HomeMy WebLinkAboutPARK BENCH CAFE, A CALIFORNIA CORPORATION, DBA KOKOMO'S SURFSIDE GRILL - 2007-06-04 Council/Agency Meeting Held: d
Deferred/Continued to:
AA proved ❑ Co ditionally Approved ❑ Denied it erk' ignat
UJAI o� _
Cs�C�/GA�,dt.�: P,Q�ucTs
Council MeetingL Date: 6/4/2007 Department ID Number: ED 07-14
CITY OF HUNTINGTON BEACH
REQUEST FOR CITY COUNCIL ACTION
SUBMITTED TO: HON RABLE MAYOR VND
CI COUNCIL MEMBERS
SUBMITTED BY: PE ELOP CULBRETH-GRAF DPA, CITY ADMINISTRATOR
PREPARED BY: JIM B. ENGLE, DIRECTOR, COMMUNITY SERVI
STANLEY SMALEWITZ, DIRECTOR, ECONOMIC VELOPMENT< �
SUBJECT: APPROVE LEASE AGREEMENT FOR KOKOMO'S URFSIDE GRILL
BEACH CONCESSION AT MARINE SAFETY EDUCATION CENTER
Statement of Issue,Funding Source,Recommended Action,Alternative Action(s),Analysis,Environmental Status,Attachment(s)
Statement of Issue: The City Council is asked to approve a ten-year lease with Park
Bench Cafe, a California Corporation, dba Kokomo's Surfside Grill for the operation of a
beach food concession on the first floor level of the Marine Safety Education Center.
Funding Source: N/A
Recommended Action: Motion to:
Approve and authorize the Mayor and City Clerk to execute the Lease between the City of
Huntington Beach and Park Bench Cafe, Inc. for a Beach Food Concession on the First Floor
Level of the Marine Safety Education Center.
Alternative Action(s): Do not approve the beach food concession lease agreement with
Park Bench Cafe, Inc. and direct staff to seek other bids.
Analysis: In 2005, the City constructed a new Marine Safety Education Center which is also
the home of the Jr. Lifeguard Headquarters. The Marine Safety Education Center also
includes a 1,142 square foot, self-contained concession area intended to provide food/drink
service and beach rentals to the millions of Huntington City Beach visitors each year. The
new facility will be one of seven concessions operating at the city beach.
City staff published a Request for Qualification (RFQ) for operation of this new beach
concession. Through this process, five applicants were interviewed and rated based upon
their background, experience and qualifications to operate a food service concession.
REQUEST FOR CITY COUNCIL ACTION
MEETING DATE: 6/4/2007 DEPARTMENT ID NUMBER: ED 07-14
Based upon qualifications, Park Bench Cafe, Inc., which is owned and operated by Michael
Bartusick, was selected to operate as the concessionaire for this location. Since 1998,
Bartusick has been operating the Park Bench Cafe in Central Park. The Park Bench Cafe is
well run, popular with park patrons, and has been successful by all accounts.
The City Attorney's Office has prepared a lease with Park Bench Cafe, Inc., for the operation
of Kokomo's Surfside Grill at the beach concession stand,. using the terms and conditions as
provided in the city's standardized lease agreement. This lease is for a ten-year term. At the
end of the term, the City will either negotiate a new lease with Park Bench Cafe, Inc. or
publish another RFQ for additional qualified candidates.
All negotiations have been concluded and Park Bench Cafe, Inc. has executed the lease.
The lease rates that were negotiated are consistent with current market rates for comparable
beach concessions. Park Bench Cafe, Inc. will be responsible for completing all necessary
tenant improvements and obtaining the required building and health permits.
The Real Estate Division of the Economic Development Department, along with the
Community Services Department, which is the operating department of concessionaire lease
agreements, recommends the approval of this lease.
Strategic Plan Goal: L-4 Create an environment that promotes tourism to increase
revenues to support community services and transform the city's economy into a destination
economy.
Environmental Status: Concessionaire will be required to comply with all city and local
jurisdiction requirements when completing tenant improvements.
Attachment(s):
NumberCity Clerk's
Page • Description
1. Lease agreement between City of Huntington Beach and Park Bench
Cafe, a California Corporation, dba Kokomo's Surfside Grill.
2. Beach Concession Lease Area Plat Map.
3. Certificate of Insurance and Indemnification Waiver.
-2- 5/21/2007 11:25 AM
ATTACHMENT # 1
LEASE BETWEEN THE CITY OF HUNTINGTON BEACH
AND PARK BENCH CAFE
FOR A BEACH FOOD CONCESSION ON THE FIRST FLOOR LEVEL
OF THE MARINE SAFETY EDUCATION CENTER
Table of Contents
SECTION PAGE
1 Superseding of Prior Lease...................................................................................... 1
2 Grant of Concession on the Premises...................................................................... 1
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.......................................................................3
9 City's Contract Administrator..................................................................................4
10 Rent...............................................................................................................4
11 Late Charge and Penalty .........................................................................................5
12 Gross Sales Defined................................................................................................5
13 Gross Sales Exclusions............................................................................................6
14 Books and Records..................................................................................................7
15 Statement of Gross Sales/Audit...............................................................................8
16 Security Deposit......................................................................................................9
17 Use of Coca-Cola Products..................................................................................... 10
18 Quality of Sales, Rentals and Services.................................................................... 10
19 Indemnification, Defense and Hold Harmless Agreement...................................... 11
20 Workers' Compensation and Employers' Liability Insurance................................. 12
21 General Public Liability Insurance.......................................................................... 13
22 Property Insurance................................................................................................... 13
23 Increase in Amount of General Public Liability and Property Insurance............... 15
24 Certificates of Insurance; Additional Insured Endorsements.................................. 15
25 Insurance Hazards ................................................................................................... 16
26 Maintenance of Premises ........................................................................................ 16
27 Other Rent Credit.................................................................................................... 18
28 Damage, Destruction or Nuisance........................................................................... 19
29 Taxes ....................................................................................................................... 19
30 Payments of Obligations ......................................................................................... 19
31 Utilities and Services...............................................................................................20
32 Business License.....................................................................................................20
33 Signs, Advertising and Approval of Name .............................................................20
34 No Assigning, Subleasing or Encumbering ............................................................21
35 Terms Binding on Successors .................................................................................23
36 Default.....................................................................................................................23
37 Remedies.................................................................................................................24
i
Table of Contents, continued
38 Cumulative Remedies .............................................................................................29
39 Waiver of Default....................................................................................................29
40 City's Defaults/Lessee's Remedy.............................................................................29
41 Consent....................................................................................................................30
42 Holdover..................................................................................................................30
43 Waiver of Claims ....................................................................................................30
44 Inspection of Premises ............................................................................................30
45 City's Right to Lease Buyout...................................................................................31
46 Photography ............................................................................................................34
47 Hazardous Substances.............................................................................................34
48 Nondiscrimination...................................................................................................35
49 Sale of Alcoholic Beverages and Entertainment Prohibited...................................36
50 Liens........................................................................................................................37
51 Installation and Removal of Trade Fixtures............................................................37
52 Destruction..............................................................................................................37
53 No Abatement of Rent During Repair Work ..........................................................38
54 Eminent Domain .....................................................................................................39
55 Relocation and Assistance, Business Goodwill and Leasehold Bonus Value ........39
56 Quitclaim Deed .......................................................................................................40
57 Restoration and Surrender of Premises/Title to Improvements..............................40
58 Force Majeure - Unavoidable Delays......................................................................41
59 City's Option to Close the Premises........................................................................42
60 Deliveries of Supplies .............................................................................................42
61 Employee Parking...................................................................................................42
62 Conflict of Interest ..................................................................................................42
63 Notice ......................................................................................................................43
64 Compliance with Laws............................................................................................43
65 Interpretation of this Lease......................................................................................44
66 Survival ...................................................................................................................44
67 Modification............................................................................................................45
68 Section Headings.....................................................................................................45
69 Brokers....................................................................................................................45
70 Independent Contractor...........................................................................................45
71 Attorney's Fees........................................................................................................45
72 Legal Services Subcontracting Prohibited ..............................................................46
73 Governing Law........................................................................................................46
74 Duplicate Original...................................................................................................46
75 Entirety....................................................................................................................46
ii
LEASE BETWEENTHE CITY OF HUNTINGTON BEACH
AND PARK BENCH CAFE, A CALIFORNIA CORPORATION,
DBA KOKOMO'S SURFSIDE GRILL
FOR A BEACH FOOD CONCESSION ON THE FIRST FLOOR LEVEL
OF THE MARINE SAFETY EDUCATION CENTER
THIS LEASE (the "Lease") is made and entered into effective June 4, 2007 by and between
the CITY OF HUNTINGTON BEACH, a municipal corporation of the State of California ("City")
and PARK BENCH CAFE, a California corporation, doing business as Kokomo's Surfside Grill
("Lessee").
WHEREAS, City wishes to lease certain real property (the "Property"), commonly known
as the beach food concession on the first floor level of the Marine Safety Education Center located
at 21071 Pacific Coast Highway, Huntington Beach, California, and other related improvements
(collectively referred to as the "Improvements"). The term "Premises" as used in this Lease shall
mean both the Property and the Improvements. Lessee desires to lease the Premises in the manner
set forth below.
NOW, THEREFORE, the parties covenant and agree as follows:
SECTION 1. SUPERSEDING OF PRIOR LEASE
This Lease shall supersede and replace any existing lease 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 lease agreement(s).
SECTION 2. GRANT OF CONCESSION ON THE PREMISES
City, pursuant to the terms of this Lease, grants to Lessee 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"). Lessee shall not use the
Premises for any other purpose or business. The legal description of the Premises is set forth in
Exhibit "A", which is attached and incorporated herein by this reference. A map depicting the
1
06-75/8334
Premises is set forth in Exhibit "B", which is attached hereto and incorporated herein by this
reference. This Lease is not intended to confer third-party beneficiary status to anyone.
SECTION 3. RESERVATIONS, ENCUMBRANCES AND RIGHTS-OF-WAY
(a) City expressly reserves all natural resources in, on, or two hundred fifty (250) feet
under the Premises, including, without limitation, oil, coal, natural gas and other
hydrocarbons, minerals, aggregates, timber and other geothermal resources, as well
as the right to grant leases or other contractual arrangements in and over the
Premises for the extraction of such natural resources. However, such leasing or other
arrangement shall be neither inconsistent nor incompatible with the rights or
privileges of Lessee under this Lease.
(b) City expressly reserves a right to enter upon the Premises with as much advance
written, verbal or electronic notice as possible to Lessee 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 Lessee at least twenty-four (24) hours advance
written, verbal or electronic notice. City shall have a right of reasonable access to
the Premises across Lessee owned, controlled or occupied lands adjacent to the
Premises, if any, for any purpose associated with this Lease.
(c) City expressly reserves the right to lease, convey, or encumber the Premises, in
whole or in part, for any purpose not inconsistent or incompatible with the rights or
privileges of Lessee under this Lease. In addition, Lessee agrees to subordinate the
Lease to any existing or future City financing regarding the Premises or any portion
thereof. Lessee also agrees to cooperate and provide any documentation necessary
for City to obtain any such financing.
2
06-75/8334
(d) This Lease is subject to pre-existing contracts, leases, licenses, easements,
encumbrances and claims affecting the Premises and it is made without warranty by
City of title, condition or fitness of the land for the stated or intended use.
SECTION 4. TIME OF ESSENCE
Time shall be of the essence of this Lease and each and all of its terms, covenants or
conditions in which performance is a factor.
SECTION 5. TERM
This Lease shall commence at 12:01 a.m. on June 4, 2007, for a ten (10) year term, which
shall end at 11:59 p.m. on March 31, 2017, unless extended, or sooner terminated, as provided for
herein.
SECTION 6. CONDITIONS OF PREMISES AS IS
The taking of possession of the Premises by Lessee shall, in itself, constitute
acknowledgment that the Premises are in good and tenantable condition. Upon taking possession of
the Premises, Lessee agrees to accept 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 Lease, 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 Lessee
3
06-75/8334
without Lessee first obtaining the prior written approval of City, which will not be
unreasonably withheld.
(b) Except as provided under this Lease, no alteration or removal of existing
Improvements on or natural features of the Premises shall be undertaken without
Lessee first obtaining the prior written approval of City.
(c) Lessee's obligation to obtain City's prior written approval is separate and
independent of Lessee'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 Lease with the authority to act on behalf of City for the purposes of this
Lease, and all City approvals and notices required to be given herein to City shall be so directed and
addressed.
SECTION 10. RENT
Lessee agrees to pay to City as rent (the "Rent") for the use and occupancy of the Premises a
sum equal to the following percentages of the amount of "Gross Sales," as defined in Section 12
below:
$0 - $100,000.00 of Gross Sales = 9.0%;
$100,000.01 - $150,000.00 of Gross Sales = 10.5%;
Over$150,000.00 of Gross Sales = 12.5%.
In no event shall the Rent payable to City pursuant to this Lease be less than Five Dollars
($5.00) per month. Lessee shall pay the Rent monthly 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 Lessee. Lessee shall pay the Rent, which must
4
06-75/8334
be received by the City Treasurer within fifteen (15) calendar days after the end of the month for
which the Rent is being paid, or on the next business day if the fifteenth day falls on a weekend or
holiday.
SECTION 11. LATE CHARGE AND PENALTY
If the Rent is not received by the City Treasurer within twenty (20) calendar days after the
end of the month for which the Rent is being paid, or the next business day if the twentieth day falls
on a weekend or holiday, Lessee 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 '/z%) penalty per month shall be added for each month
the Rent is due but unpaid. With respect to any other payments required by Lessee, a one and a half
percent (1 '/2%)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 Lease, 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 Lessee, or anyone contracting with Lessee, including, without limitation, its agents
or sublessees (collectively or individually, "Lessee Party(ies)"), whether wholesale or retail,
whether for cash or on credit, and if on credit whether or not paid, 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 Lessee
Party(ies), and/or from all public telephones, vending, weighing and all other
machines owned, operated, or leased to or by Lessee Party(ies) in, on, or from the
Premises;
5
06-75/8334
(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 Lessee 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 Rent, the
amount of Gross Sales shall start over at zero dollars on January 1 of each year. If the Lease
commences on any date other than January 1, the Gross Sales calculation begins from such
commencement date and runs through December 31 of such Lease commencement year.
SECTION 13. GROSS SALES EXCLUSIONS
Gross Sales shall not include the following items, and Lessee 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 Rent has been paid under this Lease to City:
6
06-75/8334
(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 Lessee 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 Lessee;
(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.
SECTION 14. BOOKS AND RECORDS
Lessee 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 Lessee 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. Lessee 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.
7
06-75/8334
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. Lessee 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.
SECTION 15. STATEMENT OF GROSS SALES/AUDIT
At the time specified in Section 10 of this Lease for the payment of the Rent, Lessee shall
deliver to City a true and accurate statement signed by Lessee or by an authorized employee of
Lessee showing the total Gross Sales and any exclusions listed in Section 13 above made during the
preceding calendar month and the amount of the Rent then being paid calculated on such Gross
Sales pursuant to this Lease. The acceptance by City of any monies paid to City by Lessee as the
Rent, as shown by any statement furnished by Lessee, shall not be construed as an admission of the
accuracy of the statement, or of the sufficiency of the amount of the Rent payment, and City shall
be entitled to review the adequacy of such payment as set forth herein. By the end of each January,
Lessee 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
Rent 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,
8
06-75/8334
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. Lessee 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, Lessee shall immediately pay the additional Rent, together with a penalty thereon from
the date it was due at the penalty rate set forth in Section 11 above. Furthermore, Lessee shall
promptly on demand reimburse City for the full cost and expense of the audit should the audit
disclose that the questioned year-end statement understated Gross Sales (including an overstatement
of exclusions) or the Rent 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
Lease. 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 Lessee to perform any audit or
inspection function with respect to this Lease.
Lessee, 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 Lessee, its officers, bookkeepers and/or accountants or any
person who prepared the books, records, statements and other documentation required to be
provided by Lessee under this Lease.
SECTION 16. SECURITY DEPOSIT
Upon execution hereof, Lessee shall pay and maintain at all times during the entire term of
this Lease or any renewals or extensions thereof or during any holdover period, a security deposit
9
06-75/8334
with City in a sum of not less than Two Thousand Five Hundred Dollars ($2,500.00) to guarantee
all of Lessee's obligations, liabilities, duties and responsibilities under the Lease, 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 City Treasurer. No interest shall accrue on cash deposits to
the benefit of Lessee, but interest shall accrue on a CD or savings account and shall be paid to
Lessee under the terms of the CD or savings account. Lessee 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
Lessee 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. Lessee's failure to adhere to the
Coca-Cola exclusivity clause shall constitute a Default of this Lease as defined in Section 36 below.
This exclusivity shall not apply to third-party rentals that bring their own drink products.
SECTION 18. QUALITY OF SALES, RENTALS AND SERVICES
Lessee, 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 Lease or any renewals or extensions thereof or during any holdover
period. It is the intent of City that the Concession's services be provided in a manner to meet the
needs of the visiting public, and should City deem the Concession's hours of operation and/or food,
10
06-75/8334
merchandise, services or rentals inadequate to meet such needs, City may require Lessee to make
such changes requested by City. Lessee shall not use or permit the Premises to be used, in whole or
in part, during the entire term of this Lease 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 or styrofoam containers are to be vended or
dispensed from the Premises unless pre-approved in writing by City. Lessee, 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 Lessee. 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 Lessee'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.
SECTION 19. INDEMNIFICATION, DEFENSE AND HOLD HARMLESS AGREEMENT
Lessee 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 kind
or nature) arising out of or in connection with (1) the use or occupancy of the Premises by Lessee,
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 Lessee, its officers, employees or agents, or (4) any
11
06-75/8334
failure by Lessee to keep the Premises in a safe condition, or (5) Lessee's (or Lessee's agents and/or
sublessees, if any) performance of this Lease or its failure to comply with any of its obligations
contained in this Lease by Lessee, its officers, agents or employees except such loss or damage
which was caused by the sole negligence or willful misconduct of City. Lessee shall hold all Trade
Fixtures, personal property and trade inventory on the Premises at the sole risk of Lessee 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. Lessee will
conduct all defense at its sole cost and expense and City shall approve selection of Lessee'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 Lessee.
SECTION 20. WORKERS' COMPENSATION AND EMPLOYERS' LIABILITY
INSURANCE
Lessee acknowledges awareness of Section 3700 et seq. of the California Labor Code, which
requires every employer to be insured against liability for workers' compensation. Lessee covenants
that it shall comply with such provisions prior to the commencement of this Lease. Lessee shall
obtain and furnish to City workers' compensation and employers' liability insurance in amounts not
less than the State statutory limits. Lessee shall require all sublessees and contractors to provide such
workers' compensation and employers' liability insurance for all of the sublessees' and contractors'
employees. Lessee shall furnish to City a certificate of waiver of subrogation under the terms of the
workers' compensation and employers' liability insurance and Lessee shall similarly require all
sublessees and contractors to waive subrogation.
12
06-75/8334
SECTION 21. GENERAL PUBLIC LIABILITY INSURANCE
In addition to the workers' compensation and employers' liability insurance and Lessee's
covenant to defend, hold harmless and indemnify City, Lessee 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 Lessee, 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 Lease shall be deemed excess
coverage and that Lessee'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
Lessee shall provide before commencement of this Lease and shall obtain and furnish to
City, at Lessee's sole cost and expense, property and fire insurance with extended 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 Lessee, and all trade inventory in or on the
Premises against damage or destruction by fire, theft or the elements. This policy shall contain a
13
06-75/8334
full replacement cost endorsement naming Lessee 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 Lessee, 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 Lessee, 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 Lease, the entire
amount of any insurance proceeds (excluding such proceeds for Trade Fixtures, personal property
whether or not owned or leased by Lessee 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;
(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 Lease. 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.
14
06-75/8334
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, Lessee shall increase the
insurance coverage as reasonably required by City.
SECTION 24. CERTIFICATES OF INSURANCE; ADDITIONAL INSURED
ENDORSEMENTS
Prior to commencement of this Lease, Lessee shall furnish to City certificates of insurance
subject to approval of the City Attorney evidencing the foregoing insurance coverages as required
by this Lease; 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.
Lessee shall maintain the foregoing insurance coverages in force during the entire term of
the Lease or any renewals or extensions thereof or during any holdover period.
The requirement for carrying the foregoing insurance coverages shall not derogate from
Lessee's defense, hold harmless and indemnification obligations as set forth in this Lease. City or
its representatives shall at all times have the right to demand the original or a copy of any or all the
15
06-75/8334
policies of insurance. Lessee shall pay, in a prompt and timely manner, the premiums on all
insurance hereinabove required.
SECTION 25. INSURANCE HAZARDS
Lessee 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
Lease. Lessee 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 Lease necessary for the
continued maintenance of these policies at reasonable rates.
SECTION 26. MAINTENANCE OF PREMISES; TENANT IMPROVEMENTS
City's maintenance responsibilities of the Premises shall be limited to maintaining all sewers
and drain lines, roofs and attached public restrooms (if they exist). Except as set forth in the
preceding sentence, Lessee agrees to maintain the Premises in good order and repair, at Lessee's
sole cost and expense, during the entire term of this Lease 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. Except as provided above, Lessee, at its sole cost and
expense, shall perform any maintenance and repairs including, without limitation, facility
maintenance and landscape maintenance on the Premises.
Lessee's obligation includes, without limitation, maintaining and operating the Premises and
adjacent areas to a distance of not more than fifty (50) feet, 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 Lease or any renewals or extensions thereof or during any
16
06-75/8334
holdover period, in force, relating to sanitation or public health, safety or welfare, or for the
protection of life, limb or property; and Lessee shall at all times faithfully obey and comply with all
laws, rules and regulations applicable thereto. Lessee, at its sole cost and expense, shall remedy
without delay any defective, dangerous or unsanitary condition(s) caused by Lessee or anyone
related thereto. Provided, however, that Lessee shall have no obligation to repair or maintain sewer
lines or respond to sewer leaks.
Lessee 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 Lessee, at its
sole cost and expense, within forty-eight (48) hours of Lessee receiving notice thereof or of Lessee
becoming aware of such graffiti. In addition, with or without notice from City, Lessee 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, Lessee, at its sole cost 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. Lessee, 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.
Lessee 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 Lessee
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
17
06-75/8334
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 Lessee 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 Lessee.
Lessee 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.
LESSEE shall complete all interior Tenant Improvements, including without limitation,
flooring, ceiling, kitchen, fixtures, lighting, seating, signage, and counter areas. The cost of such
Tenant Improvements shall be reimbursed by CITY to LESSEE, on a 60-month prorated basis, in
the form of rent credit. LESSEE shall submit requests for reimbursement, containing itemized costs
and receipts, for review and approval by CITY, which approval shall not be unreasonably withheld.
LESSEE shall pay all permit fees that may be required for completion of the Tenant Improvements.
Such fees shall be reimbursed by CITY to LESSEE in the same manner as the Tenant
Improvements described herein. After reimbursement as provided herein, all Tenant Improvements
for which CITY has reimbursed LESSEE shall become the sole property of CITY, and LESSEE
shall make no claim of ownership or otherwise to said Tenant Improvements.
SECTION 27. OTHER RENT CREDIT
City in its sole discretion may decide to give Lessee other rent credit if Lessee undertakes
(1) any repair or maintenance obligation of City under this Lease, or (2) any work City in its sole
18
06-75/8334
discretion deems necessary and appropriate. Prior to Lessee undertaking any such work, City must
agree in writing to the amount of and procedures for the rent credit, the work to be done by Lessee
and the cost of such work.
SECTION 28. DAMAGE, DESTRUCTION OR NUISANCE
Lessee shall not commit or permit the commission by others of any damage or destruction
of, on, or to the Premises and/or Concession. Lessee 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 Lessee shall not use or permit the use of the Premises
for any unlawful purpose.
SECTION 29. TAXES
This Lease may create a possessory interest in property, which is subject to taxation. In the
event that such possessory interest is created, Lessee agrees to be subject to the payment of and to
pay taxes levied on such interest, at its sole cost and expense. Lessee also agrees to pay, at its sole
cost and expense, before they become delinquent all other 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 any interest in this Lease, or any
possessory right which Lessee may have in or to the Premises, by reason of Lessee's use or
occupancy thereof or otherwise, as well as all taxes, assessments, and charges on Trade Fixtures,
personal property and trade inventory in, on, or about the Premises. Upon request, Lessee shall
promptly furnish to City satisfactory evidence establishing such payment. Lessee shall comply with
all laws, regulations and ordinances regarding the collection of taxes due a government agency.
SECTION 30. PAYMENT OF OBLIGATIONS
Lessee shall promptly pay, at its sole cost and expense, before they become delinquent, any
and all bills, debts, liabilities and obligations incurred by Lessee in connection with Lessee's
19
06-75/8334
occupation and use of the Premises and/or operation of the Concession. Upon request, Lessee shall
promptly furnish to City satisfactory evidence establishing such payment.
SECTION 31. UTILITIES AND SERVICES
Excluding any attached public restrooms, if they exist, Lessee 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. 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 Lessee directly to
the provider of the service and shall be paid as they become due and payable. Upon request, Lessee
shall promptly furnish to City satisfactory evidence establishing such payment.
SECTION 32. BUSINESS LICENSE
Lessee shall maintain a business license from City during the entire term of this Lease or
any renewals or extensions thereof or during any holdover period.
SECTION 33. SIGNS, ADVERTISING AND APPROVAL OF NAME
City shall have the right to approve in its sole discretion and at any time require Lessee 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, Lessee shall maintain the same at all times during the entire term of this Lease 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.
20
06-75/8334
SECTION 34. NO ASSIGNING, SUBLEASING OR ENCUMBERING
(a) Prohibition of Assignment. The parties acknowledge that City is entering into the
Lease in reliance upon the experience and abilities of Lessee and its principals.
Consequently, Lessee shall not voluntarily assign, encumber or otherwise transfer its
interest in the Lease or in the Premises, or sublease all or any part of the Premises, or
allow any other person or entity (except Lessee'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 Lessee from any and all of its obligations, liabilities,
duties or responsibilities under this Lease. 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 Lease.
(b) Consent to Transfer. City's consent to any assignment, encumbrance, occupation or
use, sublease or other transfer is subject to Lessee providing City with evidence
satisfactory to City that the proposed, assignee, encumbrancer, occupier or user,
sublessee 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, sublessee or
other transferee is consistent with that specified herein, and is commercially
reasonable. Any proposed assignee, encumbrancer, occupier or user, sublessee or
other transferee shall agree to abide by the terms and conditions of the Lease
including, without limitation, all the obligations, liabilities, duties and
responsibilities of Lessee, and other conditions imposed upon it pursuant to law. An
approval by City to one assignment, encumbrance, occupation or use, sublease or
21
06-75/8334
other transfer shall not be deemed to be an approval to any other assignment,
encumbrance, occupation or use, sublease or other transfer.
(c) Voluntary assignment defined. Except as otherwise expressly provided herein, any
dissolution, merger, consolidation or reorganization of Lessee, or the sale or other
transfer resulting in a transfer of a controlling percentage of the capital stock of
Lessee (other than a transfer by will, devise, bequest, intestate succession, a transfer
to or between the family members of Lessee, or a transfer to or between one or more
trusts for the benefit of Lessee and/or Lessee'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 or
subleasing to an Affiliate, Subsidiary or Successor of Lessee (for purposes hereof, an
"Affiliate," a "Subsidiary" and a "Successor" of Lessee are defined as follows: (a)
an "Affiliate" is any corporation which directly or indirectly controls or is controlled
or is under common control with Lessee (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 Lessee and
which is at least as creditworthy as Lessee, and (c) a "Successor" shall mean a
corporation or partnership in which or with which Lessee is merged or consolidated,
in accordance with applicable statutory provisions for merger or consolidation of
22
06-75/8334
corporations, or a corporation or partnership acquiring a substantial portion of the
property and assets of Lessee.
SECTION 35. TERMS BINDING ON SUCCESSORS
All the terms, covenants and conditions of this Lease shall inure to the benefit of and be
binding upon the parties and their successors, including, without limitation, their assignees,
encumbrancers, occupiers or users, sublessees 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, subleases or other transfers hereinbefore set forth, or (2) City's
consent thereto. If more than one lessee is a party to this Lease, the obligations of the lessees shall be
joint and several. Even if City's consent is not required, Lessee shall immediately provide City with
written notice of any, assignment, encumbrance, occupation or use, sublease or other transfer.
SECTION 36. DEFAULT
The occurrence of any one or more of the following events shall constitute a material default and
breach("Default") of this Lease by Lessee:
(a) Lessee's failure to make any payment of the Rent or other payment required to be made
by Lessee at the time required for payment under this Lease.
(b) Lessee's failure to obtain or maintain the insurances and/or the security deposit as
required under this Lease.
(c) Lessee's vacating or abandonment of the Premises during the entire term of this
Lease 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) Lessee's violation of Section 19 (Indemnification, Defense and Hold Harmless
Agreement), Section 34 (No Assigning, Subleasing or Encumbering), Section 47
23
06-75/8334
(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 Lessee as evidenced by a receiver being appointed to take
possession of all or substantially all of Lessee's assets located at or on the Premises
or of Lessee's interest in this Lease, or the making by Lessee of a general
arrangement or assignment for the benefit of creditors, or Lessee's filing a petition in
bankruptcy, whether voluntary or involuntary, or the attachment, execution or the
judicial seizure of substantially all of Lessee's assets located at or on the Premises or
of Lessee's interest in the Lease.
(f) Lessee's failure to observe or perform any other term, covenant, obligation, duty,
responsibility or condition of this Lease to be observed or performed by Lessee when
such failure shall continue for a period of thirty (30) days after City's giving written
notice to Lessee, or such earlier period if specifically set forth in this Lease;
however, if the nature of such failure is such that more than thirty (30) days are
reasonably required for its cure, then Lessee shall not be deemed to be in Default if
Lessee 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 Lessee, City
shall have the remedies described in this Section in addition to all other rights and
24
06-75/8334
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 Lease, at any time and from time
to time relet the Premises or any part or parts of them for the account and in
the name of Lessee or otherwise. Any reletting may be for the 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 Lessee, and
for the account of and in the name of Lessee. City shall apply all rents from
reletting as follows: first, to the payment of reasonable expenses (including
brokers' commissions) 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 reletting; second, to the reasonable expense of securing new
subtenants; third, to the fulfillment of Lessee's covenants to the end of the
term. City may execute any leases or subleases made under this provision
either in City's name or in Lessee's name and City shall be entitled to all
rents from the use, operation or occupancy of the Premises. Lessee shall
nevertheless pay to City on the dates specified in this Lease the equivalent of
all sums required of Lessee under this Lease, plus City's expenses, less the
proceeds of any reletting or attornment.
25
06-75/8334
(2) Termination. In the event of a Default by Lessee, City may at City's sole
discretion terminate this Lease by giving Lessee written notice of
termination. In the event City terminates this Lease, City may recover
possession of the Premises (which Lessee shall immediately surrender and
vacate upon demand) and remove all persons therefrom, and Lessee shall
comply with, without limitation, Sections 56 and 57 below. City also shall be
entitled to recover as damages all of the following:
(A) The worth at the time of the award of any unpaid Rent 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
Rent (each month's Rent would be calculated as the average Rent for
that same month in the preceding years, or if Lessee did own/operate
the Concession in the preceding years, then each month's Rent would
be calculated as the average of all months Lessee 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 rental and other charges that Lessee proves could have been
reasonably avoided;
(C) The worth at the time of the award of the amount by which the unpaid
Rent (each month's Rent would be calculated as the average Rent for
that same month in the preceding years, or if Lessee did not
own/operate the Concession in the preceding years, then each month's
Rent would be calculated as the average of all months Lessee
owned/operated the Concession) and other charges for the balance of
26
06-75/8334
the term after the time of the award exceeds the amount of the loss of
such rental and other charges that Lessee proves could have been
reasonably avoided;
(D) Any other amount necessary to compensate City for the detriment
proximately caused by Lessee's failure to perform its obligations,
liabilities, duties or responsibilities under this Lease; 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.
(3) Use of Personal PropertX. 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 Lessee, and for the account of and in the name
of Lessee.
27
06-75/8334
(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 Lessee's Default. Upon continuance of any Default, City may
in its sole discretion, but is not obligated to, cure such Default at Lessee's sole cost
and expense. If City at any time, by reason of such Default by Lessee, 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 Lessee, shall be due as additional rent not later than five
(5) days after service of a written demand therefor on Lessee, 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. Lessee hereby waives any right of redemption or relief from
forfeiture under California Code of Civil Procedure Sections 1174 or 1179, or under
any other present or future law, in the event Lessee is evicted or City takes
possession of the Premises by reason of any Default by Lessee hereunder.
(e) Other Rights of City_. No act of City, including, without limitation, City's entry on
the Premises, efforts to relet the Premises, or maintenance of the Premises, shall be
construed as an election to terminate this Lease unless a written notice of such
intention is given to Lessee by City or unless the termination thereof is decreed by a
court of competent jurisdiction. Notwithstanding if City elects to continue the Lease
28
06-75/8334
in full force and effect after a Default by Lessee and to relet the Premises, City may
at any time after such reletting elect to terminate this Lease for any such Default.
SECTION 38. CUMULATIVE REMEDIES
The remedies given to City in this Lease shall not be exclusive but shall be cumulative and
in addition to all remedies now or hereafter allowed by law or elsewhere provided in this Lease.
City shall have the right to exercise any other right or remedy which City may have at law or in
equity including, without limitation, City's rights under the unlawful detainer laws.
SECTION 39. WAIVER OF DEFAULT
The waiver by City of any Default by Lessee of any of the provisions of this Lease shall not
constitute a continuing waiver or a waiver of any subsequent Default by Lessee either of the same
or another provision of this Lease.
SECTION 40. CITY'S DEFAULTS/LESSEE'S REMEDY
In the event City fails to perform any material obligation of City under the Lease within
ninety (90) days after receiving written notice from Lessee specifying the nature of such default, or,
if the nature of City's obligation is such that more than ninety (90) days are required 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 Lessee's use of the Premises for its intended
purpose, Lessee shall have the option to terminate the Lease by giving City at least sixty (60) days'
written notice of its intent to terminate. In such a situation, Lessee must still comply with all of its
obligations, liabilities, duties and responsibilities under the Lease, including, without limitation,
paying any Rent due up to the time of termination and surrendering the Premises pursuant to
Sections 56 and 57 below. This remedy of termination is Lessee's sole and exclusive remedy for a
default by City.
29
06-75/8334
SECTION 41. CONSENT
When City's consent/approval is required under this Lease, 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. HOLDOVER
Should Lessee hold over and continue in possession of the Premises after expiration or
termination of this Lease, with or without the express prior written consent of City, Lessee's
continued occupancy of the Premises shall constitute a month-to-month tenancy, subject to all the
terms and conditions of this Lease, at a monthly rent of one hundred ten percent (110%) of the
previous calendar year's annual Rent divided by twelve (12) (or the average monthly Rent for all
months Lessee owned/operated the Concession if Lessee has owned/operated the Concession for
less than one (1) year) or that month's actual Rent, whichever is greater, and shall not constitute a
renewal or extension of the Lease term.
SECTION 43. WAIVER OF CLAIMS
Lessee 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 Lease, or any part thereof, or caused by any judgment or
award in any suit or proceeding declaring this Lease null, void or voidable, or delaying the Lease or
any part thereof from being carried out.
SECTION 44. INSPECTION OF PREMISES
Upon at least twenty-four (24) hours advance written, verbal or electronic notice given by
City to Lessee, Lessee 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 surveying the
Premises to determine whether Lessee is complying with the terms of this Lease and for the purpose
30
06-75/8334
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 Lease. 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. Lessee shall be given reasonable notice when such work
becomes necessary, and Lessee shall adjust the operation of the Concession in such a manner that
City may proceed expeditiously.
SECTION 45. CITY'S RIGHT TO LEASE BUYOUT
City shall have the right at any time during the entire term of this Lease or any renewals or
extensions thereof to buyout the remaining years of the Lease and Lessee's interest in this Lease
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 Lease or a prior lease multiplied by a
twelve and one-half percent (12.501o)profit margin multiplied by the number
of years remaining on the Lease discounted by twelve and one-half percent
(12.501o) 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 Lessee 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 Lease.
The average of the Gross Sales of the most recent two(2) years is $342,500.00 ($335,000.00
+ $350,000.00/2).
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).
31
06-75/8334
The profit margin is then discounted at the rate of 12.5%to present value over the remaining
years of the Lease:
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 Lease are totaled and the
result is the buyout price of the Lease. In this case,the City's buyout price is $101,951.31.
If Lessee 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 Lease of a new Lessee 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, a Lessee shall not be considered a new lessee if the
Concession was previously owned/operated by a lessee, whose assignment, encumbrance,
occupation or use, sublease or other transfer to Lessee did not require City approval in Section 34
above.
32
06-75/8334
At City's sole option, City shall have the right, but not the obligation, to purchase any or all
of Lessee'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 Lessee's Trade Fixtures, City shall select an
appraiser to provide an appraisal of such Trade Fixtures. If Lessee disagrees with City's appraisal,
Lessee, at its sole cost and expense, shall select another appraiser to provide an appraisal. If City
disagrees with Lessee'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
Lessee's Trade Fixtures.
Upon City's request, Lessee shall provide City with proof of lien free, good and
merchantable title to any such Trade Fixtures City desires to purchase. Lessee 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
Lessee's fraud, omission or negligence regarding any purchase of Lessee's Trade Fixtures by City.
Lessee will conduct all defense at its sole cost and expense and City shall approve selection of
Lessee'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 Lessee.
Lessee acknowledges and agrees that this Lease buyout option of City has been negotiated at
arms-length and does not constitute nor does Lessee construe this to be an act of eminent domain or
33
06-75/8334
inverse condemnation. In the event City exercises this buyout option, Lessee waives any and all
claims of loss of business goodwill and relocation rights or benefits. Lessee also shall immediately
surrender the Premises as set forth herein and comply with, without limitation, Sections 56 and 57
below.
SECTION 46. PHOTOGRAPHY
Lessee 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 Lessee, all
without providing Lessee with notice or requiring consent by Lessee.
SECTION 47. HAZARDOUS SUBSTANCES
Lessee 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 Lease or any renewals or extensions thereof or during any holdover period. The foregoing
restrictions shall not be deemed to restrict or prohibit the use by Lessee of ordinary cleaning
products as customarily used in Lessee's ordinary course of business at the Concession, provided
that Lessee complies with all provisions of law as to the use, storage and disposal of such products.
Lessee further agrees to clean up and remediate any such Hazardous Substance 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
34
06-75/8334
and penalties incurred as a result thereof except any release caused by the sole negligence or willful
misconduct of City. Lessee will conduct all defense at its sole cost and expense and City shall
approve selection of Lessee'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 Lessee. "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 48. NONDISCRIMINATION
Lessee 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 general public.
Nor shall Lessee 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 Lease, Lessee shall not discriminate against any employee or
applicant for employment, because of race, religion, color, ancestry, sex, age, national origin or
physical handicap. Lessee 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
35
06-75/8334
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. Lessee shall post in conspicuous places,
available to all employees and applicants for employment, notices setting forth the provisions of this
Section.
Lessee 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 Lessee 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 Lessee has
violated the Fair Employment Practices Act or other applicable discrimination 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 Lease, and any loss of revenue sustained by City by reason
thereof shall be borne and paid for by Lessee, at its sole cost and expense.
SECTION 49. 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, Lessee must
first obtain written City approval prior to submitting any request for approval to the Alcohol
Beverage Commission.
36
06-75/8334
SECTION 50. LIENS
Lessee 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 Lessee, or any person claiming under Lessee. When applicable, Lessee shall cause a notice of
nonresponsibility to be posted and recorded pursuant to California Civil Code Section 3094.
SECTION 51. INSTALLATION AND REMOVAL OF TRADE FIXTURES
Lessee shall have the right during the entire term of this Lease or any renewals or extensions
thereof, at Lessee'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 Lessee's trade or business
as Lessee may deem advisable. Any and all such Trade Fixtures that can be removed without
structural damage to the Premises shall, subject to Section 57 below, remain the property of Lessee
and may be removed by Lessee at any time prior to the expiration or termination of this Lease,
provided Lessee repairs any damage caused by the removal. Upon execution of this Lease and
every anniversary, Lessee shall provide City with a list of all Trade Fixtures on the Premises.
SECTION 52. DESTRUCTION
Should the Premises be partially destroyed, this Lease shall continue in full force and effect,
and Lessee, at Lessee'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 Lessee notice of such
determination in writing and each party may, in that party's sole discretion:
37
06-75/8334
(a) Continue this Lease in full force and effect in which case Lessee shall repair and
restore, at Lessee's sole cost and expense, the Premises to their former condition; or
(b) Terminate this Lease by giving the other party thirty (30) days' written notice of
such termination within sixty (60) days after the date that City gives Lessee 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
Lease, the entire amount of any insurance proceeds (excluding such proceeds for
Trade Fixtures, personal property whether or not owned or leased by Lessee 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 Lessee elects to terminate the Lease, Lessee must still comply with all of its
obligations, liabilities, duties and responsibilities under the Lease, including, without
limitation, paying any Rent 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 Lease, Lessee shall, at its
sole cost and expense, replace and repair the same as soon as reasonably possible to permit the
prompt continuation of Lessee's business at the Premises.
SECTION 53. NO ABATEMENT OF RENT DURING REPAIR WORK
The Rent shall not be abated for the time Lessee is prevented from using the whole or a
portion of the Premises. In addition, Lessee shall not be excused from the payment of taxes,
38
06-75/8334
insurance or any other obligations for the time Lessee is prevented from using the whole or a
portion of the Premises.
SECTION 54. EMINENT DOMAIN
If, during the term of this Lease 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
compensation, other than as provided herein, shall belong to and be paid to City. In the event of
condemnation, Lessee 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 Lessee's Trade Fixtures; compensation for the value of any of Lessee's personal
property; compensation for the value of any of Lessee'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 Lessee's interest in this Lease, shall belong to and
be paid to City. In the event of condemnation, unless Lessee is allowed by the condemning
authority to continue its operations on the Premises, the Lease 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 Lessee is required by
the condemning authority to cease its operations.
SECTION 55. RELOCATION AND ASSISTANCE, BUSINESS GOODWILL AND
LEASEHOLD BONUS VALUE
Upon expiration or termination of this Lease for any reason, including, without limitation, if
City exercises its Lease buyout option, but excluding eminent domain, Lessee shall not be entitled
to any relocation rights or benefits, business goodwill or bonus value attributable to this Lease, and
Lessee expressly waives any claim to the same.
39
06-75/8334
SECTION 56. QUITCLAIM DEED
Upon expiration or termination of this Lease as provided for herein, including, without
limitation, in the event City exercises its Lease buyout option, Lessee shall execute and deliver to
City within thirty (30) days thereof, a good and sufficient quitclaim deed to the rights and interests
of Lessee in the Premises and the Lease. Should Lessee fail or refuse to deliver to City this
quitclaim deed, City may record in the Orange County Recorder's Office a written notice reciting
the failure of Lessee to execute and deliver this quitclaim deed. The date of recordation of this
notice by City shall be conclusive evidence against Lessee and all persons claiming under Lessee of
the expiration or termination of this Lease and any rights or interests of Lessee in the Premises
and/or the Lease. Lessee also agrees to execute, acknowledge, and deliver to City any other
instrument requested by City as necessary to perfect City's right,title and interest to the Premises.
SECTION 57. RESTORATION AND SURRENDER OF PREMISES/TITLE TO
IMPROVEMENTS
On expiration or termination of this Lease, including, without limitation, in the event City
exercises its Lease buyout option, Lessee shall, without compensation to Lessee, promptly surrender
and deliver the Premises to City in as good condition as such were at the commencement date of
this Lease, reasonable wear and tear excepted. Lessee also shall, without compensation to Lessee,
surrender all Improvements to City in good condition and repair, ordinary wear and tear excepted,
free and clear of all liens and encumbrances. Lessee 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 Lessee or
any other person; or City may require Lessee to remove all or any portion of such Improvements, at
Lessee's own risk and cost and expense; or City may itself remove or have removed all or any
portion of such Improvements, at Lessee's own risk and cost and expense. If required by City to do
40
06-75/8334
so, in removing any such Improvements, Lessee 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 Lease; provided, however, that Lessee shall be considered a holdover tenant
(pursuant to Section 42 above) after expiration or termination of the Lease until the time Lessee
completes this removal and restoration work, including, without limitation, the removal of any
Trade Fixtures, personal property and trade inventory left on the Premises. 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 Lessee. 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 Lessee, and for the account and in the name of Lessee; or (3) dispose of any or all of such
Trade Fixtures, personal property and trade inventory without any liability to Lessee. In addition,
Lessee's indemnification, hold harmless and defense obligations set forth in this Lease shall apply
to such Trade Fixtures, personal property and/or trade inventory, and to City's actions with respect
thereto.
SECTION 58. FORCE MAJEURE -UNAVOIDABLE DELAYS
Should the performance of any act required by this Lease to be performed by either City or
Lessee be prevented or delayed by reason of an act of God, strike, lockout, labor troubles, inability
to secure materials, restrictive governmental laws or regulations, or any other cause except financial
inability not the fault of the party required to perform the act, the time for performance of the act
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
41
06-75/8334
excuse the prompt payment of the Rent or other consideration by Lessee as required by this Lease
or the performance of any act rendered difficult solely because of the financial condition of the
party, City or Lessee, required to perform the act.
SECTION 59. CITY'S OPTION TO CLOSE THE PREMISES
City may close the Premises without liability and without advance notice to Lessee 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 Lease by the same amount of time. If this
occurs, Lessee and City shall memorialize this extension in writing.
SECTION 60. DELIVERIES OF SUPPLIES
City may establish the days and times deliveries of supplies may be made and advise Lessee
in writing thereof.
SECTION 61. EMPLOYEE PARKING
City shall establish the days, times and locations where Lessee and Lessee's employees may
park, and the number of automobiles, trucks, and other motorized and non-motorized vehicles that
Lessee and Lessee's employees may park, and advise Lessee in writing thereof.
SECTION 62. CONFLICT OF INTEREST
Lessee 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 Lessee
to solicit or aid in the procuring of this Lease; or (2) shall be employed by Lessee in the
performance of this Lease 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
42
06-75/8334
compatible with such official's or employee's duties as an official or employee of City, Lessee,
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 Lease 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 Lease in
violation of the applicable provisions of the California Government Code.
SECTION 63. 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 (c) one (1)
business day after being sent by reputable overnight courier, in each case to the addresses specified
below; provided that City and Lessee, by notice given hereunder, may designate different addresses to
which subsequent notices, certificates or other communications will be sent:
CITY: LESSEE:
City of Huntington Beach Park Bench Cafe
ATTN: Director of Community Services dba Kokomo's Surfside Grill
2000 Main Street, P.O. Box 190 c/o Mike Bartusick
Huntington Beach, CA 92648 20431 Graystone Lane
Huntington Beach, CA 92646
SECTION 64. COMPLIANCE WITH LAWS
Lessee, 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 Lessee'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 Lease is expressly subject to the laws, regulations and policies of City.
Lessee shall deliver to City a copy of any notice from any governmental entity received by Lessee
43
06-75/8334
regarding any alleged violation of law regarding the Lease, 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
Lessee in a proceeding brought against Lessee by any government entity, that Lessee has violated
any such statute, ordinance, regulation or requirement shall be conclusive as between City and
Lessee and shall be grounds for termination of this Lease by City.
SECTION 65. INTERPRETATION OF THIS LEASE
The language of all parts of this Lease 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 Lease 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 Lease. No
covenant or provision shall be deemed dependent upon any other unless so expressly provided here.
As used in this Lease, 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 Lease which is hereby affected shall be curtailed and limited only to the extent
necessary to bring it within the requirements of the law.
SECTION 66. SURVIVAL
Terms and conditions of this Lease, which by their sense and context survive the expiration
or termination of this Lease, shall so survive.
44
06-75/8334
SECTION 67. MODIFICATION
No waiver or modification of any language in this Lease shall be valid unless in writing and
duly executed by both parties.
SECTION 68. SECTION HEADINGS
The titles, captions, section, paragraph and subject headings, and descriptive phrases at the
beginning of the various sections in this Lease are merely descriptive and are included 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 Lease.
SECTION 69. 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 Lease.
SECTION 70. INDEPENDENT CONTRACTOR
Lessee 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. Lessee 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 Lessee and
its officers, agents and employees and all business licenses, if any, in connection with the Lease
and/or any services to be performed hereunder.
SECTION 71. 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 Lease or to secure the performance hereof, each party shall bear its own
45
06-75/8334
attorney's fees, such that the prevailing party shall not be entitled to recover its attorney's fees from
the non-prevailing party.
SECTION 72. LEGAL SERVICES SUBCONTRACTING PROHIBITED
Lessee 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
contemplated hereunder. Lessee 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 Lessee.
SECTION 73. GOVERNING LAW
This Lease shall be governed and construed in accordance with the laws of the State of
California.
SECTION 74. DUPLICATE ORIGINAL
The original of this Lease 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 75. ENTIRETY
The parties acknowledge and agree that they are entering into this Lease 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 Lease. 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 Lease, and that
that party has not executed this Lease in reliance on any representation, inducement, promise,
agreement, warranty, fact or circumstance not expressly set forth in this Lease. The Lease, and the
46
06-75/8334
attached exhibits, contain the entire agreement between the parties respecting the subject matter of this
Lease, the Premises, the leasing of the Premises to Lessee, or the lease term created under this Lease
and supercede all prior understandings and agreements, whether oral or in writing between the parties
respecting the subject matter hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Lease to be executed by and
through their authorized officers the day, month and year first above written. Each undersigned
represents and warrants that its signature hereinbelow has the power, authority and right to bind
their respective parties to each of the terms of this Agreement, and shall indemnify CITY fully for
any injuries or damages to CITY in the event that such authority or power is not, in fact, held by the
signatory or is withdrawn.
PARK BENCH CAFE, a California CITY OF HUNTINGTON BEACH, a
corporation, dba Kokomo's Suvtide Grill municipal corporation of the State of
California
By: ���� I 147�
M r 1 A-e r9(Z7-U-,t c FC
print name °
ITS: (circle one) Chairma resident ice President NIGor
A D
Ci Clerk
By: r(S
print name INITIATED AND APPROVED:
ITS.
(circle one) Secretary/Chief Financial
�iicer/Asst. Secretary-Treasurers
� Dir to of Community Seri es
REVIEWED AND APPROVED: Director of Economic evelopment
17
j Cit, Administrator APPROVED AS TO FORM-
City Attorney Sa yQ4 11--A 1
47
06-75/8334
EXHIBIT A
SHEET 1 OF 2
THAT PORTION OF LAND LOCATED IN THE CITY OF HUNTINGTON BEACH,COUNTY OF ORANGE,
STATE OF CALIFORNIA,BEING A PORTION OF FRACTIONAL SECTION 14,TOWNSHIP 6 SOUTH,
RANGE 11 WEST,IN THE RANCHO LAS BOLSAS,AS SHOWN IN THE MAP FILED IN BOOK 51,PAGE
14 OF MISCELLANEOUS MAPS,IN RECORDS OF SAID COUNTY LYING BELOW AN ELEVATION
20.00 FEET, SAID ELEVATION BEING BASED UPON ORANGE COUNTY SURVEYORS BENCHMARK
1J-33-68 NGVD 29 DATUM, 1976 ADJUSTMENT SAID BENCHMARK BEING LOCATED IN THE CITY OF
HUNTINGTON BEACH,AT THE INTERSECTION OF PACIFIC COAST HIGHWAY(STATE HIGHWAY 1)
AND 17th STREET,IN THE NORTHEAST CORNER OF A CONCRETE CATCH BASIN 66.3 FEET
NORTHEAST OF THE CENTERLINE OF THE NORTHBOUND LANES OF PACIFIC COAST HIGHWAY,
35.9 FEET SOUTHEAST OF THE SOUTH CORNER OF THE DIVISION OF STATE LAND OFFICE AT 1700
PACIFIC COAST HIGHWAY, 31.5 FEET NORTHWEST OF THE CENTER OF 17th STREET,1.0 FEET
ABOVE THE LEVEL OF THE STREET, MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT THE CENTERLINE INTERSECTION OF THE CONSTRUCTION CENTERLINE OF
PACIFIC COAST HIGHWAY AND MAIN STREET AS SHOWN ON THE SUBDIVISION MAP FOR TRACT
13478,FILED IN BOOK 636,PAGES 42 THROUGH 44 INCLUSIVE OF MISCELLANEOUS MAPS,
THENCE ALONG SAID CONSTRUCTION CENTERLINE SOUTH 49008'00"EAST, 945.10 FEET
(MEASURED) [945,00 FEET PER SAID TRACT 13478] TO THE CENTERLINE OF LAKE STREET;
THENCE SOUTH 25036-08"EAST, 439.62 FEET TO THE MOST WESTERLY CORNER OF THE
HUNTINGTON BEACH MARINE SAFETY EDUCATIONAL CENTER HOME OF THE JUNIOR
LIFEGUARDS,LOCATED AT 21001 PACIFIC COAST HIGHWAY AS IT EXISTS AFTER CONSTRUCTION
PER THE CITY OF HUNTINGTON BEACH,PUBLIC WORKS IMPROVEMENT PLANS ENTITLED"JR.
LIFEGUARD BLDG, SOUTH BEACH PHASE Il",DATED MARCH 11,2003 AS SHOWN ON SHEET B-Al,
ON FILE AT THE ENGINEERING DIVISION,OF THE PUBLIC WORKS DEPARTMENT,IN THE CITY OF
HUNTINGTON BEACH;
THENCE SOUTHEASTERLY ALONG THE SOUTHWESTERLY FACE OF SAID BUILDING SOUTH
55°2322"EAST,43.23 FEET TO AN ANGLE POINT IN SAID SOUTHWESTERLY FACE;
THENCE SOUTHWESTERLY ALONG THE NORTHWESTERLY FACE OF SAID BUILDING SOUTH
34-3638" WEST, 6.05'TO AN ANGLE POINT IN SAID NORTHWESTERLY FACE;
THENCE SOUTHEASTERLY ALONG THE SOUTHWESTERLY FACE OF SAID BUILDING SOUTH
55°23'22" EAST, 1.09 FEET TO AN ANGLE POINT IN SAID SOUTHWESTERLY FACE OF SAID
BUILDING AND THE TRUE POINT OF BEGINNING;
BEACH CONCESSION LEASE AREA LEGAL DESCRIPTION
21071 PACIFIC COAST HIGHWAY
CITY OF HUNTINGTON BEACH
DEPARTMENT OF PUBLIC WORKS
EXHIBIT A
SHEET 2 OF 2
THENCE NORTHEASTERLY ALONG THE SOUTHEASTERLY FACE OF SAID BUILDING AND THE
EXTENSION THEREOF NORTH 34017'57"EAST, 51.40 FEET TO THE NORTHEASTERLY FACE OF SAID
BUILDING;
THENCE SOUTHEASTERLY ALONG SAID NORTHEASTERLY FACE SOUTH 55019'53"EAST, 34.77
FEET TO A LINE PARALLEL WITH AND 10.00 FEET SOUTHEASTERLY OF THE SOUTHEASTERLY
FACE OF SAID BUILDING;
THENCE SOUTHWESTERLY ALONG SAID PARALLEL LINE AND THE EXTENSION THEREOF SOUTH
34°15'27"WEST, 58.27 FEET TO A LINE PARALLEL WITH AND 13.00 FEET SOUTHWESTERLY OF THE
SOUTHWESTERLY FACE OF SAID BUILDING;
THENCE NORTHWESTERLY ALONG LAST SAID PARALLEL LINE NORTH 55023'22"WEST, 34.82
FEET;
THENCE NORTH 34017'57"EAST,6.90 FEET TO THE TRUE POINT OF BEGINNING.
CONTAINING 0.05 ACRES MORE OR LESS.
SUBJECT TO ALL COVENANTS, RIGHTS, RIGHTS -OF-WAY AND EASEMENTS OF RECORD.
EXHIBIT"B"ATTACHED HERETO,BY THIS REFERENCE IS MADE A PART HEREOF.
%.6, t P'tv-- 2�0 %�ANJ) SG�
G
JOSEPH G.DERLETH EXP. 12-31-07 s
PLS 7340, EXPIRES 12/31/07
L.S. 7340
lF of CAS-ki
BEACH CONCESSION LEASE AREA LEGAL DESCRIPTION
21071 PACIFIC COAST HIGHWAY
CITY OF HUNTINGTON _BEACH
DEPARTMENT OF PUBLIC �NORKS
EXHIBIT B Zo GRAPHIC SCALE_
o
I SHEET 1 OF 1
ZI 1 j ( IN FEET )
®=LEASE AREA OI 1 inch = 20' ft.
Lo
W FD SPIKE AND WASHER
**(N49°087 PACIFI0 '�wC COAT HIGHWAY Z I� STAMPED"CALTRANS" PER
0 )HELD FOR BASIS = Lo CORNER RECORD 2001-1259 B,
FD SPIKE AND WASHER 945. 10�
DF BEARINGS** ACCPETED AS CENTERLINE
00�) 945
STAMPED"LS 6034" . INTERSECTION
PER TRACT 16406
BOOK 870, PAGES'47 IDENTICAL sT i,��
THROUGH 50 M.M. 2 0
HUNTINGTON BEACH MARINE SAFETY EDUCATIONAL 6�,
CENTER HOME OF THE JUNIOR LIFEGUARDS
21071 PACIFIC COAST HIGHWAY RETAINING WALL
S55°19'53"E, 34.77'
LP
FINISH FLOOR 3' � 0I*
RWAY
jELEV=9.20' 000
"WHALE
lz:'LEAS s o' TAIL"
n.
N BENCH
AREA 10. W)
S2s0 F�-TRUE POINT M 12"
�oOF BEGINNING
8� �M
q�9 Z 8'ROLLUP OVERHANG
62, r3' DOOR AREA
S5 023'22"E,43.23' Omm
L — U4-36�38"m 6. VAULT 3. '
1,AND S S55°23'2T'EL .0, w W S O CO LP
L
N55°23'22"W, 34.82'
�^ N34017'57"E, 6.90' INTERCEPTORMH
EXP. 12-31-07 = °� 2 '0' PEDESTRIAN PATH/ 4 SMH 2 0'
* * BIKE TRAIL
L.S. 7340 �`� FINISH FLOOR ELEVATION SHOWN HEREON BASED UPON
lF OF CA%- O.C.S. BM 13-33-68, ELEV=27.113 NGVD 29 DATUM, 1976 ADJ.
O = RECORD PER TRACT 13478 FILED IN BOOK 636, PAGE 42
THROUGH 44 INCLUSIVE, OF M. M.
BEACH CONCESSION LEASE AREA PLAT
21071 PACIFIC COAST HIGHWAY
CITY OF HUNTINGTON BEACH
DEPARTMENT OF PUBLIC WORKS .000
CITY OF HUNTINGTON BEACH
Quarterly Evaluation
Park Bench Cafe' dba Kokomo's Surfside Grill
SUMMARY SHEET
Date Inspected: By: Tim Turner and Larry Neishi
Kokomo's Representative: Mike Bartusick
Phone: 714 745-0919 FAX:
Area OK Needs Attention
GENERAL
Doors& Locks
Exterior Walls
Graffiti Removal
Interior Walls
Removal of Bird Droppings
Restrooms (Plumbing)
Roof
Rust
Si nage
Trash
Trim
Windows
Other
COMMENTS:
EXHIBIT C
ATTACHMENT #2
GRAPHIC SCALE
EXHIBIT B 20 0 iU 20 4
SHEET 1 OF 1
Z'u Z IN FEET )
=LEASE AREA 0I 1 inch = 2w ft.
°---PRC COAST' I W FD SPIKE AND WASHER
*(N49 Og 0A HIGHWAY ? STAMPED"CALTRANS"PER
HELD FOR BAS SI OE BE = ACCRPETED AS CENTERLINEER RECORD S B,
FD SPIKE AND WASHER (945.609 945.1of NGS**
STAMPED"LS 6034" INTERSECTION
PER TRACT 16406,
BOOK 870, PAGES 47 IDENTICAL szi
THROUGH 50 M.M.
HUNTINGTON BEACH MARINE SAFETY EDUCATIONAL
CENTER HOME OF THE JUNIOR ]LIFEGUARDS
21071 PACIFIC COAST HIGHWAY VRETAINING WALL
S55°1953"E, 34.77'
LP
INISH FLOOR 3 F-
STAIRWAY
/ELEV=9.20' 00
`y
"WHALE
I�-LEAS a TA1L"
i 1'." / t- �BENCH
�
%ARE
10 cV h
S2s° SUE POINT M "12 12"
36t7 , I :0—OF BEGINNIN
8'ROLLUP
OVERHANG
DOOR
AREA
S55023'22"E 43.23' MM
.a4-IDR ,60' VAULT 3. '
O SANDS S55°23'22TEL .09' w s LP
G 23'22"W, I
� N34°17'57"E,6.90' N55° NTERCEPTORMH
z 0 21 SMH 2 .
1 EXP. 12-31-07 PEDESTRIAN PATH/
It * BUM TRAIL
��9TP S. 7340���� FINISH FLOOR ELEVATION SHOWN HEREON BASED UPON
Of CA"�F O.C.S. BM 11-33-68,ELEV=27.113 NGVD 29 DATUM, 1976 ADJ.
() = RECORD PER TRACT 13478 FILED IN BOOK 636,PAGE 42
THROUGH 44 INCLUSIVE,OF M.M.
BEACH CONCESSION LEAS_ E AREA PLAT ,
21071 PACIFIC COAST HIGHWAY
CITY OF HUNTINGTON BEACH
DEPARTMENT Of PUBLIC WORKS
ATTACHMENT #3
*CH.n )B.-h
INSURANCE AND INDEMNIFICATION WAIVER
MODIFICATION REQUEST-
i�
1. Requested by: Community Services APR 3 0 2001
2. Date: April 23, 2007 City of Huntington Beach
City Attorneys Office
3. Name of contractor/permittee: PARK BENCH CAFE' DBA KOKOMO'S SURFSIDE GRILL
4. Description of work to be performed: BEACH CONCESSION STAND
5. Value and length of contract: Revenue based lease - 10 year term
6. Waiver/modification request: Lessee requests waiver of$500 deductible
7. Reason for request and why it should be granted: Consistent with other city concession
agreement with lessee (Park Bench Cafe')
8. Identify the risks to the City in approving this waiver/modification: None known
23 07
D artment Hea ignature Date:
APPROVALS
Approvals must be obtained in the order listed on this form. Two approvals are required
for a request to be granted. Approval from the City Administrator's Office is only required if
RiskManagement and Yie City Attor'ney's Office disagree.
1. i k Management
Approved ElDenied
Signature Date
2. City Attorney's Offic
roved ❑ Denied I . 3y-
Signature Date
3. City Administrator's Office
❑ Approved ❑ Denied
Signature Date
If approved, the-completed waiver/modification request is to:be submitted to the
City Attorney's Office along with the contract for approval. Once the contract has been approved,
this form is to be filed with the Risk Management Division of Administrative Services
Insurance Indemnifaction Kokomos 04.18.07 4/23/2007 9:15:00 AM
APR-162007 MON 111 :50 AM FAX' NO, 1883818492 01
lorifyyyy)
ACORP. CERTIFICATE OF LIABILITY INSURANCE
THIS CERTIFICAT5 13 ISSUED AS A MATTER OF INFORMATION
ONLY AND CONFERS NO RIGHTS UPON THE CERTWICATF
A C I Commercial lnmaran,co HOLDER,THIS CERTIFICATE DOES NOT AMEND,EXTEND OR
505 Pl. 11'rat 3t. suite L. ALTER THE COVERAGE AFFORDED BY THE POLICIES SCLOW.
Tumtir CA 92700
Plkorka,.714-755-1575 Fau,,71.1-755-4124 INSURERS AFFORDING COVERAGE NAic
i�iMIRED INSURF R A: Vue,)al Sum'WarxCL Co.
Th Park BeTIch Safe, rnc. I WS01111:11,131 River I n sur ance C o
x t Iro's ourfai e Grill
My bartusick II45URCR 0: ....
Im?, 0 ul 01denpat "treat
IN ujif-.Ii n�
6 Kwitington Beach CA 92648
t P 1l:i V1,ICIK 5 LIF IN't I RAT14CE Ll S 1 I-T)I::L 0 W I IA'jr sFEN w i I r r)TO1Hc INS,irr;D NANVO An CVE(-CM TI'F P01.I CY FT P,10 0 tNUICA TFO.NOTWI I H STN.Jj)INC,
ANY Rr(,U 1!',11,11'N'r,1 vfi w ooi coW)fR 0 N OF A NY CON I IWT DR 01 HEiH Dr'('U Mr I'l f VY IT;I PUIPEC r 10 W1 11011!'t I f.S Cr RT!rICA'VF Wy 0 Z ISSU L I)OR
v 1,Y i,i.I.Mm,T1 I Z I NU IRM,1 AT r-0 H or r)fly i I o,m k icli ras Llr_sC-,H I n-,D ii I mL IN 0 SU1112C f I'0 A'.1.711 E I ERM R,ZYCLU 6 ICIN S AND CO MX I'll)NS 0 F,5 U G�I
p(A 1r,(17,S AUOM�Vlr.,'IM11 s 81 lovvmmy i.vm.,.vFm AF.clucm ay rAK)0 AM..
IN!3jWJ'tj1j".' ' ' I III , "' - .. , L .... ��� r P8W1,V%VPI11ATI0r,�---
.Tr;
LTR N114 LIGYNU L)A tAIM11810Y ATE M I v LINTS
al -.91-- ——,,qr y---- — — I—.,-
Or-WAAL LIABILItV I FACT 0CCURR._,NCF Is1000000
VATAAGE 1Q'RrN'.T.0 '"'-"I "-
A X CONXIL-.1 4CIA:,OM'AAL LA114 11Y IBSP702174 09/20/06 09/2-0/07 I'll,1<F�(.5.ek tan r,�;;.!,-k,)--I r,1,00000,..
0 6!H5 KIM* occlmr< 1 W70s CV�."y cr r,!
PERSONAL&ADV II'LAMY
CENC-P.At A0QWGAT! S 2,000000
01`11L V10%.!_WEUfAr WPLICS PER "p R 11.)E')V-C—T 8—C_0'Mj1/0P'AC0 2000000
f,01 Icy
IT
AWMOPKE LIADIL.('rY
_SIWLE L T
ANY W 10
AU CAINM AIJ T US
601ALY V4 IJRY
WMILY IN.Ury
i 1NKJN(AVNrPAU105
PROPERTY UA14Ar,1'
E ASI trey Drxk�wil)
(A' IIAGt LIANLITY F4!0 ONLY-EA AMDE N I
cGF H
ANYAU1,0
AiR�NF OT!I(R THAN
„EXTO ONLY�
C-AC14 000�)IIRMNCIE E CFATkJVfIPrLI.A JtA(MUTY
OCCAM CLAMI FAA31- A 6...... ......
IJ
WORURS COUPVWSATION AND 10'rIYUMMI _j Er.,.
720737 04/01/07 04/01/03 E t.IFACI I A(;0 DENT *1000000
Or!'
E1.,,cIsEA9r,C:AEMVLrYf-!t 1000000
low E L.f)!W-A5E-POt KU 1.1-Mir I 10 0 00 0 0
Al OPI RPRO"Ftprov - 3PUCIAL BSP702174 09/20/06 09120/07 �1 BPP $115,000
� RZFTAC1?Mr3UT COST $500
RXI 10 N 6)I.OCAI 10145 1 VE HIC I t-9 1 E XC L WICINS ADVF U 6 Y CM DORSEW NT i SP H.V AL PROUK10 NS
RRi PARK 118,NCH CAVE, INC.; 17732 GOLDMM9.117C STRF9T, HTJNTINGTO" BEACH, CA
9264n AND KOXOMOIS STIRPSIDE GRILI�,p 21071 PAC1101C COAST HWY, HITNOINGTON
BEACV, CA, 92648, THE CITY OF 1iUNTJ:1qQT0N BAI&Cli, XTS AORNTS, OFFICFI?,S, A�hm
EMP1,OVE145 ARR NAMED AS ADDITIONAL ISSURM PER ATTACH= FORM M27:53 (1-015)
;am wo6n.
CERTIFICA11,HOL DFFR CANCF-LLA71ON
S I I OULD AN Y OF Th E Afl0VL DESM11REC PC LICIF. U L C MCFUX 0 CEF 0 RE I I 4C I!yj'M 41 to
�30..P nAy".VA'1ITTF.N
NOTICE 10 TIM CERIVICATE FOLOSP NAMUD 70 THE I.EfL y 411?114XW 4 1211, CITY OV RUITTt"NOTON BEACK
ATTN. CHRISTI M.'NVOZA/r�TSK MGT
2000 D%TH STERET ......
Jitfg:CINGTOIT BRACH �Ul P. p CA 92648 TIV
IV A L
ACORD 25(200 1108) f)AGORD CORP0114TICN 01
RCA ROUTING SHEET
INITIATING DEPARTMENT: Economic Development Department
SUBJECT: Approve lease agreement for Kokomo's Surfside Grill
Beach Concession at Marine Safety Education Center
COUNCIL MEETING DATE: June 4, 2007
RCA ATTACHMENTS STATUS
Ordinance (w/exhibits & legislative draft if applicable) Attached ❑
Not Applicable
Resolution (w/exhibits & legislative draft if applicable) Attached ❑
Not Applicable
Tract Map, Location Map and/or other Exhibits Attached
Not Applicable ❑
Contract/Agreement (w/exhibits if applicable) Attached
(Signed in full by the City Attomey) Not Applicable ❑
Subleases, Third Party Agreements, etc. Attached
t Applicable
(Approved as to form by City Attorney)
Certificates of Insurance (Approved by the City Attorney) Attached
Not Ap licable ❑
Fiscal Impact Statement (Unbudgeted, over $5,000) Attached ❑
Not Applicable
Bonds (If applicable) Attached
t Applicable
Staff Report (If applicable) Attached ❑
Not Applicable
Commission, Board or Committee Report (If applicable) Attached ❑
Not Applicable
Findings/Conditions for Approval and/or Denial Attached ❑
Not Appl!cable
EXG LANAT110H FOR NSVNG ATTACHMENTS
REVIEWED RETURNED FORWARDED'
Administrative Staff ( )
Deputy City Administrator (Initial) ( ( )
City Administrator (Initial) ( ) ( )
City Clerk ( )
EXPLANATION FOR RETURN OF ITEM:
r c .. ,
(Below
• . For •
RCA Author: Tina Krause ext. 1529
(6) June 4, 2007 - Council/Agency Agenda - Page 6
E-4. (Redevelopment Agency) Receive and File the 2005-2006 State Controller's Report
Comprised of Information Regarding the Agency's Financial Transactions, Blight Progress
and Loan, Property and Housing Activities for Fiscal Year 2005-2006 — Receive and file the
2005-2006 State Controller's Report. Submitted by the Deputy Executive Director. Funding
Source: Not Applicable.
Approved 6-0-1 (Hardy-Absent)
E-5. (City Council) Approve a Ten-Year Lease Agreement with Park Bench
Cafe, Inc. dba Kokomo's Surfside Grill for the Operation of a Beach Food
Concession on the First Floor Level of the Marine Safety Education Center, and
Authorize the Mayor and City Clerk to Execute the Agreement — Approve and
authorize the Mayor and City Clerk to execute the Lease Between the City of
Huntington Beach and Park Bench Cafe for a Beach Food Concession on the First
Floor Level of the Marine Safety Education Center. Submitted by the Director of
Community Services and the Director of Economic Development. Funding Source:
Not applicable.
Approved as amended, requiring use of recyclable paper products 6-0-1 (Hardy-
Absent)
E-6. (City Council) Adopt Resolution No. 2007-34 Authorizing Execution of
Administering Agency-State Master Agreement No. 00035S and Program
Supplement Agreement No. OD38 Rev. 000 for the Safe Routes to School
Program for Improvements in the Vicinity of Newland School — Adopt
Resolution No. 2007-34, "A Resolution of the City Council of the City of Huntington
Beach Authorizing the Mayor and City Clerk to Execute Administering Agency-State
Master Agreement No. 00035S and Program Supplement Agreement No. OD38 Rev.
000 for the Safe Routes to School Program in the Vicinity of Newland School."
Submitted by the Director of Public Works. Funding Source: The grant amount,
including construction, is $251,700. Matching funds are budgeted in the Gas Tax
Fund.
Approved 6-0-1 (Hardy-Absent)
E-7. (City Council) Adopt Resolution No. 2007-35 Amending the City's
Classification Plan to Incorporate Changes Considered by the Personnel
Commission — Adopt Resolution No. 2007-35, "A Resolution of the City Council of
the City of Huntington Beach Amending the Classification Plan by Revising the Class
Specifications and Changing the Job Titles for the Positions of GIS Administrator,
Associate Civil Engineer, Associate Traffic Engineer and IS Computer Operations
Supervisor, and Establishing a New Job Specification and Setting Compensation for
the Position of Senior Supervisor, Cultural Affairs, and Deleting the Class Title and Job
Specification for the Position of Office Automation Systems Administrator." Submitted
by the Deputy City Administer. Funding Source: Funding for the amendments is
included in the Fiscal Year 2006/2007 budget and funding will be included in the
budgets for Fiscal Years 2007/08 and 2008/09.
Approved 6-0-1 (Hardy-Absent)
CITY OF HUNTINGTON BEACH
2000 MAIN STREET CALIFORNIA 92648
OFFICE OF THE CITY CLERK
JOAN L. FLYNN
CITY CLERK
June 5, 2007
Park Bench Caf6 dba Kokomo's Surfside Grill
c/o Mike Bartusick
20431 Graystone Ln.
Huntington Beach, CA 92646
Dear Mr. Bartusick:
Enclosed is a fully executed copy of the Lease Agreement between the City of
Huntington Beach and Park Bench Caf6, a California Corporation, dba Kokomo's
Surfside Grill for a beach food concession on the first floor level of the Marine Safety
Education Center.
Sincerely,
J n L. Flynn
City Clerk
JF:pe
Enclosure: Agreement
G:followup:agrmtltr
(Telephone:714-536-5227)