AMENDMENT NO. 2 TO LEASE AGREEMENT
BETWEEN THE CITY OF HUNTINGTON BEACH
AND MICHAEL & CHRISTIE BARTUSICK dba PARK BENCH CAFÉ
THIS AMENDMENT NO. 2 (Amendment") is made and entered into on , 2026 by and between the CITY OF HUNTINGTON BEACH, a
municipal corporation ("City" or "Lessor"), and MICHAEL BARTUSICK AND CHRISTIE BARTUSICK dba PARK BENCH CAFÉ, a California corporation ("Lessee"). Lessor and Lessee are at times collectively referred to herein as "Parties" and individually as a "Party." RECITALS:
WHEREAS, pursuant to that certain Lease dated August 6, 2012, as amended by the Parties by that certain Amendment dated March 21, 2023, Lessee leases from Lessor certain real property (the "Property"), described as a café style restaurant with outdoor dining, known as Park Bench Café, whose address is 17732 Goldenwest Street, Huntington Beach, CA, together with a building and other related improvements (collectively referred to as the "Improvements").
The term "Premises" as used in this Lease shall mean both the Property and the Improvements; and
The Parties desire to further amend the Lease to extend the term thereof, and adjust other terms and provisions as set forth herein,
NOW, THEREFORE, the Parties covenant and agree as follows:
EXTENSION OF TERM: Section 5 of the Lease, entitled "Term," is hereby amended to read as follows:
This Lease shall commence at 12:01 a.m. on August 6, 2012, and shall end at 11:59 p.m. on August 5, 2036, unless extended, or sooner terminated, as provided for herein.
Upon mulual agreement of the Parties, this Lease may be extended for one (1) additional period of five (5) years. Lessee agrees that the café/restaurant shall be operational a minimum of 250 1 26-18704 / 426312
days per year. An operational day is defined as being open for business a minimum of four (4) hours per day.
2. MAINTENANCE: Section 26 of the Lease, entitled "Maintenance of Premises," is hereby amended to read as follows:
City's maintenance responsibilities of the Premises shall be limited to maintaining all sewers and drain lines, and attached public restrooms (if they exist). Except as set forth in the preceding sentence, Lessee agrees to maintain the Premises in good order and repair, including the roof and HVAC systems, at Lessee's sole cost and expense, during the entire term of this Lease or any renewals or extensions thereof or during any holdover period, pursuant to the City's maintenance standards. A copy of the quarterly evaluation summary sheet setting forth the City's maintenance checklist is altached as Exhibit "C," and incorporated herein by this reference. Except as provided above, Lessee, at its sole cost and expense, shall perform any maintenance and repairs including, without limitation, facility maintenance and landscape maintenance on the Premises.
Lessee's obligation includes, without limitation, maintaining and operating the Premises and adjacent areas to a distance of not more than fifty (50) feet, in a clean, safe, wholesome and sanitary condition free of trash, garbage or obstructions of any kind and in compliance with any and all present and future laws, general rules or regulations of any governmental authority now, or at any time during the entire term of this Lease or any renewals or extensions thereof or during any holdover period, in force, relating to sanitation or public health, safety or welfare, or for the protection of life, limb or property; and Lessee shall at all times faithfully obey and comply with all laws, rules and regulations applicable thereto. Lessee, at its sole cost and expense, shall remedy without delay any defective, dangerous or unsanitary condition(s) caused by Lessee or anyone related thereto. Provided, however, that Lessee shall have no obligation to repair or maintain sewer lines or respond to sewer leaks.
Lessee shall paint, stain or seal the Premises' exterior surfaces a minimum of every three (3) years, unless City determines in its sole discretion that such work shall be done on a more frequent basis. All exterior metal surfaces, except the roof, shall be painted with rust resistant paint no less than once every other year. Any and all graffiti on the Premises shall be removed by Lessee, at its sole cost and expense, within forty-eight (48) hours of Lessee receiving notice thereof or of Lessee becoming aware of such graffiti. In addition, with or without notice from City, Lessee shall, at its sole cost and expense, repair and/or replace any broken glass within forty-eight (48) hours of its becoming broken, regardless of cause, except by fault of City.
Except as provided above for graffiti and broken glass, Lessee, at its sole cost and expense and with or without notice from City, shall repair and/or replace all damage or destruction to the Premises caused by acts) of vandalism as soon as possible but in no event later than fourteen (14) days after the date such damage or destruction occurred. Lessee, at its sole cost and expense, shall repair and/or replace all other damage or destruction to the Premises, regardless of'cause, except by fault of City.
2 26-18704 / 426312
Lessee shall comply with all written notices served by City with regard to the care and maintenance of the Premises. Any written notice hereunder shall specify the work to be done and the period of time deemed to be reasonably necessary for completion of such work. Should Lessee fail to commence making the necessary repairs within seven (7) days after receiving such notice, or within twenty-four (24) hours of the glass becoming broken in the case of broken glass, or fail to diligently proceed to complete the necessary repairs within the period of time reasonably specified in the City's notice, or within forty-eight (48) hours of the glass becoming broken in the case of broken glass, or within the forty-eight (48) hour time period for removing graffiti, or within fourteen (14) days of the date that the vandalism damage or destruction occurred, City shall proceed to cause the required work to be performed, and Lessee shall promptly reimburse City for the cost of labor and materials thereof and pay City a penalty on such costs at the penalty rate set forth in Section 11 above from the date the costs were incurred by City to the date they are reimbursed to City by Lessee.
Lessee hereby expressly waives the right to make repairs at the expense of City and the benefit, if any, of the provisions of Sections 1941 and 1942 of the California Civil Code relating thereto.
3. RENT: Section 10 of the Lease, entitled "Rent," is hereby amended to read as follows:
Minimum Base Rent. For the first year of this Lease, Lessee shall pay City as minimum rent for the Premises ("Minimum Base Rent") the sum of Nineteen Thousand Two Hundred Dollars ($19,200.00) per year, plus any increases provided for Sub-Paragraph "b)" below. Rent shall be paid in lawful money of the United States of America, without deduction or offset, at Huntington Beach City Hall, City Treasurer, 2000 Main Street, Huntington Beach, CA 92648, or the place City may designate in writing. Lessee shall pay City each month One Thousand Six Hundred Dollars ($1,600.00), which is one-twelfth of the Minimum Base Rent.
Should monthly payments for Minimum Base Rent be required for any partial month pursuant to any provision of the Lease, such Rent shall be prorated in accordance with the actual number of days in the month in which such proration occurs.
(b) Adjustment of Minimum Base Rent. Commencing on the first anniversary ofthis Lease, and each anniversary thereafter ("Rent Adjustment Date"), the Minimum Base Rent shall be adjusted by the annual increase in the Consumer Price Index for All Urban Consumers (CPI-U) "All items in the Los Angeles-Long Beach-Anaheim, CA all urban consumers, not seasonally adjusted" dataset published by the Bureau of Labor Statistics, United States Department of Labor, as available for the prior one-year period from October 1 through September 30. In no event shall the Minimum Base Rent be decreased from the previous year.
For purposes of this calculation, the month of June will be used as the indices date. (c) Percentage Rent. In alternative to the Minimum Base Rent, each month Lessee shall pay City a sum ("Percentage Rent") equal to the amounts that the product of the percentage rate set forth in this paragraph multiplied by the cumulative Gross Sales at the Premises through that month of the Operational Year exceeds the Minimum Annual Rent owed 3 26-18704/426312
for the same month. Lessee shall pay City Percentage Rent according to the following annual Gross Sales Percentages:
Percentage Rent
50 - $100,000.00 = 8.0%
$100,000.01 - $150,000.00 = 9.0%
$150,000.0 - $200,000.00 = 10.0%
Over $200,000.01 = 11.0%
Minimum Base Rent* = $1,600.00 per month plus annual CPI increases *Monthly rent will equal minimum base rent or percentage of gross sales for the month, whichever is greater
The 'Operational Year' is a one-year period ending December 31. For purposes of computing the percentage Rent for any partial Operational Year at the beginning or end of the Lease Term or any extension thereof, the volume of Gross Sales for that period shall be adjusted pro rata to the number of months in that partial Operational Year to determine the Percentage Rent to utilize.
Lessee shall pay the Rent monthly to City at the City Treasurer's Office, P.O. Box 711, Huntington Beach, California, 92648, or at such other place or places as City may from time-to- time designate by written notice delivered to Lessee. Lessee shall pay the Rent, which must be received by the City Treasurer within fifteen (15) calendar days after the end of the month for which the Rent is being paid, or on the next business day if the fifteenth day falls on a weekend or holiday.
4. RENT CREDIT: Section 27 of the Lease, entitled "Rent Credit," is hereby amended to read as follows:
City in its sole discretion may consider a rent credit to assist with the proposed construction and installation of an enclosed patio under the following conditions:
If the proposed project is completed within three (3) years of execution of this Amendment, the City will contribute up to 50%, not lo exceed $20,000, in rent credit to offset a portion of the hard construction costs incurred by Lessee. Such rent credit will not be used to compensate for any soft cost such as permitting, entitlements, architectural, administrative, or any other non-construction related expenses.
b. If the proposed project is not completed by the end of Year 3 of this Amendment, the city will not be obligated to pay any amount in any form to offset any cost of the proposed project.
4 26-18704 / 426312
INTEGRATIONS AND CONFLICTS: The Parties acknowledge and agree that this Amendment shall be integrated into the Lease as part thereof. In the event of any conflict or inconsistency between the provisions of the Lease and the terms of this Amendment, the terms of this Amendment shall control.
BINDING EFFECT: This Amendment shall be binding upon, and insure to the benefit of, the Parties and their respective successors and assigns.
JOINT PREPARATION: The Parties have been represented by counsel in the negotiation of the terms of this Amendment and have jointly prepared this Amendment.
MODIFICATIONS: This Amendment may not be amended or modified unless such amendment or modification is in writing and signed by both Parties.
COUNTERPARTS: This Amendment may be executed in any number of duplicate originals and each such duplicate original shall be deemed to constitute but one and the same Amendment.
10. EFFECTIVE DATE: This Amendment No. 2 shall be effective upon the closing date of the business escrow for the assignment and sale of Lessee's right, title and interest in the Lease to 2R2S, LLC. City has provided its consent to the Assignment by separate instrument of even date herewith. If the transfer is not completed as authorized by the Assignment, this Amendment No. 2 shall be void and of no further effect, and Lessee shall continue to operate the Premises pursuant to the Original Lease as previously amended.
REST OF PAGE NOT USED
5 26-18704 / 426312
IN WITNESS WHEREOF, the parties hereto have caused this Lease Amendment to be executed by and through their authorized officers the day, month and year first above written.
LESSEE: LESSOR:
CITY OF HUNTINGTON BEACH, a
Municipal corporation of the State of
California
Michael Bartusick
'hustie Dartusick Mayor
Christie Bartusick
City Clerk
APPROVED AS TO FORM:
City Attorney
INITIATED AND APPROVED:
Director of Community & Library Services
REVIEWED AND APPROVED:
City Manager
26-18704 / 426312