SUBJECT AUTHORIZING A PARKING LOT LEASE AGREEMENT WITH LA

AGENDA ITEM NO. O Concord REPORT TO REDEVELOPMENT AGENCY CHAIR AND AGENCY BOARD TO THE HONORABLE REDEVELOPMENT AGENCY CHAIR AND AGENCY BOARD: DATE: June 23, 2008 SUBJECT: AUTHORIZING A PARKING LOT LEASE AGREEMENT WITH LA PINATA OF CONCORD, LLC, FOR USE OF AN AGENCY-OWNED PARKING LOT LOCATED AT 1948 COLFAX STREET Report in Brief The Agency Board is requested to authorize the Executive Director to enter into a parking lot lease agreement with La Pinata of Concord, LLC, on behalf of the Concord Redevelopment Agency for the lease of an Agency-owned parking lot located at 1948 Colfax Street, Concord, California 94520, APN Numbers 126074-014 and 126-074-015, subject to certain pre-established lease criteria as set forth in Attachment 1. The Agency is the owner of a .25 acre parking lot, consisting of two parcels, located at 1948 Colfax Street, which has seventeen (17) parking spaces. This parking lot is directly adjacent to the parking lot for La Pinata Restaurant, located at 2301 Willow Pass Road. A map of the location of the restaurant's property and the Agency-owned property is included with this report ( Attachment 2). For the past few years, La Pinata's employees and customers have been using the Agency-owned parking lot as an overflow parking lot when the restaurant becomes busy. The restaurant is continuing to increase its business, necessitating the need for additional parking for its customers on a regular basis. La Pinata is interested in entering into a Lease Agreement with the Agency for use of the parking lot. The proposed Lease Agreement sets forth the basic terms, which include a three-year lease period at an annual rental rate of $6,120.00. The Agency will be installing a parking lot light to increase the safety and security of the property. The actual cost to install this light will be reimbursed to the Agency by La Pinata of Concord after the light has been installed, approximately within the first year and a half of the lease. The full terms of the Lease Agreement are set forth in Attachment 1. Background The Agency is the owner of a .25 acre parking lot, consisting of two parcels, located at 1948 Colfax Street, which has seventeen (17) parking spaces. This parking lot is directly adjacent to the parking lot for La Pinata Restaurant, located at 2301 Willow Pass Road. For the past few years, La Pinata's employees and customers have been using the Agency-owned parking lot as an overflow parking lot when the restaurant becomes busy. 0 is In response to this need, in November 2007, the Agency entered into a License Agreement with the Restaurant (Attachment 3), which provided a temporary, non-exclusive license for use of the property while AUTHORIZING A LEASE AGREEMENT WITH LA PINATA OF CONCORD, LLC, FOR THE USE OF AN AGENCY-OWNED PARKING LOT LOCATED AT 1948 COLFAX STREET, June 23, 2008 Page 2 providing necessary insurance liability until such time that the parties negotiated a more permanent lease agreement. In April 2008, a Letter of Intent was signed by the Restaurant owner and City staff, agreeing to the initial terms now formalized in the Lease Agreement to be signed. ( Attachment 4) Discussion The Agency Board is requested to authorize the Executive Director to enter into a lease agreement between the Concord Redevelopment Agency and La Pinata of Concord, LLC, for the lease of an Agencyowned parking lot located at 1948 Colfax Street , Concord, California 94520, APN Numbers 126-074-014 and 126-074-015, subject to certain pre-established lease criteria. The Lease Agreement will further formalize what is already occurring on the Agency -owned property. The restaurant is continuing to increase its business , necessitating the need for additional parking for its customers on a regular basis. This authorization will allow Agency staff to lease its property at 1948 Colfax Street and generate revenue for the Agency on a yearly basis. This authorization will allow the Executive Director to enter into the lease agreement subject to the aforementioned pre-established lease criteria. The yearly rent that will be received by the Agency from the Restaurant will be $6,120 per year (17 parking spaces x $30.00 each space x 12 months), and the restaurant will also be responsible for maintaining the property, including the newly-installed light in a clean and safe manner. This lease agreement will be in effect for three years, with a determination after the first year, and no option to renew. As part of the Lease Agreement the Agency will be installing a parking lot light on the property to increase the safety and security of this property. The entire cost to install this parking lot light will be fully reimbursed back to the Agency by La Pinata of Concord through monthly payment installments after the light has been installed, and within the first year and a half of the agreement. The full terms of the Lease Agreement are set forth in Attachment 1. The installation of the parking lot light will be a Capital Improvement Program Project and managed by the Engineering Division. The installation of the parking lot light is estimated to be completed by early fall 2008. In addition, La Pinata of Concord will be reimbursing the City for the actual cost of the utilities for the new parking lot light once it is installed. Additional improvements to the property will include installation of parking stops for a few of the parking spaces to ensure proper flow of traffic and vehicles are parking appropriately on the site. The Agency will be incurring the minimal costs of these parking stops, total estimated cost to be $50.00 - $200.00 ($5.00 $20.00 per parking stop x 10 parking spaces). By formalizing this Agreement, the Agency will receive yearly revenue for the property, install a parking lot light for the property to increase safety and security, and assist a thriving business as it continues to succeed. 0 Fiscal Impact AUTHORIZING A LEASE AGREEMENT WITH LA PINATA OF CONCORD, LLC, FOR THE USE OF AN AGENCY-OWNED PARKING LOT LOCATED AT 1948 COLFAX STREET, June 23, 2008 Page 3 The total amount of rent to be collected each year by the Agency will be $6,120 (17 parking spaces x $30.00 each space x 12 months). In addition, the Agency will be reimbursed within the first year and a half of the agreement for the cost of installing a light on the parking lot. These reimbursements will occur through monthly payment installments after the installation of the light. La Pinata of Concord will also be reimbursing the City on a monthly basis for the actual cost of the utilities for the new parking lot light once it is installed. Public Contact The Agenda Item has been posted. The Notice of Public Hearing was properly published. Copies of the report have been mailed to the property owner of La Pinata Restaurant, business owner (and potential lessee) of La Pinata Restaurant, and the Greater Concord Chamber of Commerce. Recommendation for Action Authorize the Executive Director to enter into a Parking Lot Lease Agreement with La Pinata of Concord, LLC, on behalf of the Concord Redevelopment Agency for the lease of an Agency-owned parking lot located at 1948 Colfax Street, Concord, California 94520, APN Numbers 126-074-014 and 126-074-015, subject to certain pre-established lease criteria. 0 Prepared by: Joyce Davidson Seitz Economic Development Specialist Reviewed by: John Montagh Redevelopment/ Housing Manager Reviewed by: Jim Forsberg Director of Planning and Economic Development Attachments: Attachment 1: Lease Agreement Attachment 2: Aerial Map of Property Attachment 3: License Agreement Attachment 4: Letter of Intent Attachment 1 PARKING LOT LEASE AGREEMENT 0 THIS PARKING LOT LEASE AGREEMENT ( this "Lease Agreement") is made and entered into as of , 2008 (the "Effective Date ") by and between THE REDEVELOPMENT AGENCY OF THE CITY OF CONCORD (" Agency" or "Owner"), as Owner, and LA PINATA OF CONCORD, LLC, a California limited liability company (" Lessee "), as Lessee. RECITALS A. Agency owns that certain real property located in the City of Concord ("City"), County of Contra Costa, State of California comprising of two parcels, a .25 acre parking lot containing seventeen (17) parking spaces located at 1948 Colfax Street, between Willow Pass Road and Salvio Street, including any and all improvements located on the property. For the convenience of the parties hereto the property referred to herein shall continue to be referred to as the Lease Area (the "Lease Area"). A legal description of the Lease Area is attached hereto as Exhibit A. B. Agency and Occupant have entered into that certain License Agreement dated November 20, 2007 (" License Agreement "), wherein Agency granted Lessee a temporary, nonexclusive license to use the Lease Area for employee and customer parking. C. Agency and Lessee hereby intend to terminate the License Agreement and enter into this Agreement for Agency's lease of the Lease Area from Agency to Lessee, subject to the terms and conditions set forth herein. 0 AGREEMENT NOW, THEREFORE, in consideration of the mutual promises herein contained the parties agree as follows: 1. . Termination of License Agreement. The parties acknowledge that the License Agreement is terminated as of the Effective Date. 2. Right of Occupancy. As of the Effective Date, Owner grants Lessee the nonexclusive right, privilege and permission to occupy the Lease Area upon all the conditions and agreements set forth in this Lease Agreement expiring on the Effective Date. 3. Term. The term of this Lease Agreement shall be for approximately three years (the "Term") commencing on June _, 2008 (" Commencement Date ") and expiring on June , 2011. 4. Termination. Agency shall have the right, at its sole discretion, to terminate this Lease Agreement at any time after the first anniversary of the Commencement Date upon six (6) months prior written notice to Lessee. If Agency exercises its right to terminate pursuant to this 1 1090552v1A 29136/0005 • Section 4 , or if Lessee terminates this Lease Agreement in accordance with Section 7, this Agreement shall terminate on the date set forth in Agency's notice of termination and, upon termination , neither party shall have any further rights or obligations hereunder except as otherwise provided in this Lease Agreement . Lessee shall also have the right to terminate this Lease Agreement at any time after the first anniversary of the Commencement Date upon six (6) months prior written notice to Agency, and after the light installation has been fully reimbursed. Notwithstanding the foregoing , Agency may terminate this Lease Agreement upon three days notice to Lessee in the event of a default by Occupant under Section 19, below. 5. No Option to Renew. Lessee has no option to renew this Agreement. 6. Rent. Lessee agrees to pay Owner during the Term hereof, at the address for Owner set forth in Section 21 .3 below or to such other person or at such other place as directed from time to time by written notice to Lessee from Owner , rent (the "Rent ") in the amount of $5 10.00 per month, payable on the Effective Date and thereafter in advance on the first day of each calendar month , without demand , setoff or deduction . In the event the Effective Date or the date of expiration of this Lease Agreement occurs other than on the first day or last day of a calendar month , the Rent for such month shall be prorated. 7. Lighting Installation ; Reimbursement . Agency shall provide and install a light in the middle of the Lease Area at such time as determined by Agency following execution of this Lease Agreement. It is anticipated that the Agency will receive bids and award the contract for this work within the first few months of this agreement . Agency will use due diligence in completing this work efficiently and within a reasonable time period. The parties acknowledge that it is anticipated that installation of the proposed light is estimated to cost between $23,000 $50,000. In the event Agency seeks more than $50,000 from Lessee for reimbursement of the lighting installation, Lessee may terminate this Lease Agreement in accordance with Section 4. Lessee shall reimburse Agency for Agency's costs incurred in purchasing and installing the light prior to the first anniversary of the date that the light was installed on the Lease Area. This reimbursement will occur through monthly payment installments , estimated to be $ 1,916.00 $4,166.00, over a one-year period until the cost is fully reimbursed . The parties acknowledge that due to the planned installation of the light fixture on the Lease Area, Lessee may suffer a temporary loss on its use of the Lease Area of which that Agency will not be required to reimburse , credit or provide any other abatement to Lessee. 8. Utilities and Services . Lessee shall pay, when due, any and all charges for all utilities serving the Lease Area and taxes and assessments , including any possessory interest tax, which are levied on and/or attributable to the Lease Area. Lessee's obligation hereunder shall include the electricity costs for the new light upon installation . Lessee shall also pay, when due, the electricity costs each month to the Agency . Owner makes no warranty or representation regarding the availability of utilities to the Lease Area, and Owner shall have no obligation whatsoever to maintain or supply (or cause to be supplied ) any utilities or services to the Lease Area. Owner shall in no way be liable or responsible for any loss, damage , or expense that Lessee may sustain or incur by reason of any change , failure, interference , disruption, or defect in the supply or character of any utilities or services furnished to the Lease Area, or if the quantity or character of any utility or service supplied by any utility or service provider is no longer available or suitable for Lessee's requirements, and no such change , failure, defect, 2 1090552v1A 29736/0005 A unavailability, or unsuitability shall constitute an actual or constructive eviction, in whole or in part, or entitle Lessee to any abatement or diminution of rent, or relieve Lessee from any obligations under this Lease Agreement. 9. Acceptance of the Lease Area. Lessee has been in possession of the Lease Area. Lessee accepts and agrees to occupy the Lease Area under this Lease Agreement in its "AS-IS WHERE IS" condition, without any agreements, representations, warranties or other understandings made by or on behalf of Owner with respect to the Lease Area (either before, after or concurrently with the execution of this Lease Agreement). Specifically, without limitation, Owner has no obligation to maintain, alter, repair and/or improve the Lease Area except as otherwise provide in Section 7, above. Further, Owner has made no representations or warranty concerning the conditions or suitability of the Lease Area for the use intended and/or contemplated by Lessee. Lessee expressly assumes all risk involved in, connected with, or resultant from use, rental and/or occupancy of the Lease Area. Lessee hereby waives any and all rights Lessee might otherwise have to make repairs and deduct the cost of such repairs from the Lease Fee, it being the parties' express agreement that the Lease Fee has been reduced to the amount set forth in this Lease Agreement in consideration for such waiver and for Lessee's obligations under this Lease Agreement. Lessee hereby waives subsection 1 of Section 1932 and Sections 1941 and 1942 of the Civil Code of California or any successor provision of law. 10. Repairs; Maintenance; Surrender. Except as otherwise expressly agreed upon by Owner, Lessee shall maintain and preserve the property of Agency and at the expiration or other termination of this Agreement, Lessee shall surrender the Lease Area, and any improvements thereon, to Owner in as good condition as the Lease Area, including any improvements, were in as of the Commencement Date, reasonable wear and tear expected. Lessee shall keep the Lease Area in a clean, orderly and sanitary condition to the satisfaction of Agency's Business Development Manager or his/her designee. 11. Use; Occupancy. The Lease Area may be used and occupied by Lessee only for La Pinata Mexican Restaurant employee and patron vehicle parking and for no other use or purpose. Lessee shall not commit, or permit others to commit, on the Lease Area, waste, or a nuisance. The lease granted herein is personal to Lessee. Lessee shall not assign this Lease Agreement or any interest therein, or rights under it, nor enter into any agreement with any third person or persons respecting the use or occupation of the Lease Area, without the prior consent of Agency, which Agency may withhold in its sole and absolute discretion. This Section 11 is a material part of this Lease Agreement. 11.1. Compliance with Laws. Lessee shall not use the Lease Area in any manner which would in any way conflict with any law, statute, ordinance or governmental rule, regulation or requirements now in force or which may hereafter be enacted or promulgated. Lessee shall, at Lessee's sole cost and expense, promptly observe and comply with all laws, statutes, ordinances and governmental rules, regulations or requirements now in force or which may hereafter be enacted or promulgated which relate to or affect Lessee's use of the Lease Area. a 11.2. Environmental Matters. Without limiting the generality of the foregoing, Lessee expressly agrees, at all times and in all respects, to comply with all Laws (defined in • 1090552vIA 29736/0005 3 14 Section 18, below, which are designed to protect public health and safety, worker health and safety, or the environment, including, but not limited to, management of hazardous materials and/or hazardous waste (collectively referred to hereinafter as "Environmental Requirements") and Laws which concern any contamination, release, pollution, nuisance or waste, whether toxic or nontoxic chemical or biological. Lessee expressly agrees not to store hazardous waste on the Lease Area (except for fuel stored in a vehicle for the exclusive use in such vehicle), treat hazardous waste on the Lease Area or dispose of, or bury any waste, including hazardous waste, on the Lease Area. Lessee expressly agrees to use and handle all hazardous materials in compliance with all Environmental Requirements which are designed to regulate the same, including, but not limited to, requirements pertaining to the handling and storage of hazardous materials. For purposes of this Lease Agreement "management" includes, but is not limited to, use, storage, handling and transportation, and "hazardous materials" means all petroleum and hydrocarbon products, any flammable materials, explosive, hazardous or toxic substances, or related materials defined in the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as now or hereafter amended (42 U.S.C. Sections 9601, et seq.), the Hazardous Materials Transportation Act, as now or hereafter amended (49 U.S.C. Sections 1801, et seq.), the Resource Conservation and Recovery Act, as now or hereafter amended (42 U.S.C. Sections 9601, et seq.), and in the regulations promulgated pursuant thereto, or any other federal, state or local governmental law, ordinance, rule or regulation, and all materials and substances which are considered to be deleterious to human health and/or the environment. 12. Insurance; Indemnification. 12.1. Insurance . Lessee shall procure and maintain for the duration of the Lease Agreement insurance against claims for injuries to persons or damages to property which may arise from or in connection with the Lessee' s operation and use of the Lease Area. 12.1.1. Coverages. Coverages required shall include, but not be limited to: (1) comprehensive general liability coverage of at least $2 Million per occurrence for bodily injury, personal injury, and property damage; (2) fire and extended coverage casualty insurance, including broad form perils coverage, in an amount equal to the full replacement cost of the buildings and other structures (if any) on the Lease Area; (3) Employer's Liability: coverage of $1 Million per accident for bodily injury or disease; and (4) worker's compensation insurance. The cost of such insurance shall be borne by Occupant. 12.1.2. Other Insurance Requirements. The general liability policy is to contain, or be endorsed to contain, the following provisions: (1) Agency and City are to be covered as additional insureds, with no special limitations on the scope of protection afforded to Agency and/or City; (2) Lessee's insurance coverage shall be primary insurance as respects Agency and/or City, and any insurance maintained by Agency and/or City shall be excess of Lessee's insurance and shall not contribute with it; (3) any failure to comply with reporting or other provisions of the policies including breaches of warranties shall not affect coverage provided to Agency and/or City; and (4) coverage shall state that Lessee's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. Each insurance policy required by this section shall be endorsed to state that coverage shall not be suspended, voided, canceled, reduced in coverage or in limits except after thirty (30) days' prior written notice by certified mail, return receipt 4 1090552v1A 29736/0005 0 requested, has been given to Agency. Insurance is to be placed with insurers with a current A.M. Best's rating of no less than AN. Lessee shall furnish Agency with original endorsements effecting coverage required by this section. The endorsements are to be signed by a person authorized by that insurer to bond coverage on its behalf. 12.1.3. Insurance Hazards. Lessee shall not use the Lease Area, nor permit others to use them, or to do or permit acts that will increase the existing rates of insurance on the structures on the Lease Area, or adjoining property, or cause a cancellation of any insurance policy covering, in whole or in part, any such structures; nor shall Lessee sell, or permit to be kept, used or sold, in or about the Lease Area, any article that is prohibited by the standard form of fire insurance policies. Lessee shall comply with all requirements of any insurance organization or company applying to the Lease Area, necessary for the maintenance of reasonable fire and public liability insurance covering the Lease Area. 12.2. Indemnification. Lessee, as a material part of the consideration to be rendered to Agency under this Lease Agreement, shall exercise its privileges hereunder at its own risk and Lessee shall indemnify, defend, and hold harmless Agency and City and its and their partners, directors, elected officers, officials, employees, agents, representatives and volunteers, property managers, contractors and each of their successors and assigns (collectively, "Agency Parties ") from and against any and all claims, judgments, causes of action, damages, penalties, costs, liabilities, and expenses, including attorneys' fees and expenses incurred in the defense of any such claim or any action or proceeding brought thereon (collectively, " Claims"), arising at any time during or after the Term as a result (directly or indirectly) of, or in connection with, (i) any default in the performance of any obligation on Lessee's part to be performed under the terms of this Lease Agreement; and (ii) entry or use of the Lease Area by Lessee or Lessee's agents, partners, shareholders, members, representatives, employees, contractors, subcontractors, sub-Lessees, successors or assigns, guests, invited visitors, and customers (collectively, " Lessee Parties "), including Claims for bodily injury, death, and/or property damage, except to the extent such damages result from Agency's sole or active negligence or willful misconduct (collectively, "Indemnification "). Lessee shall provide such Indemnification by and through counsel reasonably acceptable to Agency. Lessee's obligations under this Section 5 shall survive the expiration or other termination of this Lease Agreement. 12.3. Damage to Lease Area. If the Lease Area is totally or partially damaged or destroyed by fire, earthquake, accident or other casualty that renders the Lease Area totally or partially uninhabitable, then either Owner or Lessee may terminate this Lease Agreement by providing the other with written notice of termination. Owner shall have no obligation to repair the damage or restore the Lease Area. 12.4. Risk of Loss. Agency and City assume no responsibility for loss, including bodily harm or loss of life, or damage to the property of Lessee or any Lessee Parties, arising out of this Lease Agreement. 0 13. Abandonment. Lessee shall not vacate or abandon the Lease Area at any time during the Term. If Lessee does abandon, vacate or surrender the Lease Area, or if Lessee is dispossessed by process of law or otherwise, personal property belonging to Lessee and left on the Lease Area shall be kept for a reasonable time by Owner, but in no event longer than 0 1090552v1A 29736/0005 5 fifteen (15) days after Owner gives Lessee notice to remove that property from the Lease Area, after which time, if it has not been reclaimed by Lessee, it may be treated by Owner as abandoned. 14. Alterations. No alterations, changes and/or additions of any character shall be made to the Lease Area without the prior written consent of Owner and Owner's review and approval of architectural plans and specifications (if applicable) which consent and approval may be granted or denied in Owner's sole discretion. Any alternations made by Lessee shall be at the sole cost and expense of Lessee and, notwithstanding any Owner approval of such alterations, Owner shall have no liability whatsoever arising from Lessee's installation or use of any alterations pursuant to this Section 14. 15. Si na e. Subject to Owner's prior written approval, Lessee may place parking signage on the Lease Area to indicate its limited control over the spaces. Lessee agrees that neither it nor its agents will at any time display any advertising sign on the Lease Area without the prior written approval of Agency. 16. Owner Access. Agency and City, and its and their officials, employees, consultants, agents, contractors and other designees, shall have the right to enter the Lease Area at any time for the purpose of inspecting the Lease Area, confirming Lessee's compliance with its covenants and obligations under this Lease Agreement, showing the Lease Area to prospective purchasers, lenders or Lessees, and making such alterations, repairs, improvements or additions to the Lease Area of which they are a part as Owner may deem necessary or desirable. Owner shall use all reasonable efforts not to unreasonably interfere with Lessee's use and occupancy of the Lease Area in connection with such entry, but in no event shall Lessee be permitted to withhold or reduce the Rent or other charges due hereunder as a result of same, make any claim for constructive eviction or otherwise make any claim against Landlord for interruption or interference with Lessee's business and/or operations. 17. Relocation Waiver. Lessee fully releases and discharges Agency and Agency Parties from any and all manner of rights, demands, liabilities, obligations, claims, or causes of action, in law or equity, of whatever kind or nature, whether known or unknown, whether now existing or hereinafter arising, which arise from or relate in any manner to the redevelopment or sale of the Lease Area, the full or partial termination of Lessee's right to use the Lease Area as permitted under this Agreement, or the relocation of Lessee's business operations conducted on the Lease Area, including, without limitation, the specific waiver and release of any right to any relocation benefits, assistance and/or payments under Government Code sections 7260, et seq. ("Relocation Assistance Law"), notwithstanding that such relocation assistance, benefits and/or payments may be otherwise required under the Relocation Assistance Law or other state or federal law, and compensation for any interest in Lessee's business operations or the License Area including, but not limited to, improvements; license or leasehold bonus value; fixtures, furniture, or equipment; loss of business goodwill; severance damage; attorneys' fees or any other compensation of any nature whatsoever. Lessee acknowledges and agrees that the release and waiver set forth in this paragraph is material consideration for Agency's agreement to allow Lessee to use the License Area on the terms set forth herein. It is hereby intended that the above release relates to both known and unknown claims that Lessee may have, or claim to have, against Agency or Agency Parties with respect to the subject matter contained in this Section 19 6 1090552v1A 29736/0005 0 or the events relating thereto. By releasing and forever discharging claims both known and unknown which are related to or which arise under or in connection with the items set out above, Lessee expressly waives any rights under California Civil Code section 1542, which provides: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR." 18. Compliance with Laws; Liens. Lessee shall at all times comply with, and shall pay all costs and expenses which may be incurred or required to be paid in order to comply with, any and all permitting requirements, laws, statutes, labor codes, ordinances, rules and regulations, hazardous materials laws, the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101, et seq., as amended, covenants and restrictions of record, life and fire safety and similar requirements, including those of the State of California, the County of Contra Costa, the City of Concord, or other applicable public authority ("Laws") which apply to the operation and use of the Lease Area or any portion thereof, including those requiring alterations or additions to be made to, or safety appliances or devices to be maintained or installed in, on or about the Lease Area or any portion thereof under any Laws now or hereafter adopted, enacted or made and applicable to the Lease Area or any portion thereof, and payment of any fees, charges or assessments arising out of or in any way related to the Lease Area or any portion thereof as a source of adverse environmental impacts or effects. Lessee shall not permit or suffer any mechanic's lien to be filed against the Lease Area, or any interest of Agency or Occupant therein, and shall immediately discharge any such lien and shall protect, indemnify, defend and hold harmless Agency in connection therewith, except to the extent the lien is caused by Agency's sole, active negligence or willful misconduct. Lessee shall obtain, at its expense, any and all permits or licenses that may be required in connection with Lessee's operation and/or use of the Lease Area, including but not limited to a City of Concord Business License, and shall pay all debts incurred by Lessee for the purchase of supplies, materials, and equipment, and for services of any sort, for use in connection therewith. 19. Defaults; Remedies. If Lessee breaches this Lease Agreement, Owner shall have the right of reentry, after having given 72 hours' notice, and the right to take possession of the Lease Area, and to remove all persons and property from the Lease Area; Owner may store the property removed in a public warehouse or elsewhere at Lessee's expense and for Lessee's account. If Owner elects to reenter as provided above, or to take possession after legal proceedings or under any notice provided for by law: (a) Owner may terminate this Lease Agreement in accordance with Section 4; or (b) Owner may exercise any and all other rights and remedies that become available to Owner under California law, including, but not limited to, the right to keep this Lease Agreement in effect and sue for rent under California Civil Code Section 1951.4. 0 0 20. Interest; Late Charges. Any amount due from Lessee to Owner hereunder which is not paid when due shall bear interest at the lower of twelve percent (12%) per annum or the maximum lawful rate of interest from the due date until paid, but the payment of such interest shall not excuse or cure any default by Lessee under this Lease Agreement. In addition to such 7 1090552vIA 29736/0005 - interest : (i) if the Rent is not paid on or before the tenth ( 10th) day of the calendar month for which the same is due, a late charge equal to ten percent ( 10%) of the amount overdue or $100, whichever is greater, shall be immediately due and owing and shall accrue for each calendar month or part thereof until such rental , including the late charge, is paid in full, which late charge Lessee hereby agrees is a reasonable estimate of the damages Owner shall suffer as a result of Lessee's late payment and (ii ) an additional charge of $25 shall be assessed for any check given to Owner by or on behalf of Lessee which is not honored by the drawee thereof; which damages include Owner 's additional administrative and other costs associated with such late payment and unsatisfied checks and the parties agree that it would be impracticable or extremely difficult to fix Owner's actual damage in such event . Such charges for interest and late payments and unsatisfied checks are separate and cumulative and are in addition to and shall not diminish or represent a substitute for any or all of Owner 's rights or remedies under any other provision of this Lease Agreement. 21. General Provisions. 21.1. Waivers . No waiver by Owner of any provision hereof shall be deemed a waiver of any other provision hereof or of any subsequent breach by Lessee of the same or any other provision . Owner's consent to or approval of any act shall not be deemed to render unnecessary the obtaining of Owner's consent to or approval of any subsequent act by Lessee. Owner' s acceptance of a partial amount of the Rent shall not be deemed a waiver of Lessee's obligation to pay any outstanding portion of the Rent to Owner or any other provision hereof. 21.2. Holding Over . If Lessee remains in possession of the Lease Area or any part thereof after the expiration or earlier termination of this Lease Agreement without the express written consent of Owner , then such occupancy shall be a tenancy at will, and Owner shall have the right to take such lawful action as Owner deems appropriate to cause the removal of Lessee and all other persons from the Lease Area . During the period of any holdover , Lessee shall pay rent in an amount equal to 200% of the Lease Fee then in effect on the expiration or termination date. Further , acceptance of rent by Owner allowing Lessee to remain on the Lease Area after the termination date shall not result in a renewal of this Lease Agreement, an extension of the term and /or waiver of any default or circumstances of termination. 21.3. Notices. Any notice or other communication given pursuant to this Lease Agreement (" Notice ") shall be in writing and personally delivered, sent by United States registered or certified mail, or sent by a nationally or regionally recognized courier service such as Fed Ex or Overnight Express, addressed as follows: Occupant: La Pinata of Concord, LLC Attn: Octavio Guzman 2301 Willow Pass Rd. Concord, CA, 94520 Telephone : (925) 609-9119 Redevelopment Agency of the City of Concord Attn: John Montagh 8 Owner : 1090552v1A 29736/0005 4 0 Redevelopment/Housing Manager 1950 Parkside Drive, MS/1B Concord, California 94519-2578 Telephone: (925) 671-3355 With a copy to: City Attorney City of Concord 1950 Parkside Drive Concord, California 94519 Telephone: (925) 671-3160 ffect. 21.4. Bindin Effect. This Lease Agreement shall be binding upon and inure to the benefit of the parties hereto, and their successors and assigns. No parties other than Owner and Lessee and their successors and assigns shall have any rights or remedies under or by reason of this Lease Agreement. The obligations of all persons comprising Lessee are joint and several as to each of them. 21.5. Further Documents. Owner and Lessee shall each.promptly execute (and acknowledge, as appropriate) and deliver to the other party any and all additional documents and perform any and all acts reasonably necessary in connection with the performance of its obligations and carry out the intent and agreements as expressed in this Lease Agreement. 21.6. Interpretation. This Lease Agreement is made and entered into in the State of California and shall in all respects be interpreted, enforced and governed under the laws of the State of California. This Lease Agreement has been negotiated and prepared by both Owner and Lessee. The language in all parts of this Lease Agreement shall be in all cases construed as a whole according to their fair meaning and not strictly for or against either Lessee or Owner. Headings in this Lease Agreement are for reference purposes only and shall not affect the meaning of any provisions of this Lease Agreement. The recitals set forth at the beginning of this Lease Agreement and the exhibits attached to and referred to in this Lease Agreement are incorporated by reference into this Lease Agreement. Time is of the essence with respect to the performance by Owner and Lessee of each and every obligation under any provision of this Lease Agreement. If any term or condition of this Lease Agreement or its application to any party or circumstance shall be held, to any extent, invalid or unenforceable, then the remainder of this Lease Agreement, or the application of such term or condition to any party or circumstances other than those as to whom or which it is held invalid or unenforceable, shall not be affected 0 and shall be valid and enforceable to the fullest extent permitted by law. 21.7. Third-Party Beneficiaries. This Lease Agreement does not create any third-party beneficiary rights for any person or entity. 21.8. Attorneys' Fees. In the event any action is brought by either party hereto as against the other party for the enforcement or declaration of any right or remedy in or under this Lease Agreement or for the breach of any covenant or condition thereof, the prevailing party shall be entitled to recover, and the other party agrees to pay, all fees and costs to be fixed by the court therein including, but not limited to, attorneys' fees. • 1090552vIA 29736/0005 9 21.9. Entire Agreement; Amendment. This Lease Agreement is intended by Owner and Lessee as the final expressions and the complete and exclusive statement of their agreements with respect to the subject matter of this Lease Agreement, and any prior or contemporaneous agreements or understandings, oral or written, which may contradict, explain or supplement these terms are superseded and merged into this Lease Agreement and shall not be admissible or effective for any purpose. This Lease Agreement may not be amended or modified except by a writing signed by Owner and Lessee which expressly states that it amends this Lease Agreement. 21.10. Counterparts; Authority. This Lease Agreement may be executed in counterparts, all of which shall constitute one instrument. Each person signing this Lease Agreement represents and warrants that he or she has the proper authority to bind the party on whose behalf he or she signs this Lease Agreement. [Signatures follow on next page) 10 1090552v] A 29736/0005 IN WITNESS WHEREOF, the parties hereto have executed this Lease Agreement at Concord , California , the day and year first above written. AGENCY: OCCUPANT: REDEVELOPMENT AGENCY OF LA PINATA OF CONCORD, LLC, THE CITY OF CONCORD, a California limited liability company a public body corporate and politic By: Edward R. James Octavio Guzman Interim Executive Director Its: Partner Mary Rae Lehman Agency Secretary (City Seal) e APPROVED AS TO FORM: Craig Labadie Agency Counsel 0 1090552v1A 29736/0005 II Exhibit A 0 LEGAL DESCRIPTION APN# 126074014: Todos Santos POR Lot 4 BLK Q and APN# 126074015 : Todos Santos POR Lot 3 BLK Q 0 0 1090552v 1 A 29736/0005 1 Attachment 2 Attachment 3 0 LICENSE AGREEMENT This License Agreement (" License Agreement ") dated , 2007, is entered into by and between La Pinata of Concord, LLC, a California limited liability company ("Licensee ") and the Redevelopment Agency of the City of Concord, a public body corporate and politic ("Agency"). RECITALS A. Agency owns certain real property, located at 1948 Colfax Street within the City of Concord ("City") as shown on the attached Exhibit A (" License Area "). The License Area is currently serving as an unimproved gravel parking lot. B. Licensee operates La Pinata Mexican Restaurant at 2301 Willow Pass Road, which is immediately adjacent to the License Area. C. Agency and Licensee intend to negotiate a potential lease for the License Area. D. Licensee would like to obtain a temporary, non-exclusive license to use the License Area for employee and customer parking. 0 E. Agency is willing to permit such use on a temporary basis. AGREEMENT NOW, THEREFORE, in consideration of the mutual promises herein contained, the parties agree as follows: 1. Grant of License. Agency hereby grants to Licensee, and Licensee hereby accepts from Agency, the temporary, non-exclusive right, privilege, and permission to use the License Area for La Pinata Mexican Restaurant employee and patron parking, and for no other purpose. 2. Term, Termination. The term of this License Agreement shall commence on the date first set forth above, and shall be terminated by either party upon five (5) days' prior written notice to the other party. 3. Condition and Maintenance. a. Licensee represents and warrants that Licensee has inspected and examined the License Area and accepts the License Area in its present " as is" condition. b. Licensee, at its expense, shall maintain and preserve the property of Agency and at the expiration or other termination of this Agreement, Licensee shall surrender the License 1035739v1D 29736/0005 Area, and any improvements thereon, to Agency in as good condition as the License Area, including any improvements, was in at the date of the execution of this License Agreement, reasonable wear and tear excepted. c. Licensee shall keep the License Area in a clean, orderly and sanitary condition to the satisfaction of Agency's Business Development Manager or his/her designee. 4. Alterations. No alterations, changes and/or additions of any character shall be made to the License Area without the prior written consent of Agency and, if such consent is secured, such changes shall be at the sole cost and expense of Licensee. 5. Indemnification. Licensee, as a material part of the consideration to be rendered to Agency under this License Agreement, shall exercise its privileges hereunder at its own risk and Licensee shall indemnify, defend, and hold harmless Agency and City and its and their partners, directors, elected officers, officials, employees, agents, representatives and volunteers, property managers, contractors and each of their successors and assigns (collectively, "Agency Parties") from and against any and all claims, judgments, causes of action, damages, penalties, costs, liabilities, and expenses, including attorneys' fees and expenses incurred in the defense of any such claim or any action or proceeding brought thereon (collectively, "Claims"), arising at any time during or after the Term as a result (directly or indirectly) of, or in connection with, (i) any default in the performance of any obligation on Licensee's part to be performed under the terms of this License Agreement; and (ii) entry or use of the License Area by Licensee or Licensee's agents, partners, shareholders, members, representatives, employees, contractors, subcontractors, sub-licensees, successors or assigns, guests, invited visitors, and customers (collectively, " Licensee Parties "), including Claims for bodily injury, death, and/or property damage, except to the extent such damages result from Agency's sole, active negligence or willful misconduct (collectively, " Indemnification "). Licensee shall provide such Indemnification by and through counsel reasonably acceptable to Agency. Licensee's obligations under this Section 5 shall survive the expiration or termination of this License. 6. Insurance. 2 1035739v1D 29736/0005 0 a. Insurance Policies. Licensee shall, at Licensee's expense, obtain and keep in force at all times the following insurance and shall be liable for all premiums, deductibles, and selfinsured amounts, if any, in connection therewith: (i) A policy of commercial general liability insurance (occurrence form) having a combined single limit of not less than One Million Dollars ($1,000,000) per occurrence and One Million Dollars ($1,000,000) annual aggregate, providing coverage for, among other things, blanket contractual liability, premises, products/completed operations and bodily injury, death and advertising injury coverage, if necessary, Licensee shall provide for restoration of the aggregate limit; (ii) Workers' compensation insurance, if required by law, which complies with all applicable state statutes and regulatory requirements, and, if Licensee hires any employees, employer's liability insurance coverage in the amount of at least One Million Dollars ($1,000,000) or such greater amount as may be required by applicable law; and (iii) Comprehensive automobile liability insurance having a combined single limit of not less than One Million Dollars ($1,000,000) per occurrence and insuring Licensee against liability for claims arising out of the ownership, maintenance, or use of any owned, hired or non-owned automobiles. b. Insurance Companies. Insurance required to be maintained by Licensee shall be written by companies licensed to do business in California and having a "General Policyholders Rating" of at least A-VIII (or such higher rating as may be required by a lender having a lien on the Premises) as set forth in the most current issue of "Best's Insurance Guide." c. Certificates of Insurance . Licensee shall deliver to Agency certificates of insurance for all insurance required to be maintained by Licensee pursuant to this License, in the form of the ACORD standard certificate of insurance , no later than seven (7) days following execution of this License. Licensee shall, at least ten (10 ) days prior to expiration of the policy, furnish Agency with certificates of renewal or "binders " thereof. Each certificate shall expressly provide that such policies shall not be cancelable or otherwise subject to modification except after sixty (60) days' prior written notice to the parties named as additional insureds as required in this License ( except in the case of cancellation for nonpayment of premium in which case cancellation shall not take effect until at least ten ( 10) days' notice has been given to the parties named as additional insureds ). If Licensee fails to maintain any insurance required in this License, Licensee shall be liable for all losses and cost resulting from said failure. d. Additional Insured. Agency and City shall be named as additional insureds on the policy required by Section 6.a. An additional insured endorsement naming Agency and City as additional insureds shall be attached to the certificate of insurance. C. Primary Coverage. All insurance to be maintained by Licensee shall be primary, without right of contribution from any insurance, self insurance of joint self insurance of Agency. f Umbrella/Excess Insurance. Any umbrella liability policy or excess liability policy (which shall be in "following form") shall provide that if the underlying aggregate is exhausted, the excess coverage will drop down as primary insurance. The limits of insurance maintained by Licensee shall not limit Licensee's liability under this License. 0 0 3 1035739v1D 29736/0005 g. Waiver of Subrogation. Licensee waives any and all rights of recovery against Agency and Agency Parties for loss of, or damage to, Licensee or its property or damage that is insured against and under any insurance policy in force at the time of such loss or damage. This provision is intended to waive fully, and for the benefit of Agency and Agency Parties, any rights and/or claims which might give rise to a right of subrogation in favor of any insurance carrier. The coverage obtained by Licensee pursuant to this License shall include a waiver of subrogation endorsement attached to the certificate of insurance. h. Notification of Incidents. Licensee shall notify Agency within twenty-four (24) hours after the occurrence of any accident or incident in, on or about the License Area or any portion thereof which could give rise to a claim against Agency, Licensee or Licensee's insurance, except that Licensee shall not be obligated to give Agency notice of any accident or incident which could give rise to a claim under Licensee's workers' compensation insurance. Licensee's notice shall be accompanied by a copy of any accident/incident form prepared by Licensee, reporting, and/or relating to, the accident/incident. 7. Taxes. Licensee shall pay when due any taxes of any kind and every nature, including but not limited to possessory interest tax, that may be imposed upon the License Area or Licensee's use of the License Area or any portion thereof. 8. Permits and Licenses. Licensee shall obtain, at its expense, any and all permits or licenses that may be required in connection with Licensee's operation and/or use of the License Area, including but not limited to a City of Concord Business License, and shall pay all debts incurred by Licensee for the purchase of supplies, materials, and equipment, and for services of any sort, for use in connection therewith. 9. Relocation Waiver. Licensee fully releases and discharges Agency and Agency Parties from any and all manner of rights, demands, liabilities, obligations , claims, or causes of action, in law or equity, of whatever kind or nature, whether known or unknown, whether now existing or hereinafter arising, which arise from or relate in any manner to the redevelopment or sale of the License Area, the full or partial termination of Licensee's right to use the License Area as permitted under this License Agreement, or the relocation of Licensee's business operations conducted on the License Area, including, without limitation, the specific waiver and release of any right to any relocation benefits, assistance and/or payments under Government Code sections 7260, et seq. (" Relocation Assistance Law"), notwithstanding that such relocation assistance, benefits and/or payments may be otherwise required under the Relocation Assistance Law or other state or federal law, and compensation for any interest in Licensee's business operations or the License Area including, but not limited to, improvements; license or leasehold bonus value; fixtures, furniture, or equipment; loss of business goodwill; severance damage; attorneys' fees or any other compensation of any nature whatsoever. Licensee acknowledges and agrees that the release and waiver set forth in this paragraph is material consideration for Agency's agreement to allow Licensee to use the License Area on the terms set forth herein. It is hereby intended that the above release relates to both known and unknown claims that Licensee may have, or claim to have, against Agency Or Agency Parties with respect to the subject matter contained in this Section 9 or the events relating thereto. By releasing and forever discharging claims both known and unknown which are related to or which arise under or in connection with the items set out 41035739v1D 29736/0005 0 above, Licensee expressly waives any rights under California Civil Code section 1542, which provides: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR." 10. Compliance with Laws, Liens. Licensee shall at all times comply with, and shall pay all costs and expenses which may be incurred or required to be paid in order to comply with, any and all permitting requirements, laws, statutes, labor codes, ordinances, rules and regulations, hazardous materials laws, the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101, et seq., as amended, covenants and restrictions of record, life and fire safety and similar requirements, including those of the State of California, the County of Contra Costa, the City of Concord, or other applicable public authority ("Laws") which apply to the operation and use of the License Area or any portion thereof, including those requiring alterations or additions to be made to, or safety appliances or devices to be maintained or installed in, on or about the License Area or any portion thereof under any Laws now or hereafter adopted, enacted or made and applicable to the License Area or any portion thereof, and payment of any fees, charges or assessments arising out of or in any way related to the License Area or any portion thereof as a source of adverse environmental impacts or effects. Licensee shall not permit or suffer any mechanic's lien to be filed against the License Area, or any interest of Agency or Licensee therein, and shall immediately discharge any such lien and shall protect, indemnify, defend and hold harmless Agency in connection therewith, except to the extent the lien is caused by Agency's sole, active negligence or willful misconduct. 11. Environmental Matters. 0 -5 1035739v1D 29736/0005 a. Environmental Compliance. Licensee shall, at its sole cost and expense, comply with all federal, state or local laws from time to time in effect ("Hazardous Materials Laws") concerning the management, use, generation, storage, transportation, presence, discharge or disposal of hazardous, toxic, radioactive or carcinogenic materials, substances or wastes ("Hazardous Materials "). Neither Licensee nor Licensee Parties shall use, handle, store, transport, release or dispose of any Hazardous Materials anywhere in, on, under or about the License Area. Licensee shall cause any and all Hazardous Materials brought onto, used, generated, stored or discharged on the License Area to be removed from the License Area and transported for disposal in accordance with applicable Hazardous Materials Laws. Agency shall have the right to conduct tests, inspections and surveys concerning Hazardous Materials and to monitor Licensee's compliance with its obligations concerning Hazardous Materials and Hazard Materials Laws. Licensee shall immediately notify Agency in writing of any voluntary clean-up or removal action instituted or proposed by Licensee, any enforcement, clean-up, removal or other governmental or regulatory action instituted or threatened, or any claim made or threatened by any person against Licensee or the License Area relating to Hazardous Materials or Hazardous Materials Laws. Licensee shall also supply to Agency as promptly as possible, and in any event within five (5) business days after Licensee receives or sends same, copies of all claims, reports, complaints, notices, warnings or asserted violations relating in any way to the License Area or Licensee's use thereof and concerning Hazardous Materials or Hazardous Materials Laws. b. Licensee's Environmental Indemnification. Licensee shall indemnify, defend and hold Agency harmless from any claims, causes of action, liabilities, losses, damages, injunctions, suits, fines, penalties, costs or expenses (including attorneys' fees and expenses) caused or alleged to have been caused by the presence of Hazardous Materials on or about the License Area, including any demands, liability, claims or actions for tangible or intangible property damage; compensation for lost wages, business income, profits or other economic loss; damage to the natural resource or the environment; nuisance; trespass; and/or contamination, leak, spill, release or other adverse effect on the environment, and including any personal injury, death, property damage, or decrease in value of the License Area, caused or alleged to have been caused by the use, storage, generation, presence or release of Hazardous Materials, whether such claims, causes of action or liabilities are first asserted during the Term or thereafter. Licensee's indemnity obligations under this Section 11 .b shall survive the termination or expiration of the License Agreement. 12. Advertising. Licensee agrees that neither it nor its agents will at any time display any advertising sign on the License Area without the prior written approval of Agency. 13. Utilities. Any electricity, natural gas, water, or janitorial services which Licensee may desire shall be furnished and paid for by Licensee at its sole expense. 14. Assignment of License Agreement. The license granted herein is personal to Licensee. Licensee shall not assign this License Agreement, or any interest therein, or rights under it, nor enter into any agreement with any third person or persons respecting the use or occupation of the License Area, without the prior written consent of Agency, which Agency may withhold in its sole and absolute discretion. Any assignment in violation of this Section 14 shall be void. -61035739v1D 29736/0005 15. Access. Licensee agrees that Agency or its appointed representatives shall have access to the License Area at all times. 16. Risk of Loss. Agency assumes no responsibility for loss or damage to the property of Licensee or any Licensee Parties. 17. Notices. All notices to be given hereunder shall be in writing and mailed postage prepaid by certified or registered mail, return receipt requested, or delivered by personal or courier delivery to Agency's Address and Licensee's Address, or to such other place as Agency or Licensee may designate in a written notice given to the other party. Notices shall be deemed served upon the earlier of receipt or three (3) days after the date of mailing. Licensee's Address: La Pinata of Concord, LLC 2301 Willow Pass Road Concord, California 94520 Telephone: (925) 609-9119 Agency's Address: Business Development Manager Redevelopment Agency of the City of Concord 1950 Parkside Drive, MS/IB Concord, California 94519-2578 Telephone: (925) 671-3355 With a copy to: 0 Concord City Attorney: City Attorney City of Concord 1950 Parkside Drive Concord, California 94519 Telephone: (925) 671-3160 18. Entire Agreement. This License Agreement, including the Recitals and all Exhibits (which are hereby incorporated by reference), contains the entire agreement between the parties and supersedes whatever oral or written understanding they may have had prior to the execution of this License Agreement. No waiver, alteration, or modification of this License Agreement shall be valid unless made in writing and signed by Agency and Licensee. 19. Interpretation. This License Agreement shall be deemed to be jointly prepared by both of the parties hereto, and any ambiguities or uncertainties herein shall not be construed for or against either of the parties hereto. The words "including," "included," "include" and words of similar import shall be not be interpreted as words of exclusion but shall instead be interpreted as though followed by the words "but not limited to" or "without limitation." No waiver by Agency of any breach or default of any provision of this License Agreement shall be deemed a waiver of any other provision hereof or of any subsequent breach or default by Licensee of the same or any other provision. The invalidity of any provision of this License Agreement as determined by a court of competent jurisdiction shall in no way affect the validity of any other provision hereof. 0 -71035739v1D 29736/0005 20. Authori . Each individual executing this License Agreement on behalf of Licensee has full power and authority to execute and deliver the License Agreement on behalf of Licensee. 21. Successors and Assigns. Except as otherwise provided in this License Agreement, all of the covenants, conditions and provisions of this License Agreement will be binding upon and will inure to the benefit of the parties hereto and their respective heirs, personal representatives, successors and assigns. 22. Third-Party Beneficiaries . This License Agreement does not create any third-party beneficiary rights for any person or entity. 23. Attorneys' Fees. In the event any action is brought by either party hereto as against the other party for the enforcement or declaration of any right or remedy in or under this License Agreement or for the breach of any covenant or condition thereof, the prevailing party shall be entitled to recover, and the other party agrees to pay, all fees and costs to be fixed by the court therein including, but not limited to, attorneys' fees. JSignaturesfollow on next page] -81035739v1D 29736/0005 IN WITNESS WHEREOF, the parties hereto have executed this License Agreement at Concord, California, the day and year first above written. AGENCY : LICENSEE: REDEVELOPMENT AGENCY OF LA PINATA OF CONCORD, LLC, THE CITY OF CONCORD, a California limited liability company a public body corporate and politic By: Lydia Du Borg Name: Executive Director Its: Mary Rae Lehman Agency Secretary (City Seal) 0 APPROVED AS TO FORM: Craig Labadie Agency Counsel 1035739v1D 29736/0005 0 EXHIBIT A LICENSE AREA 0 0 1035739v1D 29736/0005 Attachment 4 0 City of Concord Redevelopment Agency Letter of Intent (LOI) April 2, 2008 Mr. Octavio Guzman, Jr. La Pinata of Concord, LLC 2301 Willow Pass Rd. Concord, CA 94520 Re: Proposed Parking Lot Occupancy Agreement ("Agreement") between the Redevelopment Agency of the City of Concord ("Agency") and La Pinata of Concord, LLC ("Restaurant") concerning the occupancy and use of parking spaces located at 1948 Colfax St., Concord, California, 94520 ("Property"). 0 Dear Mr. Guzman: The purpose of this letter is to set forth the major business terms upon which the Agency, subject to Agency board approval, would be willing to enter into the Agreement with Restaurant. The major business terms of the proposed Amendment are as follows: 1. Premises. The premises would be the .13 acre Agency Parking Lot (APN # 126074014), located at 1948 Colfax Street, between Willow Pass Road and Salvio Street. Legal Description of the property: Todos Santos POR Lot 4 BLK Q. This Agency Parking Lot has seventeen (17) parking spaces. 2. Grant of Occupancy. Agency would agree to allow Restaurant the temporary, nonexclusive right , privilege , and permission to use the premises for La Pinata Mexican Restaurant employee and patron parking , and for no other purpose. 1080226v1 29736/0005 3. Term and Termination. The term of the Agreement would commence on June _, 2008 and continue until June _, 2011. Due to the planned future installation of a light fixture in the parking lot, there may be temporary loss of some of the parking at that time. Agency shall have the right, at its sole option, to terminate this Agreement at any time after the first (1St) anniversary of the Commencement Date upon six (6) months prior written notice to Restaurant. If Agency exercises its Right to Terminate, this Agreement shall terminate as of the dates set forth in Agency's notice, and following such date neither party shall any further rights or obligations hereunder except for those obligations which by their terms survive terminations hereof. 4. No Option to Renew. There is no option for the Restaurant to renew this Agreement. If the Agency so desires, a new Agreement will be negotiated when this Agreement expires. 5. Rental Rate. The total rental rate to be paid by Restaurant to Agency would be $30.00 per stall, for a total of $510.00, payable to Agency each month (or $6,120 per year due at the anniversary of the commencement date of the agreement). 6. Lighting Installation; Reimbursement. Agency would agree to provide and install a light in the middle of the Premises. Restaurant would be obligated to reimburse Agency, within the first twelve months of the Agreement, for Agency's costs incurred in purchasing and installing the light. Installation of the proposed light is estimated to cost between $23,000 - $50,000. The estimated cost to install the light must not exceed $50,000, or Restaurant has the right not to proceed with this lease. 7. Utility. /Tax. Restaurant would be responsible to pay, when due, any and all charges for all utilities serving the Premises and taxes and assessments, including any possessory interest tax, which are levied on and/or attributable to the Premises. This will include the estimated electricity costs for the new light once installed. Restaurant would be responsible to pay, when due, the electricity costs each month to the Agency. 8. Right of Entry. Restaurant would agree that Agency and the City of Concord ("City") would have an unlimited right of entry to the Premises to perform any work, inspections or for any other matter as determined by the Agency and/or City. 9. Condition of Premises. Restaurant would agree to accept the Premises on an As-Is, Where-Is basis, suitable for Restaurant's intended use. 10. Repairs/Maintenance/Security. Agency will be responsible for installing parking stops on the property within the first year of this agreement, to prevent any damage to the adjoining properties. Except as otherwise expressly agreed upon by Agency, Restaurant shall maintain and preserve the property of Agency and at the expiration or other termination of this Agreement, Restaurant shall surrender the premises, and any improvements thereon, to Agency in as good condition as the premises, including any improvements, was in at the date of the execution of the Agreement, reasonable wear and tear expected. Restaurant shall keep the premises in a clean, orderly and sanitary condition to the satisfaction of Agency's Business Development Manager or his/her designee. 2 1080226v1 29736/0005 11. Alterations. No alterations, changes and/or additions of any character shall be made to the premises without the prior written consent of Agency and, if such consent is secured, such changes shall be at the sole cost and expense of Restaurant. 12. Compliance with Laws. Restaurant would agree to comply with all applicable federal, state and local laws, rules and regulations in connection with the Agreement and Restaurant's use of the Premises. 13. Signage. If deemed necessary, Restaurant would be allowed to place parking signage on the premises to indicate its limited control over the spaces. Restaurant agrees that neither it nor its agents will at any time display any advertising sign on the premises without the prior written approval of Agency. 14. Assignment and Sublease. Except as otherwise approved by the Agency in its sole discretion, Restaurant would not be allowed to assign or sublease all or any portion of the Agreement. 15. Insurance and Indemnification. Restaurant would comply with City's insurance requirements that are applicable to the Agreement. Restaurant would indemnify Agency for all claims arising directly or indirectly from the Agreement. 16. Notification of Incidents. Restaurant shall notify Agency within twenty-four (24) hours after the occurrence of any accident or incident in, on or about the premises or any portion thereof which could give rise to a claim against Agency, Restaurant or Restaurant's insurance. 17. Waiver of Relocation/Loss of Goodwill Benefits. Restaurant will fully release and discharge the Agency and City from all and any manner of rights, demands, liabilities, obligations, claims, or causes of action, in law or equity, of whatever kind or nature, whether known or unknown, whether now existing or hereinafter arising, which arise from or relate in any manner to the sale of the Premises, the full or partial termination or expiration of Restaurant's leasehold interest as permitted under the proposed Agreement or the relocation of the parking area or any portion thereof located on the Premises, including the specific waiver and release of any right to any relocation benefits, assistance, and/or payments under California Government Code Sections 7260 et seq. ("Relocation Assistance Law"). 0 These are the major business terms upon which the Agency, subject to approval of the Agency Board, is prepared to enter into the Agreement with Restaurant. This letter is not intended to be legally binding, and neither Agency nor Restaurant would be legally bound unless and until a formal Agreement is entered into between Agency and Restaurant. Although neither party will be legally bound by this letter unless and until the Agency has approved the Agreement at a noticed public hearing and formal legal documents have been signed, it does require the parties to work together in good faith to attempt to reach formal documentation on these major business terms. If the parties have not signed the Agreement for any reason by August 1, 2008, however, neither party will have any further obligation to proceed in good faith with these negotiations. 3 1080226v 1 29736/0005 Very truly yours, Business Development Manager Agency's Address: John Montagh Business Development Manager Redevelopment Agency of the City of Concord 1950 Parkside Drive, MS/1B Concord, California 94519-2578 Telephone: (925) 671-3355 With a copy to: Concord City Attorney: City Attorney City of Concord 1950 Parkside Drive Concord, California 94519 Telephone: (925) 671-3160 The terms and conditions of the foregoing letter of intent are hereby accepted by the &Vvil 2 , 2008. undersigned on La Pinata of Concord, LLC, a California limited liability company Its: Partner 4 1080226vI29736/0005