HomeMy WebLinkAboutC-7053-1 - Concession Agreement - Corona del Mar State BeachCONCESSION AGREEMENT
by and between
CITY OF NEWPORT BEACH,
a California municipal corporation
"City"
and
BROTHERS HUSKEY, LLC.
a California limited liability company
"Concessionaire"
Dated as of October 29, 2015
CONCESSION AGREEMENT
THIS CONCESSION AGREEMENT ("Agreement") is made and entered into as
of the 29th day of October, 2015 ("Effective Date"), by and between the CITY OF
NEWPORT BEACH, a California municipal corporation and charter city ("City"), and
BROTHERS HUSKEY, LLC, a California limited liability company ("Concessionaire").
City and Concessionaire are at times individually referred to as "Party" and collectively
as "Parties" herein.
RECITALS
A. Corona del Mar State Beach is part of the California State Parks system,
and is operated by the City pursuant to the Operating Agreement by and between the
City and the State of California, dated August 1, 1999 (the "Operating Agreement").
Pursuant to the Operating Agreement, City agreed "to develop, operate, control and
maintain the premises as public recreational beach and park with related concession..."
B. In September 2005, the concession located at Corona del Mar State
Beach was closed to commence construction of the Corona del Mar Beachgoer
Amenities Improvement Project ("Project"). The Project included the improvement of a
one thousand forty-three (1,043) square foot concession facility which is depicted on
Exhibit "A" and incorporated herein by this reference ("Premises").
C. The City issued a Request for Proposals for Concession Operations at
Corona del Mar State Beach on December 9, 2011, and after a careful evaluation
process, the City selected Rooster Cafe at CdM, LLC. The City and Rooster Cafe at
CdM, LLC entered into the Corona del Mar State Beach Concession Agreement, dated
March 13, 2012.
D. On or around July 2015, Concessionaire entered into an agreement with
Rooster Cafe at CdM, LLC to sublease the Premises. On July 10, 2015 Concessionaire
began operating at the Premises under the name Tackle Box.
E. On October 28, 2015, the City terminated the Corona del Mar State Beach
Concession Agreement dated March 13, 2013.
F. City and Concessionaire desire to enter into this month-to-month
Agreement for the purpose of allowing Concessionaire to operate a concession area
intended to provide food and drink service and beach rentals to beach visitors
("Concession").
Brothers Huskey, LLC Concession Agreement Page 2
G. In accordance with City Council Policy F-7, whenever an open bid process
is not conducted, the City shall make specific findings setting forth the reasons
thereof. The City did not conduct an open bid process for the month-to-month leasing
of the Premises as the City is in the process of soliciting proposals for a new long-term
concessionaire; in the interim, converting the property to another use or changing the
current concessionaire of the property would result in loss in revenue, excessive
vacancy, and relocation or severance costs, which would outweigh other financial
benefits. Although no appraisal was conducted, Rent, as defined herein, is comparable
to current market rates to ensure that revenue is equivalent to the open market value of
the highest and best use of the Premises and the highest financial return.
NOW, THEREFORE, in consideration of the mutual covenants contained herein
and other good and valuable consideration, the receipt of which is hereby
acknowledged, the Parties hereto agree as follows:
AGREEMENT
1. DEFINITIONS
1.1 General Definitions. As used in this Agreement, the following words and
phrases shall have the following meanings:
(a) Alteration — any improvements, additions, alterations, changes, or
modifications of the Premises made by Concessionaire including, but not limited to
fixtures and signage.
(b) Authorized City Representative — the City Manager or his/her
designee.
(c) Expiration - the lapse of the time specified as the Term of this
Agreement, including any extension of the Term resulting from the exercise of an option
to extend.
(d) Good Condition - neat and broom -clean, and is equivalent to similar
phrases referring to physical adequacy in appearance and for use.
(e) Law - any judicial decision, statute, constitution, ordinance,
resolution, regulation, rule, administrative order, or other requirement of any municipal,
county, state, federal, or other government agency or authority having jurisdiction over
the parties hereto or the Premises.
(f) Maintenance or Maintain - repairs, replacement, maintenance,
repainting, and cleaning.
(g) Person - one or more natural persons, or legal entities, including,
without limitation, partnerships, corporations, trusts, estates, associations, or a
combination of natural persons and legal entities.
Brothers Huskey, LLC Concession Agreement Page 3
(h) Provision - any term, covenant, condition, or clause in this
Agreement that defines, establishes, or limits the performance required or permitted by
either party.
(i) Rent — includes Base Rent, Percentage Rent, taxes, and other
similar charges payable by Concessionaire under the provisions of this Agreement.
(j) Successor - assignee, transferee, personal representative, heir, or
other Person succeeding lawfully, and pursuant to the provisions of this Agreement, to
the rights or obligations of either Party.
(k) Termination - the termination of this Agreement, for any reason,
prior to Expiration.
1.2. Other Definitions. - The following additional terms are defined in the
following sections of this Agreement:
(a)
Base Rent
§4.2
(b)
Claim or Claims
§10.1
(c)
Concession
Recitals, §F
(d)
Gross Sales
§4.6
(e)
Hazardous Materials
§17
(f)
Indemnified Parties
§6.3
(g)
Percentage Rent
§4.3.1
(i)
Project
Recitals, §B
(j)
Premises
Recitals, §B
(k)
Term
§3
2. PREMISES
City finds it to be in the public interest and consistent with park uses to grant an
exclusive right to operate a Concession at the Corona del Mar State Beach. Therefore,
pursuant to the terms and conditions set forth herein, City hereby grants to
Concessionaire the exclusive right, privilege and concession to conduct a business at
the Premises engaged in selling such items as those described in Section 5.1, Business
Purposes. Concessionaire agrees to accept the Premises in an "as is" condition as
tendered by City. Concessionaire agrees that no representations with respect to the
condition or improvements of the Premises have been made by City except as
specifically set forth in this Agreement.
Brothers Huskey, LLC Concession Agreement Page 4
3. TERM
Term of Agreement. The Term of this Agreement shall be month-to-month,
commencing on the Effective Date and may be terminated by either Party for any
reason by providing thirty (30) days' prior written notice to the other Party.
4. RENT
4.1. From May to September of each year, Concessionaire shall pay the
greater of Base Rent or Percentage Rent. From October to April of each year,
Concessionaire shall only pay Percentage Rent.
4.2. Base Rent. The Base Rent shall be established at Two Thousand One
Hundred and 00/100 Dollars ($2,100.00) per month. Base Rent shall be paid, in
advance, in equal monthly installments on the first day of each month. Base Rent for
any partial month shall be prorated in accordance with the actual number of days in that
month and shall be due on the first day of that month that falls within the Term.
Annually, upon each successive anniversary date of the Effective Date, the Base Rent
shall be increased three percent (3%).
4.3. Percentage Rent.
4.3.1. Payment. "Percentage Rent" shall be determined each calendar
month and shall be calculated by multiplying six percent (6%) by the total Gross
Sales (as defined in Section 4.6) made in, upon, or from the Premises and/or otherwise
attributable to the Premises for the calendar month. For each month that Percentage
Rent exceeds Base Rent, Concessionaire shall pay to City the Percentage Rent less
the Base Rent paid to the City for that month, if applicable.
4.3.2. Accounting and Payment. Within twenty-five (25) days after the
end of each calendar month for the term hereof, as may be extended as provided
herein, commencing with the twenty-fifth (25th) day of the month following the Effective
Date, and ending with the twenty-fifth (25th) day of the month next succeeding the last
month of the term, as may be extended as provided herein, Concessionaire shall furnish
to City a statement in writing, certified by Concessionaire to be correct, showing the
total Gross Sales made in, upon, or from and/or otherwise attributable to the Premises
during the preceding calendar month (or fractional month at the beginning of the term if
the Effective Date is other than the first day of a month), and shall accompany each
such statement with the Percentage Rent payment to City, less the Base Rent already
paid to the City for that month, if applicable.
4.4. Revenue from Premises Use in Film, Television, and/or Advertising.
Concessionaire may allow the Premises to be used for film, television production,
advertising production, or other media vehicle only upon written approval from the City
Brothers Huskey, LLC Concession Agreement Page 5
and in compliance with the Newport Beach Municipal Code. One-half (1/2) of all
monetary revenue received by Concessionaire as compensation or other payment for
the use of the Premises in a film, television production, advertising production, or other
media vehicle shall be paid to City. The payment of revenue pursuant to this Section
shall occur not less than thirty (30) days after Concessionaire receives this
compensation or other payment.
4.5. Payment Location. Rent shall be payable at the office of the City's
Revenue Division at 100 Civic Center Drive, Newport Beach, California, or at such other
place or places as City may from time to time designate by written notice delivered to
Concessionaire; or by electronic delivery if mutually agreed upon by City and
Concessionaire at www.newportbeachca.gov. Concessionaire assumes all risk of loss
and responsibility for late charges and delinquency rates if Rent is not timely received
by the City regardless of the method of transmittal.
4.6. Gross Sales.
4.6.1. The term "Gross Sales" means:
(1) all money, cash receipts, assets, property or other things of
value, including but not limited to gross charges, sales, rentals, fees and commissions
made or earned by Concessionaire and/or any assignees, licensees, permittees or
concessionaires thereof, whether collected or accrued from any business, use or
occupation, or any combination thereof, originating, transacted or performed in whole or
in part, on the Premises, including but not limited to rentals, the rendering or supplying
of services and the sale of goods, wares or merchandise, whether wholesale or retail,
whether for cash or credit, or otherwise, and including the value of all consideration
other than money received for any of the foregoing, without, except as expressly
provided in Section 4.6(b), deduction from gross receipts for any overhead or cost or
expense of operations, such as, but without limitation to salaries, wages, costs of
goods, interest, debt amortization, credit, collection costs, discount from credit card
operations, insurance and taxes. Each installment or credit sale shall be treated as a
sale for the full price in the month during which such sale is made, irrespective of
whether or when Concessionaire receives payment therefore. Gross Sales shall
include any amount allowed upon any "trade in," the full retail price of any merchandise
delivered or redeemed for trading stamps or coupons and all deposits not refunded to
purchasers;
(2) Orders taken in or from the Premises, even if the orders are
filled elsewhere, and sales by any subconcessionaire in or from the Premises;
(3) Gross receipts of all coin-operated devices that are placed
on the Premises by Concessionaire or pursuant to any rent concession, percentage or
other arrangement (but excluding revenue from telephones that are collected by a
public and/or private utility); and
Brothers Huskey, LLC Concession Agreement Page 6
(4) Rentals of any beach equipment, beach furniture, goods,
wares or merchandise.
4.6.2. Exclusions from Gross Sales. Gross Sales shall not include, or if
included there shall be deducted (but only to the extent they have been included), the
following:
(1) Sales and use taxes, so-called luxury taxes, consumers'
excise taxes, gross receipts taxes, and other similar taxes now or in the future imposed
on the sale of merchandise or services, but only if such taxes are added to the selling
price and collected from customers;
(2) The amount of returns to shippers or manufacturers;
(3) The amount of any cash or credit refund made upon any
sale where the merchandise sold or some portion is returned by the purchaser. Each
sale upon installment or credit shall be treated as a sale for the full price in the month
during which such sale shall be made, irrespective of the time when Concessionaire
shall receive payment (whether in full or partial) from its customers;
(4) Sales of trade fixtures or personal property to be replaced by
Concessionaire that are not considered stock in trade;
(5) Sums and credits received in the settlement of claims for
loss of or damage to merchandise;
(6) Meals provided for officers or employees without charge;
(7) Meals, goods or products provided for promotional or
publicity purposes without charge;
(8) Cash refunds made to customers in the ordinary course of
business;
(9) Value added taxes ("VAT") or other taxes added to the
selling price of products and other similar taxes now or hereafter imposed upon the sale
of merchandise or services, whether such taxes are added to, or included in the selling
price;
(10) Discounted sales to employees of Concessionaire, not to
exceed two percent (2%) of the monthly Gross Sales;
(11) Uncollectible credit accounts and other bad debts, not to
exceed two percent (2%) of the monthly Gross Sales; and
(12) Amounts paid to charge card or credit card issuers.
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4.6.3. Annual Statements of Gross Sales. Within thirty (30) days after the
end of each calendar year during the Term hereof or within thirty (30) days of
Termination of this Agreement, Concessionaire shall furnish to City a statement in
writing, certified by Concessionaire and a Certified Public Accountant to be correct,
showing the total Gross Sales made in, upon, or from and/or otherwise attributable to
the Premises during the preceding calendar year (or fractional year at the beginning of
the term if the Effective Date is other than the first day of the year).
4.6.4. Sales and Charges. All sales and charges shall be recorded by
means of cash registers that display the amount of the transaction certifying the amount
recorded. The register shall be equipped with devices that log in daily sales totals, and
record on tapes the transaction numbers and sales details. At the end of each day the
tape will record the total sales for that day.
4.6.5. Production of Statement, Records and Audit. Concessionaire shall
keep at the Premises (and shall require any permitted subconcessionaire to keep at the
Premises) full, complete and proper books, records and accounts of its daily Gross
Sales, both for cash and on credit, at any time operated in the Premises.
Concessionaire agrees to make available for inspection by City at the Premises, a
complete and accurate set of books and records of all sales of goods, wares, and
merchandise and revenue derived from the conduct of business or activity in, at or from
the Premises from which Gross Sales can be determined. Concessionaire shall also
make available, upon City request, all supporting records. Concessionaire shall also
furnish City copies of its quarterly California sales and use tax returns at the time each
is filed with the State of California. Concessionaire shall retain and preserve for at least
three (3) years all records, books, bankbooks or duplicate deposit books and other
evidence of Gross Sales. City shall have the right, upon reasonable notice, during the
Term and within one hundred eighty (180) days after Expiration or Termination of this
Agreement to inspect and audit Concessionaire's books and records and to make
transcripts to verify the Rent due to the City. The audit may be conducted at any
reasonable time during normal business hours. Concessionaire shall cooperate with
City in making the inspection and conducting the audit. The audit shall be limited to the
determination of Gross Sales and shall be conducted during usual business hours in a
manner that minimizes any interference with the conduct of Concessionaire's regular
business operations. If the audit concludes that there is a deficiency in the payment of
any Rent, the deficiency shall become due and payable within twenty (20) days and if
there is an overpayment, City shall refund the amount of the overpayment within twenty
(20) days. City shall bear its costs of the audit unless the audit shows that
Concessionaire understated Gross Sales by more than two percent (2%), in which case
Concessionaire shall pay all City's reasonable costs of the audit. City shall not disclose
financial information received in confidence and pursuant to this Agreement except to
carry out the purposes of this Agreement unless disclosure is required (rather than
permitted) by law. However, City may disclose the results of any audit in connection
with any financing arrangements, the sale or transfer of City's interest in the Premises,
pursuant to order of a court or administrative tribunal, or to collect any outstanding Rent.
Brothers Huskey, LLC Concession Agreement Page 8
4.6.6. Concessionaire's Gross Sales Audit. In the event of any audit by
City in accordance with this Agreement, Concessionaire may contest the results of
City's audit by performing a confirming audit, at Concessionaire's expense, within sixty
(60) days of receipt of City's audit results and supporting evidence, using an
independent Certified Public Accountant reasonably acceptable to City.
4.6.7. Acceptance. The acceptance by City of any money paid to City by
Concessionaire as Percentage Rent for the Premises, as shown by any statement
furnished by Concessionaire, shall not be construed as an admission of the accuracy of
said statement, or of the sufficiency of the amount of the Percentage Rent payment.
4.7. Late Payment. Concessionaire hereby acknowledges that the late
payment of Rent or other sums due hereunder will cause City to incur costs not
contemplated by this Agreement, the exact amount of which is extremely difficult to
ascertain. Such costs include, but are not limited to, processing and accounting
charges. Accordingly, any payment of any sum to be paid by Concessionaire not paid
within five (5) days of its due date shall be subject to a ten percent (10%) late charge.
City and Concessionaire agree that this late charge represents a reasonable estimate of
such costs and expenses and is fair compensation to City for its loss suffered by such
late payment by Concessionaire.
4.8. Interest on Unpaid Sums. Unpaid sums due to either City or
Concessionaire under this Agreement shall bear interest at the rate of ten percent
(10%) per annum on the unpaid balance, including but not limited to late payment
penalties, from the date due until paid.
5. BUSINESS PURPOSES AND USE OF PREMISES
5.1. Business Purposes. The Premises are to be used by Concessionaire for
the operation of a concession selling food, non-alcoholic beverages, and miscellaneous
beach -related merchandise, as well as for the rental of beach -related products,
including but not limited to, umbrellas, and beach chairs. Concessionaire's proposed
menu is hereby attached as Exhibit "B." Pricing for these products will be comparable
to prices at nearby beach concession facilities. Alcoholic beverage sales or giveaways
are prohibited.
5.2. Operation of Premises. Concessionaire shall operate and manage the
Premises in a manner comparable to other high quality businesses providing similar
food and services. Deliveries shall be made and completed only between 7 a.m. and 6
p.m. on non -holiday weekdays.
5.3. Prohibited Uses. Concessionaire shall not sell or permit to be kept, used,
displayed or sold in or about the Premises (a) pornographic or sexually explicit books,
magazines, literature, films or other printed material, sexual paraphernalia, or other
material which would be considered lewd, obscene or licentious, (b) any article which
may be prohibited by standard forms of fire insurance policies, or (c) any alcoholic
Brothers Huskey, LLC Concession Agreement Page 9
beverages. Vending machines, gaming machines or video or arcade games shall not
be used or installed on the Premises unless expressly permitted by this Agreement.
Concessionaire shall not use or permit the use of the Premises in any manner that (a)
creates a nuisance or (b) violates any Law. Concessionaire shall not offer entertainment
or broadcast music or entertainment through exterior speakers or other form of
transmission without the written approval of City. In this event, Concessionaire shall
obtain all required City permits and approvals.
5.4. Food Packaging and Debris. Concessionaire shall use food packaging
consistent with good environmental practices, including prohibiting polystyrene (also
known as Styrofoam) from the Premises, minimizing the use of PVC plastics (especially
plastic bags for carrying food), and providing both trash receptacles and places for
customers to dispose of recyclable products.
5.5. Outdoor Dining. Concessionaire shall be permitted to use up to eighteen
(18) tables on a portion of the paved area outside of the Premises, in accordance with
City zoning codes and State requirements. The layout of the tables is subject to
approval by the City. Concessionaire may not expand onto the beach area, or place
any temporary furniture or objects onto the beach area.
5.6. Operation. Weather permitting, Concessionaire shall keep the Premises
in operation and open to the public for business in accordance with the following
schedule:
5.6.1. From Memorial Day through Labor Day - open daily, hours from at
least 9:00 a.m. to 6:00 p.m., but in no event, no earlier than 6:00 a.m. and no later than
10:00 P.M.
5.6.2. From the day after Labor Day to the day before Memorial Day open
Tuesday — Sunday, from at least 11:00 a.m. to 4:00 p.m., but in no event, no earlier
than 6:00 a.m., and no later than 10:00 p.m.
5.6.3. Concessionaire may close the Concession during periods of
remodeling, reconstruction, inventory and emergencies (including substantially
inclement weather) or to comply with Laws.
5.7. Food Preparation. Concessionaire shall install, at Concessionaire's own
expense, fire protective systems in grill, deep fry, and cooking areas which are required
by City, County, and state fire ordinances. Concessionaire shall also install adequate
ventilation systems to operate the cooking area.
5.8. Advertising Display. Concessionaire may, at its own expense, place unlit
signs in or upon the Premises subject to the prior written consent of the City as to the
size, type, number, design and method of installation and in compliance with the City's
sign code regulations. All signage placed by Concessionaire on, in or about the
Premises shall remain the property of Concessionaire and shall be removed by
Concessionaire upon Termination or Expiration of this Agreement at Concessionaire's
Brothers Huskey, LLC Concession Agreement Page 10
expense; and any damage caused by removal shall be repaired at Concessionaire's
expense.
5.9. Personnel. Concessionaire shall be responsible for hiring the necessary
personnel to conduct the daily operation of Concession. Concessionaire shall comply
with all federal, state, and local Laws related to minimum wage, social security,
nondiscrimination, ADA, unemployment compensation, and workers' compensation. If
required by the City, employees shall wear a uniform and/or identification badge.
5.10. Independent Contractor. It is understood that Concessionaire is an
independent contractor and not an agent or employee of City. Nothing in this
Agreement shall be deemed to constitute approval for Concessionaire or any of
Concessionaire's employees or agents, to be the agents or employees of City. City
shall have no interest in the business of Concessionaire.
5.11. No Distress Sales. No auction, fire, bankruptcy, "going out of business" or
other distress sales of any nature may be conducted on the Premises without the prior
written consent of the City Manager, which approval will not be unreasonably withheld
but may be conditioned.
5.12. Parking for Employees. City shall provide Concessionaire with four (4)
Annual Parking Permits each year for its employees. Annual Parking Permits shall be
terminated concurrently with Termination of this Agreement, and returned to City.
6. TAXES LICENSES AND OTHER OBLIGATIONS
6.1. Payment of Taxes. Concessionaire shall pay directly to the appropriate
taxing authorities all taxes applicable to this Agreement, fixtures and Concessionaire's
personal property on the Premises, that are levied or assessed against Concessionaire
during the Term. Taxes shall be paid at least ten (10) days before delinquency and
before any fine, interest or penalty is due or imposed by operation of law.
Concessionaire shall, upon request, promptly furnish to the City satisfactory evidence of
payment. Concessionaire acknowledges that this Agreement may create a possessory
interest subject to property taxation and that Concessionaire may be subject to the
payment of property taxes levied on such interest. Concessionaire shall pay, before
delinquency all taxes, assessments, license fees and other charges ("Taxes") that are
levied or assessed against Concessionaire's interest in the Premises or any personal
property installed on the Premises.
6.2. Payment of Obligations. Concessionaire shall promptly pay, when due,
any and all bills, debts, liabilities and obligations incurred by Concessionaire in
connection with Concessionaire's occupation and use of the Premises.
6.3. Challenge to Taxes. Concessionaire shall have the right in good faith, at
its sole cost and expense, to contest the amount or legality of any Taxes on or
attributable to this Agreement, the Premises, Concessionaire's personal property, or
Brothers Huskey, LLC Concession Agreement Page 11
Concessionaire's occupation and use of the Premises, including the right to apply for
reduction. If Concessionaire seeks a reduction or contests such taxes,
Concessionaire's failure to pay the taxes shall not constitute a default as long as
Concessionaire complies with the provisions of this Section. City shall not be required
to join in any proceeding or contest brought by Concessionaire unless the provisions of
any Law require that the proceeding or contest be brought by or in the name of City or
any owner of the Premises. In that case, City shall join in the proceeding or contest or
permit it to be brought in City's name as long as City is not required to bear any cost. If
requested by Concessionaire, City shall execute any instrument or document necessary
or advisable in connection with the proceeding or contest. Concessionaire, on final
determination of the proceeding or contest, shall immediately pay or discharge any
decision or judgment rendered, together with all related costs, charges, interest and
penalties. Concessionaire shall indemnify, defend and hold harmless the City, its City
Council, appointed or elected officers, boards, commissions, employees, Authorized
City Representatives, agents and volunteers ("Indemnified Parties") from and against
any liability, claim, demand, penalty, cost or expense arising out of or in connection with
any contest by Concessionaire pursuant to this Section.
7. UTILITIES.
Concessionaire shall make all arrangements for utilities installation and pay for all
utilities furnished to or used on the Premises, including, without limitation, gas,
electricity, water, telephone service, and cable TV. Concessionaire may use City's
trash enclosures or public trash cans, provided however, that City may, at City's
discretion, require Concessionaire to arrange for its own refuse collection. Any repair to
utility lines within the Premises is the sole responsibility of Concessionaire.
Concessionaire shall service and maintain the Concession's 1500 -gallon grease
interceptor. Refuse collection and grease interceptor maintenance shall occur between
7:00 a.m. and 6:00 p.m. on non -holiday weekdays.
8. ALTERATIONS TO THE PREMISES.
8.1. Concessionaire Improvements. Concessionaire acknowledges that City
has delivered the Premises without any improvements, and it shall be Concessionaire's
responsibility to install any improvements as necessary for the Concession to operate.
All Concessionaire improvement plans and construction shall be subject to the prior
written approval of the City. Concessionaire improvements shall be performed between
7:00 a.m. and 6:00 p.m. on non -holiday weekdays. Any contractors hired by
Concessionaire shall be fully licensed and bonded. Concessionaire's contractors and
any subcontractors shall obtain insurance in an amount and form to be approved by
City's Risk Manager, including workers compensation insurance as required by law,
general liability, automobile liability and builder's risk insurance covering improvements
to be constructed, all pursuant to standard industry custom and practice. City shall be
named as an additional insured on the contractors and any subcontractors policies.
Brothers Huskey, LLC Concession Agreement Page 12
8.2. Permits. Concessionaire shall obtain, and be responsible for the costs for,
all building permits, health department permits and other required permits prior to
commencement of Concessionaire improvements and operations.
8.3. Quality of Work Performed. All alterations, maintenance and other work
shall be performed in a good and workmanlike manner, shall comply with the plans and
specifications submitted to City, and shall comply with all applicable governmental
permit requirements and Laws in force at the time permits are issued.
8.4. Payment of Costs. Concessionaire shall pay all costs related to the
construction of the improvements and any Alterations by Concessionaire or its agents.
8.5. Liens. Concessionaire shall keep the Premises free from any liens arising
out of any work performed, material furnished, or obligation incurred by Concessionaire
or alleged to have been incurred by Concessionaire.
8.6. Disposition of Alterations at Expiration or Agreement Termination. Any
Alterations made to the Premises shall remain on, and be surrendered with, the
Premises on Expiration or Termination of this Agreement (excluding Concessionaire's
fixtures, equipment, furniture, and moveable decorations). However, City may elect not
less than thirty (30) days prior to Expiration or Termination of this Agreement, to require
Concessionaire to remove any Alterations that Concessionaire has made to the
Premises. If City requires removal of Alterations, Concessionaire shall, at its cost,
remove the Alterations and restore the Premises to a broom -clean condition before the
last day of the Term, or within thirty (30) days after notice is given, whichever is later.
Prior to Expiration or within fifteen (15) days after Termination of this Agreement,
Concessionaire may remove any moveable partitions, machinery, equipment, furniture,
and trade fixtures previously installed by Concessionaire, provided that Concessionaire
repairs any damage to the Premises caused by removal.
9. MAINTENANCE OF PREMISES
9.1. Maintenance and Repair by Concessionaire and City. Concessionaire
agrees that it will keep the Premises in Good Condition. Graffiti shall be called in to the
City's Graffiti Hotline for removal. City may perform Maintenance or repairs in the event
Concessionaire fails to commence required Maintenance or repairs within three (3)
business days after receipt of notice to do so. The cost of any Maintenance or repairs
by the City pursuant to this Section shall be payable as additional Rent. All furnishings,
equipment, facilities, improvements, alterations, attachments and appurtenances not
provided by City, but required for concession operations, including all kitchen equipment
and interior furnishings, shall be maintained in Good Condition and repair by
Concessionaire at its cost. City may perform required cleaning and charge the costs to
Concessionaire if the Concessionaire fails to perform within five (5) days after notice to
do so and continue to maintain the area as required by this Agreement.
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9.2. Entry by City. Upon twenty-four (24) hour notice to Concessionaire, City
and its Authorized City Representatives may enter upon and inspect the Premises at
any reasonable time for any lawful purpose. In case of emergency, City or its Authorized
City Representative may enter the Premises by whatever force necessary if
Concessionaire is not present to open and permit an entry. Any entry to the Premises
by City shall not be construed as a forcible or unlawful entry into, or a detainer of, the
Premises, or an eviction of Concessionaire from the Premises or any portion thereof.
10. INDEMNITY AND EXCULPATION; INSURANCE
10.1. Hold -Harmless Clause. Concessionaire agrees to indemnify, defend and
hold harmless the City, its City Council, Boards, Commissions, officers, agents,
volunteers, employees, and the State of California (collectively, the "Indemnified
Parties") from and against any and all claims (including, without limitation, claims for
bodily injury, death or damage to property), demands, obligations, damages, actions,
causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and
expenses (including, without limitation, attorney's fees, disbursements and court costs)
of every kind and nature whatsoever (individually, a "Claim"; collectively, "Claims"),
which may arise from or in any manner relate (directly or indirectly) to Concessionaire's
possession, occupation or use of the Premises, specifically including, without limitation,
any claim, liability, loss, or Damage arising by reason of:
(1) The death or injury of any Person or damage to personal property
caused or allegedly caused by the condition of the Premises or an act or omission of
Concessionaire or an agent, contractor, subcontractor, supplier, employee, servant,
sublessee or concessionaire of Concessionaire;
(2) Any work performed on the Premises or materials furnished to the
Premises at the request of Concessionaire or any agent or employee of
Concessionaire, with the exception of Maintenance performed by City; and/or
(3) Concessionaire's failure to perform any provision of this Agreement
or to comply with any requirement of Law or any requirement imposed on the Premises
by any duly authorized governmental agency or political subdivision.
Concessionaire's obligations pursuant to this Subsection shall not extend to any
Claim proximately caused by the sole negligence, willful misconduct, or unlawful or
fraudulent conduct on the part of the Indemnified Parties. This indemnity shall apply to
all claims and liability regardless of whether any insurance policies are applicable.
10.2 Exculpation of City. Except as otherwise expressly provided in this
Agreement, City shall not be liable to Concessionaire for any damage to Concessionaire
or Concessionaire's property from any cause other than the sole negligence, intentional
or willful acts of the Indemnified Parties. Except as otherwise expressly provided in this
Agreement, Concessionaire waives all claims against the Indemnified Parties arising for
any reason other than the sole negligence, intentional or willful acts of the Indemnified
Brothers Huskey, LLC Concession Agreement Page 14
Parties. City shall not be liable to Concessionaire for any damage to the Premises,
Concessionaire's property, Concessionaire's goodwill, or Concessionaire's business
income, caused in whole or in part by acts of nature including, without limitation, waves,
wind and ocean currents.
10.3 Insurance. In addition to insurance required of Concessionaire to be
obtained, provided, and maintained during the construction of the improvements, and
without limiting Concessionaire's indemnification of City, Concessionaire shall obtain,
provide and maintain at its own expense during the term of this Agreement, a policy or
policies of liability insurance of the type and amounts described below and in a form
satisfactory to City.
10.3.1 Certificates of Insurance. Concessionaire shall provide certificates
of insurance with original endorsements to City as evidence of the insurance coverage
required herein. Insurance certificates must be approved by City's Risk Manager prior
to execution of this Agreement by the City. Current certification of insurance shall be
kept on file with City at all times during the term of this Agreement.
10.3.2 Signature. A person authorized by the insurer to bind coverage on
its behalf shall sign certification of all required policies.
10.3.3 Acceptable Insurers. All insurance policies shall be issued by an
insurance company currently authorized by the Insurance Commissioner to transact
business of insurance in the State of California, with an assigned policyholders' Rating
of A- (or higher) and Financial Size Category Class VII (or larger) in accordance with the
latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk
Manager.
10.3.4 Coverage Requirements.
10.3.4.1 Workers' Compensation Coverage. Concessionaire
shall maintain Workers' Compensation Insurance at statutory limits and Employer's
Liability Insurance at One Million and 00/100 Dollars ($1,000,000.00) for his or her
employees in accordance with the laws of the State of California. Any notice of
cancellation or non -renewal of all Workers' Compensation policies must be received by
City at least thirty (30) calendar days (ten (10) calendar days written notice of non-
payment of premium) prior to such change. The insurer shall agree to waive all rights of
subrogation against City, its officers, agents, employees and volunteers for all losses
that relate in any way to this Agreement.
10.3.4.2 General Liability Coverage. Concessionaire shall
maintain commercial general liability insurance in an amount not less than Two Million
and 00/100 Dollars ($2,000,000.00) per occurrence for bodily injury, personal injury, and
property damage, including without limitation, contractual liability. If commercial general
liability insurance or other form with a general aggregate limit is used, either the general
aggregate limit shall apply separately to the work to be performed under this
Brothers Huskey, LLC Concession Agreement IPage 15
Agreement, or the general aggregate limit shall be at least twice the required
occurrence limit.
10.3.4.3 Automobile Liability Coverage. Concessionaire shall
maintain automobile insurance covering bodily injury and property damage for all
activities of the Concessionaire arising out of or in connection with the services to be
performed under this Agreement, including coverage for any owned, hired, non -owned
or rented vehicles, in an amount not less than Two Million Dollars and 00/100 Dollars
($2,000,000.00) combined single limit for each occurrence.
10.3.4.4 Fire and Extended Coverage. Concessionaire shall
maintain fire and extended coverage insurance, together with insurance against
vandalism, theft and malicious mischief, on the improvements and fixtures, alterations,
trade fixtures, signs, equipment, personal property and inventory on or upon the
Premises from loss or damage to the extent of their full replacement value.
10.3.4.5 Concessionaire shall maintain loss of rent insurance
insuring that the Rent will be paid to City for a period up to six (6) months if the
Premises are destroyed or rendered unusable or inaccessible for commercial purposes
by a risk insured under a special form property coverage policy including vandalism and
malicious mischief endorsements.
10.3.5 Endorsements. Each insurance policy shall be endorsed with the
following specific language:
10.3.5.1 The City, its elected or appointed officers, officials,
employees, agents and volunteers, and the State of California, its elected or appointed
officers, officials, employees, agents and volunteers, are to be covered as additional
insureds, with respect to liability arising out of work performed by or on behalf of the
Concessionaire.
10.3.5.2 This policy shall be considered primary insurance as
respects to City, its elected or appointed officers, officials, employees, agents and
volunteers as respects to all claims, losses, or liability arising directly or indirectly from
the Concessionaire's operations or services provided to City. Any insurance maintained
by City, including any self-insured retention City may have, shall be considered excess
insurance only and not contributory with the insurance provided hereunder.
10.3.5.3 This insurance shall act for each insured and
additional insured as though a separate policy had been written for each, except with
respect to the limits of liability of the insuring company.
10.3.5.4 The insurer waives all rights of subrogation against
City, its elected or appointed officers, officials, employees, agents and volunteers.
Brothers Huskey, LLC Concession Agreement Page 16
10.3.5.5 Any failure to comply with reporting provisions of the
policies shall not affect coverage provided to City, its elected or appointed officers,
officials, employees, agents or volunteers.
10.3.5.6 The insurance provided by this policy shall not be
suspended, voided, canceled, or reduced in coverage or in limits, by either party except
after thirty (30) calendar days (ten (10) calendar days written notice of non-payment of
premium) written notice has been received by City.
10.3.6 Timely Notice of Claims. Concessionaire shall give City prompt
and timely notice of claim made or suit instituted arising out of or resulting from
Concessionaire's performance under this Agreement.
10.3.7 Additional Insurance. Concessionaire shall also procure and
maintain, at its own cost and expense, any additional kinds of insurance, which in its
own judgment may be necessary for its proper protection and prosecution of the work.
11. DAMAGE OR DESTRUCTION OF PROJECT/PREMISES
11.1. Destruction of Premises. If the Premises are totally or partially destroyed,
rendering the Premises or any portion thereof totally or partially inaccessible or
unusable, Concessionaire shall restore the Premises to substantially the same condition
as immediately prior to such destruction (including all trade fixtures, personal property,
improvements and Alterations as are installed by Concessionaire, which shall be
replaced by Concessionaire at its expense). Concessionaire may elect to terminate this
Agreement by giving notice of such election to City within sixty (60) days after the date
of the occurrence of any casualty if the cost of the restoration exceeds the amount of
any available insurance proceeds, if the damage has been caused by an uninsured
casualty or event, or if Concessionaire reasonably estimates that repairs of the
Premises will take more than six (6) months. Upon such termination, insurance
proceeds applicable to reconstruction of the Project (excluding Concessionaire's
personal property therein) shall be paid to City and Concessionaire shall have no further
liability or obligations under this Agreement.
11.2. Replacement of Concessionaire's Property. In the event of damage or
destruction of improvements located on the Premises not giving rise to
Concessionaire's option to terminate this Agreement, Concessionaire shall, at its own
expense, replace and repair all Concessionaire's trade fixtures, equipment, machinery,
furnishings, furniture and inventory as soon as reasonably possible to permit the prompt
continuation of Concessionaire's business at the Premises.
11.3. Destruction of Project. In the event that all or a portion of the Project is
damaged, and the Premises or a material portion becomes inaccessible or
commercially unusable, and the damage or destruction cannot reasonably be repaired
within twelve (12) months after the date of the casualty, City shall have the right to
either:
Brothers Huskey, LLC Concession Agreement Page 17
(a) Terminate this Agreement by giving to Concessionaire written notice
(which notice shall be given, if at all, within thirty (30) days following the date of the
casualty), in which case this Agreement shall be terminated thirty (30) days following
the date of the casualty; or
(b) Give Concessionaire written notice of City's intention to repair such
damage as soon as reasonably possible at City's expense, in which event this
Agreement shall continue in full force and effect; however, Rent shall be abated in
accordance with the procedures set forth in Section 12. Concessionaire may terminate
this Agreement by giving City written notice at any time prior to the commencement of
repairs if City agrees to repair the Project pursuant to this Section and fails to
commence repairs within one hundred twenty (120) days after giving Concessionaire
written notice of its intention to repair. In such event, this Agreement shall terminate as
of the date of notice from Concessionaire to City, and City shall have no liability under
this Agreement.
12. ABATEMENT OF RENT
12.1. General Rule. In the event of damage or destruction of the Premises or
Damage to the Project that impacts the Premises and this Agreement is not terminated,
Concessionaire shall continue to utilize the Premises for the operation of its business to
the extent it may be practicable and commercially reasonable. Rent shall abate only in
proportion to the area of the Premises that is rendered unusable. The abatement of
Rent shall commence on the date that use of the Premises is impacted and continue
until the completion of those repairs necessary to restore full use of the Premises and
Concessionaire's re -opening of the Premises. Concessionaire's obligation to pay Taxes
pursuant to this Agreement shall not be abated or reduced. Rent shall not abate if the
damage or destruction to the Premises is the result of the negligence or willful conduct
of Concessionaire or its employees, officers or agents. Concessionaire's right to
abatement of Rent is contingent on payment of insurance proceeds, if any, equal to the
amount of Rent pursuant to coverage required by Section 10.3.
12.2. Abatement/Maintenance. Concessionaire shall not be entitled to any
abatement of Rent for Maintenance that occurs during the Maintenance period.
13. PROHIBITION AGAINST VOLUNTARY ASSIGNMENT, SUBLETTING AND
ENCUMBERING
13.1. Prohibition of Assignment. City and Concessionaire acknowledge that
City is entering into this Agreement in reliance upon the experience and abilities of
Concessionaire. Consequently, Concessionaire shall not voluntarily assign or encumber
its interest in this Agreement or in the Premises, or assign substantially all or any part of
the Premises, or allow any other person or entity (except Concessionaire's authorized
representatives) to occupy or use all or any part of the Premises without the prior written
consent of City, which shall not be unreasonably withheld. City's consent to any
Brothers Huskey, LLC Concession Agreement Page 18
assignment or other transfer is subject to Concessionaire providing City with evidence
reasonably satisfactory to City that the proposed transferee has financial strength and
restaurant or food service experience comparable to Concessionaire and the use of the
Premises by the proposed transferee is consistent with the terms of this Agreement.
Except as otherwise expressly provided herein, any dissolution, merger, consolidation,
reorganization of Concessionaire, or the sale or other transfer resulting in a transfer of a
controlling percentage of the capital stock of Concessionaire, shall be deemed a
voluntary assignment; provided, however, that the sale or transfer of a controlling
percentage of the capital stock of Concessionaire pursuant to a public offering(s) of
equity or debt instruments issued by Concessionaire, or other transfers of publicly
traded capital stock or debt instruments shall not constitute a voluntary assignment and
shall not require City's consent or approval. The phrase "controlling percentage" means
the ownership of, or the right to vote, stock possession of at least fifty percent (50%) of
the total combined voting power of all classes of Concessionaire's capital stock issued,
outstanding, and entitled to vote for the election of directors, except for ownership of
publicly traded shares, warrants or similar equity interests in Concessionaire traded on
a national exchange or over-the-counter markets.
13.2. Exceptions. Notwithstanding the foregoing paragraphs or anything to the
contrary contained herein, City's consent shall not be required for an assignment or
subletting to an Affiliate, Subsidiary, or Successor of Concessionaire. For purposes
hereof, an "Affiliate", a "Subsidiary", and a "Successor" of Concessionaire are defined
as follows:
(1) an "Affiliate" is any corporation or other entity which directly or
indirectly controls or is controlled or is under common control with Concessionaire (for
purposes of this Section, "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 or other entity, whether through the ownership of voting securities or by
contract or otherwise);
(2) a "Subsidiary" shall mean any corporation or other entity not less
than twenty-five percent (25%) of whose outstanding stock shall, at the time, be owned
directly or indirectly by Concessionaire and which is at least as creditworthy as
Concessionaire; and
(3) a "Successor" shall mean a corporation or other entity in which or
with which Concessionaire is merged or consolidated, in accordance with applicable
statutory provisions for merger or consolidation of corporations or a corporation or other
entity acquiring a substantial portion of the property and assets of Concessionaire.
Brothers Huskey, LLC Concession Agreement Page 19
13.3 Continuing Effect. City's consent to any assignment or encumbrance shall
not relieve Concessionaire from its obligations or liabilities under this Agreement nor act
as a waiver of the requirement that such consent be obtained to any subsequent
assignment or encumbrance.
14. DEFAULT
14.1. Default by Concessionaire. The occurrence of any one or more of the
following events shall constitute a default and material breach of this Agreement by
Concessionaire:
(a) The vacating or abandonment of the Premises by Concessionaire;
(b) The failure by Concessionaire to make any payment of Rent or any
other payment required by this Agreement, as and when due, when such failure shall
continue for a period of ten (10) days after written notice of default from City to
Concessionaire;
(c) Except as specified in Subsection 14.1(b), the failure of
Concessionaire to observe or perform any of the material covenants, conditions or
provisions of this Agreement to be observed or performed by Concessionaire where
such failure shall continue for a period of ten (10) days after written notice thereof from
City to Concessionaire; provided, however, that if the nature of Concessionaire's default
is such that more than ten (10) days are reasonably required for its cure, then
Concessionaire shall not be deemed to be in default if Concessionaire commences
such cure within said ten (10) day period and thereafter diligently prosecutes such cure
to completion;
(d) The making by Concessionaire of any general arrangement or
assignment for the benefit of creditors;
(e) Concessionaire becomes a "debtor" as defined in 11 U.S.C.
Section 101 or any successor statute thereto (unless, in the case of a petition filed
against Concessionaire, the same is dismissed within ten (10) days);
(f) The appointment of a trustee or receiver to take possession of
substantially all of Concessionaire's assets located at the Premises or of
Concessionaire's interest in this Agreement, where such appointment is not discharged
within ten (10) days; and
(g) The attachment, execution or the judicial seizure of substantially all
of Concessionaire's assets located at the Premises or of Concessionaire's interest in
this Agreement, where such seizure is not discharged within sixty (60) days.
Brothers Huskey, LLC Concession Agreement Page 20
14.2 Remedies.
14.2.1 Cumulative Nature of Remedies. If any default by Concessionaire
shall continue without cure as required by this Agreement, 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.
14.2.1.1 Reentry without Termination. City may reenter the
Premises, and, without terminating this Agreement, re -let all or a portion of the
Premises. City may execute any agreements made under this provision in City's name
and shall be entitled to all rents from the use, operation, or occupancy of the Premises.
Concessionaire shall nevertheless pay to City on the dates specified in this Agreement
the equivalent of all sums required of Concessionaire under this Agreement, plus City's
expenses in conjunction with re -letting, less the proceeds of any re -letting or atonement.
No act by or on behalf of City under this provision shall constitute a Termination of this
Agreement unless City gives Concessionaire specific written notice of Termination.
14.2.1.2 City may terminate this Agreement by giving
Concessionaire notice of Termination. In the event City terminates this Agreement, City
may recover possession of the Premises (which Concessionaire shall surrender and
vacate upon demand) and remove all Persons and property. City shall be entitled to
recover the following as damages;
(1) The value of any unpaid Rent or other charges that are
unpaid at the time of Termination;
(2) The value of the Rent and other charges that would have
accrued after Termination less the amount of Rent and charges the City received or
could have received through the exercise of reasonable diligence as of the date of the
award;
(3) Any other amount necessary to reasonably compensate City
for the detriment proximately caused by Concessionaire's failure to perform its
obligations under this Agreement; and
(4) At City's election, such other amounts in addition to or in lieu
of the foregoing as may be permitted from time -to -time by applicable California law.
City shall be entitled to interest at the rate of ten percent (10%) per annum on all Rent
and other charges from the date due or the date they would have accrued. City shall
also be entitled to an award of the costs and expenses incurred by City in maintaining or
preserving the Premises after default, preparing the Premises for re -letting, or repairing
any damage caused by the act or omission of Concessionaire.
14.2.1.3. Use of Concessionaire's Personal Property. City may
use Concessionaire's personal property and trade fixtures located on the Premises or
any of such property and fixtures without compensation or liability to Concessionaire for
Brothers Huskey, LLC Concession Agreement Page 21
use or damage. In the alternative City may store the property and fixtures at the cost of
Concessionaire. City shall not operate the Concession in any manner tending to
indicate that the Concession is affiliated with, part of or operated in conjunction with
Concessionaire's business.
14.2.2. City's Right to Cure Concessionaire's Default. Upon continuance
of any material default beyond applicable notice and cure periods, City may, but is not
obligated to, cure the default at Concessionaire's cost. If City pays any money or
performs any act required of, but not paid or performed by, Concessionaire after notice,
the payment and/or the reasonable cost of performance shall be due as additional Rent
not later than five (5) days after service of a written demand accompanied by supporting
documentation. 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
performance.
15. SUBJECT TO STATE OPERATING AGREEMENT
The Premises are located on property that is the subject of an Operating
Agreement between the State of California and the City. Concessionaire shall not take
any action that would cause the City to be in violation of any provisions of that
Operating Agreement. If the State of California terminates the Operating Agreement,
this Agreement shall terminate as a result and the parties shall be released from all
liabilities and obligations under this Agreement.
16. WASTE OR NUISANCE
Concessionaire shall not commit or permit the commission of any waste on the
Premises. Concessionaire shall not maintain, commit, or permit any nuisance as
defined in Section 3479 of the California Civil Code on the Premises. Concessionaire
shall not use or permit the use of the Premises for any unlawful purpose.
17. NO CONFLICTS OF USE, HAZARDOUS MATERIALS.
City represents and warrants that, to the best of City's knowledge, (i)
Concessionaire's use of the Premises does not conflict with applicable Laws, and City
knows of no reason why Concessionaire would be unable to obtain all required permits,
licenses and approvals from the appropriate governmental authorities; (ii) the Project is
not in violation of any environmental laws, rules or regulations and Concessionaire's
contemplated uses will not cause any such violation; and (iii) the Project is free of any
and all Hazardous Materials as of the date of this Agreement. In the event that the
presence of any Hazardous Materials not caused by Concessionaire is detected at the
Project at any time during the Term of this Agreement all remedial work shall be
performed by City at City's expense. Concessionaire's obligation to open shall be
delayed until the remedial work is completed if the remedial work is performed prior to
Concessionaire opening for business. Concessionaire's obligation to pay Rent shall be
abated in direct proportion to the extent Concessionaire is unable to conduct its
Brothers Huskey, LLC Concession Agreement Page 22
business upon the Premises as a result of any remedial work that is performed
subsequent to Concessionaire opening for business. Concessionaire shall have the
right (but not the obligation) to terminate this Agreement, upon thirty (30) days advance
written notice to City in the event that Hazardous Materials are detected at the Project
and the presence or the remediation materially affects Concessionaire's ability to
conduct its business in the Premises. "Hazardous Materials" shall mean any oil,
flammable explosives, asbestos, urea formaldehyde, radioactive materials or waste, or
other hazardous, toxic, contaminated or polluting materials, substances or wastes,
including, without limitation, any "hazardous substances", "hazardous wastes",
"hazardous materials" or "toxic substances" under applicable federal, state and local
laws, ordinances and regulations.
18. CITY'S DEFAULTS/CONCESSIONAIRE'S REMEDIES.
City shall be in default if it fails to perform, or commence performance if the
obligation requires more than ten (10) days to complete, any material obligation within
ten (10) days after receipt of written notice by Concessionaire to City specifying the
nature of such default. City shall also be in default if it commences performance within
ten (10) days but fails to diligently complete performance. In the event of City's default,
Concessionaire may:
(a) Upon five (5) days' notice to City, cure any such default, and City shall
reimburse Concessionaire the amount of all costs and expenses incurred by
Concessionaire in curing the default, together with interest and expenses at the
maximum rate then allowed by law; or
(b) Terminate this Agreement if City's default materially interferes with
Concessionaire's use of the Premises for its intended purpose and City fails to cure
such default within ten (10) days after a second demand by Concessionaire in which
case Concessionaire shall have no further or continuing obligations.
19. EVENT OF BANKRUPTCY
19.1. If this Agreement is assigned to any person or entity pursuant to the
provisions of the Bankruptcy Code, 11 U.S.C. Section 101 et seq. or any similar or
successor statute ("Bankruptcy Code"), any and all monies or other consideration
payable or otherwise to be delivered in connection with such assignment shall be paid
or delivered to City, shall be and remain the exclusive property of City and shall not
constitute property of Concessionaire or of the estate of Concessionaire within the
meaning of the Bankruptcy Code. Any and all monies or other consideration
constituting City's property under this Section not paid or delivered to City shall be held
in trust for the benefit of City and be promptly paid or delivered to City.
19.2. Any person or entity to which this Agreement is assigned pursuant to the
provisions of the Bankruptcy Code shall be deemed without further act or deed to have
assumed all of the obligations arising under this Agreement on and after the date of
Brothers Huskey, LLC Concession Agreement Page 23
such assignment, including the obligation to operate the business which Concessionaire
is required to operate under this Agreement.
20. NOTICES.
Any notice, demand, request, consent, approval or communication that either
party desires or is required to give shall be in writing and shall be deemed given three
(3) days after deposit into the United States registered mail, postage prepaid, by
registered or certified mail, return receipt requested. Unless notice of a different
address has been given in accordance with this Section, all notices shall be addressed
as follows:
If to City, to: CITY OF NEWPORT BEACH
Attn: Real Property Administrator
100 Civic Center Drive
P.O. Box 1768
Newport Beach, CA 92658
(949) 644-3236
If to Concessionaire, to: Brian Huskey
c/o Tackle Box
3029 E. Shore Avenue
Corona Del Mar, CA 92625
(213) 435-7579
chefbrianhuskeya-gmail.com
21. SURRENDER OF PREMISES
At the Expiration or earlier Termination of this Agreement, Concessionaire shall
surrender to City the possession of the Premises. Concessionaire shall leave the
surrendered Premises, required personal property and fixtures, in good and broom -
clean condition, reasonable wear and tear excepted. All property that Concessionaire is
not required to surrender, but that Concessionaire does abandon shall, at City's
election, become City's property at Expiration or Termination.
22. COMPLIANCE WITH ALL LAWS
Concessionaire shall at its own cost and expense comply with all statutes,
ordinances, regulations and requirements of all governmental entities, including federal,
state, county or municipal, whether now in force or hereinafter enacted. In addition, all
work prepared by Concessionaire shall conform to applicable City, county, state and
federal laws, rules, regulations and permit requirements and be subject to approval of
the City Manager or his/her designee.
Brothers Huskey, LLC Concession Agreement Page 24
23. WAIVERS
The waiver by either party of any breach or violation of any term, covenant or
condition of this Agreement, or of any ordinance, law or regulation, shall not be deemed
to be a waiver of any other term, covenant, condition, ordinance, law or regulation, or of
any subsequent breach or violation of the same or other term, covenant, condition,
ordinance, law or regulation. The subsequent acceptance by either party of any fee,
performance, or other consideration which may become due or owing under this
Agreement, shall not be deemed to be a waiver of any preceding breach or violation by
the other party of any term, condition, covenant of this Agreement or any applicable law,
ordinance or regulation.
24. SEVERABILITY
If any term or portion of this Agreement is held to be invalid, illegal, or otherwise
unenforceable by a court of competent jurisdiction, the remaining provisions of this
Agreement shall continue in full force and effect.
25. APPLICABLE LAW
This Agreement shall be construed in accordance with the laws of the State of
California in effect at the time of the execution of this Agreement. Any action brought
relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the
County of Orange.
26. ENTIRE AGREEMENT; AMENDMENTS
26.1. The terms and conditions of this Agreement, all exhibits attached, and all
documents expressly incorporated by reference, represent the entire agreement of the
parties with respect to the subject matter of this Agreement.
26.2. This Agreement shall supersede any and all prior agreements, oral or
written, regarding the subject matter between Concessionaire and City.
26.3. No other agreement, promise or statement, written or oral, relating to the
subject matter of this Agreement, shall be valid or binding, except by way of a written
amendment to this Agreement.
26.4. The terms and conditions of this Agreement shall not be altered or
modified except by a written amendment to this Agreement signed by Concessionaire
and City.
26.5. If any conflicts arise between the terms and conditions of this Agreement,
and the terms and conditions of the attached exhibits or the documents expressly
incorporated by reference, the terms and conditions of this Agreement shall control.
Brothers Huskey, LLC Concession Agreement Page 25
26.6. Any obligation of the parties relating to monies owed, as well as those
provisions relating to limitations on liability and actions, shall survive termination or
expiration of this Agreement.
26.7. Each party has relied on its own inspection of the Premises and
examination of this Agreement, the counsel of its own advisors, and the warranties,
representations, and covenants in this Agreement. The failure or refusal of either party
to inspect the Premises, to read this Agreement or other documents, or to obtain legal
or other advice relevant to this transaction constitutes a waiver of any objection,
contention, or claim that might have been based on such reading, inspection, or advice.
27. TIME IS OF THE ESSENCE
Time is of the essence for this Agreement.
28. SUCCESSORS
Subject to the provisions of this Agreement on assignment and subletting, each
and all of the covenants and conditions of this Agreement shall be binding on and shall
inure to the benefit of the heirs, successors, executors, administrators, assigns, and
personal representatives of the respective parties.
29. INTERPRETATION
The terms of this Agreement shall be construed in accordance with the meaning
of the language used and shall not be construed for or against either party by reason of
the authorship of this Agreement or any other rule of construction which might otherwise
apply.
30. TABLE OF CONTENTS; HEADINGS
The table of contents of this Agreement and the captions of the various sections
of this Agreement are for convenience and ease of reference only and do not define,
limit, augment, or describe the scope, content, or intent of this Agreement.
31. GENDER; NUMBER
The neuter gender includes the feminine and masculine, the masculine includes
the feminine and neuter, and the feminine includes the neuter, and each includes
corporation, partnership, or other legal entity whenever the context requires. The
singular number includes the plural whenever the context so requires.
Brothers Huskey, LLC Concession Agreement Page 26
32. EXHIBITS
All exhibits to which reference is made in this Agreement are incorporated by
reference. Any reference to "this Agreement" includes matters incorporated by
reference.
33. CITY BUSINESS LICENSE
Concessionaire shall obtain and maintain during the duration of this Agreement,
a City business license as required by the Newport Beach Municipal Code.
34. COSTS AND ATTORNEYS FEES
The prevailing party in any action brought to enforce the terms and conditions of
this Agreement, or arising out of the performance of this Agreement, shall not be
entitled to recover its attorneys' fees.
35. NONDISCRIMINATION
Concessionaire, for itself and its successors, agrees that in the performance
under this Agreement, Concessionaire shall not discriminate against any person
because of the marital status or ancestry of that person or any characteristic listed or
defined in Section 11135 of the Government Code.
[SIGNATURES ON NEXT PAGE]
Brothers Huskey, LLC Concession Agreement Page 27
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
ATTEST:
IR�1'
City Clerk
APPROVED AS TO FORM:
(4r
Aaron arp C4M n.lal.11U
City Attorney
CITY OF NEWPORT BEACH ("City"),
a California municipal corporation and charter
city
By: Ct.
Davei
City Manager
'
6
BROTHERS HUSKEY, LLC
("Concessionaire"), a California limited
liability company
By:
Brian Huskey
Managing Member
Brothers Huskey, LLC Concession Agreement Page 28
EXHIBIT A
PREMISES
Brothers Huskey, LLC Concession Agreement Page A-1
Exhibit A-1
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disclaim any and all responsibility from or relating to
any results obtained in its use.
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Exhibit A-2
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Brothers Huskey, LLC Concession Agreement Page B-1
local grub shack
SUNRISE
B' fast sandwich. Bacon. Scrambled egg. Cheddar
B' fast burrito. Bacon. Scrambled egg. Hash brown. Cheddar. House salsa
Avocado tartine. Smoked salmon. Hard-boiled egg. Herbs
Chilaquiles. Tomatillo sauce. Black beans. Fried egg
French toast. Almond butter. Banana. Chocolate. Maple syrup
Fresh Squeezed Orange Juice
GRUB + SNACKS
New England inspired clam chowder. Crackers
Chowder chicharron. Pork rinds smothered in clam chowder + bacon
Baby kale salad. Smoked almonds. Raisins. Croutons. Tofu garlic dressing
Poke. Salmon. Avocado. Crispy rice. Citrus dressing
Quesadilla. Roasted poblano. Caramelized onion. Three cheeses
Buffalo cauliflower. Blue cheese. Celery
Elote. Street corn. Spicy crema. Cotija cheese
Tackle Box burger. Angus House Blend. Caramelized onions. Cheddar. Garlic aioli. Spicy
ketchup
ROLLS
Chicken Club. Applewood Smoke Bacon. Tomato + Lettuce. Lemon Garlic sauce
Fried Catfish. Cornmeal. Tomato + Lettuce. Remoulade
Shrimp. Grilled. Romaine. Charred green onion aioli
Maine Lobster. Romaine. Old bay aioli. Squid ink roll
Niman Ranch Pork belly "bahn mi". Ginger + scallion. Pickled carrots. Spicy aioli
Cali cheesesteak. Fried peppers. Crispy onions. White American
Falafel. Chickpea + edamame. Chipotle tzatziki
THE TACKLE BOX
The Team's Daily Special
Brothers Huskey, LLC Concession Agreement Page B-2
SIDES
House Fries. Seasoned salt
House chips. Seasoned salt
Assortment of Pickles
Seasonal vegetables. Prepared correctly
DRINKS
Agua fresca. Changes frequently
Jones Soda
Hot + Cold Brew Coffee
Water
Brothers Huskey, LLC Concession Agreement Page B-3
EXHIBIT C
RECORDING REQUESTED AND
WHEN RECORDED RETURN TO:
Office of the City Clerk
City of Newport Beach
100 Civic Center Drive
Newport Beach, CA 92660
[Exempt from Recordation Fee - Govt. Code Sec. 6103]
MEMORANDUM OF AGREEMENT FOR OPERATION OF
CONCESSION AREA
This Memorandum of Agreement for Operation of Concession Area ("Memorandum") is
dated QC�0h-r aq,.1OiSand is made between City of Newport Beach, a California
municipal corporation and charter city ("City") and Brothers Huskey, LLC, a California
limited liability company ("Concessionaire"), concerning the Premises described in
Exhibit "A" attached hereto and by this reference made a part hereof.
For good and adequate consideration, City leases the Premises to Concessionaire and
Concessionaire hires them from City, for the term and on the provisions contained in the
Concession Agreement ("Agreement") dated 0 obeir M, A 0 IS, including without
limitation provisions prohibiting assignment, subleasing, and encumbering said
leasehold without the express written consent of City in each instance, all as more
specifically set forth in said Agreement, which said Agreement is incorporated in this
Memorandum by this reference.
The term is month-to-month, commencing on the Effective Date unless terminated
sooner, as defined in the Agreement.
This Memorandum is not a complete summary of the Agreement. Provisions in this
Memorandum shall not be used in interpreting the Agreement's provisions. In the event
of conflict between this Memorandum and other parts of the Agreement, the other parts
shall control. Execution hereof constitutes execution of the Agreement itself.
[SIGNATURES ON NEXT PAGE]
Brothers Huskey, LLC Concession Agreement Page C-1
IN WITNESS WHEREOF, the Parties hereto have executed this Memorandum
as of the date first written above.
CITY OF NEWPORT BEACH ("City"),
a California municipal corporation
and charter city
D,9ve.ff
City Manager
ATTEST:
Leilani I. Brown
City Clerk
APPROVED AS TO FORM:
OFFICE OFT F CITY ATTORNEY
r
Aaron C. Harp
City Attorney
BROTHERS HUSKEY, LLC,
("Concessionaire"), a California
limited liability company
By:
—2;—=
Brian Huskey
Managing Member
RNiP*
Brothers Huskey, LLC Concession Agreement Page C-2
ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual
who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or
validity of that document.
State of California
County of 0a AN (DE- )ss.
On TERAajA)P-`1 2.4 , 20_L�4 before me;)eMNIC-r--0-V2)NN VAQLe,',- ,
Notary Public, personally appeared R�� A `yEL � U SV- r-�
who proved to me on the basis of satisfactory evidence to be the person(s)-whose name(s)
is/arm subscribed to the within instrument and acknowledged to me that he/she/they executed
the same in his/hertl:NMr authorized capacity(ies), and that by his/her -/their signatures(s) on the
instrument the person(s), or the entity upon behalf of which the persons) acted, executed the
instrument.
certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
JENNIFER ANN MULVEY
WITN -S my hand and official seal.
Commission # 2045022
g �� Notary Public z
Z - California
z "''�' Orange County y
Signature
My Comm. Expires Oct 12, 2017+
sea
ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual
who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or
validity of that document.
State of California
County of CC(2�A��-\ Cc E }ss.
On U-'1vay:�C-kA P-, , 20 1 �r before me, pe O6\�N 0, AUi ; J ,
Notary Public, personally appeared C7f*v-- V k ( c
proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the
same in his/her/their authorized capacity(ies), and that by his/her/their signatures(s) on the
instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the
instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct. JENNIFER ANN MULVEY
commission # 2045022
WITNESS m hand a d official seal. a -:w Notary Public - California i
Z °�" Orange County
M Comm, Ex ices Oct 12, 2017
Signature (seal)
Brothers Huskey, LLC Concession Agreement Page C-3