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HomeMy WebLinkAboutSTADIUM CLUB, LLC - SANDI VAN AMERSFOORTH - 2004-07-06 i CITY OF HUNTINGTON BEACH 2000 MAIN STREET CALIFORNIA 92648 OFFICE OF THE CITY CLERK JOAN L. FLYNN CITY CLERK . LETTER OF TRANSNUTTAL OF ITEM APPROVED BY THE CITY COUNCEL/ REDEVELOPMENT AGENCY OF THE CITY OF HUNTINGTON BEACH DATE: TO: il, m Ci-u eg LL.0 ATTENTION:S, y b/ VA, ) Name oA/D-9 /4��t},8i ma DEPARTMENT: Strff�� - ��c 1 n�1 7n,J �H4cat/ 6/9 V24�Q REGARDING: &REZ— n4207— City,State,Zip See.Attached Action Agenda Item,y Date:of Approval. 7.7 � Enclosed For Your Records Is An Executed Copy Of The Above Referenced Agenda Item. Remarks: Jjr4) �CiClerk Attachments: Action Agenda Page Agreement ✓ Bonds Insurance v RCA Deed Other CC: `.T• C.���c cam, ✓c . ✓ .� N Deptment RCA Allen mrnt Insurance Other N DyMmnent RCA Agreement Insurance Other Mew Dd2/-1- IS 6M Name Department RCA Agreement Insurance Other Name Department RCA AVrement Insurance Other Name Department RCA Insurance g:/followup/letters/coverltr.doc (Telephone:714-536.5227) Council/Agency Meeting Held: Deferred/Continued to: Approved ❑ Conditionally Approved ❑ Denied Cit CI rk' Sign t e Council Meeting Date: July 6, 2004 Departmen ID umber: CSO4-016 Tr�rn� S��s e 1ve, CITY OF HUNTINGTON BEACH REQUEST FOR ACTION W6 �,B 600.�0OR/G/Aw- e/� � -0�9/9� , �s „ SUB TO: HONORABLE MAYORAID CIT C UNCIL M BERS c SUBMITTED BY: PENNY CULBRE -GRAF , City Administrator _- Z- L _i PREPARED BY: JIM B. ENGLE, Director of CommunityServices CLAY MARTIN, Director of Administrative Services `,` " SUBJECT: APPROVE MANAGEMENT AGREEMENTS WITH KATHY MAY AND JEFF WHITEFIELD FOR HUNTINGTON CENTRAL PARK SPORTS COMPC=X CONCESSION "A", AND SANDI VAN AMERSFOORTH FOR CONCESSION "B" Statement of Issue,Funding Source,Recommended Action,Alternative Action(s),Analysis,Environment6l Status;Attachments) Statement of Issue: Should the city approve management agreements with Kathy May and Jeff Whitefield for sports complex concession "A" and Sandi VanAmersfoorth for concession "B"? Funding Source: Annual Revenue to the General Fund: Not Applicable Recommended Action: Approve management agreement with Kathy May and Jeff Whitefield for sports concession "A", and management agreement with Sandi VanAmersfoorth for concession "B", and authorize the Mayor and City Clerk to execute both agreements. Alternative Action(s): Do not approve management agreements.with Kathy May and Jeff Whitefield for sports concession "A" or with Sandi VanAmersfoorth for concession "B". Analysis: As part of the overall master plan for the Huntington Central Park Sports Complex, Council approved the construction and operation of two concession buildings. In November 2002 the city staff published a request for proposal (RFP) for the operation and management of the Central Park Sports Complex concession buildings. Unfortunately, that process did not result in the city obtaining an acceptable operator for the concessions. In September 2003, city staff published a request for qualification (RFQ) for the operation and management of the sports complex concessions. This process yielded four applicants. All applicants were interviewed and given an opportunity to discuss their background, qualifi- cations, and ideas for operation of the concessions. After making a site visit to the restau- REQUEST FOR ACTION MEETING DATE: July 6, 2004 DEPARTMENT ID NUMBER: CSO4-016 rants operated by each of the applicants, and working with the concessionaires to refine their operational concepts, staff is recommending two applicants for Council approval. Concession A (adjacent to Goldenwest Street)- For this location, staff is recommending Kathy May and Jeff Whitefield (Attachment 1 agreement). This team of experienced restaurateurs brings (combined) forty-five years of experience. Kathy May is the owner and operator of Kathy May's Restaurant located in Huntington Beach. Jeff Whitefield is the founder of the OC Taco House in Huntington Beach and currently operates a food wholesale and catering business. The concession operated by Kathy May and Jeff Whitefield would operate under the name of "HB Outdoor BBQ & Snacks". This concession would serve all of " the food items typically found at a park concession along with an outdoor grill serving barbecued beef sandwiches and hot links. Concession B (adjacent to Central Library parking lot) - For this location, staff is recommending Sandi VanAmersfoorth (Attachment 2 agreement). Sandi is the owner and operator of a Subway franchise located at Garfield and Goldenwest Streets. Sandi has been the owner and operator of this facility for three and a half years and has been in the restaurant business for twelve years. The concession operated by Sandi VanAmersfoorth would be called the "Stadium Club", and would feature Subway sandwiches as well as items_ found at a traditional stadium concession stand: In February of 2002, City Council approved a standard lease to be used when renewing leases for all beach/park food and rental concessions. All of the terms and" conditions proposed in the attached management agreements are consistent with those found in the standard lease agreement, with the exception of giving land lease rights to the operators. The agreements include a payback to the concessionaires of 50 percent or a maximum of $40,000 for tenant improvements. The concessionaires will make all tenant improvements, and then receive rent credit beginning in the fourth year and thereafter for a total of five years to repay the 50 percent or maximum $40,000. This is similar to the terms previously approved by Council for Zack's Pier Plaza concession. The Community Services Department, which is the operating department of concessionaire agreements, along with the Real Estate Services Division of"Administrative Services and the City Attorney's Office recommend the approval of these management agreements. Attachment(s): DescriptionCity Clerk's Page Number No. 1 Concession A Management Agreement with Kathy May and Jeff Whitefield 2 Concession B Management Agreement with Sandi VanAmersfoorth D:\Documents and Settings\reedk\Local Settings\Temporary Internet Files\OLKC\04-016 Approve agreements for HCP sports complex concessions.doc -2- 6/23/2004 8:29 AM i ATTACHMENT # 1 OPV • , ,v �. 19193. MANAGEMENT AGREEMENT BETWEEN THE CITY OF HUNTINGTON BEACH AND HB OUTDOOR BARBECUE & SNACK, LLC FOR OPERATION OF A FOOD CONCESSION AT THE HUNTINGTON BEACH SPORTS COMPLEX Table of Contents SECTION PAGE 1 Superseding of Prior Agreement..............................................................................I 2 Grant of Concession on the Premises ......................................................................2 3 Reservations, Encumbrances and Rights-of-Way....................................................2 4 Time of Essence.......................................................................................................3 5 Term.............................:...........................................................................................3 6 Conditions of Premises as Is....................................................................................3 7 Duration of Public Facilities....................................................................................4 8 Additions, Alterations and Removal........................................................................4 9 City's Contract Administrator..........................................:........................................4 10 Rates and Charges...........................:...........................................................5 11 Late Charge and Penalty.......................:...................................................................5 12 Gross Sales Defined..............................::.................................................................6 13 Gross Sales Exclusions............................................................................................7 14 Books and Records ..................................................................................................8 15 Statement of Gross Sales/Audit..:: :........................ ......................... ... ..........9 16 Security Deposit.. ..:................. ......... .....................................................................10 17 Use of Coca-Cola Products......................................................................................I I 18 Quality of Sales,Rentals and Services ....................................................................11 19 Indemnification, Defense and Hold Harmless Agreement......................................12 20 Workers' Compensation and Employers' Liability Insurance..................................13 21 General Public Liability Insurance ..........................................................................13 22 Property Insurance...................................................................................................14 23 Increase in Amount of General Public Liability and Property Insurance.................16 24 Certificates of Insurance; Additional Insured Endorsements..................................16 25 Insurance Hazards....................................................................................................17 26 Maintenance of Premises.........................................................................................17 27 Operation Charge Credit..........................................................................................19 28 . Damage, Destruction or Nuisance.::....:....::.....::........:.:....:....:.....:.... ,..:.......: .....19 29 Taxes........................::.................................................:............................................20 30 Payments of Obligations...........................................................................................20 31 Utilities and Services ...............................................................................................20 32 Business License......................................................................................................21 33 Signs, Advertising and Approval of Name..............................................................21 34 No Assignment or Other Transfer............................................................................22 35 Terms Binding on Successors..................................................................................24 36 Default.......................................................................................................................24 37 Remedies..................................................................................................................26 38 Cumulative Remedies..............................................................................................30 i • 39 Waiver of Default ................................:...................................................................30 40 Ci 's Defaults/Operator's Remedy .........................................31 41 Consent....................................................................................................................31 42 Waiver of Claims.....................................................................................................32 43 Inspection of Premises..:....................................... .::............. ...........................32 44 Cify's Right to Agreement Buyout..................:... 33 45 Photography.............................................................................................................36 46 Hazardous Substances..............................................................................................36 47 Nondiscrimination....................................................................................................37 48 Sale of Alcoholic Beverages and Entertainment Prohibited....................................39 49 Liens.........................................................................................................................39 50 Installation and Removal of Trade Fixtures.............................................................39 51 Destruction.................................:.............................................................................40 52 No Abatement of Operation Charge During Repair Work......................................41 53 Eminent Domain......................................................................................................41 54 Relocation and Assistance,Business Goodwill and Leasehold Bonus Value.........42 55 Restoration and Surrender of Premises/Title to Improvements...............................43 56 Force Majeure -Unavoidable Delays......................................................................44 . 57 City's Option to Close the Premises.........................................................................45 58 Deliveries of Supplies..............................................................................................45 59 Employee Parking....................................:...............................................................45 60 Conflict of Interest...........................................................................................................45 6`1 Notice.... ....................................................................................................... ..... ..46, 62 Compliance with Laws .....:..:..:............:..........:........................................................46 63 Interpretation of this Agreement..............................................................................47 64 Survival....................................................................................................................47 65 Modification.............................................................................................................48 66 Section Headings .....................................................................................................48 67 Brokers.....................................................................................................................48 68 Independent Contractor............................................................................................48 69 Attorney's Fees.........................................................................................................48 70 Legal Services Subcontracting Prohibited...............................................................49 71 Governing Law........................................................................................................49 72 Duplicate Original..............................................................................:.....................49 73 Entirety.....................................................................................................................49 MANAGEMENT AGREEMENT BETWEEN THE CITY OF HUNTINGTON BEACH AND HB OUTDOOR BARBECUE & SNACK, LLC FOR OPERATION OF A FOOD CONCESSION AT THE HUNTINGTON BEACH SPORTS COMPLEX THIS MANAGEMENT AGREEMENT (the "Agreement") is made and entered into by. and between the CITY OF HUNTINGTON BEACH, a municipal corporation of the State of California("City") and HB OUTDOOR BARBECUE & SNACK, LLC, a California limited liability company("Operator"). WHEREAS, City wishes to provide for the management of certain real property (the "Property"), described as a food concession at the Huntington Beach Sports Complex,located at 18100-A Goldenwest Street, Huntington Beach, California, comprised of the building and adjacent related improvements as more particularly described below(hereinafter collectively referred to as the "Improvements"). The term "Premises"as used in this Agreement shall mean both the Property and the.Improvements: Operator.desires.to operate and manage the Premises in the manner set forth below. NOW, THEREFORE, the parties covenant and agree as follows: SECTION 1. SUPERSEDING OF PRIOR AGREEMENT This Agreement shall supersede and replace any existing agreement(s) for the Premises currently entered into by and between the parties and all supplemental agreement(s)entered into by and between the parties regarding the existing agreement(s). . SECTION 2. GRANT OF CONCESSION ON THE PREMISES City,pursuant to the terms of this Agreement, grants to Operator for the purposes stated herein, the right,privilege and duty to equip, operate and maintain a concession open to the public located on the Premises (hereinafter sometimes referred to as the "Concession"). Operator shall not use the Premises for any other purpose or business. The legal description of 1 Sports Complex Concession-HB Outdoor the Premises is set forth in Exhibit "A", which is attached and incorporated herein by this reference. A map depicting the Premises is set forth in Exhibit"B",which is attached hereto and incorporated herein by this reference. This Agreement is not intended to confer third-party beneficiary status to anyone,nor shall this Agreement convey any property interest in the Premises to Operator,nor shall Operator ever assert any such property interest in the Premises. The Premises may include certain public amenities such as restrooms,picnic tables, or other similar improvements (the "Public Amenities"). Operator acknowledges that the Public Amenities are expressly reserved for non-exclusive use and enjoyment by the public at-large, and Operator will not assert an exclusive right to use and control the Public Amenities. SECTION 3. RESERVATION OF RIGHTS City expressly reserves a right to enter upon the Premises with as much advance written, verbal or electronic notice as possible to Operator for any reason associated with public health, safety or welfare, or for the protection of life, limb or property. In all other cases unless otherwise specifically set forth herein, City reserves the right for such entry but City shall give Operator at least twenty-four(24)hours advance written,verbal or electronic notice. City shall have a right of reasonable access to the Premises across Operator owned, controlled or occupied lands adjacent to the Premises,if any, for any purpose associated with this Agreement. SECTION 4. TIME OF ESSENCE Time shall be of the essence of this Agreement and each and all of its terms,covenants or conditions in which performance is a factor. 2 Sports Complex Concession-HB Outdoor SECTION 5. TERM This Agreement shall commence at 12:01 a.m. on July (r6 , 200_4, fora ten(10) year term, which shall end at 11:59 p.m. on...J'c,Lty (6 20/1 unless.extended, or sooner terminated, as provided for herein. SECTION 6. CONDITIONS OF PREMISES AS IS The approval of this Agreement by Operator shall, in itself, constitute acknowledgment that the Premises are in good and usable condition. Upon execution of this Agreement, Operator agrees to undertake its obligations under this Agreement with the Premises in their presently existing condition, "as is", and agrees that City shall not be obligated to make any alterations, additions or betterments thereto. SECTION 7. DURATION OF PUBLIC FACILITIES By entering.into this Agreement, City makes no stipulation as to the type, size; location_ or duration of public facilities (excluding the Premises), including, without limitation, any City parking lots to be maintained on property owned, controlled or occupied by City. SECTION 8. ADDITIONS, ALTERATIONS AND REMOVAL (a) No modifications,alterations or additions to the Premises, including,without limitation, construction of Improvements or changes to structural design, landscape design, or interior or exterior furnishings, shall be constructed or made by.Operator without.Operator first obtaining the prior written approval of City, which will not be unreasonably withheld. (b) Except as provided under this Agreement, no alteration or removal of existing Improvements on or natural features of the Premises shall be undertaken without Operator first obtaining the prior written approval of City. 3 Sports Complex Concession-HB Outdoor (c) Operator's obligation to obtain City's prior written approval is separate and independent of Operator's obligation to obtain any permits from City,such as, without limitation, a building permit. . SECTION 9. CITY'S CONTRACT ADMINISTRATOR City's Director of Community Services,or his or her designee, shall be City's Contract Administrator for this Agreement with the authority to act on behalf of City for the purposes of this Agreement, and all City approvals and notices required to be given herein to City shall be so directed and addressed. SECTION 10. RATES AND CHARGES a. Operator agrees to pay to City as charges ("Operation Charge") for the operation and management of the Premises a sum equal to the following percentages of the amount of gross sales for "Gross Sales".as defined in`Section 12 below: $0 - $100,000.00 of Gross Sales = 7.5%; $100,000.01 $150,000.00 of Gross Sales = 9.5%; Over$150,000.00 of Gross Sales = 11.5%. Payment shall be made as follows: Operator shall pay the Operation Charge monthly, within fifteen(15) calendar days after the end of the month for which the Operation Charge is being paid, or on the next business day if the fifteenth day falls on a weekend or holiday. All payments shall be made to City at the City Treasurer's Office, P.O.Box 711,Huntington Beach, California, 92648, or at such other place or places as City may from time-to-time designate by written notice delivered to Operator. b. Commencing in the fourth year of this Agreement, Operator shall be permitted to deduct from the payment of the Operation Charge the amount of Eight Thousand Dollars 4 Sports Complex Concession-HB Outdoor ($8,000.00) ("the Concession Improvement Allowance"). Operator shall be allowed to deduct the Concession Improvement Allowance during the fourth, fifth, sixth, seventh and eighth years of this Agreement. Under no circumstances shall the amount.deducted pursuant to the Concession.. Improvement Allowance exceed Eight Thousand Dollars ($8,000.00) during any particular year, nor shall the total amount deducted pursuant to the Concession Improvement Allowance exceed Forty Thousand Dollars ($40,000.00). SECTION 11. LATE CHARGE AND PENALTY If the Operation Charge is not received by the City Treasurer within twenty(20) calendar days after the end of the month for which the Gross Sales Operation Charge is being paid, or the next business day if the twentieth day falls on a weekend or holiday, Operator shall pay the following late charge and penalty: (1) a late charge 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 t/Z%)penalty per month shall be added for each month the Gross Sales Operation Charge is due but unpaid. With respect to any other payments required by Operator, a one and a half percent (1 %)penalty per month shall be added for each month such payment hereunder is due but unpaid. SECTION 12. GROSS SALES DEFINED For the purpose of this Agreement, the tern "Gross Sales".shall mean the total price of all merchandise, food and beverages, or services sold or rendered, or equipment rented, in, on, or from the Premises by Operator, or anyone contracting with Operator, including,without limitation, its agents or suboperators (collectively or individually, "Operator Party(ies)"), whether wholesale or retail, whether for cash or on credit, and if on credit whether or not paid, 5 Sports Complex Concession-HB Outdoor and whether in exchange for any other product, commodity, service, commercial paper or forbearance, and shall include,without limitation, the following: (a) All revenues, receipts, commissions or proceeds.from on-line sales by Operator Party(ies), and/or from all public telephones, vending, weighing and all other machines owned, operated, or leased to or by Operator Party(ies) in, on, or from the Premises; (b) All revenues, receipts, commissions or proceeds from sales based on orders solicited or taken, in, on, or from the Premises for merchandise, food and beverages, or services to be delivered or rendered.off, or from sources outside, the Premises, including, without limitation, all orders taken in, on, or from the Premises although the orders may be filled elsewhere; (c) 'All revenues, receipts;commissions or proceeds from.the renting of equipment of any kind in, on, or from the Premises; and (d) All revenues, receipts, commissions or proceeds generated from offsite but delivered through the Concession. (e) All revenues,receipts, commissions or proceeds made by Operator Party(ies)or their employees or others acting on their behalf for the rendition of services of any kind whatsoever,made in, on,or from the Premises. (f) All other revenues, receipts, commissions or proceeds generated by, arising or derived whatsoever from the use of the Premises or derived whatsoever from any business conducted in, on, or from the Premises. For purposes of computing the Gross Sales figure on which to calculate the Operation Charge,the amount of Gross Sales shall start over at zero dollars on January 1 of each year. If b Sports Complex Concession-HB Outdoor the Agreement commences on any date other than January 1, the Gross Sales calculation begins from such commencement date and runs through December 31 of such Agreement commencement year. SECTION 13. GROSS SALES EXCLUSIONS Gross Sales shall not include the following items, and Operator may deduct such items from Gross Sales to the extent they have been included therein or have been included in a prior computation of Gross Sales on which the Operation Charge has been paid under this Agreement to City: (a) Any sales, excise or other taxes otherwise includable in Gross Sales and which become part of the total price of merchandise, food and beverages, or services sold or rendered, or equipment rented, in, on, or from the Premises where Operator must account for and remit the taxes to the government entity or entities which impose them,but only if such taxes are added to the total price and collected from customers; (b) Any transfer of trade inventory from the Premises to the manufacturer or supplier from whom it was obtained by Operator; (c) Sales of Trade Fixtures (as defined in Section 51 below); (d) Sums and credits received in the settlement of claims for loss of or damage to trade inventory or Trade Fixtures; and (e) Any sales resulting in a cash or credit refund to a customer in the ordinary course of business. 7 Sports Complex Concession-HB Outdoor SECTION 14. BOOKS AND RECORDS Operator shall keep true and accurate books and records showing all of its business transactions in separate records of account for the Concession in a manner acceptable to. City, and City and/or its designated representatives shall have the right, at all reasonable times,to inspect such books and records including, without limitation, State of California sales or use tax returns or other State return records, and Operator hereby agrees that all such records and instruments shall promptly be delivered and made available to City and/or its designated representatives within thirty(30) days of receiving written request therefor. Operator shall furnish to City and/or its designated representatives copies of its quarterly California sales and use tax returns at the time each is filed with the State of California. The books and records shall show the total amount of Gross Sales made each calendar month in, on, or from the Premises and any exclusions listed in Section 13 above. All sales and charges shall be recorded by means of cash registers which display the amount of the transaction certifying the amount recorded. The register shall be equipped with devices which log in daily sales totals and which shall record on tapes the transaction numbers and sales details. At the end of each day the tape shall record the total sales for that day. Operator agrees to maintain on the Premises, or another location subject to the prior written approval of City, all records,books of account and cash register tapes, showing, or in any way pertaining to the Gross Sales made in, on, or from the Premises during such calendar month, including,without limitation, State of California sales or use tax returns or other State tax returns, for a period of five (5) years following the close of each calendar month. 8 Sports Complex Concession-HB Outdoor SECTION 1 S. STATEMENT OF GROSS SALES/AUDIT At the time specified in Section 10 of this Agreement for the payment of the Operation Charge, Operator shall.deliver to City a true and accurate statement signed by Operator or by an authorized employee of Operator showing the total Gross Sales and any exclusions listed in Section 13 above made during the preceding calendar month and the amount of the Operation. Charge then being paid calculated on such Gross Sales pursuant to this Agreement. The acceptance by City of any monies paid to City by Operator as the Operation Charge, as shown by any statement furnished by Operator, shall not be construed as an admission of the accuracy of the statement, or of the sufficiency of the amount of the Operation Charge payment, and City shall be entitled to review the adequacy of such payment as set forth herein. By the end of each January, Operator shall deliver to City a year-end statement showing the total amount of Gross Sales made in, on, or from the Premises in each month of the preceding year, the total of any exclusions, the total Operation Charge paid to City for each of those months, all with year-end totals. City may at any time within three (3) years after receiving the year-end statement, at its sole cost and expense, cause all records, books of account and cash register tapes for the year purportedly covered by the statement, to be audited by City or an accountant selected by City. Operator shall,within thirty(30) days of receiving written notice of City's desire for such an audit, deliver and make available all such records, books of account and cash register tapes to City or its designated representative.for.City's use in the audit and/or for copying. If the audit discloses that Gross Sales were understated and/or exclusions overstated, Operator shall immediately pay the additional Operation Charge, together with a penalty thereon from the date it was due at the penalty rate set forth in Section 11 above. Furthermore, Operator shall promptly on demand reimburse City for the full cost and expense of the audit should the audit 9 Sports Complex Concession-HB Outdoor disclose that the questioned year-end statement understated Gross Sales (including an overstatement of exclusions) or the Operation Charge by any amount greater than Two Hundred Fifty Dollars ($250.00). City further reserves the right to examine and audit all such records, books of account and cash register tapes at any time during the three (3) year period following the expiration or termination of this Agreement. 'In addition, City shall have the right to enter upon the Premises during business hours and with two (2)hours advance written,verbal or electronic notice to Operator to perform any audit or inspection function with respect to this Agreement. Operator, its bookkeeper and/or accountant shall respond to all questions and inquiries of City with respect to the books,records, statements and other documentation being examined, and shall promptly provide other further documentation as may be required by City. City is entitled to take statements by deposition under.oath of Operator, its.officers,bookkeepers and/or accountants or any person who prepared the books, records, statements and other documentation required to be provided by Operator under this Agreement. SECTION 16. SECURITY DEPOSIT Upon execution hereof, Operator shall pay and maintain at all times during the entire term of this Agreement or any renewals or extensions thereof or during any holdover period, a security deposit with City in a sum of not less than Two Thousand Five Hundred Dollars ($2,500.00) to guarantee all of Operator's obligations,liabilities, duties and responsibilities under the Agreement, including, without limitation, the repair and maintenance of the Premises as provided herein. Such deposit shall be in the form of a cash bond or an assignment of certificate of deposit(the "CD") or savings account to City, and shall be provided to the City Treasurer. The form of any such security deposit shall be approved by the City Attorney and the 10 Sports Complex Concession-HB Outdoor City Treasurer. No interest shall accrue on cash deposits to the benefit of Operator,but interest shall accrue on a CD or savings account and shall be paid to Operator under the terms.of the CD or savings account. Operator shall send a copy of each renewal of the CD to the City Treasurer to ensure that City has the records of each active deposit account. SECTION 17. USE OF COCA-COLA PRODUCTS,NO STYROFOAM a. Operator shall comply with City's exclusivity agreement with the Coca-Cola Bottling Company of Southern California("Coca-Cola")by doing the following: only Coca- Cola fountain and bottling products shall be bought and sold in, on, or from the Premises for the term of the City's agreement with Coca-Cola. This includes all carbonated and non-carbonated, non-alcoholic beverages defined as soft drinks,juices,juice drinks,teas, isotonics, water and frozen beverages. Frozen beverages shall not include ice creams and frozen yogurts. Operator's failure to adhere to the Coca-Cola exclusivity clause shall"constitute a Default of this Agreement" as defined in Section 36 below. This exclusivity shall not apply to third-party rentals that bring their own drink products. b. Operator shall not use,purchase or acquire food service products that are produced with expandable polystyrene, commonly known as styrofoam. Prohibited products include,but are not limited to, expandable polystyrene food service items such as cups,plates containers and trays. SECTION 18. QUALITY OF SALES, RENTALS AND SERVICES Operator, at its sole cost and expense, shall equip, operate,manage and maintain the Premises and Concession and shall keep the same equipped and maintained in a manner acceptable to City during the entire term of this Agreement or any renewals or extensions thereof or during any holdover period. It is the intent of City that the Concession's services be provided 11 Sports Complex Concession-HB Outdoor in a manner to meet the needs of the visiting public, and should City deem the Concession's hours of operation and/or food, merchandise, services or rentals inadequate to meet such needs, City may require Operator to make such changes requested by City. Operator shall not use or permit the Premises to be used, in whole or in part, during the entire term of this Agreement or any renewals or extensions thereof or during any holdover period for any purpose other than as herein set forth, without the prior written consent of City. Except as permitted in advance in writing by City, all foods and beverages shall be sold in disposable paper or plastic containers. No pull-top cans are to be vended or dispensed from the Premises unless pre-approved in writing by City. Operator, wherever feasible, shall eliminate the use of non-recyclable containers and plastics. City may from time to time review the items sold and containers or utensils used or dispensed by Operator. City reserves the right to prohibit the sale or use of non-recyclable containers or plastics. City in its sole discretion reserves the right to prohibit Operator's sale,provision or rental of any item or service rendered or performed, which it deems objectionable or offensive, beyond the scope deemed necessary for proper service to the public, inappropriate for sale,provision or rental by the Concession, or of inferior quality. City in its sole discretion reserves the right to approve or disapprove any menu item for any reason,and hereby authorizes its Contract Administrator,to make such decisions on its behalf SECTION 19. INDEMNIFICATION, DEFENSE AND HOLD HARMLESS AGREEMENT Operator hereby agrees to protect, defend, indemnify and hold harmless City, its officers, elected or appointed officials, employees, agents and volunteers from and against any and all claims, damages, losses, expenses,judgments, demands and defense costs (including, without limitation,costs and fees of litigation (including arbitration) of every nature or liability of any 12 Sports Complex Concession-HB Outdoor kind or nature) arising out of or in connection with (1) the use or occupancy of the Premises by Operator, its officers, employees or agents, or(2) the death or injury of any person or the damage to property caused by a condition of the Premises, or(3)the death or injury of any person or the damage to property caused by any act or omission of Operator, its officers, employees or agents, or(4) any failure by Operator to keep the Premises in a safe condition, or(5) Operator's (or Operator's agents and/or suboperators, if any)performance of this Agreement or its failure to comply with any of its obligations contained in this Agreement by Operator, its officers, agents or employees except such loss or damage which was caused by the sole negligence or willful misconduct of City. Operator shall hold all Trade Fixtures,personal property and trade inventory on the Premises at the sole risk of Operator and save City harmless from any loss or damage thereto by any cause whatsoever, except such loss or damage which was caused by the sole negligence or willful misconduct of City. Operator will conduct all defense at its sole cost and expense and City shall approve selection of Operator's counsel. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as limitation upon the amount of indemnification to be provided by Operator. SECTION 20. WORKERS' COMPENSATION AND EMPLOYERS' LIABILITY INSURANCE Operator acknowledges awareness of Section 3700 et seq. of the California Labor Code, which requires every employer to be insured against liability for workers'.compensation. Operator covenants that it shall comply with such provisions prior to the commencement of this Agreement. Operator shall obtain and furnish to City workers' compensation and employers' liability insurance in amounts not less than the State statutory limits. Operator shall require all suboperators and contractors to provide such workers' compensation and employers' liability insurance for all of the 13 Sports Complex Concession-HB Outdoor suboperators' and contractors' employees. Operator shall furnish to City a certificate of waiver of subrogation under the terms of the workers' compensation and employers' liability insurance and Operator shall similarly require all suboperators and contractors to waive subrogation: SECTION 21. GENERAL PUBLIC LIABILITY INSURANCE In addition to the workers' compensation and employers' liability insurance and Operator's covenant to defend, hold harmless and indemnify City, Operator shall obtain and furnish to City, a policy of general public liability insurance, including motor vehicle coverage against any and all claims arising out of or in connection with the Premises. This policy shall indemnify Operator, its officers, employees and agents, while acting within the scope of their duties, against any and all claims arising out of or in connection with the Premises, and shall provide coverage in not less than the following amount: combined single limit bodily injury and property damage, including products/completed operations.liability and blanket contractual . liability, of One Million Dollars ($1,000,000.00)per occurrence. If coverage is provided under a form which includes a designated general aggregate limit, the aggregate limit must be no less than One Million Dollars ($1,000,000.00) for the Premises. This policy shall name City,its officers, elected or appointed officials, employees, agents, and volunteers as Additional Insureds, and shall specifically provide that any other insurance coverage which may be applicable to the Agreement shall be deemed excess coverage and that Operator's.insurance.shall be primary. Under no circumstances shall said above-mentioned insurance contain a self-insured retention,or a"deductible"or any other similar form of limitation on the required coverage. SECTION 22. PROPERTY INSURANCE Operator shall provide before commencement of this Agreement and shall obtain and furnish to City, at Operator's sole cost and expense,property and fire insurance with extended 14 Sports Complex Concession-HB Outdoor coverage endorsements thereon,by a company acceptable to City authorized to conduct insurance business in California, in an amount insuring for the full insurable value of all Improvements,Trade Fixtures,personal property.whether or not owned or leased by Operator, and all trade inventory in or on the Premises against damage or destruction by fire,theft or the elements. This policy shall contain a full replacement cost endorsement naming Operator as the insured and shall not contain a coinsurance penalty provision. The policy shall also contain an endorsement naming City as an Additional Insured. The policy shall contain a special endorsement that such proceeds shall be used to repair, rebuild or replace any such Improvements, Trade Fixtures,personal property whether or not owned or leased by Operator, and all trade inventory so damaged or destroyed; and if not so used, such proceeds (excluding any insurance proceeds for Trade Fixtures,personal property whether or not owned or leased by Operator, and trade inventory,but only to the extent the insurance proceeds specifically cover those items) shall be paid to City. The policy shall also contain a special endorsement that if the Premises are so destroyed triggering the parties' ability to terminate as set forth in Section 52 (Destruction)below, and either party elects to terminate the Agreement, the entire amount of any insurance proceeds (excluding such proceeds for Trade Fixtures,personal property whether or not owned or leased by Operator and trade inventory,but only to the extent the insurance proceeds specifically cover those items) shall be paid to City. The proceeds of any such insurance payable to City may be used, in the sole discretion of City, for rebuilding or repair as necessary to restore the Premises or for any such other purpose(s) as City sees fit. This policy shall also contain the following endorsements: (a) The insurer shall not cancel or reduce the insured's coverage without (30) days prior written notice to City; 15 Sports Complex Concession-HB Outdoor (b) City shall not be responsible for premiums or assessments on the policy. A complete and signed certificate of insurance with all endorsements required by this Section shall be filed with City prior to the execution of this Agreement. At least thirty(30) days prior to the expiration or termination of any such policy, a signed and complete certificate of insurance showing that coverage has been renewed shall be filed with City. SECTION 23. INCREASE IN AMOUNT OF GENERAL PUBLIC LIABILITY AND PROPERTY INSURANCE Not more frequently than once every two (2) years, if, in the sole opinion of City, the amount and/or scope of general public liability insurance in Section 21 above and/or property insurance coverage in Section 22 above at that time is not adequate, Operator shall increase the insurance coverage as reasonably required by City. SECTION.24. CERTIFICATES OF INSURANCE: ADDITIONAL INSURED ENDORSEMENTS Prior to commencement of this Agreement, Operator shall furnish to City certificates of insurance subject to approval of the City Attorney evidencing the foregoing insurance coverages as required by this Agreement; these certificates shall: (a) provide the name and policy number of each carrier and policy; (b) shall state that the policy is currently in force; and (c). shall promise to provide that such policies shall not be canceled or modified without thirty(30) days' prior written notice of City; however ten(10) days' prior written notice in the event of cancellation for nonpayment of premium,which 10-day notice provision shall not apply to property insurance in Section 22 above. 16 Sports Complex Concession-HB Outdoor Operator shall maintain the foregoing insurance coverages in force during the entire term of the Agreement or any renewals or extensions thereof or during any holdover period. The requirement for carrying the foregoing insurance..coverages shall not derogate from Operator's defense,hold harmless and indemnification obligations.as set forth in this Agreement. City or its representatives shall at all times have the right to demand the original or a copy of any or all the policies of insurance. Operator shall pay, in a prompt and timely manner, the premiums on all insurance hereinabove required. SECTION 25. INSURANCE HAZARDS Operator shall not commit or permit the commission of any acts on the Premises nor use or permit the use of the Premises in any manner that will increase the existing rates for, or cause the cancellation of any liability,property, or other insurance policy for the Premises or required by this Agreement. Operator shall, at its sole cost and expense; comply with_all requirements of any insurance carrier providing any insurance policy for the Premises or required by this Agreement necessary for the continued maintenance of these policies at reasonable rates. SECTION 26. MAINTENANCE OF PREMISES Operator's maintenance responsibilities of the Premises shall include,but not be limited to, maintaining all sewers and drain lines, roofs and attached public restrooms (if they exist); provided, however, that City shall provide the sanitary supplies for such restrooms, such as hand Soap,bathroom tissue; and the like.Operator agrees to maintain the Premises in good order and repair, at Operator's sole cost and expense, during the entire term of this Agreement or any renewals or extensions thereof or during any holdover period,pursuant to the City's maintenance standards. A copy of the quarterly evaluation summary sheet setting forth the City's maintenance checklist is attached as Exhibit "C", and incorporated herein by this reference. 17 Sports Complex Concession-HB Outdoor Except as provided above, Operator, at its sole cost and expense, shall perform any maintenance and repairs including,without limitation, facility maintenance and landscape maintenance on the Premises. Operator's obligation includes, without limitation,maintaining and operating the Premises in a clean, safe,wholesome and sanitary condition free of trash, garbage or obstructions of any kind and in compliance with any and all present and future laws, general rules or regulations of any governmental authority now, or at any time during the entire term of this Agreement or any renewals or extensions thereof or during any holdover period, in force, relating to sanitation or public health, safety or welfare, or for the protection of life, limb or property; and Operator shall at all times faithfully obey and comply with all laws, rules and regulations applicable thereto. Operator, at its sole cost and expense, shall remedy without delay any defective, dangerous or unsanitary condition(s)caused by Operator or anyone related thereto. Provided,however,that Operator shall have no obligation to repair or maintain sewer lines or respond to sewer leaks. Operator shall paint, stain or seal the Premises'exterior surfaces a minimum of every three (3) years, unless City determines in its sole discretion that such work shall be done on a more frequent basis. All exterior metal surfaces, except the roof, shall be painted with rust resistant paint no less than once every other year. Any and all graffiti on the Premises shall be removed.by Operator, at its sole cost and expense, within forty-eight (48)hours of Operator receiving notice thereof or of Operator becoming aware of such graffiti. In addition, with or without notice from City, Operator shall, at its sole cost and expense, repair and/or replace any broken glass within forty-eight(48)hours of its becoming broken, regardless of cause, except by fault of City. Except as provided above for graffiti and broken glass, Operator, at its sole cost 18 Sports Complex Concession-HB Outdoor and expense and with or without notice from City, shall repair and/or replace all damage or destruction to the Premises caused by act(s) of vandalism as soon as possible but in no event later than fourteen(14)days after the date such damage or destruction occurred. Operator,.at its sole cost and expense,shall repair and/or replace all other damage or destruction to the Premises, regardless of cause, except by fault of City. Operator shall comply with all written notices served by City with regard to the care and maintenance of the Premises. Any written notice hereunder shall specify the work to be done and the period of time deemed to be reasonably necessary for completion of such work. Should Operator fail to commence making the necessary repairs within seven(7)days after receiving such notice, or within twenty-four(24)hours of the glass becoming broken in-the case of broken glass, or fail to diligently proceed to complete the necessary repairs within the period of time reasonably specified in the City's notice, or within forty-eight(48)hours of the.glass becoming broken in the case of broken glass, or within the forty-eight(48)hour time period for removing graffiti, or within fourteen(14) days of the date that the vandalism damage or destruction occurred, City shall proceed to cause the required work to be performed, and Operator shall promptly reimburse City for the cost of labor and materials thereof and pay City a penalty on such costs at the penalty rate set forth in Section 11 above from the date the costs were incurred by City to the date they are reimbursed to City by Operator. Operator hereby expressly waives the right to make repairs at the expense of City and the benefit, if any, of the provisions of Sections 1941 and 1942 of the California Civil Code relating thereto. 19 Sports Complex Concession-HB Outdoor SECTION 27. OPERATION CHARGE CREDIT City in its sole discretion may decide to give Operator a credit against the Operation Charge if Operator undertakes (1) any repair or maintenance obligation of City under this Agreement, (2) any work City in its sole discretion deems necessary and appropriate, or(3) any Operator improvements. Prior to Operator undertaking any such work, City must agree in. writing to the amount of and procedures for the credit, the work to be done by Operator and the cost of such work. Upon approval by the City Administrator,the Credit may be in the form of a rebate of up to Fifty Percent (50%) of Operator's cost for such improvements.No such credit will be considered by City unless and until all liens for labor or materials, if any,have been unconditionally released. If approved, any such credit will be applied in equal monthly increments over the base term of this Agreement. SECTION 28. DAMAGE,DESTRUCTION OR NUISANCE Operator shall not commit or permit the commission by others of any damage or destruction of, on, or to the Premises and/or Concession. Operator shall not maintain, commit or permit the maintenance or commission of any nuisance as defined in Section 3479 and/or Section 3480-of the California Civil Code on the Premises; and Operator shall not use or permit the use of the Premises for any unlawful purpose. SECTION 29. TAXES Operator agrees to pay, at its sole cost and expense, before they become delinquent all lawful taxes, assessments or charges, which at any time may be levied by any governmental agency including, without limitation, the State, County, City or any tax or assessment levying body. Upon request, Operator shall promptly furnish to City satisfactory evidence establishing 20 Sports Complex Concession-HB Outdoor such payment. Operator shall comply with all laws,regulations and ordinances regarding the collection of taxes due a government agency. SECTION 30. PAYMENT OF OBLIGATIONS Operator shall promptly pay, at its sole cost and expense,before they become delinquent, any and all bills, debts, liabilities and obligations incurred by Operator in connection with Operator's occupation and use of the Premises and/or operation of the Concession. Upon request, Operator shall promptly furnish to City satisfactory evidence establishing such payment. SECTION 31. UTILITIES AND SERVICES Excluding any attached public restrooms, if they exist, Operator shall be responsible for the payment of all utility charges, including, without limitation, gas, electricity,water, telephone service, cable TV service, and the furnishing of all.necessary refuse and garbage containers and the removal and disposal of all rubbish,refuse and garbage resulting from the operation of the Premises and/or the Concession. All such rubbish,refuse and garbage removed shall be disposed of in accordance with applicable laws and local ordinances. Trash dumpsters may not be moved or relocated from their established locations without the express prior consent of City. All trash containers and/or trash bins shall be adequately screened and located to the satisfaction of City. For the purposes of this Section, sewage disposal shall be construed as a utility. All such charges shall be paid by Operator.directly to the provider of the service and shall be paid as they become due and payable. Upon request, Operator shall promptly furnish to City satisfactory evidence establishing such payment. SECTION 32. BUSINESS LICENSE Operator shall maintain a business license from City during the entire term of this Agreement or any renewals or extensions thereof or during any holdover period. 21 Sports Complex Concession-HB Outdoor SECTION 33. SIGNS, ADVERTISING AND APPROVAL OF NAME City shall have the right to approve in its sole discretion and at any time require Operator to change or remove.signs,names,placards, decorations or advertising placed on, or inscribed, painted or affixed upon the Premises. Should City approve of any sign, name,placard, decoration or advertising, Operator shall maintain the same at all times during the entire term of this Agreement or any renewals or extensions thereof or during any holdover period in good appearance and repair. All signs,names,placards, decorations or advertising must comply with all requirements of any governmental authority with jurisdiction. SECTION 34. NO ASSIGNMENT OR OTHER TRANSFER (a) Prohibition of Assignment. The parties acknowledge that City is entering into the Agreement in reliance upon the experience and abilities of Operator and its principals. Consequently, Operator shall not voluntarily assign,encumber.or otherwise transfer its interest in the Agreement or in the Premises, or any part of the Premises, or allow any other person or entity(except Operator's authorized representatives)to occupy or use all or any part of the Premises without the prior written consent of City, which consent shall not be unreasonably withheld. Provided,however, that City's consent shall not relieve Operator from any and all of its obligations, liabilities, duties or responsibilities under this Agreement. Any assignment,encumbrance, occupation or use, sublease or other transfer without such consent shall be voidable,and, at City's sole discretion, shall constitute a Default of this Agreement. (b) Consent to Transfer. City's consent to any assignment, encumbrance,occupation or use, or other transfer is subject to Operator providing City with evidence 22 Sports Complex Concession-HB Outdoor satisfactory to City that the proposed, assignee, encumbrancer, occupier or user, or other transferee has suitable financial strength, experience and character for operation and control of the Premises and the Concession and that the use of the Premises by the proposed assignee, encumbrancer, occupier or user, or other transferee is consistent with that specified herein, and is commercially reasonable. Any proposed assignee, encumbrancer, occupier or user, or other transferee shall agree to abide by the terms and conditions of the Agreement including, without limitation, all the obligations, liabilities, duties and responsibilities of Operator, and other conditions imposed upon it pursuant to law. An approval by City to one assignment, encumbrance, occupation or use, or other transfer shall not be deemed to be an approval to any other assignment, encumbrance,occupation or use;or other transfer: (c) Voluntary assignment defined. Except as otherwise expressly provided herein, any dissolution, merger, consolidation or reorganization of Operator, or the sale or other transfer resulting in a transfer of a controlling percentage of the capital stock of Operator(other than a transfer by will, devise,bequest, intestate succession, a transfer to or between the family members of Operator, or a transfer to or between one or more trusts for the benefit of Operator and/or Operator's family members, where applicable) shall be deemed a voluntary assignment. (d) Exceptions. Notwithstanding the foregoing paragraphs or anything to the contrary contained herein, City's consent shall not be required for an assignment to an Affiliate, Subsidiary or Successor of Operator(for purposes hereof, an "Affiliate," a"Subsidiary" and a"Successor" of Operator are defined as follows: 23 Sports Complex Concession-HB Outdoor � s (a) an"Affiliate" is any corporation which directly or indirectly controls or is controlled or is under common control with Operator(for this purpose, "control" shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such corporation, whether through the ownership of voting securities or by contract or otherwise), (b) a "Subsidiary"shall mean any corporation or partnership not less than twenty-five percent (25%) of whose outstanding stock shall, at the time, be owned directly or indirectly by Operator and which is at least as creditworthy as Operator, and(c)a "Successor"shall mean a corporation or partnership in which or with which Operator is merged or consolidated, in accordance with applicable statutory provisions for merger or consolidation of corporations, or a corporation or partnership acquiring a substantial portion of.the property and assets of Operator: SECTION 35. TERMS BINDING ON SUCCESSORS All the terms, covenants and conditions of this Agreement shall inure to the benefit of and be binding upon the parties and their successors, including,without limitation,their assignees, encumbrancers, occupiers or users, or other transferees. The provisions of this Section shall not be deemed as a(1) waiver of any of the prohibitions and conditions against assignments, encumbrances, occupations or uses, or other transfers hereinbefore set forth, or(2) City's consent thereto. If more than one operator is a party to this Agreement,the obligations of the operators shall be joint and several. Even if City's consent is not required, Operator shall immediately provide City with written notice of any, assignment, encumbrance, occupation or use, or other transfer. 24 Sports Complex Concession-HB Outdoor SECTION 36. DEFAULT The occurrence of any one or more of the following events shall constitute a material default and breach("Default").of this Agreement by Operator: (a) Operator's failure to make any payment.of the Operation Charge or other payment required to be made by Operator at the time required for payment under this Agreement. (b) Operator's failure to obtain or maintain the insurances and/or the security deposit as required under this Agreement. (c) Operator's vacating or abandonment of the Premises during the entire term of this Agreement or any renewals or extensions thereof or during any holdover period. Closure of the Concession for more than a combined total of one hundred eighty (180).days in a calendar year, minus.any days of closure of the Concession caused by City, shall be deemed an abandonment of the Premises. (d) Operator's violation of Section 19 (Indemnification, Defense and Hold Harmless Agreement), Section 34 (No Assignment or Transfer), Section 47 (Hazardous Substances), Section 48 (Nondiscrimination), Section 49(Sale of Alcoholic Beverages and.Entertainment Prohibited), Section 62 (Conflict of Interest) or Section 64 (Compliance with Laws). (e). The insolvency.of Operator as evidenced by a receiver being appointed to take possession of all or substantially all of Operator's assets located at or on the Premises or of Operator's interest in this Agreement, or the making by Operator of a general arrangement or assignment for the benefit of creditors, or Operator's filing a petition in bankruptcy,whether voluntary or involuntary, or the 25 Sports Complex Concession-HB Outdoor attachment, execution or the judicial seizure of substantially all of Operator's assets located at or on the Premises or of Operator's interest in the Agreement. (f) . Operator's failure to observe or perform any other term, covenant, obligation, duty,responsibility or condition of this Agreement to be observed or performed by Operator when such failure shall continue for a period of thirty(30)days after City's giving written notice to Operator, or such earlier period if specifically set forth in this Agreement; however, if the nature of such failure is such that more than thirty(30) days are reasonably required for its cure, then Operator shall not be deemed to be in Default if Operator notifies City of the length of the additional time required to cure and receives City's written approval of the additional time required, which approval will not be unreasonably withheld, and commences such cure within such thirty(30) day period and.diligently proceeds with such cure to. completion during such additional time period approved by City. SECTION 37. REMEDIES (a) Cumulative Nature of Remedies. In the event of any Default by Operator, City shall have the remedies described in this Section in addition to all other rights and remedies provided by law or equity, to which City may resort cumulatively or in the alternative: (1) Reentry without Termination. City may at City's sole discretion reenter the Premises, and, without terminating the Agreement, at any time and from time to time, agree to have another party operate and manage the Premises or any part or parts of them for the account and in the name of Operator or otherwise. Any such subsequent agreement may be for the 26 Sports Complex Concession-HB Outdoor remainder of the term or for a longer or shorter period. City may in City's sole discretion eject all persons or eject some and not others or eject none. In addition, City may in its sole discretion remove some or all of the Trade Fixtures,personal property and trade inventory from the Premises. City may store such removed Trade Fixtures,personal property and trade inventory in a public warehouse or other location at the sole cost,expense and risk of Operator, and for the account of and in the name of Operator. City shall apply all payments from such subsequent operators as follows: first, to the payment of reasonable expenses paid or incurred by or on behalf of City in recovering possession,,placing the Premises in good condition, and preparing or altering the Premises for the subsequent operator; second, to the reasonable expense of securing new operators or. or sub-operators; third, to the fulfillment of Operator's covenants to the end of the term. City may execute any agreements made under this provision either in City's name or in Operator's name and City shall be entitled to all payments from the use, operation,management or occupancy of the Premises. Operator shall nevertheless pay to City on the dates specified in this Agreement the equivalent of all sums required of Operator under this Agreement,plus City's expenses, less the proceeds of any subsequent operating agreement. (2) Termination. In the event of a Default by Operator, City may at City's sole discretion terminate this Agreement by giving Operator written notice of termination. In the event City terminates this Agreement, City may 27 Sports Complex Concession-HB Outdoor recover possession of the Premises (which Operator shall immediately surrender and vacate upon demand) and remove all persons therefrom, and Operator shall comply with, without limitation, Sections 56 and 57 below. City also shall be entitled to recover as damages any or all of the following: (A) The worth at the time of the award of any unpaid Operation Charge or other charges which have been earned at the time of termination; (B) The worth at the time of the award of the amount by which the unpaid Operation Charge (each month's Gross Sales Operation Charge would be calculated as the average Gross Sales Operation Charge for that same month in the preceding.years, or if Operator.. did own/operate the Concession in the preceding years, then each month's Gross Sales Operation Charge would be calculated as the average of all months Operator owned/operated the Concession) and other charges which would have been earned after termination until the time of the award exceeds the amount of the loss of such Operation Charge and other charges that Operator proves could have been reasonably avoided; (C) The worth at the time of the award of the amount by which the unpaid Operation Charge (each month's Gross Sales Operation Charge would be calculated as the average Gross Sales Operation Charge for that same month in the preceding years, or if Operator 28 Sports Complex Concession-HB Outdoor did not own/operate the Concession in the preceding years,then each month's Gross Sales Operation Charge would be calculated as the average of all months Operator owned/operated the Concession)and other charges for the balance of the term after the time of the award exceeds the amount of the loss of such Operation Charge and other charges that Operator proves could have been reasonably avoided; (D) Any other amount necessary to compensate City for the detriment proximately caused by Operator's failure to perform its obligations, liabilities, duties or responsibilities under this Agreement; and (E) At.City,..s sole discretion, such other amounts in.addition to or in lieu of the foregoing as may be permitted from time to time by applicable California law. As used in Sections 37(a)(2)(A) and(B) above,the "worth at the time of the award" shall be computed by allowing interest at the rate of twelve percent(12%)per annum. As used in Section 37(a)(2)(C) above, the "worth at the time of the award"shall be computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of the award,plus one percent(M). 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. 29 Sports Complex Concession-HB Outdoor (3) Use of Personal Property. City may at City's sole discretion use the Trade Fixtures,personnel property and/or trade inventory located on, about or appurtenant to the Premises without compensation and without liability for use or damage, or store them in a public warehouse or other location at the sole cost, expense and risk of Operator, and for the account of and in the name of Operator. (b) Election of Remedy. The election of one remedy for any one item shall not foreclose an election of any other remedy for another item or for the same item at a later time. (c) City's Right to Cure Operator's Default. Upon continuance of any Default, City may in its sole discretion, but is not obligated to, cure such Default at Operator's sole cost and expense. If City at any time,by reason:of such Default by Operator, pays any sum or does any act, the sum paid by City plus the reasonable cost of performing such act, together with a penalty thereon at the penalty rate set forth in Section 11 above from the date the costs were incurred or the act performed by City to the date they are reimbursed to City by Operator, shall be due as additional rent not later than five (5) days after service of a written demand therefor on Operator, including reasonably detailed documentation of the amount owed. No such payment or act shall constitute a waiver of Default or of any remedy for Default or render City liable for any loss or damage resulting from any such act. (d) Waiver of Rights. Operator hereby waives any right of redemption or relief from forfeiture under California Code,of Civil Procedure Sections 1174 or 1179 30 Sports Complex Concession-HB Outdoor if appealed by, or under any other present or future law, City takes possession of the Premises by reason of any Default by Operator hereunder. (e) Other Rights of City., No act.of City,including, without limitation,but not limited to City's entry on the Premises, or maintenance of the Premises, shall be construed as an election to terminate this Agreement unless a written notice of such intention is given to Operator by City or unless the termination.thereof is decreed by a court of competent jurisdiction. Notwithstanding if City elects to continue the Agreement in full force and effect after a Default by Operator and to relet the Premises, City may at any time after such reletting elect to terminate this Agreement for any such Default. SECTION 38. CUMULATIVE REMEDIES The.remedies given to.City.in.this Agreement shall not be exclusive but shall be cumulative and in addition to all remedies now or hereafter allowed by law or elsewhere provided in this Agreement. City shall have the right to exercise any other right or remedy which City may have at law or in equity without limitation. SECTION 39. WAIVER OF DEFAULT The waiver by City of any Default by Operator of any of the provisions of this Agreement shall not constitute a continuing waiver or a waiver of any subsequent Default by Operator either of the same or another Provision of this Agreement: SECTION 40. CITY'S DEFAULTS/OPERATOR'S REMEDY In the event City.fails to perform any material obligation of City under the Agreement within ninety(90) days after receiving.written notice from Operator specifying the nature.of such default, or, if the nature of City's obligation is such that more than ninety(90) days are required 31 Sports Complex Concession-HB Outdoor for its performance, if City fails to commence such performance within such ninety(90) day period and thereafter diligently prosecute the same to completion, then City shall be in default of this obligation. If City's default materially interferes with Operator's use of the Premises for its, intended purpose, Operator shall have the option to terminate the Agreement by giving City at least sixty(60) days' written notice of its intent to terminate. In such a situation, Operator must still comply with all of its obligations, liabilities, duties and responsibilities under the Agreement, including, without limitation,paying any Operation Charge due up to the time of termination and surrendering the Premises pursuant to Sections 56 and 57 below. This remedy of termination is Operator's sole and exclusive remedy for a default by City. SECTION 41. CONSENT When City's consent/approval is required under this Agreement, its consent/approval for one transaction or event shall not be deemed to be a consent/approval to any subsequent occurrence of the same or any other transaction or event. SECTION 42. WAIVER OF CLAIMS Operator hereby waives any claim against City, its officers, elected or appointed officials, employees, agents or volunteers for damage.or loss caused by any suit or proceeding directly or indirectly attacking the validity of this Agreement, or any part thereof, or caused by any judgment.or award in any suit or proceeding declaring this Agreement null, void or.voidable, or delaying the Agreement or any part thereof from being carried out: SECTION 43. INSPECTION OF PREMISES Upon at least twenty-four(24)hours advance written, verbal or electronic notice given by City to Operator, Operator shall permit City or City's agents, representatives or employees to enter the Premises at all reasonable times for the purpose of inspecting, investigating and 32 Sports Complex Concession-HB Outdoor surveying the Premises to determine whether Operator is complying-%vrith'the terms of this Agreement and for the purpose of doing other lawful acts that may be necessary to protect City's interest in the Premises or to perform City's duties under this Agreement. City also shall have the right in its sole discretion to do any and all work of any nature necessary for the preservation, maintenance and operation of property owned, controlled or occupied by City. Operator shall be given reasonable notice when such work becomes necessary, and Operator shall adjust the operation of the Concession in such a manner that City may proceed expeditiously. SECTION 44. CITY'S RIGHT TO BUYOUT City shall have the right at any time during the entire term of this Agreement or any renewals or extensions thereof to buyout the remaining years of the Agreement and Operator's interest in this Agreement based upon the following buyout formula: Average.of the.most recent two (2)years(preceding the date of the notice of buyout) annual Gross Sales under this Agreement or a prior lease multiplied by a twelve and one-halfpercent (12.5%)profit margin multiplied by the number of years remaining on the Agreement discounted by twelve and one-half percent (12.5%) to present value. For example: The annual Gross Sales for the most recent two (2)years of the Concession are $335,000.00 and $350,000.00. If City gives Operator notice of its buyout intention in. September, the preceding two (2) years would be the preceding twenty-four(24)months ending in August. There are three(3) years remaining in the Agreement. The average of the Gross Sales of the most recent two (2)years is $342,500.00 ($335,000.00+ $350,000.00/2). 33 Sports Complex Concession-HB Outdoor The profit margin is 12.5%of the most recent two (2)year average which is $42,812.50 ($342,500.00 x 0.125). The profit margin is then discounted at the rate of 12.5%.to present value over the remaining years of the Agreement: Year 1: $42,812.50! 1.125 =$38,055.56 Year 2: $42,812.50/ 1.125 / 1.125 =$33,827.16 Year 3: $42,812.50/ 1.125 / 1.125 / 1.125 =$30,068.59 All of the discounted cash flows for the remaining years of the Agreement are totaled and the result is the buyout price of the Agreement. In this case, the City's buyout price is $101,951.31. If Operator has owned/operated the Concession for less than two (2) years, the City's buyout price will,bethe greater of(1)the amount calculated under the Gross Sales formula above or(2) all reasonable and provable start-up costs,which start-up costs will be determined by City in its sole discretion. The annual Gross Sales figure on which to calculate the buyout amount shall be calculated as follows: The average monthly Gross Sales for all months up to twenty-three (23) months converted into an annual Gross Sales figure. For example, if City decides to buyout the Agreement of a new Operator who has owned/operated the Concession for fifteen(15)months, with an average monthly Gross Sales figure of Five Thousand Dollars ($5,000.00), the annual Gross Sales figure for the option to buyout would be Sixty Thousand Dollars ($60,000.00). For purposes of this calculation, an Operator shall not be considered a new operator if the Concession was previously owned/operated by an operator whose assignment, encumbrance, 34 Sports Complex Concession-HB Outdoor occupation or use, or other transfer to Operator did not require City approval in Section 34 above. At City's sole option, City shall have.the right,but not the.obligation, to purchase any or all of Operator's Trade Fixtures(defined in Section 51 below), based on the appraised fair value market of the Trade Fixtures. If City desires to purchase any or all of Operator's Trade Fixtures, City shall select an appraiser to provide an appraisal of such Trade Fixtures. If Operator disagrees with City's appraisal, Operator, at its sole cost and expense, shall select another appraiser to provide an appraisal. If City disagrees with Operator's appraisal, City shall select another appraiser to perform an appraisal.- In such case, the parties agree that the price for the Trade Fixtures will be the average of these three (3) appraisals. All appraisers must be members in good standing in the American Society of Appraisers. Notwithstanding the foregoing, at any time, City may elect not to purchase any or all of Operator's Trade Fixtures. Upon City's request, Operator shall provide City with proof of lien free, good and merchantable title to any such Trade Fixtures City desires to purchase. Operator shall protect, defend, indemnify, and hold harmless City, its officers, elected and appointed officials, employees, agents and volunteers from and against any and all liens, claims, damages, losses, expenses,judgments, demands and defense costs (including, without limitation, costs and fees of litigation(including arbitration)of every nature or Iiability of any kind.or nature)arising out:of or in connection with Operator's fraud, omission or negligence regarding any purchase of Operator's Trade Fixtures by City. Operator will conduct all defense at its sole cost and expense and City shall approve selection of Operator's counsel. This indemnity shall apply to all claims 35 Sports Complex Concession-HB Outdoor and liability regardless of whether any insurance policies are applicable. The policy limits do not act as limitation upon the amount of indemnification to be provided by Operator. Operator acknowledges and agrees that this Agreement buyout option of City has.been negotiated at arms-length and does not constitute nor does Operator construe this to be an act of eminent domain or inverse condemnation. In the event City exercises this buyout option, Operator waives any and all claims of loss of business goodwill and relocation rights or benefits. Operator also shall immediately surrender the Premises as set forth herein and comply with, without limitation, Sections 56 and 51 below. SECTION 45. PHOTOGRAPHY Operator acknowledges and agrees that City may grant permits to third parties engaged in the production of still and motion pictures and related activities to take photographs or videos of or on the Premises when such permission shall not interfere with the primary business of Operator, all without providing Operator with notice or requiring consent by Operator. SECTION 46. HAZARDOUS SUBSTANCES Operator represents and warrants that its use or occupation of the Premises shall not generate any Hazardous Substance (as defined below in this Section), and it shall not store or dispose on the Premises nor transport to or over the Premises any Hazardous Substance during the entire term of this Agreement or any renewals or extensions thereof. The foregoing restrictions shall not be deemed to restrict or prohibit the use by Operator of ordinary cleaning products as customarily used in Operator's ordinary course of business at the Concession, provided that Operator complies with all provisions of law as to the use, storage and disposal of such products. Operator further agrees to clean up and remediate any such Hazardous Substance 36 Sports Complex Concession-HB Outdoor i • on the Premises, and agrees to protect, defend,indemnify and hold harmless City, its officers, elected or appointed officials, employees,agents and volunteers from and against any and all claims, damages,.losses, expenses,judgments, demands and defense costs (including, without limitation, costs and fees of litigation(including arbitration) of every nature or liability of any kind or nature) arising out of or in connection with any such Hazardous Substance and any damage, loss, or expense or liability resulting from any such Hazardous Substance including, without limitation, all attorney's fees, costs and penalties incurred as a result thereof except any release caused by the sole negligence or willful misconduct of City. Operator will conduct all defense at its sole cost and expense and City shall approve selection of Operator's counsel: This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as limitation upon the amount of indemnification to be provided by Operator. "Hazardous substance"shall be interpreted broadly to mean any. substance or material defined or designated as a hazardous or toxic waste, hazardous or toxic material, hazardous or toxic or radioactive substance, or other similar term,by any Federal, State or local environmental law,regulation or rule presently in effect or promulgated in the future, as such law,regulation or rule may be amended from time to time; and it shall be interpreted to include, without limitation, any substance which after release into the environment will or may reasonably be anticipated to cause sickness, death or disease. SECTION 47 .NONDISCRIMINATION: Operator and its employees shall not discriminate because.of race, religion, color, ancestry, sex, age, national origin or physical handicap against any person by refusing to furnish such person any accommodation, facility, rental,.service or privilege offered to or enjoyed by the 37 Sports Complex Concession-HB Outdoor • s general public. Nor shall Operator or its employees publicize the accommodation, facilities, rentals, services or privileges in any manner that would directly or inferentially reflect upon or question the acceptability of the patronage of any person because of race,religion, color, ancestry, sex,age, national origin or physical handicap. In the performance of this Agreement, Operator shall not discriminate against any employee or applicant for employment, because of race, religion, color, ancestry, sex, age, national origin or physical handicap. Operator shall take affirmative action to ensure that applicants are employed and that employees are treated during employment, without regard to their race,religion, color, ancestry, sex, age,national origin or physical handicap. Such action shall include, without limitation, the following: employment,upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation;.and selection for training, including, without limitation,apprenticeship. Operator shall post in conspicuous places, available to all employees and applicants for employment, notices setting forth the provisions of this Section. Operator shall permit access to its records of employment, employment advertisements, application forms, and other pertinent data and records by City, the State Fair Employment Practices Commission or any other agency with jurisdiction over these matters, for the purpose of investigation to ascertain compliance with this Section. City may determine a violation of this Section to have occurred upon receipt of a final judgment having that effect from a court in an action to which Operator was a party, or upon receipt of a written notice from the State Fair Employment Practices Commission or other government agency with jurisdiction over these matters that it has investigated and determined that Operator has violated the Fair Employment Practices Act or other applicable discrimination 38 Sports Complex Concession-HB Outdoor law and has issued an order which has become final, or obtained an injunction. In the event of violation of this Section,City shall have the right to terminate this Agreement, and any loss of revenue sustained by City by reason thereof shall be borne and paid for by Operator,.at its sole . cost and expense. SECTION 48. SALE OF ALCOHOLIC BEVERAGES AND ENTERTAINMENT PROHIBITED Notwithstanding anything to the contrary, the sale or provision of alcoholic beverages and/or live entertainment in, on, or from the Premises is expressly forbidden, unless expressly permitted in writing by City in advance. For any proposed sale or provision of alcoholic beverages, Operator must first obtain written City approval prior to submitting any request for approval to the Alcohol Beverage Commission. ..SECTION 49. LIENS Operator shall keep the Premises free and clear from any and all liens, including,without limitation, mechanics' or materialmens' liens, claims and demands for work performed, materials furnished, or operations conducted on or about the Premises or by reason of any use or occupancy by Operator,or any person claiming under Operator. When applicable,- Operator shall cause a notice of nonresponsibility to be posted and recorded pursuant to California Civil Code Section 3094. SECTION 50. INSTALLATION AND REMOVAL OF TRADE FIXTURES Operator shall have the right during the entire term of this Agreement or any renewals or extensions thereof, at Operator's sole cost and expense,to install or affix in, to, or on the Premises any machinery, equipment and other objects (the "Trade Fixtures'), for use in Operator's trade or business as Operator may deem advisable. Any and all such Trade Fixtures 39 Sports Complex Concession-HB Outdoor that can be removed without structural damage to the Premises shall, subject to Section 57 below,remain the property of Operator and may be removed by Operator at any time prior to the expiration or termination of this Agreement,provided Operator repairs any damage caused by the removal. Upon execution of this Agreement and every anniversary, Operator shall provide City with a list of all Trade Fixtures on the Premises. SECTION 51. DESTRUCTION Should the Premises be partially destroyed, this Agreement shall continue in full force and effect,and Operator, at Operator's sole cost and expense, shall complete the work of repairing and restoring the Premises to their prior condition providing such work can be accomplished under all applicable governmental laws and regulations within one hundred eighty (180) days. Should the Premises be so far destroyed that in City's reasonable judgment they cannot be repaired or restored to their former condition within one hundred eighty(180)days,, City shall give Operator notice of such determination in writing and each party may,in that parry's sole discretion: (a) Continue this Agreement in full force and effect in which case Operator shall repair and restore, at Operator's sole cost and expense, the Premises to their former condition; or (b) Terminate this Agreement by giving the other party thirty(30) days' written notice of such termination within sixty(60) days after the date that City gives Operator notice that the Premises cannot be repaired or restored to their former condition within one hundred eighty(180) days. In the event that either party elects to terminate this Agreement, the entire amount of any insurance proceeds (excluding such proceeds for Trade Fixtures,personal property whether or not 40 Sports Complex Concession-HB Outdoor owned or leased by Operator and trade inventory, but only to the extent that the insurance proceeds specifically cover those items) shall be paid to City. The proceeds of any such insurance payable to City may be used,in the sole discretion of City, for rebuilding or repair as necessary to restore the Premises or for any other such purpose(s) as City sees fit. In addition, if Operator elects to terminate the Agreement, Operator must still comply with all of its obligations,.liabilities, duties and responsibilities under the Agreement, including,without limitation, paying any Operation Charge due up to the time of termination and surrendering the Premises,pursuant to Sections 56 and 57 below. In the event of the damage or destruction of Improvements,Trade Fixtures and/or personal property located on the Premises not giving rise to a termination of this Agreement,. Operator shall; at its sole cost and expense,replace and repair.the same as soon as reasonably possible to permit the prompt continuation of Operator's business at the Premises. SECTION 52. NO ABATEMENT OF OPERATION CHARGE DURING REPAIR WORK The Operation Charge shall not be abated for the time Operator is prevented from using the whole or a portion of the Premises. In addition, Operator shall not be excused from the payment of taxes, insurance or any other obligations for the time Operator is prevented from using the whole or a portion of the Premises. SECTION 53. EMINENT DOMAIN If, during the term of this Agreement or any renewals or extensions thereof or during any holdover period, City's real property(whether held by City in fee simple, an easement interest or otherwise) and/or the Premises is taken in eminent domain, the entire award(that is, all forms) of 41 Sports Complex Concession-HB Outdoor compensation, other than as provided herein, shall belong to and be paid to City. In the event of condemnation, Operator shall be entitled to an award of only the following forms of compensation, if any, from the condemning authority: compensation'for loss of business goodwill; compensation for the value of any of Operator's Trade Fixtures; compensation for the value of any of Operator's personal property; compensation for the value of any of Operator's trade inventory; and compensation for relocation benefits as authorized by law. All other forms of compensation, such as, for example,but not by way of limitation, any bonus value of Operator's interest in this Agreement, shall belong to and be paid to City. In the event of condemnation,unless Operator is allowed by the condemning authority to continue its operations on the Premises,the Agreement shall terminate on the earliest of the following dates: the date the condemning authority obtains a prejudgment order for possession; the date title to the Premises vests in the condemning authority; or the date when Operator is required by the condemning authority to cease its operations. SECTION 54. RELOCATION AND ASSISTANCE,BUSINESS GOODWILL Upon expiration or termination of this Agreement for any reason, including,without limitation, if City exercises its Agreement buyout option,but excluding eminent.domain,- Operator shall not be entitled to any relocation rights or benefits,business goodwill or bonus value attributable to this Agreement, and Operator expressly waives any claim to the same. SECTION 55. RESTORATION AND SURRENDER OF PREMISES/TITLE TO IMPROVEMENTS On expiration or termination of this Agreement, including,without limitation, in the event City exercises its Agreement buyout option, Operator shall, without compensation to Operator,promptly surrender and deliver the Premises to City in as good condition as such were 42 Sports Complex Concession-HB Outdoor at the commencement date of this Agreement, reasonable wear and tear excepted. Operator also shall, without compensation to Operator, surrender all Improvements to City in good condition and repair,ordinary wear and tear excepted, free and clear of all liens and encumbrances. Operator also shall remove all Trade Fixtures,personal property and trade inventory. City may in its sole discretion accept all or any portion of the Premises, as then improved with Improvements and no sum whatsoever shall be paid to Operator or any other person; or City may require Operator to remove all or any portion of such Improvements, at Operator's own risk and cost and expense; or City may itself remove or have removed all.or any portion of such Improvements, at Operator's own risk and cost and expense. If required by City to do so,in removing any such Improvements, Operator shall restore the Premises as nearly as possible to the conditions existing prior to their installation or construction. All such removal and restoration shall be to.the satisfaction of City and shall be completed within thirty(3.0)days of the expiration or termination of this Agreement. In addition, any Trade Fixtures,personal property or trade inventory left on the Premises after the expiration of this 30-day period, regardless of cause, shall be deemed abandoned by Operator. In City's sole discretion,it may choose to do one or more of the following: (1)take any or all of such Trade Fixtures,personal property and trade inventory as City property; (2) store any or all of such Trade Fixtures, personal property and trade inventory in a public warehouse or other location at the sole cost, expense and risk of Operator, and for the account and in the name of Operator; or(3)dispose of any or all of such Trade Fixtures,personal property and trade inventory without any liability to Operator. In addition, Operator's indemnification, hold harmless and defense obligations set forth in this Agreement shall apply to such Trade.Fixtures,personal property and/or trade inventory, and to City's actions with respect thereto. 43 Sports Complex Concession-HB Outdoor SECTION 56. FORCE MAJEURE - UNAVOIDABLE DELAYS Should the performance of any act required by this Agreement to be performed by either City or Operator be prevented or delayed by reason.of.an act of God, strike,lockout, labor troubles, inability to secure materials, restrictive governmental laws or regulations,or any other cause except financial inability not the fault of the party required to perform the act, the time for performance of the act shall be extended for a period equivalent to the period of delay and performance of the act during the period of delay shall be excused. Provided,however, that nothing contained in this Section shall excuse the prompt payment of the Operation Charge or other consideration by Operator as required by this Agreement or the performance of any act rendered difficult solely because of the financial condition of the party, City or Operator, required to perform the act. SECTION 57. CITY'S OPTION TO CLOSE THE PREMISES City may close the Premises without liability and without advance notice to Operator therefor at any time as City in its sole discretion deems necessary for the protection of life,limb or property, or for public health, safety or welfare purposes, or upon reasonable notice to effect any repair,remodeling or rebuilding deemed necessary by City in its sole discretion. The length of time of any closing of the Premises by City longer than two (2)weeks during a period when the Concession would otherwise be open shall extend the term of the Agreement by the same amount of time. If this occurs, Operator and City shall memorialize this extension in writing. SECTION 58. DELIVERIES OF SUPPLIES City may establish the days and times deliveries of supplies may be made and advise Operator in writing thereof. 44 Sports Complex Concession-HB Outdoor SECTION 59. EMPLOYEE PARKING City shall establish the days, times and locations where Operator and Operator's employees may park, and.the number of automobiles, trucks, and.other motorized and non.- motorized vehicles that Operator and Operator's employees may park, and advise Operator in writing thereof. SECTION 60. CONFLICT OF INTEREST Operator warrants and covenants that no official or employee of City,nor any business entity in which an official or employee of City is interested, (1)has been employed or retained by Operator to solicit or aid in the procuring of this Agreement; or(2) shall be employed by Operator in the performance of this Agreement without the immediate written divulgence of such fact to City. In the event City determines that the employment of any such official, employee.or business entity is not compatible with,such official's or employee's duties as an official or employee of City, Operator,upon request of City, shall terminate such employment immediately. For breaches or violation of this Section, City shall have the right both to terminate this Agreement without liability and, in its discretion,recover the full amount of any such . compensation paid to such official,employee or business entity. No official or employee of City. shall have any financial interest.in this Agreement in violation of the applicable provisions of the California Government Code. SECTION.61. NOTICE. Unless specifically providing for verbal or electronic notice, all notices, certificates, or other communications required to be given hereunder shall be in writing and made in the following manner, and shall be sufficiently given and deemed received when (a)personally delivered; or(b) three (3)business days after being sent via United States certified mail—return receipt requested; or 45 Sports Complex Concession-HB Outdoor (c) one (1)business day after being sent by reputable overnight courier, in each case to the addresses specified below; provided that City and Operator,by notice given hereunder,may designate different addresses to which subsequent notices, certificates or other communications will be sent: CITY: OPERATOR: City of Huntington Beach HB Outdoor Barbecue & Snack,LLC ATTN: Director of Community Services Attn: Kathy May 2000 Main Street, P.O.Box 190 7320 Center Avenue Huntington Beach, CA 92648 Huntington Beach, CA 92647 SECTION 62. COMPLIANCE WITH LAWS Operator, at its sole cost and expense, shall comply with all statutes,ordinances, regulations and requirements of all governmental entities, including, without limitation, Federal, State,'county or municipal,relating to Operator's use and occupancy of the Premises and/or operation of the Concession whether such statutes, ordinances,.regulations and requirements be now in force or hereinafter enacted. This Agreement is expressly subject to the laws,regulations and policies of City. Operator shall deliver to City a copy of any notice from any governmental entity.received by Operator regarding any alleged violation of law regarding the Agreement, Premises or the Concession or from any person allegedly entitled to give notice under any . conditions,covenants,or restrictions binding or affecting the Premises. The judgment of any court of competent jurisdiction,or the admission by Operator in a proceeding brought against Operator by any government entity, that Operator has violated any such statute; ordinance, regulation or requirement shall be conclusive as between City and Operator and shall be grounds for termination of this Agreement by City. 46 Sports Complex Concession-HB Outdoor SECTION 63. INTERPRETATION OF THIS MANAGEMENT AGREEMENT The language of all parts of this Agreement shall in all cases be construed as a whole, according to its fair meaning, and not strictly for or against any of the parties. If any provision of this Agreement is held by an arbitrator or court of competent jurisdiction to be unenforceable, void, illegal or invalid, such holding shall not invalidate or affect the remaining covenants and provisions of this Agreement. No covenant or provision shall be deemed dependent upon any other unless so expressly provided here. As used in this Agreement, the masculine or neuter gender and singular or plural number shall be deemed to include the other whenever the context so indicates or requires. Nothing contained herein shall be construed so as to require the commission of any act contrary to law, and wherever there is any conflict between any provision contained herein and any present or future statute, law, ordinance or regulation contrary to which the parties have no right to contract;then.the`latter shall prevail,.and•the.provision of this Agreement which is hereby affected shall be curtailed and limited only to the extent necessary to bring it within the requirements of the law. SECTION 64. SURVIVAL Terms and conditions of this Agreement, which by their sense and context survive the expiration or termination of this Agreement, shall so survive. SECTION 65. MODIFICATION No waiver or modification of any language in this Agreement shall be valid unless in writing and duly executed by both parties. SECTION 66. SECTION HEADINGS The titles, captions, section,paragraph and subject headings, and descriptive phrases at the beginning of the various sections in this Agreement are merely descriptive and are included 47 Sports Complex Concession-HB Outdoor solely for convenience of reference only and are not representative of matters included or excluded from such provisions, and do not interpret, define, limit or describe, or construe the intent of the parties or affect the construction or interpretation of any provision of this Agreement. SECTION 67. BROKERS Each party warrants to and for the benefit of the other that it has had no dealings with any real estate broker or other agent(attorneys excepted) in connection with the negotiation or making of this Agreement. SECTION 68. INDEPENDENT CONTRACTOR Operator is, and shall be, acting at all times in the performance of this Agreement as an independent contractor herein and not as an employee of City. Operator shall secure at its own cost and expense,and be responsible.for any and all payment of all taxes, social security,state disability insurance compensation, unemployment compensation and other payroll deductions for Operator and its officers, agents and employees and all business licenses, if any, in connection with°the Agreement and/or any services to be performed hereunder. SECTION 69. ATTORNEY'S FEES In the event suit is brought by either party to construe, interpret and/or enforce the terms and/or provisions of this Agreement or to secure the performance hereof, each party shall bear its own attorney's fees, such that the prevailing party shall not be entitled to recover its attorneys fees from the non-prevailing party. SECTION 70. LEGAL SERVICES SUBCONTRACTING PROHIBITED Operator and City agree that City is not liable for payment of any subcontractor work involving legal services, and that such legal services are expressly outside the scope of services 48 Sports Complex Concession-HB Outdoor contemplated hereunder. Operator understands that pursuant to Huntington Beach City Charter Section 309, the City Attorney is the exclusive legal counsel for City; and City shall not be liable for payment of any legal services expenses incurred.by Operator. SECTION 71 GOVERNING LAW This Agreement shall be governed and construed in accordance with the laws of the State of California. SECTION 72. DUPLICATE ORIGINAL The original of this Agreement and one or more copies hereto have been prepared and signed in counterparts as duplicate originals, each of which so executed shall,irrespective.of the date of its execution and delivery, be deemed an original. .Each duplicate original shall be deemed an original instrument as against any party who signed it. SECTION 73. ENTIRETY The parties acknowledge and agree that they are entering into this Agreement freely and voluntarily following extensive arm's length negotiations, and that each has had the opportunity to consult with legal counsel prior to executing this Agreement. The parties also acknowledge and agree that no representations, inducements,promises, agreements or warranties, oral or otherwise, have been made by that party, or anyone acting on that party's behalf,which are not embodied in this Agreement, and that that party has not executed this Agreement in reliance on any representation,inducement;promise, agreement, warranty, fact or circumstance not expressly set forth in this Agreement. The Agreement, and the attached exhibits, contain the entire agreement between the parties respecting the subject matter of this Agreement, the Premises, the leasing of the Premises to Operator, or the lease term created under this Agreement and supercede all prior 49 Sports Complex Concession-HB Outdoor • understandings and agreements, whether oral or in writing between the parties respecting the subject matter hereof. (REST OF PAGE INTENTIONALLY LEFT BLANK) 50 Sports Complex Concession-HB Outdoor IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by and through their authorized officers on (p 52004. OPERATOR: CITY OF HUNTINGTON BEACH, a municipal corporation of the State of HB OUTDOOR BARBECUE & SNACK, California LLC A California limited liability company By: M11yof 'print name( ATTEST: ITS: (circle one)Chairman/PresidentfVice President AND City Clerk'7/4� By: APPROVED AS TO FORM: print name ITS: (circle one)Secretary/Chief Financial Officer/M&. Secretary-Treasurer Cl Attorney C� fZ, INITIATED AND APPROVED: REVIEWED AND APPROVED: rec or of Communi Services City Administrator RO .ZZ(;— Director dministrati ervices 51 Sports Complex Concession-HB Outdoor IN WITNESS WHEREOF,the parties hereto have caused this Agreement to be executed by and through their authorized officers on , 2004. OPERATOR: CITY OF HUNTINGTON BEACH, a municipal corporation of the State of HB OUTDOOR BARBECUE & SNACK, California LLC A California limited liability company By: 1<a+W mav Mayor rin name ATTEST: ITS: (circle one hairm ice President AND City Clerk By: 71 Oki 1TCF1 -Lb APPROVED AS TO FORM: ' -print.name . ITS:{circle one)Secretary/Chief Financial Officer/Asst Secretary-Treasurer CityAttorney C � INITIATED AND APPROVED: REVIEWED AND APPROVED: Director of Community Services City Administrator APPROVED: Director of Administrative Services 51 Sports Complex Concession-HB Outdoor Exhibit A 1 OF 2 Legal Description Those certain lands situated in the City of Huntington Beach, County of Orange, State of California, being a portion of Parcel .2, as shown in the document entitled "Final Order Of Comdemnation", recorded as., instrument number 89-637397 of Official Records, in the Office of the Recorder, of said County, more particularly described as follows: Commencing at the west quarter corner, of said Section 35, thence north 0'16'33" east, 1169.29 feet along the west line of said Section 35, thence at right angles to said west line, south 89'43'27" east, 133.19 feet, to the TRUE POINT OF BEGINNING. Thence south 0'00'00" west, 60.86 feet to the beginning of a non—tangent curve concave to the southwest, having a radius of 6.35 feet, a radial line to said point of curvature bears north 26'59'25" west; Thence easterly, southeasterly and southerly, through a central angle of 141'48'16", an arc length of 15.72 feet, to the beginning of a ."non—tangent reverse curve, concave to the northeast, having a radius of 10.03 feet, radial line to said point of reverse curvature . bears .n.orth _-.68'23�38" west;•" . Thence southeasterly, easterly and northeasterly through a . central angle of 161'44'44", an arc length of 28.31 feet, -to the beginning of a non—tangent reverse curve, concave to the south, having a radius of 10.93 feet, a radial line to said point of reverse curvature bears north 53'43'55" west; Thence northeasterly, easterly and southeasterly through a central angle of 81'32'17", an arc length of 15.55 feet, to the beginning of a non—tangent reverse curve, concave to the north, having a radius of 50.97 feet, a radial line to said point of reverse curvature bears south 28'21'16" west; Thence southeasterly, easterly and. northeasterly through a central angle of 89'32'46", an arc length of 79.66 feet; Thence north 90'00'00" east, 19.59 feet; Thence north 0'00'00" east, 49.14 feet; Thence north 90'00'00" west, 19.60 feet, to the beginning of a non—tangent curve concave to the southwest, having a radius of 50.97 feet, a radial line to said point of curvature bears north 61'10'40"east; 18100A GOLDENWEST CITY OF HUNTINGTON BEACH DEPARTMENT OF PUBLIC WORKS Exhibit ' A 2OF2 Legal Description Thence northwesterly, westerly and. southwesterly, through a central angle of 82*29'15 an arc length of 73.38 feet, `to the beginning of-a non-tangent reverse curve, concave to the north, having a radius of 25.49 feet, a radial line to said point of .reverse curvature. bears south 13'05'33" east; Thence southwesterly, westerly and northwesterly, through a central angle of 25'45'39", an arc length of 11.36 feet; Thence north 90'00'00" west, 20.30 feet; Thence south 9'51'23" east, 6.41 feet, to the beginning of a non—tangent curve concave to the northwest, . having a radius of 11.27 feet, a radial line to said point of curvature bears south 85'43'06" east; M Thence southwesterly and westerly, through a central angle of 103'38'32", an arc length of 20.39. feet to the TRUE POINT OF BEGINNING. Containing: 101606.5 square .feet -,more -or -1e_ss. Subject to . all Covenants, Rights, Rights—of-Ways` and Easements of Record. See exhibit "B" attached hereto and by this- reference made a part hereof. =y�O %_ANp SG� Joseph G. Derleth EXP. 12-31-05 0 PLS 7340, expires 12/31/05 *s s. 7340 OF CA%.. 18100A GOLDENWEST CITY OF HUNTINGTON BEACH DEPARTMENT OF PUBLIC WORKS LEGEND: OH=OVERHANG IN ,%00 "E 49. 4' PT=PICNIC TABLE TE=TRASH ENCLOSURE LIMIT OF PT PT PREMISES it v PT PT PT PT ch �r v 0 18100A GOLDENWES I �} o _ I ro L�5 47 47, L17 v J v T.P.O.B. Scale= 1 =20' SO.00'00"W, 60.86' J �, W 1/4 COR, N SEC 350 T5S, R11W WI NO'16'33"E, 1169.29' JCL GOLDENWEST ST, W'LY LINE SEC 35, T5S, R11W EXHIBIT B ( 1 OF 2) 18100A GOLDENWEST CITY OF HUNTINGTON BEACH DEPARTMENT OF PUBLIC WORKS TABLE OF DIMENSIONS CURVE TABLE:. LI=N90'00'00"E, 19.59' C1=DELTA 141'48'16", R=6.35', L=15.72' L2=N90'00'00"W, 19.60' C2=DELTA 161'44'44", R=10.03', L=28.31' L3=N90'00'00"W, 20.30' C3=DELTA 81'32'17", R=10.93', L=15.55' L4=S09'51'23"E, 6.41' C4=DELTA 89'32'46", R=50.97', L=79.66' L5=S89'43'27"E, 133.19' C5=DELTA 82*29'15", R=50.97 , L=73.38' L6=N26'59'25"W (RAD Cl) C6=DELTA 25'45'39". R=25.49', L=11.36' L7=S65'11'09"E (RAD Cl) C7=DELTA 103'38'32", R=11.27 , L=20.39' L8=N68'23'38"W (RAD C2) L9=S50'08'22"E (RAD C2) L10=N53'43'55"W (RAD C3) L11=N27'48'22"E (RAD C3) L12=S28'21'16"W (RAD C4) L13=S61'11'30"E (RAD C4) L14=N61'10'40"E (RAD C5) L15=N21'18'35"W (RAD C5) L16=S13'05'33"E (RAD. C6). L17=S12'40'06"W .(RAD C6) L18=S85'43'06"E (RAD C7) EXHIBIT B (2 OF 2) 18100A GOLDENWEST 'J CITY OF HUNTINGTON BEACH DEPARTMENT OF PUBLIC WORKS FAXHuntPacificInsurance Z 002 06i�1C?VffU,004 3 2'UtKTIFIC 38 OF LIABILITY INSURAI� CSR b!H DATE(MM/DOYYYYI HBOUT-1 06 24 04 PRODUCER THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE + Huntington Pacific Ins. Agency �d �0 ( HOLDER.THIS CERTIFICATE DOES NOT AMEND,EXTEND OR ! 18672 Florida St. Ste. 3021) e��,J ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. + Huntington Beach CA 92648 i + Phone: 714-841-6293 YT ��y INSURERS AFFORDING COVERAGE NAIC ft INSURED INSURER St Paul Fire 6 Marine 7f 2l INSUFFR B AB Outdoor Barbecue hl © i .NSU REP,C: -- 18100 Goldenwest Street - NSUPERD I Huntington Reach CA 92648 ) -- -- - - INSURER E� - - COVERAGES THS POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ASCVE FOR THE POLICY PERIOD INDICATED.NOTWiTHS'rANDINC ANY REQUIREMENT,TERM OR CONDITION CF ANY CONTRACT OR OTHER UOCUMENT WITH RESPF_CTTO WH'CI•I THIS CERTIFICATE MAY DE ISSUEC OR 1 MAY PERTAIN.I HE INSURANCE AFIrORCEO BY THE HULICIES OESCRIBEO HEREIN IS SJBJE::TO 1LLTHE TERNS.ExCLUSIONS AND CONDITIONS OF SUCH — POLICIES.AGGREGATE LIMITS SHOWN MAY 1.1AVE BEEN REDUCED BY PAID CLAIMS. TICSRppOO,LI—_ "I POLL r'EFFpCTivE ;PDIiCVL•XEIfWT(6rJf LTR 1NSRC TYPE OF INSURANCE POLICY NUMBER DATE',,-iE /YY :ATE MMIDD(YY I' ~" LIMITS I G_ENERALLIABILI'rY I L I LI—OEA10.C7 r1A4GOcCCTOU'RRREENNrCEED $ 000, 0 00 A X COMMERCIAL LC05534752 06/17/04 06/17/05X _-00, 00 _ J CLAIMS MADE OCCUR i I ME:)EXP(Any one Per::W; j S 5,0 0 0 - - I PF_RSONAI,&ADV INJURY f{5 1,000'000 GCPIERAL AGGREGATE _{S 2,0 0 0,0 0 0 I IGF...N.LAGGRE GATE L+MITAPPLIEJPER. I i PRODUCT$:COMPIOPAGC Slr-000,000� X POLICY —.. I JJEC LOC I { AUTOMOBILE LIABILITY i I COMBINED SINGLE LIMIT S ANY AUTO I (EB sridonl) - AI.L OWNED AUTOS I � i BODILY INJURY { SCHEUULEO AUTOS I I lPer oeraon) I I I r HIRED AUTOS I I .J I I{ I BODILY o;c1 INJURY S NON•OWNFOAUTOS Pe ....__. I - I PROPERTY DAMAGE' i - � � {(Pei:eciG17n11 I I. " (GARAGE LIABILITY _. - { AUTO ONLY•EA ACCIDENT S I ANY AUTO' I EA—ACC, I $ -- C rHER THAN { I I AUTO ONLY: GG S A EXCESSIUMBRELLA LIABILITY I 1 I EACH OCCURRENCE 5 OCCUR r_1 CLAIMS MADE II I AGGRE_CA7E DEDUCTIBLE I! S r j RETENTION S APPROVED AS TO FORM '— I WORKERS COMPENSATION AND �^+ }}�� I WC LIMITS l ER _ EMPLOYERS'LIABILITY 1V 1�1 Chi TH,C�ty A mey E.L.EACH ACCIDENT S - ANY PROPR ETO'NPARTNGR/EXECUTIVE �!� J EA.CH .._ .._. ._. {OrFICER/MEMRER EXCLUDEO? /D(L I E.L DISEASE.•EA GMPLOYEEI S { II yea.aclicnte v,MCr / T _ _. SPECIAL PROVISIONS below I I El DISEASE-POLICY LIMIT f S OTHER I A iBuilding LCOSS34752 106/17/04.I 06/171A5 ' $ .200,000 Spcl. £rom Business Pro ert [ I I S 80,000. R/C DESCRIPTION OF OPERATIONS I LOCATIONS/VEHICLES/EXCLUSIONS ADDEO 8Y ENDORSEMENT/"SPECIAL PROVISIONS The City of Huntington Beach, it's officers, elected or appointed officials, employees, agents and volunteers are additional insured with respects as their interest may appear. * 10 day notice of cancellation for non-payment of premium. CERTIFICATE HOLDER CAVCELLATION }}� CITYHUN SHOULD ANY OF YHE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION i CATE THEREOF.THE ISSUING INSVRER WIL MAIL 30 DAYS WRITTEN 1! NO'nCE TO THE CERTIFICATE MOLDER NAMED TO THE LCFYxAff000MQaZM006= City of Huntington Beach { 2000 Main Street Huntington Beach CA 92648 GLrrHC I E PRESE. TIVE I I Mar eb ACORD 25(2001108) Q A RD CORPORATION 1986 ?149422539 9?% P.02 JUN-25-2004 11�31 _ _- _ 06 '24.2004 23:26 FAX 7148422538 HuntPacificInsurance 16 003 General Liability THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURED--DESIGNATED PERSON OR ORGANIZATION I j This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART. 1 SCHEDULE jName of Person or Organization: The City of Huntington Beach, it's officers, elected or appointed officials, employees, agents and volunteers. I (If no entry appears above, information required to complete. this.endorsement will be shown in the.0eclarations as applicable.to.this endorsement.) WHO IS AN INSURED (Section II) is amended to include as an insured the person or organization shown in the Schedule as an insured but only with respect to liability arising out of your operations or premises owned by or rented to you. APPROVED AS TO FORM J �TNIFfi Mc9RATH,Ci Attgtncy CG 20 26 1185 Copyright. Insurance Services Office. Inc.. I98a JUN-25-2004 11:31 714842253e 97% P.03 i • 'J, City of Huntington Beach 2000 Main'Street California 92648 DECLARATION of NON-EMPLOYER 5TATTU5 In order to comply with City Council Resolution No.6277, you arc required to Provide Proof of Workers'Compensation insurance..If you have no employees,this form must be signed and returned to. City of r"Iuntington_Fjcach Risk Management Division .2000 Main Street Muntington each,CA 9264a ( certify that in the Performance of the activity or wor'c for which this permit is issued, ( shall not employ any person.in any manner so as to 6ccome su6.c to California.Workers'.Compensation insurance ..requirements: I authorize the City of Muntington E>each to immediately and retroactively revokcAe license or Permit - issued under this declaration if I hire any employee(s) or 6ccome subject to the provisions of the laws requiring Workcrs'Compensation Insurance. ApplicanvCompany Namc: �CAg Aadress: 7✓� l P�rbe, CA 9z t 047 Applicant's Signature: L Date: 6 Tide. t�nc,�' Pry �► r Location 5igne8: Kzy Yr�n lon Telephone Num6er: C7/4) A3 TO FOR R McGRATH RNEY GARiskMgmftCert-Ins1WC-Wvr.Doc (Rev.612/2004) ATTACHMENT #2 Oiu MANAGEMENT AGREEMENT BETWEEN THE CITY OF HUNTINGTON BEACH AND STADIUM CLUB, LLC FOR OPERATION OF A FOOD CONCESSION AT THE HUNTINGTON BEACH SPORTS COMPLEX Table of Contents SECTION PAGE 1 Superseding of Prior Agreement..............................................................................1 2 Grant of Concession on the Premises ......................................................................2 3 Reservations,Encumbrances and Rights-of-Way....................................................2 4 Time of Essence.......................................................................................................3 5 Term.........................................................................................................................3 6 Conditions of Premises as Is....................................................................................3 7 Duration of Public Facilities....................................................................................4 8 Additions,Alterations and Removal........................:...............................................4 9 City's Contract Administrator..................................................................................4 10 Rates and Charges.......................................................................................5 11 Late Charge and Penalty..........................................................................................5 12 Gross Sales Defined.................................................................................................6 13 Gross Sales Exclusions.............................................................................................7 14 Books and Records ..................................................................................................8 15 Statement of Gross Sales/Audit...............................................................................9 16 Security Deposit.......................................................................................................10 17 Use of Coca-Cola Products......................................................................................11 18 Quality of Sales, Rentals and Services ....................................................................11 19 Indemnification, Defense and Hold Harmless Agreement......................................12 20 Workers' Compensation and Employers'Liability Insurance..................................13 21 General Public Liability Insurance ..........................................................................13 22 Property Insurance...................................................................................................14 23 Increase in Amount of General Public Liability and Property Insurance................16 24 Certificates of Insurance; Additional Insured Endorsements..................................16 25 Insurance Hazards....................................................................................................17 26 Maintenance of Premises.........................................................:...............................17 27 Operation Charge Credit..........................................................................................19 28 Damage, Destruction or Nuisance ...........................................................................19 29 Taxes........................................................................................................................20 30 Payments of Obligations..........................................................................................20 31 Utilities and Services...............................................................................................20 32 Business License......................................................................................................21 33 Signs,Advertising and Approval of Name..............................................................21 34 No Assignment or Other Transfer............................................................................22 35 Terms Binding on Successors..................................................................................24 36 Default......................................................................................................................24 37 Remedies..................................................................................................................26 38 Cumulative Remedies...............................................................................................30 39 Waiver of Default ....................................................................................................30 40 City's Defaults/Operator's Remedy..........................................................................31 41 Consent....................................................................................................................31 42 Waiver of Claims.....................................................................................................32 43 Inspection of Premises.............................................................................................32 44 City's Right to Agreement Buyout...........................................................................33 45 Photography.............................................................................................................36 46 Hazardous Substances..............................................................................................36 47 Nondiscrimination....................................................................................................37 48 Sale of Alcoholic Beverages and Entertainment Prohibited....................................39 49 Liens.........................................................................................................................39 50 Installation and Removal of Trade Fixtures.............................................................39 51 Destruction...............................................................................................................40 52 No Abatement of Operation Charge During Repair Work......................................41 53 Eminent Domain......................................................................................................41 54 Relocation and Assistance, Business Goodwill and Leasehold Bonus Value.........42 55 Restoration and Surrender of Premises/Title to Improvements...............................43 56 Force Majeure - Unavoidable Delays......................................................................44 57 City's Option to Close the Premises.........................................................................45 58 Deliveries of Supplies..............................................................................................45 59 Employee Parking....................................................................................................45 60 Conflict of Interest...................................................................................................45 61 . Notice...................................................................:...................................................46 62 -Compliance with Laws ............................................................................................46 63 Interpretation of this Agreement..............................................................................47 64 Survival....................................................................................................................47 65 Modification.............................................................................................................48 66 Section Headings .....................................................................................................48 67 Brokers.....................................................................................................................48 68 Independent Contractor............................................................................................48 69 Attorney's Fees.........................................................................................................48 70 . Legal Services Subcontracting Prohibited...............................................................49 71 Governing Law........................................................................................................49 72 Duplicate Original....................................................................................................49 73 Entirety.....................................................................................................................49 MANAGEMENT AGREEMENT BETWEEN THE CITY OF HUNTINGTON BEACH AND STADIUM CLUB,LLC FOR OPERATION OF A FOOD CONCESSION AT THE HUNTINGTON BEACH SPORTS COMPLEX THIS MANAGEMENT AGREEMENT (the "Agreement") is made and entered into by and between the CITY OF HUNTINGTON BEACH, a municipal corporation of the State of California("City") and STADIUM CLUB, LLC, a California limited liability company ("Operator"). WHEREAS, City wishes to provide for the management of certain real property(the "Property"), described as a food concession at the Huntington Beach Sports Complex, located at 18100-B Goldenwest Street, Huntington Beach, California, comprised of the building and adjacent related improvements as more particularly described below(hereinafter collectively referred to as the "Improvements"). The term"Premises" as used in this Agreement shall mean both the Property and the Improvements. Operator desires to operate and manage the Premises in the manner set forth below. NOW, THEREFORE, the parties covenant and agree as follows: SECTION 1. SUPERSEDING OF PRIOR AGREEMENT This Agreement shall supersede and replace any existing agreement(s) for the Premises currently entered into by and between the parties and all supplemental agreement(s) entered into by and between the parties regarding the existing agreement(s). SECTION 2. GRANT OF CONCESSION ON THE PREMISES City,pursuant to the terms of this Agreement, grants to Operator for the purposes stated herein,the right,privilege and duty to equip, operate and maintain a concession open to the public located on the Premises (hereinafter sometimes referred to as the "Concession"). Operator shall not use the Premises for any other purpose or business. The legal description of 1 Sports Complex Concession-Stadium Club s •: the Premises is set forth in Exhibit "A",which is attached and incorporated herein by this reference. A map depicting the Premises is set forth in Exhibit"B",which is attached hereto and incorporated herein by this reference. This Agreement is not intended to confer third-party beneficiary status to anyone, nor shall this Agreement convey any property interest in the Premises to Operator, nor shall Operator ever assert any such property interest in the Premises. The Premises may include certain public amenities such as restrooms,picnic tables, or other similar improvements(the "Public Amenities"). Operator acknowledges that the Public Amenities are expressly reserved for non-exclusive use and enjoyment by the public at-large, and Operator will not assert an exclusive right to use and control the Public Amenities. SECTION 3. RESERVATION OF RIGHTS City expressly reserves a right to enter upon the Premises with as much advance written, verbal or electronic notice as possible to Operator for any reason associated with public health, safety or welfare, or for the protection of life, limb or property. In all other cases unless otherwise specifically set forth herein, City reserves the right for such entry but City shall give Operator at least twenty-four(24)hours advance written, verbal or electronic notice. City shall have;a right of reasonable access to the Premises across Operator owned, controlled or occupied lands adjacent to the Premises, if any, for any purpose associated with this Agreement. SECTION 4. TIME OF ESSENCE Time shall be of the essence of this Agreement and each and all of its terms, covenants or conditions in which performance is a factor. 2 Sports Complex Concession-Stadium Club i • SECTION 5. TERM This Agreement shall commence at 12:01 a.m. on (o , 2004, fora ten(10) year term, which shall end at 11:59 p.m. on 20l , unless extended, or sooner terminated, as provided for herein. SECTION 6. CONDITIONS OF PREMISES AS IS The approval of this Agreement by Operator shall, in itself, constitute acknowledgment that the Premises are in good and usable condition. Upon execution of this Agreement, Operator agrees to undertake its obligations under this Agreement with the Premises in their presently existing condition, "as is", and agrees that City shall not be obligated to make any alterations, additions or betterments thereto. SECTION 7. DURATION OF PUBLIC FACILITIES By entering into this Agreement, City makes no stipulation as to the type, size, location -or duration of public facilities (excluding the Premises), including, without limitation, any City parking lots to be maintained on property owned, controlled or occupied by City. SECTION 8. ADDITIONS, ALTERATIONS AND REMOVAL (a) No modifications, alterations or additions to the Premises, including;without limitation, construction of Improvements or changes to structural design, landscape design, or interior or exterior furnishings, shall be constructed or made by Operator without Operator first obtaining the prior written approval of City, which will not be unreasonably withheld. (b) Except as provided under this Agreement,no alteration or removal of existing Improvements on or natural features of the Premises shall be undertaken without Operator first obtaining the prior written approval of City. 3 Sports Complex Concession-Stadium Club 0 0 (c) Operator's obligation to obtain City's prior written approval is separate and independent of Operator's obligation to obtain any permits from City, such as, without limitation, a building permit. SECTION 9. CITY'S CONTRACT ADMINISTRATOR City's Director of Community Services, or his or her designee, shall be City's Contract Administrator for this Agreement with the authority to act on behalf of City for the purposes of this Agreement, and all City approvals and notices required to be given herein to City shall be so directed and addressed. SECTION 10. RATES AND CHARGES a. Operator agrees to pay to City as charges ("Operation Charge") for the operation and management of the Premises a sum equal to the following percentages of the amount of gross.sales for "Gross Sales" as defined in Section 12 below: $0 - $100,000.00 of Gross Sales = 7.5%; $100,000.01 - $150,000.00 of Gross Sales = 9.5%; Over$150,000.00 of Gross Sales = 11.5%. r: Payment shall be made as follows: Operator shall pay the Operation Charge monthly, within fifteen(15) calendar days after the end of the month for which the Operation Charge is being paid, or on the next business day if the fifteenth day falls on a weekend or holiday. All payments shall be made to City at the City Treasurer's Office, P.O. Box 711, Huntington Beach, California, 92648, or at such other place or places as City may from time-to-time designate by written notice delivered to Operator. b. Commencing in the fourth year of this Agreement, Operator shall be permitted to deduct from the payment of the Operation Charge the amount of Eight Thousand Dollars 4 Sports Complex Concession-Stadium Club ($8,000.00) ("the Concession Improvement Allowance"). Operator shall be allowed to deduct the Concession Improvement Allowance during the fourth, fifth, sixth, seventh and eighth years of this Agreement. Under no circumstances shall the amount deducted pursuant to the Concession Improvement Allowance exceed Eight Thousand Dollars($8,000.00) during any particular year, nor shall the total amount deducted pursuant to the Concession Improvement Allowance exceed Forty Thousand Dollars ($40,000.00). SECTION 11. LATE CHARGE AND PENALTY If the Operation Charge is not received by the City Treasurer within twenty(20) calendar days after the end of the month for which the Gross Sales Operation Charge is being paid, or the next business day if the twentieth day falls on a weekend or holiday, Operator shall pay the following late charge and penalty: (1) a late charge 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 t/Z%)penalty per month shall be added for each month the Gross Sales Operation Charge is due but unpaid. With respect to any other payments required by Operator, a one and a half percent (1 t/z%)penalty per month shall be added for each month such payment hereunder is due but unpaid. SECTION 12. GROSS SALES DEFINED For the purpose of this Agreement,the term "Gross Sales" shall mean the total price of all merchandise, food and beverages, or services sold or rendered, or equipment rented, in, on, or from the Premises by Operator, or anyone contracting with Operator, including, without limitation, its agents or suboperators (collectively or individually, "Operator Party(ies)"), whether wholesale or retail, whether for cash or on credit, and if on credit whether or not paid, 5 Sports Complex Concession-Stadium Club i i and whether in exchange for any other product, commodity, service, commercial paper or forbearance, and shall include, without limitation,the following: (a) All revenues, receipts, commissions or proceeds from on-line sales by Operator Party(ies), and/or from all public telephones, vending, weighing and all other machines owned, operated, or leased to or by Operator Party(ies) in, on, or from .. the Premises; (b) All revenues, receipts, commissions or proceeds from sales based on orders solicited or taken, in, on, or from the Premises for merchandise, food and beverages, or services to be delivered or rendered off, or from sources outside,the Premises, including, without limitation, all orders taken in, on, or from the Premises although the orders may be filled elsewhere; (c) All revenues, receipts, commissions or proceeds from the renting of equipment of any kind in, on, or from the Premises; and (d) All revenues, receipts, connuissions or proceeds generated from offsite but delivered through the Concession. (e) All revenues, receipts, commissions or proceeds made by Operator Party(ies) or their employees or others acting on their behalf for the rendition of services of any kind whatsoever, made in, on, or from the Premises. (f) All other revenues, receipts, commissions or proceeds generated by, arising or derived whatsoever from the use of the Premises or derived whatsoever from any business conducted in, on, or from the Premises. For purposes of computing the Gross Sales figure on which to calculate the Operation Charge,the amount of Gross Sales shall start over at zero dollars on January 1 of each year. If 6 Sports Complex Concession-Stadium Club the Agreement commences on any date other than January 1,the Gross Sales calculation begins from such commencement date and runs through December 31 of such Agreement commencement year. SECTION 13. GROSS SALES EXCLUSIONS Gross Sales shall not include the following items, and Operator may deduct such items from Gross Sales to the extent they have been included therein or have been included in a prior computation of Gross Sales on which the Operation Charge has been paid under this Agreement to City: (a) Any sales, excise or other taxes otherwise includable in Gross Sales and which become part of the total price of merchandise, food and beverages, or services sold or rendered, or equipment rented, in, on, or from the Premises where Operator must account for and remit the taxes to the government entity or entities which impose them, but only if such taxes are added to the total price and collected from customers; (b) Any transfer of trade inventory from the Premises to the manufacturer or supplier from whom it was obtained by Operator; (c) Sales of Trade Fixtures (as defined in Section 51 below); (d) Sums and credits received in the settlement of claims for loss of or damage to trade inventory or Trade Fixtures; and (e) Any sales resulting in a cash or credit refund to a customer in the ordinary course of business. Sports Complex Concession-Stadium Club SECTION 14. BOOKS AND RECORDS Operator shall keep true and accurate books and records showing all of its business transactions in separate records of account for the Concession in a manner acceptable to City, --- and City and/or its designated representatives shall have the right, at all reasonable times, to inspect such books and records including, without limitation, State of California sales or use tax returns or other State return records, and Operator hereby agrees that all such records and instruments shall promptly be delivered and made available to City and/or its designated representatives within thirty(30) days of receiving written request therefor. Operator shall furnish to City and/or its designated representatives copies of its quarterly California sales and use tax returns at the time each is filed with the State of California. The books and records shall show the total amount of Gross Sales made each calendar month in, on, or from the Premises and any exclusions listed in Section 13 above. All sales and charges shall be recorded by means of cash registers which display the amount of the transaction certifying the amount recorded. The register shall be equipped wish devices which log in daily sales totals and which shall record on tapes the transaction numbers and sales details. At the end of each day the tape shall record the total sales for that day. Operator agrees to maintain on the Premises, or another location subject to the prior written approval of City, all records,books of account and cash register tapes, showing, or in any way pertaining to the Gross Sales made in, on, or.from the Premises during such calendar month, including,without limitation, State of California sales or use tax returns or other State tax returns, for a period of five (5) years following the close of each calendar month. 8 Sports Complex Concession-Stadium Club SECTION 15. STATEMENT OF GROSS SALES/AUDIT At the time specified in Section 10 of this Agreement for the payment of the Operation Charge, Operator shall deliver to City a true and accurate statement signed by Operator or by an authorized employee of Operator showing the total Gross Sales and any exclusions listed in Section 13 above made during the preceding calendar month and the amount of the Operation Charge then being paid calculated on such Gross Sales pursuant to this Agreement. The acceptance by City of any monies paid to City by Operator as the Operation Charge, as shown by any statement furnished by Operator, shall not be construed as an admission of the accuracy of the statement, or of the sufficiency of the amount of the Operation Charge payment, and City shall be entitled to review the adequacy of such payment as set forth herein. By the end of each January, Operator shall deliver to City a year-end statement showing the total amount of Gross Sales made in, on, or from the Premises in each month of the preceding year,.the total of any .:.exclusions,the total Operation Charge paid to City for each of those months, all with year-end totals. City may at any time within three (3) years after receiving the year-end statement, at its sole cost and expense, cause all records, books of account and cash register tapes for the year purportedly covered by the statement,to be audited by City or an accountant selected by City. Operator shall, within thirty(30) days of receiving written notice of City's desire for such an audit, deliver and make available all such records, books of account and cash register tapes to City or its designated representative for City's use in the audit and/or for copying. If the audit discloses that Gross Sales were understated and/or exclusions overstated; Operator shall immediately pay the additional Operation Charge,together with a penalty thereon from the date it was due at the penalty rate set forth in Section 11 above. Furthermore, Operator shall promptly on demand reimburse City for the full cost and expense of the audit should the audit 9 Sports Complex Concession-Stadium Club • • disclose that the questioned year-end statement understated Gross Sales (including an overstatement of exclusions) or the Operation Charge by any amount greater than Two Hundred Fifty Dollars ($250.00). City further reserves the right to examine and audit all such records, books of account and cash register tapes at any time during the three (3) year period following the expiration or termination of this Agreement. In addition, City shall have the right to enter upon the Premises during business hours and with two (2) hours advance written, verbal or electronic notice to Operator to perform any audit or inspection function with respect to this Agreement. Operator, its bookkeeper and/or accountant shall respond to all questions and inquiries of _ City with respect to the books, records, statements and other documentation being examined, and shall promptly provide other further documentation as may be required by City. City is entitled to take statements by deposition under oath of Operator, its officers, bookkeepers and/or accountants or any person who prepared the books,records,statements and other documentation required to be provided by Operator under this Agreement. SECTION 16. SECURITY DEPOSIT > Upon execution hereof, Operator shall pay and maintain at all times during the entire term of this Agreement or any renewals or extensions thereof or during any holdover period, a security deposit with City in a sum of not less than Two Thousand Five Hundred Dollars ($2,500.00)to guarantee all of Operator's obligations, liabilities, duties and responsibilities under the Agreement, including,without limitation,the repair and maintenance of the Premises as provided herein. Such deposit shall be in the form of a cash bond or an assignment of certificate of deposit(the "CD") or savings account to City, and shall be provided to the City Treasurer. The form of any such security deposit shall be approved by the City Attorney and the to Sports Complex Concession-Stadium Club City Treasurer. No interest shall accrue on cash deposits to the benefit of Operator, but interest shall accrue on a CD or savings account and shall be paid to Operator under the terms of the CD or savings account. Operator shall send a copy of each renewal of the CD to the City Treasurer to ensure that City has the records of each active deposit account. SECTION 17. USE OF COCA-COLA PRODUCTS,NO STYROFOAM a. Operator shall comply with City's exclusivity agreement with the Coca-Cola Bottling Company of Southern California("Coca-Cola")by doing the following: only Coca- Cola fountain and bottling products shall be bought and sold in, on, or from the Premises for the term of the City's agreement with Coca-Cola. This includes all carbonated and non-carbonated, non-alcoholic beverages defined as soft drinks,juices,-juice drinks,teas, isotonics, water and frozen beverages. Frozen beverages shall not include ice creams and frozen yogurts. Operator's failure to adhere to the Coca-Cola exclusivity clause shall constitute a Default of this Agreement ;as defined in Section 36 below. This exclusivity shall not apply to.third-party rentals that bring their own drink products. b. Operator shall not use, purchase or acquire food service products that are produced.with expandable polystyrene, commonly known as styrofoam. Prohibited products include,.but are not limited to, expandable polystyrene food service items such as cups,plates containers and trays. SECTION 18. QUALITY OF SALES, RENTALS AND SERVICES Operator, at its sole cost and expense, shall equip, operate, manage and maintain the Premises and Concession and shall keep the same equipped and maintained in a manner acceptable to City during the entire term of this Agreement or any renewals or extensions thereof or during any holdover period. It is the intent of City that the Concession's services be provided 11 Sports Complex Concession-Stadium Club in amanner to meet the needs of the visiting public, and should City deem the Concession's hours of operation and/or food,merchandise, services or rentals inadequate to meet such needs, City may require Operator to make such changes requested by City. Operator shall not use or permit the Premises to be used, in whole or in part, during the entire term of this Agreement or any renewals or extensions thereof or during any holdover period for any purpose other than as herein set forth,without the prior written consent of City. Except as permitted in advance in writing by City, all foods and beverages shall be sold in disposable paper or plastic containers. No pull-top cans are to be vended or dispensed from the Premises unless pre-approved in writing by City. Operator, wherever feasible, shall eliminate the use of non-recyclable containers and plastics. City may from time to time review the items sold and containers or utensils used or dispensed by Operator. City reserves the right to prohibit the sale or use of non-recyclable containers or plastics. City in its sole discretion reserves the right to prohibit Operator's sale,provision or rental of any item or service rendered or performed, which it deems objectionable or offensive, beyond the scope deemed necessary for proper service to the public, inappropriate for sale,provision or rental-by the Concession, or of inferior quality. City in its sole discretion reserves the right to approve or disapprove any menu item for any reason, and hereby authorizes its Contract Administrator,to make such decisions on its behalf. SECTION 19. INDEMNIFICATION, DEFENSE AND HOLD HARMLESS AGREEMENT Operator hereby agrees to protect, defend,indemnify and hold harmless City,its officers, elected or appointed officials, employees, agents and volunteers from and against any and all claims, damages, losses, expenses,judgments, demands and defense costs (including, without limitation, costs and fees of litigation(including arbitration)of every nature or liability of any 12 Sports Complex Concession-Stadium Club kind or nature) arising out of or in connection with(1)the use or occupancy of the Premises by Operator, its officers, employees or agents, or(2)the death or injury of any person or the damage to property caused by a condition of the Premises, or(3)the death or injury of any person or the damage to property caused by any act or omission of Operator, its officers, employees or agents, or(4)any failure by Operator to keep the Premises in a safe condition, or(5) Operator's (or Operator's agents and/or suboperators, if any)performance of this Agreement or its failure to comply with any of its obligations contained in this Agreement by Operator, its officers, agents or employees except such loss or damage which was caused by the sole negligence or willful misconduct of City. Operator shall hold all Trade Fixtures,personal property and trade inventory on the Premises at the sole risk of Operator and save City harmless from any loss or damage thereto by any cause whatsoever, except such loss or damage which was caused by the sole negligence or willful misconduct of City. Operator will conduct all defense at its sole cost and expense and City shall approve selection of Operator's counsel. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as limitation upon the amount of indemnification to be provided by Operator. SECTION 20. WORKERS' COMPENSATION AND EMPLOYERS' LIABILITY-.- . INSURANCE Operator acknowledges awareness of Section 3700 et seq. of the California Labor Code, which requires every employer to be insured against liability for workers' compensation. Operator covenants that it shall comply with such provisions prior to the commencement of this Agreement. Operator shall obtain and furnish to City workers' compensation and employers' liability insurance a in amounts not less than the State statutory limits. Operator shall require all suboperators and contractors to provide such workers' compensation and employers' liability insurance for all of the 13 Sports Complex Concession-Stadium Club suboperators' and contractors' employees. Operator shall furnish to City a certificate of waiver of subrogation under the terms of the workers' compensation and employers' liability insurance and Operator shall similarly require all suboperators and contractors to waive subrogation. SECTION 21. GENERAL PUBLIC LIABILITY INSURANCE In addition to the workers' compensation and employers' liability insurance and Operator's covenant to defend, hold harmless and indemnify City, Operator shall obtain and furnish to City, a policy of general public liability insurance, including motor vehicle coverage against any and all claims arising out of or in connection with the Premises. This policy shall indemnify Operator, its officers, employees and agents,while acting within the scope of their duties, against any and all claims arising out of or in connection with the Premises, and shall provide coverage in not less than the following amount: combined single limit bodily injury and property damage, including products/completed operations liability and blanket contractual liability, of One Million Dollars ($1,000,000.00)per occurrence. If coverage is provided under a form which includes a designated general aggregate limit, the aggregate limit must be no less than One Million Dollars ($1,000,000.00) for the Premises. This policy shall name City, its officers, elected or appointed officials, employees,agents,and volunteers as Additional Insureds, and shall specifically provide that any other insurance coverage which may be applicable to the Agreement shall be deemed excess coverage and that Operator's insurance shall be primary. Under no circumstances shall said above-mentioned insurance contain a self-insured retention, or a"deductible"or any other similar form of limitation on the required coverage. SECTION 22. PROPERTY INSURANCE s Operator shall provide before commencement of this Agreement and shall obtain and furnish to City, at Operator's sole cost and expense,property and fire insurance with extended 14 Sports Complex Concession-Stadium Club coverage endorsements thereon, by a company acceptable to City authorized to conduct insurance business in California, in an amount insuring for the full insurable value of all Improvements, Trade Fixtures,personal property whether or not owned or leased by Operator, and all trade inventory in or on the Premises against damage or destruction by fire,theft or the elements. This policy shall contain a full replacement cost endorsement naming Operator as the insured and shall not contain a coinsurance penalty provision. The policy shall also contain an endorsement naming City as an Additional Insured. The policy shall contain a special endorsement that such proceeds shall be used to repair, rebuild or replace any such Improvements, Trade Fixtures,personal property whether or not owned or leased by Operator, and all trade inventory so damaged or destroyed; and if not so used, such proceeds (excluding any insurance proceeds for Trade Fixtures,personal property whether or not owned or leased by Operator, and trade inventory, but.only to the extent the insurance proceeds specifically cover those items) shall be paid to City. The policy shall also contain a special endorsement that if the Premises are so destroyed triggering the parties' ability to terminate as set forth in Section 52 (Destruction) below, and either party elects to terminate the Agreement, the entire amount of any insurance proceeds (excluding such proceeds for Trade Fixtures, personal property whether-or not owned or leased by Operator and trade inventory, but only to the extent the insurance proceeds specifically cover those items) shall be paid to City. The proceeds of any such insurance payable to City may be used, in the sole discretion of City, for rebuilding or repair as necessary to restore the.Premises or for.any such other purpose(s) as City sees fit. This policy shall also contain the following endorsements: (a) . The insurer.shall not cancel or reduce the insured's coverage without(30) days prior written notice to City; 15 Sports Complex Concession-Stadium Club (b) City shall not be responsible for premiums or assessments on the policy. A*complete and signed certificate of insurance with all endorsements required by this Section shall be filed with City prior to the execution of this Agreement. At least thirty(30) days prior to the expiration or termination of any such policy, a signed and complete certificate of insurance.showing that coverage has been renewed shall be filed with City. SECTION 23. INCREASE IN AMOUNT OF GENERAL PUBLIC LIABILITY AND PROPERTY INSURANCE Not more frequently than once every two (2) years, if, in the sole opinion of City,the amount and/or scope of general public liability insurance in Section 21 above and/or property insurance coverage in Section 22 above at that time is not adequate, Operator shall increase the insurance coverage as reasonably required by City. SECTION 24. CERTIFICATES OF INSURANCE;ADDITIONAL INSURED ENDORSEMENTS Prior to commencement of this Agreement, Operator shall furnish to City certificates of insurance subject to approval of the City Attorney evidencing the foregoing insurance coverages as requirdd'by this Agreement; these certificates shall: (a) provide the name and policy number of each carrier and policy; (b) shall state that the policy is currently in force; and (c) shall promise to provide that such policies shall not be canceled or modified without thirty(30) days' prior written notice of City; however ten(10) days' prior written notice in the event of cancellation for nonpayment of premium, which 10-day notice provision shall not apply to property insurance in Section 22 above. 16 Sports Complex Concession-Stadium Club Operator shall maintain the foregoing insurance coverages in force during the entire term of the Agreement or any renewals or extensions thereof or during any holdover period. The requirement for carrying the foregoing insurance coverages shall not derogate from Operator's defense,hold harmless.and-indemnification.obligations as set-forth in.thisAgreement. .City or its representatives shall at;all times-have the.right to demand the original or a copy of any or all the policies of insurance. Operator shall pay, in a prompt and timely manner,the premiums on all insurance hereinabove required. SECTION 25. INSURANCE HAZARDS Operator shall not commit or permit the commission of any acts on the Premises nor use or permit the use of the Premises in any manner that will increase the existing rates for, or cause the cancellation of any liability, property, or other insurance policy for the Premises or required by this Agreement. Operator shall, at-its.sole cost and expense, comply with all requirements of any insurance carrier providing any insurance policy for the Premises or required by this Agreement necessary for the continued maintenance of these policies at reasonable rates. SECTION 26. MAINTENANCE OF PREMISES Operator's maintenance responsibilities of the Premises shall include, but not be limited to, maintaining all sewers and drain lines, roofs and attached public restrooms (if they exist); provided,however,that City shall provide the sanitary supplies for such restrooms, such as hand soap,bathroom tissue, and the like. Operator agrees to maintain the Premises in good order and repair, at Operator's sole cost and expense, during the entire term of this Agreement or any renewals or extensions thereof or during any holdover period,pursuant to the City's maintenance standards. A copy of the quarterly evaluation summary sheet setting forth the City's maintenance checklist is attached as Exhibit "C",and incorporated herein by this reference. 17 Sports Complex Concession-Stadium Club Except as provided above, Operator, at its sole cost and expense, shall perform any maintenance and repairs including, without limitation, facility maintenance and landscape maintenance on the Premises. Operator's obligation includes, without limitation, maintaining and operating the Premises in a clean, safe, wholesome and sanitary condition free of trash, garbage or obstructions of any kind and in compliance with any and all present and future laws, general rules or regulations of any governmental authority now, or at any time during the entire term of this Agreement or any renewals or extensions thereof or during any holdover period, in force, relating to sanitation or public health, safety or welfare, or for the protection of life, limb or property; and Operator shall at all times faithfully obey and comply with all laws, rules and regulations applicable thereto. Operator, at its sole cost and expense, shall remedy without delay any defective, dangerous or unsanitary condition(s) caused by Operator or anyone related . thereto. Provided, however,that Operator shall have no obligation to repair or maintain sewer lines or respond to sewer leaks. Operator shall paint, stain or seal the Premises' exterior surfaces a minimum of every three_(3) years, unless City determines in its sole discretion that such work shall be done on a more frequent basis. All exterior metal surfaces, except the roof, shall be painted with rust resistant paint no less than once every other year. Any and all graffiti on the Premises shall,be removed by Operator, at its sole cost and expense, within forty-eight(48)hours of Operator receiving notice thereof or of Operator becoming aware of such graffiti. In addition, with or without notice from City, Operator shall, at its sole cost and expense, repair and/or replace any broken glass within forty-eight(48)hours of its becoming broken,regardless of cause, except by fault of City. Except as provided above for graffiti and broken glass, Operator, at its sole cost 18 Sports Complex Concession-Stadium Club • • and expense and with or without notice from City, shall repair and/or replace all damage or destruction to the Premises caused by act(s) of vandalism as soon as possible but in no event later than fourteen(14) days after the date such damage or destruction occurred. Operator, at its sole cost and expense, shall repair and/or replace all other damage or destruction to the Premises, regardless of cause, except by fault of City. Operator shall comply with all written notices served by City with regard to the care and maintenance of the Premises. Any written notice hereunder shall specify the work to be done and the period of time deemed to be reasonably necessary for completion of such work. Should Operator fail to commence making the necessary repairs within seven(7) days after receiving such notice, or within twenty-four(24)hours of the glass becoming broken in the-case of broken glass, or fail to diligently proceed to complete the necessary repairs within the period of time reasonably specified in the City's notice, or within forty-eight(48)hours of the glass becoming broken in the case of broken glass, or within the forty-eight(48)hour time period for removing graffiti, or within fourteen(14) days of the date that the vandalism damage or destruction occurred, City shall proceed to cause the required work to be performed, and Operator shall promptly reimburse City for the cost of labor and materials thereof and pay City a penalty on such costs at the penalty rate set forth in Section 11 above from the date the costs-were incurred by City to the date they are reimbursed to City by Operator. Operator hereby expressly waives the right to make repairs at the expense of City and the benefit, if any, of the provisions of Sections 1941 and 1942 of the California Civil Code relating thereto. 19 Sports Complex Concession-Stadium Club • • SECTION 27. OPERATION CHARGE CREDIT City in its sole discretion may decide to give Operator a credit against the Operation Charge if Operator undertakes (1) any repair or maintenance obligation of City under this Agreement, (2) any work City in its sole discretion deems necessary and appropriate, or(3) any Operator improvements. Prior to Operator undertaking any such work, City must agree in writing to the amount of and procedures for the credit,the work to be done by Operator and the cost of such work. Upon approval by the City Administrator, the Credit may be in the form of a rebate of up to Fifty Percent(50%)of Operator's cost for such improvements. No such credit will be considered by City unless and until all liens for labor or materials, if any,have been unconditionally released. If approved, any such credit will be applied in equal monthly increments over the base term of this Agreement. SECTION 28. DAMAGE, DESTRUCTION OR NUISANCE Operator shall not commit or permit the commission by others of any damage or destruction of, on, or to the Premises and/or Concession. Operator shall not maintain, commit or permit the maintenance or commission of any nuisance as defined in Section 3479 and/or Section 3480,10f the California Civil Code on the Premises; and Operator shall not use or permit the-use of the Premises for any unlawful purpose. SECTION 29. TAXES Operator agrees to pay, at its sole cost and expense, before they become delinquent all lawful taxes, assessments or charges,which at any time may be levied by any governmental agency including, without limitation,the State, County, City or any tax or assessment levying body. Upon request, Operator shall promptly furnish to City satisfactory evidence establishing 20 Sports Complex Concession-Stadium Club such payment. Operator shall comply with all laws,regulations and ordinances regarding the collection of taxes due a government agency. SECTION 30. PAYMENT OF OBLIGATIONS Operator shall promptly pay, at its sole cost and expense, before they become delinquent, any and all bills, debts, liabilities and obligations incurred by Operator in connection with Operator's occupation and use of the Premises and/or operation of the Concession. Upon request, Operator shall promptly furnish to City satisfactory evidence establishing such payment. SECTION 31. UTILITIES AND SERVICES Excluding any attached public restrooms, if they exist, Operator shall be responsible for the payment of all utility charges, including,without limitation, gas, electricity, water, telephone service, cable TV service, and the furnishing of all necessary refuse and garbage containers and the removal and disposal of all rubbish,refuse and garbage resulting from the operation of the Premises,and/or the Concession. All such rubbish,refuse and garbage removed shall be disposed of in accordance with applicable laws and local ordinances.. Trash dumpsters may not be moved or relocated from their established locations without the express prior consent of City. All trash containers and/or trash bins shall be adequately screened and located to the satisfaction of City. For the purposes of this Section, sewage disposal shall be construed as a utility. All such charges shall be paid by Operator directly to the provider of the service and shall be paid as they become due and payable. Upon request, Operator shall promptly furnish to City satisfactory evidence establishing such payment. SECTION 32. BUSINESS LICENSE Operator shall maintain a business license from City during the entire term of this Agreement or any renewals or extensions thereof or during any holdover period. 21 Sports Complex Concession-Stadium Club SECTION 33..`.SIGNS. ADVERTISING AND APPROVAL OF NAME City shall have the right to approve in its sole discretion and at any time require Operator .to.change or remove signs, names,placards, decorations or advertising placed on, or inscribed, painted or affixed upon the Premises. Should City approve of any sign, name, placard, decoratioA or advertising, Operator shall maintain the same at all times during the entire term of this-Agreement or any renewals or extensions thereof or during any holdover period in good :. appearance and repair. All signs,names, placards, decorations or advertising must comply with all requirements of any governmental authority with jurisdiction. SECTION 34.-,NO ASSIGNMENT OR OTHER TRANSFER (a) Prohibition of Assignment. The parties acknowledge that City is entering into the Agreement in reliance upon the experience and abilities of Operator and its principals. Consequently, Operator shall not voluntarily assign, encumber or otherwise transfer its interest in the Agreement or in the Premises, or any part of the Premises, or allow any other person or entity(except Operator's authorized representatives)to occupy or use all or any part of the Premises without the prior written,consent of City, which consent shall not be unreasonably withheld. Provided,however,that City's consent shall not relieve Operator from any and all of its obligations, liabilities, duties or responsibilities under this Agreement. Any assignment, encumbrance, occupation or use, sublease or other transfer without such consent shall be voidable and, at City's sole discretion, shall constitute a Default of this Agreement. (b) Consent to Transfer. City's consent to any assignment, encumbrance, occupation or use, or other transfer is subject to Operator providing City with evidence 22 Sports Complex Concession-Stadium Club satisfactory to City that the proposed, assignee, encumbrancer, occupier or user, or other transferee has suitable financial strength, experience and character for operation and control of the Premises and the Concession and that the use of the Tremises by the proposed:assignee;:encumbrancer, occupier:or_.user, or other .•transferee is consistent with that.specified herein,:and.is-.commercially reasonable. Any proposed assignee, encumbrancer, occupier or user, or-other transferee shall agree to abide by the.terms and conditions-of the-Agreement including, without limitation, all the obligations, liabilities, duties and responsibilities of Operator, and other conditions imposed upon it pursuant to law. An approval by City to one assignment, encumbrance, occupation or use, or other transfer shall not be deemed to be an approval to any other assignment, encumbrance, occupation or use, or other transfer. (c) Voluntary assignment defined. Except as otherwise expressly provided herein, any dissolution, merger, consolidation or reorganization of Operator, or the sale or other transfer resulting in a transfer of a controlling percentage of the capital stock of Operator(other than a transfer by will, devise, bequest, intestate succession, a transfer to or between the family members of Operator, or a transfer to or between one or more trusts for the benefit of Operator and/or Operator's family members, where applicable) shall be deemed a voluntary assignment. (d) Exceptions. Notwithstanding the foregoing paragraphs or anything to the contrary contained herein, City's consent shall not be required for an assignment to an Affiliate, Subsidiary or Successor of Operator(for purposes hereof, an "Affiliate,"a"Subsidiary"and a"Successor"of Operator are defined as follows: 23 Sports Complex Concession-Stadium Club (a) an"Affiliate" is any corporation which directly or indirectly controls or is controlled or is under common control with Operator(for this purpose, "control" shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such corporation,whether through the ownership of voting securities or by contract or otherwise), (b) a "Subsidiary" shall mean any corporation or partnership not less than twenty-five percent (25%) of whose outstanding stock shall, at the time, be owned directly or indirectly by Operator and which is at least as creditworthy as Operator, and (c) a "Successor" shall mean a corporation or partnership in which or with which Operator is merged or consolidated, in accordance with applicable statutory provisions for merger or consolidation of corporations, or a corporation or partnership acquiring a substantial portion of the property and assets of Operator. SECTION 35. TERMS BINDING ON SUCCESSORS All the terms, covenants and conditions of this Agreement shall inure to the benefit of and be binding upon the parties and their successors, including, without limitation, their assignees, encumbrancers, occupiers or users, or other transferees. The provisions of this Section shall not be deemed as a(1) waiver of any of the prohibitions and conditions against assignments, encumbrances, occupations or uses, or other transfers hereinbefore set forth,or(2) City's consent thereto. If more than one operator is a party to this Agreement,the obligations of the operators shall be joint and several. Even if City's consent is not required, Operator shall immediately provide City with written notice of any, assignment, encumbrance, occupation or use, or other transfer. 24 Sports Complex Concession-Stadium Club SECTION 36. DEFAULT The occurrence of any one or more of the following events shall constitute a material default and breach("Default")of this Agreement by Operator: (a) -.Operator's failure to make any payment of the Operation Charge or.other.payment required to be made by Operator at the time required for payment under this Agreement. (b) Operator's failure to obtain or maintain the insurances and/or the security deposit as required under this Agreement. (c) Operator's vacating or abandonment of the Premises during the entire term of this Agreement or any renewals or extensions thereof or during any holdover period. Closure of the Concession for more than a combined total of one hundred eighty (180) days in a calendar year, minus any days of closure of the Concession caused by City, shall be deemed an abandonment of the Premises. (d) Operator's violation of Section 19 (Indemnification, Defense and Hold Harmless Agreement), Section 34 (No Assignment or Transfer), Section 47 (Hazardous Substances), Section 48 (Nondiscrimination), Section 49 (Sale of Alcoholic Beverages and Entertainment Prohibited), Section 62 (Conflict of Interest) or Section 64 (Compliance with Laws). (e) The insolvency of Operator as evidenced by a receiver being appointed to take possession of all or substantially all of Operator's assets located at or on the Premises or of Operator's interest in this Agreement, or the making by Operator of a general arrangement or assignment for the benefit of creditors, or Operator's filing a petition in bankruptcy, whether voluntary or involuntary, or the 25 Sports Complex Concession-Stadium Club attachment, execution or the judicial seizure of substantially all of Operator's assets located at or on the Premises or of Operator's interest in the Agreement. (f) Operator's failure to observe or perform any other term, covenant, obligation, duty,responsibility or condition of this Agreement to be observed or performed - by Operator when such failure shall continue for a period of thirty(30) days after City's giving written notice to Operator, or such earlier period if specifically set forth in this Agreement; however, if the nature of such failure is such that more than thirty(30) days are reasonably required for its cure, then Operator shall not be deemed to be in Default if Operator notifies City of the length of the additional time required to cure and receives City's written approval of the additional time required, which approval will not be unreasonably withheld, and commences such ., cure within such thirty(30) day period and diligently proceeds with such cure to completion during such additional time period approved by City. SECTION 37. REMEDIES (a) Cumulative Nature of Remedies. In the event of any Default by Operator; City shall have the remedies described in this Section in addition to all other rights and remedies provided by law or equity,to which City may resort cumulatively or in the alternative: (1) Reentry without Termination. City may at City's sole discretion reenter - the Premises, and,without terminating the Agreement, at any time and from time to time, agree to have another party operate and manage the Premises or any part or parts of them for the account and in the name of Operator or otherwise. Any such subsequent agreement may be for the 26 Sports Complex Concession-Stadium Club remainder of the term or for a longer or shorter period. City may in City's sole discretion eject all persons or eject some and not others or eject none. In addition, City may in its sole discretion remove some or all of the Trade Fixtures,personal property and trade inventory from the Premises. City may store such removed Trade Fixtures,personal property and trade inventory in a public warehouse or other location at the sole cost, expense and risk of Operator, and for.the account of and in the name of Operator. City shall apply all payments from such subsequent operators as follows: first, to the payment of reasonable expenses paid or incurred by or on behalf of City in recovering possession,placing the Premises in good condition, and-preparing or altering the Premises for the subsequent operator; second,to the reasonable expense of securing new operators or or sub-operators; third,to the fulfillment of Operator's covenants to the end of the term. -City may execute any agreements made under this provision either in City's name or in Operator's name and City shall be entitled to all payments from the use, operation,management or occupancy of the Premises. Operator shall nevertheless pay to City on the dates specified in this Agreement the equivalent of all sums required of Operator under this Agreement,plus City's expenses, less the proceeds of any subsequent operating agreement. (2) Termination. In the event of a Default by Operator, City may at City's sole discretion terminate this Agreement by giving Operator written notice of termination. In the event City terminates this Agreement, City may 27 Sports Complex Concession-Stadium Club recover possession of the Premises (which Operator shall immediately surrender and vacate upon demand) and remove all persons therefrom, and Operator shall comply with, without limitation, Sections 56 and 57 below. City also shall be entitled to recover as damages any or all of the _.. ,i- following: (A) The worth at the time of the award of any unpaid Operation Charge or other charges which have been earned at the time of termination; (B) The worth at the time of the award of the amount by which the unpaid Operation Charge (each month's Gross Sales Operation Charge would be calculated as the average Gross Sales Operation Charge for that same month in the preceding years, or if Operator did own/operate the Concession in the preceding years,then each month's Gross Sales Operation Charge would be calculated as the average of all months Operator owned/operated the Concession) and other charges which would have been earned after termination until the time of the award exceeds the amount of the loss of such Operation Charge and other charges that Operator proves could have been reasonably avoided; (C) The worth at the time of the award of the amount by which the unpaid Operation Charge (each month's Gross Sales Operation Charge would be calculated as the average Gross Sales Operation Charge for that same month in the preceding years, or if Operator 28 Sports Complex Concession-Stadium Club did not own/operate the Concession in the preceding years,then each month's Gross Sales Operation Charge would be calculated as the average of all months Operator owned/operated the Concession) and other charges for the balance of the term after the time of the award exceeds the amount of the loss of such Operation Charge and other charges that Operator proves could have been reasonably avoided; (D) Any other amount necessary to compensate City for the detriment proximately caused by Operator's failure to perform its obligations, liabilities, duties or responsibilities under.this Agreement; and (E) At City's sole discretion, such other amounts in addition to or in lieu of the foregoing as may be permitted from time to time by applicable California law. As used in Sections 37(a)(2)(A) and(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. 29 Sports Complex Concession-Stadium Club (3) Use of Personal Property. City may at City's sole discretion use the Trade Fixtures,personnel property and/or trade inventory located on, about or appurtenant to-the Premises without compensation and without _ y liability for use or damage, or store them in a public warehouse or other a location at the sole cost, expense and risk of Operator, and for the account r_ of and in the name of Operator. (b) Election of Remedy. The election of one remedy for any one item shall not foreclose an election of any other remedy for another item or for the same item at a later time. (c) City's Right to Cure Operator's Default. Upon continuance of any Default, City may in its sole discretion, but is not obligated to, cure such Default at Operator's sole cost and expense. If City at any time, by reason of such Default by Operator, pays any sum or does any act, the sum paid by City plus the reasonable cost of performing such act, together with a penalty thereon at the penalty rate set forth in Section 11 above from the date the costs were incurred or the act performed by City to the date they are reimbursed to City by Operator, shall be due as additional rent not later than five (5) days after service of a written demand therefor on Operator, including reasonably detailed documentation of the amount owed. No such payment or act shall constitute a waiver of Default or of any remedy for Default or render City liable for any loss or damage resulting from any such act. (d) Waiver of Rights. Operator hereby waives any right of redemption or relief from forfeiture under California Code of Civil Procedure Sections 1174 or 1179 30 Sports Complex Concession-Stadium Club if appealed by, or under any other present or future law, City takes possession of the Premises by reason of any Default by Operator hereunder. (e) Other Rights of City. No act of City, including, without limitation, but not limited to City's entry on the Premises, or maintenance of the Premises, shall be construed as an election to terminate this Agreement unless a written notice of such intention is given to Operator by City or unless the termination thereof is decreed by a court of competent jurisdiction. Notwithstanding if City elects to continue the Agreement in full force and effect after a Default by Operator and to relet the Premises, City may at any time after such reletting elect to terminate this Agreement for any such Default. SECTION 38. CUMULATIVE REMEDIES The remedies given to City in this Agreement shall not be exclusive but shall be cumulative and in addition to all remedies now or hereafter allowed by law or elsewhere provided in this Agreement. City shall have the right to exercise any other right or remedy which City may have at law or in equity without limitation. SECTION 39. WAIVER OF DEFAULT The waiver by City of any Default by Operator of any of the provisions of this Agreement shall not constitute a continuing waiver or a waiver of any subsequent Default by Operator either of the same or another provision of this Agreement. SECTION 40. CITY'S DEFAULTS/OPERATOR'S REMEDY In the event City fails to perform any material obligation of City under the Agreement within ninety(90) days after receiving written notice from Operator specifying the nature of such default, or, if the nature of City's obligation is such that more than ninety(90) days are required 31 Sports Complex Concession-Stadium Club for its performance, if City fails to commence such performance within such ninety (90) day period and thereafter diligently prosecute the same to completion, then City shall be in default of this obligation. If City's default materially interferes with Operator's use of the Premises for its intended purpose, Operator shall have the option to terminate the Agreement by giving City at least sixty(60) days' written notice of its intent to terminate. In such a situation, Operator must still comply with all of its obligations, liabilities, duties and responsibilities under the Agreement, including, without limitation,paying any Operation Charge due up to the time of termination and surrendering the Premises pursuant to Sections 56 and 57 below. This remedy of termination is Operator's sole and exclusive remedy for a default by City. SECTION 41. CONSENT When City's consent/approval is required under this Agreement, its consent/approval for '= one transaction or event shall not be deemed to be a consent/approval to any subsequent occurrence of the same or any other transaction or event. SECTION 42. WAIVER OF CLAIMS Operator hereby waives any claim against City, its officers, elected or appointed officials, employees,4gents or volunteers for damage or loss caused by any suit or proceeding directly or indirectly attacking the validity of this Agreement, or any part thereof, or caused by.any judgment or,award in any suit or proceeding declaring this Agreement null,void or voidable, or delaying the Agreement or any part thereof from being carried out. SECTION 43. INSPECTION OF PREMISES Upon at least twenty-four(24)hours advance written,verbal or electronic notice given by City to Operator, Operator shall permit City or City's agents, representatives or employees to enter the Premises at all reasonable times for the purpose of inspecting, investigating and 32 Sports Complex Concession-Stadium Club surveying the Premises to determine whether Operator is complying with the terms of this Agreement and for the purpose of doing other lawful acts that may be necessary to protect City's interest in the Premises or to perform City's duties under this Agreement. City also shall have the right in its sole discretion to do any and all work of any nature necessary for the preservation, maintenance and operation of property owned, controlled or occupied by City. Operator shall be given reasonable notice when such work becomes necessary, and Operator shall adjust the operation of the Concession in such a manner that City may.proceed expeditiously. SECTION 44. CITY'S RIGHT TO BUYOUT City shall have the right at any time during the entire term of this Agreement or any renewals or extensions thereof to buyout the remaining years of the Agreement and Operator's interest in this Agreement based upon the following buyout formula: Average of the most recent two (2)years (preceding the date of the notice of buyout) annual Gross Sales under this Agreement or a prior lease mulliplied by a twelve and one-hulfpercenl (12.5%)profit margin multiplied by the number of years remaining on the Agreement discounted by twelve and.one-halfpercent(12.5%)-to present value. For example: The annual Gross Sales for the most recent two (2) years of the Concession are $335,000.00 and $350,000.00. If City gives Operator notice of its buyout intention in September,the preceding two (2) years would be the preceding twenty-four(24)months ending in August. There are three (3) years remaining in the Agreement.. The average of the Gross Sales of the most recent two (2) years is $342,500.00 ($335,000.00+ $350,000.00/2). 33 Sports Complex Concession-Stadium Club . The profit margin is 12.5%of the most recent two (2) year average which is $42,812.50 ($342,500.00 x 0.125). The profit margin is then discounted at the rate of 12.5%to present value over the :r remaining years of the Agreement: Year 1: $42,812.50/ 1.125 =$38,055.56 Year 2: $42,812.50/ 1.125 / 1.125 = $33,827.16 _ Year 3: $42,812.50/ 1.125 / 1.125 / 1.125 = $30,068.59 All of the discounted cash flows for the remaining years of the Agreement are totaled and the result is the buyout price of the Agreement. In this case,the City's buyout price is $101,951.31. :r E If Operator has owned/operated the Concession for less than two (2) years, the City's buyout price will be the greater of(1)the amount calculated under the Gross Sales formula above or(2) all reasonable and provable start-up costs, which start-up costs will be determined by City in its sole discretion. The annual Gross Sales figure on which to calculate the buyout amount shall be calculated as follows: The average monthly Gross Sales for all months up to twenty-three (23) months converted into an annual Gross Sales figure. For example, if City decides to buyout the Agreement of a new Operator who has owned/operated the Concession for fifteen(15) months, with an average monthly Gross Sales figure of Five Thousand Dollars($5,000.00),the annual Gross Sales figure for the option to buyout would be Sixty Thousand Dollars ($60,000.00). For purposes of this calculation, an Operator shall not be considered a new operator if the Concession was previously owned/operated by an operator whose assignment, encumbrance, 34 Sports Complex Concession-Stadium Club occupation or use, or other transfer to Operator did not require City approval in Section 34 above. At City's sole option, City shall have.the right,but not the obligation,to purchase any or all of Operator's Trade Fixtures (defined in Section 51 below),-baseds on the:appraised fair value market of the Trade Fixtures. If City desires to purchase any.or all of Operator's Trade Fixtures, City shall select an appraiser to provide an appraisal of such Trade Fixtures. If Operator disagrees with City's appraisal, Operator, at its sole cost and expense, shall select another appraiser to provide an appraisal. If City disagrees with Operator's appraisal, City shall select another appraiser to perform an appraisal. In such case,the parties agree that the price for the Trade Fixtures will be the average of these three (3) appraisals. All appraisers must be members in good standing in the American_Society.of Appraisers. ,Notwithstanding,the foregoing, at any time, City may elect not to purchase any or all of Operator's Trade Fixtures. Upon City's request, Operator shall provide City with proof of lien free, good and merchantable title to any such Trade Fixtures City desires to purchase. Operator shall protect, defend, indemnify,and hold harmless City,its officers, elected and appointed officials, employees, agents and volunteers from and against any and all liens, claims, damages, losses, expenses,judgments, demands and defense costs (including, without limitation, costs and fees of litigation(including arbitration) of every nature or liability of any kind or nature) arising out of or in connection with Operator's fraud, omission or negligence regarding any purchase of Operator's Trade Fixtures by City. Operator will conduct all defense at its sole cost and expense and City shall approve selection of Operator's counsel. This indemnity shall apply to all claims 35 Sports Complex Concession-Stadium Club and'liability regardless of whether any insurance policies are applicable. The policy limits do not act as limitation upon the amount of indemnification to be provided by Operator. Operator acknowledges and agrees that this Agreement buyout option of City has been negotiated at arms-length and does not constitute nor does Operator construe this to be an act of eminent domain or inverse condemnation. In the event City exercises this buyout option, Operator waives any and all claims of loss of business goodwill and relocation rights or benefits. Operator also shall immediately surrender the Premises as set forth herein and comply with, without limitation, Sections 56 and 57 below. SECTION 45. PHOTOGRAPHY Operator acknowledges and agrees that City may grant permits to third parties engaged in 'x the production of still and motion pictures and related activities to take photographs " or videos of or on the Premises when such permission shall not interfere with the primary business of Operator, all without providing Operator with notice or requiring consent by Operator. SECTION 46. HAZARDOUS SUBSTANCES Operator represents and warrants that its use or occupation of the Premises shall not generate any Hazardous Substance (as defined below in this Section), and it shall not store or dispose on the Premises nor transport to or over the Premises any Hazardous Substance during the entire term of this Agreement or any renewals or extensions thereof. The foregoing restrictions shall not be deemed to restrict or prohibit the use by Operator of ordinary cleaning products as customarily used in Operator's ordinary course of business at the Concession; provided that Operator complies with all provisions of law as to the use, storage and disposal of such products. Operator further agrees to clean up and remediate any such Hazardous Substance 36 Sports Complex Concession-Stadium Club on the Premises, and agrees to protect, defend; indemnify and hold harmless City, its officers, elected or appointed officials, employees, agents and volunteers from and against any and all claims, damages, losses, expenses,judgments, demands and defense costs (including,without limitation, costs and fees of litigation(including arbitration) of every nature or liability of any kind or nature) arising out of or in connection with any such Hazardous Substance and any damage, loss, or expense or liability resulting from any such Hazardous Substance including, without limitation; all attorney's.fees, costs and penalties incurred as a.result thereof except any release caused by the sole negligence or willful misconduct of City. Operator will conduct all defense at its sole cost and expense and City shall approve selection of Operator's counsel. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as limitation upon the amount of indemnification to be provided by Operator. "Hazardous substance" shall be interpreted broadly to mean any substance.or material defined or designated as a hazardous or toxic waste,hazardous or toxic material, hazardous or toxic or radioactive substance, or other similar term, by any Federal, State or local environmental law, regulation or rule presently in effect or promulgated in the future, as such law,regulation or rule may be amended from time to time; and it shall be interpreted to include, without limitation, any substance which after release into the environment will or may reasonably be anticipated to cause sickness, death or disease. SECTION 47. NONDISCRIMINATION Operator and its employees shall not discriminate because of race, religion, color, ancestry, sex, age, national origin or physical handicap against any person by refusing to furnish such person any accommodation, facility, rental, service or privilege offered to or enjoyed by the 37 Sports Complex Concession-Stadium Club • • general public. Nor shall Operator or its employees publicize the accommodation, facilities, rentals, services or privileges in any manner that would directly or inferentially reflect upon or question the-acceptability of the patronage of any person because of race, religion, color, ancestry, sex, age, national origin or physical handicap. In the performance of this Agreement, Operator shall not discriminate against any employee or applicant for employment, because of race, religion, color, ancestry, sex, age, national origin or physical handicap. Operator shall take affirmative action to ensure that applicants are employed and that employees are treated during employment, without regard to their race, religion, color, ancestry, sex, age,national origin or physical handicap. Such action -shall include, without limitation,the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including, without limitation, apprenticeship. Operator shall.post in conspicuous places, available to all employees and applicants for employment, notices setting-forth the provisions of this Section. ; Operator shall permit access to its records of employment, employment advertisements, application forms, and other pertinent data and records by City,the State Fair Employment Practices Commission or any other agency with jurisdiction over these matters, for the purpose of investigation to ascertain compliance with this Section. City may determine a violation of this Section to have occurred upon receipt of a final judgment having that effect from a court in an action to which Operator was a party, or upon receipt of a written notice from the State Fair Employment Practices Commission or other government agency with jurisdiction over these matters that it has investigated and determined that Operator has violated the Fair Employment Practices Act or other applicable discrimination 38 Sports Complex Concession-Stadium Club law and has issued an order which has become final,on obtained an injunction. In the event of violation of this Section, City shall have the right to terminate-this Agreement, and any loss of revenue sustained by City by reason thereof.shall be borne and paid for by Operator, at its sole cost and expense. SECTION 48. SALE OF ALCOHOLIC BEVERAGES AND ENTERTAINMENT PROHIBITED Notwithstanding anything to the contrary,the sale or-provision of alcoholic beverages and/or live entertainment in, on, or from the Premises is expressly forbidden, unless expressly permitted in writing by City in advance. For any proposed sale or provision of alcoholic beverages, Operator must first obtain written City;approval:prior to submitting any request for approval.to the Alcohol Beverage Commission. SECTION 49. LIENS Operator shall keep the Premises free and clear-from any and all liens, including, without limitation,mechanics' or materialmens' liens, claims and demands for work performed, materials furnished, or operations conducted on or about the Premises or by reason of any use or occupancy by Operator, or any person claiming under:Operator. When applicable,rOperator shall cause a notice of nonresponsibility to be posted and recorded pursuant to California Civil Code Section 3094. SECTION 50. INSTALLATION AND REMOVAL OF TRADE FIXTURES Operator shall have the right during the entire term of this Agreement or any renewals or extensions thereof, at Operator's sole cost and expense,to install or affix in, to, or on the Premises any machinery, equipment and other objects(the "Trade Fixtures"),for use in Operator's trade or business as Operator may deem advisable. Any and all such Trade Fixtures 39 Sports Complex Concession-Stadium Club • • that'can be removed without structural damage to the Premises shall, subject to Section 57 below,remain the property of Operator and may be removed by Operator at any time prior to the expiration or termination of this Agreement,provided Operator repairs any damage caused by the removal. -Upon execution of this Agreement and every anniversary, Operator shall provide City with a list of all Trade Fixtures on the Premises. SECTION 51. DESTRUCTION Should the Premises be partially destroyed,this Agreement shall continue in full force and effect, and Operator, at Operator's sole cost and expense, shall complete the work of repairing and restoring the Premises to their prior condition providing such work can be accomplished under all applicable governmental laws and regulations within one hundred eighty (180) days. Should the Premises be so far destroyed that in City's reasonable judgment they cannot be repaired or restored to their former condition within one hundred eighty(180) days, City shall give-Operator notice of such determination in writing and each party may, in that party's sole discretion: (a) Continue this Agreement in full force and effect in which case Operator shall repair and restore, at Operator's sole cost and expense,the Premises to their former condition; or (b) - Terminate this Agreement by giving the other party thirty(30) days' written notice of such termination within sixty(60) days after the date that City gives Operator notice that the Premises cannot be repaired or restored to their former condition within one hundred eighty(180) days. In the event that either party elects to terminate this Agreement,the entire amount of any insurance proceeds (excluding such proceeds for Trade Fixtures,personal property whether or not 40 Sports Complex Concession-Stadium Club owned or leased by Operator and trade inventory, but only to the extent that the insurance proceeds specifically cover those items) shall be paid to City. The proceeds of any such insurance payable to City may be used, in the sole discretion of City, for rebuilding or repair as necessary to restore the Premises or for any other such purpose(s) as City sees fit. In addition, if Operator elects to terminate the Agreement, Operator must still comply with all of its obligations, liabilities, duties and responsibilities under the Agreement, including, without limitation, paying any Operation Charge due up to the time of termination and surrendering the Premises,pursuant to Sections 56 and 57 below. In the event of the damage or destruction of Improvements, Trade Fixtures and/or personal property located on the Premises not giving rise to a termination of this Agreement, Operator shall, at its sole cost and expense,.replace and repair the same as soon as reasonably possible to permit the prompt continuation of Operator's business at the Premises. SECTION 52. NO ABATEMENT OF OPERATION CHARGE DURING REPAIR WORK The Operation Charge shall not be abated for the time Operator is prevented from using the whole or a portion of the Premises. In addition, Operator shall not be excused from the payment of taxes, insurance or any other obligations for the time Operator is prevented from using the whole or a portion of the Premises. SECTION 53. EMINENT DOMAIN If, during-the term of this Agreement or any renewals or extensions thereof or during any holdover period, City's real property (whether held by City in fee simple, an easement interest or otherwise) and/or the Premises is taken in eminent domain, the entire award (that is, all forms) of 41 Sports Complex Concession-Stadium Club compensation, other than as provided herein, shall belong to and be paid to City. In the event of condemnation, Operator shall be entitled to an award of only the following forms of compensation, if any, from the condemning authority: compensation for loss of business goodwill; compensation for the value of any of Operator's Trade Fixtures; compensation for the value of any of Operator's personal property; compensation for the value of any of Operator's trade inventory; and compensation for relocation benefits as authorized by law. All other forms of compensation, such as, for example,but not by way of limitation, any bonus value of Operator's interest in this Agreement, shall belong to and be paid to City. In the event of condemnation,unless Operator is allowed by the condemning authority to continue its operations on the Premises, the Agreement shall terminate on the earliest of the following dates: the date - the condemning authority obtains a prejudgment order for possession; the date title to the _2 Premises vests in the condemning authority; or the date when Operator is required by the condemning authority to cease its operations. SECTION 54. RELOCATION AND ASSISTANCE. BUSINESS GOODWILL Upon expiration or termination of this Agreement for any reason, including, without limitation, if City exercises its Agreement buyout option,but excluding eminent domain, Operator shall not be entitled to any relocation rights or benefits, business goodwill or bonus value attributable to this Agreement, and Operator expressly waives any claim to the same. SECTION 55. RESTORATION AND SURRENDER OF PREMISES/TITLE TO IMPROVEMENTS On expiration or termination of this Agreement, including,without limitation, in the event City exercises its Agreement buyout option, Operator shall, without compensation to Operator,promptly surrender and deliver the Premises to City in as good condition as such were 42 Sports Complex Concession-Stadium Club at the commencement date of this Agreement, reasonable wear and tear excepted. Operator also shall, without compensation to Operator, surrender all Improvements to City in good condition and repair, ordinary wear and tear excepted; free and clear of all liens and encumbrances. Operator also shall remove all Trade Fixtures, personal property and trade inventory. City may in its sole discretion accept all or any portion of the Premises, as then improved with Improvements and no sum whatsoever shall be paid to Operator or any other person; or City may require Operator to-remove all or any portion of such Improvements, at Operator's own risk and cost and expense; or City may itself remove or have removed all or any portion of such Improvements,at Operator's own risk and cost and expense. If required by City to do so, in removing any such Improvements, Operator-shall restore the Premises as nearly as possible to the conditions existing prior to their installation or construction. All such removal and - - restoration shall be to the satisfaction of City and shall be completed within thirty(30) days of the expiration or termination of this Agreement.In addition, any Trade Fixtures,personal property or trade inventory left on the Premises after the expiration of this 30-day period, regardless of cause, shall be deemed abandoned by Operator. In City's sole discretion, it may choose to do one:or-more of.the following: (1)take any.or.all.of such Trade.Fixtures,-personal property and tradeinventory as City property; (2) store any or all of such Trade Fixtures, personal property and trade inventory in a public warehouse or other location at the sole cost, expense and risk of Operator, and for the account and in the name of Operator; or(3) dispose of any or all of such Trade Fixtures,personal property and trade inventory without any liability to Operator. In addition, Operator's indemnification, hold harmless and defense obligations set forth in this Agreement shall apply to such Trade Fixtures,personal property and/or trade - inventory, and to City's actions with respect thereto. 43 Sports Complex Concession-Stadium Club SECTION 56. FORCE MAJEURE -UNAVOIDABLE DELAYS Should the performance of any act required by this Agreement to be performed by either City-or Operator be prevented or delayed by reason of an act of God, strike, lockout, labor troubles, inability to secure materials, restrictive governmental laws or regulations, or any other cause except financial inability not the fault of the party required to perform the act,the time for performance of the act shall be extended for a period equivalent to the period of delay and performance of the act during the period of delay shall be excused. Provided,however, that nothing contained in this Section shall excuse the prompt payment of the Operation Charge or other consideration by Operator as required by this Agreement or the performance of any act rendered difficult solely because of the financial condition of the party, City or Operator, required to perform the act. SECTION 57. CITY'S OPTION TO CLOSE THE PREMISES City-may close the Premises without liability and without advance notice to Operator therefor at anytime as City in its sole discretion deems necessary for the protection of life, limb or property, or,forpublic health, safety or welfare purposes, or upon reasonable notice to effect any-repair,remodeling or rebuilding deemed necessary by City in its sole discretion. The length of time of any closing of the Premises by City longer than two(2)weeks during a period when the Concession would otherwise be open shall extend the term of the Agreement by the same amount of time. If this occurs, Operator and City shall memorialize this extension in writing. SECTION 58. DELIVERIES OF SUPPLIES City may establish the days and times deliveries of supplies may be made and advise Operator in writing thereof. 44 Sports Complex Concession-Stadium Club SECTION 59. EMPLOYEE PARKING City shall establish the days,times and locations where Operator and Operator's employees may park, and the number of automobiles;trucks, and other motorized and non- motorized vehicles that Operator and Operator's employees may park, and advise Operator in writing thereof. SECTION 60. CONFLICT OF INTEREST Operator warrants and covenants that no official or employee of City, nor any-business entity in which an official or employee of City is interested, (1)has been employed or retained by Operator to solicit or aid in the procuring of this Agreement; or(2) shall be employed by Operator in the performance of this Agreement without the immediate written divulgence of such fact to City. In the event City determines that the employment of any such official, employee or business entity is not compatible with such official's or employee's duties as an official or employee of City, Operator, upon request of City, shall terminate such employment immediately. For breaches or violation of this Section, City shall have the right both to terminate this Agreement without liability and, in its discretion, recover the full amount of any such compensation paid to such official,.employee or business entity..-No.official or employee-of City shall have any financial interest in this Agreement in violation of the applicable provisions of the California Government Code. SECTION 61. NOTICE Unless specifically providing for verbal or electronic notice, all notices;certificates, or other communications required to be given hereunder shall be in writing and made in the following manner, and shall be sufficiently given and deemed received when (a)personally delivered; or(b) three (3)business days after being sent via United States certified mail—return receipt requested; or 45 Sports Complex Concession-Stadium Club (c) one (1)business day after being sent by reputable overnight courier, in each case to the addresses specified below; provided that City and Operator, by notice given hereunder, may _ 41 designate different addresses to which subsequent notices, certificates or other communications will be sent: CITY: OPERATOR: City of Huntington Beach Stadium Club, LLC - ATTN: Director of Community Services Attn: Sandi Van Amersfoorth 2000 Main Street, P.O. Box 190 2109 Alabama Street Huntington Beach, CA 92648 Huntington Beach, CA 92648 SECTION 62. COMPLIANCE WITH LAWS Operator, at its sole cost and expense, shall comply with all statutes, ordinances, regulations and requirements of all governmental entities, including,without limitation, Federal, State, county or municipal, relating to Operator's use and occupancy of the Premises and/or operation of the Concession whether such statutes, ordinances,regulations and requirements be now in force or hereinafter enacted. This Agreement is expressly subject to the laws, regulations and policies of City. Operator shall deliver to City a copy of any notice from any governmental entity. received;by Operator regarding any alleged violation of law regarding the Agreement, Premises or the Concession or from any person allegedly entitled to give notice under any conditions, covenants, or restrictions binding or affecting the Premises. The judgment of any court of competent jurisdiction, or the admission by Operator in a proceeding brought against Operator by any government entity, that Operator has violated any such statute, ordinance, regulation or requirement shall be conclusive as between City and Operator and shall be grounds for termination of this Agreement by City. 46 Sports Complex Concession-Stadium Club SECTION 63. INTERPRETATION OF THIS MANAGEMENT AGREEMENT The language of all parts of this Agreement shall in all cases be construed as a whole, according to its fair meaning, and not strictly for or against any of the parties. If any provision of this Agreement is held by an arbitrator or court of competent jurisdiction to-be unenforceable, void, illegal or invalid, such holding shall-not invalidate or affect the remaining covenants and provisions of this Agreement. No covenant or provision shall be deemed dependent upon any other unless so expressly provided here. As used in this Agreement,the masculine or neuter gender and singular or plural number shall be deemed to include the other whenever the context so indicates or requires. Nothing contained herein shall be construed so as to require the commission of any act contrary to law, and wherever there is any conflict between any provision contained herein and.any present or future statute, law, ordinance or regulation contrary to which the parties have no right to contract, then the latter shall prevail,and the provision of this Agreement-which is hereby affected shall.be curtailed and limited only to the extent necessary to bring it within the requirements of the law. SECTION 64. SURVIVAL Terms.and conditions of this Agreement,which by their sense and-context survive the expiration or termination of this Agreement, shall so survive. SECTION 65. MODIFICATION No.waiver or modification of any language in this Agreement shall be valid unless in writing and duly executed by both parties. SECTION 66. SECTION HEADINGS The titles, captions, section,paragraph and subject headings, and descriptive phrases at the beginning of the various sections in this Agreement are merely descriptive and are included 47 Sports Complex Concession-Stadium Club solely for`convenience of reference only and are not representative of matters included or excluded'from such provisions, and do not interpret, define, limit or describe, or construe the intent of the parties or affect the construction or interpretation of any provision of this Agreement. {: SECTION 67. BROKERS Each party warrants to and for the benefit of the other that it has had no dealings with any real estate broker or other agent(attorneys excepted) in connection with the negotiation or a making of this Agreement. SECTION 68. INDEPENDENT CONTRACTOR Operator is, and shall be, acting at all times in the performance of this Agreement as an independent contractor herein and not as an employee of City. Operator shall secure at its own cost and expense, and be responsible for any and all payment of all taxes, social security, state x' disability insurance compensation, unemployment compensation and other payroll deductions for Operator and its officers, agents and employees and all business licenses, if any, in connection with-the Agreement and/or any services to be performed hereunder. t<= SECTION 69. ATTORNEY'S FEES In the event suit is brought by either party to construe, interpret and/or enforce the terms and/or provisions of this Agreement or to secure the performance hereof, each party shall bear its own attorney's fees, such that the prevailing party shall not be entitled to recover its attorney's fees from the non-prevailing party. SECTION 70. LEGAL SERVICES SUBCONTRACTING PROHIBITED Operator and City agree that City is not liable for payment of any subcontractor work involving legal services, and that such legal services are expressly outside the scope of services 48 Sports Complex Concession-Stadium Club contemplated hereunder. Operator understands that pursuant to Huntington Beach City Charter Section 309,the City Attorney is the exclusive legal counsel for City; and City shall not be liable for payment of any legal services expenses incurred by Operator. SECTION 71. GOVERNING.LAW This Agreement shall be governed-and construed in accordance with the laws of the State of California. SECTION 72. DUPLICATE ORIGINAL The original of this Agreement and one or more copies hereto have been prepared and signed in counterparts as duplicate originals, each of which so executed shall, irrespective of the date of its execution and delivery, be deemed an original. Each duplicate original shall be deemed;an original instrument as against any party who signed it. SECTION 73. ENTIRETY The parties acknowledge and-agree that they are..entering into this Agreement freely and voluntarily following extensive arm's length negotiations, and that each has had the opportunity to consult with legal counsel prior to executing this Agreement. The parties also acknowledge and agree that no representations, inducements,promises, agreements or warranties, oral or otherwise, have been made by that party, or anyone acting on that patty's behalf, which are not embodied in this Agreement, and that that party has not executed this Agreement in reliance on any representation, inducement,promise, agreement, warranty, fact or circumstance not expressly set forth in this Agreement. The Agreement, and the attached exhibits, contain the entire agreement between the parties respecting the subject matter of this Agreement,the Premises, the leasing of the Premises to Operator, or the lease term created under this Agreement and supercede all prior 49 Sports Complex Concession-Stadium Club understandings and agreements, whether oral or in writing between the parties respecting the subject matter hereof. (REST OF PAGE INTENTIONALLY LEFT BLANK) 50 Sports Complex Concession-Stadium Club IN WITNESS WHEREOF,the parties hereto have caused this Agreement to be executed by and through their authorized officers on \U/—,j G 2004. OPERATOR: CITY OF HUNTINGTON BEACH, a municipal corporation of the State of STA )I JUM CLUB, LLC California A Cal' o limited liability company i B k t A AZ4 4 print name May(Fr ITS: (circle one)Chairman/Presiden ice President ATTEST: AND dA"V50City Me IK .713 Jolt print name APPROVED AS TO FORM: ITS: (circle one)Secret financial Officer/Asst Secretary-Treasure a .,hrwKn C l.� City Attorney P b I (?, l REVIEWED AND APPROVED: INITIA ED AND APPROVED: i .. Ci y Administrator Dir cto of Community S ices AP OV Director o dministrative Services 51 Sports Complex Concession-Stadium Club Exhibit A 1 OF 2 Legal Description Those certain lands situated in the City of Huntington Beach, County of Orange, State of California, being a portion . of the lands conveyed to the City of Huntington Beach a municipal corporation ` in the Grant Deed recorded 19 January, 1972 in Book 9970, page 597 of Official Records, in the office of the Recorder of said County, more particularly described as follows: Commencing at the centerline intersection of Gothard Street and Talbert Avenue as shown on Record of Survey 92-1084, filed in Book 138, page 9 of Records of Surveys, thence along said centerline north 89'31'53" west, 903.05, thence at right angles to said centerline, south 0'28'07" west, 187.75 feet, to the TRUE POINT OF BEGINNING. Thence south 34'47'47" east, 141.45 feet to the beginning of a non—tangent curve concave to the east, having a radius of 10.88 feet, a radial line to said point of curvature bears south 87'04'12" west; Thence northerly and northeasterly, - through a central angle of 47'50'30": `an -arc-- length of 9.08 feet, to the beginning of a non—tangent reverse curve, concave to the northwest, having a radius- of--70.63 feet,--a radial line to said point of reverse curvature bears south 40'46'38" east; Thence northeasterly and northerly through a central angle of 35'31'26", an arc length of 43.79 feet;. Thence north 14'20'42" east, 10.29 feet, to the beginning of a non—tangent curve concave to the west, having a radius of 102.71 feet, a radial line to said point of curvature bears south 77'27'31" east; Thence northerly through a central angle of 13'17'22", an arc length of 23.82 feet; Thence north 00'02'58" west, 52.43 feet, to the beginning of. a non—tangent curve concave to the west, having a radius of. 21.05 fee.t,..a radial Fine to said point of curvature bears south 88'56'39" east; 18100B GOLDENWEST CITY OF HUNTINGTON BEACH DEPARTMENT OF PUBLIC WORKS Exhibit A 2OF2 Legal Description' Thence northerly through a central angle of 12'14'06", an arc length of 4.50 feet; Thence north 31'29'49" west, 2.35 feet, to the beginning of a non—tangent curve concave to the southwest, having a radius of. 10.04 feet, a radial line to said point of curvature bears south 25'46'52" east; Thence northeasterly, northwesterly and westerly, through a central angle of 187'33'14", an arc length of 32.87 feet to . a point of cusp with a curve concave to the south and having a radius of 32.96 feet a radial line to said point of cusp bears north 40'29'17" east; Thence northwestery and westerly through a central angle of 74'33'24", an arc length of 42.89 feet; Thence south 55'37'06" west, 72.63 feet, to the TRUE POINT OF BEGINNING. =_ Containing: 10,951.0 square feet more or. less. Sub ject to all Covenants, Rights, Rights-of—Ways and Easements o:f Record. A= . See exhibit "B" attached -hereto -and by-this reference made-'a part hereof. - =- 10 LAND S 2y� GAL Joseph G. Derleth o PLS 7340, expires 12/31/05 EXP. 12-31-05 z `P S. 7340 F OF CAL%' 18100B GOLDENWEST •� CITY OF HUNTINGTON BEACH DEPARTMENT OF PUBLIC WORKS � I a � TABLE OF `DIMENSIONS CURVE TABLE: LI=N14'20'42"E, 10.29' C1=DELTA. 47'50'30", R=10.88', L=9.08' L2=N31'29'49"W, 2.35' C2=DELTA 35'31'26", R=70.63', L=43.79' L3=S87'04'12"W, (RAD Cl) C3=DELTA 13'17'22", R=102.71', L=23.82' L4=N45'05'18"W, (RAD Cl) C4=DELTA 12'14'06", R=21.05', L=4.50' L5=S40'46'38"E, (RAD C2) C5=DELTA 187'33'14", R=10.04', L=32.87' L6=S76'18'04"E (RAD C2) C6=DELTA 74'3324", R=32.96', L=42.89' L7=S77'27'31"E (RAD C3) L8=N89.15'07"E (RAD C3) L9=S88'56'39"E (RAD C4) L10=N78'49'15"E (RAD C4) L11=S25'46'52"E (RAD C5) 112=N33'20'06"W (RAD C5) L13=N40'29'17"E (RAD C6) L14=N34'04'07"W (RAD C6) - - EXHIBIT B (2 OF 2) 18100E GOLDENWEST CITY OF HUNTINGTON BEACH DEPARTMENT OF PUBLIC WORKS Jun 22 04 01 : 42p P. 1 ^ ,��qq n �r p� LIABILITY Nu ember: 322/BP20466611`10,p/� Date Enter-M., 6/22/2004 wr AbOR—. V.�� 1 ��'�/l �F i.'1'►�1�' 6 I 1��7�/CVh� j 0 6/22/2004' PRoDL1cr:R Tabiessan Iasoxa ce Services. TNIS CERTIFICATE IS ISSUED AS A MATTER OF INFOiW ION 20261 Acacia Street, Ste. 230 ONLY AND CONFERS 00 R)GNTS UPON THE CERTIFICATE Newport Beach, CIL 92660 HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR bm./o,/ ALTER THE COVERAGE AF_FORDCD BY THE POLICIES BELOW. (949)261-9373 e(Y-y eL. i INSURERS AFFORDING COVERAGE _ j HAIC# wMlrtm MM S'1'AM M CLOB, LLC Dsa inm STmxtu _ I a-Rk8LvzCO-m(mT=bn moon o rue. CO. CLUB j-rF r,a: 18100 GOLDXNMS4, $13 1 PMRER RUNTINGTCK BF�1CH, CA 92648 1&OL mG&T n�urRtRrr COVERAGES T"E POLICIES OF INSUPANCE USTED BELOW HONE SEEN MSUED TO THE INSURED NAMED ABOVE FOR THE POL'CY PERIOD tNOICATED.N01WTHSTANDING ANY REQLNREMENr•,TERM OR CONVrrCN OF ANY CCNTRACTOR OTHER 00CUMENT WITti RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PEARTAIN•rHE SSURANCEAFFOKDED BY THE FOUCIES 0121-CtaIBED HEREIN IS SUBJECT TO AI.L TwE'Tcws,EXCLUSIONS AND CC NOITIONS OF SUCH POLICIES.AGGREGATE LMIT"S SHOWN MAY HAVE BEEN REOUCE0 BY PAID SWUS. Skir�,A. I POLICY NUMBER obi Ir 0 OIM t irrCS Cfe>9nAL.UAeuTY �— EACH CRL CLIRReaCe ls3.000000 I ' rleMW- RLL"Lrry 102P20486110 i 6/15/2004 6/1S/2005 WEroNotro s NIN OCC-o � G MAIMS 510,000 _jMACE X OCCUR �rMS NALIAMIMIURY s INC_rm OCC- GENERALAGOREGATE 12000000 Calf LAG6RFGATE- ;mur'APPLIES PIM. ! PRouJcts-n!rIOPAGG 1 s 1000000 a.,Ucy,, �° r LOC I ! _ I AU_TOYom F L moLRY I 1 - - 1 OOMBINED S:NGLC-LIMIT f - I ANY AUTO I AU O+M IM AUTOS I !(10 Y K:URY f j b,:,UUsEC ALTOS i ,(Ps mm") -�! --- i HRL-7AlI?LC, I !90LALYI h.CJRY z P Pr.PFJTFY DANA A -� 1 E-RA-k E LASLffy -` - - �I AU FO ONLY.EA ACC16ENT.LI _ - .. AWAU76 - - I OTHER TWIN FRAx S '.AIJTO(.W-Y: ASG S —" L ' EJO_CaUAPXRELLAUABLITY EACH CC( S I _ ' I OCCUR QMiSMA"E I I AaC.SGATE is _- � C£7JC11EL I ( - i__T- iF s - I I rETF.NTICN f jVI"U t7ow AND EK I i I -1.ICIYY U�L4! r AM'PIMPRIIE.TC4WAR f%Cv.7CJ ITVE i , .VIXITY LEACH ACaLIEI(r S !W9CER EIADrRE)(CUA7-Ir !11 desaba vm �ISFaSE-FA E►fPL�Jh t tea. r SPE ,Lm:)%,lsIOfZ below I I _E. L)ISEAS[-PQUCY Lllt!I i z fI � A "1P'1�Ts"N is nh1 tvD�a S A�'rE ON M % raTi&"TE GW19r IN TEM sc81t0auss. BUT ONLY VMM MSPECT TO LIABILITY MUSMfG OUT OV "YOTM WORK" MR THAT INSLTr= BY OR 3QR YOU. IT41E tCAR2r «07.D8R IS NAMED AS AN l.DI�STIt72IIlVL ZIi,OREC.. CERTIFICATE HOLDER CANCELLATION_ SIOULD ANY OF IFE APOJC 0 CIRWL MUCIES BE CANCELLZZ BEFORE TV&EXARATNai Tat CITY Or sxWT=ZGTl= azam, ZTs AGztrmi i DI.TL'T1f2REw,7He IssLo,vaupi i w!LL�BBr 4ib wAB.•3_0 DAYS wRmEN OP5'Z6"lfrtq AIMS1KP3,OYIES t NCres TO THE CERVFICAtE HOLUEA IWUAW TO THE LEF'e . +� 2002 14" STREET NotM Ift oat=MIN at. -_ - I L![LMf 1rtSR'Ofi 3EA.'7r, Ca 926/I6 I grAptefty TR714El _ Aul"3RAMO REPRESENTATNE 4CORD 25(20Oli00) �1)ACORD CORPORATION 1988 A P VED TO F�1i JENNT McORATH,City Atto- V Jun 22 04 01 : 43p p- 2 Pnlit�Yt rbG-: DaHazosa6.ilolook Data Ertered: 6/22/2004 Date r�DDIYVt"i &CORD„ EVIDENCE C�??lilMEl�CIr�►L P'l�Oi`PE�'dTY 4N+CE 6/22/2004 TMS IS EVIDENCE THAT MURANCE AS IDEMTFIED BELOW HAS MM ISSUED,IS M FORCE,AND CONVEYS ALL THE IUGKTS AND PFmLPGCS AFFORDED UNDER ME POUCt._ F'ODDOcrxvAlf£.rowAcr �.E�t i949)26?._93.73 oaav�wvtw �►unxa w►J�cxa: �APp Ai~GDrtrSs - --- w,� (949)261`0214 Sh8'ECO-AMERICADT CCOWCNY ITS. CO. ':obi.aaaaa Inunrancra Sitraiaus (dam•' 7,1/ 1V 20261 AA:acia Street;, Ste. 230 Newport Beach. Ch 926GC --- ooD> ACBtt'Y -���--•----- - '-- �'------• -�� .. IF llllriT1Pt.9 O01WAPMk 0MMPLVM MPAPAT E f(MI FEW EACM aaalneLSmmiiz S'2ALLnu Eva, LEI: DBA Tim STADIDM �Lommullm ~i-POLICY wrm-M- Aao AM j CL -02BP20486110 8100 GOIDEM"ST, #a �F}Ftf7lYEwtE--'T-EM MMOATE OUNTIAGTON S&MM, Ch 92648 I CONTINJEUUMIL 6/22/20U4 6/15/2005 rawtTEDIFCI+Eal�O allattunw'.iMumxrsDt�alsf t MRLVkkA= n`atao- PRLVERTY INFOMA PON((!se addManat sheFAs if mole semis requircYd) L0MIM%LJESC#lVTM## - 18100 GOLDENWEST, $D MMINGTON MACH, CA, 92648 COVERAGE INFOMWATION CAUSE D L055 FQtmI 943C SROAD iFE_Cl/iL �FL7iHER Cld1tAERC1i1PROPERTYCO'v=-RAGEAMMINTOFINSURA.eCE: 3200;000 — DED 1,000 StbDdESS INCOME:RENTAL VALUE If YES. LIW: --- -- Achim!.p+s Su.Wm.,d x of months: 12 BLANKET COVERACE -- - IM-5.nd=m amourt d ineoranact on propertm idwtVAd grave: S SF-RWM;',,U COVEWAGE --- AL�rc?r ai¢�Cq CsiaAue tkAke I DEC IS CCYA R E PRCJVIDr_D FOR'CERTIFiEe],V.,Tu r. &Y'. RYES. SUB UM!T: — DED: IS CaMIAGE A STAND ALONE aOLCY? y DF D ' CCES COt t--RAGE INCLUr,E OGFA€STiC-,ERRORISMt7 —_ i IX U YES. SUB LIMIT. DIM. C04 FRAGEt FOR MOLD � M YrS, iJIdT: DED: h10Lfi EXCLUSION(B'YEs.aPeady olglumum's lntm used) P.EPLAi.EVENT CO3T -_�-- --- - A:iQEED AMOUNT CCauSURAME r YE.s. !6 cOtJIPVExr aREAKDOIih(L nnP+vole) If YES, um-f: 80,000 DED:1,000 LAW AND ORDINANCE N YES. UIWT: 'DED: -'kmoftm oats U YES, LIMIT: DED: �~ tnm.Cod of Caistucson - U YES. JMIT:~ DED: _ r -� EARtiiC.AKEtrApESmatia) _--..----.-.._-_ .-.I .if•YES. lJi11T: `--. `. DED: FLOOD(NApplicube) -- --- ;If YES. - UMI- DED: VANE;HAIL If Sem.119 F WV) _ - I ! I I YES. UUM -� DED' I PEItMMa-04 TO WANS SUERC(;A-nON PRIOR TO LOSS � - -REMARKS-Including Spociai Conditions(Use additional sheets It mom space is mquirea) _ L_ CANCELLATION T`IE.POLICY:S SL:B.'E-:T TO T}dE PREMIUMS,FORMS,AND RULES IN EFFECT FOR EACH POLICY PERIOD.SHOULD THE POLICY BE TERMINATED,THE COMPANY WILL GIVE ThE ADDITIONAL INTEREST ID[NMFIED SELCVI 30 GAYS`ARMEN HOME,AND WILL SEND NOTIFICATION OF ANY CrANGES TO THE PCL'CY ThAT Y4W.0 AFFECT THAT INTEREST,IN ACCORDIWCE WITH THE POLICY PROMIONS OR AS REQUIRED BY LAW. ADOMONALINTEREST NU E boo AMMM MC"S13ZVK*+G AGGir NAME AM aoDrtfss S3Jr C2TT or 9mNT11W%,j l hemcm. r!zs a=mS, 0"lC>+ns AID 9sl8 Dims 2300 Nam STM?.r KTnsrr.ICY<M ZZACs, Ca 92649 --T-Ml.C,T',--0AGEE —FT W;:rArFE A / `�- ACOFD 28(2G03110) �- t ACORD CCR?CRAnON 2003 e VED S TO7C-iry/A'tt6/MQ4 ?311 MCGRATH3 Jun 22 04 Olz43p p. 3 POUCY NUMBER:0 2 BP 2 0 4 8 61 13 COMMERCIAL GENERAL LtABILIT! THIS ENDORSEMENT CHANCES THE POLICY. PLEASE REND IT CAREFULLY. ADDITIONAL INSURED--DESIGNATED PERSON OR - ORGANIZATION This wWorwwt modifies Insurance.providad under the Following: COMMERCIAL GENERAL LIAEILI Y COVERAGE PART. SCHEDULE Name of person of Organlzatlam THE CITY OF HUNTINGTON BEACH . ITS AGENTS, OFFICERS AND EMPLOYEES 2000 MAIN STREET HUNTINGTON BEACH, CA 92548 (It no entry appears above,inform3on regjimd to corMleie this endorsement sail be s VWn In the Dedarations as applicable to this erWormnent) WHO f$AN INSURE)(Section 14 Is amended to i v*ide as an bssured the parson or orga tmuon shown in the Scnedcsm as an 1p=red but ony with respect to Rablilty ariAig out of your operatlons or prmnises owned by.or vented to you. I CG 20 26 t185 Copyright.Insurance§m1ces Office,W_.1984 AP VE�AF � �3p J F R Mc9RATH,pity A Arne 06/21/2004 16:39 714-374-1743 HUMAN RESOURCES PAGE 01 City of Huntington Beach 2000 grin SbUL Calito„ala 92"S Dr—CLARATION of NON-EMPLOYER STATUS In order to Comply with Oity Council Resolution No.6277, you are required to prov;de ProoF of Workers'Compensation insurance. If you have no employees,this Form must be signed and returned to: Cjty of tluntinpston beach Risk Management Division 2000 Main street Huntington beach,r-A 92648 I certify that in k6c perfoi7nanee of the activity or worm for which this permit is issui=d,(ahau not emPby any person in any manner so as to become su6iect to California Workers, Compensation insurance re9uiremenb. . I suthorite-the City QF Huntington beach to immadiately and retroact;4!j revoke_the license or peewit issued under this dedaration X I hire any employees) or become su6ject to the provisions of the laws rcquiringWorkcre Compensation Insurance A p{icant/Com any Namc: Address: "l4 a "' "—" -" `�G✓ APP< 5 gna i Title: kvlli4-1 Location Signed: C�VI Telephone Number. G:1RiskMgMINCerWns\WC-Wvr.Doc (Rev.WW2004) VED A TO FO a 3 p E IF MCGRATH,City�ttome Y RCA ROUTING SHEET INITIATING DEPARTMENT: Administrative Services SUBJECT: APPROVAL OF MANAGEMENT AGREEMENTS WITH KATHY MAY AND JEFF WHITEFIELD FOR SPORTS COMPLEX CONCESSION "A" & SANDI VAN AMERSFOORTH FOR SPORTS COMPLEX CONCESSION "B" COUNCIL MEETING DATE: July 6, 2004 RCA ATTACHMENTS STATUS Ordinance (w/exhibits & legislative draft if applicable) Not Applicable Resolution (w/exhibits & legislative draft if applicable) Not Applicable Tract Map, Location Map and/or other Exhibits Not Applicable Contract/Agreement (w/exhibits if applicable) (Signed in full by the City Attorney) Attached Subleases, Third Party Agreements, etc. Approved as to form by City Attorney) Not Applicable Certificates of Insurance (Approved by the City Attorney) Attached Financial Impact Statement (Unbudget, over $5,000) Not Applicable Bonds (If applicable) Not Applicable Staff Report (If applicable) Not Applicable Commission, Board or Committee Report (If applicable) Not Applicable Find in s/Conditions for Approval and/or Denial Not Applicable EXPLANATION FOR MISSING ATTACHMENTS REVIEWED RETURNED FOR ED Administrative StaffJT� Assistant City Administrator Initial _ City Administrator Initial City Clerk EXPLANATION FOR RETURN OF ITEM: Only)(Below Space For City Clerk's Use REQUEST FOR LATE SUBMITTAL (Ta com` any RCA's submitted afte 'adline Department: Com. Serv. Subject Sports Complex Concession Agreements Council Meeting Date: 7/6/04 Date of This Request: 6128/04 REASON (Why is this RCA being submitted late?): There were delays in the concessionaires providing the required insurance and getting that insurance through the ci 's approval process. EXPLANATION (Why is this RCA necessary to this agenda?): Concessionaires need to have approved contract before they can begin the required tenant improvements. CONSEQUENCES How shall delay of this RCA adversely impact the City?): City needs the revenue that will be generated from these concessions. Any additional delays in time would result in negative impacts on revenue to the city. Signature: Approved 0 Denied Department Head/ Penelope C Ibreth-Graft City Administrator