Loading...
HomeMy WebLinkAboutMarian Johnson, DBA Let's Go Fishing - 2019-11-05 nplwovaDltslfnavDa � Nv City of Huntington Beach File #: 20-1675 MEETING DATE: 6/1/2020 REQUEST FOR CITY COUNCIL ACTION SUBMITTED TO: Honorable Mayor and City Council Members SUBMITTED BY: Mike Posey, City Council Member Subject: Submitted by Councilmember Posey - Let's Go Fishing 90-Day Lease Extension Background: On November 4, 2019, the City Council authorized the execution of an updated lease agreement for Let's Go Fishing and Surf City Snack Bar, LLC (Let's Go Fishing), which operates out of a City owned facility located on the Huntington Beach Pier. The updated lease agreement provided for a base 6-month lease, which would be followed by a month-to-month lease term for an additional period of time not to exceed 6-months. Pursuant to these terms, the Let's Go Fishing Lease was set to transition to a month-to-month contract in June 2020. Based on the current COVID-19 pandemic, coupled with the fact that the City's Pier has been shut down for the past 2 months. I am recommending that the City Council direct staff to process a 90- lease extension for Let's Go Fishing, pursuant to the following terms: ■ Extend the Let's Go Fishing agreement for an additional 3-month period, so that the base lease term would run through the end of August 2020. ■ Following the expiration of the base lease term, allow for the maintenance of the existing month-to-month provisions of the agreement for an additional period of time not to exceed an additional 6-month period. Recommended Action: Based on my assessment of the situation, I am requesting that the City Council vote to direct staff to execute a new contract with Let's Go Fishing to provide for an additional 3-month term to their base lease agreement, pursuant to the terms outlined above. City of Huntington Beach Page 1 of 1 Printed on 5/28/2020 aoweret_&u LegistarTO City Council/ ACTION AGENDA June 1, 2020 Public Financing Authority Recommended Action: Adopt Resolution No. 2020-37, "A Resolution of the City Council of the City of Huntington Beach Amending Resolution Nos. 2016-59, 2017-28, 2017-44, 2017-46, 2018-01, 2018-29, 2018-48, 2018-55, 2019-07, 2019-19 and 2019-87,which established a Consolidated Comprehensive Citywide Master Fee and Charges Schedule (Supplemental Fee Resolution No. 11)." Approved 6-1 (Peterson- No) COUNCILMEMBER ITEMS 17. 20-1675 Item Submitted by Councilmember Posey Approved - Let's Go Fishing 90- Day Lease Extension Recommended Action: Based on my assessment of the situation, I am requesting that the City Council vote to direct staff the City Manager to utilize his administrative authority to execute a new contract with Let's Go Fishing to provide for an additional 3-month term to their base lease agreement, pursuant to the terms outlined above. Approved as amended 5-2(Posey, Delgleize- No) COUNCILMEMBER COMMENTS (Not Agendized) - Reported: Posey, Delgleize, Hardy, Semeta, Peterson, Carr, Brenden ADJOURNMENT-8:45 PM The next regularly scheduled meeting of the Huntington Beach City Council/Public Financing Authority is Monday, June 15, 2020, at 4:00 PM in the Civic Center Council Chambers, 2000 Main Street, Huntington Beach, California. INTERNET ACCESS TO CITY COUNCIL/PUBLIC FINANCING AUTHORITY AGENDA AND STAFF REPORT MATERIAL IS AVAILABLE PRIOR TO CITY COUNCIL MEETINGS AT http://www.huntingtonbeachca.gov Y : .cH CITY OF HUNTINGTON BEACH CITY COUNCIL MEETING—COUNCIL MEMBER ITEMS REPORT TO: THE HONORABLE MAYOR AND CITY COUNCIL FROM: MIKE POSEY, CITY COUNCIL MEMBER DATE: JUNE 1, 2020 SUBJECT: LET'S GO FISHING 90-DAY LEASE EXTENSION BACKGROUND On November 4, 2019,the City Council authorized the execution of an updated lease agreement for Let's Go Fishing and Surf City Snack Bar, LLC(Let's Go Fishing), which operates out of a City owned facility located on the Huntington Beach Pier. The updated lease agreement provided for a base 6- month lease, which would be followed by a month-to-month lease term for an additional period of time not to exceed 6-months. Pursuant to these terms, the Let's Go Fishing Lease was set to transition to a month-to-month contract in June 2020. Based on the current COVID-19 pandemic, coupled with the fact that the City's Pier has.been shut down for the past 2 months, I am recommending that the City Council direct staff to process a 90-lease extension for Let's Go Fishing, pursuant to the following terms: ■ Extend the Let's Go Fishing agreement for an additional 3-month period, so that the base lease term would run through the end of August 2020. ■ Following the expiration of the base lease term, allow for the maintenance of the existing month-to-month provisions of the agreement for an additional period of time not to exceed an additional 6-month period. RECOMMENDED ACTION Based on my assessment of the situation, I am requesting that the City Council vote to direct staff to execute a new contract with Let's Go Fishing to provide for an additional 3-month term to their base lease agreement, pursuant to the terms outlined above. CG�_C-r�17OW , AS A'J EIJ))ED t City of Huntington Beach APE 0?50AJ-4&6WT� 71 File #: 19-1119 MEETING DATE: 11/4/2019 REQUEST FOR CITY COUNCIL ACTION SUBMITTED TO: Honorable Mayor and City Council Members SUBMITTED BY: Oliver Chi, City Manager PREPARED BY: Kellee Fritzal, Deputy Director of Economic Development Subject: Approve and authorize execution of a Lease Agreement for Let's Go Fishing at the Huntington Beach Pier Statement of Issue: The City Council is requested to approve a lease agreement for a concession building located on the Huntington Beach Pier with Let's Go Fishing. Financial Impact: Let's Go Fishing currently pays $762.51/month in base rent which will be increased to $950.00/month. The current Percentage Rent is 10% of gross sales that exceed $762.51. The Percentage Rent will be increased to 10.5% at the commencement of the new lease. Revenue from the leases will be deposited into the General Fund (1000100.43095) Beach Concessions. Recommended Action: A) Approve and authorize the Mayor, City Clerk, and City Manager to execute "Lease between the City of Huntington Beach and Marian Johnson, a sole proprietor, doing business as Let's Go Fishing and Surf City Snack Bar in the City of Huntington Beach"; and, B) Direct staff to review expectations/options for the Pier Concession and bring back as a Study Session item. Alternative Action(s): Do not approve the Lease Agreement and direct staff accordingly. Analysis: On November 16, 2009, the City Council also approved three (3) five (5) year lease agreements with Let's Go Fishing, Surf City Store, and Kite Connection including one five (5) year option to extend. Each concession stand was visitor serving and focused on separate unique items. Each concession stand is 620 square feet built by the City to replace the former cargo bin stores on the Pier. City of Huntington Beach Page 1 of 2 Printed on 10/31/2019 powere305*LegistarTM File #: 19-1119 MEETING DATE: 11/4/2019 The terms of the three leases include a minimum base rent with annual CPI increases, and a percentage rent, if sales exceed the base rent. The three concession leases are set to expire on November 16, 2019. Staff reviewed each concession stand's performance evaluating revenue to the City, Offerings to the public, and operations. Based upon the review, staff recommended to the Economic Development Committee ("EDC") that new leases be created for the Surf City Store and Kite Connection, and the third lease be reconsidered. EDC agreed and on April 29, 2019, the City released a Request for Proposals (RFP), which was posted on City's Planet Bid webpage. The Scope included the desire to provide concession services to the public within the pier concession building and not to duplicate the current concession offerings. The proposals were due on June 3, 2019. The City received six (6) proposals: Armijo's Enterprise, Chronic Tacos, Let's Go Fishing, Primo Nosh, Team Real Estate, and Zack's Jr. A committee of four (4) independent reviewers (Community Services, Public Works, Finance, and City Manager's Office), as well as Purchasing and the Office of Business Development reviewed the six proposals. On July 8, the committee met and the three top proposals were ranked: Zack's Jr, Let's Go Fishing, and Armijo's Enterprises. On July 29, 2019, interviews were conducted with the top three proposals. After review by the EDC, staff is recommending a one (1) year lease with Let's Go Fishing. Staff has negotiated new terms for the one-year lease agreement with Marian Johnson based on the following terms: • Base Rent: $950.00 per month • Percentage Rent of 10.5%of all gross sales exceeding $950.00 • Permitted Uses: Full bait and tackle shop selling and/or renting fishing rods, tackle, bait, snacks, and sporting goods/equipment on the premises. • Minimum Days: 350 days open for a minimum of eight (8) hours a day • Maintenance: Let's Go Fishing shall repair and maintain the concession Over the next six (6) months, staff will be reviewing the operations of the Pier, adjacent cities Pier operations, and bring back a Study Session to discuss the future of the Pier leases. Environmental Status: Not applicable Strategic Plan Goal: Strengthen long-term financial and economic sustainability Attachment(s): 1. "Lease Between the City of Huntington Beach and Marian Johnson, a Sole Proprietor, Doing Business As Let's Go Fishing and Surf City Snack Bar in the City of Huntington Beach" City of Huntington Beach Page 2 of 2 Printed on 10/31/2019 powere364 Legistar- City Council/ ACTION AGENDA November 4, 2019 Public Finance Authority D) Approve the appointment of Marie Knight to the position of Director of Organizational Learning & Engagement; and, E) Approve and authorize the City Manager to execute the "Employment Agreement Between the City of Huntington Beach and Marie Knight" for the position of Director of Organizational Learning and Engagement. Approved 6-0-1 (Peterson absent) as amended to strike reference to vacant Department Head positions identified on Exhibit 1 of Resolution 2019-78 16. 19-1104 Approved the appointment of Christopher Slama to the position of the Director of Community Services and authorized the City Manager to execute the Employment Agreement Recommended Action: Approve and authorize the City Manager to execute the "Employment Agreement Between the City of Huntington Beach and Christopher Slama" for the position of Director of Community Services. Approved 6-0-1 (Peterson absent) ADMINISTRATIVE ITEMS 17. 19-1119 Approved and authorized execution of a Lease Agreement for Let's Go Fishing and Surf City Snack Bar, LLC at the Huntington Beach Pier Recommended Action: A) Approve and authorize the Mayor, City Clerk, and City Manager to execute "Lease between the City of Huntington Beach and Let's Go Fishing and Surf City Snack Bar, LLCMarian johRsen, a solo proprietor doing bu.s_.'ries...sa as Let's Go Fishing and Surf Git SRaGk Bar in the City of Huntington Beach"; and, B) Direct staff to review expectations/options for the Pier Concession and bring back as a Study Session item. I Approved 6-0-1 (Peterson absent) as amended to revise lease agreement from a 1-year to 6- month term, with a month-to-month option thereafter for year one; and, to accept revisions submitted via Supplemental Communication to update the business name and delete Section 16. SECURITY DEPOSIT. 18. 19-1024 Approved and authorized execution of an Acquisition Loan Agreement between the City, Housing Authority and Beach Housing Partners LP for development of up to 43 senior apartment units located at 18431 Beach Boulevard; and approved allocation of funds Recommended City Council and Housing Authority Action: A) Direct the City Manager/Executive Director and City Attorney/Authority Counsel to finalize the draft Acquisition Loan Agreement(18431 Beach Boulevard) by and among the Huntington Beach Housing Authority, City of Huntington Beach, and Beach Housing Partners LP, Approve the Loan Agreement (as defined late, in this Staff D no lh � •rr•"•" `�•`� ""^•• cyicc�i�cnc-�cn acii�icv nOCc�TrTccpvrcr make non substantive changes if required; and, LEASE BETWEEN THE CITY OF HUNTINGTON BEACH AND LET'S GO FISHING AND SURF CITY SNACK BAR, LLC IN THE CITY OF HUNTINGTON BEACH THIS LEASE (the "Lease") is made and entered into effective November 5 , 2019 by and between the CITY OF HUNTINGTON BEACH, a municipal corporation of the State of California ("City") and Let's Go Fishing and Surf City Snack Bar, LLC ("Lessee"). WHEREAS, City wishes to lease certain real property (the "Property"), consisting of a bait and tackle shop along with a snack shop on the pier in the City of Huntington Beach, California, and other related improvements (collectively referred to as the "Improvements"). The term "Premises" as used in this Lease shall mean both the Property and the Improvements. Lessee desires to lease the Premises in the manner set forth below. NOW, THEREFORE, the parties covenant and agree as follows: SECTION 1. SUPERSEDING OF PRIOR LEASE This Lease shall supersede and replace any existing lease agreement(s) for the Premises currently entered into by and between the parties and all supplemental agreement(s) entered into by and between the parties regarding the existing lease agreement(s). SECTION 2. GRANT OF CONCESSION ON THE PREMISES City, pursuant to the terms of this Lease, grants to Lessee for the purposes stated herein, the right, privilege and duty to equip, operate and maintain a bait and tackle shop along with a snack shop on the pier open to the public located on the Premises (hereinafter sometimes referred to as the "Concession"). Lessee shall not use the Premises for any other purpose or business. A map depicting the Premises is set forth in Exhibit "A", which is attached hereto and incorporated herein by this reference. Lessee shall not utilize the areas behind the Concession. Furthermore, Lessee shall remove any merchandise from the areas behind the Concession at the 1 19-8109/217202 written request of the City Manager or his/her designee. This Lease is not intended to confer third-party beneficiary status to anyone. SECTION 3. RESERVATIONS ENCUMBRANCES AND RIGHTS-OF-WAY (a) City expressly reserves a right to enter upon the Premises with as much advance written, verbal or electronic notice as possible to Lessee for any reason associated with public health, safety or welfare, or for the protection of life, limb or property. In all other cases unless otherwise specifically set forth herein, City reserves the right for such entry but City shall give Lessee at least twenty-four (24) hours advance written, verbal or electronic notice. City shall have a right of reasonable access to the Premises across Lessee owned, controlled or occupied lands adjacent to the Premises, if any, for any purpose associated with this Lease. (c) City expressly reserves the right to lease, convey, or encumber the Premises, in whole or in part, for any purpose not inconsistent or incompatible with the rights or privileges of Lessee under this Lease. In addition, Lessee agrees to subordinate the Lease to any existing or future City financing regarding the Premises or any portion thereof. Lessee also agrees to cooperate and provide any documentation necessary for City to obtain any such financing. (d) This Lease is subject to pre-existing contracts, leases, licenses, easements, encumbrances and claims affecting the Premises and it is made without warranty by City of title, condition or fitness of the land for the stated or intended use. SECTION 4. TIME OF ESSENCE Time shall be of the essence of this Lease and each and all of its terms, covenants or conditions in which performance is a factor. 2 19-8109/217202 SECTION 5. TERM This Lease shall commence at 12:01 a.m. on November 5, 2019, for a six (6) month term, and thereafter on a month to month basis. SECTION 6. CONDITIONS OF PREMISES AS IS The taking of possession of the Premises by Lessee shall, in itself, constitute acknowledgment that the Premises are in good and tenantable condition. Upon taking possession of the Premises, Lessee agrees to accept the Premises in their presently existing condition, "as is," and agrees that City shall not be obligated to make any alterations, additions or betterments thereto. SECTION 7. DURATION OF PUBLIC FACILITIES By entering into this Lease, City makes no stipulation as to the type, size, location or duration of public facilities (excluding the Premises), including, without limitation, any City parking lots to be maintained on property owned, controlled or occupied by City. SECTION 8. ADDITIONS, ALTERATIONS AND REMOVAL (a) No modifications, alterations or additions to the Premises, including, without limitation, construction of Improvements or changes to structural design or exterior furnishings shall be constructed or made by Lessee without Lessee first obtaining the prior written approval of City Manager, which will not be unreasonably withheld. (b) Except as provided under this Lease, no alteration or removal of existing Improvements on or natural features of the Premises shall be undertaken without Lessee first obtaining the prior written approval of City Manager. 3 1 9-8 1 09/2 1 7202 (c) Lessee's obligation to obtain City's prior written approval is separate and independent of Lessee's obligation to obtain any permits from City, such as, without limitation, a building permit. SECTION 9. CITY'S CONTRACT ADMINISTRATOR The City Manager, or his or her designee, shall be City's Contract Administrator for this Lease with the authority to act on behalf of City for the purposes of this Lease, and all City approvals and notices required to be given herein to City shall be so directed and addressed. SECTION 10. RENT Lessee agrees to pay to City as rent (the "Rent") for the use and occupancy of the Premises a minimum base Rent of$950.00 a month. Lessee shall pay the Rent monthly to City at the City Treasurer's Office, P.O. Box 711, Huntington Beach, California, 92648, or at such other place or places as City may from time-to- time designate by written notice delivered to Lessee. Lessee shall pay the Rent, which must be received by the City Treasurer within fifteen calendar days after the end of the month for which the Rent is being paid, or on the next business day if the fifteenth day falls on a weekend or holiday. SECTION 11. LATE CHARGE AND PENALTY If the Rent is not received by the City Treasurer within thirty (30) calendar days after the end of the month for which the Rent is being paid, or the next business day if the thirtieth day falls on a weekend or holiday, Lessee shall pay the following late charge and penalty: (1) a late charge of five percent (5%) shall be applied to any outstanding balance after any payment hereunder is due but unpaid; and (2) one and a half percent (1 ''/z%) penalty per month shall be 4 19-8109/217202 added for each month the Rent is due but unpaid. With respect to any other payments required by Lessee, a one and a half percent (1 1/2%) penalty per month shall be added for each month such payment hereunder is due but unpaid. SECTION 12. GROSS SALES DEFINED For the purpose of this Lease, the term "Gross Sales" shall mean the total price of all sales processed on site, merchandise, or services sold or rendered, or equipment rented, in, on, or from the Premises by Lessee, or anyone contracting with Lessee, including, without limitation, its agents or sublessees (collectively or individually, "Lessee Party(ies)"), whether wholesale or retail, whether for cash or on credit, and if on credit whether or not paid, and whether in exchange for any other product, commodity, service, commercial paper or forbearance, and shall include, without limitation, the following: (a) All revenues, receipts, commissions or proceeds from sales by Lessee Party(ies), and/or from all public telephones, vending, weighing and all other (b) machines owned, operated, or leased to or by Lessee 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, 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 5 19-8109/217202 (d) All revenues, receipts, commissions or proceeds generated from offsite but delivered through the Concession. (e) All revenues, receipts, commissions or proceeds made by Lessee Party(ies) or their employees or others acting on their behalf for the rendition of services of any kind whatsoever, made in, on, or from the Premises. (f) All other revenues, receipts, commissions or proceeds generated by, arising or derived whatsoever from the use of the Premises or derived whatsoever from any business conducted in, on, or from the Premises. For purposes of computing the Gross Sales figure on which to calculate the Rent, the amount of Gross Sales shall start over at zero dollars on the first day of each month. SECTION 13. GROSS SALES EXCLUSIONS Gross Sales shall not include the following items, and Lessee may deduct such items from Gross Sales to the extent they have been included therein or have been included in a prior computation of Gross Sales on which the Rent has been paid under this Lease to City: (a) Any sales, excise or other taxes otherwise includable in Gross Sales and which become part of the total price of merchandise or services sold or rendered, or equipment rented, in, on, or from the Premises where Lessee must account for and remit the taxes to the government entity or entities which impose them, but only if such taxes are added to the total price and collected from customers; (b) Any transfer of trade inventory from the Premises to the manufacturer or supplier from whom it was obtained by Lessee; (c) Sales of Trade Fixtures (as defined in Section 50-1 below); 6 1 9-8 1 09/2 1 7202 (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. (f) Any sales of merchandise to City employees which take place at City Hall. (g) Any sales of merchandise to City employees during special events as approved in advance by the City Manager or his or her designee. SECTION 14. BOOKS AND RECORDS Lessee shall keep true and accurate books and records showing all of its business transactions in separate records of account for the Concession in a manner acceptable to City, and City and/or its designated representatives shall have the right, at all reasonable times, to inspect such books and records including, without limitation, State of California sales or use tax returns or other State return records, and Lessee hereby agrees that all such records and instruments shall promptly be delivered and made available to City and/or its designated representatives within thirty (30) days of receiving written request therefor. Lessee shall furnish to City and/or its designated representatives copies of its quarterly California sales and use tax returns at the time each is filed with the State of California. The books and records shall show the total amount of Gross Sales made each calendar month in, on, or from the Premises and any exclusions listed in Section 13 above. All sales and charges shall be recorded by means of cash registers which display the amount of the transaction certifying the amount recorded. The register shall be equipped with devices which log in daily sales totals and which shall record on tapes the transaction numbers and sales details. At the end of each day the tape shall record the total sales for that day. Lessee agrees to maintain on the 7 1 9-8 1 09/2 1 7202 Premises, or another location subject to the prior written approval of City, all records, books of account and cash register tapes, showing, or in any way pertaining to the Gross Sales made in, on, or from the Premises during such calendar month, including, without limitation, State of California sales or use tax returns or other State tax returns, for a period of five (5) years following the close of each calendar month. SECTION 15. STATEMENT OF GROSS SALES/AUDIT At the time specified in Section 10 of this Lease for the payment of the Rent, Lessee shall deliver to City a true and accurate statement signed by Lessee or by an authorized employee of Lessee showing the total Gross Sales and any exclusions listed in Section 13 above made during the preceding calendar month and the amount of the Rent then being paid calculated on such Gross Sales pursuant to this Lease. The acceptance by City of any monies paid to City by Lessee as the Rent, as shown by any statement furnished by Lessee, shall not be construed as an admission of the accuracy of the statement, or of the sufficiency of the amount of the Rent payment, and City shall be entitled to review the adequacy of such payment as set forth herein. By the end of each January, Lessee shall deliver to City a year-end statement showing the total amount of Gross Sales made in, on, or from the Premises in each month of the preceding year, the total of any exclusions, the total Rent paid to City for each of those months, all with year-end totals. City may at any time within three (3) years after receiving the year-end statement, at its sole cost and expense, cause all records, books of account and cash register tapes for the year purportedly covered by the statement, to be audited by City or an accountant selected by City. Lessee shall, within thirty (30) days of receiving written notice of City's desire for such an audit, deliver and make available all such records, books of account and cash register tapes to City or its designated representative for City's use in the audit and/or for copying. If the audit discloses 8 19-8109/217202 that Gross Sales were understated and/or exclusions overstated, Lessee shall immediately pay the additional Rent, together with a penalty thereon from the date it was due at the penalty rate set forth in Section 11 above. Furthermore, Lessee shall promptly on demand reimburse City for the full cost and expense of the audit should the audit disclose that the questioned year-end statement purposely understated Gross Sales (including an overstatement of exclusions) or the Rent by any amount greater than Two Hundred Fifty Dollars ($250.00). City further reserves the right to examine and audit all such records, books of account and cash register tapes at any time during the three (3) year period following the expiration or termination of this Lease. In addition, City shall have the right to enter upon the Premises during business hours and with twenty-four (24) hours advance written, verbal or electronic notice to Lessee to perform any audit or inspection function with respect to this Lease. Lessee, its bookkeeper and/or accountant shall respond to all questions and inquiries of City with respect to the books, records, statements and other documentation being examined, and shall promptly provide other further documentation as may be required by City. City is entitled to take statements by deposition under oath of Lessee, its officers, bookkeepers and/or accountants or any person who prepared the books, records, statements and other documentation required to be provided by Lessee under this Lease. SECTION 16. RESERVED SECTION 17. QUALITY OF SALES RENTALS AND SERVICES Lessee, at its sole cost and expense, shall equip, operate, manage and maintain the Premises and Concession and shall keep the same equipped and maintained in a manner acceptable to City during the entire term of this Lease or during any holdover period. It is the intent of City that the Concession's services be provided in a manner to meet the needs of the 9 1 9-8 1 09/2 1 7202 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 Lessee to make such changes requested by City. Lessee shall not use or permit the Premises to be used, in whole or in part, during the entire term of this Lease or any renewals or extensions thereof or during any holdover period for any purpose other than as herein set forth, without the prior written consent of City. Lessee shall only sell or rent fishing rods, tackle, bait, snack/water and sporting goods/equipment on the premises as approved by the City Manager or his or her designee and related merchandise at the bait and tackle shop along with the snack shop. Lessee shall require all of its employees working on the Premises to wear identification tags displaying their first name. The bait and tackle shop along with the snack shop shall be in operation for a minimum of three hundred and fifty (350) days during the calendar year and for a minimum of eight (8) hours a day. The minimum number of operating days and hours may be modified due to weather conditions or unforeseen events. Any modification to this minimum number of days must be approved in advance in writing by the City Manager or his or her designee. Except as permitted in advance in writing by City, all foods and beverages shall be sold in disposable paper or plastic containers. No pull-top cans or Styrofoam containers are to be vended or dispensed from the Premises unless pre-approved in writing by City. Lessee, wherever feasible, shall eliminate the use of non-recyclable containers and plastics. City may from time to time review the items sold and containers or utensils used or dispensed by Lessee. City reserves the right to prohibit the sale or use of non-recyclable containers or plastics. City in its sole discretion reserves the right to prohibit Lessee's sale, provision or rental of any item or service rendered or performed, which it deems objectionable or offensive, beyond 10 19-8109/217202 the scope deemed necessary for proper service to the public, inappropriate for sale, provision or rental by the Concession, or of inferior quality. SECTION 18. INDEMNIFICATION DEFENSE AND HOLD HARMLESS AGREEMENT Lessee hereby agrees to protect, defend, indemnify and hold harmless City, its officers, elected or appointed officials, employees, agents and volunteers from and against any and all claims, damages, losses, expenses, judgments, demands and defense costs (including, without limitation, costs and fees of litigation (including arbitration) of every nature or liability of any kind or nature) arising out of or in connection with (1) the use or occupancy of the Premises by Lessee, its officers, employees or agents, or (2) the death or injury of any person or the damage to property caused by a condition of the Premises, or (3) the death or injury of any person or the damage to property caused by any act or omission of Lessee, its officers, employees or agents, or (4) any failure by Lessee to keep the Premises in a safe condition, or (5) Lessee's (or Lessee's agents and/or sublessees, if any) performance of this Lease or its failure to comply with any of its obligations contained in this Lease by Lessee, its officers, agents or employees except such loss or damage which was caused by the sole negligence or willful misconduct of City. Lessee shall hold all Trade Fixtures, personal property and trade inventory on the Premises at the sole risk of Lessee and save City harmless from any loss or damage thereto by any cause whatsoever, except such loss or damage which was caused by the sole negligence or willful misconduct of City. Lessee will conduct all defense at its sole cost and expense and City shall approve selection of Lessee's counsel. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as limitation upon the amount of indemnification to be provided by Lessee. 11 19-8109/217202 SECTION 19. WORKERS' COMPENSATION AND EMPLOYERS' LIABILITY INSURANCE Lessee acknowledges awareness of Section 3700 et seq. of the California Labor Code, which requires every employer to be insured against liability for workers' compensation. Lessee covenants that it shall comply with such provisions prior to the commencement of this Lease. Lessee shall obtain and furnish to City workers' compensation and employers' liability insurance in amounts not less than the State statutory limits. Lessee shall require all sublessees and contractors to provide such workers' compensation and employers' liability.insurance for all of the sublessees' and contractors' employees. Lessee shall furnish to City a certificate of waiver of subrogation under the terms of the workers' compensation and employers' liability insurance and Lessee shall similarly require all sublessees and contractors to waive subrogation. SECTION 20.-GENERAL PUBLIC LIABILITY INSURANCE In addition to the workers' compensation and employers' liability insurance and Lessee's covenant to defend, hold harmless and indemnify City, Lessee shall obtain and furnish to City, a policy of general public liability insurance, including motor vehicle coverage against any and all claims arising out of or in connection with the Premises. This policy shall indemnify Lessee, its officers, employees and agents, while acting within the scope of their duties, against any and all claims arising out of or in connection with the Premises, and shall provide coverage in not less than the following amount: combined single limit bodily injury and property damage, including products/completed operations liability and blanket contractual liability, of One Million Dollars ($1,000,000.00) per occurrence. If coverage is provided under a form which includes a designated general aggregate limit, the aggregate limit must be no less than One Million Dollars ($1,000,000.00) for the Premises. This policy shall name City, its officers, elected or appointed 12 19-8109/217202 officials, employees, agents, and volunteers as Additional Insureds, and shall specifically provide that any other insurance coverage which may be applicable to the Lease shall be deemed excess coverage and that Lessee's insurance shall be primary. Under no circumstances shall said above-mentioned insurance contain a self-insured retention, or a"deductible" or any other similar form of limitation on the required coverage. SECTION 21. PROPERTY INSURANCE Lessee shall provide before commencement of this Lease and shall obtain and furnish to City, at Lessee's sole cost and expense, property and fire insurance with extended coverage endorsements thereon, by a company acceptable to City authorized to conduct insurance business in California, in an amount insuring for the full insurable value of all Improvements, Trade Fixtures, personal property whether or not owned or leased by Lessee, and all trade inventory in or on the Premises against damage or destruction by fire, theft or the elements. This policy shall contain a full replacement cost endorsement naming Lessee as the insured and shall not contain a coinsurance penalty provision. The policy shall also contain an endorsement naming City as an Additional Insured. The policy shall contain a special endorsement that such proceeds shall be used to repair, rebuild or replace any such Improvements, Trade Fixtures, personal property whether or not owned or leased by Lessee, and all trade inventory so damaged or destroyed; and if not so used, such proceeds (excluding any insurance proceeds for Trade Fixtures, personal property whether or not owned or leased by Lessee, and trade inventory, but only to the extent the insurance proceeds specifically cover those items) shall be paid to City. The policy shall also contain a special endorsement that if the Premises are so destroyed triggering the parties' ability to terminate as set forth in Section 51 (Destruction) below, and either party elects to terminate the Lease, the entire amount of any insurance proceeds (excluding such proceeds for Trade 13 19-8109/217202 Fixtures, personal property whether or not owned or leased by Lessee and trade inventory, but only to the extent the insurance proceeds specifically cover those items) shall be paid to City. The proceeds of any such insurance payable to City may be used, in the sole discretion of City, for rebuilding or repair as necessary to restore the Premises or for any such other purpose(s) as City sees fit. This policy shall also contain the following endorsements: (a) The insurer shall not cancel or reduce the insured's coverage without (30) days prior written notice to City; (b) City shall not be responsible for premiums or assessments on the policy. A complete and signed certificate of insurance with all endorsements required by this Section shall be filed with City prior to the execution of this Lease. At least thirty (30) days prior to the expiration or termination of any such policy, a signed and complete certificate of insurance showing that coverage has been renewed shall be filed with City. SECTION 22. INCREASE IN AMOUNT OF GENERAL PUBLIC LIABILITY AND PROPERTY INSURANCE Reserved. SECTION 23. CERTIFICATES OF INSURANCE; ADDITIONAL INSURED ENDORSEMENTS Prior to commencement of this Lease, Lessee shall furnish to City certificates of insurance subject to approval of the City Attorney evidencing the foregoing insurance coverages as required by this Lease; these certificates shall: (a) provide the name and policy number of each carrier and policy; (b) shall state that the policy is currently in force; and 14 19-8109/217202 (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 21 above. Lessee shall maintain the foregoing insurance coverages in force during the entire term of the Lease or any renewals or extensions thereof or during any holdover period. The requirement for carrying the foregoing insurance coverages shall not derogate from Lessee's defense, hold harmless and indemnification obligations as set forth in this Lease. City or its representatives shall at all times have the right to demand the original or a copy of any or all the policies of insurance. Lessee shall pay, in a prompt and timely manner, the premiums on all insurance hereinabove required. SECTION 24. INSURANCE HAZARDS Lessee shall not commit or permit the commission of any acts on the Premises nor use or permit the use of the Premises in any manner that will increase the existing rates for, or cause the cancellation of any liability, property, or other insurance policy for the Premises or required by this Lease. Lessee shall, at its sole cost and expense, comply with all requirements of any insurance carrier providing any insurance policy for the Premises or required by this Lease necessary for the continued maintenance of these policies at reasonable rates. SECTION 25. MAINTENANCE OF PREMISES; TENANT IMPROVEMENTS City's maintenance responsibilities of the Premises shall be limited to maintaining all sewers and drain lines, and roofs repairs. Except as set forth in the preceding sentence, or in Section 26, Lessee agrees to maintain the Premises in good order and repair, at Lessee's sole cost 15 1 9-8 1 09/2 1 7202 and expense, during the entire term of this Lease or any renewals or extensions thereof or during any holdover period, pursuant to the City's maintenance standards. A copy of the quarterly evaluation summary sheet setting forth the City's maintenance checklist is attached as Exhibit III and incorporated herein by this reference. Except as provided above, Lessee, at its sole cost and expense, shall perform any maintenance and repairs including, without limitation, facility maintenance on the Premises. Lessee'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 Lease 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 Lessee shall at all times faithfully obey and comply with all laws, rules and regulations applicable thereto. Lessee shall be responsible for maintenance of the mechanical door unless the failure of the door is caused by environmental factors, the determination of which is to be made by the City Manager or his or her designee or his or her designee. Lessee, at its sole cost and expense, shall remedy without delay any defective, dangerous or unsanitary condition(s) caused by Lessee or anyone related thereto. Lessee shall maintain ADA access around the entire building. Any and all graffiti on the Premises may be removed by Lessor, at its sole cost and expense. Lessee shall provide Lessor notice of the graffiti within forty-eight (48) hours of Lessee becoming aware of such graffiti. In addition, with or without notice from City, Lessee shall, at its sole cost and expense, repair and/or replace any broken glass within forty-eight (48) hours of its becoming broken, regardless of cause, except by fault of City. Except as provided above for 16 19-8109/217202 graffiti and broken glass, Lessee, at its sole cost and expense and with or without notice from City, shall repair and/or replace all damage or destruction to the Premises caused by act(s) of vandalism as soon as possible but in no event later than fourteen (14) days after the date such damage or destruction occurred. Lessee, at its sole cost and expense, shall repair and/or replace all other damage or destruction to the Premises, regardless of cause, except by fault of City. Lessee shall comply with all written notices served by City with regard to the care and maintenance of the Premises. Any written notice hereunder shall specify the work to be done and the period of time deemed to be reasonably necessary for completion of such work. Should Lessee fail to commence making the necessary repairs within seven (7) days after receiving such notice, or within twenty-four (24) hours of the glass becoming broken in the case of broken glass, or fail to diligently proceed to complete the necessary repairs within the period of time reasonably specified in the City's notice, or within forty-eight (48) hours of the glass becoming broken in the case of broken glass, or within the forty-eight (48) hour time period for removing graffiti, or within fourteen (14) days of the date that the vandalism damage or destruction occurred, City shall proceed to cause the required work to be performed, and Lessee shall promptly reimburse City for the cost of labor and materials thereof and pay City a penalty on such costs at the penalty rate set forth in Section 11 above from the date the costs were incurred by City to the date they are reimbursed to City by Lessee. Lessee hereby expressly waives the right to make repairs at the expense of City and the benefit, if any, of the provisions of Sections 1941 and 1942 of the California Civil Code relating thereto. 17 19-8109/217202 SECTION 26. RENT CREDIT A Rent credit may be available for some or all of any tenant improvements or maintenance performed by Lessee upon prior written approval by the City Manager or his or her designee or his or her designee. The terms of payment of any rent credit will be determined by the City Manager or his or her designee. City in its sole discretion may decide to give Lessee rent credit if Lessee undertakes (1) any repair or maintenance obligation of City under this Lease, or (2) any work City in its sole discretion deems necessary and appropriate. Prior to Lessee undertaking any such work, City must agree in writing to the amount of and procedures for the rent credit, the work to be done by Lessee and the cost of such work. SECTION 27. DAMAGE DESTRUCTION OR NUISANCE Lessee shall not commit or permit the commission by others of any damage or destruction of, on, or to the Premises and/or Concession. Lessee shall not maintain, commit or permit the maintenance or commission of any nuisance as defined in Section 3479 and/or Section 3480 of the California Civil Code on the Premises; and Lessee shall not use or permit the use of the Premises for any unlawful purpose. SECTION 28. TAXES This Lease may create a possessory interest in property, which is subject to taxation. In the event that such possessory interest is created, Lessee agrees to be subject to the payment of and to pay taxes levied on such interest, at its sole cost and expense. Lessee also agrees to pay, at its sole cost and expense, before they become delinquent all other lawful taxes, assessments or charges, which at any time may be levied by any governmental agency including, without limitation, the State, County, City or any tax or assessment levying body upon any interest in this Lease, or any possessory right which Lessee may have in or to the Premises, by reason of 18 19-8109/217202 Lessee's use or occupancy thereof or otherwise, as well as all taxes, assessments, and charges on Trade Fixtures, personal property and trade inventory in, on, or about the Premises. Upon request, Lessee shall promptly furnish to City satisfactory evidence establishing such payment. Lessee shall comply with all laws, regulations and ordinances regarding the collection of taxes due a government agency. SECTION 29. PAYMENT OF OBLIGATIONS Lessee shall promptly pay, at its sole cost and expense, before they become delinquent, any and all bills, debts, liabilities and obligations incurred by Lessee in connection with Lessee's occupation and use of the Premises and/or operation of the Concession. Upon request, Lessee shall promptly furnish to City satisfactory evidence establishing such payment. SECTION 30. UTILITIES AND SERVICES Lessee shall be responsible for the payment of all utility charges, including, without limitation, gas, electricity, water, telephone service, cable TV service, and the furnishing of all necessary refuse and garbage containers and the removal and disposal of all rubbish, refuse and garbage resulting from the operation of the Premises and/or the Concession. All such rubbish, refuse and garbage removed shall be disposed of in accordance with applicable laws and local ordinances. All trash containers and/or trash bins shall be adequately screened and located to the satisfaction of City. For the purposes of this Section, sewage disposal shall be construed as a utility. All such charges shall be paid by Lessee directly to the provider of the service and shall be paid as they become due and payable. Upon request, Lessee shall promptly furnish to City satisfactory evidence establishing such payment. Lessee shall use good energy practices as described in the State of California Flex Your Power Best Practice Guide. 19 1 9-8 1 09/2 1 7202 SECTION 31. BUSINESS LICENSE Lessee shall maintain a business license from City during the entire term of this Lease or any renewals or extensions thereof or during any holdover period. SECTION 32. SIGNS ADVERTISING AND APPROVAL OF NAME City shall have the right to approve in its sole discretion and at any time require Lessee to change or remove signs, names, placards, decorations or advertising placed on, or inscribed, painted or affixed upon the Premises. Banners/advertising of businesses outside the City of Huntington Beach is not allowed. No outdoor sales are allowed by Lessee unless prior written approval is obtained from the City Manager or his or her designee or his or her designee. All outdoor displays or banners must first be approved in writing by the City Manager or his or her designee or his or her designee. Should City approve of any sign, name, placard, decoration or advertising, Lessee shall maintain the same at all times during the entire term of this Lease or 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 33. NO ASSIGNING SUBLEASING OR ENCUMBERING (a) Prohibition of Assignment. The parties acknowledge that City is entering into the Lease in reliance upon the experience and abilities of Lessee and its principals. Consequently, Lessee shall not voluntarily assign, encumber or otherwise transfer its interest in the Lease or in the Premises, or sublease all or any part of the Premises, or allow any other person or entity (except Lessee's authorized representatives) to occupy or use all or any part of the Premises without the prior written consent of City, which consent shall not be unreasonably 20 19-8109/217202 withheld. Provided, however, that City's consent shall not relieve Lessee from any and all of its obligations, liabilities, duties or responsibilities under this Lease. Any assignment, encumbrance, occupation or use, sublease or other transfer without such consent shall be voidable and, at City's sole discretion, shall constitute a Default of this Lease. (b) Consent to Transfer. City's consent to any assignment, encumbrance, occupation or use, sublease or other transfer is subject to Lessee providing City with evidence satisfactory to City that the proposed, assignee, encumbrancer, occupier or user, sublessee or other transferee has suitable financial strength, experience and character for operation and control of the Premises and the Concession and that the use of the Premises by the proposed assignee, encumbrancer, occupier or user, sublessee or other transferee is consistent with that specified herein, and is commercially reasonable. Any proposed assignee, encumbrancer, occupier or user, sublessee or other transferee shall agree to abide by the terms and conditions of the Lease including, without limitation, all the obligations, liabilities, duties and responsibilities of Lessee, and other conditions imposed upon it pursuant to law. An approval by City to one assignment, encumbrance, occupation or use, sublease or other transfer shall not be deemed to be an approval to any other assignment, encumbrance, occupation or use, sublease or other transfer. (c) Voluntary assignment defined. Except as otherwise expressly provided herein, any dissolution, merger, consolidation or reorganization of Lessee, or the sale or other transfer resulting in a transfer of a controlling percentage of the capital stock of Lessee (other than a transfer by will, devise, bequest, intestate succession, a 21 19-8109/217202 transfer to or between the family members of Lessee, or a transfer to or between one or more trusts for the benefit of Lessee and/or Lessee's family members, where applicable) shall be deemed a voluntary assignment. (d) Exceptions. Notwithstanding the foregoing paragraphs or anything to the contrary contained herein, City's consent shall not be required for an assignment or subleasing to an Affiliate, Subsidiary or Successor of Lessee (for purposes hereof, an "Affiliate," a "Subsidiary" and a "Successor" of Lessee are defined as follows: (a) an "Affiliate" is any corporation which directly or indirectly controls or is controlled or is under common control with Lessee (for this purpose, "control" shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such corporation, whether through the ownership of voting securities or by contract or otherwise), (b) a "Subsidiary" shall mean any corporation or partnership not less than twenty- five percent (25%) of whose outstanding stock shall, at the time, be owned directly or indirectly by Lessee and which is at least as creditworthy as Lessee, and (c) a "Successor" shall mean a corporation or partnership in which or with which Lessee is merged or consolidated, in accordance with applicable statutory provisions for merger or consolidation of corporations, or a corporation or partnership acquiring a substantial portion of the property and assets of Lessee. SECTION 34. TERMS BINDING ON SUCCESSORS All the terms, covenants and conditions of this Lease shall inure to the benefit of and be binding upon the parties and their successors, including, without limitation, their assignees, encumbrancers, occupiers or users, sublessees or other transferees. The provisions of this 22 19-8109/217202 Section shall not be deemed as a (1) waiver of any of the prohibitions and conditions against assignments, encumbrances, occupations or uses, subleases or other transfers hereinbefore set forth, or (2) City's consent thereto. If more than one lessee is a party to this Lease, the obligations of the lessees shall be joint and several. Even if City's consent is not required, Lessee shall immediately provide City with written notice of any, assignment, encumbrance, occupation or use, sublease or other transfer. SECTION 35. DEFAULT The occurrence of any one or more of the following events shall constitute a material default and breach ("Default") of this Lease by Lessee: (a) Lessee's failure to make any payment of the Rent or other payment required to be made by Lessee at the time required for payment under this Lease. (b) Lessee's failure to obtain or maintain the insurances and/or the security deposit as required under this Lease. (c) Lessee's vacating or abandonment of the Premises during the entire term of this Lease or any renewals or extensions thereof or during any holdover period. Closure of the Concession for more than a combined total of sixty-five (65) days in a calendar year, minus any days of closure of the Concession caused by City, shall be deemed an abandonment of the Premises. (d) Lessee's violation of Section 18 (Indemnification, Defense and Hold Harmless Agreement), Section 33 (No Assigning, Subleasing or Encumbering), Section 46 (Hazardous Substances), Section 47 (Nondiscrimination), Section 48 (Sale of Alcoholic Beverages and Entertainment Prohibited), Section 61 (Conflict of Interest) or Section 63 (Compliance with Laws). 23 19-8109/217202 (e) The insolvency of Lessee as evidenced by a receiver being appointed to take possession of all or substantially all of Lessee's assets located at or on the Premises or of Lessee's interest in this Lease, or the making by Lessee of a general arrangement or assignment for the benefit of creditors, or Lessee's filing a petition in bankruptcy, whether voluntary or involuntary, or the attachment, execution or the judicial seizure of substantially all of Lessee's assets located at or on the Premises or of Lessee's interest in the Lease. (f) Lessee's failure to observe or perform any other term, covenant, obligation, duty, responsibility or condition of this Lease to be observed or performed by Lessee when such failure shall continue for a period of thirty (30) days after City's giving written notice to Lessee, or such earlier period if specifically set forth in this Lease; however, if the nature of such failure is such that more than thirty (30) days are reasonably required for its cure, then Lessee shall not be deemed to be in Default if Lessee notifies City of the length of the additional time required to cure and receives City's written approval of the additional time required, which approval will not be unreasonably withheld, and commences such cure within such thirty (30) day period and diligently proceeds with such cure to completion during such additional time period approved by City. SECTION 36. REMEDIES (a) Cumulative Nature of Remedies. In the event of any Default by Lessee, City shall have the remedies described in this Section in addition to all other rights and remedies provided by law or equity, to which City may resort cumulatively or in the alternative: 24 1 9-8 1 09/2 1 7202 (1) Reentry without Termination. City may at City's sole discretion reenter the Premises, and; without terminating the Lease, at any time and from time to time relet the Premises or any part or parts of them for the account and in the name of Lessee or otherwise. Any reletting may be for the remainder of the term or for a longer or shorter period. City may in City's sole discretion eject all persons or eject some and not others or eject none. In addition, City may in its sole discretion remove some or all of the Trade Fixtures, personal property and trade inventory from the Premises. City may store such removed Trade Fixtures, personal property and trade inventory in a public warehouse or other location at the sole cost, expense and risk of Lessee, and for the account of and in the name of Lessee. City shall apply all rents from reletting as follows: first, to the payment of reasonable expenses (including brokers' commissions) paid or incurred by or on behalf of City in recovering possession, placing the Premises in good condition, and preparing or altering the Premises for reletting; second, to the reasonable expense of securing new subtenants; third, to the fulfillment of Lessee's covenants to the end of the term. City may execute any leases or subleases made under this provision either in City's name or in Lessee's name and City shall be entitled to all rents from the use, operation or occupancy of the Premises. Lessee shall nevertheless pay to City on the dates specified in this Lease the equivalent of all sums required of Lessee under this Lease, plus City's expenses, less the proceeds of any reletting or attornment. 25 19-8109/217202 (2) Termination. In the event of a Default by Lessee, City may at City's sole discretion terminate this Lease by giving Lessee written notice of termination. In the event City terminates this Lease, City may recover possession of the Premises (which Lessee shall immediately surrender and vacate upon demand) and remove all persons therefrom, and Lessee shall comply with, without limitation, Sections 55 and 56 below. City also shall be entitled to recover as damages all of the following: (A) The worth at the time of the award of any unpaid Rent or other charges which have been earned at the time of termination; (B) The worth at the time of the award of the amount by which the unpaid Rent (each month's Rent would be calculated as the average Rent for that same month in the preceding years, or if Lessee did own/operate the Concession in the preceding years, then each month's Rent would be calculated as the average of all months Lessee owned/operated the Concession) and other charges which would have been earned after termination until the time of the award exceeds the amount of the loss of such rental and other charges that Lessee proves could have been reasonably avoided; (C) The worth at the time of the award of the amount by which the unpaid Rent (each month's Rent would be calculated as the average Rent for that same month in the preceding years, or if Lessee did not own/operate the Concession in the preceding years, then each month's Rent would be calculated as the average of all 26 1 9-8 1 09/2 1 7202 months Lessee 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 rental and other charges that Lessee proves could have been reasonably avoided; (D) Any other amount necessary to compensate City for the detriment proximately caused by Lessee's failure to perform its obligations, liabilities, duties or responsibilities under this Lease; and (E) At City's sole discretion, such other amounts in addition to or in lieu of the foregoing as may be permitted from time to time by applicable California law. As used in Sections 36(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 36(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 36(a)(2)(D) above shall include, without limitation, any costs or expenses incurred by City in maintaining or preserving the Premises after such Default. (3) Use of Personal Property. City may at City's sole discretion use the Trade Fixtures, personal 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 27 19-8109/217202 the sole cost, expense and risk of Lessee, and for the account of and in the name of Lessee. (b) Election of Remedy. The election of one remedy for any one item shall not foreclose an election of any other remedy for another item or for the same item at a later time. (c) City's Right to Cure Lessee's Default. Upon continuance of any Default, City may in its sole discretion, but is not obligated to, cure such Default at Lessee's sole cost and expense. If City at any time, by reason of such Default by Lessee, pays any sum or does any act, the sum paid by City plus the reasonable cost of performing such act, together with a penalty thereon at the penalty rate set forth in Section 11 above from the date the costs were incurred or the act performed by City to the date they are reimbursed to City by Lessee, shall be due as additional rent not later than five (5) days after service of a written demand therefor on Lessee, including reasonably detailed documentation of the amount owed. No such payment or act shall constitute a waiver of Default or of any remedy for Default or render City liable for any loss or damage resulting from any such act. (d) Waiver of Rights. Lessee hereby waives any right of redemption or relief from forfeiture under California Code of Civil Procedure Sections 1174 or 1179, or under any other present or future law, in the event Lessee is evicted or City takes possession of the Premises by reason of any Default by Lessee hereunder. (e) Other Rights of City. No act of City, including, without limitation, City's entry on the Premises, efforts to relet the Premises, or maintenance of the Premises, shall be construed as an election to terminate this Lease unless a written notice of 28 19-8109/217202 such intention is given to Lessee by City or unless the termination thereof is decreed by a court of competent jurisdiction. Notwithstanding if City elects to continue the Lease in full force and effect after a Default by Lessee and to relet the Premises, City may at any time after such reletting elect to terminate this Lease for any such Default. SECTION 37. CUMULATIVE REMEDIES The remedies given to City in this Lease shall not be exclusive but shall be cumulative and in addition to all remedies now or hereafter allowed by law or elsewhere provided in this Lease. City shall have the right to exercise any other right or remedy which City may have at law or in equity including, without limitation, City's rights under the unlawful detainer laws. SECTION 38. WAIVER OF DEFAULT The waiver by City of any Default by Lessee of any of the provisions of this Lease shall not constitute a continuing waiver or a waiver of any subsequent Default by Lessee either of the same or another provision of this Lease. SECTION 39. CITY'S DEFAULTS/LESSEE'S REMEDY In the event City fails to perform any material obligation of City under the Lease within ninety (90) days after receiving written notice from Lessee specifying the nature of such default, or, if the nature of City's obligation is such that more than ninety (90) days are required for its performance, if City fails to commence such performance within such ninety (90) day period and thereafter diligently prosecute the same to completion, then City shall be in default of this obligation. If City's default materially interferes with Lessee's use of the Premises for its intended purpose, Lessee shall have the option to terminate the Lease by giving City at least sixty (60) days' written notice of its intent to terminate. In such a situation, Lessee must still comply with all of its obligations, liabilities, duties 29 19-8109/217202 and responsibilities under the Lessee Agreement, including, without limitation, paying any Rent due up to the time of termination and surrendering the Premises pursuant to Sections 51 and 52 below. This remedy of termination is Lessee's sole and exclusive remedy for a default by City. SECTION 40. CONSENT When City's consent/approval is required under this Lease, its consent/approval for one transaction or event shall not be deemed to be a consent/approval to any subsequent occurrence of the same or any other transaction or event. SECTION 41. HOLDOVER Should Lessee hold over and continue in possession of the Premises after expiration or termination of this Lease, with or without the express prior written consent of City, Lessee's continued occupancy of the Premises shall constitute a month-to-month tenancy, subject to all the terms and conditions of this Lease, at a monthly rent of one hundred ten percent (110%) of the previous calendar year's annual Rent divided by twelve (12) (or the average monthly Rent for all months Lessee owned/operated the Concession if Lessee has owned/operated the Concession for less than one (1) year) or that month's actual Rent, whichever is greater, and shall not constitute a renewal or extension of the Lease term. SECTION 42. WAIVER OF CLAIMS Lessee hereby waives any claim against City, its officers, elected or appointed officials, employees, agents or volunteers for damage or loss caused by any suit or proceeding directly or indirectly attacking the validity of this Lease, or any part thereof, or caused by any judgment or award in any suit or proceeding declaring this Lease null, void or voidable, or delaying the Lease or any part thereof from being carried out. 30 19-8109/217202 SECTION 43. INSPECTION OF PREMISES Upon at least twenty-four (24) hours advance written, verbal or electronic notice given by City to Lessee, Lessee shall permit City or City's agents, representatives or employees to enter the Premises at all reasonable times for the purpose of inspecting, investigating and surveying the Premises to determine whether Lessee is complying with the terms of this Lease and for the purpose of doing other lawful acts that may be necessary to protect City's interest in the Premises or to perform City's duties under this Lease. City shall make quarterly physical inspections of the Leased Premises and may direct that interior maintenance or outdoor painting repairs are to be performed where such work is necessary to protect the Premises or to provide a clean, attractive and well-maintained premise. Lessee shall perform those maintenance and repairs which they are responsible for within thirty (30) calendar days. City also shall have the right in its sole discretion to do any and all work of any nature necessary for the preservation, maintenance and operation of property owned, controlled or occupied by City. Lessee shall be given reasonable notice when such work becomes necessary, and Lessee shall adjust the operation of the Concession in such a manner that City may proceed expeditiously. SECTION 44. RESERVED SECTION 45. PHOTOGRAPHY Lessee acknowledges and agrees that City may grant permits to third parties engaged in the production of still and motion pictures and related activities to take photographs or videos of or on the Premises when such permission shall not interfere with the primary business of Lessee, all without providing Lessee with notice or requiring consent by Lessee. 31 19-8109/217202 SECTION 46. HAZARDOUS SUBSTANCES Lessee represents and warrants that its use or occupation of the Premises shall not generate any Hazardous Substance (as defined below in this Section), and it shall not store or dispose on the Premises nor transport to or over the Premises any Hazardous Substance during the entire term of this Lease or any renewals or extensions thereof or during any holdover period. The foregoing restrictions shall not be deemed to restrict or prohibit the use by Lessee of ordinary cleaning products as customarily used in Lessee's ordinary course of business at the Concession, provided that Lessee complies with all provisions of law as to the use, storage and disposal of such products. Lessee further agrees to clean up and remediate any such Hazardous Substance on the Premises, and agrees to protect, defend, indemnify and hold harmless City, its officers, elected or appointed officials, employees, agents and volunteers from and against any and all claims, damages, losses, expenses, judgments, demands and defense costs (including, without limitation, costs and fees of litigation (including arbitration) of every nature or liability of any kind or nature) arising out of or in connection with any such Hazardous Substance and any damage, loss, or expense or liability resulting from any such Hazardous Substance including, without limitation, all attorney's fees, costs and penalties incurred as a result thereof except any release caused by the sole negligence or willful misconduct of City. Lessee will conduct all defense at its sole cost and expense and City shall approve selection of Lessee's counsel. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as limitation upon the amount of indemnification to be provided by Lessee. "Hazardous substance" shall be interpreted broadly to mean any substance or material defined or designated as a hazardous or toxic waste, hazardous or toxic material, hazardous or toxic or radioactive substance, or other similar term, by any Federal, State or local 32 19-8109/217202 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 Lessee and its employees shall not discriminate because of race, religion, color, ancestry, sex, age, national origin or physical handicap against any person by refusing to furnish such person any accommodation, facility, rental, service or privilege offered to or enjoyed by the general public. Nor shall Lessee or its employees publicize the accommodation, facilities, rentals, services or privileges in any manner that would directly or inferentially reflect upon or question the acceptability of the patronage of any person because of race, religion, color, ancestry, sex, age, national origin or physical handicap. In the performance of this Lease, Lessee shall not discriminate against any employee or applicant for employment, because of race, religion, color, ancestry, sex, age, national origin or physical handicap. Lessee shall take affirmative action to ensure that applicants are employed and that employees are treated during employment, without regard to their race, religion, color, ancestry, sex, age, national origin or physical handicap. Such action shall include, without limitation, the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including, without limitation, apprenticeship. Lessee shall post in conspicuous places, available to all employees and applicants for employment, notices setting forth the provisions of this Section. 33 1 9-8 1 09/2 1 7202 Lessee shall permit access to its records of employment, employment advertisements, application forms, and other pertinent data and records by City, the State Fair Employment Practices Commission or any other agency with jurisdiction over these matters, for the purpose of investigation to ascertain compliance with this Section. City may determine a violation of this Section to have occurred upon receipt of a final judgment having that effect from a court in an action to which Lessee was a party, or upon receipt of a written notice from the State Fair Employment Practices Commission or other government agency with jurisdiction over these matters that it has investigated and determined that Lessee has violated the Fair Employment Practices Act or other applicable discrimination law and has issued an order which has become final, or obtained an injunction. In the event of violation of this Section, City shall have the right to terminate this Lease, and any loss of revenue sustained by City by reason thereof shall be borne and paid for by Lessee, at its sole cost and expense. SECTION 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, Lessee must first obtain written City approval prior to submitting any request for approval to the Alcohol Beverage Commission. SECTION 49. LIENS Lessee shall keep the Premises free and clear from any and all liens, including, without limitation, mechanics' or materialmens' liens, claims and demands for work performed, 34 19-8109/217202 materials furnished, or operations conducted on or about the Premises or by reason of any use or occupancy by Lessee, or any person claiming under Lessee. When applicable, Lessee shall cause a notice of nonresponsibility to be posted and recorded pursuant to California Civil Code Section 3094. SECTION 50. INSTALLATION AND REMOVAL OF TRADE FIXTURES Lessee shall have the right during the entire term of this Lease or any renewals or extensions thereof, at Lessee's sole cost and expense, to install or affix in, to, or on the Premises any machinery, equipment and other objects (the "Trade Fixtures"), for use in Lessee's trade or business as Lessee may deem advisable. Any and all such Trade Fixtures that can be removed without structural damage to the Premises shall, subject to Section 56 below, remain the property of Lessee and may be removed by Lessee at any time prior to the expiration or termination of this Lease, provided Lessee repairs any damage caused by the removal. Upon execution of this Lease and every anniversary, Lessee shall provide City with a list of all Trade Fixtures on the Premises. SECTION 51. DESTRUCTION Should the Premises be partially destroyed, this Lease shall continue in full force and effect, and Lessee, at Lessee's sole cost and expense, shall complete the work of repairing and restoring the Premises to their prior condition providing such work can be accomplished under all applicable governmental laws and regulations within ninety (90) days or the remaining life of the lease, whichever is less. Should the Premises be so far destroyed that in the parties' reasonable judgment they cannot be repaired or restored to their former condition within ninety (90) days or the remaining life of this lease, whichever is less, then a party shall give the other party notice of such determination in writing and each party may, in that party's sole discretion: 35 1 9-8 1 09/2 1 7202 (a) Continue this Lease in full force and effect in which case Lessee shall repair and restore, at Lessee's sole cost and expense, the Premises to their former condition; or (b) Terminate this Lease by giving the other party thirty (30) days' written notice of such termination within sixty (60) days after the date that a party gives the other party notice that the Premises cannot be repaired or restored to their former condition within ninety (90) days or the remaining life of the lease, whichever is less. In the event that either party elects to terminate this Lease, the entire amount of any insurance proceeds (excluding such proceeds for Trade Fixtures, personal property, whether or not owned or leased by Lessee and trade inventory, but only to the extent that the insurance proceeds specifically cover those items) shall be paid to City. The proceeds of any such insurance payable to City may be used, in the sole discretion of City, for rebuilding or repair as necessary to restore the Premises or for any other such purpose(s) as City sees fit. In addition, if a party elects to terminate the Lease, all parties must still comply with all of its obligations, liabilities, duties and responsibilities under the Lease, including, without limitation, paying any Rent due up to the time of termination and surrendering the Premises, pursuant to Sections 55 and 56 below. In the event of the damage or destruction of Improvements, Trade Fixtures and/or personal property located on the Premises not giving rise to a termination of this Lease, Lessee shall, at its sole cost and expense, replace and repair the same as soon as reasonably possible to permit the prompt continuation of Lessee's business at the Premises, unless such damage or destruction is caused by the City. 36 19-8109/217202 SECTION 52. NO ABATEMENT OF RENT DURING REPAIR WORK The Rent shall not be abated for the time Lessee is prevented from using the whole or a portion of the Premises, unless such loss of time is caused by City. In addition, Lessee shall not be excused from the payment of taxes, insurance or any other obligations for the time Lessee is prevented from using the whole or a portion of the Premises, unless such lass is caused by City. SECTION 53. EMINENT DOMAIN If, during the term of this Lease or any renewals or extensions thereof or during any holdover period, City's real property (whether held by City in fee simple, an easement interest or otherwise) and/or the Premises is taken in eminent domain by an entity other than City, the entire award (that is, all forms) of compensation, other than as provided herein, shall belong to and be paid to City. In the event of condemnation, Lessee shall be entitled to an award of only the following forms of compensation, if any, from the condemning authority: compensation for loss of business profits, business goodwill; compensation for the value of any of Lessee's Trade Fixtures; compensation for the value of any of Lessee's personal property; compensation for the value of any of Lessee's trade inventory; and compensation for relocation benefits as authorized by law. All other forms of compensation, such as, for example, but not by way of limitation, any bonus value of Lessee's interest in this Lease, shall belong to and be paid to City. In the event of condemnation, unless Lessee is allowed by the condemning authority to continue its operations on the Premises, the Lease shall terminate on the earliest of the following dates: the date the condemning authority obtains a prejudgment order for possession; the date title to the Premises vests in the condemning authority; or the date when Lessee is required by the condemning authority to cease its operations. 37 1 9-8 1 09/2 1 7202 SECTION 54. RELOCATION AND ASSISTANCE, BUSINESS GOODWILL AND LEASEHOLD BONUS VALUE Upon expiration or termination of this Lease for any reason, but excluding eminent domain, Lessee shall not be entitled to any relocation rights or benefits, business goodwill or bonus value attributable to this Lease, and Lessee expressly waives any claim to the same. SECTION 55. QUITCLAIM DEED Upon expiration or termination of this Lease as provided for herein, Lessee shall execute and deliver to City within thirty (30) days thereof, a good and sufficient quitclaim deed to the rights and interests of Lessee in the Premises and the Lease. Should Lessee fail or refuse to deliver to City this quitclaim deed, City may record in the Orange County Recorder's Office a written notice reciting the failure of Lessee to execute and deliver this quitclaim deed. The date of recordation of this notice by City shall be conclusive evidence against Lessee and all persons claiming under Lessee of the expiration or termination of this Lease and any rights or interests of Lessee in the Premises and/or the Lease. Lessee also agrees to execute, acknowledge, and deliver to City any other instrument requested by City as necessary to perfect City's right, title and interest to the Premises. SECTION 56. RESTORATION AND SURRENDER OF PREMISES/TITLE TO IMPROVEMENTS TO THE BUILDING On expiration or termination of this Lease, Lessee shall, without compensation to Lessee, promptly surrender and deliver the Premises to City in as good condition as such were at the commencement date of this Lease, reasonable wear and tear excepted. Lessee also shall, without compensation to Lessee, surrender all Improvements to the building to City in good condition and repair, ordinary wear and tear excepted, free and clear of all liens and encumbrances. Lessee 38 1 9-8 1 09/2 1 7202 also shall remove all Trade Fixtures, personal property and trade inventory. City may in its sole discretion accept all or any portion of the Premises, as then improved with Improvements and no sum whatsoever shall be paid to Lessee or any other person; or City may require Lessee to remove all or any portion of such Improvements to the building, at Lessee's own risk and cost and expense; or City may itself remove or have removed all or any portion of such Improvements to the building, at Lessee's own risk and cost and expense. If required by City to do so, in removing any such Improvements to the building, Lessee shall restore the Premises as nearly as possible to the conditions existing prior to their installation or construction. All such removal and restoration shall be to the satisfaction of City and shall be completed within thirty (30) days of the expiration or termination of this Lease; provided, however, that Lessee shall be considered a holdover tenant (pursuant to Section 41 above) after expiration or termination of the Lease until the time Lessee completes this removal and restoration work, including, without limitation, the removal of any Trade Fixtures, personal property and trade inventory left on the Premises. In addition, any Trade Fixtures, personal property or trade inventory left on the Premises after the. expiration of this 30-day period, regardless of cause, shall be deemed abandoned by Lessee. In City's sole discretion, it may choose to do one or more of the following: (1) take any or all of such Trade Fixtures, personal property and trade inventory as City property; (2) store any or all of such Trade Fixtures, personal property and trade inventory in a public warehouse or other location at the sole cost, expense and risk of Lessee, and for the account and in the name of Lessee; or (3) dispose of any or all of such Trade Fixtures, personal property and trade inventory without any liability to Lessee. In addition, Lessee's indemnification, hold harmless and defense obligations set forth in this Lease shall apply to such 39 19-8109/217202 Trade Fixtures, personal property and/or trade inventory, and to City's actions with respect thereto. SECTION 57. FORCE MAJEURE - UNAVOIDABLE DELAYS Should the performance of any act required by this Lease to be performed by either City or Lessee be prevented or delayed by reason of an act of God, strike, lockout, labor troubles, inability to secure materials, restrictive governmental laws or regulations, or any other cause except financial inability not the fault of the party required to perform the act, the time for performance of the act shall be extended for a period equivalent to the period of delay and performance of the act during the period of delay shall be excused. Provided, however, that nothing contained in this Section shall excuse the prompt payment of the Rent or other consideration by Lessee as required by this Lease or the performance of any act rendered difficult solely because of the financial condition of the party, City or Lessee, required to perform the act. SECTION 58. CITY'S OPTION TO CLOSE THE PREMISES City may close the Premises without liability and without advance notice to Lessee therefor at any time as City in its sole discretion deems necessary for the protection of life, limb or property, or for public health, safety or welfare purposes, or other City activities or special events, or upon reasonable notice to effect any repair, remodeling or rebuilding deemed necessary by City in its sole discretion. City retains the right to close the or the Premises or pier for emergencies without any notice to Lessee, for any extent of time and without compensation or credit except Lessee may be provided rent credit for loss of revenue at the discretion of the City Manager or his or her designee. In those cases where there is a City-planned pier closure, 40 19-8109/217202 Lessee will be given a two (2) business week notice, and during the time of such closure the rent shall be abated accordingly. SECTION 59. DELIVERIES OF SUPPLIES The City Manager or his or her designee of City may establish the days and times deliveries of supplies may be made and advise Lessee in writing thereof. SECTION 60. EMPLOYEE PARKING All employee parking shall comply with Huntington Beach Municipal Code Section 13.08.290(d) and (g). SECTION 61. CONFLICT OF INTEREST Lessee warrants and covenants that no official or employee of City, nor any business entity in which an official or employee of City is interested, (1) has been employed or retained by Lessee to solicit or aid in the procuring of this Lease; or (2) shall be employed by Lessee in the performance of this Lease without the immediate written divulgence of such fact to City. In the event City determines that the employment of any such official, employee or business entity is not compatible with such official's or employee's duties as an official or employee of City, Lessee, upon request of City, shall terminate such employment immediately. For breaches or violation of this Section, City shall have the right both to terminate this Lease without liability and, in its discretion, recover the full amount of any such compensation paid to such official, employee or business entity. No official or employee of City shall have any financial interest in this Lease in violation of the applicable provisions of the California Government Code. SECTION 62. 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 41 19-8109/217202 manner, and shall be sufficiently given and deemed received when (a) personally delivered; or (b) three (3) business days after being sent via United States certified mail —return receipt requested; or (c) one (1) business day after being sent by reputable overnight courier, in each case to the addresses specified below; provided that City and Lessee, by notice given hereunder, may designate different addresses to which subsequent notices, certificates or other communications will be sent: CITY: LESSEE: City of Huntington Beach Let' Go Fishing & Surf City 2000 ATTN: City Manager Snack Bar, LLC Main Street, P.O. Box 190 11734 Forest Grove Street Huntington Beach, CA 92648 El Monte, CA 91732 SECTION 63. COMPLIANCE WITH LAWS Lessee, at its sole cost and expense, shall comply with all statutes, ordinances, regulations and requirements of all governmental entities, including, without limitation, Federal, State, county or municipal, relating to Lessee's use and occupancy of the Premises and/or operation of the Concession whether such statutes, ordinances, regulations and requirements be now in force or hereinafter enacted. This Lease is expressly subject to the laws, regulations and policies of City. Lessee shall deliver to City a copy of any notice from any governmental entity received by Lessee regarding any alleged violation of law regarding the Lease, Premises or the Concession or from any person allegedly entitled to give notice under any conditions, covenants, or restrictions binding or affecting the Premises. The judgment of any court of competent jurisdiction, or the admission by Lessee in a proceeding brought against Lessee by any government entity, that Lessee has violated any such statute, ordinance, regulation or requirement shall be conclusive as between City and Lessee and shall be grounds for termination of this Lease by City. 42 19-8109/217202 SECTION 64. INTERPRETATION OF THIS LEASE The language of all parts of this Lease shall in all cases be construed as a whole, according to its fair meaning, and not strictly for or against any of the parties. If any provision of this Lease is held by an arbitrator or court of competent jurisdiction to be unenforceable, void, illegal or invalid, such holding shall not invalidate or affect the remaining covenants and provisions of this Lease. No covenant or provision shall be deemed dependent upon any other unless so expressly provided here. As used in this Lease, the masculine or neuter gender and singular or plural number shall be deemed to include the other whenever the context so indicates or requires. Nothing contained herein shall be construed so as to require the commission of any act contrary to law, and wherever there is any conflict between any provision contained herein and any present or future statute, law, ordinance or regulation contrary to which the parties have no right to contract, then the latter shall prevail, and the provision of this Lease which is hereby affected shall be curtailed and limited only to the extent necessary to bring it within the requirements of the law. SECTION 65. SURVIVAL Terms and conditions of this Lease, which by their sense and context survive the expiration or termination of this Lease, shall so survive. SECTION 66. MODIFICATION No waiver or modification of any language in this Lease shall be valid unless in writing and duly executed by both parties. SECTION 67. SECTION HEADINGS The titles, captions, section, paragraph and subject headings, and descriptive phrases at the beginning of the various sections in this Lease are merely descriptive and are included solely 43 19-8109/217202 for convenience of reference only and are not representative of matters included or excluded from such provisions, and do not interpret, define, limit or describe, or construe the intent of the parties or affect the construction or interpretation of any provision of this Lease. SECTION 68. BROKERS Each party warrants to and for the benefit of the other that it has had no dealings with any real estate broker or other agent (attorneys excepted) in connection with the negotiation or making of this Lease. SECTION 69. INDEPENDENT CONTRACTOR Lessee is, and shall be, acting at all times in the performance of this Agreement as an independent contractor herein and not as an employee of City. Lessee shall secure at its own cost and expense, and be responsible for any and all payment of all taxes, social security, state disability insurance compensation, unemployment compensation and other payroll deductions for Lessee and its officers, agents and employees and all business licenses, if any, in connection with the Lease and/or any services to be performed hereunder. SECTION 70. ATTORNEY'S FEES In the event suit is brought by either party to construe, interpret and/or enforce the terms and/or provisions of this Lease or to secure the performance hereof, each party shall bear its own attorney's fees, such that the prevailing party shall not be entitled to recover its attorney's fees from the non-prevailing party. SECTION 71. LEGAL SERVICES SUBCONTRACTING PROHIBITED Lessee and City agree that City is not liable for payment of any subcontractor work involving legal services, and that such legal services are expressly outside the scope of services contemplated hereunder. Lessee understands that pursuant to Huntington Beach City Charter 44 19-8109/217202 Section 309, the City Attorney is the exclusive legal counsel for City; and City shall not be liable for payment of any legal services expenses incurred by Lessee. SECTION 72. GOVERNING LAW This Lease shall be governed and construed in accordance with the laws of the State of California. SECTION 73. DUPLICATE ORIGINAL The original of this Lease and one or more copies hereto have been prepared and signed in counterparts as duplicate originals, each of which so executed shall, irrespective of the date of its execution and delivery, be deemed an original. Each duplicate original shall be deemed an original instrument as against any party who signed it. SECTION 74. ENTIRETY The parties acknowledge and agree that they are entering into this Lease freely and voluntarily following extensive arm's length negotiations, and that each has had the opportunity to consult with legal counsel prior to executing this Lease. The parties also acknowledge and agree that no representations, inducements, promises, agreements or warranties, oral or otherwise, have been made by that party, or anyone acting on that party's behalf, which are not embodied in this Lease, and that that party has not executed this Lease in reliance on any representation, inducement, promise, agreement, warranty, fact or circumstance not expressly set forth in this Lease. The Lease, and the attached exhibits, contain the entire agreement between the parties respecting the subject matter of this Lease, the Premises, the leasing of the Premises to Lessee, or the lease term created under this Lease and supercede all prior understandings and agreements, whether oral or in writing between the parties respecting the subject matter hereof. 45 19-8109/217202 IN WITNESS WHEREOF, the parties hereto have caused this Lease to be executed by and through their authorized officers the day, month and year first above written. Each undersigned represents and warrants that its signature hereinbelow has the power, authority and right to bind their respective parties to each of the terms of this Agreement, and shall indemnify CITY fully for any injuries or damages to CITY in the event that such authority or power is not, in fact,held by the signatory or is withdrawn. LET'S GO FISHING and SURF CITY CITY OF HUNTINGTON BEACH, a SNACK BAR,LLC municipal corporation of the State of California By: Mart I a A K•3O k n S oil _ Mayor print name ITS: (ircle one)C t City Clerk AND INITIATED AND APPROVED: By: print name City Manager ITS: (circle one)Secretary/Chief Financial Officer/Asst. Director of Economic Development Secretary-Treasurer REVIEWED AND APPROVED: APPROVED AS TO FORM: City Manager City AttorneyAW COUNTERPART 46 19-8109/217202 IN WITNESS WHEREOF, the parties hereto have caused this Lease to be executed by and through their authorized officers the day, month and year first above written. Each undersigned represents and warrants that its signature hereinbelow has the power, authority and right to bind their respective parties to each of the terms of this Agreement, and shall indemnify CITY fully for any injuries or damages to CITY in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. LET'S GO FISHING and SURF CITY CITY OF HUNTINGTON BEACH, a SNACK BAR, LLC municipal corporation of the State of California .t 1 By: yor print name ITS: (circle one)Chairman/President/Vice President City Clerk A0101 / AND fI)TItANLAfP�PPLV!ED: By: print name Cl y anager ITS: (circle one)Secretary/Chief Financial Officer/Asst. Director of ECO mic Development Secretary-Treasurer VIE A �AZD: APPROVED FORM: City Manager City Attorney COUNTERPART 46 19-8109/217202 EXHIBIT "A" LOCATION MAP LET' GO FISHING/ SURF CITY SNACK BAR T Let's Go Fishing Surf City Snack liar 6 pr n fJ Exhibit"B" Quarterly Evaluation CITY OF HUNTINGTON Quarterly Evaluation SUMMARY SHEET Date Inspected: By: Representative: Area OK Needs Attention GENERAL Doors & Locks Exterior Walls Graffiti Removal Interior Walls Removal of Bird Droppings Restrooms (Plumbing) Roof Rust Si na e Trash Trim Windows Other COMMENTS: LEASE BETWEEN THE CITY OF HUNTINGTON BEACH AND MARIAN JOHNSON, DOING BUSINESS AS LET'S GO FISHING and SURF CITY SNACK BAR Table of Contents SECTION PAGE 1 Superseding of Prior Lease......................................................................................1 2 Grant of Concession on the Premises ......................................................................1 3 Reservations, Encumbrances and Rights-of-Way....................................................2 4 Time of Essence.......................................................................................................3 5 Term.........................................................................................................................3 6 Conditions of Premises as Is....................................................................................3 7 Duration of Public Facilities.....................................................................................3 8 Additions, Alterations and Removal........................................................................4 9 City's Contract Administrator..................................................................................4 10 Rent...............................................................................................................4 11 Late Charge and Penalty..........................................................................................5 12 Gross Sales Defined.................................................................................................5 13 Gross Sales Exclusions............................................................................................7 14 Books and Records ..................................................................................................7 15 Statement of Gross Sales/Audit...............................................................................9 16 Security Deposit.......................................................................................................10 17 Quality of Sales, Rentals and Services ....................................................................11 18 Indemnification, Defense and Hold Harmless Agreement......................................12 19 Workers' Compensation and Employers' Liability Insurance..................................13 20 General Public Liability Insurance ..........................................................................13 21 Property Insurance...................................................................................................14 22 Increase in Amount of General Public Liability and Property Insurance................15 23 Certificates of Insurance; Additional Insured Endorsements ..................................16 24 Insurance Hazards....................................................................................................16 25 Maintenance of Premises.........................................................................................17 26 Rent Credit...............................................................................................................19 27 Damage, Destruction or Nuisance ...........................................................................20 28 Taxes........................................................................................................................20 29 Payments of Obligations..........................................................................................21 30 Utilities and Services...............................................................................................21 31 Business License......:...............................................................................................21 32 Signs, Advertising and Approval of Name..............................................................21 33 No Assigning, Subleasing or Encumbering.............................................................22 34 Terms Binding on Successors..................................................................................24 35 Default......................................................................................................................25 36 Remedies..................................................................................................................26 i Table of Contents, continued 37 Cumulative Remedies..............................................................................................30 38 Waiver of Default ....................................................................................................31 39 City's Defaults/Lessee's Remedy.............................................................................31 40 Consent ....................................................................................................................32 41 Holdover ..................................................................................................................32 42 Waiver of Claims.....................................................................................................32 43 Inspection of Premises.............................................................................................33 44 RESERVED.............................................................................................................33 45 Photography.............................................................................................................33 46 Hazardous Substances..............................................................................................33 47 Nondiscrimination....................................................................................................34 48 Sale of Alcoholic Beverages and Entertainment Prohibited....................................36 49 Liens.........................................................................................................................36 50 Installation and Removal of Trade Fixtures.............................................................36 51 Destruction...............................................................................................................37 52 No Abatement of Rent During Repair Work...........................................................38 53 Eminent Domain......................................................................................................38 54 Relocation and Assistance, Business Goodwill and Leasehold Bonus Value.........39 55 Quitclaim Deed........................................................................................................39 56 Restoration and Surrender of Premises/Title to Improvements...............................40 57 Force Majeure - Unavoidable Delays......................................................................41 58 City's Option to Close the Premises.........................................................................42 59 Deliveries of Supplies..............................................................................................42 60 Employee Parkin 42 61 Conflict of Interest................................................................................................. 62 Notice.......................................................................................................................43 63 Compliance with Laws ............................................................................................43 64 Interpretation of this Lease ......................................................................................44 65 Survival....................................................................................................................44 66 Modification.............................................................................................................45 67 Section Headings .....................................................................................................45 68 Brokers.....................................................................................................................45 69 Independent Contractor............................................................................................45 70 Attorney's Fees.........................................................................................................45 71 Legal Services Subcontracting Prohibited...............................................................46 72 Governing Law ........................................................................................................46 73 Duplicate Original....................................................................................................46 74 Entirety 46 ii ,a O CERTIFICATE OF LIABILITY INSURANCE CAN IMM,°°"YYY' 04/25/2019 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER,AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder Is an ADDITIONAL INSURED,the pollcy(les)must have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION IS WAIVED,subject to the terms and conditions of the policy,certain policies may require an endorsement A statement on this certificate does not confer rights to the certificate holder In lieu of such endorsemen s. PRODUCER CONTACT DANIEL AUZENNE StateFarm DANIELAUZENNE PHONE 909-303-2282 FAX J8560 VINEYARD AVE STE 101 OOAIL RANCHO CUCAMONGA CA 91730 INSURE S AFFORDING COVERAGE RAW 0 INSURER A: State Farm Fire and Casualty Company 25143 INSURED INSURER B: LETS GO FISHING S SURF CITY SNACK BAR INSURERC: 21 MAIN ST INSURER D: HUNTINGTON BEACH CA 92648 INSURER INSURER P: COVERAGES CERTIFICATE NUMBER: REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES.LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR LTR TYPE OF INSURANCE POLICY NUMBER POLICY Y EXP OMITS COMMERCIAL GENERAL UASILITY EACH OCCURRENCE S 1,000,000 CLAIM84AADE ®OCCUR $ 50,000 MED EXP am S 5,000 Y Y Y 92-PA-4447-0 06/01/2019 06/01/2020 PERSONAL BAOVINJURY t 1,000,000 GEWL AGGREGATE LIMIT APPLIES PER: GENERAL AGGREGATE $ 2,000,000 POLICY PRO-JECT LOC PRODUCTS-COMPIOP AGO S 1,000.000 OTHER: NGLE S AUTOMOBILE LIABILITYLIMIT ROWEL S ANY AUTO BODILY INJURY(Per parson) S OWNED SCHEDULED BODILY INJURY(Per ecdders) S AUTOS ONLY AUTOS HIRED NON-OWNED PR6P-VffV AMA i AUTOS ONLY AUTOS ONLY s UMBRELLA LIAR ROCCUR EACH OCCURRENCE $ EXCESS LIAB C ED T FORM AGGREGATE S DED RETENTION S WORKERS COMPENSATION AND EMPLOYERS'LIABIUTY BY: ANY PROPRIETORIPARTNERIEXECUTIVE FL i—C.PTES E.L.EACH ACCIDENT S OFFICERIMEMBER EXCLUDED? WITORNEY (Mandatory In NH) E.L.DISEASE-EA EMPLOYE S n em�ss,,d�aaame under CCITY OF UNT NG ON BEACH DESCRIPTION OF OPERATIONS bL E.L.DISEASE-POLICY LIMIT S DESCRIPTION OF OPERATIONS I LOCATIONS I VEHICLES(ACORD 101.Additional Rornaft Seladtde,may be&Udwd N mme Speed Is MgW*M ADDITIONAL INSURED:CITY OF HUNTINGTON BEACH ITS OFFICERS,ELECTED OR APPOINTED OFFICIALS,EMPLOYEES,AGENTS AND VOLUNTEERS. 2000 MAIN STREET HUNTINGTON BEACH CA 92648 CERTIFICATE HOLDER CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN CITY OF HUNTINGTON BEACH ACCORDANCE WITH THE POLICY PROVISIONS. 2000 MAIN STREET AVTNQ=P_REPRESEW TTVE HUNTINGTON BEACH CA 92648 (b 198840f5*CORDt'6Rt?56AW. All rights reserved. ACORD 26(2016103) The ACORD name and logo are registered marks of ACORD 001400 132849.12 03.t8.2018 SH Policy No. 92 PA4447 0 3480—FA48 CMP-4788.1 Page 1 of 1 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. CMP-4788.1 ADDITIONAL INSURED— MANAGERS OR LESSORS OF PREMISES This endorsement modifies insurance provided under the following: BUSINESSOWNERS COVERAGE FORM SCHEDULE Policy Number: 92 PA4447 0 Named Insured: LETS GO FISHING & SURF CITY SNACK BAR LLC 11734 FOREST GROVE ST EL MONTE CA 91732-2224 Name And Address Of Additional Insured Person Or Organization: CITY OF HUNTINGTON BEACH ITS ELECTED OR APPOINTED OFFICIAL OFFICERS, EMPLOYEES & VOLUNTEERS 2000 MAIN ST / HUNTINGTN BCH CA 92648 2702 1� Location Of Premises (Part Leased To You): 21 MAIN ST HUNTINGTN BCH CA 92648-8193 1. SECTION II — WHO IS AN INSURED of SECTION II — LIABILITY is amended to include, as an additional insured, any person or organization shown in the Schedule, but only with respect to liability arising out of the ownership, maintenance or use of that part of the premises leased to you and shown in the Schedule. 2. With respect to the insurance afforded the additional insured, this insurance does not apply to: a. Any "occurrence" or offense which takes place after you cease to be a tenant in the premises shown in the Schedule. b. Structural alterations, new construction or demolition operations performed by or for that addi- tional insured. 3. Any insurance provided to the additional insured shall only apply with respect to a claim made or a "suit" brought for damages for which you are provided coverage. 4. Primary Insurance. This insurance is primary to and will not seek contribution from any other insur- ance available to an additional insured under your policy provided that the additional insured is a named insured under such other insurance. All other policy provisions apply. CMP-4788.1 1007035 148012 08-14-2014 ©,Copyright,State Farm Mutual Automobile Insurance Company,2013 Includes copyrighted material of Insurance Services Office,Inc.,with its permission. ' .• City of Huntington Beach 2000 Main Street ♦ Huntington Beach, CA 92648 (714) 536-5227 ♦ www.huntingtonbeachea.gov Office of the City Clerk Robin Estanislau, City Clerk December 16, 2019 Let's Go Fishing & Surf City Snack Bar, LLC Attn: Marian K. Johnson 11734 Forest Grove Street El Monte, CA 91732, CA 90278 Dear Ms. Johnson- Enclosed is a fully executed copy of the "Lease between the City of Huntington Beach and Let's Go Fishing and Surf City Snack Bar, LLC in the City of Huntington Beach" approved by the Huntington Beach City Council on November 4, 2019. Sincerely, Robin 'Estanislau, CIVIC City Clerk RE:ds Enclosure Sister Cities: Anjo, Japan ♦ Waitakere, New Zealand �i LEASE BETWEEN THE CITY OF HUNTINGTON BEACH AND MARIAN JOHNSON, A SOLE PROPRIETOR DOING BUSINESS/ LET'S GO FISHING AND SURF CITY SNACK BAR /f IN THE CITY OF HUNTINGTON BEACH s THIS LEASE (the "Lease") is made and entered into effective�r'' , 2019 by l and between the CITY OF HUNTINGTON BEACH, a municipal corporation of the State of California ("City") and Marian Johnson, doing business as Let's/Go Fishing and Surf City Snack Bar, a Sole Proprietor ("Lessee"). WHEREAS, City wishes to lease certain real property (the "Property"), consisting of a bait and tackle shop along with a snack shop on/he pier in the City of Huntington Beach, California, and other related improvements (cp'llectively referred to as the "Improvements"). The term "Premises" as used in this Lease sliall mean both the Property and the Improvements. Lessee desires to lease the Premises in the manner set forth below. NOW, THEREFORE, the pax#/es covenant and agree as follows: SECTION 1. SUPERSEDING OF PRIOR LEASE This Lease shall supersede and replace any existing lease agreement(s) for the Premises currently entered into by and between the parties and all supplemental agreement(s) entered into by and between the parti-es regarding the existing lease agreement(s). SECTION 2. GRANT OF CONCESSION ON THE PREMISES City, purs ant to the terms of this Lease, grants to Lessee for the purposes stated herein, the right, privilege and duty to equip, operate and maintain a bait and tackle shop along with a snack shop n the pier open to the public located on the Premises (hereinafter sometimes referred to as th "Concession"). Lessee shall not use the Premises for any other purpose or business. A map depicting the Premises is set forth in Exhibit "A", which is attached hereto and 1 \ 19-8109/217202 366 incorporated herein b this reference .e. Lessee shall not utilize the areas behind the Concession. Furthermore, Lessee shall remove any merchandise from the areas behind the Concession at the request of the City Manager or his/her designee. This Lease is not intended to confer third-party beneficiary status to anyone. / SECTION 3. RESERVATIONS ENCUMBRANCES AND RIGHTS-OF-WAY r (a) City expressly reserves a right to enter upon the Premises with as much advance written, verbal or electronic notice as possible to Less"ee for an reason associated/ Y crated with public health, safety or welfare, or for the protection of life, limb or property. In all other cases unless otherwise specifically set forth herein, City reserves the right for such entry but City shall give Lessee at least twenty-four (24) hours advance written, verbal or electronie�otice. City shall have a right g t of reasonable access to the Premises across L sse owned contro lled or occupied lands adjacent to the Premises, if any, for y purpose associated with this Lease. (c) City expressly reserves the right to lease, convey, or encumber the Premises, in rt whole or in pa , for y purpose not inconsistent or incompatible with the rights 7 or privileges of ssee under this Lease. In addition, Lessee agrees to subordinate the Lease to any existing or future City financing regarding the Premises or any portion the/f. Lessee also ag rees to cooperate and provide any documentation neces ry for City to obtain any such financing. (d) TI 's Lease is subject to pre-existing contracts, leases, licenses, easements, encumbrances and claims affecting the Premises and it is made without warranty by City of title, condition or fitness of the land for the stated or intended use. 19-8109/217202 2 367 1 SECTION 4. TIME OF ESSENCE Time shall be of the essence of this Lease and each and all of its terms, covenants or conditions in which performance is a factor. r` SECTION 5. TERM r f This Lease shall commence at 12:01 a.m. on .,1019, for a one (1) year term, which shall end at 11:59 p.m. on 2020. SECTION 6. CONDITIONS OF PREMISES AS IS The taking of possession of the Premises by' Lessee shall, in itself, constitute 7 acknowledgment that the Premises are in good and ter/table condition. Upon taking possession of the Premises, Lessee agrees to accept the Premises in their presently existing condition, "as is," and agrees that City shall not be obligated�to make any alterations ad ditions or betterments thereto. SECTION 7. DURATION OF/PUBLIC FACILITIES By entering into this Lease;City makes no stipulation p tion as to the type, size, location or duration of public facilities (ex'cluding the Premises), including, without limita tion,anon, any City parking lots to be maintained/on property owned, controlled or occupied by City. SECTION 8. ADDITIONS ALTERATIONS AND REMOVAL (a) No mgdifications, alterations or additions to the Premises, including, without limitation, construction of Improvements or changes to structural design or exterior furnishings shall be g constructed or made by Lessee without Lessee first obtaining the prior written approval of City Manager, which will not be unreasonably withheld. /19-8109/217202 3 368 (b) Except as provided under this Lease, no alteration or removal of existing Improvements on or natural features of the Premises shall be undertaken without Lessee first obtaining the prior written approval of City Manager. r� (c) Lessee's obligation to obtain City's prior written approval is separate and independent of Lessee's obligation to obtain any permits from City, such as, without limitation, a building permit. r SECTION 9. CITY'S CONTRACT ADMINISTRATOR The City Manager, or his or her designee, shall be/City's Contract Administrator for this Lease with the authority to act on behalf of City for""he purposes of this Lease, and all Cit y approvals and notices required to be given herein to"'City shall be so directed and addressed. SECTION 10. RENT Lessee agrees to pay to City as (the "Rent") for the use and occupancy of the Premises a minimum base Rent of$9,50.00 a month. The base Rent will increase on a yearly basis by a percentage equal to the/Los Angeles-Riverside-Orange County All Urban Consumer,. mer Price Index (CPI) in an amount not less than three (3) percent nor more than five (5) percent per i year. During the one y ar Lease, in those months where ten and one-half (10.5%) percent of gross receipts exceeds the monthly base Rent, Lessee shall then pay ten and one-half (10.5%) 7 percent of gross receipts as Rent instead of the base Rent. Lessee shall pay the Rent monthly to City at the City Treasurer's Office, P.O. Box 711, Huntington Beach, California, 92648, or at such other place or places as City may from time-to- time desig<n�ate by written notice delivered ered to Lessee. Lessee shall pay the Rent, which must be receive d by the City Treasurer within fifteen calendar days after the end of the month for which 19-8109/217202 4 369 the Rent is being paid, or on the next business day if the fifteenth day falls on a weekend or holiday. r�r a SECTION 11. LATE CHARGE AND PENALTY If the Rent is not received b the City Treasurer within thirty 30 calendar days after the Y y �(. ) end of the month for which the Rent is being paid, or the next business day if the thirtieth day falls on a weekend or holiday, Lessee shall pay the followingrlate charge and penalty: � g p lty. (1) a late charge of five percent (5%) shall be applied to any o tstanding balance after any payment hereunder is due but unpaid; and (2) one and a half percent (1 ''/z%) penalty per month shall be added for each month the Rent is due but unpaid.! With respect to any other payments a required p Y q ed by Lessee, a one and a half percent (1 1/2%) penalty per month shall be p added for each month such payment hereunder is due but unpaid. SECTION 12. GROSS SALES/LINED For the purpose of this Leas'e, the term "Gross Sales" shall mean the total puce of alI sales processed on site, merchandise, or services sold or rende red,ered, or equipment rented, in, on, or from the Premises by Lessee, or anyone contracting with Lessee, including, without limitation, its agents or sublessees (colectivel or individual) " » / Y y, Lessee Party(ies)"), whether wholesale or retail, whether for cash or on credit, and if on credit whether or not paid, and whether in exchange for any other product, commodity, service, commercial paper or forbearance, and shall include, without limitation, the following: (a) All revenues, receipts, commissions or proceeds from sales by Lessee Party(ies), and/or from all public telephones, vending, weighing and all other /(b) machines owned, operated, or leased to or by Lessee Party(ies) in, on, or from the Premises; 19-3109/217202 5 370 1 (b) All revenues, receipts, commissions or proceeds from sales based ;on orders .r solicited or taken, in, on, or from the Premises for merchandise, ors ervices to be r'° delivered or rendered off, or from sources outside, the Premises, including, A without limitation, all orders taken in, on, or from the` Premises although the orders may be filled elsewhere; ✓�Jf. x (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 f delivered through the Concession. (e) All revenues, receipts, commissions or proceeds made by Lessee Party(ies) or 11 their employees or others acting on their behalf for the rendition of services of any kind whatsoever, made Z on, or from the Premises. f (fl All other revenues/receipts, commissions or proceeds generated by, arising or f,. derived whatsoever from the use of the Premises or derived whatsoever from any business conducted in, on, or from the Premises. For purposes of computing the Gross Sales figure on which to calculate the Rent, the amount of Gross Sales shall start over at zero dollars on the first day of each month. SECTION 13. GROSS SALES EXCLUSIONS Gross Sales shall not include the following items, and Lessee may deduct such items from Gross Sales to the extent they have been included therein or have been included in a prior computation of Gross Sales on which the Rent has been paid 1d under this Lease to City: (a) Any sales, excise or other taxes otherwise includable in Gross Sales and which become part of the total price of merchandise or services sold or rendered, or 6 1 9-8 1 09/2 1 7202 371 equipment rented,in, on, or from the Premises where Lessee must account for and remit the taxes to the government entity or entities which impose them but only if f such taxes are added to the total price and collected from customer's; (b) Any transfer of trade inventory from the Premises to the manufacturer or supplier lA`A from whom it was obtained by Lessee; (c) Sales of Trade Fixtures (as defined in Section 50-1 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. /f f r (f) Any sales of merchandise to City employees which take place at City Hall. f (g) Any sales of merchandise City employees during special events as approved in i advance by the City Manager or his or her designee. SECTION 14. BOOKS ANb RECORDS Lessee shall keep true and accurate books and records showing all of its business transactions in separate records of account for the Concession in a manner acceptable to City, and City and/or its d sgnated representatives shall have the right, at all reasonable f L 0` g zmes, to inspect such books records including, without limitation, State of California sales or use tax returns o /r other State return records, and Lessee hereby agrees that all such records and instruments hall promptly be delivered and made available to City and/or its designated representatives within thirty (30) days of receiving written request therefor. Lessee shall furnish to City and/or its designated representatives copies of its quarterly California sales and use tax returns at the time each is filed with the State of California. 19-8109/217202 7 372 f,e The books and records shall show the total amount of Gross Sales made each calendar month in, on, or from the Premises and any exclusions listed in Section 13 above. All sales and charges shall be recorded by means of cash registers which display the amount of the transaction certifying the amount recorded. The register shall be equipped with devices'which log in daily sales totals and which shall record on tapes the transaction numbers and,sales details. At the end of each day the tape shall record the total sales for that day. Lessee agrees to maintain on the Premises, or another location subject to the prior written approval of City, all records, books of account and cash register tapes, showing, or in any way pertaining to the Gross Sales made in, on, or from the Premises during such calendar month, including, without limitation, State of California sales or use tax returns or other State tax returns, for a period of five (5) years following the close of each calendar month. f SECTION 15. STATEMENT OF.GROSS SALES/AUDIT At the time specified in Section 10 of this Lease for the payment of the Rent, Lessee shall deliver to City a true and accurate statement signed by Lessee or by an authorized employee of Lessee showing the total Gross"Sales and any exclusions listed in Section 13 above made during the preceding calendar month and the amount of the Rent then being paid calculated on such Gross Sales pursuant �to/this Lease. The acceptance by City of any monies paid to City by Lessee as the Rent, as sh wn by any statement furnished by Lessee, shall not be construed as an admission of the accuracy of the statement, or of the sufficiency of the amount of the Rent payment, and,/City shall be entitled to review the adequacy of such payment as set forth herein. By the end of each January, Lessee shall deliver to City a year-end statement showing the total amount of Gross Sales made in, on, or from the Premises in each month of the preceding year, /the/ttotal of any exclusions, the total Rent paid to City for each of those months, all with year-end 19-8109/217202 g �, 373 A 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 tappsfor the year. purportedly covered by the statement, to be audited by City or an accountant selected by City. Lessee shall, within thirty (30) days of receiving written notice of City's desire for such an audit, b' 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/opying. If the audit discloses that Gross Sales were understated and/or exclusions overstated, Lessee shall immediately pay the additional Rent, together with a penalty thereon from the date it was due at the penalty rate set forth in Section 11 above. Furthermore, Lessee shallpromptly on demand reimburse City for the full cost and expense of the audit should the auditdisclose that the questioned year-end statement r' purposely understated Gross Sales (including/an overstatement of exclusions) or the Rent by any amount greater than Two Hundred Fifty/Dollars ($250.00). City further reserves the right to examine and audit all such records, books of account and cash register an tapes at time during ✓° P y the three (3) year period followir g the expiration or termination of this Lease. In addition, City �l j shall have the right to enter upon the Premises during business hours and with two (2) hours advance written, verbal or electronic notice to Lessee to perform any audit or inspection function with respect to this Lease. Lessee, its bookkeeper and/or accountant shall respond to all questions and inquiries of City with respect�to the books, records, statements and other documentation being examined, and shall promptly/provide other further documentation as may be required by City. Y City is entitled to take ta'tements by deposition under oath of Lessee, its officers, bookkeepers and/or accountants or any person who prepared the books, records, statements and other documentation requird to be provided by Lessee under this Lease. i r' 9 f 19-8109/217202 374 1 SECTION 16. SECURITY DEPOSIT s' Lessee shall maintain at all times during the entire term of this Lease o/�r an y renewals or extensions thereof or during any holdover period, a security deposit with/ ity in a sum of not less than Two Thousand Five Hundred Dollars ($2,500.00) to guarantee all of Lessee's obligations, liabilities, duties and responsibilities under the Lease,/including,g ncludin , without limitation � the repair and maintenance of the Premises as provided herein�/Such deposit shall be in the form of a cash bond or an assignment of certificate of deposit (The "CD") or savings account to City, and shall be provided to the City Treasurer. The form of any such security deposit shall be approved by the City Attorney and the City Treasurer. No interest shall accrue on cash deposits to the benefit of Lessee, but interest shall accrue on a CD or savings account and shall be paid to r Lessee under the terms of the CD or savings account. Lessee shall send a copy of each renewal of the CD to the City Treasurer to ensure that City has the records of each active deposit account. SECTION 17. UALITY OF SALES RENTALS AND SERVICES VICES Lessee, at its sole cos and expense, shall equip, operate, manage and maintain the Premises and Concession d shall keepthe equipped same q pped and maintained in a manner acceptable to City duri ng the entire term of this Lease or during any holdover period. It is the intent of City that t services be r p ov>ded 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 me et eet such needs, City may require Lessee to make such changes requested by City. Lessee shall not use or permit the Premises to be used, in whole 1 or in p/rt�, during the entire term of this Lease or any renewals or extensions thereof or during any h6dover period for any purpose other than as herein set forth, without the prior written consent of City. 19-8109/217202 10 375 Lessee shall only sell or rent fishing rods, tackle, bait, snack/water and sporting goods/equipment on the premises as approved by the City Manager or his or her designee and related merchandise at the bait and tackle shop along with the snack shop. Lessee shall require all of its employees working on the Premises to wear identification tags displaying their first name. The bait and tackle shop along with the snack shop shall be in operati I n for a minimum of three hundred and fifty (350) days during the calendar year and for a minimum of ( eight 8) hours g a day. The minimum number of operating days and hours may be modified due to weather conditions or unforeseen events. An modifica i -7 y ton to this number of days must be approved in advance in writing by the City Manager or his or her designee. Except as permitted in advance in writing by City, all foods and beverages shall be/ g sold in disposable paper or plastic containers. No pull/t/op cans or Styrofoam containers are to be vended or dispensed from the Premises un pre-approved in writing b City. p g y y. Lessee, wherever feasible, shall eliminate the use �of non-recyclable containers and plastics. City may from time to time review the items sol ' i and containers or utens ils is used or dispensed by Lessee. City reserves the right to prohibit the sale or use of non-recyclable containers or plastics. City in its sole discretion reserves the right to prohibit Lessee's / g P 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/ p p public, inappropriate for sale, provision or rental by the Concession, or of inferior quality. SECTION 88. INDEMNIFICATION DEFENSE AND HOLD HARMLESS AGREEMENT Lesseehereb agrees g rees to protect, defend, indemnify and hold harmless City, its officers, elected or, officials, employees, / a gents and volunteers from and against any and all clai , damages, losses, expenses, judgments, demands and defense costs (including, without 11 19-8109/217202 376 AF, f limitation, costs and fees of litigation (including arbitration) of every nature or liability of any kind or nature) arising out of or in connection with (1) the use or occupancy of the Premises by Lessee, its officers, employees or agents, or (2) the death or injury of any person or the damage ,r to property caused by a condition of the Premises, or (3) the death or injury of any person or the damage to property caused by any act or omission of Lessee, its officers, employees or agents, or (4) any failure by Lessee to keep the Premises in a safe condition, or (5) Lessee's (or Lessee's agents and/or sublessees, if any) performance of this Lease or its failure to comply with any of its obligations contained in this Lease by Lessee, its officers, agents or employees except such loss or damage which was caused by the sole negligence or willful misconduct of City. Le ssee essee shall hold all Trade Fixtures, personal property and tra'de inventoryon the Premises sat the sole risk of Lessee and save City harmless from any loss/or damage thereto by any cause whatsoever, except such loss or damage which was caused/by y the sole negligence or willful�� misconduct of City. Lessee will conduct all defense at its sole cost and expense and City shall approve selection of Lessee's counsel. This indemnity/ hall apply to all claims and liability � y regardless of whether any insurance policies are applicable. The policy limits do not act as limitation upon the amount of indemnification to be provided by Lessee. SECTION 19. WORKERS' COMPENSATION AND EMPLOYERS' LIABILITY INSURANCE Lessee c owledges awareness of Section 3700 et seq. of the California Labor Code, which requires every employer to be insured against liability for workers' compensation. Lessee covenants that it shall comply with such provisions prior to the commencement of this Lease. Lessee shall obtain and furnish to City workers' compensation and employers' liability insurance in amounts not less than the State statutory limits. Lessee shall require all sublessees and 19-8109/217202 12 377 contractors to provide such workers' compensation and employers' liability insurance for1all of the sublessees' and contractors' employees. Lessee shall furnish to City a certificate of waiver of subrogation under the terms of the workers' compensation and employers' liability insurance and Lessee shall similarly require all sublessees and contractors to waive subrogation. SECTION 20. GENERAL PUBLIC LIABILITY INSURANCE . In addition to the workers' compensation and employers'?Iiability insurance and Lessee's covenant to defend, hold harmless and indemnify City, Lessee shall obtain and furnish to City, a policy of general public liability insurance, including motor vehicle coverage against any and all claims arising out of or in connection with the Premises. This policy shall indemnify Lessee, its officers, employees and agents, while acting within the scope of their duties, against any and all claims arising out of or in connection with the Premises, and shall provide coverage in not less than the following amount: combined single limit bodily injury and proper ty damage, including products/completed operations liability/and blanket contractual liability, of One Million Dollars ($1,000,000.00) per occurrence.,, ccurrence. 'If coverage is provided under a form which include s es 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, p Y 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 y pp able to the Lease shall be deemed excess coverage and that Lessee's insurance shall be primary. Under no circumstances shall said above-mentioned insurance contain a self-insured retention, or/a"deductible" or any other similar form of limitation on the required coverage. f r 19-8109/217202 13 378 SECTION 21. PROPERTY INSURANCE Lessee shall provide before commencement of this Lease and shall obtain and furnish to City, at Lessee's sole cost and expense, property and fire insurance with extended coverage endorsements thereon, by a company acceptable to City authorized to conduct insurance business in California, in an amount insuring for the full insurable value ofr all Improvements, Trade Fixtures, personal property whether or not owned or leased by Lessee, and all trade inventory in F or on the Premises against damage or destruction by fire, thef Or the elements. This policy shall contain a full replacement cost endorsement naming Lessee as the insured and shall not contain a coinsurance penalty provision. The policy shall also contain an endorsement naming City as an Additional Insured. The policy shall contain a special endorsement that such proceeds shall be used to repair, rebuild or replace any such/Improvements, Trade Fixtures, personal property ff whether or not owned or leased by Lessee eand 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 orsleased by Lessee, and trade inventory, but only to the extent .rl�. 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 51 (Destruction) below, and either party elects to terminate the Lease, the entire'amount of any insurance proceeds (excluding such proceeds for Trade Fixtures, personal`property whether or not owned or leased by Lessee and trade inventory, but 1 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. '1 9-8 1 09/2 1 7202 14 a 379 This policy shall also contain the following endorsements: (a) The insurer shall not cancel or reduce the insured's coverage without (30) i days prior written notice to City; f (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 L'ase. 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 22. INCREASE IN AMOUNT OF fGENERAL PUBLIC LIABILITY AND PROPERTY INSURANCE r 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 20 above and/or property f insurance coverage in Section 21 above at that time is not adequate, Lessee shall increase the f insurance coverage as reasonably,required by City. SECTION 23. CERTIFICATES OF INSURANCE; ADDITIONAL INSURED ENDORSEMENTS Prior to commencement of this Lease, Lessee shall furnish to City certificates of insurance subject to.approval of the City Attorney evidencing the foregoing insurance coverages as required by this Lease; these certificates shall: (a) provide the name and policy number of each carrier and policy; (b) shall state that the policy is currently in force; and (c) shall promise to provide that such policies shall not be canceled or modified without thirty (30) days' prior written notice of City; however ten (10) 15 19-8109/217202 f 380 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 21 above. i r Lessee shall maintain the foregoing insurance coverages in force,.during the entire term of the Lease or any renewals or extensions thereof or during any holdover period. The requirement for carrying the foregoing insurance coverages shall not derogate from Lessee's defense, hold harmless and indemnification obligations as set forth in this Lease. City f 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. Lessee shall pay, in aprompt and timely manner, the premiums on all insurance hereinabove required. SECTION 24. INSURANCE HAZARDS Lessee shall not commit or permit the commission of any acts on the Premises nor use or permit the use of the Premises in any manner that will increase the existing rates for, or cause the �t cancellation of any liability, property, or other insurance policy for the Premises or required by this Lease. Lessee shall, r at/its sole cost and expense, comply omply with all requirements of an Y insurance carrier providing any insurance policy for the Premises or required by this Lease necessary for the continued maintenance of these policies at reasonable rates. i SECTION 2' . MAINTENANCE OF PREMISES. TENANT IMPROVEMENTS r� City's maintenance responsibilities of the Premises shall be limited to maintaining all sewers and drain lines, and roofs repairs. Except as set forth in the preceding sentence, or in r Section26, Lessee agrees to maintain the Premises in good order and repair, at Lessee's sole cost and expense, during the entire term of this Lease or any renewals or extensions thereof or during I any holdover period, pursuant to the City's maintenance standards. A copy of the quarterly f., 19-8109/217202 16 381 Aff 9 evaluation summary sheet setting forth the City's maintenance checklist is attached/as'Exhibit LRI and incorporated herein by this.reference. Except as provided above, Lessee, at its sole cost and expense, shall perform any maintenance and repairs including, without limitation, facility maintenance on the Premises. ��� Lessee's obligation includes, without limitation, maintaining and operating the Premises t" 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 future4aws, general rules or regulations of any governmental authority now, or at any time during the entire term of this Lease or any renewals or extensions thereof or during any holdover period, in force, relating to sanitation or public health, safety or welfare, or for the protection of life, limb or property; and Lessee shall at all times faithfully obey and comply with all laws, rules and regulations applicable thereto. Lessee shall be responsible for maintenance of the mechanical door unless the failure of the door is caused by environmental factors, the determination of which is to be made by the City Manager or his or her designee or his or her designee. Lessee, at its sole cost and expense, shall remedy without delay any defective, dangerous or unsanitary condition(s) caused by Lessee or anyone related thereto. L ssee shall maintain ADA access around the entire building. Lessee shall paint, stain or seal the Premises' exterior surfaces a minimum of every three (3) years, unless City determines in its sole discretion that such work shall be done on a more frequent basis./ All exterior metal surfaces, except the roof, shall be painted with rust resistant paint no leas than once every other year. Any and all graffiti on the Premises may be removed by Les 11 sor, at its sole cost and expense. Lessee shall provide Lessor notice of the graffiti within forty-eight (48) hours of Lessee becoming aware of such graffiti. In addition, with or without notice from City, Lessee shall, at its sole cost and expense, repair and/or replace any broken 19-8109/217202 17 382 glass within forty-eight (48) hours of its becoming broken, regardless of cause, except ..by fault of City. Except as provided above for graffiti and broken glass, Lessee, at its sole cost and expense and with or without notice from City, P shall repair and/or replace all damage�or destruction to the Premises caused by act(s) of vandalism as soon as possible but in no;event later than fourteen (14) days after the date such damage or destruction occurred. `Lessee, at its sole cost and expense, shall repair and/or replace all other damage or destruction to the Premises, regardless of cause, except by fault of City. �Pr(` Lessee shall comply with all written notices served by City with regard to the care and maintenance of the Premises. Any written notice h reunder shall specify the work to be done and the period of time deemed to be reasonablyFn cessary for completion of p such work. Should Lessee fail to commence making the necessary repairs within seven (7) days after receiving such notice, or within twenty-four (24) hours of the glass becoming broken in the case of broken glass, or fail to 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 n fourteen (14) days of the date that the vandalism damage or destruction occurred, City shall f proceed to cause the required work to be performed, and Lessee shall ° promptly reimburse City for the cost of labor and materials thereof and pay City a penalty on such costs at the penalty rate set forth in Section 11 above from the date the costs were incurred by City to t. e date they are reimbursed to City by Lessee. Lessee hereby expressly waives the p Y . 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. �, 18 19-8109/217202 383 i SECTION 26. RENT CREDIT A Rent credit may be available for some or all of any tenant improvements or 0 maintenance performed by Lessee upon prior written approval by the City Manager or his or her designee or his or her designee. The terms of payment of any rent credivwill be determined by the City Manager or his or her designee. City in its sole discretion may decide to give Lessee � rent credit if Lessee undertakes (1) any repair or maintenance obligation of City under this Lease, or (2) any work City in its sole discretion deems necessaryzand appropriate. Prior to Lessee undertaking any such work, City must agree in writingo the amount of and procedures for the rent credit the w work to be done by Lessee and the cost of such work. SECTION 27. DAMAGE DESTRUCTION OR NUISANCE Lessee shall not commit or permit.'the commission by others of an damage y g or destruction of, on, or to the Premises and/or Concession. Lessee shall not z6f maintain, commit or permit the maintenance or commissionany nuisance as defined in Sec tion 3479 and/or Section 3480 of the California Civil Code Znthe Premises; and Lessee shall not use or permit the use of the Premises for any unlawful purpose. SECTION 28. TAXES This Lease may e eate a possessory interest in property, which is sub ject to taxation. In the event that such possessory interest is created, Lessee agrees to be subject to the payment of and to pay taxes lZi d on such interest at its sole cost and expense. Lessee also agrees to pay, at its sole cost and expense, before they become delinquent all other lawful taxes, assessments or charges, which at any time may be levied by any governmental agency including, without limitatio �he State, County, City or an tax Y Y y or assessment levying body upon any interest in this Lease, or any possessory right which Lessee may have in or to the Premises, by reason of 9-8109/217202 19 384 p/! Lessee's use or occupancy thereof or otherwise, as well as all taxes, assessments, and char es on g � Trade Fixtures, personal property and trade inventory in, on, or about the Premises.,, Upon request, Lessee shall promptly furnish to City satisfactory evidence establishings�uch payment. Lessee shall comply with all laws, regulations and ordinances regarding the collection of taxes due a government agency. SECTION 29. PAYMENT OF OBLIGATIONS Lessee shall promptly pay, at its sole cost and expense before they become delinquent, any and all bills, debts, liabilities and obligations incurred b 2essee in connection 'YZeconcession. with Lessee's occupation and use of the Premises and/or operation of Upon request, Lessee shall promptly furnish to City satisfactory evidence establishing such payment. SECTION 30. UTILITIES AND SERVICES Lessee shall be responsible for the I a'yment of all utility charges, including, without limitation, gas, electricity, water, telepho 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 operati n of the Premises and/or the Con cession. All such rubbish, refuse and garbage removed s 11 be disposed of in accordance with applicable laws and local ordinances. All trash conta' ers and/or trash bins shall be adequately screened and located to the satisfaction of City. Fo the purposes of this Section, sewage disposal shall be construed as a utility. All such ch es shall be paid by Lessee directly to the provider of the service and shall be paid as they become due and payable. Upon request, Lessee shall promptly furnish to City satisfactory evidence establishing such payment. Lessee shall use good energy practices as described Zthe State of Calif ornia Flex Your Power Best Practice Guide. 20 19-8109/217202 385 s' t ' �f �r SECTION 31. BUSINESS LICENSE ' Lessee shall maintain a business license from City during the entire term of tlu Lease or any renewals or extensions thereof or during any holdover period. SECTION 32. SIGNS ADVERTISING AND APPROVAL OF NAME City shall have the right to approve in its sole discretion and at Zytime require Lessee to change or remove signs, names, placards, decorations or advertis'in laced on or inscribed,g p bed, painted or affixed upon the Premises. Banners/advertising /fbusinesses outside the City of Huntington Beach is not allowed. No outdoor sales are a'llowe d by Lessee unless prior written approval is obtained from the City Manager or his or her designee or his or her designee. All outdoor displays or banners must first be approved in writing by the City Manager or his or her designee or his or her designee. Should City approve of any sign, name, placard, decoration or advertising, Lessee shall maintain the same at all times during the entire term of this Lease or during any holdover period in good appearance and repair. All signs,gns, names, placards, decorations or advertising must comply with all requirements of any governmental authority with A jurisdiction. , SECTION 33. NO ASSIGNING SUBLEASING OR ENCUMBERING G (a) Prohibition of Assignment. The parties acknowledge that City is entering into the Lease in reliance upon the experience and abilities of Lessee and its principals. Consequently, Lessee shall not voluntarily assign, encumber or otherwise transfer its interest in the Lease or in the Premises, or sublease all or any part of the Premises, or allow any other person or entity (except Lessee's authorized representatives). to.occupy or use all or any part of the Premises / without the prior written consent of City, which consent shall not be unreasonably 21 1 9-8 1 09/2 1 72 02 386 1 n� withheld. Provided, however, that City's consent shall not relieve/Lessee from any and all of its obligations, liabilities, duties or responsibilities under this Lease. Any assignment, encumbrance, occupation or use, suble-'se or other transfer without such consent shall be voidable and, at City s sole discretion, shall constitute a Default of this Lease. (b) Consent to Transfer. City's consent to any assignment, encumbrance, occupation or use, sublease or other transfer is subjec o Lessee providing City with evidence satisfactory to City that the proposed;assignee, encumbrancer, occupier or user, sublessee or other transferee has suitable financial strength, experience �- gt , p e and character for operation and control of the Premises and the Concession and that the use of the Premises byAhe proposed assignee, encumbrancer, occupier or user, sublessee or other transferee is consistent with that specified herein, and is commercially reasonable. Any proposed assignee, encumbrancer, occupier or user, sublessee/`or other transferee shall agree to abide by the terms and conditions of the Lease including, without limitation, all the obligations, liabilities, duties t and responsibilities of Lessee, and other conditions imposed upon it pursuant to law.?;An approval by City to one assignment, encumbrance, occupation or use, sublease or other transfer shall not b e deemed to be an approval to any other J ` assignment, encumbrance, occupation or use, sublease or other transfer. (c)°gr Voluntary assignment defined. Except as otherwise expressly provided herein, any dissolution, merger, consolidation or reorganization of Lessee, or the sale or other transfer resulting in a transfer of a controlling percentage of the capital stock of Lessee (other than a transfer by will, devise, bequest, intestate succession, a �r f 19-8109/217202 22 387 :f �9 R� transfer to or between the family members of Lessee, or a transfer or between one or more trusts for the benefit of Lessee and/or Lessee's�f ily 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 nota be required for an assignment g or subleasing to an Affiliate, Subsidiary or' S ccessor of Lessee (for purposes hereof, an "Affiliate," a "Subsidiary" and a "Successor" of Lessee are defined as follows: (a) an "Affiliate" is any corporation which directly or indirectly controls or is controlled or is under common control with Lessee for this( purpose, "control" shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such corporation, whether through the,ownership of voting securities or by contract or otherwise), (b) a "Subsidiary" shall mean an corporation Y � or partnership not less than twenty- five percent (25%) of whose outstanding stock shall, at the time, be owned directly or indirectly by Lessee and which is at least as creditworthy as Lessee, and (c) y"Successor" shall mean a corporation or partnership in which or with which Lessee is merged or consolidated, in accordance with applicable statutory . . provisions for merger or consolidation of corporations, or a corporation or ,/partnership acquiring a substantial portion of the property and assets of Lessee. SECTION 34. TERMS BINDING ON SUCCESSORS All the terms, covenants and conditions of this Lease shall inure to the benefit of and be binding upon the parties and their successors, including, without limitation, their assignees, encumbrancers, occupiers or users, sublessees or other transferees. The provisions of this 23 1 9-8 1 09/2 1 7202 388 /J,l Section shall not be deemed as a (1) waiver of any of the prohibitions and Conditions against e assignments, encumbrances, occupations or uses, subleases or other transfers hereinbefore set forth, rP or (2) City's consent thereto. If more than one lessee is a party to this Lease, the obligations of the lessees shall be joint and several. Even if City's consent is not required, Lessee shall immediately provide City with written notice of any, assignment, encumbrance, o6c' upation or use, sublease or other transfer. SECTION 35. DEFAULT The occurrence of any one or more of the followin"o events shall constitute a material default and breach ("Default") of this Lease by Lessee: /// (a) Lessee's failure to make any payml ent of the Rent or other payment required to be made by Lessee at the time req uired ired for payment under this Lease, (b) Lessee's failure to obtainkr maintain the insurances and/or the security deposit as required under this Lease. Lessee's vacating," r abandonment of the Premises during the entire term of this Lease or any,.Z_I renewals or extensions thereof or during any holdover period. Closure offhe Concession for more than a combined total of sixty-five (65) days pl in a calendar year, minus any days of closure of the Concession caused by City, shall'be deemed an abandonment of the Premises. (d) 1L6ssee's violation of Section 18 (Indemnification, Defense and Hold Harmless Agreement), Section 33 (No Assigning, Subleasing or Encumbering), Section 46 (Hazardous Substances), Section 47 (Nondiscrimination), Section 48 (Sale of Alcoholic Beverages and Entertainment Prohibited), Section 61 (Conflict of Interest) or Section 63 (Compliance with Laws). 19-8109/217202 24 389 (e) The insolvency of Lessee as evidenced by a receiver being appointed to°`take t possession of all or substantially all of Lessee's assets located at/6r on the. Premises or of Lessee's interest in this Lease, or the making by Lessee of a general arrangement or assignment for the benefit of creditors, or Lessee's film a 0` � g petition in bankruptcy, whether voluntary or involuntary, or the attachment, execution or the judicial seizure of substantially all of Lessee's assets located at or on the Premises or of Lessee's interest in the Lease. (� Lessee's failure to observe or perform any otherb term, covenant, obligation, duty, y responsibility or condition of this L,ease to be observed or performed by Lessee when such failure shall continue for a period of thirty (30) days after Cit 's giving y g g written notice to Lessee, or such earlier period if specifically set forth in this Lease; however, if the nature of such failure is such that more than thirty (30) i days are reasonably required for its cure, then Lessee shall not be deemed to be in i Default if Lessee otifies City of the length of the additional time required to cure and receives City's written approval of the additional time required, which r` 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 36. REMEDIES (a) Cumulative Nature of Remedies. In the event of any Default by Lessee, City shall have the remedies described in this Section in addition to all other rights and remedies provided by law or equity, to which City may resort cumulatively or in the alternative: 25 19-8109/217202 390 i' �r P (1) Reentry without Termination. City may at City's sole discretion reenter the Premises, and, without terminating the Lease, at any time and from time to time relet the Premises or any part or parts of them for the account and in the name of Lessee or otherwise. Any reletting may be for the remainder of the term or for a longer or shorter,period. City may Y 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 inventor from the Pre ' Y Premises. C1,t} may store such removed Trade Fixtures, personal property and trade inventory in a public warehouse or other location at the sole cost, expense and risk of Lessee, an for the account of and in the name of Lessee. City shall apply all rents from reletting as follows: first, to the payment of reasonable expenses (including brokers' commissions) paid or incurred by or on bell if of City in recovering possession, placing the Premises in good condition, and preparing or altering the Premises for reletting; s second, to the reasonable expense of securing new subtenants; third, to the 3 i' fulfillment of Lessee's covenants to the end of the term. City may execute p any leases or subleases made under this provision either in City's name or in Lessee's name and City shall be entitled to all rents from the use, ,! operation or occupancy of the Premises. Lessee shall nevertheless pay to City on the dates specified in this Lease the equivalent of all sums required of Lessee under this Lease, plus City's expenses, less the proceeds of any reletting or attornment. r" 19-8109/217202 26 391 f� F n� (2) Termination. In the event of a Default by Lessee, City may at Cit,"s sale discretion terminate this Lease by giving Lessee written notice of termination. In the event City terminates this Lease, City may recover possession of the Premises (which Lessee shall immediately surrender and vacate upon demand) and remove all persons therefrom, and Lessee shall comply with, without limitation, Sections 55,'and 56 below. City also shall be entitled to recover as damages all of the following: (A) The worth at the time of the award of an unpaid Y p Rent or other charges which have been'earned at the tine of termination; (B) The worth at the time of the award of the amount by which the unpaid Rent (ea"ch month's Rent would be! calculated as the average Re t for that same month in the preceding years, or if Lessee did own/operate the Concession in the preceding years, fi then/each month's Rent would be calculated as the average of all f.months Lessee owned/operated the Concession) and other charges � " ' which would have been earned after termination until the time of the award exceeds the amount of the loss of such rental and other charges that Lessee proves could have been reasonably avoided; �9 (C) The worth at the time of the award of the amount by which the unpaid Rent (each month's Rent would be calculated as the average Rent for that same month in the preceding years, or if Lessee did not own/operate the Concession in the preceding years, then each month's Rent would be calculated as the average of all 27 19-8109M 7202 f/ 392 months Lessee owned/operated the Concession) and other chaff' l es for the balance of the term after the time of the award exc eds the amount of the loss of such rental and other charges that Lessee proves could have been reasonably avoided; , J/ (D) Any other amount necessary to compensate City for the detriment proximately caused by Lessee's failure' to perform its obligations, liabilities, duties or responsibilities u nder this Lease; and (E) At City's sole discretion, such other amounts in addition to or in a� lieu of the foregoing as/may be permitted from time to time by applicable California®law. <d As used in Sections 36(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 36(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 Franciseo"at the time of the award, plus one percent (1%). The amount recoverable by City pursuant to Section 36(a)(2)(D) above shall include, without limitation, any:'costs or expenses incurred by City in maintaining or preserving the Premises after such Default. r (3) Use of Personal Property. City may at City's sole discretion use the Trade Fixtures, personal property and/or trade inventory located on, about or appurtenant to the Premises without compensation and without liability r ' for use or damage, or store them in a public warehouse or other location at r; 19-8109/2 i 7202 28 i 393 � Lid the sole cost, expense and risk of Lessee, and for the account of and�in the name of Lessee. r� (b) Election of Remedy. The election of one remedy for any one.Atem shall not ,o- foreclose an election of any other remedy for another item orffor the same item at a later time. N � (c) City's Right to Cure Lessee's Default. Upon continuance of any Default, City may in its sole discretion, but is not obligated to, cure such Default at Lessee's a sole cost and expense. If City at any time, by reason of such Default by Lessee, pays any sum or does any act, the sum,Taid by City plus the reasonable cost of performing such act, together with a,p'enalty thereon at the penalty rate set forth in Section 11 above from the date,<the costs were incurred or the act performed by City to the date they are reimbursed to City by Lessee, shall be due as additional rent not later than five f(5) days after service of a written demand therefor on Lessee, including reasonably detailed documentation of the amount owed. No such payment or act shall constitute a waiver of Default or of any remedy for Default or render City liable for any loss or damage resulting from any such act. (d) Waiver of Rights. Lessee hereby waives any right of redemption or relief from forfeiture under California Code of Civil Procedure Sections 1174 or 1179, or under any other present or future law, in the event Lessee is evicted or City takes possession of the Premises by reason of any Default by Lessee hereunder. (e) Other Rights of City. No act of City, including, without limitation, City's entry on the Premises, efforts to relet the Premises, or maintenance of the Premises, shall be construed as an election to terminate this Lease unless a written notice of 19-8109/217202 29 394 such intention is given to Lessee by City or unless the termination thereof is f,< decreed by a court of competent jurisdiction. Notwithstanding if City" elects to �r continue the Lease in full force and effect after a Default by Lessee and to relet the Premises, City may at any time after such reletting elect to terminate this Lease for any such Default. SECTION 37. CUMULATIVE REMEDIES The remedies given to City in this Lease shall not exclusive but shall be cumulative and in addition to all remedies now or hereafter allowed`by law or elsewhere provided in this Lease. City shall have the right to exercise any other right or remedy which City may have at f„ law or in equity including, without limitation, City's rights under the unlawful detainer laws. SECTION 38. WAIVER OF DEFAULT The waiver by City of any Default by Lessee of any of the provisions of this Lease shall not constitute a continuing waiver or.a waiver of any subsequent.Default by Lessee either of the same or another provision of this Lease. SECTION 39. CITY'S DEFAULTS/LESSEE'S REMEDY In the event City fails to perform any material obligation of City under the Lease within ninety (90) days after receiving written notice from Lessee specifying the nature of such default, or, if the nature of City's obligation is such that more than ninety (90) days are required for its performance, if City fails to commence such performance within such ninety (90) day period and thereafter diligently prosecute the,'same to completion, then City shall be in default of this obligation. If City's default materially interferes with Lessee's use of the Premises for its intended purpose, Lessee shall have the option to terminate the Lease by giving City at least sixty(60) days' written notice of its intent to terminate. In such a situation, Lessee must still comply with all of its obligations, liabilities, duties -� 19-8109/217202 30 395 d% and responsibilities under the Lessee Agreement, including, without limitation, paying any/Rent due up to the time of termination and surrendering the Premises pursuant to Sections 51 and 52 below. p,£ This remedy of termination is Lessee's sole and exclusive remedy for a default by City. SECTION 40. CONSENT When City's consent/approval is required under this Lease, itconsent/approval for one transaction or event shall not be deemed to be a consent/approvaleo any subsequent occurrence �r of the same or any other transaction or event. F' SECTION 41. HOLDOVER J� �f Should Lessee hold over and continue in possession of the Premises after expiration or f termination of this Lease, with or without the express prior written consent of City, Lessee's continued occupancy of the Premises shall coy nstitute a month-to-month bj, sub ject Ject to all the terms and conditions of this Lease, at a monthly rent of one hundred ten percent (110%) of the previous calendar year's annualjRent divided by twelve (12) (or the average monthly Rent for all months Lessee owned/operated the Concession if Lessee has owned/operated the Concession for less than one,('1) year) or that month's actual Rent, whichever is greater, and shall not constitute a renewal or extension of the Lease term. SECTION 42..WAIVER Or CLAIMS Lessee hereby waives any claim against City, its officers, elected or appointed officials, employees, agents or volunteers for damage or loss caused by any suit or proceeding directly or indirectly attacking the validity of this Lease, or any part thereof, or caused by any judgment or award hi any suit or proceeding declaring this Lease null, void or voidable, or delaying the Lease or any part thereof from being carried out. 31 39-8109/217202 396 ,f f SECTION 43. INSPECTION OF PREMISES Upon at least twenty-four (24)hours advance written, verbal or electronic notice"given by City to Lessee, Lessee shall permit City or City's agents, representatives orployees to enter the Premises at all reasonable times for the purpose of inspecting, investigating and surveying the Premises to determine whether Lessee is complying with the terms/,of this Lease and for the e purpose of doing other lawful acts that may be necessary to protect City's interest in the F Premises or to perform City's duties under this Lease. City shall make quarterly physical inspections of the Leased Premises and may direct that interior maintenance or outdoor painting repairs are to be performed where such work is necessary to protect the Premises or to provide a clean, attractive and well-maintained premise. Lessee shall perform those maintenance and repairs which they are responsible for withinFthirty (30) calendar days. City also shall have the right in its sole discretion to do any and .all work of any nature necessary for the preservation, maintenance and operation of property owned, controlled or occupied by City. Lessee shall be given reasonable notice when such work becomes necessary, and Lessee shall adjust the operation of the Concession in,such a manner that City may proceed expeditiously. SECTION 44. RESERVED 3 SECTION 45. PHOTOGRAPHY Lessee acknowledges and agrees that City may grant permits to third parties engaged in the production of still and motion pictures and related activities to take photographs or videos of or on the Premises when such permission shall not interfere with the primary business of Lessee, all without providing Lessee with notice or requiring consent by Lessee. 32 1 9-8 1 09/2 1 7202 r 397 s a� SECTION 46. HAZARDOUS SUBSTANCES Lessee represents and warrants that its use or occupation of the Premises shall not generate any Hazardous Substance (as defined below in this Section), and it/shall not store or s dispose on the Premises nor transport to or over the Premises any Hazards Substance during the entire term of this Lease or any renewals or extensions thereof or Zing any holdover period. The foregoing restrictions shall not be deemed to restrict or prohibit the use by Lessee of ordinary cleaning products as customarily used in Lessee's/ordinary course of business at the Concession, provided that Lessee complies with all provisions of law as to the use, storage and disposal of such products. Lessee further agrees to c a u and remediat� p e any such Hazardous Substance on the Premises, and agrees to protect edefend, 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;l'itigation (including arbitration) of every nature or liability of any kind or nature) arising out`Iof or in connection with any such Hazardous Substance and any damage, loss, or expense„r liability resulting from any such Hazardous Substance including, without limitation, all att or`ney's fees, costs and penalties incurred as a result thereof except any release caused by the sole negligence or willful misconduct of City. Lessee will conduct all defense at its sole cost and expense and City shall approve selection of Lessee's counsel. This indemnity shallApply 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 a' provided,by Lessee. "Hazardous substance" shall be interpreted broadly to mean any substance �r or material defined or designated as a hazardous or toxic waste, hazardous or toxic material, i, hazardous or toxic or radioactive substance, or other similar term, by any Federal, State or local 19-8109/217202 33 398 .YP�JI. environmental law, regulation or rule presently in effect or promulgated in the future, Aa 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 environmentu'will or may reasonably be anticipated to cause sickness, death or disease. d s SECTION 47. NONDISCRIMINATION J Lessee and its employees shall not discriminate because of race, religion, color, ancestry, l sex, age, national origin or physical handicap against any person by refusing to furnish such r' person any accommodation, facility, rental, service or privilege offered to or enjoyed by the r general public. Nor shall Lessee or its employees publicize the accommodation, facilities, rentals, services or privileges in any manner that would directly or inferentially reflect upon or r' question the acceptability of the patronage of Many person because of race, religion, color, r' ancestry, sex, age, national origin or physicafhandicap. In the performance of this Lease/, Lessee shall not discriminate against any employee or J applicant for employment, because.of race, religion, color, ancestry, sex, age, national origin or physical handicap. Lessee shall/iake affirmative action to ensure that applicants are employed ,r 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. Lessee shall post in conspicuous places, available to all employees and applicants for employment, notices setting forth the provisions of this Section. j i` / 19-8109/217202 34 399 Lessee shall permit access to its records of employment, employment advertisements, application forms, and other pertinent data and records by City, the State,,,Fair Emplo ment y Practices Commission or any other agency with jurisdiction over these matters, for the purpose of investigation to ascertain compliance with this Section. ` City may determine a violation of this Section to have occurred upon receipt of a final judgment having that effect from a court in an action to which Lessee was a party, or upon T receipt of a written notice from the State Fair Employment Practices Commission or other government agency with jurisdiction over these matters;_that it has investigated and determined that Lessee has violated the Fair Employment Practices Act or other applicable discrimination law and has issued an order which has become final, or obtained an injunction. In the event of �0 violation of this Section, City shall have the right to terminate this Lease, and any loss of revenue sustained by City by reason thereof shall,�be borne and paid for by Lessee, at its sole cost and expense. r SECTION 48. SALE OF ALCOHOLIC BEVERAGES AND ENTERTAINMENT PROHIBITED a Notwithstanding anything to the contrary, the sale or provision of alcoholic beverages and/or live entertainment/in, on, or from the Premises is expressly forbidden, unless expressly permitted in writing by City in advance. For any proposed sale or provision of alcoholic beverages, Lessee must first obtain written City approval prior to submitting any request for approval to the Alcohol Beverage Commission. SECTION 49. LIENS Lessee shall keep the Premises free and clear from any and all liens, including, without limitation, mechanics' or materialmens' liens, claims and demands for work performed, 19 8109/217202 35 r" i / 400 materials furnished, or operations conducted on or about the Premises or by reason of any use or occupancy by Lessee, or any person claiming under Lessee. When applicable, Lessee shall cause a notice of nonresponsibility to be posted and recorded pursuant to California Civil Code Section 3094. / SECTION 50. INSTALLATION AND REMOVAL OF TRADE FIXTURES Lessee shall have the right during the entire term of this Lease or any renewals or extensions thereof, at Lessee's sole cost and expense, to install or ffix in, to, or on the Premises any machinery, equipment and other objects (the "Trade Fix"1res"), for use in Lessee's trade or business as Lessee may deem advisable. Any and al7tto h Trade Fixtures that can be removed without structural damage to the Premises shall, subjeSection 56 below, remain the property of Lessee and may be removed by Lessee at an time prior to the expiration or termination of this Lease, provided Lessee repairs any dam ge caused by the removal. Upon execution of this Lease and every anniversary, Lessee sh provide City with a list of all Trade Fixtures on the Premises. SECTION 51. DESTRU ION Should the Premises e partially destroyed, this Lease shall continue in full force and effect, and Lessee, at Les ee's sole cost and expense, shall complete the work of repairing and restoring the Premise to their prior condition providing such work can be accomplished under all applicable gov ental laws and regulations within one hundred eighty (180) days. Should the Premises b so far destroyed that in City's reasonable judgment they cannot be repaired or restored to eir former condition within one hundred eighty (180) days, City shall give Lessee notice o such determination in writing and each party may, in that party's sole discretion: 36 19-8109/217202 401 (a) Continue this Lease in full force and effect in which case Lessee shall repair and restore, at Lessees sole cost and expense, the Premises to their former condition; or (b) Terminate this Lease by giving the other party thirty (30) days' written notice of such termination within sixty (60) days after the date that City gives Lessee notice that the Premises cannot be repaired or restored to their fo'rnler condition within one hundred eighty (180) days. In the event that eit}e'r art elects to terminate t" party this Lease, the entire amount of any insurance pr ceeds (excluding such proceeds for Trade Fixtures, personal property, whettba or not owned or leased by Lessee and trade inventory, but only to the extel t',,that the insurance proceeds specifically P p Y cover those items) shall be paid to/City. The proceeds of any such insurance payable to City may be used, in e 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 Less elects to terminate the Lease, Lessee must still comply with all of its oblig ions, liabilities, duties and responsibilities under the Lease, including, with t limitation, paying any Rent due up to the time of termination and surrend ing the Premises, pursuant to Sections 55 and 56 below. In the event o the damage or destruction of Improvements, Trade Fixtures and/or personal property cated on the Premises not giving rise to a termination of this Lease, Lessee shall, at its sol cost and expense, replace and repair the same as soon as reasonably possible to permit the rompt continuation of Lessee's business at the Premises. 37 19-8109/217202 402 i' i SECTION 52. NO ABATEMENT OF RENT DURING REPAIR WORK f'y The Rent shall not be abated for the time Lessee is prevented from using the/Whole or a portion of the Premises. In addition, Lessee shall not be excused from the payment of taxes, insurance or any other obligations for the time Lessee is prevented from/using the whole or a portion of the Premises. SECTION 53. EMINENT DOMAIN If, during the term of this Lease or any renewals or extensions thereof or during any holdover period, City's real property (whether held by City in fee simple, an easement interest or otherwise) and/or the Premises is taken in eminent domain, the entire award (that is, all forms) of compensation, other than as provided herein, shall belong to and be paid to City. In the event of condemnation, Lessee shall be entitled to an� ward of only the following forms of compensation, if any, from the condemning authori y compensation for loss of business goodwill; compensation for the value of any of,Lessee's Trade Fixtures; compensation for the value of an ZMpensation p Y of Lessee's personal property; for the value of an of Lessee's trade inventorY Y, and compensation for reloca ion benefits as authorized by law. All other forms of compensation, such as, for example, /but not by way of limitation, any bonus value of Lessee's interest in this Lease, shall belong to and be paid to City. In the event of condemnation/ Y , unless Lessee >s allowed by the condemning authority to continue its operations on the Premises, the Lease shall terminate on the earliest of the following date�t ( g s. the date the condemning authority obtains a prejudgme}� rder for possession; the date title to the Premises vests in the condemning authoZiopey; or the date when Lessee is required by the condemning authority to cease its o ns. 19-810 38 9/217202 403 SECTION 54. RELOCATION AND ASSISTANCE, BUSINESS GOODWILL AN'D LEASEHOLD BONUS VALUE Upon expiration or termination of this Lease for any reason, but excluding eminent /!1, domain, Lessee shall not be entitled to any relocation rights or benefits,,business goodwill or bonus value attributable to this Lease, and Lessee expressly waives any"laim to the same. SECTION 55. QUITCLAIM DEED r�+ Upon expiration or termination of this Lease as prov ded for herein, Lessee shall execute and deliver to City within thirty (30) days thereof, a good and sufficient quitclaim deed to the rights and interests of Lessee in the Premises and e Lease. Should Lessee fail or refuse to deliver to City this quitclaim deed, City may record in the Orange County Recorder's Office a written notice reciting the failure of Lessee to/execute and deliver this quitclaim deed. The date of recordation of this notice by City shall�be conclusive evidence against Lessee and all persons claiming under Lessee of the expiration or termination of this Lease and any rights or interests of Lessee in the Premises and/or the Lease. Lessee also agrees to execute, acknowledge, and deliver to City any other instrument requested by City as necessary to perfect City's right, title and interest to the Premises'. SECTION 56. RESTORATION AND SURRENDER OF PREMISES/TITLE TO IMPROVEMENTS TO THE BUILDING On ex/p'�iration or termination of this Lease, Lessee shall, without compensation to Lessee, promptly s/rrender and deliver the Premises to City in as good condition as such were at the commencement date of this Lease, reasonable wear and tear excepted. Lessee also shall, without com" ensation to Lessee, surrender all Improvements to the building to City in good condition p and repair, ordinary wear and tear excepted, free and clear of all liens and encumbrances. Lessee 39 19-8109/217202 �J 404 also shall remove all Trade Fixtures, personal property and trade inventory. City may in;its sole discretion accept all or any portion of the Premises, as then improved with Improvements and no sum whatsoever shall be paid to Lessee or any other person; or City may require Lessee to remove all or any portion of such Improvements to the building, at Lessee;'s own risk and cost �r and expense; or City may itself remove or have removed all or" any portion of such Improvements to the building, at Lessee's own risk and cost and expense. If required by City to do so, in removing any such Improvements to the building, Lessee shall restore the Premises as nearly as possible to the conditions existing prior to their_installation or construction. All such removal and restoration shall be to the satisfaction of City and shall be completed within thirty 3e (30) days of the expiration or termination of this Lease; provided, however, that Lessee shall be considered a holdover tenant(pursuant to Section 41 above) after expiration or termination of the Y Lease until the time Lessee completes this' removal and restoration work, including, without limitation, the removal of any Trade Fixtures, personal property and trade inventory left on the Premises. In addition, any Trade Fixtures, personal property or trade inventory left on the Premises after the expiration of this 30-day period, regardless of cause, shall be deemed abandoned by Lessee. In City's sole discretion, it may choose to do one or more of the following: (1) take any or all of such Trade Fixtures, personal property and trade inventory as City property; (2) store any or all of such Trade Fixtures, personal property and trade inventory Y� in a public warehouse or other location at the sole cost, expense and risk of Lessee, and for the account and in�the name of Lessee; or (3) dispose of any or all of such Trade Fixtures, personal property and trade inventory without any liability to Lessee. In addition, Lessee's indemnification, hold harmless and defense obligations set forth in this Lease shall apply to such 40 19-8109/217202 405 R'grrs' Trade Fixtures, personal property and/or. trade inventory, and to City's actions with respect/ thereto. 04 SECTION 57. FORCE MAJEURE -UNAVOIDABLE DELAYS / Should the performance of any act required by this Lease to be performed by either City or Lessee be prevented or delayed by reason of an act of God, strike, loo out, labor troubles, inability to secure materials, restrictive governmental laws or regulations, or any other cause except financial inability not the fault of the parry required to perform the act, the time for p �5' q performance of the act shall be extended for a period equ}valent 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 t e prompt payment of the Rent or other consideration by Lessee as required by this ease or the performance of any act rendered difficult solely because of the financial condition of the party, City or Lessee, required to perform the act. SECTION 58. CITY'S OPTION TO CLOSE THE PREMISES City may close the Pre�inises without liability and without advance notice to Lessee therefor at any time as City 'n its sole discretion deems necessary for the protection of life, limb or property, or for public health, safety or welfare purposes, or other City activities or special events, or upon reasonable notice to effect any repair, remodeling or rebuilding deemed necessary by C'- in its sole discretion. City retains the right to close the or the Premises or pier for emerge ies y without any notice to Lessee, for any extent of time and without compensation or credit except Lessee may be provided rent credit for loss of revenue at the discretion of the City anager or his or her designee. In those cases where there is a City-planned pier closure, Lessee will be given a two (2) business week notice. 41 19-8109/217202 406 y n'T V SECTION 59. DELIVERIES OF SUPPLIES , `, The City Manager or his or her designee of City may establish the days/and times deliveries of supplies may be made and advise Lessee in writing thereof. SECTION 60. EMPLOYEE PARKING ji All employee parking shall comply with Huntington Beach N'iunicipal Code Section 13.08.290(d)and (g). r- SECTION 61. CONFLICT OF INTEREST Lessee warrants and covenants that no official op`employee of City, nor any business f entity in which an official or employee of City is interested, (1) has been employed or retained by Lessee to solicit or aid in the procuring of thivLease; or (2) shall be employed by Lessee in the performance of this Lease without the immediate written divulgence of such fact to City. In the event City determines that the employment of any such official, employee or business entity is not compatible with such official's/or employee's duties as an official or employee of City, Lessee, upon request of City, sha1,11terminate such employment immediately. For breaches or violation of this Section, City shall have the right both to terminate this Lease without liability and, in its discretion, recover the full amount of any such compensation paid to such official, employee or business entity. No official or employee of City shall have any financial interest in r" this Lease in violation of the applicable provisions of the California Government Code. i SECTION 162. 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 42 1 9-8 1 09/2 1 7202 407 (c) one (1) business day after being sent by reputable overnight courier, in each case to the addresses specified below; provided that City and Lessee, by notice given hereunder, may designate different addresses to which subsequent notices, certificates or other communications will be sent: CITY: LESSEE: City of Huntington Beach Marian Johnson ATTN: City Manager dba Let' Go Fishing & Surf City 2000 Main Street, P.O. Box 190 Snack Bar r Huntington Beach, CA 92648 11734 Forest`Grove Street El Montei,'CA 91732 SECTION 63. COMPLIANCE WITH LAWS Lessee, at its sole cost and expense, shall comply with"all statutes, ordinances, regulations and requirements of all governmental entities, including, without limitation, Federal, State, r ' I county or municipal, relating to Lessee's use and occupancy of the Premises and/or operation of the Concession whether such statutes, ordinance's, regulations and requirements be now in force or hereinafter enacted. This Lease is expressly subject to the laws, regulations and policies of City. Lessee shall deliver to City a copy°of any notice from any governmental entity received by Lessee regarding any alleged violation of law regarding the Lease, Premises or the Concession or from any person allegedly entitled to give notice under any conditions, covenants, or restrictions binding or affecting the Pre mi ises. The judgment of any court of competent jurisdiction, or the admission by Lessee in/a proceeding brought against Lessee by any government entity, that Lessee has violated +'y such statute, ordinance, regulation or requirement shall be conclusive as f between City and/Lessee and shall be grounds for termination of this Lease by City. i' SECTION 64. INTERPRETATION OF THIS LEASE l The language of all parts of this Lease shall in all cases be construed as a whole, according to its fair meaning, and not strictly for or against any of the parties. If any provision of this Lease is held by an arbitrator or court of competent jurisdiction to be unenforceable, void, 43 19-8109/217202 408 i. illegal or invalid, such holding shall not invalidate or affect the remaining covenants/and provisions of this Lease. No covenant or provision shall be deemed dependent upon/y other unless so expressly provided here. As used in this Lease, the masculine or neut�r g ender 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 requir 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 co/ary to which the parties have no right to contract, then the latter shall prevail, and the provision of this Lease which is hereby p P Y affected shall be curtailed and limited only to the extent necessary to bring it within the requirements of the law. SECTION 65. SURVIVAL Terms and conditions of this Le e, which by their sense and context survive the expiration or termination of this Lea all so survive. SECTION 66. MODIFICA�'ION No waiver or modificatl;on of any language in this Lease shall be valid unless in writing and duly executed by both p ies. SECTION 67. S:CTION HEADINGS The titles, ca tions, section, paragraph and subject headings, and descriptive phrases at the beginning of e various sections in this Lease are merely descriptive and are included solely for convenie e of reference only and are not representative of matters included or excluded from such rovisions, and do not interpret, define, limit or describe, or construe the intent of the parties r affect the construction or interpretation of any provision of this Lease. 44 19-8109/217202 409 SECTION 68. BROKERS Each party warrants to and for the benefit of the other that it has had no dealings with an g Y real estate broker or other agent (attorneys excepted) in connection with the negotiation or making of this Lease. SECTION 69. INDEPENDENT CONTRACTOR Lessee is, and shall be, acting at all times in the performance of this Agreement as an independent contractor herein and not as an employee of City. Lessee shall secure at its own r cost and expense, and be responsible for any and all payment of all taxes, social security, state disability insurance compensation, unemployment compensation and other payroll deductions for Lessee and its officers, agents and employees and/all business licenses, if any, in connection with i the Lease and/or any services to be performe 'lyre eunder. SECTION 70. ATTORNEY'S FEES In the event suit is brought b either party to construe, interpret and/or enforce the terms and/or provisions of this Lease or✓to secure the performance hereof, each party shall bear its own attorney's fees, such that the '/p revailing party shall not be entitled to recover its attorne 's fees Y from the non-prevailing p A SECTION 71. EGAL SERVICES SUBCONTRACTING PROHIBITED Lessee and City agree that City is not liable for payment of any subcontractor work involving legal/Services, and that such legal services are expressly outside the scope of services / p Y p contemplated hereunder. Lessee understands that pursuant to Huntington Beach City Charter Section 309, the City Attorney is the exclusive legal counsel for City; and City shall not be liable for payment of any legal services expenses incurred by Lessee. 45 19-8109217202 410 r SECTION 72. GOVERNING LAW This Lease shall be governed and construed in accordance with the laws of the State of P f" California. P SECTION 73. DUPLICATE ORIGINAL fr'el The original of this Lease and one or more copies hereto have been prepared and signed in counterparts as duplicate originals, each of which so executed/shall, irrespective of the date of a 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 74. ENTIRETY f` The parties acknowledge and agree that they are entering into this Lease freely and voluntarily following extensive arm's length'negotiations, and that each has had the opportunity to Pp Y consult with legal counsel prior to executing this Lease. The parties also acknowledge and agree that no representations, inducements, promises, agreements or warranties, oral or otherwise have been made by that party, or anyone acting on that party's behalf, which are not embodied in this Lease and that that art has p y executed this Lease in reliance on any representation, inducement, promise, agreement, warranty, fact or circumstance not expressly set forth in this Lease. The Lease, and the attached exhibits, contain the entire agreement between the parties respecting the subject matter of this L,eeaase, the Premises, the leasing of the Premises to Lessee, or the lease term created under this Lease and supercede all prior understandings and agreements, whether oral or in writing p g g between the parties respecting the subject matter hereof. IN WITNESS WHEREOF, the parties hereto have caused this Lease to be executed by and through their authorized officers the day, month and year first above written. Each undersigned represents and warrants that its signature hereinbelow has the power, authority and 46 1 9-8 1 09/2 1 7202 411 r right to bind their respective parties to each of the terms of this Agreement, and shall ind6rnify CITY fully for any injuries or damages to CITY in the event that such authority or po"wer is not, in fact, held by the signatory or is withdrawn. MARIAN JOHNSON, Doing Business As CITY OF HUNTINGTONIB'EACH, a LET'S GO FISHING and SURF CITY municipal corporation of the State of SNACK BAR California Mayor By. print name ITS: � Ci{y Clerk (circle one)Chairman/President/Vice President INITIATED AND APPROVED: . AND By: City Manager print name ITS: Director of Economic Development (circle one) Secretary/Chief Financial OfficerAsst. Secretary-Treasurer APPROVED AS TO FORM: REVIEWED AND APPROVED: City Attorney N f�' City Administrator 47 19-8109/217202 412 r.: LEASE BETWEEN THE CITY OF HUNTINGTON BEACH AND MARIAN JOHNSON, DOING BUSINESS AS r LET'S GO FISHING and SURF CITY SNACK BAR Table of Contents SECTION r� PAGE 1 Superseding of Prior Lease.................................................... 1 2 Grant of Concession on the Premises ......................... r° .1 3 Reservations, Encumbrances and Rights-of-Way............ . 4 Time of Essence.............. .........................3 ................................................................ 5 Term............................................................................. .. 3 ............................:.... 6 Conditions of Premises as Is..................................... 3 7 Duration of Public Facilities................................. ..............................................3 8 Additions, Alterations and Removal.................. 9 City's Contract Administrator...................... ......................................................4 10 Rent............................................................................. ............................... 11 Late Charge and Penalty........................... 5 ............................................ 12 Gross Sales Defined...............................; 5 ............................................................ 13 Gross Sales Exclusions...................... ..................................................................7 14 Books and Records ........................: 7.................................................................. 15 Statement of Gross Sales/Audit... :............................................... 16 Security Deposit........................ ' ........................................................................ 10 17 Quality of Sales, Rentals and Services 11 18 Indemnification, Defense and Hold Harmless Agreement.......:..............................12 19 Workers' Compensation yd Employers' Liability Insurance..................................13 20 General Public Liability insurance ....................... 21 Property Insurance........................................................................ .......................14 22 Increase in Amount of General Public Liability and Property Insurance................15 23 Certificates of Insurance; Additional Insured Endorsements ..................................16 24 Insurance Hazards/............:................. ........ 16 ................................................... 25 Maintenance of Premises.......................................................................... 26 Rent Credit.. ....... ....................................... 19 27 Damage, Destruction or Nuisance ........................................................ 28 Taxes......./.................................. ........20 .........................:...................:....................... 29 Payments ofObligations................................... ........................21 ............................... 30 Utilities and Services ........................................... 21 .................................................. 31 Business License.................................... .................................................................21 32 Signs Advertising and Approval of Name...............................................................21 33 No Assigning, Subleasing or Encumbering.............................................................22 34 Terms Binding on Successors..................................................................................24 35 Default......................................................................................................................25 36 Remedies..................................................................................................................26 i 413 Table of Contents. continued r 37 Cumulative Remedies..........................................................................................:..:30 31 38 Waiver of Default ` 39 City's Defaults/Lessee's Remedy....................................................... ....... .. 1....3 40 Consent................................................................................ '` 32 41 Holdover.............................................................................................. 42 Waiver of Claims 43 Inspection of Premises.............................................. ......33 44 RESERVED.................................................... .33 45 Photography................................................................................/.............................33 46 Hazardous Substances................................ ! 33 .......................... 47 Nondiscrimination................................................. .. ..................... .......3 �:............................. 48 Sale of Alcoholic Beverages and Entertainment Prohibited....................................36 49 Liens........................ 50 Installation and Removal of Trade Fixtures..............:`.............................................36 51 Destruction.......................................................... ::.......... ................................... 37 52 No Abatement of Rent During Repair Work...........................................................38 53 Eminent Domain 38 54 Relocation and Assistance, Business Goodwiil and Leasehold Bonus Value.........39 55 Quitclaim Deed 39 f:................................................... 56 Restoration and Surrender of Premises/Title to Improvements...............................40 57 Force Majeure - Unavoidable Delays Z............................. 41 ..................................... 58 City's Option to Close the Premises./.....................................................................42 59 Deliveries of Supplies ° 60 Employee Parking....................../.............................................................................42 61 Conflict of Interest. 7................................................................ . .42 62 Notice..................................�°........... ............43 ...... ...................................................................... 63 Compliance with Laws ....�.....................................................................................43 64 Interpretation of this Lease .............:.................................... 65 Survival......................j........................................................................ ............44 66 Modification.............................................................................................................45 67 Section Headings ./................................................................................................45 68 Brokers...............�...................................................................................................45 69 Independent Contractor............................................................................................45 70 Attorneys Fee``s.....:...................................................................................................45 71 Legal Services Subcontracting Prohibited...............................................................46 72 Governing/Law........................................................................................................46 73 Duplicate Original....................................................................................................46 74 Entirety....................................................................................................................46 ii 414 Work Order: #197832 1°017/2019 Closed: 1/04 201 9 This ISSLW IS Est. Resolution Date: Not Yet Set Agenda & Public Hearing Comments By Janet Bean Email janetheandesigns@gma il.com SUB TYPE Phone 714-362-7899 City Council Meeting Device STREET ADDRESS Media Submitted None SUPPLgMENTAL COMMUNICATION MeWft Date:,. Agenda nem No.; COMMENTS &ADDITIONAL NOTES I would like to know how now the second issue has come up under your leadership of deep corruption.First bench gate and now the former mayor wants action on the pier so you are kicking out a Mom and Pop who have been good citizens for many years.The corruption at city hall is at an all time high and we the citizens want it to stop,we want you to step down if you cannot act with one ounce of integrity!This is a huge blackeye for HB to have this type of underhanded,and guessing pockets lines,situation.Shame on you for not extending the lease and putting it up for bid for one of your buddies,Does he golf with you and the other person who got the bench moved?? Status Changed: 11/04/2019 9:59 AM Donna Switzer Work Order#197832 status has changed from assigned to resolved. Janet,Thank you for sharing your concerns.Your comments will be included in the record for this agenda item.Sincerely,Donna Switzer Deputy City Clerk Share with Citizen:YES Status Changed: 10/17/2019 10:52 AM Johanna Dombo Work Order#197832 status has changed from new to assigned. Share with Citizen:YES Issue Type/Subtype Changed: 10/17/2019 10:52 AM Johanna Dombo Workorder#197832 Issue type changed from Contact an Executive to Agenda&Public Hearing Comments and subtype City Council Meeting. Share with Citizen:NO Switzer, Donna From: Dombo,Johanna Sent: Wednesday, August 28, 2019 113S AM To: Agenda Comment Cc: Fikes, Cathy; CITY COUNCIL Subject: FW: HB PIER SHOP AGENDA COMMENT From: leon fultheim <leonbali@hotmail.com> Sent:Wednesday, August 28, 2019 11:24 AM To:CITY COUNCIL<city.council@surfcity-hb.org> Subject: HB PIER SHOP Please renew the lease of the LET'S GO FISHING SHOP. The Community needs it! Thank you! Sincerely, Leon Fultheim Get Outlook for Android 1 415 Switzer, Donna From: Dombo,Johanna Sent: Wednesday, August 28, 2019 10:58 AM To: Agenda Comment Cc: Fikes, Cathy, CITY COUNCIL Subject: FW: Lease renewal for the"Let's Go Fishing" Shop AGENDA COMMENT From: Don Kennelly<donkennellyl@gmail.com> Sent:Wednesday, August 28, 2019 10:50 AM To:CITY COUNCIL<city.council@surfcity-hb.org> Subject: Lease renewal for the "Let's Go Fishing" Shop Date: 8/2/2019 To: Members of the Huntington Beach City Council Erik Peterson, Mayor Council Members Lyn Semeta Patrick Brenden Kim Carr Barbara Delgleize Jill Hardy Mike Posey Subject: HB Pier "Let's Go Fishing Shop" Lease Honorable Council members I am a member of the Huntington Beach Fishing&Recreation Club. Our club is located at the Senior Center and has over 80 members. I urge the Council to support the renewal of the lease for the "Let's Go Fishing Shop" located on the HB Pier. Our club has actively supported, the Huntington Beach Police Department fishing events for children, the cities fishing event for mentally and physically challenged children, and the Huck Finn Fishing day. The "Let's Go Fishing Shop" has also been a major supporter and generously provided bait and fishing tackle prizes for these events. This shop was started by Mr. Johnson, a Vietnam Vet, and his wife Marion. Marion now runs the shop with her grandson Michael Rincon. Starting with a trailer on the pier, the shop has been in continuous operation for 27 years. The Shop has a reputation of being stewards of the ocean, promoting catch and release fishing, and monitoring fishermen to help ensure the pier stays clean. The business is the economic support for the family. They have supported the city and I believe the city should continue to support the family. Personally, I cannot image our pier without a full service shop that places the needs of the fishing activity as their number one priority. f 416 Switzer, Donna From: Dombo,Johanna Sent: Wednesday,August 28, 2019 11:55 AM To: Agenda Comment Cc: Fikes, Cathy; CITY COUNCIL Subject: FW: HB Pier Fishing Store AGENDA COMMENT From: David Ludwick<ilumen8dl@yahoo.com> Sent: Wednesday, August 28, 2019 11:34 AM To:CITY COUNCIL<city.council@surfcity-hb.org> Subject: HB Pier Fishing Store To: Members of the Huntington Beach City Council Erik Peterson, Mayor Council Members Lyn Semeta Patrick Brenden Kim Carr Barbara Delgleize Jill Hardy Mike Posey Subject: HB Pier "Let's Go Fishing Shop" Lease Honorable Council members I am a member of the Huntington Beach Fishing&Recreation Club. Our club is located at the Senior Center and has over 80 members. I urge the Council to support the renewal of the lease for the "Let's Go Fishing Shop" located on the HB Pier. Our club has actively supported, the Huntington Beach Police Department fishing events for children,the cities fishing event for mentally and physically challenged children, and the Huck Finn Fishing day. The "Let's Go Fishing Shop"has also been a major supporter and generously provided bait and fishing tackle prizes for these events. This shop was started by Mr. Johnson, a Vietnam Vet, and his wife Marion. Marion now tuns the shop with her grandson Michael_ Rincon. Starting with a trailer on the pier, the shop has been in continuous operation for 27 years. The Shop has a reputation of being stewards of the ocean, promoting catch and release fishing, and monitoring fishermen to help ensure the pier stays clean. The business is the economic support for the family. They have supported the city and I believe the city should continue to support the family. Personally, I cannot image our pier without a full service shop that places the needs of the fishing activity as their number one priority. 1 417 Switzer, Donna From: Dombo,Johanna Sent: Wednesday,August 28, 2019 1:37 PM To: Agenda Comment Cc: Fikes, Cathy; CITY COUNCIL Subject: FW: SAVE THE "Let's Go Fishing Shop" on the HB Pier Attachments: Fish ingShop-2,doc AGENDA COMMENT From: rrobey<rrobey@socal.rr.com> Sent:Wednesday, August 28, 2019 1:21 PM To: CITY COUNCIL<city.council@surfcity-hb.org> Cc: Bob Robey<rrobey@socal.rr.com> Subject:SAVE THE "Let's Go Fishing Shop" on the HB Pier Attached is a letter in support of renewing the lease for the "Let's Go Fishing Shop" on the HB pier. Please read and post into the record on this lease renewal proceeding. Thank you, Robert Robey Past President of the Huntington Beach Fishing and Recreation Club. HBF&RC 418 Date: 8-28-2019 To: Members of the Huntington Beach City Council Erik Peterson,Mayor Council Members Lyn Semeta Patrick Brenden Kim Carr Barbara Delgleize Jill Hardy Mike Posey Subject: HB Pier "Let's Go Fishing Shop" Lease Honorable Council members I am a member of the Huntington Beach Fishing & Recreation Club. Our club is located at the Senior Center and has over 80 members. I urge the Council to support the renewal of the lease for the "Let's Go Fishing Shop" located on the HB Pier. Our club has actively supported, the Huntington Beach Police Department fishing events for children, the cities fishing event for mentally and physically challenged children, and the Huck Finn Fishing day. The "Let's Go Fishing Shop"has also been a major supporter and generously provided bait and fishing tackle prizes for these events. This shop was started by Mr. Johnson, a Vietnam Vet, and his wife Marion. Marion now runs the shop with her grandson Michael Rincon. Starting with a trailer on the pier, the shop has been in continuous operation for 27 years. The Shop has a reputation of being stewards of the ocean, promoting catch and release fishing, and monitoring fishermen to help ensure the pier stays clean. The business is the economic support for the family. They have supported the city and I believe the city should continue to support the family. Personally, I cannot image our pier without a full service shop that places the needs of the fishing activity as their number one priority. Huntington Beach needs this special resource known as the "Let's Go Fishing Shop". Please support necessary action to renew their lease. Sincerely, Name: Robert Robey Address: 20102 Cape Cottage Lane, HB, 92646 419 Switzer, Donna From: Dombo, Johanna Sent: Wednesday,August 28, 2019 1:37 PM To: Agenda Comment Cc: Fikes, Cathy; CITY COUNCIL Subject: FW: HB Pier"Let's Go Fishing Shop" Lease AGENDA COMMENT From: Michael Monteleone<thereelmonte@yahoo.com> Sent:Wednesday, August 28, 2019 12:47 PM To: CITY COUNCIL<city.counciI@surfcity-hb.org> Cc:Don Kennelly<donkennellyl@gmail.com> Subject: HB Pier"Let's Go Fishing Shop" Lease Aug. 28, 2019 To; Members of the Huntington Beach City Council Erik Peterson, Mayor Council Members Lyn Semeta Patrick Brenden Kim Carr Barbara Delgleize Jill Hardy Mike Posey Subject: HB Pier "Let's Go Fishing Shop" Lease Honorable CouncilMembers, I am a member of the Huntington Beach Fishing&Recreation Club. Our club is located at the Senior Center and has over 80 members. I urge the Council to support the renewal of the lease for the "Let's Go Fishing Shop" located on the HB Pier. Our club has actively supported, the Huntington Beach Police Department fishing events for children, the city's fishing event for mentally and physically challenged children, and the Huck Finn Fishing day. The "Let's Go Fishing Shop" has also been a major supporter and generously provided bait and fishing tackle prizes for these events. This shop was started by Mr. Johnson, a Vietnam Vet, and his wife Marion. Marion now runs the shop with her grandson Michael Rincon. Starting with a trailer on the pier, the shop has been in continuous operation for 27 years. The Shop has a reputation of being stewards of the ocean, promoting catch and release fishing, and monitoring fishermen to help ensure the pier stays clean. The business is the economic support for the family. They have supported the city and I believe the city should continue to support the family. Personally, I cannot image our pier without a full service shop that places the needs of the fishing activity as their number one priority. i 420 Switzer, Donna From: Dombo,Johanna Sent: Tuesday, September 03, 2019 7:39 AM To: Agenda Comment Cc: Fikes, Cathy;CITY COUNCIL Subject: FW: HB Pier "Let's Go Fishing Shop" Lease Attachments: Fish ingShop2HBCityCouncil.doc AGENDA COMMENT From:Tom Connolly<tconnoll@gte.net> Sent: Monday,September 02, 2019 6:29 PM To: CITY COUNCIL<city.counciI@surfcity-hb.org> Subject: HB Pier"Let's Go Fishing Shop" Lease Please distribute the attached letter to all the members of the HB City Council. Thank you Tom Connolly 6171 Sydney Drive, Huntington Beach, CA 92647 714-801-4842 1 421 Date:8/02/2019 To: Members of the Huntington Beach City Council Erik Peterson, Mayor Council Members Lyn Semeta Patrick Brenden Kim Carr Barbara Delgleize Jill Hardy Mike Posey Subject: HB Pier "Let's Go Fishing Shop"Lease Honorable Council members I am a member of the Huntington Beach Fishing & Recreation Club. Our club is located at the Senior Center and has over 80 members. I urge the Council to support the renewal of the lease for the "Let's Go Fishing Shop" located on the HB Pier. Our club has actively supported, the Huntington Beach Police Department fishing events for children, the cities fishing event for mentally and physically challenged children, and the Huck Finn Fishing day. The "Let's Go Fishing Shop" has also been a major supporter and generously provided bait and fishing tackle prizes for these events. This shop was started by Mr. Johnson, a Vietnam Vet, and his wife Marion. Marion now runs the shop with her grandson Michael Rincon. Starting with a trailer on the pier, the shop has been in continuous operation for 27 years. The Shop has a reputation of being stewards of the ocean, promoting catch and release fishing, and monitoring fishermen to help ensure the pier stays clean. The business is the economic support for the family. They have supported the city and I believe the city should continue to support the family. Personally, I cannot image our pier without a full service shop that places the needs of the fishing activity as their number one priority. Huntington Beach needs this special resource known as the "Let's Go Fishing Shop". Please support necessary action to renew their lease. Sincerely, Tom Connolly 6171 Sydney Drive Huntington Beach, CA 92647 714-801-4842 422 Esparza, Patty From: Dombo, Johanna Sent: Monday, September 09, 2019 9:02 AM To: Agenda Comment Cc: Fikes, Cathy; CITY COUNCIL Subject: FW: HB Pier"Let's Go Fishing Shop" AGENDA COMMENT From:Suzanne Messina-Cerveilone<suzmessina@gmaiil.com> Sent: Friday, September 06, 2019 3:15 PM To: CITY COUNCIL<city.council@surfcity-hb.org> Subject: HB Pier"Let's Go Fishing Shop" Dear Erik Peterson, Mike Posey, Kim Carr, Barbara Delgleize, Patrick Brenden, Lyn Semeta, and Jill Hardy: I would like to address the lease of the "Let's Go Fishing" Shop on the pier. A local shop, a local owner, a Veteran, a shop with increasing revenues and the only lease going out to bid???? Something is running amok. Please, in the interest of those of us who live in this city, enjoy our beaches and pier and especially tourist, don't do this. This is not in the best interest of Huntington Beach or your constituents. Sincerely, Suzanne Messina You are my refuge and my shield; I have put my hope in your word. Psalm 119:114 423 Esparza, Patty From: ©ombo, Johanna Sent: Monday, September 09, 2019 9:02 AM To: Agenda Comment Cc: Fikes, Cathy; CITY COUNCIL Subject: FW: "Lets Go Fishing"shop on the Pier Lease AGENDA COMMENT From:Chris Cervellone<ccervel lone @gmail.com> Sent: Friday,September06,2019 1:55 PM To:CITY COUNCIL<city.council@surfcity-hb.org> Subject: "Lets Go Fishing" shop on the Pier Lease Honorable City Council Members, I have been a resident of Huntington Beach for over 40 years. I vote in all elections and take pride in what Huntington Beach's (Surf City) reputation and what it stands for. I am an avid fisherman in local waters and I belong to the HB Fishing Club. I am recently retired and volunteer in my community quite a bit. Now to the point. The "Let's go Fishing" shop on the pier has consistently co-sponsored many events I volunteer at including the "Huck Fin Fishing Derby" and the "Fish with a Force" events to name a few. I can not imagine the pier without this fishing shop. This shop supplies bait and tackle to pier fisherman, fisher- women, and fisher-kids and allows them to enjoy their time on the pier in Surf City. Do you know where the next closest bait shop to the pier is other than "Let's Go Fishing" ? I know most of you are Politicians but remember the wants of the people that elected you to your office. I believe this is the only lease that the City is putting out to bid on the pier at this time. Why is that? I have told it is not a matter of money as the fishing shop is a successful business providing the City with good revenue. Something smells wrong about this proposal and it is not the Fish. I would like to make a formal recommendation to extend the existing lease to the "Let's go Fishing" Shop on the pier as do many of my friends and fellow fishermen/fisher women. Thank you for your consideration in this local business matter. 40 Chris Cervellone PE (714) 713-6185 cell CCervellone(gmail.com i 424 Esparza, Patty From: Dombo, Johanna Sent: Monday, September 09, 2019 9:03 AM To: Agenda Comment Cc: Fikes, Cathy; CITY COUNCIL Subject: FW: Lease for fishing tackle shop AGENDA COMMENT -----Original Message----- From:Joe<JCasmero@aoi.com> Sent: Friday, September 06, 2019 12:23 PM To:CITY COUNCIL<city.council@surfcity-hb.org> Subject: Lease for fishing tackle shop We must continue to offer tackle, bait and supplies to the fisher people on our pier in HB X Military capt :Joe casmero, Westminster ca 714/598/9757 Sent from my iPhone 425 Esparza, Patty From: Dombo, Johanna Sent: Monday, September 09, 2019 9:03 AM To: Agenda Comment Cc: Fikes, Cathy; CITY COUNCIL Subject: FW: "Lets Go Fishing" shop on the Pier Lease AGENDA COMMENT From:Tony& Irene Messina <tonyandirene@gmail.com> Sent:Saturday,September 07, 2019 10:23 AM To: CITY COUNCIL<city.council@surfcity-hb.org> Cc: Lourdes Leis<leis.lourdes@gmail.com>; Maureen Schaller<maureen1767@gmail.com> Subject: Fwd: "Lets Go Fishing" shop on the Pier Lease We concur with Chris and are HB voters. As someone said, "If it ain't broke don't try and fix itl I" ---------- Forwarded message --------- From: Chris Cervellone<ccervelloneLd,9mail.com> Date: Fri, Sep 6, 2019 at 1:55 PM Subject: "Lets Go Fishing" shop on the Pier Lease To: <city.councilksurfcity-hb.org> Honorable City Council Members, I have been a resident of Huntington Beach for over 40 years. I vote in all elections and take pride in what Huntington Beach's (Surf City)reputation and what it stands for. I am an avid fisherman in local waters and I belong to the HB Fishing Club. I am recently retired and volunteer in my community quite a bit. Now to the point. The "Let's go Fishing" shop on the pier has consistently co-sponsored many events I volunteer at including the "Huck Fin Fishing Derby" and the "Fish with a Force" events to name a few. I can not imagine the pier without this fishing shop. This shop supplies bait and tackle to pier fisherman, fisher- women, and fisher-kids and allows them to enjoy their time on the pier in Surf City. Do you know where the next closest bait shop to the pier is other than"Let's Go Fishing" ? I know most of you are Politicians but remember the wants of the people that elected you to your office. I believe this is the only lease that the City is putting out to bid on the pier at this time. Why is that? I have told it is not a matter of money as the fishing shop is a successful business providing the City with good revenue. Something smells wrong about this proposal and it is not the Fish. 0. I would like to make a formal recommendation to extend the existing lease to the"Let's go Fishing" Shop on the pier as do many of my friends and fellow fishermen/fisher women. Thank you for your consideration in this local business matter. rig( Chris Cervellone PE (714) 713-6185 cell i 426 CCervel_loneLoDgmail.com T Mess "The tax payers are sending eongressmen/women on expensive trips abroad. It might be worth it except they keep coming back". Will Rodgers "The only difference between death and taxes is that death doesn't get worse every time congress meets". W R The income tax has made more liars out of Americans than golf'. WR z 427 Esparza, Patty From: Dombo, Johanna Sent: Monday, September 09, 2019 9:11 AM To: Agenda Comment Cc: Fikes, Cathy; CITY COUNCIL Subject: FW: Huntington Beach Pier Bait Shop AGENDA COMMENT From:fmoltane@socal.rr.com <fmoltane@socal.rr.com> Sent: Friday, September 06,2019 9:52 AM To:CITY COUNCIL<city.council@surfcity-hb.org> Subject: Huntington Beach Pier Bait Shop Huntington Beach Pier is a fun and happy place. The words Huntington Beach Pier light up fish and fishing in my mind as soon as I think of the place. I have seen so many happy moments as a child or adult for that matter catches a fish. I have never seen that kind of excitement over an over priced sandwich. I can not understand the thinking that would not grant "Let's Go Fishing Shop" an extension on their lease. Not only a lease extension but a very inexpensive lease for a place that makes the Huntington Beach Pier a more complete fun zone. "Let's Go Fishing Shop" brinsg joy to many and really support the community. "Let's Go Fishing Shop" is very colorful, clean and attractive. "Let's Go Fishing Shop" supports many of the activities in the area. They will provide bait for the fishing events held at the lakes and ponds. They have provided brand new fishing kits for the children entered in the fishing event. Furthermore "Let's Go Fishing Shop" comes and volunteers time and expertise to make the day of fishing successful for the children. Please grant "Let's Go Fishing Shop" a lease and make Huntington Beach Pier a wonderful place for all. Respectfully, Frank Moltane 1 428 Esparza, Pa!!Z From: Dombo, Johanna Sent: Monday, September 09, 2019 9:12 AM To: Agenda Comment Cc: Fikes, Cathy; CITY COUNCIL Subject: FW: Fishing AGENDA COMMENT From:William Simek<wjsimek@hotmail.com> Sent: Friday,September 06, 2019 9:13 AM To: CITY COUNCIL<city.council@surfcity-hb.org> Subject: Fishing Save Pier fishing'. KEEP the fish store open and renew there lease. W.J. Simek Huntington Beach 1 429 Esparza, Patty From: Dombo, Johanna Sent: Monday, September 09, 2019 12:51 PM To: Agenda Comment Cc: Fikes, Cathy; CITY COUNCIL Subject: FW: AGENDA COMMENT From: Patrick Carrillo<patmcarrillo@gmail.com> Sent: Monday,September 09, 2019 12:50 PM To:CITY COUNCIL<city.council@surfcity-hb.org>; Patrick Carrillo <patmcarrillo@gmail.com> Subject: Email to : (cit.y.council!(surfeits-IIB.or�) Date: To: Members of the Huntington Beach City Council Erik Peterson, Mayor Council Members Lyn Semeta Patrick Brenden Kim Carr Barbara Delgleize Jill Hardy Mike Posey Subject: HB Pier&quot;Let&439;s Go Fishing Shop&quot; Lease Honorable Council members I am a member of the Huntington Beach Fishing &amp; Recreation Club. Our club is located at the Senior Center and has over 80 members. I urge the Council to support the renewal of the lease for the &quot;Let&#39;s Go Fishing Shop&quot; located on the HB Pier. Our club has actively supported, the Huntington Beach Police Department fishing events for children, the cities fishing event for mentally and physically challenged children, and the Huck Finn Fishing day. The "Let's Go Fishing Shop"has also been a major supporter and generously provided bait and fishing tackle prizes for these events. This shop was started by Mr. Johnson, a Vietnam Vet, and his wife Marion. Marion now runs the shop with her grandson Michael Rincon. Starting with a trailer on the pier, the shop has been in continuous operation for 27 years. The Shop has a reputation of being stewards of the ocean, promoting catch and release fishing, and monitoring fishermen to help ensure the pier stays clean. The business is the economic support for the family. They have supported the city and I believe the city should continue to support the family. Personally, I cannot image our pier without a full service shop that places the needs of the fishing activity as their number one priority. Huntington Beach needs this special resource known as the &quot;Let&#39;s Go Fishing Shop&quot;. Please support necessary action to renew their lease. Sincerely, Name: Patrick Carrillo Address 8391 Danbury cir._Huntington Beach 92646 (ZIP) 1 430 Esparza, Patty From: Dombo, Johanna Sent: Monday, September 09, 2019 2:02 PM To: Agenda Comment Cc: Fikes, Cathy; CITY COUNCIL Subject: FW: Fishing on the H.B. Pier AGENDA COMMENT From: Patrick Carrillo<patmcarrillo@gmail.com> Sent: Monday, September 09, 2019 12:53 PM To:CITY COUNCIL<city.council@surfcity-hb.org> Subject: Fishing on the H.B. Pier Members, The following is some information concerning the fishing store on the pier. Everyone is requested to send a short letter to the members of the city council supporting the renewal of the lease to Michael Rincon and family. Send one email to : (city.counci.igsurfcity-HB.or•g). All member of the city council will receive a copy. Evidently, the council counts one letter as speaking for eight voices. My letter is attached for your information. However, I suggest you write your own. Three or four sentences is all that is needed. 1. This business has operated on the HB Pier for 27 years. 2. The lease expires November 2019. It is for 5 years and this would be current owners third renewal. 3. Mr. Johnson is a Vietnam Veteran, currently unable to work due to illness 4. Wife,Marion Johnson runs the shop with her Grandson Michael Rincon. 5. Only shop on the pier whose lease is out for bid. 6. Reasons given : "not enough density" " we do this from time to time". 7. There doesn't seem to be a performance issue, in fact,revenues to the city have increased at least 5 fold in the past 2 years. 8. There are 2 other bidders for the location one of which is the owner of Zacks, who around 2 years ago went behind the Johnson's back trying to get the city to sublease a part of the fishing shop for a fast food outlet. 9. It is possible the city will announce bid award this month so we need to get the messages to the council out ASAP. 10. The shop is a supporter of the Carr Park event, Huck Finn events which help our club, HB Police events. 11. The Shop preaches catch and release from the pier and works with the anglers to keep the benches free of bait preparation. i 431 Esparza, Patty From: Dombo, Johanna Sent: Monday, September 09, 2019 4:21 PM To: Agenda Comment Cc: Fikes, Cathy; CITY COUNCIL Subject: FW: Honorable Council members "LETS AGENDA COMMENT From:Tom Gill <the2gills@gmail.com> Sent: Monday,September 09, 2019 4:08 PM To: CITY COUNCIL<city.council@surfcity-hb.org> Subject: Honorable Council members"LETS I ama memberor the Huntington Beach Fishing&Recreation Club.Our club is locatedat the Senior Center and has over 80 Members.I urge the Council to support the renewal of the lease for the"Lets Go Fishing Shop" Located on tho HB Pier thank you Th.omas gill 8656 Fresno Cir# 507E HB 92646 i HAVE BEEN A MEMBER FOR 17 YEARS THANK YOU , z 432 Esparza, Patty From: Dombo, Johanna Sent: Tuesday, September 10, 2019 7:50 AM To: Agenda Comment Cc: Fikes, Cathy; CITY COUNCIL Subject: FW: Fishing shop on pier AGENDA COMMENT From:Ron Levin <ronaldplevin@yahoo.com> Sent: Monday,September 09, 2019 8:45 PM To:CITY COUNCIL<city.council@surfcity-hb.org> Subject: Fishing shop on pier Many of the locals really appreciate this store. Many of the tourists love this spot, I think it is a great draw. Please renew the lease. Ron Levin 1 433 Esparza, Patty From: Dombo, Johanna Sent: Tuesday, September 10, 2019 2:37 PM To: Agenda Comment Cc: Fikes, Cathy; CITY COUNCIL Subject: FW: Lease of Mr. Johnson's shop on the pier AGENDA COMMENT From: Rick deMartino<rickdemartino@earthlink.net> Sent:Tuesday, September 10, 2019 2:26 PM To:CITY COUNCIL<city.council@surfcity-hb.org> Subject: Lease of Mr.Johnson's shop on the pier Hello, I am a long time resident of Meredith Gardens in Huntington Beach. I am writing to support Mr.Johnsons lease renewal of the "Let's go Fishing" shop on the pier this November. As you all must know, Mr.Johnson is a Viet Nam Veteran and currently ill. His wife Marion and grandson Michael are currently running the fishing store on the pier as their main source of income, as the family has for almost three decades. That shop is a terrific plus for the City because it has introduced countless mentally and physically challenged Special Needs kids to the sport of fishing, and kept many of the youths away from knuckleheads and out of trouble. Additionally, the Johnsons have supported a host of recreational events in Huntington Beach, primarily to support the youths of the City over the years and it would be a shame and inappropriate to backdoor them off of the pier. Accordingly, I am requesting that you take a hard look at what you want this City to stand for in the long term. Respectfully, Rick DeMartino (714)791-5161 1 434 j, CITY OF HUNTINGTON BEACH ' INTERDEPARTMENTAL COMMUNICATION OFFICE OF BUSINESS DEVELOPMENT TO: Oliver Chi, City Manager FROM: Travis Hopkins,Acting Assistant City Manager DATE: November 4, 2019 SUBJECT: Late Communication for Council Meeting Item 917—Approve and authorize execution of a Lease Agreement for Let's Go Fishing and Surf City Snack Bar, LLC, at the Huntington Beach Pier Attached is the Lease Agreement, signed by the lessee, between the City of Huntington Beach and Let's Go Fishing and Surf City Snack Bar, LLC. The agreement has two changed requested by Let's Go Fishing and Surf City Snack Bar: 1. Updating the business name to Let's Go Fishing and Surf City Snack Bar, LLC. (page 1 and page 46) 2. Deleting the Section 16 (on page 10). Removing the requirement for the security deposit. Attachment: Lease between the City of Huntington Beach and Let's Go Fishing and Surf City Snack Bar, LLC in the City of Huntington Beach. SUPPLEMENTAL COMMUNICATION Meeting Data._ #k q/16 Agenda thmm No.: l 0 6�— 1//GI