORNIA 92648
OFFICE OIL THE CITY CLERK
CONNIE BROCKWAY
CITY CLERK
LETTER OF TRANSMITTAL OF ITEM APPROVED BY THE CITY COUNCIL/
REDEVELOPMENT AGENCY OF THE CITY OF HUNTINGTON BEACH
DATE:
TO:
Name
Street
City, State, Zip
ATTENTION:
DEPARTMENT:
REGARDING:
See Attached Action Agenda Item Date of Approval
Enclosed For Your Records Is An Executed Copy Of The Above Referenced Agenda Item.
Remarks:
Connie Brockway
City Clerk
Attachments: Action Agenda Page
Agreement
Bonds
Insurance
RCA
Deed
Other
CC:
Name
Department
RCA
Agreement
Insurance Other
Name
Department
RCA
Agreement
Insurance Other
Name
Department
RCA
Agreement
Insurance Other
Name
Department
RCA
Agreement
Insurance Other
Risk Management Dept.
Insurance
(Telephone: 714-536.5227 )
C0c q �r� lam(?emu rz 1
s
Council/Agency Meeting Held:
Deferred/Continued to:„7�
¢
\�pproved ❑ Conditionally Approved ❑ Denied
V City Clerk's Signature
Council Meeting Date: March 18, 1996
Department ID Number: CS 96-016
CITY OF HUNTINGTON BEACH
REQUEST FOR COUNCIL ACTION
SUBMITTED TO: HONORABLE MAYOR AND CITY COUNCIL MEMBERS
SUBMITTED BY: MICHAEL T. UBERUAGA, City Administrator
PREPARED BY: RON HAGAN, Director, Community Services
SUBJECT: AMENDMENT TO BREAKFAST IN THE PARK LEASE AGREEMENT
Statement of Issue, Funding Source, Recommended Action, Alternative Action(s), Analysis, Environmental Status, Attachment(s)
Statement of Issue: The recently approved lease agreement for operation of Breakfast in
the Park food concession in Huntington Central Park needs clarification language inserted
regarding rent and gross sales.
Funding Source: Not applicable.
Recommended Action: Approve Amendment No. 1 to Lease Agreement between the City
of Huntington Beach and Alice Gustafson for operation of Breakfast in the Park, and
authorize the Mayor to execute same.
Alternative Action(s): Do not amend language of Breakfast in the., Park agreement.
Analysis: During the preparation of the lease agreement with Alice Gustafson for the
operation of Breakfast in the Park, the words "cumulative annuaf'were inadvertently left out
of Section 6. RENT, and Section 10. STATEMENT OF GROSS SALES. Mrs. Gustafson has
agreed to the attached amendment which inserts these words into the lease agreement.
Without these words, the lease is unclear on the time period for the sales volume and
percentage rents.
Attachment(s):
Amendment No. 1 to Lease Agreement with Alice Gustafson
A
AMENDMENT NO. 1
TO LEASE AGREEMENT BETWEEN THE
CITY OF HUNTINGTON BEACH AND ALICE GUSTAFSON
1.9
THIS AMENDMENT is made and entered into the day of , 1996,
by and between the CITY OF HUNTINGTON BEACH, a California municipal corporation,
hereinafter referred to as `CITY," and ALICE GUSTAFSON, (hereinafter referred to as
"LESSEE").
WHEREAS, CITY and LESSEE are parties to a Lease Agreement, effective February
1, 1995, entitled "Lease Agreement Between the City Of Huntington Beach and Alice
Gustafson" and
CITY and LESSEE wish to amend certain sections of the Lease Agreement to more
precisely define the intent of the parties,
NOW, THEREFORE, it is agreed by CITY and LESSEE.as follows:
SECTION 6. RENT shall read as follows:
LESSEE agrees to pay to LESSOR as rent for the use and occupancy of said
Premises a sum equal to the following percentages of the amount of the cumulative
annual gross sales as defined in this Article, made each month by LESSEE in, on or
from said Premises.
Annual Sales Volume Percentage Rate
$1.00 - $100,000 10.5%
$100,001 - $200,000 12.5%
$200,001 - plus 14.5%
The rent specified in this section shall be paid by LESSEE to LESSOR at 2000
Main Street, Huntington Beach, California, 92648, or at such other place or places as
LESSOR may from time to time designate by written notice delivered to LESSEE, within
fifteen (15) days after the end of the calendar month during which the cumulative
annual gross sales on which it was computed were made. A late charge equal to one
and one-half percent (1 %%) per month shall be added on the 10th day after any
payment hereunder is due, but unpaid.
2. SECTION 10. STATEMENT OF GROSS SALES shall read as follows:
At the time specified in Section 6 of this lease for the payment of the rent
specified in that section, LESSEE shall deliver to LESSOR a true and accurate
statement signed by LESSEE or by an authorized employee of LESSEE showing the
total gross sales made during the preceding calendar month in, on, or from said
Premises and the amount of rent then being paid calculated on the cumulated annual
E
3/k/aliceam&2/22/96
J
gross sales pursuant to this lease. LESSOR may at any time within three (3) years
after receiving any such statement, at her own cost and expense, cause all books,
records, and cash register tapes described in Section 9 of this lease for the calendar
month purportedly covered by the statement to be audited by a public or certified public
accountant selected by LESSOR. LESSEE shall on receiving written notice of
LESSOR's desires for such an audit deliver and make available all such books,
records, and cash register tapes to the public or certified public accountant selected by
LESSOR. Furthermore, LESSEE shall promptly on demand reimburse LESSOR for the
full cost and expense of the audit should the audit disclose that the questioned
statement understated gross sales or the rent payable because of gross sales by five
(5) percent or more.
3. TERM
These amendments are effective as of February 1, 1996, and run through the term of
the original Lease Agreement.
4. REAFFIRMATION
Except as specifically modified herein, all other terms and conditions of the original
Lease Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by and through their authorized offices the day, month and year first above written.
i
S cS`
ALICE GUSTAFSON
TEST:
City Clerk
REVIEWED AND APPROVED:
City Administrator
CITY OF HUNTINGTON BEACH, A
municipal corporation of the State of
California
r� `
Mayor
ATTEST:
City Clerk
APPROVED AS TO FORM:
JP--t- -D- (, 14 6
(ter at Attorney,ILI 2lz�4�f6
INITIATE fANID APPROVED:
DireuKdr of r#mmunity Services
3/k/aliceamd/2/23/96
t BEACH
CITY OF _ • {
2000 MAIN STREET
OFFICE OF THE CITY CLERK
CONNIE BROCKWAY
CITY CLERK
August 24, 1995
Ms. Alice Gustafson
P. O. Box 111
Huntington Beach, CA 92648
CALIFORNIA 92648
The City Council of the City of Huntington Beach at their meeting held August 21, 1995,
approved the "Lease Agreement Between the City of Huntington Beach and Alice
Gustafson".
Enclosed is a copy of the,executed agreement for your records. If you have any
questions regarding this matter, please call the City Clerk's Office at (714) 536-5227.
Connie Brockway
City Clerk
Evelyn Schubert
Deputy City Clerk
Enclosures
cc: Robert Franz, Deputy City Administrator
County Assessor's Office, Attn: Possessory Interest Department
g:\-95cbmem\95-139cc
(Telephone: 714.536.5227 )
III
Council/Agency Meeting Held: I?
Deferred/Continued to:
Approved ❑ Conditionally Approved ❑ Denied 6bity Clerk's Signature'
Council Meeting Date: August 211995 Department ID Number: AS-95-018
CITY OF HUNTINGTON BEACH
REQUEST FOR COUNCIL/REDEVELOPMENT AGENCY ACTION
SUBMITTED TO: HONORABLE MAYOR AND CITY COUNCIL MEMBERS
SUBMITTED BY: MICHAEL T. UBERUAGA, City Administrator/Executive'Di
PREPARED BY: ROBERT J. FRANZ, Deputy City Admini
SUBJECT: "ALICE'S BREAKFAST IN THE PARK"
Statement of Issue, Funding Source, Recommended Action, Alternative Action, Analysis, Environmental Status,
Statement of Issue: The renewal of a park concession lease between Alice Gustafson,
dba, "Alice's Breakfast in the Park" as Lessee and the City of Huntington Beach as Lessor.
A new term of five (5) years is proposed, with three five (5) year options if mutually agreed
by concessionaire and the City Council.
Step Increase Rents as follows:
$ 1 to 100, 000
$100, 000 to 200, 000
$200,000 - Plus
Funding Source: None
10.5%
12.5%
14.5%
Recommended Action: Approve the lease with Alice Gustafson, dba "Alice's Breakfast, in
the Park" and authorize Mayor and City Clerk to sign Lease Agreement.
REQUEST F®R COUNCIL/RE®EVEL®PMENT AGENCY ACTION
MEETING ®ATE: August 21,1995 DEPARTMENT I® NUMBER: AS-95-018
Analysis: Mrs. Alice Gustafson has been associated with the city's "Alice's Breakfast in
the Park" concession since she and her husband John, now deceased, leased this location
July 1, 1982 for a 5 year period. Since that time Mrs. Gustafson has operated this attractive
and popular restaurant successfully. With the City's approval of this new lease, Mrs.
Gustafson will proceed with certain needed improvements.
This stepped lease, with renewed terms which are in line with the current concession lease
market, will continue proven good service to the public and maximize profitability for the City.
This lease will further enable the concessionaire to continue improving the present City
owned facility
Environmental Status: n/a
Attachment(s):
Proposed Lease Agreement
RCAALICE.DOC -2- 07/17/95 4:24 PM
REQUEST FOR COUNCIL/REDEVELOPMENT AGENCY ACTION
MEETING DATE: August 2.4,1995 DEPARTMENT ID NUMBER: AS-95-018
ALICE'S BREAKFAST IN THE PARK @ 15%
Year Sales Revenue to City
1992 $258,435.06
1993 $260, 323.53
1994 $2361907.60
$38,765.26
$39,048.53
$35,536.14
RCAALICE.DOC -3- 07/14/95 11:59 AM
LEASE AGREEMENT BETWEEN THE CITY OF
HUNTINGTON BEACH AND ALICE GUSTAFSON
TABLE OF CONTENTS
Page
1. DESCRIPTION OF PREMISES
1
2. ORIGINAL TERM
1
3. OPTION TO EXTEND
1
4. TERMS AND CONDITIONS
2
5. HOLD OVER
2
6. RENT
2
7. GROSS SALES DEFINED
3
8. GROSS SALES EXCLUSIONS
4
9. BOOKS AND RECORDS
4
10. STATEMENT OF GROSS SALES
5
11. PERMITTED USE
5
12. PAYMENT OF UTILITY CHARGES
6
13. PERSONAL PROPERTY TAXES
6
14. REAL PROPERTY TAXES
6
15. MAINTENANCE BY LESSEE
7
16. MAINTENANCE OF SHOW WINDOW GLASS
7
17. ALTERATIONS AND LIENS
8
18. INSPECTION BY LESSOR
9
19. SURRENDER OF PREMISES
9
20. INSTALLATION AND REMOVAL OF TRADE FIXTURES
9
21. TRADE FIXTURES AS SECURITY FOR LEASE
9
22. UNREMOVED TRADE FIXTURES
10
23. SIGNS
10
24. PARTIAL DESTRUCTION
11
25. TOTAL DESTRUCTION
11
26. INSURANCE PROCEEDS
12
27. ABATEMENT OF RENT
12
28. CONDEMNATION COMPENSATION
12
29. RELOCATION AND ASSISTANCE
13
30. SUBLEASING OR ASSIGNING AS BREACH
13
31. ABANDONMENT BY LESSEE
14
32. DEFAULT BY LESSEE
15
33. INSOLVENCY OF LESSEE
15
34. CUMULATIVE REMEDIES
16
35. WAIVER OF BREACH
16
36. FORCE MAJEURE - UNAVOIDABLE DELAYS
16
37. CARE OF PREMISES - MAINTENANCE DEPOSIT
16
38. SECURITY DEPOSIT
17
39. EMERGENCY CLOSING OR CLOSING
17
40. DELIVERIES OF SUPPLIES
18
41. PARKING
18
42. NOTICE
18
43. LESSEE'S RIGHT TO RENEGOTIATE
18
44. INSURANCE HAZARDS
19
45. WASTE OR NUISANCE
19
46. COMPLIANCE WITH LAW
19
47. BINDING ON HEIRS
20
49. PARTIAL INVALIDITY
20
49. SOLE AND ONLY AGREEMENT
20
50. TIME OF ESSENCE
20
51. INDEMNIFICATION/HOLD HARMLESS
20
52. WORKERS COMPENSATION
21
53. INSURANCE
21
54. TERMINATION OF PRIOR LEASE
23
6/alice/4/18/95
Pam'
LEASE AGREEMENT BETWEEN
THE CITY OF HUNTINGTON BEACH
AND ALICE GUSTAFSON
THIS AGREEMENT is made and entered into thisL/4/day of _ , 1995, by
and between THE CITY OF HUNTINGTON BEACH, a municipal corporation of the State of
California (hereinafter referred to as "LESSOR"), and ALICE GUSTAFSON, (hereinafter
referred to as "LESSEE").
WHEREAS, LESSOR owns certain real property (hereinafter referred to as the
"Premises"), in the City of Huntington Beach, and LESSEE desires to lease the aforesaid
Premises in the manner set forth below.
NOW, THEREFORE, the parties covenant and agree as follows:
SECTION 1. DESCRIPTION OF PREMISES
LESSOR hereby leases to LESSEE that certain real property commonly known and
described as ALICE'S BREAKFAST IN THE PARK, located in the City of Huntington Beach,
and as outlined on the attached map marked as Exhibit A.
SECTION 2. ORIGINAL TERM
This lease shall be for a term of five (5) years commencing at 12:01 A.M. on February
1, 1995, and ending at 12:01 A.M. on January 30, 2000, unless sooner terminated as herein
provided.
SECTION 3. OPTION TO EXTEND
LESSEE is hereby granted and shall, if not then in default under this lease, have an
option to extend the term of this lease for an additional period of three five (5) year extensions
by mutual agreement only from the expiration of this lease, exercisable by LESSEE with City
Council approval upon no less than six (6) months prior written notice, on the same terms,
6/k/atice/4/1 a/95
covenants, and conditions and subject to the same exceptions and reservations contained in
this lease. The City Council's approval to LESSEE's exercise of an option to extend the term
of this lease shall not be withheld if LESSEE is, at the time of the exercise of an option, in full
compliance with the terms of this lease.
SECTION 4. TERMS AND CONDITIONS
LESSOR may upon three (3) days notice in writing to LESSEE for rent and thirty (30)
days notice in writing to LESSEE for covenants, terminate this agreement and the lease
granted herein without liability to the LESSOR in the event of failure of LESSEE to comply with
any of the terms or conditions or agreements hereof, or when public necessity so requires.
In the event of termination, LESSEE shall be allowed fifteen (15) days after notice
within which to cure the failure or default which gave rise to such termination; provided, further
that if the nature of LESSEE's default is such that more than fifteen (15) days are reasonably
required for its cure, then LESSEE shall not be deemed to be in default if LESSEE
commences such cure within said fifteen (15) day period and thereafter diligently prosecutes
such cure to completion.
SECTION 5. HOLD OVER
Should LESSEE hold over and continue in possession of said Premises after expiration
of the terms of this lease or any extension thereof, LESSEE's continued occupancy of said
Premises shall be considered a month -to -month tenancy subject to all the terms and conditions
of this lease.
SECTION 6. RENT
LESSEE agrees to pay to LESSOR as rent for the use and occupancy of said Premises'
a sum equal to the following percentages of the amount of gross sales as defined in this
Article, made each month by LESSEE in, on or from said Premises.
2
6/k/alice/4/18/95 Vl�
Sales Volume
$1.00 - $100,000
$100,001 - $200,000
$200,001 - plus
Percentage Rate
10.5%
12.5%
14.5%
The rent specified in this section shall be paid by LESSEE to LESSOR at 2000 Main
Street, Huntington Beach, California, 92648, or at such other place or places as LESSOR may
from time to time designate by written notice delivered to LESSEE, within fifteen (15) days
after the end of the calendar month during which the gross sales on which it was computed
were made. A late charge equal to one and one-half percent (1 %%) per month shall be added
on the 10th day after any payment hereunder is due, but unpaid.
SECTION 7. GROSS SALES DEFINED
For the purposes of this Article, the term "gross sales" shall mean the total selling price
of all merchandise or services sold or rendered in, or property rented on, or from said Premises
by LESSEE, her sublessees, licensees, or concessionaires, whether for cash or on credit, and
if on credit whether or not paid, and shall include, without limitation:
(a) Proceeds from all automatic vending, weighing, and other machines
owned and operated by LESSEE in or on said Premises;
(b) Commissions received by LESSEE from such automatic vending,
weighing, and other machines not owned by LESSEE but operated in or on said
Premises;
(c) Commissions received by LESSEE from the operation of public
telephones in or on said Premises;
3
6/k/alice/4/18/95
(d) Proceeds from sales based on orders solicited or taken from, in, or on
said Premises for merchandise or services to be delivered or rendered off, or from
sources outside, said Premises.
SECTION 8. GROSS SALES EXCLUSIONS
Notwithstanding the provisions of Section 7 of this lease, the term "gross sales" shall
not include the following items, and such items may be deducted from "gross sales" to the
extent they have been included therein or have been included in a prior computation of "gross
sales" on which a percentage rental has been paid under this lease to LESSOR:
(a) Any sales or excise taxes otherwise includable in "gross sales" as
defined in this Article become part of the total selling price of merchandise or services
rendered in, from, or on said Premises where LESSEE must account for and remit the
taxes to the government entity or entities by which they are imposed; and
(b) Any transfer of merchandise from said Premises to the manufacturer or
supplier from whom it was obtained by LESSEE.
SECTION 9. BOOKS AND RECORDS
LESSEE shall at all times keep or cause to be kept on the said Premises full, complete,
and accurate records and books of account showing the total amount of gross sales as
defined in this Article made each calendar month in, on, or from said Premises. Furthermore,
LESSEE shall at the time of sale and in the presence of the customer cause the full selling
price of each piece of merchandise and each service rendered in, on, or from said Premises to
be recorded in a cash register or cash registers that have cumulative totals and are sealed in a
manner approved by LESSOR. LESSEE agrees to maintain on said Premises for a period of
three (3) years following the close of each calendar month all records and books of account
4
6/k/alice/4/18/95
and all cash register tapes showing or in any way pertaining to the gross sale made in, or from
said Premises during such calendar month.
SECTION 10. STATEMENT OF GROSS SALES
At the time specified in Section 6 of this lease for the payment of the rent specified in
that section, LESSEE shall deliver to LESSOR a true and accurate statement signed by
LESSEE or by an authorized employee of LESSEE showing the total gross sales made during
the preceding calendar month in, on, or from said Premises and the amount of rent then being
paid calculated on such gross sales pursuant to this lease. LESSOR may at any time within
three (3) years after receiving any such statement, at her own cost and expense; cause all
books, records, and cash register tapes described in Section 9 of this lease for the calendar
month purportedly covered by the statement to be audited by a public or certified public
accountant selected by LESSOR. LESSEE shall on receiving written notice of LESSOR's
desires for such an audit deliver and make available all such books, records, and cash register
tapes to the public or certified public accountant selected by LESSOR. Furthermore, LESSEE
shall promptly on demand reimburse LESSOR for the full cost and expense of the audit should
the audit disclose that the questioned statement understated gross sales or the rent payable
because of gross sales by five (5) percent or more.
SECTION 11. PERMITTED USE
The Premises are let for the purpose of operation of a park concession for the sale of
merchandise, food, and other such uses as may from time to time be approved in writing by
LESSOR. LESSOR reserves the right to prohibit the sale of any item or article which is
objectionable or beyond the scope of the merchandise necessary for proper service to the
public or public. safety. The prices for the merchandise sold shall be fixed by LESSEE, and
LESSOR reserves the right to establish and revise a schedule of maximum prices for any or all
5
6/k/alice/4/18/95
items sold or rented to the public by LESSEE; provided, however, that such schedule of
maximum prices established by LESSOR shall be reasonable and in accordance with the best
interests of the public, the LESSEE, and the LESSOR.
SECTION 12. PAYMENT OF UTILITY CHARGES
LESSEE shall pay, and hold LESSOR and the property of LESSOR free and harmless
from, all charges for the furnishing of gas, water, electricity, telephone services, and other
public utilities to said Premises during the term of this lease or any extension thereof and for
the removal of garbage and rubbish from said Premises during the term of this lease or any
extensions thereof.
SECTION 13. PERSONAL PROPERTY TAXES
LESSEE shall pay before they become delinquent all taxes, assessments, or other
charges levied or imposed by any governmental entity on the furniture, trade fixtures,
appliances, and other personal property placed by LESSEE in, on, or about said Premises
including, without limiting the generality of the other terms used in this section, any shelves,
counters, vaults, vault doors, wall safes, partitions, fixtures, machinery, plant equipment, office
equipment, television or radio antennas, or communication equipment brought on said
Premises by LESSEE.
SECTION 14. REAL PROPERTY TAXES
All real property taxes or possessory interest taxes and assessments levied or
assessed against said Premises by any governmental entity, shall be paid, before they
become delinquent by LESSEE.
6
SECTION 15. MAINTENANCE
LESSOR shall, at her own cost and expense, maintain in good condition and repair the
items as follows:
Exterior roof
Exterior walls
Structural supports
Sewers
Foundation of said Premises
Electrical from power pole to circuit breaker
Installation of gas service to the Premises, up to the meter.
LESSEE shall, at her own cost and expense, maintain in good condition and repair the
items and work as follows:
Painting of the interior of the Premises
Painting of the exterior of the Premises
All windows/glass
Removal of Graffiti
Repairs of damage caused by vandalism
Rugs and carpeting
Tenant improvements
Electrical, downflow of circuit breaker
LESSOR shall promptly be reimbursed by LESSEE for the full cost of any such repairs
made by LESSOR.
Except as otherwise expressly provided in Section 15 and 16 of this lease, LESSEE
shall at her own cost and expense keep and maintain all portions of said Premises as well as
all improvements on said Premises and all facilities appurtenant to said Premises in good order
and repair and in as safe and clean a condition as they were when received by LESSEE from
LESSOR, reasonable wear and tear also excepted.
SECTION 16. MAINTENANCE OF SHOW WINDOW GLASS
LESSEE shall, at her own cost and expense, repair and replace any glass in any show
window on said Premises that becomes broken regardless of cause, including show window
7
6/k/afice/4/18/95
glass that is broken by fire, by act of God, except by fault of LESSOR, or by fault of some
employee or agent of LESSOR. Furthermore, LESSEE shall at her own cost and expense at
all times during the term of this lease carry adequate plate glass insurance on the glass in all
show windows on said Premises to perform the repair and replacement requirements of this
section. Should LESSEE fail to repair or replace any glass broken in a show window or fail to
maintain adequate plate glass insurance on the glass in show windows on said Premises,
LESSOR may replace or repair the broken glass or secure such insurance and LESSEE will
promptly reimburse LESSOR for the cost thereof and pay LESSOR interest on such costs at
the rate of ten (10) percent per annum from the date the costs were.incurred by LESSOR to
the date they are reimbursed to LESSOR by LESSEE.
SECTION 17. ALTERATIONS AND LIENS
LESSEE shall not make or permit any other person to make any alterations to said
Premises or to any improvement thereon or facility appurtenant hereto without the written
consent of LESSOR first had and obtained, unless such alteration is at a cost of under
$5,000.00. LESSEE shall keep the Premises free and clear from any and all liens, claims, and
demands for work performed, materials furnished, or operations conducted on such Premises
at the instance or request of LESSEE. Furthermore, any and all alterations, additions,
improvements, and fixtures, except furniture and trade fixtures, made or placed in or on said
Premises by LESSEE or any other person shall on expiration or sooner termination of this
lease become the property of LESSOR and remain on said Premises provided, however, that
LESSOR shall have the option on expiration or sooner termination of this lease of requiring
LESSEE, at LESSEE's sole cost and expense, to remove any or all such alterations, additions,
improvements, or fixtures from said Premises.
8
6/k/alice/4/20/95 `
SECTION 18. INSPECTION BY LESSOR
LESSEE shall permit LESSOR or LESSOR's agents, representatives, or employees to
enter said Premises at all reasonable times for the purpose of inspecting said Premises to
determine whether LESSEE is complying with the terms of this lease and for the purpose of
doing other lawful acts that may be necessary to protect LESSOR's interest in said Premises
under this lease or to perform LESSOR's duties under this lease.
SECTION 19. SURRENDER OF PREMISES
On expiration or sooner termination of this lease, or any extensions or renewals of this
lease, LESSEE shall promptly surrender and deliver said Premises to LESSOR in as good
condition as they are now at the date of this lease, reasonable wear and tear and repairs
herein required to be made by LESSOR excepted.
SECTION 20. INSTALLATION AND REMOVAL OF TRADE FIXTURES
LESSEE shall have the right at any time and from time to time during the term of this
lease and any renewal or extension of such term, at LESSEE's sole cost and expense, to
install and affix in, to, or on said Premises such items, herein called "trade fixture", for use in
LESSEE's trade or business as LESSEE may, in her sole discretion, deem advisable. Any and
all such trade fixtures that can be removed without structural damage to said Premises or any
building or improvements on said Premises shall, subject to Section 21 of this lease, remain
the property of the LESSEE and may be removed by LESSEE at any time prior to the
expiration or sooner termination of this lease.
SECTION 21. TRADE FIXTURES AS SECURITY FOR LEASE
Subject to and to be subordinated to any security interest which LESSEE may give to
any leading institution and/or financing source for the purpose of obtaining financing for the
purchase of trade fixtures and equipment or the operation of said Premises, LESSEE hereby
9
6/k/alice/4/18/95
grants to LESSOR a security interest in all trade fixtures and equipment owned by LESSEE
and now or hereafter placed on said Premises by LESSEE as security for the faithful
performance of all the terms, conditions and covenants of this lease to be performed by
LESSEE. Any rights or rights of removal of trade fixtures given LESSEE by the provisions of
Section 20 of this lease shall be exercisable only if, at the time of removal, LESSEE is not in
default in performance of this lease. LESSEE may, however, at any time she is not in default
in performance of this lease, trade in or replace any trade fixture free of the security interest
created by this section and this security interest will then attach to the item that replaced such
trade fixture. On default in performance of any obligation of this lease to be performed by
LESSEE, LESSOR shall immediately have as to the trade fixtures the remedies provided to a
secured parry under the Uniform Commercial Code as enacted in the State of California.
SECTION 22. UNREMOVED TRADE FIXTURES
Any trade fixtures described in this Article that are not removed from said Premises by
LESSEE within thirty (30) days after the expiration or sooner termination, regardless of cause,
of this lease shall be deemed abandoned by LESSEE and shall automatically become the
property of LESSOR as owner of the real property to which they are affixed and not simply
because of the lien described in Section 21 of this lease.
SECTION 23. SIGNS
LESSEE shall not place nor maintain, nor permit any other person to place or maintain,
on or in any exterior door, wall, or window of said Premises any sign, awning, canopy,
marquee, or other advertising without the express written consent and approval of LESSOR.
Furthermore, LESSEE shall not place any decoration, lettering, or advertising matter on the
glass of any interior or exterior shop window of said Premises without the written approval and
consent of LESSOR. Should LESSOR consent to any such sign, awning, canopy, marquee,
10
6/k/alice/4/18/95 '
V.
decoration, or advertising matter, LESSEE shall maintain it at all times during this lease in
good appearance and repair. On expiration or sooner termination of this lease, any of the
items mentioned in this section not removed from said Premises by LESSEE on such
expiration or termination of this lease may, without damage or liability, be destroyed by
LESSOR. This lease is expressly contingent upon approval of all signs by both LESSOR and
LESSEE.
SECTION 24. PARTIAL DESTRUCTION
Should said Premises of the building on said Premises be partially destroyed by any
cause not the fault of LESSEE or any person in or about said Premises with the consent,
express or implied, of LESSEE, this lease shall continue in full force and effect and LESSOR,
at LESSOR's own cost and expense, shall promptly commence and diligently continue and
complete the work of repairing and restoring said Premises to their prior condition providing
such work can be accomplished under all applicable governmental laws and regulations within
one hundred eighty (180) working days; provided, however, LESSEE may terminate this Lease
if LESSEE gives LESSOR written notice of LESSEE's intention to do so within sixty (60) days
following such a partial destruction.
SECTION 25. TOTAL DESTRUCTION
Should said Premises or the building on said Premises be so far destroyed by any
cause not the fault of LESSEE or any person in or about said Premises with the consent,
express or implied, of LESSEE that they cannot be repaired or restored to their former
condition within one -hundred eighty (180) working days, LESSOR may, at LESSOR's option:
(a) Continue this lease in full force and effect by repairing and restoring, at
LESSOR's own cost and expense, said Premises to their former condition; or
(b) Terminate this lease by giving LESSEE written notice of such termination.
6Ac/alice/4/18/95 11
(c) LESSEE may, however, terminate this Lease if LESSEE gives LESSOR written
notice of LESSEE'sintention to do so within sixty (60) days following such total destruction.
SECTION 26. INSURANCE PROCEEDS
Any insurance proceeds received by LESSOR because of the total or partial
destruction of said Premises or the building on said Premises shall be the sole property of
LESSOR, except LESSEE shall be compensated for loss to leasehold improvements and
fixtures beyond any and all insurance proceeds including business interruption insurance
which would ordinarily flow to the benefit of LESSEE.
SECTION 27. ABATEMENT OF RENT
Should LESSOR elect under Section 25 of this lease or be required under Section 24
of this lease to repair and restore said Premises to their former condition following partial or full
destruction of said Premises or the building on said Premises:
(a) LESSOR shall have full right to enter said Premises and take possession
of so much of said Premises, including the whole of said Premises, as may be
reasonably necessary to enable LESSOR promptly and efficiently to carry out the work
of repair and restoration; and
(b) The percentage rent described in Section 24 of this lease shall be not
abated for the time LESSEE is prevented from using the whole of said Premises
SECTION 28. CONDEMNATION COMPENSATION
All compensation and damages awarded for a total taking of the PREMISES shall
belong to and be the sole property of LESSOR, and LESSEE shall have no claim to any
amount or part of any award except, however, that LESSEE shall be entitled to receive the
portion of any award attributable to the taking of those leasehold improvements and fixtures
that LESSEE has the right to remove under this lease but does not remove from the
12 ;,
6/k/alice/4118/95
PREMISES; or when LESSEE does remove the fixtures or improvements, a reasonable
amount for removal and relocation expenses, provided that amount does not exceed the
market value of the improvements and fixtures.
This Lease shall have no condemnation value to LESSEE.
SECTION 29. RELOCATION AND ASSISTANCE
In the event this lease is terminated for any legal reason by LESSOR, LESSEE shall
not be entitled to any relocation rights or benefits and, except those itemized in Section 28,
expressly waives such benefits and rights under City, State or Federal Relocation Assistance
Plans. LESSEE shall be entitled to receive non -monetary relocation benefits and LESSOR
shall make every effort possible to relocate LESSEE to another available comparable site.
However, if another comparable site is not available upon which to relocate LESSEE, then, in
that event, LESSEE shall have no rights to receive monetary assistance and/or monetary
benefits.
SECTION 30. SUBLEASING OR ASSIGNING AS BREACH
LESSEE shall not encumber, assign, or otherwise transfer this lease, any right or
interest in this lease, or any right or interest in said Premises or any of the improvements that
may now or hereafter be constructed or installed on said Premises without the express written
consent of LESSOR first had and obtained. Neither shall LESSEE sublet said Premises or
any part thereof or allow any other person, other than LESSEE's agents, servants, and
employees, to occupy said Premises or any part thereof without the prior written consent of
LESSOR. A consent by LESSOR to one assignment, one subletting, or one occupation of
said Premises by another person shall not be deemed to be a consent to any subsequent
assignment, subletting, or occupation of said Premises by another person. Any encumbrance,
assignment, transfer, or subletting without the prior written consent of LESSOR, whether it be
13
6/k/alice/4118/95
voluntary or involuntary, by operation of law or otherwise, is void and shall, at the option of
LESSOR, terminate this lease. The consent of LESSOR to any encumbrance, assignment
including occupation or transfer hereof of LESSEE's interest in this lease or the subletting by
LESSEE of said Premises or parts of said Premises shall not be unreasonably withheld;
however, LESSOR shall have the right of first refusal to meet any bona fide offer of
assignment, sale, sublease or transfer of LESSEE's interest in this Lease on the same terms
and conditions of such offer and, agrees to exercise or refuse such right in writing within thirty
(30) days of notice by LESSEE. Such right shall not apply, however, to assignments,
transfers, or sublettings to immediate family members .of LESSEE, a family trust, or to any
corporate entity of which LESSEE, or any of LESSEE's immediate family, are sole
stockholders.
If LESSOR does not exercise this right, LESSOR shall approve LESSEE's request for
assignment, sale, sublease, or transfer provided that LESSEE is not in default at the time of
request.
SECTION 31. ABANDONMENT BY LESSEE
Should LESSEE breach this lease and abandon said Premises prior to the natural
expiration of the term of this lease, LESSOR may:
(a) Continue this lease in effect by not terminating LESSEE's right to
possession of said Premises, in which event LESSOR shall be entitled to enforce all
her right and remedies under this lease, including the right to recover the rent specified
in this lease as it becomes due under this lease;
(b) Terminate this lease and recover from LESSEE:
(1) The worth at the time of award of the unpaid rent which had been
earned at the time of termination of the lease;
14
6/k/aRW4118/95
(2) The worth at the time of award of the amount by which the
unpaid rent which would have been earned after termination of the lease until the time
of award exceeds the amount of rental loss that LESSEE proves could have been
reasonably avoided;
(3) The worth at the time of award of the amount by which the
unpaid rent for the balance of the term of this lease after the time of award exceeds the
amount of rental loss that LESSEE proves could be reasonably avoided; and
(4) Any other amount necessary to compensate LESSOR for all
detriment proximately caused by LESSEE's failure to perform her obligations under this
lease.
SECTION 32. DEFAULT BY LESSEE
Should LESSEE default in the performance of any of the covenants, conditions, or
agreements contained in this lease, LESSEE shall have breached the lease and LESSOR
may, in addition to the remedy specified in the subparagraph (b) of Section 35 of this lease, re-
enter and regain possession of said Premises in the manner provided by the laws of unlawful
detainer of the State of California then in effect.
SECTION 33. INSOLVENCY OF LESSEE
The insolvency of LESSEE as evidenced by a receiver being appointed to take
possession of all or substantially all of the property of LESSEE, or the making of a general
assignment for the benefit of creditors by LESSEE, or filing a petition in bankruptcy shall
terminate this lease and entitle LESSOR to re-enter and regain possession of said Premises.
15
6/k/alice/4/18/95 . vl_�
SECTION 34. CUMULATIVE REMEDIES
The remedies given to LESSOR in this Article shall not be exclusive but shall be
cumulative and in addition to all remedies now or hereafter allowed by law or elsewhere
provided in this lease.
SECTION 35. WAIVER OF BREACH
The waiver by LESSOR of any breach by LESSEE of any of the provisions of this lease
shall not constitute a continuing waiver or a waiver of any subsequent breach by LESSEE
either of the same or another provision of this lease.
SECTION 36. FORCE MAJEURE - UNAVOIDABLE DELAYS
Should the performance of any act required by this lease to be performed by either
LESSOR or LESSEE be prevented or delayed by reason of an act of God, strike, lockout,
labor troubles, inability to secure materials, restrictive governmental laws or regulations, or any
other cause except financial inability not the fault of the party required to perform the act, the
time for performance of the act will be extended for a period equivalent to the period of delay
and performance of the act during the period of delay will be excused; provided, however, that
nothing contained in this section shall excuse the prompt payment of rent by LESSEE as
required by this lease or the performance of any act rendered difficult solely because of the
financial condition of the party, LESSOR or LESSEE, required to perform the act.
SECTION 37. CARE OF PREMISES - MAINTENANCE DEPOSIT
(a) LESSEE shall paint, stain or seal the Premises' wood, trim, etc., a
minimum of every five years, unless it is mutually determined by LESSOR and
LESSEE, that such work shall be needed sooner than five years. All exterior metal
surfaces shall be painted no less than once each year except the roof.
16
6/k/alice/4/18/95 //
(b) Any and all graffiti shall be removed by LESSEE at her own expense
from the leased Premises within forty-eight (48) hours of notice thereof.
(c) LESSEE shall not obstruct, cause or permit any obstruction surrounding
the Premises or any part thereof in any manner whatsoever.
(d) LESSEE shall comply with all written notice served by LESSOR with
regard to the care and maintenance of the Premises.
Any written notice hereunder shall specify the work to be done, the estimated cost
thereof, and the period of time deemed to be reasonably necessary for completion of such
work. Should LESSEE fail to comply with LESSOR's written notice within fifteen (15) days, or
within a time deemed reasonably necessary of the time specified therein, LESSEE shall pay
over to LESSOR the estimated cost of such work as set forth in the notice. Upon receipt of
such sum, LESSOR shall then proceed to cause the required work to be performed.
SECTION 38. SECURITY DEPOSIT
Upon execution hereof, LESSEE shall continue to maintain at all times hereunder, a
security deposit with LESSOR as previously deposited in a sum of One Thousand Dollars
($1,000) to guarantee the repair and maintenance of the leased Premises as provided
hereinabove. Such deposit may be in the form of cash or an assignment of certificate of
deposit or savings account. The form of any such assignment shall be approved by the City
Attorney. The interest accrued on said deposit shall be paid to LESSEE annually.
SECTION 39. EMERGENCY CLOSING OR CLOSING TO EFFECT
REPAIR/REMODELING THE PREMISES.
LESSOR may close the park without liability therefore at any time it deems necessary
for the protection of life, limb or property, or upon reasonable notice to effect any repair,
remodeling or rebuilding deemed necessary by LESSOR.
17
6/k/atice/4/1 s/s5
SECTION 40. DELIVERIES OF SUPPLIES.
LESSOR shall establish the days and times deliveries of supplies may be made and
advise LESSEE in writing thereof.
SECTION 41. PARKING.
LESSEE shall be permitted to erect signs at the twenty (20) parking spaces adjacent to
the restaurant, which signs shall indicate parking for restaurant patrons on Saturdays, Sundays
and holidays.
LESSOR shall establish the days and times when LESSEE's and LESSEE's employees
and number of automobiles, trucks, and other motorized and non -motorized vehicles may park
and where and advise LESSEE in writing thereof.
SECTION 42. NOTICE.
Any written notice, given under the terms of this agreement, shall be either delivered
personally or mailed, certified mail, postage prepaid, addressed to the party concerned, as
follows:
CITY OF HUNTINGTON BEACH:
Mr. Ron Hagan
Director of Community Services
City of Huntington Beach
2000 Main Street, P.O. Box 190
Huntington Beach, CA 92648
LESSEE:
Ms. Alice Gustafson
P.O. Box 111
Huntington Beach, CA 92648
SECTION 43. LESSEE'S RIGHT TO RENEGOTIATE LEASE.
If, in the event, LESSOR shall at some future time within the term of this lease or any
extension thereof, redevelop the immediate area on which said Premises is situated, or the
immediate adjacent surrounding area thereto, to the extent that one or more new eating
facilities are constructed and situated either on said immediate area or adjacent thereto, and,
18
6/k/aliceAM/95 /
in such event, LESSEE can demonstrate that such has or will cause her to be detrimentally
affected thereby, then, in such event, LESSEE shall have the right to request that the terms,
conditions, and provisions of this lease be renegotiated. The parties agree that each shall deal
with the other in good faith.
SECTION 44. INSURANCE HAZARDS.
LESSEE shall not commit or permit the commission of any acts on said Premises nor
use or permit the use of said Premises in any manner that will increase the existing rates for or
cause the cancellation of any fire, liability, or other insurance policy insuring said Premises or
the improvements on said Premises. LESSEE shall, at her own cost and expense, comply
with any and all requirements of LESSOR's insurance carriers necessary for the continued
maintenance at reasonable rates of fire and liability insurance policies on said Premises and
the improvements on said Premises.
SECTION 45. WASTE OR NUISANCE.
LESSEE shall not commit or permit the commission by others of any waste on said
Premises; LESSEE shall not maintain, commit, or permit the maintenance or commission of
any nuisance as defined in Section 3479 of the California Civil Code on said Premises; and
LESSEE shall not use or permit the use of said Premises for any unlawful purpose.
SECTION 46. COMPLIANCE WITH LAW.
LESSEE shall at LESSEE's own cost and expense comply with all statutes, ordinances,
regulations, and requirements of all governmental entities, both federal and state and county
or municipal, relating to LESSEE's use and occupancy of said Premises whether such
statutes, ordinances, regulations, and requirements be now in force or hereinafter enacted.
The judgment of any court of competent jurisdiction, or the admission by LESSEE in a
proceeding brought against LESSEE by any government entity, that LESSEE has violated any
19
6/k/alice/4/18/95 Y`{(
such statute, ordinance, regulation, or requirement shall be conclusive as between LESSOR
and LESSEE and shall be ground for termination of this lease by LESSOR.
SECTION 47. BINDING ON HEIRS AND SUCCESSORS.
This lease shall be binding on and shall inure to the benefit of the heirs, executors,
administrators, successors and assigns of the parties hereto.
SECTION 48. PARTIAL INVALIDITY.
Should any provision of this lease be held by a court of competent jurisdiction to be
either invalid, void, or unenforceable, the remaining provisions of this lease shall remain in full
force and effect unimpaired by the holding, so long as the reasonable expectations of the
parties hereto are not materially impaired.
SECTION 49. SOLE AND ONLY AGREEMENT.
This instrument constitutes the sole and only agreement between LESSOR and
LESSEE respecting said Premises, the leasing of said Premises to LESSEE, or the lease term
herein specified, and correctly sets forth the obligations of LESSOR and LESSEE to each
other as of its date. Any agreements or representations respecting said Premises or their
leasing by LESSOR to LESSEE not expressly set forth in this instrument are null and void.
SECTION 50. TIME OF ESSENCE.
Time is expressly declared to be the essence of this lease.
SECTION 51. INDEMNIFICATION, DEFENSE, HOLD HARMLESS
LESSEE shall indemnify and save and hold harmless LESSOR, its officers and
employees, from any and all liability, including any claim of liability and any and all losses or
costs arising out of the negligent performance of this agreement by LESSEE, her officers or
employees or from any willful misconduct of LESSEE, her officers or employees while
engaged in the performance of this agreement.
6/k/alice/4118/95 20
SECTION 52. WORKERS' COMPENSATION
LESSEE shall comply with all of the provisions of the Workers' Compensation
Insurance and Safety Acts of the State of California, the applicable provisions of Division 4 and
5 of theCalifornia Labor Code and all amendments thereto; and all similar state or federal acts
or laws applicable; and shall indemnify, defend and hold harmless LESSOR from and against
all claims, demands, payments, suits, actions, proceedings and judgments of every nature and
description, including attorney's fees and costs presented, brought or recovered against
LESSOR, for or on account of any liability under any of said acts which may be incurred by
reason of any work to be performed by LESSEE under this Agreement.
LESSEE shall obtain and furnish evidence to LESSOR of maintenance of statutory
workers' compensation insurance and employers' liability in an amount of not less than
$500,000 bodily injury by accident, each accident, $500,000 bodily injury by disease, each
employee, and $1,000,000 bodily injury by disease, policy limit.
SECTION 53. INSURANCE
In addition to the workers' compensation insurance and LESSEE's covenant to
indemnify LESSOR, LESSEE shall obtain and furnish to LESSOR the following insurance
policies covering the PREMISES:
(a) General Liability Insurance. A policy of general public liability
insurance, including motor vehicle coverage. Said policy shall indemnify LESSEE, her officers,
agents and employees, while acting within the scope of their duties, against any and all claims
of arising out of or on or in connection with the Premises, and shall provide coverage in not
less than the following amount: combined single limit bodily injury and property damage,
including products/completed operations liability and blanket contractual liability, of $1,000,000
per occurrence and in the annual aggregate. Said policy shall name LESSOR, its officers, and
21 f
sndaiiceiarzoiss � v
employees as Additional Insureds, and shall specifically provide that any other insurance
coverage which may be applicable to the PREMISES shall be deemed excess coverage and
that LESSEE'S insurance shall be primary.
(b) Fire Insurance. In order that the business of LESSEE and the gross
sales of LESSEE as defined in this lease may continue with as little interruption as possible,
LESSEE shall, during the full term of this lease and any renewals or extensions thereof,
maintain at LESSEE'S own cost and expense an insurance policy issued by a reputable
company authorized to conduct insurance business in California insuring for their full insurable
value all fixtures and equipment and, to the extent possible, all merchandise that is, at any
time during the term of this lease or any renewal or extension thereof, in or on the Premises
against damage or destruction by fire, theft, or the elements.
LESSEE shall also maintain in force during the entire term of this agreement, a
standard broad form fire insurance policy in which the LESSOR is named and which any and
all losses are made payable to LESSOR. The face amount of the policy shall be for ninety
(90) percent of the replacement value of the Premises, and be in a form acceptable to the City
Attorney.
REST OF PAGE NOT USED
22
6/k/alice/4/18/95
SECTION 54. TERMINATION OF PRIOR LEASE
Concurrently with the parties' execution of this Lease, the previous Lease for this
Premises, executed in or about 1987 by LESSOR and LESSEE's deceased husband, shall be,
and the same hereby is, terminated.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by and through their authorized officers the day, month and year first above written.
LESSEE:
ALICE GUSTAFSON
ATTEST:
City Clerk
LESSOR:
CITY OF HUNTINGTON BEACH, a municipal
corporation of the State of California
'.
Mayor
APPROVED AS T . FORM:
City Attorney
6/k/alice/4/18/95
23
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I -,.:y-94 p__': 3�'PM PI.1
REQUEA FOR CITY COUNCIL ACTION
Submitted to: The Honorable Mayor
Submitted by: Michael T. Uberuaga,
Prepared by: Ron Hagan, Director,
Subject: PARKING REQUEST FOR
6/7/gs -
Consistent with Council Policy?
Date
June :.7, 1993
and City Council
City Administrator
or
ALICE'S BREAKFAST IN THE PARK
APPROVED By CITY COUNCIL
[ ] Yes [ ] New Policy or Excep ion
Statement of Issue, Recommendation, Analysis, Funding Source, Alternative
STATEMENT OF ISSUE b/0413. �� �,w'at a:�s +tiw dais. .,+.��w✓
eloft a &ftz (.• At w:o. l�ww.ae �!/at t -tee.. Lam +•
The city ha received A request from the concessionaire at
Breakfast in the Park to designate twenty parking spaces adjace�n'jt`��
to the restaurant in Huntington Central Park for restaurant
patrons parking during specified timesi.
RECOMMENDATION
Approve allowing the city's concessionaire for Alice's Breakfast
in the Park to post signage designating twenty parking spaces
next to the restaurant in Huntington Central Park for the use of
patrons of Alice's Breakfast in the Park on Saturdays, Sundays
and holidays between the hours of 7 AM and noon.
ANALYSIS
The city has received a request for patron parking from a
representative of Alice Gustafson, who is the operator of
Breakfast in the Park restaurant in Huntington Central Park. The
concessionaire indicates that there is limited parking available
for her patrons during weekend and holiday morning hours. In
order for her to properly serve the general public, she requires
an estimated twenty spaces. Her desire would be to have the
twenty spaces located adjacent to herlrestaurant and Huntington
Lake designated for her patrons. Designating such spaces would
not only serve the general public wholfrequent her restaurant,
but would also mean additional revenue for the city because of
increased business for Alice's Breakfast in the Park. There are
currently a total of ninety-five spaces in this parking lot with
another 130 spaces in the Central Park Drive parking lot.
Staff is recommending allowing the concessionaire to post signage
at the spaces which would read "Reserved For Patrons of Alice's
Breakfast in the Park, Saturday, Sunday and Holidays - 7 a.m. to
Noon." Staff is not recommending that the parking ordinance be
changed; however, the site should be posted with the hope that
there will be voluntary compliance by the public.
PIO 5/85
REQUEST FOR CITY COUNCIL ACTION
ALTERNATIVE ACTION
Page two
1. Do not designate spaces for use by the patrons of Alice's
Breakfast in the Park restaurant.
2. Change the number of spaces from twenty to ten to be
designated for use by the patrons for Alice's Breakfast in the
Park concessionaire.
ATTACHMENT
Bame's May 14 letter regarding Alice's Breakfast in the Park.
Location Map
RH:JBE:am
JEROME M. BAME
ATTORNEY AT LAW
10055 SLATER AVENUE, SUITE 250
FOUNTAIN VALLEY, CALIFORNIA 92708
TELEPHONE (714) 960-4329
FAX (714) 965-7816
May 14, 1993
Mr. Ron Hagan, Director
Community Services
CITY OF HUNTINGTON BEACH
2000 Main Street
Huntington Beach, CA 92648
Re: Request for Reserved Parking Spaces
At ALICE'S BREAKFAST IN THE PARK Restaurant
6622 Lakeview, Huntingtin Beach, California
Dear Mr. Hagan:
This letter follows our meeting on May 12, 1993, and shall serve as a
written request by Alice Gustafson for the reservation of the twenty (20)
parking spaces adjacent to her ALICE'S BREAKFAST IN THE PARK
Restaurant and the Lake at 6622 Lakeview in Huntington Beach for her
restaurant customers.
The reservations of these 20 spaces would be limited solely to
(i) Saturdays between the hours of 7:00 a.m. and 12:00 Noon, (ii) Sundays
between the hours of 7:00 a.m. and 12:00 Noon, and (iii) Holidays between
the hours of 7:00 a.m. and 12:00 Noon.
Mrs. Gustafson would be responsible for appropriate signage, which would
be in accordance with the H.B. Sign Ordinance, to indicate to the public
that those spaces are reserved for restaurant customers on those
specified dates and times. Furthermore, if circumstances warrant and
Mrs. Gustafson is able to do so, she will have an individual in or about the
parking lot site to monitor the parking and inform the general public of
the reservation of those spaces for restaurant customers on those
specified dates and times. However, this monitoring shall not be a
condition, merely permissive, on her part.
e
Mr. Ron Hagan 2 May 14, 1993
We would appreciate your conveying this request through appropriate
channels for proper approval.
Your assistance and the City's courtesy in this regard are most
appreciated by Mrs. Gustafson and those customers desiring to patronize
her restaurant.
JMB:mgw
c: Alice Gustafson
Most cordially,
JEROME M. BAME
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