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HomeMy WebLinkAboutReso 1971-5998 " Form' No'. 342" . .'Rev." 11-69 , - Q RESOLPTION NO. 5998 -' , '-. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA, APl'ROVING AGREEMENT BETWEEN THE CITY OF CHULA VISTA AND DICK E. AGEE FOR LEASE AND OPERATION OF THE RESTAURANT AND BAR PREMISES AT THE CHULA VISTA MUNICIPAL GOLF COURSE, AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT The City Council of the City of Chula Vista does hereby resolve as follows: NOW, THEREFORE, BE IT RESOLVED that that certain agreemen t between THE CITY OF CHULA VISTA, a municipal corporation, and ' DICK E. AGEE, an individual, for the 'lease and operation of the restaurant and bar premises at the Chula Vista Municipal Golf Course dated the 9th day of March is attached hereto and incorporated herein, set forth herein be, and the same is hereby , 1971, a copy of which the same as though fully approved. BE IT FURTHER RESOLVED that the Mayor of the City of Chula Vista be, and he is hereby authorized and directed to execute said agreement for and on behalf of the City of Chula Vista. Presented by Approved ~. Thomson, City Manager George ADOPTED AND APPROVED VISTA, CALIFORNIA, this 16th following vote, to-wit: by the CITY COUNCIL of the CITY OF CHULA day of March , 19 B-, by the AYES: ABSTAIN: NAYES: Councilmen Councilman Councilmen Hyde, Egdahl, Habel, Hamilton s.cott None ABSENT: Councilmen None '-- j~9)~ (/, "--- Mayor of the City of Chu Vis ta ATTEST~;u ~\.U-d41J ~ ity Clerk STATE OF CALIFORNIA ) COUNTY UF SAN DIEGO) ss. CITY OF CHULA VISTA ) I, Vista, California, DO HEREBY CERTIFY correct copy of Resolution No. amended or repealed. DATED , City Clerk of the City of Chula that the above is a full, true and , and that the same has not been City Clerk LEASE AGREEMENT FOR THE OPERATION OF THE RESTAURANT AND BAR PREMISES AT THE CHULA VISTA MUNICIPAL GOLF COURSE THIS LEASE AGREEMENT, made and entered into this 9th day of March , 1971, by and between THE CITY OF CHULA VISTA, a municipal corporation, hereinafter called~ "Lessor", and DICK E. AGEE, an individual, hereinafter called "Lessee"; WIT N E SSE T H . 1. LEASE PREMISES. For and in consideration of the rent hereinafter specified and the covenants and agreements hereinafter set forth, Lessor agrees to lease to Lessee those certain premises with the appurtenances set forth herein, to be used exclusively for the operation and maintenance of a bar and restaurant, including a coffee shop and banquet facilities, and such activities as are commonly or usually conducted in said premises and for the preparation and sale of food, refreshments and all lawful beverages as approved by the City Manager of the City of Chula Vista. Said premises shall include all of the clubhouse located at the Chula Vista Municipal Golf Course mutually agreeable to Lessee, except for that portion of the premises presently used for the operation of a pro shop and electric golf cart storage room, and the property immediately adjacent to said existing premises, as approved by Lessor, for the construction of additional buildings and for the expansion of the existing facilities. Said premises are more particularly described as follows: A portion of the Chula Vista Municipal Golf Course club- house in the Sweetwater Valley consisting of approximately 5,882 square feet of space as is now designated and used as a restaurant and bar facility, together with any additional portions of said premises within said Chula Vista Municipal Golf Course as designated by the City Manager and mutually agreeable to Lessee. 2. ADDITIONAL PRIVILEGES. In addition to the use of said premises, Lessee may be permitted to establish concessions on said golf course for the purpose of the sale of refreshments and beverages at such places and times as are approved and designated by the City Manager. 3. MANAGEMENT COMMITMENT. Lessee agrees to use the premises for the purposes for which they are demised and to diligently conduct the business so as to produce a reasonable and substantial gross income, and failure to so conduct said business shall be grounds for termina- tion of this lease. 4. USE AND HOURS. Lessee agrees to use said premises, and agrees to keep open said restaurant and bar in accordance with the hours of operation permitted under the State law, or as mutually agreed to by the parties hereto. 5. PRICES. All prices charged on sales by Lessee shall be reasonable and consistent with current prices in the community. 6. IMPROVEMENTS TO BE MADE BY LESSEE. Lessee agrees to accept the premises in their existing condition, including those fur- nishings listed herein. Lessee further agrees to construct improvements and additions to the existing facilities at a cost of not less than ONE HUNDRED THOUSAND DOLLARS ($100,000.00), but not to exceed the sum of TWO HUNDRED THOUSAND DOLLARS ($200,000.00) without the approval of the City Manager. It is understood and agreed that said 'improvements are intended to provide for expanded services and allow for the opera- tion of a coffee shop, Class "A" restaurant and bar, and banquet facil- ities. The estimated size of the completed building following improve- ments and additions noted herein is approximately fourteen thousand (14,000) square feet, and would include the addition of a front bar, additions to the presently existing main dining room, a new kitchen, new banquet rooms, and a substantial remodeling of the existing facilities. Lessee further agrees that the construction of said ~~S9'l:l -1- additions and improvements as sqon as it is reasonably possible to do so after possession of the premises is transferred to Lessee as provided herein. Lessee agrees to complete all of said additions and improvements as contemplated pursuant to the terms and conditions of this lease within twelve (12) months of date of possession of the premises, provided, however, that if because of an Act of God, strikes or inability to obtain required materials by virtue of acts beyond the control of Lessee, said period shall be extended for a reasonable period of time to allow for said completion. It is understood and agreed that said additions and improvements shall first be approved by City and the total cost of said improvements, based upon actual construction costs, shall be submitted to City with an audited state- ment. 7. AMORTIZATION OF IMPROVEMENTS. All of said improvements to the premises as provided in Section 6 of this agreement shall be- come fixtures and a part of the realty. Lessee agrees that the cost of said improvements shall be amortized over a period of not less than fifteen (15) nor more than twenty (20) years at the option of Lessee, commencing at such time as portions of the capital improve- ments are completed and accepted by Lessor and have become thereby affixed to the realty, using a straight-line depreciation method for purposes of fixing the City's obligation under the terms of this lease. 8. TERM OF LEASE. The term of this lease shall be twenty- one (21) years, commencing on April 10, 1971, provided, further, that Lessee may take possession of said premises on April 10, 1971. This lease may be terminated at any time by either party upon one hundred and eighty (180) days written notice, provided that termination by Lessor shall be based upon a failure to substantially perform in accordance with the terms and. conditions of this lease. Lessor shall give Lessee written notice of said non-performance, directing the Lessee to perform in accordance with the terms and conditions of this lease within ninety (90) days. Should Lessee fail to so sub- stantially perform within said ninety (90) day period, City may terminate said lease ninety (90) days thereafter. Termination by Lessee as provided herein must be by written notice given to the City. Lessor shall also tender to L~ssee the proportional part of any rent paid in advance by Lessee. 9. RENT. The rent is payable monthly in arrears at the Finance Office of the City of Chula Vista. Said rent shall be the sum of FIVE HUNDRED DOLLARS ($500.00) per month, or a sum equal to five percent (5%) of the gross proceeds of all sales made on or from the leased premises during such month, whichever amount is greater; provided, however, that for the period from April 10, 1971 to April 10, 1972, the rent shall be the sum of TWO HUNDRED AND FIFTY DOLLARS ($250.00) per month or a sum equal to five percent of the gross proceeds of all sales made on or from the leased premises during such month, and provided that the rental for the balance of the month of April 1971 shall be pro-rated. It is further understood and agreed that any portion of the five percent (5%) of gross in excess of the base rental fee of FIVE HUNDRED DOLLARS ($500.00) commencing on April 10, 1972, payable monthly, shall be credited to Lessee to offset the amortization of improvements and additions, in an amount to be determined by mutual agreement based upon the audited statement of the total cost of said improvements and addi- tions, and shall be adjusted annually on or before January 31 of each calendar year for the term of the lease, commencing on January 31, 1973. No portion of the base rent of FIVE HUNDRED DOLLARS ($500.00) per month shall be included in this amount for the purpose of credit to the amount of amortization. Lessee further agrees to pay an additional five percent (5%) of the rental fee for each fifteen (15) days in which the rent due remains delinquent. Gross proceeds, as used in this lease, shall include all income resulting from the occupancy of the premises from whatever source derived, including manufacturer's or importer's excise tax, but shall not include federal, state or municipal taxes collected from the consumer and paid over periodically by Lessee to a govern- mental agency. Gross proceeds, as used in this lease, shall exclude -2- the cost of employees' meals and tips as a portion of the income derived from the operation of the business. Lessee shall submit a monthly statement, together with the monthly rental payment. Lessor shall have the right to audit Lessee's records at any time. When- ever the rent hereunder is dependent on percentage calculations of gross income accruing to Lessee or materials of any kind removed from the leased premises during all of the interval concerned, Lessee shall keep, or cause to be kept, true, accurate and complete records and double entry books from which the City can at all times determine the nature and amounts of income subject to rental per- centage from the operation of the leased premises. Such records shall show all transactions relative to the conduct of the operation, and such transactions shall be supported by documents of original entry such as sales slips, cash register tapes, purchase invoices and tickets issued. 10. CITY OWNERSHIP OF IMPROVEMENTS. At the conclusion of the twenty (20) year amortization period, all improvements and additions to the premises installed by Lessee, which have become fixtures and a part of the realty, shall become the property of the City of Chula Vista. In the event that either party shall exercise the right of termination of this lease or if, by operation of law, said lease- hold shall be terminated, City shall either: (a) purchase the improvements or additions from Lessee in an amount not to exceed eighty percent (80%) of the then unamortized value of the original capital investment of Lessee. Should said lease be so terminated during a calendar year, the unamortized value shall be pro-rated for said year; or (b) City may enter into a new lease for said premises which lease shall provide that the new Lessee will assume the obligation of the unamortized portion of the capital investment in the amount set forth above; or (c) City may arrange a method of financing, whether through bonding or lease-purchase or some other method approved by the City, to refinance the unamortized balance of the original capital investment. It is understood and agreed that said options in no way obligate future revenues of the City of Chula Vista. 11. NATURE OF IMPROVEMENTS. The improvements and additions as contemplated hereinabove shall include air-conditioning of the premises as determined by Lessee, and shall be included in the amor- tization schedule. 12. CONSTRUCTION OF PARKING FACILITIES. City and Lessee shall share equally in the cost of construction of any additional parking facilities, which facilities shall be constructed in locations as approved by City and in accordance with plans and specifications approved by the City, and developed pursuant to standards and speci- fications as presently adopted as policy by the City of Chula Vista; provided, however, that Lessee's obligation to participate in the construction of additional parking facilities as set forth herein shall not exceed a total of one hundred (100) additional spaces. City shall be responsible for the maintenance of all parking areas, provided that the cost of said maintenance shall be equally shared by City and Lessee. 13. MAINTENANCE OF PREMISES. Lessee shall care for and maintain the interior of the leased premises and shall provide for the ordinary and routine cleaning an~maintenance of the exterior of the premises except for any major repairs which shall be undertaken by City. City shall provide for and maintain landscaping in the area immediately surrounding the clubhouse premises in accordance with plans approved by the Landscape Architect of the City. Lessee agrees to transfer said lease premises in good repair, and shall be fully responsible for said interior maintenance so as to maintain them in the same order and condition in which received, except for any struc- tural portions thereof, any ordinary wear and tear, and any act, occur- rence or happening including those within and insured against by the extended coverage fire insurance policy which shall be procured and maintained by Lessee in accordance with the provisions of this lease. -3- ~ SfYf I Lessee shall, at all times, keep the premises in a clean, sanitary and orderly condition, and all personnel employed in the service to the public shall be clean and properly dressed in clean clothing suitable for such purposes. It is understood and agreed, with reference to maintenance as well as overall management of the operation, Lessee shall have full and complete control and shall at no time request the assistance of City in fulfilling any of these obligations. 14. FURNITURE. Lessee shall acknowledge receipt of and responsibility for all furniture located in the lounge and dining area. Lessee shall remove all of said furniture from the premises to a safe and reasonable storage location within thirty (30) days after Lessee assumes possession. All storage and moving costs shall be paid by Lessee. Any furniture or equipment furnished by Lessee may be re- moved at the termination of this lease, provided that Lessee repairs any damage resulting from the removal of such equipment. 15. ALTERATIONS OR MODIFICATIONS SUBSEQUENT TO ORIGINAL CAPITAL INVESTMENT. In the event that any alterations or modifications of the premises are undertaken by the Lessee, including major repairs or remodeling, said alterations, modifications or repairs must be first approved by the City and shall be undertaken at the sole cost of Lessee, provided, however, that City and Lessee may mutually agree to share in some manner the cost of major remodeling undertaken subsquent to the original capital investment for improvements. . 16. SIGNS. Lessee shall have the right to select the name for the business operation and any change thereof which may be desirable during the course of this lease. Lessee shall be authorized to place appropriate signs upon the exterior of the clubhouse and in other locations as may be desired; provided, however, that any such signs must first be approved by the Director of Planning of the City of Chula Vista. 17. UTILITIES. as Lessor herein expressly and pay for all utilities, connection therewith. Except for such installations and utilities agrees to pay, Lessee shall order, obtain and the service and installation charges in 18. HOLD HARMLESS. Lessee shall, during the term of this lease or any extension thereof, hold harmless and indemnify the City, its officers and employees from and against all claims, demands, loss damage and liability arising out of or connected with the use of the leased premises by Lessee. 19. LIABILITY INSURANCE. During the term of this lease or any extension thereof, Lessee shall obtain an insurance policy from a responsible and solvent corporation authorized to issue such policy under the laws of the State of California, which policy shall insure the parties to this lease against loss or liability imposed by law for injury to or death of any person or damage to property arising from or growing out of the use of the leased premises pursuant to this lease, to the minimum amount as follows: FIFTY THOUSAND DOLLARS ($50,000.00) property damage; TWO HUNDRED AND FIFTY THOUSAND DOLLARS ($250,000.00) for death or injury to anyone person in anyone accident; FIVE HUNDRED THOUSAND DOLLARS ($500,000.00) for death or injury to two or more persons in anyone accident. Such policy shall include "products" liability coverage. -4- ~sr17'1 20. FIRE INSURANCE. City shall maintain fire insurance sufficient to cover the cost of replacement of the original structure as transferred to Lessee, and Lessee agrees to provide fire insurance sufficient to cover the cost of the replacement of the improvements and additions constructed as a part of the original capital investment for improvements or such improvements as may thereafter be constructed in accordance with the provisions of this lease. In the event of the destruction by fire or the elements or other cause, Lessee agrees to proceed with the reconstruction of the premises within one hundred and eighty (180) days; provided, however, that if it is mutually agreed by City and Lessee that the premises should not be reconstructed, this lease shall terminate. If said premises cannot be repaired or recon- structed within one hundred and eighty (180) days with reasonable dili- gence as provided in Section 24 herein, this lease shall also terminate. In the event that this lease is terminated pursuant to the provisions of this section of Section 24 hereof, Lessee shall be fully responsible for the payment of any unamortized balance of his original capital investment. 21. WORKMEN'S COMPENSATION. of Workmen's Compensation Insurance to shall provide Social Security coverage Lessee shall maintain a policy cover Lessee's employees and for such employees. 22. INSURANCE CERTIFICATES FILED WITH FINANCE OFFICER. Lessee shall file the above named policies or certificates thereof with the Finance Officer of the City of Chula vista. The Finance Officer may, at any time, require Lessee to replace any such policy or certificate with another policy or certificate. 3. ASSIGNMENT. Lessee shall not assign or transfer this lease or any part thereof without the written consent of the City first had and obtained; provided, however that subject to the approval of City, the rights set forth in Paragraph 10 of this agreement may be assigned to a lender. 24. TERMINATION BY DAMAGE OR DESTRUCTION. If, during the term of the lease hereby granted, the leased premises shall be destroyed by fire or the elements or any other cause, and if same shall be so damaged that they cannot be repaired with reasonable diligence within one hundred and eighty (180) days, then said lease shall terminate at the option of either party and become' null and void from the date of such damage or destruction, and in the event of the exercise of such option by either party, Lessee shall immediately surrender the premises to City and this lease agreement shall thereupon terminate. 25. INVOLUNTARY ASSIGNMENT. This. lease cannot be assigned involuntarily or by any process of law, and in case Lessee is adjudged to be bankrupt or insolvent or Lessee makes a general assignment for the benefit of creditors or fails to release any levy or attachment or execu- tion upon Lessee's property within ten (10) days after such levy is made, then it shall be optional with the Lessor to consider any of the same a breach of this lease and to cancel and terminate this lease, but nothing herein contained shall be construed to compel Lessor to do so. 26. MECHANIC'S LIEN BOND. Lessee will save the City free and harmless, indemnify it against all claims for labor and materials in connection with improvements, repair or alterations to leased premises, and the cost of defending against such claims, including reasonable attorney's fees. In the event that improvements, repairs or alterations are constructed on the leased premises by other than the City, the Lessee shall file with the City a bond, conditioned for the payment in full of all claims of all persons performing labor upon or furnishing materials to be used, in the amount of the estimated cost of the improvement, alteration or repair as determined by the City Manager of the City of Chula Vista. The bond shall be acknowledged by the Lessee as principal and by a corporation licensed by the Insurance Commissioner of the State - 5 - i24vSf9~ of California to transact the business of a fidelity and surety in- surance company as surety. In the event that a lien is recorded under Chapter II of Title 4 of Part 3 of the California Code of Civil Pro- cedures against the leased premises and the lien-holder attempts to perfect such lien by a lawsuit and the Lessee has failed to comply with the requirements of this paragraph, this lease shall automatically terminate five (5) days after the service of summons in such lawsuit upon the City; provided, however, that the City Manager shall have the right to continue this lease in full force and effect by notify- ing the Lessee in writing of his election to do so. IN WITNESS WHEREOF, the parties hereto have caused this agreement to be executed the day and year first hereinabove set forth. individual M yor of the Ci of Chula V sta ATTi)1'~;' '?;; Jf~ . Cl ty Clerk ,;,;:;:ved "' Z y~ ~ ./'V~p ~~ George/D. Lindberg, City At ey Approved as to form by ~ /g~-- William J.~auer, Attorney for Lessee - 6 - !P--6iJ 59 7'rr . . NOTICE OF TERMINATION OF TENANCY '. TO: CITY OF CHULA VISTA, A MUNICIPAL CORPORATION RE: A portion of Chtila Vista Municipal Golf Course Clubhouse consisting of the space designated for use as a restau- rant and cocktail lounge held by Lease dated January 18, 1966. NOTICE IS HEREBY GIVEN that the holdover.tenancy by which I have possession of the' above designated premises is termi- nated 30. days 'after service on you of this notice and I intend to quit and deliver. up the premises to you. This is intended as 30 days notice to quit for purpose of termination of said tenancy. DATED: March.8,..197L . . j;:~-LCVZ::: . ~~ </ . . . . '. p::i~Ck Tho~as,. . Lessee EOR oo.u~m.EORMATlON ONLy'" ,.if' .;>'., :