Item 14 CITY COUNCIl REPORT Meeting Date: January 14, 2014 General Plan Element: Economic Vitality General Plan Goal: Encourage high quality retail and entertainment

ACTION

Outdoor Dining License Agreement with Ricky's Restaurant located at 7325 E. Shoeman Lane. Adopt Resolution 9579 authorizing Outdoor Dining License Agreement 2013-183-COS with NYSBV Investment, LLC for an outdoor dining patio on City Right-of-Way.

BACKGROUND

The purpose of this action is to approve a new Outdoor Dining License with NYSBV, LLC and its tenant Ricky's Restaurant - Authentic Mexican Food, LLC, also known as Rick/s Restaurant, at the Southwest corner of Shoeman Lane and Welts Fargo Avenue. The licensed area is approximately 267 square feet.

This outdoor dining license will not impact any on-street parking spaces or existing sidewalks. Historically, the City has supported outdoor dining activities to energize downtown areas. There are outdoor dining patios in operation in the surrounding area, including several located to the west at the Downtown Waterfront and a few blocks to the south.

ANALYSIS & ASSESSMENT Recent Staff Action The existing patio location will not impact access to, or operation of, the sidewalk space. The terms of the License Agreement are similar to other outdoor dining license agreements within the downtown area, and include the following provisions: • A five-year license, with two optional five-year extensions, available upon approval by the City.

• Either party may cancel the license with a 30-day notice.

• The initial use fee is $1,602 a year or $6 per square foot, with escalation period beginning every July 1 based on the Consumer Price Index

• In addition to the general liability insurance, the lessee must provide liquor liability insurance of $1,000,000 for each occurrence and $2,000,000 policy aggregate.

AcBonlBlan ^ city Council Report | Outdoor Pining Ucense- 7325 E. Shoeman Lane

• Cooking on the patio area is prohibited.

• A cash security deposit of $1,000 is required.

• This agreement has language included to specifically precludevideo, computers, video displays or other equipment for displaying video images or signals without specific approval for special events. Community Involvement The Development Review Board approved the design and location on October 17, 2013 with 66-DR- 191#2. This is a new license at an existing location subject to Council approval of the license agreement.

RESOURCE IMPACTS Available funding

No City funding is required as a result of this action.

Staffing, Worldoad Impact The license agreement will be administered by existing Capital Project Management Real Estate staff. The licensee Is responsible for all construction, maintenance and operational costs of the outdoor dining area. Maintenance Requirements No significant maintenance requirements will result from this action. Minor upkeep of the adjacent landscape and patio areas is the responsibility of the property owner. OPTIONS & STAFF RECOMMENDATION " Recommended Approacli Adopt Resolution 9579 authorizing Outdoor Dining License Agreement 2013-183-COS with NYSBV Investment, LLC for an outdoor dining patio.

Proposed Next Steps If Council adopts Resolution 9579, the licensee will pay the City a deposit and first installment of the required use fees.

RESPONSIBLE DEPARTMENT(S)

Public Works Division, Capital Project Management

STAFF CONTACTS (S)

Bob Hults, Real Estate Management Specialist, (480) 312-7066 [email protected]

Page 2 of 3 city Council Report | Outdoor Dining License - 7325 E. Shoeman Lane

APPROVED BY

Daniel J. WortTiAExecutive Director, Public Works Date (480) 312-5555. [email protected]

ATTACHMENTS

1. Resolution 9579

2. Location Map

3. Contract 2013-183-COS

Page 3 of 3 RESOLUTION NO. 9579

A RESOLUTION OF THE COUNCIL OF THE CITY OF SCOTTSDALE. MARICOPA COUNTY. ARIZONA. AUTHORIZING A LICENSE AGREEIVIENT FOR A PROPOSED OUTDOOR DINING PATIO FOR A RESTAURANT ON THE SOUTH SIDE OF SHOEMAN LANE BETWEEN WELLS FARGO AVENUE AND BUCKBOARD TRAIL

(Ricky's Restaurant outdoor dining)

WHEREAS:

A. Scottsdale's downtown is an important community asset providing significant economic, tourism and cultural amenities for Scottsdale's citizens, businesses and visitors.

B. The City of Scottsdale ("City") is committed to maintaining and enhancing downtown to provide these important community benefits.

C. Activating public spaces through outdoor dining patios and similar amenities increases the attractiveness of downtown to tourists and othenwise advances the prosperity of downtown and the broader corinmunity.

D. Including such projects as part of dovmtown provides the potential for visitors to better experience the community and its amenities and heritage.

E. City owns land interests or use rights on the south side of Shoeman Lane between Wells Fargo Avenue and Buckboard Trail that are suitable for an outdoor dining patio (the "City Parcel").

F. City desires to enter into a contract v\nth NYSBY Investment LLC, an Arizona limited liability company (the "Licensee"), which is the owner of an adjacent restaurant parcel (the "Restaurant Parcel") to operate the City Parcel as an outdoor dining patio integrated with the restaurant operation on the Restaurant Parcel.

NOW, THEREFORE, BE IT RESOLVED that: Section 1. The Mayor is hereby authorized to execute on behalf of the City of Scottsdale the Outdoor Dining License Agreement No. 2013-183-COS.

11742025V4 Page 1 of 2 Resolution 9579 ATTACHMENT 1 PASSED AND ADOPTED by the Council of the City of Scottsdale this day of ,20 . CITY OF SCOTTSDALE. an Arizona municipal corporation

W. J. "Jim" Lane, Mayor

ATTEST:

By: Carolyn Jagger, City Clerk

APPROVED AS TO FORM

OFFICE OF THE CITY ATT0F5NEY

BY: ^ "

11742025V4 Page 2 of 2 Resolution No. 9579 : 3 k 1 ill i WHEN RECORDED, RETURN TO: | City of Scottsdale \ One Stop Shop/Records . j (Robert Hults) 7447 E. Indian School Road, Suite 1 CO Scottsdale, AZ. 85251

(Agreement No. 2013-183-COS) (Rick/s Restaurant outdoor dining) (resolution 9579) j

OUTDOOR DINING PATIO REVOCABLE LICENSE AGREEMENT ! ; I THIS OUTDOOR DINING PATIO REVOCABLE LICENSE AGREEMENT (the "Agreement") Is made and entered into this day of 20 , by and t)etween the City of Scottsdale. an Arizona municipal corporation ("Ucensor"). and NYSBV Investment, LLC, an Arizona limited liability company ('Licensee").

RECITALS .

A Ucensor owns fee title or other Interests in certain real property (the "Use Areas") comprising approxirrrately Two Hundred Sixty Seven (267) square feet of land described on ExhlUt "A** attadied hereto and labeled as "City Dining Area" on the drawing attached hereto as Exhibit "B" (the "Site Plan"). |

B. Licensor also owns or holds rights to additional real property (the 'Adjacent Right- of-way") adjacent to the Use Areas as shown on the Site Plan. The Adjacent Right-of-way Is all ' public property and public property interests or use rights within fifty feet (50') of the Use Areas. Notwithstanding the preceding sentence.

C. Licensee owns a certain existing restaurant building (the 'Restaurant Building") located upon a certain parcel of real property (the "Restaurant Parcel") described on Exhibit "C" attached hereto and labeled as "Restaurant" on the Site Plan. The Restaurant Parcel is located at 7325 E. Shoeman Lane, which Is located Immediately west of the Use Areas..

D. Licensee desires to use the Use Areas solely for outdoor, sit-down food and beverage service only for immediate consumption at the Use Areas of food and beverages (including alcohol) prepared inside the Restaurant Building (the Termitted Uses") subject to the requirements of this Agreement

E. As of the date of this Agreement, the Use Areas are partially improved with paving, sidewalks, and other facilities for the public street known as Wells Fargo Avenue.

F. In order to {X)nduct the Permitted Uses, Licensee desires to constnjct upon and about the Use Areas the certain improvements (the "Project") shown on the Site Plan. i 11624367v4 Page 1 of 41 ATTACHMENTS G. Licensee shall complete the entire Project and begin conducting the Permitted Uses no later than Febmary 1.2014 (the "Completion Deadline").

H. Licensor desires to resen^e rights to construct and use additional improvements upon the Use Areas subject to the requirements of this Agreement

NOW, THEREFORE, for and In consideration of the foregoing, the amounts hereinafter to be paid by Licensee, and the covenants and agreements contained herein to be kept and peri'ormed by Licensee, and other good and valuable consideration. Licensor and Licensee agree as follows:

I. USE AREAS

1. Use Areas. Licensee's rights to use the Use Areas are as follows:

1.1 Restrictions on Use Areas. The Use Areas includes and Is limited to the area shown on the Site Plan that is labeled as 'City Dining Area".

1.2 Condition of Use Areas. Licensee has examined, studied and inspected the Use Areas, and the Adjacent Right-of-way, and all other property associated with this Agreement and Its environs. All of such property is being made available in an "as is" condition without any express or Implied warranties of any kind. Including without [imitation any warranties or representations as to their condition or fitness for any use. Ucensee has obtained such infbmnation and professional advice as Ucensee has determined to be necessary related to this Agreement, the Use Areas, or this transaction. Licensee has had extensive prior experience with the Adjacent Right-of-way and the Use Areas and is familiar with their condition.

1.3 Licensor's Fixtures and Personally. Ucensor is not obligated to provide to Licensee any fixtures or personal property owned by Licensor At Ucensee's expense, Licensee shall thoroughly Inspect and malce safe before use any and all of Ucensor's property that may come into Ucensee's possession or tie used by Ucensee, shall return such property to Ucensor at termination of this Agreement shall maintain such property In good working condition from time to time, and shall replace such property when worn out Ucensor shall own such property at all .times with Licensee being solely responsible for Its condition. All such personal property is provided "as Is" and Ucensee accepts all responsibility for its condition. Without Ucensor's prior written consent, Ucensee shall not remove, damage or alter in any way any improvements or fixtures upon the Use Areas (whether installed by Ucensee, Licensor or othenAnse) or any personal property of Licensor, except as othenvise expressly provided in this Agreement

1.4 Variation In Area. If the Use Areas consist of moi^ or less than the stated area, this Agreement shall nevertheless continue and Ucensee's obligations hereunder shall not be Increased or diminished.

1.5 Rights in Adiacent Property. Licensee's rights are. expressly limited to the real property defined as the "Use Areas" in this Agreement Without limitation. In the event any public right-of-way or other public or private properiy at or adjacent to the Use Areas Is dedicated, abandoned or otherwise acquired or disposed of by Lrcensor, such property shall not accnje to this

11624367v4 2 of 41 Contract No. 2013-183-COS Agreement but shall be Licensor's only, in addition, and severable from the preceding sentence, upon any such event Licensee shall quit-claim to Licensor such right-of-wayo r other property.

1.6 No Real Property Interest Notwithstanding any provision hereof to the contrary, and notwithstanding any negotiation, con^pondence, course of perfomiance or dealing, or other statements or acts by or between the parties, Licensee's rights are limited to the Use Areas and Licensee's rights in the Use Areas are Ilmjted to the specific limited license rights created by this Agreement v^Ich creates only a revocable license in the Use Areas. Ucensor and Licensee do not by this instrument intend to create a lease, easement or other real property interest. Ucensee shall have no real property interest in the Use Areas or the Adjacent Riglit-of-way.

1.7 Reservattons. Licensor specifically reserves to itself and excludes from this Agreement a non-exclusive delegable right (the "Reserved Righf') over the entire Use Areas (including any area that may othenvise be for Ucensee's exclusive use) as follows:

1.7.1 Ucensor shall have the right to use and allow others to use the Use Areas and any existing or future improvements upon the Use Areas and to constnjct, open, repair, use and othenvise deal with all manner of improvements at any location upon the Use Areas to the extent such uses and improvements do not. In Licensor's reasonable discretion, materially and substantially impair Licensee's ability to use the Use Areas under the terms of tills Agreement. For example, and without limitation. Licensor may construct additional utilities upon the Use Areas and may perform wotk related to traffic conditions; public health, safety or wel^re; street abandonment; street or other utility or improvement construction or repair; change or establishment of street grade; and Installation or other work relating to sewers, drains, water pipes, power lines, signal lines, transportation facilities, pavement, sidewalks, drainage worics, landscaping, utilities, tracks, or any other types of stmcture, wortc or iniprovements of any description, whether or not included within or rielated in any manner to any of the foregoing.

1.7.2 Neltiier Licensor nor any agent contractor or emptoyee of Ucensor shall be liable to Ucensee, its customers or third parties for any service disruption or for any other harm caused them or their improvements or personalty due to any exercise by Licensor of its rights under this Agreement

1.7.3 Ucensor shall have the unilateral right to modify the entirety of Uie Use Areas and Adjacent Right-of-way from time to time during the term of Uiis Agreement Licensor may also unilaterally regulate, reroute, dose and othenArise alter pedestrian and vehicular traffic access to the Use Areas and Adjacent Right-of-way. and travel within any area of the Use Areas and Adjacent Right-of-way without Ucensee's consent. The preceding sentence does not allow Ucensor to provide less access, if any, to the Restaurant Parcel than Ucensor would be required to provide to the Restaurant parcel und^ applicable law if Licensor and Lk:ensee had not entered Into this Agreement

1.7.4 Upon Licensor's request Ucensee at Its expense shall protect, support disconnect relocate and renrave Llcensee*s property and improvements at its own expense upon ten (10) days notice from Licensor or such shorter notice (or no notice) as Ucensor may determine to tie prectical In the circumstances. Within ttitrty (30) days after Ucensor finishes exercising its Resen/ed Right Licensee at Ucensee's expense shall replace any item temporarily removed.

11624367v4 3 of 41 Contract No. 2013-183-COS Licensor may perform any such wori( not performed by Ucensee. and Ucensee shall reimburse Licensor for its actual costs of such woric.

1.7.5 All new improvements or equipment constructed or installed by Licensor shall be for Ucensor's exclusive, delegable use.

1.7.6 Ucensee shall actively cooperate with Ucensor to fadlitate Licensor's exerdse of the Reserved Right

1.7.7 Except in an emergency, entries by Licensoi', otiier public agendes, utility providers and other persons and entities shall be made orily after reasonable notice to Ucensee. Any damage or injury to the Use Areas or to any part thereof resulting from entry by such third parties shall be promptiy repaired at the sole expense of the person so entering.

1.7.8 Licensor may elect to use the Use Areas for the exercise of al) of Licensor's rights under this Agreement and also for any and all other purposes tiiat do not in Licensor's reasonable discretion materially and substantially Interfere with Ucensee's lawful conduct of tiie Pemiitted Uses under this Agreement.

1.7.9 All of Licensor's reserved rights under the various provisions of this paragraph and the remainder of Uiis Agreement shall be delegable and shall be cumulative to each other.

1.8 Prior Contracts and Condition of Titie. Licensee's rights hereunder are subject to all covenants, conditions, resbictions, easements, agreements, liens, reservations and encumbrances upon, and all other recorded or unrecorded matters or conditions of title to or agreements or documents regarding tiie Use Areas (collectively tiie "Site Documents"). Licensee's rights to use the Use Areas under this Agreement are limited to a sut>set of the interests held by Ucensor under the Site Documents. Ucensee shall not violate the Site Documents. Ucensee shall not have power to amend, modify, temilnate or othenArise change the Site Documents or create new Site Documents. Ucensee has obtained any Information Licensee deerns appropriate regarding the Use Areas and the Adjacent Right-of-way. Licensor does not warrant titie to tiie Use Areas or the Adjacent Riglit-of-way. To the extent Ucensee has any rights In the Use . Areas or the Site Docunrtents, Licensee reaffirms and ratifies the Site Documents in favor of Licensor and conflmis that tills Agreement is consistent with the Site Documents.

1.9 Use Areas and Restaurant Parcel. Ucensee warrants and represents that:

1.9.1 Ucensee owns the fee titie to the Restaurant Parcel.

1.9.2 Instnjments in substantially the form attached to tiiis Agreement as Exhibit "D" (the 'Lienholder Confirmations') have been executed and acknowledged by each person having or daiming a lien, lease, option, easement or other interest in the Restaurant Parcel vtrhereby such persons Join In tiiis Agreement and subject their Interests to tills Agreement and all requirements, provisions and conveyances of ^is Agreement

1.9.3 Ucensee has obtained all required Uenholder Consents and has attached them to this Agreement immediately behind the exhibit to be recordedwit h this Agreement

11624367V4 4 Of 41 Contract No. 2013-183-COS IL TERM OF UCENSE

2. Term of License. Licensor hereby grants to Ucensee a license to use the Use Areas subject to and conditioned upon Ucensee's full, timely, complete and'faithful perfonnance of all performances and things to 1^ peribrmed or done hereunder by Ucensee, and Licensee hereby accepts the Use Areas and this Agreement

2.1 Original Term. The original term of this Agreement shall be for a period of five (5) years commencing on the date of this Agreement

2.2 Extensions. The term of this Agreement may be extended for two (2) additional five (5) year periods as follows:

2.2.1 If this Agreement Is extended, Licensee shall obtain from Licensor and record a notice of extension in form acceptable to Ucensor.

2.2.2 Ucensee shaii not give an extension notice more than three hundred sixty (360) nor less than two hundred seventy (270) days prior to the end of the original .temn or ttie cument extension, nor when an event of default by Licensee exists, nor when an event or oinditidn exists that would become a default by Licensee by tiie passage of time or giving of notice.

2.2.3 No extension shall be effective unless both Ucensor and Licensee consent to tiie extension In thelrsole and absolute discretion.

2.3 Holding Over. In any drcumstance whereby Ucensee would remain In pc^esslon or occupancy of the Use Areas iafter the expiration of this Agreement such holding over shall operate as a limited renewal or extension of this Agreement from month to month that may tie terminated at any time by Ucensor upon thirty (30) days notice to Ucensee, or by Licensee upon sbcty (60) days notice to Licensor.

2.4 Licensor's and Ucensee's Termination Right Either party shall have the unilateral right to terminate this Agreement for any reason whatsoever or for no reason at any time upon thirty (30) days notice.

ML UCENSE PAYMENTS

3. Ucensee's Payments. Ucensee shall make payments to Licensor as follows:

3.1 . Use Fee Categories. Ucensee shall pay to Licensor each of the following separate and cumulative amounts (collectively the "Use Fee"):

3.1.1 A fixed annual amount {the "Base Use Fee").

3.1.2 An amount (the "Encroachment Pemiit Rent") based on l-essee's use of Lessor's public street right-of-way.

3.1.3 All other amounts required by this AgreemerrL

11B24387v4 5 of 41 Conti^ct No. 2013-183-COS 3.2 Base Use Fee Amount The amount of Base Use Fee per calendar year (the 'Annual Equivalent Amount") shall be One Thousand Sb( Hundred Two and No/100 Dollare ($1,602.00) subject to certain adjustments and payable in installments at the beginning of certain periods (the "Installment Periods") as hereafter provided.

3.3 Encroachment Pemnit Use Fee Amount The anxiunt of ttie Ertcroachment Permit Use Pee from time to time shall be the amount if any. by which the applicable encroachment permit fee established from time to time by the Scottsdale City Coundl for the Pennission for Private Improvements in the Right-of-way exceeds the amount of Base Use Fee. Upon Licensee's payment of tiie Base Use Fee and tiie Encroachment Permit Use Fee, Licensor shall either pay, waive or credit the said permit fee. The intent of this paragraph is to eliminate the possibility that the Base Use Fee amount under this Agreement would ever be less than the amount of said encroachment permit fee. This paragraph does not apply to fees for other permits (such as "Permission to Wortt in the Right-of-way", pemiits to alter Ucensor improvements, or barricade permits), all of which Licensee shall pay according to normal rates and processes

3.4 Consumer Price Index Adiustment Certain amounts shall be adjusted (ttie 'CPI Adjustment") upward on ttie basis of changes in the United States Consumer Price Index for all Urban Consumers (CPI-U), U.S. City average, all items, published by ttie United States Bureau of Labor Statistics as of the date ttiree (3) monttis prior to the adjustment date (the "Cost of Uving index"). The amount to be adjusted (ttie "Adjustment Amounf) (represented by tiie letter "R° in the formula set forth below) shall be equal to tiie then cun-ent Cost of Living index numi^er as of tiie date three (3) months before the adjustment (represented by the letter "C In ttie formula set forth below) divided by the Cost of Living Index number as of the date three (3) months before the date of this Agreement (represented by ttie letter "M" in ttie formula set forth below), and multiplied by tiie unadjusted Adjustment Amount (represented by the "S" symbol in ttie formula set forth below). This computation Is expressed by the following fiomiula:

M provided, that in no event shall the Adjustment Amount be adjusted downward from any previous period. If ttie Cost of Living Index shall no longer be published at the adjustment date, then another similar Index published by any Federal agency shall be substitijted by Ucensor

3.4.1 Appraisal Adiustment Certain amounts shall te adjusted (tiie 'Appraisal Adjustment^ based on changes in tiie Use Areas' value as determined by a summary appraisal obtained by Ucensor of unencumbered fee titie to tiie entire Use Areas disregarding this Agreement. The Adjustment Amount shall be adjusted to be equal to ten percent (10%) of the appraisal amount, rounded up to ttie nearest Ten Dollars ($10.00). The Adjustment Amount so established shall be subject to CPI Adjustments and Appraisal Adjustments.

3.4.2 Adiustment Timing and Applicabilitv. On each July 1 after the first annual anniversary of this Agreement the CPI Adjustment shall occur to the Annual Equivalent Amount and every other dollar amount or reference to a stated financial value used to calculate the amount of a Use Fee or ottier requirement of this Agreement Each time an amount Is to be so adjusted, Ucensor shall have the right to instead adjust tiie Adjustment Amount by the Appraisal Adjustment.

11624367v4 6 Of 41 Contract No. 2013-183-COS Such adjustments shall take effect and be retiroactive to the first day of tiie Installment Period in which the adjustinent occurs (or should have occurred. In the case of any delayed adjustment).

3.5 Dari< Period Use Fee Credit A credit (tiie "Dark Period Credit') against the Base Use Fee shall accrue during certain periods (the "Dark Periods") when Ucensee temporarily ceases using ttie Use Areas as follows:

3.5.1 A D3ri< Period occurs only if all of ttie following are tme:

3.5.1.1 All business operations on both the Restaurant Parcel and the Use Areas completely cease for not less than sbcty (60) consecutive calendar days. Complete cessation of business operations means that no business of any kind is being conducted and that the Use Areas are completely vacant of Licensee's tables, diairs and other moveable items (such as umbrellas, plantere, tools, supplies and other items).

3.5.1.2 Licensee gives Licensor notice of the beginning of the Dark Period within ten (10) days before or after tiie Dari( Period begins.

3.5.1.3 Licensee gives Licensor notice of the end of the Dark Period ten (10) days BEFORE the Dark Period ends.

3.5.2 The amount of the Dark Period Credit shall be calculated as follows:

3.5.2.1 Begin with the Annual Equivalent Amount ttiat is in effect at the beginning of the calendar year in whldi the Dark Period begins.

3.5.2.2 Divide tiiat amount by Three Hundred and sixty five (365).

3.5.2.3 Divide tiie result by two (2).

3.5.2.4 Multiply the result by the number of full consecutive days In the Dark Period. 3.5.2.5 For example, if the Annual Equivalent amount applicable on January 1, 2017 were Five Thousand Dollars ($5,000.00), and If a Dark Period occunred from October 1, 2017 to November 30, 2017, then ttie amount of the Dark Period Credit would be Four Hundred Seventeen Dollare and eighty-one cents ($417.81), which Is calculated as follows: $5;000 + 365 + 2 X 61 = $417.81

3.5.3 The Dark Period Credit shall be implemented as follows:

3.5.3.1 The Daric Period Credit shall be applied only against the next installment of Base Use Fee due after the end of the Dari< Period. The amount of such installment of Base Use Fee shall not be reduced below zero dollars ($0.00). If this Agreement ends or If all or any part of ttte Dark Period Credit for any other reason cannot be used In conformance with these provisions, then tt Is extinguished.

11624367v4 7 of 41 Contract No. 2013-183-COS 3.5.3.2 Ail requirements of this Agreement (e.g. Licensee's obligations to provide insurance and Indemnities and to maintain the Use Areas In a dean and safe condition) shall remain In full force during any Dark Period.

3.5.4 The Dark Period provisions merely establish ttie Dark Period Credit. They do not detract in any way from (or excuse Licensee from complying with) any requirement tiiat Licensee operate the Use Areas or comply with any other requirement of tills Agreement

3.5.5 Ucensee acknowledges that the Dark Period provisions of this Agreement are an accommodation for Licensee, are conti^ry to Licensor's desire that Ucensee actively operate the Use Areas for ttie Permitted Uses, and shall tie strictly construed against Licensee. Without limitation. Licensee shall strictly comply with the notice requirements. Licensor Is not responsible to track whether a Dark Period has begun or ended and is not obligated to accept anything other than proper and timely notice of the beginning or end of a Daric Period. Wrthout limitation, if Licensee does not give proper and timely notices of botti the beginning and the end of a Dark Period, then no Dark Period shall be deemed to have occurred regardless of whether a Dark Period might othenA/lse have occurred.

3.6 Use Fee Amounts Cumulative. All amounts payaliie by Ucensee hereunder or under any tax, assessment or other existing or future ordinance or other law of the City of Scottsdale or the State of Arizona shall be cumulative and payable in addition to each ottier payment required hereunder, and such amounts shall not be credited towanj, substituted for, or set off against each other in any manner.

3.7 Use Fee Payment Schedule. Licensee shall pay Base Use Fee as fbliows:

3.7.1 Ucensee shall pay to Ucensor ttie Base Use Fee in advance five (5) days before the beginning of each Installment Period. An Installment Period begins on the first day of each half year arid ends on the last day of such calendar half year Half years begin on January 1 and July 1.

3.7.2 The amount of each installment of Base Use Fee shall be the Annual Equivalent Amount that is in effect at the time the Installment becorhes payable divided by the number of Installment Periods In a calendar year.

3.8 First Use Fee Payment. The first installment of Use Fee is due on the date of this Agreement The first installment of Base Use Fee shall be reduced by sixteen point sixteen percent (16.16%) for each full calendar month passing between ttie last January 1 or July 1 before the date of this Agreement and ttie date of this Agreement.

3.9 Use Fee Amount Report Ucensee shall provide witti each installment of Use Fee a report showing the manner in virhich each component of Use Fee was calculated.

3.10 Ownership of Use Fee. Licensor shall own all Use Fee as soon as it Is paid or delivered.

11624367v4 8of41 Contract No. 2013-183-COS 3;11 Place of Payment. Unless and until Licensor gives notice ottienwlse, Licensee shall hand deliver all Use Fee Payrnents to Ucensor's asset management coordinator at Suite 205, 7447 East Indian School Road, Scottsdale. Arizona 85251.

3.12 Security Deposit. Upon execution of this Agreement Ucensee shall provide to Ucensor. and maintain witii Licensor at all times during the term of tiiis Agreement a cash security deposit in ttie amount equal to One Thousand and No/IQO Dollars ($1,000.00) to guarantee ttie faithful performance of this Agreement. Any funds or property of Licensee held by or available to Lk:ensor or any issuer of a letter of credit, receiver, escrow agent or other third party under or related to this Agreement shall also stand as a security deposit guaranteeing Licensee's faithful performance of this Agreement Any portion of any security deposit to which Ucensee may then be entitied, net of any setoff or other obligation of Ucensee, shall be paid to Uc^see without interest by ttie owner of ttie fee titie to the Use Areas witfiln sixty (60) days after ttie later of tenmination of this Agreement or completion of all of Licensee's obligations related to this Agreement

3.13 Late Fees. Use Fee Is deemed paid only when Ucensor actually receives good cash payment or a check that is honored when first presented by Licensor for payment Should Licensor not receive any Use Fee on or before tiie date due, a late fee shall be added to tiie amount due in the amount of tiie greater of ten percent (10%) of the amount due, or One Hundred Dollars ($100.00). Any Use Fee that Is not timely paid shall also accrue simple interest at ttie rate of one and one-hatf percent (1 % %) per month from the date the amount first came due until paid. Licensee expressly agrees tiiat the foregoing represent fair and reasonable estimates by Ucensor and Licensee of Ucensor's costs (such as accounting, adminlsttative, legal and processing costs, etc.) caused by a delay in payment of Use Fee. Ucensor shall have the right to allocate payments received from Ucensee among Ucensee's obligations.

3.14 Holdover Use Fee. If Ucensee holds over. Base Use Fee sisll be One Hundred and No/100 Dollars ($100.00) per day and all other Use Fee, and every element thereof, siiall be increased by an additional fifty percent (50%) over the amount of Use Fee that would othenArise be payable under this Agreement

3.15 Delayed or Estimated Adiustments. if an amount is not known In advance. Licensor shall have ttie right to estimate tiie amount, witti an adjustinent to be made witiiin sixty (60) days after the achjal amount becomes known. Any delayed adjustment shall be effective retroactively. Any conection due to an error in Ucensor's estimate or for any other reason shall be paid by Ucensee to Ucensor (or by Ucensor to Ucensee, as the case may be) within thirty (30) days after notice by eittier party to the other.

IV. USE RESTRICTIONS

4. Use Restricttons. Ucensee shall conform and shall cause its customere, employees, workers and other persons using tiie Use Areas pureuant to this Agreement to conform to all and each of the following cumulative provisions:

4.1 Permitted Uses. Licensee stiall Use the Use Areas solely for the Pemnitted Uses. No other activity shall be conducted at or from the Use Areas.

4.2 Food Service. The Permitted Uses are further restricted as follows: 11624367v4 9 Of 41 Contract No. 2013-183-COS 4.2.1 Licensee shall use ttie Use Areas solely for the preparation and serving to Ucensee's Invitees and guests of fUlly prepared food and beverages (induding alcoholic beverages if penmitted by law) for immediate consumption upon the Use Areas or upon the Restaurant Parcel.

4.2.2 Ucensee's use of ttie Use Areas stiall at all times be conducted as an integral part of a full-service sit-down restaurant within the Restaurant Building witti a joint menu and under a joint manager and operator with the Restaurant Building.

4.2.3 Cooking Is not allowed at ttie Use Areas.

4.2.4 Ucensee may only serve at the Use Areas food and beverages prepared at the Restaurant Parcel.

4.2.5 The business at the Restaurant Building must be operated as a restaurant and not as a bar or other type of establishment. For purposes of this Agreement, a business serving food is a restaurant and not a bar if It serves food but does not serve alcohol, or if ft serves food and alcohol and satisfies all of the following requirements:

4.2.5.1 The business has in operation on-site at tiie Restaurant Parcel a full service kitchen preparing and cooking (and not Just heating orwamirng) entrees ordered by Individual customers.

4.2.5.2 When ttie kitchen is open, ttie business' main menu offers at least ten (10) different entrees cooked in the kitchen and offered at prices comparable to prices for similar entrees offered by other restaurants In Maricopa County, Arizona.

4.2.5.3 The kitchen is open and offering ttie entrees at the Restaurant Building and at the Use Areas at alt times the business is open for business, except that the icitchen may dose one (1) hour before the business doses.

4.3 Animals. No animals are allowed on the Use Areas otiier tiian seeing eye dogs and similar animals providing health assistance to disabled persons. Customers' dogs on leashes are also permitted, if allowed by applk;ab(e laws and regulations from time to time.

4.4 Nonexdusive Uses. Ucensor shall have the rigiit to conduct (and allow other persons within the sunounding vidnity to conduct) from time to time business activities in direct competition with Ucensee. Licensee has no exdusive rights to conduct any activity.

4.5 Govemmental Relations. Ucensee shall conduct its activities at the Use Areas in coondination with Ucensor as necessary to maintain good relations with all govemmental entities having jurisdiction over the Use Areas and shall immediately give to Ucensor notice of any actual or threatened dispute, violation or other disagreement relating to the Use Areas. Licensee Is not an agent for Ucensor.

4.6 Rxtures and Pereonal Property Reoulred. No later than thirty (30) days after the eariier of the Completion [Deadline or the date Licensee first opens the Use Areas for business, Ucensee shall provide b and maintain at the Use Areas all equipment and other items necessary in Licensor's opinion for the Use Areas to be used for the Permitted Uses.- No other personal

1ie24367v4 10 of 41 Contract No. 2013-183-COS property of Ucensee is pemiitted at ttie Use Areas except witti Ucensor's consent which Ucensor may grant retract modify or condition from time to time in its sole discretion.

4.7 Lighting. Exterior lighting shall be shielded and othenvise configured to minimize spillover outside the spedflc lighted area within the Use Areas.

4.8 Time Restrictions. All activities at the Use Areas must start no eariier and condude no later ttian allowed by law. Ucensee shall not use ttie Use Areas outside tiie general operation hours of the Adjacent Right-of-way or the Restaurant Parcel.

4.9 Public Safety. If Ucensor determines that any Licensee equipment improvements or activities present a hazard to the public or to Licensor, to Ucensor's equipment or fedlities, or to Ucensor's ability to safely and convenientiy operate the Use Areas, tiie adjoining Right-of-way, or ottier neartjy public lands, or perfomn Ucensor's utility, public safety, and otiier public, health, safety and welfare fijnctions, Ucensee shall Immediately remedy tiie hazard, comply witii Ucensor's requests to secure ttie Use Areas, tiie adjoining Right-of-way, or other neariby public lands, and ottienATlse cooperate witti Ucensor at no expense to Licensor In perfomning any and all of such functions.

4.10 Noise. Except as Ucensor may specifically allow from time to time, outdoor music and sound equipment sources and devices that intentionally emit sound (except for safety alarms) are prohibited at the Use Areas. Any permitted sound devices must be audible no further than seventy-five feet (75') from the Use Areas. The doors and windows to ttie Restaurant Building or any ottier adjoining property controlled by Licensee must be kept dosed when music is playing InskJe said buildings, except ttiat doors and windows may be propped open at Licensor's sole discretion, from time to time. In exerdslng such discretion, Licensor may take into account any and all factors tiiat Licensor detemiines influence or may influence the effect of such music or other noise upon the Use Areas and surrounding areas, and any activity or condition thereon, induding wittiout limitation, Ucensor's desire to maintain a quiet and calm ambiance In sunounding areas.

4.11 Video Equipment Ucensee shall not use at the Use Areas televisions, computer monitors, video screens, video displays, video projectors or ottier equipment for displaying video images, signals or pattems. Nor shall ttie Use Areas be used for ttie viewing of video images, signals or pattems displayed outside the Use Areas. Ucensor may elect to temporarily suspend this paragraph in whole or In part from time to time subject to such conditions or requirements as Licensor may desire from time to time.

4.12 Liguor Ucense. Any iiquor license ttiat Licensee holds at ttie Use Areas shall be limited to ttie Use Areas and the Restaurant Paroel. This Agreement does not create tn Ucensee any rights witii respect to alcohol service outside the Use Areas. Upon termination of ttiis Agreement for any reason, Ucensee shall cause the Use Areas to be removed firom the scope of its liquor license. Licensee siiall cause all alcohol sen/ed at the Use Areas to be consumed inside ttie fence at the Use Areas or Inside ttie Restaurant Bulkllng.

4.13 Licensee's Aoent Ucensee shall at all times during nornial business hours or when the Use Areas are othenvise occupied retain on call available to Ucensor upon the Use Areas or the Restaurant Parcel an active, qualified, competent and experienced manager to supervise all activities upon and operation of ttie Use Areas and who shall be aufliorized to represent and act for 11624367v4 11 Of 41 ContiBCt No. 2013-183-COS Licensee in mattere pertaining to ail emergendes and ttie day-to-day operation of tiie Use Areas and all activities under this Agreement Uc^see shall also provkle notice to Licensor of the name, address, and regular and after hours telephone numt>ers of a person to handle Ucensee's affairs and emergendes at the Use Areas.

4.14 Staff Qualifications and Requirements. Except as Ucensor may specifically allow ftom time-to-time, Ucensee shall provide to ttie Use Areas at least ttie following level of staffing and expertise:

4.14.1 Licensee shall not allow ariy employee or other representative to worit upon the Use Areas or in ttie vidnity of ttie Use Areas (induding wittiout limitation ttie Restaurant Parcel or other adjacent property) vflUiout first causing such person to confirm to Ucensee in writing that such person has not been convicted of a felony crime in the preceding five (5) years.

4.14.2 If Ucensor requests, Lteensee shall hire one or more security guards for the Use Areas with such qualifications as Lksensor may reasonably request

4.14.3 If Ucensor requests, Licensee shall make its employees available to Licensor from time to time for safety training.

4.14.4 Licensee's outdoor security efforts shall equal or exceed Ucensee's security efforts inside ttie Restaurant Building. Ucensee shall allow any security guanls to respond to emergendes in the vidnity of the Use Areas.

4.14.5 Licensee shall Immediately contact the Scottsdale Police Department the Scottsdale Fire Department, and/or paramedics when any situation arises outside ttie capadty or ti^ining of Ucensee's on-site employees.

4.14.6 Licensee shall be responsible for all aspects of security and safety at the Use Areas regardless of whether Licensor Influences or partidpates in Licensee's security or safety programs.

4.15 Security Requirements. Ucensee shall partldpate In any public safety program promulgated from time to time by the City of Scottsdale Police Department or ottier law enforcement agency selected by Ucensor from time to time. Ucensee shall reasonaUy cooperate witti Licensor and ttie City of Scottsdale Police reganiing concerns and countemieasures affecting security and related risks of business and ottier operations and activities at and near tiie Use Areas.

4.16 Standards of Sendee. In entering Into this Agreement Ucensor and Ucensee have foremost In mind providing the public food and beverage sendees and fadllties of ttie highest quality. Wrthout limitation, Ucensee shall operate ttie Use Areas in a first-dass manner; shall fumish prompt dean and courteous service; and shall keep tiie Use Areas attractively maintained, orderiy, dean, sanitary and in an Inviting condition at all times, all to Ucensor's satisfaction. Ucensee shall not employ any person at tiie Use Areas who shall fail to be clean, courteous, effident and neat In appearance or who shall use improper, obnoxious or aide language or act In a loud or boisterous or otiierwise Improper manner.

116243B7v4 12 of 41 Contract No. 2013-183-COS 4.17 Conduct at Use Areas. In entering Into tills Agreement Licensor and Ucensee have foremost in mind providing the public witti an orderiy atmosphere devoid of any act by any person contrary to the highest standards of community sensitivity, and avoiding any substance or appearance of any noisy, unruly. Inebriated, disruptive, disorderiy, lewd, nude, partially nude, adult oriented, unwholesome or sexually oriOTted behavior, business, entertainment, or other activity of any description or to any degree at the Use Areas. Any such behavfor. business or activity at the Use Areas by Ucensee, any customer of Ucensee or anyone else using the Use Areas pursuant to this Agreement Is strictiy prohibited. The requirements of this paragraph are spedflcally acknowledged to be a requirement of this Agreement independent of and in addition to any zoning or oUier govemmental regulation affecting the Use Areas. Any vfolation of this paragraph by any person using the Use Areas or any part of the Adjacent Right-of-way pursuant to or under this Agreement shall be an "Unruly Behavfor Occurrence" by Licensee under tiiis Agreement. The preceding sentence does not indude membere of the public using ttie Adjacent Right-of-way unrelated to Licensee's use of ttie Use Areas pursuant to ttiis Agreement Furttier. during ttie enttre term of ttiis Agreement, this entire paragraph and all of Its subparagraphs also applies to ttie acts of any persons upon the Restaurant Parcel or any other adjacent land used In connection with the Use Areas and to the acts of such persons upon the Adjacent Right-of-way while leaving the Use Areas. As separate and additional obligations of Licensee, all of ttie following shall apply:

4.17.1 No materials shall be displayed, viewed or produced upon the Use Areas depicting specified anatomical areas or spedfied sexual activities. Also, no person upon the Use Areas shall make visible his or her specified anatomical areas. "Spedfied anatomical areas" shall mean less than completely and opaquely covered human genitals, pubic region, buttock and female breast below a point immediately above the top of the areola: and human male genitals in a discernible turgid state, even if completely and opaquely covered, or any simulation or portrayal of any of the foregoing. All specified sexual activities are prohibited without exception. Specified sexual activities stiall mean human genitals In a state of sexual stimulation or arousal; acts of masturbation, sexual Intercourse or sodomy; fisndling or other erotic touching of human genitals, pubic region, buttock or female breast or any simulation or portrayal of any of the foregoing.

4.17.2 Patron dandng outdoors and any direct or indirect physical contact Involving customers, employees, performers and other persons outdoors is prohibited, not induding handshakes and similar Inddental contact.

4.17.3 Ucensee shall immediately cause to be removed from ttie Use Areas any person (and from ttie Adjacent Right-of-way any person related fo Ucensee or this Agreement (induding without limitation Licensee's customers)) who:

4.17.3.1 Is obviously intoxicated or under the influence of any narcotic or chemical.

4.17.3.2 Comm'rts any act of violence.

4.17.3.3 Acts In a loud or unusually boisterous manner. 4.17.3.4 Harms or threatens harm to any person or thing.

11624367V4 13 of 41 Contract No. 2013-183-COS 4.17.3.5 Uses profanity Uiat can be heard by users of the Use Areas or the public.

4.17.3.6 Violates any law or any regulation applicable to the Use Areas.

4.17.3.7 Commits or causes, directs or encourages any person to commit an Unmly Behavior Occurrence.

4.17.4 The requirements of this paragraph only are for the benefit of Ucensor and for the benefit of all real property located wlttiin three hundred feet (300') of tiie Use Areas. The owners and occupants of such real property and Uieir successors and assigns are tiiird party beneficiaries of ttiis paragraph tiiroughout the tenm of this Agreement Such third party benefidaries' sole remedy is injunctive relief against Licensee and other occupants of the Use Areas to enforce ttie requirements of ttiis paragraph.

4.18 Common Areas. Subject to cun^nt and future regulations and polides governing the Use of, and access to, the Use Areas, Ucensee, Its ofiicers, employees, agents, pattons and invitees, and its suppliers of services and fijmlshers of materials shall have the right of Ingress to and egress fiom tiie Use Areas through such portions of the Adjacent Right-of-way as are open to the public for that purpose from time fo time. Such right is strictly limited to ingress and egress. There shall be absolutely no food preparation activity, delivery of supplies, or storage, however temporary, at ttie Use Areas.

4.19 Paridno Provided bv Ucensee. Ucensee shall provide paridng for the Use Areas and the Restaurant Parcel In compliance with applicable curent and future laws and regulations. Ucensor is not required fo provide any parking. Ucensee shall provide programs to encourage all of its employees at tiie Use Areas and tiie Restaurant Parcel to use altemative transportation modes, such as bus passes, bicydes, and carpools.

4.20 Adiacent Rlqht-of-wav Operations. Ucensee acknowledges that Ucensee's use of ttie Use Areas shall be subject and subonjinate to use of ttie Adjacent Right-of-way for lawful purposes of every description, which vtrill necessarily direcUy and Indirectiy affect Licensee and the Use Areas. Licensee's use of the Use Areas shall not be pemiitted by Licensee to In any way adversely affect Ucensor's use or operation of the Adjacent Right-of-way.

4.21 Obstructing Traffic. Ucensee and its customere shall not obstruct or interfere with ttie use of tiie Adjacent Right-of-way induding witiiout limitation any walkways, sklewalks, driveways, vehide lanes or other areas adjacent to the Use Areas and shall at all times maintain safe, convenient and free pedestrian and vehfoular access along the Adjacent Right-of-way as determined by Ucensor from time to time. Ucensor may require that such access Indude pedestrian access passing through the Use Areas. Perimeter fendng must be of safe design, must have no sharp edges or other hazards to persons who may contact the fence, and must be laid out in a manner that does not create right angles or other configurations that could impede safe or fluid pedestilan or vehicular traffic flow around tiie Use Areas.

4.22 Signs. The following applies to all manner of signs, banners and advertising, Inciuding without limitation, words or logos printed on umbrellas and similar signage: 11624367v4 14 of 41 Conb^ct No. 2013-183-COS 4.22.1 Signs Required. Lessee shall install and thereafter maintain all signs and markings required for safe use of the Use Areas by Lessee, Lessor, the public and other persons who may be at the Use Areas at any time for any reason.

4.22.2 Ottier Signs. Ucensee shall install no ottier signs or advertising at the Use Areas.

4.23 Hazardous Materials. Licensee shall not produce, dispose, transport tineat use or store any hazardous waste or materials or toxic substance upon or about the Use Areas or any substance now or hereafter subject to regulation under the Arizona Hazardous Waste Management Act AR.S. Sec. 49-901, et seo.. the Resounce Conservation and Recovery Act 42 U.S.C. 6901, et seq.. or the Toxic Substances Contrd Act, 15 U.S.C. 2601. et seo.. or any other federal, state, county, or local law pertaining to hazardous waste or toxic substances (collectively 'Toxic Substances"). The preceding sentence does not prohibit use of ordinary janitorial supplies used to dean and maintain the Use Areas. Licensee shall pay. indemnity, defend and hold Ucensor hamiless against any loss or liatHlity Incurred by reason of any Toxic Substance on or affecting the Use Areas occurring after tiie date of this Agreement and shall immediately notify Licensor of any Toxic Substance at any time discovered or existing upon the Use Areas. Licensee understands the hazards presented to persons, property and the environment by dealing with Toxic Substances. Ucensee shall cause any on-site or off-site storage, treatment transportation, disposal or other handling of Toxic Substance by Ucensee in connection witti the Use Areas to be performed by persons, equipment, fodlities and other resources who are at ail times properiy and lawfully trained, auttiorized, licensed and ottienwise pemiitted to perform such sen/ices.

4.24 Name of Business. Ucensee shall operate the Use Areas and the Restaurant Building under the same name.

4.25 Prohibited Names. Ucensee shall not use in connection witti any operations at the Use Areas any name ttiat directty or indirectiy refers to or contains any part of Ucensor's name or othenA^se suggests a connection between Licensor and Licensee or Ucensee's activities. Licensee may use its own name as stated at the beginning of this Agreement Ucensee shall also not use In connection with Its operations at the Use Areas any name assodated with products or pun/eyors of any sort of alcohol other than Ucensee's ov\m name, If applicat)le, tobacco, adult entertairiment or gambling related products or services.

V. IMPROVEMEt^S BY LICENSOR

5. Improvements bv Ucensor. Licensor has not promised to and is not obligated In any manner to make any Improvements or perform any ottier construction or ottier work at the Use Areas or ttie Adjacent Right-of-way.

VI. LICENSEE'S IMPROVEMENTS GENERALLY

6. Licensee's Improvements Generally. Ttie fdlowing provisions shall govern all Improvements, repairs, installation, removal, demolition and ottier construction work of any description by Ucensee whetiier or not spedflcally described herein (collectively Ucensee's Improvements") upon or related to the Use Areas:

11624367v4 15 Of 41 Contract No. 2013-183-COS 6.1 Zoning and Similar Approval Process. The zoning processes, building pennit processes, right-of-v^y management and similar regulatory requirements tiiat apply to Licensee's Improvements are completely separate from the plans approval processes under this Agreement. Ucensee's satisfaction of any requirement of this Agreement does not count toward any compliance vtritti any regulatory requirement Licensee's satisfaction of any regulatory requirement does not count toward compliance with any requirement of this Agreement Ucensee must make ad submittals and communications regarding the requirements of this Agreement through Ucensor's contract administrator for this y^reement and not through planning, zoning, building safety or other staff. Ucensee shall be responsible to dlrectiy obtain all necessary permits and approvals from any and all govemmental or other entities having standing or jurisdidion over the Use Areas. Ucensee bears, sole responsibility to comply with all stiputations and conditions that are required in order to secure such rezoning and other approvals.

6.2 Relationship of Plans Approval to Regulator Processes. Ucensee's submission of plans under this Agreement Ucensor's approval of plans for purposes of this Agreement and the plans approval process under this Agreement shall be separate and Independent of all development zoning, design review and other regulatory or similar plans submittal and approval processes, all of which shall continue to apply In addition to the requirements of this Agreement and its approvals. BUILDING PERMITS, ZONING CLEARANCES, OR ANY OTHER GOVERNMENTAL REVIEWS OR ACTIONS DO NOT CONSTITUTE APPROVAL OF ANY PLANS FOR PURPOSES OF THIS AGREEMEI^.

6.3 Contract Administrators. Upon execution of this Agreement Ucensor and Ucensee shall each designate a contract administrator to coordinate the respective part/s partidpation in designing and constructing the Licensee's Improvements. Each contract administi^tor shall devote such time and effort to the Ucensee's Improvements as may be necessary for timety, good foith, and convenient coordination among the parties and Uieir representatives involved witti tiie Ucensee's Improvements and compliance with ttiis Agreement

6.4 Licensor's Contract Administrator Lteensor's contract administrator will not be exdusivety assigned to this Agreement or tiie Ucensee's Improvements. Licensor's Inftial contract administrator shall be Ucensor's asset management coordinator or designee. Licensor's contract administrator's auttiority with respect to the Use Areas is limited to the administration of the requirements of this Agreement. No approval, consent or direction by Ucensor's contract administrator or other persons affiliated witii Licensor inconsistent with this Agreement shall be binding upon Ucensor. Ucensee shall be responsible for securing ail zoning approvals, devefopment review, and other govemmentel approvals and for satisfying all govemmental requirements pertaining to ttie Licensee's Improvements and shall not rety on Ucensor or Ucensor's contract administrator for any of tiie same.

6.5 Licensor's Fixtijres and Personalty. Ucensee shall not remove, alter or damage in any way any improvements or any personal property of Licensor upon ttie Use Areas without Ucensor's prior written approval. In ail cases. Licensee will repair any damage or ottier alteration to Ucensor's property to as good or better oonditfon than existed before the damage or alteration.

6.6 Design Requirements. All Licensee's Improvements shall comply with the following design requirements:

11624367v4 16 of 41 Contract No. 2013-183-COS 6.6.1 Ail Ucensee's Improvements shali be contelned entirely within the Use Areas and wittiout any encroachment or dependence upon any other property.

6.6.2 AH Licensee's Improvements shall be designed and made at Ucensee's sole cost and expense.

6.6.3 Ucensee shall perform any and all constmction work on the Use Areas in a workman-like manner as reasonably determined by Licensor and in confonnance witii all building codes and similar mies. All Licensee's Improvements shall be and become part of the realty and ttie real property of Licensor "brick by brick" as constrocted. Ucensee's construction woric must not interfere with nomial operation of the Adjacent Right-of-way. In any event Ucensee must leave the Use Areas in as good or betier condition as it may be oii the date of this Agreement or such better condition as the Use Areas may hereafter be placed.

6.6.4 All work shall be done strictiy at Licensee's expense and paid for by Ucensee. tn no event induding without limitation temiination of ttiis Agreement for any reason, shall Ucensor be obligated to compensate Ucensee In any manner for any of Licensee's Improvemente or other wori< provided by Ucensee during or related to tills Agreement

6.6.5 Ucensee's Improvements shall include all improvements, fomishlngs, fomiture. equipment fixtures, paint decorations, lighting and otiier construction work of any description as described In all plans delivered by Ucensee to Licensor. All such plans and constmction are subject to Inspection and final approval by Licensor as to colors, fobrics, materials, site plan, eto., as well as design, function and appearance.

6.6.6 Ucensee shall make no alterations, modifications or additions to the Use Areas without having first received ttie written consent of Ucensor which Ucensor may witiihold In Ucensor's sole and absdute discretion.

6.6.7 Any changes to utility facilities shall be strictiy ilmlted to tiie Use Areas.

6.6.8 All Licensee Improvemente shall be designed so as to present uniformity of design, fonction, appearance and quality throughout and consistency with the design of the Resteurant Building.

6.6.9 All of Licensee's Improvements shall be of high quality, safe, modem in design, and attractive in appearance, all as approved by Licensor

6.7 Plans Required. Licensee's design of all Licensee's Improvements shall occur In three stages culminating In final woridng construction documents for the Licensee's Improvemente (ttie "Final Plans"). The three steges are, in onler of submission and in Increasing order of detell, as follows:

6.7.1 Conceptual plans showing the general layout locations, configuration, and capacities of all significant improvemente, topographical features, pedestrian and vehicular ways, buildings, utilities, water systems, and other features significantiy affecting tiie appearance, design, function or effident operation of each of element of the Licensee's Improvements.

11624357V4 17 of 41 Contract No. 2013-183-COS 6.7.2 Preliminary plans showing all floor plans, general internal and external building design and decoration schemes, mechanical, eledrical and plumbing systems, landscaping and all ottier elemente necessary prior to preparation of final woricing construction documente and showing compliance with all requiremente of this Agreement. The preliminary plans shall show all deteil necessary prior to preparation of final plans.

6.7.3 Final woricing consttuction documents for the Licensee's Improvemente (collectivety the "Final Plans').

6.8 Aotwoval Process. The following procedure shall govern Licensee's submission to Licensor of ail plans hereunder. Induding any proposed changes by Licensee of previously approved plans:

6.8.1 All plans submitted under this Agreement shall show design, appearance,. style, landscaping, mechanical, utility, communication and electrical systems, building materials, layout colors, stiieets, sidewalks, transportetion elemente, views, and ottier information reasonably deemed necessary by Ucensor for a complete understendlng of ttie worit proposed, all in deteil reasonably deemed appropriate by Lfcensor for ttie level of plans required by this Agreement

6.8.2 Ucensee shall deliver all plans submissions for non-regulatory approvals under this Agreement dlrectiy to Licensor's proiect manager and shall dearly label the submissions to Indicate that they are submitted pureuant to this Agreement and not for building permits, zoning or ottier approvals.

6.8.3 Each sutvnittel of plans by Ucensee for Ucensor's review shall Indude five (5) complete sete of the plans on paper together witti two (2) copies of the plans in electtonic fonn. Within thirty (30) days after comptetion of any Licensee's Improvemente, Ucensee shall deliver to Ucensor one (1) copy of "as-t)uiK" plans for the Licensee's Improvements, on paper and two (2) copies in electronic form. All plans in electronic form shall Indude vector line drawings of the improvemente and such other information as this Agreement requires, all in a machine readable and manlpulable fonn. The format of such date and the media upon which such date is supplied shall be such tiien reasonably common date format and media as specified from time to time by Licensor.

6.8.4 Ail plans must comply with all requiremente of law, all Site Documente and tills Agreement No plans shall be deemed approved by Ucensor until Ucensor's contract administrator stamps ttiem witii tiiese words: "APPROVED AS OF , 20 ONLY FOR PURPOSES OF THE PLANS APPROVAL FJEQUIREMENTS OF ARTICLE SIX OF THE OUTDOOR DINING REVOCABLE LICENSE AGREEMENT NO. 2013-183-COS" and dates them (collectively "Stamped").

6.8.5 The engineer or architect shall place these words on each sheet of engineering work for Ucensee's Improvemente: The engineer has performed this work for tfie benefit and reliance of the City of Scottedale and assures ttie City of Scottsdale that the engineer's wori< Is properiy performed and ttiat it complies wttti any engineering requiremente set out in the Outdoor Dining License Agreement No. 2013-183-005," (If tiie worit was peri'ormed by an architect then substitute architect for engineer in the specified sentence.)

11624367v4 180f41 Contract No. 2013-183-COS 6.8.6 Ucensee acknowledges tiiat Uc^or has a substantial interest in the design, constiuction and operation of the Ucensee's Improvemente. No consttuction, reconstruction, alteration or ottier individually or cumulativefy significant worit shall occur upon ttie Use Areas except in compliance with plans approved by Ucensor In compliance with this Agreement

6.8.7 All plans must comply witii all requirements of law, tiie Site Documente, the Use Areas and this Agreement.

6.8.8 Ucensor has the right to require Ucensee to submit any Licensee Improvemente to the City of Scottsdale Development Review Board or any similar body for approval.

6.8.9 Ucensee shall coordinate with Ucensor as necessary on significant design issues prior to preparing plans to be submitted hereunder

6.8.10 Submission dates shall be such dates as are necessary for Licensee to timely obtain the approvals required by this Agreement.

6.8.11 Wittiin thirty (30) days after Lk^sor's receipt of plans from Ucensee, Ucensor shall hand deliver to Licensee one (1) copy of tiie plans submitted Stamped, or mariced to indicate ttie changes ttiat would t^e necessary In order for Ucensor to approve the plans.

6.8.12 If changes are required. Licensee shall revise the plans Incorporating tiie changes requested by Ucensor and shall wittiin thirty (30) days after Ucensor returns the marked up plans to Ucensee submit to Ucensor tiie revised plans. Wittiin twenty (20) days after Ucensee's receipt of such plans, Ucensor shall hand deliver to Licensee one (1) copy of such revised plans Stamped.

6.8.13 The parties shall endeavor to resolve any design and construction issues to their muteal satistaction but If an impasse arises for any reason, In light of IJoensor's investment in ttie Adjacent Right-of-way and Licensor's ownership of tiie Use Areas and tiie Adjacent Right-of- way, and as a condition of Licensor's entering into tills Agreement final dedsion authority regarding all design and construction issues shall rest with Ucensor

6.8.14 Ucensee shall provide copies of any and all designs or plans for improvemente upon the Use Areas to Ucensor for Ucensor's unrestricted use at the Use Areas or elsewhere.

6.9 Coordination virith Encroachment Pemnit Tiie Use Areas are located In Ucensor's public street right-of-way adjacent to the Restaurant Parcel. This Agreement serves as an encroachment permit under Chapter 47 of the Scottedale Revised Code to the extent of granting permission from Ucensor for Ucensee's private Improvemente to exist on tiie Use Areas. Licensee shall not be required to obtain any further encroachment permit for the Licensee's lmprx)vemente for that narrow purpose. However, Ucensee shall obtelri additional encpoachment permite at Ucensee's expense as follows:

11624367v4 19 of 41 Contract No. 2013-183-COS 6.9.1 Ucensee shall perfomn no oonshuction worit in the right-of-way without obtaining through normal processes from Ucensor a pemiit giving Ucensee permission to woric in tiie right-of-way.

6.9.2 Ucensee shall not alter or perfomi any work to Licensor's Improvemente In the right-of-way without first obtaining through nonnal processes from Ucensor a permit giving pemnlssion to alter Ucensor's improvemente.

6.9.3 Licensee shall not in any way obstruct pedestrian or vehiojlar traflic In the right-of-way without first obtaining through normal processes ftom Ucensor a permit giving permission to ot>struct ti^fflc.

6.9.4 Licensor shall apply for such encroachment pennlte and pay encroachment pennit fees "over the counter" pursuant to nonnal encroachment pemiit processes.

6.10 Time for Completion. Ucensee shall diligentiy and expedltiousfy pursue to completion tiie construction of all approved Ucensee's Improvemente. Licensee shall complete initial construction of ttie Project no later than the Completion Deadline. Licensee shall complete constmction of all of other Ucensee's Improvemente no later than the eariier of I) one (1) month after the date of plans approval, or ii) any eariier date required by tiiis Agreement or Licensor's plans approval.

6.11 Construdion Policies. Alt construction by Licensee must compfy vinth all applicable right-of-way, noise, light timing, event planning, dust and other polides in effect from time to time.

6.12 Construction Reoorte. Ucensee shall provkle to Ucensor a monthly notice conteining a narrative report of the progress of design and constmction of Ucensee's Improvemente.

6.13 Design and Construdion Professionals. All constiuction and plans preparation for the Licensee's improvemente firom initial proposals through final construction documente and completion of constiuction shall be perfonrned by professionals selected and paid by Ucensee. Alt of Lrcensee's design and constmction contractors shall have sut}stantial experience in timely and successfully constmcting prpjecte similar to the Ucensee Improvemente that Ucensee proposes to construct

6.14 Constiuction Assurances, in addition to any other payment or performance required under this Agreement at Ucensor's exclusive option, Licensee shall, prior to any constiuction woric by Ucensee at tiie Use Areas, provide to Licensor bonds, lettera of credit, or otiier assurances acceptable to Ucensor in Ucensor's sole and absolute discretion that the contractor will properiy and timely complete tiie work and tiiat Ucensee vrill pay for tiie woric Ucensee shall deliver dlrectiy to Ucensor's legal department (together with a copy to Ucensor as provided for notices under this Agreement) a full and cornplete draft of all such bonds or other assurances and all related and supporting documentation at least thirty (30) days prior to the date ttie actoal bond or assurance is required.

11624367v4 20 Of 41 Contract No. 2013-183-COS VII. LICENSEE'S INITIAL PROJECT CONSTRUCTION

7. Ucensee's Initial Proiect Constmction. Ucensee shall complete construction of the Project In accordance with all requiremente of tills Agreement Including without limitation those governing Licensee's Improvemente, and the following:

7.1 Initial Plans Approved. By entering into tills Agreement Licensor approves onfy for purposes of Ucensee's Initial Project construction under this Agreement tiie design of Ucensee's Improvemente comprising the Project to the extent set forth in the Site Plan. To tiiat extent, said approval partially satisfies the requirement under this Agreement that Licensee obtain Licensor's approval of plans. However, changes, modifications, refinementean d particular implementations of any proposed Licensee's Improvemente and all other matters not shown on the Site Ran are subject to this Agreement's requirement that Licensee ot>ta1n Ucensor's approval for all Ucensee's Improvemente. Licensee has no right to construct any otiier Ucensee Improvemente at the Use Areas.

7.2 Proiect Definition. As of the date of this Agreement the Project is onty designed to ttie extent depicted in tiie Site Plan. Unless othenwise agreed by the parties, the F*roject shall conform to ttie Site Plan and all other requiremente of this Agreement.

7.3 Proiect Consttuction Schedule. Licensee shall design and consbuct the entire Project according to the following schedule:

7.3.1 Licensee shall obtein Licensor's approval of Final Plans for the entire Project no later than One Hundred Twenty (120) days prior to the Completion Deadline.

7.3.2 Ucensee shall commence constmcting tfie entire Project no later than Ninety (90) days prior to the Completion Deadline.

7.3.3 Ucensee shall complete and commence operating the entire Project no later ttian the Completion Deadline.

VIII. MAINTENANCE

6. Improvemente and Maintenance. Ucensee shall have all responsibilities for maintenance and repair of the Use Areas during the term of this Agreement

8.1 Maintenance bv Ucensor Ucensor has no maintenance responsibilities regarding the Use Areas.

B.2 Utilities. Ucensee shall conti^ct for and pay all charges, foes, deposite and other amounte for all utilities at the rates applicable thereto. Utility drcuite must not be connected to Licensor's systems.

8.3 Maintenance bv Ucensee. Ucensee shall at ail times repair, maintain and reptace the Use Areas and all fadllties thereat at Ucensee's sole expense in a flrst-dass, sound, dean and atti^ctive manner, as determined In Ucensor's reasonable discretion. Without limitation, Ucensee shall be responsible for the following:

11624367v4 21 of 41 Conttact No. 2013-183-COS 8.3.1 Maintenance as described on Exhibit "E" attached hereto.

8.3.2 All otiier repairs and maintenance of the Use Areas.

IX. BREACH BY LICENSEE

9. Breach bv Ucensee. Licensee shall compty with, perform and do each performance and thing required of Licensee herein and Ucensee's foilure to do so shall be a breach by Ucensee of this Agreement

9.1 Evente of Default This entire Agreement is made upon the condition that each and every one of the following evente shall be deemed an "Event of Deteuit" and a material breach by Licensee of Licensee's material obligations under this Agreement:

9.1.1 if Ucensee shall be in anears In the payment of IJse Fee and shall not cure such arrearage witiiin ten (10) days after Ucensor has notified Licensee In writing of such arrearage.

9.1.2 If Ucensee shall fail to maintain any insurance required by this Agreement

9.1.3 If Licensee shall abandon the Use Areas.

9.1.4 If any envtronmentel. health or similar inspector Issues any notice of investigation or violation of heattti, environmental or similar i^gulattons in connection witti Ucensee's use of the'Use Areas or detemiines during any two or more consecutive Inspections tiiat the same vblation has been repeated or tiiat the overall operation falls materially below standards for first rate well operated simitar fadllties in Maricopa County.

9.1.5 If any assignment of any of Ucensee's property shall be made for tiie benefit of creditors.

9.1.6 If any representation or wan^nty made by Ucensee In connection with tills Agreement or the negotiations leading to this /^reement shall prove to have been folse in any material respect when made.

9.1.7 If the Issuer of any guaranty, letter of credit bond or simitar Instmment shall fail for any reason to timely and fully honor any request by Licensor for fonds or other performance under the instrument

9.1.8 If Licensee shall foil to timely pay any taxes or ottier amounte herein required to be paid by Licensee to any ttiird person.

9.1.9 If Ucensee shall fail to obtein or maintain any Iteenses, pemiite, or other govemmentel approvals from Ucensor or any other govemmental body or timely pay any taxes with respect to this Agreement the Use Areas or Ucensee's use of the Use Areas.

. 9.1.10 If ttiera shall occur an iJnmly Behavior Offense and such Unruly Behavior Offense shall not be cured Immedlatety upon notice by Licensor Licensor may give notice related to Unruly Behavior Offenses orally, in person or by telephone, or by the notice provisfons of this 11624367v4 22 of 41 Contract No. 2013-183-COS Agreement or in any manner that gives Ucensee or Licensee's on-site manager actual notice of Ucensor's objection to any Unmly Behavior Offense.

9.1.11 If there shall occur five (5) Unmly Behavior Offenses witiiin any SK (6) month period, regardlesso f any notice given or not given by Licensor regarding the same.

9.1.12 If Licensee shall tall to or neglect to do or perform or observe any other provisions contained herein on ite part to be kept or performed and such failure or neglect to do or perform or observe any of such other provisions shall continue for a period of ttiirty (30) days after Ucensor has notified Licensee In writing of Ucensee's default hereunder.

9.1.13 if Ucensee shall engage In a pattern of repeated foilure (or neglect) to do or perform or observe any provision contained herein.

9.2 Ucensor's Remedies. Upon the occurrence of any Event of [Default or at any time thereafter. Licensor may, at ite option and from time to time, without fUrttier demand or notice, exerdse any or ail or any combination of tiie following remedies In any order and repetitively at Ucensor's option:

9.2.1 Terminate this Agreement .

9.2.2 Enter into and upon ttie Use Areas or any part ttiereot and expel Ucensee and ttiose daiming by, through or under ft, and remove ttieir effects, if any, forcibly If necessary, witiiout b&r\g deemed guilty of trespass and witiiout prejudtee to any other remedy.

9.2.3 Enforce a lien (which is hereby granted to Licensor) upon Licensee's property now or at any time hereafter at the Use Areas securing all of Ucensee's obligations hereunder.

9.2.4 Cause a receiver to be appointed for the Use Areas and for the continuing operation of Ucensee's business thereon.

9.2.5 Pay or perform, for Licensee's account and at Licensee's expense, any or all pa^ente or performances required hereunder to be paid or performed by Lk^erisee.

9.2.6 Abate at Ucensee's expense any violation of tiiis Agreement

9.2.7 Pursue at Licensee's expense any and all other remedies, legal or equitable, to which Licensor may be entitied.

9.2.8 Refuse without any liability to Ucensee ttierefbre to perform any ot)Iigation imposed on Ucensor by ttiis Agreement.

9.2.9 Be excused from further performance under this Agreement

9.2.10 Notwitiistandlng anything in this Agreement to the contrary, unilateraity and without Ucensee's or any ottier person's consent or approval, draw upon, wttiidraw or otherwise realize upon or obtain the value of any letter of criedlt escrowed funds. Insurance policies, or other deposite, sureties, bonds or otiier fonds or security held by Ucensor or pledged or othenvise 11624367v4 23 of 41 Contract No. 2013-183-COS obligated to Licensor by Licensee or by any third party (whetiier or not specifically mentioned herein) and use the proceeds for any remedy permitted by this Agreement

9.2.11 Insist upon Ucensee's foil and faitiifol performance under Hils Agreement and upon Ucensee's foil and timely payment of all Use Fees during tiie entire remaining term of this Agreement

9.2.12 Assert or exercise any other right or remedy pemiitted by law.

9.3 Power of Attomev. For the purpose of exerdsing any of Ucensor's righte or remedies as hereunder. Ucensee hereby inevocatify appointe Ucensor as Ucensee's true and lawful attomey in fact, and sudi power of attomey ^all be deemed to be a power coupled vwth an interest that cannot be revoked for any reason, to pay or perform, for Licensee's account and at Ucensee's expense, any or all paymente or performances required hereunder to be paid or performed by Ucensee, to terminate of record this Agreement to enter into and upon the Use Areas or any part thereof, and to perform any act upon the Use Areas or otiierwise deemed necessary by Ucensor to exercise fts righte under this Agreement

9.4 Notice of Breach. Ucensee shall promptiy give notice to Licensor of any event or drcumstence that is (or with tiie passing of time or ttie giving of notice or both will become) an Event of Default under this Agreement

9.5 Non-waiver. Ucensee acknowledges Licensee's unconditional obligation to comply wttii this Agreement No failure by Ucensor to demand any perfomiance required of Ucensee under ttiis Agreement and no acceptance by Licensor of any imperfect or partial performance under this Agreement shall excuse such performance or Impair In any way Ucensor's ability to insist prospectively and retioactivety, upon full compliance with tiiis Agreement No acceptance by Ucensor of Use Fee or other perfomiances hereunder shall be deemed a compromise or settiement of any claim Ucensor may have for additional or forttier paymente or performances. Any waiver by Licensor of any breach of condition or covenant herein contained to be kept and performed by Licensee shall not be deemed or considered as a continuing waiver and shall not operate to bar or ottienArise prevent Ucensor from dedaring a default for any breach or succeeding breach eittier of tiie same condition or covenant or otherwise. No statement bill or notice by Ucensor conceming paymente or other performances due hereunder shall excuse Licensee from compliance with tills Agreement nor estop Licensor (or otiienvlse impair Ucensor's ability) to at any time conect such notice andfor Insist prospectively and retroactively upon foil compliance with this Agreement No waiver of any description (Induding any waiver of this sentence or paragraph) shall be effective against Licensor unless made in writing by a duly authorized representative of Ucensor specifically Identifying the particular provision being vraived and specifically stating the scope of the waiver UCENSEE EXPRESSLY DISCLAIMS AND SHALL NOT HAVE THE RIGHT TO RELY ON ANY SUPPOSED WAIVER OR OTHER CHANGE OR MODIFICATION, WHETHER BY WORD OR CONDUCT OR OTHERWISE, NOT CONFORMING TO THIS PARAGRAPH.

9.6 Reimbursement of Licensor's Expenses. Lrcensee shall pay to Ucensor upon demand any and all amounte expended or incurred by Licensor in performing Ucensee's obligations.

11624367v4 24 Of 41 Contract No. 2013-183-COS 9.7 Inspection. Ucensor shall have access to ttie Use Areas at all times upon reasonable prior notice (and at all times and wittiout notice tf there is an emergency) for the purpose of examining, inspecting, evaluating, planning, repairing, designing, maintaining or showing the Use Areas or exerdsing Ucensor's other righte hereunder. Licensee shall promptiy undertake appropriate action to rectify any defldency (identified by Licensor during such inspections or othenvlse) in Ucensee's compliance vinth this Agreement This paragraph does not limit Ucensor's other righte of access to the Use Areas elsewhere in this Agreement or otherwise.

9.8 Default by Ucensor. Notwithstanding anything in this Agreement to the contrary. If Ucensor at any time Is required to pay to Licensee any amount or render any performance, such amount or performance is not due until tiiirty (30) days after notice by Licensee to Licensor that the amount has become payable or that the performance is due. If a cure cannot be effected during that period. Ucensor shall not be In default so long as Lk;ensbr commences cure during the period and diligentiy prosecutes ttie cure to completion provided such cure must t>e completed within sixty (60) days after it Is due.

X. TERMINATION

10. Righte at Termlnadon. The following provisions shall apply upon expiration or other termination of this Agreement at any time for any reason:

10.1 Surviving Obligations. Licensee's obligations existing or arising prior to or simultaneous vtrtth. or attributable to. the termination or evente leading to or occuning before termination shall survive and not terminate.

10.2 Delivery of Possessfon. Ucensee shall, without demand, peaceably and quietly quit and deliver up the Use Areas to Ucensor thoroughty deaned, in good repair, maintained and repaired and in as good order and condition, reasonatiie use and wear excepted, as the same now are or in such better condition as the Use Areas may hereafter be placed by Ucensee or Licensor.

10.3 Confirmation of Termination. Ucensee shall provide to Ucensor upon demand quit daim deeds covering the Use Areas exeojted by Ucensee and by all persons who daim ttiat they have receiwd from or through Ucensee any Intere^ in or right to use tiie Use Areas or any interest In Ucensee's righte under this Agreement Such qult-daim deeds shall not deb^ct from such righte as Licensee may liave upon termination of this Agreement as respecte access to and from the public street system and the Resteurant Parcel.

10.4 Fhrtures and Improvemente. If the same has not occurred eariier, titte to any and all fixtures and sttuctural or permanent improvemente placed upon the Use Areas by Licensee togettier witti all irrigation equipment walkways, sockets, railings, and all other equipment and personal property of every description attached or affixed to the Use Areas shall automatically vest In Ucensor without any payment by Ucensor or any compensation to Ucensee and without requirement of any deed, conveyance, or bill of sale. The preceding sentence does not apply to ottier persona] property ttiat Is not physically attached in any way to ttie Use Areas. However, if Ucensor shall request any documente in confinnation thereof, Ucensee shall promptiy execute, acknowledge and deliver the same. Licensee shall assign and deliver to Ucensor all operating manuals, wananties and similar materials pertaining to ali personal property transferred to Ucensor. Further, Licensee shall at ite own expense, but only to tiie extent requested by Ucensor

11624367v4 25 Of 41 Contract No. 2013-183-COS In writing, remove and dispose of any said property and any fixtures and sbuctural or permanent improvemente placed upon the Use Areas by Licensee and completely repair the Use Areas to match adjacent finishes or restore tiie Use Areas to tiieir condition prior to this Agreement (induding, without limitation, reconstructing prior sti'eet improvements and otiier Improvemente). Any Licensee property remaining on or about tiie Use Areas after the time for removal shall be considered abandoned and subject to removal, storage and disposal by Ucensor at Licensee's expense and without compensation or accounting.

10.5 Abandoned Property. Any personal property of Ucensee or persons daiming through Ucensee ttiat may be located at ttie Use Areas at tiie end of tfils Agreement shall be deemed to be at>andoned and shall automatically at Ucensor's election become the property of Ucensor to dispose of at Ucensor's discretion without accounting to Ucensee or to others. XI. INDEMNITY AND INSURANCE

11. Indemnity and Insurance. During the entire term of this Agreement Ucensee shall insure the Use Areas and ttie Restaurant Pan^el and all property and activities at and about tiie Use Areas and the Restaurant Parcel and the Adjacent Right-of-way and provide indemnification as follows:

11.1 Insurance Reoulred. Prior to entering, occupying or using the Use Areas in any way (and In any event commencing not later than five (5) days after tiie date of this Agreement) and at all times thereafter, Ucensee shall obtain and cause to be In force and effect the following Insurance:

11.1.1 Commerdal General Uabilltv. Commercial general liability insurance with a limit of One Millfon Dollars ($1,000,000.00) for each occun^nce, a limit of Two Million Dollars ($2,000,000.00) for products and completed operations annual aggregate, and a limit of Two Million Dollars ($2,000,000.00) general aggregate limit per pdlcy year. The policy shall cover liability arising from Use Areas, operations. Independent contractors, products, completed operations, personal injury, bodity Injury, advertising injury, and liability assumed under an "insured contract" induding this >^reement The polk:y will cover Licensee's liability under tiie indemnity provisions of this Agreement The policy shall contain a "separation of insureds" dause.

11.1.2 Uouor Liability. Uquor liability insurance in an amount not less than One Million Dollars ($1,000,000.00) for each daim and Two Million Dollars ($2,000,000.00) for all daims in the aggregate. This coverage Is required at all times when alcohol is being consumed, sold, or served at tiie Use Areas, or when Licensee holds any type of liquor license for the Use Areas, or when any liquor license othenwise extete witti respect to the Use Areas.

11.1.3 Automobile Uabilitv. Automobile liability insurance witti a combined single limit of One Million Ddlars ($1,000,000.00) for each acddent covering any and all owned, hired, and non-owned vehides assigned to or used in any way in connection with Ucensee's use of ttie Use Areas. Without limitation, such Insurance shall cover hazards of motor vehide use for loading and off loading.

11.1.4 Workers' Compensation. Such workera' compensation and similar insurance as is required by law and employer's liability insurance witii a minimum limit of One 11624367v4 26 of 41 Contract No. 2013-183-COS Hundred Thousand Dollars ($100,000.00) for each acddent One Hundred Thousand Dollars ($100,000.00) disease for each employee, Five Hundred Thousand Dollars ($500,000.00) policy limit for disease. All contractors and subcontractors must provide like insurance.

11.1.5 Otiier Insurance. Any other Insurance Licensor may reasonably require for the protection of Licensor and Ucensor's employees, offidats, representetives, officers and agente (all of whom, Induding Ucensor, are coIlecUvety "Additional Insureds"), tiie Use Areas, sunounding property, Ucensee, or the activities carried on or about tiie.Use^eas.

11.2 Limit and Ottier Adiustmente. Ucensor may elect by notice to Ucensee to increase ttie amount or type of any Insurance to account for inflation, changes in risk, or any other factor that Ucensor reasonably detennines to affed the paident type or amount of insurance to be provided. In addition, the policy limite of all liability insurance polides shall be automatically adjusted on each annual anniversary of this Agreement by tiie CPI Adjustinent and in accordance with tiie following rules:

11.2.1 The resulting limit shall be rounded up to tiie nearest One Million Dollar ($1,000,000.00) Increment

11.2.2 If tiie policy limit was increased for any reason In tiie preceding five (5) years, then the adjustment formula shall assume that the increased policy limit was in effect at ttie beginning of ttie five (5) year period.

11.3 Form of All Insurance. All insurance provided by Ucensee wltti respect to the Use Areas, whether required by this Agreement or not and ail insurance provided by third parties under ttiis Agreement shall meet the following requiremente:

11.3.1 "Occurrence" coverage Is required. 'Claims made" insurance is not permitted.

11.3.2 If Licensee uses any excess insurance then such excess insurance shall be tollow form" equal to or broader in coverage ttian the und^tying Insurance.

11.3.3 Policies must also cover and insure Licensee's activities relating to the business operations and activities conducted away from the Use Areas.

11.3.4 Ucensee must clearty show by providing copies of insurance polides, certificates, fomial endorsemente or otiier documentation sccepteble to Ucensor that all insurance coverage required by this Agreement is provided.

11.3.5 Licensee's inisurance shall be primary insurance.

113.6 All polides, Induding workers' compensation, shall waive transfer righte of recovery (subrogation) against Ucensor, and the other Additional Insureds.

11.3.7 No deductibles, retentions, or "self Insured" amounte shall exceed One Hundred Thousand Dollars ($100,000.00) in the aggregate per year, per policy. Ucensee shall be solely responsible for any self-Insurance amount or deductible.

1ie24367v4 27 Of 41 Contract No. 2013-183-COS 11.3.8 No deductible shall be applicable to coverage provided to Licensor.

11.3.9 Ucensor may require Licensee firom time to time to secure payment of any deductible or self-insured retention by a surety bond or by a dean, inevocable and unconditional letter of credit in content and fomi satisfactory to the dty attome/s office.

11.3.10A11 policies shall contein provisions tiiat neither Ucensee's breach of a policy requirement or warranty, nor failure to follow dalms reporting procedures, shall affect coverage provided to Ucensor

11.3.11 All policies except workers' compensation must cover Licensor and the other Additional Insureds as additional insureds. Ucensee shall cause coverage for Additional Insureds to be incorporated into each insurance policy by endorsement

11.3.12 All applicable policies must name Licensor as a loss payee as respects proceeds relating to the Use Areas.

11.3.13 All polides must provide Ucensor with at least thirty (30) days prior notice of any cancellation, reduction or other change In coverage. The insurer's duty to notify Ucensor of changes in coverage shall not indude phrases such as "endeavor to" or "bvX failure to mail such notice shall Impose no obligation or liability of any kind upon the company, ite agente or representatives."

11.3.14 All polides shall require that notices be given to Licensor In tiie manner specified for notices to Licensor under this Agreement

11.4 Insurance Certificates. Licensee shall evidence all insurance by fomishing to Ucensor certificates of Insurance annually and witii each change In insurance coverage. Certificates must evidence that ttie policy descritied by the certificate is in foil force and effect and that tiie policy satisfies each requirement of ttiis Agreement applk^able to the policy. For example, certificates must evidence tiiat Ucensor and the other Additional Insureds are additional insureds and that insurance proceeds will be paid as required by this Agreement Certificates must be in a fonn accepteble to Licensor All certificates are in addition to the actual polides and endorsemente required. Ucensee shall provide updated certificates at Ucensor's request.

11.5 Accepteble Insurere. All insurance polides shall be issued by Insurers acceptable to Ucensor. At a minimum, all insurers shall be duly licensed (or qualified non-admtfted Insurer) by tiie State of Arizona, Department of Insurance. At a minimum, ail Insurers shall have and maintain an AM. Best Inc. rating of B+-t- 6.

11.6 Ucensor's Election to Provide Insurance. Licensor is not required to carry any insurance covering or affecting the Use Areas or use of Uoensors property related to this Agreement. Ucensor may elect to acquire all or any part of the Insurance required by this Agreement (vi/lth or without any other real property Licensor may own, or txmtaol) and Licensee shall pay to Ucensor the ooste of such Insurance as reasonably detenmined by Ucensor. Ucensee shall provide all required insurance not so provided by Ucensor Any insurance or self insurance maintelned by Ucensor shall not contribute to Ucensee's Insurance.

11624367v4 28 of 41 Contract No. 2013-183-COS 11.7 Insurance Proceeds. All insurance proceeds (whether actually paid t>efore or after temnination of this Agreement) shall be paid to Licensee and Licensor Jointiy and shall be allocated among Licensor. Licensee and other interested parties as tiieir interests may appear.

11.8 No Representation of Coverage Adeguacv. By requiringinsuranc e herein. Licensor does not represent that coverage and limite will be adequate to protect Licensee. Ucensor reserves tiie right to review any and all of tiie insurance polides and/or endorsemente cited in ttiis Agreement but has no obligation to do so. Failure to demand such evidence of full compliance with the insurance requiremente set forth in this Agreement or failure to Identify any insurance defidency shall not relieve Licensee from, nor be construed or deemed a waiver of, Ite obligation to maintain the required insurance at ait times.

11.9 Use of Subcontiactors. If Ucensee subcontiacte or othenvise delegates any work or use of the Use Areas under this Agreement, Licensee shall cause the delegatee to execute and provide to Ucensor a writing executed by tiia delegatee containing the same indemnification dauses and insurance requiremente set forth herein protecting Licensor and Licensee. Ucensee shall provide to Licensor certtflcates of insurance and other evidence that such requiremente have been satisfled.

11.10 Indemnity. In addition to all other obligations hereunder, to tfie follest extent permitted by law, throughout the term of ttiis Agreement and until all obligations and performances under or related to this Agreement are satisfied and all matters descritied in this paragraph are completely resolved. Licensee (and all otiier persons using, acting, woridng or daiming through or for Ucensee or.this Agreement (if they or their subcontractor, employee or other person or entity hired or directed by them partidpated In any way in causing the daim in question)) shall jointiy and sev^Ily pay, indemnify, defend and hold harmless Ucensor and all other Additional Insureds for, from and against any and all claims or hann related to tiie Use Areas or this Agreement (the "Indemnity"). Without limitation, the Indemnity shall Indude and apply to any and all allegations, demands, judgmente, assessmente. texes. Impositions, expenses, proceedings, liabilities, obligations, suite, actions, dalms (Induding wittiout limitation daims of personal injury, bodily injury, stekness, disease, death, property damage, desbuctton. loss of use, finandal harm, or other Impairment), damages, losses, expenses, penalties, fines or ottier matters (together with all attorney fees, court coste, and ttie cost of appellate proceedings and all otiier coste and expenses of litigation or resolving the daim) that may arise in any manner out of any use of the Use Areas or other property related to tiiis Agreement or any actions, acts, enors, mistakes or omisstons relating to work or services In the performance of or related to this Agreement Induding without llmttetion any injury or damages or cause of action daimed or caused by any employees, conb^ctora, subcontractors, tenante, subtenante. agente or otiier persons upon or using ttie Use Areas or surrounding areas related to this Agreement induding vtrithout limitetion dalms, liability, harm or damages caused In part by Licensor or any ottier Addltlonai Insured or anyone for whose mistakes, errors, omissions or negligence Ucensee or Licensor may be liable. As a condition to Ucensor's executing this Agreement Ucensee spedficalty agrees that to the extent any provision of this paragraph is not folly enforceable against Ucensee for any reason whatsoever, this paragraph shall be deemed automatically reformed to the minimal extent necessary to cause it to 1)0 enforceable to the fullest extent permitted by law. The indemnity shaD also include and apply to.any environmental injury, personal injury or other liability relating to Ucensor's or Ucensee's acquisition, ownerehip or use of real property developed, operated, owned, used, controlled or possessed by

11624367v4 29 of 41 Contract No. 2013-183-COS Ucensor or Licensee under this Agreement. Notwithstanding the foregoing, tfie Indemnity does not apply to:

11.10.1 Claims arising only from the sole gross negligence of Ucensor.

11.10.2Clalms that tiie few prohibits from being imposed upon tiie indemnitor.

11.11 Consultant Indemnity. Licensee shall cause ali architects, engineers, contractors, constiuction managers and other consultante. induding itself to tiie extent Uoensee provides any such services, (collectivety "Consuftante") oontiBcted to provide professional services in ttie design, construction, operation or other work regarding the Use Areas to provide to Licensor the following protections:

11.11.1 To ttie follest extent permitted by law, Consultente shall defend, indemnify and hold harmless Ucensee, Ucensor and their respedlve agente, representatives, officers, directors, offidals and employees (induding wittiout limitation the Additional Insureds) firom and against all claims, damages, losses and expenses (Induding but not limited to attomey fees, court coste, and tiie cost of appellate proceedings), relating to, arising out of or resulting from ttie Consultenfs ads, enors, mistekes or omissions relating to professional services relating to the Licensee's Improvemente. Consultenfs said duty to defend, hold hamnless and indemnity shall arise in connection witii any claim, damage, loss or expense tiiat is attributable to bodily injury, sickness, disease, death; or Injury to. Impalmient or destiuction of property induding loss of use resutting therefrom, caused by any acts, enrors, mistakes or omissions related to professional services relating to the Ucensee's Improvemente or the Use Areas induding any person for whose acts, errors, mistekes or omissions the Consultant may be legally liable.

11.11.2 This Indemnity does not Increase or decrease any non-contiact liability ttiat may or may not exist Independent of this provision and may or may not be covered or coverat)le by Insurance.

11.11.3Professional liability insurance covering acts, errors, mistakes and omissfons arising out of the services or woric performed by tiie Consultant or any person employed by him or for whose acte he may be liable, wrtfi a limit of not less ttian Five Million Dollars ($5,000,000.00) for each dairn. Any "claims made" coverage must extend not less than tiiree (3) years after completion of tiie woric. Such coverage Is not required to tiie extent it would merely duplicate insurance coverage Uien provided by Licensee to Licensor under tiiis Agreement

11.12 Risk of Loss. Licensee assumes the risk of any and all loss, damage or daims to the Use Areas or related to Ucensee's use of the Use Areas or other property of Licensor, Ucensee or tiiird parties throughout the term hereof. Ucensee shall be responsible for any and ail damage to its property and equipment related to this Agreement and shall hold harmless and indemnify Ucensor and all other Additional Insureds, regardless of the cause of such damages.

11.13 Indemnities and Insurance Cumulative. Ucensee's obligations to Indemnify do not diminish in any way Ucensee's obligations to Insure; and Licensee's obligations to insure do not diminish In any way Ucensee's obligations to indemnify. Ucensee's obligations to indemnify and provkJe insurance are In addition to, and do not limit any and all otiier liabilities or obligations of Ucensee under or cOTneded wtth this Agreement The amount and type of insurance coverage 11B24367v4 30 of 41 Conti-act No. 2013-183-COS required by this Agreement will In no way be constroed as limiting tiie scope of the indemnities or otiier requirements of this Agreement

11.14 Insurance to be Provided bv Ottiers. Ucensee shall cause ite contractors or otiier persons occupying, woridng on or about or using tiie Use Areas pursuant to this Agreement to be covered by the/r own or Licensee's insurance in the amounte and coverages required by this Agreement and conforming to the otiier requiremente of tiiis Agreement The required policy limite for commerdal general liability insurance provkied by such persons shall be One Million Dollars (51.000,000.00) for each occurrence. Two Million Dollars ($2,000,000.00) for producte and completed operations annual aggregate, and two Million Dollars ($2,000,000.00) general aggregate limit per policy year

XII. CONDEMNATION

12. Condemnation. If any part of the Use Areas shall be acquired or condemned by eminent domain for any public or quasi-public use or purpose, and if such teking or condemnation shall render tiie Use Areas unsuitable for the Permitted Uses in Lk»nsor's opinion, tiien tiie temn of tiiis Agreement stiall cease and terminate as of ttie date of the condemnor teking possessfon in such proceeding and Ucensee shall have no daim to any condemnation proceeds. If a partial teking or condemnation Is not extensive enough to render ttie Use Areas unsuiteble for the Permitted Uses. Licensee shall restore the Use Areas to a condition comparable to Ite condition at the time of such condemnation less ttie portion lost In tiie taking and tills Agreement shall continue In foil force and effect with condemnation proceeds being used to restore the Use Areas and any excess being retained by Ucensor Ucensee acknowledges tiiat Licensor from time to time may have or acquire, and may use, ttie power to condemn ttie Use Areas or any intereste ttierein or righte tiiereto. Ucensee on behalf of all persons daiming under tills Agreement unconditionally and inevocably waives any right to contest Licensor's power to teke or tiie proper exerdse of such power. This paragraph does not limit Ucensor's power to terminate this Agreement as provided elsewhere In this Agreement

Xill. DAMAGE TO OR DESTRUCTION OF USE AREAS

13. Damage to or Destiuction of Use Areas. If the Use Areas are damaged by Are. explosion, tiie elemente, tfie public enemy, or otiier casualty through no fault of Licensee and the cost of repair exceeds Three Thousand and No/100 Dollars ($3,000.00), Ucensee may elect witiiin tiiirty (30) days after tiie damage to give notice to Ucensor terminating tiiis Agreement Ottierorlse, Ucensee shall restore the damage to tiie Use Areas at Ucensee's sole cost and expense.

XIV. UCENSEE'S RECORDS

14. Ucensee's Records. During ttie entire term of this Agreement, Licensee shall keep records and provide information to Licensor as follows:

14.1 Scope of Infomiation. Unless otherwise specified, all of Ucensee's recordkeeping and disclosure ot}ligations under this article indude and are limited to tiie fdlowing cumulative topics as reasonably determined by Licensor (collecttvefy the "Covered Information"):

14.1.1 All information about this Agreement 11624367v4 31 of 41 Contract No. 2013-183-COS 14.1.2 All infonmation about Ucensor's and Licensee's rights, obligations and performances under ttiis Agreement

14.2 Reports. Licensee shall deliver to Ucensor written reporte (and, tf requested by Uoensor, a presentation to Ucensor's governing ooundl or designee) covering sudi Covered information as. Ucensor may request ftom time to time.

14.3 Records Inspection. At Ucensee's expense. Licensee stiall:

14.3.1 Permit and assist Ucensor and ite representativesa t all reasonable times to inspect audit and copy Ucensee's records of Covered Information.

14.3.2 Make the records of Covered Infomiation (and reasonable accommodations for Ucensor's audit and Inspection) available to Ucensor at Ucensee's offices in tiie City of Scottsdale In Maricopa County, Arizona or at another location requested by Ucensor within the corporate limite of the City of Scottedale.

14.3.3 Cause Ucensee's employees and agente and accountente to give their foil cooperation and assistance in connection with Ucensor access to the Covered Information.

14.4 Standards for Records. Licensee shall maintain a standard, modem system of recordkeeping for tiie Covered Infomiation and shall keep and maintain proper and accurate books and other repositories of Information relating to the Covered Information In accordance with generally accepted accounting prindples applied on a consistent basis. If Ucensor does not receive Covered Information, Licensor shall have the right to estimate ttie information that is not provided, which estimate shall be binding upon Ucensee.

14.5 Record Retention. Licensee shall presenre reconJs of the Covered Information in a secure place within the City of Scottsdale, Maricopa County. Arizona for a period ending seven (7) years after tiie time period reported by tiie records.

14.6 Record Media Induded. Ucensor's and Ucensee's righte and obligations regarding tiie Covered Information encompass media, materials, and date repositories of every kind and character that may contain Covered Information. Such repositories indude, without limitation, records, books, papers, documente, subscriptions, recordings, agreemente, purchase orders, computer data, invoices, cash register tapes, contracte, logs, accounte, commttmente, anangements, notes, diaries, ledgers, correspondence, reports, drawings, recelpte, vouchers and memoranda, and any and all other sources, records and repositories of Covered Information.

14.7 Access after Termination. Licensee's access to Covered Infomiation shall continue for six (6) years after temilnation of this Agreement for any reason.

14.8 Coste of Audit. If an audit, inspection or examination of Covered Infomiation disdoses underpaymente (or ottier mattere adjusted in favor of Ucensor) of any nature that exceed ttiree percent (3%) of any paymente or single payment Ucensee shall pay to Uoensor Ucensor's actual cost (based on the amount paid by Ucensor, or based on reasonable charges charged by private auditors and other service providers for comparable woric if the audit is performed by Ucensor's employees) of tiie audit Inspection or examination, togetiier witti late fees, interest and

11824367v4 32 of 41 Contract No, 2013-183-COS otiier amounte payable In connection witii such adjustmente or paymente. Any adjustments and/or payments due as a result of any such audit Inspection or examination shall be made within a reasonable amount of time (not to exceed tiiirty (30) days) after Licensor gives to Ucensee notice of Ucensor's findings.

XV. COMPLIANCE WITH LAW

15. . Compliance witii Law. Licensee shall perfomn ite obligations under ttiis Agreement in accordance witii all federal, state, county and local laws, ordinances, regulations or other roles or polides as are now In effed or as may hereafter be adopted or amended. Without limiting in any way the generality of tiie foregoing, Ucensee stiall comply witii all and each of the following:

15.1 Applicabilitv of Munldoal t-aw. Witiiout limitetion. Licensee shall comply witii munidpal laws as follows:

15.1.1 Licensee acknowledges that this Agreement does not constitute, and Licensor has not promised or offered, any type of waiver of, or agreement to waive (or show any type of fortiearance, priority or favoritism to Ucensee witti regard to) any law, ordinance, power, regulation, tax, assessment or other legal requirement now or hereafter Imposed by the City of Scottsdale or any otiier governmental body upon or affiecting Uoensee, tiie Use Areas, or tiie Adjacent Right-of-way, or Ucensee's use of ttie Use Areas or ttie Adjacent Right-of-vray.

15.1.2 AH of Licensee's obligations hereunder are in addition to, and cumulative upon (and not to any extent In substitution or satisfaction of), all existing or futore laws and regulations applicable to Licensee.

15.1.3 in the case of an ordinance or other law of the City of Scottsdale authorizing a credit reduction in tax or amount diarged or assessed, or any other benefit as a result of perfomiances rendered under ttiis Agreement Ucensee expressly vt;aives, relinquishes and repudiates ail such benefite vinth respect to perfomiances rendered under this Agreement

15.1.4 This Agreement is not Intended to diminish any performances that would be required of Licensee by law if this Agreement had been made between Licensee and a private dtizen.

15.1.5 Licensor has not relinquished or limited any right of condemnation or eminent dorhain over the Use Areas or any otiier property related to this Agreement or the Adjacent Right-of-way.

15.1.6 This Agreement does not Impair City of Scottsdale's power to enact apply or enforce any laws or regulations or exerdse any govemmental powere affecting In any way Ucensee, tiie Use Areas, the Adiacent Right-of-way, or the Restaurant Parcel.

15.1.7 Ucensor's rigirte and remedies hereunder for Ucensee's failure to comply wtth ail applicable. laws supplement and are In addition to and do not replace othenvlse existing powers of ttie City of Scottsdale or any ottier govemmental body.

11624367v4 33 of 41 Contract No. 2013-183-COS 15.2 Govemment Property Lease Exdse Tax. Ucensee shall be responsible for any and ail property taxes and all govemment property lease exdse taxes descrit>ed in AR.S. § 42-6201 et seq. or similar laws in force from time to time. Pursuant to AR.S. § 42-6206, failure by Licensee to pay any such tax after notice and an opporfonity to cure is an event of default tiiat could resuft in divesting tiie Licensee of any interest in or right of occupancy of ttie Use Areas.

15.3 Taxes. Liens and Assessmente. in addition to all other Use Fee herein provided, Ucensee shall pay. when due and as tiie same t>ecome due and payable all taxes and general and spedal fees, charges and assessments of every description which during the term of this •Agreement may be levied upon or assessed against the Use Areas, the operations conducted ttierein, any Use Fees paid or ottier performances under this Agreement by either party, and all possessory interest In ttie Use Areas and Improvements and ottier property thereon, whether belonging to the Ucensor or Ucensee; and Ucensee agrees to Indemnify, defend and hold hamiless Licensor and tiie Use Areas and such property and all Interest ttierein and improvemente thereon from any and all such taxes and assessmente, Induding any interest penalties and other expenses ttiat may be imposed, and from any lien tiierefor or sale or ottier proceedings to enforce payment tiiereof. Ucensee shall have the right to contest, but not the right to refose to timefy pay. any taxes and assessmente. Ucensor shall have the right from time to time to require that all of the foregoing paymente be made by Ucensee through Ucensor. Ucensee shall pay all sales, fransaction privilege, and similar taxes.

15.4 Food l^ws. Ucensee shall at all times comply wtth Federal Pure Food and Dmg Laws and ail other applicable health roles, regulations, standards, laws and ordinances of the United States of America, State of Arizona, County of Maricopa, City of Scottsdale, and any otiier authority lawfolly exerdsing authority over food and beverage sen/ices. Licensee shall at rte ovm expense obtain and maintain all necessary licenses and pemiite permitting the sale of food and beverages at the Use Areas.

15.5 Permite. Licensee shall obtain at ite own expense all building or other perm'ite in connection with all construction perfomned by Ucensee and shall compty witii all zoning, building safety, fire and similar laws and procedures of every description.

XVI. ASSIGNABILITY

16. Assianabllitv. This Agreement Is not assignable by Ucensee except In strict compliance witti tiie fdlowing:

16.1 Assignmente Prohibited. References In tills Agreement to asslgnmente or subleases by Licensee shall be deemed to apply to all of ttie following transactions, drcumstances and conditions:

16.1.1 Any voluntary or Involuntary assignment conveyance, or transfer of the right to use tiie Use Areas or any interest th^in or any righte under this Agreement in wtiole or in part

16.1.2 Any voluntary or involuntary pledge, lien, mortgage, security Interest judgment deed of trust daim or demand, whether arising from any contract any agreement any worit of construction, repair, restoration, maintenance or removal, or othenvise affecting the Use Areas (collectively "Liens").

11624367V4 34 of 41 Contract No. 2013-183-COS 16.1.3 The use, occupation, management contiol or operation of the Use Areas or any part thereof by ottiers.

16.1.4 Any transaction (or series of related or unrelated ti^nsactions) transfierring a substantial part of the corporate stock (or other evidence of ownership, as applicable) or any otiier direct or Indirect b:ansfer of any substantial part of the ownership, management or control of Ucensee or the Use Areas.

16.1.5 Any assignment for tiie benefit of creditors, voluntary or involuntary.

16.1.6 Any Iwnkruptcy or reorganization.

16.1.7 The occurrence of any of the foregoing by operation oflaw.

16.2 Assignment Remedies. Any prohibited assignment shall be vokl and vest no righte in the assignee. Nevertheless, Ucensor may. in ite sole discretion and In addition to all other remedies available to Ucensor under this Agreement or othenMse and In any combination, collect Use Fee from the assignee, sublicensee or occupant and apply the net amount collected to ttie Use Fee required to be paid thereunder and/or void tiie assignment all without prejudfoing ariy other right or remedy of Ucensor under this Agreement No cure or grace periods shall apply to asslgnmente prohibited by this Agreement or to enforcement of tills Agreement against an assignee wiio did not receive Ucensor's consent Ucensor may elect to increase Use Fee or otherwise modify this AgreOTient as a condition to consenting to an assignment.

16.3 No Waiver No consent or collection or other action or inaction by Ucensor shall be deemed a waiver of tiie prohibition on asslgnmente or any other pnovisfon of tills Agreement or the acceptance of the assignee, sublicensee or occupant as Ucensee, or a release of Ucensee from the farther performance by Ucensee of the provisions of this Agreement The consent by Ucensor to an assignment or subletting shall not relieve Ucensee from obtaining the consent in writing of Ucensor to any forther assignment or sublease. Upon assigning, transferring or subletting the Use Areas, Ucensee shall not be released of any liability hereunder but shall remain folly and personally obligated under this Agreement

16.4 Enforceabilitv after Assignment This Agreement shall be enforceable personally and in total against Ucensee and each successor, partial or totel, and regardless of ttie metiiod of succession, to Ucensee's interest hereunder. Eadi successor having actual or constiuctive notice of this Agreement shall be deemed to have agreed to the preceding sentence.

16.5 Grounds for Refusal. No asslgnmente of this Agreement are contemplated or bargained for. Licensor has tiie absolute right for any reason or for no reason in Ite sole discretion to give or >Mthhold consent to any assignment or to Impose any conditions upon any assignment Lessee shad pay to Lessor the sum of One Thousand Five Hundred Dollars ($1,500.00) as a fee for legal and adminlsttative expenses before making any assignment or making any request for consent to an assignment

16.6 Fomr of Assignment. Any assignment shall be by agreement In form and content acceptable to Ucensor Witiiout iiriiitation, any assignment shall specify and require tiiat each assignee acquiring any interest under this Agreement shall assume, be bound by. and be obligated 11624367V4 35 of 41 Contiract No. 2013-183-COS to perform the terms and conditions of tills Agreement and that, if Lteensor terminates this Agreement because of default by Ucensee, Ucensor at Licensor's sole option may succeed to the position of Ucensee as to any assignee of Licensee witiiout liability for any prior breaches or performances by persons otherthan Ucensor.

16.7 Lien Payment Ucensee shall pay all Liens as tiie same become due, and in any event before any judicial or ncvi-judidal action or proceeding Is commenced to enforce a Lien. Ucensee shall pay, indemnify, defend and hold Licensor and the Use Areas free and harmless for. from and against any and all Uens, together with all liability, coste and expenses In connection ttierewfth, Induding attome/s fees. Ucensor shall have tiie right at any time to post and maintain on tire Use Areas such notices, pay such amounte. file or record such notices, or take such other actions as Ucensor may deem necessary to protect Ucensor and ite property intereste against all Uens.

16.8 Assignment of Resteurant Parcel. Licensee's righte and obligations under tills Agreement touch and concem the Restaurant Parcel, and mn with, benefit and burden the Restaurant Parcel for tiie t>enefit of Ucensor and the Use Areas, and bind future owners of the Restaurant Parcel. In addftbn:

16.8.1 No grant or otiier transfer of fee titie to tiie Restaurant Parcel shall occur without a conesponding assignment of Ucensee's righte under ttiis Agreement to tiie grantee and assumption of Ucensee's obligations under tills Agreement by the grantee.

16.8.2 In addition to all of Licensor's otiier remedies. Licensor shall have the right to unilateraify terminate this Agreement If this Agreement is not assigned to and assumed by any grantee of the Resteurant Parcel, even If the assignment Is prevented by Ucensor's failure to consent to such assignment.

16.8.3 Licensee shall give Licensor thirty (30) days advance notice of any assignment of the Resteurant Parcel.

16.9 Pre-approved Assignment Licensee has requested Licensor's consent for Licensee to sub-license the License Area to Rfok/s Autiientic Mexican Food, LLC, an Arizona limited liability company ("Sub-Ucensee"). Licensor consente to such sub-license from Licensee to Sub-Ucensee. Sul>Ucensee and Ucensee shall bath sign tills Agreement Sub-Ucensee's signature shall bind Sub-Ucensee to Ucensor and Licensee to perform all of Licensee's obligations to Ucensor under this Agreement No Lienholder Consent is required from Sub-Licensee.

XVII. MISCELLANEOUS

17. Miscellaneous. The following additional provisions shall apply:

17.1 Limited Severability. If any temn, condition, covenant stipulation, agreement or provision herein contelned is held to be Invalid or unenforceable for any reason, the invalidity of such term, condition, covenant stipulation, agreement or provision shall in no way affect any other tenn, condition, covenant stipulation, agreement or provision herein contained. Further,, this Agreement shall be deemed automatically reformed to secure to Ucensor the legal, equitable,

11624367v4 36 of 41 ConbBCt No. 2013-183-COS practical and other benefits of the provisions of this Agreement as written to ttie very maximum extent permitted by law.

17.2 Confllcte of Interest. No member, offidal or employee of Ucensor shall have any direct or indirect interest In this Agreement, nor partidpate in any dedsion relating to the Agreement that is prohibited by law.

17.3 No Partnership. This Agreement and tiie transactions and perfomiances contemplated hereby shall not create any sort of partnership, joint ventore or similar retationship between the parties.

17.4 Nonllabllitv of Ucensor Offidals and Employees. No member, official, representative or employee of Ucensor shall be personally liatTle or otherwse responsible to any party, or to any successor in interest to any party for any default or breach by Ucensor or for any perfomiance or amount that may become due to any party or successor, or with resped to any obligation of Ucensor or otiierwise under tiie temis of tiiis Agreement or related to this Agreement

17.5 Notices. Notices hereunder shall be given in writing personally served upon the other party or mailed by registered or certified maii, retijm receipt requested, postage prepaid addressed to:

if to Ucensor Asset Management Coordinator City of Scottedale 7447 East Indian School Road, Suite 205 Scottedale, AZ 85251

Copies to: City Attomey City of Scottsdale 3939 North Drinkwater Boulevard Scottsdale, AZ 85251

If to Ucensee: Sawarndip (Bunty) Singh 7335 E Shoeman Lane Scottedale, AZ 85251

If to Sub-Licensee: Ricardo Leon Celaya 6501 N. Lost Dutchman Dr. Paradise Valley, AZ 85253 or to such other street address wfthin Maricopa County, Arizona as may be designated by the respective parties In writing from time to time, fsfotices to Ucensee may Instead be hand delivered to tiie Restaurant Parcel. Sen/ioe of notice by mall shall be deemed to be complete forty-eight (48) hours after the notice is deposited in the United States mail.

17.6 Time, of Essence. Time is of tiie essence of each and every provision of this Agreement Any payments due on Saturday, Sunday or Arizona legal holiday shall be due on tiie next succeeding day tiiat Is not a Saturday, Sunday or Arizona legal holiday.

11624367v4 37 of 41 Contract No. 2013-183-COS 17.7 Funding. This subparagraph shall contiol notwitiistandlng any provision of this Agreement or any exhibit or other agreement or document related hereto. If fonds necessary to fulfill Ucensor's obligations under ttiis Agreement are not appropriated by tfie Scottsdale City Coundl, Ucensor may temilnate this Agreement by thirty (30) days notice to Ucensee. Temnination in accordance with this provision shall not constitute a breach of this Agreement by Licensor. No person will be entitied to any compensation, damages or ottier remedy fiom Licensor if tiiis Agreement is terminated pursuant to tiie tenns of this subsection.

17.8 Paragraph Headings. The paragraph headings contelned herein are for convenience in reference only and not Intended to define or limit ttie scope of any provision of this Agreement.

17.9 Attomevs' Fees. If any action or suit or proceeding is brought by either party to enforce compliance with tiiis Agreement or for failure to observe any of the covenante of this Agreement or to vindicate or exerdse any righte or remedies hereunder, the party which does not prevail shall pay all coste of such action or suit and all expenses of such action or suit together with such sum as the court may adjudge reasonable as attorneys' fees to be alfowed In said suit action or proceeding.

17.10 No Third Party Beneficiaries. Except for Ilmlted provisions, if any, expressty steted to be "for the benefit of a third party, if any, no person or entity shall be a tiiird party benefidary to this Agreement or shall have any right or cause of action hereunder

17.11 Exhiblte. All exhibite specifically stated to be attached hereto are incorporated Into this Agreement by tiiis reference.

17.12 Integration. This Agreement constitutes ttie entire agreement between the parties witii respect to tiie subject matter hereof and supersedes any prior agreement, understanding, negotiation or representation regarding the Use Areas.

17.13 Further Assurances. Ucensee agrees to do such forther acts and things and to execute and deliver such additional agreemente and insttumente as Licensor may reasonabfy require to consummate, evidence, confirm or carry out the agreement contained herein.

17.14 Constnjction. Whenever the context of this Agreement requires, the singular shall Include the plural, and ttie mascurine shall Indude the feminine. This Agreement shall be construed according to Ite plain meaning and neither for nor against any party hereto, Ucensee acknowledges ttiat ttie Use Fee payable hereunder was negotiated in light of the plain meaning of this Agreement and tills Agreement stiall tiierefore be Interpreted according to ite plain meaning and without regard to mles of interpretation, If any, that might othenAnse favor Ucensee.

17.15 Survivai of Uabilitv. All obligations of Licensee hereunder and all warranties and indemnities of Ucensee hereunder shall survh/e termination of this Agreement for any reason.

17.16 Choice of Law. This Agreement shall be governed by the Intemal laws of the Stete of Arizona. Exdusive proper venue for any action regarding tiiis Agreement shall be Maricopa County.

11624367v4 38 Of 41 Contract No. 2013-183-COS 17.17 Aoorovals and Inspections. All approvals, reviews and Inspections by Ucensor under this Agreement or otherwise are for Ucensor's sole benefit and not for Ucensee's benefit

17.18 Recording. Wittiin ten (10) days after ttie date of ttiis Agreement Ucensee shall cause ttiis Agreement to be recorded In tiie office of the Maricopa County Recorder.

17.19 Statutory Cancellation Right In addition to ite ottier righte hereunder. Licensor shall have tiie righte specified in AR.S. §38-511.

17.20 Sudan. In accordance witfi AR.S. §35-391.06 and §35-393.06, tiie Contractor certifies that it does not have scrutinized business operations In Sudan or Iran, as defined in AR.S. §35-391(15) and §35-393(12).

EXECUTED as of tiie date first given above.

LICENSEE: NYSBV INVESTMENT, LLC, an Arizona limited •y liability company

By: ^ , ,

SUB-LICENSEE: RICKY'S AUTHENTIC MEXICAN FOOD, LLC, an ArizcMia limits lialxlity company

By:

LICENSOR: CrTY OF SCOTTSDALE. an Arizona munidpal corporation

By: W. J. "Jim" Lane. Mayor ATTEST:

Carolyn Jagger, City Clerk

APPROVED AS TO FORM: ^ /T OFFICE OF THE CITY ATTORNIEY , ^ /

Bruce Was )mey

11624367v4 39 of 41 Contrad No. 2013-183-COS Maria Muiser, Asset Management Coordinator

Paul Basha, Transportation Planning Director

a4n>rgLi WuuJst Autii ly Risk Managerfient Djrector

1ie24367v4 40 of 41 Contract No. 2013-183-COS STATE OF ARIZONA ) ) SS. County of Maricopa )

The foreqoing instnjment was acknowledged before me this dav of {[/^ 201^ . by of NYSBV Investment LLC, an Arizona limK^d liabilitlialiilityv companycomoanv. ^ /

My Commission Expires: NiyiA SGHNIEPER Notanr Public - Arizona Maricopi Coonty My Comm. Expires Nov 11,20141

STATE OF ARIZONA )

) SS. County of Maricopa ) ^ The foregqfng Instmmen acknowledged l>efora me this day of ^/-? 201 _< . by i^Car^U \ &Ki g\ of Ricky's Autiientic Mexican Food, LLC, an Arizonizonad limilimitet d liability company.

My Commission Expires:

STATE OF ARIZONA ) )ss. County of Maricopa . )

The foregoing instrument was acknowledged before me this day of 20 , by W. J. "Jim" Lane, Mayor of the City of Scottsdale, an Arizona munidpal corporation.

Notary Public

My Commission Expires:

11624367v4 41 of 41 Conttact No. 2013-183-COS TABLE OF EXHIBITS

Exhibit Paragraph Description

A A Engineered metes-and-tx)unds (or platted lot) legal description for City land to be used for outdoor dining.

B A Site plan drawn in complete compliance with all of the site plan . instructions. The site plan must show the dty property to be used, togetiier with the Restaurant Parcel.

C C Engineered metes-and-t>ounds (or platted lot) legal description for parcel upon which adjacent privately owned restaurant building is located.

D 1.9.2 Forni of Lienholder Confirmations.

E 8.3.1 Janitorial and maintenance program.

(Note: This page is not part of the confracf. Remove it before the city council meeting]

Page I 11624367v4 Contract No. 2013-183-COS USE AREAS

S89'57'Q9''E 500'02'5rw 17 \ TV 30.00' 7.40' $89^7'09"E 2.44' 7325 E Shoeman Ln

L=11.45' R=12.50 D=52*30'04' PROPOSED LICENSE AREA

ol «- b ^ o

173-41-187B o o o o t/).

N89'57'09"W 7.33'

m p o o

EXPIRES: 3/31/2016

N89'35'09'W N89'35'09''W 40.00' \ 30.00' R.O.W. PER BK 68. PG 13

2925 E f^ggs Rd Suite 6-191 Chandler, AZ 85249 EXHIBIT -A" SCALE: I'^IO' (480) €56-7912 office Page 1 of 2 WGS5020 (460)219-6195 fax 2013-183-COS SHEET 10F2 USE AREAS

A PORTION OF THE RIGHT-OF-WAY OF WELLS FARGO AVE. AS SHOWN ON THE PLAT OF RECORD OF CAMELBACK PARK PLAZA FILED IN BOOK 86 OF MAPS. PAGE 13, MARICOPA COUNTY ARIZONA. ALSO LOCATED IN THE SOUTHEAST QUARTER OF SECTION 23 TOWNSHIP 2 NORTH. RANGE 4 EAST OF THE GILA AND SALT RIVER BASE AND I^ERIDIAN MORE PARTICULARLY DESCRIBED AS F(XJ-0W5:

COMMENCING AT THE NORTHEAST CORNER OF LOT 68 IN SAID CAMELBACK PARK PLAZA RLED IN BOOK 86 OF MAPS. PAGE 13; THENCE SOUTH 00 DEGREES 02 MINUTES 51 SECONDS WEST ALONG THE EAST UNE OF SAID LOT 68. A DISTANCE OF 7.40 FEET TO THE POINT OF BEGINNING;

THENCE LEAVING SAID EAST UNE, SOUTH 89 DEGREES 57 MINUTES 09 SECONDS EAST, A DISTANCE OF 2.44 FEET TO THE POINT OF CURVE OF A NON TANGENT CURVE TO THE RIGHT, OF WHICH THE RADIUS POINT UES. SOUTH 37 DEGREES 32 MINUTES 58 SECONDS WEST, A RADIAL DISTANCE OF 12.50 FEET; THENCE SOUTHEASTERLY ALONG THE ARC. THROUGH A CENTRAL ANGLE OF 52 DEGREES 30 MINUTES 04 SECONDS. A DISTANCE OF 11.45 FEET;

THENCE SOUTH 00 DEGREES 02 MINUTES 51 SECONDS WEST, A DISTANCE OF 28.54 FEET; THENCE NORTH 89 DEGREES 57 MINUTES 09 SECONDS WEST, A DISTANCE OF 7.33 FEET TO THE EAST UNE OF SAID LOT 68; THENCE NORTH 00 DEGREES 02 MINUTES 51 SECONDS EAST, A DISTANCE OF 36.46 FEET TO THE POINT OF BEGINNING.

CONTAINING 267.25 SQUARE FEET OR 0.0061 ACRES. MORE OR LESS

2925 e Riggs Rd Suite 8-191 Chandler, AZ 85249 EXHIBIT "A" ' Page 2 of 2 (480) 656-7912 offios WGS502Q 2013-183-COS (480) 219-5195 fax SHEET 2 OF 2 E. SHOEMAN LANE PARKIN© STALLS EXISTIN© CANOPY

EXISTIN© STK^T VERTICAL CURB

EXISTIN© FIRE HYDRANT EXISTIN© CONCRETE SIPE1^4ALK

ISTIN© LANn;5CAPE AREA EXISTIN© • CANOPY TO REMOCe. Ui PER PR > PROPOSED NEIN POLDIN© ©LASS < DOORSFW DRB APPROVAL 0 PROPOSED ^ALED 0 CONCRETE SLAB DC PROPOSED < OtTOOOR ©AS FIREPLACE LL PER DRB CO PROPOSED DININ© PATIO -J AREA. ± S.F. UJ PROPOSED HINDOI^ PER DRB APPROVAL I PROPOSED NEW 2" METAL DIAMOND SHAPE RAILIN© W/ \- -\ VERTICAL 2X2 TL©E POSTS EA. 4' or..

RESTAURANT PROPB^Tf LINE EXISTIN© PUBLIC UTILITY 1 g RAUF S, \ \ 1 EXHIBIT "B" HOOSAVI KSHN QROUP, HC RICKY'S 14300 N. Northalolit Blvd,|^^lfl RESTAURANT Page 1 of 1 Suite 113 mS EAST SHOEHJUI UUE 2013-1B3-COS SoottBtfato, AZ 36230 WJ^ SC0TT80AL£, SBfiBI (430) 461-8333 | RESTAURANT PARCEL

PARCEL NO. 1: LOT 68 AND THE EAST 1.00 FOOT OF LOT 69, OF CAMELBACK PARK PLftZA, ACCORDING TO THE PLAT OF RECORD IN THE OFFICE OF THE COUNTY RECORDER OF MARICOPA COUrJTY, ARIZONA, RECORDED IN BOOK 86 OF MAPS, PAGE 13.

PARCEL NO. 2: LOT 69 AND THE EAST 14.00 FEET OF LOT 70, OF CAMELBACK PARK PLAZA, ACCORDING TO THE PLAT OF RECORD IN THE OFFICE OF THE COUNTY RECORDER OF MARICOPA COUNTY, ARIZONA, RECORDED IN BOOK 86 OF MAPS, PAGE 13.

EXCEPT THE EAST 1.00 FOOT OF LOT 69.

PARCEL NO. 3: THAT PORTION OF THE ABANDONED ALLEY LYIN SOUTH OF AND ADJACENT TO LOTS 68, 69 AND THE EAST 14,00 FEET OF LOT 70, CAMELBACK PARK PLAZA. ACCORDING TO BOOK 86 OF MAPS, PAGE 13, AS ABANDONED BY CITY OF SCOTTSDALE RESOLUTION NO. 3207, MARICPOA COUNTY, ARIZONA.

Exhibit "cr Page 1 of 1 Contract No. 2013-183-CO5 CONFIRMATION OF OUTDOOR DINING PATIO UCENSE AGREEMENT

(Ricky's Restaurant outdoor dining patio)

The undersigned, having or claiming a lien or other interest in the Restaurant Parcel as defined in the Outdoor Dining Patio License Agreement to which this CDnfinnation Is attached heretjy joins In said Outdoor Dining Patio License Agreement and subjects and subordinates its interests to said Outdoor Dining Patio Ucense Agreement and its requirements. The person executing this document warrants and represents authority to do so.

EXECUTED as of the date of the said Agreement.

By: its:

STATE OF ARIZONA) ) SS. County of Maricopa )

The foregoing instmment was acloiowledged before me this day of. 20__, by . of

Notary Public

My Commission Expires:

Exhibit "D" Page 1 of 1

11624367v4 Contract No. 2013-183-COS JANITORIAL AND MAINTENANCE PROGRAM

1. Ucensee shall perform the followng for the Use Areas:

1.1 Daily hose.

1.2 Daily cleaning.

1.3 Power wash the Use Areas and the Adjacent Right-of-way at least once each June and December.

2. Licensee shall perform the following for the Use Areas and the Adjacent Right-of- way:

2.1 Monitor the cleanliness of the Use Areas and the Adjacent Right-of-way during business hours. Immediately dean up any spills or debris caused by Ucensee or its suppliers or customers, and take other necessary actions to immediately maintain cleanliness of both.

2.2 Inspect and clean the Use Areas and the Adjacent Right-of-way at least at the beginning and end of business each day and at least once every two (2) hours during the business day.

2.3 Adequate and sanitary handling and disposal, away from the Use Areas and the Adjacent Right-of-way, of all trash, garbage and other refuse. Without limitatton, Licensee shall provkle and use suitat>le covered receptacles for all trash and other refuse. Piling of boxes, cartons, tiarrels, debris or other items outside the Use Areas or in a manner visible from outside the Use Areas or in a manner visible to areas open to the public Is prohibited. The area in which trash containers are stored shall be Kept dean and free of all trash and debris and shall be shielded from public view.

2.4 Trash pickup.

2.5 Repair erosion or other water or wind damage or changes to the surface or any other part of the Use Areas.

2.6 Ail irrigation, landscape, building and other maintenance required to operate the Use Areas in a first dass manner with appearance, landscaping, upkeep, repair arvA refurbishing, deanliness and healthy vegetation meeting or exceeding the manner of maintenance at the nicest similar fadllties In Maricopa County, Arizona.

2.7 Janitor and all other cleaning service.

2.8 Keep the gutters and other areas within the Use Areas and Adjacent Right-of-way dear of ot>struction&, litter and debris. Without limitation, this indudes covered gutters.

ExhIbH "E" Page 1 of 1

11624367V4 Contract No. 2013-183-COS