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HomeMy WebLinkAboutA4158 - HMS HOST - Anton Airfood, Inc0 n� 5 a D �•�c"v u(D � m co �_� < o CD CD O 0 3 3' sll I?1 C) o Q CD 0 = � w tv (n -p m cn (n D o �- � : g�oo nOOo-n � �o*mo mo�onoow 3 Q a- CD o (n m— o CD ° D m �' m N p� D Q 'Q m o �• CL N O _� ((A Cm O CD OD p �. D 4(a 0 � cr p 0) m m P- W � ti< CD � 0 o. 0 0 0 p 0� pCD � o CAD CD n."° 0)0 O r-SCQ �30 3(D3�3 °o � r« 3 cr m w O O a �� o �� CL Q D CA CD CD co� � 0- N o cfl �� � CD CD a w CD CD -a �' 0 r CD �,M � W o w m c C)w 0 = �x o� < CD = CD CD c- o CD 0 o m ='33. ctD3 i�-q tl� CD 0 m O 3 Ww O c CCDD .�"'.@ 7 �. ?3 c �Dm 33<mC? 0 m 3 ry � w " �c to m--1 3 CD Noo ��(a o• o cn m c ��a. —m CD CD Cl) : N o Z= to a 0) , CD �'c-a 2ca w O CD �, (mCD M o (D CD CD < Cl)v 3 CD c 2n- oam� D _ (n < 0 =) =3 CD CD CD rr tr' o m o CD CD CD CD �, 3 co (o m D me a en CD omvoc D c CD � °' CD C� 3 CD CD m I n c CD (D o �. O <� 3 o� <_�_� 1 rr m o .. .� Q m N CIOi t3n CD° CC U) CD CCDD 0 LEASE AGREEMENT FOR CONCESSIONS AT THE PALM SPRINGS INTERNATIONAL AIRPORT NO A4158 AMENDMENT NO. 4 TO AIRPORT CONCESSIONS FOR FOOD AND BEVERAGE THIS AMENDMENT NO. 4 TO THE PALM SPRINGS INTERNATIONAL AIRPORT CONCESSION AGREEMENT No. A4158 ("Amendment'), is made and entered into as of the 1st day of November 2019, by and between the CITY OF PALM SPRINGS, a charter city and municipal corporation organized and existing under the laws of the State of California ("City") and Palm Springs AAI, Inc., a corporation organized and existing under the laws of the State of California ("Concessionaire"). RECITALS 1. Whereas City and Concessionaire are parties to that certain Airport Concession Agreement, dated November 1, 1999, as amended (the "Agreement'), pursuant to which City granted to Concessionaire various rights related to the use of the Palm Springs International Airport for the operation of Airport concession business. 2. Whereas the term of the Agreement expires on October 31, 2019. 3. Whereas, the Concessionaire and the City mutually desire to extend the term and amend certain other provisions of the Agreement. NOW, THEREFORE, in consideration of the mutual covenants and promises in this Amendment, the parties hereto covenant, agree and bind themselves as follows: 1. Section 2.01 Term of Agreement The term of the Agreement shall be extended from and including November 1, 2019 for the locations identified below: Current Facilities Locations: Proposed extension: Food & Beverage Celebrity Bistro (Pre-screening) to May 31, 2020 Celebrity Bistro (courtyard) to May 31, 2020 Starbucks (z locations) to May 31, 2020 1211 Fairway to May 31, 2020 Tap Room to May 31, 2020 Vintage Wine Bar to May 31, 2020 (See attached Exhibit "A" for Celebrity Bistro layout, due to Airport improvements the Airport Police office is being relocated in approximately 550 s.f. of the existing Celebrity Bistro Bar.) The City Manager may continue the lease term based upon a month-to-month tenancy. The Lease is subject to termination by the City with a thirty (30) day advance written notice to terminate. 2. Section 31.3 Nondiscrimination and FAA Required Clauses Section 31.3 of the Agreement is hereby deleted in its entirety and replaced with the following: "Concessionaire, for itself, personal representatives, successors in interest, and assigns, as part of the consideration hereof, does hereby covenant and agree as a covenant running with the Premises that: (1) no person, because of actual or perceived race, religion, color, sex, age, marital status, ancestry, national origin (i.e., place of origin, immigration status, cultural or linguistic characteristics, or ethnicity), sexual orientation, gender identity, gender expression, physical or mental disability, or medical condition (each a "prohibited basis") shall be excluded from participation in, denied the benefits of, or be otherwise subjected to discrimination in the use of said facilities; (2) Concessionaire shall ensure that applicants are employed, and that employees are treated during their employment,without regard to any prohibited basis; (3) as a condition precedent to City's lawful capacity to enter this Agreement, and in executing this Agreement, Concessionaire certifies that its actions and omissions hereunder shall not incorporate any discrimination arising from or related to any prohibited basis in any Concessionaire activity, including but not limited to the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship; and further, that Concessionaire is in full compliance with the provisions of Palm Springs Municipal Code Section 7.09.040, including without limitation the provision of benefits, relating to non- discrimination in city contracting; (4) in the construction of any improvements on, over, or under such Premises and the furnishing of services thereon, no person on the grounds of race, color, or national origin shall be excluded from participation in, denied the benefits of, or otherwise be subjected to discrimination; and (5) Concessionaire shall use the Premises in compliance with all other requirements imposed by or pursuant to Title 49, Code of Federal Regulations, Department of Transportation, Subtitle A, Office of the Secretary, Part 21, Nondiscrimination in Federally-Assisted Programs of the Department of Transportation-Effectuation of Title VI of the Civil Rights Act of 1964, as said Regulations may be amended." 3. Percentage Rent. Percentage Rent for the Lease Area shall be calculated using twelve (12) percent of all gross receipts from business operations conducted from the Lease Area. 4. Applicability. This Amendment is attached to and made a part of the Agreement. In the event of any contradiction or inconsistency between the terms and provisions of this Amendment and the terms and provisions of the Agreement to which it is attached, the terms and provisions of this Amendment shall control and be interpreted in such a manner as to override any provision of the Agreement which would prevent the spirit and letter of the terms and provisions of this Amendment from being given full force and effect. All defined terms not specifically defined in this Amendment shall be given the same meaning as the defined terms in the Agreement. All other terms and conditions contained in the Agreement shall remain unchanged. 5. Joint Authorship. This Amendment has been entered into as an act of free will, without duress, and no presumption of authorship shall attach to same, and any ambiguity in the terms and conditions of this Amendment shall not be attributed to one party over the other. 2 IN WITNESS WHEREOF, the Parties have executed this Amendment as of the date first written above. "CITY" City of Palm Springs By. David H. Ready, Ph.D. City Manager APPROVED AS TO FORM: ATTEST By• By J frey allinge nthony M 'ia City Attorney City Clerk APPRGVED BY CITY CU'. ``, Concessionaire: Check one: Individual_ Corporation_ Partnership_ Corporations require two notarized signatures: One from each of the following: A. Chairman of Board, President, or any Vice President:AND B. Secretary, Assistant Secretary, Treasurer, Assistant Treasurer, or Chief Financial Officer. By. By: Signature (notarized) Signature otarized) Name: t AUL 0#4LOW Name: JEFFREY L. POERSCH Title. ?Ro;l0tN I Title: State of MAayc.arfD State of N-b County of MQU CA0146-ky County of W-1 Sworn to and subscribed before me on Sworn to and subscribed before me on the it day of Oc.-f 201 Cl the da of�� , 2pl AUDREY DKOSO�1 Ey 0 ryPublle Signature Notary Public Punnc. anamn w � 4'.1ommlss nExplres ontgomery County "Ce.4nmisslon xplrns Maryland My Commission Expires November 19,2019 M O T A R r 3 ; • � � ' 0 - 74 yERY i0o CALIFORNIA ALL-PURPOSE AGOIOWLEDGMEKT CIVIL CODE§1189 - - - - ,.d'.rx�y - - -.9x wg»a�a<aca.a•.0,c..r d.[ �. A rotary public or other officer corrplecrig this certfiicate verifies alp the identity of the iKWKkml who signed the document to whi&this Certificate a atached,and not the tri.rthft#mes aoctracy,or wd3ty of dw doameM- State of California 1 County of ) On before me. Date Hare Insert Name and Tnte of the Officer pemonaPy appeared Namet::l of Srgnerlsj who proved to me on the basis of satsfactory evidence to be the person(s) whore name(a) in/am subscribed to the within inatrument and acknowledged to me that helshalthey executed the same in him?ner/their authorized capacity{iee),and that by his?ienitheir signature(s)on the instrument the peraon(a), or the entity upon behalf of which the perron(a)acted,executed the instrument I cart fy under PENALTY OF PERJURY under the laws of the `.fate of California that the foregoing paragraph is true and carted WITNESS my hand and official seal- Signature Sigrature of Notary Public Place Notary Seal Above OPTIONAL Though Hhts secbon is opbormd oampbting this information can deter altersbon of the document or fraudulent reattachment of this form to an unintended docwnent- Descripbon of Attached Document Title or Type of Document Document Date: Number of Pages: Signerla)Other Than Named Above: Capacity(iea)Claimed by Signer(s) Signer's Name: Signers blame: ❑Corporate Officer—Titl*): ❑Corporate Officer—Title(s): ❑Partner— ❑Limited ❑General ❑Partner— ❑Limited ❑General ❑individual ❑Attorney in Fact ❑Individual ❑Attorney in Fact ❑Trustee ❑Guardian or Conservator ❑Trustee ❑Guardian or Conservator ❑Other. ❑Other. Signer Is Repreaentirg: Signer is Representing: ®2014 National Notary Association•www.NatnonallodryAng•1-800-LJS NOTARY(1-800-87843827) 16am 1t5 W 4 Exhibit "A" 0 Jill �. Celebrity Bistro- I \ Post SCreening IN 1, Starb.U&S—Pre Screening 5 AMENDMENT NO. 3 TO LEASE AGREEMENT FOR CONCESSIONS AT THE PALM SPRINGS INTERNATIONAL AIRPORT AGREEMENT NO. A4158 THIS AMENDMENT NO. 3 TO LEASE NO. A4158 ("Amendment') is made and entered into this fourth day of December 2013, by and between the CITY OF PALM SPRINGS, a charter city and California municipal corporation ("Lessor"), and the Palm Springs Anton Airfood Inc. (tenant). RECITALS WHEREAS, Lessor and Lessee entered into Lease Agreement No. A4158 ("Agreement'), effective November 1, 1999; and WHEREAS, the parties wish to amend the Agreement pursuant to the terms of Amendment No. 3 as follows; WHEREAS, Lessor owns and operates an airport known as the Palm Springs International Airport, located in the City of Palm Springs, County of Riverside, State of California ("Airport"); and WHEREAS, to further its food and beverage concession Lessee is desirous of leasing certain real property consisting of 508 square feet in the airport terminal. The attached Exhibit 1 identifying the 508 square foot, attached hereto and incorporated herein; and WHEREAS, the Lessee obligations for insurance will commence upon the date of possession. All other obligations and privileges will be as stated in the Lease Agreement No. A4158, along with the additional percentage of rent which will be begin upon the date the facilities are open to the public; and WHEREAS, Lessor is desirous of leasing the area to Lessee and granting Lessee certain rights to access the Airport to allow Lessee to design, construct and operate a second Starbucks Coffee facility and perform its business thereon. NOW, THEREFORE, in consideration of the mutual covenants set forth herein and for other good and valuable considerations, Lessor does hereby lease to Lessee, and Lessee does lease from Lessor, the parcel within the airport terminal building containing the 508 square feet of area identified as attached hereto and incorporated herein; for all purposes, together with those rights and privileges stated elsewhere in this agreement upon the following terms and conditions, to become effective December 4, 2013: AGREEMENT Section 1. The ending date of the term of this Amendment No. 3 shall be the same as that described in Agreement No. A4158, October 31, 2019. Section 2 Tenant shall pay a percentage of rent of all gross sales as defined in Amendment No. 2, Section 2.2 remaining unchanged and in full force and effect. Section 3 All other conditions of Lease Agreement No. A4158 not in conflict with this Amendment shall remain in full force and effect and shall apply to the amended 508 square feet of terminal space as identified. Section 4 Tenant shall construct and operate a Starbucks coffee shop in the airport terminal, subject to the requirements and conditions contained in Section 8.8 of the Lease, except that such construction shall be completed by September 15, 2014. The total capital investment to design and construct the Starbucks facility shall be applied to the Mid-Term Refurbishment as provided in Section 8.9 of the Lease. EXHIBIT 1 Starbucks 508 s.L ' J� p • a V • �� - (SIGNATURE PAGE FOLLOWS) IN WITNESS WHEREOF, the parties have executed and entered into this Agreement as of the date first written above. ATTEST: CITY OF PALM SPRING am n.c.pal corporation B . �7 City Clerk City Mana APPRO T o FORM: APPROVED BY CITY COUNCIL By. \�-k1� )\ � 6� it orney CONTRA TOR: Check one: —Individual _Partnership Corporation Corporations require two notarized signatures: One from each of the following: A. Chairman of Board, President, or any Vice President: AND B. Secretary, Assistant Secretary, Treasurer, Assistant Treasurer, or Chief Financial Officer. Palm Springs AA9-1119 By: C�Ls ✓� By Signature (notarized) � g t (notarized) Name: rhAdoc on F Powers Name: Jeffrey L. POersch Vice President Secretary Title: Title: State of �(pfpw-�:)N7 State of *iH(}fR`(Li.-::rN7 County of MGNT(xHE-P ( County of HutoJ &HoE `/ On J 2 ( before me, A ])Kv>Crl On� 7 f before me, personally appeared 7�A r/`2 S personally appeared/39(FiVY { who proved to me on the basis of satisfactory who proved to me on basis of satisfactory evidence to be the person(s) whose name(s) evidence to be the person(s) whose name(s) is/are subscribed to the within instrument is/are subscribed to the within instrument and acknowledged to me that he/she/they and acknowledged to me that he/she/they executed the same in his/her/their authorized executed the same in his/her/their authorized capacity(ies), and that by his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), signatures(s) on the instrument the person(s) or the entity upon behalf of which the or the entity upon behalf of which the person(s)acted, executed the instrument. person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY I certify under PENALTY OF PERJURY under the laws of the State of California that under the laws of the State of California that the foregoing paragraph is true and correct. the foregoing paragraph is true and correct. WITNESS my hand an ial seal. WITNESS my hand an is eal. Notary Signature: Notary Signature: A. DAWSON Notary Seal: Notary Public-Maryland Notary Seal: A. DAWSON Montgomery County Notary Public-Maryland My Commission Expires Montgomery County November 19. 2015 My Commission Expires November 19, 2015 AMENDMENT NO. 2 TO LEASE AGREEMENT FOR CONCESSIONS AT THE PALM SPRINGS INTERNATIONAL AIRPORT. AGREEMENT NO. 4158 THIS AMENDMENT NO. 2 TO LEASE AGREEMENT FOR CONCESSIONS AT THE PALM SPRINGS INTERNATIONAL.AIRPORT REEMENT NO. 4158 ("Second Amendment") is made and entered into on this day of AWU'* 2008, by and between the CITY OF PALM SPRINGS ("City") and PALM SPRINGS AAI, INC., a wholly owned subsidiary of Anton Airfood ("Tenant") RECITALS WHEREAS, City is the owner of the Palm Springs International Airport ("Airport"), and operates thereon the Palm Springs Airport Terminal building ("Terminal"); WHEREAS, City and Tenant entered into a Lease Agreement for Concessions at the Airport, Agreement No. 4158, dated November 1, 1999 ("Lease") for food and beverage concession services at Palm Springs International Airport. WHEREAS, City and Tenant entered into a First Amendment to the Lease dated September 5, 2001 to grant tenant additional concession space; WHEREAS City and Tenant wish to enter into this Second Amendment to extend the Lease term through October 31, 2019; revise the provision on pricing; modify the Percentage Rent; require Tenant to remodel Celebrity Bistro, convert Desert Grille to Dewar's Clubhouse Bar & Grille and Palm Springs Coffee Company to a Zia facility by Freshen's, and construct and operate Starbucks, Seasonal Wine Bar, and La Brea Bakery; and WHEREAS, design and construction of said facilities and improvements will require Tenant to invest or cause to be invested not less than $2,500,000.00 and Tenant has agreed to commit to such investment; and WHEREAS, Tenant has further agreed to reinvest within the Premises and expend or cause to be expended an additional $700,000.00, separate and apart from the $2,500,000.00 in facilities and improvements, no later than December 31, 2015; and WHEREAS, City and Tenant desire to alter Exhibit "B" to the First Amendment to the Lease dated September 5, 2001 to delete space that no longer exists and add new space. AGREEMENT NOW THEREFORE, in consideration of the mutual promises of the parties hereto and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, City and Tenant agree as follows: t sx'R4�I p p OR6O2NAL fv6C Y 1. Subsection 1.3.5 in the Lease shall be amended in its entirety to read as follows, with all other provisions of Section 1.3 remaining unchanged and in full force and effect: "1.3.5 Pricing. All prices charged for goods and/or services supplied to the public on or from the Lease Area shall be fair and reasonable, based upon the market prices charged by other competing and/or comparable businesses. Notwithstanding the above, prices of said items shall not exceed one hundred fifteen percent (115%) of the prices found in comparable Facilities in the City of Palm Springs." 2_ Subsection 22 in the Lease shall be amended to read as follows, with Paragraphs 22.1 and 222 remaining unchanged and in full force and effect: "22 Percentage Rent. Percentage Rent for the Lease Area shall be calculated on the basis of total annual gross receipts from business operations conducted on or from the Lease Area as follows: a) When total gross receipts for the accounting year are less than $3,500,000.00, Tenant shall pay the City 6% of the total gross receipts; b) When total gross receipts for the accounting year are between $3,500,000.01 and $7,500,000.00, Tenant shall pay the City 7% of the total gross receipts; c) When total gross receipts for the accounting year are greater than $7,500,000.00, Tenant shall pay the City 8% of the total gross receipts." 3. Section 6 in the Lease shall be amended in its entirety to read as follows: 116. TERM. This Lease shall commence upon execution of the Lease by City. Unless earlier terminated in accordance with Section 7 below, the term of this Lease shall run through and until October 31, 2019," 4, Section 8 in the Lease is amended to add subsections 8.8 and 8.9 as follows, with all other provisions of Section 8 remaining unchanged and in full force and effect: "8.8 Improvements during Renewal Term. Tenant agrees to perform or have performed certain improvements or modifications to the Lease Area in accordance with all existing and applicable rules, ordinances, codes, and laws and further with the approval of the City in its sole discretion, including remodeling the Celebrity Bistro, converting the Desert Grille to Dewar's Clubhouse Bar & Grille and converting the Palm Springs Coffee Company to a Zia facility by Freshens, and to construct and operate a Starbucks, a Seasonal Wine Bar and a La Brea Bakery. Tenant agrees to expend not less than the sum of $2,500,000.00 for the design and construction of the facilities listed in this subsection 8.8. Said designs shall be submitted to the City for its approval which shall not be unreasonably withheld. Tenant further agrees that said improvements/modifications described above shall be completed no later than December 31, 2009." 2 Y "8.9 Mid-term Refurbishment. Tenant agrees that, separate and apart from the $2,500,000,00 it shall expend for the improvements/modification mentioned in Section 8.8, it shall expend not less than the sum of $700,000.00 for mid-term refurbishment by December 31, 2015. Any designs/plans prepared for said midterm refurbishment shall be submitted to the City for its approval prior to construction. Said City approval shall not be unreasonably withheld." 5. Exhibit "B" which was attached to Lease shall be amended and modified to include and reflect the following deletions and additions: Delete 859 SF as follows: Sp 13 - Coffee Cart- 154 SF Sp 16 - Coffee Stand - 400 SF Sp 2 - Cocktail Lounge - current 450 SF, new 145 SF (-305 SF) Add 3,395 SF as follows: Sp 12 - Outside Seating - 700 SF Sp 20 - Coffee House (Starbucks) - 1 ,135 SF Sp 21 -Wine Bar- 308 SF Sp 22 - La Brea Bakery - 1,252 SF The amended Exhibit "B" shall be attached to this Amendment NO.2 and shall replace and supplant the current Exhibit "S" attached to the Lease and to Amendment NO.1. 6. Due Execution. The person(s) executing this Amendment on behalf of the parties hereto warrant that (i) such party is duly organized and existing, (ii) they are duly authorized to execute and deliver this Amendment on behalf of said party, (iii) by so executing this Amendment, such party is formally bound to the provisions of this Amendment, and (iv) the entering into this Amendment does not violate any provision of any other agreement to which said party is bound. 7. Full Force and Effect. The parties further agree that, except as specifically provided in this Amendment, the terms of the Lease shall remain unchanged and in full force and effect. (EXECUTION PAGE FOLLOWS) 3 SN;qd9 I IN WITNESS WHEREOF, the parties have executed and entered into this Agreement as of the date first written above ATTEST: CITY OF PALM SPRING a municipal corporatio City Clerk City Maria PPROVED AS TO FORM J �' 'PMOVED BY CITY COUNCIL / City Attorney CONTRACTOR: Check one: Individual Partnership ✓ Corporation Corporations regL notanz ignatures: One from each of the following: A. Chairman of Board,President,or any Vice ent:AND B. S r ary.Assistant Secretary,Treasurer,Assistant Treasurer, or Chief Financial O � y i f Signature(notarized) Byg6tgnatunzed) (/Name. "r41STOPHER G. COWNSENND Name ice Zyesl=rip Title: Title, Secretary .» State yof,•MY� Yac�0. +A +,«».»««...._-.,.,....._- -State of• County of-KOn�q_ rA CV- Countyo//f 4 M IOA rc• On���tlg before me, ois .S ryl•(•, On?�J/___before me, Logs ' • w, personally appeared C'Inrrs�o��r9v �'r'T0Lu"Sa� personally appeared �.-w&v--6L A.`R%\Mt Vl who proved to me on the basis of satisfactory who proved to me on basis of satisfactory evidence to be the persons)whose name(s) evidence to be the person(s)whose name(s) islare subscribed to the within instrument is/are suhscribed to the within instrument and acknowledged to me that he/shelthey and acknowledged to me that he/she/they executed the same in hisfnerltheir authorized executed the same in his/her/their authorized capacity(ies),and that by his/her/their signatures) capacity(les), and that by his/her/their signature(s) on the instrument the person(s),or the entity upon on the instrument the person(s)or the entity upon behalf of which the person(s)acted,executed behalf of which the person(s) acted,executed the instrument. instrument I certify under PENALTY OF PERJURY I certify under PENALTY OF PERJURY under the laws o1 the State of California that under the laws of the State of California that the foregoing paragraph is true and correct. the foregoing paragraph is true and correct. WITNESS my hand and off ial seal. WITNESS my hand and official seal, _ Notary Signature Notary Signalur UGC Notary Seal: `O101nuurul6rrr Notary Seal; ,`p�Utuuugrpl. sP�yN .` mmiss�ofF, NOTARY p1o7ARp 9.• O••, PU9L1C f J O••, AU9LIG r� S pT-24.3, l'OC�MERY GD�ta`` `'ii kERY 11 Gio 0' Anton Alrfood, A4168,Ames y4nent 2 4 r - s' �IY 6 Y • y� a�pyn i c w • �a w� 941 sue'° Bwn�iiGr wool Document Tracking Page: 12 Report: All Active Documents and XREF=AIRPORT and service=LEASE AGREEMENT,Detail November 10,2004 Document# Description Approval Date Expiration Date Closed Date A4158 Airport Food Concessionaire 12/01/1999 0,W'l/2009 Company Name: Anton Airfood Inc Insurance Status: Letter EXPIRED was not printed /6,31107 Address: Reagan National Airport„ Washington, DC 20001 // Phone: ( ) - Ext: email: XREF: AIRPORT Service: Lease Agreement Document Tracking: Cade Item Description Due Date Completed Date Tracking D Converted from Fastrack v6.15 data. A rp eement may be extended addt'I 5 years, 5-2014 (14�x!Surety Bond#10 88068 cancelled 6-25=04� Document# Description Approval Date Expiration Date Closed Date A4285 Airport Use&Lease 10/01/2000 06/30/2004 Company Name: America West Airlines Insurance Status: Certificate and Policies.-are-OK- -- (✓c!] Address: 111 West Rio Salado Pkway„ Tempe,AZ 85281 Phone: ( ) _ Ext: email: XREF: AIRPORT Service: Lease AgreementOp Document Tracking: Code Item Description Due Date Completed Date Tracking Date Converted from Fastrack v6.15 data. New Contract Added 0 1/1 312 0 03 • • Palm Springs AAI (Anton Airfoc Airport Concession AGREEMENT #4158 Amend #1 M06919, 9-5-01 AMENDMENT NO. I TO LEASE AGREEMENT FOR CONCESSIOtv6 H7 I fi>;rALM SPRINGS INTERNATIONAL AIRPORT AGREEMENT NO. 4158 This AMENDMENT NO. I TO LEASE AGREEMENT FOR CONCESSIONS AT THE PALM SPRINGS INTERNATIONAL AIRPORT, AGREEMENT NO. 4158 ("Amendment") is made and entered into this 5th day of September, 2001, by and between the CITY OF PALM SPRINGS ("City") and PALM SPRINGS AAI, INC., a wholly owned subsidiary of Anton Airfood ("Tenant"). RECITALS WHEREAS, on October 20, 1999, the City and Tenant entered into that certain Lease Agreement for Concessions at the Palm Springs International Airport, Agreement No. 4158 ("Lease"),which became effective December 1, 1999 for Tenant's lease and provision of food and beverage concession services at the Palm Springs International Airport("Airport"); WHEREAS, Tenant desires to lease additional concession space known as"Space No. 10" encompassing approximately 400 square feet within the Airport; and WHEREAS, City desires to lease to Tenant Space No. 10 under the terms of this Amendment. AGREEMENT NOW, THEREFORE, in consideration of the mutual promises of the parties hereto and for other good and valuable consideration,the receipt and sufficiency of which is hereby acknowledged,City and Tenant agree as follows: 1. Subsection 1.1.1 in the Lease shall be amended in its entirety to read as follows, with all other provisions of section 1.1 remaining unchanged and in full force and effect.: 1.1.1 The areas designated as Store Nos. 2, 3, 10, 11, 13 and 16 in Exhibit"B" shall be utilized for the operation of Food and Beverage Facilities." 2. Section 2.2 Entitled"Percentage Rent"of the Lease shall be amended to add the following, which language shall be added between the rows entitled"Celebrity Bistro Space No.3 and Desert Classic Grill Space No.11,with all other provisions of Section 2.2 remaining unchanged and in full force and effect: Business Percentage Percentage (0-800,000 Enplaoements) (800,000 Enplanemeals and above) Space No. 10 5% 5%„ -1- 3. Section 8. Entitled 'INITIAL CONSTURCTION BY TENANT" in the Lease shall be amended to add a new subsection 8.7 entitled "Completion of Construction - Space No. 10" immediately following Subsection 8.6 therein,which section 8.7 shall read as follows,with all other provisions of Section 8 remaining unchanged and in full force and effect: "8.7 Completion of Construction — Space No. 10. Tenant shall complete construction of Space No. 10 pursuant to all terms of this Lease, except that all times described at Section 8.6 for submission of documents by Tenant to City shall be measured from the date of completion of improvements to Space No. 10,rather than completion of the Lease Area,as referenced therein. Tenant shall complete all improvements by no later than November 30, 2001. Tenant's operation and use of Space No. 10 shall be subject to all terms and obligations of this Lease. 4. Exhibit`B"of the Lease shall be amended to add Page 3-A, depicting Store No. 10,which Page 3-A shall be added at the end of all pages comprising Exhibit `B" in the Lease. A copy of Page 3-A is attached hereto as Attachment 1, with all other pages of Exhibit "B" remaining unchanged and in full force and effect. 5. Due Execution. The person(s) executing this Amendment on behalf of the parties hereto warrant that(i)such party is duly organized and existing,(ii)they are duly authorized to execute and deliver this Amendment on behalf of said party,(iii)by so executing this Amendment,such party is formally bound to the provisions of this Amendment, and (iv) the entering into this Amendment does not violate any provision of any other agreement to which said party is bound. 13. Full Force and Effect. The parties further agree that,except as specifically provided in this Amendment, the terms of the Lease shall remain unchanged and in full force and effect. (signatures on following page) -2- IN WI l NESS REOF, the parties hereto have caused these presents to be executed on the day o 20�Wd-- ATTEST: CITY OF PALM SPRINGS, CALIFORNIA l 1 City Clerk City Manager REVIEWED AND APPROVED: City Attorney PALM SPRINGS AAI JN6 a wholly owned subsidiary of Anton Airfood Name'.. Title: Al d c,l GaPf'A VLn U� v _ir Name: � .�- Title: f Subscribed and sworn to, before me, a Notary Public for the State of Virginia by Patricia M. Anton and Donald Darnes, both know to me, this Suhscribed and sworn to, hefore roe, 12 day of Decem er 2001 . a . . `ary Public for The State of V n:,siia at Large this..4 .clay of 3 S<1�` (� i.jVotary My Commission EXHIBIT "B" \� Page 3-A Store 10 0 O O J r /� i �J III NgORdIAS \ I I I I � o m OR m a C=_ — __- O O C\ AVAILABLE—400 SQ.FT MEM0RANDIUM DATE: January 15, 2002 TO: Airport—Janet Buck FROM: Office of the City Clerk RE: Amendment#1, A4158: CC: File Attached please find two copies of Amendment#1 for concessions at the Airport, with Palm Springs AAI, Inc., (Anton Airfood), approved by the City Council on September 5, 2001, by Minute Order 6919. Please forward one copy to the contractor. I have retained one copy for our files and forwarded copies to Finance and the Procurement Dept. L,4 Barb cc: Finance w/amendment Procurement w/amendment File Palm Springs AAI , Inc. Subsidiary of Anton Airfood Lease Agr for Concessions AGREEMENT #4158 LEASE AGREEMENT FOR CONCESSI M06509, 10-20-99�,.. AT THE PALM SPRINGS INTERNATIONAL AIRPORT THIS LEASE AGREEMENT FOR CONCESSIONS AT THE PALM SPRINGS INTERNATIONAL AIRPORT (herein "Lease") is made and entered into this 1st day of November, 1999 ("Effective Date"), by and between the CITY OF PALM SPRINGS, a municipal corporation ("City"), and PALM SPRINGS AAI, INC., a wholly owed subsidiary of Anton Airfood ("Tenant"). RECITALS A. City is the owner of the Palm Springs International Airport (the "Airport"), and operates thereon the Palm Springs Airport Terminal building ("Terminal"), which Terminal is specifically depicted at Exhibit "A". B. City and Tenant wish to enter into this Lease for the operation and maintenance of certain restaurants, alcohol beverage facilities, food stands and related facilities at those locations within those areas in the Terminal depicted at Exhibit "B" ("Lease Area"), and to more clearly set forth the respective obligations of each party relating thereto. C. City and Tenant have executed that certain Option Agreement granting Tenant the option to lease the Lease Area upon the terms set forth in this Lease, and upon the City's approval of Tenant's preliminary construction plans, construction contract documents and proof of financing for Tenant's development of the Lease Area, as further set forth in the Option Agreement. A copy of the Option Agreement is attached hereto as Exhibit "C". D. By executing this Lease, the parties acknowledge that Tenant has satisfied those conditions in the Option Agreement required therein prior to the execution of this Lease. E. City's decision to enter into this Lease with Tenant is based upon Tenant's experience, Proposal and inspection of the Terminal and acceptance thereof. COVENANTS In consideration of the foregoing Recitals and the mutual covenants and conditions contained herein and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows: 1. Services of Tenant and Use of Park. 1.1 Tenant Scope of Services. City's primary purpose for entering into this Lease is to promote the development of food and beverage concessions to serve the public at the Terminal. In compliance with all terms and conditions of this Lease, Tenant shall provide certain services at the Lease Area to serve the public at the Airport, which services shall generally include the operation, management, and maintenance of pre-packaged food facilities ("Snack Shops") restaurants serving a variety of high quality foods prepared fresh and made to 627/014084-0014/3302812.6 a01/14/00 -1- 0 0 order and non-alcoholic and alcoholic beverage concession facilities ("Food and Beverage Facilities") (collectively, the "services" or "work"). City reserves the right to require Tenant to sell specific merchandise or items which in the judgment of City is necessary to serve the public at the Airport. Tenant shall provide the services as follows: 1.1.1 The areas designated as Store Nos. 2, 3, 11, 13 and 16 in Exhibit "B" shall be utilized for the operation of Food and Beverage Facilities. 1.1.2 The areas designated as Store Nos. 13 and 16 in Exhibit "B" shall be utilized for the operation of Snack Shops. 1.1.3 The area designated as Storage No. 2 on Exhibit "A" may be used by Tenant as a storage area for the storage of non-perishable supplies, fixtures and equipment required for the sale of merchandise. 1.2 Right of First Refusal. Tenant shall have the right of first refusal to build and operate any additional Snack Shops or Restaurant and Beverage Facilities at the Terminal, which, if Tenant wishes to exercise, Tenant must respond within thirty (30) days of the date of any written request from the City notifying Tenant of City's intent to add any Snack Shops or Restaurant and Beverage Facilities at the Terminal. The right of first refusal provided herein shall not include the right to provide food or beverages to any activity at the Terminal where food is provided, whether for sale or free of charge, by any airline operating or wishing to operate at the Airport or by any other entity or person for a civic, charitable, social or entertainment purpose, where any activity by any single such airline operating or wishing to operate at the Airport or civic, charitable, social or entertainment entity or person does not exceed five (5) days for any given year of the Term. 1.3 Operational Requirements. Tenant agrees to abide by the following conditions and requirements: 1.3.1 Quality and Service Standards. All services shall be provided to the general public by Tenant on behalf of City. Tenant represents and warrants that Tenant is experienced in performing the work and services contemplated herein and covenants that it shall follow the professional standards prevalent in the industry in which Tenant is engaged, such as those of Orange County's John Wayne Airport and Los Angeles International Airport, in performing the work and services required hereunder. Contractor further warrants that all materials provided by it will be of good quality, fit for the purpose intended. The Contract Officer shall have the right to make reasonable objections to the quality of merchandise sold, the character of the service rendered the public, and the appearance and condition of the Lease Area. Tenant agrees to promptly remedy any such objectionable practice. Failure to comply with the foregoing shall constitute a material breach of this Lease. 1.3.2 Familiarity with Work. By executing this Lease, Tenant warrants that Tenant (i) has thoroughly investigated and considered the scope of services to be performed, (ii) has carefully considered how the services should be performed, and (iii) 627/014084-001413302812.6 a01/14/00 -2- 0 fully understands the facilities, difficulties, and restrictions attending performance of the services under this Lease. 1.3.3 Employees. Tenant shall at all times retain active, qualified, courteous, competent and experienced personnel in sufficient number as necessary to conveniently and efficiently serve the public at all times including peak periods. Tenant shall not employ any person(s) in or about the Lease Area who shall use offensive language or act in loud, boisterous, or otherwise improper manner. Tenant shall at all times retain active, qualified, competent, and experienced personnel to supervise Tenant's operation and to represent and .act for Tenant. Tenant shall maintain a close check over attendants and employees to ensure the maintenance of a high standard of service to the public. Tenant shall replace any employee whose conduct is detrimental to the best interests of the public. 1.3.4 Uniforms. Tenant shall require all of Tenant's employees working in view of the public, except management employees, to wear clean and neat uniforms of a design approved by Contract Officer, which approval shall not be unreasonably withheld, or where uniforms are not required by the Contract Officer, Tenant shall require its employees to be properly dressed, clean and neat in appearance at all times. 1.3.5 Pricing. All prices charged for goods and/or services supplied to the public on or from the Lease Area shall be fair and reasonable, based upon the market prices charged by other competing and/or comparable businesses. Notwithstanding the above, prices of said items shall not exceed one hundred ten percent (110%) of the prices found in comparable facilities in the City of Palm Springs. 1.3.6 Deliveries. No supplies of any nature or kind will be delivered to the Lease Area at any entrances, routes or times other than those designated by the Contract Officer. 1.3.7 Credit Card Sales. If credit card sales are accepted, then Tenant shall provide "credit card swipe" or an up-to-date system acceptable to Contract Officer to expedite credit card approval. 1.3.8 Noninterference. Tenant shall cooperate with and not interfere with City's and other tenants' use of and operations at the Airport. Tenant shall not do anything or fail to do anything which would invalidate or conflict with any fire or other casualty insurance policies required of Tenant under this Lease. 1.4 Signs. Tenant agrees not to construct, maintain, or allow any sign upon the Lease Area except as approved by the Contract Officer, which approval shall not be unreasonably withheld and, where applicable, shall be based on standards in the City's Municipal and Zoning Codes. Unapproved signs, banners, flags, etc., may be removed by the Contract Officer without prior notice to Tenant. Tenant shall be entitled to install directional sign(s) at the Terminal, subject to the approval of the Contract officer as to the size, number, location, style and color of such directional signs, which approval shall not be unreasonably withheld. 627/014084-0014/3302812.6 a01/14/00 -3- 0 • 1.5 Liens. Tenant agrees that it shall pay and discharge or cause to be paid and discharged all costs for work done by it or caused to be done by it on the Lease Area and Tenant shall keep the Lease Area free and clear of all mechanic's liens or other liens on account of work done or alleged to have been done by or for Tenant or persons claiming under Tenant. Should a lien be filed against the Lease Area or any part thereof relating to work authorized or approved by Tenant with respect to the Lease Area, Tenant shall, at its expense, cause the same to be discharged, by payment, bonding, or otherwise as provided by law, except for liens that may have been incurred by City arising from City's actions, and if Tenant fails to do so, City, at its option, may terminate this Lease by serving five (5) days' notice, in writing, upon Tenant. Nothing herein contained shall in any way prejudice the rights of Tenant to contest the final judgment or decree of any such lien prior to payment thereof. Tenant, upon reasonable notice and request in writing from City, shall also defend for City, at Tenant's expense, any action, suit, or proceeding which may be brought on or for the enforcement of any such lien and shall pay damages and satisfy and discharge any judgment entered in such action, suit, or proceeding and save City harmless from any liability, claim, or damages resulting therefrom where such lien, judgment, suit or proceeding arises from the action of Tenant, its agents, employees, and independent contractors in renovating, constructing, or operating improvements upon the Lease Area. City and its representatives shall have the right to post any notices or take any other action upon or with respect to the Lease Area that is, or may be, permitted by law, as City may deem necessary for the protection of its interest in the Lease Area during the period that any work is being performed that might result in a lien being filed against the Lease Area. Neither failure of City to take any such action nor any termination of the Lease for failure to pay and discharge any such liens as above provided shall relieve Tenant from the obligation of indemnity set forth above in this Section 1.4. 1.6 General Prohibitions. Tenant shall not use or occupy the Lease Area, or permit the same to be used or occupied, for any purposes or business deemed by City to be extra-hazardous which will in any way increase the existing rate of or affect any fire or other insurance upon any improvement at the Lease Area without the consent of City, and the amount of such increase, if any, shall be paid by Tenant to City upon demand. Tenant shall not do or permit anything to be done in or about the Lease Area which will in any way obstruct or interfere with the rights of others involved in the operations, maintenance, or use of the Lease Area or injure or annoy them or use or allow the Lease Area to be used for any improper, immoral, unlawful, or objectionable purpose, nor shall Tenant cause, maintain, or permit any nuisance in, on, or about the Lease Area. Tenant shall not commit or allow to be committed any waste in or upon the Lease Area. City shall not interfere with Tenant's use and enjoyment of the Lease Area, and shall not enter upon the Lease Area, except for the purposes and in the manner provided elsewhere in this Lease, including but not limited to, at Sections 9.2.2, 17, 23, and 27.2 and Exhibits "C" and "D". Notwithstanding the foregoing, City reserves the right to enter upon the Lease Area at any time in case of an emergency, including but not limited to, fires or fire threats, water leaks, floods, earthquakes, police pursuits, medical needs, riots, and terrorist acts. City further reserves the right to enter upon the lease area upon twenty-four (24) hours' notice to Tenant to repair any Airport equipment or utility accessible through the Lease Area. 627/014094-0014/3302812.6 a01/14/00 -4- • 1.7 Charge for Unauthorized Services and Uses. In the event Tenant breaches this Lease by using or permitting the Lease Area to be used in any manner other than as expressly permitted under this Lease, Tenant shall pay City a sum equal to 100% of the "gross receipts", as defined in the Section in this Lease entitled "DEFINITION OF GROSS RECEIPTS" for any service or use that is not permitted by this Lease. Said payment is subject to the "due date" provided in the Section in this Lease entitled "RENT PAYMENT PROCEDURE" and the "charge for late payment" provided in the Section in this Lease entitled "CHARGE FOR LATE PAYMENT". The existence of the 100% charge in this Section, or the payment or receipt of money under this Section, does not constitute an authorization for-a particular service or use and does not constitute a waiver of City's right to require Tenant to terminate such service or use. The parties agree that City's actual damages, in the event of such a breach by Tenant would be extremely difficult or impossible to determine, therefore, an amount equal to the amount of 100% of such gross receipts has been agreed upon, after negotiation, as the parties' best estimate of City's reasonable damages. 1.8 Exemption of City from Liability. City shall not be liable for injury to Tenant's business or any loss of income therefrom or for damage to the goods, wares, merchandise, or other property of Tenant, Tenant's employees, invitees, or customers, or any other person in or about the Lease Area, nor shall City be liable for injury to the person of Tenant, Tenant's employees, agents, or contractors as a result of the condition of any improvements now or hereafter located on the Lease Area, which improvements Tenant agrees to and does accept in the condition existing upon Tenant's inspection of the Lease Area and acceptance thereof. 2. RENT. Tenant agrees to pay the following rents payable monthly in arrears on or before the twentieth (20th) day of each month. Tenant shall pay to City for each accounting year either the Minimum Annual Rent Guarantee or the Percentage Rent, whichever is greater (collectively "Annual Rent"), except that beginning upon the Commencement Date and continuing until the date in which the last new store opens for business, but no later than August 1, 2000, Tenant shall pay the Percentage Rent and the Minimum Annual Rent Guarantee shall not apply. 2.1 Minimum Annual Rent Guarantee. Beginning upon the opening for business of the last new store, but no later than August 1, 2000, the minimum Annual Rent for the Lease Area shall be SIX THOUSAND AND 00/100 DOLLARS ($6,000.00) per month for the first year of the Initial Term ("Minimum Annual Rent Guarantee"). Thereafter, and beginning on the first anniversary following the Commencement Date, which Commencement Date shall be November 1, 1999, and each year thereafter, in accordance with Section 3 entitled "Revision of Rents", the minimum annual rent shall be adjusted pursuant to said Section 3. Should this Lease be terminated during an accounting year, or should the first accounting year be other than a full calendar year, the applicable minimum annual rent shall be prorated on the basis of a three hundred sixty-five (365) day year. 2.2 Percenta eg Rent. Percentage Rent for the Lease Area shall be calculated using the following percentages of gross receipts from business operations conducted on or from the Lease Area: 627/014084-0014/3302812.6 a01114/00 -5- Business Percentage Percentage (0-800,00 Enplanements) (800,000 Enplanements and Above) Palm Springs Brewing Co. Space No.2 5% 7.5% Celebrity Bistro Space No.3 5% 7.5% Desert Classic Grill Space No.11 5% 7.5% Seattle's Best Coffee Space No.14 5% 7.5% Seattle's Best Coffee Space No.17 5% 7.5% 2.2.1 Definition of"Gross Receipts". The term "Gross Receipts" as used in this Lease means the total gross receipts of all foods, beverages and merchandise sold including the actual charges for all services performed by Tenant and fees charged by Tenant and by anyone including any subtenant, licensee or concessionaire in, at, from, or arising out of the use of the Lease Area, whether for cash or credit, or otherwise, and including the value of all consideration other than money received for any of the foregoing, without reserve or deduction or inability or failure to collect, including but not be limited to sales, leases and services: (a) Where the orders therefore originate in, at, from, or arising out of the use in whole or part of any portion of the Lease Area, whether delivery or performance is made from the Lease Area or from some other place and regardless of the place of bookkeeping for, payment of, or collection of any accounts; or (b) made or performed by mail, telephone, or telegraph orders received or filled in, at, or from the Lease Area; or (c) made or performed by means of mechanical or other vending machines in the Lease Area; or (d) which Tenant, or any subtenant, licensee or concessionaire, in the normal and customary course of its business, would credit or attribute to its operations at the Lease Area or any part thereof. 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 Tenant receives payment therefor. Gross Receipts shall include any amount allowed upon any "trade-in," the full retail price of any merchandise delivered or redeemed for trading stamps or coupons and all deposits not refunded to purchasers. Gross Receipts shall not include sales taxes, so-called luxury taxes, consumers excise taxes, gross receipts taxes and other similar taxes now or hereafter imposed upon the sale of merchandise or services, but only if collected separately from the selling price of merchandise or services and collected from customers. Gross Receipts shall exclude the following: (1) complementary meals not to exceed a total of five thousand dollars ($5,000) of food or beverages, based on the regular price offered by Tenant for sale of such items, for any given year of the Term; (2) discounts to employees of the Airport of not more than 10% off of the regular sales price of any beverage or food item sold by Tenant, and (3) complementary meals to current employees of Tenant. 2.2.2 Records of Gross Receipts. The Tenant shall keep at its Washington D.C. corporate offices full, complete and proper books, records and 627/0140"14/3302812.6 201/14/00 -6- accounts of its daily Gross Receipts, both for cash and on credit, of each separate department and concessionaire at any time operated in the Lease Area. The City and its agents and employees shall have the right at any and all times, during regular business hours and after five (5) days' written or oral request to Tenant, to examine and inspect all of the books and records of the Tenant pertaining to the business of the Tenant conducted in, upon, or from the Lease Area, for the purpose of investigating and verifying the accuracy of any statement of Gross Receipts and to cause an audit of the business of Tenant to be made by a certified public accountant of City's selection. In addition, upon request of City, Tenant agrees to furnish to City a copy of all of Tenant's (and of Tenant's subtenants, licensees and concessionaires) sales and use tax returns if required to be filed in the state or county or city where the Terminal is located and consents to City's right to obtain such returns directly from the taxing authorities. If the statement of Gross Receipts previously made to City shall be found to be inaccurate, then and in that event, there shall be an adjustment and one party shall pay to the other on demand such sums as may be necessary to settle in full the accurate amount of said Percentage Rent that should have been paid to City for the period or periods covered by such inaccurate statement or statements. If said audit shall disclose an inaccuracy of greater than one percent (1%) error with respect to the amount of Gross Receipts reported by Tenant for the period of said report, then the Tenant shall immediately pay to City the cost of such audit; otherwise, the cost of such audit shall be paid by City. If such audit shall disclose an intentional and/or consistent under-reporting of Gross Receipts of more than three percent (3%) with respect to the amount of Gross Receipts reported by Tenant for the period covered by such report or a consistent or intentional under-reporting of Gross Receipts, such discrepancy or under-reporting shall be deemed conclusively a material breach of this Lease and shall entitle City to all of the remedies provided in this Lease, including, but not limited to, the right to terminate this Lease. 3. REVISION OF RENTS. On the first anniversary of the Commencement Date, and annually thereafter, the minimum annual rent shall be automatically adjusted to the greater of either (a) or (b) immediately below, which Tenant shall pay pursuant to Section 4 herein: (a) Eighty percent (80%) of the Annual Rent paid by Tenant to City for the preceding accounting year (b) The Minimum Annual Rent Guarantee of SIX THOUSAND AND 00/100 DOLLARS ($6,000.00) per month. 4. RENT PAYMENT PROCEDURE. 4.1 Statement of Annual Rent. On or before the twentieth (20th) day of each month, Tenant shall deliver to City a correct statement of all applicable gross receipts for that portion of the accounting year which ends with and includes the last day of the preceding calendar month. The statement shall be signed by Tenant or his responsible agent under penalty of perjury, and shall be in the form prescribed by City. Each statement shall indicate: (1) One twelfth of the Annual Minimum Rent Guarantee. 627/014034-001413302812.6 a01/14/00 -7- i 0 (2) The total Gross :Receipts for said portion of the accounting year, itemized as to each of the business categories for which a separate Percentage Rent is established. A breakdown of the Gross Receipts of each business conducted on the Lease Area must be attached to each statement where a reported business category is comprised of more than one business operation. (3) The related itemized amounts of Percentage Rent computed as herein provided and the total thereof; (4) The Annual Rent previously paid by Tenant for the accounting year within which the preceding month falls; and (5) The rent due for the preceding month. 4.2 Payment of Annual Rent. Concurrently with the rendering of-each monthly statement, Tenant shall pay to City the greater of the following two amounts: (a) The total Percentage Rent computed for that portion of the accounting year ending with and including the last day of the preceding month [Item 4.1(3) above] less total rents previously paid for the accounting year [Item 4.1(4) above], or (b) One twelfth of the annual minimum rent, multiplied by the number of months from the beginning of the accounting year to and including the preceding month, less total rents previously paid for the accounting year [Item 4.1(4) above]. 4.3 Place of Payment and Filing. Rental payments shall be delivered to, and statements required by Section 4.1 above shall be filed with the City of Palm Springs, Attn: Airport Accounts Payable, 3200 Tahquitz Canyon Way, Palm Springs, CA 92263. The designated place of payment and filing may be changed at any time by City upon ten days written notice to Tenant. Annual Rent payments may be made by check made payable to the City of Palm Springs. Tenant assumes all risk of loss if payments are made by mail. All sums due under this Lease shall be paid in lawful money of the United States of America, without offset or deduction or prior notice or demand. No payment by Tenant or receipt by City of a lesser amount than the payment due shall be deemed to be other than on account of the payment due, nor shall any endorsement or statement on any check or any letter accompanying any check or payment be deemed an accord and satisfaction, and City shall accept such check or payment without prejudice to City's right to recover the balance of the amount due or pursue any other remedy in this Lease. 4.4 Additional Fees or Related Activities. In addition to the payment of Annual Rent required pursuant to this Section 4.4, Tenant shall be responsible for payment of all costs and overhead associated with the operation of the services described in Section 1 above, including, but not limited to, labor, product inventory, marketing, telephone charges, 627/014094-0014/3302812.6 a01114/00 -8- transportation, clerical and reproduction, overhead, payroll, profit, and all costs for subcontracts, materials, equipment, supplies and costs arising from this Lease or the termination of this Lease. 4.5 Additional Rental. For purposes of this Lease, all payments required to be made by Tenant to City for taxes, maintenance and repair, expenses in connection with parking, insurance, and all other monetary obligations of Tenant under this Lease, shall be deemed to be additional rental. 5. SECURITY DEPOSIT. Tenant shall provide City with a security deposit in the sum of EIGHTEEN THOUSAND AND 00/100 DOLLARS ($18,000.00). The security deposit may be drawn upon by City pursuant to Sections 5.1 and 27.2. The security deposit shall guarantee Tenant's full and faithful performance of all the terms, covenants, and conditions of this Lease and any payment for any damage to the Lease Area after termination of the Lease, reasonable wear and tear excepted. Nothing contained in this Section 5 shall in any way diminish or be construed as waiving any of the City's other remedies as provided in this Lease, or by law or in equity. City reserves the right to adjust the amount of the security deposit to reflect changes in operations or changes in rents and fees established by City. Within thirty (30) days after notification of any change in required security deposit amount from City, Tenant shall submit to City any additional security deposit as may be required. The security deposit shall be in the form of a faithful performance bond executed by a surety company, and issued in a form, reasonably approved by City. Under the bond, the surety company shall guarantee to City full and complete performance of all the terms, conditions and covenants herein to be performed on the part of the Tenant, including the payment of use fees, charges, rents, as well as any and all other payments, including but not limited to damages after the termination of the Lease. Said bond shall be maintained at the cost of the Tenant throughout the existence of this Lease. Said surety shall give City at least thirty (30) days prior written notice of cancellation or material change in said bond. Such cancellation or material change without City's prior written consent shall constitute a default under this Lease. 5.1 Use of Security Deposit. Regardless of the form in which Tenant elects to make said security deposit, all or a portion of the principal sum shall be available unconditionally to City for correcting any default or breach of this Lease by Tenant, his successors or assigns, or for payment of expenses incurred by City as a result of the failure of Tenant, his successors or assigns, to faithfully perform all terms, covenants, and conditions of this Lease, including, but not limited to, non-payment of Annual Rent and damages to the Lease Area after Termination of the Lease, reasonable wear and tear excepted. In the event City withdraws any or all of the security deposit as provided herein, Tenant shall, within ten (10) days of any withdrawal by City, replenish the security deposit to maintain it at amounts as herein required throughout the lease term. Failure to do so shall be deemed a default and shall be grounds for immediate termination of this Lease. 5.2 Release of Liability. Should Tenant elect to assign a savings deposit, provide a time certificate of deposit, an instrument of credit, or a faithful performance bond to fulfill, the security deposit requirements of this Lease, said assignment, certificate, bond, or instrument shall have the effect of releasing the depository or creditor therein from liability to Tenant on account of the payment of any or all of the principal sum to City, or order upon demand by City. The agreement entered into by Tenant with a financial institution to establish 627/014094-0014/3302812.6 a01114100 -9- s • the deposit necessary to permit assignment or issuance of a certificate as provided above may allow the payment to Tenant or order of interest accruing on account of said deposit. 5.3 Return of Security Deposit. The security deposit shall be rebated, reassigned, released, or endorsed by City to Tenant or order, as applicable, at the end of the lease term, provided Tenant has fully and faithfully performed each and every term, covenant, and condition of this Lease. The authorized refund of any security deposit by City, after deduction of all amounts due City under this Lease, shall be made after one hundred twenty (120) days have elapsed following the effective date of said termination. 6. TERM. This Lease shall counnence upon the execution of the Lease by City. Unless earlier terminated in accordance with Section 7 below, the term of this Lease shall be ten (10) years commencing on the Date of Beneficial Occupancy ("Initial Term"). This Lease may be extended for one (1) subsequent five (5) year term ("Renewal Term") at the option of Tenant, provided that Tenant notifies City by delivering a written notice to the Contract Officer at least eighteen (18) months prior to the end of the Initial Term (or by May 8, 2009) that Tenant wishes to exercise the right to the Renewal Term. The terms "Date of Beneficial Occupancy" as used herein shall mean: (1) that date upon which Tenant completes tenant improvements, as defined at Section 8 below, and opens for business in any section of the Lease Area; or (2) upon the opening of the Terminal projected to be November 9, 1999. 7. TERMINATION BY CITY FOR AIRPORT RELATED PURPOSE. In the event City should require the Lease Area, or any portion thereof, for any Airport related purpose whatsoever, Tenant agrees that City may terminate this Lease by giving Tenant one hundred twenty (120) days written notice. If this Lease is terminated under the provisions of this Section 7, City shall reimburse Tenant for Tenant's actual construction cost submitted in accordance with the Section in this Lease entitled "AS-BUILT PLANS AND CONSTRUCTION COSTS" for the portion of the Lease Area terminated, less depreciation at the rate of 6.67% per year from date of substantial completion of Tenant-constructed improvements on the Lease Area to the date of termination of this Lease. The "date of substantial completion" for the purposes of this Section shall mean the first to occur of: (a) The date Tenant's architect or engineer issues a certificate of substantial completion. (b) The date Tenant obtains a certificate of occupancy. (c) The date Tenant first occupies and/or uses said construction for the conduct of Tenant's business from the Lease Area, or (d) The date that Tenant or Tenant's contractor records a notice of completion. It shall be Tenant's responsibility to provide City with evidence of said dates and, if Tenant fails to do so, in a manner reasonably satisfactory to City, the date of substantial completion shall be the date determined by City, acting in good faith, as the most likely date on 627/014084-0014/3302812.6 a01/UM -10- 0 which the subject construction was suitable for occupancy and/or use for its intended purposes, notwithstanding that minor additional and/or corrections remained to be completed. The reimbursement provided above shall be Tenant's sole and exclusive remedy and form of compensation, costs or damages, including Relocation Assistance benefits (Sec. 7260 et SeMC . of the California Government Code), due to termination, re-entry or acquisition by City. 8. INITIAL CONSTRUCTION BY TENANT. Tenant shall cause to be designed, constructed, and installed within the Lease Area, at no cost to City, appropriate improvements with a minimum cost as designated at Section 8.2 below, to adequately accommodate those services and uses described at Section 1 herein, and as proposed by the concessionaire in the proposal dated August 6, 1999. All improvements constructed by Tenant within the Lease Area shall be constructed in strict compliance with detailed plans and specifications approved by the Contract Officer. 8.1 Development Plan and Construction Standards. The schematic plans prepared by Tenant and approved by Contract Officer during the option period preceding execution of this Lease, as set forth in the Option Agreement, attached as Exhibit "C" hereto, shall be a master plan for development of the Lease Area. The working drawings prepared by Tenant and approved by Contract Officer during the same period shall be the plans, specifications, and time schedule for constructing improvements. Development of the Lease Area shall be conducted in a good and workmanlike manner. 8.2 Minimum Improvement Cost Expenditure. The minimum cost of Tenant's improvements to the Lease Area shall be FIFTY FIVE AND 00/100 DOLLARS ($55.00) per square foot of Lease Area. The term "cost of improvements" shall mean direct construction costs, including costs paid to contractors, architects, engineers, laborers and suppliers, but not indirect costs such as financing costs, administrative and overhead expenses, bond premiums, permit fees, and developer fees paid to Tenant or its affiliates. Tenant shall provide to City records showing the expected cost of improvements, as required under Section 8.6 below. 8.3 Noninterference. Since City has other work under construction within the Terminal building containing the Lease Area, Tenant warrants that its contractor shall in no way delay or cause delay to or interfere with any other contractor working on such construction. Tenant agrees to hold City harmless from the cost of any time lost by City's contractor or subcontractors due to the actions or failure to act of Tenant's contractor. 8.4 Insurance/Indemnification Requirements. Tenant shall be required to carry comprehensive public liability insurance during construction. If the construction is done by an independent contractor,' insurance shall be procured by the contractor in Tenant's and City's name. All insurance shall be in the limits and coverages acceptable to City in its reasonable discretion. Tenant shall indemnify and hold City harmless for any and all claims, demands, damages, costs or expenses of any nature, including defense costs by reason of construction or alteration by Tenant. 8.5 Tenant's Assurance of Construction Completion. Prior to commencement of construction of approved facilities, or any phase thereof, within the Lease Area by Tenant, 627/014084-0014/3302812.6 a01/14100 -11- Tenant shall furnish to City evidence that assures City that sufficient monies will be available to complete the proposed construction. The amount of money available shall be at least the total estimated construction cost. Such evidence may take the form of a Completion Bond issued to City as obligee issued by a company qualified to do business in the State of California and acceptable to City. All bonds shall be in a form acceptable to City and shall insure faithful and full-observance and performance by Tenant of all terms, conditions, covenants, and agreements relating to the construction of improvements within the Lease Area. 8.6 "As-Built" Plans and Construction Costs. Within thirty (30) days' of the completion of any improvement to the Lease Area, Tenant shall furnish Contract Officer an itemized statement of the actual construction cost of Tenant's improvements to the Lease Area, including supporting invoices signed by subcontractors that performed or are scheduled to perform such improvements. The statement of cost shall be sworn to and signed by Tenant or his responsible agent under penalty of perjury. Tenant must obtain Contract Officer's approval of "As-Built" plans, and the form and content of the itemized statement. In addition, within forty-five (45) days following completion of any substantial improvement within the Lease Area, Tenant shall furnish Contract Officer a complete set of reproducible, two sets of prints of "As- Built" plans and a magnetic, tape, disk or other storage device containing the "As-Built" plans in a form usable by City, to City's satisfaction, on City's computer aided mapping and design equipment. 9. UTILITIES, JANITORIAL, MAINTENANCE AND REPAIR. 9.1 Services Provided By City. City shall provide the following services at the Terminal: 9.1.1 Within the common areas of the Terminal, City shall provide janitorial services to the extent that such services are typically provided to City facilities. 9.1.2 City, through its trash disposal contractor, shall provide trash pick up service including containers .at a designated area outside the Terminal for disposal of trash in a form acceptable to the trash disposal contractor. The cost for any trash disposal services shall be the responsibility of Tenant. 9.1.3 City shall provide utilities to the Terminal which include water, sewer, gas, electricity and telephone. Utility lines have been extended to the Lease Area and the cost thereof shall be the responsibility of City. 9.2 Services Provided by Tenant. Tenant shall provide, pay for, and/or be liable for the following services: 9.2.1 Utilities. All utilities to the Lease Area shall be separately metered wherever practical. Tenant shall pay before delinquency all charges for water, gas, heat, electricity, power, sewer, telephone service, trash removal and all other services and utilities used in, upon, or about the Lease Area by Tenant or any of its subtenants, licensees, or concessionaires during the Lease Term. If any utility is not separately metered, Tenant agrees to reimburse City for the cost of said service as City shall 627/014084-0014/3302812.6 a01/UM -12- reasonably determine to be Tenant's share thereof plus a supervision fee to City equal to fifteen percent (15%) of such cost. City shall not be liable for any failure or interruption of any utility service. City shall not be responsible to Tenant for temporary interruption of Tenant's business in the event of an interruption of utility service. City may, from time to time and at its discretion, impose restrictions on or special allocation provisions with respect to excess utility usage upon the Lease Area for exceptional equipment, ventilation or cooling requirements. 9.2.2 Maintenance and Repair Services. Tenant shall provide at its own cost and expense all repair, maintenance and janitorial services to the Lease Area. Janitorial service shall include collection of any concession-generated trash and cleanup of spills in the area immediately adjacent to the entry and exits of the Lease Area. Tenant shall, to the satisfaction of Contract Officer, keep and maintain the Lease Area and all improvements of any kind which may be erected, installed, or made thereon in good condition and in substantial repair. It shall be Tenant's responsibility to take all steps necessary or appropriate to maintain such a standard of condition and repair. Tenant expressly agrees to maintain the Lease Area in a safe, clean, wholesome, sanitary condition, to the complete satisfaction of Contract Officer and in compliance with all applicable laws. Tenant further agrees to provide approved containers for trash and garbage and to keep the Lease Area free and clear of rubbish and litter. Tenant agrees to install, maintain any trash receptacles required by City's trash contractor and dispose of any trash in a manner acceptable to such trash contractor. Contract Officer shall have the right to enter upon and inspect the Lease Area at anytime for cleanliness and safety, and Tenant shall immediately correct any conditions that the Contract Officer may find unsatisfactory. Tenant shall designate in writing to Contract Officer an on-site representative who shall be responsible for the day- to-day operation and level of maintenance, cleanliness, and general order. If Tenant fails to maintain or make repairs or replacements as required herein, Contract Officer shall notify Tenant in writing of said failure. Should Tenant fail to correct the situation within three (3) days after receipt of written notice, Contract Officer may make the necessary correction or cause it to be made and the cost thereof, including but not limited to the cost of labor, materials, and equipment and an administrative fee equal to fifteen percent (15%) of the sum of such items, shall be paid by Tenant within ten (10) days of receipt of a statement of said cost from Contract Officer. Contract Officer may, at his option, choose other remedies available herein, or by law. 10. ASSIGNING. SUBLETTING, ENCUMBERING. 10.1 City Consent Required. Any mortgage, pledge, hypothecation, encumbrance, transfer, merger, sublease, or assignment (hereinafter in this Section referred to collectively as "Transfer") of Tenant's interest in the Lease Area, or any part or portion thereof, shall first be approved in writing by City, which approval shall not be unreasonably withheld based on considerations of the proposed transferee's financial capability to operate the concessions and experience and reputation in the airport concessions industry. Any Transfer 627/014084-001413302812.6 a01/14/00 -13- which has not been approved by City in writing shall be void. Occupancy of the Lease Area by a prospective transferee, subtenant or assignee before written approval of the transfer, sublease, merger, or assignment by City shall constitute a breach of this Lease. All subleases shall be between Tenant and sublessee; the entry into sub-subleases is prohibited and shall constitute a breach of this Lease. Transfers restricted hereunder shall include the transfer to any person or group of persons acting in concert of more than twenty five percent (25%) of the present ownership and/or control of Tenant, taking all transfers into account on a cumulative basis. In the event of any such unapproved Transfer, including any bankruptcy proceeding, this Lease shall be void. No approved transfer shall release Tenant or any surety of Tenant of any liability hereunder without the express consent of City. Tenant shall have the burden to show that City acted unreasonably, based upon the factors described in this Section 10.1, in refusing to consent to any proposed transfer. Should Tenant show that City acted unreasonably in refusing to consent to any transfer, the City shall be in default for terminating the Lease as a result of such unreasonable refusal to consent to such proposed transfer, and City shall reimburse Tenant eighty percent (80%) of Tenant's unamortized costs, which City shall pay over a twenty-four (24) month period beginning with the date the Lease is terminated. The unamortized costs shall be based on and limited to those amounts supported by the invoices submitted by Tenant pursuant to Section 8.6. Any unamortized cost, not supported by an invoice submitted as required by Section 8.6, shall be excluded from City's reimbursement obligation under this Section 10.1. Tenant agrees that the remedy provided under this Section 10.1 shall be its sole and exclusive remedy against the City for any termination of the Lease by City for its unreasonable refusal to consent to any transfer, and Tenant waives any right to lost profits, damages of any kind, consequential or otherwise as a result of such termination. 10.2 No Waiver. Should City consent to any Transfer, such consent shall not constitute a waiver of any of the terms, covenants, or conditions of this Lease or be construed as City's consent to any further Transfer. Such terms, covenants, or conditions shall apply to each and every Transfer hereunder and shall be severally binding upon each and every encumbrancer, assignee, transferee, subtenant, or other successor in interest of Tenant. Any document to mortgage, pledge, hypothecate, encumber, transfer, sublet, merge, or assign the Lease Area or any part thereof shall not be inconsistent with the provisions of this Lease, and in the event of any such inconsistency, the provisions of this Lease shall control. 10.3 Transfer Conditions. As a condition to City's consent to any Transfer, Tenant shall first notify City of the proposed Transfer and submit in writing to City all documentation to be used in connection with such encumbrance. In the case of an assignment, merger, or sublease, Tenant shall provide City with: 10.3.1 The name of the proposed subtenant or assignee, 10.3.2 The nature of the proposed subtenant's or assignee's business to be carried on in the Lease Area, 10.3.3 Such financial information as City may request concerning the proposed subtenant or assignee, and 627/01408"14/3302812.6 a01114/00 -14- 0 • 10.3.4 Such additional information as City may request regarding the business experience of the proposed subtenant or assignee. 10.3.5 Payment by Tenant of a processing fee as follows: (i) Two Thousand and 00/100 Dollars ($2,000.00) to City for processing each consent to mortgage, pledge, hypothecate, or encumbrance submitted to City as required by this Lease. This processing fee shall be deemed earned by City when paid and shall not be refundable. (ii) Two Thousand Five Hundred and 00/100 Dollars ($2,500.00) to City for processing each consent to assignment, merger, transfer, or sublease submitted to City as required by this Lease. This processing fee shall be deemed earned by City when paid and shall not be refundable. 10.4 Withholding of Consent to Transfer. City agrees that it will not arbitrarily withhold consent to any encumbrance, but City may withhold consent at its sole discretion if any of the following conditions exist: 10.4.1 Tenant or any of Tenant's successors or assigns are in default of any term, covenant or condition of this Lease, whether notice of default has or has not been given by City. 10.4.2 The prospective transferee has not agreed in writing to keep, perform, and be bound by all the terms, covenants, and conditions of this Lease. 10.4.3 All the terms, covenants, and conditions of a Transfer, including the consideration therefore of any and every kind, have not been revealed in writing to City. 10.4.4 Tenant has not provided Real Estate Manager with a copy of all documents relating thereto including, but not limited to, appraisals, if any. 10.4.5 Any construction required of Tenant as a condition of this Lease has not been completed to the satisfaction of City. 10.4.6 Tenant attempts to hypothecate the Leasehold for an amount greater than the cost of improvements to be constructed on the Lease Area. Hypothecation of the Leasehold shall not be permitted for any reason other than to obtain loan proceeds necessary to construct improvements. 10.4.7 The processing fee required by City under Section 10.3.5 above has not been paid to City. 11. DISADVANTAGED BUSINESS ENTERPRISE (DBE) PARTICIPATION. Tenant understands and acknowledges that DBE participation in Tenant's operation as proposed by the Tenant is required for City to meet grant funding requirements of the U.S. Department 627/014084-0014/3302812.6 a01/14/00 -15- 0 of Transportation Federal Aviation Administration (FAA). DBE participation goals in the Snack Shops and Restaurants and Food Facilities during the entire term of this Lease shall be the amount established by the City pursuant to federal regulations, which as of the Effective Date, is THIRTEEN PERCENT (13%). City shall inform Tenant from time-to-time of any changes to this DBE participation rate. The structure of that participation must be acceptable to the FAA. Should Tenant fail to meet such minimum DBE participation for any given year of the Term, Tenant shall provide City or the FAA with evidence of its good faith attempts to meet such DBE participation requirements, as further provided under federal regulations. The loss by Tenant of its certified DBE status at any time during the Term, however, shall not result in Tenant's default under this Agreement.. 12. RULES AND REGULATIONS. Tenant agrees to comply with all rules and regulations adopted or amended by City. Tenant shall be fully responsible to City for the observance and obeyance of, and compliance with, any and all rules, regulations, laws, ordinances, statutes or orders of any governmental authority, whether federal, State, county, or local authority, including the City of Palm Springs, lawfully exercising authority over the Airport or the activities thereon, including compliance with FAA and Airport security rules, regulations and plans, including but not limited to those set forth at Exhibit "D" hereto. Tenant shall be fully liable to City for any and all claims, demands, damages, fines or penalties of any nature whatsoever which may be imposed upon City, including, but not limited to, the payment of any fines or penalties for any breach of security, arising from the unauthorized entry of any person or vehicle onto Airport or from any other violations caused directly or indirectly by the act, omission, negligence, abuse or carelessness on the part of Tenant, its employees, agents, customers, visitors, suppliers or invitees. City shall not be liable to Tenant for any diminution or deprivation of possession or of its rights hereunder, on account of the exercise of such right or authority as in this section provided, nor shall Tenant be entitled to terminate the whole or any portion of the leasehold estate herein created, by reason of the exercise of such right or authority, unless the exercise thereof shall so interfere with Tenant.'s use and occupancy of the leasehold estate herein created so as to constitute a termination in whole or in part of this Lease by operation of law in accordance with the laws of the State of California. 13. NATURE OF TENANT'S ESTATE. Tenant acknowledges and agrees: 13.1 That City has granted to Tenant a leasehold interest in the Lease Area only. 13.2 That City retains a fee ownership for federal income tax purposes in and to the Lease Area, as well as all other ownership burdens and benefits connected with such fee ownership. 13.3 That Tenant has not been granted any direct or indirect right or option to purchase the Lease Area from City at any time during or after the termination of this lease, and 13.4 That the relationship of the parties to this Lease shall be solely that of landlord and tenant and nothing contained in this Lease shall be construed to create a seller- 627/014084-0014/3302812.6 a01/14/00 -16- buyer, optionor-optionee, land sale contract vendor-vendee, or any other relationship of any kind. 14. OPERATING SCHEDULES. Tenant shall at all times maintain a written schedule delineating the operating procedures for each business operation on or from the Lease Area. A schedule of prices charged for all goods and/or services supplied to the public on or from the Lease Area shall also be maintained. Upon written request, Tenant shall furnish to Contract Officer a copy of said schedules and procedures. Should Contract Officer, upon review and conference with Tenant, decide any part of said schedules or procedures is not justified with regard to fairly satisfying the needs of the public, Tenant shall, upon written notice from Contract Officer modify said schedules or procedures to the good-faith satisfaction of Contract Officer. If Tenant does not agree with the modifications required by Contract Officer, Tenant may appeal the matter to the City Council, whose decision shall be final and conclusive. Tenant's failure to comply with the provisions of this clause shall Constitute a serious breach of this Lease and City may immediately terminate this Lease. Primary consideration shall be given to the public's benefit in implementing this Section 14. 15. PARKING. Tenant and Tenant's employees shall have the right to park their automobiles in those areas, if any, within the Airport parking facility designated for employee parking and shall pay any parking permit fees that may be in effect. Upon City's request Tenant shall submit to City a list of Tenant's employees and the license number of vehicles driven by them (including the license number of Tenant's own vehicles). Tenant shall thereafter notify City of any changes to such list within five (5) days after such change occurs. If Tenant or its employees park their vehicles in other than a designated area, City may charge Tenant, without prior notice, Ten Dollars ($10.00) per day per vehicle parked in other than a designated area. All amounts shall be paid within ten (10) days after demand. Additionally, City is authorized to cause any such vehicle parked in other than a designated area to be towed away. Tenant shall hold City harmless from any liability relating thereto and within ten (10) days after demand for payment shall pay the cost of towing and storage if not paid by the employee. 16. ALTERATIONS AND FIXTURES. 16.1 City's Consent to Alterations. Tenant shall not make, or suffer to be made, any alterations (including but not limited to any installations, construction, signage or anything attached to or affixed, permanently or temporarily) to the Lease Area, or any part thereof, or the building containing the Lease Area or change the appearance of the building containing the Lease Area without the prior written consent of City. Tenant shall not in any event make any changes to the exterior or structural portions of the Lease Area. Any such alterations shall be in conformance with the requirements of all municipal, state, federal, and other governmental authorities, including requirements pertaining to the health, welfare or safety of employees or the public and in conformance with reasonable rules and regulations of City. 16.2 Installation of Fixtures. Tenant agrees to promptly fixturize and stock the Lease Area in a manner comparable to first class airport concessions such as those at Orange County's John Wayne Airport and Los Angeles International Airport, and as approved by the Contract Officer. Any and all fixtures and appurtenances installed by Tenant shall be new or in good condition and shall conform with the requirements of all municipal, state, federal, and 6271014084-0014/3302812.6 a01/14/00 -17- governmental authorities including requirements pertaining to the health, welfare, or safety of employees or the public. Upon the termination or earlier termination of this Lease, Tenant shall, at City's sole discretion and at no cost to City, either (i) leave any such fixtures (other than equipment and furniture) improvements, additions, or modifications in place, free and clear of any monetary encumbrance or other restriction on title, or (ii) as directed by City in writing, and at no cost to City, remove and restore any such improvements, additions, or modifications and restore the Lease Area to its condition existing prior to such improvements, additions, or modifications, ordinary wear and tear excluded. 16.3 Donation of Fixtures. Equipment or Furniture. Any fixtures, equipment or furniture that Tenant purchased or received free of charge from the prior tenant at the Airport, CA One Services, may be used by Tenant if such fixture, equipment or furniture is clean and in good condition. Should Tenant be unable to use any such fixture, equipment or furniture in the Lease Area and be unable to sell it for its fair market value, Tenant agrees to donate such fixture, equipment or furniture to a charitable organization of Tenant's choice located in the City of Palm Springs. 17. RESERVATIONS TO CITY. The Lease Area is accepted by Tenant as is and subject to any and all existing easements and encumbrances. City reserves the right upon ten (10) days' notice to Tenant, to install, lay, construct, maintain, repair, and operate such sanitary sewers, drains, structures, pipelines, and connections; water, oil, and gas pipelines; telephone and telegraph power lines; and the appliances and appurtenances necessary or convenient in connection therewith, in, over, upon, through, across, under and along the Lease Area or any part thereof, and to enter the Lease Area for any and all such purposes. City also reserves the right to grant franchises, easements, rights of way and permits in, over, upon, through, across, under and along any and all portions of the Lease Area. No right reserved by City under this Section shall be so exercised as to interfere unreasonably with Tenant's operations hereunder or to impair the security of any secured creditor of Tenant. City agrees that rights granted to third parties by reason of this Section shall contain provisions that the surface of the land shall be restored as nearly as practicable to its original condition upon the completion of any construction. City further agrees that should the exercise of these rights temporarily interfere with the use of any or all of the Lease Area by Tenant, the Minimum Annual Rent Guarantee shall be reduced in proportion to the total square feet such repairs interfere with the business carried on by Tenant while such repairs are being made. 18. DAMAGE AND DESTRUCTION OF LEASE AREA. In the event of(a)partial or total destruction of the Lease Area or Terminal during the Lease Term which requires repairs to either the Lease Area or said building, or (b) the Lease Area or Terminal being declared unsafe or unfit for occupancy by any authorized public authority for any reason other than Tenant's act, use or occupation, which declaration requires repairs to either the Lease Area or Terminal, City shall forthwith snake said repairs provided Tenant gives to City thirty (30) days written notice of the necessity therefor. No such partial destruction (including any destruction necessary in order to make repairs required by any declaration made by any public authority) shall in any way annul or void this Lease except that Tenant shall be entitled to a reduction of the Minimum Annual Rent Guarantee in proportion to the total square feet such repairs interfere with the business carried on by Tenant while such repairs are being made. If, however, during the last four (4) years of the Lease Term the Lease Area and/or said building are damaged as 627/014084-0014/3302812.6 a01/14100 -18- i 0 a result of fire or any other insured casualty to an extent in excess of twenty-five percent (25%) of the then replacement cost, (excluding foundations), City may within thirty (30) days following the date such damage occurs terminate this Lease by written notice to Tenant. If City, however, elects to make said repairs, and provided City uses due diligence in making said repairs, this Lease shall continue in full force and effect, and the Minimum Annual Rent Guarantee shall be proportionately reduced while such repairs are being made as hereinabove provided. The foregoing to the contrary notwithstanding, if the Lease Area or Terminal is damaged or destroyed at any time during the Lease Term to an extent of more than ten percent (10%) of the then replacement cost (excluding foundations) as a result of a casualty not insured against, City may within thirty (30) days following the date of such destruction terminate this Lease upon written notice to Tenant. If City does not elect to terminate because of said uninsured casualty, City shall promptly rebuild and repair the Lease Area and/or Terminal and the Minimum Annual Rent Guarantee shall be proportionately reduced while such repairs are being made as hereinabove provided. If City elects to terminate this Lease, all rentals shall be prorated between City and Tenant as of the date of such destruction. In respect to any partial or total destruction (including any destruction necessary in order to make repairs required by any such declaration of any authorized public authority) which City is obligated to repair or may elect to repair under the terms of this Section 18, Tenant waives any statutory right it may have to cancel this Lease as a result of such destruction. 19. SURRENDER OF LEASE. The voluntary or other surrender of this Lease by Tenant, or a mutual cancellation thereof, shall not work a merger, and shall, at the option of City, terminate all or any existing subleases or subtenancies, or may, at the option of City, operate as an assignment to it of any or all of such subleases or subtenancies. 20. HOURS OF BUSINESS. Tenant shall open for business in the main terminal area of the Terminal no later than as of the Effective Date, and in the new Phase IIA expansion area of the Terminal as of the Date of Beneficial Occupancy. Unless otherwise approved in writing by the Contract Officer, Tenant shall remain open one hour before the first flight departure and close no earlier than one half hour after the last departing flight seven days a week, 365 days a year, with no closures for any holiday or weekend, subject to any required closures as a result of the occurrence of any condition described at Section 32.1. Tenant acknowledges and agrees that, in addition to other reasons City is requiring Tenant to agree to the provisions of this Section is (a) that Tenant being open for business in turn helps increase the amount of business being done by other tenants in the Terminal, (b) that a closed store has a detrimental effect on the Terminal and the business of other tenants in the Terminal, (c) that a material consideration to City for entering into this Lease is the right and possibility of receiving Percentage Rent, and Tenant further acknowledges and agrees that the Minimum Annual Rent Guarantee would be set at a higher amount but for the possibility of City receiving Percentage Rent, and (d) a lease where a tenant is paying, or the possibility exists that a tenant will pay, percentage rent enhancing the value of the Terminal. 21. CONDEMNATION. In the event a condemnation or a transfer in lieu thereof results in a taking of any portion of the Lease Area, City may, or in the event a condemnation or a transfer in lieu thereof results in a taking of twenty percent (20%) or more of the Lease 627/014084-0014/3302812.6 a01/14/00 -19- 0 0 Area, Tenant may, upon written notice given within thirty (30) days after such taking or transfer in lieu thereof, terminate this Lease. Tenant shall not be entitled to share in any portion of the award and Tenant hereby expressly waives any right or claim to any part thereof. Tenant shall, however, have the right to claim and recover, only from the condemning authority (but not from City), any amounts necessary to reimburse Tenant for the cost of removing stock and fixtures. If this Lease is not terminated as above provided, City shall use a portion of the condemnation award to restore the Lease Area. 22. HOLDING OVER. Any holding over after the expiration of the Lease Term, without the written consent of City shall be construed to be a tenancy from month to month, cancelable upon thirty (30) days written notice, and at a rental equal to one hundred fifty percent (150%) of the last applicable Minimum Annual Rent Guarantee and upon terms and conditions as existed during the last year of the Lease Term. 23. RESERVATION OF RIGHT TO MODIFY TERMINAL. In addition to the rights reserved to City in Section 17 above, City hereby reserves the right (but not the obligation) to renovate, modernize, rehabilitate, expand, reduce, reconfigure, enclose and/or otherwise alter or improve all or any portion of the Terminal, including the Lease Area (collectively "Modifications"), in such manner and at such time or times, throughout the Lease Term, as City may, in its sole and absolute discretion, deem to be in the best interests of the Airport. Such Modifications may include, without limitation, the right to construct new buildings in the Airport for additional retail, office, and/or other uses, to remove, renovate, repair, add to, modernize or otherwise alter the Terminal as other buildings, facilities, structures, malls, walkways, landscaping, parking and common areas or other areas within the Airport. In connection with any and all such Modifications, City may enter the Lease Area to the extent reasonably required by City to pursue and complete such Modifications. In addition, City may temporarily close portions of the parking and common areas and cause temporary obstructions in connection with any Modifications. Tenant recognizes that the Modifications that may be made by City in accordance with the rights reserved in this Section may be substantial and cause disruption or other harm to Tenant's business at the Terminal. Tenant agrees that under no circumstances shall the Modifications as to any portion of the Terminal or the construction activity that takes place in the course of making the Modifications, or any aspect thereof, including City's entry into the Lease Area, constitute an eviction or partial eviction of Tenant or a breach of Tenant's right to quiet enjoyment or of any other provision of this Lease, nor entitle Tenant to damages, injunctive relief or other equitable relief, nor entitle Tenant to any abatement or reduction in the Minimum Annual Rent Guarantee, additional rental or other charges or sums due under this Lease. Notwithstanding the foregoing, City agrees that its right to modify the Terminal shall not permit City to materially impair the Lease Area or to permanently deprive Tenant of either of the following: (i) reasonable use and enjoyment of the Lease Area; and (ii) reasonable access to and from the common and parking areas. 24. HAZARDOUS WASTE AND MATERIALS. Tenant shall not engage in any activity on or about the Lease Area or the Terminal that violates any Environmental Law, and shall promptly, at Tenant's sole cost and expense, take all investigatory and/or remedial action required or ordered by any governmental agency or Environmental Law for clean-up and removal of any contamination involving any Hazardous Material created or caused directly or indirectly by Tenant. The term "Environmental Law" shall mean any federal, state or local law, 627/014084-0014/3302812.6 a01/14/00 -20- 0 statute, ordinance, rule, regulation, order, consent decree, judgment or common-law doctrine, interpretation thereof, and provisions and conditions of permits, licenses, plans, approvals and other operating authorizations whether currently in force or hereafter enacted relating to health, industrial hygiene or the environmental[ conditions on, under or about the Lease Area, including, without limitation, (i) the Comprehensive Environmental Response, Compensation and Liability Act of 1980 ("CERCLA"), 42 U.S.C. Sections 9601 et seq.; (ii) the Resource Conservation and Recovery Act of 1976 ("RCRA"), 42 U.S.C. Sections 6901 et seq.; (iii) California Health and Safety Code Sections 25100 et seq.; (iiv) the Safe Drinking Water and Toxic Enforcement Act of 1986, California Health and Safety Code Section 25249.5 et seq.; (v) the Federal Water Pollution Control Act, 33 U.S.C. Sections 1317 et seq.; (vi) California Water Code Section 1300 et seq.; and (vii) California Civil Code Section 3479 et seq., as such laws are amended and the regulations and administrative codes applicable thereto. The term "Hazardous Material" includes, without limitation, any material or substance which is (i) defined or listed as a "hazardous waste", "extremely hazardous waste", "restrictive hazardous waste" or "hazardous substance" or considered a waste, condition of pollution or nuisance under the Environmental Laws; (ii) petroleum or a petroleum product or fraction thereof; (iii) asbestos; and/or (iv) substances known by the State of California to cause cancer and/or reproductive toxicity. It is the intent of the parties hereto to construe the term "Hazardous Materials" and "Environmental Laws" in its broadest sense. Tenant shall provide all notices required pursuant to the Safe Drinking Water and Toxic Enforcement Act of 1986, California Health and Safety Code Section 25249.5 et seq. Tenant shall provide prompt written notice to City of the existence of Hazardous Material on the Lease Area and all notices of violation of the Environnmental Laws received by Tenant. Tenant's obligations pursuant to this Section V shall be referred to in this Lease as "Environmental Compliance". City represents that, upon execution of this Lease, to its knowledge, there are no Hazardous Materials within the Terminal and that City's Work shall be in compliance with all Environmental Laws upon delivery to Tenant. 25. COORDINATION OF WORK. 25.1 Representative of Tenant. The following principals of Tenant are hereby designated as being the principals and representatives of Tenant authorized to act either together or individually on behalf of Tenant with respect to the work specified herein and make all decisions in connection therewith: Patricia Miller Anton, President and CEO George McDonald, Vice President - Operations William C. Anton, Chairman Donald W. Darns, Vice President of Finance/CFO It is expressly understood that the experience, knowledge, capability, and reputation of the foregoing principals were a substantial inducement for City to enter into this Lease. Therefore, the foregoing principals shall be responsible during the term of this Lease for directing all activities of Tenant and devoting sufficient time to personally supervise the services hereunder. For purposes of this Lease, the foregoing principals may not be replaced nor may their responsibilities be substantially reduced by Tenant without the express written approval of City. 627/01408"014/3302812.6 a01/14/00 -21- ! 0 25.2 Contract Officer. City's Director, Department of Transportation shall from time to time designate a Contract Officer to act as City's contact and liaison with Tenant. It shall be Tenant's responsibility to assure that the Contract Officer is kept informed of the progress of the performance of the services. It is expressly understood that the Contract Officer does not have the authority to make any material decision as it relates to the services contemplated by this Lease. All material decisions must be made and duly authorized by City. 25.3 Independent Contractor. Neither City nor any of its employees shall have any control over the manner, mode, or means by which Tenant or its agents or employees, perform the services required herein, except as otherwise set forth herein. City shall have no voice in the selection, discharge, supervision, or control of Tenant's employees, representatives, or agents, or in fixing their number, compensation, or hours of service. Tenant shall perform all services required herein as an independent contractor of City and shall remain at all times as to City a wholly independent contractor with only such obligations as are consistent with that role. Tenant shall not at any time or in any manner represent that it or any of its agents or employees are agents or employees of City. City shall not in any way or for any purpose become or be deemed to be a partner of Tenant in its business or otherwise or a joint venturer or a member of any joint enterprise with Tenant. 26. INSURANCE AND INDEMNIFICATION. 26.1 Insurance. Not less than five (5) days after the Effective Date of this Lease, Tenant shall submit to City, In a form and content satisfactory to City, certificates indicating compliance with the following policies of insurance, which policies shall be maintained by Tenant during the entire term of this Lease including any extension thereof: 26.1.1 Comprehensive General Liability Insurance. A policy of comprehensive general liability insurance written on a per occurrence basis in an amount not less than either (i) a combined single limit of$1,000,000.00 for bodily injury, death and property damage or (ii) bodily injury limits of $500,000.00 per person, $1,000,000.00 per occurrence and $1,000,000.00 products and completed operations and property damage limits of$500,000.00 per occurrence and$500,000.00 in the aggregate. 26.1.2 Food Preparation. Tenant, if involved in food preparation and sales as a cafe, restaurant, or similar use, and/or food takeout service, shall install at Tenant's expense any fire protective systems in grill, deep fry, and cooking areas which are required by city, county, and state fire ordinances, and such system when installed shall qualify for full fire protective credits allowed by the fire insurance rating and regulatory body in whose jurisdiction the Lease Area are located. 26.1.3 Tenant to Provide Personal Property Insurance. Tenant, at its expense, shall maintain fire and extended coverage insurance, together with insurance against sprinkler and floor damage, vandalism, theft and malicious mischief, on its leasehold improvements and fixtures, alterations, trade fixtures, signs, equipment, 627/014084-0014/3302812.6 a01/14/00 -22- personal property and inventory on or upon the Lease Area from loss or damage to the extent of their full replacement value and shall provide plate glass coverage. 26.1.4 Worker's Compensation Insurance. A policy of worker's compensation insurance in such amount as will fully comply with the laws of the State of California and which shall indemnify, insure and provide legal defense for both Tenant and City against any loss, claim or damage arising from any injuries or occupational diseases occurring to any worker employed by or any persons retained by Tenant in the course of carrying out the work or services contemplated in this Lease. 26.1.5 Automotive Insurance. A policy of comprehensive automobile liability insurance -written on a per occurrence basis in an amount not less than either (i) bodily injury liability limits of $250,000.00 per person and $500,000.00 per occurrence and property damage liability limits of $100,000.00 per occurrence and $250,000.00 in the aggregate or (ii) combined single limit liability of$500,000.00. Said policy shall include coverage for owned, non-owned, leased and hired cars used in connection with the services performed hereunder. All of the above policies of insurance shall be primary insurance and shall name City and its officers, employees and agents as additional insureds. The insurer shall waive all rights of subrogation and contribution it may have against City and its officers, employees, and agents, and their respective insurers. All of said policies of insurance shall provide that said insurance may not be amended or cancelled without providing thirty (30) days prior written notice by registered mail to City. In the event any of said policies of insurance are cancelled, Tenant shall, prior to the cancellation date, submit new evidence of insurance in conformance with this Section to City. No work or services under this Lease shall commence until Tenant has provided City with Certificates of Insurance or appropriate insurance binders evidencing the above insurance coverages and said Certificates of Insurance or binders are approved by City. Tenant agrees that the provisions of this Section shall not be construed as limiting in any way the extent to which Tenant may be held responsible for the payment of damages to any persons or property resulting from Tenant's activities or the activities of any person or persons for which Tenant is otherwise responsible. In the event Tenant subcontracts any portion of the work required under this Lease, the contract between Tenant and such subcontractor shall require the subcontractor to maintain the same policies of insurance that Tenant is required to maintain pursuant to this Section. 26.2 Sufficiency of Insurer or Surety. Insurance or bonds required by this Lease shall be satisfactory only if issued by companies qualified to do business in California, rated "A" or better in the most recent edition of Best Rating Guide, The Key Rating Guide or in the Federal Register, and only if they are of a financial category Class VII or better, unless such requirements are waived by City. 26.3 Indemnification. Tenant agrees to indemnify City and its officers, agents and employees against, and will hold and save them and each of them harmless from, any and all actions, suits, claims, damages to persons or property, losses, costs, penalties, obligations, 627/014084-0014/3302812.6 a01/14/00 -23- • • errors, omissions, or liabilities, including, without limitation, attorneys' fees and costs (herein "claims or liabilities"), that may be asserted or claimed by any person, firm, or entity arising out of or in connection with the negligent performance of the work, operations, or activities of Tenant and its agents, employees, subcontractors, or invitees, provided for herein, or arising from the negligent acts, or omissions of Tenant hereunder, or arising from Tenant's negligent performance of, or failure to perform any term, provision covenant, or condition of this Lease, whether or not there is concurrent, passive, or active negligence on the part of City, or officers, agents, or employees but excluding such claims or liabilities arising from the sole negligence or willful misconduct of City or its officers, agents, or employees, who are directly responsible to City. 27. DEFAULT BY TENANT; CITY'S REMEDIES. 27.1 Events of Defauift. The occurrence of any one or more of the following events shall constitute a material default and breach of this Lease by Tenant: 27.1.1 The failure to make any Annual Rent payment required hereunder at the time or within the times herein specified for such payment, where such failure shall continue for a period of five (5) days after written notice thereof from City to Tenant; 27.1.2 Any willful misstatement by Tenant of Gross Receipts; 27.1.3 Assignment, subletting, or other transfer of this Lease or Tenant's interest herein without the prior written consent of City as set forth in Section 10 above; 27.1.4 The vacation or abandonment of the Lease Area or any portion thereof or the improvements thereon by Tenant, or failure to continuously operate as required by Section 20 herein for a period of five (5) days after written notice thereof from City to Tenant; 27.1.5 The general assignment of Tenant for the benefit of creditors; 27.1.6 The filing of a voluntary petition in bankruptcy or the adjudication of Tenant as a bankrupt or insolvent; 27.1.7 The appointment of a receiver to take possession of all or substantially all of the assets of Tenant located at the Lease Area; 27.1.8 The filing by any creditor of Tenant of an involuntary petition in bankruptcy which is not dismissed within sixty (60) days after filing; 27.1.9 The attachment, execution or any judicial seizure of all or substantially all of the assets of Tenant or the Lease Area when such an attachment, execution, or seizure is not discharged within thirty (30) days; 627/014084-001413302812.6 a01/UM -24- 27.1.10 The failure to observe any covenant or perform any other agreement or obligation herein provided to be observed or performed by Tenant where such failure continues after the time to cure as provided in Section 30.4 has elapsed. 27.1.11 The failure to operate in accord with operational standards under this Lease, after ten (10) days' notice of such failure from City to Tenant. 27.2 City's Rights Upon an Event of Default Termination. Upon the occurrence of an Event of Default by Tenant, or at any time thereafter during the continuance of such default, in addition to (and not by way of limitation of) any other remedies City may have under the Lease and applicable law, it shall be City's right, at its option and without further notice or demand of any kind to Tenant or any other person: 27.2.1 To require strict performance of all the terms, covenants, agreements, and obligations hereof as the same shall accrue and have the right of action therefor; or 27.2.2 To declare the term hereof ended and to reenter the Lease Area and take possession thereof and remove all persons therefrom without resort to legal proceedings and without being deemed guilty of any trespass or becoming liable for any loss or damage which may be occasioned thereby, and Tenant shall have no further claim thereon or thereunder; or 27.2.3 To draw from the security deposit amounts sufficient to reimburse City's actual costs, including attorneys' fees, which City reasonably incurs as a result of Tenant's breach, or to reimburse City for Tenant's non-payment of Annual Rent. 27.2.4 Without declaring this Lease ended to reenter the Lease Area and occupy the whole or any part thereof for and on account of Tenant and to collect all payments due and any other charges that may thereafter become payable; or 27.2.5 Even though it may have reentered the Lease Area, to thereafter elect to terminate this Lease and all of the rights of Tenant in or to the Lease Area. Should City reenter the Lease Area under the provisions of subparagraph 27.2.4 above, City shall not be deemed to have terminated this Lease or become liable to Tenant for damages under any of the provisions hereof, by any such reentry, or otherwise to obtain possession of the Lease Area, unless City shall have notified Tenant in writing that it has so elected to terminate this Lease. 27.3 Damages. Should City elect to terminate this Lease under the provisions of Section 27.1 above, City may recover from Tenant as damages: 27.3.1 The worth at the time of award of any unpaid Annual Rent which had been earned at the time of such termination; plus 627/0140"14/3302812.6 a01/14/00 -25- 0 0 27.3.2 The worth at the time of award of the amount by which the unpaid Annual Rent which would have been earned after termination until the time of award exceeds the amount of such loss Tenant proves could have been reasonably avoided; plus 27.3.3 The worth at the time of award of the amount by which the unpaid Annual Rent for the balance of the term after the time of award exceeds the amount of such rental loss that Tenant proves could be reasonably avoided; plus 27.3.4 Any other amount necessary to compensate City for all the detriment proximately caused by Tenant's failure to perform its obligations under this Lease or which in the ordinary course of things would be likely to result therefrom, including, but not limited to, any costs or expenses incurred by City in maintaining or preserving the Lease Area after such default and preparing the Lease Area for a new Tenant, and 27.3.5 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 the laws of the State of California. 28. CITY'S DEFAULT. City shall not be in default unless City fails to perform obligations required of City within a reasonable time, but in no event later than thirty (30) days after written notice by Tenant to City specifying wherein City has failed to perform such obligation; provided, however, that if the nature of City's obligation is such that more than thirty (30) days are required for performance then City shall not be deemed in default if City commences performance within a thirty (30) day period and thereafter diligently prosecutes the same to completion. 29. RECORDS AND REPORTS. 29.1 Records. Tenant shall keep, and require subcontractors to keep, such books and records as shall be necessary to perform the services required by this Lease and enable Contract Officer to evaluate the performance of such services. Contract Officer shall have full and free access to such books and records at all times during normal business hours of City, including the right to inspect, copy, audit and make records and transcripts from such records. 29.2 Ownership of Documents. All reports, records, documents and other materials prepared by Tenant, its employees, subcontractors and agents in the performance of this Lease shall be the property of City, except that City shall endeavor to maintain confidential any document which Tenant may designate as confidential, except and unless such document is required to be produced by City under the provisions of the Public Records Act (California Government Code Section 6250 et se L). Tenant shall deliver to City, on an ongoing basis throughout the term of this Lease, all reports, records and documents necessary to operate and maintain the Lease Area. Upon the termination or earlier termination of this Lease, Tenant shall immediately turn over to City all such documentation in its possession or to come into its possession in any way related to the operation of the Lease Area. All subcontractors shall 627/014084-0014/3302812.6 a01/14/00 -26- 0 provide for assignment to City of any documents or materials prepared by them, and in the event Tenant fails to secure such assignment, Tenant shall indemnify City for all damages resulting therefrom. 30. ENFORCEMENT OF LEASE. 30.1 California Law. This Lease shall be construed and interpreted both as to validity and to performance of the parties in accordance with the laws of the State of California. Legal actions concerning any dispute, claim or matter arising out of or in relation to this Lease shall be instituted in the Superior Court of the Counties of Orange or Riverside, State of California, or any other appropriate court in such counties, and Tenant covenants and agrees to submit to the personal jurisdiction of such court in the event of such action. 30.2 Late Pam. Tenant hereby acknowledges that late payment by Tenant to City of rental or other sums due hereunder will cause City to incur costs not contemplated by this Lease, the exact amount of which is extremely difficult to ascertain. Such costs include, but are not limited to, processing and accounting charges and late charges which may be imposed upon City by the terms of any mortgage or deed of trust covering the Lease Area. Accordingly, any payment of any sum to be paid by Tenant not paid when within five (5) days of its due date shall be subject to a five percent (5%) late charge. City and Tenant 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 Tenant. 30.3 Interest. Any sum to be paid pursuant to the terms of this Lease not paid when due shall bear interest from and after the due date until paid at a rate equal to three percent (3%) over the prime rate being charged by Bank of America, N.A. from time to time during such period so long as the rate does not exceed the maximum rate permitted by law in which case interest shall be at the maximum irate allowed by law at the time the sum became due. 30.4 Disputes. In the event of any dispute arising under this Lease, the injured party shall notify the injuring party in writing of its contentions by submitting a claim therefor. The injured party shall continue performing its obligations hereunder so long as the injuring party commences to cure such default within ten (10) days of service of such notice and completes the cure of such default within forty-five (45) days after service of the notice, or such longer period as may be permitted by the injured party; provided that if the default is an immediate danger to the health, safety and general welfare, such immediate action may be necessary. Compliance with the provisions of this Section shall be a condition precedent to termination of this Lease for cause and to any legal action, and such compliance shall not be a waiver of any party's right to take legal action in the event that the dispute is not cured, provided that nothing herein shall limit City's right to terminate this Lease without cause pursuant to Section 7 above. 30.5 Waiver. No delay or omission in the exercise of any right or remedy by a nondefaulting party on any default shall impair such right or remedy or be construed as a waiver. A party's consent to or approval of any act by the other party requiring the party's consent or approval shall not be deemed to waive or render unnecessary the other party's consent to or approval of any subsequent act. Any waiver by either party of any default must 627/014084-0014/3302812.6 a01114/00 -27- • be in writing and shall not be a waiver of any other default concerning the same or any other provision of this Lease. 30.6 Rights and Remedies are Cumulative. Except with respect to rights and remedies expressly declared to be exclusive in this Lease, the rights and remedies of the parties are cumulative and the exercise by either party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other party. 30.7 Legal Action. In addition to any other rights or remedies, either party may take legal action, in law or in equity, to cure, correct or remedy any default, to recover damages for any default, to compel specific performance of this Lease, to obtain declaratory or injunctive relief, or to obtain any other remedy consistent with the purposes of this Lease. 30.8 Attorneys' Fees. If either party to this Lease is required to initiate or defend or made a party to any action or proceeding in any way connected with this Lease, the prevailing party in such action or proceeding, in addition to any other relief which may be granted, whether legal or equitable, shall be entitled to reasonable attorney's fees. Attorney's fees shall include attorney's fees on any appeal, and in addition a party entitled to attorney's fees shall be entitled to all other reasonable costs for investigating such action, taking depositions and discovery and all other necessary costs the court allows which are incurred in such litigation. All such fees shall be deemed to have accrued on commencement of such action and shall be enforceable whether or not such action is prosecuted to judgment. 31. CITY OFFICERS AND EMPLOYEES: NON-DISCRIMINATION. 31.1 Non-liability of City Officers and Employees. No officer or employee of City shall be personally liable to Tenant, or any successor in interest, in the event of any default or breach by City or for any amount which may become due to Tenant or to its successor, or for breach of any obligation of the terms of this Lease. 31.2 Conflict of Interest. No officer or employee of City shall have any financial interest, direct or indirect, in this Lease nor shall any such officer or employee participate in any decision relating to the Lease which effects his financial interest or the financial interest of any corporation, partnership or association in which he is, directly or indirectly, interested, in violation of any State statute or regulation. Tenant warrants that it has not paid or given and will not pay or give any third party any money or other consideration for obtaining this Lease. 31.3 Covenant Against Discrimination. Tenant covenants that, by and for itself, its heirs, executors, assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin, or ancestry in the performance of this Lease. Tenant shall take affirmative action to insure that applicants are employed and that employees are treated during employment without regard to their race, color, creed, religion, sex, marital status, national origin, or ancestry; provided however, in no event shall Tenant hire or employ any person to perform the work required under this Lease who is not a citizen of the 627/014084-0014/3302812.6 a01/14/00 -28- • 0 United States or is properly documented and legally entitled to be employed within the United States. 32. MISCELLANEOUS PROVISIONS. 32.1 Force Mai eure. If by reason of labor disputes, strikes, lockouts, riot, war, inability to obtain labor or materials, earthquake, fire or other action of the elements, governmental restrictions, accidents, appropriations or other actions beyond Tenant's control, Tenant is unable to perform in whole or in part its obligations as set forth in this Lease, including, but not limited to, commencement of concession operations on the Lease Area, then such inability to perform shall not be deemed a breach and Tenant shall not be liable to City for any loss, injury, delay or damage suffered or incurred by City due to the above causes. 32.2 Survival. Notwithstanding the termination or early termination of this Lease, the representations, warranties and indemnifications made by Tenant for the benefit of City shall survive such termination and inure to the benefit of City, its agents, officers, successors, and assigns. 32.3 Notice. Any notice, demand, request, document, consent, approval, or communication either party desires or is required to give to the other party or any other person shall be in writing and either served personally or sent by prepaid, first-class mail. Notices shall be provided to each party at the following addresses: City: City of Palm Springs Attn: City Manager P.O. Box 2743 Palm Springs, CA 92663 With copy to: Rutan & Tucker, LLP 611 Anton Boulevard, Suite 1400 Costa Mesa, CA 92626-1998 Attn: David J. Aleshire, Esq. Tenant: Patricia Miller Anton, President & CEO Palm Springs AAI, Inc. Washington National Airport - Main Terminal Washington, DC 20001 With copy to: Robins, Kaplan, Miller & Ciresi 1801 K Street, N.W., Suite 1200 Washington, D.C., 20006 Attn: Keith R. Styles, Esq. Either party may change its address by notifying the other party of the change of address in writing. Notice shall be deemed communicated at the time personally delivered or in seventy-two (72) hours from the time of mailing if mailed as provided in this Section. 627/014084-0014/3302312.6 a01/14/00 -29- N • 32.4 Marginal Captions. The various headings and numbers herein and the grouping of the provisions of this Lease into separate articles and paragraphs are for the purpose of convenience only and shall not be considered a part hereof. 32.5 Time. Time is of the essence of this Lease. 32.6 Consents, Approvals, and Agreements of City. All consents and approvals to be given by City, unless specifically stated herein to the contrary, shall be at City's sole and absolute discretion and no covenants are to be implied in relation thereto, either in fact or in law. The agreements and obligations of City are specifically stated in this Lease, and no further agreements, covenants, promises, or obligations are to be implied, and Tenant expressly waives any such implied agreements, covenants, promises or obligations. 32.7 Interpretation. The terms of this Lease 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 Lease or any other rule of construction which might otherwise apply. 32.8 Integration; Amendment. It is understood that there are no oral agreements between the parties hereto affecting this Lease and this Lease supersedes and cancels any and all previous negotiations, arrangements, agreements and understandings, between the parties. This Lease may be amended at any time by the mutual consent of the parties by an instrument in writing. 32.9 Severability. In the event that any one or more of the phrases, sentences, clauses, paragraphs, or sections contained in this Lease shall be declared invalid or unenforceable by a valid judgment or decree of a court of competent jurisdiction, such invalidity or unenforceability shall not affect any of the remaining phrases, sentences, clauses, paragraphs, or sections of this Lease which are hereby declared as severable and shall be interpreted to carry out the intent of the parties hereunder unless the invalid provision is so material that its invalidity deprives either party of the basic benefit of their bargain or renders this Lease meaningless. 32.10 Corporate Authority. The persons executing this Lease on behalf of the parties hereto warrant that (i) such party is duly organized and existing, (ii) they are duly authorized to execute and deliver this Lease on behalf of said party, (iii) by so executing this Lease, such party is formally bound to the provisions of this Lease, and (iv) the entering into this Lease does not violate any provision of any other agreement to which said party is bound. 627/014084-0014/3302812.6 a01/14/00 -30- 0 0 IN WITNESS WHEREOF, the parties have executed and entered into this Lease as of the Effective Date. "City" THE CITY OF PALM SPRINGS ATTEST: a municipal corporation City Clerk City Manager APPROVED AS TO FORM: City Attorney "Tenant" PALM SPRING AAI, INC., a wholly owed subsidia>y'of An Airfood By: a Print name and title Bye y�— �` c�� i Print name and title iling Address: Plih-/.n iYii�� � 0 000 (Corporations require two signatures; one from each of the following: 1. Chairman of Board, President, any Vice President;AND 2. Secretary, Assistant Secretary, Treasurer, Assistant Treasurer, or Chief Financial Officer.) [END OF SIGNATURES] 627/01408441014/3302812.6 a01/11/00 -31- EXHIBIT "D" FAA GRANT AGREEMENT ASSURANCES 1. NONDISCRIMINATION A. Tenant, for itself, its personal representatives, successors in interest, and assigns, as a part of the consideration hereof, does hereby covenant and agree that: I. No person on the grounds of race, color, or national origin shall be excluded from participation, denied the benefits of, or be otherwise subjected to discrimination in the use of the Lease Area, 2. In the construction of any improvements on, over, or under the Lease Area and the furnishing of services thereon, no person on the grounds of race, color, or national origin shall be excluded from participation in, denied the benefits of, or otherwise be subjected to discrimination, 3. Tenant shall use the Lease Area in compliance with all other requirements imposed by or pursuant to Title 49, Code of Federal Regulations ("CFR"), Department of Transportation, Subtitle A, Office of the Secretary, Part 21, Nondiscrimination in Federally-assisted programs of the Department of Transportation-Effectuation of Title VI of the Civil Rights Act of 1964, and as said Regulations may be amended. 4. This agreement is subject to the requirements of the U.S. Department of Transportation's regulations, 49 CFR part 23, subpart F. Tenant agrees that it will not discriminate against any business owner because of the owner's race, color, national origin or sex in connection with. the award or performance of any concession agreement covered by 49 CFR part 23, subpart F. 5. Tenant agrees to include the statements this Section I.A in any subsequent concession agreements that it enters and cause those businesses to similarly include the statements in this Section I.A in further agreements. B. In the event of breach of any of the above nondiscrimination covenants, City shall have the right to terminate the Lease and to re-enter and repossess said land and the facilities thereon, and hold the same as if said Lease had never been made or issued. This provision does not become effective until the procedures of 49 CFR Part 21 are followed and completed, including expiration of appeal rights. C. Tenant shall furnish its accommodations and/or services on a fair, equal and hot unjustly discriminatory basis to all users thereof and it shall charge fair, reasonable and not unjustly discriminatory prices for each unit or service. D. Noncompliance with Provision C above shall constitute a material breach thereof and in the event of such noncompliance City shall have the right to terminate this Lease and the 627/014084-0014/3302812.6 OVUM -I- 0 estate hereby created without liability therefore or at the election of City or the United States either or both said Governments shall have the right to judicially enforce Provisions A, B, and C. E. Tenant agrees that it shall insert the above four Provisions in any lease (agreement, contract, etc..) by which said Tenant grants a right or privilege to any person, firm or corporation to render accommodations and/or service to the public on the Leased Area. 2. DEVELOPMENT OF LANDING AREA. City reserves the right to farther develop or improve the landing area of the Airport as it sees fit, regardless of the desires or view of Tenant, and without interference or hindrance. 3. MAINTENANCE OF LANDING AREA. City reserves the right, but shall not be obligated to Tenant, to maintain and keep in repair the landing area of the Airport and all publicly owned facilities of the Airport, together with the right to direct and control all activities of Tenant in this regard. 4. LEASE SUBORDINATE TO AGREEMENT WITH U.S.A. This Lease shall be subordinate to the provisions and requirements of any existing or future agreement between City and the United States or any lawful requirement of the United States relative to the development, operation, or maintenance of the Airport. 5. USE TO CONFORM WITH FEDERAL AVIATION REGULATIONS. Tenant agrees that Tenant's use of the Lease Area, including all construction thereon, shall conform to applicable Federal Aviation Regulations. Tenant agrees to comply with, the notification and review requirements covered in Part 77 of the Federal Aviation Regulations (as same may be amended from time to time or such other regulation replacing Part 77 as may be adopted by Federal authority) prior to the construction of the improvements described herein and prior to the construction of any future structure or building upon the Lease Area or in the event of any planned modification or alteration of any present or future building or structure situated on the Lease Area. 6. NONEXCLUSIVE RIGHT. It is understood and agreed that nothing herein contained shall be construed to grant or authorize the granting of an exclusive right within the meaning of Section 308a of the Federal Aviation Act of 1958 (49 U.S.C. 1349). 7. RESERVATION OF AVIATION EASEMENT. City hereby reserves for itself, its successors and assigns, for the use and benefit of the public, a right of flight for the passage of aircraft in the air space above the surface of the Lease Area, together with the right to cause in said air space such noise as may be inherent in the operation of aircraft now known or hereafter used for navigation of, or flight in the air, using said air space, or landing at, taking off from, or operating at the Airport. 8. HEIGHT LIMITATION OF STRUCTURES. Tenant by accepting this Lease expressly agrees for itself, its successors and assigns that it will not erect nor permit the erection of any structure or object nor permit the growth of any tree on the land leased hereunder which would penetrate the imaginary surfaces as defined in Part 77 of the Federal Aviation Regulations (as 627/014084-0014/3302812.6 a01/UM -2- 0 same may be amended from time to time or as such regulation replacing Part 77 may be adopted by federal authority) or such other lesser altitude as may be required by City. In the event the aforesaid covenants are breached, City reserves the right to enter upon the land leased hereunder and to remove the offending structure or object and cut the offending tree, all of which shall be at the expense of Tenant. 9. NONINTERFERENCE WITH AIRCRAFT. Tenant by accepting this Lease agrees for itself, its successors and assigns that it will not make use of the Lease Area in any manner which might interfere with the landing and taking off of aircraft from the Airport or otherwise constitute a hazard. In the event the aforesaid covenant is breached, City reserves the right to enter upon the premises hereby leased and cause the abatement of such interference at the expense of Tenant. 10. WAR OR NATIONAL EMERGENCY. This Lease and all the provisions hereof shall be subject to whatever right the United States Government now has or in the future may have or acquire, affecting the control, operation, regulation and taking over of Airport or the exclusive or nonexclusive use of Airport by the United States during the time of war or national emergency. 11. DISADVANTAGED BUSINESS ENTERPRISE POLICY AND OBLIGATION. It is the policy of the Department of Transportation that disadvantaged business enterprises (DBE) as defined in 49 CFR Part 23 shall have the maximum opportunity to participate in the performance of contracts financed in whole or in part with Federal funds under this Lease. Consequently the DBE requirements of 49 CFR Part 23 apply to this Lease. The recipient or its contractor agrees to ensure that disadvantaged business enterprises as defined in 49 CFR Part 23 have the maximum opportunity to participate in the performance of contracts and subcontracts financed in whole or In part with Federal funds provided under this Lease. In this regard all recipients or contractors shall take all necessary and reasonable steps in accordance with 49 CFR Part 23 to ensure that disadvantaged business enterprises have the maximum opportunity to compete for and perform contracts. Recipients and their contractors shall not discriminate on the basis of race, color, national origin, or sex in the award and performance of DOT-assisted contracts. 12. AFFIRMATIVE ACTION REQUIREMENTS. Tenant assures that it will undertake an affirmative action program as required by 14 CFR Part 152, Subpart E, to insure that no person shall, on the grounds of race, creed, color, national origin, or sex, be excluded from participating in any employment activities covered in 14 CFR Part 152, Subpart E. Tenant assures that no person shall be excluded on these grounds from participating in or receiving the services or benefits of any program or activity covered by this subpart. Tenant assures that it will require that its covered sub-organizations provide assurances to Tenant that they similarly will undertake affirmative action programs and that they will require assurances from their sub- organizations, as required by 14 CFR Part 152, Subpart E, to the same effect. 627/014084-0014/3302812.6 a01114/00 -3- EXHIBIT "C" OPTION AGREEMENT This OPTION AGREEMENT ("Option") is made November 1, 1999, by and between the City of Palm Springs ("City"), and PALM SPRINGS AAI, INC., a wholly owed subsidiary of Anton Airfood ("Optionee"). Optionee desires to obtain an option to lease certain real property described as the Lease Area in the agreement between the Optionee and City (hereinafter referred to as "Lease") attached hereto as Attachment I and made a part hereof, for the purposes and uses provided in the Lease; City is willing to enter into an option agreement to lease said real property for said purposes and uses; NOW, THEREFORE City and Optionee agree as follows: 1. DEFINITIONS. The following words in this Option Agreement have the significance attached to them in this clause unless otherwise apparent from context: "Airport" means Palm Springs International Airport. "Aviation Director" means the Aviation Director of the City of Palm Springs, or upon written notice to Optionee, Manager's designee. "Design Review Board" means the Airport Design Review Board to be created by the Aviation Director for the purpose of reviewing and approving the development plans proposed by Optionee. "Terminal" means the Palm Springs International Airport" commercial passenger terminal. 2. OPTION. City grants Optionee an option to lease said Lease Area for the term and in accordance with the covenants and conditions set forth in the Lease. 3. CONSIDERATION. As consideration for the Option granted herein, Optionee shall assign any and all ownership interests of Optionee in and to those plans, architectural and engineering drawings, specifications or models prepared during the option period to City. Additional copies of any surveys, environmental reports or research relating to the development of the Lease Area obtained by Optionee during the option period shall be delivered to City. 4. TERM. The term of this Option shall commence on the date first written above, and continue in effect until August 1, 2000. This Option may be extended under the following circumstances: A. If Optionee is delayed in fulfilling the requirements of this option through no fault of its own or through no fault of its agents or employees, this option may be 627/014084-001413302812.6 a01/14/00 -I- • 0 extended without additional cost to Optionee for up to 90 days by the Aviation Director. Any extension for more than 90 days must be approved by City. Neither Aviation Director nor City, however, shall have any obligation to permit and/or approve any such extension. OR B. Optionee may extend the term of this option for up to 60 days if Optionee is delayed in fulfilling the requirements of this option and each of the following acts are accomplished by Optionee prior to the granting of such an extension: 1. Optionee's "preliminary plans", as defined in the Section in this Option Agreement entitled "CONDITIONS" have been approved in writing by the Design Review Board. 2. At least fifteen days prior to the expiration of the option period, Optionee has submitted a letter to the Aviation Director clearly stating that Optionee is requesting extension of the option period. 3. At least fifteen days prior to expiration of the option period, Optionee has submitted a cashier's check to the Aviation Director in the amount of Ten Thousand Dollars ($10,000) for each additional 30-day period for which the option is to be extended. This amount is in addition to the amount required in the Section in this Option Agreement entitled "CONSIDERATION". Whether or not Optionee exercises this option in accordance with the terms hereof, said payments for each such thirty day period, if any, shall be retained by City in consideration for the granting of each such extension. 6. CONDITIONS. This option may not be exercised until the following terms and conditions have been met: A. Preliminary Plans. Within forty-five (45) days after the date of execution of this Agreement, Optionee shall submit to the Design Review Board "preliminary plans" for development and use of said Lease Area in accordance with the requirements of the Lease. Preliminary plans shall be prepared by an architect licensed in the State of California and shall consist of: 1. A detailed site plan of the Lease Area showing all improvements planned for the site. This plan shall show any existing and proposed utility lines affecting the Lease Area, location, of all new utilities, ingress and egress to and from the Lease Area. 2. Floor plans, elevations, and sections of all improvements; 3. Structural, mechanical and lighting systems; 4. Complete outline specifications to cover all phases of the work; 627/014084-0014/3302912.6 a01/UM -2- 0 0 5. A detailed cost estimate of all improvements; 6. Color and interior decorating scheme; 7. A detailed estimate of the construction schedule; and The design Review Board will approve, rule, reject, or comment on the preliminary plans within twenty (20) days of the day the preliminary plans are submitted. B. Construction Contract Documents. Within sixty (60) days after the date of Design Review Board approval of preliminary plans, Optionee shall submit to the Design Review Board "construction contract documents" and architect's costs estimates for development of the Lease Area. "Construction contract documents" shall consist of the following: 1. Complete architectural and engineering working drawings; 2. Complete specifications; 3. Construction contract form; and 4. Construction schedule. The Design Review Board will approve, rule, reject or comment on the construction contract documents within fifteen (15) days of the day the construction contract documents were submitted. C. At the same time construction contract documents are submitted in accordance with "B" above, Optionee will submit construction contract documents to Palm Springs Building Division for plan check and pay such fees as required. D. Within fifteen (15) days after review of construction contract documents as called for in "B" and "C" above, Optionee shall have completed all corrections and adjustments in construction contract documents as required by the Design Review Board, Building Division, and other concerned agencies, and shall have obtained Design Review Board approval and appropriate permits for construction. E. Optionee has submitted the following to the Director of Aviation: 1. Satisfactory evidence of Optionee's ability to finance the cost of the development planned for said Lease Area in accordance with the requirements of the Lease. If Optionee Plans to hypothecate the leasehold as security for a loan, Optionee shall submit all documents proposed in the loan transaction along with a request and processing fees for City consent to the proposed hypothecation. Such hypothecation documents shall be submitted in accordance with the Section in the Lease entitled "ASSIGNMENT, SUBLETTING, AND ENCUMBERING". 627/014084-0014/3302812.6 a01/14/00 -3- i 0 2. The appropriate security deposit as required in the Section in the Lease entitled "SECURITY DEPOSIT" 3. Assurance of construction completion in accordance with the Section in the Lease entitled "TENANT'S ASSURANCE OF CONSTRUCTION COMPLETION", or a letter of intent to bond that is sufficient to assure City that a bond is forthcoming. 4. Evidence of insurance coverage which fully complies with the Section in the Lease entitled "INSURANCE". 5. Evidence that adequate licenses, (i.e., for sale of alcoholic beverages) for operation from the Lease Area have been obtained. 7. REVIEW BY CITY. Optionee hereby acknowledges that one of the purposes of this option is to afford Optionee and City the opportunity to determine whether or not Optionee is able to meet the various conditions of the Option Agreement and obtain the required approvals as set forth in this Option Agreement. Several of those conditions involve obtaining review and approval from officers, employees or agents of City. Each of those reviews shall be conducted in an independent manner and nothing contained herein shall be deemed to limit the jurisdiction or authority otherwise possessed by said officers, employees or agents in the conduct of such review. Nothing contained in this Option Agreement shall be deemed to imply that said approval shall be forthcoming, and the failure to issue any such approval or permit by any officer, employee or agent of City shall not be deemed in any manner a breach of this option, nor shall any such denial give rise to any claim, liability, obligation, or cause of action with respect to this option or the attached Lease. City agrees to consent to any application by Optionee with respect to any permits or approvals related to activities or improvements approved by City in accordance with the Option Agreement which may be required to any governmental or other regulatory agencies aside from City. No permit approval or consent given by City or its officers, employees or agents, acting in its/their governmental capacity, shall affect or limit Optionee's obligations under this Option Agreement or the Lease nor shall any approvals or consents given under this Option Agreement by City, as a part to this Option Agreement, be deemed approval as to compliance or conformance with applicable governmental codes, laws, rules and/or regulations. 8. OPTIONEE'S RIGHT TO ENTER LEASE AREA. Subject to prior written approval and conditions as may be specified by the Aviation Director, Optionee and its authorized representatives shall have the right to enter upon, to pass and to repass over and along said Lease Area, and to do the surveying and testing necessary for Optionee to prepare the hereinabove-described preliminary plans, and construction contract documents. Optionee hereby agrees to indemnify City and hold City, its officers and, employees harmless from any and all loss, claims, liability or demands arising out of or incurred by reason of such investigation. 627/01408"014/3302812.6 a01/14100 -4- 0 0 Whether or not this Option terminates or expires, Optionee agrees to repair any and all damages caused to the Lease Area by reason of any such investigation or investigations. Optionee shall maintain the following described liability insurance acceptable to the Aviation Director in full force and effect commencing on or before the date Optionee first enters upon the Lease Area pursuant to this Option Agreement and thereafter throughout the term of the option granted hereby and any extensions thereof. Said policy of insurance maintained by Optionee shall provide the following limits and coverages: CASUALTY INSURANCE Coverage Minimum Limits Comprehensive General Liability $1,000,000 Each liability insurance policy required by this Option Agreement shall contain the following three clauses: A. "This insurance shall not be cancelled, limited in scope of coverage or non- renewed until after 30 days written notice has been given to the City of Palm Springs, 3200 Tahquitz Canyon Way, Palm Springs, CA 92263 or to such other address as may from time to time be specified by City to Optionee." Optionee agrees to deposit with Aviation Director on or before the date that Optionee first enters upon the Lease Area pursuant to this Option Agreement or otherwise, certificates of insurance necessary to satisfy Real Estate Manager that the insurance provisions of this Section have been complied with, and to keep such insurance in effect and the certificates therefore on deposit with Aviation Director during the entire term of the Option granted hereby and any extensions thereof. The procuring of such required policy or policies of insurance shall not be construed to limit Optionee's liability hereunder to fulfill the hold harmless provisions and requirements of this Option Agreement. 9. ASSIGNMENT. This Option Agreement shall not be sold, assigned, or otherwise transferred without the prior written consent of City, which consent may be withheld by City in City's sole and absolute discretion, it.being understood and agreed that Optionee was selected by City because of Optionee's unique characteristics and abilities. Failure to obtain City's required written consent shall render said sale, assignment, or transfer void and shall constitute a material default by Optionee under this Option Agreement which shall entitle City to terminate this Option Agreement by giving written notice of such termination to Optionee. If Optionee hereunder is a corporation or an unincorporated association or partnership, the sale, transfer, or assignment of any stock or interest in said corporation, association, or partnership in the aggregate exceeding twenty-five percent (25%) shall be deemed an assignment within the meaning of this clause. 627/014084-0014/3302812.6 01/14/00 -5- 0 10. EXERCISE OF OPTION. At any time during the option term that Optionee shall have performed all conditions as set forth in the Section entitled "CONDITIONS" of this Option Agreement to the satisfaction of City, Optionee may exercise this option by giving City written notice of election to do so, accompanied by properly executed copies of the Lease in triplicate. 11. EXECUTION OF LEASE. Upon proper exercise of the option to lease by Optionee, as defined in this Option Agreement, City shall execute the Lease within ten (10) days. 12. LEASE DATE. It is understood and agreed that the date of the Lease shall be the date of execution of the Lease by City. 13. TERMINATION. Failure of Optionee to meet the terms and conditions of this Option Agreement fully and satisfactorily within the time limits stated shall absolutely and conclusively terminate Optionee's rights hereunder, notwithstanding the fact that City may choose to negotiate a lease with Optionee within a reasonable time after the expiration of this Option Agreement. Without limiting the preceding paragraph, in the event of any such termination, within five (5) days of City's request, Optionee shall execute, acknowledge and deliver to City for recording, a quitclaim deed or other document reasonably requested by City's counsel or a reputable title company, to remove any cloud on title created by this Option Agreement. 14. DISCLAIMER OF REPRESENTATIONS OR WARRANTIES A. Optionee agrees that City has made no representations, warranties or agreements as to any matters concerning the Lease Area, including, but without being limited to, the land, marketability of title, topography, climate, air, water, water rights, utilities, present or future zoning, soil, subsoil, hazardous substances, waste or materials, the purposes for which the property is suited, drainage, access to public roads, proposed routs of roads or extensions thereof or the availability of governmental permits or approvals of any kind. Optionee represents and warrants to City that it and its representatives and employees have made or will made their own independent inspection and investigation of such property. B. Optionee acknowledges that City has made no representations or warranties regarding the nature of its interest in the Lease Area. Regardless of the nature of such interest, Optionee agrees to accept, without warranty, only such right, title and interest, if any, as City may have in and to such real property. C. Optionee acknowledges that any documents, studies, reports, surveys, tests, preliminary title reports or other information provided to Optionee by City or City's agents or employees, with respect to the Lease Area have been provided for disclosure and information purposes only and that City does not represent or warrant the accuracy or completeness of any such item. 15. ATTORNEY'S FEES. In the event of any dispute between the parties hereto concerning this Option Agreement, the Lease Area or the Lease, the prevailing party in such dispute shall be permitted to recover from the losing party its reasonable attorney's fees and costs of suit. 627/014084-0014/3302812.6 a01114100 -6- • 0 16. GENERAL PROVISIONS A. Inte rag tion. This instrument contains the entire agreement between the parties relating to the option granted by this Option Agreement and all negotiations and agreements between the parties hereto or their agents with respect to this transaction are merged herein. Any oral representations, modifications or waivers concerning this instrument shall be of no force and effect except in a subsequent instrument made in writing, and signed by both parties. B. Time. Time is of the essence in the performance of the parties' respective obligations herein contained. C. Heirs, Successors and Assigns. Subject to the restrictions against sale, assignment or other transfer above, this Option Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective heirs, successors and assigns. D. Public Records Act. Any and all written information submitted to and/or obtained by City from Optionee or any other person or entity having to do with or related to this Option Agreement or Lease Area, either pursuant to this Option Agreement or otherwise, at the option of City, may be treated as a public record open to inspection by the public pursuant to the California Records Act (Government Code § 6250, etc.) as now in force or hereafter amended, or any Act in substitution thereof, or otherwise made available to the public and Optionee hereby waives, for itself, its agents, employees, subtenants and any person claiming by, through or under Optionee, any right or claim that any such information is not a public record or that the same is a trade secret or confidential information and hereby agrees to indemnity and hold City harmless from any and all claims, demands, liabilities and/or obligations arising out of or resulting from a claim by Optionee or any third party that such information is a trade secret, or confidential, or not subject to inspection by the public, including without limitation reasonable attorney's fees and costs. 17. NOTICES. Any notice, tender, or delivery to be given in accordance with this Option Agreement by either party to the other shall be sent through the United States Mail in the State of California duly registered or certified, return receipt requested, with postage prepaid to the addresses set forth below. If any notice is sent by registered or certified mail, as aforesaid, the said same shall be deemed to have been served or delivered twenty-four (24) hours after mailing thereof as above provided. Notwithstanding the above, City may also provide notices to Optionee by personal delivery or regular mail and any such notice so given shall be deemed to have been given upon receipt. To: City: City of Palm Springs Attn: City Manager P.O. Box 2743 Palm Springs, CA 92663 627/014084-0014/3302812.6 a01/14/00 -7- • With copy to: Rutan & Tucker, LLP 611 Anton Boulevard, Suite 1400 Costa Mesa, CA 92626-1998 Attn: David J. Aleshire, Esq. TO: Optionee Patricia Miller Anton, President & CEO Palm Springs AAI, Inc. Washington National Airport - Main Terminal Washington, DC 20001 With copy to: Robins, Kaplan, Miller & Ciresi 1801 K Street, N.W., Suite 1200 Washington, D.C., 20006 Attn: Keith R. Styles, Esq. Either party hereto may from time to time, by written notice to the other, designate a different address which shall be substituted for the one above specified. 627/014084-0014/3302812.6 a01/14/00 -8- IN WITNESS WHEREOF, the parties have executed and entered into this Lease as of the Effective Date. "City" THE CITY OF PALM SPRINGS a municipal corporation ATTEST: City Clerk City Manager APPROVED AS TO FORM: tt; y CouNcdd rnv City A{orn l?�D "Tenant" PALM SP NG)AAI, INC., a wholly owed subsidiar of Anton Airfood Subscribed and sworn to, before me, By: �U = a oilotary PuJhc fol ii ]�=e of Virgipia at Large this.../Aday of Pri tm'tme and title r.� ..... ➢.. `Ya:�.�: .Notary MyCommission PIMS • ...•i�•, f. Em1rr�^t M11c;5 is NY .LleJra�r�t 0 d::ai ., ���'.�Pe CAP (COmm0miih o4 Wliinia Notary Public Seal punt name and title Aly Commission Equites June all,20R3 SHAnYN J.POST M. 'ling Address:� �e• (Corporations require two signatures; one from each of the following: 1. Chairman of Board, President, any Vice President;AND 2. Secretary, Assistant Secretary, Treasurer, Assistant Treasurer, or Cluef Financial Officer.) [END OF SIGNATURES] 627/014084.0014/3302812.6 .01117/00 -31- '19) GAEEII i GAH10 100 SPECIALTY Glfi (580 Sf \ • GATE 8PE ) '11 i RESTAURANT BAR Sf) �Z�:�'� �, ,�:%✓ COCKiAIL LOUNGE (450 Sf) 1Z OUTSIDE SfAiING (700 00 SF)Sf) cAEE 9 - • • iJ FULL SERVICE RESTAURANT(3,137 Sf) l31 COFFEE CART(154 SO G SPECIALTY CART(66 Sf) 14 NEWS/BOOKS/SUNDRIES(175 SF)carE 2 ; ::;;;:a k.l:: : GATE 6 SPECIALTY CART (66 Sf) 15 BUSINESS CENTER(461 Sf) —o0 1 os (6) OUTSIDE SEALING(700 SF) lb) AVAILA STAND (400 Sf) GATE55 - ihTl 4 �7 SPECIALTY GIFT(850 Sf) 17 AVAILABLE • r _" 08 RESORT WEAR/ GOLF SHOP(1,050 Sf) { SPECIALTY GIFT (400 Sf) 3 NEWS/ BOOKS / SUNDRIES(400 Sf) i10) AVAILABLE(400 Sf) GaiE 3 p p GATE 2 � 4 17) �: �� � �� GATES 18a N 18B GATE 14 GAEE 764 GATE 168� �—_ - � 6A14S 19A 819B GATE 12 GATE 1 �/. —' �/ �� �Y,' GA1fS UA 817B l �— ,� GATEI5B GATE15A SECURITY(I NK IM IM S' \ —I L) n �3 (14? 15 �, D EXHIBIT "A" CONTINUED (1) STORAGE ROOM 1 - THE PARADIES SHOPS U STORAGE ROOM 2 - ANTON AIRPOOD (1) STORAGE ROOM 3 -AVAIIABIEV'i ----- --- --- F d / GPI 9 I I I I I I I I ------------I I------------ ;.. I -V 1- - ��—Q L" i aooM Q F Q.F 3.F uoim r — SQ.FT. SQ.FT. SQ.FT. Roots \STORAGE 7 STORAGE 2 AUNIL. TUG DRIVE l c i r Lam,IL EXHIBIT "B" PAGE 1-A STORE #2 j� �r i \ \ COCKTAIL LOUNGE - 450 SQ.FT. J ;y , �\ /<. SECURITY l/ S "< C ECKRT NEWS � &GIFTS ;11171je ) �J ro �s / EXHIBIT "B" PAGE 1-B STORE #3 1 ; J (( FM X FULL SERVICE RESTAURANT - 3,137 SQ.FT. \V-A SECURITY CHECKPOINT NEWS &GIFTS ;'���� S✓�% • EXHIBIT "B" PAGE 2-A STORE #16 I I COFFEE STAND -400 SQ.FT. I cfl I - I Ply STRUCTURE t \ / f \ GATE 1 PUTTING GREEN `. I EXHIBIT "B" PAGE 2-B STORE #13 i I u E-1 �I COFFEE CART- 154 SQ.FT I EXHIBIT "B" PAGE 1-C STORE 11 ... ... ... .... .. ... MEN �� o =�i �•-t l o 0000 0 0000 \i 710000 0 0000 � � •••..,����----*,. ��� GS�'•.mac/ Z�. 0 0 0 n •.i ••...............:...................................... ....::.:::::: RESTAURANT/ BAR- 1,900 SQ.FT „ I 0 ❑C CD �,..ry7 Corporate Member - AIRPORTS COUNCIL / RATE RNATIONAL GJ=C C9 AIRPOOD Friday, January 28, 2000 Barry Griffith Palm Springs International Airport 3400 E. Tahquitz Canyon Way Palm Springs, CA 92263 Dear Barry: Enclosed please find the Performance Bond as we discussed for the Food & Beverage Concession contract for the Palm Springs International Airport. We look forward to establishing a first class program at your facility for which we all will be proud. Thank you for this wonderful opportunity. Since Y, onald W. Darnes, CPA Vice President of Finance/CFO Anton Airfood, Inc. Ronald Reagan National Airport, Washington, DC 20001 (703) 417-0900 Fax (703) 417-0889 Dallas-Ft Worth,TX JFK International, NY LaGuardia,NY Providence,RI Washington,DC JFK International, NY Columbus,OH AA Terminal Terminal One (972)574-0744 (718)656-1686 (718)533-9879 (401)732-5140 (703)417-1945 (718)751-2890 (614)239-2225 0 • PERFORMANCE BOND Bond No. K06244609 KNOW ALL MEN BY THESE PRESENTS: That we, Palm Springs AAI, Inc., a wholly owned subsidiary of Anton Airfood, as Principal, and INDEMNITY INSURANCE COMPANY OF NORTH AMERICA, of Philadelphia, Pennsylvania, as Surety, are held and firmly bound unto the City of Palm Springs (Owner), as Obligee, in the penal sum of Eighteen Thousand & NO/100 lawful money of the United States of America, for the Payment of which, well and truly to be made, we bind ourselves, our heirs, executors, Administrators, successors and assigns, jointly and severally,firmly by these presents. WHEREAS,said principal herein, has, by written agreement dated November 1. 1999 entered into an agreement with owner, which agreement is by reference made a part hereof, and is hereafter referred to as the agreement. NOW,THEREFORE, a condition of this obligation is such that, if the contractor shall Faithfully perform and comply with all provisions of the agreement,then this obligation shall be void; otherwise to remain in full force and effect. The total amount of the Surety's liability under this bond shall in no event exceed the penal sum hereof. No right of action or recovery shall accrue hereunder to or for the use of any person or entity other than the Owner named herein, its heirs,executors, administrators or successors. This bond may be terminated at any time by the Surety upon sending notice in writing to the Obligee with whom this bond is filed and to the Principal, and at expiration of the thirty-five (35) days from the mailing of said notice, this bond shall ipso facto terminate and the Surety shall there upon be relieved from any liability for any acts or omissions of the Principal subsequent to said date. This bond shall be effective the 21st day of January 20 00 and terminate on the 21st day of January 2001 unless said bond is extended by surety issuing a new bond. SIGNED,sealed and dated this 21st day of January 20 00—_ Palm SpringsAAI Inca wholly owned Subsidiary of'Anto : irfood TITLE: ?rr,—,40e t,+ _t Indemnity Insurance Company of North America Evelyn D. R ers Attorney-in-Fact Power of Attorney INDEMNITY INSURANCE COMPANY OF NORTH AMERICA 844781 CIGNA , Know all men by these presents: That INDEMNITY INSURANCE COMPANY OF NORTH AMERICA,a corporation ofthe Commonwealth of Pennsylvania',having its principal office in the City of Philadelphia,Pennsylvania,pursuant to the following Resolution,adapted by.the Board of Directors ofthe said Company on December 5,1983,to wit: "RESOLVED,flat parson[to Articles 319 and 51 of the By-Laws,the fdimo rg Rules shall gn oru the execution for the Compary ofbonds,ambitakegs,recogmvmmes,cenio ats and oN,,mtmgs m die nature literati (1) That Ore Prowled,airy Semor Vice President,any Vice President and Assrsauu Vice Presden,or any Anuray-m-Fact,may execute for and sir behalfof the Coecm,any and all bends,undedclan,s,recomixnces, conhacts and other writings fir d®namce thereof the same to be attested wheaneoessaryby the Corporate Secretary,cr any Assistant Corpemte Secretary,and me s d ofthe Company affixed Nuelq and that the Preade s,any Smun Vice Presided,any Vice President or any Asartant Vme President may appoint and misters,my sitter Officer(elected or appeared)of Um Cempang sentAttomeys-In-Fact to so axamte or most j to the exconam of all spela t ,s enbehalfofthe Company and to affix the seal of the Company thereto j li 2 into such wriWi executed in accordance with these Rules shall be as bmdm u nthe Company in my ase as Nun is edb Ore President and attested to fire CorporateSecret () Y g a 6 Po Parry Y a gJ !m Y Y ary. . (3) The satmame of the Presrden,ore S..VraePresided,era Vice President,or an Assistant VmePresrdent and the seat of the Companymay be affixed by facmide on anypower ofmorney mated pursuant to Nis I Reselnhen,and lire sitar me ofa cerdfymg Officer and We seat of We Compadymay be atbxcd bylicsimileto any certificate of any archpower,and any such poweror cetdhcate be.,such Rismarte station,and seal clmO be valid and bindmg mr the Company. (4) Such tatter Officers of the Company and Attomeys-In-Factsholllrave authority loceatifymverify copies of arms Resolution,the By-Laws oftlw Compr,,and any affidavit ouecad ofthe Companynecesscary to it,, discharge of Wen dupes. I (5) The passage eftlus Reselnlran does notowakeany earher maturity granted by Rominhons oftlre Board ofDrsartir,adopted on June 9,1953,May 28,1975,and March 23,1977" II does hereby nominate,constitute and appoint ALBERT ELIA,III and EVELYN D.ROGERS both of the City of Tampa, State of Florida,each individually ifthere be more than one named,its true and lawful attomey-in-fact,to make,execute,seal and deliver on its behalf,and as its act and deed any and j .N all bonds,undertakings,recognizanees,contracts and other writings in the nature thereof in penalties not exceeding Two Million Five Hundred Thousand DollarsI� O ($2,500,000)and the execution of such writings in pursuance of these presents shalt be as binding upon said Company,as fully and amply as ifthey had been dulyCL ICI executed and ackowledged by the regularly elected officers ofthe Company at its principal office. IN WITNESS WHEREOF,the said William.hm�L is,Vice-President,his hereunto subscribed his name and affixed the corporate seat ofthe said 1 N N INDEMNITY INSURANCE COMPANY OF NORTH AMERICA this 28th day of Tune 1999. ! O a,n INDEMNITY INSURANCE COMPANY OF NORTH AMERICA% W `„L'""� M tJ/ O— William Jungreis,Vice President � (II N > COMMONWEALTH OF PENNSYLVANIA -COUNTY OF PHILADELPHIA as. On This 28th day of June,A.D.1999,before me,allotary Public of the Commonwealth of Pennsylvania in and for the County of Philadelphia came William.Aingreis,Vice-President ofthe INDEMNITY INSURANCE COMPANY OF NORTII AMERICAto me personally known to be the individual and ICI o, C•— N rn officer who executed the preceding instrument,and lte acknowledged that he executed the same,and that the seal fixed to the preceding instrument is the : la O 0" corporate seal of said Company;that the said corporate seal mid his signature were duly affixed by the authority and direction ofthe said corporation,and that nO Resolution,adopted by the Board of Directors of said Company,referred to in the preceding instrument,is now in force. O N IN TESTIMONY WHEREOF,I have hereunto set my hand and affixed my official seal atthe City of Philadelphiathe day and year first above written. M CF. 00 NOTARIAL SELL � — O - V OF ¢ ; DEBRAM.MARANO, Notary Public i ; >•n 3 City of Philadelphia,Phila.County N •, }, r- ri= My Commission Expires Dec 20,1999 Notary Public N O Iryl4rfq lPpaaarl'• N L O Z U I,the undersigned Secretary of INDEMNITY INSURANCE COMPANY OF NORTH AMERICA,do hereby certify that the original POWER OF ATTORNEY,of which the foregoing is a substantially true and correct copy,is in fall force and effect. In witness whereof,I have hereunto subscribed my name as Secretary,and affixed the corporate seal of the Corporation,this 215£day of January 2000. - - A< y E._.Y��+, Debra H.Paziora,Secretory II I THIS PO WER OF ATTORNEY MAY NOT BE USED TO EXECUTE ANY BOND WITH AN INCEPTION DATE AFTER June 28,2001 . I I yS-38449d INDIVIDUAL ACKNOWLEDGEMENT State of County of On this day of 20_. before me personally came and known to me to be person described in and who executed the foregoing instrument, and he thereupon duly acknowledged to me that he/she executed the same. Notary Public CORPORATE OR FIRM ACKNOWLEDGEMENT J � State of (�m G�/J12� ; 6 — County of Ce 'Oup this day of 0 i,U mw 20 O before me personally Came ( c tip j�7✓ L�e'�t , fir to me known,who being duly sworn, did depose anf jsay thatlic resided in L ,I Aq oq V/I- and that She is thee?_ta� ; k� C I O of f ' -fi/2-&D Ave Fvacf 754 C- the corporation described in and which executed the foregoing instrument;that he knew the seal of said corporation;that it was affixed by order of the Board of Directors of said corporation and that he signed his name thereto by like order � l NotarAPublic SURETY ACKNOWLEDGEMENT by�of ftrk R"PublieSaa9 My Co m imlea B#m Jim 30,2003 SMRYN J.POST State of Florida Comity of Hillsborough On this 21st day of 7anu 2000, before me personally appeared Evelyn D. Rogers who being by me duly sworn, did depose and say that she resided in Tampa, FL and that she is the Attorney-in-Fact of Indemnity Insurance Company of North America the Surety described in and which executed the foregoing instrument that she knew the seal of the said Surety;that the seal affixed to said instrument was Such surety seal;that it was affixed by order of the Board of Directors of said Surety,that she signed her name thereto by like order. i /a��✓VL � I.JL�t�i�I�%t�j SHAAON L. OAUC1-1¢ATV Notary Pull di U Notary Public, State of Florida My Comm. Expires Feb.26.2004 „„' No. CC896495 SPR' 1. •_ Corporate Member r all AMPORiS COUNCIL 4T[RNATONAL { CRy G LAG a u-CC9 AIRFOOO Thursday, February 22, 2001 Barry Griffith Palm Springs International Airport 3400 E. Tahquitz Canyon Way Palm Springs, CA 92263 Dear Barry: Enclosed please find the Performance Bond as required under our contract at the Palm Springs International Airport. Hope all is going well, it was nice to finally meet you in person in January. If you have any questions please do not hesitate to contact me at 703-417-0900. Sin erely Donald W. Dames, CPA Vice President of Finance/CFO Anton Airfood, Inc. Ronald Reagan National Airport, Washington, DC 20001 (703) 417-0900 Fax (703) 417-0889 Raleigh-Durham,NC Columbus,OR LaGuardia,NY Providence,RI Washington,DC JFK Terminal 9,NY JFK Terminal One,NY Norfolk,VA Cincinnati,OR Palm Springs,CA JFK Terminal 7,NY Minneapolis,MN PERFORMANCE BOND Bond No. 1038068 KNOW ALL MEN BY THESE PRESENTS: That we, Palm Sorings AAI, Inc., a wholly owned subsidiary of Anton Airfood, Inc. as Principal, and XL Specialty Insurance Company, of Illinois, as Surety, are held and firmly bound unto the City of Palm Springs (Owner), as Obligee, in the penal sum of Eighteen Thousand & NO/100 lawful money of the United States of America, for the Payment of which, well and truly to be made, we bind ourselves, our heirs, executors, Administrators,successors and assigns,jointly and severally,firmly by these presents. WHEREAS, said principal herein, has, by written agreement dated November 1, 1999 entered into an agreement with owner, which agreement is by reference made a part hereof, and is hereafter referred to as the agreement. NOW,THEREFORE, a condition of this obligation is such that, if the contractor shall Faithfully perform and comply with all provisions of the agreement,then this obligation shall be void; otherwise to remain in full force and effect. The total amount of the Surety's liability under this bond shall in no event exceed the penal sum hereof. No right of action or recovery shall accrue hereunder to or for the use of any person or entity other than the Owner named herein, its heirs, executors, administrators or successors. This bond may be terminated at any time by the Surety upon sending notice in writing to the Obligee with whom this bond is filed and to the Principal, and at expiration of the thirty-five (35) days from the mailing of said notice, this bond shall ipso facto terminate and the Surety shall there upon be relieved from any liability for any acts or omissions of the Principal subsequent to said date. This bond shall be effective the 21st day of January 20 01 and terminate on the 21st day of January 2002 unless said bond is extended by surety issuing a new bond. SIGNED,sealed and dated this 2nd day of January 20 01 Palm Springs AAI. Inc. a wholly owned Subsidiary oFAnt Airfood, Inc,. / j is Pali BAY: TITLE: t== ✓ ,; -s/� , " C "s= r XL SPECIALTY INSURANCE COMPANY _ W�1�/_,T -ill L) gbafq rlt Evelyn D. Rogdrs A�forney-in-Fact �//_SPECIALTY /� GMPNY — -- `1y1 t'B L CAP T L iRI the Nt,SI I h,zed and CN�,t t hi d KN'O'W ALf„7vlLiN 13Y't HE,fiE PR�iy�IiY`lS T1 t�CIAL7Y INStYt2ANCD CCj;MPA,NY�,'F co'71'�iatrnn Cl'tgffi' uYo by'yttlLio of of tlt'0 Slate of Illinois(-Company"or"Corporation"),does hereby nominate,constitute and appoint EVEl�mm D.-Rogers and Sharon Daugherty as employees of Surety Tekuieians,Inc., its true and lawful Atforney(s)7 fac[ mat c eaccutg�ttest seal-and deliver for and on its ballad"surety,and as its act and _ deed,where requued,any a!MlLbond"nderhklogs;j ecognizan_ces and w,i Lien obligations in ilmTatueerthcreoF he n_al sum of no one of which It7ttlecy event to exceed-$5,000,000.00 as required by Surety Obligees Y y 4 'hbtl�',il;�h}lauds 4ttd iPlder[aldjfl♦js wltbp du'y,aket, e,t9 b Lltp af�jresat Adturi ey('s�,n act sl) 'g ultCYh Lire sdYdCPmpany as piY'�',I�'ant]G ['ho samb eRtep4 as such hot7dh an(j trN)';lYel ta�Lings We?'G Shidd by th"e °res,dg 11 µL u10 Sbptblar�di tb�Gpnl�7apy ,ld seaJ,cY�,w,th r(s cPrPolgfe:ibpl l,�i[hc'S Ieday of1Dec nevi 1.5 grdpled' pd IS §y gdfrirl"S iti by thb µurhdllty o1'�k�te ri��olylne;lfpsQlu>:ItlM a:H,(;i11Mad by[I $amid of DY,tl9��tJrs�MILO Co 1pdfi'• on Iembey 19 ,lode, nd d d sn ne ad RESOLVED,That the=President;or-alit'=Vice Pre-sidcut of the Company or any person dasigriafed by any one=ofthenns hereby autho,ze-li-lo ereciite P-bwers L - Attorney-qualifying the attorney named in the oivenPooI WfAUDIII execute itubelialfof the Coimpauy;10sdg,undertaakings and all contracts ofsiI and that any'Secretary or any ssistant Secretary-of the Company be,and thareactr any o[Ahem hereby rs authorized to attest the execution ofamy such Power g t of the Cmnpan dMA6VR6MQWI O V ➢r thereto the Scal yr uWd tic„ ei�Pf k�ttl Cglri' an a 'XiC a, '''u'bh Powan p'F'll � Y aFspd'�r sucn owes fAL, yril a btl}lie]eaFtd ri hitl of sl ( R pr cFl rpldr es oY fab5tnile sh,ai,sh art d 11''M ''I, v P as Y P F npF S S F w g t' em of ab Coih(dY,}y�WiLllhitl,5pec�C;p,dry llo�Y�olt.:;Ylei tgking;,,r�ebnt at of nsdfysh(pF'GplW�u7(i(5ddttStivPly,( 4,i Vdh'i' Bonds executed under this Power of Attorney may be executed under facsimile signature and seal pnsuaut to the following Resolution adopted by the Board of -- Directors of the Company on August 7,==1=997.' "RESOLVED;That the slynnatmra of--S[ardj0y A Galanskr as President of this Corporation,and the seal 01 Htis Eiingorahon may be affixed or punted-on any and- all bonds,uifidelr kings�Mcognizaucas,or-other written-obligations thereof on hyrevooationof-anyPower of Attorney,or on anyedtificatic relating thacLorby t'R,ugca wan R4Itl v 9 nldipb tip mt t�l d g tlficatc Rr other.Poyrtte„ A n or, 7i'Inon .. gt h�Wacstifl7ya slgnotµta oYelecsiiiliYb seal Ishall laait aI)i.d a it bF RxtoYµey boner Col to rlLknt Y r co z es ce, authonzcd oft c I rI pea,)rtl be Itudi(' beanh Lllc 1 RhOP fire°,C Y 2000 'y CO,' IP,4„ �" (f>�P eCa�, �,TNSUYx�t srgrted by rl5 [Ij!W TNCSS"eWt(''reers this 3rd day of 7 IiAI Tj},'hYSLj1�A1��, - -��Y�tdts uaµsed r(�L$PECY'� R afcxed 9t7dP,I.A�IGsgn'tsllo tY�„ NCE COIN'�_ PRESIDENT Iv In yN N5a�a, 6, a A A� „AtLC" �YY- - - - - - SECRETARY STATE OF-ILLINOIS -_- ---=- - -- - _ - - -- - COUNTY N trtl day O COOK ss)anuatY 2n�00,g tYulorb pt81t )sOhally tlpnte„ ) R (i„ P, 'k P rut ) wlr, Y,� P Sp 1 1 q f the 5RI'' p Co at 9rdesd„ ed p aia h;rFlt ex�uuYled ib above rn46t pntl (g 4h9(h R4$yytYl)e s6lj Rf sal{ Copo'a tops th f thz seal aflrk`cd ld 0 caalpYesaid,;tnsGihµa L nsjsuplt I,' j, gaatp soFY' lidpy a aF0 tbd thcl q{o tug plder;jgnd ad htl ty;�f L17tl Boaid;;,bf t rnd�pr s o'P)ald Cu hpanyglarld lliat X; et11 6tited tl%Bald ipshrdpcn,�by hkoII, and OFFICIALSEAL _- JOETTE R CASTRO- - - - - NOTARY FUEL IC,STATE OF-ILLIN019- --- _-- - -- _ V COIdIAIS510N E PIRES 1211,,,jN3 II,,,, 8 i; 1,T ri LI teta�,OSeci etary of e LTY INSURANCE COMP b �c and foregoing�I full trueOand correct co of Power of Attorney issued b -sai CoreiM and that I have coo of same it Illinois,gri aleand lhaut_s a correct transcript _ CO C K B the XL SPECIALTY 'ANY a co oin y y that the a ov is a_ - copy y y, d p with the oiigu a , nsenpt lfieieFlom -- and of the whole-of-the-original and-that the said Power of Attorney is sill in full Force and effect and hasjtnt been revoked. - - _ -- IN WITNESS WHEREOF,I have hereunto set my hand-and,affixed the seal of said Company,et the City of SGIn uml?_utg thisp Znd day of January - 2001 - „ IIIA C�"li'F iARY II L, IU 1�711 IIA I I I'M..............OR I' A Z C I 10 it, I s , ' (4<INe \1 P ry u fill m u ' 'u 1NDEMN*INSURANCE COMPANY OF NOR$AMERICA ;j Date: January 24, 2001 FF� Obligee: City of Palm Springs 3200 Taquitz Canyon Way Patin Springs, CA 92263 Notice Of Cancellation Bond Type: Contract Bond Amount: $18,000.00 We hereby cancel our Bond#K06244609 issued to Palm Springs AAI, Inc. in accordance with the terns and conditions of the Bond or Policy. You will, therefore,please take notice that as of 12:01 a.m., Standard Time on the 30th day of March 2001, the said bond will terminate and cease to be in force, unless sooner terminated by you. INDEMNITY INSURANCE COMPANY OF NORTH AMERICA Surety By Tom Gower Attorney-in-fact Principal: Patin Springs AAI, Inc. Anton's Airfood Ronald Regan National Airport Washington, DC 20001 Producer: SURETY TEKNICIANS INC 4410 NORTH 56TH STREET TAMPA FL 33610 Processed: 1/24/2001 ACE USA Bond Services Virginia Beach Sales and Service Center P.O. Box 2005 tm Virginia Beach, VA 23450-2005 1 ACORD CERTIFICA OF LIABILITY INSU 'UCECSANR AW DATE(MM/DDNY) TOINC 09/13/00 PRODUCER THIS CERTIFICATE IS ED AS A MATTER OF IO INFORMATN ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE Rogers & Associates Insurance HOLDER.THIS CERTIFICATE DOES NOT AMEND,EXTEND OR 201 Alt 19 South ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. Palm Harbor FL 34683 _ COMPANIES AFFORDING COVERAGE COMPANY Phone Ne 727-786-4312 Fax No. 727-786-3684 T., � A Travelers Insurance Company INSURED �T� `Oy" PANY -. a i aICi��1%LlC COMPANY N L Anton Air£ood, Inc. ��%i, C � ' Ronald Reagan Nat-1 Airport ��I'�L'y-.`c''� ' - Washington DC 20001 COMPANY D COVERAGES THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED,NOTWITHSTANDING ANY REQUIREMENT,TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN,THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES.LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. CO TYPE OF INSURANCE POLICY NUMBER POLICY EFFECTIVE POLICY EXPIRATION LTR DATE(MM/DDM'J GATE(MM/ODIVY) LIMITS GENERAL LIABILITY GENERAL AGGREGATE $ 10000000 A X COMMERCIAL GENERAL LIABILITY 630312X1626 08/01/00 08/01/01 PRODUCTS-COMP/OP AGO $ 2000000 CLAIMS MADE 41OCCUR PERSONAL&ADV INJURY $ 1000000 OWNER'S&CONTRACTOR'S PRCT EACH OCCURRENCE $ 1000000 X Liquor Liability 630312X1626 08/01/00 08/01/01 FIRE DAMAGE(Anyone tire) $ 300000 2MM A /1MM OCC MED EXP An( yone person) $ 5000 AUTOMOBILE LIABILITY A X ANY AUTO 81066GK3424 08/01/00 08/01/01 COMBINED SINGLE LIMIT $ 1000000 ALL OWNED AUTOS SCHEDULED AUTOS BODILY INJURY $ (Per person) X HIRED AUTOS X NON-OWNED AUTOS BODILY INJURY $ (Per accident) PROPERTY DAMAGE $ GARAGE LIABILITY AUTO ONLY-EA ACCIDENT $ ANY AUTO OTHER THAN AUTO ONLY. EACH ACCIDENT $ AGGREGATE $ EXCESS LIABILITY EACH OCCURRENCE $ 10000,QQ0 A X UMBRELLAFORM CUP666K3412 08/01/00 08/01/01 AGGREGATE $ 10000000 OTHER THAN UMBRELLA FORM Ret Limit $ -0— O _ _ rMPLOYSCOMPENSATION AND - - - ------_--- WOSTATU— -OTH- EMPLOYERS'LIABILITY X TORV LIMITS ER ' EL EACH ACCIDENT $ 100000 A THE PROPRIETOR/ X INCL UB917K4610 01 01 PARTNERS/EXECUTIVE / /QO 01/01/01 EL DISEASE-POLICY LIMIT $ SOOOOO OFFICERS ARE EXCL EL DISEASE-EA EMPLOYEE $ 100000 OTHER A Boiler & Machinery BAJBMG557X7987TIL00 08/01/00 08/01/01 8290000 DESCRIPTION OF OPERATIONS/LOCATIONSNEHICLES/SPECIAL ITEMS Restaurants/Concessionaires CERTIFICATE HOLDER CANCELLATION CTYPSCA SHOULD ANY OF TH E ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF,THE ISSUING COMPANY WILL ENDEAVOR TO MAIL City of Palm Springs 30 DAYS WRITTEN NOTICE TO TH E CERTIFICATE HOLDER NAMED TO THE LEFT, Palm Springs Intl Airport Fax: 7 60-318-3815 BUT FAILURE TO MAIL SUCH NOTICE SHALL IMPOSE NO OBLIGATION OR LIABILITY 340OTahquirz Canyon Way OF ANY KIND UPON THE COMPANY,ITS AGENTS OR REPRESENTATIVES. Palm Springs CA 92263 AUTNOFk1ZqD REPRESENTATIVE ACQRq 25'-S(1195) " AGPRD CORPORATION 1988 i ACORD CERTIFICATE OF LIABILITY INSURANCE DATE(MMIOD rn 3/4/02 PRODUCER Jack Rice Insurance THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION 13080 South Belcher Road ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR Largo, FL 33773 ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. Agent: Leslie A. Saunders INSURERS AFFORDING COVERAGE msuRE° INSURER A Travelers Insurance Company Anton Airfood, Inc. P v �? v INSURER B: Transportation Insurance Compahy � "]`;�; Ronald Reagan Washington In I Airport INSURER C' Washington, DC 20001 INSURER INSURERE COVERAGES -THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED NOTWITHSTANDING ANY REQUIREMENT,TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN,THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS,EXCLUSIONS AND CONDITIONS OF SUCH POLICIES.AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS INSRi WPEOFINSURANCE - POLICYNUMBER -POLICY EFFECTIVE POLICYEXPIRATION - GEN LIMITSERAL LIABILITY EACH OCCURRENCE $ 1,000,000 IuIuIXICOMMERCIAL GENERAL LIABILITY FIRE DAMAGE(Any one fire) $ 300,000 A CLAIMS MADE LXOCCUR P630-782X7706-TIL-01 MED EXP(Anyone person) 5 5,000 08/01/01 OS/O1/O2 PERSONAL A ANY INJURY $ 1.000.000 GENERALAGGREGATE $ 10,000,000 GEN'L AGGREGATE LIMIT APPLIES PER 'PRGpUCTS-COMP/OP AGG 5 2,000,000 POLICY PRO- FC LOC AUTOMOBILE LIABILITY X ANYAUTO COMBINED SINGLE LIMIT (Ea neeltlerlN s 1,000,000 ALL OWNED AUTOS BODILY INJURY $ A SCHEDULED AUTOS (Per person) HIRED AUTOS P810102D5766-TIL-01 08/01/01 08/01/02 BODILY INJURY $ JNOR OWNEDAUTOS (Peraccltlenp PROPERTY DAMAGE S (Perasedenl( GARAGE LIABILITY AUTO ONLY-EA ACCIDENT § ANY AUTO OTHER THAN EA ACC $ AUTO ONLY AGO 5 EXCESS LIABILITY EACH OCCURRENCE $ 10 000 000 ,C OCCUR CLAIMS MADE_ _ _ _ AGGREGATE g_ A PSM-CUP-102D5766-TIL-01 08/O1/01 08/01/02 5 DEDUCTIBLE 5 RETENTION 5 $ WORKERS COMPENSATION AND WC STAN- OTH- EMPLOYERS'LIABILITY X TO L MITS EB— TH B 801122601715 01/01/02 01/01/03 EL EACH ACCIDENT S 100,000 E L DISEASE-EA EMPLOYE i$ 100,000 OTHER EL DISEASE-POLICY LIMIT 5 500000 DESCRIPTION OF OPERATIONSILOCATIONSIVEHICLESIEXCLUSIONS ADDED BY ENDORSEMENT/SPECIAL PROVISIONS (Restaurants/Concessionaires)Airport Food Concessionaire A4158 The Certificate holder is an additional insured under the terms of the policy but only with respect to liability arising out of the premises leased to the named insured. CERTIFICATE HOLDER X ADDITIONAL INSURED;INBDRER LETTER: A CANCELLATION City of Palm Springs SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF,THE ISSUING INSURER WILL ENDEAVOR TO MAIL 30 DAYS WRITTEN Office of the City Clerk,Attn: Patricia A. Sanders NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT,BUT FAILURE TO DO SO SHALL Fax: (760)318-3815 IMPOSE NO OBLIGATION OR LIABILITY OF ANY KIND UPON THE INSURER,ITS AGENTS OR 3400 Tahquitz Canyon Way REPRESENTATIVES.AUTHOR EPRESENTATIVE Palm Springs, CA 92262 Jam ACORD 25-5(7/97) ©ACORD CORPORATION 1988