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SR 02-13-2024 5D City Council Report City Council Meeting: February 13, 2024 Agenda Item: 5.D 1 of 4 To: Mayor and City Council From: Jenny Rogers, Recreation and Arts Director, Recreation and Arts Department Subject: Approval of Modification of Concession Agreement for Back on the Beach Café Recommended Action Staff recommends that the City Council: 1. Adopt a finding that the modification is categorically exempt pursuant to Section 15301 of the California Environmental Quality Act (CEQA) Guidelines. 2. Authorize the City Manager to negotiate and execute a First Modification of Concession Agreement #11238 (CCS) to allow for full alcohol service at Back on the Beach Café subject to Concessionaire’s procurement of local and state regulatory approvals. Summary Back on the Beach Café leases a restaurant space at 445 Pacific Coast Highway located adjacent to the Annenberg Community Beach House. They now request the City, as the landlord, modify its Concession Agreement to allow full alcohol (beer, wine, and distilled spirits) at Back on the Beach Café, subject to local and state regulatory approvals. Currently, Back on the Beach Café is allowed to sell beer and wine. The modification to expand to full alcohol will support the economic viability of the operation and respond to customer expectation for an expanded range of beverage options with a meal. Discussion Since 1989, Back on the Beach Café has provided daily year-round indoor and outdoor food service. In addition, Back on the Beach Café equips and maintains beach-related equipment such as rental of chairs, umbrellas, and boogie boards, 5.D Packet Pg. 116 2 of 4 and sale of various sundries that provide for the health, enjoyment, and convenience of Annenberg Community Beach House (“Beach House”) visitors. The restaurant is fully licensed and approved by the Los Angeles County Health Department, City of Santa Monica, and California Alcoholic Beverage Control Board (“ABC”). Through a permit approved by ABC and the Planning Commission in 2012, Back on the Beach Café was able to expand to include beer and wine service in its existing outdoor dining area. Back on the Beach Café’s prior agreement with the City to operate Beach House concessions expired on December 1, 2018 and was then under a month-to-month lease with the City pending the completion of the State Parks-required Request for Proposal (“RFP”) process and delays caused by the COVID-19 pandemic. The RFP was released in September 2021 and closed in October 2021. Two proposals were received, with Back on the Beach Café selected as the winning bidder. On January 25, 2022, Council authorized the City Manager to negotiate and enter into a concession agreement with Back on the Beach Café to operate a concession on the Santa Monica State Beach offering food, retail, and rentals. Council approved the term of the agreement to be ten (10) years with one (1) five (5)-year extension option at an annual minimum rent of $200,000 (adjusted annually by CPI) or 8% of gross sales, whichever is higher. The approved terms also permitted Back on the Beach Café to serve beer and wine upon receiving regulatory approvals. Back on the Beach Café received the required licenses and permits from local and state regulatory and licensing agencies and has been serving beer and wine as part of their regular restaurant operations. The restaurant has operated in compliance with all alcohol related conditions and there have been no reportable incidents involving alcohol service at either location. Servers and managers have completed the Responsible Beverage Service Training program, which is mandated by the ABC to provide servers with the knowledge and tools needed to ensure responsible alcohol service and consumption. Furthermore, conditions outlined within the Concession 5.D Packet Pg. 117 3 of 4 Agreement and the City’s alcohol exemption permit requires that alcohol service be incidental to the sale and service of food. The addition of beer and wine beverages has been important in generating new revenues, but in the face of significantly rising food and labor costs as well as the continuing challenge of achieving pre-pandemic profitability, the Concessionaire believes that full alcohol service will further improve revenues. For many restaurants, alcohol sales emerged as one of the major contributors to remain operational during the pandemic and many governmental entities, including Santa Monica, permanently eased certain restrictions on restaurants serving alcohol as part of its economic recovery strategy. The inclusion of alcoholic beverages as part of its menu offerings will also respond to customer expectation for a variety of beverage choices with their meals. Environmental Review The allowance for full alcohol at the Back on the Beach Café is categorically exempt from CEQA pursuant to Section 15301 (Class 1 - Existing Facilities) of the CEQA Guidelines. Section 15301 provides exemption for the operation, repair, maintenance, permitting, or minor alteration of existing public or private structures, facilities, mechanical equipment, or topographical features, involving negligible or no expansion of use beyond that existing at the time of the lead agency's determination. The allowance for alcohol would supplement the existing operations at the café and would not expand or materially change existing facilities or operations. Therefore, the modification to the agreement to allow alcohol is categorically exempt pursuant to Section 15301 of the CEQA Guidelines. Past Council Actions Meeting Date Description January 25, 2022 (Attachment A) Original award of Concession to Back on the Beach Café 5.D Packet Pg. 118 4 of 4 Financial Impacts and Budget Actions It is anticipated that implementation of the changes in the proposed modification may result in additional percentage rent revenues, which would be deposited in the Beach Fund at account 01430001.408780. If required, budget adjustments would be incorporated in the FY 2023-24 Year-End Budget and the FY 2024-25 Exception-Based Budget. Prepared By: Claire Hester, Senior Administrative Analyst Approved Forwarded to Council Attachments: A. Staff Report BotB 01.25.2022 B. Oaks Initiative Notice Form_2024 C. Levine Act Disclosure BotB 02.05.2024 D. 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 5.D Packet Pg. 119 City Council Report City Council Meeting: January 25, 2022 Agenda Item: 1 of 5 To: Mayor and City Council From: Andy Agle, Director, Community Services Department, Cultural Affairs Subject: Award Request for Proposal and enter into Agreement with Back on the Beach Food Co., Inc. for Concessions at the Annenberg Community Beach House Recommended Action Staff recommends that the City Council: 1. Award RFP# 291 to Back on the Beach Food Co., Inc., a California-based company, for food and beach equipment rental services at the Annenberg Community Beach House at Santa Monica State Beach ; and 2. Authorize the City Manager to negotiate and execute an agreement with Back on the Beach Food Co., Inc. for an initial term of ten (10) years with one (1) option for renewal of five (5) years. The annual minimum rent is $200,000 or 8 percent of gross sales, whichever is higher. Summary Back on the Beach Food Co., Inc. (Back on the Beach) has operated Back on the Beach Café since January 1989. In 2008, Back on the Beach was awarded a ten -year lease through a competitive process. Since that time, Back on the Beach has been responsible for developing, operating, and providing food and beach equipment rental services to visitors of the Annenberg Community Beach House. Since 2018, Back on the Beach has operated under the hold-over terms of the lease agreement until a new Request for Proposals (RFP) process could be completed. Due to the delay in receiving State authorization and then by the COVID pandemic, the RFP process was completed in 2021. 5.D.a Packet Pg. 120 Attachment: Staff Report BotB 01.25.2022 (6200 : Back on the Beach Cafe Concession Agreement Modification) 2 of 5 Staff recommends Back on the Beach as the best qualified firm for beach café and equipment rental concession beginning in March 2022 through February 2032, with an option to extend for an additional five years. The minimum total revenue for ten years with a three percent annual Consumer Price Index (CPI) increase is estimated at $2,515,579. Discussion Since 1989, the existing restaurant at 445 Pacific Coast Highway, known as Back on the Beach Café, has provided year-round, daily indoor and outdoor food service. In addition, Back on the Beach equips and maintains beach-related equipment for rent such as chairs, umbrellas, boogie boards, and various sundries that provide for the health, enjoyment, and convenience of Annenberg Community Beach House (Beach House) visitors. The proposed ten (10) year concession agreement with one (1) option to renew the agreement for five (5) years would provide for the operation of food and beach- equipment rental services at the Beach House. The intent of the concession agreement is to provide the public with high-quality, reasonably priced food service, as well as the sale or rental of beach-related equipment and items in a manner and atmosphere that enhances the visitor’s experience at Santa Monica State Beach. Managed by the original owners, Frederick Deni and James Christel, the restaurant is fully licensed and approved by the Los Angeles County Health Department, City of Santa Monica, and California Alcoholic Beverage Control Board (ABC). Through a permit approved by ABC and the Planning Commission in 2012, Back on the Beach was able to expand its ability to serve beer and wine in its existing outdoor dining area. To meet ABC requirements, a custom-designed 42-inch fence was added to delineate the perimeter of the outdoor dining area. The City’s current agreement with Back on the Beach to operate Beach House concessions expired on December 1, 2018. Under the terms of the Operating Agreement, State Parks must approve the issuance of a Request for Proposal (RFP), which was initially delayed by the State’s extended process and then b y the pandemic. 5.D.a Packet Pg. 121 Attachment: Staff Report BotB 01.25.2022 (6200 : Back on the Beach Cafe Concession Agreement Modification) 3 of 5 Back on the Beach has been on a month-to-month lease pursuant to the holdover provision of the agreement, pending the completion of the RFP process. The RFP was released in September 2021 and closed in October 2021. Two proposals were received. Vendor Selection Bidder Recommendation Best Qualified Person or Firm Back on the Beach Food Co., Inc. Evaluation Criteria Training, credentials and experience of the person or firm; demonstrated competence, ability, capacity and skill of the person or firm to perform the contract or provide the service promptly, within the time specified, and without delay; capacity of the person or firm to perform the contract or provide the service promptly, within the time specified, and without delay; sufficiency of the person’s or firm’s financial and other resources; character, integrity, reputation and judgment of the person or firm; price which the person or firm proposes to charge, including whether the price is fair, reasonable and competitive. Municipal Code SMMC 2.24.190 Bid Data Date Posted Posted On Advertise In (City Charter & SMMC) Vendors Downloaded Date Publicly Opened 09/20/2021 City's Online Bidding Site Santa Monica Daily Press 18 10/18/2021 Best Qualified Person or Firm Justification Staff from the Community Services and Community Development Departments reviewed both proposals and evaluated them based on experience with projects of comparable complexity, qualifications of key personnel, financial resources and ability to finance tenant improvements and operations as proposed, project understanding and approach, compatibility of proposed operations with surrounding uses and local community, rental bid, and overall quality and thoroughness of proposal. The evaluation committee unanimously recommended Back on the Beach as the best fit for the Beach House in Submittals Received Back on the Beach Food Co., Inc. Made by Meg Catering 5.D.a Packet Pg. 122 Attachment: Staff Report BotB 01.25.2022 (6200 : Back on the Beach Cafe Concession Agreement Modification) 4 of 5 terms of experience, stability and familiarity with the Santa Monica market. The other proposer, Made by Meg Catering, is an enterprise relatively new as a full-service operator, with their experience focusing mainly on catering private events. Back on the Beach demonstrated its continued ability to provide concessionaire services at the Beach House. Their years of extensive experience in the industry, working successfully as partners with the City and Beach House staff, are clearly conveyed in the thoroughness of their proposal and operations plan. Their management is actively engaged in the Santa Monica community and supports a large number of nonprofits and community organizations involved in environmental stewardship, youth development, and human rights. Their proposal included all the RFP required documents and included positive references from various community members they have worked with over the years, highlighting their hospitality and service to the visitors of Santa Monica, and their contributions to the Santa Monica community. They continuously adopted new technology to improve customer service and rose to the challenges and new protocols brought about by the pandemic. Lease Terms Staff recommends award to Back on the Beach for a ten -year (10) term with one (1) five-year option. The annual rent requirement is the greater of eight percent of gross sales or $200,000 base rent, with the base rent subject to an annual Consumer Price Index (CPI) escalation. The proposed new rent requirement is different from the current lease terms of ten percent of gross sales with a minimum annual rent of $100,000. In preparing the RFP, staff sought the services of financial consultants Allan D. Kotin & Associates (ADK&A) regarding appropriate financial terms, particularly given changes in the restaurant market, including significant increases in labor costs. On behalf of the City, ADK&A completed an evaluation of lease terms for beach -adjacent food and related services in Southern California. ADK&A concluded that reducing the percentage rent by two percentage points would make the opportunity competitive for pros pective restaurants, while doubling the guaranteed base rent would ensure that the City is appropriately compensated. 5.D.a Packet Pg. 123 Attachment: Staff Report BotB 01.25.2022 (6200 : Back on the Beach Cafe Concession Agreement Modification) 5 of 5 If awarded the new ten-year lease, Back on the Beach would invest $300,000 to include replacement of the roof, exhaust fans and coolers, exterior doors and windows, and walk-in cooler; addition of a retractable fabric canopy; and renovation of the dining room floors. The improvements would be scheduled over a three-year period with minimal impact on café and Beach House operations, and in compliance with applicable permits and approvals. Financial Impacts and Budget Actions Staff seeks authority to award a contract with Back on the Beach Food Co. Inc. for operation of food and beach equipment rental services at the Annenberg Community Beach House, with a minimum annual rent of $200,000 or eight percent (8%) of gross sales, whichever is greater. The FY 2021-23 Budget includes $200,000 each year in revenue from the lease. Prepared By: Joyce Perez, Sr. Administrative Analyst Approved Forwarded to Council Attachments: A. Back on the Beach Oaks-111821 5.D.a Packet Pg. 124 Attachment: Staff Report BotB 01.25.2022 (6200 : Back on the Beach Cafe Concession Agreement Modification) 5.D.b Packet Pg. 125 Attachment: Oaks Initiative Notice Form_2024 (6200 : Back on the Beach Cafe Concession Agreement Modification) 5.D.c Packet Pg. 126 Attachment: Levine Act Disclosure BotB 02.05.2024 (6200 : Back on the Beach Cafe Concession Agreement Modification) 5.D.c Packet Pg. 127 Attachment: Levine Act Disclosure BotB 02.05.2024 (6200 : Back on the Beach Cafe Concession Agreement Modification) i AGREEMENT NO. 11238 (CCS) CONCESSION AGREEMENT by and between CITY OF SANTA MONICA And BACK ON THE BEACH FOOD CO., INC. dba BACK ON THE BEACH CAFÉ DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 128 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement ii AGREEMENT NO. 11238 (CCS) TABLE OF CONTENTS Page ARTICLE I DEFINITIONS............................................................................................................ 2 Section 1.1 Certain Defined Terms ................................................................................ 2 ARTICLE II PREMISES ................................................................................................................ 4 Section 2.1 Premises ...................................................................................................... 4 Section 2.2 Condition of the Premises ........................................................................... 4 Section 2.3 State Operating Agreement ........................................................................... 5 Section 2.4 Compliance with Proposition S .................................................................. 5 ARTICLE III TERM ....................................................................................................................... 6 Section 3.1 Term ............................................................................................................ 6 Section 3.2 Termination. ................................................................................................ 7 Section 3.3 Holding Over. ............................................................................................. 7 Section 3.4 Surrender. .................................................................................................... 8 Section 3.5 Survival. ...................................................................................................... 8 ARTICLE IV USE .......................................................................................................................... 8 Section 4.1 Permitted Uses ............................................................................................ 8 Section 4.2 Concessionaire’s Trade Name .................................................................. 13 Section 4.3 Hours of Operation ................................................................................... 13 Section 4.4 Use Restrictions ........................................................................................ 14 Section 4.5 Annual Evaluation of the Concessionaire ................................................. 16 ARTICLE V RENTAL ................................................................................................................. 16 Section 5.1 Rental Payable .......................................................................................... 16 Section 5.2 Payments of Percentage Rent .................................................................... 17 Section 5.3 CPI Adjustment ......................................................................................... 18 Section 5.4 Gross Sales ................................................................................................ 19 Section 5.5 Statements of Gross Sales and Expenditures ............................................ 20 Section 5.6 Concessionaire’s Records ......................................................................... 21 Section 5.7 Security Deposit ........................................................................................ 22 Section 5.8 Performance Bond .................................................................................... 22 ARTICLE VI TAXES ................................................................................................................... 23 Section 6.1 Concessionaire’s Obligation to Taxes ....................................................... 23 Section 6.2 Concessionaires Obligation to Pay Personal Property Taxes ................... 23 ARTICLE VII IMPROVEMENTS ............................................................................................... 24 Section 7.1 Concessionaire’s Improvements ............................................................... 24 Section 7.2 Compliance with Law ............................................................................... 24 Section 7.3 Submittal to City: Right of Termination. ................................................. 25 Section 7.4 Amount and Schedule ............................................................................... 25 Section 7.5 Manner of Construction. ........................................................................... 25 Section 7.6 Mechanics’ Liens ...................................................................................... 27 ARTICLE VIII OPERATIONS .................................................................................................... 28 Section 8.1 Operations by Concessionaire ................................................................... 28 Section 8.2 Signs and Advertising. .............................................................................. 30 Section 8.3 Painting and Displays by Concessionaire ................................................. 30 Section 8.4 Trash Removal Service ............................................................................. 31 Section 8.5 Off-Hour Delivery. ................................................................................... 31 Section 8.6 Locks ......................................................................................................... 31 DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 129 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement iii AGREEMENT NO. 11238 (CCS) Section 8.7 Compliance with Law ............................................................................... 31 Section 8.8 Conditions of Approval............................................................................. 32 Section 8.9 Intellectual Property of Respective Parties ............................................... 32 Section 8.10 City’s Licensing Program ......................................................................... 33 Section 8.11 Disability Access Law .............................................................................. 33 ARTICLE IX REPAIRS AND ALTERATIONS ......................................................................... 34 Section 9.1 Repairs to Be Made By City. .................................................................... 34 Section 9.2 Repairs to Be Made By Concessionaire .................................................... 34 Section 9.3 Damage to Premises .................................................................................. 35 Section 9.4 Alterations by Concessionaire .................................................................. 35 Section 9.5 Access and Inspections By City. ............................................................... 36 ARTICLE X UTILITIES .............................................................................................................. 37 Section 10.1 Water, Electricity, Gas and Sanitary Sewer. ............................................. 37 Section 10.2 Utilities Costs ............................................................................................ 37 Section 10.3 Heating, Ventilating and Air-Conditioning. ............................................. 38 Section 10.4 Fire Protection Sprinkler System .............................................................. 38 Section 10.5 City’s Right to Alter Utilities .................................................................... 38 Section 10.6 Discontinuances and Interruptions of Utility Services ............................. 38 ARTICLE XI NONLIABILITY AND INDEMNIFICATION OF CITY; INSURANCE ........... 39 Section 11.1 Indemnity by Concessionaire .................................................................... 39 Section 11.2 Waiver of Claims ...................................................................................... 39 Section 11.3 City Not Responsible for Acts of Others .................................................. 39 Section 11.4 Concessionaire’s Insurance ....................................................................... 40 ARTICLE XII DAMAGE AND DESTRUCTION ...................................................................... 40 Section 12.1 Obligation to Repair or Reconstruct the Premises. ................................... 40 Section 12.2 City Not Obligated to Repair or Reconstruct. ........................................... 41 Section 12.3 Termination of the Agreement .................................................................. 41 Section 12.4 Closure. ..................................................................................................... 41 Section 12.5 Insurance Proceeds .................................................................................... 41 Section 12.6 Advance Payments .................................................................................... 42 Section 12.7 Waiver. ...................................................................................................... 42 Section 12.8 Rent Abatement ........................................................................................ 42 ARTICLE XIII CONDEMNATION ............................................................................................ 42 Section 13.1 Effect of Taking. ....................................................................................... 42 Section 13.2 Condemnation Awards.............................................................................. 43 ARTICLE XIV ASSIGNMENTS AND SUBLETTING ............................................................. 43 Section 14.1 No Assignment and Subletting Without Prior Written Consent ............... 43 Section 14.2 Grounds for Denying Consent .................................................................. 44 Section 14.3 Concessionaire’s Application for Consent................................................ 44 Section 14.4 Conditions to Consent ............................................................................... 44 Section 14.5 Transfer of Shares ..................................................................................... 45 Section 14.6 Acceptance of Rental from Transferee ..................................................... 45 ARTICLE XV DEFAULT ............................................................................................................. 46 Section 15.1 “Event of Default” Defined....................................................................... 46 Section 15.2 Remedies ................................................................................................... 47 Section 15.3 Late Charge and Interest ........................................................................... 47 Section 15.4 Waiver of Redemption. ............................................................................. 48 Section 15.5 Assignment in Bankruptcy. ....................................................................... 48 Section 15.6 City’s Event of Default ............................................................................. 48 DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 130 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement iv AGREEMENT NO. 11238 (CCS) ARTICLE XVI SUBORDINATION AND ATTORNMENT ...................................................... 49 Section 16.1 Peaceful and Quiet Use and Possession. ................................................... 49 Section 16.2 Subordination. ........................................................................................... 49 Section 16.3 Attornment ................................................................................................ 50 ARTICLE XVII NOTICES .......................................................................................................... 50 Section 17.1 Notices ...................................................................................................... 50 ARTICLE XVIII MISCELLANEOUS ......................................................................................... 51 Section 18.1 Inspection and Access By City ................................................................. 51 Section 18.2 Remedies Cumulative ............................................................................... 51 Section 18.3 Successors and Assigns............................................................................. 51 Section 18.4 Captions and Headings ............................................................................. 52 Section 18.5 Joint and Several Liability. ....................................................................... 52 Section 18.6 Broker’s Commission. .............................................................................. 52 Section 18.7 No Discrimination. .................................................................................... 52 Section 18.8 No Joint Venture ....................................................................................... 52 Section 18.9 Entire Agreement; No Modification. ........................................................ 53 Section 18.10 Severability. .............................................................................................. 53 Section 18.11 Authority. .................................................................................................. 53 Section 18.12 Applicable Law ......................................................................................... 53 Section 18.13 Control of Access ...................................................................................... 53 Section 18.14 Title and Warranties .................................................................................. 54 Section 18.15 Force Majeure ........................................................................................... 54 Section 18.16 Attorneys’ Fees ......................................................................................... 55 Section 18.17 Counterparts .............................................................................................. 55 Section 18.18 Security Measures ..................................................................................... 55 Section 18.19 Easements ................................................................................................. 55 Section 18.20 City Municipal Powers ............................................................................. 55 Section 18.21 Concessionaire’s Compliance with Law ................................................... 56 Section 18.22 Concessionaire’s Lenders and Equipment ................................................ 56 Section 18.23 Venue and Jurisdiction ............................................................................... 56 Section 18.24 Exhibits ..................................................................................................... 56 DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 131 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement 1 AGREEMENT NO. 11238 (CCS) CONCESSION AGREEMENT THIS CONCESSION AGREEMENT (“Agreement”) is entered into on _________ (“Execution Date”) and is made by and between the CITY OF SANTA MONICA, a California municipal corporation (“City”), and Back on the Beach Food Co., Inc. d.b.a. Back on the Beach Café, a California corporation (“Concessionaire”), with respect to the following: R E C I T A L S: A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business that is now being conducted under the statutes of the State of California and the Charter of the City. B. Pursuant to Section 5080.30 of the California Public Resources Code, the State of California, acting through its Department of Parks and Recreation (“State”), and City have entered into an Operating Agreement (“Operating Agreement”) whereby City is authorized to manage certain public land owned by the State of California, including the public land underlying the facilities that are the subject of this Agreement. C. Concessionaire is a corporation in good standing in the State of California and is qualified to do business in California. Concessionaire is doing business as “Back on the Beach Café” with its principal place of business located at 445 Pacific Coast Highway, Santa Monica, California. D. On or about September 20, 2021, pursuant to Section 5080 et seq of the California Public Resources Code, City issued a Request for Proposals for Beach Concessions (“RFP”) and in response Concessionaire submitted its Proposal dated October 15, 2021 (“Proposal”). The Proposal is attached hereto as Exhibit 1; the RFP is attached hereto as Exhibit 5. E. The parties seek to enter into this Agreement for the Concessionaire to operate a beach concession on 445 Pacific Coast Highway, Santa Monica, CA 90402. F. Pursuant to Section 5080.20(a) of the California Public Resources Code, the State Parks and Recreation Commission reviewed and approved the proposed concession at its meeting on February 4, 2021. G. Pursuant to Section 5080.20(b) of the California Public Resources Code, the appropriate policy and fiscal committees of the Legislature and Joint Legislative Budget Committee was notified on February 4, 2021. H. The parties seek to enter into this Agreement for Concessionaire to operate a restaurant and beach rental concession under the terms and conditions set forth herein. NOW, THEREFORE, AND IN CONSIDERATION of the mutual covenants and agreements herein contained, the parties hereto do hereby covenant and agree as follows: DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 4/7/2022 5.D.d Packet Pg. 132 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement 2 AGREEMENT NO. 11238 (CCS) Section 1.1 Certain Defined Terms. ARTICLE I DEFINITIONS 1.1.1 “Affiliate” shall mean (1) any individual, partnership, trust, other entity or association directly or indirectly controlled by or under common control with the Concessionaire; (2) any person or entity owning or controlling ten percent (10%) or more of the outstanding voting securities of the Concessionaire; or (3) if that other person or entity is an officer, director, member or partner of the Concessionaire, any company for which such person acts in any such capacity. The term “control” as used in the immediately preceding sentence, shall mean the power to direct the management or the power to control election of the board of directors. It shall be a presumption that control with respect to a corporation or limited liability company is the right to exercise or control, directly or indirectly, more than fifty percent (50%) of the voting rights attributable to the controlled corporation or limited liability company, and, with respect to any individual, partnership, trust, other entity or association, control is the possession, indirectly or directly, of the power to direct or cause the direction of the management or policies of the controlled entity. 1.1.2 The term “Agreement” means this Concession Agreement by and between City and Concessionaire. 1.1.3 The term “Beach House” means the Annenberg Community Beach House at Santa Monica State Beach located at 415 Pacific Coast Highway in Santa Monica and under the management authority of the City of Santa Monica. 1.1.4 The term “City” means the City of Santa Monica, in its proprietary capacity, and its City Council, boards and commissions, officers, agents, employees, representatives, and volunteers. 1.1.5 The term “City Manager” means the City Manager or designee. 1.1.6 The term “Commencement Date” means the date this Agreement is fully executed by the undersigned representatives of City and Concessionaire. 1.1.7 The term “Concessionaire” means Back on the Beach Food Co., Inc., a California Corporation. 1.1.8 The term “Consumer Price Index” or “CPI” means the percentage increase in the cost of living index as measured by the Consumer Price Index for All Urban Consumers, All Items - Los Angeles - Anaheim - Riverside, Orange County, California, published by the Bureau of Labor Statistics of the United States Department of Labor (1982-1984 = 100). In the event the CPI shall hereafter be converted to a different standard reference base or otherwise revised, such conversion factor, formula or table for converting the CPI as may be published by the Bureau of Labor Statistics shall be used, or if the Bureau of Labor Statistics shall not publish the same, then such conversion factor, formula or table selected by City may be published by any other nationally recognized publisher of similar statistical information shall be used. In the event the DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 133 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement 3 AGREEMENT NO. 11238 (CCS) CPI shall cease to be published, then there shall be substituted for the CPI such other index of similar nature as is then generally recognized and accepted for like determinations of purchasing power, as City shall select. 1.1.9 The term “Day(s),” whether capitalized or not, means calendar days unless otherwise specifically designated as a work or business day. 1.1.10 The term “Default Rate” shall mean an annual rate of interest equal to the lesser of (i) the maximum rate of interest Concessionaire may lawfully contract in the State of California or (ii) twelve percent (12%). 1.1.11 The term “Environmental Law(s)” refers, without limitation, individually or collectively, to the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended (42 U.S.C. Sections 9601-9675), the Resource Conservation and Recovery Act, as amended (42 U.S.C. Section s 6901-6992k), the Hazardous Materials Transportation Act, as amended (49 U.S.C. Section 1801 et seq.), the Federal Water Pollution Control Act, as amended (33 U.S.C. Sections 1251-1307), the Clean Air Act, as amended, (15 U.S.C. Sections 2601-2692), the Residential Lead-Based Paint Hazard Reduction Act of 1992 (Title X) (15 U.S.C. Sections 2681-2692 and also 42 U.S.C. Sections 48991-4856), the Lead Based Paint Poisoning Prevention Act (42 U.S.C. Sections 4821-4846), the Indoor Radon Abatement Act (15 U.S.C. Sections 2661-2671), the Safe Drinking Water Act Amendments of 1996, Pub. L. No. 104-182, 110 Stat.1613 (1996), and all similar federal, state or local laws, statutes, regulations and ordinances. 1.1.12 The term “Event of Default” is defined in Section 15.1. 1.1.13 The term “Fiscal Year(s)” means a twelve consecutive month period commencing on July 1 and continuing through the next June 30 annually. 1.1.14 The term “FF & E” shall mean all furniture, fixtures, kitchen equipment, dining tables, and chairs provided by Concessionaire in connection with the operation of the Premises under this Agreement. 1.1.15 The term “Hazardous Substance(s)” refers, without limitation, individually or collectively, to the following: any chemical, material or other substance defined as or included within the definition of “hazardous substances,” “hazardous wastes,” “hazardous material,” “extremely hazardous substances,” “toxic substances,” “toxic material,” restricted hazardous waste,” “special waste,” or any words of similar import under any Environmental Law. 1.1.16 The term “Law” shall mean the Operating Agreement, or any federal, state, county, municipal law, statute, ordinance, rule, regulation, order or judicial law, now or hereafter in effect, whether or not presently contemplated. This definition of Law shall include the rules, regulations, programs and guidelines of the City (“City Rules”) and any applicable permits required by the regulatory agencies, including, but not limited to a Conditional Use Permit or Coastal Commission Permit. 1.1.17 The term “Loose Equipment” shall refer to pots, pans, utensils, tableware, point of sale systems, menu boards, office equipment, safes, retail fixtures, and all other equipment DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 134 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement 4 AGREEMENT NO. 11238 (CCS) necessary for the operation and maintenance of Concessionaire’s business. Concessionaire shall be obligated to provide all of the Loose Equipment for the operation of the Premises. 1.1.18 The term “Premises” means the restaurant building and the adjacent, enclosed, exterior beach and patio located at 445 Pacific Coast Highway in Santa Monica, and the equipment building and the adjacent exterior beach area within 10 feet of the building but excluding the northern most room designated as the “sand groomer storage room” located at 415 Pacific Coast Highway in Santa Monica, as more fully described in Exhibit 2 and attached hereto. 1.1.19 The term “Rental Equipment” shall refer to all of the items set forth in Rental Equipment and Price List attached hereto as Exhibit 3 for rental by the Concessionaire during the Term and Extension Term, if any, of this Agreement. The parties may delete, supplement or otherwise modify such list in writing upon mutual consent of both parties from time to time during the Term of this Agreement. 1.1.20 The term “Rental Year” means each Fiscal Year after the Commencement Date. If the Commencement Date occurs on a date other than July 1st, the period from the Commencement Date to the next June 30th (“Partial Rental Year”) shall be added to the first Rental Year. 1.1.21 The term “Tax Year” means and refers to each twelve (12) month period (deemed to have 365 days) established as the real estate tax year by the taxing authorities having lawful jurisdiction over the Premises. 1.1.22 The term “Term” shall mean the original ten-year term of this Agreement plus any five-year renewal and month to month extension by virtue of “holding over” as provided in Section 3.3 or other permissible extension of occupancy. 1.1.23 The term “Termination Date” means at midnight ten (10) years after the Commencement Date or such other date on which this Agreement is earlier terminated or to which the term of his Agreement is further extended pursuant to the provisions of this Agreement. ARTICLE II PREMISES Section 2.1 Premises. City hereby grants to Concessionaire, and Concessionaire hereby accepts from City the right, privilege, and duty to improve, equip, operate, and maintain a restaurant concession and an equipment rental concession at the restaurant building located at 445 Pacific Coast Highway in Santa Monica and building located at 415 Pacific Coast Highway in Santa Monica (collectively “Premises”). Section 2.2 Condition of the Premises. 2.2.1 Concessionaire acknowledges and agrees that Concessionaire has inspected the DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 135 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement 5 AGREEMENT NO. 11238 (CCS) Premises and Concessionaire accepts the Premises “AS IS,” subject to the Operating Agreement, and all applicable zoning, municipal, county and state laws, ordinances and regulations governing and regulating the use of the Premises, and any covenants or restrictions of record. Concessionaire acknowledges that neither City nor City’s agents have made any representation or warranty as to the physical state of the Premises, or any present or future suitability of the Premises for the conduct of Concessionaire’s business. 2.2.2 Concessionaire understands and agrees that City, as the body having regulatory authority over the development and use of the Premises, has made no representations regarding the nature, intensity, height, use or other aspects of development it may approve for the Premises in the future, or what fees and other exactions may be required at the time any such development is applied for, and that City retains full authority under all applicable laws regarding any such approval as they may be in effect from time to time. 2.2.3 Effective on and after the Commencement Date of this Agreement, Concessionaire waives, releases and discharges the City and its respective members, officers, employees, agents, volunteers, contractors and consultants, from any and all present and future claims, demands, suits, legal and administrative proceedings, and from all liability for damages, losses, costs, liabilities, fees and expenses (including, without limitation, attorneys’ fees) arising out of or in any way connected with the Concessionaire’s use, development, maintenance, ownership or operation of the Premises, except as to City’s material breach of this Agreement while acting in its proprietary capacity. Concessionaire acknowledges that it is aware of and familiar with the provisions of Section 1542 of the California Civil Code which provides as follows: A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor. Except as to City’s material breach of this Agreement while acting in its proprietary capacity, Concessionaire hereby waives and relinquishes all rights and benefits which it may have under Section 1542 of the California Civil Code. Section 2.3 State Operating Agreement. It is expressly understood and agreed to by Concessionaire that the provisions of this Agreement are subject to the Operating Agreement by and between the City and State, attached hereto as Exhibit 4, incorporated herein and made a part of this Agreement. In the event that this Agreement is or becomes inconsistent with the Operating Agreement, the rights and the obligations of the parties hereto will be governed solely and exclusively by the Operating Agreement, but in no event will City have any responsibility or incur any liability to Concessionaire as a result of any such inconsistency. Section 2.4 Compliance with Proposition S. The development of the Premises shall comply with all applicable provisions of federal, state and local law, rules and regulations, including, but not limited to, the City of Santa DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 136 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement 6 AGREEMENT NO. 11238 (CCS) Monica’s Comprehensive Planning and Zoning Ordinance as set forth in Article 9 of the Santa Monica Municipal Code, and the Santa Monica Bay Ordinance of 1973, as these provisions may be amended from time to time. ARTICLE III TERM Section 3.1 Term. 3.1.1 Term. The term of this Agreement (the “Term”) shall be for a period of ten (10) years commencing on the Commencement Date and shall end at midnight on the Termination Date unless earlier terminated as set forth in this Agreement or further extended pursuant to Section 3.1.2. This Agreement shall be a binding contractual obligation effective upon execution hereof by City and Concessionaire. 3.1.2 Option to Extend. Provided City is satisfied with the performance of the Concessionaire under this Agreement and Concessionaire is in full compliance with the terms and conditions of this Agreement, the City may, in its discretion, offer to extend the term of this Agreement through the exercise of one extension option (the “Extension Option”) for a period of five (5) additional years after the Termination Date (the “Extension Term”) on the same terms and conditions set forth in this Agreement (including the Rent and Additional Rent), except as otherwise specified herein. 3.1.3 Exercise of Options. 3.1.3.1 City shall exercise the Extension Option, if at all, at least three (3) months prior to the expiration of the Term, by delivery to the Concessionaire in writing of its irrevocable exercise of such Extension Option. If the Extension Option is not so exercised, such Extension Option shall automatically expire and shall be of no further force or effect. 3.1.3.2 Within thirty (30) Days after issuance of the City’s exercise of the Extension Option, Concessionaire shall notify the City if it cannot proceed with the Extension Option. 3.1.3.3 Notwithstanding the foregoing, such Extension Term shall not commence unless all of the following conditions precedent are met as of the day the Extension Term would otherwise commence: (a) the City is satisfied with the performance of the Concessionaire; (b) this Concession Agreement is in full force and effect; and (c) Concessionaire has cured any default under any of the terms and conditions of this Agreement. The City’s satisfaction with the performance of the Concessionaire shall be based upon compliance with this Agreement and a minimum of a satisfactory performance in the performance evaluation in areas including, but not limited to, completion of Improvements as specified in Exhibit 9, Improvement Plan, attached to this Agreement, financial compliance, accounting, bonds/insurance, construction, use of premises, quality assurance, food safety and sanitation, guest/customer satisfaction, facility maintenance. In the event that any of the conditions precedent are not met as of the day of the Extension Term DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 137 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement 7 AGREEMENT NO. 11238 (CCS) would otherwise commence, such Extension Term shall not commence and this Agreement shall then expire. Section 3.2 Termination. Unless sooner terminated in accordance with the provisions hereof and subject to Section 3.3, this Agreement shall terminate at midnight on the Termination Date, without the necessity of any notice from either City or Concessionaire to terminate the Agreement. After the Termination Date, Concessionaire hereby waives notice to vacate or quit the Premises and agrees that City shall be entitled to the benefit of all provisions of law respecting the summary recovery of possession of the Premises from a tenant holding over to the same extent as if statutory notice had been given. Concessionaire hereby agrees that if it fails to surrender the Premises at the end of the Term, or Extension Term, if any, in good condition, reasonable wear and tear excepted, Concessionaire will be liable to City for any and all reasonable damages which City shall proximately suffer by reason thereof. Concessionaire may remove any and all furniture, fixtures and/or equipment not attached to the Premises. In the event Concessionaire does not timely exercise its right to extend the Term in accordance with Sections 3.1.2 and 3.1.3, City shall, upon reasonable notice during the 90 days prior to the Termination Date, have the additional right to show the Premises and all parts thereof to prospective tenants before and after Concessionaire’s normal business hours. This right is in addition to the City’s right to show the Premises during regular business hours as provided in Section 9.5. Section 3.3 Holding Over. 3.3.1 If Concessionaire shall be in possession of the Premises after the expiration of the Term, or Extension Term, if any, with or without the express or implied consent of City, then, in the absence of a written agreement on the subject, the tenancy under this Agreement shall become a month-to-month tenancy after the expiration of the Term or Extension Term, if any, (a “Holdover Tenancy”). The Holdover Tenancy may be terminable by either party on thirty (30) days prior written notice. The monthly rent during any Holdover Tenancy shall be based upon Rent set forth in Section 5.1 of this Agreement and shall include CPI adjustments every year as described herein. Concessionaire shall also pay all other charges payable under the terms of the Agreement, prorated for each month during which Concessionaire remains in possession. Such Holdover Tenancy shall also be subject to all other conditions, provisions and obligations of this Agreement (except for those pertaining to the Term or Extension Term, if any). Neither any provision hereof nor acceptance by City of monthly rent from Concessionaire after such expiration or earlier termination of the Agreement shall be deemed a consent to a Holdover Tenancy or result in a renewal of this Agreement or an extension of the Term. 3.3.2 Notwithstanding any provision to the contrary contained herein, City expressly reserves the rights to require Concessionaire to surrender possession of the Premises upon the expiration of the Term or Extension Term, if any, or upon the earlier termination hereof, to reenter the Premises, and to assert any remedy at law or in equity to evict Concessionaire and/or collect reasonable damages caused by such holding over. Concessionaire shall indemnify, defend and hold City harmless from and against any and all claims, demands, actions, losses, damages, DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 138 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement 8 AGREEMENT NO. 11238 (CCS) expenses, costs and the like, including but not limited to City’s reasonable attorneys’ fees and costs or the reasonable value of all legal services supplied to City, suffered or incurred by City by reason of Concessionaire’s failure to timely surrender and vacate the Premises upon the expiration or earlier termination of this Agreement. Concessionaire shall not interpose any counterclaims in a summary proceeding or other action based on holdover. In the event City does not require Concessionaire to surrender possession of the Premises, Concessionaire’s holdover shall be deemed a month-to-month tenancy. Section 3.4 Surrender. Upon the expiration or any earlier termination of this Agreement, Concessionaire shall perform the following obligations at its sole cost and expense, at the City's sole option and written direction: (i) undo and remove all FF & E (except for trade fixtures), personal property, Loose Equipment, installations, Alterations (defined in Section 9.4), signs and improvements made by or otherwise within the possession of, Concessionaire, or their employees or agents, on or about the Premises requested to be removed and undone by City except for the Improvements and subsequent Alterations made with City's consent; (ii) restore the floor, ceiling and walls of the Premises to their condition as of the date the Improvements were completed, reasonable wear and tear excepted; and (iii) surrender up and deliver possession of the Premises to City, in a broom clean condition, and in good operating order and repair. In the event Concessionaire sells any of its personal property to the successor concessionaire, the Concessionaire shall not be required to remove the personal property which is the subject of the sale. Section 3.5 Survival. The provisions of this Article shall survive the expiration or earlier termination of this Agreement. ARTICLE IV USE Section 4.1 Permitted Uses. 4.1.1. Permitted Use. Subject to receipt of appropriate regulatory permits, Concessionaire shall occupy and use the Premises during the Term and Extension Term, if any, solely for the Permitted Uses set forth herein. Concessionaire’s use of the Premises shall be consistent with RFP, attached hereto as Exhibit 5 and incorporated herein by reference, and Concessionaire Proposal, attached hereto as Exhibit 1 and incorporated herein by reference. Concessionaire shall conduct and operate its business in a high quality and reputable manner, and shall assure the transaction of a reasonable volume of business on and at the Premises. As described in Section 4.4, no uses of the Premises other than those permitted by this Section 4.1 shall be permitted. 4.1.1.1 Permitted Use of the Restaurant Building. DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 139 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement 9 AGREEMENT NO. 11238 (CCS) A. Provision of Food and Non-Alcoholic Beverages. Concessionaire shall use the restaurant building solely for the operation and maintenance of a restaurant concession providing high-quality goods and services usually associated with a restaurant. Food service shall include indoor and outdoor sit-down food service, “to go” food service, and may include delivery service to locations within the Beach House site, such as poolside. B. Alcoholic Beverages. During the Minimum Days and Hours specified in Section 4.3.2, Concessionaire may sell beer and wine in the restaurant building and its outdoor seating area for on-premises consumption for which Concessionaire procured the necessary permits, licenses, or approvals from local, state, and federal agencies, or as part of a catered special event only. No other alcoholic beverages shall be sold without written approval by City and in compliance with all local, state, and federal conditions and regulations. A competent adult person twenty-one (21) years of age or over shall be on Premises at all times to supervise the sale of beer and/or service of alcoholic beverages. Further, the sale of beer and wine during the Minimum Days and Hours/or service of alcoholic beverages shall be subject to the conditions listed below. (i) Concessionaire shall not sell beer and wine unless Concessionaire submits to the City evidence, and City verifies, that Concessionaire has procured the necessary local, state, and federal permits, licenses, or approvals. (ii) Beer and wine may be sold to customers waiting to be seated for meal service with consumption restricted to the restaurant building and its approved outdoor seating area. The sale of beer and wine beyond the approved outdoor perimeter of the restaurant or for off-site consumption is not permitted. (iii) The sale of beer and wine is subject to all conditions and regulations established by the Department of Alcoholic Beverage Control or other applicable federal, state, or local agencies. C. Catering Services. Concessionaire may provide catering services to persons authorized by City to hold catered special events at the Beach House. Such services shall be in accordance with all rules and policies established by City for caterers serving at the Beach House. D. Private Events. Concessionaire may rent the Premises for private events outside of Minimum Days and Hours specified in Section 4.3.2. All private events are subject to prior written approval from the City. The conditions listed below shall apply to all private events held at the Premises. (i) All private events involving the rental of the entire restaurant between Labor Day through Memorial Day must be coordinated with the Beach House Venue Manager, or designee, to ensure adequate parking and other resources are available and to prevent conflicts with other private and public uses of the Beach House. All such private rentals are subject to prior written approval by the City. (ii) All such private rentals must be between 8am and 11pm on weekdays and between 8am and midnight on weekends, inclusive of set-up, breakdown and clean-up. DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 140 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement 10 AGREEMENT NO. 11238 (CCS) Beach House parking lots will be closed by 11pm on weekdays and midnight on weekends. (iii) Alcohol sales shall be restricted to beer and wine with meal service. (iv) Private events shall include meal service that is available at all hours that alcohol is served. (v) A competent adult person twenty-one (21) years of age or over shall be at the Premises where the private event is held at all times to supervise the sale and/or service of alcohol. (vi) Alcohol service shall comply with all local, state, and federal laws and regulations. (vii) Alcohol service must end 30 minutes prior to end time: no later than 9:30pm on weekdays and 10:30pm on weekends. (viii) All events must conclude one hour prior to closing. (ix) Private events must comply with the Santa Monica Municipal Code (“SMMC”), including the Noise Ordinance (SMMC Chapter 4.12) and SMMC Section 9.31.290, as such may be amended from time to time, applicable to restaurants with entertainment, unless more restrictive conditions apply pursuant to permits, approvals, or licenses issued to Concessionaire for the sale of alcohol on the Premises or this Agreement, in which case the more restrictive conditions shall control. (x) Concessionaire shall be responsible for all cleanup and disposal of trash left by patrons within 100-foot radius from Premises. (xi) Concessionaire shall prohibit loitering and noisy guests leaving Premises. (xii) Private events that require the closure of the Premises during Minimum Days and Hours specified in Section 4.3.2 are subject to prior written approval of the Beach House Venue Manager or designee. Concessionaire must submit such written requests for approval at least ten (10) days in advance of the private event. Concessionaire’s request for approval shall, at a minimum, identify where the private event will be held, the time and date of the private event, and include a description of the private event. (xiii) No exterior activities such as deliveries, trash disposal or other maintenance activities, except in the case of an emergency shall be conducted between 11 p.m. and 7 a.m. seven days per week. E. Commercial Filming. Concessionaire may rent the Premises for commercial filming outside of normal business hours. All commercial filming must be coordinated with the Beach House Venue Manager or designee, to ensure that adequate parking and DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 141 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement 11 AGREEMENT NO. 11238 (CCS) other necessary resources are available. All such commercial filming is subject to prior written approval by the City. 4.1.1.2 Permitted Use of the Equipment Building. A. Sale and Rental of Beach-Related Equipment. The sale and rental of Rental Equipment on the Premises may include, but are not limited to beach chairs, umbrellas, boogie boards, towels, related sundries such as hats, sunglasses, sunscreen, and limited snack foods and beverages. Other items may be sold or rented upon written approval by City. City shall approve in writing all items for rent or sale. Concessionaire shall require that a liability waiver, equivalent to the waiver attached hereto as Exhibit 6, Waiver of Liability and Release and incorporated herein by this reference, be executed between Concessionaire and each concession patron prior to the start of each rental of Rental Equipment. Such waiver is subject to the City and State’s approval and shall release City and State, its officers, employees, and agents from any liability resulting from any claim associated with services, equipment, and activities provided and facilitated on each rental. The liability waiver text shall be pre-printed or in an electronic form that complies with federal, state, and local laws and must be signed by every person or guardian therefor participating in each rental within the Premises as permitted in this Agreement. Concessionaire shall make signed liability waivers available to State inspection and shall provide copies upon request. All required waivers shall comply with any and all conditions precedent to insurance coverage as required herein. B. Storage. Concessionaire shall use the equipment building located on 415 Pacific Coast Highway as a storage space for Rental Equipment, rental cart, and other inventory in support of its restaurant and catering operations. C. No Alcoholic Beverages. Notwithstanding anything to the contrary, the sale of liquor, beer, or other alcoholic beverages at the equipment building is expressly prohibited. D. Pricing of Approved Items. The pricing of all retail and rental items must be reasonable, provide excellent price-value, and be set at levels that optimize customer counts and participation. All prices are subject to approval by City in its proprietary capacity. Senior pricing and discounts shall be included, if at all practicable. 4.1.1.3 Other Uses. A. At City’s sole discretion, City, acting through the Director of Community Services, or other representative as designated by the City Manager from time to time, may authorize Concessionaire, or Concessionaire’s approved subcontractor, to offer “mobile” or “temporary” food service or equipment rental service at designated areas within the Beach House site. City shall dictate the terms of these operations. Rent for these rights shall be paid in accordance with the rental terms for in Article V herein. B. At City’s sole discretion, City, acting through the Director of Community Services, or other representative as designated by the City Manager from time to time, DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 142 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement 12 AGREEMENT NO. 11238 (CCS) may authorize Concessionaire to offer additional visitor services and amenities including but not limited to beach equipment reservation and set-up services, event planning services, or similar services in keeping with the goals of the site as a community beach facility. The City shall dictate the terms of these services. Rent for these rights shall be paid in accordance with the rental terms in Article V herein. 4.1.2. Active Use. The parties acknowledge that the Beach House is a valuable resource of the City which is intended to be developed, used and preserved as a public resource for enjoyment by the general public. The parties acknowledge that the use of the Premises is to be in accordance with this stated intent, and that the ultimate objective of this Agreement is for the active public use of the Premises as a casual restaurant by and for the benefit of the general public and in a manner consistent with this Section 4.1. 4.1.3 Operational Standards. Concessionaire acknowledges that it is necessary to develop and maintain high and uniform standards of operation to increase demand for use of the Premises. In order to monitor such standards, Concessionaire’s operational standards shall include the following: 4.1.3.1 Concessionaire shall ensure that a competent person shall be on the Premises at all times during the operation of the Premises. 4.1.3.2 Concessionaire shall respond to City’s written inquiries regarding any complaints or issues from sources including postings on social media sites related to the restaurant’s operation. 4.1.3.3 Concessionaire acknowledges that the health and safety of the Concession guests is paramount and shall operate in a high quality and reputable manner. All public health inspection reports shall be forwarded to the City. A designation from the Los Angeles County Department of Health of less than an “A” more than three times during the term of the Agreement, except to the extent that any such rating is restored to an “A” within 30 days of lowering, shall constitute an event of default and breach of the Agreement. 4.1.3.4 All retail and rental items offered shall be of very high quality, consistent with the Santa Monica State Beach experience and local area, safe, well-maintained and fairly priced. 4.1.3.5 The City retains the right to review and approve the price of all goods and services provided under this Agreement. 4.1.4. Menu. The menu generally shall consist of items reflected in the menu attached as Exhibit 7 and incorporated herein by reference. Concessionaire may make modifications to the menu provided that the basic concept remains in place. Significant changes to the basic menu theme shall require the written consent from City in advance of making any changes, which shall not be unreasonably withheld. Concessionaire shall conduct quarterly reviews of the menu to ascertain what adjustments to the menu are needed. 4.1.5. Standards for Use of Premises. Concessionaire shall staff, conduct and operate its business in a high class and reputable manner, and shall assure the transaction of a reasonable DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 143 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement 13 AGREEMENT NO. 11238 (CCS) volume of business on and at the Premises. 4.1.6 Healthy Foods Initiative. Concessionaire agrees to exercise best efforts to promote healthful and sustainable food practices on the Premises, including the promotion of the importance of healthful, locally and sustainably grown, organic foods from California, and the use of sustainable practices, organic ingredients, and recycled products to the extent feasibly and commercially practicable. These practices may include the following: 4.1.6.1 Purchasing products from local farmers and ranchers who are dedicated to sustainable agriculture and can assure a steady supply of pure and fresh ingredients from California; 4.1.6.2 Offering a selection of food and beverage items that conform to the definition of “healthy” foods as defined by the U.S. Department of Agriculture and the Food and Drug Administration in the Code of Federal Regulations, Title 9, Section 317.363 and Title 21, Section 101; 4.1.6.3 Offering a selection of beverages with no sugar added, such as bottled water, natural fruit juices, and tomato juice; and 4.1.6.4 Providing food products from California that are as pure and natural as possible. Section 4.2 Concessionaire’s Trade Name. Unless otherwise approved by City in writing, Concessionaire shall conduct business in the Premises only in Concessionaire’s trade name of “Back on the Beach Café”. Concessionaire may request a change in trade name, which request shall be subject to reasonable prior written approval by City. Section 4.3 Hours of Operation. 4.3.1 Permissible Hours. The hours of operation are subject to approval by the City of Santa Monica in its regulatory capacity. During all permissible hours of operation, Concessionaire shall operate its business in accordance with the requirements of this Agreement in the area of the Premises during the entire Term and Extension Term, if any. 4.3.2 Minimum Days and Hours of Operation. Concessionaire shall maintain the following minimum business hours unless otherwise agreed to in writing by City: Café: • Daily: Opening at 9AM on weekdays, and weekends no later than 8 AM • Closing will change per season, allowing for breakfast and lunch and generally, dinner Memorial Day through Labor Day • Concession may close Thanksgiving Day, Christmas Day and possibly on a weekday if there are heavy rains. DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 144 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement 14 AGREEMENT NO. 11238 (CCS) Equipment Rentals: • April-September: Daily, hours to be mutually agreed upon with Beach House management relative to Beach House operating schedule • October-March: Upon demand during business hours These hours shall be referred to as the “Minimum Days and Hours”. The Minimum Days and Hours may be changed by written agreement between Concessionaire and City, acting through the Director of Community Services, from time to time. The Minimum Days and Hours shall not apply during the following: (i) periodic remodeling and repair of the effected portion of the Premises for a period not to exceed thirty (30) days during the Term or Extension Term, if any, of this Agreement; (ii) the occurrence of Force Majeure events as defined in Section 18.15, below; and (iii) any time when Concessionaire is prevented from operating by adverse weather. Additionally, the Minimum Days and Hours shall not apply to Thanksgiving Day and Christmas Day for the Beach Concession Stands. In the event that Concessionaire exercises its right to close the business for one of the above stated reasons, excepting (iii) Concessionaire shall provide City with a written Closure Notice which shall specify the reasons for the temporary closure, dates of closure, telephone number for contact, along with supporting documents.) Concessionaire shall provide the Closure Notice as soon as practicable but no later than three (3) days after the closure. Except as excused in this subsection, Concessionaire's failure to operate for all the Minimum Days and Minimum Hours shall constitute an Event of Default (as defined in and subject to Concessionaire's right to cure set forth in Section 15.1). The Minimum Days and Hours may be changed by written agreement between Concessionaire and City, acting through the Director of Community Services, from time to time. In the event that Concessionaire desires after the Commencement Date to modify the Minimum Days and Hours, Concessionaire shall submit to City a written proposal detailing the proposed new Minimum Days and Hours along with any explanation therefore. City agrees to consider any such request in good faith and, in the event that City determines not to approve such request, City agrees to negotiate with Concessionaire in good faith in an attempt to reach a compromise which is acceptable to both parties. Notwithstanding any language to the contrary in this paragraph, Concessionaire recognizes and agrees that City is under no obligation to approve any change in the Minimum Days and Hours. Concessionaire further recognizes and agrees that in reaching its decision, City may consider any factors which City, in its reasonable discretion, deems relevant, and City does not have to consider the volume of Concessionaire's business patronage or lack thereof, as the deciding factor. 4.3.3 Right to Close. In addition to any powers City has or may have in the future, including but not limited to any powers due to its governmental capacities, City shall have the right to require the temporary closure of Premises if, in City’s sole judgment and opinion, crowd control, weather conditions or other conditions so mandate. Nothing in this provision shall be deemed as limiting in any manner the City’s regulatory authority to close the Premises. Section 4.4 Use Restrictions. Except as otherwise specified in Section 4.1, Concessionaire is expressly prohibited from conducting any other uses, activities or operations in, on or about the Premises. The restrictions include, but are not limited to the following: DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 145 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement 15 AGREEMENT NO. 11238 (CCS) 4.4.1 Concessionaire shall not at any time use or occupy the Premises, or permit any act or omission in or about the Premises in violation of Law. Concessionaire shall discontinue immediately any use of the Premises which is declared by any governmental authority to be a violation of Law. This definition of Law shall include the rules, regulations, programs and guidelines of the City and its designee (“City Rules”) and any applicable permits required by the regulatory agencies, including, but not limited to a Conditional Use Permit or Coastal Commission Permit. Concessionaire shall discontinue immediately any use of the Premises which is declared by any governmental authority to be a violation of Law. If any Law shall, by reason of the nature of Concessionaire’s use of occupancy of the Premises, impose any duty upon Concessionaire or City with respect to modification or other maintenance of the Premises, or the use, alteration or occupancy thereof, Concessionaire shall comply with such Law at its sole cost and expense. This Agreement shall be subject to and Concessionaire shall comply with all legal covenants, conditions and restrictions affecting the Premises. 4.4.2 Concessionaire shall not at any time use or occupy the Premises in violation of any temporary or permanent certificates of occupancy issued for the Premises. In the event Concessionaire receives notice that any department of the State of California, County of Los Angeles, or the City shall at any time contend or declare that the Premises are used or occupied in violation of any such certificate or certificates of occupancy, Concessionaire shall immediately discontinue such use of the Premises and otherwise remedy such violation. The failure by Concessionaire to discontinue such use shall be considered an Event of Default and City shall have the right to exercise any and all rights and remedies provided herein or by Law. The provisions in this Agreement setting forth Concessionaire’s permitted uses of the Premises shall not be deemed or construed to constitute a representation or guaranty by City that such business will continue to be lawful or permissible under any temporary or permanent certificate of occupancy issued for the Premises, or otherwise permitted by Law. 4.4.3 The Premises shall not be used for any purpose in any manner inconsistent with the Operating Agreement between State and City. 4.4.4 Concessionaire shall not place any vending machines including cash machines such as ATMs on the Premises without written authorization by City in its proprietary capacity. Any vending machine so approved shall be the sole responsibility of Concessionaire and shall be kept in a clean and well-maintained condition, free of graffiti and operational. At its sole discretion, City may require the site improvements to accommodate the machine and may require removal of said machine(s) at any time. 4.4.5 The number of on-site parking spaces available for use by Concessionaire employees shall be determined at the sole discretion of the City. Approved allocations by the City may vary depending upon the time of year and parking demands generated by the public. Concessionaire shall use best efforts to minimize employee parking demand and agrees to work with City to develop and utilize shuttles and other alternative modes of transportation to minimize on-site employee parking demand. 4.4.6 Concessionaire shall not at any time use or occupy the Premises in a manner that does not comply with the goals of the City for Labor Peace. For purposes of this Agreement, the term “Labor Peace” means and refers to any unlawful labor or business practice that (i) impedes the ability of employees to organize or contract with a labor organization for the purpose of collective bargaining; or (ii) harasses, intimidates or wrongfully terminates employees seeking to unionize; or (iii) is in violation of applicable labor law. A violation of this subsection shall DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 146 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement 16 AGREEMENT NO. 11238 (CCS) constitute an Event of Default. 4.4.7 Concessionaire shall not at any time use or occupy the Premises in a manner that is inconsistent with Article 4 of this Agreement. Section 4.5 Annual Evaluation of the Concessionaire. 4.5.1 City’s Annual Evaluation. At or around the anniversary of the Commencement Date each year, or at an alternate time agreed to by City and Concessionaire, City shall perform an annual evaluation of concession operations to evaluate compliance with the terms of this Agreement including but not limited to completion of Improvements, financial compliance, accounting, bonds/insurance, construction, use of Premises, quality assurance, food safety and sanitation, guest/customer satisfaction, and facility maintenance. A sample of an evaluation form similar to what will be used for evaluation purposes is attached as Exhibit 8 and incorporated herein by reference. In the event City seeks access to the Premises for inspection, the City shall notify Concessionaire as provided herein, and shall permit a representative of the Concessionaire to be present, if possible. 4.5.2 Concessionaire’s Response, If Any. Upon completion of City’s evaluation, City shall provide the Concessionaire with a copy of the evaluation for comments, and Concessionaire shall provide a response, if any, within two weeks from receipt of the evaluation. Concessionaire shall have an opportunity to cure any unsatisfactory categories in a reasonable timeframe to be determined by the City. Additionally, if requested by Concessionaire, the parties shall meet to discuss the evaluation in a reasonable timeframe to be determined by City. The format and content of the evaluation shall be in the sole reasonable discretion of the City. If the Concessionaire cures any unsatisfactory categories to the satisfaction of City in a timely manner pursuant to this Section, City shall amend the evaluation to reflect cure in the corrected categories. ARTICLE V RENTAL Section 5.1 Rental Payable. 5.1.1 Rent Payable by Concessionaire: Commencing from the Commencement Date and continuing through the Term and Extension Term, if any, Concessionaire covenants and agrees to pay the City as rental (the “Rent”) for each Rental Year (as defined in Section 1.1.20), the greater of the following: 5.1.1.1 Minimum Annual Rent in the amount of two hundred thousand dollars ($200,000) (“Minimum Annual Rent” or “Base Rent”); or 5.1.1.2 Percentage Rent equal to eight percent (8%) of the amount of Gross Sales (as such term is defined in Section 5.1.3)(“Percentage Rent”). Base Rent shall be subject to annual CPI increases as provided in Section 5.3. DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 147 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement 17 AGREEMENT NO. 11238 (CCS) 5.1.2 Obligation to Pay Additional Rent. “Additional Rental” means and refer to all additional sums, charges or amounts of whatever nature to be paid by Concessionaire to City in accordance with the provisions of this Agreement, whether or not such sums, charges, or amounts are referred to as additional rent. 5.1.3 “Percentage Rent” means and refers to the amount, if any, by which the Gross Sales in a month, as defined in Section 5.4, multiplied by eight percent (8%). 5.1.4 “Gross Sales” shall have the meaning set forth in Section 5.4 below. 5.1.5 “Monthly Percentage Rent” means and refers to the amount of Percentage Rent paid on a monthly basis, in accordance with Section 5.5 below. 5.1.6 “Rent” and “Rental” means and refers to payment of Annual Base Rent, Base Monthly Rent, Percentage Rent, and Additional Rent, plus any CPI adjustments authorized herein. Rent shall be prorated on a daily basis for any partial month at the commencement or expiration of the Term, Extension Term, or Holdover Tenancy, if any. 5.1.7 Net Agreement. All Rent shall be paid absolutely net to City, so that this Agreement shall yield to City the full amount of the installments of all Rent throughout the Term and Extension Term, if any, and shall be paid without assertion of any counterclaim, setoff, deduction or defense and, except as otherwise expressly provided herein, without abatement, suspension, deferment, diminution or reduction. Under no circumstances or conditions, whether now existing or hereafter arising, or whether beyond the present contemplation of the parties, shall City be expected or required to make any payment of any kind whatsoever, including without limitation, any regular or special assessments levied against the Premises, or be under any obligation or liability hereunder, except as herein expressly set forth. City shall have no responsibility for any costs of repair, maintenance or replacement of Premises whatsoever. Except as otherwise expressly provided herein, this Agreement shall continue in full force and effect, and the obligations of Concessionaire hereunder shall not be released, discharged or otherwise affected, by reason of: (i) any damage to or destruction of the Premises or Improvements or any part thereof or any taking of the Premises or the Improvements or any part thereof; (ii) any restriction or prevention of or interference with any use of the Premises or the Improvements or any part thereof which materially interferes with Concessionaire’s possession or use of the Premises; (iii) any bankruptcy, insolvency, reorganization, composition, adjustment, dissolution, liquidation or other proceeding relating to City, or any action taken with respect to this Agreement by any trustee or receiver of City with respect to this Agreement by any trustee or receiver of City, or by any court, in any proceeding; (iv) any claim which Concessionaire has or might have against City; or (v) any failure on the part of City to perform or comply with any of the terms hereof or of any other agreement with Concessionaire. Except as expressly provided in this Agreement, the obligations of Concessionaire shall be separate and independent covenants and agreements. Section 5.2 Payments of Percentage Rent. Payment of Rent. Concessionaire shall pay all Rent when due and payable, without any set-off, deduction, or prior demand as follows: DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 148 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement 18 AGREEMENT NO. 11238 (CCS) 5.2.1 Beginning with the fifteenth (15th) day of the month following the Commencement Date, and on or before the fifteenth (15th) day of each month thereafter, Concessionaire shall pay to City the appropriate Percentage Rent fee for the preceding calendar month concurrently with the submission of Concessionaire’s monthly statement of Gross Sales and Receipts provided for in Section 5.4 below. 5.2.2 If, at the end of the Fiscal Year, the total of Monthly Percentage Rent payments made (or due) during that Fiscal Year is less than the Minimum Annual Rent required for that Fiscal Year, the difference shall be remitted to City with the last monthly sales statement for the subject Fiscal Year. In the event of a partial Rental Year, the amount of Annual Percentage Rent due, if any, for such year shall be calculated by projecting the appropriate percentage of Gross Sales over a full twelve-month period. 5.2.3 Each Fiscal Year shall be considered an independent accounting period for purposes of computing the amount of Minimum Annual Rent. Concessionaire’s Gross Sales for any Fiscal Year shall not be carried over to any other Fiscal Year for any purpose whatsoever. 5.2.4 Late Charge. If Concessionaire fails to pay any Rent within ten (10) days after due, the same shall constitute an Event of Default as provided in Section 15.1. Concessionaire shall be obligated to pay a late payment charge equal to ten percent (10%) of any Rent not paid when due to reimburse City for its additional administrative costs (“Late Charge”). In addition, Rent shall bear interest at the Default Rate from the first day due until paid (“Interest on Late Payments”). Late Charges and Interest on Late Payments shall constitute Additional Rent and shall be payable with the next monthly Rent payment. 5.2.5 Payments. Rent shall be paid by check made payable to the City of Santa Monica and delivered to City at the address specified in Section 17.1 of this Agreement during the City business hours, or at such other place as City may from time to time designate in writing to Concessionaire. Additionally, the City will accept wire transfer or credit card payment when such options are available in the future. Any payment by Concessionaire or acceptance by City of a lesser amount than shall be due from Concessionaire to City shall be treated as a payment on account. The acceptance by City of a check for a lesser amount with an endorsement or statement thereon, or upon any letter accompanying such check, that such lesser amount is payment in full shall be given no effect, and City may accept such check without prejudice to any other rights or remedies which City may have against Concessionaire. Section 5.3 CPI Adjustment. 5.3.1 Definitions. For purposes of this section, the following definitions shall apply: 5.3.1.1 The term “Base Year” means the first Rental Year under this Agreement. 5.3.1.2 The term “Base Index” means the CPI that shall be in effect in the Base Year. 5.3.1.3 The term “Base Rent” means two hundred thousand dollars ($200,000). 5.3.1.4 The term “Year End Index" shall be the CPI for the month preceding the DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 149 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement 19 AGREEMENT NO. 11238 (CCS) start of the Fiscal Year requiring CPI adjustment as required above. 5.3.1.5 The term “Percent Change” shall be the percent change between the Base Index and Year End Index, calculated as follows: (Year End Index - Base Index) Base Index 5.3.1.6 The term “CPI Adjustment” shall be the Base Rent multiplied by the Percent Change. 5.3.1.7 “Adjusted Minimum Annual Rent” shall be the sum of the Base Rent and the CPI Adjustment 5.3.2 Annual Adjustments. City shall, as promptly as practicable after the beginning of each Rental Year, give notice to Concessionaire of the annual adjustment (“Adjustment Date”) in the Minimum Annual Rent payable for such rental year as determined by City. City’s computation thereof shall be conclusive and binding (except for mathematical error), but shall not preclude any further adjustment which may be required. Until receipt of City's notice, Concessionaire shall pay monthly installments of Minimum Annual Rent at the rate applicable to the immediately preceding Rental Year. If at the time of City's notice the total of the monthly installments of Minimum Annual Rent actually paid by Concessionaire with respect to the elapsed portion of the current Rental Year is less than the amount of Minimum Annual Rent required to be paid for such period as indicated in City's notice, Concessionaire shall immediately pay to City the amount of the deficiency. 5.3.3 No Waiver. In the event that the CPI is unavailable as of the Adjustment Date, Concessionaire shall continue to make rent payments until notified by the City of the CPI increase. Any delay or failure of City in computing or billing Concessionaire for the escalation of the Minimum Annual Rent shall not constitute a waiver of or in any way impair the continuing obligation of Concessionaire to pay such CPI increase. Concessionaire shall provide a retroactive payment to City of the CPI increase from Adjustment Date to the date of notification of such increase Section 5.4 Gross Sales. 5.4.1 Definition of Gross Sales and Receipts. “Gross Sales” means the actual sales price of all goods, wares, and merchandise sold, leased, licensed, or delivered and the actual charges for all services performed by the Concessionaire, or any subtenant, licensee, or concessionaire of Concessionaire, in, at, from, or arising out of the use of the Premises, whether for wholesale, retail, cash, credit, trade-in, or otherwise, without reserve or deduction for inability or failure to collect. Gross Sales shall include, without limitation, sales and services (i) where the orders therefore originate in, at, from, or arising out of the use of the Premises, whether delivery or performance is made from the Premises or from some other place; (ii) made or performed by mail, telephone, or computer orders; (iii) made or performed by means of mechanical or other vending devices in the Premises; (iv) which Concessionaire or any subtenant, licensee, concessionaire, or other person in the normal or customary course of its business would credit or attribute to its operations in any part of the Premises; and (v) all revenues and receipts, DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 150 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement 20 AGREEMENT NO. 11238 (CCS) generated by or arising from the use of the Premises, including, but not limited to for any television, radio, movie, studio, photograph promoter, or any other such activity, on, at, or near the Premises. Any deposit not refunded shall be included in Gross Sales. Each installment or credit sale shall be treated as a sale for the full price in the month during which such sale is made, regardless of whether or when Concessionaire receives payment therefore. 5.4.2 The following shall not be included in Gross Sales: (i) sums and credits received in the settlement of claims for loss or damage to goods or merchandise; (ii) cash or credit refunds to customers in the ordinary course of business (not to exceed the actual sales price of the item returned), otherwise included in Gross Sales; (iii) amounts collected and paid by Concessionaire to any government for any sales, use, or excise tax; (iv) sums and credits received in the settlement of claims for loss or damage to merchandise or equipment or fixtures; (v) any exchange of merchandise between stores of Concessionaire where such exchange is made solely for the convenient operation of Concessionaire’s business and not for the purpose of consummating a sale made in, at, or from the Premises, or for the purpose of depriving City of the benefit of a sale which would otherwise be made in or at the Premises; (vi) returns to shippers or manufacturers; (vii) sales of trade fixtures, machinery, and equipment after use thereof in the conduct of Concessionaire’s business; (viii) customary complimentary or discounted portion of sales to employees during the course of their employment; (ix) customary promotional or manager charges; (x) tips or customer gratuities or tips that are received by Concessionaire's employees from Concessionaire's operations on the Premises. Section 5.5 Statements of Gross Sales and Expenditures. Concessionaire shall deliver to the City the following: 5.5.1 Monthly Report of Gross Sales. Within fifteen (15) days after the close of each calendar month of the Term, or Extension Term, if any, a verified statement of the concession’s Gross Sales the preceding month. Such statement shall be in a format acceptable to City and shall specify the current period and cumulative total of Gross Sales for the concession through the end of the preceding month for the then current Fiscal Year. 5.5.2 Annual Report of Gross Sales and Expenditures. Within ninety (90) days after the close of each Fiscal Year, or alternative year period as described below, and authorized by City in its proprietary capacity, a statement of Gross Sales and Expenditures for the preceding Fiscal Year which shall conform to and be in accordance with generally accepted accounting principles. The annual statement shall be accompanied by a signed certificate of an independent Certified Public Accountant (the “CPA”) stating specifically that (i) the CPA has examined the report of Gross Sales for the preceding Fiscal Year, (ii) the CPA’s examination included such tests of Concessionaire’s books and records as the CPA considered necessary or appropriate under the circumstances, (iii) such reports present fairly the Gross Sales of the preceding Fiscal Year, and (iv) the said Gross Sales conform with and are computed in compliance with the definition of Gross Sales contained in Section 5.4, above. Alternatively, Concessionaire may elect to submit an Annual Report of Gross Sales for a calendar year, tax year, or other 365-day period, upon written authorization of City. The annual report for any such alternative year period shall contain all required elements as described above. 5.5.3 City’s Remedies. If Concessionaire shall fail to deliver such annual statement and DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 151 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement 21 AGREEMENT NO. 11238 (CCS) certificate to City within such ninety (90) day period, City shall have the right after notice and expiration of the cure period to employ an independent Certified Public Accountant or other qualified auditor (“City’s Representative”) to examine such books and records, including, without limitation, all records required by Section 5.5, as may be necessary to certify the amount of Concessionaire’s Gross Sales and Expenditures for such Fiscal Year. If such examination shows an underpayment of more than 5%, Concessionaire shall pay to City the amount of the underpayment and the reasonable cost of the City’s Representative as Additional Rent. If such audit discloses that Concessionaire’s records, in the opinion of such City Representative, are inadequate to disclose such Gross Sales, City shall be entitled to collect as Additional Rent, an equitable sum determined by such City Representative, but not exceeding twenty percent (20%) of the aggregate Monthly Percentage Rent during the period in question (“Deemed Percentage Rent”). In addition, the City shall have the right to retain a qualified consultant with experience in the food service industry to prepare and to establish a proper record system from which Concessionaire and City can determine Gross Sales, using books and records in a form prescribed by such consultant and Concessionaire shall pay to City as Additional Rent the costs, consultant’s fees and any other reasonable charges relating thereto. Section 5.6 Concessionaire’s Records. 5.6.1 Required Records. For the purpose of permitting verification by City of any amounts due as Rent, Concessionaire covenants and agrees that all business conducted or originated at the Premises shall be operated so that a computerized point of sale record, duplicate sales slip, invoice or non-resettable cash register receipt, serially numbered, or such other device for recording sales as City approves, shall be issued with each sale or transaction, whether for cash, credit or exchange. 5.6.2 Maintenance of Records. Concessionaire will keep and preserve for at least five (5) years, and during the Term and Extension Term, if any, shall keep at Concessionaire’s corporate headquarters, a general ledger, required receipts and disbursement journals, and such sales records and other supporting documentation together with original or duplicate books and records which shall disclose in detail all information required to permit City to verify Concessionaire’s Gross Sales and which shall conform to and be in accordance with generally accepted accounting principles. 5.6.3 Audits. At any time or from time to time during ordinary business hours and after ten (10) days advance notice to Concessionaire, City or its consultants, representatives, and/or accountants, shall have the right during normal business hours (typically Monday through Friday 9 AM to 5 PM) to make any examination or audit of such books and records which City may desire. If such audit shall disclose that, in any Rental Year, Rent due is greater than Rent theretofore paid by Concessionaire for such period, Concessionaire shall pay to City within ten (10) days of notice thereof the amount of such deficiency. In addition, if such audit shall disclose that Concessionaire has underpaid by five percent (5%) or more any Rent payable by Concessionaire the amount of which is based on Gross Sales, then upon thirty (30) days written notice to Concessionaire, Concessionaire shall pay the cost of such audit, all Monthly Percentage Rent then payable, plus interest at the Default Rate on such Monthly Percentage Rent, calculated from the date such additional Monthly Percentage Rent was originally due and payable. The City may declare an Event of Default after issuance of three notices of deficiency to Concessionaire. DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 152 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement 22 AGREEMENT NO. 11238 (CCS) Section 5.7 Security Deposit. 5.7.1 Amount of Security Deposit. Concurrently with the execution of this Agreement, Concessionaire shall pay to City the sum of twenty thousand dollars ($20,000) as the security deposit to be held as security for the full and faithful performance by Concessionaire of all obligations imposed under this Agreement (“Security Deposit”). 5.7.2 Application of Security Deposit. City shall be required to keep the Security Deposit separate from its general funds and Concessionaire shall be entitled to interest thereon at the rate earned by City, less any reasonable administrative handling fees. If Concessionaire defaults with respect to any provision of this Agreement, including, without limitation, the provisions relating to the payment of Rent, Additional Rent, or the cleaning of the Premises upon the termination of this Agreement, City may, but shall not be required to, use, apply, or retain all or any part of the Security Deposit for the following: (i) payment of any Rent or any other sum in default; (ii) payment of any other amount which City may spend or become obligated to spend by reason of Concessionaire’s default hereunder; (iii) to compensate City for any other loss or damage which City may suffer by reason of Concessionaire’s default hereunder; and (iv) all costs and reasonable attorneys’ fees incurred by City to recover possession of the Premises following a default by Concessionaire hereunder. If any portion of the Security Deposit is so used or applied, Concessionaire shall, upon demand therefore, deposit cash with City in an amount sufficient to restore the Security Deposit to the appropriate amount, as determined hereunder. If Concessionaire shall fully perform every provision of this Concession to be performed by it, the Security Deposit or any balance thereof (including any unpaid interest earned thereon) shall be returned to Concessionaire (or, at City’s option, to the last assignee of Concessionaire’s interest hereunder) within 14 days following the surrender of the Premises; provided, however, that City may retain the Security Deposit until such time as any amount due from Concessionaire in accordance with this Article V has been determined and paid to City in full. No right or remedy available to City as provided in this Section shall preclude or extinguish any other right or remedy to which City may be entitled. Section 5.8 Performance Bond. 5.8.1 Amount of Performance Bond. Concessionaire, at its own cost and expense, shall provide to City a valid performance bond in a form satisfactory to City, issued by a corporate surety licensed to transact surety business in the State of California, valid throughout the Term, and Extension Term, if any, of this Agreement and in the sum of one year’s Minimum Annual Rent. This bond shall insure faithful performance by Concessionaire of all obligations under this Agreement. After Rental Year One and concurrently with the evaluation of Concessionaire, City shall assess whether the Performance Bond is required and at what value for subsequent years during the Term and Extension Term, if any. DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 153 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement 23 AGREEMENT NO. 11238 (CCS) ARTICLE VI TAXES Section 6.1 Concessionaire’s Obligation to Taxes. 6.1.1. Possessory Interest Taxes. By signing this Agreement, Concessionaire acknowledges that occupancy interest and rights to do business on public property being offered Concessionaire by this Agreement may create a possessory interest as that term is defined in Revenue and Taxation Code Section 107.6, which possessory interest may subject Concessionaire to liability for the payment of property taxes levied on such possessory interest. 6.1.2 Obligation to Pay Taxes. Concessionaire agrees to pay all lawful taxes, assessments, or charges that at any time may be levied by the State, County, City, or any tax or assessment levying body upon any interest in or created by this contract, or any possessory right that Concessionaire may have in or to the premises covered hereby, or the improvements thereon by reason of Concessionaire’s use or occupancy thereof or otherwise, as well as all taxes, assessments, and charges on goods, merchandise, fixtures, appliances, equipment, and property owned by Concessionaire in or about the Premises. Concessionaire shall pay in each Tax Year during the Term and Extension Term, if any, either to City (in which case it shall be deemed as Additional Rent) or directly to the appropriate taxing authorities, all real estate taxes, bonds, levies or charges, ad valorem taxes and assessments, general and special assessments, taxes on the Premises, or any other tax imposed upon or levied against real estate or upon owners of real estate, including taxes upon leasehold improvements payable with respect to or allocable to the Premises, all land and all buildings and improvement situated thereon, and Concessionaire's proportionate share of taxes allocable to the Premises, whether assessed to the Premises or to City. Any taxes to be paid by Concessionaire under this Article VI shall be paid directly to the proper taxing authorities when due or, at minimum, not less than ten (10) days prior to delinquency or, if paid to City, paid within twenty (20) days of receipt of a written request from City. Section 6.2 Concessionaire’s Obligation to Pay Personal Property Taxes. Concessionaire shall pay to the appropriate agency not less than ten (10) days prior to due date, any and all sales, excise, possessory interest and other taxes (not including, however, City’s income taxes) and license fees or other charges levied, imposed or assessed by any taxing or levying authority including the State of California and County of Los Angeles whether on its goods sold or on its leasehold improvements, equipment, furniture, or personal property in or about the Premises (collectively, “Personal Property Taxes”). In the event any or all of Concessionaire’s Alterations (as hereinafter defined), leasehold improvements, equipment, furniture, fixtures or personal property shall be assessed with the real property or as Taxes charged to City, Concessionaire shall pay all such Personal Property Taxes within twenty (20) days after delivery to Concessionaire by City of a statement in writing setting forth the amount of such Personal Property Taxes applicable to Concessionaire's property. DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 154 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement 24 AGREEMENT NO. 11238 (CCS) ARTICLE VII IMPROVEMENTS Section 7.1 Concessionaire’s Improvements. Concessionaire acknowledges that the Premises as described herein are integral to and part of the larger site of the Annenberg Community Beach House located at 415 Pacific Coast Highway in Santa Monica. Concessionaire further understands and acknowledges that the operations and capital improvements contemplated hereunder for the concession are subject to the operations and schedule of the Annenberg Community Beach House. As such, Concessionaire agrees to execute a good faith effort to coordinate all operations and required and discretionary improvement work in conjunction with the overall needs of the site. 7.1.1 Concessionaire’s Cost and Expense. Concessionaire agrees, at its sole cost and expense, to make certain improvements to the Premises (“Improvements”) in accordance with the Concessionaire’s Proposal attached as Exhibit 1, and Improvement Plan attached as Exhibit 9 and incorporated herein by reference. 7.1.2 Design Development Plans. Concessionaire shall engage the services of an architect or structural engineer certified and licensed by the State of California for the design and planning of the Premises, including all Improvements and any other leasehold improvements thereon. City shall approve or reject Concessionaire’s architect or structural engineer. Concessionaire shall prepare design development plans (“Design Development Plans”) for the Improvements which shall include, but not be limited to, a site plan and floor plan showing the exterior elevations, the layout of all partitions, walls and doors and specifications to City for its reasonable approval. 7.1.3 Final Drawings and Specifications. Upon approval of the Design Development Plans by the City in its proprietary capacity, Concessionaire shall prepare complete, final architectural working drawings, plans and specifications, including, without limitation, mechanical, electrical and structural engineering drawings (referred to as the “Final Drawings and Specifications”) showing in detail all Improvements, including, without limitation, all ducting for heating, ventilation, and air conditioning (HVAC), as well as the final space plan, the layout of the partitions, doors, light fixtures, electrical and telephone outlets, wall, floor, window and door finishes, hardware, material and coverings, and all other improvements. Concessionaire acknowledges and agrees that the Improvements set forth in the Final Drawings and Specifications shall be compatible with the design and construction of the Beach House, including any substructure modifications, conform to the approved Concept Drawings, comply with all applicable Law, and be of sufficient scope and specificity to lead to the set of plans for final review and approval by the applicable regulatory agencies, including, but not limited to, the Landmarks Commission, Planning Commission, and the Coastal Commission. Section 7.2 Compliance with Law. The Improvements shall all be compatible with the design and construction of the existing Premises and shall comply with all applicable Law, including the City of Santa Monica’s Comprehensive Zoning Ordinance as set forth in Article 9 of the Santa Monica Municipal Code and the Santa Monica Bay Ordinance of 1973. Concessionaire also DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 155 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement 25 AGREEMENT NO. 11238 (CCS) acknowledges that the Improvements must be satisfactory to, approved by, and in compliance with, all requirements of all various governmental entities which may have jurisdiction over the Premises and its improvements in addition to the City, which may include, but are not limited to, the City Landmark’s Commission, the City Architectural Review Board, the City Planning Commission, the City Council, the County Health Department, and the State Coastal Commission. In the event such Improvements do not comply with any of the aforementioned requirements, Concessionaire shall promptly commence to bring such Improvements into compliance therewith. Section 7.3 Submittal to City: Right of Termination. Concessionaire shall submit the Design Development Plans and Final Drawings and Specifications to the City for the City’s prior approval prior to submission to the applicable regulatory agencies for regulatory approval. Concessionaire agrees that it will comply with and incorporate all reasonable recommendations and requirements of the City in its proprietary capacity. If, however, City and Concessionaire are unable to reasonably agree on the Improvements, Concessionaire may terminate this Agreement upon thirty (30) days notice. Section 7.4 Amount and Schedule. Concessionaire agrees to complete the Improvements utilizing only quality materials and equipment. Concessionaire shall bear the sole cost and expense of the design and construction of the Improvements, as set forth in the Improvement Plan attached as Exhibit 9. Concessionaire agrees to complete the Improvements in accordance with the construction schedule that is not to unreasonably interfere with the activities of the Beach House. Section 7.5 Manner of Construction. 7.5.1 Retention of General Contractor. Promptly following City’s approval of the Improvement Plan, Concessionaire shall commence and thereafter pursue diligently to completion the Improvements in accordance with the Law. Concessionaire shall retain a general contractor (the “General Contractor”), acceptable to the City, for the construction of the Improvements. The General Contractor must have the following qualifications: (i) an applicable license from the State of California; (ii) at least five years of experience as a general contractor in good standing with the State of California; (iii) completion of at least one restaurant project where the construction contract was $500,000 or more; (iv) ability to provide requisite insurance and bonding requirements. Concessionaire shall be solely responsible for monitoring the progress of the Improvements and supervision thereof. 7.5.2 Evidence of Construction Financing. Concessionaire shall provide City with a final Construction Budget detailing 100% of all costs projected for each phase of the Improvements, and evidence of available funds or financing sufficient to complete each phase of the Improvements, no less than 30 days prior to commencement of construction of each phase (‘Final Construction Budget”). The Final Construction Budget shall be subject to the written approval of the City if it increases or decreases the total amount by more than five DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 156 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement 26 AGREEMENT NO. 11238 (CCS) percent (5%) of the Construction Budget. 7.5.3 Completion Bond During Construction. Prior to, and as a condition to the commencement of any construction activities hereunder, Concessionaire shall deliver to City (i) a copy of the construction contract between Concessionaire and General Contractor which Concessionaire has entered into for the Improvements, and either (ii) a completion bond in the amount of $250,000 (“Bond”) issued in the name of the City of Santa Monica by a bonding company with a rating of at least A:6, or (iii) in lieu of submitting to City a completion bond as referenced in subsection (ii) the Concessionaire may deposit $250,000 with the City for the City to hold in escrow pending issuance of a certificate of occupancy and the expiration of the lien period as security for the faithful performance of the Concessionaire’s construction obligations. The City shall place funds in an interest-bearing, internal account with interest to the credit of the Concessionaire. 7.5.4 Insurance. Prior to the commencement of any construction of Improvements Concessionaire shall require and verify that all contractors and subcontractors maintain commercial general liability insurance and workers’ compensation insurance as stated in this Agreement. 7.5.5 Concessionaire shall indemnify, protect, defend, and hold harmless (collectively, the “Indemnity”) the City and its respective boards, commissions, officers, employees, contractors and agents, with counsel reasonably acceptable to City, from and against any and all loss, liability, damage, claim, cost, expense, and/or “increased costs” (including labor costs, penalties, reasonable attorney’s fees, court and litigation costs, and fees of expert witnesses) which, in connection with the construction of the Improvements or which results or arises in any way from any of the following: (1) Concessionaire’s failure to pay prevailing wages; (2) the implementation of Sections 1726 and 1781 of the Labor Code, as the same may be enacted, adopted or amended from time to time, or any other similar law; (3) failure by Concessionaire to provide any required disclosure, representation, statement, rebidding and/or identification which may be required by Labor Code Sections 1726 and 1781, as the same may be enacted, adopted or amended from time to time, or any other provision of law; (4) failure by Concessionaire to provide and maintain any and all bonds to secure the payment to contractors (including the payment of wages to workers performing any public work) which may be required by the Civil Code, Labor Code Section 1781, as the same may be enacted, adopted or amended from time to time, or any other provision of law; and/or (5) failure by Concessionaire to obligate any party as may be required by Labor Code Sections 1726 and 1781, as the same may be enacted, adopted or amended from time to time, or any other provision of law. 7.5.6 In connection with the construction of the Improvements, Concessionaire shall bear all risks of payment or non-payment of prevailing wages and/or the implementation of Labor Code Sections 1726 and 1781, as the same may be enacted, adopted or amended from time to time, and/or any other provision of law. “Increased costs” as used in this Section shall have the meaning ascribed to it in Labor Code Section 1781, as the same may be enacted, adopted or amended from time to time. 7.5.7 Time Period for Performance. Concessionaire shall complete the Improvements in a timely manner in accordance with Exhibit 9. A Project Schedule setting forth the sequence of construction of the Improvements shall be established by the parties during the review of the DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 157 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement 27 AGREEMENT NO. 11238 (CCS) Final Plans and Specifications. In the event that there are any construction delays which impact the Project Schedule, including force majeure, Concessionaire shall notify the City of the reason for the delay and the anticipated revised dates for performance. 7.5.8 Manner of Work. In connection with the Improvements, Concessionaire shall use commercially reasonable efforts to ensure that: (i) Concessionaire’s activities will be conducted in such a manner so as not to unreasonably interfere with the activities of the Beach House and the neighborhood; (ii) Concessionaire has obtained or will obtain all City approvals required under this Agreement and/or any applicable governmental approvals, consents, and permits; and (iii) Concessionaire will promptly remove from the Premises in its entirety all trash, construction debris, and other waste which may accumulate in connection with Concessionaire’s activities. Concessionaire and City acknowledge that completion of the Improvements is a material consideration of City’s agreement to the terms and conditions of this Agreement. Concessionaire shall comply with the following construction procedures, which may be amended by the City from time to time in its reasonable discretion: 7.5.8.1 Concessionaire shall not use Premises or any part thereof for use of storage of materials or equipment or other construction activities without the prior written consent of the City. 7.5.8.2 Any damage, staining, or defacing of the Premises will be repaired by the Concessionaire, at Concessionaire’s sole cost and expense. 7.5.8.3 Concessionaire shall provide a temporary construction barrier screened of a standard design and color as specified by City. The barricade shall be maintained in a clean and neat manner and free from graffiti for the duration of the construction activities. 7.5.8.4 Concessionaire shall at all times during the construction of the Improvements, assure that the area in and around the Premises is maintained in a clean, neat and orderly manner. Any rubbish caused by the construction of the Improvements shall be managed and/or removed daily. Should Concessionaire fail to conform to the requirements of this provision within 48 hours upon request by City, City may cause the cleaning to be done by others and charge the cost of the same to Concessionaire. 7.5.8.5 No signs of any type shall be placed on or about the Premises Area during the construction of the Improvements without the prior written consent of the City. 7.5.8.6 Any damage to the Premises arising directly or indirectly from Concessionaire’s activities shall be promptly repaired by Concessionaire, at Concessionaire’s sole cost and expense. 7.5.8.7 Payment of Prevailing Wages. Section 7.6 Mechanics’ Liens. No work performed by Concessionaire pursuant to this Agreement, whether in the nature of erection, construction, alteration, repair or improvement of any kind, shall be deemed to be DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 158 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement 28 AGREEMENT NO. 11238 (CCS) for the immediate use and benefit of City so that no mechanic’s or other lien shall be allowed against the estate of City by reason of any consent given by City to Concessionaire to improve the Premises. Concessionaire shall give City adequate prior written notice of its intent to commence any construction for which a mechanic’s lien could result so that City may timely post a notice of non-responsibility. Concessionaire shall pay promptly all persons furnishing labor or materials with respect to any work performed by Concessionaire or its contractors on or about the Premises. In the event any mechanic’s or other lien shall at any time be filed against the Premises or City’s property by reason of work, labor, services or materials performed or furnished, or alleged to have been performed or furnished, to Concessionaire or to anyone holding the Premises through or under Concessionaire, Concessionaire shall forthwith cause the same to be discharged of record or bonded to the satisfaction of City. If Concessionaire shall fail to cause such lien forthwith to be so discharged or bonded after being notified of the filing thereof, then, in addition to any other right or remedy of City, City may bond or discharge the same by paying the amount claimed to be due, and the amount so paid by City including the reasonable value of legal services received by City either defending against such lien or in procuring the discharge of such lien, together with interest thereon at the Default Rate, shall be due and payable by Concessionaire to City as Additional Rent. ARTICLE VIII OPERATIONS Section 8.1 Operations by Concessionaire. 8.1.1 Conduct and Maintenance. Concessionaire will at its expense: (i) keep the inside and outside of all glass in the doors and windows located in the Premises intact and clean; (ii) keep all exterior surfaces located on the Premises clean and free of graffiti; (iii) replace promptly any cracked or broken glass located on the Premises with glass of like grade and quality; (iv) maintain the Premises in a clean, orderly and sanitary condition and free of insects, rodents, vermin and other pests; (v) keep any overnight garbage, trash, rubbish or other refuse in rat-proof containers within the interior of the Premises or in City designated trash containers until removed; (vi) have such garbage, trash, rubbish and refuse removed on a daily basis; (vii) keep all mechanical apparatus reasonably free of vibration and noise which may be transmitted beyond the Premises; (viii) comply with all applicable Law; (ix) light the show windows of the Premises and exterior signs during Concessionaire’s business hours and turn the same off to the extent reasonably required by City; (x) comply with and observe all rules and regulations established by City or its designee; (xi) maintain sufficient and seasonal inventory and have sufficient number of personnel to maximize sales volume in the Premises; and (xii) conduct its business in all respects in accordance with high standards of restaurant and retail operation as reasonably determined by City. 8.1.2 Prohibited Conduct. Concessionaire will not cause, permit or suffer any nuisance or waste to or of the Premises or any disturbance of the quiet enjoyment of any other Concessionaire, licensee, occupant, visitor and shall not (i) place or maintain any merchandise (or permit any vendors to display wares in any manner in or about the Premises), trash, refuse or other articles in any vestibule or entry of the Premises, on the foot walks or corridors adjacent thereto or elsewhere on the exterior of the Premises, nor obstruct any driveway, corridor, foot DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 159 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement 29 AGREEMENT NO. 11238 (CCS) walk, or any other common area; (ii) use or permit the use of any objectionable advertising medium, including, without limitation, loudspeakers, phonographs, public address systems, sound amplifiers, radio or television broadcasts which are in any manner audible or visible outside of the Premises without the prior written permission of the City, which may be withheld in its sole and complete discretion; however, the use of loudspeakers and amplified music in accordance with Concessionaire’s plan for use submitted to the City and approved by the City shall be except from this prohibition; (iii) permit undue accumulations of, burn or dump garbage, discharge of any sewage, trash, rubbish or other refuse within, without or under the Premises; (iv) cause or permit foul and offensive odors to emanate or to be dispelled from the Premises; (v) solicit business outside of the Premises except in the normal course of advertising and promoting Concessionaire's business; (vi) distribute handbills or other advertising matter to, in or upon any automobiles parked in the parking areas; (vii) permit the parking of vehicles so as to interfere with the use any area outside of the Premises; (viii) receive or ship articles of any kind outside the designated loading areas for the Premises; (ix) use any portion outside the Premises for the sale or display of any merchandise or for any other business, occupation or undertaking; (x) conduct or permit to be conducted any auction, fire, going out of business, bankruptcy, or other similar type sale in or connected with the Premises (but this provision shall not restrict the absolute freedom of Concessionaire in determining its own selling prices, nor shall it preclude the conduct of periodic seasonal, promotional or clearance sales); (xi) use or permit the use of any portion of the Premises for any unlawful purpose or for any activity not authorized under this Agreement; (xii) place a load upon any floor which exceeds the floor load which the floor was designed to carry; (xiii) use or operate all or any portion of the Premises for any purpose whatsoever which shall interfere with agreements upon which the Premises is now held or may hereafter be held by City; (xiv) permit animals of any kind to be brought into the interior of the building of the Premises except for service animals in compliance with the Americans with Disability Act and any other animals permitted by the Los Angeles County Health Department; (xv) permit the Premises or any part thereof to be used for lodging or sleeping; or (xvi) cause or permit any Hazardous Substances (as defined in Section 1.1.15) to be brought upon, kept or used in or about the Premises by Concessionaire, its agents, employees, contractors or invitees, except for Hazardous Substances which is necessary to Concessionaire's business and will be used, kept and stored in a manner that complies with all Environmental Law regulating any such Hazardous Substances); or (xvii) cause or permit any violation of Environmental Law. 8.1.3 City’s Remedies for Environmental Violations. If Concessionaire breaches the obligations stated in Section 8.1.2, or if the presence of Hazardous Substances on the Premises caused or permitted by Concessionaire results in contamination of the Premises, or the Santa Monica Bay, or if contamination of the Premises, or the Santa Monica Bay by any Hazardous Substances otherwise occurs for which Concessionaire is responsible, in addition to such act or omission constituting a breach of this Agreement and a default hereunder, Concessionaire shall indemnify, defend and hold City harmless from any and all claims, judgments, damages, penalties, fines, costs, liabilities or losses (including, without limitation, diminution in value, damages for the loss or restriction on use of rentable or usable space or of any amenity, damages arising from any adverse impact on marketing of space, and sums paid in settlement of claims, attorneys' fees, consultant fees and expert fees) which arise during or after the Term and Extension Term, if any, as a result of such contamination. This indemnification of City by Concessionaire includes, without limitation, costs incurred in connection with any investigation of site conditions or any cleanup, remedial, removal or restoration work required by any federal, state or local governmental agency or political Subdivision. Without limiting the foregoing, if the presence of any Hazardous Substances caused or permitted by Concessionaire results in any DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 160 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement 30 AGREEMENT NO. 11238 (CCS) contamination of the Premises or the Santa Monica Bay, Concessionaire shall promptly take all actions at its sole expense as are necessary to return the Premises or the Santa Monica Bay to the condition existing prior to the introduction of any such Hazardous Substances to the Premises or the Santa Monica Bay; provided that City's approval of such cleanup actions shall first be obtained, which approval shall not be unreasonably withheld so long as such actions would not potentially have any material adverse long-term or short-term effect on the Premises and Santa Monica Bay, in City's reasonable discretion. Section 8.2 Signs and Advertising. 8.2.1 Concessionaire will not place or suffer to be placed or maintained on the exterior of the Premises, or any part of the interior primarily visible from the exterior thereof, any sign, advertising matter, or any other thing of any kind, and will not place or maintain any decoration, letter, or advertising matter on the glass of any exterior window or door of the Premises without first obtaining the City’s prior written approval, which shall not be unreasonably withheld, and any required governmental permits or licenses. All signage shall be consistent with applicable Law and shall be approved by any governmental entities having jurisdiction with respect thereto. Concessionaire will, at its sole cost and expense, maintain such sign, decoration, lettering, advertising matter, or other thing as may be permitted hereunder in good condition and repair at all times. Notwithstanding the above, Concessionaire may submit for City’s review and approval, locations and design specifications on the exterior or interior intended to be primarily visible from the exterior, for materials promoting the business of the Concessionaire. Once City provides written consent to such locations and design specifications, Concessionaire may not change the materials placed within such locations and meeting approved design specifications without further approval of the City. Maintenance of Signs. At its sole cost and expense, Concessionaire shall maintain such sign, decoration, lettering, advertising, or other matter as may be permitted hereunder in good condition and repair at all times. Section 8.3 Painting and Displays by Concessionaire. Concessionaire will not change, paint or decorate any part of the exterior of the Premises, or any part of the interior primarily visible from the exterior thereof, without first obtaining City's written approval. Concessionaire will install and maintain at all times, subject to the other provisions of this Article, displays of merchandise in the show windows (if any) of the Premises. All articles, and the arrangement, style, color and general appearance thereof, in the interior of the Premises, including, without limitation, window displays, advertising matter, signs, merchandise and store fixtures, shall be in keeping with the character and standards of the area, as reasonably determined by City in good faith. City reserves the right to require Concessionaire to correct any non-conformity and Concessionaire shall correct any deficiencies noted by City within three (3) business days. DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 161 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement 31 AGREEMENT NO. 11238 (CCS) Section 8.4 Trash Removal Service. Concessionaire shall be responsible for the payment of trash removal services for the Premises. Such removal shall occur at intervals sufficient to meet the sanitary and odor-free requirements of this Agreement. For trash removal services provided by City, Concessionaire shall pay for services at the rates in effect at the time of service. However, the Concessionaire may elect to have trash removal services provided by an outside vendor provided that the outside vendor provides service levels set forth in this Agreement and the Concessionaire pays the vendor directly for the trash removal services. From time to time, Concessionaire may request a change in these service levels to consider seasonal fluctuations and the City may, in its sole discretion, approve modifications to the service levels. Section 8.5 Off-Hour Delivery. Except if Concessionaire obtains the prior written consent of City, Concessionaire shall cause all deliveries of any kind whatsoever to take place during those off-hours during which time activity upon the Beach House is minimal. For purposes of this Section 8.5, “off-hours” means those hours each day between 8:00 p.m. and 7:00 a.m., or such extra hours as City shall from time to time prescribe. City shall have the right to alter “off-hours” from time to time. Section 8.6 Locks. No additional locks or bolts of any kind shall be placed upon any of the entry doors or exterior windows located on the Premises by Concessionaire, nor shall any changes be made in existing locks or the mechanisms thereof unless City is furnished a key therefore (except for keys to vaults or safes maintained by Concessionaire in the ordinary course of business), access to which shall be provided by Concessionaire to City upon reasonable prior notice and in the company of a representative of Concessionaire. Concessionaire must, upon the termination of its tenancy, give to City all keys pertaining to the Premises, either furnished to, or otherwise procured by, Concessionaire. City shall be liable for all such use of City’s key to the Premises. Section 8.7 Compliance with Law. Concessionaire, at its sole cost and expense, shall comply with and shall cause the Premises to comply with (a) all Law affecting the Premises or any part thereof, or the use thereof, including, but not limited to, those which require the making of any structural, unforeseen or extraordinary changes, whether or not any such Law which may be hereafter enacted involves a change of policy on the part of the governmental body enacting the same; (b) all rules, orders and regulations of the National Board of Fire Underwriters or City’s fire insurance rating organization or any other bodies exercising similar functions in connection with the prevention of fire or correction of hazardous conditions which apply to the Premises, and (c) all rules or regulations promulgated by any regulatory or governmental agency having appropriate jurisdiction. The preceding requirements include the obligation to make any and all necessary repairs to or replacement of any equipment, structures, or other physical improvements on the Premises, if required. DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 162 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement 32 AGREEMENT NO. 11238 (CCS) Section 8.8 Conditions of Approval. It is expressly understood and agreed to by Concessionaire that the provisions for operations under this Agreement are subject to the Conditions of Approval for the development of the Annenberg Community Beach House as dictated by the various approving authorities including but not limited to the California Coastal Commission and the City Council. In the event that this Concession Agreement is or becomes inconsistent with the Conditions of Approval, the rights and obligations of the parties hereto are governed solely and exclusively by the Conditions of Approval and the applicable laws of the State of California, but in no event shall City have any responsibility or incur any liability to Concessionaire as a result of any such inconsistency. Section 8.9 Intellectual Property of Respective Parties 8.9.1 City’s Intellectual Property. Concessionaire acknowledges that the City owns all copyrights, trademarks and other proprietary rights in and to the name “City of Santa Monica,” “Annenberg Community Beach House at Santa Monica State Beach,” graphic or other representations of the sign, any names, logos, trademarks, trade names, service marks, artwork, photographs, copyrights and other rights and/or material relating to the City of Santa Monica and/or its sign (collectively the “Marks”). City does not grant to Concessionaire any rights in and to the Marks hereunder. In the event Concessionaire requests the right to use any of the Marks, such request shall be submitted in writing to the City and may be denied in the City’s sole discretion. It is understood that Concessionaire has the right to use the words “City of Santa Monica” and/or “Annenberg Community Beach House at Santa Monica State Beach” in connection with the premises hereunder so long as such usage serves to describe the geographic location of Premises hereunder and does not include any of the Marks other than the words “City of Santa Monica” And/or “Annenberg Community Beach House at Santa Monica State Beach.” Concessionaire agrees not to use City’s Marks, in any manner, except as a location reference, without prior written approval of the City, which can be withheld in its sole discretion. Subject to the foregoing, Concessionaire may use the name “City of Santa Monica” and/or “Annenberg Community Beach House at Santa Monica State Beach” on its advertising materials without the City’s prior written approval. 8.9.2 Concessionaire’s Intellectual Property. Concessionaire has and shall have the exclusive right to market the name “Back on the Beach Café” and all other trademarks and service marks approved by the City pursuant to this Agreement. City shall have no obligation to enforce use of Concessionaire’s trade name, and Concessionaire’s sole remedy for any violation of this Section shall be a proceeding for injunctive relief and/or damages directly against the party allegedly violating Concessionaire’s exclusive use granted hereunder. In no event shall Concessionaire be permitted to terminate this Agreement or to withhold or offset any Rent or other amounts due City from Concessionaire hereunder. In the event that City shall become involved in any such dispute either at the request of Concessionaire or due to actions taken by the other party, Concessionaire shall pay for all costs, including attorneys’ fees, reasonably incurred by City in connection therewith. City makes no warranty or representation to Concessionaire, express or implied, concerning the enforceability of this Section under federal, state or local law. Concessionaire agrees not to DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 163 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement 33 AGREEMENT NO. 11238 (CCS) conduct any activities on the Premises which are not expressly permitted by the use provisions elsewhere contained in this Agreement. City agrees that all advertising by City using Concessionaire’s logo and/or Concessionaire’s name will give notice of the fact that Concessionaire’s logo and/or Concessionaire’s name are registered trademarks and/or registered tradenames. City acknowledges and agrees that all signs, and any property bearing any of Concessionaire’s trade names, trademarks or logos, whether registered or unregistered (collectively “Concessionaire’s Intellectual Property”), shall not be deemed to become a part of the Premises however attached to or incorporated into the Premises, and whether, or not they become a component part of the Premises, the Concessionaire’s Intellectual Property are and shall remain the property of Concessionaire. To the extent that Concessionaire’s Intellectual Property is located on the Premises, Concessionaire may remove Concessionaire’s Intellectual Property from the Premises at any time prior to the termination of this Agreement. Section 8.10 City’s Licensing Program Concessionaire acknowledges that City may engage in sponsorship programs which may be applicable to Concessionaire. Concessionaire agrees that Concessionaire shall participate in and be subject of such sponsorship program(s) so long as the terms of sponsor products, goods and/or services are at least as favorable to Concessionaire as the terms of agreements applicable to the same products, goods and/or services supplied to Concessionaire for use on the Premises at the time of City’s request for Concessionaire participation; provided that such sponsorship program does not violate any contractual agreements entered into by Concessionaire. Section 8.11 Disability Access Law. 8.11.1 Compliance with Disabilities Access Law and Access to Wheelchairs. Without limiting Concessionaire's responsibility under this Agreement for compliance with Laws, with regard to all operations and activities that are the responsibility of Concessionaire under this Agreement, Concessionaire shall be solely responsible for complying with the requirements of the Americans With Disabilities Act of 1990 (ADA) [Public Law 101-336, commencing at Section 12101 of Title 42, United States Code (and including Titles I, II, and III of that law)], the Rehabilitation Act of 1973, and all related regulations, guidelines, and amendments to both laws. Concessionaire shall be solely responsible to complete necessary modifications to Premises to meet ADA requirements prior to the end of first Rental Year. With regard to facilities which Concessionaire is responsible for operation, maintenance, construction, restoration, or renovation under this Agreement, Concessionaire also shall be responsible for compliance with Government Code Section 4450, et seq., Access to Public Buildings by Physically Handicapped Persons, and Government Code Section 7250, et seq., Facilities for Handicapped Persons, and any other applicable laws. Written approval from State is required prior to implementation of any plans to comply with accessibility requirements. These facilities must be compliant with the 2010 ADA Standards for Accessible Design, California Building Code, Title 24 Chapter 11B (latest edition), Accessibility to Public Accommodations, and the Final Accessibility Guidelines for Outdoor Developed Areas put forth by the United States Access Board. DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 164 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement 34 AGREEMENT NO. 11238 (CCS) 8.11.2 CASp Inspection of Premises. In accordance with California Civil Code § 1938, City states as follows: the Premises have not undergone inspection by a Certified Access Specialist (CASp). Concessionaire acknowledges and agrees that a CASp can inspect the Premises and determine whether the Premises comply with all of the applicable construction-related accessibility standards under state law. Although state law does not require a CASp inspection of the Premises, City may not prohibit Concessionaire from obtaining a CASp inspection of the Premises for the occupancy or potential occupancy of the Concessionaire, if requested by the Concessionaire. The parties shall mutually agree on the arrangements for the time and manner of the CASp inspection, the payment of the fee for the CASp inspection, and the cost of making any repairs necessary to correct violations of construction-related accessibility standards within the Premises. The agreement that the parties agree upon the cost of making any repairs necessary to correct violations of construction-related accessibility standards within the Premises shall not release Concessionaire from Concessionaire’s obligations under Section 8.11.1of this Agreement or other obligations of this Agreement and shall be consistent with the terms of this Agreement. ARTICLE IX REPAIRS AND ALTERATIONS Section 9.1 Repairs to Be Made By City. City shall not at any time be required to maintain or to make any improvements or repairs whatsoever to the Premises or the equipment therein. City may, at its sole discretion, and solely to the extent that City funds are available or funds are available to the City and specifically allocated for the improvement and maintenance of the Premises, make, or cause to be made, structural repairs to the Premises. Notwithstanding the foregoing, if the necessity for such structural repairs arises from or is caused by the negligence or willful acts or omissions of Concessionaire, its agents, concessionaires, officers, directors, employees, licensees, invitees or contractors, City may, whether or not City funds are available, make or cause the same to be made, but shall not be obligated to do so, and Concessionaire agrees to pay to City within thirty (30) days following City’s demand therefore, as Additional Rent, the cost of such repairs, if made, with interest thereon at the Default Rate from such tenth day until paid. In the event City elects not to make such repairs caused by Concessionaire’s negligence or willful misconduct or omission, City may require Concessionaire to make such repairs at Concessionaire’s sole cost and expense, and Concessionaire agrees to make such repairs at Concessionaire’s sole cost and expense and within the reasonable time periods set forth by City. Failure by Concessionaire to complete the repairs during the applicable time period set forth in this Agreement shall constitute an Event of Default. Section 9.2 Repairs to Be Made By Concessionaire. 9.2.1 Concessionaire shall be responsible for the maintenance and repairs of the Premises. Concessionaire will keep the Premises and every part thereof, including any ceilings, all exterior or interior walls, doors, plate glass, utility systems, meters, pipes, conduits, fixtures, fire sprinkler systems, electrical, plumbing and other mechanical systems, the store fronts and Concessionaire’s signs, locks and closing devices and window sashes, frames, door and door DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 165 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement 35 AGREEMENT NO. 11238 (CCS) frames, therein, thereunder or outside the Premises in first class, clean, safe and attractive order, condition and repair, free of graffiti, and will make all replacements from time to time required thereto at its expense. Concessionaire shall also maintain the air conditioning and heating equipment in good condition and repair. Concessionaire will not overload the electrical wiring or plumbing serving the Premises or within the Premises, and will install at its expense, subject to the provisions of Section 9.4, any additional electrical wiring or plumbing which may be required in connection with Concessionaire’s apparatus. Any damage or injury sustained by any person because of mechanical, electrical, plumbing or any other equipment or installations, whose maintenance and repair shall be the responsibility of Concessionaire, shall be paid for by Concessionaire, and Concessionaire shall indemnify and hold City harmless from and against all claims, actions, damages and liability in connection therewith, including, but not limited to attorneys’ and other professional fees, and any other cost which City might reasonably incur. Subject to the notice provisions set forth in Section 9.5, below, Concessionaire consents to inspections by City for maintenance and agrees to promptly correct each and every violation. 9.2.2 City’s Ability to Enter Premises. If Concessionaire fails to correct any unsafe, unclean, or unsanitary condition within 72 hours after being notified in writing to do so by City, then City may enter the Premises and remedy the condition or conditions, and charge the cost to Concessionaire, as Additional Rent, without any liability for any resulting business loss or damage, except that if a matter reasonably requires more than 72 hours to correct, City’s right to enter and effect repairs provided in this Section shall arise if Concessionaire fails to begin to correct the condition within such 72-hour period or fails to diligently pursue such correction thereafter. In the event of an emergency, City may immediately enter the Premises to remedy any unsafe, unclean, or unsanitary condition and charge the cost to Concessionaire. City shall notify Concessionaire of such emergency as soon as reasonably possible. Concessionaire expressly waives the benefits of any statute now or in the future in effect which would otherwise afford Concessionaire the right to make repairs at City's expense or to terminate this Agreement because of City's failure to keep the Premises in good order, condition or repair, under applicable Law, including without limitation, California Civil Code Sections 1940, 1941 and 1942. Section 9.3 Damage to Premises. Concessionaire will repair promptly at its expense any damage to the Premises, and, upon demand, shall, in accordance with the provisions of Section 9.2, reimburse City as Additional Rent for the cost of the repair of any damage of the Premises, caused by or arising from the installation or removal of property in or from the Premises or any other activity in the Premises, except where such damage is caused by the sole active negligence or the willful misconduct of the City or its agents. If Concessionaire fails to commence such repairs within 5 days after notice to do so from City, City may make or cause the same to be made and Concessionaire agrees to pay to City within ten (10) days of City’s demand, as Additional Rent, the cost thereof with interest thereon at the Default Rate until paid. The City will reasonably cooperate in any action by Concessionaire against a third party to recover its costs and expenses. Section 9.4 Alterations by Concessionaire. Following completion of the Improvements, Concessionaire will not make any alterations, renovations, improvements, repairs, or otherwise demolish or remove all or any part DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 166 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement 36 AGREEMENT NO. 11238 (CCS) of the Premises or any improvements or any installations in, on, or to the Premises or any part thereof (including, without limitation, any alterations of the store front or signs, structural alterations, or any cutting or drilling into any part of the Premises) (collectively “Alterations”) unless and until Concessionaire shall have (a) obtained the prior written consent of City and (b) complied with all such requirements concerning such Alterations as may be imposed by City from time to time. If such approval is granted, Concessionaire shall cause the work described in any approved plans and specifications to be performed, at its expense, promptly, efficiently, competently and in a good and workmanlike manner by duly qualified or licensed persons or entities, using first grade materials, without interference with, or disruption to, the operations of the Beach House. All such work shall comply with all applicable Laws, ordinances and regulations. City shall condition its consent to any Alterations, including Improvements, on Concessionaire’s retention of an architect or structural engineer reasonably satisfactory to City who shall supervise the construction thereof in accordance with Final Drawings and Specifications approved in advanced by City. Upon completion of any work, Concessionaire shall cause a Notice of Completion to be recorded in the Office of the Los Angeles County Recorder in accordance with Section 3093 of the California Civil Code. Upon termination of the Agreement, all Alterations made by Concessionaire to the Premises, including, but not limited to, Improvements, shall automatically become owned by, and the property of, City. All personal property, furniture, trade fixtures equipment and signs installed by Concessionaire or subtenants shall be and remain the property of the person, firm or corporation installing the same and shall be removable at any time during the term of this Agreement so long as Concessionaire shall not be in default under the terms hereof and except as otherwise provided in Section 3.4. The removal of any such fixtures, equipment and signs shall be completed within 10 business days of the expiration or earlier termination of this Agreement, at Concessionaire’s expense and Concessionaire shall repair any damage or injury to the Premises or any building or structure located thereon occasioned by the installation or removal thereof and shall reimburse City for any damage caused thereby. Notwithstanding any language to the contrary in this Section, Concessionaire shall not be required to obtain City’s prior written consent to non-structural Alterations to the extent that the cost of such Alterations does not exceed $30,000 and as adjusted by the CPI from year to year pursuant to Section 5.3 in any twelve (12)-month period. Concessionaire shall, however, send notice to City of any such Alterations in excess of $5,000 that are being done without City’s prior written consent and shall comply with all other provisions of this Section. Section 9.5 Access and Inspections By City. City and City’s agents shall have the right to enter the Premises at all reasonable times during regular business hours to conduct safety inspections, to examine the Premises, to show the Premises to prospective purchasers, lenders or Concessionaires of the Premises and to make such repairs, alterations, improvements as may be required, without the same constituting an eviction of Concessionaire, in whole or in part, or a trespass. Except in the event of an emergency, City shall endeavor, if at all possible, to conduct such inspections, showings or repairs before or after normal business hours and to provide Concessionaire with no less than forty eight (48) hours notice, which shall be in writing, by email, or, orally or telephonically, DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 167 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement 37 AGREEMENT NO. 11238 (CCS) provided personal contact to Concessionaire’s representative is made. If said repairs, alterations, improvements or additions cause substantial loss or interruption of Concessionaire’s business for more than one day and such work is not necessitated by actions or omissions on the part of Concessionaire, rent shall abate on a pro rata basis during the time Concessionaire’s business is substantially interrupted. Nothing contained herein shall be deemed or construed to impose upon City any obligation, responsibility or liability whatsoever for the care, maintenance or repair of the Premises, or any part thereof, except as otherwise specifically provided in this Agreement. ARTICLE X UTILITIES Section 10.1 Water, Electricity, Gas and Sanitary Sewer. City will provide at points in or at a boundary of the Premises the facilities necessary to enable Concessionaire to obtain for the Premises water, electricity, gas, telephone, internet and sanitary sewer service for the operation of the Concessionaire’s business. Concessionaire shall not overburden or exceed the capacity of the mains, feeders, ducts, conduits, or other facilities by which such utilities are supplied to, distributed in or serve the Premises. If Concessionaire desires to install any equipment which shall require additional utility facilities or utility facilities of a greater capacity than the facilities provided by City, such installation shall be subject to City’s prior written approval (which shall not be unreasonably withheld) of Concessionaire’s plans and specifications therefore. If such installation is approved by City and if City provides such additional facilities to accommodate Concessionaire’s installation, Concessionaire agrees to pay City, on demand, the cost for providing such additional utility facilities or utility facilities of greater capacity. City, at its sole discretion, shall have the right from time to time, to alter the method and source of supply of electricity to the Premises as long as such change in service shall be of at least comparable quality and quantity to the prior service, and Concessionaire agrees to execute and deliver to City such documentation as may be required to effect such alteration. Concessionaire shall have no obligation to pay capital costs incurred by City for such alteration. Concessionaire agrees to pay all charges for electricity supplied by City, public utility or public authority, or any other person, firm or corporation. City shall not be responsible for providing any meters or other devices for the measurement of utilities supplied to the Premises. Concessionaire shall make application and arrange for the installation of all such meters or other devices, and Concessionaire shall be solely responsible for and promptly pay, as and when the same become due and payable, all charges for water, sewer, electricity, gas, telephone and any other utilities used or consumed in the Premises. Section 10.2 Utilities Costs. Concessionaire shall pay all charges for all heat, water, gas, electricity, light, power, telephone and sewer or other services used by it and supplied by City, a public utility or public authority, or any other person, firm or corporation. If any portion of the Premises is separately DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 168 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement 38 AGREEMENT NO. 11238 (CCS) metered, Concessionaire shall be responsible for all of the charges incurred by such separate meter. In the event that the meter is shared with other City uses, Concessionaire shall pay for its pro rata portion of such utility charges. Section 10.3 Heating, Ventilating and Air-Conditioning. In the event City elects to provide heating, air-conditioning or ventilation to the Premises, Concessionaire covenants and agrees to pay to City, as Additional Rent, all charges as the same may be adjusted from time to time, for heating, ventilation and air conditioning (if any), whether supplied by City, or through City by a public utility or public authority. Concessionaire shall have no obligation to pay capital costs incurred by City in connection with these services if such election is solely made by City. Section 10.4 Fire Protection System. Concessionaire shall, at its cost and expense, install and maintain a fire protection system in the Premises that complies with all federal, state and local ordinances, rules and regulations. Concessionaire may comply with this Section 10.4 through the maintenance of an Ansel System in compliance with applicable regulations, including California Fire Code and California Code of Regulations Title 19, and proof of compliance thereof. Concessionaire shall provide to the City proof of compliance with the certification requirements issued by a stated licensed contractor every six months and in the event that Concessionaire is unable to provide proof of compliance with the certification requirements, then the Concessionaire shall, at its sole cost and expense, upgrade the Ansel System to a UL300 compliant wet system or other fire protection system approved by the City. Section 10.5 City’s Right to Alter Utilities. City, at its sole discretion, reserves and shall at all times, have the right to alter the utilities, including. but not limited to, heating, ventilating and air-conditioning systems and equipment serving the Premises, and Concessionaire agrees to execute and deliver to City without delay such documentation as may be required to effect such alteration. City will make best efforts to minimize adverse impacts such changes would have on Concessionaire and to take into consideration Concessionaire’s needs prior to any alteration. Section 10.6 Discontinuances and Interruptions of Utility Services. City shall not be liable to Concessionaire in damages or otherwise (a) if any utility shall become unavailable from any public utility company, public authority or any other person or entity (including City) supplying or distributing such utility, or (b) for any interruption in any utility service (including, without limitation, any electricity, water heating, ventilation or air-conditioning) caused by Concessionaire's failure to pay such utility services, the making of any necessary repairs or improvements or by any cause beyond City's reasonable control, and the same shall not constitute a termination of this Agreement or an eviction of Concessionaire. The City shall have no liability to the Concessionaire resulting from any interruption of utility services, including, but not DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 169 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement 39 AGREEMENT NO. 11238 (CCS) limited to, business loss resulting from food spoilage. ARTICLE XI NONLIABILITY AND INDEMNIFICATION OF CITY; INSURANCE Section 11.1 Indemnity By Concessionaire. Concessionaire shall indemnify, protect, hold harmless, and defend City, including, but not limited to, the City of Santa Monica, the City Council, boards and commissions of the City of Santa Monica, its officers, agents, employees, volunteers (collectively “the City Indemnitees”) from and against any and all demands, claims, actions, suits, judgments, damages, liability, cost and expense, including, but not limited to attorneys' and other professional fees or the value of any legal services received, arising directly or indirectly from or in any way related to the following: (i) the construction, repair, alteration, financing, improvement, possession, occupancy, use, or enjoyment of the Premises by Concessionaire or any officer, agent, contractor, employee, customer, guest or invitee thereof, (ii) Concessionaire's business, activities, operations, services or work conducted in, on or about the Premises; (iii) any breach or default in the performance of any obligation on Concessionaire's part to be performed under the terms of this Agreement; (iv) any negligent or wrongful act or omission of Concessionaire, any officer, director, agent, contractor, employee, customer, guest or invitee of Concessionaire; and (v) furnishing or supplying any work, services, materials, equipment or supplies by any persons, firms, corporations or other entities in, on or about the Premises. Concessionaire's obligation to indemnify, defend and hold harmless shall exist regardless of the active or passive negligence of the City Indemnitees; however, Concessionaire shall have no obligation to indemnify, protect, defend or hold harmless where the claim arises from the sole active gross negligence or willful misconduct of the City Indemnitees. Section 11.2 Waiver of Claims. Concessionaire, as a material part of the consideration of this Concession, hereby waives all claims against City and City shall not be liable for damages to Concessionaire’s business or any loss of income, for damages to the goods, wares, merchandise, buildings, installations or other improvements in, upon, or about the Premises, or for injuries to Concessionaire, its agents or employees, or persons in or about the Premises from any cause arising at any time, including, without limitation, damages, costs, and liability of any kind or nature whatsoever. Concessionaire will hold City exempt and harmless from any damages or injury to any person, or to the goods, wares, merchandise, watercraft, facilities, or other property of any person arising from the use of the Premises by Concessionaire or from the failure of Concessionaire to keep the Premises in good condition and repair, as herein required. Section 11.3 City Not Responsible for Acts of Others. City shall not be responsible or liable to Concessionaire, or to those claiming by, through, under, or against Concessionaire, and Concessionaire hereby waives all claims against City, for any personal injury, death, loss or damage to personal property which may be occasioned by or DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 170 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement 40 AGREEMENT NO. 11238 (CCS) through the acts or omissions of persons (a) visiting the Premises, or (b) occupying space adjoining the Premises, adjacent to or connecting with the Premises , or for any loss or damage resulting to Concessionaire, or those claiming by, through or under Concessionaire, or its or their property, from the breaking, bursting, stoppage or leaking of electrical cable and wires, and water, gas, sewer or steam pipes. To the maximum extent permitted by Law, Concessionaire agrees to use and occupy the Premises at Concessionaire’s own risk. Section 11.4 Concessionaire’s Insurance. Prior to commencing occupancy of the Premises, Concessionaire shall procure, maintain and pay for insurance against claims for injuries to persons or damage to property that may arise from or in connection with Concessionaire’s possession, occupancy, operation and use of the Premises by Concessionaire, its directors, officers, agents, representatives, employees, contractors, subcontractors, volunteers, guests, customers, and invitees. Concessionaire must obtain insurance that, at a minimum, meets the requirements for insurance set forth in the Insurance Requirements attached as Exhibit 10 and incorporated herein by reference. ARTICLE XII DAMAGE AND DESTRUCTION Section 12.1 Obligation to Repair or Reconstruct the Premises. In the event of damage to the Premises or any improvements thereon by fire, earthquake, flood, tidal wave, other elements, accident or any other casualty whatsoever (collectively referred to as a “Casualty”), and the City reasonably determines that the Premises are structurally sound, Concessionaire may elect, upon written notice thereof (“Structural Soundness Notice”), at its sole cost and expense, to promptly repair, restore, and rebuild the Premises to its condition existing immediately prior to such damage or destruction and upon such election this Agreement will remain in full force and effect. Concessionaire shall cause such repair, reconstruction or restoration to be commenced within 30 days from the date of the Structural Soundness Notice subject to City’s approval of plans and specifications for the repair, reconstruction or restoration and Concessionaire obtaining all necessary permits and approvals. All repairs, reconstruction or restoration by Concessionaire must be completed within 60 days from the date of the Structural Soundness Notice, unless otherwise extended by the City in writing. Concessionaire shall procure, at Concessionaire’s sole cost and expense, a lien and completion bond to insure against mechanics or materialmen’s liens arising out of the repair, reconstruction or restoration and to insure completion of the repair, reconstruction or restoration. If in City’s determination, the Premises have been rendered wholly or partially unsound such that, in City’s opinion, the Premises must be repaired before Concessionaire can commence to repair, rebuild, or restore the Premises, then, subject to the provisions of this Agreement, City may elect, at its option and in its sole discretion, to cause such damage to the Premises to be repaired. If, however, damage to the Premises is caused by the gross negligence DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 171 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement 41 AGREEMENT NO. 11238 (CCS) or willful misconduct or omission of Concessionaire, its agents, concessionaires, officers, employees, contractors, licensees, or invitees, then Concessionaire shall pay in full (whether covered by insurance or not) for the cost of repairing, rebuilding or restoring the Premises to the condition it was in prior to such damage or destruction. After repairing, rebuilding, and restoring the Premises, and giving a Structural Soundness Notice to Concessionaire, Concessionaire shall then repair, reconstruct, or restore the Premises in accordance with the foregoing requirements. Notwithstanding the foregoing, in the event of a Casualty occurring in the final twenty-four (24) months of the Term, or Extension Term, if any, Concessionaire may elect, by written notice to City, not to rebuild the Premises and to terminate this Agreement subject to the survival of the insurance obligations. Section 12.2 City Not Obligated to Repair or Reconstruct. In the event of any damage that renders the Premises unsound in the City’s opinion, City shall have no obligation to restore or to reconstruct the Premises. However, City may, in its sole discretion, elect to do so and, if it does, the provisions of Section 12.1 shall apply to such repairs and/or reconstruction. Section 12.3 Termination of the Agreement. Provided that Concessionaire is not responsible in part or in whole for the damage to the Premises and if City elects not to restore the Premises within 180 days from the date of Casualty, and Concessionaire elects not to restore the Premises under the provisions of Article 12.1, then either City or Concessionaire can terminate this Agreement upon thirty (30) days notice. None of the City Indemnitees shall be liable for interruption to Concessionaire’s business or for damage to or replacement or repair of Concessionaire’s personal property (including, without limitation, inventory, trade fixtures, floor coverings, furniture, equipment, vehicles and other property removable by Concessionaire under the provisions of this Agreement) or to any leasehold improvements installed in the Premises. Section 12.4 Closure. If the Premises shall be damaged such that it is reasonably necessary, in City’s reasonable judgment, to close the Premises for safety, reconstruction or other purposes, City may close the same for such time as it reasonably determines. Section 12.5 Insurance Proceeds. Except as otherwise specifically provided herein, all insurance proceeds payable with respect to the Premises (excluding proceeds payable to Concessionaire for Concessionaire’s personal property, including Concessionaire’s trade fixtures, furnishings and equipment or Business Interruption) shall be payable to City, subject to Concessionaire’s right to use any such insurance proceeds to satisfy its repair and restoration obligations hereunder. DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 172 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement 42 AGREEMENT NO. 11238 (CCS) Section 12.6 Advance Payments. Upon termination of this Agreement pursuant to Section 12.3, above advance payments made by Concessionaire shall be reimbursed to Concessionaire within 30 days of Agreement termination. Section 12.7 Waiver. City and Concessionaire waive the provisions of Civil Code sections 1932(2) and 1933(4), and any successor statutes, and agree that such statutes are inapplicable with respect to any destruction of any part of the Premises; such statutes relate to termination of Agreements when leased property is destroyed. City and Concessionaire agree that such event shall be governed by the terms of this Agreement to the extent of any conflict between said statutes and this Agreement. Section 12.8 Rent Abatement. Concessionaire will be entitled to an abatement or reduction of Rent in the event all of the following occur: (i) a Casualty which prevents the Concessionaire from using the Premises, or any portion thereof, for thirty (30) cumulative days in any Agreement Year (“Period of Nonuse”); (ii) the Concessionaire cannot and does not use the Premises for the Period of Nonuse as a result of such Casualty; (iii) Concessionaire’s business interruption insurance required by this Agreement does not fully cover such Casualty during the Period of Nonuse; and (iv) such Casualty did not arise directly or indirectly, in whole or in part, by any act or omission by the Concessionaire, its officers, directors, agents, employees, representatives, contractors, subcontractors, volunteers, customers, guests, or invitees. The abatement or reduction of the Rent pursuant to this Section 12.8 shall be limited to the Rent owed only for the Period of Nonuse. In the event that the Concessionaire qualifies for abatement or reduction of Rent under this Section 12.8, then the amount of abatement or reduction shall be in proportion to the amount of Premises Floor Area that the Concessionaire cannot and does not use as a result of such Casualty. The Rent Abatement shall only apply to Floor Area of the Premises that is subject to a Casualty and supported by the Concessionaire by evidence of financial impact and compliance with this Section 12.8. ARTICLE XIII CONDEMNATION Section 13.1 Effect of Taking. If the Premises or any portion thereof is taken under the power of eminent domain, this Agreement shall terminate as to the part so taken on the date Concessionaire is required to yield possession thereof to the condemning authority. In the event that only a portion of the Premises is subject to condemnation, City shall make such repairs and alterations as may be necessary in order to restore the part not taken to useful condition and all Rent (other than any Additional DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 173 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement 43 AGREEMENT NO. 11238 (CCS) Rent due City by reason of Concessionaire’s failure to perform any of its obligations hereunder) shall be reduced in the same proportion as the number of square feet contained in the Premises which were so taken bears to the number of square feet in the Premises immediately before such condemnation. If, in Concessionaire’s commercially reasonable judgment, the remainder of the Premises becomes unsuitable for the Permitted Use described in Section 4.1 as a result of the taking, then either party may terminate this Agreement as of the date when Concessionaire is required to yield possession by giving notice to that effect within thirty (30) days before such date. If fifty percent (50%) or more of the Premises is taken by condemnation, then City may elect to terminate this Agreement as of the date on which possession thereof is required to be yielded to the condemning authority, by giving notice of such election within ninety (90) days before such date. If any notice of termination is given pursuant to this Section, this Agreement and the rights and obligations of the parties hereunder shall cease as of the date of such notice and Rent (other than any Additional Rent due City by reason of Concessionaire’s failure to perform any of its obligations hereunder) shall be adjusted as of the date of such termination. Section 13.2 Condemnation Awards. All compensation awarded for any taking of the Premises or any interest in either shall belong to and be the property of City, and Concessionaire hereby assigns to City all rights with respect thereto; provided, however, nothing contained herein shall prevent Concessionaire from applying for reimbursement from the condemning authority (if permitted by Law) for moving expenses, the expense of removal of Concessionaire’s trade fixtures, loss of Concessionaire’s business goodwill, loss of the Improvements paid for by Concessionaire or any other loss incurred by Concessionaire, but if and only if such action shall not reduce the amount of the award or other compensation otherwise recoverable from the condemning authority by City for improvements paid for by City. ARTICLE XIV ASSIGNMENTS AND SUBLETTING Section 14.1 No Assignment and Subletting Without Prior Written Consent from City. Except as otherwise permitted herein, Concessionaire shall not assign, hypothecate or transfer this Agreement or any interest herein or sublet the Premises or any portion thereof by operation of law or otherwise (generally, a “Transfer”) to any person or entity (“Transferee”) without the prior written consent of the City, which consent shall not be unreasonably withheld. Any attempt to assign or sublet without complying with the foregoing shall be null and void, and any assignee, sublessees, lienholder or transferee shall acquire no right or interest by reason of such attempted Transfer. Nothing in this Section 14 shall be construed to preclude the right of the Concessionaire to fully and completely transfer or sell any shares in its corporation to include its assets and/or sell ownership in any or all equipment or any part of its operation to a new entity upon termination of this Agreement. DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 174 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement 44 AGREEMENT NO. 11238 (CCS) Section 14.2 Grounds for Denying Consent. Concessionaire and City acknowledge that City would not enter into this Agreement but for the business experience, reputation and expertise of the principals of the Concessionaire as of the Commencement Date. Accordingly, and without waiving City's other rights of approval, any proposed Transferee shall not be approved unless City has determined, as minimum requirements, that such proposed Transferee has (a) adequate business experience in operating similar types of establishments; (b) the proposed Transferee has a credit quality reasonably satisfactory to, and verified by, City; (c) the personal character, reputation and integrity of the proposed Transferee and its principals and operational officers and owners are of at least the same caliber of the Concessionaire upon execution of this Agreement; and (d) quality of the operations and the standards of the business shall be maintained in a manner consistent with the Concessionaire as set forth in its proposal. City may establish additional reasonable requirements of the proposed Transferee, and subsections (a), (b) and (c) of this section are not to the exclusion of any other reasonable requirements which City may establish. Section 14.3 Concessionaire’s Application for Consent. If Concessionaire desires to Transfer its interest, it must submit in writing to City the name of the proposed Transferee, the proposed Transferee’s business to be conducted in the Premises, the terms and provisions of the proposed Transfer, information of the proposed Transferee pertaining to the requirements set forth in this Article, or other information as City may request. Section 14.4 Conditions to Consent. Prior to any request for City’s consent to any Transfer, all of the following conditions shall be met: 14.4.1 The original named Concessionaire shall not be relieved of its obligations to pay Rent and to perform all other obligations to be performed by Concessionaire hereunder for a period of two years from the date of the City’s consent or date of Transfer, whichever is later. 14.4.2 Concessionaire shall reimburse City for City’s reasonable attorneys’ fees incurred or the reasonable value of attorneys’ services received in connection with the review, processing and documentation of such Transfer request. 14.4.3 City shall have the right to request and receive from Concessionaire any additional information reasonably related to the transaction. 14.4.4 Any Transferee or proposed Transferee shall agree that in the event the City issues a Notice of Default against the Concessionaire pursuant to this Agreement, all payments due under the provisions of the sublease or transfer shall be made directly to the City for so long as such default for which Concessionaire is liable hereunder remains uncured by Concessionaire, and such payments will be received by City without any liability whether on the DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 175 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement 45 AGREEMENT NO. 11238 (CCS) sublease or otherwise (except to credit such sums against those due under the Agreement). Concessionaire shall not be permitted to charge any Rent, compensation, sublease amount, or any other payment to any Transferee or proposed Transferee for an amount higher than that set forth in Article V of the Agreement for use of the Premises or for any rights under this Agreement. 14.4.5 Any such consent shall be effected on forms approved by City. 14.4.6 Concessionaire shall not be in default hereunder in any respect, nor shall any event have then occurred and be continuing which, with the giving of notice or passage of time or both, would constitute a default under this Agreement. 14.4.7 Any such Transferee must agree to assume, be bound by and perform all of the terms, covenants and conditions of this Agreement, subject to the condition that City shall not be bound to any provision of any agreements pertaining to such Transfer to the extent such agreement grants rights not possessed by Concessionaire against City. 14.4.8 One executed copy of any and all written instruments evidencing or relating to any such Transfer shall be delivered to City. City agrees not to disclose any confidential information that may be contained therein, except as otherwise required by applicable Law. Section 14.5 Transfer of Shares. If Concessionaire is a corporation or becomes a corporation (other than a corporation the outstanding voting stock of which is listed on a “national securities exchange,” as defined in the Securities Exchange Act of 1934, as amended) and if at any time after execution of this Agreement any part or all of the corporate shares of such Concessionaire shall be transferred by sale, assignment, bequest, inheritance, operation of law or other disposition (including, but not limited to, such a transfer to or by a receiver or trustee in Federal or state bankruptcy, insolvency, or other proceedings) so as to cause a change in the entities or persons owning a majority of the corporate shares of Concessionaire as of the last approval of a transfer of shares or, if City has not approved a transfer of Concessionaire’s shares during the Term or Extension Term, if any, such event shall constitute a Transfer as specified in Section 14.1 and shall be subject to all of the provisions of this Article. Notwithstanding anything to the contrary set forth in this Agreement, an initial public offering for the shares of the Concessionaire and subsequent sales of such shares, shall not constitute a Transfer within the definition of Section 14.1. Section 14.6 Acceptance of Rental from Transferee. The acceptance by City of the payment of Rent following any Transfer or other assignment prohibited by this Article shall not be deemed to be a waiver of any right or remedy of City hereunder. DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 176 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement 46 AGREEMENT NO. 11238 (CCS) ARTICLE XV DEFAULT Section 15.1 “Event of Default” Defined. Any one or more of the following events shall constitute an “Event of Default”: 15.1.1 The failure of Concessionaire to pay the Rent or any Additional Rent or other sum of money to City as and when due, where such failure continues for a period of ten (10) days after receipt of written notice thereof from City to Concessionaire pursuant to Section V of the Agreement. In the event that City serves Concessionaire with a Notice to Pay Rent or Quit pursuant to applicable Unlawful Detainer statutes, such Notice to Pay Rent or Quit shall also constitute the notice required by this subsection. 15.1.2 The sale of Concessionaire’s interest in the Premises under attachment, execution or similar legal process; or if Concessionaire is adjudicated as bankrupt or insolvent under any state bankruptcy or insolvency law and Concessionaire fails to pay the Rent which is due. 15.1.3 The commencement of a case under any chapter of the Federal Bankruptcy Code by or against Concessionaire or any guarantor of Concessionaire’s obligations hereunder, or the filing of a voluntary or involuntary petition proposing the adjudication of Concessionaire or any guarantor of Concessionaire’s obligations hereunder as bankrupt or insolvent, or the reorganization of Concessionaire or any such guarantor of Concessionaire’s obligations hereunder, or an arrangement by Concessionaire or any guarantor of Concessionaire’s obligations hereunder with its creditors, unless the petition is filed or case commenced by a party other than Concessionaire or any such guarantor of Concessionaire’s obligations hereunder and is withdrawn or dismissed within sixty (60) days after the date of its filing. However, this provision will only be effective if Concessionaire fails to timely pay the Rent. 15.1.4 The appointment of a receiver or trustee for the business or property of Concessionaire or any guarantor of Concessionaire’s obligations hereunder, unless such appointment shall be vacated within 180 days of its entry. 15.1.5 If in any other manner Concessionaire’s interest in this Concession shall pass to another by operation of law. 15.1.6 The abandonment of the Premises at any time during the Term or Extension Term, if any. 15.1.7 The discovery by City that any financial statement or other material financial information delivered to City by Concessionaire or any guarantor of Concessionaire’s obligations hereunder is materially false. 15.1.8 Failure by Concessionaire to provide evidence of construction financing, commence construction or complete construction in accordance with the Improvement Plan attached as Exhibit 9. DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 177 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement 47 AGREEMENT NO. 11238 (CCS) 15.1.9 The occurrence of any other event described as constituting an “Event of Default” elsewhere in this Agreement. Concessionaire shall be in default under this Agreement if Concessionaire fails to perform of any of its obligations within thirty (30) days after receipt from City of a written request to do so; provided, however, if the nature of Concessionaire’s obligation is such that more than thirty (30) days are required to perform, Concessionaire shall not be deemed in default provided Concessionaire has commenced to cure such nonperformance within such thirty (30) day period and thereafter continues to diligently pursue such cure to completion. Section 15.2 Remedies. Any party to this Agreement who so fails, delays or breaches any term of this Agreement (constituting an "Event of Default") must immediately commence to cure, correct, or remedy such failure or delay, and shall complete such cure, correction or remedy with reasonable diligence and, in any event, for monetary defaults within thirty (30) days of such failure or delay, and for non-monetary defaults within the time reasonably required for cure with reasonable diligence, not to exceed 180 days (collectively, "Cure Period"). If an Event of Default occurs under this Agreement, the injured party shall give written notice (a “Default Notice”) of the Event of Default to the party in default, specifying the default. Except as required to protect against further damages, the injured party may not institute proceedings against the party in default until the expiration of the applicable Cure Period. Failure or delay in giving such notice shall not constitute a waiver of any default, nor shall it change the time of default. Upon the occurrence and continuance of an Event of Default, City, in addition to any and all remedies or means of redress to which it may lawfully or equitably be entitled, may exercise any one or more of the following remedies: 15.2.1 Terminate this Agreement and any and all rights of Concessionaire hereunder, by any lawful means. In the event of such termination, Concessionaire shall immediately surrender possession of the Premises to City. City shall also have the right to recover from Concessionaire all damages incurred by City by reason of Concessionaire’s default, including, but not limited to, the amount of unpaid Rent, if any, the cost of recovering possession of the Premises, reasonable expenses of relating, including reasonable costs and attorneys’ fees. 15.2.2 Maintain Concessionaire’s right to possession, in which case this Agreement shall continue in full force and effect. In such event, City shall be entitled to enforce all of City’s rights and remedies tinder this Agreement, including, without limitation, the right to recover all of the Rent as it becomes due under this Agreement. 15.2.3 Pursue all rights and remedies of City, which shall in any event be cumulative and not alternative, and shall be in addition to any and all rights provided by law or equity. Section 15.3 Late Charge and Interest. DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 178 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement 48 AGREEMENT NO. 11238 (CCS) Unpaid installments of Rent or other unpaid monetary obligations of Concessionaire under the terms of this Agreement shall bear interest from the date due at the maximum rate then allowable by Law. In the event that any installment of Rent or any other sum payable by Concessionaire hereunder is not received by City within ten (10) days of the date when due, a Late Charge as set forth in Section 5.2.4 shall be due and payable to City, and the Rent shall also bear interest at the Default Rate from the first day due until paid. Section 15.4 Waiver of Redemption. Concessionaire hereby expressly waives any and all rights of redemption granted by or under any present or future law to Concessionaire in connection with the eviction or dispossession of Concessionaire for any cause or on account of an uncured Event of Default. Section 15.5 Assignment in Bankruptcy. In the event of any assignment by operation of law under the Federal Bankruptcy Code, or any state bankruptcy or insolvency law, if City elects not to terminate this Agreement, the assignee shall provide City with adequate assurance of future performance of all of the terms, conditions and covenants of the Agreement, which shall include, but shall not be limited to, assumption of all the terms, covenants and conditions of the Agreement by the assignee and the making by the assignee of the following express covenants to City: 15.5.1 That assignee has sufficient capital to pay the Rent and other charges due under the Agreement for the entire Term and Extension Term, if any; and 15.5.2 That assumption of the Agreement by the assignee will not cause City to be in violation or breach of any provision in any other lease, financing agreement, agreement with respect to the Premises; and 15.5.3 That such assignment and assumption by the assignee will not, in the judgment of City, disrupt or impair any existing locale. Section 15.6 City’s Event of Default. City shall be in default under this Agreement if City fails to perform any of its obligations hereunder within thirty (30) days after receipt from Concessionaire of a written request to do so; provided, however, if the nature of City’s obligation is such that more than thirty (30) days are required to perform, City shall not be deemed in default provided City has commenced to cure such nonperformance within such thirty (30) day period and thereafter continues to diligently pursue such cure to completion. Concessionaire’s only remedies for default by City under this Concession shall be the right to direct damages and/or injunctive relief, and in no event shall Concessionaire have the right to terminate this Agreement or unilaterally offset rent payments then due or which shall become due in the future, as the result of City’s default. CONCESSIONAIRE UNDERSTANDS ACKNOWLEDGES AND AGREES THAT NEITHER CONSEQUENTIAL NOR “BENEFIT OF THE BARGAIN” DAMAGES SHALL BE RECOVERABLE AGAINST CITY FOR ANY BREACH OR DEFAULT UNDER THIS DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 179 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement 49 AGREEMENT NO. 11238 (CCS) AGREEMENT. ARTICLE XVI SUBORDINATION AND ATTORNMENT Section 16.1 Peaceful and Quite Use and Possession. Provided that no Event of Default has occurred and is continuing under the provisions of this Agreement beyond the expiration of any applicable notice and cure period, Concessionaire shall have peaceful and quiet use and possession of the Premises without hindrance on the part of City, and City shall warrant and defend Concessionaire in such peaceful and quiet use and possession against the claims of all persons claiming by, through, or under City. Section 16.2 Subordination. Concessionaire, for itself and its subtenants, agrees, without the necessity of any further consideration or action, to subordinate all of its right, title and interest in and to this Agreement to the lien of any deed of trust now or hereafter encumbering the Premises or any portion thereof, and to all advances made or hereafter to be made upon the security thereof, provided, however, (a) that such beneficiary or beneficiaries agree a in writing, in form and substance acceptable to Concessionaire, in its commercially reasonable discretion, delivered to Concessionaire to recognize all of Concessionaire’s right, title and interest in, to and under this Agreement and not to disturb Concessionaire’s possession of the Premises, so long as Concessionaire performs and complies with each and all of the covenants, agreements, terms and conditions under this Agreement; (b) that all terms of such indebtedness, including, without limitation, the precise amount thereof and the interest rate with respect thereto, shall be as determined solely by City and such beneficiary or beneficiaries, and (c) that Concessionaire, for itself and its subtenants, shall within 10 days after City or such beneficiary or beneficiaries provides Concessionaire with written notice to do so, execute and deliver to City such documents and take such further action as City or such beneficiary or beneficiaries may deem necessary or advisable to effect or maintain such subordination and non-disturbance. Concessionaire also agrees that any mortgagee or beneficiary may elect to have this Agreement constitute a lien prior to its mortgage or deed of Trust, and in the event of such election and upon notification by such mortgagee or beneficiary to Concessionaire to that effect, this Agreement shall be deemed a prior lien to such mortgage or deed of trust, whether this Agreement is dated prior to or subsequent to the date of said mortgage or deed of trust. Concessionaire, for itself and its subtenants, agrees that upon delivery to City of the written election of the beneficiary or beneficiaries of any encumbrance affecting the Premises which is superior to this Agreement, that such encumbrance shall be deemed subordinate to this Agreement, and, upon such event, (i) this Agreement shall, without the necessity of any further consideration or action whatsoever, be deemed superior to such encumbrance, whether this Agreement was executed before or after the execution of such encumbrance, and (ii) the beneficiary or beneficiaries of such encumbrance shall have the same rights with respect to this Agreement as if this Agreement had been executed and delivered prior to execution and delivery of such encumbrance and had thereafter been assigned to such beneficiary or beneficiaries. DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 180 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement 50 AGREEMENT NO. 11238 (CCS) Section 16.3 Attornment. If, by reason of City’s default under any encumbrance now or hereinafter affecting the Premises in any way, any or all of City’s interest in and to the Premises is terminated, Concessionaire (a) shall waive all rights at law or in equity now or hereafter in effect to terminate this Agreement and surrender possession of the Premises, (b) shall attorn to the transferee, whether by foreclosure, judicial or trustees’ sale, deed in lieu of foreclosure or otherwise, of any or all of City’s interest in or to the Premises, (c) shall recognize such transferee as the City under this Agreement, and (d) shall execute and deliver to City and to such transferee, within 10 days after City or such transferee provides Concessionaire with written notice to do so, such documents and take Such further action as City or Such transferee may deem necessary or advisable to effect or maintain such attornment. ARTICLE XVII NOTICES Section 17.1 Notices. Any notice, request, demand, approval or consent given or required to be given under this Agreement (“Notices”) shall be in writing and shall be served as follows: (1) by personal delivery; or by deposit thereof in any mail facility maintained by the United States, postage prepaid, certified or registered mail, return receipt required; or (iii) by overnight delivery service, postage prepaid. All Notices shall be addressed as follows: To the City at: Director of Community Services Department City of Santa Monica 1685 Main Street Santa Monica, CA 90401 with a copy to: Santa Monica City Attorney’s Office 1685 Main Street, Third Floor Santa Monica, CA 90401 Attention: City Attorney To the Concessionaire at: Back on the Beach Café 445 Pacific Coast Highway Santa Monica, CA 90402 Attn: Fred Deni or James Christel With a copy to the Premises at: Beach House Venue Manager Annenberg Community Beach House 415 Pacific Coast Highway Santa Monica, CA 90402 All Notices shall be deemed effectively served when hand delivered or on the third DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 181 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement 51 AGREEMENT NO. 11238 (CCS) business day after such notice is deposited with an overnight delivery service or the tenth calendar day after deposit in the United States mail, postage prepaid certified mail, return receipt requested. Either party may, at any time, change its address for receipt of Notice by sending a notice to the other party in accordance with this Article stating the change and setting forth the new address. ARTICLE XVIII MISCELLANEOUS Section 18.1 Inspections and Access By City. Concessionaire will permit City, its agents, employees and contractors to enter all parts of the Premises during Concessionaire’s daytime business hours to inspect the same and to enforce or carry out any provision of this Agreement, including, without limitation, any access necessary for the making of any repairs which are City’s obligation or right hereunder so long as City provides Concessionaire with no less than twenty-four hours prior written notice (except in the case of an emergency in which case no notice shall be required); provided, however, that, in an emergency situation, such access shall be permitted at any time upon City’s oral request. In the event City desires to make any repairs to the Premises, City agrees to use best efforts to minimize any interruption to Concessionaire’s normal business operations therein, and City shall use best efforts to arrange any such repairs during Concessionaire’s “off-peak” business hour. Section 18.2 Remedies Cumulative. No reference to any specific right or remedy shall preclude City from exercising any other right or from having any other remedy or from maintaining any action to which it may otherwise be entitled at law or in equity. No failure by City to insist upon the strict performance of any agreement, term, covenant or condition hereof, or to exercise any right or remedy consequent upon a breach thereof, and no acceptance of full or partial Rent during the continuance of any such breach, shall constitute a waiver of any such breach, agreement, term, covenant or condition. No waiver by City of any breach by Concessionaire under this Agreement shall affect or alter this Agreement in any way whatsoever. Section 18.3 Successors and Assigns. This Agreement and the covenants and conditions herein contained shall inure to the benefit of and be binding upon City, its successors and assigns, and shall be binding upon Concessionaire, its successors and assigns and shall inure to the benefit of Concessionaire and only such assigns of Concessionaire to whom the assignment of this Concession by Concessionaire has been consented to by City as provided in Article XIV. Upon any sale or other transfer by City of its interest in the Premises, City shall be relieved of any obligations under this Agreement occurring thereafter provided that the transferee assumes in writing the obligations under this Agreement occurring thereafter. DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 182 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement 52 AGREEMENT NO. 11238 (CCS) Section 18.4 Captions and Headings. The Article and Section captions and headings are for convenience of reference only and in no way shall be used to construe or modify the provisions set forth in this Agreement. Section 18.5 Joint and Several Liability. If two or more individuals, corporations, partnerships or other business associations (or any combination of two or more thereof) shall sign this Agreement as Concessionaire, the liability of each such individual, corporation, partnership or other business association to pay Rent and perform all other obligations hereunder shall be deemed to be joint and several, and all notices, payments and agreements given or made by, with or to any one of such individuals, corporations, partnerships or other business associations shall be deemed to have been given or made by, with, or to all of them. In like manner, if Concessionaire shall be a partnership or other business association, the members of which are, by virtue of statute or federal law, subject to personal liability, then the liability of each such member shall be joint and several. Section 18.6 Broker’s Commission. Concessionaire shall be responsible for the payment of brokers’ fees, if any, claimed by or through contacts with Concessionaire, because of or arising from this Agreement and agrees to indemnify the City against, and hold it harmless from, all liability arising from any claim for brokers’ fees, including, without limitation, the cost of reasonable attorneys’ fees in connection therewith. Section 18.7 No Discrimination. It is intended that the Premises shall be developed so that all prospective concessionaires thereof, and all customers, employees, licensees and invitees of all concessionaires shall have the opportunity to obtain all the goods, services, accommodations, advantages, facilities and privileges of the Premises without discrimination because of race, creed, color, sex, age, national origin, sexual orientation, Acquired Immune Deficiency Syndrome, disability or ancestry. To that end, Concessionaire shall not discriminate in the conduct and operation of its business in the Premises against any person or group of persons because of the race, creed, color, sex, age, national origin, sexual orientation, Acquired Immune Deficiency Syndrome, disability or ancestry of such person or group of persons or in any manner in violation of Law. Section 18.8 No Joint Venture. Any intention to create a joint venture or partnership relation between the parties hereto is hereby expressly disclaimed. The provisions of this Agreement in regard to the payment by Concessionaire and the acceptance by City of a percentage of the Gross Sales of’ Concessionaire is a reservation for the purposes of rent for the use of the Premises. DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 183 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement 53 AGREEMENT NO. 11238 (CCS) Section 18.9 Entire Agreement; No Modification. This writing is intended by the parties as a final expression of their agreement and as a complete and exclusive statement of the terms thereof, all prior negotiations, considerations and representations between the parties are hereby superseded by this Agreement. No course of prior dealings between the parties or their officers, employees, agents or affiliates shall be relevant or admissible to supplement, explain or vary any of the terms of this Agreement. Acceptance of, or acquiescence in, a course of performance rendered under this or any prior agreement between the parties or their affiliates shall not be relevant or admissible to determine the meaning of any of the terms of this Agreement. No representations, understandings or agreements have been made or relied upon in the making of this Agreement other than those specifically set forth herein. This Agreement can be modified only by a writing signed by both parties. Section 18.10 Severability. If any term or provision, or any portion thereof, of this Agreement, or the application thereof to any, person or circumstances shall, to any extent, be invalid or unenforceable, the remainder of this Agreement, or the application of such term or provision to persons or circumstances, other than those as to which it is held invalid or unenforceable, shall not be affected thereby, and each term and provision of this Agreement shall be valid and be enforced to the fullest extent permitted by law. Section 18.11 Authority. In the event Concessionaire is a corporation, the persons executing this Agreement on behalf of Concessionaire hereby covenant and warrant that: Concessionaire is a duly constituted California corporation qualified to do business in the State of California and is in good standing; all future forms, reports, fees and other documents necessary for Concessionaire to comply with applicable Law will be filed by Concessionaire when due; and such persons are duly authorized by the board of directors of such corporation to execute and deliver this Agreement on behalf of the corporation. In the event Concessionaire is a partnership, the persons executing this Agreement on behalf of Concessionaire hereby covenant and warrant that such persons are duly authorized by the partnership to execute and deliver this Agreement on behalf of the partnership. City shall have the right to request and receive from Concessionaire information and documentation Supporting such covenants and warranties to City’s reasonable satisfaction. Section 18.12 Applicable Law. This Agreement and the rights and obligations of the parties hereunder shall be construed in accordance with the laws of the State of California without regard to any choice of law provisions thereof. Section 18.13 Control of Access. Subject to the provisions hereunder, City, at its option and in its sole discretion, may at any time control and limit access to, in or about, the Premises and surrounding area for the public DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 184 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement 54 AGREEMENT NO. 11238 (CCS) health, safety, welfare, or any public purpose. City shall not be liable or responsible for any damages arising therefrom to the buildings, structures, installations or improvements thereon, or any business or operation of Concessionaire Section 18.14 Title and Warranties. Concessionaire acknowledges that the Premises are subject to the Operating Agreement, covenants, conditions, easements and restrictions of record. City warrants that it has the authority to lease the Premises to Concessionaire for uses not inconsistent with the trust under which the Premises are held by City pursuant to the Operating Agreement. City and Concessionaire agree and acknowledge that no warranties, covenants, promises or representations as to the title, possession or use of the Premises are made by City in this Agreement or in any other form or manner. It is expressly agreed and understood that notwithstanding any provisions of this Agreement to the contrary, in the event that the tenancy created hereunder is or becomes inconsistent with the Operating Agreement, the rights and obligations of the parties will be governed solely and exclusively by the applicable laws of the State of California. Section 18.15 Force Majeure. 18.15.1 In the event that either party is delayed or hindered from the performance of any act required hereunder by reason of a Force Majeure Occurrence, then performance of such acts shall be excused for the period of the delay, and the period for the performance of any such act shall be extended for a period equivalent to the period of such delay (though in no event shall the excusal or extension granted hereunder exceed in the aggregate the period of twelve months). A Force Majeure Occurrence means and should be strictly limited to the unforeseeable refusal to the grant or the denial, revocation or moratorium of or by applicable governmental authorities of approvals (through no fault in part or in whole by Concessionaire or any of its consultants) and permits or by strike, unusually inclement weather (but not rain or wind), fire, riot, insurrection, pandemic, or war. Either party shall have the right to terminate this Agreement in the event of Force Majeure Occurrence for a consecutive twelve-month period. 18.15.2 COVID-19. The spread of COVID-19 is and will be well known to the parties at the time that parties execute this Agreement. Concessionaire understands and agrees that a “Force Majeure Occurrence” is not an event or condition arising out of or resulting from exposure, infection, or spread of COVID-19 where such event or condition does not involve an action or order of federal, state, or local authorities mandating the closure of the Premises, or portion of the Premises, or prohibit Concessionaire the use of the Premises. Nor does Section 18.15.1 excuse Concessionaire from prompt payment of Rent, Additional Rent, or other fees required under the terms of this Agreement where an action or order of federal, state, or local authorities reduces the number of persons that can visit the Premises, imposes restrictions related to operation of the Concessionaire’s business on the Premises, or imposes restrictions on the activities that can be conducted on the Premises to mitigate the spread of COVID-19. Notwithstanding any provision to the contrary in this Agreement, the provisions of Section 18.15 shall not operate to excuse Concessionaire from prompt payment of Rent required under the terms of this Agreement except as set forth in Section 12.8, above. DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 185 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement 55 AGREEMENT NO. 11238 (CCS) Section 18.16 Attorneys’ Fees. If any legal action is necessary to enforce any provision hereof or to recover damages by reason of an alleged breach of any provisions of this Agreement, the prevailing party shall be entitled to receive from the losing party all costs and expenses and such amount as the court may adjudge to be reasonable attorneys’ fees for the costs incurred or the reasonable value of legal services received by the prevailing party in such action or proceeding. Section 18.17 Counterparts. This Agreement may be executed in several counterparts, each of which is an original, and all of which together constitute but one and the same document. Section 18.18 Security Measures. (a) City shall have no obligation whatsoever to provide guard service or other security measures. Concessionaire assumes all responsibility for the protection of City, its employees and agents, invitees, customers, other concessionaires and licensees and property from acts of third parties within the Premises. (b) Concessionaire, at its sole cost and expense, shall provide for any and all security, including but not limited, to security personnel and security systems, needed for the Premises both during construction of the Improvements and during the operation of the Premises thereafter. Such security measures shall be subject to the review and approval of City. City may reasonably require that Concessionaire alter its security measures and/or add additional security personnel and security systems in order to provide for adequate crowd control and protection of the general public at all times within the Premises. City may further require Concessionaire to coordinate its security measures with those of City, any agencies of the City (including the City’s police department and related divisions), any other governmental entities and their respective law enforcement agencies, and any other concessionaire. Section 18.19 Easements. City reserves to itself the right, from time to time, to grant such easements, rights and dedications that City deems necessary or desirable, and to cause the recordation of parcel maps and restrictions so long as such easements, rights, dedications, parcel maps and restrictions do not unreasonably interfere with the use of the Premises by Concessionaire. Concessionaire shall sign any of the aforementioned documents upon request of City and failure to do so within thirty (30) days after written request therefore shall constitute a breach of this Agreement. Section 18.20 City Municipal Powers. The City is entering into this Agreement is its proprietary capacity, and not in its regulatory or governmental capacity. Nothing in this Agreement shall be construed as restraining, impairing or restricting the City in its regulatory capacity, or granting any rights DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 186 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement 56 AGREEMENT NO. 11238 (CCS) upon the Concessionaire with respect to the use, occupancy or operation of the Premises in a manner inconsistent with Law. This Agreement does not grant any development rights upon the Concessionaire with respect to the Premises and any such development shall be subject to all applicable provisions of the Santa Monica Municipal Code, including, but not limited to the Technical Code and the Zoning Ordinance. Section 18.21 Concessionaire’s Compliance with Law. Concessionaire covenants and agrees to comply with all applicable Law in connection with the use, occupancy and operation of the Premises. Concessionaire shall discontinue immediately any use of the Premises which is declared by any governmental authority to be a violation of Law. Section 18.22 Concessionaire’s Lenders and Equipment. In the event that Concessionaire seeks to obtain a loan from a lender (“Lender”) and to secure said loan by Concessionaire’s leasehold interest, furniture, fixtures or equipment (“FF&E”), copies of all notices given in connection with said loan shall require that the Lender provide the City with all notices given in connection with said loan. Provided that the City receives a written request from the Concessionaire pursuant to this Section, the City agrees to provide such Lender with copies of all notices given hereunder to Concessionaire when and in the same manner given to Concessionaire at such address as Lender furnishes to City. Without waiving any of the obligations of the Concessionaire pursuant to this Agreement, City agrees to accept payment of Rent from Lender by and on behalf of Concessionaire. Section 18.23 Venue and Jurisdiction. City and Concessionaire acknowledge that the leased Premises, are located in the City of Santa Monica and Los Angeles County. Any litigation arising out of this Agreement may only be brought in either the United States District Court, Central District of California, or the Superior Court of California, County of Los Angeles, West District, as appropriate. The Parties agree that venue exists in either court, and each party expressly waives any right to transfer to another venue. The Parties further agree that either court will have personal jurisdiction over the Parties to this Agreement. Section 18.24 Exhibits. The following exhibits are attached to this Agreement and incorporated herein by reference: Exhibit 1: Concessionaire Proposal Exhibit 2: Premises Exhibit 3: Rental Equipment and Price List Exhibit 4: State Operating Agreement Exhibit 5: Request for Proposals Exhibit 6: Waiver of Liability and Release Exhibit 7: Menu DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 187 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement 57 AGREEMENT NO. 11238 (CCS) Exhibit 8: Annual Evaluation Exhibit 9: Improvement Plan Exhibit 10: Insurance Requirements IN WITNESS WHEREOF, the parties have executed this Concession on the date set forth above. CITY OF SANTA MONICA, ATTEST: a municipal corporation By: APPROVED AS TO FORM: CONCESSIONAIRE By: By: DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 4/5/2022 Interim City Attorney Joseph Lawrence 4/5/2022 x x Fred Deni 4/5/2022 James Christel Vice President Back on the Beach Food Co In 4/7/2022 City Manager David White 4/11/2022 City Clerk Denise Anderson-Warren 5.D.d Packet Pg. 188 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement AGREEMENT NO. 11238 (CCS) Exhibit 1. Concessionaire Proposal DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 189 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement James Christel, Co-Owner DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 190 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement Experience and Qualifications (3.1.2) Back on the Beach is a Santa Monica institution, serving local residents and visitors since 1989. Santa Monica residents and restaurant owners Fred Deni and Jim Christel opened Back on the Beach at 455 Palisades Beach Road in January 1989. The couple also owned and operated Back on Broadway, another local institution, from 1983 until 2019 at 2020 Broadway in Santa Monica. Their successful catering business provides event planning, preparation and serving, featuring custom menus with high-quality service for special events of all sizes. Back on the Beach is a valued partner for events held at the City’s Annenberg Beach House as well as at locations, businesses, and homes throughout the Los Angeles area. The company has catered events for royalty, presidential candidates, family parties, business events, and community gatherings, including Queen Noor, King Hussein, Senator John Kerry, the Disney Corporation, Universal Studios, Volvo USA, ACLU, St. Joseph Center, St. John’s Medical Center, and celebrities Shirley MacLaine, Diane Keaton, Stephen Stills, Norman Lear, and Jackson Browne. Back on the Beach was selected as the operator for the beachfront property by the City of Santa Monica, which had acquired what was previously the private Sand and Sea Club in 1988 with the generous support of The Annenberg Foundation. Since that time, Back on the Beach has been in continuous operation year-round with the exception of City-managed construction periods. The company was awarded a new lease through a competitive process in 2008, when it expanded to add a takeaway window and beach concessions and made over $300,000 in capital investments to repair and renovation the restaurant including installation of new electrical panels, gas lines, and HVAC; purchase and installation of new kitchen equipment; and new furniture for guest seating. Please attached schedule of 2008 capital improvements. Back on the Beach has continuously adopted new technology to improve customer service including a POS system and online ordering for pickup. The restaurant originally had a beer and wine license for the inside tables only. In 2013, Back on the Beach obtained a permit from the California Alcoholic Beverage Control Board to serve beer and wine at its outdoor tables, and added a custom-designed fence at that time to meet ABC requirements. The restaurant is fully licensed and approved by the Los Angeles County Health Department, the City of Santa Monica, and the California Alcoholic Beverage Control Board. The restaurant has table service indoors and on the sand totaling 175 seats. Millions of people have enjoyed breakfast, lunch, or dinner at the café, which is also available for special events such as weddings, bar mitzvahs, and fundraising events. The takeaway window offers sandwiches, drinks, children’s meals, and snacks to people enjoying the Annenberg pool and the beach. In 2020, Back on the Beach was named the Most Loved Outdoor Dining Spot by westside residents. page 2 DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 191 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement The restaurant continues to operate throughout the COVID pandemic, adopting strict safety guidelines and serving guests at its outdoor tables where they can enjoy the ocean while maintaining physical distance. Limited indoor dining was re-established in the summer of 2021 with excellent ventilation provided by the restaurant’s large windows. Unlike many other restaurants, Back on the Beach has continued to pay full rent to the City of Santa Monica during the past 20 months. The business is certified by the Santa Monica Shines program. Back on the Beach is a leader in the creation and adoption of practices that improve the environmental sustainability of the restaurant business. A Santa Monica-certified Green Business, Back on the Beach has adopted comprehensive energy conservation, water conservation, waste reduction, and pollution prevention measures. Among those are the use of natural cooling during the summer and heat retention through double-paned windows in the winter; installation of water-efficient plumbing fixtures; use of recycled and plant-based containers, utensils, and napkins; use of non-toxic, no-rinse, and biodegradable cleaning products; and stainless steel straws with served meals. The restaurant has also featured healthy, organic, and locally grown food on its menu from the beginning, including additional options (vegan, gluten-free, non-GMO) as they have become available. From a discerning Westside gourmet to a hard-to-please child, guests at Back on the Beach can have a pleasurable healthy meal throughout the day. Back on the Beach won the Grand Prize at the Sustainable Quality Awards in 2019, and the Excellence in Stewardship of the Environment Award in 2017. Hundreds of local youth have had their first job experience as part of the seasonal staff at Back on the Beach. During a typical summer, the company hires 50 to 60 youth to work as servers, bussers, hosts, cooks, and to sell concession items. Many young people come back each summer during high school and college and are able to show multi-year experience on their resume. The current general manager and co-executive chef began their work at Back on the Beach as summer staff. Summer employment at Back on the Beach teaches life-long employment soft skills including teamwork, time management, and customer service. Back on the Beach is known as an excellent employer in the food service industry, and many year-round employees have been with the company for 20 years or longer earning $45,000 to $80,000 annually with tips. The company pays half of health insurance premiums for year- round employees, who may also participate in the CalSavers Retirement Program for employees of small businesses. If awarded this lease, Back on the Beach Food Co., Inc. is prepared to make capital improvements totaling approximately $300,000 including replacement of the roof, exhaust fans and cooler; repair of exterior foundation cracks; renovation of restrooms; addition of a retractable fabric canopy; renovation of dining room floors; replacement of exterior doors and windows; and replacement of the walk-in cooler. Please see attached Renovation Plan. Funds are on hand and available for capital improvements. A beloved member of the Santa Monica community, Mr. Deni has received many awards and recognition for his generosity and community spirit. Most recently, Mr. Deni was awarded a page 3 DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 192 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement lifetime achievement award from the Santa Monica Chamber of Commerce to add to his many honors and accolades. Mr. Deni grew up in the restaurant business in New Jersey, where his mother owned a café. In the 1970s Mr. Deni worked at three of the original health food restaurants in Los Angeles: the Aware Inn, the Source, and the Old World. His commitment to health food and sustainable practices is reflected today in the restaurant’s focus on seasonal produce and seafood, free- range poultry, fresh-squeezed orange juice, and inhouse-baked muffins and scones. Mr. Christel co-owns Back on the Beach Food Co. with his husband Fred Deni. The two have worked together for 32 years in Santa Monica, and were wed at Back on the Beach in 2008. Mr. Christel began working in the food service industry at the age of 15. After graduating from the University of California at San Diego with a degree in communications, he managed a five- person sales team at Nicholas Gold Food Distributors. He has also worked as a UCLA-certified paralegal in the field of civil litigation, and as an English teacher for business clients at Inlingua language institute in Spain. He is certified in Licensee Education on Alcohol and Drugs (LEAD) by the California ABC. A passionate environmentalist, Mr. Christel is active in the Sierra Club, Tree People, and the California Native Plant Society. In addition to English, he speaks Spanish and German which he uses frequently in conversing with visitors to Santa Monica. The couple have lived in Sunset Park for 42 years. General Manager Azain “Zee” Bustamante started working as a dishwasher at Back on the Beach in 2010 and continued as a summer worker while earning a degree in Business Management at California State University Northridge. Z Bustamante is responsible for hiring and firing of staff, scheduling, ordering, and operations development for Back on the Beach. Jonathan Anguiano and Riley Bustamante are co-Executive Chefs for Back on the Beach Food Co. Both chefs began working at Back on the Beach in 2010 as high school students during summers, developing cooking and leadership skills under the mentorship of Fred Deni and Jim Christel. Jonathan left to work as a private chef and as a cook at several high-end kitchens before returning to Back on the Beach in 2019. Riley has worked continuously at Back on the Beach and Back on Broadway since 2010. The Assistant Manager is Derek Williams, who was hired by Back on the Beach through the Santa Monica College Career Center. He started as a host in 2018, and advanced to busser/runner before becoming assistant manager in 2020. Louise Ardigo is the Catering Director of Back on the Beach. She has been working in the food industry since 1980 and joined the Back on the Beach company in 1991 as a restaurant manager. With a background as an event coordinator, she has led Back on the Beach’s catering operation since 1997, planning and producing on-site and off-site events for clients throughout the westside of Los Angeles. page 4 DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 193 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement Back on the Beach Food Co. has consistently been profitable and has paid its rent to the City of Santa Monica in full and in a timely manner. Please see attached Ten Year Business Assessment for annual gross receipts, rent paid to City of Santa Monica, and property tax paid annually since 2010. No subcontractors are proposed. page 5 DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 194 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement Minimum Mandatory Qualifications (2.10) Back on the Beach meets and exceeds the mandatory minimum qualifications established by the City of Santa Monica for proposals to be considered. Ten or more years of continuous experience in the operation and management of a high-quality retail or food service operation. Back on the Beach has 41 years of experience operating high-quality food service restaurants in Santa Monica. Back on the Beach has been operating at its current site for 31 years, and its sister restaurant, Back on Broadway, operated continuously from 1981 to 2019. Throughout this time, Fred Deni and Jim Christel have owned and managed the restaurants and their parallel high-quality catering business. Demonstrated managerial and staffing resources to maintain a high quality, successful operation. Biographies of key personnel are included in this proposal. Several staff members have served Back on the Beach Food Co. Inc. for 20 years or more, and a new generation of managers has been developed from among the many young people who have found multi-year seasonal employment at Back on the Beach. General Manager Azain “Zee” Bustamante began as a summer employee, gaining experience under the mentorship of Fred Deni and Jim Christel while earning a degree in business management. Demonstrated financial capacity to finance proposed improvements and operating costs. Comprehensive financial information is included in the proposal. Back on the Beach Food Co. Inc. has cash deposits of over $900,000 and lines of credit in excess of $300,000. Improvements estimated at $300,000 are proposed. A valid Small Business Qualification. Back on the Beach Food Co. is certified by California’s Small Business Certification Program. Proof of certification is attached. page 6 DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 195 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement Back on the Beach Food Company Inc. Annual Payments to City of Santa Monica 2010-2020 in dollars 2010 2011 2012 2013 2014 2015 Rent paid 163,496.86 177,655.12 209,099.00 221,390.99 255,241.46 290,425.20 Total gross 1,634,969.60 1,776,551.20 2,090,990.00 2,213,909.90 2,552,414.60 2,904,252.00 Property tax 11,356.69 7,065.86 6,594.52 7,079.31 8,203.10 8,207.96 2016 2017 2018 2019 2020 Rent paid 313,286.25 323,403.21 347,718.00 322,140.17 228,423.13 Total gross 3,132,862.50 3,234,032.10 3,477,180.00 3,221,401.70 2,284,231.30 Property tax 8,230.61 7,877.28 5,662.54 26,299.37 28,422.41 page 7 DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 196 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement page 8 DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 197 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement Key Personnel (3.1.3) Back on the Beach operates under the leadership of co-owners Fred Deni and Jim Christel. The General Manager is Azain “Zee” Bustamante. The co-Executive Chefs are Jonathan Anguiano and Riley Bustamante. The Assistant Manager is Derek Williams. The Catering Director is Louise Ardigo. Please see attached resumes. An Organizational Chart is attached in the Operations Plan. Narrative descriptions of each member of the leadership team are available in the Experience and Qualifications section. Each member is deeply committed to Back on the Beach and will be available throughout the length of the lease. Younger team members began as summer workers and structured their educations and experiences in order to build the skills to become managers under the mentorship of Fred Deni and Jim Christel. page 9 DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 198 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement Frederick Deni, Co-Owner of Back on the Beach, is a long-time resident of Santa Monica’s Sunset Park neighborhood. Mr. Deni has worked in the restaurant business since the age of 15. After arriving in Los Angeles in 1972 he worked in local health food restaurants: Aware Inn and Old Worlds. His commitment to healthy food and sustainable practices are reflected today in the use of seasonal produce and seafood, free range poultry, fresh squeezed orange juice and house made scones. The City of Santa Monica has recognized Back on the Beach for its sustainable stewardship and sustainable best practices. In 1989 Mr. Deni opened Back on the Beach at 445 Palisades Beach Road (Pacific Coast Highway). Back on the Beach has been in continuous operation with the exception of closings due to City of Santa Monica construction. Over one million guests have enjoyed breakfast, lunch, or dinner at the cafe. Under the guidance of Mr. Deni and with indoor and outdoor seating for 175 guests, Back on the Beach has hosted hundreds of large group events including weddings, bar/bat mitzvahs, and fundraisers. For 38 years until its closing in 2019, Mr. Deni was also the owner of Santa Monica’s Back on Broadway. Back on the Beach has been the location for many events including the culmination of John Kerry's 2004 presidential campaign and fundraisers for the Santa Monica Police Athletic League (PAL), International Medical Corp, Westside Interfaith Council, the Santa Monica Chamber of Commerce, the Santa Monica Charter of the Red Cross, the Santa Monica Boys & Girls Club, St. Joseph Center and the Ocean Park Community Center. Mr. Deni co-owns Back on the Beach with his life partner and spouse of over 40 years, Jim Christel. Over the many years of ownership they have made constant improvements to the property to meet the highest standards of the food service industry and the Los Angeles County Health Department. The mission of Back on the Beach is to provide a pleasant beach experience with a focus on a friendly and comfortable environment. Mr. Deni is a hands-on operator who spends much of his time overseeing daily restaurant activities. “Back on the Beach is a way of life and not a job. This site has been part of my life since I first came to work here as a Catering Director for Sand & Sea club in 1979. I had just moved to Santa Monica and it introduced me to a wonderful community, where I knew I had found a permanent home.” – Fred Deni A well-loved member of the Santa Monica community, Mr. Deni has received awards and recognition for his generosity and community spirit, including in 1997 the first Humanitarian Award of the Santa Monica Red Cross, where he was honored for his efforts to feed and supply local disaster victims and first responders, and for his international relief work in Bosnia. He is known as a person that is comfortable organizing events with nonprofit organizations, families and community groups, and can be counted on to contribute food and gift cards to Santa Monica schools and health care organizations. He was honored by the Santa Monica Chamber of Commerce with a Lifetime achievement award and the Santa Monica Art Foundation named him Art Patron of the Year. Appointed by the city of Santa Monica, he served on the Civic Center Working Group. In addition to his restaurant duties, he is also a popular event planner and caterer specializing in customized menus, event planning, and preparation and serving. Mr. Deni has managed and catered events for presidential candidates, Queen Noor, Liberty Hill Foundation and the ACLU. page 10 DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 199 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement JIM CHRISTEL 2901 16th Street • Santa Monica • CA • 90405 Work Experience 2009-present Co-Owner, Back On The Beach Café 1996-2009 General Manager, Back On The Beach Café Education University of California at San Diego B.A., Communications Certifications ServSafe Food Protection Manager certification, expires 3/14/2026 Wilderness First Aid course, Sierra Club, 2020 First Aid / CPR certificate, 2020 Sierra Club Navigation (topo map & compass) certification, 2020 Sierra Club 3-month Wilderness Training Course, 2019 California ABC Licensee Alcohol and Drugs (LEAD) program, 2016 UCLA Civil Litigation Paralegal Program, 1994 Affiliations & Memberships Sustainable Works Sustainable Quality Awards steering committee member, 2021 Sierra Club Tree People Planned Parenthood KCSN Public Radio page 11 DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 200 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement Azain Bustamante Profile In 2010, when I was twenty years old, I began my restaurant career at Back on the Beach as a dishwasher. I was recommended to Back on the Beach by a childhood friend Jonathan Anguiano who was already working there. Back on the Beach provides employees with opportunities to grow within the business and has a culture of supporting their employees to start or own a business. I was always encouraged to be working towards managing and running businesses and since 2018 I have been Back on the Beach’s General Manager. Experience BACK ON THE BEACH – SANTA MONICA, CA DISHWASHER | 2010 PANTRY, PREP, LINE COOK | 2010 – 2012 FRONT HOUSE DUTIES | 2012 – 2016 Host, runner, busser, barista, opening/closing, training employees, banquet event coordination. ASSISTANT MANAGER | 2016 – 2018 | GENERAL MANAGER | 2018 – PRESENT Potential employee outreach, staff hiring and training, daily and quarterly reports, facility maintenance, scheduling, vendor relations and negotiations, strategic planning. Education Honor Roll Student | 2008 | Belmont High School B.A. Business Management | 2014 | California State University Northridge Santa Monica Leadership Program | 2014 | Santa Monica Chamber Of Commerce Certifications Manager Food & Health Handler Certificate Awards Certificates Of Recognition | 2021 •United States Congress •State Of California •County Of Los Angeles Board Of Supervisors page 12 DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 201 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement JONATHAN ANGUIANO I began my culinary career at Back on the Beach when I was sixteen years old where I developed many culinary skills and a great interest in becoming a chef. I went on to Bel Air Bay Club where I worked with award winning chefs in a high end culinary kitchen. In 2019 I returned to Back on the Beach where I bring a fresh perspective to our menu offerings. EXPERIENCE 2010 - 2011 DISHWASHER, BACK ON THE BEACH 2011 - 2012 SERVER, BACK ON THE BEACH 2012 - 2013 PREP COOK & CATERING SUPPORT, BACK ON THE BEACH 2014 - 2019 LINE COOK, BEL AIR BAY CLUB 2019 - PRESENT SOUS CHEF, BACK ON THE BEACH page 13 DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 202 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement RILEY BUSTAMANTE EXPERIENCE BACK ON THE BEACH 2010 – 2011 Dishwasher 2011 – 2013 Various kitchen duties 2013 – 2015 Front house duties: host, busser, runner, barista 2014 – 2021 Worked with catering chefs to assist with cooking and presentation of multiple course meals 2019 – present Co-Chef responsible for menu development, prep list for cooks, managing food inventory, maintaining standards for food storage and compliance with applicable health codes and regulations , mentor and lead seasonal and new hires BACK ON BROADWAY 2013 – 2015 Front house duties: host, busser, runner, barista 2016 – 2018 Line cook and menu execution page 14 DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 203 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement Letters of Support for Back on the Beach Food Company, Inc.’s proposal to the City of Santa Monica Sustainable Works Barbara Stinchfield Misti Kerns, Santa Monica Travel and Tourism Santa Monica Chamber of Commerce The Rosenthal Family, neighbors Grace Cheng Braun, Wise and Healthy Aging Terry Peters, customer living with disabilities Hope Warschaw, neighbor page 102 DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 204 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement 1744 Pearl Street Santa Monica, CA 90405 Phone 310 458 8716 www.sustainableworks.org Sustainable Works is a project of Community Partners October 1, 2021 To Whom It May Concern: We are writing this letter in support of Back on the Beach Café owners, Jim Christel and Fred Deni, on behalf of Sustainable Works. Sustainable Works has been working in collaboration with the City of Santa Monica since 1998, administering Community Sustainability Engagement Programs with the aim of helping Santa Monica reach their Climate Action and Sustainable City Plan goals. When we are asked to name a local business that makes a positive impact in their community, Back on the Beach Café is always one of the first that comes to mind. Back on the Beach Café has been an above-and-beyond supporter and leader for community sustainability for more than a decade maintaining a Santa Monica Green Business Certification since 2011 and winning several Sustainable Quality Awards (SQA) including the Grand Prize in 2019 for excelling in the areas of stewardship of the environment, local economic development, and social responsibility. Back on the Beach Café leads the green business community by offering local and seasonal cuisine while prioritizing sustainable procurement. They source seasonal, organic produce from the Santa Monica Farmers' Market and sustainable meats from local California farmers. And organic lettuce, tomatoes and berries are procured during the peak harvest seasons. Prior to the Santa Monica's revised Disposable Food Service Ware ordinance they were striving to eliminate all plastic to-go-ware products and they have successfully reached this goal. For to-go, they procure hot beverage lids made from a marine-degradable plant fiber, in addition to made- in-the-USA containers which are made of 100% post-consumer content recycled materials. In addition to serving food and beverages in reusable dishware for indoor dining, they went the extra mile to replace disposable paper straws with reusable stainless-steel straws – they are the only Santa Monica restaurant out of the 100+ we have recently worked with to do this! On numerous occasions, Jim and Fred have attended and donated their personal time and resources to our Community Sustainability Engagement events. They donated over 100 free lunch meals to this year’s SQA 2021 event (of which most were delivered to a local charity) and delicious small bites to our People, Planet, Plate event. To bolster ticket sales for our annual 2021 Eco-Star Awards fundraiser, they donated 60 bottles of fine organic wine. They also sponsored and hosted the 2019 Green Business @ Sunset Mixer in partnership with the City and Santa Monica Chamber of Commerce at the café. Even more, they have collaborated with us on various community outreach efforts. Jim recently shot this video to provide the City with an example of a successful plastic-free to-go ware restaurant that runs a successful Organics Recycling program, which helps Santa Monica reach its Zero Waste goals. Back on the Beach Café is a favorite and long-standing pillar of the Santa Monica community, having maintained a café literally ‘on the sand’ for over 30 years! If we can provide any additional information, please do not hesitate to contact us. Sincerely, Gina Garcia Co-ED & Director | Community Sustainability Programs Susy Borlido Co-ED & Director | Green Business Programs page 103 DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 205 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement page 104 DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 206 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession page 105 DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 207 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement page 106 DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 208 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement Board Executives Chair Michael Ricks Providence Saint John’s Health Center Chair-elect Greg Morena The Albright Past Chair Becky Warren Elevate Public Affairs Treasurer Len Lanzi Stubbs, Alderton & Markiles LLP Vice Chair Kathy Irby Commercial Bank of California Vice Chair Iao Katagiri Iao Katagiri Consulting Vice Chair Julia Ladd Santa Monica Place/Macerich Vice Chair Paula Larmore Harding Larmore Kutcher & Kozal LLP Vice Chair Ellis O’Connor MSD Hospitality/Fairmont Miramar Hotel Board Members Younes Atallah Loews Santa Monica Beach Hotel Dom Bei Santa Monica Firefighters Local 1109 Jasson Crockett Snapchat Kevin Delijani Delphi Real Estate Group Dr. Ben Drati SMMUSD Celia Fisher Beach Moms Daycare Rudy Flores Santa Monica Police Officers Association Jeffrey Fritz Fritz Buffone Group | Compass Realty Board Members, Cont. Lisa Glasser Oracle Paul Graves Morley Builders Tim Harter Bird Rides Ann Hsing Pasjoli Jeff Jarow PAR Commercial Dr. Kathryn Jeffery Santa Monica College Kim Koury Spin PR Julien Laracine Proper Hospitality Hayden Lee Hayden Lee Coaching Intl. Jonathan McCowan 310 Tutors Susan Neisloss Big Bite Productions Pam O’Connor Terry O’Day In Charge Energy Ryan Ole Hass Align RE | a global real estate collaboration Janet Rimicci UCLA Health Laura Rosenbaum CIT One West Beth Schroeder Raines Feldman Kathy Shepard KS Consulting Jon Shoemaker Gumbiner Savett, Inc. Nat Trives Coalition for Engaged Education Jerry L. Yu Kaiser Permanente September 24, 2021 Joyce Perez Annenberg Community Beach House 415 Pacific Coast Highway Santa Monica, CA 90402 Re: Back on the Beach RFP - SUPPORT Dear Ms. Perez: We write on behalf of the Santa Monica Chamber of Commerce to support the lease renewal of Back on the Beach Cafe for the Annenberg Center property. Back on the Beach is a key business in the fabric of Santa Monica. Their prime location is a community favorite, and their excellent food and hospitality make it a place to meet for breakfast and lunch. Back on the Beach o ffers outstanding catering services for events throughout the Santa Monica community as well as for events at the Annenberg Center. Fred Deni and Jim Christel are respected business and community leaders. They were among the first businesses to make a commitment to environmentally sustainable business practices, and share their strategies with other businesses. They also lead with generosity to our nonprofit community, making donations of food and gift cards and providing a Thanksgiving dinner to hundreds of seniors each year. Hundreds of local youth have found their first job at Back on the Beach, where they learn the hospitality business and gain years of experience and a lifelong work reference while working summers as servers, food runners, and hosts. In 2019, the Chamber honored Fred Deni with the Roy Naylor Lifetime Achievement Award for his community service and generosity. The business and its owners have also been recognized by the American Red Cross, Santa Monica Police Athletic League, Heal the Bay, Step Up on Second, the California Parks and Recreation Society, and many other organizations and entities. Back on the Beach embodies the best of Santa Monica for both residents and visitors. We fully support their proposal and urge you to offer a new lease to Back on the Beach. Sincerely, Laurel Rosen Michael Ricks, 2021-22 Board Chair President/CEO CEO, Providence St. John’s Health Center page 107 DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 209 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement page 108 DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 210 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement page 109 DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 211 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement October 12, 2021 Joyce Perez Senior Administrative Analyst City of Santa Monica 415 Pacific Coast Highway Santa Monica, CA 90402 RE: Back on the Beach Lease Dear Joyce Perez, I am writing to support the extension of the lease agreement for the Back on the Beach Cafe adjacent to the Annenberg Community Beach House. I have a health condition that leaves me highly susceptible to infection, especially the COVID-19 virus. Since the beginning of the Pandemic last year, I have avoided dining in restaurants. I have only gone to a few outdoor dining establishments. Back on the Beach Café is the only place I’ve felt safe, so I dined there several times. Back on the Beach has a substantial amount of outdoor dining options with delicious food. The servers are pleasant, careful and attentive. The fact that the outdoor tables can be reserved, and they are accessible to persons with disabilities, is a significant benefit to the community. It is the only location where I’ve felt safe and normal. Normal for me is rare. Back on the Beach Café also serves families, many of which are visiting the Annenberg Community Beach House. This is a unique resource, which is open to the public. Allowing the Back on the Beach Café to extend its lease will support public access and makes sense. Please extend the lease agreement for Back on the Beach. Thank you. Sincerely, Terry Peters Terry Peters 1935 Livonia Avenue Los Angeles, CA 90034 (310) 838-3207 tppeters@aol.com page 110 DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 212 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement Date:September 24, 2021 at 11:29 AM To whom it may concern Back on the Beach restaurant has been a great asset for the community and has become a landmark in Santa Monica. Several generations now mark special events and just ordinary Sunday brunches with a trip to the beach and the restaurant. All of us would be dismayed to see the neighborhood change if some large chain took its place. I must also mention that back on the beach was a refuge and still is during COVID . It was one of the few safe places that people could safely eat and maintain some semblance of normal life. Fred Deni is also a wonderful neighbor to us and a great asset to the beach. We strongly encourage you to renew his lease. Sincerely Hope Warschaw Resident 514 Palisades Beach Road Sent from my iPad page 111 DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 213 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement Back on the Beach Business & Financial references Premiere Meats Steve Marks customer code # 600095 4030 Gifford Ave PO box 58183 Vernon CA 90058 323.277.5888 Santa Monica Seafood Corporate office customer # 4570 18531 S. Broadwick St. Rancho Dominguez, CA 90220 310.886.7900 800.wow.tuna Yee Yuen Linen Service Debbie acct # 627 2575 S. Normandie Los Angeles, CA 90007 323.734.7205 First Republic Bank Linnea McArt 917.826.8591 431 Wilshire Blvd Santa Monica, CA 90401 Wells Fargo Irene Gaye 310.395.9729 310.393.0443 1300 4th Street Santa Monica , CA 90401 References (3.1.4) Current contract, City of Santa Monica Nan Friedman, Manager, Annenberg Beach House (310) 458-4914 nan.friedman@santamonica.gov page 14 DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 214 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement Confidential Ability to Finance (3.1.5) Evidence of the financial capability of Back on the Beach is presented herein. 1.Letter from Irene Gaye, Wells Fargo Bank2.Letter from Linnea McArt, First Republic Bank 3.Current financial statement 4.Balance sheet 5.Three year pro forma page 15 DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 215 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement Confidential page 16 DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 216 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement Confidential page 17 DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 217 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement 1888 CENTURY PARK EAST, LOS ANGELES, CALIFORNIA 90067 • TEL (310) 712-1888 OR (877) 743-7777 • FAX (310) 407-7088 • FIRSTREPUBLIC.COM San Francisco • Palo Alto • Los Angeles • Santa Barbara • Newport Beach • San Diego • Portland • Palm Beach • Boston • Greenwich • New York September 22, 2021 To Whom It May Concern: This letter is to confirm that Mr. Fred Deni, owner of Back On The Beach, is a current and high value client of First Republic Bank. Mr. Deni has several deposit accounts with First Republic Bank, with a total average balance in the low seven figures range. He also has a line of credit with the Bank which he may access in the low to mid six figures range. Should you have any questions, please do not hesitate to contact me at (310) 407-7185. It’s a privilege to serve you. Respectfully, Linnea McArt Relationship Manager Managing Director First Republic Bank, Century City Office Email: lmcart@firstrepublic.com page 18 DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 218 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement Confidential BACK ON THE BEACH FOOD COMPANY INC. Profit and Loss January - September, 2021 Accrual Basis Wednesday, October 13, 2021 11:51 AM GMT-07:00 1/3 JAN - MAR, 2021 APR - JUN, 2021 JUL - SEP, 2021 TOTAL Income 4300 Beer & Wine Sales 37,379.21 109,127.00 145,948.15 $292,454.36 4400 Food Sales 274,780.75 760,858.76 1,117,791.05 $2,153,430.56 4500 Bev Sales 44,569.75 107,524.70 118,671.57 $270,766.02 4600 Retail Sales 1,104.50 4,256.62 18,435.47 $23,796.59 4650 Cart Sales -1,816.61 -7,749.41 -13,882.05 $ -23,448.07 4800 Room Fee 9.92 2,000.00 6,500.00 $8,509.92 4900 Labor Fee 7,552.95 24,676.89 $32,229.84 Discounts given -79.00 $ -79.00 Uncategorized Income 153.68 465.50 1,003.79 $1,622.97 Total Income $356,181.20 $983,957.12 $1,419,144.87 $2,759,283.19 Cost of Goods Sold 5300 Beer & Wine 10,777.40 15,914.34 24,858.37 $51,550.11 5400 Food $0.00 Bakery 4,785.39 9,851.30 13,500.44 $28,137.13 Dairy 5,679.83 11,484.70 13,940.47 $31,105.00 Grocery 12,532.59 24,934.70 34,949.83 $72,417.12 Meat 23,657.29 53,881.76 74,903.28 $152,442.33 Produce 4,663.44 10,489.86 26,147.02 $41,300.32 Seafood 12,943.22 29,983.10 47,549.87 $90,476.19 Total 5400 Food 64,261.76 140,625.42 210,990.91 $415,878.09 5500 Beverage 6,669.76 14,914.17 17,074.66 $38,658.59 xCOGS Misc 25,853.37 65,975.16 94,368.17 $186,196.70 Total Cost of Goods Sold $107,562.29 $237,429.09 $347,292.11 $692,283.49 Gross Profit $248,618.91 $746,528.03 $1,071,852.76 $2,066,999.70 Expenses 5550 COGS Ex $0.00 5600 Cater Labor 5,016.67 $5,016.67 5750 To Go Supply 6,490.83 9,565.05 10,871.53 $26,927.41 5800 Sales Adj 58.53 173.68 75.00 $307.21 Total 5550 COGS Ex 6,549.36 9,738.73 15,963.20 $32,251.29 page 19 DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 219 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement Confidential BACK ON THE BEACH FOOD COMPANY INC. Profit and Loss January - September, 2021 Accrual Basis Wednesday, October 13, 2021 11:51 AM GMT-07:00 2/3 JAN - MAR, 2021 APR - JUN, 2021 JUL - SEP, 2021 TOTAL 6000 LABOR $0.00 6025 Wages $0.00 6100 Floor 49,398.84 143,133.21 195,633.19 $388,165.24 6150 Floor OT 619.00 5,159.40 13,556.07 $19,334.47 6200 Kitchen 37,979.81 90,138.47 114,805.44 $242,923.72 6250 Kitchen OT 808.49 5,007.50 17,917.09 $23,733.08 6400 Mgmt 1,476.96 2,749.58 $4,226.54 6500 Salary 50,930.26 46,639.99 33,205.49 $130,775.74 6550 Salary Officers 38,241.72 39,999.97 35,604.35 $113,846.04 6600 Cater 2,600.00 $2,600.00 6675 Cater Tips 285.00 $285.00 6700 Xtra $0.00 6725 Sick Pay 500.00 739.40 853.85 $2,093.25 6750 wPenalty 349.50 817.75 1,208.50 $2,375.75 6760 xBonus 1,821.43 5,678.57 $7,500.00 Total 6700 Xtra 849.50 3,378.58 7,740.92 $11,969.00 Total 6025 Wages 178,827.62 337,534.08 421,497.13 $937,858.83 6800 Other $0.00 6825 Health Insurance 9,827.53 9,885.56 17,114.12 $36,827.21 6850 Payroll Processing 396.00 548.00 1,036.00 $1,980.00 6875 Payroll Taxes 25,687.17 46,311.59 55,236.93 $127,235.69 6900 Uniforms 3,226.09 2,296.03 $5,522.12 6950 Worker's Comp.3,548.00 3,095.00 1,681.00 $8,324.00 Total 6800 Other 39,458.70 63,066.24 77,364.08 $179,889.02 Total 6000 LABOR 218,286.32 400,600.32 498,861.21 $1,117,747.85 7000 OCC $0.00 7100 Rent Expense 24,036.33 76,899.91 140,677.70 $241,613.94 7200 Utilities 12,188.05 12,011.40 22,476.49 $46,675.94 7250 Property Tax 1,494.72 $1,494.72 Total 7000 OCC 36,224.38 88,911.31 164,648.91 $289,784.60 7300 OPS $0.00 7325 Cater Supply 297.75 -378.75 $ -81.00 7350 CC & QB Fees 6,522.15 22,143.50 43,242.65 $71,908.30 7375 Computer & SAAS 2,460.01 2,319.71 3,222.18 $8,001.90 7400 Decor 176.85 80.85 $257.70 7450 Equipment 9,622.00 $9,622.00 7500 Kit Supply 672.86 1,511.03 212.00 $2,395.89 7550 Linen 630.50 1,568.10 3,792.39 $5,990.99 7600 Outside Services 147.00 127.50 $274.50 7650 Repair & Maint 8,032.31 15,405.48 14,143.73 $37,581.52 7700 Rest Supply 598.88 2,971.49 4,634.54 $8,204.91 7750 Security 223.32 $223.32 page 20 DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 220 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement Confidential BACK ON THE BEACH FOOD COMPANY INC. Profit and Loss January - September, 2021 Accrual Basis Wednesday, October 13, 2021 11:51 AM GMT-07:00 3/3 JAN - MAR, 2021 APR - JUN, 2021 JUL - SEP, 2021 TOTAL 7800 Telephone 2,973.57 2,475.75 968.94 $6,418.26 Total 7300 OPS 21,890.28 49,016.66 79,891.35 $150,798.29 8000 ADMIN $0.00 8100 Ad & Promo 918.34 112.50 $1,030.84 8150 Automobile 501.86 1,329.19 647.47 $2,478.52 8200 Bank Fees 155.00 114.98 $269.98 8250 Insurance 7,884.81 6,551.73 6,551.73 $20,988.27 8300 License & Permit 1,375.00 $1,375.00 8350 Meals & Research 986.55 461.66 $1,448.21 8400 Office Supply 424.83 848.23 334.20 $1,607.26 8450 Professionals 3,859.00 4,350.00 8,700.00 $16,909.00 8500 Taxes 297.70 800.00 $1,097.70 8550 Travel 1,081.80 159.07 31.58 $1,272.45 Total 8000 ADMIN 15,191.55 14,956.56 18,329.12 $48,477.23 9999 Suspense 0.00 -23.05 $ -23.05 Total Expenses $298,141.89 $563,223.58 $777,670.74 $1,639,036.21 Net Operating Income $ -49,522.98 $183,304.45 $294,182.02 $427,963.49 Other Expenses Interest 19.58 2.77 -7.92 $14.43 Total Other Expenses $19.58 $2.77 $ -7.92 $14.43 Net Other Income $ -19.58 $ -2.77 $7.92 $ -14.43 Net Income $ -49,542.56 $183,301.68 $294,189.94 $427,949.06 page 21 DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 221 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement Confidential page 22 DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 222 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement ConfidentialBACK ON THE BEACH FOOD COMPANY INC.3 Year Amortized Pro FormaYear 1 Year 2 Year 3INCOMEAnticipated Gross Sales3,200,000$        3,500,000$        3,900,000$                EXPENSES % salessesAdvertising0.5%16,000                17,500                19,500                        Cost of Goods Sold27.5%880,000              962,500              1,072,500                   Cost of Labor45.0% 1,440,000           1,575,000           1,755,000                   Insurance1.0%32,572                35,626                39,697                        License & Permits0.4%11,215                12,266                13,668                        Misc. Admin Costs1.0%31,418                34,363                38,290                        Operating Costs3.5%112,000              122,500              136,500                      Rents10.4%332,252              363,400              404,932                      Repairs & Maintenance 2.0%64,000                70,000                78,000                        TaxesProperty30,000                30,000                30,000                        Business3,000                  3,000                  3,000                          Utilities2.0%64,000                70,000                78,000                          Total Anticipated Expenses3,016,456          3,296,156          3,669,088                  Net Profit183,544              203,844              230,912                      page 23DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B5.D.dPacket Pg. 223Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Confidential INCOME Gross Sales 2,195,155$         EXPENSES % sales Advertising 4,656                   0.2% Cost of Goods Sold 625,041              28.5% Cost of Labor 1,143,130           52.1% Insurance 22,393                1.0% License & Permits 7,710                   0.4% Misc. Admin Costs 21,600                1.0% Operating Costs 82,598                3.8% Rents 228,423              10.4% Repairs & Maintenance 41,135                1.9% Taxes Property 28,422                1.3% Business 2,902                   0.1% Utilities 63,240                2.9%   Total Expenses 2,271,250         TOTAL PROFIT (76,094)$            Gross Sales 2021 to AUG 2,737,946$       BACK ON THE BEACH FOOD COMPANY INC. Profit and Loss 2020 page 24 DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 224 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement Confidential201720182019INCOMEAnticipated Gross Sales3,322,948$        3,660,558$        3,407,669$                EXPENSES% sales2020 ‐ %Advertising0.5%8,282 0.2%3,045 0.1%29,288 0.9%Cost of Goods Sold27.5%985,632              29.7% 896,582              24.5% 884,602 26.0%Cost of Labor45.0%1,563,117           47.0% 1,487,254           40.6% 1,532,520 45.0%Insurance1.0%15,809 0.5%17,539 0.5%19,104 0.6%License & Permits0.4%6,152 0.2%5,775 0.2%8,645 0.3%Misc. Admin Costs1.0%41,169 1.2%33,195 0.9%45,658 1.3%Operating Costs3.5%169,280              5.1% 179,392              4.9% 159,990 4.7%Rents10.4%323,403              9.7% 347,718              9.5% 322,140 9.5%Repairs & Maintenance2.0%65,459 2.0%73,199 2.0%61,500 1.8%TaxesProperty7,877 0.2%5,663 0.2%26,299 0.8%Business1,138 0.0%800 0.0%1,659 0.0%Utilities2.0%70,040 2.1%75,564 2.1%77,102 2.3%  Total Anticipated Expenses3,257,357 98.0%3,125,725 85.4%3,168,509 93.0%Net Profit65,591                534,833              239,160 BACK ON THE BEACH FOOD COMPANY INC.3 Year Look Backpage 25DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B5.D.dPacket Pg. 225Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Operations Plan (3.1.6) Back on the Beach will continue to provide a memorable customer experience for local residents and visitors from around the world in its iconic location on the beach in Santa Monica. The restaurant and beach concession will continue to exemplify the spirit of Santa Monica through excellent food, environmental stewardship, and interpretation of the historic roots of the Annenberg Beach House site. Mission and Vision In operating a successful business, the mission of Back on the Beach is to provide hospitality and service to enhance the experience of visitors to Santa Monica Beach, and to increase access to and appreciation of our marine environment. Our vision is to be a community partner that exemplifies the Santa Monica way of life: friendly, democratic, environmentally conscious, healthy, and On the Beach. Our mission and vision guide our work daily as we serve our regular customers, visitors to Santa Monica, and guests of the Annenberg Beach House. Products, merchandise, and services Back on the Beach will continue to offer six options for food and beverage purchase at the Annenberg Beach House, adapting and enhancing menus seasonally and in response to customer preferences. •Back on the Beach Café will continue to offer healthy casual sit-down table service for both indoor and on-the-sand seating. We are fully licensed to sell beer and wine both indoors and outdoors for a complete dining experience. •Takeaway service will continue to be available through our takeaway window adjacent to the Annenberg Beach House pool, children’s playground, and beach. •Coffee, pastries, and grab-and-go sandwiches are available at the counter inside the restaurant. •Takeout orders can be placed online for pickup. •Catering services are offered for special events and meetings held on site at the Annenberg Beach House and other venues. •The beach rental cart stocks snacks in addition to beach rentals and sundries. Menus with prices are attached. The Café serves a diverse menu of exceptional southern California cuisine with seasonal specials to take advantage of local produce and fresh-caught fish. The menu has breakfast, page 26 DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 226 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement lunch, and dinner fare with options for various food preferences and allergies. The legacy of Marion Davies is memorialized in the name of a popular salad. The menu features a children’s section, appetizers to share, delicious desserts, and a variety of vegan, vegetarian, and gluten- free options. For example, we offer both a house-made vegetable burger and the Impossible Burger in addition to meat. Our much-loved scones are baked in-house daily. Dine-in customers are served with reusable ware, including metal straws for drinks. The takeaway window serves made-to-order burgers and sandwiches, bowls, and drinks. While the menu is different from the sit-down café, there are delicious options for all ages and tastes. While their order is prepared, guests may return to the pool or the playground until called. The inside counter of the restaurant is the place to order an espresso drink and pastry or premade item to go. This is a popular option for beachgoers and bicyclists who want to grab something to eat or drink on their way. During summer months the counter has a dedicated server who makes espresso drinks for diners while serving walk-in customers and managing takeout. Online takeout ordering is available for people who wish to place an order and take their food to the pool, the beach, their home, or another place. The full menu is available. Orders are placed online for pickup at a selected time, as soon as 15 minutes. Containers and utensils are environmentally friendly and compostable. Catering is a specialty of Back on the Beach for events held both on-site at the Annenberg Beach House and off-site throughout Los Angeles. We hold a current beer and wine permit for our catering services, and furnish everything from planning through equipment rentals, food preparation, serving, and cleanup. Customized menus, party platters, and box meals are also available. The rental cart sells items frequently needed by beachgoers, swimmers, bicyclists, and other visitors including sunscreen, lip balm, beach towels, sand toys, goggles, swim diapers, magazines, sunglasses, hats, and packaged snacks at prices similar to those at local stores (i.e. CVS, Target). Boogie boards, beach chairs, and beach chairs may be rented for $8 (plus tax) for the first two hours and $15 (plus tax) for more than two hours. This is not a profit center for the business but a convenience for visitors to the Annenberg Beach House and Santa Monica Beach. Customer service plan Back on the Beach serves hundreds of customers daily, as the chart below shows. The volume of meals and the ongoing number of customers throughout the day requires staff members who are thoroughly trained on their role in a well-defined customer service plan that is codified and reviewed regularly. page 27 DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 227 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement Daily Covers by Season, Back on the Beach Monday Tuesday Wednesday Thursday Friday Saturday Sunday Off-Season 300-525 300-525 300-525 300-525 500-750 900-1200 900-1200 Summer 900-1200 900-1200 900-1200 900-1200 1200-1800 1800-2400 1800-2400 In order to provide a high level of service to our customers we have policies and procedures in place, reinforced through initial and ongoing staff training and evaluation. Clear lines of authority support staff interactions with customers for the best experience for all. The staff culture is supportive and teamwork is valued. Owners and managers pitch in as needed. Maintaining excellent customer service, especially in the summer and on weekends and holidays year-round, requires trust and respect among staff members. Back on the Beach operates as a family business, with all staff members treated as close friends and family. Staff members feel valued as Back on the Beach employees and reflect their enthusiasm to our guests. We have staff members who have been with the restaurant for as long as 34 years, and many summer workers remain connected to Back on the Beach long after they have gone on to other careers. Front of the house service Daily service begins by setting up the only full-service restaurant in Santa Monica on the beach. Tables in the sand give guest a unique dining experience. Bussers and runners ensure that restaurant is set with proper tables, chairs, and umbrellas. Opening servers set up tables and the service counter, check daily soups, specials and menu modifications. First impressions are important and set the tone for guest experience. Hosts are trained to give the best welcoming experience to new and regular customers. Hosts start by asking the number of guests in the party. When a table is ready, guests are led to their designated table according to party size, and seating preference. The host ensures that any accommodations regarding dining comfort are met. Servers are trained to provide exceptional service. They learn to time their orders so that appetizers are on the table before entrees, take drink orders at the beginning of contact, recite menu specials and modifications, and take into account any food allergies or dietary needs. Back on the Beach has recently implemented a new Point of Sale (POS) system using handheld devices. This system allows servers to take orders at the table and input any guest specifications. Orders are then sent to the kitchen without the server stepping away from the table. This helps expedite orders and reduces congestion at stationary terminals. Servers can receive and process credit cards at the table so the guest’s card does not need to leave the table, an added level of security for our guests. Orders are received in the kitchen and cooked to menu descriptions or guest specifications. Runners are responsible for ensuring that the kitchen has properly prepared each order as indicated on the guest receipt. This may include response to allergies, checking on any page 28 DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 228 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement modifications, and proper sides, sauces, toppings, and utensils for each order. The runner takes the food to the table where the runner recites menu items ordered and makes sure the elements of the order go to the corresponding guest. Before runners leave each table they ensure that guests have all the utensils and condiments needed. Servers, assisted by bussers, make multiple check backs to the table to ensure the guests’ satisfaction and make any corrections needed. Servers, runners, and bussers are trained to provide excellent service through an orchestration process: • match pace to fit guests’ needs • never leave or enter your station of tables empty-handed • visit as many tables as you can in one trip • tidy up service beverage refills • coffee, dessert, anything else § always offer coffee, cappuccino, tea, or a dessert • checks are dropped when customers are ready § always double check for accuracy before presenting it • bussers clear tables, sanitize, and set for next party to be seated. Every team member thanks customers as they leave. Complaints The owners of Back on the Beach take personal responsibility for the guest experience of every customer. In a busy restaurant there will be times when customers are not satisfied with their meal or service. The General Manager or one of the owners will respond to customer complaints at the time, and employees are trained to engage an owner or manager to listen and respond to customer complaints at the time they occur. Co-owner Fred Deni monitors reviews on Google Business and TripAdvisor and responds personally to all guest reviews. Back of the house service The kitchen employees work closely with each other to produce quality menu items in timely manner. Employees are assigned to specific kitchen stations to fulfill daily operations but have cross-training to cover and assist each other when needed. The kitchen has a strong bond that helps team members thrive under pressure and maintain effective performance through high volume periods, which are frequent during summer months and on weekends and holidays year-round. Many of the kitchen employees have worked together as a team for years which is reflected in the quality of food and service experienced by Back on the Beach guests. Current team leaders Riley Bustamante and Jonathan Anguiano have grown with the business over the past 11 years, creating a work environment that is efficient and professional. These two executive chefs bring new ideas to the kitchen; menus, systems, and relationships are all enhanced by their page 29 DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 229 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement partnership. Riley Bustamante is a team leader who is an effective communicator, expert in delegating, a mediator, has a positive outlook, great integrity and creativity. Jonathan Anguiano is his life-long friend who began his culinary journey at Back on the Beach and departed for several years to work under world class chefs at country clubs. These two leaders bring skills and experiences to run a fast-pace traditional California café on Santa Monica Beach. They are responsible for the quality of food along with health and safety in the kitchen. Daily kitchen service Opening kitchen personnel set up kitchen. Fresh scones are prepared and baked daily, as they have been for 42 years. Based on supplies, the chefs create daily specials and soups. Stations are set up according to the menu. As daily food deliveries arrive they are unloaded and stored appropriately. Back on the beach has six designated stations based on the menu. Cooks assigned to each station communicate consistently to complete guest orders. - Sauté/egg station - Grill station - Fryer station - Sandwich station - Salad station - Preparation station Cleaning and sanitizing Back on the Beach holds a high standard for maintaining cleanliness and sanitation of the restaurant and facilities. All employees are responsible for keeping all equipment, workstations, fixtures, walls, floors and restrooms clean on a daily basis. Each employee has an end-of-shift cleaning duty, known as side-work, which performed to keep the facility safe, presentable and functional. As a beachfront business, working in the sand is a never-ending job to keep windows, floors, paths, seating and eating areas clean. Throughout the restaurant there are multiple sanitation buckets that are utilized to wipe down all tables, chairs and counter tops. All employees have a training period during which they learn to properly use the chemical station. The chemical station has various types of environmentally-friendly cleaning solutions that are designated for cleaning, disinfecting, mopping and polishing. The managers of the café are responsible for ensuring that restrooms, fixtures, counter tops, windows, doors, floors, trash areas and cooking equipment are clean throughout business hours and after hours. Back on the Beach has multiple clipboards with checklists of cleaning procedures for employees to follow when assigned a cleaning task. The manager is responsible to assign tasks and verify that cleaning jobs are properly completed to restaurant and health standards. Back on the Beach also hires two full-time employees who are responsible for daily page 30 DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 230 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement housekeeping and maintenance (cleaning crew). These two employees are scheduled to work after business hours to “deep clean” all kitchen equipment, floors, walls, ceilings, furniture and all counter tops. As all employees have a responsibility of keeping all stations clean, the cleaning crew goes above and beyond to maintain cleanliness of the facility. During the summer season we hire an additional full-time employee to keep up with high volumes of facility usage. More staff, more guests and beach-goers require more cleaning. In addition to the daily cleaning of the interior, he exterior of the cafe is washed twice weekly to address any buildup of food debris, thrash, grease and sand. While every cafe employee is responsible for cleaning and sanitizing, we hire multiple cleaning services to maintain heavy equipment properly working. Exhaust hoods are thoroughly cleaned every four months by Flu Steam. Floor drains are cleaned three times each year to ensure proper drainage. Grease barrels are picked up when filled to capacity by JR Grease Service, which empties the grease trap empty every three months or when filled. Back on the Beach also has a contract with Nadine Refrigeration to maintain all refrigerators. This ensures all equipment is cooling to proper temperatures, adhering to Health Department standards. Maintenance schedule and provider, Back on the Beach FACILITY MAINTENANCE COMPANY SERVICE COST /YR SERVICE CALL /PER MONTH GREASE BARRELS JR GREASE SERVICE $2,400 4 GREASE TRAP JR GREASE SERVICE $800 ONCE EVERY 3 MONTHS EXHAUST HOODS FLUE STEAM $3,000 ONCE EVERY 4 MONTHS REFRIGERATION NADIEN REFRIGERATION $6,000 ONCE EVERY 2 MONTHS DOORS VORTEX DOORS $4,500 ONCE EVERY 3 MONTHS FLOOR DRAINS $1,500 EVERY 6 MONTHS EXTERIOR BUILDING BOTB CLEANING CREW $18,000 3x TIMES A WEEK HOUSE KEEPING BOTB CLEANING CREW $65,000 6x-7x TIMES A WEEK PEST CONTROL ORKIN PEST CONTROL $5,500 1 Food preparation methods Back on the Beach is dedicated to providing healthy, delicious, and sustainable food to our guests. This begins by buying local fresh products and seasonal ingredients, choosing organic when it is available, choosing sustainable packaging, and utilizing all parts of raw ingredients in order to reduce food waste. We use healthy cooking methods including canola oil for frying, olive oil, and roasting or steaming vegetables. Back on the Beach is committed to serving the best all-natural ingredients available. As a restaurant we strive to emphasize local and seasonal ingredients with a sustainability mindset. page 31 DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 231 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement Our preparation starts in locating vendors, farmers, and markets that have the availability to offer organic, local and sustainable products. Our produce is purchased through multiple distributors to find the best price and quality in the market so that our prices are reasonable. We make multiple trips to the Los Angeles Produce Mart, where we find fresh products that make their way from local farms and domestic vendors. Here we can physically look and feel the product before it is loaded into a truck and into our kitchen. We also purchase products from the Santa Monica Farmers Market so we can support local farms and find seasonal fruits and vegetables to incorporate into weekly/weekend specials, seasonal fruits plates, and seasonal salads. We work with Sunrise Produce Company in the summer season when we need high volumes of ingredients. We have long-term relationships with Santa Monica Seafood, Premier Meat Company, and Sysco, who are national distributors. These companies help us fulfill our mission of sourcing the best quality of fish, poultry, and packaged products. Food safety and quality are high priorities. Inventory is checked before each shift to ensure freshness of ingredients, and temperatures of refrigerators, poultry, meat, and dairy products are checked at least daily. We have designated cutting boards for specific ingredients (dairy, fish, meat, poultry, raw vegetables) and designated shelves for all dry, frozen, dairy, poultry, meat, and vegetables. All employees are California-certified food handlers. Managers check food quality daily. Leftover foods from the restaurant or catering become family meals for employees to enjoy, reducing food waste. Food scraps are composted. All stations are cleaned daily, and all equipment is sanitized daily. The dishwasher temperature is checked regularly and maintained at temperatures between 165 and 180 degrees. All large dishware is washed, sanitized, and dried. Organizational structure of staffing and management Back on the Beach has a simple staffing structure illustrated on the attached organizational chart. The co-owners hire, supervise, and delegate responsibility to the general manager, who hires and supervises the front-of-the-house staff with the support of the assistant manager. The general manager also hires and supervises the executive chefs, who hire and supervise the back-of-the-house staff. The general manager is also responsible for the cleaning crew. Back on the Beach staffing levels vary by the season, with a staff of 40 during the off-season, and up to 100 during the summer. Catering is staffed by Back on the Beach employees and temporary staff members who work as-needed. All employees are paid at least the Santa Monica Living Wage of $15/hour plus tips. The table below lists the wages for each position. page 32 DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 232 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement Wage Schedule, Back on the Beach Position Wage Off-Season Summer Gross income Server $15/hr plus tips 8 16 $25k-80K Barrista $15/hr plus tips 2 3 $18k-$38k Busser/Runner 15/hr plus tips 10 20 $5k-$45k* Host 15/hr plus tips 4 12 $5k-$18k Line Cook $19-$22/ hr 3 8 $35k-$50k Fryer $18-$19.5 / hr 2 5 $20k-$40k Pantry $16-$18.5 /hr 3 6 $18k-$40k Prep Cook $17-$19 /hr 2 4 $18k-$40k Dishwasher $15-$18 /hr 3 8 $32k-$35k Sous Chef $50k-$60k 2 2 $50k-60K Take-Out Cook $15-$17 /hr 0 6 $3k-$10k Cashier $15 /hr 0 3 $3k-$8k Managers $17-$20 /hr 1 2 $18k-$45k *Hourly wage is minimum $15. Gross income includes part-time, seasonal workers. Please see attached organizational chart and job descriptions. Use of subcontractors No portion of this operation will be subcontracted. Employee training policies All employees receive orientation from the owners, general manager, and chefs upon hire. New employees are assigned to shadow or assist a permanent employee for a one- or two-week period to ensure they are thoroughly trained and able to practice all Back on the Beach policies and procedures, and that they know how to respond to the many unanticipated challenges that occur during a shift, especially during the busy summer season. Initial and ongoing training focuses on Back on the Beach’s orchestration process described above, which includes matching the pace to fits the needs of guests, never leaving or entering your station of tables empty-handed, visiting as many tables as you can in one trip; keeping tables bussed and tidy; offering additional food, coffee, dessert, or anything else; handling payment efficiently and politely; preparing tables for the next party; maintaining cleanliness and sanitation; and consistently offering excellent customer service. In-service training is scheduled weekly or when needed to review policies and procedures, practice use of new equipment, or address other issues when they emerge. Please see attached employee training protocols and employee manual. page 33 DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 233 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement Employment opportunities for youth Back on the Beach employs 50 to 60 youth each summer as it staffs up to meet the seasonal demand for beach concessions. Hundreds of Santa Monica youth have gotten their first job at Back on the Beach as a host, dishwasher, busser, runner, barista, or cook, and advanced to server or cashier when they come back for a second or third summer. For many of these individuals, Back on the Beach stays on their resume for years, and they know they can count on Fred, Jim, or Zee to respond to calls for references as they transition into full-time, permanent employment when they complete their education. Many full-time permanent employees of Back on the Beach, including the current management team, got their first jobs as teenagers at Back on the Beach and then stayed on or returned after getting additional education and experience. Back on the Beach is a high-pressure, fast-paced business during the summer and serves as a foundation for lifelong employment skills. The structure and family culture provides a model of employment in which everyone works very hard and employees and manager support each other. Family dinners and staff volleyball games build camaraderie. Employees leave every evening with a printout of their hours and earnings, along with tips in their pockets. Back on the Beach models employer fairness and transparency. The owners, managers, chefs, and permanent employees provide mentoring to the youth employees who learn “soft skills”– time management, customer service, teamwork, respect, communication, flexibility, problem solving, and work ethic – in a location that is without equal and with co-workers and managers who authentically care about each other. Youth workers are recruited from Santa Monica High School, Santa Monica College, Virginia Avenue Park, PAL, and by networking with previous youth workers and among all area schools and programs. Marketing and advertising plan Back on the Beach markets to two audiences: local residents and visitors to Santa Monica. Marketing to local residents consists primarily of community involvement and social media, along with peer-to-peer marketing. Back on the Beach is a reliable contributor to prizes and silent auctions for schools and charities, and many regular customers first came to Back on the Beach with a gift certificate that they won through a school or charity. The restaurant is widely popular among local residents who come in frequently and always bring their out-of-town guests to this uniquely beachy dining experience. Those who have had special events, including weddings, engagements, graduation celebrations, and birthday parties at Back on the Beach return often, as do those who are first introduced to the restaurant on one of these occasions. The catering business brings awareness of the restaurant to new audiences, as does the company’s profile with the Santa Monica Chamber of Commerce. page 34 DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 234 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement Back on the Beach regularly receives high accolades on online reviewing sites and is featured in personal posts on Instagram and Facebook due to the beauty of the setting and the high quality of the food and experience. This social media exposure generates new customers and reminds returning customers that the cost and quality of the Back on the Beach experience merits a return visit. Back on the Beach is featured as “Best Outdoor Dining” and “Best Beach Restaurant” in a variety of publications and websites. Management encourages returning customers to share their positive experience through social media posts and online voting. Visitors to Santa Monica see Back on the Beach listed in many guides to best beach experiences both in books and online, and the restaurant and Annenberg Beach House are often recommended by staff members at the many large hotels serving guests from all over the world. Back on the Beach has staff members who speak Spanish, German, Portuguese, and other languages, so guests feel especially welcome when they can ask questions and communicate in their native language. Any bike ride north of Santa Monica Pier will include a stop at Back on the Beach for a meal or a snack. The business receives coverage in travel publications year after year. Community involvement activities A beloved member of the Santa Monica community, Mr. Deni has received many awards and recognition for his generosity and community spirit. Most recently, Mr. Deni was awarded a lifetime achievement award from the Santa Monica Chamber of Commerce to add to his many honors and accolades. For over 30 years, Back on Broadway and then Back on the Beach has hosted a large Thanksgiving dinner for Santa Monica seniors who have no families in collaboration with Wise & Healthy Aging, a large senior services organization. In 2020 when the pandemic interfered with the in-person gathering, Back on the Beach donated drive-through and delivery of Thanksgiving meals to seniors. Back on the Beach donates food and gift certificates to schools and community organizations whenever they are asked, typically over 100 donations in a non-pandemic year. We donate catering to many fundraising events of groups such as PAL and Heal the Bay. We are active supporters of Santa Monica Conservancy, Sustainable Works, the Ruskin Theater, Step Up on Second, The People Concern, and many other organizations. Both owners are actively involved in environmental, youth development, and human rights organizations. We are active supporters of AIDS Project Los Angeles, the Los Angeles LGBT+ Center, the Human Rights Campaign, Public Radio, Planned Parenthood, and the Sierra Club. page 35 DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 235 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement Environmental and sustainable practices Back on the Beach is a leader in the creation and adoption of practices that improve the environmental sustainability of the restaurant business. Back on the Beach won the Grand Prize at the Sustainable Quality Awards in 2019, and the Excellence in Stewardship of the Environment Award in 2017. A Santa Monica-certified Green Business, Back on the Beach has adopted comprehensive energy conservation, water conservation, waste reduction, and pollution prevention measures. Conservation. Back on the Beach has comprehensive policies and practices developed and implemented over the years as we strive to continuously improve our environmental stewardship. We maintain and refurbish our equipment and furniture and only replace items when they cannot be fixed. If we must purchase new appliances, we make sure to purchase Energy Star ones. We use thermal coffee pots, which retain their heat, instead of bottom- heated ones. Our walk- in refrigerator has inner door 'cool curtain' clear strips to help retain cold when the outer door is open. We prefer naturally cooling our restaurant, as we utilize ceiling fans, and our dining rooms are lined with screened windows we often keep open. We have never used our air conditioning unit that was installed 10 years ago. Our windows have a solar-tinted film for heat rejection in the summer and are double-paned to aid heat retention in the winter. On those offseason chillier days, we have the heating system set to the low 70s and we make sure to turn it off before we close. We do not have outdoor heaters. In the summer of 2015, we replaced the majority of our already energy efficient, mercury- conscious, green- tipped fluorescent kitchen light tubes with LED fixtures. Our exterior lighting and restrooms are a mix of compact fluorescents and LEDs. We replaced our aged restroom doors, which are accessed from the outside, to include several inches of air gap at the tops and bases of the doors in order to improve ventilation and allow in natural exterior light. The few hot water pipes that briefly run exterior of the building are covered with pipe wrap insulation. Our utility bills are regularly tracked with the help of Portfolio Manager at www.engergystar.gov. Our dishwasher is state-of-the-art and low- temperature. We installed an office vented- skylight which brings in natural light and keeps the office vented and cool. Back at the Beach has put into place various water saving measures. Our restrooms are a great example of this: not only do we have stickers in our restrooms reminding people to use water wisely, we also have water efficient appliances in the restrooms. Our restroom sinks and staff hand- washing sinks have 0.5 GPM faucet aerators and we have a waterless urinal in the men's restroom. Similarly, our outside faucet can only be turned on with the use of a metal hand key because we found that many beach- goers were using it too liberally. In compliance with city ordinances, we only serve water to customers upon request. Our outdoor decks, walkways and cement areas are regularly swept clean instead of hose- cleaned. Biodegradable Simple Green degreaser is used in spot cleaning with a lot of elbow grease and a good brush broom. Pots and page 36 DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 236 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement pans are pre- soaked which decreases the need for several runs through the dishwasher. Our dishwasher is only run when its racks are full, after hand scraping. We switched from a water- cooled ice machine to an air-cooled model several years ago. Back on the Beach Cafe has streamlined much of our purchasing to include more environmentally friendly products. Perhaps most noticeable is our use of steel straws for drinks. Our paper and office supplies meet the requirements of a City of Santa Monica Green- Certified business. Our takeaway paper bags and multifold paper towels have a minimum of 40% post- consumer recycled content and are unbleached. Our paper dinner napkins have a minimum 30% Post-Consumer Recycled Content (PCRC) and are unbleached. The toilet paper has 20% PCRC. We use Neenah brand office white envelopes, which are 30% PCRC, as well as Neenah’s multipurpose paper, which is 30% PCRC. Our menus are printed on Neenah’s “ENVIRONMENT® Paper,” premium post -consumer fiber papers manufactured under sustainable practices. We purchase all supplies possible (e.g., food stuffs, office supplies, janitorial) in bulk. Single use disposable containers are only used for takeaway orders, and containers, cups, lids, straws, and bags are paper-based and are "Marine Degradable", (dissolves in water within 30 days) which is the current city standard for single-use disposables. We offer a 25- cent discount to those ordering coffee to go if they bring their own reusable thermal coffee cup or sippy- type cup for soft drinks. If a customer or general beach- goer wants a glass of water to go, we let them know that it is free if they drink it from a non- disposable glass at the restaurant. However, if they want a disposable cup to go, we charge a 25- cent fee. Our servers use handheld ordering devices from our Clover POS system. This has helped to minimize our paper waste, as, prior to investing in our Clover POS system, our servers used to write down orders on (scrap) paper and then reenter them on the inside station terminals. Additionally, to conserve/minimize waste, we have our office printer set to print doublesided, and all scrap paper is collected and reused in the form of note paper. Back on the Beach’s owners propagate orchids behind the restaurant in the back garden and reuse them as decoration both in the restaurant and for catering. Food sourcing. We consistently procure high- quality sustainable foods for our business. Back on the Beach’s offerings include Mary's Free- Range Chicken, local cage- free eggs and grass- fed beef. We procure organic coffee from Intelligentsia, which is the first business to adopt Direct Trade practices in the industry. Similarly, we purchase organic teas from Shangri La Tea Company which “grows and harvests [its] teas in accordance with the strictest internationally recognized environmental standards.” Teas from Shangri La Tea Company are certified by The Rainforest Alliance™ and USDA’s National Organic Program (NOP), among other reputable organizations. We purchase sustainable fish guided by Monterey Bay Aquarium Seafood Watch, Monterey Bay Aquarium’s sustainable seafood buying guide. We order our fish and seafood from Santa Monica Seafood and its partner FishChoice, which is always rated by Monterey Bay Aquarium Seafood Watch as either a “best choice” or a “good alternative.” Our tuna salad is wild albacore tuna which is caught using the sustainable “poll and troll” method. Additionally, we obtain our produce, beef, chicken and dairy all come locally from the state of California. page 37 DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 237 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement Cleaning supplies and practices. For cleaning supplies, we largely procure Butler Chemicals’ Green janitorial products. Butler Chemicals’ glass cleaner is non- toxic, and its no- rinse floor cleaner is enzyme- based instead of detergent- based. We use a wall-mounted system that automatically dilutes the bulk chemical concentrations with water to ensure the appropriate concentration level for the staff to use to avoid overuse of chemicals. We utilize non- chlorinated powdered cleanser. We employ Simple Green’s biodegradable industrial degreaser for the spot- cleaning of our outdoor area. Carbon emissions. We encourage reduction of carbon emissions in every way we can. We encourage our employees to take public transport, ride their bikes or rideshare. To incentivize employees to do this, every day that an employee uses one of these modes of transportation both to and from work, his/her name is put into a raffle for a monthly drawing, resulting in a prize (i.e., prizes include a little cash attached to a fun gift such as theater tickets, box of See's chocolates, etc.). At our kiosk, we stock helpful public transport information, and these materials are also included in our new employee orientations. We keep a bicycle air pump on site for anyone, including beach- goers and customers, to use as needed. There are several public bike racks around our restaurant, as well as on- site at the Annenberg Community Beach House. Recycling. Proper recycling is a main protocol at Back on the Beach, and we train our staff accordingly. We are fortunate to live in a municipality that seriously encourages waste reduction. We have use mixed use recycle bins and food scraps/waste bins provided to us by the City of Santa Monica, along with trash bins. We have three color-coded plastic bins strategically placed at several places within our restaurant for employees to use: blue for mixed use recycling, black for trash and green for food scraps. Our office, front server area, dishwashing area and several places in the kitchen area all have distinct color Slim Jim receptacles to assist in proper recycling facilitation. Of our three large (city- managed) bins outside the kitchen door, the mixed use recycle bin is always the first to fill up. We estimate that we divert at least 80% of discards to mixed-use recycling and food waste composting. Environmental leadership. Back on the Beach is a proud partner with many environmental organizations and participates in community initiatives to raise environmental awareness and promote environmental practices. We take part in “Meatless Mondays” and were also involved in “Meatless in March 2018.” We volunteer with environmental organizations. Back on the Beach’s owners have been longtime members of Angles Sierra Club and TreePeople (treepeople.org), Los Angeles County Beekeepers Association, as well as Wilderness Travel Course (wildernesstravelcourse.org). We have periodically volunteered with TreePeople on the Urban Forestry Tree Plantings that take place along West L.A.’s sidewalks and its Mountain Forestry Tree Plantings that take place around Malibu and Topanga. We donate food to Sustainable Works’ and Heal the Bay’s events. Additionally, although it is not primarily an environmental group, we are longtime contributors to Planned Parenthood, as we believe that the exponential growth of human population may be the biggest threat to the planet's ecosystem. page 38 DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 238 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement Furnishing, equipment, and décor Furnishings have been selected to withstand the heavy use and environmental factors they endure. Wooden wainscoting in the dining room references the historic Marion Davies Guest House on the property, which is open to visitors. Outdoor chairs, tables, and umbrellas are sturdy and durable. A custom-built cart houses sundries, snacks, and rentals (boogie boards, beach chairs, etc.) and can be moved to different locations on the property based on visitor traffic. Thematic uniforms, menus, décor, or other elements Uniforms consist of sky- and ocean blue t-shirts with the Back on the Beach logo, reflecting the beach environment. Employees may wear clean cargo shorts or jeans in good repair, and must wear closed-toed shoes. The café has a simple and clean style consistent with the natural beauty of the coastal surroundings. The large windows allow ocean and beach views from every table inside, and umbrellas enhance visitor comfort at the outdoor tables. The thematic color is blue, reflecting the ocean and the sky. Walls are decorated with artisan ceramics and historic photos of the Gold Coast and the Marion Davies estate. The menus are enclosed in weatherproof sleeves and can be changed to reflect daily menu additions which are selected by the chefs based on availability of local produce and fish. Interpretive elements highlighting the environmental and cultural history of the site The Annenberg Beach House and Back on the Beach are privileged to be located at a site with rich environmental and cultural history. Our décor reflects the aesthetic of the Marion Davies Beach House, and we display historic photos of the Gold Coast and the Marion Davies estate in the restaurant. Our front-of-the-house staff members learn about the history of the property as part of their initial training both so they can answer guest questions and to foster their own appreciation of the history of their workplace. Other programs or services to complement the public’s beach experience Back on the Beach actively supports Heal the Bay’s beach cleanup days. We rent and sell equipment and supplies people may need for a spontaneous beach experience, such as hats, sunglasses, swim diapers, towels, beach chairs, and boogie boards. The beach experience in Santa Monica frequently includes bike rides and walks on the beach in our area. We offer free glasses of water to people who stop in, along with any information they page 39 DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 239 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement may want about the Annenberg Beach House, the history of Santa Monica Beach, and the role of the City in preserving this important environmental and cultural asset. Healthy Foods Plan The restaurant has featured healthy, organic, and locally grown food on its menu from the beginning, including additional options (vegan, gluten-free, non-GMO) as they have become available. We use Mary’s Free-Range Chicken, local cage-free eggs, and grass-fed beef. We purchase sustainable fish guided by the Monterey Bay Aquarium Seafood Watch. Burger options include both a house-made vegetable patty and Impossible Burgers along with beef. Many menu items are vegetarian, vegan, and gluten-free so that all our guests have broad choices of meals. We include vegan and gluten-free options in each category so our guests do not have to order a series of side dishes and appetizers. Our chefs are mindful of the dietary requirements and choices of the thousands of guests we serve each year and strive to offer healthy options for everyone. From a discerning Westside gourmet to a hard-to-please child, guests at Back on the Beach can have a pleasurable healthy meal throughout the day. Please see Environmental and Sustainable Practices section above for further details. Tenant Improvement Plan If awarded this lease, Back on the Beach Food Co., Inc. is prepared to make capital improvements totaling approximately $300,000 including replacement of the roof, exhaust fans and cooler; repair of exterior foundation cracks; renovation of restrooms; addition of a retractable fabric canopy; renovation of dining room floors; replacement of exterior doors and windows; and replacement of the walk-in cooler. The improvements are planned to be made over a three-year period with construction scheduled for non-summer months. All improvements are conditional upon approval that they comply with the California Coastal Act, Santa Monica Proposition S, and County Health Codes, and will be closely coordinated with the City of Santa Monica’s Economic Development Division. Please see attached Renovation Plan. Sufficient funds are on hand and available for capital improvements. page 40 DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 240 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement Back on the Beach Cafe excerpts from our employee practices & customer service policy: “Service begins before the customer walks in the front door.” Being a prepared Server Acceptable standards of Personal Hygiene. Long hair tied back, clean hands & nails at all times. Clean & wrinkle-free uniform and apron. Stocked apron corkscrew, a fully-charged hand-held device. Complete knowledge and menu, including ingredients, specials,and today's desserts. Personal money/change bank: (at a minimum) $20 in singles, $15 in fives, $5. in coinage. A smile and a helpful attitude and teamwork! Sequence of Events If guests are waiting to be seated, they should be acknowledged, even if you are not the one whose primary responsibility is to seat them. “Someone will be with you momentarily.” The greeting & spirit of Service First impressions are important. During the greeting you're setting the tone for the entire dining experience. Initially, we should make eye contact with each guest. If wearing sunglasses, raise them for a moment for the initial greeting. Let guests know you're present by 'genuinely being present' = The 10 second likeability rule. Read the guests' signals so you can care for their needs: Do they need a drink? Are they in a hurry? Do they need more time? Do they need help with the menu? Are there any kids who need help first? Taking an order and being a tour guide. First, ask how everyone's doing and move on to a friendly comment: the weather or the beach is always a general, pleasant and reassuring friendly connection. If they don't cue you with specific comments, simply ask about anything to drink? and let them know you'll be right back with their drinks and talk about ordering. Remember, in Santa Monica, its a water-saving regulation to only provide water upon request. It's ok to ask if anyone wants a glass of water but never bring water to any guest unless it is requested. Good tour guiding strengthens your personal connection with quests and speeds up the order- taking process: guest How's the Fred's salad? server Oh, we're famous for our Fred's salad. It's one of our most popular items. It's romaine hearts, a scoop of chicken salad, grilled potatoes, and blue crumbles all tossed together in our house-made lemon herb dressing and then dusted with very finely grated parmesan cheese. guest How big is it? server It is pretty large. It's an entree-sized salad... Always repeat the order back to each guest. Confirm it before leaving the table. If the table is lacking something, ie place settings or condiments, etc. Please get it yourself or Training Curriculum page 60 DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 241 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement make sure a busser etc, does it immediately. This is YOUR responsibility to have it taken care of QUICKLY. Please note that we do not have a policy of 'up-selling' or 'suggestive-selling' extra items with each table or guest, like some chain restaurants do increase sales. However, you are welcome recommend something else but never aggressively to each guest. Asking the table if they want to start off with something to share is generally sufficient. Orchestrations An essential part of the job is coordinating the needs of your entire station, in addition to the needs of individual tables. Match your pace to fit the guests needs. Never leave or empty your station of tables empty-handed. Work with as many tables as you can in one trip. Tidy up and service beverage refills as you go. Time your orders. Appetizers must be on the table before entrees. Food Delivery Even if using a food runner, confirm the table's order is correct. Make sure empty plates are removed before the main course is delivered. Make sure the food is presented in an appetizing and sanitary manner. Report problems to the manager, every time. The Check Back which is not when you bring the bill! Return to the table after a few minutes to ensure the guests satisfaction. "Please let me know if there is anything else you need." Notice that this is not a direct question and doesn't require a response. It tries not to be too intrusive in their meal yet indicates you're available if they need anythin. Coffee, Dessert, anything Else? Always offer coffee, cappuccino, tea or a dessert. Feel free to tempt by offering a dessert by name: "Would anyone care for a slice of chocolate mousse cake?" Instead of "Would" anyone like dessert?" The Check Always double-check the guest check bill for accuracy before presenting. A guest shouldn't have to look for you to get the check !!! Never assume the change from the cash is yours. Always bring back the change unless the guest specifically tells you to keep it. Even if you're sure, it is mandatory to ask 'Do you need me to make any change for you?' If a guest pays the check and lingers, continue to provide service with a periodic check back. You may do this by offering a refill of coffee or water. Notes on gratuity: There is a difference between a voluntary gratuity, which the customer page 61 DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 242 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement voluntarily leaves, and an automatic gratuity charge, such as '18% gratuity on parties of 6 or more'. As far as the IRS is concerned, automatic gratuity is a service charge. It is also accounted for separately on your end-of-shift server paperwork. If you have added 18% onto the check, you must BOTH clearly circle and highlight it in with a pen AND verbally tell the customer that its has been added on. It is unfair and bothersome if someone leaves an additional tip without knowing it. This may also leave a lingering feeling of ill-will associated with the restaurant. Alcohol Awareness Preventing Intoxication 1 Is the guest old enough? at least 21 years old, check photo ID Inform manager if you're unsure about an ID's authenticity 2 House policy: Don't serve a guest more than one drink at a time. 3 Be aware how many drinks a guest is consuming. 4 Offer food with all alcoholic beverages. 5 If you suspect that a guest is intoxicated, have a manager monitor the situation and make decisions. Signs of intoxication Server actions Guest becomes noticeably louder or more quiet. Keep an eye on guest. Guest becomes overly friendly. Keep count of drinks and time span. Recommend food. Complains of weak drinks or slow service. Serve drinks at a slower rate. Inform manager. Guest has trouble walking, slurred speech, With manager's supervision, guest needs to be tactfully or shows aggressive signs. informed that no more drinks will be served. Offer non- alcoholic drinks and food. Look for support among guest's friends. Ask if guest is planning on driving. If guest appears a danger to self or others, police must be called. Back on the Beach Cafe has a class 41 license: "On-sale Beer & Wine - Eating place (Restaurant) which authorizes the sale of beer and wine for consumption on the premises where sold. Distilled spirits may not be on the premises (except brandy, rum, or liqueurs for use solely for cooking purposes). Minors are allowed on the premises. "Then how can we sell margaritas?" Our margaritas are not made with tequila, but they are made from real agave which has been fermented to wine compliant alcohol levels. and are delicious! To serve beer and wine in CA at a restaurant you must be 21 or older, or at least 18 years old if your primary responsibility is that of a food server. FYI, 18 year-olds may not bartend in California. page 62 DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 243 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement Safety & Sanitation Safety Foot ware should be slip resistant. Don't risk back injury! Get help for lifting heavy objects, bend the knees and lift with the legs. Use a ladder or step stool to reach things from high shelves. Report all prospective hazards, for both employees and customers, to the management. Pick it up ! : butterpads, spilled liquids, silverware on floor, fallen food, etc are potential hazards. If the floor is wet, the yellow caution sign should be out and displayed. Know your fire extinguishers: The red fire extinguisher in the dining room is for Class ABC fires. It is a dry chemical extinguisher for : ordinary combustibles, flammable liquid and energized electrical. (and not good for a kitchen grease fire). If needed, remember the acronym PASS: P ull the pin A im the hose at base of fire S queeze the trigger S weep over base of the fire. The kitchen has 2 other types of extinguishers, including an automated ansul system above the exhaust hoods over the grills. It may be faster and safer to first try to smother and suffocate a small fire before reaching for an extinguisher ! All work-related injuries are covered by Workman's Compensation Insurance. If it's a life-threatening emergency, call 911 Mgmt protocol if an employee gets injured: Urgent Care: UCLA Health Santa Monica Wilshire Immediate Care 2424 Wilshire Blvd (310) 828-4503 Mon-Fri 9 am – 9 pm / Sat & Sun 9 am – 6 pm or Brentwood Urgent Care 1156 26th St, Santa Monica 310.829.4505 Mon-Fri 8 am – 8 pm ./ Sat & Sun 9 am – 5 pm Emergency / Afterhours St. John's Hospital (emergency room) 2121 Santa Monica Blvd 310.582.7089 or UCLA / Santa Monica Hospital (emergency room) 1250 16th Street (at Wilshire) 310.825.9111 Amtrust Workman's Comp Insurance Policy # TWC3894993 ` customer service 877.528.7878 claims 888.239.3909 amtrustclaims@qrm-inc.com Forms that needs to be filled out (and signed by employee) (a) DWC-1 form 'Worker's Comp Claim Form' (b) Work Comp Claims E2 It is advisable that if a manager takes an injured employee to a medical facility, that you bring along the employees personnel file which has important required information ( SS#, date of hire, address, etc.) page 63 DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 244 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement Sanitation Handy Tips Use scoops & tongs to handle ice and food, ie lemon wedges. Don't use fingers! Use disposable gloves as directed, ie cutting lemon wedges. Avoid touching food-contact surfaces of dishes, utensils, and equipment. Handle plates by the bottom or the edge, keeping your fingers off the surface. Handle glasses, bowls an cups by the side and bottom to avoid touching the rim. Handle utensils by their handles. 10 Essentials for Safe Food-Handling as recommended by the National Restaurant Assc. The following my not directly apply to servers. 1 Keep foods out of the Temperature Danger Zone 41 - 135 degrees F. Temps between 70 - 125 are especially dangerous. 2 Inspect foods thouroughly for freshness and wholesomeness before cooking and serving. 3 Store foods and equipment properly. 4 Only use sanitized equipment and table surfaces. 5 Avoid letting micro -organisms from one food contaminate another food. 6 Observe good grooming and personal hygiene, especially frequent hand-washing. 7 Avoid preparing food further in advance than absolutely necessary. 8 Dispose of waste properly 9 Keep insects and animals out. 10 Handle ice properly. How to wash your hands: When to wash your hands: Turn water on as hot as you can stand. After you use the rest room, eat, smoke, Apply enough soap to build up a good lather. touch raw foods, touch your face or hair, Vigorously scrub hands and fore arms for at least 20 seconds. or phone, cough, sneeze, handle anything Clean finger tips, fingernails, and between fingers. dirty, return from break, etc. Rinse hands and arms thoroughly under running water. Dry hands and arms. This handwashing section may seem like overkill to some. After all, its something we've been doing since childhood BUT most food-borne illness occurs from staff members not washing their hands properly after using the restroom !!! Cell Phones Cell phones are not allowed to be used while employees are clocked in, making it a safer, more pleasant, and attentive working environment, Cell phones are vehicles of bacterial contamination. page 64 DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 245 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement BACK ON THE BEACH Cafe Cleaning Crew Back on the BeachOrganizational Chart Fred Deni and Jim Christel Co-owners Azain Bustamante General Manager Riley Bustamante and Jonathan Anguiano Executive Chefs Back of House Prep Cook Line Cook Dishwasher Pantry / Salad Station Front of House Host Counter Server Busser Runner Derek Williams Assistant Manager page 78 DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 246 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement Job Description Server Title: Server Reports to: Owner, Manager Summary Position: The purpose of this position is to interact with our guests and ensure they have a great experience when dining at the Back On The Beach. Restaurant Servers are responsible for positive guest interactions while serving guests in a friendly and efficient manner. At all times, servers are expected to be attentive to our guest needs; making them feel welcome, comfortable, important and relaxed. Servers are expected to have knowledge of food being served at Back On The Beach. Duties and Responsibilities: • A server must always be prepared before the start of their shift. This includes: • Proper attire • Apron with pens, scratch paper, change bank, corkscrew • Daily soup and food specials • Welcome and greet guests. Make all our guests feel comfortable and let them know you’re there to personally take care of them. • Inform guests of specials and menu changes. • Make recommendations you genuinely feel your guests will enjoy. • Up-sell food & beverage items using selling techniques. • Answer questions regarding regions where food products come from, how food is prepared. • Answer questions regarding wine list, where wine comes from. • Take food and beverage orders from guests. • Deliver food and beverages from kitchen as needed. • Perform side work at the start and end of each shift as required by service station assignment. • § Maintain clean service areas. • § Monitor and observe guests dining experience. Ensure guests are satisfied with the food and service. Respond promptly and courteously to any requests. • Prepare final bill, present check to guest, accept payment, process credit card charges or make change (if applicable). • Be ready and willing to assist fellow servers as situations arise. • Be ready and willing to assist bus person with clearing and resetting tables. • Thank guests for their visit and invite them to return. • Be available to fill in as needed to ensure the smooth and efficient operation of the restaurant as directed by the restaurant manager or owner. page 79 DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 247 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement End of shift side work/ closing duties At the end of each shift, each server must fulfill requirements of leaving a clean workstation. No server is allowed to leave until a manager or supervisor ensures that all side work is complete before ending shift. This includes... • Restocking beer fridge • Restock back up fridge in the office • Restock fridges in server station (Gatorade, bottle water, milk boxes, apple juice, milk, etc.) • Restock coffee bean and espresso • Restock any necessary cups, glasses, and side plates. • Refill all ketchup bottles, syrups and Mustards, Chalula, Tabasco, Parmesan cheese • Refill All sugar containers must be full • Refill salt and pepper shakers • Run all pitchers through dishwasher. • Clean espresso machine and espresso grinder, empty used espresso grounds bin, • Run all milk containers and spoons through dishwasher. • Run ice tea containers and lemonade container through dishwasher, clean sprouts with a brush. • Wipe down/ clean soda machine and remove spouts and soak in soda water. (turn off machine) • Empty and clean coffee pots and station • Refill ice tea bags • Wipe down all counters in server station (including underneath smoothie station, coffee, espresso machine, and tea machines) • Wipe down the front and top of coolers in server station • Empty out trash and recycle bins. Attitude • Must follow the 3-legged stool theory to be a successful Back on the Beach employee. • have a little bit of fun, make a little bit of money and take care of the customer • Positive, upbeat and energetic. • Confident and knowledgeable about our food and beer. • Able to work at a fast pace. • Willingness to assist server or staff when needed to give customer outstanding service. • Teamwork approach to the position is essential Appearance • Clean Back on the Beach staff shirt • Kaki shorts/pants (without holes or frayed edges). • No open toed shoes or holes in shoes ALL SERVERS MUST WORK TOGETHER AND COOPERATE IN MAKING SURE THAT ALL SIDE WORK IS COMPLETED. SERVERS WILL NOT BE HELD RESPONSIBLE FOR JUST THEIR SECTION page 80 DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 248 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement Title: Busser Reports to: Owner, Manager Summary position: The primary responsibility of a Busser is to reset tables in a speedy professional and effective manner as guests leave the restaurant. Bussers are also responsible for the grooming of the entire restaurant and its perimeters, as well as supporting servers and service staff with refills and clearing tables. Other duties will be expected as need arises. Duties and Responsibilities: • Obtain service area assignments at the beginning of each shift. • Promptly greet guests as they are seated • Clear tables after guests leave. Takes tableware to dish room and place silverware, dishes, glassware, etc. in appropriate areas for washing. • Between settings promptly clean tabletops, chairs, path walk and deck. Check floor and clean as required. Reset and arrange tabletop. • Respond appropriately to guest requests. Communicate guest requests to server immediately. • Communicate with server and hostess to assure efficient seating, table utilization and customer service. • Assist server and runner as needed with food delivery, especially with large parties and during peak hours. • Thank guests as they are leaving – Good people skills. • Show flexibility in terms of your schedule to ensure the smooth and efficient operation of the restaurant as directed by the restaurant manager or immediate supervisor. • Maintain a high level of personal cleanliness • Be a team player; Help out fellow employees when possible. • Be able to fulfill physical requirements of a Busser’s job – carry heavy trays (20lbs. at least) for long periods of time. • Invest in a lifter’s belt to protect your back. • Be able to work in a standing position for long periods of time (up to 8 hours). End of shift side work/ closing duties At the end of each shit, each busser must fulfill requirements of leaving a clean workstation. No busser is allowed to leave until a manager or supervisor ensures that all side work is complete before ending shift. This includes... • Bring in all dishes and buss trays to dishwasher. • Put away umbrellas and lock storage compartment • Lock chairs. • Sweeping and cleaning of path walk and deck. • Picking up all trash from the sand (using a designated strainer located in utility room) • Vacuuming main and north room (if guest are present notify the manager of not being able to complete duty). • Empting sanitation buckets and placing dirty towels in linen bag • Make sure that all inside tables are clean and set to start the next shift. • MANAGER/SUPERVISOR MAY ASK FOR ADDITIONAL TASKS TO BE page 81 DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 249 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement COMPLETED Attitude • Must follow the 3-legged stool theory to be a successful Back on the Beach employee. • have a little bit of fun, make a little bit of money and take care of the customer • Positive, upbeat and energetic. • Confident and knowledgeable about our food and beer. • Able to work at a fast pace. • Willingness to assist server or staff when needed to give customer outstanding service. • Teamwork approach to the position is essential Appearance • Clean Back on the Beach staff shirt • Cargo shorts/jeans (without holes or frayed edges). • No open toed shoes or holes in shoes page 82 DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 250 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement Job Description Host Title: Host Reports to: Owner, Manager Summary Position: Welcome and warmly greet guests on arrival. Take reservations and manage the efficient and timely seating of our guests to a table that best serves their wishes. Duties and Responsibilities • Must be on time and have proper work entire o Manager may determine if outfit is appropriate • Warmly and graciously greet all guests upon arrival. • Check reservation book for daily reservations. Advise bussers for reservation set up and server for reservation time and size. • When possible, open the front door for guests entering or leaving the restaurant. • When immediate seating is limited, record guest names and number of people in party. • Call out name and number of party when tables become available. • Provide guests with estimated waiting time, always maintaining a professional, courteous attitude when confronted with hostile, impatient or irate guests. • Accommodate special seating requests for guests whenever possible. • Seat guests based on guest preferences and balancing of customer flow in service stations. • Upon seating, offer guests a menu and inform them of their server’s name. Inspect table for proper presentation and completeness. • Relay messages to servers and bus-persons as needed. • Rolling of silver ware must be done through shift • Clean menus of food and stains. • Perform other duties as assigned by the manager on duty. • Thank guests as they leave and invite them to return. Relay guest comments or suggestions to the manager on duty. End of shift side work/ closing duties • Roll ups (booth bins must be full) • Collect all menus • Wiped inside & out • Wipe down host stand • Restock silver ware found at the counter • Roll host stand inside the restaurant (as well signs and umbrella) • Place close signs on front and rear doors • Ensure that host is clean and remove all unnecessary objects found under the stand. page 83 DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 251 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement • Ask manger for any further duties • An opening host should never be left with HAVE FULL roll ups. Attitude • Must follow the 3-legged stool theory to be a successful Back on the Beach employee. • have a little bit of fun, make a little bit of money and take care of the customer • Positive, upbeat and energetic. • Confident and knowledgeable about our food and beer. • Able to work at a fast pace. • Willingness to assist server or staff when needed to give customer outstanding service. • Teamwork approach to the position is essential Appearance • Clean Back on the Beach staff shirt • Cargo shorts/jeans (without holes or frayed edges). • No open toed shoes or holes in shoes. page 84 DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 252 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement Job Description Counter Title: Counter Reports to: Owner, Manager, Summery position: The counter staff duties and responsibilities are simple and straightforward. As food counter, you will need to assist customers who wish to take away food or drinks as well as other staff in preparing drinks for seated customers. A counter helps levitates the weight of the servers in helping prepare drinks and making sure servers have what is needed. Your observations, awareness and along with cleanliness is critical in being at the counter, as you will always need to maintain a clean workstation that is visible to oncoming customers. A counter plays an important role in making sure that all items are stocked for a busy service. Other duties will be expected as need arises. Duties and responsibilities • A counter must always start the shift with proper work attire and must be clean. • Upon arrival each counter must set up or make sure that all components of the counter are available for service. • Beverages cups and glassware shelves must be always stock. • All straws, all plastic cups/lids, coffee cup/lid, condiments needs to be stocked and accessible for take-away and restaurant use. • Brewing containers and tea components need to be clean stocked. • All counter machines need to be maintained clean and clear of any items that don’t belong or need to be washed. • All beverage refrigerators must be stocked with all drinks, juices, milks and orange juice. • Lemons and limes need to be accesses able for drinks but must only be placed on a drink if requested. These to containers must always be washed out. • Welcome and greet guests. Make all our guests feel comfortable and let them know you’re there to personally take care of them. • Inform guests of specials and menu changes. • Make recommendations you genuinely feel your guests will enjoy. • Be ready and willing to assist fellow servers as situations arise. • Be ready and willing to assist bus person with clearing and resetting tables. • Thank guests for their visit and invite them to return. • Be available to fill in as needed to ensure the smooth and efficient operation of the restaurant as directed by the restaurant manager or owner. End of shift side work/ closing duties • Restock all: o beverage cups/ glass ware o straws o to-go cups/ lids page 85 DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 253 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement o all beverage refrigerators (must be wiped from the inside) o condiments (mayo, ketchup, mustard, etc.) • Clean o soda machine (remove all nozzles and place in soda water) o coffee machine and pots § pots should be taken to the dishwasher to be placed in a cleaning solution to remove coffee stains. o Espresso machine § Nozzles (place in hot water) § remove draining pan § exterior cleaning o Ice tea and lemonade dispensers (taken to dishwasher) o Smoothie machine § All blenders and lids (taken to dishwasher) § Scrub and wipe down top to bottom with hot water o Display case § Wipe down with glass cleaner § Wrap all pastries o All cabinet and counter tops o Thrash bins § Cleared of all thrash then washed off o Sweep counter floors • Back of the house Restock o Counter is always responsible in always making sure that the restaurant is fully restocked for a restaurant service. This includes all restaurant items that are found on the shelves in front of the ice machine and the beverage shelve near the front alcohol fridge. As well the counter will need to check with manager for any additional request. Attitude • Must follow the 3-legged stool theory to be a successful Back on the Beach employee. • have a little bit of fun, make a little bit of money and take care of the customer • Positive, upbeat and energetic. • Confident and knowledgeable about our food and beer. • Able to work at a fast pace. • Willingness to assist server or staff when needed to give customer outstanding service. • Teamwork approach to the position is essential Appearance • Clean Back on the Beach staff shirt • Cargo shorts/jeans (without holes or frayed edges). • No open toed shoes or holes in shoes. page 86 DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 254 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement Title: Dishwasher Reports to: Chef, Kitchen Lead, and Managers Summary of Position: The dishwasher is an organized employee, who is a committed team player being attentive and alert of kitchen cooks and front of the house staff. The dishwasher ensures that dishware for the front and back of the house are cleaned and sanitized. Duties and Responsibilities • Cleans and sanitize station to insure a clean work space. • Fills up 3-compartment sink to proper water levels. Ensures cleaning chemicals are at the correct solution mixture • Sets up all sanitation buckets through the kitchen • Makes restaurant hourly restroom checks. Sweeps, sanitize, loads proper paper and soap products • Washes all wares including pots, pans, glasses, flatware, using load in machine and 3- compartment sink. • Correctly places and stores all clean equipment in assigned storage shelves • Cleans all thrash/recycled receptacles with all purpose cleaner • Maintains exterior thrash bins area clean. This includes, thrash bins, concrete floors, and grease barrels • Ensures that all work areas remain safe, clean and sanitized to health guidelines • Preforms various types of cleaning projects • May assist in preparing foods for cooking and serving as directed from chef or kitchen managers. End of shift side work/ closing duties • Wash all dishware and kitchen equipment • Scrub down all dishwashing machine and 3 compartment sink • Properly store all cleaning products in designated area • Remove all floor mats and wash to remove any food debris • Scrubs all stainless steel walls and polish • Sweeps floors and mops to ensure no food it left behind • Makes a final restroom check • Makes sure that a thrash/ recycle receptacles are wash • Takes out laundry bag and places new bag • Picks up all sanitation buckets to be clean • Sweeps exterior thrash bin are for any food or thrash debris Attitude • Must follow the 3-legged stool theory to be a successful Back on the Beach employee. page 87 DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 255 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement • have a little bit of fun, make a little bit of money and take care of the customer • Positive, upbeat and energetic. • Confident and knowledgeable about health and safety • Able to work at a fast pace. • Willingness to assist staff when needed to give customer outstanding service. • Teamwork approach to the position is essential Appearance • Clean Back on the Beach staff shirt or chef coats • Black pants • Anti-slip shoes • All staff members must wear a hair nets • Nails must be manicured and clean page 88 DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 256 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement Job Description Line Cook Title: Line Cook Reports to: Chef, Kitchen Lead, and Managers Summary of Position: The backbone of any restaurant responsible for preparation of food, grilling, sautéing or frying to specifications of restaurant menu Line cooks maintain a high energy tempo environment, working together on guest tickets. Line cooks maintain a cleanliness work environment in accordance to health and safety regulations in executing daily task. Duties and Responsibilities • Sets up and stocks work stations with proper menu items • Prepares menu items using knives, kitchen equipment, • Cooks menu items by sautéing, frying or grilling according to menu recipes • Maintains a high standard of cleanliness and complies with food and health standards • Checks inventory to ensure that dates and temperatures are checked • Assist chefs, kitchen leads, and team members • Practices sustainable procedures ( food prep, utilize all components raw ingredients, disposing of food scraps and waste in proper waste bins ) • Cleans and sanitizes all work stations and kitchen equipment at the end of shift • Generates a list of food preparation for next shift or next day End of shift side work/ closing duties • Remove all non-slip mats and clean them • Sweep kitchen floors • Scrub floors with floor guard cleaning solution • Mop kitchen floors • Empty food/thrash bins in proper dumpster bins • Wash and sanitize all, cutting boards, kitchen equipment, utensils, sandwich refrigerators, • Wash and sanitize all prep stations, line stations • Wash and scrub stove tops, flat tops, and fryers • All oil catch tray must be dispose oil barrels and rinse • Fryers must be drained • Check inventory for next day preparation • Consolidate all bins • Date and label all food under your station. USE FIRST must be stamped on • Ensure that all perishable foods are store into the walk-in fridge or freezer • Place all floor mats back • Double check station that everything is organized according to food safety standards. page 89 DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 257 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement • Make temperature readings of all refrigerators on log sheet • Turn off all stove tops, heaters, ovens • All knifes must be cleaned and sanitize and hung in knife station • Towels and aprons must be place in laundry bag • Last kitchen employee takes out laundry bad to storage unit Attitude • Must follow the 3-legged stool theory to be a successful Back on the Beach employee. • have a little bit of fun, make a little bit of money and take care of the customer • Positive, upbeat and energetic. • Confident and knowledgeable about our food • Able to work at a fast pace. • Willingness to assist staff when needed to give customer outstanding service. • Teamwork approach to the position is essential Appearance • Clean Back on the Beach staff shirt or chef coats • Black pants • Anti-slip shoes • All staff members must wear a hair nets • Nails must be manicured and clean page 90 DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 258 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement Title: Pantry/ Salad Station Reports to: Chef, Kitchen Lead, and Managers Summary of Position: The pantry is quintessential position of preparing and stocking food for the cold station. Pantry prepares salads, sandwiches, cold appetizers, dressings, sauces, pastries, and entree sides. Ensure that the food preparation are consistent and up to restaurant standards. Receipts are to be followed using measuring utensils, mixing equipment and slicing machine. The pantry supports all kitchen staff with any ingredients that may be needed from the walk-in fridge. Duties and Responsibilities • Sets up and stocks work stations with proper menu items • Prepares menu items using knives, kitchen equipment, • Cooks menu items by using ovens, toasters, panini grill, mixer, slicer, according to menu recipes • Assist line cooks with any raw ingredients needed from the walk-on fridge • Maintains a high standard of cleanliness and complies with food and health standards • Applies effective use of safety equipment to prevent injuries • Checks inventory to ensure that dates and temperatures are checked • Assist chefs, kitchen leads, and team members • Practices sustainable procedures ( food prep, utilize all components raw ingredients, disposing of food scraps and waste in proper waste bins ) • Cleans and sanitizes all work stations and kitchen equipment at the end of shift • Generates a list of food preparation for next shift or next day End of shift side work/ closing duties • Remove all non-slip mats and clean them • Sweep kitchen floors • Scrub floors with floor guard cleaning solution • Mop kitchen floors • Empty food/thrash bins in proper dumpster bins • Wash and sanitize all, cutting boards, kitchen equipment, utensils, sandwich refrigerators, • Wash and sanitize all prep stations, line stations • Wash and scrub stove tops, flat tops, and fryers • All oil catch tray must be dispose oil barrels and rinse • Fryers must be drained • Check inventory for next day preparation • Consolidate all bins • Date and label all food that are under your station. USE FIRST must be stamped on • Ensure that all perishable foods are store into the walk-in fridge or freezer page 91 DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 259 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement • Place all floor mats back • Double check station that everything is organized according to food safety standards. • Make temperature readings of all refrigerators on log sheet • Turn off all heaters, ovens • All knifes must be cleaned and sanitize and hung in knife station • Towels and aprons must be place in laundry bag • Last kitchen employee takes out laundry bad to storage unit Attitude • Must follow the 3-legged stool theory to be a successful Back on the Beach employee. • have a little bit of fun, make a little bit of money and take care of the customer • Positive, upbeat and energetic. • Confident and knowledgeable about our food • Able to work at a fast pace. • Willingness to assist staff when needed to give customer outstanding service. • Teamwork approach to the position is essential Appearance • Clean Back on the Beach staff shirt or chef coats • Black pants • Anti-slip shoes • All staff members must wear a hair nets • Nails must be manicured and clean page 92 DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 260 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement Title: Prep Cook Reports to: Chef, Kitchen Lead, and Managers Summary of Position: A prep cook, is responsible for providing all around kitchen support in the preparation of meals and ingredients. Preps cook are the first set of kitchen personal to arrive. They set up all necessary equipment needed to cook food. Prep cook keeps all storage shelves of dry goods and walk-in fridge clean and organize. They check in all food deliveries and label food items using the First In First Out Method (FIFO). They perform daily tasks given by chefs, line cooks and pantry cooks in order to provide smooth dining service. Duties and Responsibilities • Sets up and stocks work stations with proper menu items • Prepares menu items using knives, kitchen equipment, • Measures all ingredients according to recipe book • Cooks menu items by using sautéing, frying, grilling, ovens, toasters, panini grill, mixer, slicer, according to menu recipes • Assist line cooks with any raw ingredients needed from the walk-on fridge • Maintains a high standard of cleanliness and complies with food and health standards • Labeling and stocking all ingredients • Checks inventory to ensure that dates and temperatures are checked • Keeps all dry storages and walk-on shelves clean and organized • Applies effective use of safety equipment to prevent injuries • Assist chefs, kitchen leads, and team members • Practices sustainable procedures ( food prep, utilize all components raw ingredients, disposing of food scraps and waste in proper waste bins ) • Cleans and sanitizes all work stations and kitchen equipment at the end of shift • Generates a list of food preparation for next shift or next day End of shift side work/ closing duties • Remove all non-slip mats and clean them • Sweep kitchen floors • Scrub floors with floor guard cleaning solution • Mop kitchen floors • Empty food/thrash bins in proper dumpster bins • Wash and sanitize all, cutting boards, kitchen equipment, utensils, sandwich refrigerators, • Wash and sanitize all prep stations, line stations • Wash and scrub stove tops, flat tops, and fryers • All oil catch trays must be dispose in oil barrels and rinsed • Fryers must be drained • Check inventory for next day preparation page 93 DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 261 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement • Consolidate all bins • Date and label all food that are under your station. USE FIRST must be stamped on • Ensure that all perishable foods are store into the walk-in fridge or freezer • Place all floor mats back • Double check station that everything is organized according to food safety standards. • Make temperature readings of all refrigerators on log sheet • Turn off all heaters, ovens • All knifes must be cleaned and sanitize and hung in knife station • Towels and aprons must be place in laundry bag • Last kitchen employee takes out laundry bad to storage unit Attitude • Must follow the 3-legged stool theory to be a successful Back on the Beach employee. • have a little bit of fun, make a little bit of money and take care of the customer • Positive, upbeat and energetic. • Confident and knowledgeable about our food • Able to work at a fast pace. • Willingness to assist staff when needed to give customer outstanding service. • Teamwork approach to the position is essential Appearance • Clean Back on the Beach staff shirt or chef coats • Black pants • Anti-slip shoes • All staff members must wear a hair nets • Nails must be manicured and clean page 94 DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 262 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement Title: Runner Reports to: Owner, Manager, Chef Summary position: The food runner position performs as an assistant to the food server to enhance the service level. The food runner does not participate in the general order taking of the guest. However, you will be asked to retrieve several food items at a time. You will be able to facilitate on your own and at times with other runners what food plates correspond to the table number. Your observations and awareness of the tables is critical for a smooth dining experience. You are the line of communication from the floor to the Chef. Communication skills, tolerance and even mannered temperament are necessary attributes for smooth food rush. Duties and Responsibilities • Obtain service area assignments at the beginning of each shift. • Thorough knowledge of correct ingredients, descriptions, presentation & the garnish ` • To properly plate and garnish each menu item to ensure a consistent "picture perfect" appearance to the guest. • Delivering finished menu items to guests in a timely & efficient manner, making sure that all food items that are ordered by each party (table) are delivered together. • To make sure every food item that is prepared is accounted for on a check. • Responsible for proper maintenance and sanitation of expo line area and all expo line equipment. • To inform the proper team members (chef, manager, line cook, server, etc.) of any needs or inefficiency that affects kitchen performance, and ultimately, the guest. • Communicating kitchen small ware needs (plates, spoons, pans, etc.) to the Chef. • Never serve food to a table if the guest is away. Bring it back to the kitchen until the person has returned to their seat. • Food should never be dropped and left unattended. • Runners should pass the food off to the server if the server is in the station and able to serve the food to the table. • Make sure you ask the table if they are all set or if they would like anything else at the time. Be smart and ask questions if something is obvious, (i.e. Would you like ketchup with your fries?) Make a visual check of the table to see if everything is OK. Look for the PROPER silverware & side plates needed for each meal before leaving the table. Communicate any food or beverage requests to the server and take care of the things that are needed at the table. • When you are working you are working! There will be no fooling around at the line. All communication should be about things pertaining to your job. The people in the runner station are not there to be entertained by unprofessional conversation at the line with the expediter and food runners • Maintain a high level of personal cleanliness • Be a team player; Help out fellow employees when possible. • Be able to fulfill physical requirements of a runner's job – carry heavy trays (20lbs. at least) for long periods of time. • Invest in a lifter’s belt to protect your back. page 95 DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 263 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement • Be able to work in a standing position for long periods of time (up to 8 hours). End of shift side work/ closing duties At the end of each shit, each runner must fulfill requirements of leaving a clean workstation. No runner is allowed to leave until a manager or supervisor ensures that all side work is complete before ending shift. This includes... • Wiping and clean all runners equipment • Restocking of all condiments and serving utensils • Refilling 2oz ramekins and squeeze bottles (with corresponding dressing and sauce) • Wrapping any open bread bags or scone pans • Sweep and mop floor to start the next shift • Assist closing busser with closing duties • MANAGER/SUPERVISOR MAY ASK FOR ADDITIONAL TASKS TO BE COMPLETED Attitude • Must follow the 3-legged stool theory to be a successful Back on the Beach employee. • have a little bit of fun, make a little bit of money and take care of the customer • Positive, upbeat and energetic. • Confident and knowledgeable about our food and beer. • Able to work at a fast pace. • Willingness to assist server or staff when needed to give customer outstanding service. • Teamwork approach to the position is essential Appearance • Clean Back on the Beach staff shirt • Cargo shorts/jeans (without holes or frayed edges). • No open toed shoes or holes in shoes. page 96 DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 264 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement Seasonal Employees - Off-season January-April, October -December (35 employees) - Summer season May-September (85-100 employees) - We hire all positions (Servers, Bussers, Runners, Barista, Host, Line Cooks, Pantry, Dishwashers, Cleaning crew) - Our Process begins in early April, where we reach out to former employees who have worked for us in the past. This outreach helps back on the beach to create a foundation of knowledgeable staff to get out summer season started. - This foundation helps us with our training base, to ensure that we continue the culture and environment back on the beach is known for. A 42yr family run business, with dedicated staff members who are proud and eager of proving a casual and welcoming environment to local, domestic and foreign guest. - We then begin to promote a summer hiring to local schools. Santa Monica High School, St. Monica Catholic HS, Santa Monica College. - This is part of the employment of youth that is particular valuable to back on the beach that gets us involved in the community. - Hiring kids in the summer helps back on the beach fill the need of staffing to cover the high volumes of beach guest. - The positions that we look for kids to fill up are o take-away window minimal skills need. Work under a kitchen lead who teaches them basic culinary skills (knife skills, preparation of raw veggies, how to use the fryer, cooking times for poultry, meat and fish, safety and sanitation protocols, ticket reading, o rental cart: a seasonal kiosk set up next to the Annenberg pool. They are trained in customer relations, items sales, site history, o host: trained in customer service, communications skills, ability to be a team member, patience and composure. o bussers: trained in customer service, clearing plates, glassware, cutlery, team work, multitasking, action oriented, customer focus o dishwashers: trained in cleaning and sanitation, safe and health, team work, time management, work ethic, communications - Developing these skills to young staff members creates a close bond to growth and knowledge. Most of them kids are part of the restaurant most of the educational development. - Kids go to college and come back for summer jobs. They experience multiple summers and refer close friends or family members. - After this process we put ads out in indeed, where we can hire potential experience servers, kitchen workers, barista, runners, bussers and restaurant cleaning services. - Seasonal employees work 2-5 months. depending if their hired in April or June. - Back on the beach uses the summer to evaluate seasonal employee in determination to be hired beyond the summer. - If not retained for off-season work, many employees are invited back next summer. - We have many seasonal employees who are full-time during moths of April- September and to work elsewhere October - March - Back on the beach also refers employees to business friends page 97 DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 265 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement - Back on the beach becomes a good source for recommendations page 98 DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 266 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement Mon Tue Wed Thu Fri Sat/Sun KITCHEN/TAKE-OUT WINDOW CLEANING EMPTY TRASH BINS X X X X X X POWER WASH ALL FOOD, THRASH & RECYCLE BINS X X X X X X POWER WASH ALL FLOOR MATS X X X X X X SWEEP FLOORS AND POWER WASH FLOORS. PAY ATTENTION TO BASEBOARDS/CORNERS.X X X X X X CLEAN AND SANITIZE EXPOSED AREAS OF TABLES, COUNTERTOPS, BACKSPLASHES X X X X X X CLEAN AND SANITIZE SINK AND DRY-SHINE.X X X X X X CLEAN OUTSIDE OF APPLIANCES X X X X CLEAN AND SANITIZE ALL PUSH CARTS X X X X X X CLEAN LIGHT FIXTURES X X X CLEAN OVEN X X X CLEAN GRILL AND STOVE TOPS X X X X X X CLEAN EXTERIOR OF FRYERS X X X CHANGE FOIL PAPER UNDER GRILL AND STOVE X X X X X X CLEAN HOOD FILTERS X X X SPOT CLEAN STAINLESS STEAL WALLS AS NECESSARY X X X DRY STORAGE AREAS (SWEEP AND MOP)X X X CLEAN MOPS/BRUSHES X X X X X X DISHWASHER STATION SWEEP FLOORS AND POWER WASH FLOORS. PAY ATTENTION TO BASEBOARDS/CORNERS.X X X X X X CLEAN AND SANITIZE EXPOSED AREAS OF TABLES, COUNTERTOPS, BACKSPLASHES X X X X X X CLEAN AND SANITIZE SINK AND DRY-SHINE.X X X X X X CLEAN WHITE FLOOR DRAINS X X X X X X BATHROOM CLEANING EMPTY TRASH CANS, REPLACE LINER X X X X X X X X X X X X X X X X X X CLEAN AND DISINFECT IN AND AROUND TOILETS AND SINKS X X X X X X CLEAN MIRRORS, DRY-SHINE BRIGHT WORK X X X X X X DISPENSERS/HAND DRYERS WILL BE SANITIZED AND POLISHED.X X X X X X SWEEP, MOP, PAY ATTENTION TO BASEBOARDS AND CORNERS.X X X X X X SPOT CLEAN DOORS AND DOOR FRAMES AS NECESSARY.X X X SWEEP EXTERIOR OF RESTROOMS X X X X X X COUNTER/SERVER STATION SWEEP AND MOP FLOORS. PAY ATTENTION TO BASEBOARDS/CORNERS X X X X X X CLEAN AND SANITIZE SINK AND DRY-SHINE.X X X X X X CLEAN WHITE FLOOR DRAINS X X X DRY STORAGE AREAS (SWEEP AND MOP)X X X X Property Maintaince/ Housekeeping THRASH BIN AREA (BINS, FLOORS, DRAINS) GREASE BARRELS GREASE TRAP MAIN ENTRANCE FLOORS EXHAUST HOODS FLOOR DRAINS PEST CONTROL ONCE A MONTH 2x times a week THOROUGHLY SANITIZE SINKS, COMMODES, URINALS, COUNTERTOPS, PARTITIONS, GRAB BARS, CHANGING TABLES, TILE WALL 3X TIMES A WEEK ONCE A WEEK EVERY 3MONTHS 2X TIMES A YEAR EVERY 4 MONTHS page 99 DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 267 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement page 100 DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 268 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement Back on the Beach at Sunset page 112 DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 269 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement page 113 DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 270 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement page 114 DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 271 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement page 115DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B5.D.dPacket Pg. 272Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Rental Bid (3.1.7) Back on the Beach Food Company Inc. proposes to pay the City of Santa Monica a minimum annual rent of $200,000 or a percentage rent of 8% of gross sales, whichever is greater. The percentage will apply to all food and beverages, alcoholic beverages, catering, and retail sales and rentals. page 101 DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 273 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 274 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement James Christel, Co-owner DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 275 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement and Jim Christel DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 276 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement AGREEMENT NO. 11238 (CCS) Exhibit 2. Premises DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 277 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement 445 Pacific Coast Highway (Back on the Beach Café) and 415 Pacific Coast Highway (Annenberg Community Beach House) Restaurant Building Floor Plan DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 278 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement Restaurant Building and adjacent, enclosed exterior beach and patio at 445 PCH Equipment Building and adjacent exterior area within 10 feet of the building at 415 PCH; northern most room designated as the "sand groomer storage room" excluded from Premises DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 279 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement AGREEMENT NO. 11238 (CCS) Exhibit 3. Rental Equipment & Price List DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 280 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement Back on the Beach Cafe 2021 Items from the cart that are for sale: large plush beach towel $22. swim goggles $16 sunscreen $16 bucket with sand toys $11 swim diaper $3 sun hat $16. rentals $8.00 / less than 2 hours $15.00 / more than 2 hours (all day) plus tax all items must be returned by closing umbrella beach chair boogie board You must leave a goverment -issue photo id till paid for upon return. You must be at least 18 years old. This rental cart closes at 4pm. After 4:00, rentals may be returned up till 7:30 pm at the Cafe's front counter. Ids can be retrieved there. page 59 DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 281 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement AGREEMENT NO. 11238 (CCS) Exhibit 4. State Operating Agreement DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 282 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement Marion Davies Beach House OPERATING AGREEMENT for the Marion Davies Beach House INDEX t ' Operating Agreement 1. PREMISES ...................... ; ............................................................................. 2 2. TERM ..................... , ...................................................................................... 3 3. USE OF PREMISES ..................................................................................... 3 4. CONSIDERATION ......................................................................... .-.............. 5 5. CONSTRUCTION AND COMPLETION OF IMPROVEMENTS .................... 6 6. MAINTENANCE OBLIGATIONS OF CITY ...................................... : ........... 10 7. CONCESSIONS .......................................................................................... 11 8. TAXES ........................................................................................................ 11 9. RECORDS AND ACCO.UNTS .......................................... · ............... .-........... 12 10. UTILITIES AND SERVICES ............................................................... : ........ 13 11. INSURANCE ................................. : ............................................... ~ .... : ........ 13 12. HOLD HARMLESS AGREEMENT .............................................................. 14 13. PROHIBITIONS AGAINST ASSIGNING, SUBLETTING ........................... 15 14. NOTICES .................................................................................................... 15 15. DEFAULTS AND REMEDIES ..................................................................... 16 16. SOVEREIGN IMMUNITY ............................................................................ 20 17. TERMINATION ........................................................................................... 20 18 .. SURRENDER OF THE PREMISES; HOLDING OVER .............................. 20 19. REAL PROPERTY ACQUISITION .............................................................. 21 20. COMPLIANCE WITH LAWS, RULES, REGULATIONS, AND POLICIES ... 21 21. NONDISCRIMINATION .............................................................................. 21 22. ACCESSIBILITY LAWS .............................................................................. 22 23. UNION ORGANIZING ................................................................................. 23 24. NATIONAL LABOR RELATIONS BOARD CERTIFICATION ...................... 23 25. DRUG-FREE WORKPLACE ....................................................................... 23 26. ENVIRONMENTAL AWARENESS AND RESOURCE PROTECTION ....... 23 27. HAZARDOUS SUBSTANCES .................................................................... 23 -------------- "I DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 284 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement , ,', I I Marion Davies Beach House Operating Agreement 28. SIGNS AND ADVERTISING ....................................................................... 25 29. INTELLECTUAL PROPERTY RIGHTS ....................................................... 25 30. CHILD SUPPORT COMPLIANCE ACT ...................................................... 27 31. DISPUTES ................................................................................................ '. ... 27 32. LIMITATION ................................................................................................ 27 33. PARAGRAPH TITLES ................................................................................ 27 34. AGREEMENT IN COUNTERPARTS .......................................................... 27 35. AGREEMENT IN WRITING ........................................................................ 28 36. INSPECTION ................................................................................. ; ............ 28 37. SUCCESSORS IN INTEREST .................................................................... 28 38. PARTIAL INVALIDITY ................................................................................. 28 39. TIME OF ESSENCE .................................................................................... 28 40. DURATION OF PUBLIC FACILITIES ............................................... 1 ......... 28 41. WAIVER OF RIGHTS, CLAIMS, AND AGREEMENT TERMS .................... 29 42. INTERPRETATION OF AGREEMENT ............................................. : ......... 29 43. INDEPENDENT CONTRACTOR ................................................................ 29 44. MODIFICATIONS AND APPROVAL OF AGREEMENT ............................ 29 EXHIBIT A-DEED FROM JOSEPH W. DROWN .............................................. A1 EXHIBIT B -1998 RE-USE PLAN ...................................................................... 81 EXHIBIT C -STD 21, DRUG-FREE WORKPLACE CERTIFICATION .............. C1 ii DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 285 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement '' Marion Davies Beach House Operating Agreement ' WHEREAS, State and City desire to enter into this Agreement to provide for the long term development, operation, control, and maintenance of the Marion Davies Beach House as a public recreational facility by City, hereinafter referred to as "The Re- -Use Project"; and WHEREAS, State intends to include in this Project certain real property of approximately two acres immediately westward of and adjacent to the Marion Davies Beach House and under the jurisdiction of the California State Lands Commission under a separate agreement; and WHEREAS, the Legislature in the Budget Act of 2004/05 has authorized the State and City to enter into said Agreement; NOW, THEREFORE, in consideration of the mutual covenants hereinafter contained, the parties hereto agree as follows: 1. PREMISES State authorizes City to develop, operate, control, and maintain the property known as the Marion Davies Beach House at 415 Pacific Coast Highway at Santa Monica State Beach, hereinafter referred to as the "Premises". The Premises was deeded to State by Joseph W. D~own and recorded in Los Angeles County on March 28, 1960 in Book D-794 at Page 196. Said deed is attached hereto and incorporated herein as Exhibit A. City agrees to accept the Premises, including facilities covered by this Agreement, and take the same in their present condition "AS IS" with all faults, and agrees to maintain the same in a safe and tenable condition, and, at any termination of this Agreement, to promptly turn back the same to State in the same or better condition, reasonable wear and tear excepted. State shall not be obligated to make any alterations, additions, or betterments to the Premises except as otherwise provided for in this Agreement. The Premises are formally determined eligible for listing in the National Register of Historic Places and, therefore, are listed in the California Register 2 DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 287 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement • Marion Davies Beach House Operating Agreement of Historical Resources. Portions of the Premises have been designated a City of Santa Monica Landmark and/or a City of Santa Monica Point of Historic Interest. · Thus, all alterations, additions, and betterments to the Premises must comply with the Secretary of the Interior's Standards for the Treatment of Historic Properties (36 C.F.R. 6a et seq.), where applicable; the Guidelines for Preserving, Rehabilitating, Restoring and Reconstructing Historic Buildings, where applicable; and the National Historic Preservation Act (16 U.S.C. 470 et seq.), where applicable, hereinafter referred to as "Historic Ordinances and Laws". 2. TERM The term of this Agreement shall be for a period of fifty (50) years, with an option · to extend up to fifty (50) additional years as provided herein, and shall commence on the first of the month following approval by the State of California, Department of General Services. Either party to this Agreement may request an extension of this term up to fifty (50) additional years when such request is made in writing not later than one (1) year prior to the expiration of the first fifty (50) year term of this Agreement. Such extension shall be requested in writing by either party and shall be granted upon acceptance of such term extension in writing by the other party. State's acceptance of City's extension of the term of this Agreement shall be granted only if the City is in compliance with the terms and conditions of this Agreement on the date of the City's request for extension and the effective date of such extension and shall not otherwise be withheld. 3. USE OF PREMISES A. City agrees to develop, operate, control, and maintain the Premises at its own cost and expense as a public recreation facility with related concessions and/or other facilities accessible and subject to the use and enjoyment of the general public. Development of the Premises shall be conducted in accordance with the goals of the 1998 Re-Use Plan and all amendments thereto, which is attached hereto and incorporated herein as Exhibit B (herein "1998 Re-Use Plan"); Historic Ordinances and Laws, where applicable; all applicable State 3 '. DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 288 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement ' ' Marion Davies Beach House Operating Agreement general planning principles, State Park and Recreation Commission policies; and all federal, state, and local government laws, rules, and regulations. The · operation of the Premises shall be conducted in accordance with the goals of the approved 1998 Re-Use Plan, all applicable State general planning principles, State Park and Recreation Commission policies, and all federal, state, and local government laws, rules, and regulations. 8. · Using a grant from the Annenberg Foundation ("Foundation"), provided with terms and conditions through an Agreement between the City and the Foundation ("Grant Agreement"), City shall make capital improvements resulting in the rehabilitation and adaptive reuse of the Premises {"The Re-Use Project") consistent with the goals of the 1998 Re-Use Plan. C. All modifications and additions to the Premises shall be made in accordance with the Grant Agreement and State's requirements for construction and completion of improvements as described below in Paragraph 5. All material modifications of the 1998 Re-Use Plan will be subject to State approval, which the State will not unreasonably withhold, condition, or delay. Any disapproval by the State shall be set forth in writing with the specific reasons therefore. The failure to so disapprove (with a reasonably detailed explanation) within ten (10) business days after request for approval is received in writing by State therefore will be deemed to be the State's approval of such request. D. If City fails to substantially comply with all terms and conditions of the Grant Agreement, as mutually determined by the State and Foundation, State may terminate this Agreement upon one hundred eighty (180) days written notice, subject to the City's and Foundation's rights in accordance with Paragraph 15, Defaults and Remedies, hereof. E. If City fails to provide substantial public access to the facility, as determined in the sole and good faith discretion of the State, within five (5) years of the commencement of this Agreement, which time period will be extended day by day for force majeure events or any other delays resulting from any causes or events beyond the reasonable control of the City, State shall have the right to terminate this Agreement and take over operation of the Premises, subject to the 4 -------~----------------- DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 289 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement Marion Davies Beach House Operating Agreement City's and Foundation's rights in accordance with Paragraph 15, Defaults and Remedies, hereof. F. , City may adopt rules and regulations for the use and enjoyment of the Premises by the public. Any such rules and regulations adopted by City _shall conform to and be consistent with the rules and regulations adopted by State and generally applicable to the California State Park System. G. City shall not use or permit the Premises to be used in whole or in part during the term of this Agreement for any purpose other than as herein set forth without the prior written consent of the State. 4. CONSIDERATION A. In consideration of the services to be performed by City pursuant to this Agreement, State hereby authorizes the use of the Premises by City on a rent- free basis on the condition that City exert a good faith effort in performing the terms and conditions of this Agreement. In the event that City fails to perform in good faith, subject to the City's and Foundation's rights in accordance with Paragraph 15, Defaults and Remedies, hereof, the Premises shall revert back to the State, at State's option, and State shall have the right to pursue any other remedies available under this Agreement and/or otherwise available by law. B. Any income to City derived from its control and operation of Premises for services, benefits, or accommodation to the general public, or otherwise, shall be used for the development, renovation, operation, and maintenance of lands and/or facilities located on the Premises. Any excess revenues generated on the Premises shall be administered in accordance with California Public Resources Code 5080.37. C. State is not obligated to provide any capital outlay or other funding to the City for the development, operation, control, or maintenance of the Premises unless specifically provided for in current or future bond acts. 5 DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 290 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement Marion Davies Beach House Operating Agreement updated Preliminary Statement of Probable Construction Cost. The historical elements of the Design Development documents must conform where applicable to the Historic Ordinances and Laws and the California Historical Building Code, California Code of Regulations, Title 24, Part 8. If the State disapproves any element of the Design Development, City shall promptly submit necessary modifications and revisions, provided that the State may disapprove an element of the Design Development only if it is materially inconsistent with the approved Schematic Design. Specifically related to the Re-Use Project, the State shall make appropriate staff available for design and review updates and may participate informally in design development reviews prior to final review and approval of Design Development. C. State Approvals: Any disapproval by State pursuant to the approval process outlined in this Paragraph 5, Construction and Completion of Improvements, shall be set forth in writing with the specific reasons. The failure to so disapprove (with a reasonably detailed explanation) within ten (10) , business days after request for approval is received in writing by State therefore will be deemed to be the State's approval of such request. D. Reimbur~ement: Specifically related to the Re-Use Project, City shall reimburse State monthly for all expenses reasonably incurred by State relating to the approvals required by Paragraph 5, Construction and Completion of Improvements, or acquisition of permits as described below in Section G. State will produce records of such costs for review by City on a monthly basis. Such records shall include the title, hourly rate, and hours worked for all staff time included in such costs. E. Use of Consultants and Contractors: City shall employ contractor(s) appropriately licensed in California in the completion of all Improvements. Additionally, City shall utilize professional consultants, including licensed architects(s) and engineer(s) who have demonstrated experience in the rehabilitation, restoration, repair, and seismic strengthening of historic buildings utilizing the Secretary of the Interior's Standards for the Treatment of Historic Properties (36 CFR part 68) and the California Historical Building Code, 7 DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 292 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement -r--.., ...,, ~-----·· .. ·' California Code of Regulations, Title 24, Part 8; at a minimum architects and their consultants must meet the Secretary of Interior's Professional Qualifications Standards in the discipline of historic architecture (48 FR 44738-44739). However, nothing in this stipulation may be interpreted to preclude the Chy from using the properly supervised services of persons who do not meet the Secretary of Interior's Professional Qualifications Standards. Contractors and consultants shall use the latest American Institute of Architects' standards of practice to develop comprehensive construction plans, including schematic design plans, design development plans, and construction documents, and to conduct independent inspections and monitoring of all construction where required by code. In no event shall State be deemed to have control of or be responsible for City's final hiring decisions, the day-to-day management of the project, or administration of contracts with contractors or consultants. F. Acceptance of Plans and Work: Sta.te's review and approval of the Schematic Design and the Design Development as specified in this Paragraph 5, Construction and Completion of Improvements, shall be for the purpose of determining that such work conforms in scope and quality to State's policies and standards required pursuant to this Agreement, and in no way shall relieve City or its contractors or subcontractors of the responsibility to perform and complete the work (1) in accordance With generally accepted industry standards, (2) faithfully adhering to the approved plans, specifications, and drawings, and (3) in accordance with all applicable codes, laws, regulations, or other requirements, including but not limited to, the standards contained in this Agreement. . G. Permits: At its sole cost and expense, including mitigation costs, City shall obtain all permits, licenses, and other approvals necessary for the construction and completion of the Re-Use Project. Such permits may include, but are not limited to, those required under the California Environmental Quality Act (CEQA), County Fire Department, California Coastal Act, California Historical Building Code, and State Fire Marshal. City shall reimburse State for all costs incurred by State on behalf of City in association with acquisition of said permits. State will produce records of such costs for review by City on a monthly basis. The State 8 DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 293 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession ' Marion Davies Beach House Operating Agreement .. shall cooperate with City with respect to securing said permits including the execution of documents required by a governmental authority to be initiated by State. H. Completion of Improvements: Once prior approvals, permits, etc. have been received as required herein above, and the work on any Improvement has begun, City shall prosecute to completion with reasonable diligence all approved Improvements. All work shall be performed in a professional manner, and work on historic elements will comply with the Historic Ordinances and Laws, the California Historical Building Code, California Code of Regulations, Title 24, Part 8, and comply substantially with all applicable governmental permits, laws, ordinances, and regulations. It shall be the responsibility of City, at its own cost and expense, to obtain all licenses, permits, security, and other approvals necessary for the construction of approved Improvements. City shall comply with public bidding requirements as set forth in the California Public Contract Code. I. Completion of Construction: For all Improvements erected on the Premises by City, upon completion of construction, City shall (1) record a Notice of Completion, with a copy provided to the State; (2) provide State with a complete set of "as-built" plans for all improvements in a form mutually acceptable to City and State; (3) submit evidence that all Improvements are clear of any mechanic's liens and/or stop notices; (4) submit a verified accounting of the cost for Improvements, excluding equipment and trade fixtures that are the personal property of City, in a form mutually acceptable to City and State; and (5) submit a verified report in a form mutually acceptable to City and State demonstrating full compliance with the pertinent state and federal accessibility laws, including but not limited to, the Americans with Disabilities Act of 1990, Titles I, II and Ill (42 U.S.C. 12101 et seq.). J. Title to Improvements: Upon termination of this Agreement, title to all Improvements existing or hereafter erected on Premises, regardless of who constructs such Improvements, shall become State's property, and all Improvements shall become part of the realty and title to the Premises, and shall vest in State, without compensation to City. City agrees never to assail, contest, 9 DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 294 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement Marion Davies Beach House Operating Agreement or resist said title. The foregoing notwithstanding, State may elect, by notice to City, that City must remove any Improvements that are peculiar to City's use of the Premises. In this event, City shall bear the cost of restoring the Premises to a reasonable condition consistent with the remaining Improvements. 6. MAINTENANCE OBLIGATIONS OF CITY A. During the term of this Agreement and at City's own cost and expense, City shall maintain and operate the Premises including equipment, personal property, and Improvements or any other improvements of any kind that may be erected, installed, or placed thereon in a clean, safe, wholesome, and sanitary condition free of vermin, trash (except normal day to day accumulations, which shall be collected on a normal and regular basis), garbage (except normal day to day accumulations, which shall be collected on a normal and regular basis), or obstructions of any kind. During the term of this Agreement it shall be the City's responsibility to insure that the Premises are maintained to the satisfaction of State. All construction, operation, and maintenance shall be in accordance with the Historic Ordinances and Laws and all other applicable laws, codes, regulations, ordinances, and generally accepted industry standards pertaining to such work. 8. Should City fail, neglect, or refuse to undertake and complete any required maintenance, State, after providing written notice to the City and a reasonable opportunity to cure, shall have the right to perform such maintenance or repairs for the City. In this event, City shall promptly reimburse State for the cost thereof, provided, however, that State shall first give City ten (10) business days written notice of its intention to perform such maintenance or repairs. State shall not be obligated to make any repairs to or maintain any improvement on the Premises. City hereby expressly waives the right to make repairs at the expense of the State and the benefit of Sections 1941 and 1942 of the California Civil Code relating thereto, if there be any. State has made no representations respecting the condition of the Premises, except as specifically set forth in this Agreement. 10 DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 295 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement Marion Davies Beach House Operating Agreement C.. State reserves the right to enter the Premises for inspection and work · related to its care and maintenance during the term hereof, provided that State shall give City reasonable written notice of its intention to enter the Premises for such inspection and/or work. 7. CONCESSIONS City may grant concessions in or upon the Premises consistent with the 1998 Re- Use Plan or as amended pursuant to the terms of this Agreement, terms and conditions of the Grant Agreement, the Historic Ordinances and Laws, and the requirements of State under Sections 5080.33 and 5080.34 of the California Public Resources Code. All .· concession contracts shall be subject to the requirements of the California Public Resources Code Section 5080.20 and shall be assumable and/or subject to termination by State, at State's sole discretion, in the event this Agreement is terminated. In accordance with Sections 5080.03 of the California Public Resources Code, · Concessions shall provide for the safety and convenience of the general public in the use and enjoyment of, and the enhancement of recreational and educational experiences on the Premises and no concessions created solely for their revenue producing potential shall be granted by City. All concession agreements shall be made subject to audit by State. State shall have the right, through its representative and at all reasonable times, to examine and copy all working papers supporting Concessionaire's annual financial statement. The State, acting through its representative, may conduct additional independent reviews of the concession operations upon written notification of such intent to City. Each concession contract will include a copy of this Agreement as an exhibit. No concession contract will include an expiration date beyond the expiration date of this Agreement. 8. TAXES By signing this Agreement, City acknowledges that occupancy interest and rights to do business on State property may create a possessory interest as that term is defined in Revenue and Taxation Code Section 107.6, which possessory interest may subject a concessionaire to liability for the payment of property taxes levied on such 11 DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 296 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement Marion Davies Beach House Operating Agreement I possessory interest. City and/or any concessionaire engaged by City shall pay all lawful taxes, assessments, or charges that may be levied by the State, County, City, or any tax or assessment levying body at any time upon any interest in or created by this Agreement, or any possessory right that City and/or any Concessionaire may have in or to the Premises covered hereby or the improvements thereon, by reason of City and/or any Concessionaire's use or occupancy thereof or otherwise, as well as all taxes, assessments, and charges on goods, merchandise, fixtures, appliances, equipment, and property owned by City and/or any Concessionaire in or about the Premises. 9. RECORDS AND ACCOUNTS A. At all times during the term of this Agreement, City shall keep separate, true, and complete books, records, and accounts of all income and fees received and all expenditures made by City in relation to concessions, events, special services, and all other matters incident to the development, control, and operation of the Premises. City shall report said income and expenditures to State in a manner acceptable to State on an annual basis, which annual report shall be submitted for the period commencing July 1st and ending June 30 th of each reporting year, and shall be filed with State no later than the following September 30th • In addition, within forty-five (45) days of the expiration or termination of this Agreement, City shall submit to State a statement of income and expenditures for the period of operation not previously reported, prepared as set forth above. B. City shall provide State with a monthly attendance report to include a reasonable monthly estimate of the number of visitors and vehicles to the Marion Davies Beach House. Such monthly report shall be submitted to State by the last business day of the following month. C. The books, records, and accounts applying to the operation of the Premises and kept by City shall be open for audit or inspection by State at all reasonable times. All records shall be kept by City for a period of at least four (4) years. City shall be subject to State's audit requirements and remedies as set forth herein. 12 ------------------ DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 297 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement Marion Davies Beach House Operating Agreement 10. UTILITIES AND SERVICES City shall be responsible for all expenses resulting from utilities supplied to the Premises. City shall be responsible for distribution systems and all related expenses within the Premises. 11. INSURANCE A. Liability Insurance: At its sole expense, City agrees to maintain in force during the term of this Agreement commercial general liability insurance, insuring against claims for injuries to persons or property occurring in, upon, or about Premises. Such insurance shall have limits of not less ONE MILLION DOLLARS ($1,000,000) for injuries to person or persons; not less than ONE MILLION DOLLARS ($1,000,000) for property damage; and said limits shall be per occurrence and shall be adjusted every five (5) years to reflect changes in the prior year's Consumer Price Index (CPI). 8. Fire Insurance: Fire insurance with extended coverage endorsements thereon on all improvements located on the Premises, whether furnished by State or constructed upon the Premises by City and/or any Concessionaire, in an amount equal to the full replacement cost and/or value thereof. This policy shall contain a replacement cost endorsement naming the City and/or any concessionaire as the insured provided that if there is a lender on the security of the improvements so insured, the proceeds of any such policy or policies may be made payable to such lender. C. State agrees that City, at City's option, may self-insure the coverage required by this Agreement. D. Each policy of liability insurance shall contain additional named insured endorsements in the name of the State of California, through its Department of Parks and Recreation, as to all insurable interests of the State including, but not limited to, the Premises and all contents as follows: 13 DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 298 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement Marion Davies Beach House Operating Agreement 1) State of California, its officers, employees, and servants are included as additional insured but only insofar as operations and facilities under this Agreement are concerned; 2) The insurer will not cancel or reduce the insured's coverage· without thirty (30) days prior written notice to State. E. No cancellation provision in any insurance policy shall diminish the responsibility of the City to furnish continuous insurance throughout the term of the Agreement. Each policy shall be underwritten to the satisfaction of the State. A signed Certificate of Insurance, with each endorsement required, including but not limited to State's additional insured endorsement, shall be submitted to State at the time this Agreement is executed, showing that the required insurance has been obtained. Further, at least ten (10) days prior to the expiration of any such policy, City shall submit to State a signed and completed Certificate of Insurance, with all endorsements required by this paragraph, showing, to the satisfaction of State, that such insurance coverage has been renewed or extended. Within fifteen (15) days of State's request, City shall furnish State with a signed and complete copy of the required policy and/or evidence of self-insurance. F. City agrees to impose the foregoing insurance requirements on any and all Concessionaires and shall require that State be named as an additional insured on all policies. Failure to provide any of the required insurance and/or endorsements shall constitute a material breach of this Agreement. 12. HOLD HARMLESS AGREEMENT City shall indemnify, hold harmless, and defend State, its officers, agents, and employees against any and all claims, demands, damages, costs, expenses, or liability costs, (including but not limited to attorneys fees, experts fees, and costs of suit), arising indirectly or directly out of the development, operation, or maintenance of the Premises by City, or in any way related to the performance of this Agreement by City, by reason of its acts or omissions relating to the Premises and/or its obligation pursuant to this Agreement and/or by reason of injury, death, property damage, or any claim arising from the alleged violations of any state or federal law, statute, or regulations, including 14 DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 299 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement Marion Davies Beach House Operating Agreement but not limited to the Americans with Disabilities Act of 1990 Titles I, II and Ill ["ADA"], however caused or alleged to have been caused, provided, however, in no event shall I City be obligated to defend or indemnify State with respect to the sole negligence or willful misconduct of State, its employees, or agents (excluding City herein, or ariy of its Concessionaires.). In the event State is named as co-defendant in a legal action under the _provisions of the Government Code Section 810 et seq., and served with process of such legal action, State shall immediately notify City of such fact and City shall represent State in such legal action as provided herein unless State undertakes to represent itself as co-defendant in such legal action, in which event State shall bear its own litigation costs, expenses, and attorney's fees. In the event judgment is entered against State and City because of the concurrent negligence of State and City, their officers, agents, or employees, an apportionment of the liability to pay such judgment shall be made by a court of competent jurisdiction. Neither party shall request a jury apportionment. 13. PROHIBITIONS AGAINST ASSIGNING, SUBLETTING This Agreement and/or any interest therein or thereunder shall not be assigned, delegated, mortgaged, hypothecated, or transferred by City without obtaining the prior written consent of State. 14. NOTICES Any notice and/or report required by this Agreement or that may be given by either party to the other shall be deemed to have been fully given when made in writing and deposited in the United States Postal Service, postage prepaid, and addressed as follows: City: City of Santa Monica 2600 Ocean Park Blvd. Santa Monica, CA 90405 Telephone: 310-458-8974 Fax: 310-399-6984 15 DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 300 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement Marion Davies Beach House Operating Agreement ' State: Department of Parks and Recreation Angeles District Office Copy to: 1925 Las Virgenes Road Calabasas, CA 91301 Telephone: 818-880-0360 Fax: 818-880-6165 Attn: District Superintendent · Department of Parks and Recreation Concession and Reservations Division P.O. Box 942896 Sacramento, California 94296-0001 Attn: Division Chief Telephone: 916-653-7733 Fax: 916-657-1856 Copies of any notices and/or reports by either party shall be provided to Foundation at the following address: Foundation: 10877 Wilshire Boulevard, Suite 1605 Los Angeles, California 90024 Attention: Managing Director Telephone: (310) 209-4560 Fax: (310) 209-1631 15. DEFAULTS AND REMEDIES A Unless a shorter time frame is provided otherwise herein, any failure by a party to this Agreement to observe or perform a provision of this Agreement, where such failure continues for one hundred eighty (180) days after written notice of such failure, shall constitute a default and breach of this Agreement. However, if the nature of the default is such that it cannot be reasonably cured within the one hundred eighty (180) day period, the offending party shall not be deemed to be in default if an effective cure is commenced within the one hundred eighty (180) period and thereafter diligently prosecuted to completion. 16 ,L DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 301 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement Marion Davies Beach House Operating Agreement B. Subject to the rights of the Foundation and State's covenants and agreements for the benefit of the Foundation as provided herein this Section 15, upon an event of default by City that continues after all applicable cure periods, State shall have the right to terminate this Agreement by thirty (30) days written notice to City and to obtain immediate possession of the Premises. In such event, State shall be entitled to all rights and remedies at law and/or in equity, including but not limited to, costs and expenses incurred by State in recovering possession of and/or restoring the Premises, and compensation for all detriment proximately caused by City's failure to perform its obligations under this Agreement. C. Upon an event of default by State that continues after all applicable cure periods and subject to the rights of the Foundation, City shall have the right to terminate this Agreement by thirty (30) days written notice to State and State shall obtain immediate possession of the Premises. In such event, City shall be entitled to all rights and remedies at law and/or in equity, including but not limited to, costs and expenses incurred by City in terminating this Agreement, and compensation for all detriment proximately caused by State's failure to perform its obligations under this Agreement. D. State acknowledges the Foundation as the provider of the funding under the Grant Agreement and as having a principal interest in the continuation of this Agreement and the rights of the City hereunder. The intent of the State and Foundation for the Premises is that it be operated as a public park and recreation facility, open and accessible to the public in perpetuity. To that end, State provides Foundation with the following remedies, and State covenants and agrees that State, on behalf of itself and all successors and assigns, will perform in accordance with the following: 1 ) Default by City: If the State retakes possession of the Premises, in case of default by City, Foundation shall have the following remedies: a) State will operate the Premises in accordance with the terms and conditions imposed on City in the Grant Agreement; or 17 ---------~ --------- DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 302 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement Marion Davies Beach House Operating Agreement b) If the State wishes to grant authority to operate the Premises in accordance with the terms and conditions imposed on City in the Grant Agreement to a third party, the third party will be mutually agreed upon by State and Foundation in their sole discretion, and until such agreement, State will comply with clause (1 a) of this Paragraph 15 D. 2) If the State intends to take any action to privatize the Premises through sale of the property by State: a) State shall pay to Foundation the then depreciated cost of the facilities placed, created, or developed pursuant to the Grant Agreement and utilizing Grant Funds on the Premises. b) The foregoing shall not preclude City and/or Foundation from pursuing the remedies provided in the Public Park Preservation Act of 1971 (California Public Resources Code Section 5400 et seq.), the California Environmental Quality Act (California Public Resources Code Section 21000 et seq.), and all other remedies afforded by law. E. During the term of this Agreement, in the event of destruction, loss, or damage by fire or other cause of any of the State-owned buildings, improvements, or fixtures located on the Premises that the City determines (1) to be essential to the continued operation of the contract and (2) cannot reasonably be repaired as mutually determined by the State, City, and Foundation, the City may terminate this Agreement or request an amendment to the Agreement allowing for phased or limited rebuilding, as long as the modified project is consistent with the primary goal of providing maximum recreational access to the public and approved in writing by the Foundation. A decision by the City to . terminate the Agreement under this provision or request an amendment to the Agreement shall be communicated in writing to State as soon as practicable. If the Agreement is so terminated, State shall be entitled to the proceeds payable under any applicable insurance policies pertaining to the loss as its interest may appear, and State shall pay to Foundation the then depreciated cost of the 18 DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 303 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement Marion Davies Beach House Operating Agreement facilities placed, created, or developed pursuant to the Grant Agreement and utilizing Grant Funds on the Premises up to the total value of the insurance proceeds. In the event that coverage is provided through the City's self- insurance program, the City shall consider the use of its then available self- insurance reserves to support rebuilding or repair of the Premises pursuant to this section. Receipt of such proceeds by State or Foundation shall be in addition to the right of State and Foundation to pursue whatever other remedies it may have to recover any losses due to the occurrence. F. During the term of this Agreement, if the Premises or any Improvements thereon belonging to State are taken in eminent domain, the entire award shall be paid to State, and State shall pay_ to Foundation the then depreciated cost of the facilities placed, created, or developed pursuant to the Grant Agreement and utilizing Grant Funds on the Premises up to the total value of the award. The foregoing shall not preclude City and/or Foundation from seeking an award from the taking authority for any losses of City and/or Foundation, including for the taking of City's and/or Foundation's improvements or fixture, equipment, or other property or interests that City and/or Foundation may be entitled to under Eminent Domain law and/or the Public Park Preservation Act of 1971(California Public Resources Code Section 5400 et seq.). G. The amount to be paid as "the then depreciated cost of the facilities" in the event of termination under this Paragraph 15 shall be based on a straight-line, one hundred (100) year capital recovery schedule, one hundred thousand dollars ($100,000) for each one hundred thousand dollars ($100,000) of beginning cost, multiplied by the remaining years of the contract (including extension options, as applicable). H. State agrees that the foregoing rights set forth in this Paragraph 15, as well as the other rights set forth in this Agreement, are for the direct benefit of Foundation, that Foundation is a third party beneficiary of the foregoing rights, that Foundation shall have the right to obtain specific performance of the foregoing obligations and that the foregoing rights shall survive any termination of this Agreement as a direct agreement with and for the benefit of the Foundation 19 DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 304 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement 'i ' Marion Davies Beach House Operating Agreement and shall run with the Premises for a period of one hundred (100) years from the date this Agreement is fully executed by the State. 16. SOVEREIGN IMMUNITY For all purposes of this Agreement, the State hereby waives all rights to claim the defense of sovereign immunity pertaining to issues arising out of or related to this Agreement. 17. TERMINATION The State and City shall not terminate this Agreement except to the extent set forth in Paragraph 15, Defaults and Remedies, and Paragraph 21, Nondiscrimination, hereof. 18. SURRENDER OF THE PREMISES; HOLDING OVER A Surrender: B. 1) On expiration or within thirty (30) days after earlier termination of this Agreement, City shall surrender the Premises to State with all fixtures and Improvements in good condition, except for fixtures, improvements, and Improvements that City is permitted by the State or obligated to remove. City shall remove all of its personal property and shall perform all restoration required by the terms of this Agreement within the above stated time unless otherwise agreed to in writing. 2) If City fails to surrender the Premises to State on the expiration, assignment, or within thirty (30) days after earlier termination of the term as required by this Paragraph, City shall hold State harmless for all damages resulting from City's failure to surrender the Premises. Holding Over: After the expiration or earlier termination of the term and if City remains in possession of the Premises with State's express consent, such possession by City shall be deemed to be a temporary tenancy terminable on thirty (30) days written notice given at any time by either party. All provisions of 20 DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 305 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement Marion Davies Beach House Operating Agreement this agreement except those pertaining to the term shall apply to the temporary tenancy. 19. REAL PROPERTY ACQUISITION It is understood and agreed to by the parties that all applications for real property rights, appurtenant to the Premises, shall be made in the name of and on behalf of State, and shall be subject to the prior written approval of State, which the State will not unreasonably withhold, condition, or delay. Any disapproval by the State shall set forth in writing specific reasons therefore. The failure to so disapprove (with a reasonably detailed explanation) within ten (10) business days after request for approval is received . · in writing by State will be deemed to be the state's approval of such request. 20.. COMPLIANCE WITH LAWS, RULES, REGULATIONS, AND POLICIES City shall comply with all applicable laws, rules, regulations, and orders existing during the term of this Agreement, including obtaining and maintaining all necessary permits and licenses. City atknowledges and warrants that it is, or will make itself, through its responsible managers, knowledgeable of all pertinent laws, rules, ordinances, regulations, or other requirements having the force of law affecting the operation of the Premises, including but not limited to laws affecting health and safety, hazardous materials, pest control activities, historical preservation, environmental impacts, and building standards. 21. NONDISCRIMINATION Pursuant to Public Resources Code Section 5080.34, this Agreement and every contract on lands that are subject to this Agreement shall expressly prohibit discrimination against any person because of sex, sexual orientation, race, color, religious creed, marital status, ancestry, national origin, medical condition, age (40 and above), and disability (mental and physical) including HIV and AIDS. City shall comply with the provisions of the Fair Employment and Housing Act (Gov. Code, §12900 et seq.) and the applicable regulations promulgated thereunder (Cal. Code Regs, tit. 2, §7285.0 et seq.). The applicable regulations of the Fair 21 , DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 306 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement ' . Marion Davies Beach House Operating Agreement Employment and Housing Commission implementing Government Code, §12990 (a)-(f), are incorporated into this agreement by reference and made a part hereof as if set forth in full (Cal. Code Regs, tit. 2, §7285.0 et seq.). City shall give written notice of their obligations under this clause to labor organizations with which they have a collective • bargaining or other agreement. City shall include the non-discrimination and compliance provisions of this clause in all contracts to perform work under and/or in connection with this agreement. In the event of violation of this paragraph, and subject to the rights under Paragraph 15, Defaults and Remedies, State will have the right to terminate this agreement, and any loss of revenue sustained by the State by reason thereof shall be borne and paid for by City. 22. ACCESSIBILITY LAWS With regard to all operations and activities that are the responsibility of City under this Agreement, and without limiting City's responsibility under this Agreement for compliance with all laws, City shall be solely responsible for complying with the requirements of the Americans with Disabilities Act of 1990 (ADA) (Public Law 101-336, commencing at Section 12101 of Title 42, United States Code, including Titles I, II, and Ill of that law), the Rehabilitation Act of 1973, and all related regulations, guidelines, and amendments to both laws. · With regard to facilities for which City is responsible for operation, maintenance, construction, restoration, or renovation under this Agreement, City also shall be responsible for compliance with Government Code Section 4450, et seq., Access to Public Buildings by Physically Handicapped Persons, and Government Code Section 7250, et seq., Facilities for Handicapped Persons, and any other applicable laws, regulations, guidelines and successor statutes. Such compliance shall be at City's sole cost and expense. Written approval from State is required prior to implementation of any plans to comply with accessibility requirements. 22 DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 307 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement Marion Davies Beach House Operating· Agreement 23. UNION ORGANIZING City shall not use the Premises to hold a meeting with any employee(s) or supervisor(s) if. the purpose of the meeting is to assist, promote, or deter union organizing. This provision does not apply if the Premises are equally available, without charge, to the general public for holding a meeting. Breach of this provision shall subject City to civil penalties and damages pursuant to California Government Code §§ 16645.5 and 16645.8. 24. NATIONAL LABOR RELATIONS BOARD CERTIFICATION By signing this Agreement, City does hereby swear, under penalty of perjury, that•· no more than one final, unappealable finding of contempt of court by a federal court has been issued against City within the two-year period immediately preceding the date of this Agreement because of City's failure to comply with a federal court order that City shall comply with an order of the National Labor Relations Board. 25. DRUG-FREE WORKPLACE City agrees to comply with Government Code Section 8355 in matters relating to the provision of a drug-free workplace. This compliance is evidenced by the executed Standard Form 21, Drug-Free Workplace Certification, attached hereto as Exhibit C. 26. ENVIRONMENTAL AWARENESS AND RESOURCE PROTECTION City shall comply with State's resource management and preservation mandates in the conduct of all activities that impact cultural, natural, or scenic resources. These mandates include, but are not limited to, the California Public Resources Code Sections 5024 and 5097 et seq., State's Resource Management Directives, and the Historic Ordinances and Laws. 27. HAZARDOUS SUBSTANCES A. On the Premises City shall not: 1) keep, store, or sell any goods, merchandise, or materials that are in any way explosive or hazardous; 23 • • DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 308 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement Marion Davies Beach House Operating Agreement 2) carry on any offensive or dangerous trade, business, or occupation; 3) use or operate any machinery or apparatus that shall injure the Premises or adjacent buildings in any way; or 4) do anything other than is provided for in this Agreement. B. Nothing in this paragraph shall preclude City from bringing, keeping, or using on or about said Premises such materials, supplies, equipment, and machinery as is appropriate or customary in the care, maintenance, administration, and control of parklands. Gasoline, oils, and all other materials considered under law or otherwise to be hazardous to health and safety shall be stored, handled, and dispensed as required by present or future regulations and laws. C. City shall comply with all laws, federal, state, or local, existing during the term of this Agreement pertaining to the use, storage, transportation, and disposal of any hazardous substance, as that term is defined in such applicable law. In the event the State or any of its affiliates, successors, principals, employees, or agents should incur any liability, cost, or expense, including attorney's fees and costs, as a result of the City's illegal use, storage, transportation, or disposal of any hazardous substance, including any petroleum derivative, City shall protect, indemnify, defend, and hold harmless any of these individuals against such liability. Where City is found to be in breach of this provision due to the issuance of a government order directing City to cease and desist any illegal action in connection with a hazardous substance, or to remediate a contaminated condition directly caused by City or any person acting under City's direct control or authority, City shall be responsible for all costs and expenses of complying with such order including any and all expenses imposed on or incurred by the State in connection with or in response to such government order. D. Notwithstanding the foregoing, in the event a government order is issued naming City, or City incurs any liability during or after the term of the Agreement in connection with contamination that preexisted the City's obligations and occupancy under this Agreement, or prior agreements or that were not directly 24 DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 309 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement Marion Davies Beach House Operating Agreement caused by City, the State shall be solely responsible as between City and State for all expenses and efforts in connection wherewith, and State shall reimburse City for all reasonable expenses actually incurred by City therewith. E. City shall develop an Integrated Pest Control Management Plan as· part of the Operations Plan developed pursuant to the Grant Agreement. Said plan shall provide for the ongoing maintenance and control of any and all pests that may cause damage to the Premises. City or the pest control business acting on behalf of City shall submit a report of completed work for each pest management action to the State. The report may be submitted on a DPR 191, Pest Control Recommendation, or equivalent. 28. SIGNS AND ADVERTISING All signs, logos, names, placards, or advertising matter shall be inscribed, painted, or affixed upon Premises shall be in compliance with State law and shall receive prior written approval of the State. Approval will be granted only when said signs or marketing materials ·are consistent with the purposes of this Agreement. All signs will include the logo and recognition of California State Parks and will be approved by State. State recognizes and assents to the Foundation's right, as donor, to approve and have installed permanent signage recognizing its donation pursuant to the Grant Agreement. 29. INTELLECTUAL PROPERTY RIGHTS Any names, logos, trademarks, and/or copyrights developed during and/or pursuant to this Agreement that in any way associate, identify, or implicate an affiliation with California State Parks shall be approved by State for use, shall belong to State upon creation, and shall continue in State's exclusive ownership upon termination of this Agreement. Any works developed by City pursuant to this Agreement, including all related copyrights and other proprietary rights therein, shall belong to State upon creation, and shall continue in State's exclusive ownership upon termination of this Agreement. These works shall include, but are not limited to, all drawings, designs, reports, 25 DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 310 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement Marion Davies Beach House Operating Agreement specifications, notes, and other work developed in the performance of this Agreement. Upon request, City shall deliver to State the disk or tape that contains the design files of any work that is performed with the assistance of Computer Aided Design and Drafting Technology, and shall specify the supplier of the software and hardware necessary to use said design files. City intends and agrees to assign to State all rights, title, and interest in and to such materials as well as all related copyrights and other proprietary rights therein, unless otherwise agreed to in writing. City warrants that it is the sole exclusive owner and has the full right, power, and authority over all tangible and intangible property deliverable to State in connection with this Agreement, and that title to such materials conveyed to State shall be delivered free and clear of all claims, liens, charges, judgments, settlements, encumbrances, or security interests. City agrees not to incorporate into or make any deliverables dependent upon any original works of authorship or Intellectual Property Rights of third parties without (1) obtaining State's prior written permission, and (2) granting to or obtaining for STATE a nonexclusive, royalty-free, paid-up, irrevocable, perpetual, world-wide license to use, reproduce, sell, modify, publicly and privately perform, publicly and privately display, and distribute, for any purpose whatsoever, any such prior works. City further warrants that all deliverables do not infringe or violate any patent, copyright, trademark, trade secret, or any other intellectual property rights of any person, entity, or organization. City agrees to execute any documents reasonably requested by State in connection with securing State's registration of patent and/or copyrights or any other statutory protection in such work product including an assignment of copyright in all deliverables. City further agrees to incorporate these provisions into all of its contracts with architects, engineers, and other consultants or contractors. City, at its sole expense, shall hold harmless, protect, defend, and indemnify State against any infringement action and/or dispute brought by a third party in connection with any deliverable hereunder. City shall pay all costs, expenses, losses, damages, judgments, and claims including reasonable attorney's fees, expert witness fees, and other costs. 26 -------~-~----- DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 311 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement • Marion Davies Beach House Operating Agreement 30., CHILD SUPPORT COMPLIANCE ACT A. City recognizes the importance of child and family support relating to child and family support enforcement, including, but not limited to, disclosure of information and compliance with earnings assignment orders, as obligations and shall fully comply with all applicable state and federal laws provided in Chapter 8 (commencing with section 5200) of Part 5 of Division 9 of the Family Code. 8. To the best of its knowledge City is fully complying with the earnings assignment orders of all employees and is providing the names of all new employees to the New Hire Registry maintained by the California Employment Development Department. 31. DISPUTES City shall continue with any and all responsibilities under this Agreement during any dispute. 32. LIMITATION This Agreement is subject to all valid and existing contracts, leases, licenses, encumbrances, and claims of title that may affect Premises. 33. PARAGRAPH TITLES The paragraph titles in this Agreement are inserted only as a matter of convenience and reference and in no way define, limit, or describe the scope or intent of this Agreement or in any way affect this Agreement. 34. AGREEMENT IN COUNTERPARTS This Agreement is executed in counterparts, each of which shall be deemed an original. 27 DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 312 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement Marion Davies Beach House Operating Agreement 35. AGREEMENT IN WRITING This Agreement contains and embraces the entire Agreement between the parties hereto and neither it nor any part of it may be changed, altered, modified, limited, or extended orally or by any Agreement between the parties unless such· · Agreement be expressed in writing, signed, and acknowledged by the State and City or their successors in interest. 36. INSPECTION State or its authorized representative shall have the right at all reasonable times to inspect the Premises to determine compliance with the provisions of this Agreement. 37. SUCCESSORSININTEREST Unless otherwise provided in this Agreement, the terms, covenants,·and . . . . conditions contained herein shall apply to and bind the heirs, successors, executors, administrators, and assigns of all the parties hereto, all of who shall be jointly and severally liable _hereunder. 38. PARTIAL INVALIDITY If any term, covenant, condition, or provision of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenf~rceable, the remainder of the provisions hereof shall remain in full force and effect and shall in no way be affected, impaired, or invalidated thereby. 39. TIME OF ESSENCE Time shall be of the essence in the performance of this Agreement. 40. DURATION OF PUBLIC FACILITIES By entering into this Agreement, State makes no stipulation as to the type, size, location, or duration of public facilities to be maintained at this unit, or the continuation of State ownership thereof, nor does the State guarantee the accuracy of any financial or other factual representation that may be made regarding the Premises. 28 DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 313 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement Marion Davies Beach House Operating Agreenie~t 41. WAIVER OF RIGHTS, CLAIMS, AND AGREEMENT TERMS Unless otherwise provided by this Agreement, no waiver by e_ither party at any time of any of the terms, conditions, or covenants of this Agreement shall be de~med as .a waiver at any time thereafter of the same or of any other term, condition, or covenant herein contained, nor of the strict and prompt performance thereof. No delay, failure, or omission of the State to re-enter the Premises or to exercise any right, power, or privilege, or option arising from any breach, nor any subsequent acceptance of rent then or thereafter accrued shall impair any such right, power, privilege, or option, or be construed as a waiver of such breach or relinquishment of any right or acquiescence therein. No notice to the City shall be required to restore or revive time as of the essence after.the waiver by the State of any breach. No option, right, power, remedy, · or privilege of the State shall be construed as being exhausted by the· exercise thereof in one or more instances. · The rights, powers, options, and remedies given to the State . by this Agreement shall be deemed cumulative. 42. INTERPRETATION OF AGREEMENT This Agreement is made under and is subject to the laws of the State of California in all respects as to interpretation, construction, operation, effect, and performance. 43. iNDEPENDENT CONTRACTOR In the performance of this Agreement, City and the agents and employees of City shall act in an independent capacity and not as ,officers or employees or agents of the State. 44. MODIFICATIONS AND APPROVAL OF AGREEMENT Notwithstanding any of the provisions of this Agreement, the parties may hereafter, by mutual consent expressed in writing, agree to modifications thereof, additions thereto, or terminations thereof, which are not forbidden by law. This 29 DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 314 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement NITIAL WORKING ASSUMPTIONS Economic * 415 PCH will be a publicly financed project. The City may also consider private funding sources as long as there is signi1icant public access, con· trol, and use of the site. ·k A reasonable assumption about initial capital lnve·stment by the City is up to $2.5 million. ·* While the goal of 415 PCH is financial self-suffi• cie111cy, City subsidies may be considered if the site provides a significant public benefit. 'A' The site will remain in public ownership and City control, bu• there may be involvement of the pri· vate sector. provided the private use is consistent with, an overall public purpose. Regulatory ·,t· The North House will be preserved. Consideration will be gi.,.en to preserving the pool and the adaptive re-use of other buildings, if doi11g so is economically feasible and consistent with the development plan. The existing restau- rant will be retained in its location. ·,i.: Any new development at 415 PCH will follow all existing local and State planning and zoning starndards. including the requirements of Proposition S. Amendments to these regulations and Y,e voter initiative will only be considered in order to achieve an extraordinary public purpose. ·t.; A minimum of 168 parlking spaces will be required to support the existing public use. ,, !,' Intensity of Use ;~· The City will seek to secure approval for a traffic signal or half signal on PCH, and any develop- ment plan that involves a significant increase in vehicular traffic will require a traffic signal or half signal. •;c, Development •intensity" (i.e., amount of floor area. parking. building sizes and heigllts) ,~ill be addressed in the context of specific project concepts. Uses of the Site -.~-The open space character of the site will be * Uses that meet local needs will be emphasized, b emphasized, including places that provide ut balanced with the site's role as a regional relief from the sun and sand. resource. i-.: Both civic and commercial uses will be evaluat- ed regarding the extent to which they provide public benefit. * Use of the site will emphasize its coastal loca- tion. * The site will combine pUtblic recreation uses which maximize its unique character and con- sider compatibility with the neighborhood. Design and Urban Form * Site design (i.e., the arrangement of buildings, landscaping and site amenities and their rela• tionship to surrounding develop,ment and the beach) will be addressed in the 1:::011te.~t of spe- cific project concepts. * Site design will be environrner1tally sensitive and incorporate model sustainability develop• ment practices. '.ii' Uses at the site will serve a diverse public and provide a broad array of facilities and services to reflect the socio-economic needs of the regional population. ·Jr; Site design will allow for the inckision of public art either by incorporation in, the design process or by a separate public art component. -;,. The site will be used during; the day and evening, on weekends and throughout the year. 6 DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 325 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the PROCESS t-a.. w (/} t-u 0 Analyze site, site history, opportunities and conslraints > 0 z The City Council appointed a 415 PCH Working Groupi to develop a recommendation for the use of 415 PCH. The Working Group members are: Ken Genser, Co-Chair (City Council) M/cflael Feinstein, Co-Chair (City Council) Mar;got Alofsin (Landmarks Commission) Ken Breisch (Planning Commission) Susan WI/son (Recreation and Parks) Sergio Zeba/Jos (Architectural Review Board) (.) w 0 z <( ., Development or four Conceptual Alternatives CJ UJ LL I u ..J 0::: 0::: <t: a.. ~ <( Development of Preferred Alternative The consultants hired by the City to develop the alternatives are: Mou/e & Po/yzoides, Architects and Urbanists (Planning and Design) Landmark Partners (Economic Consultant) Kaku Associates, Inc. (Traffic Etigi11eer) Staff support was provided by the City's Department of Community and Cultural Services. w >-z <t: :::,. ~ .., Review of Preferred Alternative by City Boards ands Commissions ~ ::J l \i<"lU """) l ~l'1<t Presenlation lo City Council Process 1/me/ine The Working Group began meP.ting in September of 1997 and met a1oproxirnatel~· twice a month. Meetings were publicly post- ed and advertised, and more th an 150 peo- ple attended these meetings and participat- ed in public input opportunities. The Working Group spent four sessions studying the site, its histmy. an,d its various possibilities and restrictions. The results of these meetings were present ed in an open house on NovemtJter 15, 1997. The Working Group then developed four dif- ferent alternatives and presented them February 1. 1998 at a communi1y workshop. A final preferred scheme was then developed and is presented in this report. 7 DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 326 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the RECOMMENDED SCHEME PROJECT FINANCING DEVELOPMENT COSTS ANNUAL OPERATING COSTS 1. City Operation. City staff handles al• opoerat,uns. The total capital cost for the Recommended Unlike most City park and community facilities, 2. Ew-Profit Lessee. City leases builcling to a woiessicr· Scheme is approximately $9.5 million. which are fully subsidized by the City, the al banquet operator but directly operates •ecrcalio11 Recommended Scheme inclu,ctes several rev-uses. Lease Is based on a ,n;nirnurn rent plus percen'.- Propo:sed funding sources include: enue sources to offset most, but not all, annual age rent. A one-time capital coritrib:Jtion is also * A City capital contribution of about $2.5 million; operating costs: assumed. * Public debt financing 3. ewt=il2lliill Ma!Jiilil:rJlS:nl !:&Imai;1. Cit"( hires a pro- * Parking. 300 spaces are provided. Revenues fessional banquet manager for an an11ual · 'ee and Cly assume 65% validation (Nortll House, Main manages recreation uses directly. Use of Funds Amount Building &nd Visitor Center) a11d 35% non-vali- dation. Parking revenues are projected to Net Main Building Scenarios !Restore North House $1,189,500 exceed parking operating costs. Revenue& '1,1ain Biuilding Rehab 1,500,000 City Ops Lessee Prof. Mgr rv'isitor Center 600,000 * North House. Meeting cenuer focusing on Concession Stands 75,000 non-profit and community uses. Meeting room Parking $218,369 $218.369 $218,369 Restore Pool/Pool House 590,000 rentals are projected to exceed operating North House 14,850 14,850 14,850 Park/Rec.Areas/Pkg Lots 1,463,500 Visitor Ctr. 90,000 90,000 90,000 Site Prepl\Jtill1ies ~ expenses. Concessions 5,0,000 50,000 50,000 Subtotal 6,128,820 Recreation (367,437) (367,437) (367,4371 Contingency @10% 6,123,881 * Visitor Center. Lease to a Federal or State Main Indirect Costs@25% 1,685,426 agency. such as the National Park Service and Buildino $520,313 $500,00 S545,875 Add'I Kitchen Cost 500,000 the California Department of Parks and i:urn., Fixtures & Equip. §.QQJlQ.Q Recreation. Rental income is ,projected to TOTAL $526.095 $505,782 S551,657 Total Capital Cost sa l22Z 1211 exceed City's operating costs. Less Annual • Financing Costs 780,792 * Beach Concessions. Lease revenues from Debt concessionaires for beach amenities and food Service' (640,105) (594,560) (640105'1 TOTAL PROJECT COST $10.307,919 are projected to exceed concession operating Less Existing costs. Par1ting Revenues (110500 (110,500,l (110 500) * Recreation Uses. Use fees for the pool help Sources of Funds Amount City Ca1pital Contribution S2,500.00 offset, but do not completely pay for staffing NET ::land/Debt Financina 7 807 919 and other operating costs of the pool, park, play SURPLUS TOTAL $10,307,919 fields and volleyball courts. l(DEFIC!TI (224,510) (199 27B) (198,948) * The Main Building. The banquet and meeting • Lessee Operation cl the Main Bu,ld,ng assu'Tles a one-:ine facility will be the project's pri;ncipal revenue $500,000capilal co11tribution wt-ich ,edtJCes the Cit;-'s a,•n~•al source. Three operating scenarios are possible, debt service. C•ty debt service assu-nes 25-year t:ion<Js el e !>% 1nteresl each with a different net revenue result: 16 DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 335 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Marion Davies Beach House Operating Agreement ~, EXHIBIT C -STD 21, DRUG-FREE WORKPLACE CERTIFICATION STATE OF CALIFORNIA DRUG1-FREE WORKPLACE CERTIFICATION STD. 21 (Rev. 12/93JICA ST PKS, EXCEL 4/9/1999) . CERTIFICATION I, the official named below, hereby swear that I am duly authorized to legally to bind the contractor or grant recipient to the certification described below. I am fully aware that this certification, execute<! on the date below, is made under penalty of perjury under the laws of the State of California. CONTRACTOR/BIDDER FIRM NAME FEDERAL ID NUMBER BY IAulhorizld Signaturo) DATE EXECUTED PRINTED NAME ANO TITLE OF PERSON SIGNING TELEPHONE NUMBER (Include Af9a Code) ( ) TITLE CONTRACTOR/BIDDER FIRM'S MAILING ADDRESS The contractor or grant recipient named above hereby certifies compliance with Government Code Section 8355 in matters relating to providing a drug-free workplace. The above named contractor or grant recipient will: I~ Publish a statement notifying employees that unlawful manufacture, distribution, dispensation, possession, or use of a controlled substance is prohibited and specifying actions to be taken against employees for violations, as required by Government Code Section 8355(a). 2. Establish a Drug-Free Awareness Program as required by Government Code Section 8355(b), to infonn employees about all of the following: (a) The dangers of drug abuse in the workplace, (b) The person's or organization's policy in maintaining a drug-free workplace, (c) Any available counseling, rehabilitation and employee assistance programs, and ( d) Penalties that may be imposed upon employees for drug abuse violations. 3. Provide as required by Government Code Section 8355(c), that everyone who works on the proposed contract or grant: (a) Will receive a copy of the company's drug-free workplace policy statement, and (b) Will agree to abide by the terms of the company's statement as a condition of employment on the contract or grant. 4. At the election of the contractor or grantee, from and after the "Date Executed" and until (NOT TO EXCEED 36 MONTHS), the state will regard this certificate as valid for all contracts 1or 1grants entered into between the contractor or grantee and this state agency without requiring the contractor or grantee to provide a new and individual certificate for each contract or grant. If the contractor or grantee elects to fill in the blank date, then the tenns and conditions of this certificate shall have the same force, meaning, effect and enforceability as if a certificate were separately, specifically, and individuaJly provided for each contract or grant between the contractor or grantee and this state agency. C-1 ------------------ DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 337 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement AGREEMENT NO. 11238 (CCS) Exhibit 5. Request for Proposals DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 338 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement CITY OF SANTA MONICA BEACH CAFE AND EQUIPMENT RENTAL CONCESSION REQUEST FOR PROPOSALS Community Services RELEASE DATE: September 7, 2021 DEADLINE FOR QUESTIONS: September 17, 2021 RESPONSE DEADLINE: October 18, 2021, 5:00 pm APPROVED FOR ADVERTISEMENT CITY CONTACT: Joyce Perez DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 339 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement City of Santa Monica Request for Proposals BEACH CAFE AND EQUIPMENT RENTAL CONCESSION Table of Contents 1. Introduction 2. Scope of Work 3. Vendor Questionnaire 4. Evaluation Criteria 5. Award Process 6. Terms & Conditions Attachments: A - Proposer Checklist B - Non-Discrimination Policy, Debarment Certification & Non-Collusion Declaration C - Lease Area D - FY21-22 Living Wage Certification E - Oaks Intitiative Disclosure Form F - Sample Concession Agreement G - Certificate of Compliance H - Insurance Requirements I - Sustainable & Healthy Food Purchasing Guidelines J - Performance Bond DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 340 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement City of Santa Monica Community Services Request for Proposals BEACH CAFE AND EQUIPMENT RENTAL CONCESSION 1 INTRODUCTION 1.1 Summary The City of Santa Monica, (referred to hereafter as “the City”) is inviting proposals from qualified persons or firms interested in providing food and beach equipment rental services at the Annenberg Community Beach House at Santa Monica State Beach for an initial term of ten (10) years with one (1) option for renewal of five (5) years, to be exercised at the City’s sole discretion. 1.2 Background The City operates the Annenberg Community Beach House (“Beach House”) at Santa Monica State Beach under an Operating Agreement by and between the State of California and the City. The mission of California State Parks is to provide for the health, inspiration, and education of the people of California by helping to preserve the state’s extraordinary biological diversity, protecting its most valued natural and cultural resources, and creating opportunities for high-quality outdoor recreation. The City agrees to develop, operate, control, and maintain the Premises at its own cost and expense as a public recreation facility with related concessions and/or other facilities accessible and subject to the use and enjoyment of the general public. 1.3 Contact Information The City has designated Joyce Perez, as its contact (the “City Contact”) for this request for proposals (this “RFP”). The City Contact’s information is listed below: Any inquiries or requests regarding this procurement should be submitted via ProcureNow. Other City officers, agents, employees or representatives do not have authority to respond on behalf of the City. Contact with unauthorized City personnel during the selection process may result in disqualification. Project Contact: Joyce Perez Sr. Administrative Analyst 415 Pacific Coast Highway Annenberg Community Beach House Santa Monica, CA 90402 Email: joyce.perez@santamonica.gov Phone: (310) 458-2201 Ext: 5144 Procurement Contact: Joyce Perez Sr. Administrative Analyst DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 341 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement City of Santa Monica Community Services Request for Proposals BEACH CAFE AND EQUIPMENT RENTAL CONCESSION 415 Pacific Coast Highway Annenberg Community Beach House Santa Monica, CA 90402 Email: joyce.perez@smgov.net Phone: (310) 458-2201 Ext: 5144 Department: Community Services Department Head: Andy Agle Director of Community Services 1.4 Timeline Proposal Calendar The following is a list of key dates: Release Project Date September 7, 2021 Question Submission Deadline September 17, 2021, 12:00pm Question Response Deadline September 24, 2021, 12:00pm Proposal Submission Deadline October 18, 2021, 5:00pm Final Candidate Interviews TBD Staff Recommendation Made to Council for Bid Award TBD Start Date of Contract TBD 2 SCOPE OF WORK Insert detailed statement/scope of work and deliverables including reporting requirements. List the criteria that must be met and that will be used to score and evaluate the proposals. DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 342 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement City of Santa Monica Community Services Request for Proposals BEACH CAFE AND EQUIPMENT RENTAL CONCESSION 2.1 Goal of this Request for Proposals (RFP) The goal of this RFP is to award a concession contract to an individual or business entity to develop, operate, and maintain food and beach equipment rental services to enhance the visitor recreational experience at the Beach House. 2.2 Objectives of this RFP • Concessions must be distinct and clearly unique to Santa Monica Beach culture, and celebrates its rich history, active lifestyle, sustainability, and accessibility. This includes menus, concept(s), and creativity. The City does not want a generic enterprise; food, beverages, and retail and rental items, shall reflect the City of Santa Monica, its values, lifestyle and environment. • If brands are to be used, they should be local and consistent with the goal outlined above. • The City seeks to optimize food, beverage and retail revenue for the City, not through high prices to customers but through elevating the use of the café by beach -goers and local residents on a year-round basis to the fullest extent possible and practical. • In order to optimize revenues on a year-round basis, the concessionaire should provide reasonable prices, excellent cost-value perception, high quality, use of fresh ingredients wherever possible and hopefully not just be a place to get a sandwich and a drink when at the beach, but food and beverage locations that visitors have heard and read about and look forward to using as part of the Santa Monica beach visit. If local residents find these attributes they are more likely to use these facilities and support year-round use. • Retail and rental items offered should be of high quality, well made, have a Santa Monica beach experience theme, well-maintained and fairly priced in order to optimize usage and revenues. • Proposers should review the City of Santa Monica's Sustainable and Healthy Food Purchasing Guidelines in the Attachment I of this RFP and be certain that these goals are addressed to the fullest extent possible and practical. 2.3 Site History and Description The City is responsible for the operation and enhancement of Santa Monica’s most recognized and intensely used public space – Santa Monica State Beach. Five acres of this prized public resource is the Annenberg Community Beach House, a unique community beach and event facility. Located north of the Santa Monica Pier at 415 Pacific Coast Highway, the Beach House at Santa Monica State Beach incorporates historic elements of the former Marion Davies Estate with relatively new and modern additions. The site, which is open year-round, has something for everyone, including spectacular views, community & cultural events, and amenities such as the splash pad, playground, gallery, beach courts & fields, Marion Davies Guest House, historic pool, free wi-fi and the adjacent café. DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 343 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement City of Santa Monica Community Services Request for Proposals BEACH CAFE AND EQUIPMENT RENTAL CONCESSION Due to its prime location, first-class amenities, and rich history, this one of- a kind public beach facility has become a popular destination for those seeking a quintessential Southern Californian experience - "an easy day at the beach." 2.4 Beach House Facilities The Beach House is available to rent year-round for social and corporate events and meetings, and film and photo shoots that may provide opportunities for catering services from the concessionaire or other caterers on the approved list. Catering license fe es are different from the rental percentage and are subject to current percentages imposed on the approved caterers. A varied schedule of cultural programs, classes, docent tours of the Marion Davies Guest House, art exhibits and recreational amenities are offered to the public year- round. During the summer, amenities and programs including summer inspired classes, the pool, Monday Fun Day, Game Room, annual events such as the Community Picnic and Cardboard Yacht Regatta may provide additional and unique concession opportunities. 2.5 Beach Café Currently known as Back on the Beach Café, the existing restaurant at 445 Pacific Coast Highway has been managed by an independent operator. The café currently provides daily indoor and outdoor food service year-round, with possible closures on Thanksgiving Day and Christmas Day. Its casual atmosphere, ocean views, and the rare opportunity to dine on the sand make it a favorite of locals and visitors alike. The concessionaire will be required to operate the existing beach café for sit-down food service beginning in TBD 2021 and throughout the term of the ten-year contract. The concessionaire will also be required to provide take-away food service from the beach café and beach-related equipment rentals and catering services for special events and meetings held on the site. The concessionaire shall be responsible for all tenant improvements to the building and for providing all interior decor. 2.6 Beach Concession Building A beach concession building of approximately 1,000 square feet is located at the north end of the site near the beach volleyball courts and large area of sand. The concessionaire has access to the 210 square foot concession room with a 31 square foot restroom; the remaining area of the building is occupied by Beach Maintenance. The concessionaire will be responsible for making all tenant improvements to the concession room needed to provide equipment rentals, such as beach chairs and umbrellas, to the beach-going public. DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 344 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement City of Santa Monica Community Services Request for Proposals BEACH CAFE AND EQUIPMENT RENTAL CONCESSION 2.7 Description of Concession Operations This section is intended to provide prospective proposers an overview of the current and proposed services covered in this RFP. Gross Sales and Rent: The City of Santa Monica does not disclose gross sales information for individual businesses; rent revenue for beach concessions is public information and is included is the City’s annual budget documents. The amounts below include rents paid by the current concession operation. Fiscal Year Rent Paid to the City FY 2013-14 $242,354 FY 2014-15 $266,687 FY 2015-16 $297,807 FY 2016-17 $313,508 FY 2017-18 $352,956 Outdoor Seating: Outdoor seating is flexible based on operator set-up within defined space and boundaries. Gross Square Footage of Building (est.) Café: 3,770 sq.ft Concession Building: 210 sq. ft. Operating Days & Hours Café • Daily: Opening at 8AM • Closing will change per season, allowing for breakfast and lunch at minimum and dinner May through September • Concession may close Thanksgiving Day, Christmas Day and New Year’s Day Equipment Rentals • April – September: Daily, hours to be mutually agreed upon with Beach House management relative to Beach House operating schedule • October – March: Upon demand during business hours • Concession may close Thanksgiving Day, Christmas Day and New Year’s Day The City will work with the concessionaire as it relates to the above days and hours during inclement weather and/or other unusual or out-of-the-ordinary circumstances that affect operations. Concessionaire may open longer hours and extended days at concessionaire’s option, subject to prior written approval of the City. Building Description: See photos and floorplans of the current buildings in Lease Area, Attachment C of this RFP. Note that all equipment, furniture and fixtures are the property of the incumbent concessionaire and are not part of the as-is condition provided by the City. DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 345 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement City of Santa Monica Community Services Request for Proposals BEACH CAFE AND EQUIPMENT RENTAL CONCESSION Menu, Retail/Rental & Pricing: High quality, healthy, reasonably priced sandwiches, salads, beverages, desserts, snack items, retail and rental items found in similar operations in Santa Monica area and other similar beach environments. Healthy menu options and menu items consistent with the City of Santa Monica’s Sustainable and Healthy Food Purchasing Guidelines included as Attachment I of this RFP, and a children’s menu (with pricing and portions) are very important. Pricing must be reasonable, provide excellent price-value, and be set at levels that optimize customer counts and participation. Parking: Parking is available year-round on a first come, first served basis. Park & Pay machines are located in each section of the lot. The City will provide a limited number of monthly parking passes for the concessionaire’s employees based on the City’s pre-approved number of passes. Build-Out and Minimum Capital Investment: The City will provide the buildings in an as- is condition. Personal property, furniture, equipment, and signage installed by the current concessionaire remains the property of the current concessionaire and will be removed. Concessionaire will be responsible for building-out the interior as well as any exterior renovations, all of which are to be ADA compliant, at operator total cost and expense. All design, equipment, furnishings, signage, etc. shall be subject to the prior review and approval of City Departments, Boards and Commissions. When installed, ownership of all improvements will revert to the City. Equipment: Concessionaire will provide all required Loose Equipment, including, but not necessarily limited to pots, pans, utensils, table ware, point of sale system, menu boards, office equipment, safe, retail fixtures, bikes, skates, etc. Concessionaire will retain ownership to all Loose Equipment. Architectural Guidelines: The City, in its proprietary capacity, reserves the right to review all proposed build-out, renovation and remodeling to the buildings and all such work must be representative of the character of Santa Monica State Beach. All proposed improvements must comply with applicable law. 2.8 Minimum Agreement Requirements & Qualifications This ten (10) year concession agreement with one (1) option for renewal of five (5) years will provide for the operation of food service and beach equipment rental services at the Beach House. The intent of the concession agreement is to provide the public with high-quality, reasonably priced food service in an authentic manner and atmosphere that enhances the visitor’s experience and the natural and cultural resources of the Santa Monica State Beach. The following is a summary of important concession agreement provisions. It is critical for proposers to understand all the terms and conditions of the Sam ple Concession Agreement included herein as Attachment F. The successful proposer shall be expected to accept the provisions of the Sample Concession Agreement as written. If DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 346 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement City of Santa Monica Community Services Request for Proposals BEACH CAFE AND EQUIPMENT RENTAL CONCESSION necessary, minor clarifications, approved by the City Attorney, and approved by the State, may be made prior to the concession agreement execution. At a minimum, the successful proposer will be required to: 2.8.1. Use the concession facilities solely for the operation and maintenance of concession stands selling approved beach concession Items consisting of (i) food, (ii) alcoholic and non-alcoholic beverages, and (iii) beach related sundries. 2.8.2. Pay rent to the City for all concession services including food service and beach equipment rental operations on a monthly basis. The rent , at a minimum, shall be eight (8%) percent of gross receipts or $200,000 annually, whichever is greater. The Minimum Annual Rent of $200,000 shall be adjusted to reflect changes in the Consumer Price Index (CPI), estimated at 3-5% annually. The final rent to be paid will be negotiated between the City and the selected proposer based on the bid amount presented in the proposal, the proposed Operations Plan, and the extent of proposed tenant improvements. 2.8.3. Implement the Operations Plan and Tenant Impro vement Plan, as described in Proposal instructions that clearly demonstrates the proposer’s plan to provide accessible services and facilities that comply with Federal, State, and Local accessibility guidelines. The plans will become exhibits of the final concession contract subject to City and State review and approval. 2.8.4. Maintain the premises, facilities, furnishings, and equipment in good condition in accordance with City standards and concession agreement provisions 2.8.5. Procure and maintain for the term and any extension of the contract a Security Deposit in the amount of twenty thousand dollars ($20,000). In addition, the concessionaire shall have procured and shall maintain for a minimum of one year a Performance Bond, included in this RFP as Attachment J, in the amount of one year's Minimum Annual Rent ($200,000) as described in the Sample Concession Agreement included as Attachment F. 2.8.6. Pay for all taxes applicable to the operation of the concession, including possessory interest taxes, and all utility services as required by the concession agreement. 2.8.7. Provide commercial general liability, worker’s comp, and property insurance as required by the concession agreement, detailed in Insurance Requirements, Attachment H. 2.8.8. Obtain all necessary licenses, permits, and approvals as set forth in the concession agreement and abide by all applicable health, safety, and environmental codes and regulations. 2.8.9. Comply with the letter and spirit of current and subsequent guidelines or plans , including Santa Monica State Beach General Plan amendments or updates, management and interpretive plans, historic structure reports, and others that may apply. DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 347 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement City of Santa Monica Community Services Request for Proposals BEACH CAFE AND EQUIPMENT RENTAL CONCESSION 2.8.10. Demonstrate compliance with labor laws as specified in the concession agreement. 2.8.11. Equip and maintain high-quality, sit-down food service at the beach café. 2.8.12. Equip and maintain high-quality, take-away food service during the summer months, some holidays and possibly some off-season public events. 2.8.13. Make available high-quality catering services for special events and meetings at the Beach House. The right to cater at the Beach House is not exclusive, and is subject to the same fees and restrictions as other approved Beach House caterers. 2.8.14. Promote healthy and sustainable food practices such as serving healthy, locally, and sustainably grown, organic foods, and organic ingredients whenever possible. 2.8.15. Use recycled products that, at a minimum, are consistent with existing City regulations and modified as necessary to meet future regulations. 2.8.16. Equip and maintain high-quality, beach-related equipment for rent and related items for sale at the beach concession building, beach cart or from the Café, such as chairs, umbrellas, and boogie boards, and various sundries that provide for the health, safety, and convenience of visitors. 2.8.17. Maintain an “A” rating from the Los Angeles County Health Department. Anytime the County Health Department rating drops below an “A”, concessionaire shall notify City within two business days and shall have ten days to correct any deficiency. 2.9 Additional Concession Services Proposers may suggest other unique concession opportunities to enhance visitor experience at the Beach House. These suggestions will be considered during the proposal review process and will be negotiated with the successful proposer along with the level of service, hours of operation, and financial terms. Examples of additional services that may be considered include: • Seasonal, public food service in specific areas of the site, such as food carts, or pool- side food and beverage service. • "Beach butler" service to provide sand and beach-side chair and umbrella rental and set-up. The successful proposer will not: • Provide sales or services considered inappropriate, deemed objectionable, or denied by the City of Santa Monica. • Charge prices in excess of those approved by the City of Santa Monica. • Promote or participate in activities that are incompatible with the rules, regulations, guidelines, or the mission of the City of Santa Monica. Note: Terms and conditions of the agreement are set forth in detail in the Sample Concession Agreement. DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 348 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement City of Santa Monica Community Services Request for Proposals BEACH CAFE AND EQUIPMENT RENTAL CONCESSION 2.10 Minimum Qualification of Proposer Certain minimum qualifications have been established in order for proposals to be considered as described in this RFP. Proposers shall have: • Ten (10) or more years of continuous experience in the operation and management of a high-quality retail or food service operation. • Demonstrated managerial, and staffing resources to maintain high quality, successful operation. • Demonstrated financial capacity to finance proposed improvements and operating costs for the project that it proposes. • A valid Small Business Qualification The proposing entity and any proposed sub-contractors must meet the requirements of California's Small Business Certification Program. Certification must be valid at time of submission, and for the term of the contract. In order for a business to be eligible for certification, it must: • Be independently owned and operated; • Not dominant in field of operation; • Have principal office located in California • Have owners (officers, if a corporation) domiciled in California; and • Including affiliates, be either: A business with 100 or fewer employees; an average annual gross receipts of $15 million or less, over the last three tax years; A manufacturer with 100 or fewer employees; or A micro business. A small business will automatically be designated as a micro business if gross annual receipts are $5,000,000 or less; or the small business is a manufacturer with 25 or fewer employees. 2.11 Original Documents Proposer shall complete and return the following documents: • Proposal (including cost proposal) • RFP Addenda if issued • Non-Discrimination Policy Acknowledgement • Non-Collusion Declaration (this does not need to be notarized) • Certification Regarding Debarment If selected to provide the service, the following form must be submitted: DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 349 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement City of Santa Monica Community Services Request for Proposals BEACH CAFE AND EQUIPMENT RENTAL CONCESSION • Oaks Initiative Disclosure Form (if the award amount is >$25,000 annually; identifies recipients of public benefit in relation to political donation restrictions: click here for more information) A City of Santa Monica business license must be obtained, or current business license number provided. For more information, go to the Business License page. 3 VENDOR QUESTIONNAIRE 3.1 Proposal 3.1.1 Letter of Transmittal* Please upload your letter of Transmittal as a PDF here. Make sure to include the following items. A. Identify the submitting organization; B. Identify the name, title, telephone and e-mail address of the person authorized by the organization to contractually obligate the organization; C. Identify the name, title, telephone and e-mail address of the person authorized to negotiate the contract on behalf of the organization; D. Identify the names, titles, telephone and e-mail addresses of persons to be contacted for clarification; E. Be signed by the person authorized to contractually obligate the organization; F. Acknowledge receipt of any and all amendments to this RFP. *Response required 3.1.2 Experience & Qualifications* Provide a detailed description of the relevant experience and qualifications of the proposing organization including the experience of principal individuals of the organization (last ten years). Include information sufficient to understand the full scope of the proposer's experience developing and managing food service and retail sales including specific roles and accomplishments; dates, size, and type of operation; type of capital improvements; and amount of annual revenues. If applicable, include experien ce and qualifications of sub-contractor(s). *Response required 3.1.3 Key Personnel* Describe the project team composition and include resumes of key personnel. Proposed members should be available for ninety (90) days from the proposal due date. The City must be promptly notified of any changes in key personnel prior to award. DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 350 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement City of Santa Monica Community Services Request for Proposals BEACH CAFE AND EQUIPMENT RENTAL CONCESSION *Response required 3.1.4 References* Provide the name, address, phone number, and email for at least two business references that can verify the experience and qualifications of the proposing ent ity and at least two financial references that can verify the financial statements included in the proposal. If the proposing entity or any of its principals have previously held or currently hold a public concession contract, include the contact name and telephone number of the agency administering the contract *Response required 3.1.5 Ability to Finance* Present evidence that the proposer has the financial capability to carry out the tenant improvements and operations as proposed. Identify and describe the specific sources of funding to be used. Evidence may include complete financial statements, audited i f possible, and/or a detailed financial resume/balance sheet listing all income, expenses, and assets, including partial ownership interest in and income from any partially owned assets, and list direct and contingent liabilities. Please include a detailed pro forma, including amortization of capital expenditures and operations for at least three years. *Response required 3.1.6 Operations Plan* Provide a detailed description of the type of operation proposed. Please provide information sufficient to evaluate your understanding of and commitment to the visitor- serving nature of the Beach House; the type and style of service to be provided; the type of foods to be served; the types, costs, and quality of items to be sold or rented; and the management and operational policies and procedures. Please address the following aspects in your proposal: • Vision/Mission statement to guide development and operation of the concession • Description of the products, merchandise, and services to be offered including a sample menu and prices for sit-down, take-away, and catering food services, and a list of proposed rental and retail items • Customer service plan that ensures the highest level of service to Beach House visitors including how complaints will be managed and employee training policies • Food preparation methods • Organizational structure of staffing and management that includes position titles and salaries for all job classifications, a summary of the job qualifications and duties, and the number of existing or proposed employees in each job classification and duties • Proposed use of subcontractors including a rationale for why subcontracting is preferred and how it best meets the goal of providing high-quality service to visitors • Employee training policies DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 351 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement City of Santa Monica Community Services Request for Proposals BEACH CAFE AND EQUIPMENT RENTAL CONCESSION • Employment opportunities for youth • Marketing and/or advertising plan • Community involvement activities • Environmental and sustainable practices, including conservation and recycling • Description of furnishings, equipment, and decor • Description of thematic uniforms, menus, decor, or other elements • Maintenance and housekeeping plan including a description of how funds will be allocated • Interpretive (educational) elements highlighting the environmental and/or cultural history of the site • Other programs and/or services to complement the public's beach experience. Healthy Foods Plan Describe how the proposed operation provides healthy, locally, and sustainably grown, organic foods, and uses sustainable practices, locally-grown and organic ingredients, and recycled products whenever possible. Identify the suppliers and measures necessary to achieve these goals. Additional measures that promote sustainable practices and healthy foods may be included. Tenant Improvement Plan Describe any proposed tenant improvements beyond those that will be completed by the City. The description should list the type of improvements and a timeline for completion. Please note, due to the restrictions imposed by Proposition S (City Council Resolution 8121) and other laws, the total amount of improvements allowed may be limited. It is the responsibility of the concessionaire to understand and comply with any and all applicable planning and zoning requirements including but not limited to the California Coastal Act, Proposition S, and County Health Codes. *Response required 3.1.7 Rental Bid* Describe the proposed annual rent for the concession operations as proposed including the restaurant and beach concession. The proposal should be structured as "a guaranteed amount (Minimum Annual Rent) or a Percentage Rent, whichever is greater." Proposers shall bid both the Minimum Annual Rent and the Percentage Rent and each year shall pay whichever amount is greater. For the purposes of this RFP, the Minimum Annual Rent bid must be NO LESS THAN two h undred thousand dollars ($200,000) per year and the Percentage Rent bid must be at least eight percent (8%) of gross sales. Proposers may bid a different Percentage Rent for each of the different profit centers (food and non-alcoholic beverages, alcoholic beverages, retail sales and rentals, and catering). DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 352 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement City of Santa Monica Community Services Request for Proposals BEACH CAFE AND EQUIPMENT RENTAL CONCESSION *Response required 3.2 Other Required Responses 3.2.1 RFP Addenda if issued 3.2.2 Business License Requirements WHO NEEDS A BUSINESS LICENSE? 1. Is this vendor physically located in the City of Santa Monica? Yes (Vendor must have a City of Santa Monica business license - contact the Business License unit for the appropriate forms. Skip question 2 & continue to “ADDITIONAL REQUIREMENTS” section below) No (Continue to the next question) 2. Does this vendor physically come into the City of Santa Monica to conduct business and/or make deliveries? Yes (Vendor must have a City of Santa Monica Out-of City Business License. contact the Business License unit for the appropriate forms. Continue to “ADDITIONAL REQUIREMENTS” section below) No (STOP, no license needed) ADDITIONAL REQUIREMENTS: If this vendor is located in or comes into the City of Santa Monica to conduct business, in addition to having a CITY OF SANTA MONICA BUSINESS LICENSE, they will be required to have insurance (see agreement for descriptions). The business license documentation is only required from the successful Proposer. 3.2.3 Notice Regarding Disclosure of Contents of Documents* All responses to this Request for Proposal (RFP) accepted by the City of Santa Monica (City) shall become the exclusive property of the City. All proposals accepted by the City shall become a matter of public record and shall be regarded as public, with the exception of those elements of each proposal which are defined by the contractor as business or trade secrets and plainly marked as "Trade Secret", "Confidential" or "Proprietary". Each element of a proposal which a contractor desires not to be considered a public record must be clearly marked as set forth above, and any blanket statement (i.e. regarding entire pages, documents or other non-specific designations) shall not be sufficient and shall not bind the City in any way whatsoever. If disclosure is required or permitted under the California Public Records Act, or otherwise by law, the City shall not in any way be liable or responsible for the disclosure of any such records or part thereof. ☐ Please confirm DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 353 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement City of Santa Monica Community Services Request for Proposals BEACH CAFE AND EQUIPMENT RENTAL CONCESSION *Response required 4 EVALUATION CRITERIA No. Evaluation Criteria Scoring Method Weight (Points) 1. Experience & Qualifications Assign points that may be awarded based on evaluation of the scope, extent applicability and quality of proposer’s experience. Evaluation will be based on documented experience on similar projects, level of previous projects of comparable complexity, scale and nature; training and proven expertise in the area of work required; experience in projects completed for public entities. Points Based 15 (15% of Total) 2. Project Team/Key Personnel Assign points that may be awarded for relevant experience and qualifications of key personnel based upon the resumes and experience narratives submitted. Points Based 10 (10% of Total) 3. Financial Resources Assign points that may be awarded based on the financial resources, history, and references of the proposer, as well as the financial ability to finance tenant improvements and operations as proposed. Points Based 15 (15% of Total) 4. Project Understanding & Approach Assign points that may be awarded based on the proposer’s effective communication and understanding of the project goals and quality of responses to the Operations Plan. Points Based 30 (30% of Total) 5. Compatibility Assign points that may be awarded for the compatibility of proposed operation with the surrounding uses and local community. Points Based 5 (5% of Total) 6. Rental Bid Assign points that may be awarded based on evaluation of the competitiveness, appropriateness and feasibility of proposed Minimum Annual Rent and Percentage Rent and the ability to maintain competitive pricing with the proposed annual rent to the City. Points Based 15 (15% of Total) DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 354 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement City of Santa Monica Community Services Request for Proposals BEACH CAFE AND EQUIPMENT RENTAL CONCESSION 7. Proposal/Presentation Assign points that may be earned based upon overall quality of responses, thoroughness and completeness of the proposal and responsiveness to RFP requirements. Points Based 10 (10% of Total) 5 AWARD PROCESS 5.1 Selection The City of Santa Monica, through either the City Council or the City Manager (or his designee) has the sole authority to select the consulting firm and reserves the right to reject any and all proposals. The City reserves the right to approve or reject all sub- consultants and engineers proposed to be retained by the prime consultant. Upon signing of the agreement, no change in proposed personnel or sub-consultants can be made without the City’s review and written authorization. By submitting a response to this RFP, prospective consultants waive the right to protest after award or seek any legal remedies whatsoever regarding any aspect of this RFP. The City reserves the right to select any number of finalists. In addition, the City reserves the right to issue written notice to all prospective consultants of any changes in the RFP terms or proposal submission schedule, should the City determine in its sole and absolute discretion that such changes are necessary. The City reserves the right to request additional information from any proposing consultant and to reject any and all proposals. All original work products, including computer files, shall remain the property of the City. The City reserves the right to retain an expert to evaluate the proposing consultant’s work or qualifications at all stages in the selection process. Additionally, any contract entered into will be subject to termination at any stage if in the judgment of the City, such termination is in the best interest of the City. In the event such decision is made, appropriate written notice would be given before any termination and the consultant would be compensated on a pro-rata basis for work performed. The responsible proposer whose proposal is the most advantageous to the City, taking to consideration all the evaluation factors will be recommended for the contract award. Notwithstanding the Evaluation Team’s selection, the City reserves the right to award this RFP and the resultant Contract in any manner it deems to be in the best interest of the City and make the selection based on its sole discretion. The City is the sole and exclusive judge of quality and compliance with proposal specifications in any of the matters pertaining to this RFP. DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 355 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement City of Santa Monica Community Services Request for Proposals BEACH CAFE AND EQUIPMENT RENTAL CONCESSION 5.2 Contract Award and Execution Selection of a proposer with whom the City enters into contract negotiations with, or a recommendation of an award by the Evaluation Committee or any other party, does not constitute an award of Contract. Once the City formally awards the contract, the successful consultant will be notified to enter into an agreement. If the selected consultant does not enter into the agreement, the City will begin negotiations with the second highest ranking proposing consultant. Please review all contract forms prior to submitting a proposal. The City of Santa Monica intends to use these forms as the baseline agreements with the successful consultant. The City will not entertain proposals to make material changes to the contract form once the project has been awarded. If you wish to request changes to the contracting forms, you must do so during the proposal process. In addition, the City requires compliance with several other policies and ordinances, proposing consultants will need to complete these Exhibits and submit with their Proposal. The RFP document and the successful proposal response, as amended by agreement between the City of Santa Monica and the successful consultant, will become part of the contract documents. Additionally, the City of Santa Monica may ve rify the successful consultant’s representations that appear in the proposal. Failure of the successful consultant to perform as represented may result in elimination of the successful consultant from further negotiation or in contract cancellation or term ination. No oral explanation or instruction of any kind or nature whatsoever given before the award of a contract to a consultant shall be binding. The City of Santa Monica shall not be bound, or in any way obligated, until the City has awarded the contract and all documents have been executed. The proposing consultant may not incur any chargeable costs prior to final contract execution. 6 TERMS & CONDITIONS 6.1 Best Qualified Person Or Firm The award, if any, will be made to the best qualified person or firm(s). In evaluating whether a proposer(s) is (are) the best qualified person or firm(s) pursuant to the Santa Monica Municipal Code, City staff may utilize some or all of the following criteria: A. The training, credentials and experience of the person or firm; B. The demonstrated competence, ability, capacity and skill of the person or firm to perform the contract or provide the services; C. The capacity of the person or firm to perform the contract or provide the service promptly, within the time specified, and without delay; DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 356 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement City of Santa Monica Community Services Request for Proposals BEACH CAFE AND EQUIPMENT RENTAL CONCESSION D. The sufficiency of the person’s or firm’s financial and other resources; E. The character, integrity, reputation and judgment of the person or firm; F. The ability of the person or firm to provide such future service as may be needed; G. The price which the person or firm proposes to charge, including whether the price is fair, reasonable and competitive; and H. Any other factor which will further the intent set forth in Section 608 of the City Charter. The City shall have absolute discretion in determining the applicability and weight or relative weight of some or all of the criteria listed above and is not required to select the lowest monetary proposer. 6.2 Receiving Time / Late Proposals It is the responsibility of proposer to see that their proposal is submitted with sufficient time to be received by the City prior to the proposal closing time. The receiving time in the City Office will be the governing time for acceptability of proposals. Late proposals are not accepted. 6.3 Acceptance of Conditions Governing this RFP Submission of a proposal constitutes acceptance of the Evaluation Factors contained in this RFP. 6.4 Incurring Cost Any cost incurred by the proposer in preparation, transmittal, presentation of any proposal or material submitted in response to this RFP shall be borne solely by the proposer. 6.5 Prime Consultant Responsibility Any agreement that may result from the RFP shall specify that the prime consultant is solely responsible for fulfillment of the agreement with the City. The City will make agreement payments only to the prime consultant. 6.6 Sub-consultants Use of sub-consultants must be clearly explained in the proposal, and major sub - consultants must be identified by name. Prime consultants shall be wholly responsible for the entire performance whether or not sub-consultants are used. DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 357 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement City of Santa Monica Community Services Request for Proposals BEACH CAFE AND EQUIPMENT RENTAL CONCESSION 6.7 Amended Proposals A proposer may submit an amended proposal before the deadline for receipt of proposals. Such amended proposals must be complete replacements for a previously submitted proposal and must be clearly identified as such in the transmittal letter. City personnel will not merge, collate, or assemble proposal materials. 6.8 Proposer’s Rights to Withdraw Proposal Proposers will be allowed to withdraw their proposals at any time prior to the deadline for receipt of proposals. The proposer must submit a written withdrawal request signed by the proposer’s duly authorized representative addressed to the City Contact. 6.9 Proposal Offer Firm Responses to this RFP, including proposal prices, will be considered firm for ninety (90) days after the due date for receipt of proposals or sixty (60) days afte r receipt of a best and final offer, if one is requested. 6.10 Best and Final Offer The City reserves the right to request Best and Final Offers from any or all proposers. This will be the only opportunity to amend or modify proposals based on feedback from the City. Information from competing proposals will not be disclosed to other proposers prior to submission of a Best and Final Offer. 6.11 Living Wage Requirement Any agreement issued as a result of this Request for Proposal may be subject to the City’s Living Wage Ordinance, Santa Monica Municipal Code Chapter 4.65 (LWO), and its implementing regulations. 6.12 Disclosure of Proposal Contents All proposals are subject to the provisions of the California Public Records Act, California Government Code section 6250 et seq ., and any information submitted with a response is a public record subject to disclosure, unless a specific exemption applies. 6.13 Notice Regarding Disclosure of Contents of Documents All responses to this Request for Proposal (RFP) accepted by the City of Sa nta Monica (City) shall become the exclusive property of the City. All proposals accepted by the City shall become a matter of public record and shall be regarded as public, with the exception of those elements of each proposal which are defined by the con tractor as business or trade secrets and plainly marked as "Trade Secret", "Confidential" or "Proprietary". Each element of a proposal which a contractor desires not to be DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 358 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement City of Santa Monica Community Services Request for Proposals BEACH CAFE AND EQUIPMENT RENTAL CONCESSION considered a public record must be clearly marked as set forth above, and any blanket statement (i.e. regarding entire pages, documents or other non-specific designations) shall not be sufficient and shall not bind the City in any way whatsoever. If disclosure is required or permitted under the California Public Records Act, or otherwise by law, the City shall not in any way be liable or responsible for the disclosure of any such records or part thereof. 6.14 No Obligation This RFP in no manner obligates the City to the eventual rental, lease, purchase, etc., of any goods or services offered until a valid written agreement is executed by the City and the selected proposer. 6.15 Termination This RFP may be canceled at any time and any and all proposals may be rejected in whole or in part when the City determines such action to be in the best interest of the City of Santa Monica. 6.16 Sufficient Appropriation Any agreement awarded for multiple years as a result of this RFP may be terminated if sufficient appropriations or authorizations do not exist. Such termination will be effected by sending written notice to the selected proposer. The City’s decision as to whether sufficient appropriations and authorizations are available will be accepted by the selected proposer as final. 6.17 Errors and Restrictive Specifications If a proposer discovers any ambiguity, conflict, discrepancy, omission, or other error in the RFP, the proposer should immediately notify the City Contact designated in Section I, B. Without disclosing the source of the request, the City may issue a written addendum to clarify the ambiguity, or to co rrect the problem, omission, or other error. If prior to the submission date, a proposer knows of or should have known of an error in the RFP but fails to notify the City Contact of the error, the proposer shall submit their proposal at his, her or its own risk, and, if awarded an agreement, shall not be entitled to additional compensation or time by reason of error or its later correction. 6.18 Legal Review The City requires that all proposers agree to be bound by the General Requirements contained in this RFP. DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 359 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement City of Santa Monica Community Services Request for Proposals BEACH CAFE AND EQUIPMENT RENTAL CONCESSION 6.19 Governing Law This RFP, and any agreement entered into pursuant to this RFP, are governed by the laws of the State of California. 6.20 Oral Changes and Basis for Proposal Proposers may not rely upon oral explanations. All changes and addenda will be issued in writing. Only information supplied by the City in writing through the City’s Contact, or in this RFP should be used as the basis for the preparation of proposals. 6.21 Agreement Terms and Conditions The agreement between the City and the selected proposer(s) will follow the format specified by the City and contain the terms and conditions set forth in Attachment F, Sample Concession Agreement. However, the City reserves the right to negotiate with a successful proposer the final provisions or provisions in addition to those contained in this RFP. The contents of this RFP, as revised and/or supplemented, and the successful proposal will be incorporated into and become part of the agreement. Should a proposer object to any of the City’s terms and conditions, as contained in this Section or in Attachment F, that proposer must propose specific alternative language in his, her, or its proposal. Proposer must provide a brief discuss ion of the purpose and impact, if any, of each proposed changed followed by the specific proposed alternate wording. The City may or may not accept the alternative language. General references to the proposer’s terms and conditions or attempts at complete substitutions are not acceptable to the City and may result in disqualification of the proposer. 6.22 Proposer’s Terms and Conditions Proposers must submit with the proposal a complete set of any additional terms and conditions that they expect to have included in an agreement negotiated with the City. 6.23 Proposer Qualifications The City may make such investigations as necessary to determine the ability of the proposer to adhere to the requirements specified within this RFP. 6.24 Right to Waive Minor Irregularities The City reserves the right to waive minor irregularities and the right to waive mandatory requirements, provided that all of the otherwise responsive proposals fail to meet the same mandatory requirements and/or doing so does not otherwise materially affect the procurement. This right is at the sole discretion of the City. DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 360 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement City of Santa Monica Community Services Request for Proposals BEACH CAFE AND EQUIPMENT RENTAL CONCESSION 6.25 Change in Agreement or Representatives The City reserves the right to require a change in the selected proposer or representatives if the assigned representatives are not, in the opinion of the City, meeting its needs adequately. 6.26 City Rights The City reserves the right to award the proposal to separate proposers on any of the services as set forth in the proposer’s proposal. It is further understood that if the proposer to whom any recommended award is made fails to enter into an agreement with the City, award may be made to the next best qualified person or firm, who shall be bound to perform as if she, he or it received the award in the first instance. 6.27 Right to Publish Throughout the duration of this procurement process and agreement term, potential proposers, and proposers, must secure from the City written approval prior to the release of any information that pertains to the potential work or activities covered by this procurement or the subsequent agreement. Failure to adhere to this requirement may result in disqualification of the proposer or termination of the agreement. 6.28 Ownership of Proposals All documents submitted in response to the RFP shall be become the property of the City of Santa Monica and are subject to the provisions of the California Public Records Act, as described in Section II. A. 11. herein. 6.29 Agreement Award Proposal will be evaluated by a committee comprised of City staff and may include outside consultants (the “Evaluation Committee”). The Evaluation Committee will make an award recommendation to City staff. City Council may give approval of the agreement and/or direct staff to negotiate the final terms and execute the agreement. This agreement shall be awarded to the proposer or proposers whose proposal is best qualified, taking into consideration the evaluation factors set forth in the RFP. The most qualified proposal may or may not have received the most points or be the lowest cost proposal. Proposers will be notified when the award is being made or an award recommendation goes to the City Council for approval. 6.30 Protest Deadline All parties wishing to file a protest shall comply with the procedures set forth in Santa Monica Municipal Code section 2.24.260 found here. Proposer may file a written protest with the Director of Finance no more than seven calendar days following the posting of DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 361 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement City of Santa Monica Community Services Request for Proposals BEACH CAFE AND EQUIPMENT RENTAL CONCESSION award recommendation on the City’s online vendor portal website. Protests received after the deadline will not be accepted. 6.31 Records and Audits The Consultant shall maintain such detailed reco rds as may be necessary to demonstrate its performance of the duties required by this Agreement, including the date, time and nature of services rendered. These records shall be maintained for a period of three years from the date of the final payment under this Agreement and shall be subject to inspection by City. The City shall have the right to audit any billings or examine any records maintained pursuant to this Agreement both before and after payment. Payment under this Agreement shall not foreclose the right of City to recover excessive and/or illegal payments 6.32 Enforcement of Agreement/Waiver A party's failure to require strict performance of any provision of this Agreement shall not waive or diminish that party's right thereafter to demand strict compl iance with that or any other provision. No waiver by a party of any of its rights under this Agreement shall be effective unless expressed in writing and signed by the party alleged to have granted the waiver. A waiver by a party of any of its rights shall not be effective to waive any other rights. DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 362 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement AGREEMENT NO. 11238 (CCS) Exhibit 6. Waiver of Liability and Release There are significant elements of risk in any adventure, sport or activity associated with (referred to herein  as “activity”) use of any equipment. It is up to you to master the basics‐moving, maneuvering, shifting  gears, braking and turning‐before beginning your activity, to obey traffic regulations and to yield to  pedestrians.      ACKNOWLEDGEMENT OF RISKS: I recognize that there are inherent risks in this type of activity. These risks  my result in serious injury or death, and include but are not limited to the following: 1)falls; 2)collisions  with pedestrians, cycles, cycle riders, vehicles, manmade and natural objects; 3)hazards of trails, routes or  roadways including even or unstable surfaces, steep grades, sharp turns, and or; 4)the presence of water,  sand, gravel, mud, oil and debris – which may inhibit my ability to maneuver or stop; 5)cold weather and  heat related injuries or illnesses including hypothermia, frosting, frostbite, heat exhaustion, heat stroke,  and dehydration; 6)inclement weather, fog banks which can reduce visibility to near zero, varied or severe  wind, weather or physical coordination, ability to balance or control the equipment, the speed at which I  travel and my ability to follow directions; 7)loss of or damage to personal property; 8)fatigue, chill and or  dizziness, which my diminish my/our reaction time and increase the risk of an accident; and 9)accidents or  illnesses occurring in remote places where there are no available medical facilities.  I understand the description of these risks is not complete and that unknown or unanticipated risks may  result in injury, illness or death. I understand the use of alcohol or drugs may impair my abilities.  EXPRESS  ASSUMPTION  OF  RISK  AND  RESPONSIBILITY:  I  agree  to  assume  responsibility  for  those  risks  identified herein and those not specifically identified. I certify that I am (we are) physically and mentally  capable of participating in this activity. My/Our participation in this activity is purely voluntary.  No one is  forcing  me/us  to  participate.   I/We  elect  to  participate  in  spite  of  the  risks.  Therefore,  I  assume  full  responsibility for  myself and any minor children for which I am  responsible,  for bodily injury, accidents,  illness, death, loss of personal property, and any related expenses.    CONVENANT OF GOOD FAITH:  I recognize that you as provider of services, will operate under a covenant  of good faith and fair dealing but that you may find it necessary to terminate an activity due to forces of  nature, medical necessities or problems in the group, and/or refuse or terminate, the participation of any  person you judge to be incapable or meeting the rigors or requirements or participation in the activity. I  accept your right to take such actions for the safety of myself and or other participants I acknowledge that  no guarantees have been made with respect to cycling objectives.  AUTHORIZATION:  I hereby authorize any medical treatment deemed necessary in the event of any injury  while  participating  in  the  activity.  I  either  have  appropriate  insurance  or  in  its  absence  agree  to  pay  all  costs  of  rescue  and/or  medical  services  as  may  be  incurred  on  my/our  behalf.  I  agree  that  any  film  or  photographs  of  me/us,  as  participants,  become  your  property  and  may  be  used  for  promotional  or  commercial purposes.  RELEASE:  In consideration of services or property provided, I, for myself and any minor children for which I  DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 363 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement AGREEMENT NO. 11238 (CCS) am a parent, legal guardian or otherwise responsible and heirs, personal representatives assigns, do  hereby release (CONCESSIONAIRE) its principles, directors, officers, agents, employees and volunteers, and  each and every land owner, the City of Santa Monica and the County of Los Angeles, The State of  California,  their municipal and/or governmental agencies upon whose property an activity is conducted,   all of its affiliates, from all liability and waive any claim for damage arising from any cause whatsoever  (except that which is the result of gross negligence).  I HAVE READ THE FOREGOING WARNING, ACKNOWLEDGEMENT OF RISKS, ASSUMPTION OR RISKS AND  RESPONSIBILITIES, AND RELEASE OF LIABILITY.  I UNDERSTAND BY SIGNING THIS DOCUMENT I MAY BE  WAIVING VALUABLE LEGAL RIGHTS.  Date Name (please print) Age Signature Refused  1)  2)  3)  4)  5)  If the participant is under 18, the Parent or Legal Guardian must also sign DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 364 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement AGREEMENT NO. 11238 (CCS) Exhibit 7. Menu DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 365 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement california omelette 18 cage-free eggs, feta, tomato, spinach, breakfast potatoes, mini scone cheese omelette 16 choice of cheddar, gruyere or jack, breakfast potatoes, mini scone. add bacon or ham, +$2 ocean house scramble 18 cream cheese, avocado, jack cheese, side breakfast potatoes, mini scone two eggs any style 12 three eggs any style 15 breakfast potatoes, mini scone breakfast potatoes, mini scone polenta & eggs 18 crispy polenta, mushrooms, spinach, marinara, parmesan, two eggs over medium breakfast quesadilla 18 scrambled egg whites, spinach, jack cheese, salsa, breakfast potatoes sub egg whites + $2.50 sub fruit +$2.50 add chicken chorizo +$3. back on the beach egg sandwich 18 fried egg, bacon, aged cheddar, avocado, arugula, tomato aioli, breakfast potatoes north african shakshuka 19 house-made lamb sausage, eggs, tomato and pepper stew, feta cheese, side grilled bread tofu scramble vegan 18 sauteed vegetables, red onion, black beans, soyrizo, side breakfast potatoes huevos rancheros 18 crispy corn tortilla, fried eggs, avocado, ranchero salsa, rice, black beans, queso fresco buttermilk pancakes 13 +$1 to add banana, blueberry, or chocolate chips +$1 to add 2oz pure maple syrup french toast 14 +$1 to add 2oz pure maple syrup bananutella french toast 18 sliced bananas, nutella, almonds, whip cream oatmeal 11 raisins, walnuts, & brown sugar upon request granola sundae house-made 13 organic vanilla yogurt, seasonal fruit fruit plate 13 bagel & lox 20 capers, red onion, sliced tomato, cream cheese, fruit garnish bagel 4.25 sausage 4 toast 2.5 ham 4 mini scone 2.5 bacon 4 sorry, no substitutions during busy peak hours DAYTIME MENU page 42 DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 366 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement fred's salad 18 romaine, chicken salad, grilled potatoes, blue crumbles, parmesan, lemon herb dressing marion davies salad 17 organic greens, cranberries, candied pecans, blue crumbles, lemon vinaigrette santa fe salad 17 chopped romaine, black beans, grilled corn, red onion, tomato, avocado, cilantro lime dressing chicken, apple, goat cheese salad 20 romaine, arugula, goat cheese, almonds, honey lemon vinaigrette caesar salad 14 romaine hearts, croutons, caesar dressing, parmesan add mary's grilled chicken breast $6.75 / add tuna salad or chicken salad $6.5 / add grilled salmon $8.75 back on the beach burger 20 grass-fed beef, aged cheddar, avocado, arugula, tomato aioli, fries, potato chips or green salad grass-fed burger 18 fries, potato chips or green salad impossible burger 20 vegan ground beef patty, lettuce, tomato, onion, fries, potato chips or green salad black bean & portabello veggie burger with gruyere cheese, lettuce, tomato, garlic aoli, side fries or green salad 20 blackened chicken breast sandwich 19 mary's chicken, caramelized onion, cole slaw, piquillo pepper aioli, pimento cheese, on ciabatta, fries, potato chips or green salad mary's chicken salad sandwich 18 bacon, avocado, lettuce, grain mustard aioli, toasted sourdough, fries, potato chips or green salad tuna salad sandwich pole / line caught tuna 19 lettuce, tomato, multi-grain grain bread, fries, potato chips or green salad turkey wrap 19 house-roasted turkey, lettuce, tomato, cheddar, cranberry mayo, fries, potato chips or green salad vegetarian power bowl vegan 17 brown rice, roasted zucchini, yellow squash, broccolini, butternut squash, avocado salmon a la plancha 21 / rainbow trout a la plancha 22 with seasonal vegetables and grilled potatoes grilled fish tacos 20 marinated alaskan cod, slaw, pico de gallo, rice & beans fish & chips 19 tempura-battered alaskan cod, tartar sauce, lemon french fries 5 sweet potato fries with chipotle aioli 8 fried calamari tartar sauce 17 page 43 DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 367 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement kid's menu chicken fingers fries or potato chips 11.50 grilled cheese sandwich fries or potato chips 10.00 kid's burger grass-fed fries or potato chips 10.25 kid's cheeseburger grass-fed fries or potato chips 10.75 hot dog kosher fries or potato chips 10.25 veggie dog fries or potato chips 10.25 pancake plain buttermilk 7.00 pancake blueberry or banana 7.50 pasta butter 9.00 pasta marinara 9.75 beverages ice tea 3.5 lemonade 3.5 mineral water 3 / 5.5 gatorade 3.5 coke diet coke, root beer, orange, sprite 3 cranberry juice 'ocean spray'3.5 orange juice fresh squeeze 3 / 4.5 apple juice 'martinelli's 3.25 San Pelligrino sparkling juices blood orange, lemon, or grapefruit 3.5 smoothies strawberry, mango, or pina colada 5 coffee organic 'intelligentsia'3.5 espresso organic 4 cappuccino 4.75 cafe mocha 5.25 ice-blended mocha 5 hot chocolate 4.75 tea organic ginger beer non-alcoholic bundaberg 6 earl grey, breakfast, mint, chamomile 4.5 beer & wine IPA ice-cold DRAFT lagunitas california 9 angry orchard gluten-free hard cider 8 blonde ale DRAFT angel city la 9 guinness stout ireland 12 orange wheat DRAFT hanger 24 9 lambic framboise raspberry belgian beer, since 1822 14 corona mexico 9 heineken holland 9 corona light mexico 9 hard seltzer white claw black berry or mango 8 chardonnay cabernet sauvignon 14 hands washington 12/42 girasol california organic 12/42 imagery sonoma 48 the snitch napa 60 red velvet (blend) cupcake california 38 sauvignon blanc kim crawford nz 14/50 pinot noir rare earth california organic 11/38 pinot grigio pertico italy 14/50 merlot velvet devil washington 36 sparkling brut wolf blas australia 12/42 rose Listel 12/42 proseco cupcake italy 40 mimosa 13 rose proseco pasqua italy 55 aperol spritz italian aperitif 13 byob corkage fee 15 margarita from 100% fermented agave, delicious 13 18% gratuity added to groups of 6 or more. During peak hours, we seat only complete parties & please only 1.5 hours max at table if other families are waiting to be seated. page 44 DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 368 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement Back on the Beach Cafe dinner menu to begin salmon poke ponzu, avocado, green onions, toasted sesame seeds, crispy tortilla chips 16 mezze plate hummus, red pepper spread, eggplant tapenade, herb feta tomato, olives, flatbread 17 grilled selva shrimp 5 selva shrimp, blistered cherry tomatoes, over creamy polenta 18 [ selva shimp is certified by both asc (aquaculture stewardship council) & ocean-wise ] fried calamari chipotle aioli, fresno chili 17 cauliflower milanese florets lemon garlic aioli 15 sweet potato fries 7 spicy chipotle mayo starters salads small market salad mixed greens, shaved market vegetables 10 small caesar salad 10 croutons, parmesan entrees salmon a la plancha mashed potatoes, market vegetables, lemon caper sauce 28 grilled rainbow trout garbanzo lentil medley, soyrizo, topped w/celery slaw 29 mary's half chicken garlic mashed potatoes, market vegetables, cherry tomato, chicken au jus 28 grilled steak 10oz hanger, herb potatoes, creamy spinach 28 crispy peanut tofu brown rice, snap peas, zucchini, brocolini, siracha soy sauce vegan 24 enchiladas verdes soyrizo papa, tomatillo salsa, jalapeno tofu crema, with brown rice and nopal cactus salad vegan 23 fred's salad romaine, chicken salad, grilled potatoes, blue crumbles, parmesan, lemon herb dressing 18 santa fe salad chopped romaine, black beans, grilled corn, red onion, tomato, avocado, cilantro lime dressing 17 back on the beach burger grass-fed beef, aged cheddar, avocado, wild arugula, tomato aioli, side fries or green salad 20 impossible burger vegan ground beef patty, lettuce, tomato, onion, side fries or green salad 20 black bean & portabello veggie burger with gruyere cheese, lettuce, tomato, garlic aoli, side fries or green salad 20 DINNER MENU page 45 DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 369 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement beverages ice tea passion berry unsweetened 3.5 coffee organic 'intelligentsia' 3.5 lemonade 3.5 espresso organic 4 mineral water still or sparkling 3 / 5.5 cappuccino organic 4.75 fountain drinks 3 cafe mocha 5.25 coke, diet coke, root beer, orange, sprite hot chocolate 4.5 ginger beer 6 personal-pot-of-tea organic 4.5 'bundaberg' non-alcoholic ginger soda english breakfast, earl grey, green, mint, chamomile bottled juices ice-blended mocha 5 apple 'martinelli's 3.25 smoothies ice-blended & sweet 5 cranberry 'ocean spray' 3.5 strawberry, mango, or pina colada san pelligrino sparkling juices 3.5 pomegranate orange, lemon, or grapefruit beer IPA ice-cold DRAFT lagunitas california 9 angry orchard hard cider gf 8 blonde ale ice-cold DRAFT angel city LA 9 guinness stout ireland 12 Orange Wheat Ale DRAFT hanger 24 calif. 9 lambic framboise raspberry belgian beer, since 1822 14 corona mexico 9 hard seltzer white claw blk berry or mango 8 corona light 9 heineken zero non-alcoholic 7 heineken holland 9 wine whites reds chardonnay girasol ca organic 12/42 cabernet sauvignon 14 hands washington 12/42 the snitch napa 60 imagery sonoma 48 sauvignon blanc kim crawford nz 14/50 merlot velvet devil washington 36 pinot grigio pertico italy 14/50 red velvet (blend) cupcake california 38 sparkling brut wolf blass australia 12/42 pinot noir rare earth ca organic 11/38 proseco cupcake italy 40 rose listel france 12/42 rose proseco pasqua italy 55 margarita made with real fermented agave 13 byob corkage fee 15. aperol spritz italian aperitif, refreshing 12 kid's menu chicken fingers fries 11.50 pasta butter side parmesan 9.00 grilled cheese sandwich fries 11.00 pasta marinara side parmesan 9.75 kid's burger grass-fed fries 10.25 hot dog kosher fries 10.25 kid's cheeseburger grass-fed fries 10.75 veggie dog fries 10.25 pooches although we love them, dogs/pets are not allowed on the beach in santa monica nor at the annenberg community beach house site. ADA service animals are exempt. green We strive to be environmentally correct. Our fish & seafood is sustainable. Our coffee & tea is organic, our ground beef is grass-fed, our eggs are cage-free. We purchase some organic produce, when in season. All office & restaurant paper products are a minimum of 20% post-consumer recycled. Our lighting is LED . . . unruly kids will be sold to pirate ships waiting offshore. aargh... During peak hours, we seat only complete parties & please only 1.5 hours max at table if other families are waiting to be seated. 18% gratuity added to groups of 6 or more. warnings: Consuming raw or under-cooked meats, poultry, seafood, shellfish or eggs may increase your risk of foodborne illness. Please inform us in advance of any food allergies. page 46 DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 370 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement Fred's Salad romaine, chicken salad, grilled potatoes, blue crumbles, vinaigrette $17 Caesar Salad $11 Santa Fe Salad romaine, black beans, corn, red onion, tomato, avocado $16 Marion Davies Salad greens, cranberries, pecans, bleu $16 Side scoop chicken salad or tuna salad add + $6.50 Tuna Salad Sandwich $13 lettuce, tomato ( ala carte ) Chicken Salad Sandwich $12 Mary's chicken salad, lettuce, tomato ( ala carte ) Grilled Turkey Wrap $13 house-roasted turkey, lettuce, tomato, cheddar, cranberry mayo ( ala carte ) Hamburger grass-fed 8 ounce $17 lettuce, tomato with side fries add cheese + 1.00 Black Bean Veggie Burger $19 black bean & mushroom patty, lettuce, tomato with side fries Impossible Burger vegan patty $19 lettuce, tomato with side fries Vegetarian Power Bowl vegan $16 brown rice, roasted vegetables, carrot puree, avocado Grilled Fish Tacos $19 three tacos, marinated alaskan cod, slaw, pico de gallo TAKEAWAY WINDOW MENU page 47 DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 371 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement french fries 5 ice cream bar 4 sweet potato fries 7 fruit popcycle bar 2.25 whole fruit 1.50 chips small / large 2 / 5 chicken fingers fries 11 .00 kids burger grass-fed fries 9.75 kids cheeseburger fries 10.25 hotdog fries 9.75 veggie dog fries 9.75 lemonade 3.5 ice tea 3.5 cranberry juice 3.5 apple juice 3.25 gatorade 3.5 milk 2.75 sodas coke, sprite, fanta, root beer 3 sparkling juices San Pelligrino blood orange, lemon, or grapefruit 3.5 mineral waters 3 / 5.5 coffee 3.5 note: the cafe tables are for full-service dining and not for take-away food page 48 DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 372 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement -------------------------------------------------------------------------------------------- north room gatherings 310.393.8282 ask for louise or fred (sample) choice menu fred's salad romaine, chicken salad, potatoes, blue crumbles, lemon vinaigrette, parmesan tuna salad sandwich sustainable line-caught tuna, lettuce, tomato, on sliced multigrain bread, fries or green salad fish tacos alaskan cod, pico de gallo, shredded lettuce, crema fresca, corn tortilla, black beans & rice california omlette feta, tomato, spinach, side grilled potatoes and mini scone coffee, lemonade, ice tea kid's choices chicken fingers & fries pasta marinara SAMPLE CATERING MENUS page 49 DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 373 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement ----------------------------------------------------------------------------------- hors'doeuvre / coctail party menu 310.393.8282 / beachcook@aol.com sample menu $38.50/guest (beverage service additional) passed hors' doeuvres spanikopitas spinach & cheese flaky phyllo triangles maui shrimp spring roll sweet & spicy sauce buratta & tomato confit crostini mini potato rostis with smoked salmon & dill cream cheese fruit & cheese table jarlsberg, brie, aged cheddar, cambozola grapes, dried apricots and marcona almonds crackers & toasts beverages iced tea lemonade, waters & assorted sodas beer, wine & champagne wine-based cocktails cosmos, cucumber mules, pomegranite mojitos additional food choices available / prices vary depending on items selected beverages, assorted non-alcoholic $8.00/person beverages, including beer & wine: $24/person for 4 hour open bar, or 'on consumption' labor estimate for 100 guests: $1650 9.5% sales tax 20% service charge (This fee covers all pre and post event labor, workman's comp and liabiltiy insurance and other costs incurred in the planning and production of your event. This is not a gratuity which is left to the client's discretion.) items & prices subject to change (need to be confirmed at time of booking). other costs to consider: rentals, décor & entertainment.---------------------------------------------------------------- ----------------------------------------------------- page 50 DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 374 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement meetings & retreats 48 hour advance notice 15 person minimum 310.393.8282 ask for fred or louise classic breakfast $16.50/person mini scones & croissants seasonal fresh fruit granola house-made & vanilla yogurt organic coffee, tea, fresh oj +$7.50/person to include egg scramble with jack & avocado egg, cheese & bacon croissant sandwiches +$30.00/hour service staff (3 hour minimum) just coffee service $38.00 (16-18 cups), includes drop off & pick up sandwich & salad table $22.50/person sandwich varieties, choose 4: tuna salad albacore, chicken salad mary's, turkey house-roasted, roast beef, ham&swiss, caprese fresh mozzarella, tomato, basil, or grilled vegetable caesar salad red-jacket potato salad roasted corn salad with arugula and red onion lemonade & iced tea luncheon buffet $30.00/person poached salmon dill cream sauce mango chicken salad with apples, grapes & jicama orzo pasta with grilled vegetables page 51 DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 375 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement marion davies salad greens, cranberries, blue crumbles, caramelized walnuts bread rolls & butter lemonade & iced tea (additional salad options available) +$6.00/person mini desserts: cookies, brownies, pecan bars, apple crumble bars +$2.00/each assorted sodas +$38.00 thermal coffee (16-18 cups) +$30.00/hour service staff (3 hour min) 9.5% tax & 20% service additional items and prices subject to change box lunch $16.50/each sandwich, bag of chips, whole fruit, cookie 20% administrative & production charge (this fee covers all kitchen equipment and serving wares, workman's comp and liability insurance and other costs incurred in the administrative planning and production of your event. This is not a gratuity which is left to the discretion of the client) ----------------------------------------------------------------- page 52 DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 376 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement (sample) mitzah 310.393.8282 / beachcook@aol.com each event is customized, this is meant to be a conversation starter tray passed hors' doeuvres california rolls bbq chicken skewers flatbread margarita pizza kids buffet grass-fed beef sliders chicken fingers tater tots caesar salad penne marinara adults buffet whole roasted salmon dill cream sauce chicken piccatta mary's chicken, lemon caper sauce grilled market vegetables rice pilaf marion davies salad dessert s'more bar & assorted finger sweets beverages soft drinks, lemonade, water, coffee estimated costs: food $32./kid & $46./ adult dessert $12./person beverages, non-alcoholic $8./person beer & wine: (a) $24/adult for 4 hour open bar, or (b) 'on consumption' where you pay per opened bottle. labor for 100 guests for this type of event is estimated at $1650. rentals for 100 guests (standard linens, glassware, plates, flatware) estimated at $1800. 9.5% sales tax 20% service charge (This fee covers all pre and post event labor, workman's comp and liabiltiy insurance and other costs incurred in the planning and production of your event. This is not a gratuity which is left to the client's discretion.) items & prices subject to change (need to be confirmed at time of booking) other costs to consider: décor & entertainment------------------------------------------------------------------- page 53 DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 377 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement ------------------------- weddings 310.393.8282 / beachcook@aol.com each event is customized, this is meant to be a conversation starter sample buffet menu $60.00/guest appetizer station anitpasta bar long-stemmed artichoke hearts, black & green olives sliced meats & salamis, fine assorted cheeses passed hors' doeuvres spanikopitas chicken sate skewers buratta & tomato confit crostini tenderloin of beef carving station, horseradish cream sauce wild alaskan salmon salmon dill cream sauce spinach cannelloni light crepes filled with spinach, ricotta, mushrooms mashed potatoes or rice pilaf tuscan grilled vegetables insalata ricci organic greens, tomato, feta, toasted almonds page 54 DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 378 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement sample sit-down choice menu (wedding) $65.00 passed hors' doeuvres spicy tuna sashimi mini tacos with avocado wild mushroom tartlets shrimp spring rolls mini potato rostis with smoked salmon & dill cream cheese grilled stone fruit starter salad colman farm arugula, burata, tarragon vinaigrette (stone fruits available in summer season) filet mignon mashed potatoes & grilled asparagus black cod miso marinaded, sticky brown rice, asian vegetables polenta with spanish leeks eggplant, romesco sauce page 55 DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 379 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement additional food options hors' doeuvres tray-passed mini potato rostis with smoked salmon & dill cream cheese lobster tartlets fred salad cups crostinis buratta & tomato confit, white bean & sage, eggplant parmesan, marinated shrimp & goat cheese, classic tomato basil suppli saffron-infused arborio rice balls classic deviled eggs crab cakes lump crab meat, tartar sauce ceviche shooters sushi varieties stationary sushi bar crudite hummus & pita baked brie with walnuts, brown sugar, entrees rack of lamb pork tenderloin niman ranch short ribs chicken milanese chicken piccatta rosemary chicken breast herb-crusted halibut ginger-glazed salmon seabass stuffed portabello mushrooms page 56 DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 380 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement whole roasted tomatoes with couscous stuffed cabbage and stuffed peppers rolled eggplant parmesan squash lasagna sides sauteed brocollini haricot verts grilled brussel spouts fingerling potatoes potatoes au gratin heirloom baby carrots couscous quinoa rices food prices vary depending on items selected beverages, assorted non-alcoholic $8.00/person beer & wine: (a) $24/adult for 4 hour open bar, or (b) 'on consumption' where you pay per opened bottle. labor estimate for 100 guests: $24.00.00 for plated events, $1650 for buffets. rentals for 100 guests (standard linens, glassware, plates, flatware) estimated at $1800. 9.5% sales tax 20% administrative & production charge (This fee covers all kitchen equipment and serving wares, workman's comp and liability insurance and other costs incurred in the planning and production of your event. This is not a gratuity which is left to the client's discretion.) items & prices subject to change (need to be confirmed at time of booking). other costs to consider: dessert, décor & entertainment. ------------------------------------------------------- page 57 DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 381 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement beach canopy platters summer 2016 310.393.8282 / beachcook@aol.com 48 hour advance notice please platters feed 8 – 12 guests sandwich platters $100.00 / 10 sandwiches halved choose 2 of the following types per platter tuna salad sandwich green leaf lettuce, tomato smoked salmon wrap spinach wheat tortilla, red onion, basil, cream cheese, arugula caprese sandwich fresh mozzarella, basil, pesto, tomato turkey avocado sandich green leaf lettuce mary's chicken salad sandwich green leaf lettuce, tomato picnic salad platters $80.00 mediterranean pasta salad garbanzo beans, almonds, olive, tomatoes, parmesan, sun-dried tomato vinaigrette red quinoa salad grilled corn, red bell pepper, asparaugs, lime vinaigrette soba noodle salad sesame dressing, crunchy vegetables, ginger tofu kale caesar salad garlic croutons, parmesan, caesar dressing cold entree platters $125.00 beach bowl teriyaki mary's chicken, broccolini, brown rice, pineapple vietnamese pork lettuce wrap ground pork, soy and fish sauce, fresno chili, lime, shaved carrot, lettuce page 58 DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 382 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement AGREEMENT NO. 11238 (CCS) Exhibit 8. Annual Evaluation DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 383 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement Back on the Beach Annual Evaluation Form Concession Agreement CITY OF SANTA MONICA CONCESSIONAIRE DATE BUILDING LOCATION TYPE OF CONCESSION EXCELLENT(E)SATISFACTORY(S)NEEDS IMPROVEMENT(NI)NONCOMPLIANCE/UNACCEPTABLE(NON)COMPLIANCE(COM)NOT APPLICABLE(NA)MONTHLY BASE RENT 8 6 2 0 MONTHLY PERCENTAGE RENT 4 3 1 0 ACCURACY OF STATEMENTS 4 3 1 0 ANNUAL REPORT OF GROSS SALES 0 4 MAINTAINS REGISTER JOURNAL/$TRAIL 0 4 PERFORMANCE BOND 0 4 LIABILITY INSURANCE 0 4 AUTO INSURANCE 0 4 OTHER:0 4 REQUIRED IMPROVEMENTS 0 4 TIME SCHEDULE 0 4 CERTIFICATE OF DEPOSIT 0 4 OTHER:0 4 OPERATING DAYS/HOURS 4 3 1 0 AUTHORIZED FOOD/EQUIPMENT RENTAL/RETAIL ITEMS 4 3 1 0 PERMITTED SIGNAGE/ADVERTISING 4 3 1 0 OPERATING WITHIN BOUNDARIES OF LEASE SPACE (EXHIBIT#4) 4 3 1 0 OTHER:4 3 1 0 EQUIPMENT RENTAL AND RETAIL ITEMS 8 6 2 0 FOOD AND BEVERAGE 8 6 2 0 PRICES 4 3 1 0 BEST EFFORT TO PROMOTE HEALTHY FOOD AND SUSTAINABLE FOOD PRACTICES 4 3 1 0 CUSTOMER SERVICE 8 6 2 0 CONCESSION PERFORMANCE RATING Community Services Department Cultural Affairs Division COMMENTS Explain items which are rated excellent, needs improvement or noncompliance/ unacceptable. Make recommendations for correction for NI and NON rating. Attach additional sheets as necessary.BONDS/INSURANCE/FINANCIAL COMPLIANCECATEGORIES Circle the appropriate points in each category. If category is not applicable, check not applicable (NA) box.CONSTRUCTIONUSE OF PREMISESQUALITY ASSURANCE1 of 2 DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 384 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement Back on the Beach Annual Evaluation Form Concession Agreement CITY OF SANTA MONICACONCESSION PERFORMANCE RATING Community Services Department Cultural Affairs Division OTHER:4 3 1 0 (E)(S)(NI)(NON)(COM)(NA) FIRE SAFETY/PREVENTION 4 3 1 0 GAS/ELECTRIC 4 3 1 0 GENERAL SAFETY 4 3 1 0 OTHER:4 3 1 0 INTERIOR - HOUSEKEEPING/CLEANLINESS 4 3 1 0 INTERIOR - FACILITY MAINTENANCE 4 3 1 0 EXTERIOR - HOUSEKEEPING/CLEANLINESS 4 3 1 0 EXTERIOR - FACILITY MAINTENANCE 4 3 1 0 EXTERIOR - APPROVED PAINTING AND DISPLAYS 4 3 1 0 OTHER:4 3 1 0 TOTAL POINTS PER COLUMN TOTAL POINTS RECEIVED FROM ALL CATEGORIES PERCENT RATING ()() X 100 = OVERALL RATING (Based on percent rating) ARE THERE ANY NONCOMPLIANCE OR UNACCEPTABLE RATINGS IN ANY CATEGORY RATER'S SIGNATURE TITLE DATE Date: In signing this report I do not necessarily agree with the conclusion of the rater. CONCESSIONAIRE'S SIGNATURE TITLE DATE *NOTE: A rating of UNACCEPTABLE or NONCOMPLIANCE in any category will result in an overall rating of no higher han NEEDS IMPROVEMENT. / MAXIMUM POINTS POSSIBLE FOR RATED CATEGORIES RATER DISCUSSED REPORT WITH CONCESSIONAIRE? CATEGORIES COMMENTS SAFETYFACILITY MAINTENANCE Yes No EXCELLENT (90% to 100%)SATISFACTORY (70% to 89%)NEEDS IMPROVEMENT (60% to 69%)UNACCEPTABLE (less than 60%) Yes No 2 of 2 DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 385 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement AGREEMENT NO. 11238 (CCS) Exhibit 9. Improvement Plan DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 386 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement RFP 2021 Back on the Beach Cafe Capital Improvement Plan (work performed during non-summer months) Year 1 $125,000. Roof replacement $ 7,000 Roof-top mechanical screen $20,000 Replace all 3 roof-top Upblast Exhaust Fans & Swamp cooler $ 5,000 Repair exterior cracking cement foundation border on south wall base. $157,000 subtotal Year 2 $25,000 Access renovating restrooms, including new tiled walls, sinks, fixtures, and partitions. $30,000 Retractable canopy over exterior south facing deck with wall-mount heaters. This proposed simple metal frame with retractable fabric canopy, when and if approved, can be built as a temporary structure. $ 18,000 Dining room floors. Remove carpeting, resurface floors $73,000 subtotal Year 3 $55,000 Access replacing all exterior doors & windows $15,000 Replace existing walk-in cooler $70,000 subtotal $300,000. projected total for 3 years, to be paid for out of savings page 41 DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 387 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement AGREEMENT NO. 11238 (CCS) Exhibit 10. Insurance Requirements Concessionaire shall procure and maintain for the duration of the Agreement insurance against claims for injuries to persons or damages to property that may arise from or in connection with the Concessionaire’s possession, occupancy, operation or use of the premises by Concessionaire, its directors, officers, agents, representatives, employees, contractors, subcontractors, volunteers, guests, customers, an invitees. Minimum Scope and Limits of Insurance Coverage shall be at least as broad as: 1.Commercial General Liability (CGL): Insurance Services Office Form CG 00 01 covering CGL on an “occurrence” basis, including products and completed operations, property damage, bodily injury and personal and advertising injury, with limits of no less than $1,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location (Insurance Services Office Form CG 25 04) or the general aggregate limit shall be twice the required occurrence limit. 2.Liquor Liability: Insurance with limits of no less than $1,000,000 per occurrence. 3.Workers’ Compensation: Workers’ Compensation insurance as required by the State of California, with Statutory Limits and Employers’ Liability Insurance with limits of no less than $1,000,000 per accident for bodily injury or disease (see footnote #1). 4.Property Insurance: Insurance covering all personal property stored on the premises, along with any tenant improvements and betterments. The policy shall be written on an “all risks” basis (excluding earthquake) and insure the personal property and improvements/betterments at full replacement cost. The policy shall also be endorsed to provide business interruption coverage in an amount equivalent to one year of monthly base rent at the time of the loss. If Concessionaire maintains broader coverage or higher limits than the minimums shown above, the City of Santa Monica requires and shall be entitled to the broader coverage or higher limits maintained by the Concessionaire. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City of Santa Monica. Other Insurance Provisions 1.The insurance policies are to contain, or be endorsed to contain, the following provisions: a.Additional Insured Status: The City of Santa Monica, its officers, officials, employees and volunteers are to be covered as additional insureds on the CGL policy with respect to liability arising out of the use, occupancy, operations or maintenance of the leased premises, including work or operations performed by or on behalf of Concessionaire. CGL coverage can be provided in the form of an endorsement to the Concessionaire’s insurance DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 388 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement AGREEMENT NO. 11238 (CCS) (at least as broad as Insurance Services Office Form CG 20 10 11 85, or if not available, through the addition of both CG 20 10, CG 20 26, CG 20 33, or CG 20 38 and CG 20 37). b.Primary Coverage: For any claims related to this Agreement, the Concessionaire’s insurance shall be primary coverage as least as broad as Insurance Services Office Form CG 20 01 04 13 as respects the City of Santa Monica, its officers, officials, employees and volunteers. Any insurance or self-insurance maintained by the City of Santa Monica, its officers, officials, employees or volunteers shall be in excess of the Concessionaire’s insurance and shall not contribute with it. c.Notice of Cancellation: Each insurance policy required herein shall state that coverage shall not be cancelled except after notice has been given to the City of Santa Monica. d.Waiver of Subrogation: Concessionaire hereby grants to the City of Santa Monica a waiver of any right of subrogation which any insurer of said Concessionaire may acquire against the City of Santa Monica by virtue of payment of any loss. Concessionaire agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not the City of Santa Monica has received a waiver of subrogation endorsement from the insurer. The Workers’ Compensation policy shall be endorsed with a waiver of subrogation in favor of the City of Santa Monica for all work performed by the Concessionaire, its employees, agents and subcontractors. e.Loss Payee: The property insurance shall name the City of Santa Monica as Loss Payee as its interests appear. Self-Insured Retentions Self-insured retentions must be declared to and approved by the City of Santa Monica. The City of Santa Monica may require the Concessionaire to purchase coverage with a lower retention or provide satisfactory proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention. The policy language shall provide, or be endorsed to provide, that the self-insured retention may be satisfied by either the name insured or the City of Santa Monica. Acceptability of Insurers Insurance is to be placed with insurers authorized to conduct business in California with a current A.M. Best rating of no less than A:VII, unless otherwise acceptable to the City of Santa Monica. Verification of Coverage Concessionaire shall furnish the City of Santa Monica with original certificates and amendatory endorsements (or copies of the applicable policy language effecting coverage provided by this clause). DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 389 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement AGREEMENT NO. 11238 (CCS) All certificates and endorsements are to be received and approved by the City of Santa Monica before the lease commences. However, failure to obtain required documents prior to the lease beginning shall not waive the Concessionaire’s obligation to provide them. The City of Santa Monica reserves the right to require complete, certified copies of all required insurance policies, including the endorsements required herein, at any time. Failure to Maintain Insurance Coverage If Concessionaire, for any reason, fails to maintain insurance coverage which is required pursuant to this Agreement, the same shall be deemed a material breach of contract. The City of Santa Monica, at its sole option, may terminate this Agreement and obtain damages from the Concessionaire resulting from said breach. Maintenance/Concessionaire Improvements Concessionaire shall require and verify that all contractors hired by the Concessionaire maintain CGL with limits of no less than $1,000,000 per occurrence and comply with the insurance requirements stated herein for all maintenance, repair and tenant improvements performed on the leased premises. Contractors performing capital improvements must maintain CGL limits of no less than $3,000,000 per occurrence. All exceptions must be approved in writing by the Risk Manager. Footnotes # 1: Workers’ Compensation insurance coverage is not required if the Concessionaire does not have employees. The Concessionaire must, however, execute the City’s Workers’ Compensation Coverage Exemption Declaration Form. DocuSign Envelope ID: 82485F9D-778F-4B63-8A9F-F111E5219D7B 5.D.d Packet Pg. 390 Attachment: 02_Concession_Agreement_2022-FINAL w EXHIBITS EXECUTED 040722 (6200 : Back on the Beach Cafe Concession Agreement