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HomeMy WebLinkAboutMINUTES - 02102015 - C.09RECOMMENDATION(S): APPROVE and AUTHORIZE the Director of Airports, or his designee, to execute on behalf of the County a Consent to Assignment that will permit the County’s current tenant, Pacific Whole Foods Corporation, to assign its lease of the County-owned property located at 2301 Meridian Park Boulevard, Concord to Excelsior JD Co., Concord area. FISCAL IMPACT: There is no negative impact on the General Fund. The Airport Enterprise Fund will continue to receive lease and other revenues provided for in the Lease. The County General Fund will continue to receive property, sales and possessory interest tax revenues from the Lease. BACKGROUND: Under a ground lease dated October 1, 2010, the County leased the subject property to Caffino Express LLC for the purpose of providing gourmet coffee and espresso and related APPROVE OTHER RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE Action of Board On: 02/10/2015 APPROVED AS RECOMMENDED OTHER Clerks Notes: VOTE OF SUPERVISORS AYE:John Gioia, District I Supervisor Mary N. Piepho, District III Supervisor Karen Mitchoff, District IV Supervisor Federal D. Glover, District V Supervisor ABSENT:Candace Andersen, District II Supervisor Contact: Beth Lee (844) 359-8687 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: February 10, 2015 David Twa, County Administrator and Clerk of the Board of Supervisors By: Stacey M. Boyd, Deputy cc: C. 9 To:Board of Supervisors From:Keith Freitas, Airports Director Date:February 10, 2015 Contra Costa County Subject:Approval of Consent to Assignment of Lease between C.C. County & Pacific Whole Foods Corp. & Excelsior JD Co for property at 2301 Meridian Park Blvd. BACKGROUND: (CONT'D) services at Buchanan Field Airport. The Board authorized a lease assignment from Caffino Express LLC to Rhone LLC on October 23, 2012. On June 24, 2014, the Board authorized the County’s consent to an assignment of the lease from Rhone LLC to Pacific Whole Foods Corporation, which was effected by the merger of Rhone LLC with Pacific Whole Foods Corporation. Pacific Whole Foods Corporation desires to assign all of its interest in the lease to Excelsior JD Co. An assignment of the lease requires the written consent of the County. This action authorizes consent to the assignment. This action does not amend or alter the terms of the existing lease. CONSEQUENCE OF NEGATIVE ACTION: The County will not consent to the assignment of the lease and Pacific Whole Foods Corporation will not be able to assign its interest in the lease. CHILDREN'S IMPACT STATEMENT: Not Applicable ATTACHMENTS Assignment Page 1 of 4 Consent to Assignment of Lease: Contra Costa County, Pacific Whole Foods Company and Excelsior JDCO, LLC CONSENT TO ASSIGNMENT OF LEASE This consent to assignment of lease (“Consent”) is dated _____________, 2015 and is between the COUNTY OF CONTRA COSTA, a political subdivision of the State of California (“County”), PACIFIC WHOLE FOODS CORPORATION, a California corporation (“Assignor”), and EXCELSIOR J D CO, a California limited liability company (“Assignee”). RECITALS A. The County owns and operates Buchanan Field, a public airport located at Concord, California (the “Airport”), as shown on the Airport Layout Plan, which plan is on file in the office of the County Director of Airports (the “Director of Airports”). B. The County leased that portion of the Airport commonly known as 2301 Meridian Park Boulevard (the “Premises”) to Caffino Express LLC (“Caffino”) pursuant to a lease dated October 1, 2010 (the “Lease”). Caffino assigned its rights and obligations under the Lease (the “Leasehold Estate”) to Rhone, LLC on October 23, 2012, pursuant to an Asset Purchase Agreement between Caffino and Rhone, LLC. C. Rhone, LLC and Assignor were parties to a Merger Agreement dated March 4, 2014. As a result of the merger, the separate corporate existence of Rhone, LLC ceased and Assignor became the surviving business. As a result, Rhone, LLC assigned its rights and obligations under the Lease to Assignor on June 24, 2014. D. Assignor now desires to assign all of its right, title, interest, and obligations, in, to and under the Lease and the Leasehold Estate to Assignee (the “Assignment”). Assignee desires to accept the Assignment. E. In consideration of all of the terms and conditions contained herein, County agrees to consent to the Assignment. County, Assignor, and Assignee therefore agree as follows: Agreement Page 2 of 4 Consent to Assignment of Lease: Contra Costa County, Pacific Whole Foods Company and Excelsior JDCO, LLC 1. Definitions. Defined terms used but not defined in this Consent have the meaning ascribed to them in the Lease. 2. Security Deposit. The County will continue to hold the security deposit previously paid to the County under the Lease in accordance with the terms of the Lease. 3. Representations and Warranties of Assignor and Assignee. Each of Assignor and Assignee hereby represents and warrants that: a. Assignee’s intended use of the Premises is consistent with Assignor’s use of the Premises and is not inconsistent with the use permitted under the Lease and will not require alteration of the Premises. b. Assignee is a California corporation in good standing. c. Assignee has a good reputation in the business community in which it conducts its businesses and has a business reputation and business credit history that is consistent with other business conducted on the Premises. d. Assignee is capable of operating a gourmet coffee/espresso business on the Premises as contemplated by the terms of the Lease and has business experience and management ability that is equal to or greater than that of Assignor. e. Assignee’s intended use of the Premises will not increase the use or storage of hazardous substances on the Premises (as compared with such use or storage by Assignor) and will not otherwise adversely affect the County’s interest in the Premises. f. Assignee’s financial condition is sufficient to support the obligations of Tenant under the Lease. g. The Assignment will not result in a reduction in the Rent paid under the Lease. h. Assignor and Assignee have the legal right and authority to enter into this Agreement and each has received all necessary approvals to do so. 4. Assignment and Assumption Agreement. Assignor and Assignee are entering into an Asset Purchase Agreement under which the Assignment will be effected. 5. Conditions Precedent to Execution of Consent. County’s consent to the Assignment is subject to the satisfaction of the following conditions: Page 3 of 4 Consent to Assignment of Lease: Contra Costa County, Pacific Whole Foods Company and Excelsior JDCO, LLC a. The Director of Airports must review and approve the form of the Asset Purchase Agreement. b. The Director of Airports must receive an executed copy of the Asset Purchase Agreement. c. The Director of Airports must receive (i) a copy of the Notice of Bulk Sale that relates to the sale of the business located at the Premises by Assignor to Assignee, and (ii) a copy of any notices pursuant to Section 6106.4 of the Uniform Commercial Code. d. On or prior to the effective date of the Assignment, the Assignor shall pay all outstanding rent and fees that have become due under the Lease, including late fees and interest, and shall cure any existing default. As of January 29, 2015, the amount of outstanding rent and fees is $0. Payment of all outstanding rent and fees is a condition precedent to the effectiveness of this Consent. At County’s discretion, payment of any portion of such amounts may be deemed to have been made through the application of the Security Deposit in accordance with the terms of the Lease. e. On or prior to the effective date of the Assignment, Assignor or Assignee shall pay County a Transaction Fee of $2,500.00; the County acknowledges receipt of the $2,500.00 Transaction Fee. f. Unless a later date is agreed to by County, the Assignment must occur on or before March 4, 2015. 6. Consent of County. In reliance on the representations and warranties of Assignor and Assignee and upon satisfaction of the terms and conditions set forth herein, the County consents to the Assignment. 7. Consent to Assignment Only. This Consent does not amend the Lease. If there is any confusion or contradiction between any term of the Lease and this Consent, the terms of the Lease will prevail. 8. Governing Law. The laws of the State of California govern all matters arising out of this Consent, with venue in the Superior Court of the County of Contra Costa, California. 9. Survival. The provisions of this Consent shall survive both the execution and delivery of this Consent. 10. Recitals. The Recitals are true and correct and are incorporated herein by reference. Page 4 of 4 Consent to Assignment of Lease: Contra Costa County, Pacific Whole Foods Company and Excelsior JDCO, LLC 11. Notice. From and after the effective date of the Assignment, all notices given to Tenant under the Lease will be mailed to: Excelsior J D Co., LLC dba Java Detour Attn: Mark Naify 172 Golden Gate Avenue San Francisco, CA 84102 The parties are signing this Consent as of the date set forth in the introductory paragraph. COUNTY ASSIGNOR CONTRA COSTA COUNTY, a political Pacific Whole Foods Co. Subdivision of the State of California By______________________________ By____________________________ Keith Freitas Hector Escquivel Director of Airports President By____________________________ RECOMMENDED FOR APPROVAL: Name: Its: By______________________________ Karen Laws ASSIGNEE Principal Real Property Agent Excelsior J D Co., LLC By______________________________ By___________________________ Beth Lee Mark Naify Assistant Director of Airports President By___________________________ APPROVED AS TO FORM: Name: Title: By Sharon L. Anderson, County Counsel By______________________________ Kathleen M. Andrus, Deputy County Counsel