California-Del Mar-Del Mar Thoroughbred Club Rental Agreement - Premier Food Services Inc. and Rubio's Baja Grill
ORIGINAL - RENTOR AGREEMENT NO. 0498
1 DUPLICATE - PFS/CORPORATE DATE 07/10/98
1 DUPLICATE - PFS/DEL MAR
RENTAL AGREEMENT __FAIRTIME
__INTERIM
__SATELLITE WAGERING
__RACETRACK
THIS AGREEMENT by and between PREMIER FOOD SERVICES, INC., hereinafter called
Premier and RUBIO'S BAJA GRILL hereinafter called the Rentor,
WITNESSETH:
1. THAT WHEREAS, The Rentor desires to secure from Premier certain rights
and privileges and to obtain permission from Premier to use Premier's location
beginning on JULY, 10, 1998 THROUGH SEPTEMBER 20, 1998, JULY 10, 1999 THROUGH
SEPTEMBER 20, 1999, JULY 10, 2000 THROUGH SEPTEMBER 20, 2000.
2. NOW, THEREFORE, Premier hereby grants to the Renter the right to occupy
the space(s) described below for the purposes hereinafter set forth, subject to
the terms and conditions of this agreement: GRAND STAND C-2053-1
3. The purpose of occupancy shall be limited to: SALE OF FOOD AND
NON-ALCOHOLIC BEVERAGE
4. Rentor and Premier agree to pay fees as described on Addendum - A
4. Rentor agrees to guarantee the payment of :
a. Deleted
b. Any damage caused by Rentor to Fair property;
c. Removal of all property and the leaving of the premises in
condition satisfactory to Premier.
5. Premier and Rentor shall have the right to audit and monitor any and all
sales as well as access to the premises.
6. To the fullest extent permitted by law, the Operator shall defend,
indemnify and hold harmless Premier, Del Mar Thoroughbred Club and the District
and its agents, directors, and employees from and against all claims, damages,
losses and expenses, arising out of, connected with, or resulting from directly
and indirectly, any failure of the Operator to perform in accordance with the
terms, conditions, and specifications of this proposal. Said claims, damages,
losses and expenses shall include but not be limited to attorney's fees and any
claims, damages, losses and expenses due to the non-performance of this
proposal. The parties further acknowledge that experience will demonstrate
changes that will be required in the methods of management, operation,
maintenance and repair, and that a certain degree of flexibility will be
required.
7. Rentor further agrees that he will not sell, exchange or barter, or
permit his employees to sell, exchange or barter, any permits issued to Rentor
or his employees hereunder.
8. It is mutually agreed that this contract or the privileges granted
herein, or any part thereof cannot by assigned of otherwise disposed of without
the written consent of Premier.
9. It is mutually understood and agreed that no alteration or variation of
this contract shall be valid, unless made in writing and signed by the parties
hereto, and that no oral understandings or agreements not incorporated herein
and no alterations or variations of the terms thereof, unless made in writing
and signed by the parties hereto, shall be binding upon any of the parties
hereto.
10. The Rules and Regulations printed on the reverse side hereto are made a
part of this agreement as though fully incorporated herein, and Rentor agrees
that he has read this agreement and the said Rules and Regulations and
understands that they shall apply, unless amended by mutual consent in writing
of the parties hereto.
11. In the event Rentor fails to materially comply with the terms of this
agreement and the Rules and Regulations referred to herein, *** for
this rental space shall be *** and *** by Premier and Premier shall
have the right to occupy the space in any manner deemed for the best interest of
Premier.
12. Special Provisions: 1. PREMIER WILL APPROVE ALL REGISTER SYSTEMS AND
TRAINING OF REGISTER SYSTEM, WHEN APPLICABLE. 2. *** 3. DELETED.
13. This agreement is not binding upon Premier until it has been signed by
its authorized representative, and approved (if required by) Premier Food
Services Inc. Corporate Representative and 22nd District Agricultural
Association's authorized representative.
IN WITNESS WHEREOF, this agreement has been executed in triplicate, by and
behalf of the parties hereto, the day and year first above written.
PREMIER FOOD SERVICES, INC. RUBIO'S RESTAURANTS, INC.
-------------------------------
Rentor
Address: 2260 Jimmy Durante Blvd.
Del Mar CA 92014 Address 5151 Shoreham Pl. #260
---------------------------
SAN DIEGO, CALIFORNIA 92122
---------------------------
By By /s/ James W. Stryker
------------------------------------- --------------------------------
Title Title Vice President
----------------------------------- ------------------------------
*** Portions of this page have been omitted pursuant to a request for
Confidential Treatment and filed separately with the Commission.
<PAGE>
RULES AND REGULATIONS GOVERNING RENTAL SPACE
1. No Renter will be allowed to open until all the preliminary
requirements herein set forth have been complied with.
2. Rentor will conduct his business in a quiet orderly manner: will
deposit all rubbish, slop, garbage, tin cans, paper, etc. in
receptacles provided by Premier within said concession plot for such
purpose, and will keep the area within and surrounding said concessions
free from all rubbish and debris.
3. All buildings, tents, or enclosures erected under the terms of Rental
Agreement shall have the prior approval of Premier and the local fire
suppression authorities. All eating concessions not restricted to
specific items will submit menus and prices to Premier for approval at
least twelve (12) hours in advance of each day's operation.
4. Rentor will furnish Premier with a list of all sales prices and other
charges of any kind whatsoever to be charged by the Rentor in said
space(s).
5. Rentor must furnish receipts for license fees, tax deposits, insurance,
etc., prior to event.
6. Rentor will conduct the privileges granted in the Rental Agreement
according to the rules and requirements of the State Department of
Health Services and local health authorities, and without infringement
upon the rights and privileges of others; will not handle or sell any
commodities or transact any business whatsoever for which an exclusive
privilege is sold by Premier, nor engage in any other business
whatsoever upon or within said premises or fairgrounds, except that
which its herein expressly stipulated and contracted for: will confine
said transactions to the space and privileges provided in the Rental
Agreement, and that any and all exclusive granted Rentor shall not
include the Carnival and Carnival Area.
7. Rentor will cause to be posted in conspicuous manner at the front
entrance to the concessions, a sign showing the prices to be charged
for all articles offered for sale to the public under the Rental
Agreement: the size of said sign, manner and place of posting to be
approved by Premier.
8. Premier will furnish necessary janitor service for all aisles, streets,
roads and areas used by the public, but Rentor must, at his own
expense, keep the concession space and adjacent areas properly arranged
and clean. All concessions must be clean, all coverings removed, and
the concessions ready for business each day at least one hour before
the fair is open to the public. Receptacles will be provided at several
locations to receive Rentor's trash, and such trash must not be swept
into the aisles or streets or any public space.
9. All sound-producing devices used by Rentor within or outside his space
must be of such a nature and must be so operated as not to cause
annoyance or inconvenience to his patrons or to other Concessionaires
or Exhibitors and the desirability of any such sound-producing device
shall be final and conclusive. Sound-amplification equipment may be
installed within or outside any space only by first obtaining written
permission thereof from Premier.
10. Rentor agrees that there will be no games, gambling or any other
activities within the confine of his space in which money is used as a
prize or premium, and that he will not buy and/or permit "buy backs"
for cash, any prizes or premiums given away to patrons in connection
with the use of the space. Only straight merchandising methods shall be
used and all methods of operation, demonstration and sale, shall be
subject to the approval of Premier and the local law enforcement
officials.
11. Rentor is entirely responsible for the space allotted to Rentor and
agrees to reimburse Premier for any damage to real property, equipment,
or grounds used in connection with the space allotted to Rentor,
reasonable wear and tear damage from causes beyond Rentor's control
excepted.
<PAGE>
12. Each and every article of the space and all boxes, crates, packing
materials, and debris of whatsoever nature used in connection with the
space and owned by Rentor must be removed from the buildings and
grounds by Rentor, at his own expense, not later than a date specified
by Premier. It is understood in the event of Rentor's failure to vacate
said premises as herein provided, unless permission in writing is first
obtained, Premier may and is hereby authorized and made the agent of
Rentor to remove and store the concession and all other material of any
nature whatsoever, at the Rentor's risk and expense, and rentor shall
reimburse Premier for expenses thus incurred.
13. No Rentor will be permitted to sell or dispose of alcoholic beverages
anywhere on the fairgrounds.
14. All safety orders of the Division of Industrial Safety, Department of
Industrial Relations, must be strictly observed.
15. Failure of Premier to insist in any one or more instances upon the
observance and/or performance of any of these rules and regulations
shall not constitute a waiver of any subsequent breach of any such
rules and regulations.
16. This rental agreement shall be subject to termination by either party
only upon material breach of this Agreement by the other Party.
17. Deleted.
18. Deleted.
19. Premier shall have the privilege of inspection the premises covered by
this agreement at any time or all times.
20. The parties hereto agree that Rentor, and any agents and employees of
Rentor, in the performance of this agreement, shall act in an
independent capacity and not as officers or employees or agents of
Premier.
21. Time is of the essence of each and all provisions of this agreement,
and the provisions of the agreement shall extend to and be binding upon
and inure to the benefit of the heirs, executors, administrators,
successors, and assigns of the respective parties hereto.
<PAGE>
Premier Food Services
Del Mar Fairgrounds & Racetrack
Addendum A
BASE TERM: Three (3) seasons.
TERM/RENT COMMENCEMENT: Three (3) Horse Racing seasons
July 10, 1998 through September 20, 1998
July 10, 1999 through September 20, 1999
July 10, 2000 through September 20, 2000
PREMISES: Space shall be located on the second floor of the Grandstand
Building, commonly known as Stand 2053.
REIMBURSEMENT SCHEDULE: Premier Food Services, Inc. (PFS) shall pay
Rubio's Restaurants, Inc. as follows:
1998 season *** of audited net sales (excluding alcohol
sales) In addition, *** of audited net sales
(excluding alcohol sales) to offset improvement
costs.
1999 season *** of audited net sales (excluding alcohol
sales) In addition, *** of audited net sales
(excluding alcohol sales) to offset improvement
costs.
2000 season *** of audited net sales (excluding alcohol sales)
In addition, *** of audited net sales (excluding
alcohol sales) to offset improvement costs (if
applicable).
Reimbursements will be due on Wednesday of each
week throughout the term of the Agreement; each
payment is to include all amounts due Rubio's
through sales recorded for the seven days ended on
the Sunday prior to each Wednesday's reimbursement
due date.
TOTAL ADDITIONAL REIMBURSEMENT NOT TO EXCEED *** .
IMPROVEMENTS: Rentor shall construct all improvements, at a cost not to exceed
***, as per Exhibit "A." Costs to be agreed upon by both parties
prior to commencement of construction. Improvements to include
all signage.
MERCHANDISE: Merchandise sales are not covered by this agreement.
*** Portions of this page have been omitted pursuant to a request for
Confidential Treatment and filed separately with the Commission.
<PAGE>
EXHIBIT "A" 7/8/98
Del Mar Track Remodel Estimate
EQUIPMENT BREAKDOWN:
<TABLE>
<CAPTION>
Qty Equipment *** ***
-------------------------------------------------------------------------------------------
<S> <C> <C> <C>
2 Heat Shelves *** ***
2 Cup Dispensers 22 oz. *** ***
1 Salsa Bar Pan *** ***
1 Sneeze Guard *** ***
1 Wells Warmer *** ***
1 2 Burner Gas Range *** ***
1 36" Flat Grill *** ***
2 Gas Hose(s) for above *** ***
1 Equipment Stand 48" wide *** ***
1 Heat Holding Cabinet *** ***
2 Heat Lamps *** ***
1 Stainless Shelf *** ***
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
Total ***
<CAPTION>
SIGNAGE/DECOR
Qty Signage/Decor *** ***
-------------------------------------------------------------------------------------------
<S> <C> <C> <C>
1 Illuminated Sign *** ***
1 House Rules sign *** ***
1 Story of Pesky *** ***
1 Max Map #115 *** ***
1 Locations sign *** ***
1 Photo #98 Aurora 30x36h *** ***
1 Photo #45 Cove Scene 16x20V *** ***
1 Surfboard Menu 22"x11' *** ***
1 Transparency Food Photo *** ***
1 Rubio's Sign on Facia *** ***
1 Menu vinyl on surfboard *** ***
1 Art Sign install *** ***
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
Total ***
<CAPTION>
FURNITURE
Qty Furniture *** ***
-------------------------------------------------------------------------------------------
<S> <C> <C> <C>
6 Bar Height Tables Bases *** ***
6 30" square Table tops *** ***
11 Bases for Stand up Bar *** ***
1 24' Long Laminate Bar Top *** ***
along Paddock Walk
1 Re Work Front Counter; *** ***
Add Stainless Steel
12 Add Electrical Outlets (12) *** ***
1 Construct Cashier/Beer Stand *** ***
1 Gas Plumbing for New Equip. *** ***
1 8' Diameter Palapa *** ***
1 Galvanized Cue Rail *** ***
1 Water Supply for Soda *** ***
1 Paint *** ***
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
Total ***
GRAND TOTAL ***
</TABLE>
Real Estate Development
*** Portions of this page have been omitted pursuant to a request for
Confidential Treatment and filed separately with the Commission.