HomeMy WebLinkAboutA9121 - GATE GOURMET, INC.City Clerk Form Updated 7/21/2021
CONTRACT ABSTRACT
Contract prepared by: ____________________________________________________
Submitted on: __________________ By: __________________________________
Note: _________________________________________________________________
Contract Compliance
Exhibits: Yes
Signatures: Yes
Insurance: Yes
Bonds: Yes
Contract Approvals
Council/ Community Redevelopment Agency Approval Date: __________________________
Agenda Item No./ Resolution No.: _______________________________________________
Agreement No: _____________________________________________________________
Contract Administration
Lead Department: ___________________________________________________________
Contract Administrator: _______________________________________________________
Contract
Company Name: __________________________________________________________
Company Contact: _________________________________________________________
Summary of Services: ______________________________________________________
Contract Price: ____________________________________________________________
Funding Source: ___________________________________________________________
Contract Term: ____________________________________________________________
Munis Contract Number: _____________________________________________________
GATE GOURMET, INC.
Jessica Manning, Senior Compliance Manager - (310) 895 0192
Provide catering services to Airlines
Variable - Approximate Rent: $5,626.86 yearly, plus 7% concession fee
Revenue Agreement
March 1, 2022 - February 28, 2023 with two one-year extension options
Customer No. 1789
Aviation Department
Harry Barrett - Victoria Carpenter
N/A
N/A
A9121
Aviation Department - Nadia P. Seery
5/18/22 Christina Brown
Insurance will expire 5/31/22. Staff has requested that the new certificates be sent immediately.
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GATE GOURMET, INC. A9121
NON-EXCLUSIVE OPERATING, CONCESSION AND LEASE AGREEMENT
AT PALM SPRINGS INTERNATIONAL AIRPORT
is made and entered into this 1ST day of March, 2022, by and
between the CITY OF PALM SPRINGS, a municipal corporat Lessor GATE
GOURMET, INC., a Corporation Lessee City and Lessee may herein be referred to
RECITALS
A. Lessee desires to lease use space at the Palm Springs International Airport
Non-Aeronautical Commercial Activity, which consists of
providing airline catering services, and park one or two catering vehicles on the
airfield apron.
B. City believes that the travelers usin would benefit from these
related services.
NOW THEREFORE, City and Lessee mutually agree as follows:
AGREEMENT
1.0 LEASE SUMMARY. Certain fundamental lease provisions are presented
in this Section and represent the agreement of the parties, subject to further definition
and elaboration in the respective referenced Sections and elsewhere in this Lease. In
the event of any conflict between any fundamental lease provision and the balance of
this Lease, the latter shall control. References to specific Sections are for convenience
only and designate some of the Sections where references to the particular fundamental
lease provisions may appear.
1.1 Demised Premises shall refer to that
certain property consisting of 207 square feet per catering vehicle for a total of 414
square feet for two catering vehicles, located at the Palm Springs International Airport,
on the airfield apron, and more particularly described i A attached hereto.
Lessee will use one or a maximum of two catering vehicles according to the time of
year, and will advise Lessor accordingly.
1.2 Lease Term. The term of this lease shall commence on March 1,
2022 and shall continue until February 28, 2023, with two one (1) year extension
options, subject to termination by Lessee or the City with thirty (30) days advance
written notice, or as otherwise provided in this Lease.
1.3 Extension Option. Lessee may have the right to renew the Lease
for two one (1) year terms which may be exercised by providing written intent to Lessor
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no less than thirty (30) days prior to the expiration of the Lease term or renewal period.
The rental payments for any extension shall be calculated as indicated in Section 1.4.
1.4 Lease Rental Payments. Rental payments are due on the first (1
st)
of each month of the agreement in the amount of $312.57 per catering vehicle, or a total
of $625.14 for two catering vehicles ($18.12 per square foot per annum). The monthly
rent shall be adjusted on March 1st of each year in an amount equal to the increase in
the consumer price index for All-Urban Consumers (CPI-U) in the Riverside-San
Bernardino-Ontario, CA area for the month of January preceding the adjustment date as
compared to the preceding base index, or applying a similar index if the CPI-U is not
published or available. City shall send written notice of the applicable rent increase of
each successive year along with documentation evidencing the calculation used to
arrive at the figure.
In addition, Lessee agrees to remit to Lessor a Concession Fee of seven percent (7%)
of gross revenues payable by the fifteenth (15th) of each month for the prior month.
1.5 Security Deposit. The Lessee shall deposit with the City a sum
equal to two (2) months of terminal space fees. If the Lessee is not in default for
continuous eighteen (18) months, City will waive the requirement for a security deposit.
Gate Gourmet, Inc. security deposit to be $1,250.28 in U.S. funds (one (1) month s rent
for two vehicles times two (2) months).
1.6 Use of Premises. Lessee shall use and occupy the Premises for
the purpose of providing services defined herein under Recitals Paragraph A.
1.7 Rental Remittance Address:
Rental payments shall be made out to the City of Palm Springs and mailed to:
Accounts Receivable
City of Palm Springs
3200 E. Tahquitz Canyon Way
Palm Springs, CA 92262
Concession monthly reports and concession payments made out to the City of Palm
Springs or Palm Springs International Airport shall be mailed to:
Accounts Receivable
Palm Springs International Airport
3400 E. Tahquitz Canyon Way Suite 1
Palm Springs, CA 92262
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2.0 TERM.
2.1 Term. The term of this Lease shall commence on the date
specified in Section 1.2 Lease Term ) and shall continue for the period specified
therein unless terminated as provided herein.
2.2 Time. Time is of the essence for this Lease.
2.3 Force Majeure. If either party shall be delayed or prevented from
the performance of any act required hereunder by reason of acts of God, strikes,
lockouts, labor troubles, inability to procure materials, restrictive governmental laws or
regulations or other cause without fault and beyond the control of the party obligated
(financial inability excepted), performance of such act shall be excused for the period of
the delay and the period for the performance of any such act shall be extended for a
period equivalent to the period of such delay, provided such party provides the other
party written notice of such event within ten (10) days of the commencement of the
prompt payment of any rental or other charge required of Lessee hereunder except as
may be expressly provided elsewhere in this Lease.
2.4 Termination by Lessor. Lessor shall have the right to terminate this
Lease by providing Lessee with at least thirty (30) days advance written notice. If
Lessor terminates this Lease as provided in this Section, Lessee hereby waives any
right to receive any other compensation from Lessor, including, but not limited to, the
value of Lessee asehold interest, loss of goodwill and relocation benefits, inverse
condemnation or the taking of property and Lessor shall have no obligation to pay
Lessee therefor.
2.5 Holding Over. Any holding over with the consent of Lessor, express
or implied, shall be construed to be a tenancy from month-to-month, cancelable upon
ice, and at a monthly rental equal to one hundred and fifty
percent (150%) of the monthly rental in effect at the expiration of the contract services
agreement.
2.6 Termination by Lessee. Lessee shall have the right to terminate
this Lease by providing Lessor with at least thirty (30) days advance written notice. If
Lessee terminates this Lease as provided in this Section, Lessee hereby waives any
right to receive any other compensation from Lessor, including, but not limited to, the
unamortized value of Lessee rovements, Lessee
loss of goodwill and relocation benefits, inverse condemnation or the taking of property
and Lessor shall have no obligation to pay Lessee therefor.
3.0 RENTAL.
3.1 Monthly Rental. Lessee shall pay to Lessor, during the term of this
Lease from and after the Commencement Date,
the Premises the sum specified in Section 1.4 hereof, which sum shall be paid in
advance on the first day of each calendar month. In the event the Commencement
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Date does not occur on the first day of a calendar month, the Lessee shall pay the
rental for the fractional month on the Commencement Date on a per diem basis,
calculated on a thirty (30) day month. All rental to be paid by Lessee to Lessor shall be
in lawful money of the United States of America and shall be paid without deduction or
offset, prior notice or demand, at the address designated in Section 1.7 hereof.
3.2 Additional Rental. For the purposes of this Lease, all monetary
obligations of Lessee under this Lease, including but not limited to, insurance
premiums, property taxes, maintenance expenses, late charges and utility costs shall be
deemed to be additional rental.
3.3 Real Property Taxes. Lessee shall pay, at the election of Lessor,
either directly to the taxing authority or to Lessor, annual real estate taxes and
assessments levied upon the Premises (including any possessory interest taxes), as
well as taxes of every kind and nature levied and assessed in lieu of, in substitution for,
or in addition to, existing real property taxes. Such amount shall be paid on the date
that is twenty (20) days prior to the delinquent date or, if Lessor receives the tax bill, ten
(10) days after receipt of a copy of the tax bill from Lessor, whichever is later. Even
though the term of this Lease has expired and Lessee has vacated the Premises, when
the final determination is made of Lessee s share of such taxes and assessments,
Lessee shall immediately pay to Lessor the amount of any additional sum owed.
3.4 Personal Property Taxes. Lessee shall pay, prior to delinquency all
taxes assessed against and levied upon fixtures, furnishings, equipment and all other
personal property of Lessee contained in the Premises, and when possible Lessee shall
cause said fixtures, furnishings, equipment and other personal property to be assessed
and billed separately from the real property of Lessor.
3.5 Utilities. All cost of water, gas, heat, electricity, pest control and
sewer services used in, upon, or about the Premises of the Terminal described in
Exhibit A shall be paid by the City. Lessee shall pay all telephone, internet, cable
television, satellite, broadband and other telecommunications services. Lessee shall be
responsible for all utilities and waste services At no time shall the City be responsible
for waste management or removal.
3.6 Late Payment. Lessee hereby acknowledges that late payment by
Lessee to Lessor of rental or other sums due hereunder will cause Lessor to incur costs
not contemplated by this Lease. Such costs include, but are not limited to, processing
and accounting charges. Accordingly, any payment of any sum to be paid by Lessee
not paid within ten (10) days of its due date, shall be subject to a five percent (5%) late
charge. Lessor and Lessee agree that this late charge represents a reasonable
estimate of such costs and expenses and is fair compensation to Lessor for its loss
suffered by such late payment by Lessee. Sixty (60) days before the anniversary date
each year the City shall notify the Lessee of any outstanding delinquency, which must
be cured prior to the anniversary date or the City may exercise its right of termination
under section 2.5 and terminate the lease.
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3.7 Interest. Until and unless Lessor commences an action to recover
moneys owed, 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 reference 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 non-
usurious rate permitted by law in which case interest shall be at the maximum non-
usurious rate allowed by law at the time the sum became due. If Lessor commences an
action to recover moneys owed then any sum to be paid pursuant to the terms of this
Lease not paid when due shall bear interest equal to ten percent (10%).
4.0 USE OF THE PREMISES.
4.1 Permitted Use. The Lessor hereby leases to Lessee and Lessee
leases from Lessor the Premises with appurtenances as defined herein, for the purpose
of conducting thereon only the use specified in Recitals Paragraph A of this Lease
and for no other use. No signs posters or similar devices shall be erected, displayed,
or maintained by the Lessee in view of the general public without advance written notice
of the Airport Executive Director.
4.2 Prohibited Use. The operations of the Lessee shall be conducted
in an orderly and proper manner and so as not to annoy, disturb, or be offensive to
others at the Airport, in any way obstruct or interfere with the rights of other tenants or
occupants.
4.3 Compliance with Laws. Lessee shall, at his own cost and expense,
comply with all of the requirements of all municipal, state and federal authorities now in
force or which may hereafter be in force pertaining to the use of the Premises, and shall
faithfully observe in said use all municipal ordinances, including, but not limited to, the
General Plan and zoning ordinances, state and federal statutes, or other governmental
regulations now in force or which shall hereinafter be in force. Lessee
shall constitute an incurable default under this Lease. The judgment of any court of
competent jurisdiction, or the admission of Lessee in any action or proceeding against
Lessee, whether Lessor is a party or not, that Lessee has violated any such order or
statute in said use, shall be conclusive of that fact as between the Lessor and Lessee.
Lessee shall not engage in any activity on or about the Premises that violates any
Environmental Law, and shall promptly, at Lessees 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 Lessee. The term
ate or local law, statute, ordinance or
regulation pertaining to health, industrial hygiene or the environmental conditions on,
under or about the Demised Premises, including, without limitation, (i) the
Comprehensive Environmental Response, Compensation and Liability Act of 1980
(ce Conservation and
Re ions 6901 et seq.; (iii) California Health
and Safety Code Sections 25100 et seq.; (iv) the Safe Drinking Water and Toxic
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Enforcement Act of 1986, California Health and Safety Code Section 25249.5 et seq.;
(v) California Health and Safety Code Section 25359.7; (vi) California Health and Safety
Code Section 25915; (vii) the Federal Water Pollution Control Act, 33 U.S.C. Sections
1317 et seq.; (viii) California Water Code Section 1300 et seq.; and (ix) California Civil
Code Section 3479 et seq., as such laws are amended and the regulations and
administrative codes applicable ther ludes,
without limitation, any material or substance which is (i) defined or listed as a
wa tive hazardous w
rdo ndition 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 to construe the terms
Lessee 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. Lessee shall
provide prompt written notice to Lessor of the existence of Hazardous Substances on
the premises and all notices of violation of the Environmental Laws received by Lessee.
4.4 Operations for the benefit of Public. Lessee agrees to operate the
Demised Premises for the use and benefit of the Public, to make available all Lessee
facilities to the public, without discrimination on the grounds of sex, race, color, or
national origin. Nothing herein contained shall be construed to grant or authorize the
granting of an exclusive right within the meaning of Section 308 of the Federal Aviation
Act of 1958, as amended.
4.5 Public Facilities, Ingress, Egress and Quiet Enjoyment. City agrees
that Lessee, upon payment of the rental hereunder and performing the covenants of the
Lease, may quietly have, hold and enjoy the Demised Premises during the term of the
Lease, and that Lessee shall have the non-exclusive right to use, in common with
others, the public at the Airport and Lessee shall have a reasonable right of ingress and
egress from the Demised Premises and the public facilities for its employees, visitors
and customers.
4.6 Hours of Business. Subject to the provisions of Section 7.0 hereof,
Lessee shall continuously during the entire term hereof conduct and carry on Lessee s
business in the Premises and shall keep the Premises open for business and cause
Lessee ring the Lessee s usual business hours of
each and every business day.
4.7 Rules and Regulations. Lessee shall faithfully observe and comply
with the rules and regulations contained in Title 16 of the City of Palm Springs Municipal
Code which can be found on the City of Palm Springs website at Title 16 PALM
SPRINGS INTERNATIONAL AIRPORT (qcode.us). Any amendment or modification of
the Rules and Regulations shall be binding upon the Lessee upon delivery of a copy of
such amendment or modification to Lessee. Lessor shall not be responsible to Lessee
for the nonperformance of any said rules and regulations by any other Lessees or
occupants. The Rules and Regulations shall apply and be enforced as to all Lessees in
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the Premises on a uniform basis.
5.0 ALTERATIONS AND REPAIRS.
5.1 Alterations and Fixtures. Lessee shall not make, or suffer to be
made, any alterations to the Premises, or any part thereof, without the prior written
consent of Lessor. Any alterations to the Premises, except movable furniture and trade
fixtures, shall become at once a part of the realty and shall at the expiration or earlier
termination of this Lease belong to Lessor. Lessee shall not in any event make any
changes to the exterior of the Premises. 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
Lessor. Any damage occasioned by such removal shall be repaired at Lessee's
expense so that the Premises can be surrendered in a good, clean, and sanitary
condition as required by Section 5.2 hereof. Any and all fixtures and appurtenances
installed by Lessee shall conform with the requirements of all municipal, state, federal,
and governmental authorities, including requirements pertaining to the health, welfare,
or safety of employees or the public. Upon completion of construction of the alterations,
Lessee shall submit to Lessor evidence satisfactory to Lessor of the cost of said
alterations ("Improvement Costs").
5.2 Maintenance and Repair. Lessee shall, subject to Lessor's
obligations hereinafter provided, at all times during the term hereof, and at Lessee's
expense, keep, maintain and repair the Premises, and other improvements within the
Premises in good and sanitary order, condition, and repair (except as hereinafter
provided). Lessor should be notified immediately of any necessary maintenance and
repair of any store front, doors, window casements, walls, glazing, heating and air
conditioning system, plumbing, pipes, electrical wiring and conduits. Lessee hereby
waives all right to make repairs at the expense of Lessor, and Lessee hereby waives all
rights provided for by the Civil Code of the State of California to make said repairs. By
entering into the Premises, Lessee shall be deemed to have accepted the Premises as
being in good and sanitary order, condition and repair. Lessee agrees on the last day of
said term, or sooner termination of this Lease, to surrender the Premises with
appurtenances, in the same condition as when received and in a good, clean and
sanitary condition, reasonable use and wear thereof and damage by fire, act of God or
by the elements excepted. Lessee shall periodically sweep and clean the sidewalks
adjacent to the Premises, as needed. Upon Lessee's possession of the Premises,
Lessee shall be deemed to have accepted the Premises as being in good condition and
repair.
Lessee agrees that it will not, nor will it authorize any person to, go onto
the roof of the building of which the Premises are a part without the prior written consent
of Lessor. Said consent will be given only upon Lessor's satisfaction that any repairs
necessitated as a result of Lessee's action will be made by Lessee at Lessee's expense
and will be made in such a manner so as not to invalidate any guarantee relating to said
roof.
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5.3 Free from Liens. Lessee shall keep the Premises free from any
liens arising out of any work performed, material furnished, or obligation incurred by
Lessee or alleged to have been incurred by Lessee.
6.0 INSURANCE AND INDEMNIFICATION.
6.1 Insurance. Prior to its ability to access the Demised Premises,
Lessee will provide City with proof of insurance, at Lessee e cost and expense, to
remain in full force and effect during the entire term of this lease. The following policies
of insurance shall be maintained:
6.2 Insurance Provided by Lessee. Comprehensive or Commercial
Form General Liability Insurance shall include the following minimal limits:
a. General Liability including operations, products and completed
operations $1,000,000 each occurrence for bodily injury, personal injury
and property damage/$2,000,000 aggregate.
b. Automobile $1,000,000 each accident; $1,000,000 uninsured
motorist.
c. Workers Compensation, $1,000,000 each accident; $1,000,000
each employee for disease.
d. Excess Liability/Umbrella Form $2,000,000.
6.3 An Additional Insured Endorsement is required for the General
Liability Insurance policy naming the City, its officers, employees, and agents as
additional insured on the policy.
6.4 The policies shall provide for a thirty (30) day notice to the City prior
to termination, cancellation, or change.
6.5 The general liability and excess liability/umbrella policies must be
endorsed to provide that each policy shall apply on a primary and noncontributing basis
in relation to any insurance or self-insurance, primary or excess, maintained by or
available to the City or its officials, employees, and agents.
6.6 The Workers Compensation policy shall contain the insurer's
waiver of subrogation (or waiver of right of recovery) in favor of City, its elected officials,
officers, employees, and agents.
6.7 If, in the City's opinion, the minimum limits of the insurance
herein required have become inadequate during the period of this Agreement, the
Concessionaire shall increase such minimum limits by reasonable amounts on request
of the City provided that said coverage is available at standard commercial rates.
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6.8 General Provisions Applicable to Insurance. All of the
policies of insurance required to be procured by Lessee pursuant to this Section 6.2 shall
be primary insurance and shall name the Lessor, its officers, employees and agents as
additional insureds. The insurers shall waive all rights of contribution they may have
against the Lessor, 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 the
Lessor. Prior to the Commencement Date or such earlier date as Lessee ant takes
possession of the Premises for any purpose; and at least thirty (30) days prior to the
expiration of any insurance policy, Lessee shall provide Lessor with certificates of
insurance or appropriate insurance binders evidencing the above insurance coverages
written by insurance companies acceptable to Lessor, licensed to do business in the state
where the Premises are located and rated A: VII or better by Bests Insurance Guide. In
the event the Risk Manager of Lessor ("Risk Manager") determines that (i) the Lessee's
activities in the Premises creates an increased or decreased risk of loss to the Lessor, (ii)
greater insurance coverage is required due to the passage of time, or (iii) changes in the
industry require different coverages be obtained, Lessee agrees that the minimum limits
of any insurance policy required to be obtained by Lessee may be changed accordingly
upon receipt of written notice from the Risk Manager, provided that Lessee shall have the
right to appeal a determination of increased coverage by the Risk Manager to the City
Council of Lessor within ten (10) days of receipt of notice from the Risk Manager. Lessor
and Lessee hereby waive any rights each may have against the other on account of any
loss or damage occasioned by property damage to the Premises, its contents, or Lessees
trade fixtures, equipment personal property or inventory arising from any risk generally
covered by insurance against the perils of fire, extended coverage, vandalism, malicious
mischief, theft, sprinkler damage, and earthquake sprinkler leakage. Each of the parties,
on behalf of their respective insurance companies insuring such property of either Lessor
or Lessee against such loss, waives any right of subrogation that it may have against the
other. The foregoing waivers of subrogation shall be operative only so long as available
in California and provided further that no policy is invalidated thereby.
6.9 Indemnification of Lessor. Lessee, as a material part of the
consideration to be rendered to Lessor under this Lease, hereby waives all claims against
Lessor for damage to equipment or other personal property, trade fixtures, leasehold
improvements, goods, wares, inventory and merchandise, in, upon or about the Premises
and for injuries to persons in or about the Premises, from any cause arising at any time.
Lessee agrees to indemnify the Lessor, its elected officials, officers, agents, public
officials, volunteers, 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, errors, omissions or liabilities, (herein "claims or
liabilities") that may be asserted or claimed by any person, firm or entity arising out of or
in connection with the performance of the work, operations or activities of Lessee, its
agents, employees, subcontractors, or invitees, provided for herein, or arising from the
use of the Premises or the common area by Lessee or its employees and customers, or
arising from the failure of Lessee to keep the Premises in good condition, as herein
provided, or arising from the negligent acts or omissions of Lessee hereunder, or arising
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from Lessee'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 the Lessor, its officers, agents, public officials, volunteers, or employees but
excluding such claims or liabilities arising from the sole negligence or willful misconduct of
the Lessor, its officers, agents, public officials, volunteers, or employees, who are directly
responsible to the Lessor, and in connection therewith:
(a) Lessee will defend any action or actions filed in connection with any of said
claims or liabilities and will pay all costs and expenses, including legal costs and
attorneys' fees incurred in connection therewith;
(b) Lessee will promptly pay any judgment rendered against the Lessor, its
officers, agents, public officials, volunteers, or employees for any such claims or liabilities
arising out of or in connection with the negligent performance of or failure to perform such
work, operations or activities of Lessee hereunder, and Lessee agrees to save and hold
the Lessor, its officers, agents, public officials, volunteers, and employees harmless
therefrom; and
(c) In the event the Lessor, its elected officials, officers, agents. public officials,
volunteers, or employees is made a party to any action or proceeding filed or prosecuted
against Lessee for such damages or other claims arising out of or in connection with the
negligent performance of or failure to perform the work, operation or activities of Lessee
hereunder, Lessee agrees to pay to the Lessor, its officers, agents, public officials,
volunteers, or employees, any and all costs and expenses incurred by the Lessor, its
officers, agents. public officials, volunteers, or employees in such action or proceeding,
including but not limited to, legal costs and attorneys' fees.
7.0 ABANDONMENT AND SURRENDER.
7.1 Abandonment. Lessee shall not vacate or abandon the Premises at
any time during the term of this Lease. If Lessee shall abandon, vacate or surrender
the Premises or be dispossessed by process of law, or otherwise, any personal property
belonging to Lessee and left on the Premises shall be deemed to be abandoned, at the
option of Lessor, except such property as may be mortgaged to Lessor.
7.2 Surrender of Lease. The voluntary or other surrender of this Lease
by Lessee, or a mutual cancellation, shall not work a merger, and shall, at the option of
Lessor, terminate all or any existing subleases or sub-tenancies, or may, at the option of
Lessor, operate as an assignment to it of any or all of such subleases or sub-tenancies.
8.0 DAMAGE AND DESTRUCTION OF PREMISES.
In the event of (a) partial or total destruction of the Premises during the term of this
Lease which requires repairs to the Premises, or (b) the Premises being declared
unsafe or unfit for occupancy by any authorized public authority for any reason other
than Lessee's act, use or occupation, which declaration requires repairs to the
Premises, Lessor shall forthwith make said repairs provided Lessee gives to Lessor
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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 Lessee shall be entitled to a proportionate reduction of Monthly Rental while
such repairs are being made, such proportionate reduction to be based upon the extent
to which the making of such repairs shall interfere with the business carried on by
Lessee in the Premises. However, if during the last two (2) years of the term of this
Lease the Premises are damaged as 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), Lessor may within thirty (30) days following the date such damage occurs,
terminate this Lease by written notice to Lessee. If Lessor, however, elects to make said
repairs, and provided Lessor uses due diligence in making said repairs, this Lease shall
continue in full force and effect, and the Monthly Rental shall be proportionately reduced
while such repairs are being made as hereinabove provided. Nothing in the foregoing to
the contrary withstanding, if the Premises or said building is damaged or destroyed at
any time during the term hereof to an extent of more than twenty-five percent (25%) of
the then replacement cost (excluding foundations) as a result of a casualty not insured
against, Lessor may within thirty (30) days following the date of such destruction
terminate this Lease upon written notice to Lessee. If Lessor does not elect to terminate
because of said uninsured casualty, Lessor shall promptly rebuild and repair the
Premises and/or the building and the Monthly Rental shall be proportionately reduced
while such repairs are being made as hereinabove provided. If Lessor elects to
terminate this Lease, all rentals shall be prorated between Lessor and Lessee 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 Lessor is obligated to repair or may elect to repair
under the terms of this Section, Lessee waives any statutory right it may have to cancel
this Lease as a result of such destruction.
9.0 SUBLETTING. Subletting or assignment shall not be allowed.
10.0 DEFAULT.
10.1 Default by Lessee. The occurrence of any one (1) or more of the
following events shall constitute a default and breach of this Lease by Lessee: (a) the
failure to pay any rental or other payment required hereunder to or on behalf of Lessor
more than three (3) days after written notice from Lessor to Lessee that Lessee has
failed to pay rent when due; (b) the failure to perform any of Lessee's agreements or
obligations hereunder (exclusive of a default in the payment of money) where such
default shall continue for a period of thirty (30) days after written notice thereof from
Lessor to Lessee which notice shall be deemed to be the statutory notice so long as
such notice complies with statutory requirements; (c) the vacation or abandonment of
the Premises by Lessee; (d) the making by Lessee of a general assignment for the
benefit of creditors; (e) the filing by Lessee of a voluntary petition in bankruptcy or the
adjudication of Lessee bankruptcy; (f) the appointment of a receiver to take possession
of all or substantially all the assets of Lessee located at the Premises or of Lessee's
leasehold interest in the Premises; (g) the filing by any creditor of Lessee of an
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involuntary petition in bankruptcy which is not dismissed within sixty (60) days after
filing; or (h) the attachment, execution or other judicial seizure of all or substantially all
of the assets of Lessee or Lessee's leasehold where such an attachment, execution or
seizure is not discharged within sixty (60) days. Any repetitive failure by Lessee to
perform its agreements and obligations hereunder, though intermittently cured, shall be
deemed an incurable default. Two (2) breaches of the same covenant within a sixty (60)
day period, a notice having been given pursuant to (a) or (b) above for the first breach,
or three (3) of the same or different breaches at any time during the term of this Lease
for which notices pursuant to (a) or (b) above were given for the first two (2) breaches
shall conclusively be deemed to be an incurable repetitive failure by Lessee to perform
its obligations hereunder.
In the event of any such default or breach by Lessee, Lessor may at any
time thereafter, without further notice or demand, rectify or cure such default, and any
sums expended by Lessor for such purposes shall be paid by Lessee to Lessor upon
demand and as additional rental hereunder. In the event of any such default or breach
by Lessee, Lessor shall have the right (i) to continue the lease in full force and effect
and enforce all of its rights and remedies under this Lease, including the right to recover
the rental as it becomes due under this Lease, or (ii) Lessor shall have the right at any
time thereafter to elect to terminate the Lease and Lessee's right to possession
thereunder.
10.2 No Waiver. Acceptance of rental hereunder shall not be deemed a
waiver of any default or a waiver of any of Lessor's remedies.
10.3 Lessor's Default. Lessor shall not be in default unless Lessor fails
to perform obligations required of Lessor within a reasonable time, but in no event later
than thirty (30) days after written notice by Lessee to Lessor and to the holder of any
first mortgage or deed of trust covering the Premises whose name and address shall
have been furnished to Lessee in writing, specifying wherein Lessor has failed to
perform such obligation; provided, however, that if the nature of Lessor's obligation is
such that more than thirty (30) days are required for performance then Lessor shall not
be deemed in default if Lessor commences performance within a thirty (30) day period
and thereafter diligently prosecutes the same to completion. In no event shall Lessee
have the right to terminate this Lease as a result of Lessor's default and Lessee's
remedies shall be limited to damages and/or an injunction.
11.0 CONDEMNATION.
In the event a condemnation or a transfer in lieu thereof results in a taking of any portion
of the Premises, Lessor may, or in the event a condemnation or a transfer in lieu thereof
results in a taking of twenty-five percent (25%) or more of the Premises, Lessee may,
upon written notice given within thirty (30) days after such taking or transfer in lieu
thereof, terminate this Lease. Lessee shall not be entitled to share in any portion of the
award and Lessee hereby expressly waives any right or claim to any part thereof.
Lessee shall, however, have the right to claim and recover, only from the condemning
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authority (but not from Lessor), any amounts necessary to reimburse Lessee for the
cost of removing stock and fixtures. If this Lease is not terminated as above provided,
Lessor shall use a portion of the condemnation award to restore the Premises.
12.0 MISCELLANEOUS.
12.1 Reservation of Right to Modify Property. Lessor hereby reserves
the right (but not the obligation) to renovate, modernize, rehabilitate, expand, reduce,
reconfigure, enclose and/or otherwise alter all or any portion of the Premises
(collectively "Modifications"), in such manner and at such time or times, throughout the
term of this Lease, as Lessor may, in its sole and absolute discretion, deem to be in the
best interests of the Property. Such Modifications may include, without limitation, the
right to construct new buildings on the Property for additional uses, to remove, renovate,
repair, add to, modernize or otherwise alter the building in which the Premises are
situated as well as other buildings, facilities, structures, malls, walkways, landscaping,
parking and common areas or other areas within the Property. In connection with any
and all such Modifications, Lessor may enter the Premises to the extent reasonably
required by Lessor to pursue and complete such Modifications. In addition, Lessor may
temporarily close portions of the parking and common areas and cause temporary
obstructions in connection with any Modifications. Lessee agrees that under no
circumstances shall the Modifications as to any portion of the Property or the
construction activity that takes place in the course of making the Modifications, or any
aspect thereof, including Lessor's entry into the Premises, constitute an eviction or
partial eviction of Lessee or a breach of Lessee's right to quiet enjoyment or of any
other provision of this Lease, nor entitle Lessee to damages, injunctive relief or other
equitable relief, nor entitle Lessee to any abatement or reduction in the Monthly Rental,
additional rental or other charges or sums due under this Lease; provided Lessor uses
reasonable efforts to mitigate any adverse effects on Lessee caused by the
Modifications.
12.2 Entry and Inspection. Lessee shall permit Lessor and his agents to
enter into and upon the Premises at all reasonable times for the purpose of inspecting
the same or for the purpose of maintaining the Premises as required by the terms of this
Lease or for the purpose of posting notices of non-liability for alterations, additions or
repairs.
12.3 Estoppel Certificate. If, as a result of a proposed sale, assignment,
or hypothecation of the Premises or the land thereunder by Lessor, or at any other time,
an estoppel certificate shall be requested of Lessee, Lessee agrees, within ten (10)
days thereafter, to deliver such estoppel certificate addressed to any existing or
proposed mortgagee or proposed purchaser, and to the Lessor. Lessee shall be liable
for any loss or liability resulting from any incorrect information certified, and such
mortgagee and purchaser shall have the right to rely on such estoppel certificate and
financial statement.
12.4 Jurisdiction and Venue. The parties agree that the State of
California is the proper jurisdiction for litigation of any matters relating to this Lease, and
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service mailed to the address of Lessees set forth herein shall be adequate service for
such litigation. The parties further agree that Riverside County, California is the proper
place for venue as to any such litigation and Lessee agrees to submit to the personal
jurisdiction of such court in the event of such litigation.
12.5 Partial Invalidity. If any term, covenant, condition or provision of this
Lease is held by a court of competent jurisdiction to be invalid, void, or unenforceable,
the remainder of the provisions hereof shall remain in full force and effect and shall in
no way be affected, impaired or invalidated thereof.
12.6 Successors in Interest. The covenants herein contained shall,
subject to the provisions as to assignment, apply to and bind the heirs, successors,
executors, administrators and assigns of all the parties, and all of the parties shall be
jointly and severally liable hereunder.
12.7 No Oral Agreements. This (i) Lease covers in full each and every
agreement of every kind or nature whatsoever between the parties concerning this
Lease, (ii) supersedes any and all previous obligations, agreements and
understandings, if any, between the parties, oral or written, and (iii) merges all
preliminary negotiations and agreements of whatsoever kind or nature herein. Lessee
acknowledges that no representations or warranties of any kind or nature not
specifically set forth herein have been made by Lessor or its agents or representatives.
12.8 Authority. In the event that Lessee is a corporation or a partnership,
each individual executing this Lease on behalf of said corporation or said partnership,
as the case may be, represents and warrants that he or she is duly authorized to
execute and deliver this Lease on behalf of said corporation or partnership, in
accordance with a duly adopted resolution of the Board of Directors, if a corporation, or
in accordance with the Partnership Agreement, if a partnership, and that this Lease is
binding upon said corporation or partnership in accordance with its terms. Lessee
represents and warrants to Lessor that the entering into this Lease does not violate any
provisions of any other agreement to which Lessee is bound.
12.9 Relationship of Parties. The relationship of the parties is that of
Lessor and Lessee, and it is expressly understood and agreed that Lessor does not in
any way or for any purpose become a partner of Lessee in the conduct of Lessee's
business or otherwise, or a joint venture with Lessee, and that the provisions of this
Lease and the agreements relating to rent payable hereunder are included solely for the
purpose of providing a method whereby rental payments are to be measured and
ascertained.
12.10 Nondiscrimination. Lessee 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 Demised 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,
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physical or mental disability, or medical con
excluded from participation in, denied the benefits of, or be otherwise subjected to
discrimination in the use of said facilities; (2) it shall ensure that applicants are
employed, and that employees are treated during their employment, without regard to
any prohibited basis; (3) as a condition ter this
Agreement, and in executing this Agreement, Lessee certifies that its actions and
omissions hereunder shall not incorporate any discrimination arising from or related to
any prohibited basis in any Lessee 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, to the extent applicable to Lessee, it
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) it 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,
including applicable Regulations that may be amended and are hereby incorporated
and attached as APPENDIX A E .
12.11 Notices. Wherever in this Lease it shall be required or permitted
that notice and demand be given or served by either party to this Lease to or on the
other, such notice or demand shall be given or served in writing and shall not be
deemed to have been duly given or served unless in writing, and personally served or
forwarded by certified mail, postage prepaid, addressed, if to Lessor, as specified in this
Section. Either party may change the address set forth herein by written notice by
certified mail to the other. Any notice or demand given by certified mail shall be effective
one (1) day subsequent to mailing.
To City: Palm Springs International Airport
3400 E. Tahquitz Canyon Way, Suite 1
Palm Springs, CA 92262
AirportInformation@palmspringsca.gov
To Lessee: Gate Gourmet, Inc.
11955 Democratic Drive, 17 th Floor
Reston, VA 20190
12.12 Waiver. No delay or omission in the exercise of any right or remedy
by a non-defaulting party shall impair such right or remedy or be construed as a waiver.
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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 be in writing and shall not be a waiver of any other default concerning the
same or any other provision of this Lease.
12.13 Exhibits and Addenda. The Exhibits and Addenda attached to this
Lease are made a part hereof as if fully set forth herein. In the event of a conflict
between the terms and provisions of Addenda and the terms and provisions of this
Lease, the terms and provisions of the Addenda shall prevail.
12.14 Attorney . In the event that any action or proceeding is
commenced to regarding this Lease, the prevailing party in such action or proceeding,
in addition to all other relief to which it may be entitled, shall be entitled to recover from
the other party the prevailing party's costs of suit and reasonable attorneys' fees. The
prevailing party shall be as determined by the court in accordance with Code of Civil
Procedure Section 1032. The attorney's costs and expert fees recoverable pursuant to
this Section include, without limitation, attorney's costs and expert fees incurred on
appeal and those incurred in enforcing any judgment rendered. Attorney's costs and
fees may be recovered as an element of costs in the underlying action or proceeding or
in a separate recovery action.
(SIGNATURE PAGE FOLLOWS)
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SIGNATURE PAGE FOR NON-EXCLUSIVE OPERATING, CONCESSION AND
LEASE AGREEMENT No. A 9121 AT PALM SPRINGS INTERNATIONAL AIRPORT
BY AND BETWEEN THE CITY OF PALM SPRINGS AND GATE GOURMET, INC.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the
dates stated below.
LESSEE:
By: _________________________________By: ________________________________________
Signature Signature
Name: Josh Janow Name: Jens Kuhlen
Title: President Title: Chief Financial Officer
Date:Date:
Corporations require two signatures. One signature must be from Chairman of
Board, President, or any Vice President. The second signature must be from the
Secretary, Assistant Secretary, Treasurer, Assistant Treasurer, or Chief Financial
Officer.
CITY OF PALM SPRINGS:
APPROVED BY CITY COUNCIL:
Date: N/A Item No. N/A
APPROVED AS TO FORM: ATTEST:
By: ___________________________ By:________________________
Jeffrey S. Ballinger, Monique Lomeli,
City Attorney Interim City Clerk
APPROVED:
By: ____________________________
Justin Clifton,
City Manager
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EXHIBIT "A"
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55575.38160\33541079.1
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APPENDIX A
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55575.38160\33541079.1
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APPENDIX E
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A
(202) 263-7600
1,000,000
05/31/2022
20,000
USL00066521
CLE-006764734-04
2,000,000
3,000,000
WC0113403-07 (MA)
X
16535
3,000,000
Reston, VA 20190
N
X05/31/2021
8
05/31/2022
40,000
5,000
05/31/2022
BAP 0113402-06
C
1,000,000
1,000,000
40142
Zurich American Insurance Company
2,000,000
X
X
04/27/2022
05/31/2021
The City of Palm Springs, it’s officials, employees and agents are included as additional insured lessor (except workers’ compensation) where required by written contract. This insurance is primary and non-
contributory over any existing insurance and limited to liability arising out of the operations of the named insured subject to policy terms and conditions. Waiver of subrogation is applicable where required by written
X
05/31/2021
Palm Springs, CA 92262
City of Palm Springs
10,000
contract and subject to policy terms and conditions.
A
American Zurich Insurance Company
CN101981941-6/1-GAWX-21-22
10,000
05/31/2022
2,000,000
USL00066621U
B
1,000,000
35300
100,000
2,000,000
WC 0113400-07 (AOS)
1050 CONNECTICUT AVENUE, SUITE 700
MARSH USA INC.
X
WASHINGTON, DC 20036-5386
Gate Gourmet, Inc.
Gate Serve, Inc.
Suite 200
1880 Campus Commons Drive
X
X
05/31/2021
3400 E. Tahquitz Canyon Way, Suite 1
05/31/2021
B
Joey Cleveland
05/31/2022
(202) 263-7605
Allianz Global Risks US Insurance Co.
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