HomeMy WebLinkAboutHB OUTDOOR BARBECUE AND SNACK, LLC - KATHY MAY & JEFF WHITEFIELD - 2004-07-060 0
CITY OF HUNTINGTON BEACH
2000 MAIN STREET
CALIFORNIA 92648
OFFICE OF THE CITY CLERK
JOAN L. FLYNN
CITY CLERK
LETTER OF TRANS31ITTAL OF ITEM APPROVED BY THE CITY COUNCIL/
REDEVELOPMENT AGENCY OF THE CITY OF HUNTINGTON BEACH
DATE: L1 �t.Ly a ,,_o2oO
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DEPARTMENT:
REGARDING: re 1EWT
See Attached Action Agenda Item 4/O Date of Approval 7 - L — 4
Enclosed For Your Records Is An Executed Copy Of The Above Referenced Agenda Item.
Remarks:
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City Clerk
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Council/Agency Meeting Held:_
Deferred/Continued to:
Approved ❑ Conditionally Approved ❑ Denied _may I: t (.:I rK ff 5lgn t e
Council Meeting Date. July 6, 2004 Departllmen D umber: CSO4-016
CITY OF HUNTINGTON BEACH
REQUEST FOR ACTION %a�/
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SUBMITTED TO: HONORABLE MAYOR AND CI C UN ILLMEIBRS
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SUBMITTED BY: PENNY CULBRE -GRAF , City Administrator° t -
PREPARED BY: JIM B. ENGLE, Director of Community Services
1
CLAY MARTIN, Director of Administrative Services
SUBJECT: APPROVE MANAGEMENT AGREEMENTS WITH KATHY MAY Ak1D JEFF
WHITEFIELD FOR HUNTINGTON CENTRAL PARK SPORTS COMPLIX
CONCESSION "A', AND SANDI VAN AMERSFOORTH FOR
CONCESSION "B» I)
Statement of Issue, Funding Source, Recommended Action, Alternative Action(s), Analysis, Environmental Status, Attachment{s)
Statement of Issue: Should the city approve management agreements with Kathy May
and Jeff Whitefield for sports complex concession "A" and Sandi VanAmersfoorth for
concession "B"?
Funding Source: Annual Revenue to the General Fund: Not Applicable
Recommended Action:
Approve management agreement with Kathy May and Jeff Whitefield for sports concession
"A", and management agreement with Sandi VanAmersfoorth for concession "B", and
authorize the Mayor and City Clerk to execute both agreements.
Alternative Action(s): Do not approve management agreements with Kathy May and
Jeff Whitefield for sports concession "A" or with Sandi VanAmersfoorth for concession "B".
Analysis: As part of the overall master plan for the Huntington Central Park Sports
Complex, Council approved the construction and operation of two concession buildings. In
November 2002 the city staff published a request for proposal (RFP) for the operation and
management of the Central Park Sports Complex concession buildings. Unfortunately, that
process did not result in the city obtaining an acceptable operator for the concessions. In
September 2003, city staff published a request for qualification (RFQ) for the operation and
management of the sports complex concessions. This process yielded four applicants.
All applicants were interviewed and given an opportunity to discuss their background, qualifi-
cations, and ideas for operation of the concessions. After making a site visit to the restau-
r •
REQUEST FOR ACTION
MEETING DATE: July 6, 2004 DEPARTMENT ID NUMBER: CSO4-016
rants operated by each of the applicants, and working with the concessionaires to refine their
operational concepts, staff is recommending two applicants for Council approval.
Concession A (adjacent to Goldenwest Street) - For this location, staff is recommending
Kathy May and Jeff Whitefield (Attachment 'I agreement). This team of experienced
restaurateurs brings (combined) forty-five years of experience. Kathy May is the owner and
operator of Kathy May's Restaurant located in Huntington Beach. Jeff Whitefield is the
founder of the OC Taco House in Huntington Beach and currently operates a food wholesale
and catering business. The concession operated by Kathy May and Jeff Whitefield would
operate under the name of "HB Outdoor BBQ & Snacks". This concession would serve all of
the food items typically found at a park concession along with an outdoor grill serving
barbecued beef sandwiches and hot links.
Concession B (adjacent to Central Library parking lot) - For this location, staff is
recommending Sandi VanAmersfoorth (Attachment 2 agreement). Sandi is the owner and
operator of a Subway franchise located at Garfield and Goldenwest Streets. Sandi has been
the owner and operator of this facility for three and a half years and has been in the
restaurant business for twelve years. The concession operated by Sandi VanAmersfoorth
would be called the "Stadium Club", and would feature Subway sandwiches as well as items
found at a traditional stadium concession stand.
In February of 2002, City Council approved a standard lease to be used when renewing
leases for all beach/park food and rental concessions. All of the terms and conditions
proposed in the attached management agreements are consistent with those found in the
standard lease agreement, with the exception of giving land lease rights to the operators.
The agreements include a payback to the concessionaires of 50 percent or a maximum of
$40,000 for tenant improvements. The concessionaires will make all tenant improvements,
and then receive rent credit beginning in the fourth year and thereafter for a total of five years
to repay the 50 percent or maximum $40,000. This is similar to the terms previously
approved by Council for Zack's Pier Plaza concession.
The Community Services Department, which is the operating department of concessionaire
agreements, along with the Real Estate Services Division of Administrative Services and the
City Attorney's Office recommend the approval of these management agreements.
Attachment(s):
'l Concession A Management Agreement with Kathy May and Jeff
Whitefield
2 Concession B Management Aareement with Sandi VanAmersfoorth
D:1Documents and Settingslreedk\Local Settings\Temporary Internet FileslOLKC104-016 Approve agreements for HCP
sports complex concessions.doc -2- 6123/2004 8:29 AM
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61t /6!'J"o1L. I
MANAGEMENT AGREEMENT BETWEEN THE CITY OF HUNTINGTON BEACH AND
HB OUTDOOR BARBECUE & SNACK, LLC FOR OPERATION OF A FOOD
CONCESSION AT THE HUNTINGTON BEACH SPORTS COMPLEX
Table of Contents
SECTION
PAGE
1
Superseding of Prior Agreement..............................................................................1
2
Grant of Concession on the Premises......................................................................2
3
Reservations, Encumbrances and Rights -of -Way ............................................. ...2
4
Time of Essence.......................................................................................................3
5
Term......................................................................................................... ............3
6
Conditions of Premises as Is....................................................................................3
7
Duration of Public Facilities.....................................................................................4
8
Additions, Alterations and Removal........................................................................4
9
City's Contract Administrator..................................................................................4
10
Rates and Charges.......................................................................................5
11
Late Charge and Penalty..........................................................................................5
12
Gross Sales Defined.................................................................................................6
13
Gross Sales Exclusions............................................................................................7
14
Books and Records................................................................................................8
15
Statement of Gross Sales/Audit............................................................ ...........9
16
Security Deposit...................................................................................................10
17
Use of Coca-Cola Products......................................................................................11
18
Quality of Sales, Rentals and Services....................................................................11
19
Indemnification, Defense and Hold Harmless Agreement......................................12
20
Workers' Compensation and Employers' Liability Insurance..................................13
21
General Public Liability Insurance..........................................................................13
22
Property Insurance....................................................................................................14
23
Increase in Amount of General Public Liability and Property Insurance................16
24
Certificates of Insurance; Additional Insured Endorsements..................................16
25
Insurance Hazards....................................................................................................17
26
Maintenance of Premises.........................................................................................17
27
Operation Charge Credit......................................................................................19
28
Damage, Destruction or Nuisance...........................................................................19
29
Taxes........................................................................................................................20
30
Payments of Obligations ...................................................................................20
31
Utilities and Services...............................................................................................20
32
Business License..................................................................................................21
33
Signs, Advertising and Approval of Name..............................................................21
34
No Assignment or Other Transfer............................................................................22
35
Terms Binding on Successors..................................................................................24
36
Default......................................................................................................................24
37
Remedies..................................................................................................................26
38
Cumulative Remedies.............................................................................................30
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39
40
41
42
43
44
45
46
47
48
49
50
51
52
53
54
55
56
57
58
59
60
61
62
63
64
65
66
67
68
69
70
71
72
73
Waiverof Default....................................................................................................30
City's Defaults/Operator's Remedy..........................................................................31
Consent....................................................................................................................31
Waiverof Claims.....................................................................................................32
Inspection of Premises.............................................................................................32
City's Right to Agreement Buyout...........................................................................33
Photography.............................................................................................................36
Hazardous Substances..............................................................................................36
Nondiscrimination....................................................................................................
37
Sale of Alcoholic Beverages and Entertainment Prohibited....................................39
Liens.....................................................................................................................39
Installation and Removal of Trade Fixtures.............................................................39
Destruction..............................................................................................................40
No Abatement of Operation Charge During Repair Work ......................................41
EminentDomain......................................................................................................41
Relocation and Assistance, Business Goodwill and Leasehold Bonus Value .........
42
Restoration and Surrender of Premises/Title to Improvements...............................43
Force Majeure - Unavoidable Delays......................................................................44
City's Option to Close the Premises............................................................... ........45
Deliveriesof Supplies..........................................................................................
.45
EmployeeParking....................................................................................................45
Conflictof Interest...................................................................................................45
Notice.......................................................................................................................46
Compliancewith Laws............................................................................................46
Interpretation of this Agreement..............................................................................47
Survival....................................................................................................................47
Modification.............................................................................................................48
SectionHeadings.....................................................................................................48
Brokers......................................................................................................:..............48
Independent Contractor............................................................................................48
Attorney's Fees.......................................................................................................48
Legal Services Subcontracting Prohibited...............................................................49
GoverningLaw........................................................................................................49
DuplicateOriginal....................................................................................................49
Entirety.....................................................................................................................49
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MANAGEMENT AGREEMENT BETWEEN THE CITY OF HUNTINGTON BEACH
AND HB OUTDOOR BARBECUE & SNACK, LLC FOR OPERATION OF A FOOD
CONCESSION AT THE HUNTINGTON BEACH SPORTS COMPLEX
THIS MANAGEMENT AGREEMENT (the "Agreement") is made and entered into by
and between the CITY OF HUNTINGTON BEACH, a municipal corporation of the State of
California ("City") and HB OUTDOOR BARBECUE & SNACK, LLC, a California limited
liability company ("Operator").
WHEREAS, City wishes to provide for the management of certain real property (the
"Property"), described as a food concession at the Huntington Beach Sports Complex, located at
1 S 100-A Goldenwest Street, Huntington Beach, California, comprised of the building and
adjacent related improvements as more particularly described below (hereinafter collectively
referred to as the "Improvements"). The term "Premises" as used in. this Agreement shall mean
both the Property and the Improvements. Operator desires to operate and manage the Premises
in the manner set forth below.
NOW, THEREFORE, the parties covenant and agree as follows:
SECTION 1. SUPERSEDING OF PRIOR AGREEMENT
This Agreement shall supersede and replace any existing agreement(s) for the Premises
currently entered into by and between the parties and all supplemental agreement(s) entered into
by and between the parties regarding the existing agreement(s).
SECTION 2. GRANT OF CONCESSION ON THE PREMISES
City, pursuant to the terms of this Agreement, grants to Operator for the purposes stated
herein, the right, privilege and duty to equip, operate and maintain a concession open to the
public located on the Premises (hereinafter sometimes referred to as the "Concession")
Operator shall not use the Premises for any other purpose or business. The legal description of
Sports Complex Concession - HB Outdoor
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the Premises is set forth in Exhibit "A", which is attached and incorporated herein by this
reference. A map depicting the Premises is set forth in Exhibit "$", which is attached hereto
and incorporated herein by this reference. This Agreement is not intended to confer third -party
beneficiary status to anyone, nor shall this Agreement convey any property interest in the
Premises to Operator, nor shall Operator ever assert any such property interest in the Premises.
The Premises may include certain public amenities such as restrooms, picnic tables, or other
similar improvements (the "Public Amenities"). Operator acknowledges that the Public
Amenities are expressly reserved for non-exclusive use and enjoyment by the public at -large, and
Operator will not assert an exclusive right to use and control the Public Amenities.
SECTION 3. RESERVATION OF RIGHTS
City expressly reserves a right to enter upon the Premises with as much advance written,
verbal or electronic notice as possible to Operator for any reason associated with public health,
safety or welfare, or for the protection of life, limb or property. In all other cases unless
otherwise specifically set forth herein, City reserves the right for such entry but City shall give
Operator at least twenty-four (24) hours advance written, verbal or electronic notice. City shall
have a right of reasonable access to the Premises across Operator owned, controlled or occupied
lands adjacent to the Premises, if any, for any purpose associated with this Agreement.
SECTION 4. TIME OF ESSENCE
Time shall be of the essence of this Agreement and each and all of its terms, covenants or
conditions in which performance is a factor.
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SECTION 5. TERM
This Agreement shall commence at 12:01 a.m. on J c.t..t.y (o , 200y, for a ten (10)
year term, which shall end at 11:59 p.m. on %Yut.!j l6 , 20/4, unless extended, or sooner
terminated, as provided for herein.
SECTION 6. CONDITIONS OF PREMISES AS IS
The approval of this Agreement by Operator shall, in itself, constitute acknowledgment
that the Premises are in good and usable condition. Upon execution of this Agreement, Operator
agrees to undertake its obligations under this Agreement with the Premises in their presently
existing condition, "as is", and agrees that City shall not be obligated to make any alterations,
additions or betterments thereto.
SECTION 7. DURATION OF PUBLIC FACILITIES
By entering into this Agreement, City makes no stipulation as to the type, size, location
or duration of public facilities (excluding the Premises), including, without limitation, any City
parking lots to be maintained on property owned, controlled or occupied by City.
SECTION 8. ADDITIONS, ALTERATIONS AND REMOVAL
(a) No modifications, alterations or additions to the Premises, including, without
limitation, construction of Improvements or changes to structural design,
landscape design, or interior or exterior furnishings, shall be constructed or made
by Operator without Operator first obtaining the prior written approval of City,
which will not be unreasonably withheld.
(b) Except as provided under this Agreement, no alteration or removal of existing
Improvements on or natural features of the Premises shall be undertaken without
Operator first obtaining the prior written approval of City.
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(c) Operator's obligation to obtain City's prior written approval is separate and
independent of Operator's obligation to obtain any permits from City, such as,
without limitation, a building permit.
SECTION 9. CITY'S CONTRACT ADMINISTRATOR
City's Director of Community Services, or his or her designee, shall be City's Contract
Administrator for this Agreement with the authority to act on behalf of City for the purposes of
this Agreement, and all City approvals and notices required to be given herein to City shall be so
directed and addressed.
SECTION 10. RATES AND CHARGES
a. Operator agrees to pay to City as charges ("Operation Charge") for the operation
and management of the Premises a sum equal to the following percentages of the amount of
gross sales for "Gross Sales" as defined in Section 12 below:
$0 - $100,000.00 of Gross Sales = 7.5%;
$100,000.01 - $150,000.00 of Gross Sales = 9.5%;
Over $150,000.00 of Gross Sales = 11.5%.
Payment shall be made as follows. Operator shall pay the Operation Charge monthly,
within fifteen (15) calendar days after the end of the month for which the Operation Charge is
being paid, or on the next business day if the fifteenth day falls on a weekend or holiday. All
payments shall be made to City at the City Treasurer's Office, P.O. Box 711, Huntington Beach,
California, 92648, or at such other place or places as City may from time -to -time designate by
written notice delivered to Operator.
b. Commencing in the fourth year of this Agreement, Operator shall be permitted to
deduct from the payment of the Operation Charge the amount of Eight Thousand Dollars
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($8,000A0) ("the Concession Improvement Allowance"), Operator shall be allowed to deduct the
Concession Improvement Allowance during the fourth, fifth, sixth, seventh and eighth years of
this Agreement, Under no circumstances shall the amount deducted pursuant to the Concession
Improvement Allowance exceed Eight Thousand Dollars ($8,000.00) during any particular year,
nor shall the total amount deducted pursuant to the Concession Improvement Allowance exceed
Forty Thousand Dollars ($40,000.00).
SECTION 11. LATE CHARGE AND PENALTY
If the Operation Charge is not received by the City Treasurer within twenty (20) calendar
days after the end of the month for which the Gross Sales Operation Charge is being paid, or the
next business day if the twentieth day falls on a weekend or holiday, Operator shall pay the
following late charge and penalty: (1) a late charge of ten percent (10%) shall be applied to any
outstanding balance after any payment hereunder is due but unpaid; and (2) one and a half
percent (1 %%) penalty per month shall be added for each month the Gross Sales Operation
Charge is due but unpaid.
With respect to any other payments required by Operator, a one and a half percent (1
lh%) penalty per month shall be added for each month such payment hereunder is due but
unpaid.
SECTION 12. GROSS SALES DEFINED
For the purpose of this Agreement, the term "Gross Sales" shall mean the total price of all
merchandise, food and beverages, or services sold or rendered, or equipment rented, in, on, or
from the Premises by Operator, or anyone contracting with Operator, including, without
limitation, its agents or suboperators (collectively or individually, "Operator Party(ies)"),
whether wholesale or retail, whether for cash or on credit, and if on credit whether or not paid,
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and whether in exchange for any other product, commodity, service, commercial paper or
forbearance, and shall include, without limitation, the following:
(a) All revenues, receipts, commissions or proceeds from on-line sales by Operator
Party(ies), and/or from all public telephones, vending, weighing and all other
machines owned, operated, or leased to or by Operator Party(ies) in, on, or from
the Premises;
(b) All revenues, receipts, commissions or proceeds from sales based on orders
solicited or taken, in, on, or from the Premises for merchandise, food and
beverages, or services to be delivered or rendered off, or from sources outside, the
Premises, including, without limitation, all orders taken in, on, or from the
Premises although the orders may be filled elsewhere;
(c) All revenues, receipts, commissions or proceeds from the renting of equipment of
any kind in, on, or from the Premises; and
(d) All revenues, receipts, commissions or proceeds generated from offsite but
delivered through the Concession.
(e) All revenues, receipts, commissions or proceeds made by Operator Party(ies) or
their employees or others acting on their behalf for the rendition of services of any
kind whatsoever, made in, on, or from the Premises.
(f) All other revenues, receipts, commissions or proceeds generated by, arising or
derived whatsoever from the use of the Premises or derived whatsoever from any
business conducted in, on, or from the Premises.
For purposes of computing the Gross Sales figure on which to calculate the Operation
Charge, the amount of Gross Sales shall start over at zero dollars on January 1 of each year. If
b
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the Agreement commences on any date other than January 1, the Gross Sales calculation begins
from such commencement date and runs through December '31 of such Agreement
commencement year.
SECTION 13. GROSS SALES EXCLUSIONS
Gross Sales shall not include the following items, and Operator may deduct such items
from Gros' Sales to the extent they have been included therein or have been included in a prior
computation of Gross Sales on which the Operation Charge has been paid under this Agreement
to City.
(a) Any sales, excise or other taxes otherwise includable in Gross Sales and which
become part of the total price of merchandise, food and beverages, or services
sold or rendered, or equipment rented, in, on, or from the Premises where
Operator must account for and remit the taxes to the government entity or entities
which impose them, but only if such taxes are added to the total price and
collected from customers;
(b) Any transfer of trade inventory from the Premises to the manufacturer or supplier
from whom it was obtained by Operator;
(c) Sales of Trade Fixtures (as defined in Section 51 below);
(d) Sums and credits received in the settlement of claims for loss of or damage to
trade inventory or Trade Fixtures; and
(e) Any sales resulting in a cash or credit refund to a customer in the ordinary course
of business.
Sports Complex Concession - HB Outdoor
SECTION 14. BOOKS AND RECORDS
Operator shall keep true and accurate books and records showing all of its business
transactions in separate records of account for the Concession in a manner acceptable to City,
and City and/or its designated representatives shall have the right, at all reasonable times, to
inspect such books and records including, without limitation, State of California sales or use tax
returns or other State return records, and Operator hereby agrees that all such records and
instruments shall promptly be delivered and made available to City and/or its designated
representatives within thirty (30) days of receiving written request therefor. Operator shall
furnish to City and/or its designated representatives copies of its quarterly California sales and
use tax returns at the time each is filed with the State of California.
The books and records shall show the total amount of Gross Sales made each calendar
month in, on, or from the Premises and any exclusions listed in Section 13 above. All sales and
charges shall be recorded by means of cash registers which display the amount of the transaction
certifying the amount recorded. The register shall be equipped with devices which log in daily
sales totals and which shall record on tapes the transaction numbers and sales details. At the end
of each day the tape shall record the total sales for that day. Operator agrees to maintain on the
Premises, or another location subject to the prior written approval of City, all records, books of
account and cash register tapes, showing, or in any way pertaining to the Gross Sales made in,
on, or from the Premises during such calendar month, including, without limitation, State of
California sales or use tax returns or other State tax returns, for a period of five (5) years
following the close of each calendar month.
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SECTION 15. STATEMENT OF GROSS SALES/AUDIT
At the time specified in Section 10 of this Agreement for the payment of the Operation
Charge, Operator shall. deliver to City a true and accurate statement signed by Operator or by an
authorized employee of Operator showing the total Gross Sales and any exclusions listed in
Section 13 above made during the preceding calendar month and the amount of the Operation
Charge then being paid calculated on such Gross Sales pursuant to this Agreement. The
acceptance by City of any monies paid to City by Operator as the Operation Charge, as shown by
any statement furnished by Operator, shall not be construed as an admission of the accuracy of
the statement, or of the sufficiency of the amount of the Operation Charge payment, and City
shall be entitled to review the adequacy of such payment as set forth herein. By the end of each
January, Operator shall deliver to City a year-end statement showing the total amount of Gross
Sales made in, on, or from the Premises in each month of the preceding year, the total of any
exclusions, the total Operation Charge paid to City for each of those months, all with year-end
totals. City may at any time within three (3) years after receiving the year-end statement, at its
sole cost and expense, cause all records, books of account and cash register tapes for the year
purportedly covered by the statement, to be audited by City or an accountant selected by City.
Operator shall, within thirty (30) days of receiving written notice of City's desire for such an
audit, deliver and make available all such records, books of account and cash register tapes to
City or its designated representative for City's use in the audit and/or for copying. If the audit
discloses that Gross Sales were understated and/or exclusions overstated, Operator shall
immediately pay the additional Operation Charge, together with a penalty thereon from the date
it was due at the penalty rate set forth in Section 11 above. Furthermore, Operator shall
promptly on demand reimburse City for the full cost and expense of the audit should the audit
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disclose that the questioned year-end statement understated Gross Sales (including an
overstatement of exclusions) or the Operation Charge by any amount greater than Two Hundred
Fifty Dollars ($250.00). City further reserves the right to examine and audit all such records,
books of account and cash register tapes at any time during the three (3) year period following
the expiration or termination of this Agreement. -In addition, City shall have the right to enter
upon the Premises during business hours and with two (2) hours advance written, verbal or
electronic notice to Operator to perform any audit or inspection function with respect to this
Agreement.
Operator, its bookkeeper and/or accountant shall respond to all questions and inquiries of
City with respect to the books, records, statements and other documentation being examined, and
shall promptly provide other further documentation as may be required by City, City is entitled
to take statements by deposition under oath of Operator, its officers, bookkeepers and/or
accountants or any person who prepared the books, records, statements and other documentation
required to be provided by Operator under this Agreement.
SECTION 16. SECURITY DEPOSIT
Upon execution hereof, Operator shall pay and maintain at all times during the entire
term of this Agreement or any renewals or extensions thereof or during any holdover period, a
security deposit with City in a sum of not less than Two Thousand Five Hundred Dollars
($2,500.00) to guarantee all of Operator's obligations, liabilities, duties and responsibilities
under the Agreement, including, without limitation, the repair and maintenance of the Premises
as provided herein. Such deposit shall be in the form of a cash bond or an assignment of
certificate of deposit (the "CD") or savings account to City, and shall be provided to the City
Treasurer. The form of any such security deposit shall be approved by the City Attorney and the
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City Treasurer. No interest shall accrue on cash deposits to the benefit of Operator, but interest
shall accrue on a CD or savings account and shall be paid to Operator under the terms of the CD
or savings account. Operator shall send a copy of each renewal of the CD to the City Treasurer
to ensure that City has the records of each active deposit account.
SECTION 17. USE OF COCA -COLA PRODUCTS; NO STYROFOAM
a. Operator shall comply with City's exclusivity agreement with the Coca-Cola
Bottling Company of Southern California ("Coca-Cola") by doing the following: only Coca-
Cola fountain and bottling products shall be bought and sold in, on, or from the Premises for the
term of the City's agreement with Coca-Cola. This includes all carbonated and non -carbonated,
non-alcoholic beverages defined as soft drinks, juices, juice drinks, teas, isotonics, water and
frozen beverages. Frozen beverages shall not include ice creams and frozen yogurts. Operator's
failure to adhere to the Coca-Cola exclusivity clause shall constitute a Default of this Agreement
as defined in Section 36 below. This exclusivity shall not apply to third -party rentals that bring
their own drink products.
b. Operator shall not use, purchase or acquire food service products that are
produced with expandable polystyrene, commonly known as styrofoam. Prohibited products
include, but are not limited to, expandable polystyrene food service items such as cups, plates
containers and trays.
SECTION 18. QUALITY OF SALES, RENTALS AND SERVICES
Operator, at its sole cost and expense, shall equip, operate, manage and maintain the
Premises and Concession and shall keep the same equipped and maintained in a manner
acceptable to City during the entire term of this Agreement or any renewals or extensions thereof
or during any holdover period. It is the intent of City that the Concession's services be provided
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in a manner to meet the needs of the visiting public, and should City deem the Concession's
hours of operation and/or food, merchandise, services or rentals inadequate to meet such needs,
City may require Operator to make such changes requested by City. Operator shall not use or
permit the Premises to be used, in whole or in part, during the entire term of this Agreement or
any renewals or extensions thereof or during any holdover period for any purpose other than as
herein set forth, without the prior written consent of City.
Except as permitted in advance in writing by City, all foods and beverages shall be sold
in disposable paper or plastic containers. No pull -top cans are to be vended or dispensed from
the Premises unless pre -approved in writing by City. Operator, wherever feasible, shall
eliminate the use of non -recyclable containers and plastics. City may from time to time review
the items sold and containers or utensils used or dispensed by Operator. City reserves the right
to prohibit the sale or use of non -recyclable containers or plastics.
City in its sole discretion reserves the right to prohibit Operator's sale, provision or rental
of any item or service rendered or performed, which it deems objectionable or offensive, beyond
the scope deemed necessary for proper service to the public, inappropriate for sale, provision or
rental by the Concession, or of inferior quality. City in its sole discretion reserves the right to
approve or disapprove any menu item for any reason, and hereby authorizes its Contract
Administrator to make such decisions on its behalf.
SECTION 19. INDEMNIFICATION, DEFENSE AND HOLD HARMLESS AGREEMENT
Operator hereby agrees to protect, defend, indemnify and hold harmless City, its officers,
elected or appointed officials, employees, agents and volunteers from and against any and all
claims, damages, losses, expenses, judgments, demands and defense costs (including, without
limitation, costs and fees of litigation (including arbitration) of every nature or liability of any
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kind or nature) arising out of or in connection with (1) the use or occupancy of the Premises by
Operator, its officers, employees or agents, or (2) the death or injury of any person or the damage
to property caused by a condition of the Premises, or (3) the death or injury of any person or the
damage to property caused by any act or omission of Operator, its officers, employees or agents,
or (4) any failure by Operator to keep the Premises in a safe condition, or (5) Operator's (or
Operator's agents and/or suboperators, if any) performance of this Agreement or its failure to
comply with any of its obligations contained in this Agreement by Operator, its officers, agents
or employees except such loss or damage which was caused by the sole negligence or willful
misconduct of City. Operator shall hold all Trade Fixtures, personal property and trade
inventory on the Premises at the sole risk of Operator and save City harmless from any loss or
damage thereto by any cause whatsoever, except such loss or damage which was caused by the
sole negligence or willful misconduct of City. Operator will conduct all defense at its sole cost
and expense and City shall approve selection of Operator's counsel. This indemnity shall apply
to all claims and liability regardless of whether any insurance policies are applicable. The policy
limits do not act as limitation upon the amount of indemnification to be provided by Operator.
SECTION 20. WORKERS' COMPENSATION AND EMPLOYERS' LIABILITY
INSURANCE
Operator acknowledges awareness of Section 3700 et seq. of the California Labor Code,
which requires every employer to be insured against liability for workers' compensation. Operator
covenants that it shall comply with such provisions prior to the commencement of this Agreement.
Operator shall obtain and furnish to City workers' compensation and employers' liability insurance
in amounts not less than the State statutory limits. Operator shall require all suboperators and
contractors to provide such workers' compensation and employers' liability insurance for all of the
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suboperators' and contractors' employees. Operator shall furnish to City a certificate of waiver of
subrogation under the terms of the workers' compensation and employers' liability insurance and
Operator shall similarly require all suboperators and contractors to waive subrogation.
SECTION 21. GENERAL PUBLIC LIABILITY INSURANCE
In addition to the workers' compensation and employers' liability insurance and
Operator's covenant to defend, hold harmless and indemnify City, Operator shall obtain and
furnish to City, a policy of general public liability insurance, including motor vehicle coverage
against any and all claims arising out of or in connection with the Premises. This policy shall
indemnify Operator, its officers, employees and agents, while acting within the scope of their
duties, against any and all claims arising out of 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 One Million Dollars ($1,000,000.00) per occurrence. If coverage is provided under a
form which includes a designated general aggregate limit, the aggregate limit must be no less
than One Million Dollars ($1,000,000.00) for the Premises. This policy shall name City, its
officers, elected or appointed officials, employees, agents, and volunteers as Additional Insureds,
and shall specifically provide that any other insurance coverage which may be applicable to the
Agreement shall be deemed excess coverage and that Operator's insurance shall be primary.
Under no circumstances shall said above -mentioned insurance contain a self -insured
retention, or a "deductible" or any other similar form of limitation on the required coverage.
SECTION 22, PROPERTY INSURANCE
Operator shall provide before commencement of this Agreement and shall obtain and
furnish to City, at Operator's sole cost and expense, property and fire insurance with extended
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coverage endorsements thereon, by a company acceptable to City authorized to conduct
insurance business in California, in an amount insuring for the full insurable value of all
Improvements, Trade Fixtures, personal property whether or not owned or leased by Operator,
and all trade inventory in or on the Premises against damage or destruction by fire, theft or the
elements. This policy shall contain a full replacement cost endorsement naming Operator as the
insured and shall not contain a coinsurance penalty provision. The policy shall also contain an
endorsement naming City as an Additional Insured. The policy shall contain a special
endorsement that such proceeds shall be used to repair, rebuild or replace any such
Improvements, Trade Fixtures, personal property whether or not owned or leased by Operator,
and all trade inventory so damaged or destroyed; and if not so used, such proceeds (excluding
any insurance proceeds for Trade Fixtures, personal property whether or not owned or leased by
Operator, and trade inventory, but only to the extent the insurance proceeds specifically cover
those items) shall be paid to City. The policy shall also contain a special endorsement that if the
Premises are so destroyed triggering the parties' ability to terminate as set forth in Section 52
(Destruction) below, and either party elects to terminate the Agreement, the entire amount of any
insurance proceeds (excluding such proceeds for Trade Fixtures, personal property whether or
not owned or leased by Operator and trade inventory, but only to the extent the insurance
proceeds specifically cover those items) shall be paid to City. The proceeds of any such
insurance payable to City may be used, in the sole discretion of City, for rebuilding or repair as
necessary to restore the Premises or for any such other purpose(s) as City sees fit.
This policy shall also contain the following endorsements:
(a) The insurer shall not cancel or reduce the insured's coverage without (30)
days prior written notice to City;
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(b) City shall not be responsible for premiums or assessments on the policy.
A complete and signed certificate of insurance with all endorsements required by this
Section shall be filed with City prior to the execution of this Agreement. At least thirty (30) days
prior to the expiration or termination of any such policy, a signed and complete certificate of
insurance showing that coverage has been renewed shall be Bled with City.
SECTION 23. INCREASE IN AMOUNT OF GENERAL PUBLIC LIABILITY
AND PROPERTY INSURANCE
Not more frequently than once every two (2) years, if, in the sole opinion of City, the
amount and/or scope of general public liability insurance in Section 21 above and/or property
insurance coverage in Section 22 above at that time is not adequate, Operator shall increase the
insurance coverage as reasonably required by City.
SECTION 24. CERTIFICATES OF INSURANCE, ADDITIONAL INSURED
ENDORSEMENTS
Prior to commencement of this Agreement, Operator shall furnish to City certificates of
insurance subject to approval of the City Attorney evidencing the foregoing insurance coverages
as required by this Agreement; these certificates shall:
(a) provide the name and policy number of each carrier and policy;
(b) shall state that the policy is currently in force; and
(c) shall promise to provide that such policies shall not be canceled or
modified without thirty (30) days' prior written notice of City; however ten (10)
days' prior written notice in the event of cancellation for nonpayment of
premium, which I 0-day notice provision shall not apply to property insurance in
Section 22 above.
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Operator shall maintain the foregoing insurance coverages in force during the entire term
of the Agreement or any renewals or extensions thereof or during any holdover period.
The requirement for carrying the foregoing insurance coverages shall not derogate from
Operator's defense, hold harmless and indemnification obligations.as set forth in this Agreement.
City or its representatives shall at all times have the right to demand the original or a copy of any
or all the policies of insurance. Operator shall pay, in a prompt and timely manner, the
premiums on all insurance hereinabove required.
SECTION 25. INSURANCE HAZARDS
Operator shall not commit or permit the commission of any acts on the Premises nor use
or permit the use of the Premises in any manner that will increase the existing rates for, or cause
the cancellation of any liability, property, or other insurance policy for the Premises or required
by this Agreement. Operator shall, at its sole cost and expense, comply with all requirements of
any insurance carrier providing any insurance policy for the Premises or required by this
Agreement necessary for the continued maintenance of these policies at reasonable rates.
SECTION 26. MAINTENANCE OF PREMISES
Operator's maintenance responsibilities of the Premises shall include, but not be limited
to, maintaining all sewers and drain lines, roofs and attached public restrooms (if they exist);
provided, however, that City shall provide the sanitary supplies for such restrooms, such as hand
soap, bathroom tissue, and the like. Operator agrees to maintain the Premises in good order and
repair, at Operator's sole cost and expense, during the entire term of this Agreement or any
renewals or extensions thereof or during any holdover period, pursuant to the City's maintenance
standards. A copy of the quarterly evaluation summary sheet setting forth the City's
maintenance checklist is attached as Exhibit "C", and incorporated herein by this reference.
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Except as provided above, Operator, at its sole cost and expense, shall perform any maintenance
and repairs including, without limitation, facility maintenance and landscape maintenance on the
Premises.
Operator's obligation includes, without limitation, maintaining and operating the
Premises in a clean, safe, wholesome and sanitary condition free of trash, garbage or obstructions
of any kind and in compliance with any and all present and future laws, general rules or
regulations of any governmental authority now, or at any time during the entire term of this
Agreement or any renewals or extensions thereof or during any holdover period, in force,
relating to sanitation or public health, safety or welfare, or for the protection of life, limb or
property; and Operator shall at all times faithfully obey and comply with all laws, rules and
regulations applicable thereto. Operator, at its sole cost and expense, shall remedy without delay
any defective, dangerous or unsanitary condition(s) caused by Operator or anyone related
thereto. Provided, however, that Operator shall have no obligation to repair or maintain sewer
lines or respond to sewer leaks.
Operator shall paint, stain or seal the Premises' exterior surfaces a minimum of every
three (3) years, unless City determines in its sole discretion that such work shall be done on a
more frequent basis. All exterior metal surfaces, except the roof, shall be painted with rust
resistant paint no less than once every other year. Any and all graffiti on the Premises shall be
removed by Operator, at its sole cost and expense, within forty-eight (48) hours of Operator
receiving notice thereof or of Operator becoming aware of such graffiti. In addition, with or
without notice from City, Operator shall, at its sole cost and expense, repair and/or replace any
broken glass within forty-eight (48) hours of its becoming broken, regardless of cause, except by
fault of City. Except as provided above for graffiti and broken glass, Operator, at its sole cost
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and expense and with or without notice from City, shall repair and/or replace all damage or
destruction to the Premises caused by act(s) of vandalism as soon as possible but in no event
later than fourteen (14) days after the date such damage or destruction occurred. Operator, at its
sole cost and expense, shall repair and/or replace all other damage or destruction to the Premises,
regardless of cause, except by fault of City.
Operator shall comply with all written notices served by City with regard to the care and
maintenance of the Premises. Any written notice hereunder shall specify the work to be done
and the period of time deemed to be reasonably necessary for completion of such work. Should
Operator fail to commence making the necessary repairs within seven (7) days after receiving
such notice, or within twenty-four (24) hours of the glass becoming broken in the case of broken
glass, or fail to diligently proceed to complete the necessary repairs within the period of time
reasonably specified in the City's notice, or within forty-eight (48) hours of the glass becoming
broken in the case of broken glass, or within the forty-eight (48) hour time period for removing
graffiti, or within fourteen (14) days of the date that the vandalism damage or destruction
occurred, City shall proceed to cause the required work to be performed, and Operator shall
promptly reimburse City for the cost of labor and materials thereof and pay City a penalty on
such costs at the penalty rate set forth in Section 11 above from the date the costs were incurred
by City to the date they are reimbursed to City by Operator.
Operator hereby expressly waives the right to make repairs at the expense of City and the
benefit, if any, of the provisions of Sections 1941 and 1942 of the California Civil Code relating
thereto.
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SECTION 27. OPERATION CHARGE CREDIT
City in its sole discretion may decide to give Operator a credit against the Operation
Charge if Operator undertakes (1) any repair or maintenance obligation of City under this
Agreement, (2) any work City in its sole discretion deems necessary and appropriate, or (3) any
Operator improvements. Prior to Operator undertaking any such work, City must agree in
writing to the amount of and procedures for the credit, the work to be done by Operator and the
cost of such work. Upon approval by the City Administrator, the Credit may be in the form of a
rebate of up to Fifty Percent (50%) of Operator's cost for such improvements. No such credit will
be considered by City unless and until all liens for labor or materials, if any, have been
unconditionally released. If approved, any such credit will be applied in equal monthly
increments over the base term of this Agreement.
SECTION 28. DAMAGE DESTRUCTION OR NUISANCE
Operator shall not commit or permit the commission by others of any damage or
destruction of, on, or to the Premises and/or Concession. Operator shall not maintain, commit or
permit the maintenance or commission of any nuisance as defined in Section 3479 and/or Section
34Wof the California Civil Code on the Premises; and Operator shall not use or permit the use
of the Premises for any unlawful purpose.
SECTION 29. TAXES
Operator agrees to pay, at its sole cost and expense, before they become delinquent all
lawful taxes, assessments or charges, which at any time may be levied by any governmental
agency including, without limitation, the State, County, City or any tax or assessment levying
body. Upon request, Operator shall promptly furnish to City satisfactory evidence establishing
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such payment. Operator shall comply with all laws, regulations and ordinances regarding the
collection of taxes due a government agency.
SECTION 30. PAYMENT OF OBLIGATIONS
Operator shall promptly pay, at its sole cost and expense, before they become delinquent,
any and all bills, debts, liabilities and obligations incurred by Operator in connection with
Operator's occupation and use of the Premises and/or operation of the Concession. Upon
request, Operator shall promptly furnish to City satisfactory evidence establishing such payment.
SECTION 31. UTILITIES AND SERVICES
Excluding any attached public restrooms, if they exist, Operator shall be responsible for
the payment of all utility charges, including, without limitation, gas, electricity, water, telephone
service, cable TV service, and the furnishing of all necessary refuse and garbage containers and
the removal and disposal of all rubbish, refuse and garbage resulting from the operation of the
Premises and/or the Concession. All such rubbish, refuse and garbage removed shall be disposed
of in accordance with applicable laws and local ordinances. Trash dumpsters may not be moved
or relocated from their established locations without the express prior consent of City. All trash
containers and/or trash bins shall be adequately screened and located to the satisfaction of City.
For the purposes of this Section, sewage disposal shall be construed as a utility. All such charges
shall be paid by Operator directly to the provider of the service and shall be paid as they become
due and payable. Upon request, Operator shall promptly furnish to City satisfactory evidence
establishing such payment.
SECTION 32. BUSINESS LICENSE
Operator shall maintain a business license from City during the entire term of this
Agreement or any renewals or extensions thereof or during any holdover period.
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9
P
SECTION 33. SIGNS, ADVERTISING AND APPROVAL OF NAME
City shall have the right to approve in its sole discretion and at any time require Operator
to change or remove signs, names, placards, decorations or advertising placed on, or inscribed,
painted or affixed upon the Premises. Should City approve of any sign, name, placard,
decoration or advertising, Operator shall maintain the same at all times during the entire term of
this Agreement or any renewals or extensions thereof or during any holdover period in good
appearance and repair. All signs, names, placards, decorations or advertising must comply with
all requirements of any governmental authority with jurisdiction.
SECTION 34. NO ASSIGNMENT OR OTHER TRANSFER
(a) Prohibition of Assignment. The parties acknowledge that City is entering into
the Agreement in reliance upon the experience and abilities of Operator and its
principals. Consequently, Operator shall not voluntarily assign, encumber or
otherwise transfer its interest in the Agreement or in the Premises, or any part of
the Premises, or allow any other person or entity (except Operator's authorized
representatives) to occupy or use all or any part of the Premises without the prior
written consent of City, which consent shall not be unreasonably withheld.
Provided, however, that City's consent shall not relieve Operator from any and all
of its obligations, liabilities, duties or responsibilities under this Agreement. Any
assignment, encumbrance, occupation or use, sublease or other transfer without
such consent shall be voidable and, at City's sole discretion, shall constitute a
Default of this Agreement.
(b) Consent to Transfer. City's consent to any assignment, encumbrance, occupation
or use, or other transfer is subject to Operator providing City with evidence
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satisfactory to City that the proposed, assignee, encumbrancer, occupier or user,
or other transferee has suitable financial strength, experience and character for
operation and control of the Premises and the Concession and that the use of the
Premises by the proposed assignee, encumbrancer, occupier or user, or other
transferee is consistent with that specified herein, and is commercially reasonable.
Any proposed assignee, encumbrancer, occupier or user, or other transferee shall
agree to abide by the terms and conditions of the Agreement including, without
limitation, all the obligations, liabilities, duties and responsibilities of Operator,
and other conditions imposed upon it pursuant to law. An approval by City to one
assignment, encumbrance, occupation or use, or other transfer shall not be
deemed to be an approval to any other assignment, encumbrance, occupation or
use, or other transfer.
(c) Voluntary assignment defined. Except as otherwise expressly provided herein,
any dissolution, merger, consolidation or reorganization of Operator, or the sale or
other transfer resulting in a transfer of a controlling percentage of the capital stock
of Operator (other than a transfer by will, devise, bequest, intestate succession, a
transfer to or between the family members of Operator, or a transfer to or between
one or more trusts for the benefit of Operator and/or Operator's family members,
where applicable) shall be deemed a voluntary assignment.
(d) Exceptions. Notwithstanding the foregoing paragraphs or anything to the
contrary contained herein, City's consent shall not be required for an assignment
to an Affiliate, Subsidiary or Successor of Operator (for purposes hereof, an
"Affiliate," a "Subsidiary" and a "Successor" of Operator are defined as follows:
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(a) an "Affiliate" is any corporation which directly or indirectly controls or is
controlled or is under common control with Operator (for this purpose, "control"
shall mean the possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of such corporation, whether
through the ownership of voting securities or by contract or otherwise), (b) a
"Subsidiary" shall mean any corporation or partnership not less than twenty -Eve
percent (2511v) of whose outstanding stock shall, at the time, be owned directly or
indirectly by Operator and which is at least as creditworthy as Operator, and (c) a
"Successor" shall mean a corporation or partnership in which or with which
Operator is merged or consolidated, in accordance with applicable statutory
provisions for merger or consolidation of corporations, or a corporation or
partnership acquiring a substantial portion of the property and assets of Operator.
SECTION 35. TERMS BINDING ON SUCCESSORS
All the tenns, covenants and conditions of this Agreement shall inure to the benefit of
and be binding upon the parties and their successors, including, without limitation, their
assignees, encumbrancers, occupiers or users, or other transferees. The provisions of this
Section shall not be deemed as a (1) waiver of any of the prohibitions and conditions against
assignments, encumbrances, occupations or uses, or other transfers hereinbefore set forth, or (2)
City's consent thereto. If more than one operator is a party to this Agreement, the obligations of the
operators shall be joint and several. Even if City's consent is not required, Operator shall
immediately provide City with written notice of any, assignment, encumbrance, occupation or
use, or other transfer.
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SECTION 36. DEFAULT
The occurrence of any one or more of the following events shall constitute a material default
and breach ("Default") of this Agreement by Operator:
(a) Operator's failure to make any payment of the Operation Charge or other payment
required to be made by Operator at the time required for payment under this
Agreement.
(b) Operator's failure to obtain or maintain the insurances and/or the security deposit as
required under this Agreement.
(c) Operator's vacating or abandonment of the Premises during the entire term of this
Agreement or any renewals or extensions thereof or during any holdover period.
Closure of the Concession for more than a combined total of one hundred eighty
(180) days in a calendar year, minus any days of closure of the Concession caused
by City, shall be deemed an abandonment of the Premises.
(d) Operator's violation of Section 19 (Indemnification, Defense and Hold Harmless
Agreement), Section 34 (No Assignment or Transfer), Section 47 (Hazardous
Substances), Section 48 (Nondiscrimination), Section 49 (Sale of Alcoholic
Beverages and Entertainment Prohibited), Section 62 (Conflict of Interest) or
Section 64 (Compliance with Laws).
(e) The insolvency of Operator as evidenced by a receiver being appointed to take
possession of all or substantially all of Operator's assets located at or on the
Premises or of Operator's interest in this Agreement, or the making by Operator
of a general arrangement or assignment for the benefit of creditors, or Operator's
filing a petition in bankruptcy, whether voluntary or involuntary, or the
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attachment, execution or the judicial seizure of substantially all of Operator's
assets located at or on the Premises or of Operator's.interest in the Agreement.
(f) Operator's failure to observe or perform any other term, covenant, obligation,
duty, responsibility or condition of this Agreement to be observed or performed
by Operator when such failure shall continue for a period of thirty (30) days after
City's giving written notice to Operator, or such earlier period if specifically set
forth in this Agreement; however, if the nature of such failure is such that more
than thirty (30) days are reasonably required for its cure, then Operator shall not
be deemed to be in Default if Operator notifies City of the length of the additional
time required to cure and receives City's written approval of the additional time
required, which approval will not be unreasonably withheld, and commences such
cure within such thirty (30) day period and diligently proceeds with such cure to
completion during such additional time period approved by City.
SECTION 37. REMEDIES
(a) Cumulative Nature of Remedies. In the event of any Default by Operator,
City shall have the remedies described in this Section in addition to all other
rights and remedies provided by law or equity, to which City may resort
cumulatively or in the alternative:
(1) Reentry without Termination. City may at City's sole discretion reenter
the Premises, and, without terminating the Agreement, at any time and
from time to time, agree to have another party operate and manage the
Premises or any part or parts of them for the account and in the name of
Operator or otherwise. Any such subsequent agreement may be for the
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remainder of the term or for a longer or shorter period. City may in City's
sole discretion eject all persons or eject some and not others or eject none.
In addition, City may in its sole discretion remove some or all of the Trade
Fixtures, personal property and trade inventory from the Premises. City
may store such removed Trade Fixtures, personal property and trade
inventory in a public warehouse or other location at the sole cost, expense
and risk of Operator, and for the account of and in the name of Operator.
City shall apply all payments from such subsequent operators as follows;
first, to the payment of reasonable expenses paid or incurred by or on
behalf of City in recovering possession, placing the Premises in good
condition, and preparing or altering the Premises for the subsequent
operator; second, to the reasonable expense of securing new operators or
or sub -operators; third, to the fuIfillment of Operator's covenants to the
end of the term. City may execute any agreements made under this
provision either in City's name or in Operator's name and City shall be
entitled to all payments from the use, operation, management or
occupancy of the Premises. Operator shall nevertheless pay to City on the
dates specified in this Agreement the equivalent of all sums required of
Operator under this Agreement, plus City's expenses, less the proceeds of
any subsequent operating agreement.
(2) Termination. In the event of a Default by Operator, City may at City's
sole discretion terminate this Agreement by giving Operator written notice
of termination. In the event City terminates this Agreement, City may
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recover possession of the Premises (which Operator shall immediately
surrender and vacate upon demand) and remove all persons therefrom, and
Operator shall comply with, without limitation, Sections 56 and 57 below.
City also shall be entitled to recover as damages any or all of the
following:
(A) The worth at the time of the award of any unpaid Operation Charge
or other charges which have been earned at the time of
termination;
(B) The worth at the time of the award of the amount by which the
unpaid Operation Charge (each month's Gross Sales Operation
Charge would be calculated as the average Gross Sales Operation
Charge for that same month in the preceding years, or if Operator
did own/operate the Concession in the preceding years, then each
month's Gross Sales Operation Charge would be calculated as the
average of all months Operator owned/operated the Concession)
and other charges which would have been earned after termination
until the time of the award exceeds the amount of the loss of such
Operation Charge and other charges that Operator proves could
have been reasonably avoided;
(C) The worth at the time of the award of the amount by which the
unpaid Operation Charge (each month's Gross Sales Operation
Charge would be calculated as the average Gross Sales Operation
Charge for that same month in the preceding years, or if Operator
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did not own/operate the Concession in the preceding years, then
each month°s Gross Sales Operation Charge would be calculated
as the average of all months Operator owned/operated the
Concession) and other charges for the balance of the term after the
time of the award exceeds the amount of the loss of such Operation
Charge and other charges that Operator proves could have been
reasonably avoided;
(D) Any other amount necessary to compensate City for the detriment
proximately caused by Operator's failure to perform its
obligations, liabilities, duties or responsibilities under this
Agreement; and
(E) At City's sole discretion, such other amounts in addition to or in
lieu of the foregoing as may be permitted from time to time by
applicable California law.
As used in Sections 37(a)(2)(A) and (B) above, the `worth at the time of the
award" shall be computed by allowing interest at the rate of twelve percent (12%) per
annum. As used in Section 37(a)(2)(C) above, the "worth at the time of the award" shall
be computed by discounting such amount at the discount rate of the Federal Reserve
Bank of San Francisco at the time of the award, plus one percent (1 %). The amount
recoverable by City pursuant to Section 37(a)(2)(D) above shall include, without
limitation, any costs or expenses incurred by City in maintaining or preserving the
Premises after such Default.
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(3) Use of Personal Property. City may at City's sole discretion use the
Trade Fixtures, personnel property and/or trade inventory located on,
about or appurtenant to the Premises without compensation and without
liability for use or damage, or store them in a public warehouse or other
location at the sole cost, expense and risk of Operator, and for the account
of and in the name of Operator.
(b) Election of Remedy. The election of one remedy for any one item shall not
foreclose an election of any other remedy for another item or for the same item at
a later time.
(c) City's Right to Cure Operator's Default. Upon continuance of any Default, City
may in its sole discretion, but is not obligated to, cure such Default at Operator's
sole cost and expense. If City at any time, by reason of such Default by Operator,
pays any sum or does any act, the sum paid by City plus the reasonable cost of
performing such act, together with a penalty thereon at the penalty rate set forth in
Section 11 above from the date the costs were incurred or the act performed by
City to the date they are reimbursed to City by Operator, shall be due as additional
rent not later than five (5) days after service of a written demand therefor on
Operator, including reasonably detailed documentation of the amount owed. No
such payment or act shall constitute a waiver of Default or of any remedy for
Default or render City liable for any loss or damage resulting from any such act.
(d) Waiver of Rights. Operator hereby waives any right of redemption or relief
from forfeiture under California Code of Civil Procedure Sections 1174 or 1179
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if appealed by, or under any other present or future law, City tapes possession of
the Premises by reason of any Default by Operator hereunder.
(e) Other Rights of City. No act of City, including, without limitation, but not
limited to City's entry on the Premises, or maintenance of the Premises, shall be
construed as an election to terminate this Agreement unless a written notice of
such intention is given to Operator by City or unless the termination thereof is
decreed by a court of competent jurisdiction. Notwithstanding if City elects to
continue the Agreement in full force and effect after a Default by Operator and to
relet the Premises, City may at any time after such reletting elect to terminate this
Agreement for any such Default.
SECTION 38. CUMULATIVE REMEDIES
The remedies given to City in this Agreement 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 Agreement. City shall have the right to exercise any other right or remedy
which City may have at law or in equity without limitation,
SECTION 39. WAIVER OF DEFAULT
The waiver by City of any Default by Operator of any of the provisions of this
Agreement shall not constitute a continuing waiver or a waiver of any subsequent Default by
Operator either of the same or another provision of this Agreement.
SECTION 40. CITY'S DEFAULTS/OPERATOR'S REMEDY
In the event City fails to perform any material obligation of City under the Agreement
within ninety (90) days after receiving written notice from Operator specifying the nature of such
default, or, if the nature of City's obligation is such that more than ninety (90) days are required
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for its performance, if City fails to commence such performance within such ninety (90) day
period and thereafter diligently prosecute the same to completion, then City shall be in default of
this obligation. If City's default materially interferes with Operator's use of the Premises for its
intended purpose, Operator shall have the option to terminate the Agreement by giving City at
least sixty (60) days' written notice of its intent to terminate. In such a situation, Operator must
still comply with all of its obligations, liabilities, duties and responsibilities under the
Agreement, including, without limitation, paying any Operation Charge due up to the time of
termination and surrendering the Premises pursuant to Sections 56 and 57 below. This remedy
of termination is Operator's sole and exclusive remedy for a default by City.
SECTION 41. CONSENT
When City's consent/approval is required under this Agreement, its consent/approval for
one transaction or event shall not be deemed to be a consent/approval to any subsequent
occurrence of the same or any other transaction or event.
SECTION 42. WAIVER OF CLAIMS
Operator hereby waives any claim against City, its officers, elected or appointed officials,
employees, agents or volunteers for damage or lass caused by any suit or proceeding directly or
indirectly attacking the validity of this Agreement, or any part thereof, or caused by any
judgment or award in any suit or proceeding declaring this Agreement null, void or voidable, or
delaying the Agreement or any part thereof from being carried out.
SECTION 43. INSPECTION OF PREMISES
Upon at least twenty-four (24) hours advance written, verbal or electronic notice given by
City to Operator, Operator shall permit City or City's agents, representatives or employees to
enter the Premises at all reasonable times for the purpose of inspecting, investigating and
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surveying the Premises to determine whether Operator is complying with the terms of this
Agreement and for the purpose of doing other lawful acts that may be necessary to protect City's
interest in the Premises or to perform City's duties under this Agreement. City also shall have
the right in its sole discretion to do any and all work of any nature necessary for the preservation,
maintenance and operation of property owned, controlled or occupied by City. Operator shall be
given reasonable notice when such work becomes necessary, and Operator shall adjust the
operation of the Concession in such a manner that City may proceed expeditiously.
SECTION 44. CITY' S RIGHT TO BUYOUT
City shall have the right at any time during the entire term of this Agreement or any
renewals or extensions thereof to buyout the remaining years of the Agreement and Operator's
interest in this Agreement based upon the following buyout formula:
Average of the most recent two (2) years (preceding the date of the notice
of buyout) annual Gross Sales under this Agreement or a prior lease
multiplied by a twelve and one-halfpercent (12.5116) profit margin
multiplied by the number of years remaining on the Agreement discounted
by twelve and one-half percent (12.5%) to present value.
For example:
The annual Gross .Sales for the most recent two (2) years of the Concession are
$335,000.00 and $350,000.00. If City gives Operator notice of its buyout intention in
September, the preceding two (2) years would be the preceding twenty-four (24) months ending
in August. There are three (3) years remaining in the Agreement.
The average of the Gross Sales of the most recent two (2) years is $342,500.00
($335,000.00 + $350,000.00/2).
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The profit margin is 12.5% of the most recent two (2) year average which is $42,812.50
($342,500.00 x 0.125).
The profit margin is then discounted at the rate of 12.5% to present value over the
remaining years of the Agreement;
Year 1: $42,812.50 / 1.125 = $38,055.56
Year 2: $42,812.50 / 1.125 / 1.125 = $33,827.16
Year 3: $42,812.50 / 1.125 / 1.125 / 1.125 = $30,068.59
All of the discounted cash flows for the remaining years of the Agreement are totaled and
the result is the buyout price of the Agreement. In this case, the City's buyout price is
$101,951.31.
If Operator has owned/operated the Concession for less than two (2) years, the City's
buyout price will be the greater of (1) the amount calculated under the Gross Sales formula
above or (2) all reasonable and provable start-up costs, which start-up costs will be determined
by City in its sole discretion. The annual Gross Sales figure on which to calculate the buyout
amount shall be calculated as follows:
The average monthly Gross Sales for all months up to twenty-three (23)
months converted into an annual Gross Sales figure.
For example, if City decides to buyout the Agreement of a new Operator who has
owned/operated the Concession for fifteen (15) months, with an average monthly Gross Sales
figure of Five Thousand Dollars ($5,000.00), the annual Gross Sales figure for the option to
buyout would be Sixty Thousand Dollars ($60,000.00).
For purposes of this calculation, an Operator shall not be considered a new operator if the
Concession was previously owned/operated by an operator whose assignment, encumbrance,
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i
occupation or use, or other transfer to Operator did not require City approval in Section 34
above.
At City's sole option, City shall have the right, but not the obligation, to purchase any or
all of Operator's Trade Fixtures (defined in Section 51 below), based on the appraised fair value
market of the Trade Fixtures.
If City desires to purchase any or all of Operator's Trade Fixtures, City shall select an
appraiser to provide an appraisal of such Trade Fixtures. If Operator disagrees with City's
appraisal, Operator, at its sole cost and expense, shall select another appraiser to provide an
appraisal. If City disagrees with Operator's appraisal, City shall select another appraiser to
perform an appraisal. In such case, the parties agree that the price for the Trade Fixtures will be
the average of these three (3) appraisals. All appraisers must be members in good standing in the
American Society of Appraisers. Notwithstanding the foregoing, at any time, City may elect not
to purchase any or all of Operator's Trade Fixtures.
Upon City's request, Operator shall provide City with proof of lien free, good and
merchantable title to any such Trade Fixtures City desires to purchase. Operator shall protect,
defend, indemnify, and hold harmless City, its officers, elected and appointed officials,
employees, agents and volunteers from and against any and all liens, claims, damages, losses,
expenses, judgments, demands and defense costs (including, without limitation, costs and fees of
litigation (including arbitration) of every nature or liability of any kind or nature) arising out of
or in connection with Operator's fraud, omission or negligence regarding any purchase of
Operator's Trade Fixtures by City. Operator will conduct all defense at its sole cost and expense
and City shall approve selection of Operator's counsel. This indemnity shall apply to all claims
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and liability regardless of whether any insurance policies are applicable. The policy limits do not
act as limitation upon the amount of indemnification to be provided by Operator.
Operator acknowledges and agrees that this Agreement buyout option of City has been
negotiated at arms -length and does not constitute nor does Operator construe this to be an act of
eminent domain or inverse condemnation. In the event City exercises this buyout option,
Operator waives any and all claims of loss of business goodwill and relocation rights or benefits.
Operator also shall immediately surrender the Premises as set forth herein and comply with,
without limitation, Sections 56 and 57 below.
SECTION 45. PHOTOGRAPHY
Operator acknowledges and agrees that City may grant permits to third parties engaged in
the production of still and motion pictures and related activities to take photographs
or videos of or on the Premises when such permission shall not interfere with the primary
business of Operator, all without providing Operator with notice or requiring consent by
Operator.
SECTION 46. HAZARDOUS SUBSTANCES
Operator represents and warrants that its use or occupation of the Premises shall not
generate any Hazardous Substance (as defined below in this Section), and it shall not store or
dispose on the Premises nor transport to or over the Premises any Hazardous Substance during
the entire term of this Agreement or any renewals or extensions thereof. The foregoing
restrictions shall not be deemed to restrict or prohibit the use by Operator of ordinary cleaning
products as customarily used in Operator's ordinary course of business at the Concession,
provided that Operator complies with all provisions of law as to the use, storage and disposal of
such products. Operator further agrees to clean up and remediate any such Hazardous Substance
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on the Premises, and agrees to protect, defend, indemnify and hold harmless City, its officers,
elected or appointed officials, employees, agents and volunteers from and against any and all
claims, damages, losses, expenses, judgments, demands and defense costs (including, without
limitation, costs and fees of litigation (including arbitration) of every nature or liability of any
kind or nature) arising out of or in connection with any such Hazardous Substance and any
damage, loss, or expense or liability resulting from any such Hazardous Substance including,
without Iimitation, all attorney's fees, costs and penalties incurred as a result thereof except any
release caused by the sole negligence or willful misconduct of City. Operator will conduct all
defense at its sole cost and expense and City shall approve selection of Operator's counsel. This
indemnity shall apply to all claims and liability regardless of whether any insurance policies are
applicable. The policy limits do not act as limitation upon the amount of indemnification to be
provided by Operator. "Hazardous substance" shall be interpreted broadly to mean any
substance or material defined or designated as a hazardous or toxic waste, hazardous or toxic
material, hazardous or toxic or radioactive substance, or other similar terra, by any Federal, State
or local environmental law, regulation or rule presently in effect or promulgated in the future, as
such law, regulation or rule may be amended from time to time; and it shall be interpreted to
include, without limitation, any substance which after release into the environment will or may
reasonably be anticipated to cause sickness, death or disease.
SECTION 47. NONDISCRIMINATION
Operator and its employees shall not discriminate because of race, religion, color,
ancestry, sex, age, national origin or physical handicap against any person by refusing to furnish
such person any accommodation, facility, rental, service or privilege offered to or enjoyed by the
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general public. Nor shall Operator or its employees publicize the accommodation, facilities,
rentals, services or privileges in any manner that would directly or inferentially reflect upon or
question the acceptability of the patronage of any person because of race, religion, color,
ancestry, sex, age, national origin or physical handicap.
In the performance of this Agreement, Operator shall not discriminate against any
employee or applicant for employment, because of race, religion, color, ancestry, sex, age,
national origin or physical handicap. Operator shall take affirmative action to ensure that
applicants are employed and that employees are treated during employment, without regard to
their race, religion, color, ancestry, sex, age, national origin or physical handicap. Such action
shall include, without limitation, the following: employment, upgrading, demotion or transfer;
recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of
compensation; and selection for training, including, without limitation, apprenticeship. Operator
shall post in conspicuous places, available to all employees and applicants for employment,
notices setting forth the provisions of this Section.
Operator shall permit access to its records of employment, employment advertisements,
application forms, and other pertinent data and records by City, the State Fair Employment
Practices Commission or any other agency with jurisdiction over these matters, for the purpose
of investigation to ascertain compliance with this Section.
City may determine a violation of this Section to have occurred upon receipt of a final
judgment having that effect from a court in an action to which Operator was a party, or upon
receipt of a written notice from the State Fair Employment Practices Commission or other
government agency with jurisdiction over these matters that it has investigated and determined
that Operator has violated the Fair Employment Practices Act or other applicable discrimination
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law and has issued an order which has become final, or obtained an injunction. In the event of
violation of this Section, City shall have the right to terminate this Agreement, and any loss of
revenue sustained by City by reason thereof shall be borne and paid for by Operator, at its sole
cost and expense.
SECTION 48. SALE OF ALCOHOLIC BEVERAGES AND ENTERTAINMENT
PROHIBITED
Notwithstanding anything to the contrary, the sale or provision of alcoholic beverages
and/or live entertainment in, on, or from the Premises is expressly forbidden, unless expressly
permitted in writing by City in advance. For any proposed sale or provision of alcoholic
beverages, Operator must first obtain written City approval prior to submitting any request for
approval to the Alcohol Beverage Commission.
SECTION 49. LIENS
Operator shall keep the Premises free and clear from any and all liens, including, without
limitation, mechanics' or materialmens' liens, claims and demands for work performed,
materials furnished, or operations conducted on or about the Premises or by reason of any use or
occupancy by Operator, or any person claiming under Operator. When applicable, Operator
shall cause a notice of nonresponsibility to be posted and recorded pursuant to California Civil
Code Section 3094.
SECTION 50. INSTALLATION AND REMOVAL OF TRADE FIXTURES
Operator shall have the right during the entire term of this Agreement or any renewals or
extensions thereof, at Operator's sole cost and expense, to install or affix in, to, or on the
Premises any machinery, equipment and other objects (the "Trade Fixtures'% for use in
Operator's trade or business as Operator may deem advisable. Any and all such Trade Fixtures
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that can be removed without structural damage to the Premises shall, subject to Section 57
below, remain the property of Operator and may be removed by Operator at any time prior to the
expiration or termination of this Agreement, provided Operator repairs any damage caused by
the removal. Upon execution of this Agreement and every anniversary, Operator shall provide
City with a list of all Trade Fixtures on the Premises.
SECTION 51. DESTRUCTION
Should the Premises be partially destroyed, this Agreement shall continue in full force
and effect, and Operator, at Operator's sole cost and expense, shall complete the work of
repairing and restoring the Premises to their prior condition providing such work can be
accomplished under all applicable governmental laws and regulations within one hundred eighty
(180) days. Should the Premises be so far destroyed that in City's reasonable judgment they
cannot be repaired or restored to their former condition within one hundred eighty (180) days,
City shall give Operator notice of such determination in writing and each party may, in that
party's sole discretion:
(a) -Continue this Agreement in full force and effect in which case Operator shall
repair and restore, at Operator's sole cost and expense, the Premises to their
former condition; or
(b) Terminate this Agreement by giving the other party thirty (30) days' written
notice of such termination within sixty (60) days after the date that City gives
Operator notice that the Premises cannot be repaired or restored to their former
condition within one hundred eighty (180) days. In the event that either party
elects to terminate this Agreement, the entire amount of any insurance proceeds
(excluding such proceeds for Trade Fixtures, personal property whether or not
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owned or leased by Operator and trade inventory, but only to the extent that the
insurance proceeds specifically cover those items) shall be paid to City. The
proceeds of any such insurance payable to City may be used, in the sole discretion
of City, for rebuilding or repair as necessary to restore the Premises or for any
other such purpose(s) as City sees fit. In addition, if Operator elects to terminate
the Agreement, Operator must still comply with all of its obligations, liabilities,
duties and responsibilities under the Agreement, including, without limitation,
paying any Operation Charge due up to the time of termination and surrendering
the Premises, pursuant to Sections 56 and 57 below.
In the event of the damage or destruction of Improvements, Trade Fixtures and/or
personal property located on the Premises not giving rise to a termination of this Agreement,
Operator shall, at its sole cost and expense, replace and repair the same as soon as reasonably
possible to permit the prompt continuation of Operator's business at the Premises.
SECTION 52. NO ABATEMENT OF OPERATION CHARGE DURING REPAIR
WORK
The Operation Charge shall not be abated for the time Operator is prevented from using
the whole or a portion of the Premises. In addition, Operator shall not be excused from the
payment of taxes, insurance or any other obligations for the time Operator is prevented from
using the whole or a portion of the Premises.
SECTION 53. EMINENT DOMAIN
If, during the term of this Agreement or any renewals or extensions thereof or during any
holdover period, City's real property (whether held by City in fee simple, an easement interest or
otherwise) and/or the Premises is taken in eminent domain, the entire award (that is, all forms) of
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compensation, other than as provided herein, shall belong to and be paid to City. In the event of
condemnation, Operator shall be entitled to an award of only the following forms of
compensation, if any, from the condemning authority: compensation for loss of business
goodwill; compensation for the value of any of Operator's Trade Fixtures; compensation for the
value of any of Operator's personal property; compensation for the value of any of Operator's
trade inventory; and compensation for relocation benefits as authorized by law. All other forms
of compensation, such as, for example, but not by way of limitation, any bonus value of
Operator's interest in this Agreement, shall belong to and be paid to City. In the event of
condemnation, unless Operator is allowed by the condemning authority to continue its operations
on the Premises, the Agreement shall terminate on the earliest of the following dates: the date
the condemning authority obtains a prejudgment order for possession; the date title to the
Premises vests in the condemning authority; or the date when Operator is required by the
condemning authority to cease its operations.
SECTION 54. RELOCATION AND ASSISTANCE, BUSINESS GOODWILL
Upon expiration or termination of this Agreement for any reason, including, without
limitation, if City exercises its Agreement buyout option, but excluding eminent domain,
Operator shall not be entitled to any relocation rights or benefits, business goodwill or bonus
value attributable to this Agreement, and Operator expressly waives any claim to the same.
SECTION 55. RESTORATION AND SURRENDER OF PREMISESITITLE TO
IMPROVEMENTS
On expiration or termination of this Agreement, including, without limitation, in the
event City exercises its Agreement buyout option, Operator shall, without compensation to
Operator, promptly surrender and deliver the Premises to City in as good condition as such were
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at the commencement date of this Agreement, reasonable wear and tear excepted. Operator also
shall, without compensation to Operator, surrender all Improvements to City in good condition
and repair, ordinary wear and tear excepted, free and clear of all liens and encumbrances.
Operator also shall remove all Trade Fixtures, personal property and trade inventory. City may
in its sole discretion accept all or any portion of the Premises, as then improved with
Improvements and no sum whatsoever shall be paid to Operator or any other person; or City may
require Operator to remove all or any portion of such Improvements, at Operator's own risk and
cost and expense; or City may itself remove or have removed all or any portion of such
Improvements, at Operator's own risk and cost and expense. If required by City to do so, in
removing any such Improvements, Operator shall restore the Premises as nearly as possible to
the conditions existing prior to their installation or construction. All such removal and
restoration shall be to the satisfaction of City and shall be completed within thirty (30) days of
the expiration or termination of this Agreement. In addition, any Trade Fixtures, personal
property or trade inventory left on the Premises after the expiration of this 30-day period,
regardless of cause, shall be deemed abandoned by Operator. In City's sole discretion, it may
choose to do one or more of the following: (1) take any or all of such Trade Fixtures, personal
property and trade inventory as City property; (2) store any or all of such Trade Fixtures,
personal property and trade inventory in a public warehouse or other location at the sole cost,
expense and risk of Operator, and for the account and in the name of Operator; or (3) dispose of
any or all of such Trade Fixtures, personal property and trade inventory without any liability to
Operator. In addition, Operator's indemnification, hold harmless and defense obligations set
forth in this Agreement shall apply to such Trade Fixtures, personal property and/or trade
inventory, and to City's actions with respect thereto.
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SECTION 56. FORCE MAJEURE - UNAVOIDABLE DELAYS
Should the performance of any act required by this Agreement to be performed by either
City or Operator 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 shall be extended for a period equivalent to the period of delay and
performance of the act during the period of delay shall be excused. Provided, however, that
nothing contained in this Section shall excuse the prompt payment of the Operation Charge or
other consideration by Operator as required by this Agreement or the performance of any act
rendered difficult solely because of the financial condition of the party, City or Operator,
required to perform the act.
SECTION 57. CITY'S OPTION TO CLOSE THE PREMISES
City may close the Premises without liability and without advance notice to Operator
therefor at any time as City in its sole discretion deems necessary for the protection of life, limb
or property, or for public health, safety or welfare purposes, or upon reasonable notice to effect
any repair, remodeling or rebuilding deemed necessary by City in its sole discretion. The length
of time of any closing of the Premises by City longer than two (2) weeks during a period when
the Concession would otherwise be open shall extend the term of the Agreement by the same
amount of time. If this occurs, Operator and City shall memorialize this extension in writing.
SECTION 58. DELIVERIES OF SUPPLIES
City may establish the days and times deliveries of supplies may be made and advise
Operator in writing thereof.
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SECTION 59. EMPLOYEE PARKING
City shall establish the days, times and locations where Operator and Operator's
employees may park, and the number of automobiles, trucks, and other motorized and non -
motorized vehicles that Operator and Operator's employees may park, and advise Operator in
writing thereof.
SECTION 60. CONFLICT OF INTEREST
Operator warrants and covenants that no official or employee of City, nor any business
entity in which an official or employee of City is interested, (1) has been employed or retained
by Operator to solicit or aid in the procuring of this Agreement; or (2) shall be employed by
Operator in the performance of this Agreement without the immediate written divulgence of such
fact to City. In the event City determines that the employment of any such official, employee or
business entity is not compatible with such official's or employee's duties as an official or
employee of City, Operator, upon request of City, shall terminate such employment immediately.
For breaches or violation of this Section, City shall have the right both to terminate this
Agreement without liability and, in its discretion, recover the full amount of any such
compensation paid to such official, employee or business entity. No official or employee of City
shall have any financial interest in this Agreement in violation of the applicable provisions of the
California Government Code.
SECTION 61. NOTICE
Unless specifically providing for verbal or electronic notice, all notices, certificates, or other
communications required to be given hereunder shall be in writing and made in the following
manner, and shall be sufficiently given and deemed received when (a) personally delivered; or (b)
three (3) business days after being sent via United States certified mail — return receipt requested; or
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(c) one (1) business day after being sent by reputable overnight courier, in each case to the
addresses specified below; provided that City and Operator, by notice given hereunder, may
designate different addresses to which subsequent notices, certificates or other communications will
be sent:
CNll1 S
OPERATOR:
City of Huntington Beach HB Outdoor Barbecue & Snack, LLC
ATTN: Director of Community Services Attn: Kathy May
2000 Main Street, P.O. Box 190 7320 Center Avenue
Huntington Beach, CA 92648 Huntington Beach, CA 92647
SECTION 62. COMPLIANCE WITH LAWS
Operator, at its sole cost and expense, shall comply with all statutes, ordinances,
regulations and requirements of all governmental entities, including, without limitation, Federal,
State, county or municipal, relating to Operator's use and occupancy of the Premises and/or
operation of the Concession whether such statutes, ordinances, regulations and requirements be
now in force or hereinafter enacted. This Agreement is expressly subject to the laws, regulations
and policies of City. Operator shall deliver to City a copy of any notice from any governmental
entity received by Operator regarding any alleged violation of law regarding the Agreement,
Premises or the Concession or from any person allegedly entitled to give notice under any
conditions, covenants, or restrictions binding or affecting the Premises. The judgment of any
court of competent jurisdiction, or the admission by Operator in a proceeding brought against
Operator by any government entity, that Operator has violated any such statute, ordinance,
regulation or requirement shall be conclusive as between City and Operator and shall be grounds
for termination of this Agreement by City.
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SECTION 63. INTERPRETATION OF THIS MANAGEMENT AGREEMENT
The language of all parts of this Agreement shall in all cases be construed as a whole,
according to its fair meaning, and not strictly for or against any of the parties. If any provision of
this Agreement is held by an arbitrator or court of competent jurisdiction to be unenforceable,
void, illegal or invalid, such holding shall not invalidate or affect the remaining covenants and
provisions of this Agreement. No covenant or provision shall be deemed dependent upon any
other unless so expressly provided here. As used in this Agreement, the masculine or neuter
gender and singular or plural number shall be deemed to include the other whenever the context
so indicates or requires. Nothing contained herein shall be construed so as to require the
commission of any act contrary to law, and wherever there is any conflict between any provision
contained herein and any present or future statute, law, ordinance or regulation contrary to which
the parties have no right to contract, then the latter shall prevail, and the provision of this
Agreement which is hereby affected shall be curtailed and limited only to the extent necessary to
bring it within the requirements of the law.
SECTION 64. SURVIVAL
Terms and conditions of this Agreement, which by their sense and context survive the
expiration or termination of this Agreement, shall so survive.
SECTION 65. MODIFICATION
No waiver or modification of any language in this Agreement shall be valid unless in
writing and duly executed by both parties.
SECTION 66. SECTION HEADINGS
The titles, captions, section, paragraph and subject headings, and descriptive phrases at
the beginning of the various sections in this Agreement are merely descriptive and are included
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solely for convenience of reference only and are not representative of matters included or
excluded from such provisions, and do not interpret, define, limit or describe, or construe the
intent of the parties or affect the construction or interpretation of any provision of this
Agreement.
SECTION 67. BROKERS
Each party warrants to and for the benefit of the other that it has had no dealings with any
real estate broker or other agent (attorneys excepted) in connection with the negotiation or
making of this Agreement.
SECTION 68. INDEPENDENT CONTRACTOR
Operator is, and shall be, acting at all times in the performance of this Agreement as an
independent contractor herein and not as an employee of City. Operator shall secure at its own
cost and expense, and be responsible for any and all payment of all taxes, social security, state
disability insurance compensation, unemployment compensation and other payroll deductions for
Operator and its officers, agents and employees and all business licenses, if any, in connection
with the Agreement and/or any services to be performed hereunder.
SECTION 69. ATTORNEY'S FEES
In the event suit is brought by either party to construe, interpret and/or enforce the terms
and/or provisions of this Agreement or to secure the performance hereof, each party shall bear its
own attorney's fees, such that the prevailing party shall not be entitled to recover its attorney's
fees from the non -prevailing party.
SECTION 70. LEGAL SERVICES SUBCONTRACTING PROHIBITED
Operator and City agree that City is not liable for payment of any subcontractor work
involving legal services, and that such legal services are expressly outside the scope of services
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contemplated hereunder. Operator understands that pursuant to Huntington Beach City Charter
Section 309, the City Attorney is the exclusive legal counsel for City; and City shall not be liable
for payment of any legal services expenses incurred by Operator.
SECTION 71. GOVERNING LAW
This Agreement shall be governed and construed in accordance with the laws of the State
of California.
SECTION 72. DUPLICATE ORIGINAL
The original of this Agreement and one or more copies hereto have been prepared and
signed in counterparts as duplicate originals, each of which so executed shall, irrespective of the
date of its execution and delivery, be deemed an original. Each duplicate original shall be
deemed an original instrument as against any party who signed it.
SECTION 73. ENTIRETY
The parties acknowledge and agree that they are entering into this Agreement freely and
voluntarily following extensive arm's length negotiations, and that each has had the opportunity to
consult with legal counsel prior to executing this Agreement. The parties also acknowledge and
agree that no representations, inducements, promises, agreements or warranties, oral or otherwise,
have been made by that party, or anyone acting on that party's behalf, which are not embodied in
this Agreement, and that that party has not executed this Agreement in reliance on any
representation, inducement, promise, agreement, warranty, fact or circumstance not expressly set
forth in this Agreement. The Agreement, and the attached exhibits, contain the entire agreement
between the parties respecting the subject matter of this Agreement, the Premises, the leasing of the
Premises to Operator, or the lease term created under this Agreement and supercede all prior
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understandings and agreements, whether oral or in writing between the parties respecting the
subject matter hereof.
(REST OF PAGE INTENTIONALLY LEFT BLANK)
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by
and through their authorized officers on DILL �2 , 2004.
OPERATOR:
HB OUTDOOR BARBECUE & SNACK,
LLC
A California limited liability company
By:
print namd
ITS: (circle one) Chairman/PresidentNice President
AND
By:
PI*4I-J
CITY OF HUNTINGTON BEACH, a
municipal corporation of the State of
California
ATTEST:
City Clerk -7/sr q
APPROVED AS TO FORM:
print name 01
ITS: (circle one) Secretary/Chief Financial Officer/Asst. C—
Secretary-Treasurer Lr Ci Attorne
?I
INITIATED AND APPROVED:
REVIEWED AND APPROVED:
City Administrator
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by
and through their authorized officers on
OPERATOR:
HB OUTDOOR BARBECUE & SNACK,
LLC
A California limited liability company
By: 4l
'n name
ITS: (circle one bairm ice President
AND
By: Gf
7,L y W ti i Ti F t Ln
print name
ITS: (circle one) Secretary/Chief Financial Officer/Asst.
Secretary - Treasurer
REVIEWED AND APPROVED:
City Administrator
2004.
CITY OF HUNTINGTON BEACH, a
municipal corporation of the State of
California
Mayor
ATTEST:
City Clerk
APPROVED AS TO FORM: '
City Attorney b�Zt r
INITIATED AND APPROVED: !
Director of Community Services
005:GM063
Director of Administrative Services
51
Sports Complex Concession - HB Outdoor
Exhibit A
1 of 2
Legal Description
Those certain lands situated in the City of Huntington Beach, County of Orange,
State of California, being a portion of Parcel 2, as shown in the document
entitled "Final Order Of Comdemnation", recorded as instrument number
89-637397 of Official Records, in the Office of the Recorder, of said County,
more particularly described as follows:
Commencing at the west quarter corner, of said Section 35, thence north
0'16'33" east, 1169.29 feet along the west line of said Section 35, thence at
right angles to said west line, south 89'4327" east, 133.19 feet, to the TRUE
POINT OF BEGINNING.
Thence south 0'00'00" west, 60.86 feet to the beginning of a non ---tangent
curve concave to the southwest, having a radius of 6.35 feet, a radial line to
said point of curvature bears north 26'59'25" west;
Thence easterly, southeasterly and southerly, through a central angle of
141'48'16", an arc length of 15.72 feet, to the beginning of a .non --tangent
reverse curve, concave to the northeast, having a radius of 10.03 feet, a radial
Line to said point of reverse curvature _bears. north 68'23'38" west;.
Thence southeasterly, easterly and northeasterly through a central angle of
161'44'44", an arc length of 28.31 feet, to .the beginning of a non —tangent
reverse curve, concave to the south, having a radius of 10.93 feet, a radial line
to said point of reverse curvature bears north 53'43'55" west;
Thence northeasterly, easterly and southeasterly through a central angle of
81'32'17", an arc length of 15.55 feet, to the beginning of a non —tangent
reverse curve, concave to the north, having ❑ radius of 50.97 feet, a radial line
to said point of reverse curvature bears south 28'21'16" west;
Thence southeasterly, easterly and northeasterly through a central angle of
89'32'46", an arc length of 79.66 feet;
Thence north 90'00'00" east, 19.59 feet;
Thence north 0'00'00" east, 49.14 feet;
Thence north 90'00'00" west, 19.60 feet, to the beginning of a non —tangent
curve concave to the southwest, having a radius of 50.97 feet, a radial line to
said point of curvature bears north 61'10'40"east;
18100A GOLDENWEST I Me
CITY OF HUNTINGTON BEACH ja
DEPARTMENT OF PUBLIC WORKS
Exhibit A
2OF2
Legal Description
Thence northwesterly, westerly and southwesterly, through a central angle of
82'29'15", an arc length of 73.38 feet, to the beginning of a non —tangent
reverse curve, concave to the north, having a radius of 25.49 feet, a radial line
to said point of reverse curvature bears south 13'05'33" east;
Thence southwesterly, westerly and northwesterly, through a central angle of
25'45'39", an arc length of 11.36 feet;
Thence north 90'00'00" west, 20.30 feet;
Thence south 9'51'23" east, 6.41 feet, to the beginning of a non --tangent curve
concave to the northwest, having a radius of 11.27 feet, a radial line to said
point of curvature bears south 85'43'06" east;
;r
Thence southwesterly and westerly, through a central angle of 103'38'32", an
arc length of 20.39, feet to the TRUE POINT OF BEGINNING.
Containing: 10,606.5 square feet. -more or less.
Subject to all Covenants, Rights, Rights —of —.Ways and Easements of Record._:
See exhibit "B" attached hereto and by this reference made a part hereof.
e
LA M p sG•P
U
0
Joseph G. Derleth EV• 12-31-05
PLS 7340, expires 12/31 /05 s5
OF CA4Xf
18100A GOLDENWEST F
� >�
CITY OF HUNTINGTON BEACH
DEPARTMENT OF PUBLIC WORKS
Fo
1"=20'
-'—CL GOLDENWEST ST, W'LY LINE SEC 35, T5S, R11W V
EXHIBIT B (1 OF 2)
18100A GOLDENWEST
CITY OF HUNTINGTON BEACH
DEPARTMENT OF PUBLIC WORKS
TABLE OF DIMENSIONS:
LI=N90'00'00"E,
19.59'
L2=N90'00'00"W,
19.60'
L3=N90'00'00"W,
20.30'
L4=SO9'51'23"E,
6.41'
L5=S89'43'27"E,
133.19'
L6=N26'S9'25"W
(RAD Cl)
L7=S65'11'09"E (RAD Cl)
L8=N68'23'38"W
(RAD C2)
L9=S50'08'22"E
(RAD C2)
L10=N53'43'55"W (RAD C3)
L11=1427'48'22"E
(RAD C3)
L12=S28'21'16"W
(RAD C4)
L13=S61'11'30"E
(RAD C4)
L14=N61'10'40"E
(RAD C5)
L15=N21.18'35"W
(RAD C5)
L16=S13'05'33"E
(RAD C6)
L17=S12'40'06"W
(RAD C6)
L18=S85'43'06"E
(RAD C7)
CURVE TABLE-
Cl =DELTA
141'48'16",
R=6.35', L=15.72'
C2=DELTA
161'44'44",
R=10.03',
L=28.31'
C3=DELTA
81'32'17",
R=10.93',
L=15.55'
C4=DELTA
89'32'46",
R=50.97',
L=79.66'
CS=DELTA
82'29'15",
R=50.97',
L=73.38'
C6=DELTA
25'45'39",
R=25.49',
L=11.36'
C7=DELTA
103'38'32",
R=11.27',
L=20.39'
EXHIBIT B (2 OF 2)
18100A GOLDENWEST
CITY OF HUNTINGTON BEACH
DEPARTMENT OF PUBLIC WORKS
6'B OURP 3 : 25C t KTI FU
HuntPacificlnsurance Z 002
E OF LIABILITY INSURAISE CSR MR I DATE(MM+DDiYYYY)
HBOUT-1 06 24 04
THIS CERTIFICATE iS ISSUED AS A MATTER OF INFORMATION
ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE
Huntington Pacific Ins. Agency 600.10 HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR
18672 Florida S t . Ste. 3 D2D � � aJ ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW.
Huntington Beach CA 92648 I �'\
Phone : 714 -841- 6283 VA-CA-Cr ; INSURERS AFFORDING COVERAGE NAIC #
__..
INsunED INSURERA St Paul Fire b Marine
711 )"1 ^+ INSURER $,.....
FIB Outdoor Barbecue m ' ±LTR
18100 Goldenwest Street —,_.—..
INSURER D-
Huntington Beach CA. 92648
I INSURER E, i
COVERAGES —
THE POLICIES OF INSURANCE LISTED BELOW HAVE
BEEN ISSUED TO THF. INSUREL7 NAME) ABOVE FOR THE POLICY PERIOD INOICATEC. NOTWITHSTANDING
ANY RCCU IREMENT. TERM OR CONDITION OF ANY
CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSDED OR
MAY PeRTAIN, )HE INSURANCE AFf ORCEO BY THE
4' LICIES OESC50660 NEREiN IS 5uBJECT 1'0 ALL 'I ME TERN;u. EXCLUSIONS AND CONDITIONS OF SUCH
POLICIES. AGGRECATE LIA41TS SMOWN MAY HAVE.
SEEN REOUCEU 8YPAID CLAIMS.
MSR'pp.DD,U—_ ...— —_. , _ _....._
LTR I214D TYPE OF INSURANCE
L_. .—.. —. _ ... — ......,.
POLICY NUMBER
POL/�i''EFfL YIVE �gotkiC'iEl(�Ippp�Tfdk
DATE WWDDIYY I GATE MMfDD!YY LIMITS
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GENERALLIABILf-ty
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S 0D0r000
A I X X COMMFRCtALGENERAL LIAFILITY
LCOSS34752
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A IiBuilding LCO5534752
06/17/04� 06/Y7105 $ 200,000 SpCI From
Business Prp�Eerty
60 ODD, R/C
DESCRIPTION OF OPERATIONS/ LOCATIONS / VEHICLES/ CXCLUSIONS ADDEV BY ENDORSEMENT I SPECIAL PROVISIONS
The City of Huntington Beach, it's officers,
elected or appointed officials,
employees, agents and volunteers are additional insured with respects ae
their interest may appear.
* 10 day notice of cancellation for non-payment of premium.
CERTIFICATE H01.DER
CANCELLATION
CT TYHCJN
SHDULD ANY OF THE ABOVE DESCAIOED POLICIES BE CANCELLER BEFORE THE EXPIRATION
DATE THERiOF, THE ISSUING INSURER WIL61Cj§j@@W MAIL 30 _ DAYS WRITTEN
NOTICE TO THE CERTIFICATE MOLDER NAMED TO THE LEF
City of Huntington Beac2i
2000 Main Street
Huntington Beach CA 92648
ACORD 25 (2001108)
TION 1
.DUN-25-2004 11:31
714842253E 97r P.82
06/24/2004 23:26 FAX 7148422538 HuntPaclticlnsurance Z 003
General Liability
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
ADDITIONAL INSURED --DESIGNATED PERSON OR
ORGANIZATION
This endorsement modifies insurance provided under the following:
COMMERCIAL GENERAL LIABILITY COVERAGE PART,
SCHEDULE
Name of Person or Organization.
The City of Huntington Beach, it's officers, elected or
appointed officials, employees, agents and volunteers.
(If no entry appears above, information required to complete this endorsement will be shown in the Declarations
as applicable to this endorsement.)
WHO IS AN INSURED (Section II) is amended to include as an insured the person or organization shown in the
Schedule as an insured but only with respect to liability arising out of your operations or premises owned by or
rented to you
APPROVED AS TO FORM
rENN1FE M�#i'Ha C A� may
V
CG 20 26 1185 Copyright. Insurance Services Office. Inc t98d
JUN-25-2004 11:31 7149422539 97% P.03
City of Huntington Beach
.ate 2000 Main Street California 92648
DECLARATION of NON-EMrLOYER.5TATU5
Jn order to comply} with City Council Resolution No.6Z77, you are required to provide proof of
orlcers' Compensatson irisuranGC. If ru 6ve no employees, this form must 6e signet and returned to:
jty of I""Iuntir.� on fjcacl
Rick Management Division
z000 Main 5trect
luntington E)Gar-b, (ti 9Z648
w
certiFj that in tic pc4onnance of the activity orwodc forwkich this permit is isgUej, 156211 not Ciltploq
any pcmon in any manner so as to 6=omc subject to California Workers' CompcnsaCon incur ncC
reg6rements.
{ authorize the city of huntington E]cach to immediately ,3nJ rctroactiYcly rCvo6'the license or Permit
issued under this declaration if I Dire any employee(s) or become su6cct to the Provisions of t6c laws
requiringWofficers' compensation Insurance.
APplicanVCompany Name:
Address--
ibzo ems„ r- Ae,• n� J-o, P),A CA g24, Ili'
Applicant`s 5ignaturc: Datc:�!------ ---
Pro Vrt (0
-
ocatian Signs,4: K
Telephone Number: 6714
�4zy YrV
ASTOFORM
R WGRATE
RNEY
GAR1skMgrntlCert-1ns\W C-Wvr.Doc (Rev. 61V2004)
Pi
0
copy -
'S r9 boa. 1Q
MANAGEMENT AGREEMENT BETWEEN THE CITY OF HUNTINGTON BEACH AND
STADIUM CLUB, LLC FOR OPERATION OF A FOOD CONCESSION AT THE
HUNTINGTON BEACH SPORTS COMPLEX
Table of Contents
SECTION
PAGE
1
Superseding of Prior Agreement..............................................................................1
2
Grant of Concession on the Premises......................................................................2
3
Reservations, Encumbrances and Rights-of-Way....................................................2
4
Time of Essence.......................................................................................................3
5
Term.........................................................................................................................3
6
Conditions of Premises as Is....................................................................................3
7
Duration of Public Facilities....................................................................................4
8
Additions, Alterations and Removal.....................................................................4
9
City's Contract Administrator..................................................................................4
10
Rates and Charges.......................................................................................5
11
Late Charge and Penalty..........................................................................................5
12
Gross Sales Defined.............................................................................................6
13
Gross Sales Exclusions............................................................................................7
14
Books and Records.................................................................................................8
15
Statement of Gross Sales/Audit.....:........:.::...................... ...................9
16
Security Deposit . ............. .. .....- .............a................... ...............10
17
Use of Coca-Cola Products .....................................................................................11
18
Quality of Sales, Rentals and Services....................................................................11
19
Indemnification, Defense and Hold Harmless Agreement......................................12
20
Workers' Compensation and Employers' Liability Insurance..................................13
21
General Public Liability Insurance..........................................................................13
22
Property Insurance...................................................................................................14
23
Increase in Amount of General Public Liability and Property Insurance................16
24
Certificates of Insurance; Additional Insured Endorsements.................................:16
25
Insurance Hazards....................................................................................................17
26
Maintenance of Premises.........................................................................................17
27
Operation Charge Credit..........................................................................................19
28
Damage, Destruction. or Nuisance .......... ..... ..... ....I................ ...............19
29
Taxes ......................... ....:. ......... ...........,........................................ ............
20 .
30
Payments of Obligations..........................................................................................20
31
Utilities and Services...............................................................................................20
32
Business License......................................................................................................21
33
Signs, Advertising and Approval of Name..............................................................21
34
No Assignment or Other Transfer............................................................................22
35
Terms Binding on Successors..................................................................................24
36
Default......................................................................................................................24
37
Remedies..................................................................................................................26
38
Cumulative Remedies..............................................................................................30
39 Waiver of Default...................................................................................................30
40 City's Defaults/Operator's Remedy..........................................................................31
41 Consent...................................................................................................................31
42 Waiver of Claims.....................................................................................................32
43 Inspection of Premises ........................................................................................32
44 City's Right to Agreement Buyout ....................................... ........ ..... .33
45 Photography.............................................................................................................36
46 . Hazardous Substances..............................................................................................36
47 Nondiscrimination....................................................................................................37
48 Sale of Alcoholic Beverages and Entertainment Prohibited....................................39
49 Liens........................................................................................................................39
50 Installation and Removal of Trade Fixtures............................................................39
51 Destruction...............................................................................................................40
52 No Abatement of Operation Charge During Repair Work......................................41
53 Eminent Domain.....................................................................................................41
54 Relocation and Assistance, Business Goodwill and Leasehold Bonus Value .........42
55 Restoration and Surrender of Premises/Title to Improvements...............................43
56 Force Majeure - Unavoidable Delays......................................................................44
57 City's Option to Close the Premises.......................................................................45
58 Deliveries of Supplies.............................................................................................45
59 Employee Parking..................................................................................................45
60 Conflict of Interest..................................................................................................45
61 Notice.......... .......................................... .. ......:.................................... ..46
62 Compliance with Laws ........................... ... ... . ......................................46
63 Interpretation of this Agreement.............................................................................47
64 Survival...................................................................................................................47
65 Modification.............................................................................................................48
66 Section Headings.....................................................................................................48
67 Brokers................................................................................................... .................48
...
68 Independent Contractor.........................................................................................48
69 Attorney's Fees.........................................................................................................48
70 Legal Services Subcontracting Prohibited...............................................................49
71 Governing Law.......................................................................................................49
72 Duplicate Original....................................................................................................49
73 Entirety.......................................................................................................... ......49
0
0
MANAGEMENT AGREEMENT BETWEEN THE CITY OF HUNTINGTON BEACH
AND STADIUM CLUB, LLC FOR OPERATION OF A FOOD CONCESSION AT THE
HUNTINGTON BEACH SPORTS COMPLEX
THIS MANAGEMENT AGREEMENT (the "Agreement") is made and entered into by
and between the CITY OF HUNTINGTON BEACH, a municipal corporation of the State of
California ("City") and STADIUM CLUB, LLC, a California limited liability company
("Operator").
WHEREAS, City wishes to provide for the management of certain real property (the
"Property"), described as a food concession at the Huntington Beach Sports Complex, located at
18100-B Goldenwest Street, Huntington Beach, California, comprised of the building and
adjacent related improvements as more particularly described below (hereinafter collectively
referred to as the "Improvements"). The term "Premises" as used in this Agreement shall mean
both the Property and the Improvements. Operator desires to operate and manage the Premises
in the manner set forth below.
NOW, THEREFORE, the parties covenant and agree as follows:
SECTION 1. SUPERSEDING OF PRIOR AGREEMENT
This Agreement shall supersede and replace any existing agreement(s) for the Premises
currently entered into by and between the parties and all supplemental agreement(s) entered into
by and between the parties regarding the existing agreement(s).
SECTION 2. GRANT OF CONCESSION ON THE PREMISES
City, pursuant to the terms of this Agreement, grants to Operator for the purposes stated
herein, the right, privilege and duty to equip, operate and maintain a concession open to the
public located on the Premises (hereinafter sometimes referred to as the "Concession").
Operator shall not use the Premises for any other purpose or business. The legal description of
1
Sports Complex Concession . stadium Club
0
0
the Premises is set forth in Exhibit "A", which is attached and incorporated herein by this
reference. A map depicting the Premises is set forth in Exhibit "B", which is attached hereto
and incorporated herein by this reference. This Agreement is not intended to confer third -party
beneficiary status to anyone, nor shall this Agreement convey any property interest in the
Premises to Operator, nor shall Operator ever assert any such property interest in the Premises.
The Premises may include certain public amenities such as restrooms, picnic tables, or other
similar improvements (the "Public Amenities"). Operator acknowledges that the Public
Amenities are expressly reserved for non-exclusive use and enjoyment by the public at -large, and
Operator will not assert an exclusive right to use and control the Public Amenities.
SECTION 3. RESERVATION OF RIGHTS
City expressly reserves a right to enter upon the Premises with as much advance written,
verbal or electronic notice as possible to Operator for any reason associated with public health,
safety or welfare, or for the protection of life, limb or property. In all other cases unless
otherwise speci lcally set forth herein, City reserves the right for such entryout City shall give
Operator at least twenty-four (24) hours advance written, verbal or electronic notice. City shall
have a right of reasonable access to the Premises across Operator owned, controlled or occupied
lands adjacent to the Premises, if any, for any purpose associated with this Agreement.
SECTION 4. TIME OF ESSENCE
Time shall be of the essence of this Agreement and each and all of its terms, covenants or
conditions in which performance is a factor.
2
Sports Complex Concession - Stadium Club
0 0
SECTION 5. TERM
This Agreement shall commence at 12:01 a.m. on _, 200-, fora ten (10)
year term, which shall end at 11:59 p.m. on �_��_, 20/4, unless extended, or sooner
terminated, as provided for herein.
SECTION 6. CONDITIONS OF PREMISES AS IS
The approval of this Agreement by Operator shall, in itself, constitute acknowledgment
that the Premises are in good and usable condition. Upon execution of this Agreement, Operator
agrees to undertake its obligations under this Agreement with the Premises in their presently
existing condition, "as is", and agrees that City shall not be obligated to make any alterations,
additions or betterments thereto.
SECTION 7. DURATION OF PUBLIC FACILITIES
By entering into this Agreement, City mares no stipulation as to the type, size, location
or duration of public facilities (excluding the Premises), including, without limitation, any City
parking lots to be maintained on property owned, controlled or occupied by City.
SECTION 8. ADDITIONS. ALTERATIONS AND REMOVAL
(a) No modifications, alterations or additions to the Premises, including, without
limitation, construction of Improvements or changes to structural design,
landscape design, or interior or exterior furnishings, shall be constructed or made
by Operator without Operator first obtaining the prior written approval of City,.
which will not be unreasonably withheld.
(b) Except as provided under this Agreement, no alteration or removal of existing
Improvements on or natural features of the Premises shall be undertaken without
Operator first obtaining the prior written approval of City.
3
Sports Complex Concession - Stadium Club
0
0
(c) Operator's obligation to obtain City's prior written approval is separate and
independent of Operator's obligation to obtain any permits from City, such as,
without limitation, a building permit.
SECTION 9. CITY'S CONTRACT ADMINISTRATOR
City's Director of Community Services, or his or her designee, shall be City's Contract
Administrator for this Agreement with the authority to act on behalf of City for the purposes of
this Agreement, and all City approvals and notices required to be given herein to City shall be so
directed and addressed.
SECTION 10. RATES AND CHARGES
a. Operator agrees to pay to City as charges ("Operation Charge") for the operation
and management of the Premises a sum equal to the following percentages of the amount of
gross sales for "Gross Sales" as defined in Section 12 below:
$0 - $100,000.00 of Gross Sales = 7.5%,
$100,000.01 - $150,000.00 of Gross Sales = 9.5%;
Over $150,000.00 of Gross Sales = 11.5%.
. Payment shall be ;Wade as follows: Operator shall pay the Operation Charge monthly,
within fifteen (15) calendar days after the end of the month for which the Operation Charge is
being paid, or on the next business day if the fifteenth day falls on a weekend or holiday. All
payments shall be made to City at the City Treasurer's Office, P.O. Box 711, Huntington Beach,
California, 92648, or at such other place or places as City may from time -to -tune designate by
written notice delivered to Operator.
b. Commencing in the fourth year of this Agreement, Operator shall be permitted to
deduct from the payment of the Operation Charge the amount of Eight Thousand Dollars
4
Sports Complex Concession - Stadium Club
($8,000.00) ("the Concession Improvement Allowance"). Operator shall be allowed to deduct the
Concession Improvement Allowance during the fourth, fifth, sixth, seventh and eighth years of
this Agreement.. Under no circumstances shall the amount deducted pursuant to the Concession.
Improvement Allowance exceed Eight Thousand Dollars ($8,000.00) during any particular year,
nor shall the total amount deducted pursuant to the Concession improvement Allowance exceed
Forty Thousand Dollars ($40,000.00).
SECTION 11. LATE CHARGE AND PENALTY
If the Operation Charge is not received by the City Treasurer within twenty (20) calendar
days after the end of the month for which the Gross Sales Operation Charge is being paid, or the
next business day if the twentieth day falls on a weekend or holiday, Operator shall pay the
following late charge and penalty; (1) a late charge often percent (10%) shall be applied to any
outstanding balance after any payment hereunder is due but unpaid; and (2) one and a half
percent (1 '/z°/o) penalty per month shall be added for each month the Gross Sales Operation
Charge is due but unpaid.
With respect to any other payments required by Operator, a one and a half percent (1
t/z%) penalty per month shall be added for each month such payment hereunder is due but
unpaid.
SECTION 12. GROSS SALES DEFINED
For the purpose of this Agreement, the term "Gross Sales" shall mean the total price of all
merchandise, food and beverages, or services sold or rendered, or equipment rented, in, on, or
from the Premises by Operator, or anyone contracting with Operator, including, without
limitation, its agents or suboperators (collectively or individually, "Operator Party(ies)"),
whether wholesale or retail, whether for cash or on credit, and if on credit whether or not paid,
5
Sports Complex Concession -Stadium Club
0
and whether in exchange for any other product, commodity, service, commercial paper or
forbearance, and shall include, without limitation, the following:
(a) All revenues, receipts, commissions or proceeds from on-line sales by Operator
Party(ies), and/or from all public telephones, vending, weighing and all other
machines owned, operated, or leased to or by Operator Party(ies) in, on, or from
the Premises;
(b) All revenues, receipts, commissions or proceeds from sales based on orders
solicited or taken, in, on, or from the Premises for merchandise, food and
beverages, or services to be delivered or rendered off, or from sources outside, the
Premises, including, without limitation, all orders taken in, on, or from the
Premises although the orders may be filled elsewhere;
(c) All revenues, receipts, commissions or.proceeds from the renting of equipment of
any kind in, on, or from the Premises; and
(d) All revenues, receipts, conu-nissions or proceeds generated from offsite but
delivered through the Concession.
(e) All revenues, receipts, commissions or proceeds made by Operator Party(ies) or
their employees or others acting on their behalf for the rendition of services of any
kind whatsoever, made in, on, or from the Premises.
(f) All otherrevenues, receipts, commissions or proceeds generated by, arising or
derived whatsoever from the use of the Premises or derived whatsoever from any
business conducted in, on, or from the Premises.
For purposes of computing the Gross Sales figure on which to calculate the Operation
Charge, the amount of Gross Sales shall start over at zero dollars on January I of each year. If
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Sports Complex Concession - Stadium Club
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the Agreement commences on any date other than January 1, the Gross Sales calculation begins
from such commencement date and runs through December 31 of such Agreement
commencement year.
SECTION 13. GROSS SALES EXCLUSIONS
Gross Sales shall not include the following items, and Operator may deduct such items
from Gross Sales to the extent they have been included therein or have been included in a prior
computation of Gross Sales on which the Operation Charge has been paid under this Agreement
to City:
(a) Any sales, excise or other taxes otherwise includable in Gross Sales and which
become part of the total price of merchandise, food and beverages, or services
sold or rendered, or equipment rented, in, on, or from the Premises where
Operator must account for and remit the taxes to the government entity or entities
which impose them, but only if such taxes are added to the total price and
collected from customers;
(b) Any transfer of trade inventory from the Premises to the manufacturer or supplier
from whom it was obtained by Operator;
(c) Sales of Trade Fixtures (as defined in Section 51 below);
(d) Sums and credits received in the settlement of claims for loss of or damage to
trade inventory or. Trade Fixtures; and
(e) Any sales resulting in a cash or credit refund to a customer in the ordinary course
of business.
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SECTION 14. BOOKS AND RECORDS
Operator shall keep true and accurate books and records showing all of its business
transactions in separate records of account for the Concession in a manner acceptable to City,
and City and/or its designated representatives shall have the right, at all reasonable times; to
inspect such books and records including, without limitation, State of California sales or use tax
returns or other State return records, and Operator hereby agrees that all such records and
instruments shall promptly be delivered and made available to City and/or its designated
representatives within thirty (30) days of receiving written request therefor. Operator shall
furnish to City and/or its designated representatives copies of its quarterly California sales and
use tax returns at the time each is filed with the State of California.
The books and records shall show the total amount of Gross Sales made each calendar
month in, on, or from the Premises and any exclusions listed in Section 13 above. All sales and
charges shall be recorded by means of cash registers which display the amount of the transaction
certifying the amount recorded. The register shall be equipped with devices which log in daily
sales totals and which shall record on tapes the transaction numbers and sales details. At the end
of each day the tape shall record the total sales for that day. Operator agrees to maintain on the
Premises, or another location subject to the prior written approval of City, all records, books of
account and cash register tapes, showing, or in any way pertaining to the Gross Sales made'in,
on, or from the Premises during such calendar month, including, without limitation, State of
California sales or use tax returns or other State tax returns, for a period of five (5) years
following the close of each calendar month.
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SECTION 15. STATEMENT OF GROSS SALES/AUDIT
At the time specified in Section 14 of this Agreement for the payment of the Operation
Charge, Operator shall deliver to City a true and accurate statement signed by Operator or by an
authorized employee of Operator showing the total Gross Sales and any exclusions listed in
Section 13 above made during the preceding calendar month and the amount of the Operation
Charge then being paid calculated on such Gross Sales pursuant to this Agreement. The
acceptance by City of any monies paid to City by Operator as the Operation Charge, as shown by
any statement furnished by Operator, shall not be construed as an admission of the accuracy of
the statement, or of the sufficiency of the amount of the Operation Charge payment, and City
shall be entitled to review the adequacy of such payment as set forth herein. By the end of each
January, Operator shall deliver to City a year-end statement showing the total amount of Gross
Sales made .in, on, or from the Premises in each month of the preceding .year, the total of any
exclusions, the total Operation Charge paid to City for each of those months, all with year-end
totals. City may at any time within three (3) years after receiving the year-end statement, at its
sole cost and expense, cause all records, books of account and cash register tapes for the year
purportedly covered by the statement, to be audited by City or an accountant selected by City.
Operator shall, within thirty (30) days of receiving written notice of City's desire for such an
audit, deliver and make available all such records, books of account and cash register tapes to
City or its designated representative for City's use in the audit and/or for copying. If the audit
discloses that Gross Sales were understated and/or exclusions overstated, Operator shall
immediately pay the additional Operation Charge, together with a penalty thereon from the date
it was due at the penalty rate set forth in Section 11 above. Furthermore, Operator shall
promptly on demand reimburse City for the full cost and expense of the audit should the audit
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disclose that the questioned year-end statement understated Gross Sales (including an
overstatement of exclusions) or the Operation Charge by any amount greater than Two Hundred
Fifty Dollars ($250.00). City further reserves the right to examine and audit ali such records,
books of account and cash register tapes at any time during the three (3) year period following
the expiration or termination of this Agreement. In addition, City shall have the right to enter
upon the Premises during business hours and with two (2) hours advance written, verbal or
electronic notice to Operator to perform any audit or inspection function with respect to this
Agreement.
Operator, its bookkeeper and/or accountant shall respond to all questions and inquiries of
City with respect to the books, records, statements and other documentation being examined, and
shall promptly provide other further documentation as may be required by City. City is entitled
to take statements by deposition under. oath of Operator, its officers, bookkeepers and/or
accountants or any person who prepared the books, records, statements and other documentation
required to be provided by Operator under this Agreement.
SECTION 16. SECURITY DEPOSIT
- Upon execution hereof, Operator shall pay and maintain at all times during the entire
term of this Agreement or any renewals or extensions thereof or during any holdover period, a
security deposit with City in a sum of not less than Two Thousand Five Hundred Dollars
($2,500.00) to guarantee all of Operator's obligations, liabilities; duties and responsibilities
under the Agreement, including, without limitation, the repair and maintenance of the Premises
as provided herein. Such deposit shall be in the form of a cash bond or an assignment of
certificate of deposit (the "CD") or savings account to City, and shall be provided to the City
Treasurer. The form of any such security deposit shall be approved by the City Attorney and the
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City Treasurer. No interest shall accrue on cash deposits to the benefit of Operator, but interest
shall accrue on a CD or savings account and shall be paid to Operator under the terms of the CD
or savings account. Operator shall send a copy of each renewal of the CD to the City Treasurer
to ensure that City has the records of each active deposit account.
SECTION 17. USE OF COCA -COLA PRODUCTS; NO STYROFOAM
a. Operator shall comply with City's exclusivity agreement with the Coca-Cola
Bottling Company of Southern California ("Coca-Coia') by doing the following: only Coca-
Cola fountain and bottling products shall be bought and sold in, on, or from the Premises for the
terns of the City's agreement with Coca-Cola. This includes all carbonated and non -carbonated,
non-alcoholic beverages defined as soft drinks, juices, juice drinks, teas, isotonics, water and
frozen beverages. Frozen beverages shall not include ice creams and frozen yogurts. Operator's
failure to adhere to the Coca-Cola exclusivity clause shall constitute a Default of this Agreement
-as defined in Section 36 below. This exclusivity shall not apply to third -party rentals that bring
their own drink products.
b. Operator shall not use, purchase or acquire food service products that are
produced with expandable polystyrene, commonly known as Styrofoam. Prohibited products
include, but are not limited to, expandable polystyrene food service items such as cups, plates
containers and trays.
SECTION 18. QUALITY OF SALES RENTALS AND SERVICES
Operator, at its sole cost and expense, shall equip, operate, manage and maintain the
Premises and Concession and shall keep the same equipped and maintained in a manner
acceptable to City during the entire term of this Agreement or any renewals or extensions thereof
or during any holdover period. It is the intent of City that the Concession's services be provided
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in a manner to meet the needs of the visiting public, and should City deem the Concession's
hours of operation and/or food, merchandise, services or rentals inadequate to meet such needs,
City may require Operator to make such changes requested by City. Operator shall not use or
permit the Premises to be used, in whole or in part, during the entire term of this Agreement or
any renewals or extensions thereof or during any holdover period for any purpose other than as
herein set forth, without the prior written consent of City.
Except as permitted in advance in writing by City, all foods and beverages shall be sold
in disposable paper or plastic containers. No pull -top cans are to be vended or dispensed from
the Premises unless pre -approved in writing by City. Operator, wherever feasible, shall
eliminate the use of non -recyclable containers and plastics. City may from time to time review
the items sold and containers or utensils used or dispensed by Operator. City reserves the right
to prohibit the sale or use of -non -recyclable containers. or plastics.
City in its sole discretion reserves the right to prohibit Operator's sale, provision or rental
of any item or service rendered or performed, which it deems objectionable or offensive, beyond
the scope deemed necessary for proper service to the public, inappropriate for sale, provision or
rental by the Concession, or of inferior quality. City in its sole discretion reserves the right to
approve or disapprove any menu item for any reason, and hereby authorizes its Contract
Administrator to make such decisions on its behalf.
SECTION 19. INDEMNIFICATION, DEFENSE AND HOLD HARMLESS AGREEMENT
Operator hereby agrees to protect, defend, indemnify and hold harmless City, its officers,
elected or appointed officials, employees, agents and volunteers from and against any and all
claims, damages, losses, expenses, judgments, demands and defense costs (including, without
limitation, costs and fees of litigation (including arbitration) of every nature or liability of any
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kind or nature) arising out of or in connection with (1) the use or occupancy of the Premises by
Operator, its officers, employees or agents, or (2) the death or injury of any person or the damage
to property caused by a condition of the Premises, or (3) the death or injury of any person or the
damage to property caused by any act or omission of Operator, its officers, employees or agents,
or (4) any failure by Operator to keep the Premises in a safe condition, or (5) Operator's (or
Operator's agents and/or suboperators, if any) performance of this Agreement or its failure to
comply with any of its obligations contained in this Agreement by Operator, its officers, agents
or employees except such loss or damage which was caused by the sole negligence or willful
misconduct of City. Operator shall hold all Trade Fixtures, personal property and trade
inventory on the Premises at the sole risk of Operator and save City harmless from any loss or
damage thereto by any cause whatsoever, except such loss or damage which was caused by the
sole negligence or willful misconduct of City. Operator will conduct all defense at its sole cost
and expense and City shall approve selection of Operator's counsel. This indemnity shall apply
to all claims and liability regardless of whether any insurance policies are applicable. The policy
limits do not act as limitation upon the amount of indemnification to be provided by Operator.
SECTION 20. WORKERS' COMPENSATION AND EMPLOYERS' LIABILITY
INSURANCE
Operator acknowledges awareness of Section 3700 et seq. of the California Labor Code,
which requires every employer to be insured against liability for workers' compensation. Operator .
covenants that it shall comply with such provisions prior to the commencement of this Agreement.
Operator shall obtain and furnish to City workers' compensation and employers' liability insurance
in amounts not less than the State statutory limits. Operator shall require all suboperators and
contractors to provide such workers' compensation and employers' liability insurance for all of the
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suboperators' and contractors' employees. Operator shall furnish to City a certificate of waiver of
subrogation under the terms of the workers' compensation and employers' liability insurance and
Operator shall similarly require all suboperators and contractors to waive subrogation.
SECTION 21. GENERAL PUBLIC LIABILITY INSURANCE
In addition to the workers' compensation and employers' liability insurance and
Operator's covenant to defend, hold harmless and indemnify City, Operator shall obtain and
furnish to City, a policy of general public liability insurance, including motor vehicle coverage
against any and all claims arising out of or in connection with the Premises. This policy shall
indemnify Operator, its officers, employees and agents, while acting within the scope of their
duties, against any and all claims arising out of 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 One Million Dollars ($1,000,000.00) per occurrence. If coverage is provided under a
form which includes a designated general aggregate limit, the aggregate limit must be no less
than One Million Dollars ($1,000,000.00) for the Premises. This policy shall name City, its
officers, elected or appointed officials, employees, agents, and volunteers as Additional Insureds,
and shall specifically provide that any other insurance coverage which may be applicable to the
Agreement shall be deemed excess coverage and that Operator's insurance shall be primary.
Under no circumstances shall said above -mentioned insurance contain a self -insured
retention, or a "deductible" or any other similar form of limitation on the required coverage.
SECTION 22. PROPERTY INSURANCE
Operator shall provide before commencement of this Agreement and shall obtain and
furnish to City, at Operator's sole cost and expense, property and fire insurance with extended
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coverage endorsements thereon, by a company acceptable to City authorized to conduct
insurance business in California, in an amount insuring for the full insurable value of all
Improvements, Trade Fixtures, personal property whether or not awned or leased by Operator,
and all trade inventory in or on the Premises against damage or destruction by fire, theft or the
elements. This policy shall contain a full replacement cost endorsement naming Operator as the
insured and shall not contain a coinsurance penalty provision. The policy shall also contain an
endorsement naming City as an Additional Insured. The policy shall contain a special
endorsement that such proceeds shall be used to repair, rebuild or replace any such
Improvements, Trade Fixtures, personal property whether or not owned or leased by Operator,
and all trade inventory so damaged or destroyed; and if not so used, such proceeds (excluding
any insurance proceeds for Trade Fixtures, personal property whether or not owned or leased by
Operator, and trade inventory, but only to the extent the insurance proceeds specifically cover
those items) shall be paid to City. The policy shall also contain a special endorsement that if the
Premises are so destroyed triggering the parties' ability to terminate as set forth in Section 52
(Destruction) below, and either party elects to terminate the Agreement, the entire amount of any
insurance proceeds (excluding such proceeds for Trade Fixtures, personal property whether or
not owned or leased by Operator and trade inventory, but only to the extent the insurance
proceeds specifically cover those items) shall be paid to City. The proceeds of any such
insurance payable to City may be used, in the sole discretion of City, for rebuilding or repair as
necessary to restore the Premises or for any such other purpose(s) as City sees fit.
This policy shall also contain the following endorsements:
(a) The insurer shall not cancel or reduce the insured's coverage without (30)
days prior written notice to City;
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(b) City shall not be responsible for premiums or assessments on the policy.
A complete and signed certificate of insurance with all endorsements required by this
Section shall be filed with City prior to. the execution of this Agreement. At least thirty (30) days
prior to the expiration or termination of any such policy, a signed and complete certificate of
-- insurance showing that coverage has been renewed shall be filed with City.
SECTION 23. INCREASE IN AMOUNT OF GENERAL PUBLIC LIABILITY
AND PROPERTY INSURANCE
Not more frequently than once every two (2) years, if, in the sole opinion of City, the
amount and/or scope of general public liability insurance in Section 21 above and/or property
insurance coverage in Section 22 above at that time is not adequate, Operator shall increase the
insurance coverage as reasonably required by City.
SECTION 24. CERTIFICATES OF INSURANCE; ADDITIONAL INSURED
ENDORSEMENTS
Prior to commencement of this Agreement, Operator shall furnish to City certificates of
insurance subject to approval of the City Attorney evidencing the foregoing insurance coverages
as required by this Agreement; these certificates shall:
(a) provide the name and policy number of each carrier and policy;
(b) shall state that the policy is currently in force; and
(c) shall promise to provide that such policies shall not be canceled or
modified without thirty (30) days' prior written notice of City; however ten (10)
days' prior written notice in the event of cancellation for nonpayment of
premium, which 10-day notice provision shall not apply to property insurance in
Section 22 above.
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Operator shall maintain the foregoing insurance coverages in force during the entire term
of the Agreement or any renewals or extensions thereof or during any holdover period.
The requirement for carrying the foregoing insurance coverages shall not derogate from
Operator's defense, hold harmless and indemnification obligations as set forth in this Agreement.
City or its representatives shall at all times have the right to demand the original or a copy of any
or all the policies of insurance. Operator shall pay, in a prompt and timely manner, the
premiums on all insurance hereinabove required.
SECTION 25. INSURANCE HAZARDS
Operator shall not commit or permit the commission of any acts on the Premises nor use
or permit the use of the Premises in any manner that will increase the existing rates for, or cause
the cancellation of any liability, property, or other insurance policy for the Premises or required
by this Agreement. Operator shall, at its sole cost and expense, comply with all requirements of
any insurance carrier providing any insurance policy for the Premises or required by this
Agreement necessary for the continued maintenance of these policies at reasonable rates.
SECTION 26. MAINTENANCE OF PREMISES
Operator's maintenance responsibilities of the Premises shall include, but not be limited
to, maintaining all sewers and drain lines, roofs and attached public restrooms (if they exist);
provided, however, that City shall provide the sanitary supplies for such restrooms, such as hand
soap, bathroom tissue, and the like. Operator agrees to maintain the Premises in good order and
repair, at Operator's sole cost and expense, during the entire term of this Agreement or any
renewals or extensions thereof or during any holdover period, pursuant to the City's maintenance
standards. A copy of the quarterly evaluation summary sheet setting forth the City's
maintenance checklist is attached as Exhibit "C", and incorporated herein by this reference.
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Except as provided above, Operator, at its sole cost and expense, shall perform any maintenance
and repairs including, without limitation, facility maintenance and landscape maintenance on the
Premises.
Operator's obligation includes, without limitation, maintaining and operating the
Premises in a clean, safe, wholesome and sanitary condition free of trash, garbage or obstructions
of any kind and in compliance with any and all present and future Iaws, general rules or
regulations of any governmental authority now, or at any time during the entire term of this
Agreement or any renewals or extensions thereof or during any holdover period, in force,
relating to sanitation or public health, safety or welfare, or for the protection of life, limb or
property; and Operator shall at all times faithfully obey and comply with all laws, rules and
regulations applicable thereto. Operator, at its sole cost and expense, shall remedy without delay
any defective, dangerous or unsanitary condition(s) caused by Operator or anyone related
thereto. Provided, however, that Operator shall have no obligation to repair or maintain sewer
lines or respond to sewer leaks.
Operator shall paint, stain or seal the Premises' exterior surfaces a minimum of every
three_(3) years, unless City determines in its sole discretion that such work shall be done on a
more frequent basis. All exterior metal surfaces, except the roof, shall be painted with rust
resistant paint no less than once every other year. Any and all graffiti on the Premises shall be
removed by Operator, at its sole cost and expense, within forty-eight (48) hours of Operator
receiving notice thereof or of Operator becoming aware of such graffiti. In addition, with or
without notice from City, Operator shall, at its sole cost and expense, repair and/or replace any
broken glass within forty-eight (48) hours of its becoming broken, regardless of cause, except by
fault of City. Except as provided above for graffiti and broken glass, Operator, at its sole cost
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and expense and with or without notice from City, shall repair and/or replace all damage or
destruction to the Premises caused by act(s) of vandalism as soon as possible but in no event
later than fourteen (14) days after the date such damage or destruction occurred. Operator, at its
sole cost and expense, shall repair and/or replace all other damage or destruction to the Premises,
regardless of cause, except by fault of City.
Operator shall comply with all written notices served by City with regard to the care and
maintenance of the Premises. Any written notice hereunder shall specify the work to be done
and the period of time deemed to be reasonably necessary for completion of such work. Should
Operator fail to commence making the necessary repairs within seven (7) days after receiving
such notice, or within twenty-four (24) hours of the glass becoming broken in the case of broken
glass, or fail to diligently proceed to complete the necessary repairs within the period of time
reasonably specified in the City's notice, or within forty-eight (48) hours of the glass becoming
broken in the case of broken glass, or within the forty-eight (48) hour time period for removing
graffiti, or within fourteen (14) days of the date that the vandalism damage or destruction
occurred, City shall proceed to cause the required work to be performed, and Operator shall
promptly reimburse City for the cost of labor and materials thereof and pay City a penalty on
such costs at the penalty rate set forth in Section 11 above from the date the costs were incurred
by City to the date they are reimbursed to City by Operator.
Operator.hereby expressly waives the right to make repairs at the expense of City and the
benefit, if any, of the provisions of Sections 1941 and 1942 of the California Civil Code relating
thereto.
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SECTION 27. OPERATION CHARGE CREDIT
City in its sole discretion may decide to give Operator a credit against the Operation
Charge if Operator undertakes (1) any repair or maintenance obligation of City under this
Agreement, (2) any work City in its sole discretion deems necessary and appropriate, or (3) any
Operator improvements. Prior to Operator undertaking any such work, City must agree in
writing to the amount of and procedures for the credit, the work to be done by Operator and the
cost of such work. Upon approval by the City Administrator, the Credit may be in the form of a
rebate of up to Fifty Percent (50%) of Operator's cost for such improvements. No such credit will
be considered by City unless and until all Iiens for labor or materials, if any, have been
unconditionally released. If approved, any such credit will be applied in equal monthly
increments over the base term of this Agreement.
SECTION 28. DAMAGE, DESTRUCTION OR NUISANCE
Operator shall not commit or permit the commission by others of any damage or
destruction of, on, or to the Premises and/or Concession. Operator shall not maintain, commit or
permit the maintenance or commission of any nuisance as defined in Section 3479 and/or Section
3480 :of the California Civil Code on the Premises; and Operator shall not use or permit the use
of the Premises for any unlawful purpose.
SECTION 29. TAXES
Operator agrees to pay, at its sole cost and expense, before they become delinquent all
lawfid taxes, assessments or charges, which at any time may be levied by any governmental
agency including, without limitation, the State, County, City or any tax or assessment levying
body. Upon request, Operator shall promptly furnish to City satisfactory evidence establishing
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such payment. Operator shall comply with all laws, regulations and ordinances regarding the
collection of taxes due a government agency.
SECTION 30. PAYMENT OF OBLIGATIONS
Operator shall promptly pay, at its sole cost and expense, before they become delinquent,
any and all bills, debts, liabilities and obligations incurred by Operator in connection with
Operator's occupation and use of the Premises and/or operation of the Concession. Upon
request, Operator shall promptly finnish to City satisfactory evidence establishing such payment.
SECTION 31. UTILITIES AND SERVICES
Excluding any attached public restrooms, if they exist, Operator shall be responsible for
the payment of all utility charges, including, without limitation, gas, electricity, water, telephone
service, cable TV service, and the furnishing of all necessary refuse and garbage containers and
the removal and disposal of all rubbish, refuse and garbage resulting from the operation of the
Premises and/or the Concession. All such rubbish, refuse and garbage removed shall be disposed
of in accordance with applicable laws and local ordinances. Trash dumpsters may not be moved
or relocated from their established locations without the express prior consent of City. All trash
containers and/or trash bins shall be adequately screened and located to the satisfaction of City.
For the purposes of this Section, sewage disposal shall be construed as a utility. All such charges
shall be paid by Operator directly to the provider of the service and shall be paid as they become
due and payable. Upon request, Operator shall promptly furnish to City satisfactory evidence
establishing such payment.
SECTION 32. BUSINESS LICENSE
Operator shall maintain a business license from City during the entire term of this
Agreement or any renewals or extensions thereof or during any holdover period.
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SECTION 33. SIGNS, ADVERTISING AND APPROVAL OF NAME
City shall have the right to approve in its sole discretion and at any time require Operator
to -change or remove signs, names, placards, decorations or advertising placed on, or inscribed,
pared or affixed upon the Premises. Should City approve of any sign, name, placard,
decimation or advertising, Operator shall maintain the same at all times during the entire term of
this -Agreement or any renewals or extensions thereof or during any holdover period in good
appearance and repair. All signs, names, placards, decorations or advertising must comply with
all requirements of any governmental authority with jurisdiction.
SECTION 34. NO ASSIGNMENT OR OTHER TRANSFER
_ 1
r. (a) Prohibition of Assi ent. The parties acknowledge that City is entering into
the Agreement in reliance upon the experience and abilities of Operator and its
principals. Consequently, Operator shall not voluntarily assign, encumber or
otherwise transfer its interest. in the Agreement or in the Premises, or any part of
the Premises, or allow any other person or entity (except Operator's authorized
representatives) to occupy or use all or any part of the Premises without the prior
written consent of City, which consent shall not be unreasonably withheld.
Provided, however, that City's consent shall not relieve Operator from any and all
of its obligations, liabilities, duties or responsibilities under this Agreement. Any
assignment, encumbrance, occupation or use, sublease or other transfer without
such consent shall be voidable and, at City's sole discretion, shall constitute a
Default of this Agreement.
(b) Consent to Transfer. City's consent to any assignment, encumbrance, occupation
or use, or other transfer is subject to Operator providing City with evidence
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satisfactory to City that the proposed, assignee, encumbrancer, occupier or user,
or other transferee has suitable financial strength, experience and character for
operation and control of the Premises and the Concession and that the use of the
Premises by the proposed assignee, encumbrancer, occupier or user, or other
transferee is consistent with that specified herein, and is commercially reasonable.
Any proposed assignee, encumbrancer, occupier or user, or other transferee shall
agree to abide by the terms and conditions of the Agreement including, without
limitation, all the obligations, liabilities, duties and responsibilities of Operator,
and other conditions imposed upon it pursuant to law. An approval by City to one
assignment, encumbrance, occupation or use, or other transfer shall not be
deemed to be an approval to any other assignment, encumbrance, occupation or
use, or other transfer.
(c) .Voluntary assignment defined.Except as otherwise expressly provided herein,
any dissolution, merger, consolidation or reorganization of Operator, or the sale or
other transfer resulting in a transfer of a controlling percentage of the capital stock
of Operator (other than a transfer by will, devise, bequest, intestate succession, a
transfer to or between the family members of Operator, or a transfer to or between
one or more trusts for the benefit of Operator and/or Operator's family members,
where applicable) shall be deemed a voluntary assignment.
(d) Exceptions. Notwithstanding the foregoing paragraphs or anything to the
contrary contained herein, City's consent shallnot be required for an assignment
to an Affiliate, Subsidiary or Successor of Operator (for purposes hereof, an
"Affiliate," a "Subsidiary" and a "Successor" of Operator are defined as follows:
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(a) an "Affiliate" is any corporation which directly or indirectly controls or is
controlled or is under common control with Operator (for this purpose, "control"
shall mean the possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of such corporation, whether
through the ownership of voting securities or by contract or otherwise), (b) a
"Subsidiary" shall mean any corporation or partnership not less than twenty-five
percent (25%) of whose outstanding stock shall, at the time, be owned directly or
indirectly by Operator and which is at least as creditworthy as Operator, and (c) a
"Successor" shall mean a corporation or partnership in which or with which
Operator is merged or consolidated, in accordance with applicable statutory
provisions for merger or consolidation of corporations, or a corporation or
partnership acquiring a substantial portion of the property and assets of Operator.
SECTION 35. TERMS BINDING ON SUCCESSORS
All the terms, covenants and conditions of this Agreement shall inure to the benefit of
and be binding upon the parties and their successors, including, without limitation, their
assignees, encumbrancers, occupiers or users, or other transferees. The provisions of this
Section shall not be deemed as a (1) waiver of any of the prohibitions and conditions against
assignments, encumbrances, occupations or uses, or other transfers hereinbefore set forth, or (2)
City's consent thereto, If more than one operator is a party to this Agreement, the obligations of the
operators shall be joint and several. Even if City's consent is not required, Operator shall
immediately provide City with written notice of any, assignment, encumbrance, occupation .or
use, or other transfer.
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SECTION 36. DEFAULT
The occurrence of any one or more of the following events shall constitute a material default
and breach ("Default"} of this Agreement by Operator:
(a) Operator's failure to make any payment of the Operation Charge or other payment
required to be made by Operator at the time required for payment under this
Agreement.
(b) Operator's failure to obtain or maintain the insurances and/or the security deposit as .
required under this Agreement.
(c) Operator's vacating or abandonment of the Premises during the entire term of this
Agreement or any renewals or extensions thereof or during any holdover period.
Closure of the Concession for more than a combined total of one hundred eighty
(184) days in a calendar year, minus any days of closure of the Concession caused
by City, shall be deemed an abandonment 'of the .Premises.
(d) Operator's violation of Section 19 (Indemnification, Defense and Hold Harmless
Agreement), Section 34 (No Assignment or Transfer), Section 47 (Hazardous
Substances), Section 48 (Nondiscrimination), Section 49 (Sale of Alcoholic
Beverages and Entertainment Prohibited), Section 62 (Conflict of Interest) or
Section 64 (Compliance with Laws).
(e) The insolvency of Operator as evidenced by a receiver being appointed to take
possession of all or substantially all of Operator's assets located at or on the
Premises or of Operator's interest in this Agreement, or the making by Operator
of a general arrangement or assignment for the benefit of creditors, or Operator's
filing a petition in bankruptcy, whether voluntary or. involuntary, or the
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0
attachment, execution or the judicial seizure of substantially all of Operator's
assets located at or on the Premises or of Operator's interest in the Agreement.
(f) Operator's failure to observe or perform any other term, covenant, obligation,
duty, responsibility or condition of this Agreement to be observed or performed
by Operator when such failure shall continue for a period of thirty (30) days after
City's giving written notice to Operator, or such earlier period if specifically set
forth in this Agreement; however, if the nature of such failure is such that more
than thirty (30) days are reasonably required for its cure, then Operator shall not
be deemed to be in Default if Operator notifies City of the length of the additional
r time required to cure and receives City's written approval of the additional time
_�. required, which approval will not be unreasonably withheld, and commences such
cure within such thirty (30) day period and diligently proceeds with such cure to
completion during such additional time period approved by City.
SECTION 37. REMEDIES
(a) . Cumulative Nature of Remedies. In the event of any Default by Operator;
City shall have the remedies described in this Section in addition to all other
rights and remedies provided by law or equity, to which City may resort
cumulatively or in the alternative:
(1) Reentry without Termination. City may at City's sole discretion reenter
the Premises, and, without terminating the Agreement, at any time and
from time to time, agree to have another party operate and manage the
Premises or any part or parts of them for the account and in the name of
Operator or otherwise. Any such subsequent agreement may be for the
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Sports Complex Concession - Stadium Club
remainder of the term or for a longer or shorter period. City may in City's
sole discretion eject all persons or eject some and not others or eject none.
In addition, City may in its sole discretion remove some or all of the Trade
Fixtures, personal property and trade inventory from the Premises. City
may store such removed Trade Fixtures, personal property and trade
inventory in a public warehouse or other location at the sole cost, expense
and risk of Operator, and for the account of and in the name of Operator.
City shall apply all payments from such subsequent operators as follows:
first, to the payment of reasonable expenses paid or incurred by or on
behalf of City in recovering possession, placing the Premises in good
condition, and preparing or altering the Premises for the subsequent
operator; second, to the reasonable expense of securing new operators or
or sub -operators; third, to the fulfillment of Operator's covenants to the
end of the term. City may execute any agreements made under this
provision either in City's name or in Operator's name and City shall be
entitled to all payments from the use, operation, management or
occupancy of the Premises. Operator shall nevertheless pay to City on the
dates specified in this Agreement the equivalent of all sums required of
Operator under this Agreement, plus City's expenses, less the proceeds of
any subsequent operating agreement.
(2) Termination. In the event of a Default by Operator, City may at City's
sole discretion terminate this Agreement by giving Operator written notice
of termination.. In the event City terminates this Agreement, City may
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recover possession of the Premises (which Operator shall immediately
surrender and vacate upon demand) and remove all persons therefrom, and
Operator shall comply with, without limitation, Sections 56 and 57 below.
City also shall be entitled to recover as damages any or all of the
following:
(A) The worth at the time of the award of any unpaid Operation Charge
or other charges which have been earned at the time of
termination;
(B) The worth at the time of the award of the amount by which the
unpaid Operation Charge (each month's Gross Sales Operation
Charge would be calculated as the average Gross Sales Operation
Charge for that same month in the preceding years, or if Operator
did own/operate the Concession in the preceding years, then each
month's Gross Sales Operation Charge would be calculated as the
average of all months Operator owned/operated the Concession)
and other charges which would have been earned after termination
until the time of the award exceeds the amount of the loss of such
Operation Charge and other charges that Operator proves could
have been reasonably avoided;
(C) The worth at the time of the award of the amount by which the
unpaid Operation Charge (each month's Gross Sales Operation
Charge would be calculated as the average Gross Sales Operation
Charge for that same month in the preceding years, or if Operator
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Sports Complex Concession - Stadium Club
did not own/operate the Concession in the preceding years, then
each month's Gross Sales Operation Charge would be calculated
as the average of all months Operator owned/operated the
Concession) and other charges for the balance of the term after the
time of the award exceeds the amount of the loss of such Operation
Charge and other charges that Operator proves could have been
reasonably avoided;
(D) Any other amount necessary to compensate City for the detriment
proximately caused by Operator's failure to perform its
obligations, liabilities, duties or responsibilities under this
Agreement; and
(E) At City's sole discretion, such other amounts in addition to or in
lieu'of the foregoing as. may be permitted from time to time by
applicable California law.
As used in Sections 37(a)(2)(A) and (13) above, the "worth at the time of the
award" shall be computed by allowing interest at the rate of twelve percent (12%) per
annum. As used in Section 37(a)(2)(C) above, the `worth at the time of the award" shall
be computed by discounting such amount at the discount rate of the Federal Reserve
Bank of San Francisco at the time of the award, plus one percent (1 %). The amount
recoverable by City pursuant to Section 37(a)(2)(D) above shall include, without
limitation, any costs. or. expenses incurred by City in maintaining or preserving the,
Premises alter such Default.
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9 0
(3) Use of Personal Property. City may at City's sole discretion use the
Trade Fixtures, personnel property and/or trade inventory located on,
about or appurtenant to the Premises without compensation and without
liability for use or damage, or store them in a public warehouse or other
location at the sole cost, expense and risk of Operator, and for the account
of and in the name.of Operator..
(b) Election of Remedy. The election of one remedy for any one item shall not
foreclose an election of any other remedy for another item or for the same item at
a later time.
(c) City's Right to Cure Operator's Default. Upon continuance of any Default, City
may in its sole discretion, but is not obligated to, cure such Default at Operator's
sole cost and expense. If City at any time, by reason of such Default by Operator,
pays any sum or does any act, the sum paid by City plus the reasonable cost of
performing such act, together with a penalty thereon at the penalty rate set forth in
Section I 1 above from the date the costs were incurred or the act performed by
City to the date they are reimbursed to City by Operator, shall be due as additional
rent not later than five (5) days after service of a written demand therefor on
Operator, including reasonably detailed documentation of the amount owed. No
such payment or act shall constitute a waiver of Default or of any remedy for
Default or render City liable for any loss or damage resulting from any such act.
(d) Waiver of Rights. Operator hereby waives any right of redemption or relief
from forfeiture under California Code of Civil Procedure Sections 1174 or 1179
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0
if appealed by, or under any other present or future law, City takes possession of
the Premises by reason of any Default by Operator hereunder.
(e) Other Rights of City. No act of City, including, without limitation, but not
limited to City's entry on the Premises, or maintenance of the Premises, shall be
construed as an election to terminate this Agreement unless a written notice of
such intention is given to Operator by City or unless the termination thereof is
decreed by a court of competent jurisdiction. Notwithstanding if City elects to
continue the Agreement in full force and effect after a Default by Operator and to
relet the Premises, City may at any time after such reletting elect to terminate this
Agreement for any such Default.
SECTION 38. CUMULATIVE REMEDIES
The remedies given to City in this Agreement 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 Agreement. City shall have the right to exercise any other right or remedy
which City may have at law or in equity without limitation.
SECTION 39. WAIVER OF DEFAULT
The waiver by City of any Default by Operator of any of the provisions of this
Agreement shall not constitute a continuing waiver or a waiver of any subsequent Default by
Operator either of the same or another provision of this Agreement.
SECTION 40. CITY'S DEFAULTS/OPERATOR'S REMEDY
In the event City fails to perform any material obligation of City under the Agreement
within ninety (90) days after receiving written notice from Operator specifying the nature of such
default, or, if the nature of City's obligation is such that more than ninety (90) days are required
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Sports Complex Concession - Stadium Club
for its performance, if City fails to commence such performance within such ninety (90) day
period and thereafter diligently prosecute the same to completion, then City shall be in default of
this obligation. If City's default materially interferes with Operator's use of the Premises for its
` intended purpose, Operator shall have the option to terminate the Agreement by giving City at
least sixty (60) days' written notice of its intent to terminate. In such a situation, Operator must
still comply with all of its obligations, liabilities, duties and responsibilities under the
Agreement, including, without limitation, paying any Operation Charge due up to the time of
termination and surrendering the Premises pursuant to Sections 56 and 57 below. This remedy
of termination is Operator's sole and exclusive remedy for a default by City.
- SECTION 41. CONSENT
When City's consent/approval is required under this Agreement, its consent/approval for
one transaction or event shall not be deemed to be a consent/approval to any subsequent
occurrence of the same or any other transaction or event.
SECTION 42. NVAIVER OF CLA MS
Operator hereby waives any claim against City, its officers, elected or appointed officials,
employees, agents or volunteers for damage or loss caused by any suit or proceeding directly or
indirectly attacking the validity of this Agreement, or any part thereof, or caused by any
judgment or award in any suit or proceeding declaring this Agreement null, void or voidable, or
delaying the Agreement or any part thereof from being carried out.
SECTION 43. INSPECTION OF PREMISES
Upon at least twenty-four (24) hours advance written, verbal or electronic notice given by
City to Operator, Operator shall permit City or City's agents, representatives or employees to
enter the Premises at all reasonable times for the purpose of inspecting, investigating and
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surveying the Premises to determine whether Operator is complying with the terms of this
Agreement and for the purpose of doing other lawful acts that may be necessary to protect City's
interest in the Premises or to perform City's duties. under this Agreement. City also shall have
the right in its sole discretion to do any and all work of any nature necessary for the preservation,
maintenance and operation of property owned, controlled or occupied by City. Operator shall be
given reasonable notice when such work becomes necessary, and Operator shall adjust the
operation of the Concession in such a manner that City may proceed expeditiously.
SECTION 44. CITY'S RIGHT TO BUYOUT
City shall have the right at any time during the entire term of this Agreement or any
renewals or extensions thereof to buyout the remaining years of the Agreement and Operator's
interest in this Agreement based upon the following buyout formula:
Average of the most recent two (2) yearn (preceding the date of the notice
of buyout) annual Gross Sales under this Agreement or a prior lease
multiplied by a twelve and one-halfpercent (12.5°%) profit margin
multiplied by the number of years remaining on the Agreement discounted
by twelve and one-half percent (12.5%) to present value.
For example:
The annual Gross Sales for the most recent two (2) years of the Concession are
$335,000.00 and $350,000.00. If City gives Operator notice of its buyout intention in
September, the preceding two (2) years would be the preceding twenty-four (24) months ending
in August. There are three (3) years remaining in the Agreement.
The average of the Gross Sales of the most recent two (2) years is $342,500.00
($335,000.00 + $350,000.00/2).
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Sports Complex Concession - Stadium Club
The profit margin is 12.5% of the most recent two (2) year average which is $42,912.50
($342,500.00 x 0.125).
The profit margin is then discounted at the rate of 12.5% to present value.over.the
remaining years of the Agreement:
Year 1: $42,812.50 / 1.125 = $38,055.56
Year 2: $42,812.50 / I.125 / 1.125 = $33,827.16
Year 3: $42,812.50 / 1.125 / 1.125 / 1.125 = $30,068.59
All of the discounted cash flows for the remaining years of the Agreement are totaled and
the result is the buyout price of the Agreement. In this case, the City's buyout price is
$101,951.31.
If Operator has owned/operated the Concession for less than two (2) years, the City's
buyout price will be the greater of (1) the amount calculated under the Gross Sales formula.
above or (2) all reasonable and provable start-up costs, which start-up costs will be determined
by City in its sole discretion. The annual Gross Sales figure on which to calculate the buyout
amount shall be calculated as follows:
The average monthly Gross Sales for all months up to twenty-three (23)
months converted into an annual Gross Sales figure.
For example, if City decides to buyout the Agreement of a new Operator who has
owned/operated the Concession for. fifteen (15) months, with an average monthly Gross Sales
figure of Five Thousand Dollars ($5,000.00), the annual Gross Sales figure for the option to
buyout would be Sixty Thousand Dollars ($60,000.00).
For purposes of this calculation, an Operator shall not be considered a new operator if the
Concession was previously owned/operated by an operator whose assignment, encumbrance,
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Sports Complex Concession - Stadium Club
occupation or use, or other transfer to Operator did not require City approval in Section 34
above.
At City's sole option, City shall have the right, but not the obligation, to purchase any or
all of Operator's Trade Fixtures (defined in Section 51 below), based on the appraised fair value
market of the Trade Fixtures.
If City desires to purchase any or all of Operator's Trade Fixtures, City shall select an
appraiser to provide an appraisal of such Trade Fixtures. If Operator disagrees with City's
appraisal, Operator, at its sole cost and expense, shall select another appraiser to provide an
appraisal. If City disagrees with Operator's appraisal, City shall select another appraiser to
perform an appraisal. In such case, the parties agree that the price for the Trade Fixtures will be
the average of these three (3) appraisals. All appraisers must be members in good standing in the
American Society of Appraisers. Notwithstanding the foregoing,. at any time, City may elect not
to purchase any or all of Operator's Trade Fixtures.
Upon City's request, Operator shall provide City with proof of lien free, good and
merchantable title to any such Trade Fixtures City desires to purchase. Operator shall protect,
defend, indemnify, and hold harmless City, its officers, elected and appointed officials,
employees, agents and volunteers from and against any and all liens, claims, damages, losses,
expenses, judgments, demands and defense costs (including, without limitation, costs and fees of
litigation (including arbitration) of every nature or liability of any kind or nature) arising out of
or in connection with Operator's fraud, omission or negligence regarding any purchase of
Operator's Trade Fixtures by City. Operator will conduct all defense at its sole cost and expense
and City shall approve selection of Operator's counsel. This indemnity shall apply to all claims
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and liability regardless of whether any insurance policies are applicable. The policy limits do not
act as limitation upon the amount of indemnification to be provided by Operator.
Operator acknowledges and agrees that this Agreement buyout option of City has been
negotiated at arms -length and does not constitute nor does Operator construe this to be an act of
eminent domain or inverse condemnation. In the event City exercises this buyout option,
Operator waives any and all claims of loss of business goodwill and relocation rights or benefits.
Operator also shall immediately surrender the Premises as set forth herein and comply with,
without limitation, Sections 56 and 57 below.
SECTION 45. PHOTOGRAPHY
Operator acknowledges and agrees that City may grant permits to third parties engaged in
the production of still and motion pictures and related activities to take photographs
or videos of or on the Premises when such permission shall not interfere with the primary
business of Operator, all without providing Operator with notice or requiring consent by
Operator.
SECTION 46. HAZARDOUS SUBSTANCES
Operator represents and warrants that its use or occupation of the Premises shall not
generate any Hazardous Substance (as defined below in this Section), and it shall not store or
dispose on the Premises nor transport to or over the Premises any Hazardous Substance during
the entire term of this Agreement or any renewals or extensions thereof. - The foregoing
restrictions shall not be deemed to restrict or prohibit the use by Operator of ordinary cleaning
products as customarily used in Operator's ordinary course of business at the Concession,
provided that Operator complies with all provisions of law as to the use, storage and disposal of
such products. Operator further agrees to clean up and remediate any such Hazardous Substance
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Sports Complex Concession - Stadium Club
•
on the Premises, and agrees to protect, defend, indemnify and hold harmless City, its officers,
elected or appointed officials, employees, agents and volunteers from and against any and all
claims, damages, losses, expenses, judgments, demands and defense costs (including, without
limitation, costs and fees of litigation (including arbitration) of every nature or liability of any
kind or nature) arising out of or in connection with any such Hazardous Substance and any
damage, loss, or expense or liability resulting from any such Hazardous Substance including,
without limitation, all attorney's fees, costs and penalties incurred as a result thereof except any
release caused by the sole negligence or willful misconduct of City. Operator will conduct all
defense at its sole cost and expense and City shall approve selection of Operator's counsel. This
indemnity shall apply to all claims and liability regardless of whether any insurance policies are
applicable. The policy limits do not act as limitation upon the amount of indemnification to be
provided by Operator. "Hazardous substance"- shall be interpreted broadly to mean any -
substance or material defined or designated as a hazardous or toxic waste, hazardous or toxic
material, hazardous or toxic or radioactive substance, or other similar term, by any Federal, State
or local environmental law, regulation or rule presently in effect or promulgated in the future, as
such law, regulation or rule may be amended from time to time; and it shall be interpreted to
include, without limitation, any substance which after release into the environment will or may
reasonably be anticipated to cause sickness, death or disease.
SECTION 47. NONDISCRIMINATION
Operator and its employees shall not discriminate because of race, religion, color,
ancestry, sex, age, national origin or physical handicap against any person by refusing to finrnish
such person any accommodation, facility, rental, service or privilege offered to or enjoyed by the
37
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0
0
general public. Nor shall Operator or its employees publicize the accommodation, facilities,
rentals, services or privileges in any manner that would directly or inferentially reflect upon or
question the acceptability of the patronage of any person because of race, religion, .color,
ancestry, sex, age, national origin or physical handicap.
In the performance of this Agreement, Operator shall not discriminate against any
employee or applicant for employment, because of race, religion, color, ancestry, sex, age,
national origin or physical handicap. Operator shall take affirmative action to ensure that
applicants are employed and that employees are treated during employment, without regard to
their race, religion, color, ancestry, sex, age, national origin or physical handicap. Such action
shall include, without limitation, the following: employment, upgrading, demotion or transfer;
recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of
compensation; and selection for training, including; without limitation, apprenticeship. Operator
shall post in conspicuous places, available to all employees and applicants for employment,
notices setting forth the provisions of this Section.
Operator shall permit access to its records of employment, employment advertisements,
application forms, and other pertinent data and records by City, the State Farr Employment
Practices Commission or any other agency with jurisdiction over these matters, for the purpose
of investigation to ascertain compliance with this Section.
City may determine a violation of this Section to have occurred upon receipt of a final
judgment having that effect from a court in an action to which Operator was a party, or upon
receipt of a written notice from the State Fair Employment Practices Commission or other
government agency with jurisdiction over these matters that it has investigated and determined
that Operator has violated the Fair Employment Practices Act or other applicable discrimination
38
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0
law and has issued an order which has become final, or obtained an injunction. In the event of
violation of this Section, City shall have the right to terminate this Agreement, and any loss of
revenue sustained by City by reason thereof shall be bome and paid for by Operator, at its sole
cost and expense.
SECTION 48. SALE OF ALCOHOLIC BEVERAGES AND ENTERTAINMENT
PROHIBITED
Notwithstanding anything to the contrary, the sale or provision of alcoholic beverages
and/or live entertainment in, on, or from the Premises is expressly forbidden, unless expressly
permitted in writing by City in advance. For any proposed sale or provision of alcoholic
beverages, Operator must first obtain written City approval prior to submitting any request for
approval to the Alcohol Beverage Commission.
SECTION 49. LIENS
Operator shall keep the Premises free and clear from any and all liens, including, without
limitation, mechanics' or materialmens' liens, claims and demands for work performed,
materials furnished, or operations conducted on or about the Premises or by reason of any use or
occupancy by Operator, or any person claiming under Operator. When applicable, Operator
shall cause a notice of nonresponsibility to be posted and recorded pursuant to California Civil
Code Section 3094.
SECTION 50. INSTALLATION AND REMOVAL OF TRADE FIXTURES
Operator shall have the right during the entire term of this Agreement or any renewals or
extensions thereof, at Operator's sole cost and expense, to install or affix in, to, or on the
Premises any machinery, equipment and other objects (the "Trade Fixtures"), for use in
Operator's trade or business as Operator may deem advisable. Any and all such Trade Fixtures
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Sports Complex Concession - Stadium Club
that can be removed without structural damage to the Premises shall, subject to Section 57
below, remain the property of Operator and may be removed by Operator at any time prior to the
expiration or termination of this Agreement, provided Operator repairs any damage caused by
the removal. Upon execution of this Agreement and every anniversary, Operator shall provide
City with a list of all Trade Fixtures on the Premises.
SECTION 51. DESTRUCTION
Should the Premises be partially destroyed, this Agreement shall continue in full force
and effect, and Operator, at Operator's sole cost and expense, shall complete the work of
repairing and restoring the Premises to their prior condition providing such work can be
accomplished under all applicable governmental laws and regulations within one hundred eighty
(180) days. Should the Premises be so far destroyed that in City's reasonable judgment they
cannot be repaired or restored to their former condition within one hundred eighty (180) days,
City shall give Operator notice of such determination in writing and each party may, in that
party's sole discretion:
(a) Continue this Agreement in full force and effect in which case Operator shall
repair and restore, at Operator's sole cost and expense, the Premises to their
former condition; or
(b) Terminate this Agreement by giving the other party thirty (30) days' written
notice of such termination within sixty (60) days after the date that City gives
Operator notice that the Premises cannot be repaired or restored to their former
condition within one hundred eighty (180) days. In the event that either party
elects to terminate this Agreement, the entire amount of any insurance proceeds
(excluding such proceeds for Trade Fixtures, personal property whether or not
40
Sports Complex Concession - Stadium Club
owned or leased by Operator and trade inventory, but only to the extent that the
insurance proceeds specifically cover those items) shall be paid to City. The
proceeds of any such insurance payable to City may be used, in the sole discretion
of City, for rebuilding or repair as necessary to restore the Premises or for any
other such purpose(s) as City sees fit. In addition, if Operator elects to terminate
the Agreement, Operator must still comply with all of its obligations, liabilities,
duties and responsibilities under the Agreement, including, without limitation,
paying any Operation Charge due up to the time of termination and surrendering
the Premises, pursuant to Sections 56 and 57 below.
In the event of the damage or destruction of Improvements, Trade Fixtures and/or
personal property located on the Premises not giving rise to a termination of this Agreement,
Operator shall, at its sole cast and expense, replace and repair the same as soon as reasonably.
possible to permit the prompt continuation of Operator's business at the Premises.
SECTION 52. NO ABATEMENT OF OPERATION CHARGE DURING REPAIR
WORK
The Operation Charge shall not be abated for the time Operator is prevented from using
the whole or a portion of the Premises. In addition, Operator shall not be excused from the
payment of taxes, insurance or any other obligations for the time Operator is prevented from
using the whole or a portion of the Premises.
SECTION 53. EMINENT DOMAIN
If, during the term of this Agreement or any renewals or extensions thereof or during any
holdover period, City's real property (whether held by City in fee simple, an easement interest or
otherwise) and/or the Premises is taken in eminent domain, the entire award (that is, all forms) of
41
Sports Complex Concession - Stadium Ciub
compensation, other than as provided herein, shall belong to and be paid to City. In the event of
condemnation, Operator shall be entitled to an award of only the following forms of
compensation, if any, from the condemning authority: compensation for Ioss of business
v goodwill; compensation for the value of any of Operator's Trade Fixtures; compensation for the
value of any of Operator's personal property; compensation for the value of any of Operator's
trade inventory; and compensation for relocation benefits as authorized by law. All other forms
of compensation, such as, for example, but not by way of limitation, any bonus value of
Operator's interest in this Agreement, shall belong to and be paid to City. In the event of
condemnation, unless Operator is allowed by the condemning authority to continue its operations
on the Premises, the Agreement shall terminate on the earliest of the following dates: the date
the condemning authority obtains a prejudgment order for possession; the date title to the
-' Premises vests in the condemning authority; or the date when Operator is required by the
condemning authority to cease its operations.
SECTION 54. RELOCATION AND ASSISTANCE, BUSINESS GOODWILL
Upon expiration or termination of this Agreement for any reason, including, without
limitation, if City exercises its Agreement buyout option, but excluding eminent domain,
Operator shall not be entitled to any relocation rights or benefits, business goodwill or bonus
value attributable to this Agreement, and Operator expressly waives any claim to the same.
SECTION 55. RESTORATION AND SURRENDER OF PREMISES/TITLE TO
IMPROVEMENTS
On expiration or termination of this Agreement, including, without limitation, in the
event City exercises its Agreement buyout option, Operator shall, without compensation to
Operator, promptly surrender and deliver the Premises to City in as good condition as such were
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Sports Complex Concession - Stadium Club
at the commencement date of this Agreement, reasonable wear and tear excepted. Operator also
shall, without compensation to Operator, surrender all Improvements to City in good condition
and repair, ordinary wear and tear excepted, free and clear of all liens and encumbrances.
Operator also shall remove all Trade Fixtures, personal property and trade inventory. City may
in its sole discretion accept all or any portion of the Premises, as then improved with
Improvements and no sum whatsoever shall be paid to Operator or any other person; or City may
require Operator to remove all or any portion of such Improvements, at Operator's own risk and
cost and expense; or City may itself remove or have removed all or any portion of such
Improvements, at Operator's own risk and cost and expense. If required by City to do so, in
removing any such Improvements, Operator shall restore the Premises as nearly as possible to
the conditions existing prior to their installation or construction. All such removal and
restoration shall be to the satisfaction of City and shall be completed within thirty (30) days of
the expiration or termination of this Agreement. In addition, any Trade Fixtures, personal
property or trade inventory left on the Premises after the expiration of this 30-day period,
regardless of cause, shall be deemed abandoned by Operator. In City's sole discretion, it may
choose to do one or more of the following: (1) take any or all of such Trade Fixtures, personal
property and trade inventory as City property; (2) store any or all of such Trade Fixtures,
personal property and trade inventory in a public warehouse or other location at the sole cost,
expense and risk of Operator, and for the account and in the name of Operator; or (3) dispose of
any or all of such Trade Fixtures, personal property and trade inventory without any liability to
Operator. In addition, Operator's indemnification, hold harmless and defense obligations set
forth in this Agreement shall apply to such Trade Fixtures, personal property and/or trade
inventory, and to City's actions with respect thereto.
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Sports Complex Concession - Stadium Club
SECTION 56. FORCE MAJEURE - UNAVOIDABLE DELAYS
Should the performance of any act required by this Agreement to be performed by either
City or Operator 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 shall be extended for a period equivalent to the period of delay and
performance of the act during the period of delay shall be excused. Provided, however, that
nothing contained in this Section shall excuse the prompt payment of the Operation Charge or
other consideration by Operator as required by this Agreement or the performance of any act
rendered difficult solely because of the financial condition of the party, City or Operator,
required to perform the act.
SECTION 57. CITY'S OPTION TO CLOSE THE PREMISES
City may close the Premises without liability and without advance notice to Operator
therefor at any time as City in its sole discretion deems necessary for the protection of life, limb
or property, or for public health, safety or welfare purposes, or upon reasonable notice to effect
any repair, remodeling or rebuilding deemed necessary by City in its sole discretion. The length
of time of any closing of the Premises by City longer than two (2) weeks during a period when
the Concession would otherwise be open shall extend the term of the Agreement by the same
amount of time. If this occurs, Operator and City shall memorialize this extension in writing.
SECTION 58. DELIVERIES OF SUPPLIES
City may establish the days and times deliveries of supplies may be made and advise
Operator in writing thereof.
44
Sports Complex Concession - Stadium Club
• 0
SECTION 59. EMPLOYEE PARKING
City shall establish the days, times and locations where Operator and Operator's
employees may park, and the number of automobiles, trucks, and other motorized and non -
motorized vehicles that Operator and Operator's employees may park, and advise Operator in
writing thereof.
SECTION 60. CONFLICT OF INTEREST
Operator warrants and covenants that no official or employee of City, nor any business
entity in which an official or employee of City is interested, (1) has been employed or retained
by Operator to solicit or aid in the procuring of this Agreement; or (2) shall be employed by
Operator in the performance of this Agreement without the immediate written divulgence of such
fact to City. In the event City determines that the employment of any such official, employee or
business entity is not compatible with such official's or employee's duties as an official or
employee of City, Operator, upon request of City, shall terminate such employment immediately.
For breaches or violation of this Section, City shall have the right both to terminate this
Agreement without liability and, in its discretion, recover the full amount of any such
compensation paid to such official, employee or business entity. No official or employee of City
shall have any financial interest in this Agreement in violation of the applicable provisions of the
California Government Code.
SECTION 61. NOTICE
Unless specifically providing for verbal or electronic notice, all notices, certificates, or other
communications required to be given hereunder shall be in writing and made in the following
manner, and shall be sufficiently given and deemed received when (a) personally delivered; or (b)
three (3) business days after being sent via United States certified mail — return receipt requested; or
45
Sports Complex Concession - Stadium Club
(c) one (1) business day after being sent by reputable overnight courier, in each case to the
addresses specified below; provided that City and Operator, by notice given hereunder, may
designate different addresses to which subsequent notices, certificates or other communications will
be sent:
CITY:
OPERATOR:
City of Huntington Beach Stadium Club, LLC
ATTN: Director of Community Services Attn: Sandi Van Amersfoorth
2000 Main Street, P.O. Box 190 2109 Alabama Street
Huntington Beach, CA 92648 Huntington Beach, CA 92648
SECTION 62. COMPLIANCE WITH LAWS
Operator, at its sole cost and expense, shall comply with all statutes, ordinances,
regulations and requirements of all governmental entities, including, without limitation, Federal,
State, county or municipal, relating to Operator's use and occupancy of the Premises .and/or
operation of the Concession whether such statutes, ordinances, regulations and requirements be
now in force or hereinafter enacted. This Agreement is expressly subject to the laws, regulations
and policies of City. Operator shall deliver to City a copy of any notice from any governmental
entity received by Operator regarding any alleged violation of law regarding the Agreement,
Premises or the Concession or from any person allegedly entitled to give notice under any
conditions, covenants, or restrictions binding or affecting the Premises. The judgment of any
court of competent jurisdiction, or the admission by Operator in a proceeding brought against
Operator by any government entity, that Operator has violated any such statute, ordinance,
regulation or requirement shall be conclusive as between City and Operator and shall be grounds
for termination of this Agreement by City.
46
Sports Complex Concession - Stadium Club
i
SECTION 63. INTERPRETATION OF THIS MANAGEMENT AGREEMENT
The language of all parts of this Agreement shall in all cases be construed as a whole,
according to its fair meaning, and not strictly for or against any of the parties. If any provision of
this Agreement is held by an arbitrator or court of competent jurisdiction to be unenforceable,
void, illegal or invalid, such holding shall not invalidate or affect the remaining covenants and
provisions of this Agreement. No covenant or provision shall be deemed dependent upon any
other unless so expressly provided here. As used in this Agreement, the masculine or neuter
gender and singular or plural number shall be deemed to include the other whenever the context
so indicates or requires. Nothing contained herein shall be construed so as to require the
commission of any act contrary to law, and wherever there is any conflict between any provision
contained herein and any present or future statute, law, ordinance or regulation contrary to which
the parties have no right to contract, then the latter shall prevail, and the provision of this
Agreement which is hereby affected shall be curtailed and limited only to the extent necessary to
bring it within the requirements of the law.
SECTION 64. SURVIVAL
Terms and conditions of this Agreement, which by their sense and context survive the
expiration or termination of this Agreement, shall so survive.
SECTION 65. MODIFICATION
No waiver or modification of any language in this Agreement shall be valid unless in
writing and duly executed by both parties.
SECTION 66. SECTION HEADINGS
The titles, captions, section, paragraph and subject headings, and descriptive phrases at
the beginning of the various sections in this Agreement are merely descriptive and are included
47
Sports Complex Concession - Stadium Club
0
solely for convenience of reference only and are not representative of matters included or
excluded from such provisions, and do not interpret, define, limit or describe, or construe the
intent of the parties or affect the construction or interpretation of any provision of this
Agreement.
SECTION 67. BROKERS
Each parry warrants to and for the benefit of the other that it has had no dealings with any
real estate broker or other agent (attorneys excepted) in connection with the negotiation or
making of this Agreement.
SECTION 68. INDEPENDENT CONTRACTOR
Operator is, and shall be, acting at all times in the performance of this Agreement as an
independent contractor herein and not as an employee of City. Operator shall secure at its own
cost and expense, and be responsible for any and all payment of all taxes, social security, state
disability insurance compensation, unemployment compensation and other payroll deductions for
Operator and its officers, agents and employees and all business licenses, if any, in connection
with the Agreement and/or any services to be performed hereunder.
SECTION 69. ATTORNEY'S FEES
In the event suit is brought by either parry to construe, interpret and/or enforce the terms
and/or provisions of this Agreement or to secure the performance hereof, each. party shall bear its
own attorney's fees, such that the prevailing party shall not be entitled to recover its attorney's
fees from the non -prevailing party.
SECTION 70. LEGAL SERVICES SUBCONTRACTING PROHIBITED
Operator and City agree that City is not liable for payment of any subcontractor work
involving legal services, and that such legal services are expressly outside the scope of services
48
Sports Complex Concession - Stadium Club
contemplated hereunder. Operator understands that pursuant to Huntington Beach City Charter
Section 309, the City Attorney is the exclusive legal counsel for City; and City shall not be liable
for payment of any legal services expenses incurred by Operator..
SECTION 71. GOVERNING LAW
This Agreement shall be governed and construed in accordance with the laws of the State
of California.
SECTION 72. DUPLICATE ORIGINAL
The original of this Agreement and one or more copies hereto have been prepared and
signed in counterparts as duplicate originals, each of which so executed shall, irrespective of the
date of its execution and delivery, be deemed an original. Each duplicate original shall be
deemed an original instrument as against any party who signed it.
SECTION 73. ENTIRETY
The parties acknowledge and agree that they are entering into this Agreement freely and
voluntarily following extensive arm's length negotiations, and that each has had the opportunity to
consult with legal counsel prior to executing this Agreement. The parties also acknowledge and
agree that no representations, inducements, promises, agreements or warranties, oral or otherwise,
have been made by that parry, or anyone acting on that party's behalf, which are not embodied in
this Agreement, and that that party has not executed this Agreement in reliance on any
representation, inducement, promise, agreement; warranty, fact or circumstance not expressly set
forth in this Agreement. The Agreement, and the attached exhibits, contain the entire agreement
between the parties respecting the subject matter of this Agreement, the Premises, the leasing of the
Premises to Operator, or the lease term created under this Agreement and supersede all prior
49
Sports Complex Concession - Stadium Club
0 0
understandings and agreements, whether oral or in writing between the parties respecting the
subject matter hereof
(REST OF PAGE INTENTIONALLY LEFT BLANK)
50
Sports Complex Concession - Stadium Club
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by
and through their authorized officers on \ Tr-w . j 6 _ 2004.
OPERATOR:
STAD CLUB, LLC
A Cal
g' o limited liability company
�J
print name
ITS: (circle one) Chairman/Presiden ice President
CITY OF HLTNTINGTON BEACH, a
municipal corporation of the State of
California
ATTEST:
--
AND
Ctt3'MA
7,1 /1 �G
print name APPROVED AS TO FORM:
ITS: (circle one) Secre inancial Officer/As
Secretary - Treasur f} w
City Attorney 0
REVIEWED AND APPROVED:
, 2� (�"Z L - L' e�
Cify Administrator
AND
of Community
APOV
Director ?Adm`nistrajv�e Services
Sports Complex Concession - Stadium Club
51
Exhibit A
1 OF 2
Legal Description
Those certain lands situated in the City .of. Huntington Beach, County of Orange,
State of California, being a portion. of the lands conveyed to'. the City of.
Huntington Beach, a municipal corporation in the Grant Deed recorded 19
January, 1972 in Book 9970, page 597 of Official Records, in the office of the
Recorder of said County, more particularly described as follows:
Commencing at the centerline intersection of Gothard Street and Talbert Avenue
as shown on Record of Survey 92-1084, filed in Book 138, page 9 of Records
of Surveys, thence along said centerline north 89'31'53" west, 903.05, thence at
right angles to said centerline, south 0'28'07" west, 187.75 feet, to the TRUE
POINT OF BEGINNING.
Thence south 34'47'47" east, 141.45 feet to the beginning of a non —tangent
curve concave to the east, having a radius of 10.88 feet, a radial line to said
point of curvature bears south 87'04'12" west;
Thence northerly and northeasterly, through a central angle of 47'50'30", an arc
length of 9.08 feet, to the beginning of a non —tangent reverse curve, concave
to the northwest, having a radius of- 70.63 feet,-- a radial line to said point of.
reverse curvature bears south 40'46'38" east;
Thence northeasterly and northerly through a central angle of 35'31'26", on arc
length of 43.79 feet;
Thence north 14'20'42" east, 10.29 feet, to the beginning of a non —tangent
curve concave to the west, having a radius of 102.71 feet, a radial line to said
point of curvature bears south 77'27'31" east;
Thence northerly through a central angle of 13'17'22", an arc length of 23.82
feet;
Thence north 00'02'58"' west, 52.43 feet, to the beginning of a non —tangent
curve concave to the .west, having a radius of 21.05 feet, a radial line to said
point of curvature bears south 88'56'39" east;
181OOB GOLDENWEST
CITY OF HUNTINGTON BEACH
DEPARTMENT OF PUBLIC WORKS
Exhibit A
2 OF 2
Legal Description
Thence northerly through a central angle of 12'14'06", an arc length of. 4.50
feet;
Thence north 31'29'49" west, 2.35 feet, to the beginning of a non —tangent
curve concave to the southwest, having a radius of 10.04 feet, a radial line to
said point of curvature bears south 25'46'52" east;
Thence northeasterly, northwesterly and westerly, through a central angle of
187'33'14", an arc length of 32.87 feet to a point of cusp with a curve
concave to the south and having a radius of 32.96 feet a radial line to said
.point of cusp bears north 40'29'17" east;
Thence northwestery and westerly through a central angle of 74'33'24", an arc
length of 42.89 feet;
Thence south 55'37'06" west, 72.63 feet, to the TRUE POINT OF BEGINNING.
Containing: 10,951.0. square :feet more or less. -
Subject to all Covenants, Rights, Rights —of —Ways and Easements of Record.
See exhibit "B" attached hereto and by this reference made --a part hereof.
Joseph G. Derleth �p
PLS 7340, expires 12/31 /05 3 EV• 12-31-05
7340��
T4c.OF CALN�
•
181OOB GOLDENWEST
CITY OF HUNTINGTON BEACH
DEPARTMENT OF PUBLIC WORKS
�J
__a
f LEGEND:
OH=OVERHANG
PT=PICNIC TABLE
TE=TRASH ENCLOSURE.
LIMIT OF
PREMISES
TODDLER PLAYGROUND
EXHIBIT B (1 OF 2)
1 S 100B GOLDENWEST
CITY OF HUNTINGTON BEACH
DEPARTMENT OF PUBLIC WORKS
PT
fC2
Scale= 1"=20'
C�
C1
L3
TABLE .OF DIMENSIONS:
LI=N14'20'42"E,
10.29'
L2=N31'29'49"W,
2.35'
L3=S87'04'12"W,
(RAD
Cl)
L4=N45'05'18"W,
(RAD
Cl)
L5=S40'46'38"E,
(RAD
C2)
L6=S76`18'04"E
(RAD
C2)
L7=S77'27'31 "E
(RAD
C3)
L8=N89'15'07"E
(RAD
C3)
L9=S88'56'39"E
(RAD
C4)
L10= N78'49'15"E
(RAD
C4)
L11=S25'46'52"E
(RAD
C5)
L12=N33'20'06"W (RAD C5)
L13=N40'29'17"I=
(RAD
C6)
L14=N34'04'07"W (RAD C6)
CURVE TABLE:
C1=DELTA.47'50'30",
R=10.88',
L=9.08'
C2=DELTA
3531'26",
R=70.63',
L= 43.79'
C3=DELTA
13'17'22",
R=102.71',
L=23.82'
C4--DELTA
12'14'06",
R=21.05',
L=4.50'
CS=DELTA
187'33'14",
R=10.04',
L=32.87'
C6=DELTA
74'33'24",
R=32.96',
L=42.89'
EXHIBIT B (2 OF 2)
181008 GOLDENWEST
CITY OF HUNTINGTON BEACH
DEPARTMENT OF PUBLIC WORKS
k
OiB
Jun 22 04 01:42P
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ABC `RDTM CERTIFICATE OF LIABILITY INSURANC 6/22/� 004
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Jun 22 04 01 ; 43p
p.3
•
POUCY NUMBER: 02FP 20 4 551 10
COMMERCukL GENERAL LUZIUYY
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ ff CMEf ULLY.
ADDITIONAL INSURED -DESIGNATED PERSON OR
ORGANIZATION
Ttft endorserrmnt ass 6fift insures vw(4W trader the fotim*v
COMNIEWAL GENERAL MILFTY COVEWE PARS".
SCHEDULE
Name of Pert " or 4rgardxsuaw
THE CITY OF HUNTIVGTON BEACH
ITS AGENTS, OFFICERS AUD EIAPLOYLES
2000 MAIN STREET
HUNTINGTON BEACH, CA 92648
(it no an" appews r we. bfor =*m regr+red to corn kle #pis endorswrient wQ be shorn in the t4wia mbcw s
as Apkable to tftis emdcx'tWent.) .
WHO IS Aft INSURED (Section V) is ae wwkd to muds as an rvured ** person or arXx&taUon shaven in the
Scnedute as an twsred but **wM m%ped to gaWty arIA-flout of your aper4baits or prs runs owned bY.Or
rentod to you.
CG 20 2611 S5 Cop TW9. lnsmrx* juvicas Oftk*. inc..19B4
AP OF 1
({
M.3.TH ,iR,
06/21/2004 16:39 714-374-1743 HUMAN RESOURCES PAGE 01
• #
City of Huntfttm Beach
2000 HaW SOVU a „m Wiese
MCLARATION of NON-E mrLoyu $TATus
1n order to cedsply with City (::oun4 Resolutiot, No. 4277. you sre required to pror;do prQ4 of
W"crs' [ompensetkm;nsuranc-c. Ef you bavc no amp}pyeea, this fora must 6e signal rand returned to
Gt9 of huntington beach
Kish-nemcnt giviaian
WOO Main Street
r"{untinston beach, CA g2646
OL
I certify that in Ehe performanea of the activity or work for which, t6s permit is iswed, i s6al not amp.6y •
any person in any manner as as to becumc subject to 4:Atcornia Wortce , C-ompcneation *nsurancc
rcci.Nrrmcnb. -
1 suthorite the [ity df Muntingten bseh to ,imerle 'taly and nstroaeti 9 M-Oka the kcen" oe permit
issued unclar tins declarat;en ;f i hire snj, cmptoyc4i) or 6ecame subject to 6e provisions of the haws
mgfltirin wor6m' Compcxwo ioa rnsurwnce- - - - - -
Alicantf a�r� an Na�nen .4�—ACA d -- -_
PP P 9
A.cWrcs.j'ut0( Aabowa
Appikent's turd: - l
�,acal�orr jigncds
Talcphom Num6c
GAFU4kMgcnhCart ins\WGWvr.Doc
VED A"FO
E F McGRATH, City �-�ttonfeya3)�
(Rev.802004)