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HomeMy WebLinkAbout10 - Concession Agreement for Operation of a Restaurant and Concession at Corona del Mar State BeachQ SEW Pp�T CITY OF O � z NEWPORT BEACH <,FORN'P City Council Staff Report October 11, 2022 Agenda Item No. 10 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Seimone Jurjis, Community Development Director - 949-644-3232, sjurjis@newportbeachca.gov PREPARED BY: Lauren Wooding Whitlinger, Real Property Administrator, Iwooding@newportbeachca.gov PHONE: 949-644-3236 TITLE: Concession Agreement for TheJettyCDM, LLC for Operation of a Restaurant and Concession at Corona del Mar State Beach ABSTRACT: For the City Council's consideration is a request to authorize the City Manager to execute a five-year concession agreement for the space located at 3029 Ocean Boulevard, at Corona del Mar State Beach. TheJettyCDM, LLC (Tenant) has operated a restaurant (formerly called Tackle Box) and the seasonal concession window at the property since 2015 under a month -to -month agreement. The Tenant desires to make improvements to the building to expand the dining area to include indoor seating and requests a new agreement as well as approval for limited alcohol sales. RECOMMENDATION: a) Determine this project is categorically exempt from the California Environmental Quality Act (CEQA) pursuant to Sections 15301 and 15303 under Class 1 (Existing Facilities) and Class 3 (New Construction or Conversion of Small Structures), respectively, of the CEQA Guidelines, California Code of Regulations, Title 14, Division 6, Chapter 3, because it has no potential to have a significant effect on the environment. The exceptions to the Class 3 categorical exemption under Section 15300.2 are not applicable; b) Authorize the City Manager and City Clerk to execute a five-year Concession Agreement between TheJettyCDM, LLC and the City of Newport Beach for use and operation of a concession and restaurant at the City -managed Corona del Mar State Beach park located at 3029 Ocean Boulevard, in a form substantially similar to the agreement prepared by the City Attorney; and c) Approve Budget Amendment No. 23-025 to record a budget increase of $3,000 as revenue to the General Fund. 10-1 Concession Agreement for TheJettyCDM, LLC for Operation of a Restaurant and Concession at Corona del Mar State Beach October 11, 2022 Page 2 DISCUSSION: Corona del Mar State Beach (Property) (Attachment C) is owned by the California Department of Parks and Recreation and is managed by the City of Newport Beach (City) under a 30-year Operating Agreement, which requires the City to develop, operate, control, and maintain the Property as public recreational beach and park including related concessions and other facilities. Concession Saace Constructed by the City as part of a capital improvement redevelopment of the park, the approximately 1,043-square-foot concession space (Premises) has been operated by several companies since it was completed in 2007. While the Property is extremely busy during the summer season, with many guests traveling from out of town, during the off-season, beach use is inconsistent and heavily dependent on the weather, with a majority of beachgoers coming from the surrounding neighborhoods in Corona del Mar. This seasonality and fluctuation in attendance numbers has proved challenging for past concession operators trying to stay open year-round. Building Reconfiguration The Premises is located in a building shared with lifeguard operations and an unused marine education office. With two service windows, the interior of the concession is fully maximized with refrigeration, storage and cooking equipment. The Tenant proposes to increase the Premises approximately 596 square feet by enclosing a portion of the front of the building that serves as a loading entrance, incorporate the unused marine education office and storage space into the concession space, reconfigure the restroom and dry storage areas, and add indoor and outdoor seating, resulting in a Premises of approximately 1,639 square feet (Attachment D). In exchange for the Tenant's improvements to the building, the Agreement allows for closure of the Premises for no more than six months, and abatement of base rent up to $10,000. The Tenant plans to proceed with the project upon approval of the lease, and complete construction during the offseason. Any improvements to the Premises will require building permits and possible amendments to the coastal development permit. Operations The Tenant has developed a successful operating model where the restaurant side of the space offers an elevated menu and is open year-round, with the option to close during wintertime inclement weather. The concession side is open only during the summer months and provides a more on -the -go, beach friendly menu, at a lower price point. This fluctuation in operations allows the Tenant to both maximize income and save on overhead costs based on the season and beach population. Business volume and revenues have been consistent the last several years, pandemic closures aside. Seeking to continue growing its business, the Tenant has requested approval to expand seating options and start offering beer and wine on its menu. 10-2 Concession Agreement for TheJettyCDM, LLC for Operation of a Restaurant and Concession at Corona del Mar State Beach October 11, 2022 Page 3 The addition of indoor and outdoor seating will meet both Newport Beach Police Department (NBPD) and State Department of Alcohol Beverage Control (ABC) requirements for alcohol sales. The Tenant has worked with the NBPD and other City staff to agree on operating conditions and restrictions related to alcohol sales, including severely limiting the hours in which alcohol can be sold to Monday through Saturday from 5 p.m. to 9 p.m., and Sunday from 9 a.m. to 9 p.m. Under the Agreement and subject to the Tenant's procurement of a Type 41 license (on -sale beer and wine for a bona fide public eating place) from ABC, alcoholic beverages may only be sold from the restaurant side of the Premises, for on -site consumption in the indoor/outdoor seating areas. Further, the Tenant has done extensive outreach to residents in the surrounding neighborhoods regarding the addition of beer and wine to its menu and has gathered over 200 signatures in support of the proposal (Attachment E). Agreement and Summary of Terms Staff proposes to enter into the Agreement (Attachment A) with the Tenant, which outlines terms and conditions associated with the Tenant's use of the Premises. The proposed terms of the Agreement are summarized below: 1. The initial term is five years, with two five-year extension options. 2. From May through September, the Tenant shall pay a base rent of $3,200 per month, and percentage rent of six percent of gross sales less base rent paid for that month. From October to April, the Tenant shall pay percentage rent of six percent of gross sales. 3. Hours of operation shall be seasonal: a. Open for business daily from at least 9 a.m. to 6 p.m., but no later than 10 p.m., from Memorial Day through Labor Day. b. From Labor Day to Memorial Day, Tenant shall open for business at least four days per week from 11 a.m. to 4 p.m., but no later than 10 p.m. c. With the City's prior written consent, Tenant may temporarily close from December 1 through Newport Beach Restaurant Week or January 31, whichever is earlier. During this period, weather permitting, the Tenant may operate at its discretion. d. Any closures or change to the hours of operation shall be noticed to the public by posting notices at the Premises, to the Tenant's website, and on social media pages. 4. Alcohol sales from the Premises shall be in strict compliance with ABC rules and regulations and shall only be sold in designated areas from 5 p.m. to 9 p.m. Monday through Saturday, and 9 a.m. to 9 p.m. on Sundays. 5. Prior to operating with an alcohol license, the Tenant shall make certain improvements to the Premises to provide indoor and outdoor seating. During the period of construction, which shall not exceed six months, the City will abate base rent payments, if owed, in an amount not to exceed $10,000. 6. The Tenant shall obtain and maintain during the term of the Agreement all appropriate permits, licenses, or approvals that may be required by any governmental agency to construct, operate, and maintain the Premises. 10-3 Concession Agreement for TheJettyCDM, LLC for Operation of a Restaurant and Concession at Corona del Mar State Beach October 11, 2022 Page 4 7. The City shall provide the Tenant a total of four parking permits annually for use of the Corona del Mar State Beach parking lot by employees. 8. The tenant shall provide insurance policies, with the coverage types and limits as approved by the City's Risk Manager. The Agreement has been prepared by the City Attorney's Office. A copy of the proposed Agreement has also been submitted to the State for its review pursuant to the terms of the Operating Agreement. The tenant has reviewed and agreed to the terms of the Agreement. FISCAL IMPACT: Approval of this item will result in an increase of $3,086.30 in annual base rent revenue from the concession. The Budget Amendment (Attachment B) records $3,000.00 in additional revenue for Fiscal Year 2022-23 from rent under the Agreement to the General Fund. The revenue will be posted to the Corona del Mar Concession account in the Community Development Department — 01050505-551210. ENVIRONMENTAL REVIEW: Staff recommends the City Council find this action is categorically exempt from the California Environmental Quality Act (CEQA) pursuant to Sections 15301 and 15303 under Class 1 (Existing Facilities) and Class 3 (New Construction or Conversion of Small Structures), respectively, of the CEQA Guidelines, California Code of Regulations, Title 14, Division 6, Chapter 3, because it has no potential to have a significant effect on the environment. Class 1 consists of the operation, repair, maintenance, permitting, leasing, licensing, or minor alteration of existing public or private structures, facilities, mechanical equipment, or topographical features, involving negligible or no expansion of existing or former use. Class 3 exempts new commercial construction of less than 10,000 square feet in floor area, if zoned for such use, if not involving the use of significant amounts of hazardous substances where all necessary public services and facilities are available, and the surrounding area is not environmentally sensitive. The project includes an agreement and conceptual approval to alter the interior demising play of an existing concession building and thus the project is categorically exempt from CEQA. The exceptions to the Class 3 categorical exemption under Section 15300.2 are not applicable. The developed project site does not impact an environmental resource of hazardous or critical concern, does not result in cumulative impacts, does not have a significant effect on the environment due to unusual circumstances, does not damage scenic resources within a state scenic highway, is not a hazardous waste site, and is not identified as a historical resource. NOTICING: The agenda item has been noticed according to the Brown Act (72 hours in advance of the meeting at which the City Council considers the item). 10-4 Concession Agreement for TheJettyCDM, LLC for Operation of a Restaurant and Concession at Corona del Mar State Beach October 11, 2022 Page 5 ATTACHMENTS: Attachment A — Concession Agreement with TheJettyCDM, LLC Attachment B — Budget Amendment No. 23-025 Attachment C — Map Attachment D — Site Plans Attachment E — Neighborhood Outreach Materials 10-5 Attachment A Concession Agreement by and between the City of Newport Beach and TheJettyCDM, LLC 10-6 CONCESSION AGREEMENT by and between CITY OF NEWPORT BEACH, a California municipal corporation and charter city "Cit 1. and THEJETTYCDM, LLC a California limited liability company "Concessionaire" Dated , 2022 10-7 CONCESSION AGREEMENT THIS CONCESSION AGREEMENT ("Agreement") is made and entered into as of the _ day of , 2022 ("Effective Date"), by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City"), and THEJETTYCDM, LLC, a California limited liability company ("Concessionaire"). City and Concessionaire are at times individually referred to as "Party" and collectively as "Parties" herein. RECITALS A. Corona del Mar State Beach is part of the California State Parks system, and is operated by City pursuant to the Operating Agreement by and between City and the State of California, dated August 1, 1999 (the "Operating Agreement). Pursuant to the Operating Agreement, City agreed "to develop, operate, control and maintain the premises as public recreational beach and park with related concession..." B. Brothers Huskey, LLC began operating the concession "Tackle Box" at 3029 Ocean Boulevard, Newport Beach, California 92625 on Corona del Mar State Beach ("Property") under a month -to -month concession agreement dated October 29, 2015 ("Month -to -Month Agreement"). The Property is depicted on Exhibit "A" and incorporated herein by reference. C. In November 2015, City conducted an informal solicitation seeking proposals for operation of a concession at the Property. After reviewing the proposals, City elected to continue to allow Brothers Huskey, LLC to operate the Tackle Box concession for a longer trial basis and extended the Month -to -Month Agreement. D. Brothers Huskey, LLC subsequently dissolved and one of its former members formed THEJETTYCDM, LLC to continue the operation of a restaurant. E. City and Concessionaire now desire to terminate the Month -to -Month Agreement and enter into a longer -term agreement for the purpose of allowing Concessionaire to operate a restaurant ("Concession"), as more fully described in Section 5 herein, on a portion of the Property consisting of approximately 1,639 square feet ("Premises"), as depicted on Exhibit "B" attached hereto and incorporated herein by this reference. F. Pursuant to City Council Policy F-7, City did not conduct an open bid process for the leasing of the Premises as converting the Premises to another use or changing the current concessionaire of the Premises would result in loss in revenue, excessive vacancy, and relocation or severance costs, which would outweigh other financial benefits. Although no appraisal was conducted, Rent, as defined herein, is comparable to current market rates to ensure that revenue is equivalent to the open market value of the highest and best use of the Premises and the highest financial return. Concession Agreement - THEJETTYCDM, LLC Page 2 w: NOW, THEREFORE, in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt of which is hereby acknowledged, the Parties hereto agree as follows: AGREEMENT 1. DEFINITIONS 1.1 General Definitions. As used in this Agreement, the following words and phrases shall have the following meanings: (a) Alteration — any improvements, additions, alterations, changes, or modifications of the Premises made by Concessionaire including, but not limited to fixtures and signage, and including Concessionaire Improvements. (b) Authorized City Representative — the City Manager or his/her designee. (c) Expiration - the lapse of the time specified as the Term of this Agreement, including any extension of the Term resulting from the exercise of an option to extend. (d) Good Condition - neat and broom -clean, and is equivalent to similar phrases referring to physical adequacy in appearance and for use. (e) Rent — includes Base Rent, Percentage Rent, taxes, and other similar charges payable by Concessionaire under the provisions of this Agreement. (f) Termination - the termination of this Agreement, for any reason, prior to Expiration. (g) Other Definitions. - The following additional terms are defined in the following sections of this Agreement: (1) Base Rent §4.2 (2) Claim or Claims §10.1 (3) Concession Recital E, §5.1 (4) Concessionaire Improvements §8.1 (5) Gross Sales §4.7 (6) Hazardous Materials §17 (7) Indemnified Parties §10.1 Concession Agreement - THEJETTYCDM, LLC Page 3 10-9 (8) Percentage Rent §4.4 (9) Property Recital B (10) Premises Recital E (11) Rent §4 (12) Term §3 2. PREMISES City finds it to be in the public interest and consistent with park uses to grant an exclusive right to operate a concession at the Premises. Therefore, pursuant to the terms and conditions set forth herein, City hereby grants to Concessionaire the exclusive right, privilege and concession to conduct a business at the Premises as described in Section 5 of this Agreement. Concessionaire acknowledges that City has delivered the Premises in an "as is" condition and accepts the Premises in such condition. Concessionaire agrees that City has made no representations or warranties with respect to the condition or suitability of the Premises or any construction or improvements except as specifically set forth in this Agreement. Concessionaire acknowledges that Concessionaire, or unrelated third parties occupying the Premises prior to Concessionaire, may have constructed improvements and installed fixtures, furniture, and equipment on the Premises, and Concessionaire agrees it is relying solely on its own inspections and investigations regarding the condition of the Premises, including fixtures, furniture, and equipment, the surrounding area and other matters related thereto. 3. TERM 3.1 Initial Term. The Term of this Agreement shall be five (5) consecutive years from the Effective Date (the "Initial Term"), unless extended as provided in Section 3.2 below, or terminated in accordance with the other provisions of this Agreement. 3.2 Option Term. Provided Concessionaire is not then in default beyond applicable notice and cure periods, upon Concessionaire's written notice, and upon written approval of City, Concessionaire may extend the Term of this Agreement for two (2) additional successive terms of five (5) years each ("Option Term" or "Option Terms"), on the same terms and conditions as contained in this Agreement. Concessionaire shall give City its written notice of intention to extend the Term at least six (6) months prior to expiration of the current Term. 3.3 Terms of Lease. The "Term" is defined as the Initial Term and, if exercised, any Option Terms. 3.4 Hold Over. Should Concessionaire, with City's consent, hold over and continue in possession of the Premises after the Initial Term or any Option Term, Concession Agreement - THEJETTYCDM, LLC Page 4 10-10 Concessionaire's continued occupancy of the Premises shall be considered a month -to - month tenancy subject to all the terms and conditions of this Agreement, except the provisions of Sections 3.1 and 32. 4. RENT 4.1 General. From May to September of each year, Concessionaire shall pay Base Rent and Percentage Rent. From October to April of each year, Concessionaire shall only pay Percentage Rent. 4.2 Base Rent. The Base Rent shall be established at There Thousand Two Hundred Dollars and 001100 Dollars ($3,200.00) per month. Base Rent shall be paid, in advance, on the first day of each month from May to September. Base Rent for any partial month shall be prorated in accordance with the actual number of days in that month and shall be due on the first day of that month that falls within the Term. 4.3 Rent Adjustments. Annually, upon each successive anniversary date of the Effective Date, the Base Rent shall be adjusted to reflect the increases in the cost of living as indicated by the Consumer Price Index described below. Base Rent may be adjusted if the Consumer Price Index for the Los Angeles — Long Beach — Anaheim Area, All Urban Consumers, All Items ("Index"), as published by the United States Department of Labor, Bureau of Labor Statistics ("Bureau"), increases over the Base Period Index. The initial "Base Period Index" shall be the Index for the calendar month which is four (4) months prior to the month of the Effective Date's annual anniversary. The initial Base Period Index shall be compared with the Index for the same calendar month for each subsequent year ("Comparison Index"). The Comparison Index used for a given year's adjustment calculation will become the Base Period Index for purposes of the next annual Base Rent adjustment calculation. If the Comparison Index is higher than the Base Period Index, then Base Rent for the next year shall be increased by the amount of such percentage change, subject to a maximum increase of three percent (3%). In no event shall Base Rent be reduced below the current Base Rent. Should the Bureau discontinue the publication of the above Index, or publish same less frequently, or alter same in some other manner, then the parties shall adopt a substitute Index or substitute procedure which reasonably reflects and monitors consumer prices. 4.4 Percentage Rent. 4.4.1 Payment. "Percentage Rent" shall be calculated by multiplying six percent (6%) by the total Gross Sales (as defined in Section 4.7) for the calendar month. Payment of Percentage Rent is due no later than twenty-five (25) days after the end of the month. In months where Percentage Rent exceeds Base Rent, Concessionaire shall pay to City Percentage Rent less the amount of Base Rent paid for that month. 4.4.2 Accounting and Payment. Concessionaire shall submit with each Percentage Rent payment a written statement showing the total Gross Sales for that Concession Agreement - THEJETTYCDM, LLC Page 5 10-11 month (or fractional month when applicable). The written statement shall be on a form satisfactory to City and certified by Concessionaire to be correct. 4.5 Revenue from Premises Use in Film, Television, and/or Advertising. Concessionaire may allow the Premises to be used for film, television production, advertising production, or other media vehicle only upon written approval from City and in compliance with the Newport Beach Municipal Code. One-half (1/2) of all monetary revenue received by Concessionaire as compensation or other payment for the use of the Premises in a film, television production, advertising production, or other media vehicle shall be paid to City no later than thirty (30) days after Concessionaire receives this compensation or other payment. 4.6 Payment Location. Rent shall be payable at the office of City's Revenue Division at 100 Civic Center Drive, Newport Beach, California, or at such other place or places as City may from time to time designate by written notice delivered to Concessionaire; or by electronic delivery if mutually agreed upon by City and Concessionaire at www.newportbeachca.gov. Concessionaire assumes all risk of loss and responsibility for late charges and delinquency rates if Rent is not timely received by City regardless of the method of transmittal. 4.7 Gross Sales. 4.7.1 The term "Gross Sales" means: (1) All money, cash receipts, assets, property or other things of value, including but not limited to gross charges, sales, rentals, fees and commissions made or earned by Concessionaire and/or any assignees, licensees, permittees or concessionaires thereof, whether collected or accrued from any business, use or occupation, or any combination thereof, originating, transacted or performed in whole or in part, on the Premises, including but not limited to rentals, the rendering or supplying of services and the sale of goods, wares or merchandise, whether wholesale or retail, whether for cash or credit, or otherwise, and including the value of all consideration other than money received for any of the foregoing, without, except as expressly provided in Section 4.7.2, deduction from gross receipts for any overhead or cost or expense of operations, such as, but without limitation to salaries, wages, costs of goods, interest, debt amortization, credit, collection costs, discount from credit card operations, insurance and taxes. Each installment or credit sale shall be treated as a sale for the full price in the month during which such sale is made, irrespective of whether or when Concessionaire receives payment therefor. Gross Sales shall include any amount allowed upon any "trade in," the full retail price of any merchandise delivered or redeemed for trading stamps or coupons and all deposits not refunded to customers; (2) Orders taken in or from the Premises, even if the orders are filled elsewhere, and sales by any subconcessionaire in or from the Premises; Concession Agreement - THEJETTYCDM, LLC Page 6 10-12 (3) Gross receipts of all coin -operated devices that are placed on the Premises by Concessionaire or pursuant to any rent concession, percentage or other arrangement (but excluding revenue from telephones that are collected by a public and/or private utility); and (4) Rentals of any beach equipment, beach furniture, goods, wares or merchandise. 4.7.2 Exclusions from Gross Sales. Gross Sales shall not include, or if included there shall be deducted (but only to the extent they have been included), the following: (1) Sales and use taxes, so-called luxury taxes, consumers' excise taxes, gross receipts taxes, and other similar taxes now or in the future imposed on the sale of merchandise or services, but only if such taxes are added to the selling price and collected from customers; (2) The amount of returns to shippers or manufacturers, (3) The amount of any cash refund or credit refund made upon any sale where the merchandise sold or some portion of the merchandise sold is returned by the customer. The amount of said refund shall be considered an exclusion from Gross Sales in the month during which such refund is provided by Concessionaire to the customer. The corresponding sale (whether paid in full or partial), shall be treated as a sale for the full price in the month during which such sale was consummated, irrespective of the time when Concessionaire shall receive payment (whether in full or partial) from its customers; (4) Sales of trade fixtures or personal property to be replaced by Concessionaire that are not considered stock in trade; (5) Sums and credits received in the settlement of claims for loss of or damage to merchandise, (6) Meals provided for officers or employees without charge; (7) Meals, goods or products provided for promotional or publicity purposes without charge; (8) Cash refunds made to customers in the ordinary course of business; (9) Value added taxes ("VAT') or other taxes added to the selling price of products and other similar taxes now or hereafter imposed upon the sale of merchandise or services, whether such taxes are added to, or included in the selling price; Concession Agreement - THEJETTYCDM, LLC Page 7 10-13 (10) Discounted sales to employees of Concessionaire, not to exceed two percent (2%) of the monthly Gross Sales; (11) Uncollectible credit accounts and other bad debts, not to exceed two percent (2%) of the monthly Gross Sales; and (12) Amounts paid to charge card or credit card issuers. 4.7.3 Annual Statements of Gross Sales. Within thirty (30) days after the end of each calendar year during the Term hereof and within thirty (30) days of Termination of this Agreement, Concessionaire shall furnish to City a statement in writing, certified by Concessionaire and a Certified Public Accountant to be correct, showing the total Gross Sales made in, upon, or from and/or otherwise attributable to the Premises during the preceding calendar year (or fractional year when applicable). 4.7.4 Sales and Char. All sales and charges shall be recorded by point of sale (POS) systems that display the amount of the transaction certifying the amount recorded. The POS systems shall log daily sales totals and keep records of the transaction numbers and sales details. 4.7.5 Production of Statement, Records and Audit. Concessionaire shall keep at the Premises (and shall require any permitted subconcessionaire to keep at the Premises) full, complete and proper books, records and accounts of its daily Gross Sales, both for cash and on credit, at any time operated in the Premises. Concessionaire agrees to make available for inspection by City at the Premises, a complete and accurate set of books and records of all sales of goods, wares, and merchandise and revenue derived from the conduct of business or activity in, at or from the Premises from which Gross Sales can be determined. Concessionaire shall also make available, upon City request, all supporting records. Concessionaire shall also furnish City copies of its quarterly California sales and use tax returns at the time each is filed with the State of California. Concessionaire shall retain and preserve for at least three (3) years all records, books, bankbooks or duplicate deposit books and other evidence of Gross Sales. City shall have the right, upon reasonable notice, during the Term and within one hundred eighty (180) days after Expiration or Termination of this Agreement to inspect and audit Concessionaire's books and records and to make transcripts to verify the Rent due to City. The audit may be conducted at any reasonable time during normal business hours. Concessionaire shall cooperate with City in making the inspection and conducting the audit. The audit shall be limited to the determination of Gross Sales and shall be conducted during usual business hours in a manner that minimizes any interference with the conduct of Concessionaire's regular business operations. Any deficiency in payment of Rent and any overpayment of Rent shall be paid or refunded, as applicable, within twenty (20) days after the completion of the audit. City shall bear its costs of the audit unless the audit shows that Concessionaire understated Gross Sales by more than two percent (2%), in which case Concessionaire shall pay all City's reasonable costs of the audit. City shall not disclose financial information received in confidence and pursuant to this Agreement except to cant' out the purposes of this Agreement unless disclosure is Concession Agreement - THEJETTYCDM, LLC Page 8 10-14 required (rather than permitted) by law. However, City may disclose the results of any audit in connection with any financing arrangements, the sale or transfer of City's interest in the Premises, pursuant to order of a court or administrative tribunal, or to collect any outstanding Rent. 4.7.6 Concessionaire's Gross Sales Audit. In the event of any audit by City in accordance with this Agreement, Concessionaire may contest the results of City's audit by performing a confirming audit, at Concessionaire's expense, within sixty (60) days of receipt of City's audit results and supporting evidence, using an independent Certified Public Accountant reasonably acceptable to City. 4.7.7 Acceptance. The acceptance by City of any money paid to City by Concessionaire as Percentage Rent for the Premises, as shown by any statement furnished by Concessionaire, shall not be construed as an admission of the accuracy of said statement, or of the sufficiency of the amount of the Percentage Rent payment. 4.8 Late Payment. Concessionaire hereby acknowledges that the late payment of Rent or other sums due hereunder will cause City to incur costs not contemplated by this Agreement, the exact amount of which is extremely difficult to ascertain. Such costs include, but are not limited to, processing and accounting charges. Accordingly, any sum owed by Concessionaire that is not paid within five (5) days of its due date shall be subject to a ten percent (10%) late charge. City and Concessionaire agree that this late charge represents a reasonable estimate of such costs and expenses and is fair compensation to City for its loss suffered by such late payment by Concessionaire. 4.9 Interest on Unpaid Sums. Unpaid sums due to either City or Concessionaire under this Agreement shall bear interest at the rate of ten percent (10%) per annum on the unpaid balance, including but not limited to late payment penalties, from the date due until paid. 5. BUSINESS PURPOSES AND USE OF PREMISES 5.1 Business Purposes. The Premises are to be used by Concessionaire for the operation of a bona fide eating place selling food, consisting of a kitchen, dining area, enclosed patio and dry storage. Alcoholic beverages may be sold by Concessionaire in accordance with the necessary permits and licenses, subject to the conditions set forth in Exhibit "C" attached hereto and incorporated herein by reference (the "Alcohol Conditions"), as may be modified from time to time by the Newport Beach Police Department and notified to Concessionaire in writing. Concessionaire shall be solely responsible for obtaining all required permits and licenses for the provision of alcoholic beverages, including, but not limited to, California Department of Alcoholic Beverage Control license(s). 5.2 Operation of Premises. Concessionaire shall operate and manage the Premises in a manner comparable to other high -quality businesses providing similar food Concession Agreement - THEJETTYCDM, LLC Page 9 10-15 and services and prices competitive with similar beach concession facilities. Deliveries shall be made and completed only between 7 a.m. and 6 p.m. on non -holiday weekdays. 5.3 Prohibited Uses. Concessionaire shall not sell or permit to be kept, used, displayed or sold in or about the Premises (a) pornographic or sexually explicit books, magazines, literature, films or other printed material, sexual paraphernalia, or other material which would be considered lewd, obscene or licentious, (b) any article which may be prohibited by standard forms of fire insurance policies, or (c) any alcoholic beverages not otherwise permitted and licensed under this Section 5 of the Agreement. Vending machines, gaming machines or video or arcade games shall not be used or installed on the Premises unless expressly permitted by this Agreement. Concessionaire shall not use or permit the use of the Premises in any manner that (a) creates a nuisance or (b) violates any Law. Concessionaire shall not offer entertainment or broadcast music or entertainment through exterior speakers or other form of transmission without the written approval of City. In this event, Concessionaire shall obtain all required City permits and approvals. 5.4 No Smoking. No smoking or vaping is permitted on the Property and Premises. "Smoking" means and includes inhaling, exhaling, burning, or carrying any lighted smoking equipment for tobacco or any other weed or plant. "Vaping" means and includes inhaling or exhaling any vaporized liquid or solid, usually from a battery -operated electronic device. 5.5 Food Packaging and Debris. Concessionaire shall use food packaging consistent with good environmental practices, including prohibiting polystyrene (also known as Styrofoam) from the Premises, minimizing the use of PVC plastics (especially plastic bags for carrying food), and providing both trash receptacles and places for customers to dispose of recyclable products. 5.6 Outdoor Dining. In addition to the outdoor dining areas identified in Exhibit "B", Concessionaire shall be permitted to place tables and chairs on a portion of the paved area outside of the Premises. Use of the paved area by Concessionaire is on a non- exclusive basis, and shall be in accordance with City zoning codes and State requirements. The layout of the tables is subject to approval by City. All furniture and associated equipment shall be capable of being moved or relocated to provide adequate circulation and paths of travel around the Premises. Concessionaire may not expand onto the beach area, or place any temporary furniture or objects onto the beach area unless expressly approved or permitted in writing by City. 5.7 Seasonal Operation. Concessionaire shall keep the Premises in operation and open to the public for business in accordance with the following schedule: 5.7.1 Minimum Hours of Operation. Weather permitting, minimum hours of operation of the Premises shall be: Concession Agreement - THEJETTYCDM, LLC Page 10 10-16 (1) From Memorial Day through Labor Day: open daily, hours from at least 9:00 a.m. to 6:00 p.m., but no earlier than 6:00 a.m. and no later than 10:00 p.m. (2) From the day after Labor Day to the day before Memorial Day: open Wednesday to Sunday or five (5) days per week, hours from at least 11:00 a.m. to 4:00 p.m., but no earlier than 6:00 a.m. and no later than 10:00 p.m. 5.8 Off -Seasonal Operation. In consideration of the seasonality of the location of the Premises, at its discretion, Concessionaire may temporarily close the Premises on Tuesdays, Wednesdays and/or Thursdays (either continuous or intermittently) during the months of November through March each year. Additionally, Concessionaire may temporarily close the Premises from December 1 through January 31, or through the start of Newport Beach Restaurant Week, but in no event later than January 31 each year unless otherwise first approved in writing by an Authorized City Representative. Notwithstanding the provisions of this subsection, Concessionaire may, at its discretion, open weather permitting. 5.9 Inclement Weather. In consideration of the variable weather of the Premises, at its discretion, Concessionaire may temporarily close any regularly scheduled day or partial day of operation due to inclement weather, which shall include rain, mist, high winds, or severe high or low temperatures. Rent set forth under Section 4 of this Agreement shall continue to be due and payable in full and shall not be altered, modified reduced or prorated due to Concessionaire's election to temporarily close due to inclement weather. 5.10 Closure for Construction. Concessionaire may close the Premises during periods of remodeling, reconstruction, inventory and emergencies (including substantially inclement weather) or to comply with laws. During the period of an approved closure for construction, Base Rent shall be abated on a prorated basis in compliance with Section 12 below. 5.11 Notice to Public Temporary Change in Operation. Concessionaire shall, at least thirty (30) calendar days in advance of any off-season closures, closures for construction, or change in hours of operation, notify City in writing and post notices in and upon the Premises, and to Concessionaire's website and social media pages, informing customers of the changes. Concessionaire shall immediately, or whenever reasonable at least forty-eight (48) hours in advance, post notices in and upon the Premises, and to its website and social media pages informing customers of any temporary change in hours of operation due to inclement weather. 5.12 Food Preparation. Concessionaire shall install, at Concessionaire's own expense, fire protective systems in grill, deep fry, and cooking areas which are required by City, County, and state fire ordinances. Concessionaire shall also install adequate ventilation systems to operate the cooking area. Concession Agreement - THEJETTYCDM, LLC Page 11 10-17 5.13 Advertising Display. Concessionaire may, at its own expense, place unlit signs in or upon the Premises and Property subject to the prior written consent of City as to the size, type, number, design and method of installation and in compliance with City's sign code regulations. All signage placed by Concessionaire on, in or about the Premises and Property shall remain the property of Concessionaire and shall be removed by Concessionaire upon Termination or Expiration of this Agreement at Concessionaire's expense; and any damage caused by removal shall be repaired at Concessionaire's expense. 5.14 Personnel. Concessionaire shall be responsible for hiring the necessary personnel to conduct the daily operation of Concession. Concessionaire shall comply with all federal, state, and local Laws related to minimum wage, social security, nondiscrimination, ADA, unemployment compensation, and workers' compensation. If required by City, employees shall wear a uniform and/or identification badge. 5.15 Independent Contractor. It is understood that Concessionaire is an independent contractor and not an agent or employee of City. The manner and means of operating the Premises are under the control of Concessionaire, except to the extent they are limited by statute, rule or regulation and/or the expressed terms of this Agreement. No civil service status or other right of employment shall accrue to Concessionaire's employees. Nothing in this Agreement shall be deemed to constitute approval for Concessionaire or any of Concessionaire's employees or agents, to be the agents or employees of City. City shall have no interest in the business of Concessionaire. 5.16 No Distress Sales. No auction, fire, bankruptcy, "going out of business" or other distress sales of any nature may be conducted on the Premises without the prior written consent of an Authorized City Representative, which approval will not be unreasonably withheld but may be conditioned. 5.17 Parking for Employees. City grants Concessionaire a non-exclusive right to the parking areas, as shown on Exhibit "D" and incorporated herein by this reference. City reserves the right to relocate such parking areas, or assign parking in the future. City shall provide Concessionaire with a total of four (4) parking permits each year for use of the parking lot at the Property by its employees. The permits issued by City shall be designed to permit use by different employees from day to day. Concessionaire shall cause its employees to comply with the procedures and regulations established by the City from time -to -time to control parking. The parking permits shall terminate upon Termination or Expiration of this Agreement. 6. TAXES, LICENSES AND OTHER OBLIGATIONS 6.1 Payment of Taxes. Concessionaire shall pay directly to the appropriate taxing authorities all taxes applicable to this Agreement, fixtures and Concessionaire's personal property on the Premises, that are levied or assessed against Concessionaire during the Term. Taxes shall be paid at least ten (10) days before delinquency and before any fine, interest or penalty is due or imposed by operation of law. Concessionaire shall, Concession Agreement - THEJETTYCDM, LLC Page 12 10-18 upon request, promptly fumish to City satisfactory evidence of payment. Concessionaire acknowledges that this Agreement may create a possessory interest subject to property taxation and that Concessionaire may be subject to the payment of property taxes levied on such interest. Concessionaire shall pay, before delinquency all taxes, assessments, license fees and other charges (`Taxes") that are levied or assessed against Concessionaire's interest in the Premises or any personal property installed on the Premises. 6.2 Payment of Obligations. Concessionaire shall promptly pay, when due, any and all bills, debts, liabilities and obligations incurred by Concessionaire in connection with Concessionaire's occupation and use of the Premises. 6.3 Challenge to Taxes. Concessionaire shall have the right in good faith, at its sole cost and expense, to contest the amount or legality of any Taxes on or attributable to this Agreement, the Premises, Concessionaire's personal property, or Concessionaire's occupation and use of the Premises, including the right to apply for reduction. If Concessionaire seeks a reduction or contests such taxes, Concessionaire's failure to pay the taxes shall not constitute a default as long as Concessionaire complies with the provisions of this Section. City shall not be required to join in any proceeding or contest brought by Concessionaire unless the provisions of any Law require that the proceeding or contest be brought by or in the name of City or any owner of the Premises. In that case, City shall join in the proceeding or contest or permit it to be brought in City's name as long as City is not required to bear any cost. If requested by Concessionaire, City shall execute any instrument or document necessary or advisable in connection with the proceeding or contest. Concessionaire, on final determination of the proceeding or contest, shall immediately pay or discharge any decision or judgment rendered, together with all related costs, charges, interest and penalties. Concessionaire shall indemnify, defend and hold harmless City, including its City Council, appointed and elected officers, boards and commissions, employees, Authorized City Representatives, agents and volunteers, from and against any liability, claim, demand, penalty, cost or expense arising out of or in connection with any contest by Concessionaire pursuant to this Section. 7. UTILITIES Concessionaire shall make all arrangements for utilities installation and pay for all utilities fumished to or used on the Premises, including, without limitation, gas, electricity, water, telephone service, and cable TV. Concessionaire may use City's trash enclosures or public trash cans, provided however, that City may, at City's discretion, require Concessionaire to arrange for its own refuse collection. Any repair to utility lines within the Premises is the sole responsibility of Concessionaire. Concessionaire shall service and maintain the Concession's 1500-gallon grease interceptor. Refuse collection and grease interceptor maintenance shall occur between 7:00 a.m. and 6:00 p.m. on non - holiday weekdays. 8. CONCESSIONAIRE IMPROVEMENTS; ALTERATIONS TO THE PREMISES Concession Agreement - THEJETTYCDM, LLC Page 13 10-19 8.1 Concessionaire Improvements. Subject to all applicable laws, it shall be Concessionaire's responsibility to install or replace any improvements to the Premises as necessary for the Concession to operate in a responsible, safe and lawful manner as described in Section 5 of this Agreement, including those improvements as depicted in Exhibit "E" attached hereto and incorporated herein by reference ("Concessionaire Improvements"). The Concessionaire Improvements must be completed prior to Concessionaire operating any alcohol services on the Premises. Concessionaire shall submit plans, diligently pursue their approval, and begin construction of Concessionaire Improvements within twelve (12) months of the Effective Date of this Agreement. Final design of the Concessionaire Improvements shall be subject to the prior written approval by City, as may be modified in order to obtain certain permits as may be necessary. The installation of Concessionaire Improvements shall be in strict compliance with the approved final design, and construction shall be performed between 7:00 a.m. and 6:00 p.m. on non -holiday weekdays. 8.2 Concessionaire's Architects and Contractors. All Concessionaire Improvements and any subsequent repairs, alterations, additions or improvements to any of the foregoing shall be designed, selected or constructed, as applicable, by qualified and licensed (where required) architectural, design, engineering and construction firms selected by Concessionaire. Any contractors hired by Concessionaire shall be fully licensed and bonded. Concessionaire's contractors and any subcontractors shall obtain insurance in an amount and form to be approved by City's Risk Manager, including workers compensation insurance as required by law, general liability, automobile liability and builder's risk insurance covering improvements to be constructed, all pursuant to standard industry custom and practice. City, its elected or appointed officers, officials, employees, agents and volunteers, and the State of California, its elected or appointed officers, officials, employees, agents and volunteers shall be named as an additional insured on the contractors and any subcontractors policies. 8.3 Costs of Construction. Concessionaire shall bear all costs and expenses associated with the design and construction of the Premises, which costs and expenses include without limitation all modifications, alterations and improvements to the dining area, employee restroom and storage area and outdoor dining area. 8.4 Prevailing Wages. Pursuant to the applicable provisions of the Labor Code of the State of California, not less than the general prevailing rate of per diem wages including legal holidays and overtime work for each craft or type of workman needed to execute the work contemplated under this Section shall be paid to all workmen employed on the work to be done according to this Section by the Concessionaire's contractors and any subcontractor. In accordance with the California Labor Code (Sections 1770 et seq.), the Director of Industrial Relations has ascertained the general prevailing rate of per diem wages in the locality in which the work is to be performed for each craft, classification, or type of workman or mechanic needed to execute the Concessionaire Improvements. A copy of said determination is available by calling the prevailing wage hotline number (415) 703-4774, and requesting one from the Department of Industrial Relations. Concessionaire's contractors and subcontractors are required to obtain the wage Concession Agreement - THEJETTYCDM, LLC Page 14 10-20 determinations from the Department of Industrial Relations and post at the job site the prevailing rate or per diem wages. It shall be the obligation of Concessionaire's contractors or any subcontractor under him/her to comply with all State of California labor laws, rules and regulations and the parties agree that the City shall not be liable for any violation thereof. 8.5 Permits. Concessionaire shall obtain, and be responsible for the costs for, all building permits, health department permits, alcohol licensing permits, and other required permits prior to commencement of Concessionaire Improvements and operations. 8.6 Quality of Work Performed. All Concessionaire Improvements, alterations, maintenance and other work shall be performed in a good and workmanlike manner, shall comply with the plans and specifications submitted to City, and shall comply with all applicable governmental permit requirements and Laws in force at the time permits are issued. 8.7 Payment of Costs. Concessionaire shall pay all costs related to the construction of the Concessionaire Improvements and any other alterations by Concessionaire or its agents. 8.8 Liens. Concessionaire shall keep the Premises free from any liens arising out of any work performed, material furnished, or obligation incurred by Concessionaire or alleged to have been incurred by Concessionaire. 8.9 Disposition of Concessionaire Improvements at Expiration or Agreement Termination. Any Concessionaire Improvements or other alterations made to the Premises (excluding Concessionaire's fixtures, equipment, furniture, and moveable decorations) shall remain on, and be surrendered with, the Premises on Expiration or Termination of this Agreement. Except in the case of termination for default as set forth under Section 14 of this Agreement, City may require Concessionaire to remove any Concessionaire Improvements or alterations that Concessionaire has made to the Premises by providing notice at least thirty (30) days prior to the Expiration or Termination of this Agreement. If City requires such removal, Concessionaire shall, at its cost, remove the Concessionaire Improvements or alterations and restore the Premises to Good Condition before the last day of the Term, or within thirty (30) days after notice is given, whichever is earlier. Prior to Expiration or within fifteen (15) days after Termination of this Agreement, Concessionaire may remove any moveable partitions, machinery, equipment, furniture, and trade fixtures previously installed by Concessionaire, provided that Concessionaire repairs any damage to the Premises caused by removal. 9. MAINTENANCE OF PREMISES 9.1 Maintenance by Concessionaire. Concessionaire agrees that it will keep the Premises, including all furnishings, equipment, facilities, improvements, alterations, attachments and appurtenances not provided by City, but required for Concession Concession Agreement - THEJETTYCDM, LLC Page 15 10-21 operations, including all kitchen equipment and interior furnishings, in Good Condition at its cost. Graffiti shall be called in to City's Graffiti Hotline for removal. 9.2 Maintenance by City. City may perform maintenance in the event Concessionaire fails to commence required maintenance within three (3) business days after receipt of notice to do so. The cost of any maintenance by City pursuant to this Section shall be payable as additional Rent. City may perform required cleaning and charge the costs to Concessionaire if the Concessionaire fails to perform within five (5) days after notice to do so and continue to maintain the area as required by this Agreement. 9.3 Entry by City. Upon twenty-four (24) hour notice to Concessionaire, City and its Authorized City Representatives may enter upon and inspect the Premises at any reasonable time for any lawful purpose. In case of emergency, City or its Authorized City Representative may enter the Premises by whatever force necessary if Concessionaire is not present to open and permit an entry. Any entry to the Premises by City shall not be construed as a forcible or unlawful entry into, or a detainer of, the Premises, or an eviction of Concessionaire from the Premises or any portion thereof. 10. INDEMNITY AND EXCULPATION; INSURANCE 10.1 Hold -Harmless Clause. Concessionaire agrees to indemnify, defend and hold harmless City, its City Council, Boards, Commissions, officers, agents, volunteers, employees, and the State of California (collectively, the "Indemnified Parties") from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever (individually, a "Claim"; collectively, "Claims"), which may arise from or in any manner relate (directly or indirectly) to Concessionaire's possession, occupation or use of the Premises, specifically including, without limitation, any claim, liability, loss, or damage arising by reason of: (1) The death or injury of any Person or damage to personal property caused or allegedly caused by the condition of the Premises or an act or omission of Concessionaire or an agent, contractor, subcontractor, supplier, employee, servant, sublessee or concessionaire of Concessionaire; (2) Any work performed on the Premises or materials furnished to the Premises at the request of Concessionaire or any agent or employee of Concessionaire, with the exception of maintenance performed by City; and/or (3) Concessionaire's failure to perform any provision of this Agreement or to comply with any requirement of Law or any requirement imposed on the Premises by any duly authorized governmental agency or political subdivision. Concession Agreement - THEJETTYCDM, LLC Page 16 10-22 Concessionaire's obligations pursuant to this Subsection shall not extend to any Claim proximately caused by the sole negligence, willful misconduct, or unlawful or fraudulent conduct on the part of the Indemnified Parties. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. 10.2 Exculpation of City. Except as otherwise expressly provided in this Agreement, City shall not be liable to Concessionaire for any damage to Concessionaire or Concessionaire's property from any cause other than the sole negligence, intentional or willful acts of the Indemnified Parties. Except as otherwise expressly provided in this Agreement, Concessionaire waives all claims against the Indemnified Parties arising for any reason other than the sole negligence, intentional or willful acts of the Indemnified Parties. City shall not be liable to Concessionaire for any damage to the Premises, Concessionaire's property, Concessionaire's goodwill, or Concessionaire's business income, caused in whole or in part by acts of nature including, without limitation, waves, wind and ocean currents. 10.3 Insurance. In addition to insurance required of Concessionaire to be obtained, provided, and maintained during the construction of the Concessionaire Improvements, and without limiting Concessionaire's indemnification of City, Concessionaire shall obtain, provide and maintain at its own expense during the term of this Agreement, a policy or policies of liability insurance of the type and amounts specified in Exhibit T," attached hereto and incorporated herein by this reference. 11. DAMAGE OR DESTRUCTION OF PROPERTY/PREMISES 11.1 Destruction of Premises. If the Premises are totally or partially destroyed, rendering the Premises or any portion thereof totally or partially inaccessible or unusable, Concessionaire shall restore the Premises to substantially the same condition as immediately prior to such destruction (including all trade fixtures, personal property, Concessionaire Improvements and Alterations as are installed by Concessionaire or its contractors or subcontractors, which shall be replaced by Concessionaire at its expense). Concessionaire may elect to terminate this Agreement by giving notice of such election to City within sixty (60) days after the date of the occurrence of any casualty if the cost of the restoration exceeds the amount of any available insurance proceeds, if the damage has been caused by an uninsured casualty or event, or if Concessionaire reasonably estimates that repairs of the Premises will take more than six (6) months. Upon such termination, insurance proceeds applicable to reconstruction of the Premises (excluding Concessionaire's personal property therein) shall be paid to City and Concessionaire shall have no further liability or obligations under this Agreement. 11.2 Replacement of Concessionaire's Property. In the event of damage or destruction of Concessionaire Improvements located on the Premises not giving rise to Concessionaire's option to terminate this Agreement, Concessionaire shall, at its own expense, replace and repair all Concessionaire's trade fixtures, equipment, machinery, furnishings, furniture and inventory as soon as reasonably possible to permit the prompt continuation of the Concession. Concession Agreement - THEJETTYCDM, LLC Page 17 10-23 11.3 Destruction of the Property. In the event that all or a portion of the Property is damaged, and the Premises or a material portion becomes inaccessible or commercially unusable, and the damage or destruction cannot reasonably be repaired within twelve (12) months after the date of the casualty, City shall have the right to either: (1) Terminate this Agreement. City shall give Concessionaire written notice of termination within thirty (30) days following the date of the casualty, which shall be effective sixty (60) days after the date of the notice; or (2) Repair the damage at City's expense. City shall give Concessionaire written notice of its intention to repair such damage as soon as reasonably possible at City's expense, in which event this Agreement shall continue in full force and effect; however, Rent shall be abated in accordance with the procedures set forth in Section 12. If City fails to commence repairs within one hundred twenty (120) days after its notice of its intention to repair, then Concessionaire may terminate this Agreement by giving City written notice at any time prior to the commencement of repairs. In such event, this Agreement shall terminate as of the date of notice from Concessionaire to City, and City shall have no liability under this Agreement. 12. ABATEMENT OF RENT 12.1 Concessionaire Improvements; Approved Construction. Rent shall be abated during the construction of Concessionaire Improvements and during approved closures for construction the extent the closure limits Concessionaire's ability to fully operate the Concession. Concessionaire may continue to operate that portion of the Premises not under construction as it may be safe, practicable and commercially reasonable to do so. Concessionaire shall provide documentation of construction activity at least forty-five (45) calendar days prior to the commencement of the scheduled construction and the City's subsequent written approval. In no way shall abatement of Rent pursuant to this subsection: (a) exceed Ten Thousand Dollars ($10,000) in the aggregate during the Term of this Agreement, and (b) exceed six (6) months, whether consecutively or collectively. "Construction" shall mean the installation of Concessionaire Improvements in strict compliance with the design plans approved in writing by City. 12.2 Damage or Destruction. In the event of damage or destruction of the Premises or damage to the Property that impacts the Premises and this Agreement is not terminated, Concessionaire shall continue to utilize the Premises for the operation of its business to the extent it may be practicable and commercially reasonable. Rent shall be proportionally reduced based on the value of the actual area of the Premises that is rendered unusable. The proration of Rent shall commence on the date that use of the Premises is impacted and continue until the completion of those repairs necessary to restore full use of the Premises, for a maximum abatement period of six (6) consecutive months. Concessionaire's obligation to pay taxes pursuant to this Agreement shall not be abated or reduced. Rent shall not abate if the damage or destruction to the Premises is the result of the negligence or willful conduct of Concessionaire or its employees, officers Concession Agreement - THEJETTYCDM, LLC Page 18 10-24 or agents. Concessionaire's right to prorated Rent is contingent on payment of insurance proceeds, if any, equal to the amount of Rent pursuant to coverage required by Section 10.3. 12.3 No Abatement for Maintenance. Concessionaire shall not be entitled to any abatement of Rent for any temporary closures for general maintenance of the Premises to keep the Concession operating in a manner comparable to other high -quality concession businesses. 13. PROHIBITION AGAINST VOLUNTARY ASSIGNMENT, SUBLETTING AND ENCUMBERING 13.1 Prohibition of Assignment. City and Concessionaire acknowledge that City is entering into this Agreement in reliance upon the experience and abilities of Concessionaire. Consequently, Concessionaire shall not voluntarily assign or encumber its interest in this Agreement or in the Premises, or assign substantially all or any part of the Premises, or allow any other person or entity (except Concessionaire's authorized representatives) to occupy or use all or any part of the Premises without the prior written consent of City, which shall not be unreasonably withheld. City's consent to any assignment or other transfer is subject to Concessionaire providing City with evidence reasonably satisfactory to City that the proposed transferee has financial strength and restaurant or food service experience comparable to Concessionaire and the use of the Premises by the proposed transferee is consistent with the terms of this Agreement. Except as otherwise expressly provided herein, any dissolution, merger, consolidation, reorganization of Concessionaire, or the sale or other transfer resulting in a transfer of a controlling percentage of the capital stock of Concessionaire, shall be deemed a voluntary assignment, provided, however, that the sale or transfer of a controlling percentage of the capital stock of Concessionaire pursuant to a public offering(s) of equity or debt instruments issued by Concessionaire, or other transfers of publicly traded capital stock or debt instruments shall not constitute a voluntary assignment and shall not require City's consent or approval. The phrase "controlling percentage" means the ownership of, or the right to vote, stock possession of at least fifty percent (50%) of the total combined voting power of all classes of Concessionaire's capital stock issued, outstanding, and entitled to vote for the election of directors, except for ownership of publicly traded shares, warrants or similar equity interests in Concessionaire traded on a national exchange or over-the- counter markets. 13.2 Exceptions. Notwithstanding the foregoing paragraphs or anything to the contrary contained herein, City's consent shall not be required for an assignment or subletting to an Affiliate, Subsidiary, or Successor of Concessionaire. For purposes hereof, an "Affiliate", a "Subsidiary", and a "Successor" of Concessionaire are defined as follows: (1) an "Affiliate" is any corporation or other entity which directly or indirectly controls or is controlled or is under common control with Concessionaire (for purposes of this Section, "control" shall mean the possession, directly or indirectly, of the Concession Agreement - THEJETTYCDM, LLC Page 19 10-25 power to direct or cause the direction of the management and policies of such corporation or other entity, whether through the ownership of voting securities or by contract or otherwise); (2) a "Subsidiary" shall mean any corporation or other entity not less than twenty-five percent (25%) of whose outstanding stock shall, at the time, be owned directly or indirectly by Concessionaire and which is at least as creditworthy as Concessionaire; and (3) a "Successor" shall mean a corporation or other entity in which or with which Concessionaire is merged or consolidated, in accordance with applicable statutory provisions for merger or consolidation of corporations or a corporation or other entity acquiring a substantial portion of the property and assets of Concessionaire. 13.3 Continuing Effect. City's consent to any assignment or encumbrance shall not relieve Concessionaire from its obligations or liabilities under this Agreement nor act as a waiver of the requirement that such consent be obtained to any subsequent assignment or encumbrance. 14. DEFAULT 14.1 Default by Concessionaire. The occurrence of any one or more of the following events shall constitute a default and material breach of this Agreement by Concessionaire: (1) The vacating or abandonment of the Premises by Concessionaire for more than fifteen (15) consecutive days that was not otherwise expressly permitted under this Agreement or pre -approved in writing by City; (2) The revocation of any license issued by the State; (3) The failure by Concessionaire to make any payment of Rent or any other payment required by this Agreement, as and when due, when such failure shall continue for a period of ten (10) days after written notice of default from City to Concessionaire; (4) Except as specified in Subsection 14.1(2), the failure of Concessionaire to observe or perform any of the material covenants, conditions or provisions of this Agreement to be observed or performed by Concessionaire where such failure shall continue for a period of ten (10) days after written notice thereof from City to Concessionaire; provided, however, that if the nature of Concessionaire's default is such that more than ten (10) days are reasonably required for its cure, then Concessionaire shall not be deemed to be in default if Concessionaire commences such cure within said ten (10) day period and thereafter diligently prosecutes such cure to completion; Concession Agreement - THEJETTYCDM, LLC Page 20 10-26 (5) The making by Concessionaire of any general arrangement or assignment for the benefit of creditors; (6) Concessionaire becomes a "debtor" as defined in 11 U.S.C. Section 101 or any successor statute thereto (unless, in the case of a petition filed against Concessionaire, the same is dismissed within ten (10) days), (7) The appointment of a trustee or receiver to take possession of substantially all of Concessionaire's assets located at the Premises or of Concessionaire's interest in this Agreement, where such appointment is not discharged within ten (10) days; and (8) The attachment, execution or the judicial seizure of substantially all of Concessionaire's assets located at the Premises or of Concessionaire's interest in this Agreement, where such seizure is not discharged within sixty (60) days. 14.2 Remedies. 14.2.1 Cumulative Nature of Remedies. If any default by Concessionaire shall continue without cure as required by this Agreement, City shall have the remedies described in this Section in addition to all other rights and remedies provided by law or equity, to which City may resort cumulatively or in the alternative. 14.2.2 Reentry without Termination. City may reenter the Premises, and, without terminating this Agreement, re -let all or a portion of the Premises. City may execute any agreements made under this provision in City's name and shall be entitled to all rents from the use, operation, or occupancy of the Premises. Concessionaire shall nevertheless pay to City on the dates specified in this Agreement the equivalent of all sums required of Concessionaire under this Agreement, plus City's expenses in conjunction with re -letting, less the proceeds of any re -letting or atonement. No act by or on behalf of City under this provision shall constitute a Termination of this Agreement unless City gives Concessionaire specific written notice of Termination. 14.2.3 Termination. City may terminate this Agreement by giving Concessionaire notice of Termination. In the event City terminates this Agreement, City may recover possession of the Premises (which Concessionaire shall surrender and vacate upon demand) and remove all Persons and property. City shall be entitled to recover the following as damages: (1) The value of any Rent or other charges that are unpaid at the time of Termination; (2) The value of the Rent and other charges that would have accrued after Termination less the amount of Rent and charges City received or could have received through the exercise of reasonable diligence as of the date of the award, Concession Agreement - THEJETTYCDM, LLC Page 21 10-27 (3) Any other amount necessary to reasonably compensate City for the detriment proximately caused by Concessionaire's failure to perform its obligations under this Agreement; and (4) At City's election, such other amounts in addition to or in lieu of the foregoing as may be permitted from time -to -time by applicable California law. City shall be entitled to interest at the rate of ten percent (10%) per annum on all Rent and other charges from the date due or the date they would have accrued. City shall also be entitled to an award of the costs and expenses incurred by City in maintaining or preserving the Premises after default, preparing the Premises for re4etting, or repairing any damage caused by the act or omission of Concessionaire. 14.2.4 Use of Concessionaire's Personal Property. City may use Concessionaire's personal property and trade fixtures located on the Premises or any of such property and fixtures without compensation or liability to Concessionaire for use or damage. In the alternative City may store the property and fixtures at the cost of Concessionaire. City shall not operate the Premises in any manner tending to indicate that the Premises are affiliated with, part of or operated in conjunction with Concessionaire's business. 14.3 City's Right to Cure Concessionaire's Default. Upon continuance of any default beyond applicable notice and cure periods, City may, but is not obligated to, cure the default at Concessionaire's cost. If City pays any money or performs any act required of, but not paid or performed by, Concessionaire after notice, the payment and/or the reasonable cost of performance shall be due as additional Rent not later than five (5) days after service of a written demand accompanied by supporting documentation. No such payment or act shall constitute a waiver of default or of any remedy for default or render City liable for any loss or damage resulting from performance. 15. SUBJECT TO STATE OPERATING AGREEMENT The Premises are located on property that is the subject of the Operating Agreement. Concessionaire shall not take any action that would cause City to be in violation of any provisions of that Operating Agreement. If the State of California terminates the Operating Agreement, this Agreement shall terminate as a result and the Parties shall be released from all liabilities and obligations under this Agreement. 16. WASTE OR NUISANCE Concessionaire shall not commit or permit the commission of any waste on the Premises. Concessionaire shall not maintain, commit, or permit any nuisance as defined in Section 3479 of the California Civil Code on the Premises. Concessionaire shall not use or permit the use of the Premises for any unlawful purpose, including, but not limited to, any use that violates City's charter or Municipal Code. 17. NO CONFLICTS OF USE, HAZARDOUS MATERIALS Concession Agreement - THEJETTYCDM, LLC Page 22 10-28 City represents and warrants that, to the best of City's knowledge, (i) Concessionaire's use of the Premises does not conflict with applicable Laws, and City knows of no reason why Concessionaire would be unable to obtain all required permits, licenses and approvals from the appropriate govemmental authorities; (ii) the Property is not in violation of any environmental laws, rules or regulations and Concessionaire's contemplated uses will not cause any such violation; and (iii) the Property is free of any and all Hazardous Materials as of the date of this Agreement. In the event that the presence of any Hazardous Materials not caused by Concessionaire is detected at the Property at any time during the Term of this Agreement all remedial work shall be performed by City at City's expense. Concessionaire's obligation to open shall be delayed until the remedial work is completed if the remedial work is performed prior to Concessionaire opening for business. Concessionaire's obligation to pay Rent shall be abated in direct proportion to the extent Concessionaire is unable to conduct its business upon the Premises as a result of any remedial work that is performed subsequent to Concessionaire opening for business. Concessionaire shall have the right (but not the obligation) to terminate this Agreement, upon thirty (30) days advance written notice to City in the event that Hazardous Materials are detected at the Property and the presence or the remediation materially affects Concessionaire's ability to conduct its business in the Premises. "Hazardous Materials" shall mean any oil, flammable explosives, asbestos, urea formaldehyde, radioactive materials or waste, or other hazardous, toxic, contaminated or polluting materials, substances or wastes, including, without limitation, any "hazardous substances", "hazardous wastes", "hazardous materials" or "toxic substances" under applicable federal, state and local laws, ordinances and regulations. 18. FORCE MAJEURE, EXTENSIONS OF TIME OF PERFORMANCE 18.1. Neither Party will be liable for any failure or delay in performing an obligation under this Agreement that is due to any of the following causes (hereinafter "Force Majeure"): acts of God, war, terrorist act, government -mandated quarantine restrictions, riot, natural catastrophes, Federal or state governmental acts or omissions, national strikes, fire, or explosion, provided that the Force Majeure is unforeseeable, beyond the control of, and not due to the fault or negligence of the Party claiming the Force Majeure. For the avoidance of doubt, Force Majeure shall not include (a) the novel coronavirus Covid-19 pandemic, which is ongoing as of the date of the execution of this Agreement; (b) financial distress or the inability of either Party to make a profit or avoid a financial loss, (c) changes in the market prices or conditions, or (d) a Party's financial inability to perform its obligations hereunder. 18.2. A Party's excuse in liability from failure or delay in performing an obligation under this Agreement due to Force Majeure shall only be to the extent caused by the Force Majeure and shall not be any longer than the period commencing from when the requisite written notice is given and ending when the Party is no longer delayed or prevented from performing on account of the Force Majeure. A Party claiming Force Majeure shall promptly notify the other Party in writing, no later than five (5) days after the Concession Agreement - THEJETTYCDM, LLC Page 23 10-29 commencement of delay or inability to perform, and the Party shall continue with commercially reasonable diligence in an effort to limit the period of nonperformance or delay. Time of performance under this Agreement may also be extended in writing by City and Concessionaire. 19. CITY'S DEFAULTS/CONCESSIONAIRE'S REMEDIES City shall be in default if it fails to perform, or commence performance if the obligation requires more than ten (10) days to complete, any material obligation within ten (10) days after receipt of written notice by Concessionaire to City specifying the nature of such default. City shall also be in default if it commences performance within ten (10) days but fails to diligently complete performance. In the event of City's default, Concessionaire may: (a) Upon five (5) days' notice to City, cure any such default, and City shall reimburse Concessionaire the amount of all costs and expenses incurred by Concessionaire in curing the default, together with interest and expenses at the maximum rate then allowed by law; or (b) Terminate this Agreement if City's default materially interferes with Concessionaire's use of the Premises for its intended purpose and City fails to cure such default within ten (10) days after a second demand by Concessionaire in which case Concessionaire shall have no further or continuing obligations. 20. EVENT OF BANKRUPTCY 20.1 If this Agreement is assigned to any person or entity pursuant to the provisions of the Bankruptcy Code, 11 U.S.C. Section 101 et seq. or any similar or successor statute ("Bankruptcy Code"), any and all monies or other consideration payable or otherwise to be delivered in connection with such assignment shall be paid or delivered to City, shall be and remain the exclusive property of City and shall not constitute property of Concessionaire or of the estate of Concessionaire within the meaning of the Bankruptcy Code. Any and all monies or other consideration constituting City's property under this Section not paid or delivered to City shall be held in trust for the benefit of City and be promptly paid or delivered to City. 20.2 Any person or entity to which this Agreement is assigned pursuant to the provisions of the Bankruptcy Code shall be deemed without further act or deed to have assumed all of the obligations arising under this Agreement on and after the date of such assignment, including the obligation to operate the business which Concessionaire is required to operate under this Agreement. 21. NOTICES Any notice, demand, request, consent, approval or communication that either party desires or is required to give shall be in writing and shall be deemed given three (3) days Concession Agreement - THEJETTYCDM, LLC Page 24 10-30 after deposit into the United States registered mail, postage prepaid, by registered or certified mail, return receipt requested. Unless notice of a different address has been given in accordance with this Section, all notices shall be addressed as follows: If to City, to: CITY OF NEWPORT BEACH Attn: Real Property Administrator 100 Civic Center Drive Newport Beach, CA 92660 If to Concessionaire, to: Brian Huskey Go THEJETTYCDM, LLC 3029 Ocean Blvd. Corona Del Mar, CA 92625 (626) 755-8841 22. TERMINATION OF EXISTING MONTH -TO -MONTH AGREEMENT Concurrently with execution of this Agreement by the Parties, the Month -to -Month Agreement is hereby terminated. 23. SURRENDER OF PREMISES At the Expiration or earlier Termination of this Agreement, Concessionaire shall surrender to City the possession of the Premises. Concessionaire shall leave the surrendered Premises, required personal property and fixtures, in Good Condition, reasonable wear and tear excepted. All property that Concessionaire is not required to surrender, but that Concessionaire does abandon shall, at City's election, become City's property. 24. COMPLIANCE WITH ALL LAWS Concessionaire shall at its own cost and expense comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. In addition, all work prepared by Concessionaire shall conform to applicable City, county, state and federal laws, rules, regulations and permit requirements and be subject to approval of an Authorized City Representative. 25. WAIVERS The waiver by either party of any breach or violation of any term, covenant or condition of this Agreement, or of any ordinance, law or regulation, shall not be deemed to be a waiver of any other term, covenant, condition, ordinance, law or regulation, or of any subsequent breach or violation of the same or other term, covenant, condition, ordinance, law or regulation. The subsequent acceptance by either party of any fee, Concession Agreement - THEJETTYCDM, LLC Page 25 10-31 performance, or other consideration which may become due or owing under this Agreement, shall not be deemed to be a waiver of any preceding breach or violation by the other party of any term, condition, covenant of this Agreement or any applicable law, ordinance or regulation. 26. SEVERABILITY If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 27. APPLICABLE LAW This Agreement shall be construed in accordance with the laws of the State of California in effect at the time of the execution of this Agreement. Any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange. 28. ENTIRE AGREEMENT; AMENDMENTS 28.1 The terms and conditions of this Agreement, all exhibits attached, and all documents expressly incorporated by reference, represent the entire agreement of the parties with respect to the subject matter of this Agreement. 28.2 This Agreement shall supersede any and all prior agreements, oral or written, regarding the subject matter between Concessionaire and City. 28.3 No other agreement, promise or statement, written or oral, relating to the subject matter of this Agreement, shall be valid or binding, except by way of a written amendment to this Agreement. 28.4 The terms and conditions of this Agreement shall not be altered or modified except by a written amendment to this Agreement signed by Concessionaire and City. 28.5 If any conflicts arise between the terms and conditions of this Agreement, and the terms and conditions of the attached exhibits or the documents expressly incorporated by reference, the terms and conditions of this Agreement shall control. 28.6 Any obligation of the parties relating to monies owed, as well as those provisions relating to limitations on liability and actions, shall survive termination or expiration of this Agreement. 28.7 Each party has relied on its own inspection of the Premises and examination of this Agreement, the counsel of its own advisors, and the warranties, representations, and covenants in this Agreement. The failure or refusal of either party to inspect the Premises, to read this Agreement or other documents, or to obtain legal or other advice Concession Agreement - THEJETTYCDM, LLC Page 26 10-32 relevant to this transaction constitutes a waiver of any objection, contention, or claim that might have been based on such reading, inspection, or advice. 29. TIME IS OF THE ESSENCE Time is of the essence for this Agreement. Concessionaire agrees to proceed in an efficient and timely manner to obtain all necessary approvals, licenses and permits required to engage in the business services as described under Section 5. 30. SUCCESSORS Subject to the provisions of this Agreement on assignment and subletting, each and all of the covenants and conditions of this Agreement shall be binding on and shall inure to the benefit of the heirs, successors, executors, administrators, assigns, and personal representatives of the respective parties. 31. INTERPRETATION The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of this Agreement or any other rule of construction which might otherwise apply. 32. TABLE OF CONTENTS; HEADINGS The table of contents of this Agreement and the captions of the various sections of this Agreement are for convenience and ease of reference only and do not define, limit, augment, or describe the scope, content, or intent of this Agreement. 33. GENDER; NUMBER The neuter gender includes the feminine and masculine, the masculine includes the feminine and neuter, and the feminine includes the neuter, and each includes corporation, partnership, or other legal entity whenever the context requires. The singular number includes the plural whenever the context so requires. 34. EXHIBITS All exhibits to which reference is made in this Agreement are incorporated by reference. Any reference to "this Agreement" includes matters incorporated by reference. 35. MEMORANDUM OF CONCESSION AGREEMENT A Memorandum of Concession Agreement, in a form and content similar to that contained in Exhibit "G" shall be recorded by the parties promptly upon execution of this Agreement. Upon execution by both parties, the Memorandum of Concession Agreement Concession Agreement - THEJETTYCDM, LLC Page 27 10-33 shall be recorded against the Premises in the office of the Orange County Clerk - Recorded, as required by Government Code Section 37393. 36. CITY BUSINESS LICENSE Concessionaire shall obtain and maintain during the duration of this Agreement, a City business license as required by the Newport Beach Municipal Code. 37. NO ATTORNEYS' FEES The prevailing party in any action brought to enforce the terms and conditions of this Agreement, or arising out of the performance of this Agreement, shall not be entitled to recover its attorneys' fees. 38. NONDISCRIMINATION Concessionaire, for itself and its successors, agrees that in the performance under this Agreement, Concessionaire shall not discriminate against any person because of the marital status or ancestry of that person or any characteristic listed or defined in Government Code Section 11135. 39. NO THIRD PARTY BENEFICIARIES City (both as a lessor and as the City of Newport Beach) and Concessionaire do not intend, by any provision of this Agreement, to create in any third party, any benefit or right owed by one party, under the terms and conditions of this Agreement, to the other party. 40. LAWS It shall be the obligation of Concessionaire to comply with all laws, statutes, rules, and regulations including, but not limited to, State of California labor laws, rules and regulations and the parties agree that City shall not be liable for any violation by Concessionaire (or Concessionaire's agent, sublessee or any party affiliated with Concessionaire) thereof. 41. NO DAMAGES Concessionaire acknowledges that City would not enter into this Agreement if it were to be liable for damages (including, but not limited to, actual damages, economic damages, consequential damages, lost profits, loss of rents or other revenues, loss of business opportunity, loss of goodwill or loss of use) under, or relating to, this Agreement or any of the matters referred to in this Agreement, including, without limitation, any and all plans, permits, licenses or regulatory approvals, and CEQA documents. Accordingly, Concessionaire covenants and agrees on behalf of itself and its successors and assigns, not to sue City (either in its capacity as lessor in this Agreement or in its capacity as the Concession Agreement - THEJETTYCDM, LLC Page 28 10-34 City of Newport Beach) for damages (including, but not limited to, actual damages, economic damages, consequential damages, lost profits, loss of rents or other revenues, loss of business opportunity, loss of goodwill or loss of use) or monetary relief for any breach of this Agreement by City or for any dispute, controversy, or issue between City and Concessionaire arising out of or connected with this Agreement or any of the matters referred to in this Agreement, including, without limitation, any and all plans, permits, licenses or regulatory approvals, CEQA documents, or any future amendments or enactments thereto, the parties agreeing that declaratory relief, injunctive relief, mandate and specific performance shall be Concessionaire's sole and exclusive judicial remedies. 42. GOVERNMENT CLAIMS ACT Concessionaire and City agree that in addition to any claims filing or notice requirements in this Agreement, Concessionaire shall file any claim that Concessionaire may have against City in strict conformance with the Government Claims Act (Government Code sections 900 et seq.), or any successor statute. 43. COUNTERPARTS This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original and all of which together shall constitute one (1) and the same instrument. [SIGNATURES ON NEXT PAGE] Concession Agreement - THEJETTYCDM, LLC Page 29 10-35 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above. APPROVED AS TO FORM: OFFICE OF THE CITY ATTORNEY Date: 13y. aron . Harp ttorne ATTEST: Date: By: Leilani I. Brown City Clerk CITY OF NEWPORT BEACH ("City"), a California municipal corporation and charter city Date: Bv: Grace K. Leung City Manager CONCESSIONAIRE: THEJETTYCDM, LLC, a California limited liability company Date: By: Brian Huskey Managing Member Attachments: Exhibit "A" — Property Exhibit "B" — Premises Exhibit "C" -- Alcohol Conditions Exhibit "D" — Parking Exhibit °E" — Concessionaire Improvements Exhibit "F" — Insurance Exhibit "G" — Memorandum of Lease Concession Agreement - THEJETTYCDM, LLC Page 30 10-36 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above. APPROVED AS TO FORM: OFFICE OF THE CITY ATTORNEY Date By: Aaron C. Harp -L City Attorney c ATTEST: Date: By: Leilani I. Brown City Clerk CITY OF NEWPORT BEACH ("City"), a California municipal corporation and charter city Date: By: Grace K. Leung City Manager CONCESSIONAIRE: THEJETTYCDM, LLC, a California limited liability company Date: C l (5n By: Brian Huskey Managing Member Attachments: Exhibit "A" — Property Exhibit "B" — Premises Exhibit "C" — Alcohol Conditions Exhibit "D" — Parking Exhibit "E" — Concessionaire Improvements Exhibit "F" — Insurance Exhibit "G" — Memorandum of Lease Concession Agreement - THEJETTYCDM, LLC Page 30 10-37 EXHIBIT "A" PROPERTY Concession Agreement - THEJETTYCDM, LLC Exhibit A-1 10-38 EXHIBIT "A" - PROPERTY �^; � y y �+.�` ti/�'i tib , a �' � p',.(1. °Rr • � l .ti 1� t ,9�• ,i"':•, �, � . �j � �•. '� _� �Ii1Jl8 d �1��./.! '' _�•j�,a, may('/"� � '� � �i i; 1 C •V� �! V ,3 At S e • �-a,rona,Del Mar- o _ � . _ - ��,,�, 1 ' State�'Seac Via, r r L _ 'e!y J, 6WPo disclaimer: 19 Oda R e NEGS 0 200 400 Every reasonable effort has been made to assure the accuracy of the ndata provided, however, The City of Newport Beach and its U a. r N E W P O R T B E A C H Feet employees and agents disclaim any and all responsibility from or `+4LIJ:DR relating to any results obtained in its use. 116l2022 THEJETTYCDM, LLC EXHIBIT A-1 10-39 EXHIBIT "A" - PROPERTY THEJETTYCDM, LLC Exhibit A-2 10-40 EXHIBIT "B" PREMISES Concession Agreement - THEJETTYCDM, LLC Exhibit B-1 10-41 D 0 B L] tM/Q�E f�m J M I T 5 A A PROPOSED FLOOR PLAN - THE JET -CD SCALE:114"=l'-0" 1 2 3 5 V ERPO A ATES SAN D 0 A IT ifl. - 9�109 w t]] DE 2i MSn.t(M 0 CL Lo CN CO CV Co W Of Lu Of O Q O B IL U w cq = J o LLJ CO U �z ��o or=m ao IL � co U W 9K RL A, PROPOSED FLOOR PLAN FP-01 — 10-42 EXHIBIT "C" ALCOHOL CONDITIONS 1. The applicant shall comply with all federal, state, and local laws, and all conditions of the Alcoholic Beverage License. Material violation of any of those laws or conditions in connection with the use is a violation and may be cause for revocation of the use permit. 2. All owners, managers and employees selling alcoholic beverages shall undergo and successfully complete a qualified training certification program in responsible methods and skills for selling alcoholic beverages ("certification") within sixty (60) calendar days of hire. This certification must be updated every three (3) years, unless required in shorter intervals by the State of Califomia, regardless of certificate expiration date. The certification must meet the standards of the certifying/licensing body designated by the State of California. Concessionaire shall comply with the requirements of this section within sixty (60) calendar days of obtaining its license to serve alcoholic beverages. Records of each owner's, manager's, and employee's successful completion of their certification shall be maintained on the premises and shall be presented upon request by a representative of the City of Newport Beach. 3. Alcohol will only be permitted to be sold on the Premises in the designated indoor and outdoor areas from 5:00 p.m. to 9:00 p.m. Monday through Saturday, and 9:00 a.m. to 9:00 p.m. Sundays. 4. The exterior windows and doors of the facility shall be closed after 9:00 p.m. 5. The service and sale of packaged alcoholic beverages (i.e., bottled or canned) for off -premise consumption shall be prohibited. 6. State Department of Alcoholic Beverage Control ("ABC") license types classified as "Public Premises" shall be prohibited. 7. Approval of this Agreement does not permit Concessionaire to operate as nightclub as defined by the Newport Beach Municipal Code. 8. Prior to operation with proper alcoholic beverage licensing, a comprehensive security plan shall be submitted to the Newport Beach Police Department for review and approval. 9. There shall be no exterior advertising or signs of any kind or type, including advertising directed to the exterior from within, promoting or indicating the availability of alcoholic beverages. Interior displays of alcoholic beverages or signs which are clearly visible to the exterior shall constitute a violation of this condition. 10. No "happy hour" type of reduced price alcoholic beverage promotion shall be allowed except when offered in conjunction with food ordered from the full service menu. 11. No games or contests requiring or involving the consumption of alcoholic beverages shall be permitted. Concession Agreement - THEJETTYCDM, LLC Exhibit C-1 10-43 12. Concessionaire shall be responsible for the control of noise generated by the Premises including, but not limited to, noise generated by patrons, food service operations, and mechanical equipment. All noise generated by the proposed use shall comply with the provisions of Chapter 10.26 and other applicable noise control requirements of the Newport Beach Municipal Code. Pre-recorded music may be played in the Premises, provided exterior noise levels outlined below are not exceeded. The noise generated by the proposed use shall comply with the provisions of Chapter 10.26 (Community Noise Control) of the Newport Beach Municipal Code. 13. No outdoor sound system, loudspeakers, or paging system shall be permitted in conjunction with the Premises without the written approval of City. Concessionaire shall obtain all required City permits and approvals. 14. Concessionaire is required to take reasonable steps to discourage and correct objectionable conditions that constitute a nuisance within the facility, or surrounding public areas, sidewalks, or parking lots of the Premises during business hours, if directly related to the patrons of the establishment. 15. No alcoholic beverages shall be consumed on any property adjacent to the licensed premises under the control of the licensee. 16. There shall be no live entertainment or dancing allowed on the Premises without Concessionaire first obtaining a Special Event Permit from City and must strictly comply with the terms set forth in the Special Event Permit. 17. A Special Events Permit is required for any event or promotional activity outside the normal operational characteristics of the approved use, as conditioned, or that would attract large crowds, involve the sale of alcoholic beverages, include any form of on -site media broadcast, or any other activities as specified in the Newport Beach Municipal Code to require such permits. 18. There shall be no on -site radio, televisions, video, film, or other electronic media broadcasts, including recordings to be broadcasted at a later time, which include the service of alcoholic beverages, without first obtaining an approved Special Event Permit issued by the City of Newport Beach, and subject to the terms and conditions set forth in the Special Event Permit. 19. Any event or activity staged by an outside promoter or entity, where the applicant, operator, owner or his employees or representatives share in any profits, or pay any percentage or commission to a promoter or any other person based upon money collected as a door charge, cover charge or any other form of admission charge is prohibited. 20. Concessionaire, as the operator of the Premises, shall not share any profits or pay any percentage or commission to a promoter or any other person based upon monies collected as a door charge, cover charge, or any other form of admission charge, including minimum drink orders or the sale of drinks. Concession Agreement - THEJETTYCDM, LLC Exhibit C-2 10-44 21. The height of the boundary wall of the designated outdoor area where alcohol may be served shall be not less than forty-two (42) inches tall, and shall enclose the area. Fences, walls, or similar barriers shall serve only to define the outdoor area where alcohol may be served and not constitute a permanent all weather enclosure. The installation of roof coverings shall not have the effect of creating a permanent enclosure. The use of any type of overhead covering shall be subject to review and approval by the City Manager and necessary building permits. 22. Storage outside of the leased Premises shall be prohibited, with the exception of the required trash container enclosure. 23. All trash shall be stored within the Premises, or otherwise screened from view of neighboring properties, except when placed for pick-up by refuse collection agencies. The trash enclosure shall remain closed at all times, except when being loaded or while being collected by the refuse collection agency. 24. Concessionaire shall ensure that the trash dumpsters and/or receptacles are maintained to control odors. This may include the provision of either fully self- contained dumpsters or periodic steam cleaning of the dumpsters, if deemed necessary by the Code Enforcement Division. Cleaning and maintenance of trash dumpsters shall be done in compliance with the provisions of Title 14, including all future amendments (including Water Quality related requirements}. 25. Trash receptacles for patrons shall be conveniently located inside of the Premises. The exterior of the business shall be maintained free of litter and graffiti at all times. City shall provide for daily removal of trash, litter debris and graffiti from the Premises. Concessionaire shall immediately notify City of any such issues at the Premises. 26. Deliveries and refuse collection for the facility shall be prohibited between the hours of 10:00 p.m. and 8:00 a.m., daily, unless otherwise approved by City Manager. 27. Concessionaire shall limit their use and operation of the Premises to the establishment of an eating and drinking establishment as defined by Title 20 of the Municipal Code, with the principal purpose for the sale or service of food and beverages with sale and service of alcoholic beverages incidental to the food use. 28. The type of alcoholic beverage license issued by the California Board of Alcoholic Beverage Control shall be a Type 41 (On -Sale Beer and Wine for a Bona Fide Public Eating Place) in conjunction with the service of food as the principal use of the facility. Any upgrade in the alcoholic beverage license shall be subject to the approval of an amendment to this lease Agreement and shall require the approval of City Council. 29. Execution of this Agreement does not permit the Premises to operate as a bar, tavern, cocktail lounge, or nightclub as defined by the Newport Beach Municipal Code. Concession Agreement - THEJETTYCDM, LLC Exhibit C-3 10-45 30. Food service from the regular menu shall be available to patrons up to thirty (30) minutes before the scheduled closing time. 31. Strict adherence to maximum occupancy limits is required. 32. Should the Premises be sold or leased to a new tenant, subtenant, or otherwise come under new ownership, operation, or management, an amendment to the Agreement, or a new Agreement shall be required. 33. Notwithstanding the indemnification requirements set forth in the Agreement, Concessionaire shall, to the fullest extent permitted by law, indemnify, defend and hold harmless City, its City Council, its boards and commissions, officials, officers, employees, and agents from and against any and all claims, demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including without limitation, attorneys' fees, disbursements and court costs) of every kind and nature whatsoever which may arise from or in any manner related (directly or indirectly) to City's approval of Concessionaire's use of the Premises. This indemnification shall include, but not be limited to, damages awarded against the City, if any, costs of suit, attorney's fees, and other expenses incurred in connection with such claim, action, causes of action, suit or proceeding whether incurred by Concessionaire, City, and/or the parties initiating or bringing such proceeding. Concessionaire shall indemnify the city for all of City's costs, attorneys' fees, and damages, which City incurs in enforcing the indemnification provisions set forth in this condition. Concessionaire shall pay to the City upon demand any amount owed to the City pursuant to the indemnification requirements prescribed in this condition. Concession Agreement - THEJETTYCDM, LLC Exhibit C-4 10-46 EXHIBIT "D" PARKING Concession Agreement - THEJETTYCDM, LLC Exhibit D-1 10-47 EXHIBIT D - Parking Mr R., 0 1� 4� L 01 OU & Disclaimer: N E W P 0 R T B E A C H Every reasonable effort has been made to assure the accuracy of the data provided, however, The City of 0 Newport Beach and its employees and agents 04 0 200 400 disclaim any and all responsibility from or relating to I=- >.. any results obtained in its use, I ow .lFeet 1111/2018 10-48 EXHIBIT "E" CONCESSIONAIRE IMPROVEMENTS Concession Agreement - THEJETTYCDM, LLC Exhibit E-1 10-49 D / /'Ac •+new tlAMR �� p rtic iwrta B 2 3 q nwarz nne J Ilpc #.Ob PROPOSED FLOOR PLAN - THE JETTY-CDM SCALE;114'=1'-0' 5 V ERP00 A ATES SAN D 0 A !T C I T CT iu mmv 9 n c57 DE 2i M1 .[OM D L!') N to Z c" W 0—Q U p < O � B LL-Uczw L p LU U) U) Q z 0 � O O W N CL' _ o O 0. r� U PROPOSED FLOOR PLAN FP-01 10-50 EXHIBIT "F" INSURANCE 1. Certificates of Insurance. Concessionaire shall provide certificates of insurance with original endorsements to City as evidence of the insurance coverage required herein. Insurance certificates must be approved by City's Risk Manager prior to execution of this Agreement by the City. Current certification of insurance shall be kept on file with City at all times during the term of this Agreement. 2. Signature. A person authorized by the insurer to bind coverage on its behalf shall sign certification of all required policies. 3. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A- (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. 4. Coverage Requirements. 4.1. Workers' Compensation Coverage. Concessionaire shall maintain Workers' Compensation Insurance at statutory limits and Employer's Liability Insurance at One Million and 001100 Dollars ($1,000,000.00) for his or her employees in accordance with the laws of the State of California. Any notice of cancellation or non -renewal of all Workers' Compensation policies must be received by City at least thirty (30) calendar days (ten (10) calendar days written notice of non- payment of premium) prior to such change. The insurer shall agree to waive all rights of subrogation against City, its officers, agents, employees and volunteers for all losses that relate in any way to this Agreement. 4.2. General Liability Coverage. Concessionaire shall maintain commercial general liability insurance in an amount not less than Two Million and 00/100 Dollars ($2,000,000.00) per occurrence for bodily injury, personal injury, and property damage, including without limitation, contractual liability. If commercial general liability insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this Agreement, or the general aggregate limit shall be at least twice the required occurrence limit. 4.3. Products Liability Coverage. Concessionaire shall maintain products liability insurance covering bodily injury and property damage for all activities of the Concessionaire arising out of or in connection with products and services sold by the Concessionaire under this Agreement, in an amount not less than two million dollars and 00/100 ($2,000,000.00) combined single limit for each occurrence. Concession Agreement - THEJETTYCDM, LLC Exhibit F-1 10-51 4.4. Liquor Liability Coverage. Concessionaire shall maintain liquor liability insurance in an amount not less than two million dollars and 00/100 ($2,000,000) per occurrence for bodily injury, personal injury, and property damage. Concessionaire shall obtain a liquor liability insurance policy that covers all alcohol sold or distributed under this Agreement. The policy shall specifically include assault and battery coverage as well as coverage for Concessionaire's employees and patrons. 4.5. Professional Liability (Errors & Omissions) Insurance. Concessionaire shall require that Concessionaire's consultants, contractors and/or subcontractors providing any design, engineering, surveying or architectural services for the Premises maintain professional liability insurance that covers the services to be performed, in the minimum amount of one million dollars and 00/100 ($1,000,000) per claim and two million dollars and 00/100 ($2,000,000) in the aggregate. Any policy inception date, continuity date, or retroactive date must be before the Effective Date of this Agreement and Concessionaire shall require that Concessionaire's consultants, contractors and/or subcontractors agree to maintain continuous coverage through a period no less than three (3) years after completion of the services performed. 4.6. Builder's Risk Insurance. During construction, Concessionaire shall require that Concessionaire's construction contractors and subcontractors maintain Builders Risk insurance or an installation floater as directed by City, covering damages to the work for "all risk" or special causes of loss form with limits equal to one hundred percent (100%) of the completed value of the work, with coverage to continue until final acceptance of the work by Concessionaire and City. City shall be included as an insured on such policy, and Concessionaire shall provide City with a copy of the policy. 4.7. Pollution Liability Insurance. Concessionaire shall require that Concessionaire's construction contractors and subcontractors maintain a policy providing contractor's pollution liability ("CPL") coverage with a total limit of liability of no less than two million dollars and 00/100 ($2,000,000) per loss and in the aggregate per policy period dedicated to this project. The CPL shall be obtained on an occurrence basis for a policy term inclusive of the entire period of construction. If all or any portion of CPL coverage is available only on a claims - made basis, then a 10-year extended reporting period shall also be purchased. The CPL policy shall include coverage for cleanup costs, third -party bodily injury and property damage, including loss of use of damaged property or of property that has not been physically injured or destroyed, resulting from pollution conditions caused by contracting operations. Coverage as required in this paragraph shall apply to sudden and non -sudden pollution conditions resulting from the escape or release of smoke, vapors, fumes, acids, alkalis, toxic chemicals, liquids, or gases, waste materials, or other irritants, contaminants, or pollutants. The CPL shall also provide coverage for transportation and off- site disposal of materials. The policy shall not contain any provision or exclusion Concession Agreement - THEJETTYCDM, LLC Exhibit F-2 10-52 (including any so-called "insured versus insured" exclusion or "cross -liability" exclusion) the effect of which would be to prevent, bar, or otherwise preclude any insured or additional insured under the policy from making a claim which would otherwise be covered by such policy on the grounds that the claim is brought by an insured or additional insured against an insured or additional insured under the policy. 4.8. Automobile Liability Coverage. Concessionaire shall maintain automobile insurance covering bodily injury and property damage for all activities of the Concessionaire arising out of or in connection with the services to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than Two Million Dollars and 00/100 Dollars ($2,000,000.00) combined single limit for each occurrence. 4.9. Fire and Extended Coverage. Concessionaire shall maintain fire and extended coverage insurance, together with insurance against vandalism, theft and malicious mischief, on the Concessionaire Improvements, trade fixtures, signs, equipment, personal property, inventory, and all other Alterations on or upon the Premises from loss or damage to the extent of their full replacement value. 4.10.1-oss of Rent. Concessionaire shall maintain loss of rent insurance insuring that the Rent will be paid to City for a period up to six (6) months if the Premises are destroyed or rendered unusable or inaccessible for commercial purposes by a risk insured under a special form property coverage policy including vandalism and malicious mischief endorsements. 5. Endorsements. Each insurance policy shall be endorsed with the following specific language: 5.1. Additional Insured Status. The City, its elected or appointed officers, agents, officials, employees and volunteers, and the State of California, its elected or appointed officers, officials, employees, agents and volunteers, are to be covered as additional insureds, with respect to liability arising out of work performed by or on behalf of the Concessionaire. 5.2. Primary and Non -Contributory. This policy shall be considered primary insurance as respects to City, its elected or appointed officers, officials, employees, agents and volunteers as respects to all claims, losses, or liability arising directly or indirectly from the Concessionaire's operations or services provided to City. Any insurance maintained by City, including any self -insured retention City may have, shall be considered excess insurance only and not contributory with the insurance provided hereunder. 5.3. Liability Insurance. This insurance shall act for each insured and additional insured as though a separate policy had been written for each, except with respect to the limits of liability of the insuring company. Concession Agreement - THEJETTYCDM, LLC Exhibit F-3 10-53 5.4. Waiver of Subro act Lion. The insurer waives all rights of subrogation against City, its elected or appointed officers, agents, officials, employees and volunteers or shall specifically allow Concessionaire or others providing insurance evidence in compliance with these requirements to waive their right of recovery prior to a loss. Concessionaire hereby waives its own right of recovery against City, and shall require similar written express waivers from each of its consultants, contractors or subcontractors. 5.5. Loss Payee. City shall be included a loss payee under the commercial property insurance. 6. Additional Requirements. 6.1. Reporting Provisions. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to City, its elected or appointed officers, officials, employees, agents or volunteers. 6.2. Notice of Cancellation. The insurance provided by this policy shall not be suspended, voided, canceled, or reduced in coverage or in limits, by either party except after thirty (30) calendar days (ten (10) calendar days written notice of non-payment of premium) written notice has been received by City. 6.3. In the event City determines that (i) the Concessionaire's activities on the Property creates an increased or decreased risk of loss to the City, (ii) greater insurance coverage is required due to the passage of time, or (iii) changes in the industry require different coverage be obtained, Concessionaire agrees that the minimum limits of any insurance policy required to be obtained by Concessionaire or Concessionaire's consultants, contractors or subcontractors, may be changed accordingly upon receipt of written notice from City. With respect to changes in insurance requirements that are available from Concessionaire's then -existing insurance carrier, Concessionaire shall deposit certificates evidencing acceptable insurance policies with City incorporating such changes within thirty (30) calendar days of receipt of such notice. With respect to changes in insurance requirements that are not available from Concessionaire's then- existing insurance carrier, Concessionaire shall deposit certificates evidencing acceptable insurance policies with City, incorporating such changes, within ninety (90) calendar days of receipt of such notice. 6.4. Any deductibles applicable to the commercial property or insurance purchased in compliance with the requirements of this section shall be approved by City. 6.5. Concessionaire and Concessionaire's consultants, contractors and/or subcontractors shall be subject to the insurance requirements contained herein unless otherwise specified in the provisions above or written approval is granted by the City. Concessionaire shall verify that all consultants, contractors and/or Concession Agreement - THEJETTYCDM, LLC Exhibit F-4 10-54 subcontractors maintain insurance meeting all the requirements stated herein, and Concessionaire shall ensure that City is an additional insured on insurance required from contractors, consultants and/or subcontractors. 6.6. For General Liability coverage, contractors, consultants and/or subcontractors shall provide coverage with a format at least as broad as provided by Insurance Services Office form CG 203 80413. 6.7. If Concessionaire maintains higher limits than the minimums shown above, the City requires and shall be entitled to coverage for the higher limits maintained by Concessionaire. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City. 6.8. Concessionaire shall give City prompt and timely notice of any claim made or suit instituted arising out of or resulting from Concessionaire or Concessionaire's agents, representatives, consultants, contractors or subcontractors performance under this Agreement. 6.9. Concessionaire shall provide certificates of insurance, with original endorsements as required above, to City as evidence of the insurance coverage required herein. Insurance certificates must be approved by City prior to commencement of work or issuance of any permit. Current certification of insurance shall be kept on file with City at all times during the term of this Agreement. Concession Agreement - THEJETTYCDM, LLC Exhibit F-5 10-55 EXHIBIT "G" MEMORANDUM OF LEASE RECORDING REQUESTED AND WHEN RECORDED RETURN TO: Office of the City Clerk City of Newport Beach 100 Civic Center Drive Newport Beach, CA 92660 [Exempt from Recordation Fee - Govt. Code §§. 6103 and 27383] MEMORANDUM OF CONCESSION AGREEMENT This Memorandum of Concession Agreement ("Memorandum") is dated and is made between City of Newport Beach, a California municipal corporation and charter city ("City") and THEJETTYCDM, LLC, a California limited liability company ("Concessionaire"), concerning the Premises described in Attachment "A" attached hereto and by this reference made a part hereof. For good and adequate consideration, City leases the Premises to Concessionaire and Concessionaire leases the Premises from City, for the term and on the provisions contained in the Concession Agreement ("Agreement") dated , including without limitation provisions prohibiting assignment, subleasing, and encumbering said leasehold without the express written consent of City in each instance, all as more specifically set forth in said Agreement, which said Agreement is incorporated in this Memorandum by this reference. The term is five (5) years, beginning , 2022, and ending , 2027, on the same terms and conditions contained in the Agreement. This Memorandum is not a complete summary of the Agreement. Provisions in this Memorandum shall not be used in interpreting the Agreement's provisions. In the event of conflict between this Memorandum and the Agreement, the Agreement shall control. Execution hereof constitutes execution of the Agreement itself. [SIGNATURES ON NEXT PAGE] Concession Agreement - THEJETTYCDM, LLC Exhibit G-1 10-56 IN WITNESS WHEREOF, the Parties hereto have executed this Memorandum as of the date first written above. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date. - By: Aaron Harp City Attorney ATTEST: Date: By: Leilani I. Brown City Clerk CITY OF NEWPORT BEACH ("City"), a California municipal corporation and charter city Date: Bv: Grace K. Leung City Manager CONCESSIONAIRE: THEJETTYCDM, LLC, a California limited liability company Date: By: Brian Huskey Managing Member Concession Agreement - THEJETTYCDM, LLC Exhibit G-2 10-57 ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of I ss. On , 20 before me, Notary Public, personally appeared who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signatures(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (seal) ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of } ss. On 20 before me, Notary Public, personally appeared proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signatures(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (seal) Concession Agreement - THEJETTYCDM, LLC Exhibit G-3 10-58 ATTACHMENT "Al" PREMISES Concession Agreement - THEJETTYCDM, LLC Exhibit G-4 10-59 D 3 .3 4 5 V ERPD A ATES SAN D A IT 0 �L 91Y09 E YI COry 0 T A AREA w PROPOSED FLOOR PLAN - THE JETT SC 114'= -O' 7 2 4 CL Lo cV to Z rn L1.I d Q U O B LL- C?�d �o ow rL �F q Not PROPOSED FLOOR PLAN FP-01 10-60 Attachment B Budget Amendment No. 23-025 10-61 u yam. s Cat f Fo City of Newport Beach BUDGET AMENDMENT 2022-23 BA#: 23-025 Department: Community Development Requestor: Seimone Jurjis ❑ CITY MANAGER'S APPROVAL ONLY 0 COUNCIL APPROVAL REQUIRED ONETIME: ❑ Yes ❑� No Approvals Finance Director: Date 10/3/2022 Citv Clerk: Date EXPLANATION FOR REQUEST: To increase anticipated revenues to accont for concession agreement at Corona del Mar State Beach. ❑ from existing budget appropriations ❑✓ from additional estimated revenues ❑ from unappropriated fund balance REVENUES Fund # Org Object Project Description Increase or (Decrease) $ 010 01050505 551210 REAL PROPERTY GEN FUND - CORONA DEL MAR CONCESSIC 3,000.00 Subtotal $ 3,000.00 EXPENDITURES Fund # Org Object Project Description Increase or (Decrease) $ Subtotal) $ FUND BALANCE Fund # Object Description Increase or (Decrease) $ 010 300000 GENERAL FUND - FUND BALANCE CONTROL 3,000.00 Subtotal $ 3,000.00 Fund Balance Change Required 10-62 Attachment C Map 10-63 00� f hCarana Del Mar �� '• �Sfat7Beach ��'•��. '^�.r� t 9SN MO Disclaimer: N E W P 0 R T B E A C H 0Every reasonable effort has been made to assure the accuracy of the data provided, however, The City of �EvrPp� Newport Beach and its employees and agents o� 0 417 833 disclaim any and all responsibility from or relating to any results obtained in its use. U � �gc,Foa�'e- Feet 9/29/2022 10-64 a ' 1. bu.t Paint �4 % A 2920 ' ❑CEAt'►'8��� H1A fly ?'-� •�Ywy...r 4 •� ~.,� ..1.gV ,Y . p 'fry -' • CD: _ •.? t y po to hf Earona D4o+,I ar ' StateOlaE�:aeh 40 _ , . 10 N9,,S Disclaimer: N E W P 0 R T B E A C H Every reasonable effort has been made to assure the accuracy of the data provided, however, The City of �EvrPp� Newport Beach and its employees and agents o� 0 100 200 disclaim any and all responsibility from or relating to any results obtained in its use. U �gc,Foa�'e- Feet 9/29/2022 10-65 Attachment D Site Plans 10-66 MR F FIRST FLOOR PLAN GENERAL NOTES: KEY NOTES o 1 SEE SHEET A 9 01. FOR WALL TYPES ❑INDICATES EXTENT OF ROOF 9 Y OVERHANG p 53•_g^ SEE PLUMBING DRAWINGS FOR m STORAGE FlWill 0 • �/ I®I D I ■I � l,�,III � I 5iEi x !II% 1; .1r FIR i ilu4!! _ Eg©©©©©© LIFEGUARD 2 STUB -OUT LOCATIONS FOR HOT AND GAS AT 18 HIGH CONC MASONRY 2 SEAT -WALL W/ PRECAST CONC. �. COLD WATER, AND CONCESSIONS. CAP:. SEE SHEETS A-0.01, A L7.02. & 3..A-1.7.03 FOR INTERIOR ELEVATIONS. O NOT USED. zz y! BASE CABINET STAINLESS W F.O.M. FLOOR FINISH IS SEALED CONCRETE 1 4. UNLESS NOTED OTHERWISE. STEEL SINK, SEE PLUMBING E pWGS. �5 STAINLESS STEEL COUNTER TOP. W U. rx COPPER DOWNSPOUT W/ 3 F.O.M. 2 DOWNSPOUT HANGERS PER SMACNA. FIGURE 1-35J AND 75 DEGREE. PLAIN. ROUND ELBOW AT ABOVE. FINISH GRADE. Ile ^j FUTURE ❑j FUTURE KITCHEN EQUIPMENT LOCATION N.I.C. ❑g WALL HUNG LAVATORY. SEE PLUMBING DWGS: A �. FLOOR MOUNTED WATER CLOSET (DISABLED ACCESS MODEL). SEE OFF` \ \ F.O.M. \ B PLUMBING DWGS ip 36^ LONG STAINLESS. STEEL GRAB BAR. 42^ LONG STAINLESS. STEEL GRAB BAR ' 1\ 12 NOT USED. 1 1 13 60" 0 DISABLED ACCESS 2 TURNAROUND. DISABLED ACCESS. SIGNAGE (AT DOOR. AND AT LATCH SIDE). 1 Lb II A- 0 L3.0f LEGEND' 15 SKYLIGHT ABOVE. . ' FM NERAMLL MORTAR TILE /8 GALVANIZED PAINTED T.S. 6 II F.0.M.1 BED. INDOOR/OUTDOOR 4 CARPET COLUMN. SEE STRUCTURAL. 17 ELECTRICAL PANEL. SEE ELECTRICAL DWGS.: t8 WATER HEATER SEE PLUMBING Z cWc L = I DWGS. O m z PA TM NT NOTES- 19 SURFACE MOUNTED FIRE EXTINGUISHER --�Cc--F 0 W � a d NI 1.APPROVED NUMBERS OR 40 FLOOR SINK O Q d O 0 r = pl ==p� ADDRESSESSHALLBE PLACED ON ALL NEW AND EXISTING I SUCH A POSITION. 21 SAND INTERCEPTOR. Q = W Z W III ==III BUILDINGS THAT IS PLAINLY VISIBLE AND z U rn III ==III sl LEGIBLE FROM THE STREET 22 B^X16'. FACTORY FINISHED LL 0 Q OR ROAD FRONTING OR ROAD FRONTING THE PROPERTY. ALUMINUM BLOCK VENT W/ 509 FREE AREA,O 0 W o LL _=mil dl I SAID NUMBERS SHALL BE OF NON-COMBUSTIBLE MATERIALS, SHALL CONTRAST WITH THEIR 23 FlXED SHOWER CURTAIN ROD. 24 m V U w g/ BACKGROUND', .AND SHALL BE EITHER INTERNALLY OR EXTERNALLY ILLUMINATED T0. EXIT SIGN. 25 5'-0'%5'-0 ^ CLEAR FLOOR AREA Q / BE VISIBLE AT THE NIGHT.. NUMBERS SHALL BE NO .LESS 0 EXIT DOOR: MAX. SLOPE _ 1'-0^ THAN 6 IN HEIGHT .WITH. A REVISIONS, QDIlp,1T•t Ea / ONE -INCH STROKE. SEE L3. A-01 FOR LOCATION. 2. A MINIMUM OF ONE 2A10 / BC EXTINGUISHER SHALL BE PROVIDED FOR EACH 3,000 DRAWN BY: JC CHECKED BY:HH.JB F.O.M. 8 SQUARE FEET OF FLOOR AREA. TRAVEL DISTANCE TO THE EXTINGUISHER SHALL NOT RECORD EXCEED 75FEET 3.. CONCESSIONS KITCHEN TENANT IMPROVEMENT WILL BE BY OTHERS UNDER SEPARATE e DRAWINGS DATE: 08/01/07 A-1 0 Oi CONTRACT. TYPE K, 0 EXTINGUISHERS MAY BE C U E REQUIRED. ..SHEET OF A- .01 -W.OI � RJ 1 1/4.=" XREF: _ 10-67 D c B A 2 L am via PROPOSED FLOOR PLAN - THE JETTY-CDM SCALE:114"=V-0" 5 V ERP00 A ATES S SAN D 0 A IT 16 1 NN T CT. 0 ILL C . 91709 9- 0- 437 A DER 21 MSN.CW D Lo CV CO Z rn J W Q d :Q U 0 O B U U) w LU p H M � LU O O w M � 2 o O a H co U owam erx� N/t .� A cxeo er: ltlt COWAGxf: PROPOSED FLOOR PLAN 5 FP-01 10-68 Attachment E Neighborhood Outreach Materials 10-69 Dear Neighbor, Greetings and Happy New Year! My name is Brian Huskey, chef/owner of the beach front walk-up restaurant, The Jetty at Big Corona del Mar State Beach, (formerly Tacklebox). After six years of working with the city of Newport Beach, The Jetty is in the final stages of being approved for its beer and wine license. Over the last six and half years I have developed a wonderful customer base, thanks to the CDM community. From the very beginning in 2015, locals have asked regularly about the missing beer and wine selection from our menu. We listened and pursued the appropriate avenues to potentially acquire this license. With the community's continued support, The Jetty will continue to grow its food and beverage menu. The Jetty has become the exemplar for unexpected, great beach eats. Menu items have been featured on The Food Network, The Hallmark Channel, Newport Beach Wine and Food Festival, Disney Food and Wine and the Pacific Wine and Food Classic. We received the honor of Best New Restaurant by Orange Magazine our opening year and have been featured in numerous travel publications as a food destination. What makes The Jetty truly unique, is that it provides the local community the opportunity to literally walk to the beach and have a meal normally served at a sit-down restaurant, but with the ease of a casual walk-up. We hope to pair locally crafted beers and wines to compliment our food and sunsets. Whether you are a regular, or you haven't visited The Jetty (formerly The Tacklebox), I invite you down to the beach for a delicious meal, outstanding customer service, and again with your support, potentially serving you fine beer and wine selections in the future. I'm looking forward to seeing you! Thank You. Cheers, Brian Huskey thejettycdm@gmail.com www.thejettycdm.com Instagram: @thejettycdm 10-70 C THE JETTY - Beer and Wine Petition The Jetty at Corona Del Mar State Beach 3029 E. Shore Ave, Corona Del Mar, CA We would like your support in bringing beer and wine to our establishment. Please sign and provide your email. Thank you! First and Lost Name Signature Emait Address I W'�R ! ;.A rRe ARNOW. 0- 4 "M NOWN., Nowl. PAP NAM! 4�� 1 S �� —. _� W M 01, M.:' "t, . r � CJ 6 4 10-71 THE JETTY - Beer and Wine Petition The Jetty at Corona Del Mar State Beach 3029 E. Shore Ave, Corona Del Mar, CA We would like your support in bringing beer and wine to our establishment. Please sign and provide your email. Thank you! First and Lost Name Signature Email Address �� ►Wggri�il� A u 9- im M i� wiff! 1 ' Wly — INIONAVEMMO VAR ffVAN � ��* i _ I / J[I i s I Alf i WINUMraff . . 1l. I zip ,. /? MIMINIMM INI'M�J ► '1� 1 10-72 THE JETTY - Beer and Wine Petition The Jetty at Corona Del Mar State Beach 3029 E. Shore Ave, Corona Del Mar, CA We would like your support in bringing beer and wine to our establishment. Please sign and provide your email. Thank you! First .. Lost Nome SignatureAddress U 1 . �� I PVqe'�� z Mo�� �I�W,.W,-NIFER L - Ji! _ Wm I 'all ImOm. Kim 927' TA- AM V. - 0 a, 0 M .10.ruifflEamon. Mf d , A 10-73 THE JETTY - Beer and Wine Petition The Jetty at Corona Del Mar State Beach 3029 E. Shore Ave, Corona Del Mar, CA We would like your support in bringing beer and wine to our establishment. Please sign and provide your email. Thank you! First and Lost Name Iff ANAII Email Address --- ME WOR RIM ........ ........ t F ri � IN MAN91, � 73 , It N, FA 7PA 101%. R-0m.i �WW ' L 5" r"r lil 10-74 ?M THE JETTY - Beer and Wine Petition The Jetty at Corona Del Mar State Beach 3029 E. Shore Ave, Corona Del Mar, CA We would like your support in bringing beer and wine to our establishment. Please sign and provide your email. Thank you! First .. Lost Name SignaAddress 0100 ��C • � .cam � �I�'%'!� . � ,. MAN k NAl I W. __ ..W1. .. N4-011__ I�WOMOU0,11 l_/, . LM1111111 I go. ON ON M, Lelf.1 MIKM� AMAMI WARMEMM mliff"Aal +09 10-75 THE JETTY - Beer and Wine Petition The Jetty at Corona Del Mar State Beach 3029 E. Shore Ave, Corona Del Mar, CA We would like your support in bringing beer and wine to our establishment. Please sign and provide your email. Thank you! First and Last Name Signature Email Address 31111 V-ICit_ W f � &� r J. b�: �►�a;` c w. t' ct I �e _ c�o •,�. J A �ie,ltXa v riverot.�V �a �irt�(pl{ 1 • ^tsns 10-76 01 THE JETTY - Beer and Wine Petition The Jetty at Corona Del Mar State Beach 3029 E. Shore Ave, Corona Del Mar, CA We would like your support in bringing beer and wine to our establishment. Please sign and provide your email. Thank you! First and Lost Name Signature Email Address FACT RIM F `�_ i� / / /• // sir / "10404MR' /� // 10-77 THE JETTY - Beer and Wine Petition The Jetty at Corona Del Mar State Beach 3029 E. Shore Ave, Corona Del Mar, CA We would like your support in bringing beer and wine to our establishment. Please sign and provide your email. Thank you! First .. Lost Name SignatureAddress I ' 1 I/ RE1,150WOR IN 0�0 P10 Molina Will _T% " '`` RIM MtI6= r 10-78 THE JETTY - Beer and Wine Petition The Jetty at Corona Del Mar State Beach 3029 E. Shore Ave, Corona Del Mar, CA We would like your support in bringing beer and wine to our establishment. Please sign and provide your email. Thank you! First .. Lost Name Signature. Emait Address Oft ow-"RAIMOV"I "AAdwe �RO FE 4 1 Me V. a AR" i ����' I _ FdI 10-79 THE JETTY - Beer and Wine Petition The Jetty at Corona Del Mar State Beach 3029 E. Shore Ave, Corona Del Mar, CA We would like your support in bringing beer and wine to our establishment. Please sign and provide your email. Thank you! First .. Lost Name SignatureAddress V i U 091 014jr! M� VIY) ;,,we 10-80