Loading...
HomeMy WebLinkAboutReso 1985-12007 RESOLUTION NO. 12007 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING LEASE AGREEMENT WITH AMERICAN GOLF, INC. FOR THE INTERIM MAINTENANCE AND OPERATION OF THE RESTAURANT AND BAR PREMISES AT THE CHULA VISTA MUNICIPAL GOLF COURSE PRESENTLY KNOWN AS JIMMY'S ON THE GREEN The City Council of the City of Chula Vista does hereby resolve as follows: WHEREAS, a copy of the agreement has been forwarded to American Golf, Inc. for signature and will be returned to the City as soon as signed. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chula Vista does hereby approve that certain Lease Agreement with American Golf, Inc., dated the 27th day of April, 1985, for the interim maintenance and operation of the restaurant and bar premises at the Chula Vista Municipal Golf Course presently known as Jimmy's on the Green, a copy of which is attached hereto and incorporated herein by reference as if set forth in full. 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 upon its receipt from American Golf, Inc. for and on behalf of the City of Chula Vista. Presented and Approved as to form by ~Fhomas J./~r~6n, City Attorney 0347a i~/ ADOPTED AND APPROVED BY THE CITY COUNCIL OF THE CITY OF CHULA VISTA, CALIFORNIA, this 27th day of, April 19 85 , by the following vote, to--wit: AYES: Counci]members Cox, McCandliss, Scott, Moore NAYES: Councilmembers None ABSTAIN: Counci lmembers None ABSENT: Counci 1 members Malcolm Moyor{~f ~/e City of Chula Vista ~ - City' Clerk STATE OF CALIFORNIA ) COUNTY OF SAN DIEGO ) ss. CITY OF CHULA VISTA ) I, JENNIE M. FULASZ, CMC, CITY CLERK of the City of Chulo Vista, California, DO HEREBY CERTIFY that the above and foregoing is o full, true and correct copy of RESOLUTION NO. ].2007 ,and that the some has not been omendedor repealed. DATED (seal) City Clerk CC-660 ~_ 4/26/85 LEASE AGREEMENT WITH AMERICAN GOLF, ~., A CALIFORNIA CORPORATION, AND THE CITY OF CHULA VISTA FOR THE INTERIM MAINTENANCE AND OPERATION OF THE RESTAURANT AND BAR PREMISES AT THE CHULA VISTA MUNICIPAL GOLF COURSE PRESENTLY KNOWN AS JIMMY'S ON THE GREEN THIS AGREEMENT, made and entered into this 27th day of April , 1985, by and between THE CITY OF CHULA VISTA, a municipal corporation, hereinafter called 'Lessor', and AMERICAN GOLF, ~. a California corporation, hereinafter called '--- W I T N E S S E T H : WHEREAS, City the of Chula Vista entered .into a lease agreement with Jimmy's Family of Fine Restaurants, Inc. for the expansion, improvement, operation and maintenance of Jimmy's on the Green on December 27, 1981, and WHEREAS, Jimmy's Family of Fine Restaurants, Inc. was unable to comply with the terms of the lease, and WHEREAS, the City desires to maintain the operation of the restaurant and bar for the benefit of the golfers and residents of the City of Chula Vista, and WHEREAS, the City seeks to mitigate the damages associated with the voluntary termination of the lease between the City and Jimmy's Family of Fine Restaurants, Inc., and WHEREAS, American Golf, Inc. desires to operate the restaurant for the benefit of the Municipal Golf Course and residents of the City, and WHEREAS, both parties desire an agreement which will ensure the interim operation of the facility until such time that a permanent Lessee may be chosen through appropriate bid procedures. NOW, THEREFORE, IT IS MUTUALLY UNDERSTOOD AND AGREED by and between the parties hereto as follows: 1. LEASE PREMISES. For and in consideration of the rent hereinafter specified and all of the covenants, conditions and agreements hereinafter set forth, Lessor agrees to lease to Lessee (hereinafter the premises described below and as set forth on Exhibit 'A' attached hereto, including any appurtenances thereto, shall be referred to as the 'Leased Premises'): A. Those certain premises currently known as 'Jimmy's on the Green" which include a restaurant, bar, coffee shop, banquet facilities and parking lot. B. Said premises shall include all of the clubh~use located at the Chula Vista Municipal Course except for that portion of the premises which is presently used for the operation of the golf course pro shop/offices and the electric golf cart storage area located below the clubhouse. C. In addition, said lease premises shall include the grounds immediately adjacent to the existing building and all furniture, fixtures, equipment, smallware and paperware. 2. ADDITIONAL PRIVILEGES. Nothing in this lease shall prevent or interfere with individual golfers and golf associations from bringing food or beverages upon the Municipal Golf Course or arranging for any activities thereon as approved by the City Manager, except that portion of the golf course specifically leased and demised to Lessee as set forth in Section 3. USE AND HOURS. Lessee agrees to conduct the business on such premises 'and to keep said restaurant and bar open during the customary hours of similar operations but not in excess of those permitted under State law. 4. FIXTURES. The demised premises includes the fixtures which' are the property of the Lessor and shall remain the property of the Lessor upon termination of this lease and any extensions. The fixtures may not be used as security or collateral for any debt or prospective debt of the Lessee. 5. TERM OF LEASE The terms of this lease shall be for 1985 subject to a period of ninety (90) days commencing May 1, actual vacation of the premises by the present Lessees. Upon expiration of said 90 days, the term shall be a month to month tenancy which may be terminated by either party with thirty (30) days written notification. 6. FAILURE TO PAY RENT AND LATE PAYMENTS. It is understood and agreed that failure of Lessee to pay rent as required herein shall be grounds for termination and should City exercise its right of termination upon such grounds, a subsequent to pay the rent shall be of no effect and offering by Lessee termination shall be final at the option of the City subject to section 1161 of the code of Civil Procedure. 7. RENTAL PAYMENTS. Lessee agreeS to pay to Lessor as rental for the Leased Premises without setoff an amount equal to seven percent (7%) of all gross sales as herein defined for the initial term of this lease and any extension thereof pursuant to the options granted to Lessee. All sums due shall be delinquent on the fifteenth day of each month and subject thereafter to a penalty of ten percent (10%) per month, if unpaid. A. "Gross Sales Defined". The term "gross sales" as used in this lease shall include the entire gross sales of every kind and nature from sales and services made in the Leased Premises whether for credit or cash, in every department operating in the Leased Premises, whether by Lessee or by others, including all sales from vending devices and payments from pay telephone. "Gross sales" shall not include any rebates or refunds to customers or sales taxes accounted for and paid to a governmental agency. B. Statement of Gross Sales. Within fifteen (15) days after the end of each calendar month of the term hereof, commencing with the fifteenth day of the month following the commencement of this lease agreement as hereinafter provided, and ending with the fifteenth day of the month next succeeding in the last month of the term of this lease agreement, Lessee shall furnish to City a statement in writing, certified by Lessee to be correct, showing the total gross sales made in the Leased Premises during the preceding calendar month. Lessee shall keep (a) full and accurate books of account and records in accordance with Generally Accepted Accounting Principals consistently applied, including, without limitation, a sales journal, general ledger, and all bank account statements showing deposits of gross sales revenue (b) all cash register receipts with regard to the gross sales, credits, refunds and other pertinent transactions made from or upon the Leased Premises and (c) detailed original records of any exclusions or deductions from gross sales. Such books, receipts and records shall be kept for a period of two (2) years after the close of each calendar year and shall be available for inspection and audit by City and its representatives at the Leased Premises at all times during regular business hours. In addition, upon request of City, Lessee agrees to furnish to City a copy of Lessee's state and local sales and use tax returns. The receipt by City of any statement or any payment of rental under this Lease, for any period, shall not bind it as to the correctness of this statement or the payment. The City shall, within two (2) years after the receipt of any such statements, be entitled to an audit of such gross sales. Such audit shall be conducted by City or by certified public accountant to be designated by City during normal business hours at the principal place of business of Lessee. If it shall be determined as a result of such audit that there has been a deficiency in the payment of any such rental, then such deficiency shall become immediately due and payable with interest at the maximum lawful rate from the date when said payment should have been made. In addition, if any of Lessee's statements shall be found to have understated gross sales by more than two percent (2%) and if City is entitled to any additional rental as a result of any said understatement, or if such audit -3- shows that Lessee has failed to maintain the books of account and records required by this section so that City is unable to verify the accuracy of Lessee's statement, then Lessee shall pay to City all reasonable costs and expenses (including reasonable auditor and attorney fees) which may be incurred by City in conducting such audit and collecting such underpayment, if any. If any of Lessee's statement shall be found to have understated gross sales by more than six percent (6%), then, in addition to City's aforesaid rights, City may terminate this Lease. 8. TAXES. During the term of this lease agreement, Lessee shall pay, prior to delinquency, all taxes assessed against all personal property of Lessee contained within the Leased Premises. Lessee shall be solely responsible for all real property taxes and general and special assessments levied against the Leased Premises. Lessee agrees to pay all taxes not later than ten (10) days before the taxing authority delinquency date. 9. PARKING AND COMMON FACILITIES. Lessee agrees to furnish and maintain adequate parking facilities for the needs of the patrons of Lessee arising out of the operation of the Leased Premises during the full term of this lease agreement or any extension thereof. Lessee shall also be responsible for the repair and maintenance of all lighting and lighting standards in said parking lot and adjacent entryway and shall assume the full cost for said lighting. Lessee agrees to maintain adequate security on the Leased Premises and City has no responsibility with respect to the safety and security of users of the Leased Premises and that Lessee specifically indemnifies, holds harmless and will defend Lessors against any claims relating to the security issue. 10. ALTERATIONS. Lessee shall not make, or suffer to be made, any alterations to the Leased Premises that affect the exterior or interior of the Leased Premises of any structural, mechanical or electrical component of the facility and appurtenances without the prior written consent of City which shall not be unreasonably withheld. 11. LESSEE'S RESPONSIBILITY TO PROTECT LESSOR FROM MECHANIC'S LIENS. Lessee agrees: (1) to pay for all labor a~d services performed for, and for all materials used by and furnished to, Lessee or any contractor employed by Lessee with respect to the premises, whether or not such labor, service, or materials were related to trade fixtures or other works of improvement; (2) to indemnify and hold Lessor and the premises harmless and free from liabilities, liens, claims, encumbrances, and judgments created or suffered by reason thereof. In the event that any claim of lien be filed against the premises, or any action affecting the title to such property be commenced, Lessee shall forthwith give the Lessor written notice thereof. Nothing herein shall prevent Lessee from contesting in good faith the validity of any lien, claim, encumbrance, or judgment, provided; in the case of mechanics' or material men's liens, Lessee obtains and records appropriate bonds as provided by law to remove the recorded liens created thereby. Lessee's failure to comply with the provisions of this section shall constitute an event of default justifying City's termination of the lease. 12. MAINTENANCE OF PREMISES. Lessee agrees to assume full and complete responsibility for the Leased Premises. Lessee agrees to assume full maintenance of all air conditioning units, including the necessary replacement thereof. Lessee agrees to maintain all drainage, waste and vent pipes inside of the building. Lessee shall, at all times during the term of this agreement and at Lessee's sole cost and expense, repair the exterior walls, roof and all roof-mounted equipment of the Leased Premises and keep same in good order and sanitary condition. 13. INSURANCE. During the term of this lease or any extension thereof, Lessee shall obtain liability, fire and worker'S compensation insurance coverages from responsible and such policies. solvent corporations authorized to issue A. Liability Coverage. Liability coverage shall be provided that protects the parties to this lease against loss or liability by law for injury to or death of any person or damage to property arising from the use of the demised premises in the following amounts: At least TWO HUNDRED FIFTY THOUSAND DOLLARS ($250,000) property damage; SEVEN HUNDRED FIFTY THOUSAND DOLLARS ($750,000) for injury or death to any one person in any one accident; or a single limit liability policy of TWO MILLION DOLLARS ($2,000,000). such policy shall include "products" liability coverage and minimum liquor liability of FIVE HUNDRED THOUSAND DOLLARS ($500,000) per occurrence. B. Fire Insurance. Lessee shall maintain fire insurance sufficient to cover the cost of replacement of the structure and all fixtures and personal property included in the lease as transferred to Lessee. Lessor shall be named as an additional insured on the insurance policy. C. Worker's Compensation. Lessee shall maintain a policy of Worker's Compensation insurance to cover Lessee's employees and shall provide Social Security coverage for such employees. D. Insurance Certificates Filed with Cit~ Clerk. Lessee shall file the above named policies or certificates thereof with the City Clerk of the City of Chula Vista. The Risk Manager may, at any time, require Lessee to replace any such policy or certificate with another policy or certificate. All policies shall list the City of Chula Vista as an additional insured and all policies shall provide for twenty (20) days notice in writing to the City in advance of cancellation, lapse or reduction in coverage. E. Hold Harmless. Lessee shall hold the City harmless from all damages arising out of any damage or liability of any kind for any injury to or death of persons, or for any damage to property occurring in, on or about the Leased Premises and the Chula Vista Municipal Golf Course except that Lessee shall not be liable for any damage, liability, injury or death occasioned by the active negligence or wilful act of City or its designated agents, servants, or employees, unless covered by insurance Lessee is required to provide. Lessee's obligations under this section to indemnify and hold City harmless shall be limited to the sum that exceeds the amount of insurance proceeds, if any, received by City. F. Mutual Waiver of Subrogation Rights. City and Lessee hereby waive any rights each may have against the other on account of any loss or damage occasioned to City or Lessee, as the case may be, to their respective property, the Leased Premises, its contents or to other portions of the Chula Vista Municipal Golf Course, arising from or connected to any risk insured against under any insurance policies carried by the parties and in force at the time of any such loss or damage; and the parties each, on behalf of their respective insurance companies insuring the property of either City or Lessee against any such loss, waive any right of subrogation that either may have against the other, as the case may be. 14. UTILITIES. Lessee shall pay before delinquency all charges for water, gas, heat, electricity, power, telephone service and all other services of utilities used in, or upon the Leased Premises by Lessee during the terms of this lease agreement. 15. ENTRY AND INSPECTION. Lessee shall permit the City, its agents and/or employees to enter into and upon the Leased Premises at all reasonable times. 16. ASSIGNMENT. Lessee shall not assign this lease agreement or any interest therein, or any right or privilege appurtenant thereto, without obtaining the written consent of the City. -6- 17. LIQUOR LICENSE AND INVENTORY. Lessee shall acquire as assignee, the liquor license held by Jimmy's Family of Fine Restaurants, Inc. In addition, Lessee may acquire any of the existing inventory it deems appropriate by purchasing same from Jimmy's Family of Fine Restaurants, Inc. 18. ATTORNEY FEES. If at any time after the commencement of this Lease, either City or Lessee institutes any action or proceeding against the other relating to the provisions of this Lease, or any default hereunder, the nonprevailing party in such action or proceeding shall reimburse the prevailing party for the reasonable expenses of attorney fees and all costs and disbursements incurred therein by the prevailing party including, without limitation, any such fees, costs or disbursements incurred on any appeal from such action or proceeding. Subject to the provisions of local law, the prevailing party shall recover all such fees, costs or disbursements as costs taxable by the court or arbiter in the action or proceeding itself without the necessity for a cross-section by the prevailing party. 19. SURRENDER OF PREMISES; HOLDING OVER. Upon the date of termination of the term of this Lease, Lessee shall surrender to City the Leased Premises and all of Lessee's improvements and in conditiOn (except for ordinary wear and tear alterations occurring after good the last necessary maintenance made by Lessee). If Lessee fails to surrender the Leased Premises to City on the termination date of this Lease, Lessee shall hold City harmless from all damages resulting from Lessee's failure to surrender the Leased Premises, including, without limitation, claims made by a succeeding tenant resulting from Lessee's failure to surrender the Leased Premises. IN WITNESS WHEREOF, the parties hereto have caused this agreement to be executed the day and year first hereinabove s t forth. LESSOR: THE CITY OF LESSEE: AMERICAN GOLF, CHULA VISTA Mayor ofU th~ ~ ~"~ Chula Vista AT,EST: ~ -- Cit~y Clerk -7- UNANIMOUS CONSENT FOPS4 IT IS HEREBY P~EQUESTED by the undersigned that the following item, with the unanimous consent of the City Council of the City of Chula Vista, be considered and acted upon by the Council pursuant to the provisions of Sec.2.04.095 of the Chula Vista City COde. Resolution - Approvin~ Lease Agreement with American Golf for the Interim Maintenance and Operation of the Restaurant and Bar Premises Presently Known as Jimmy's on the Green ~ / (S~gn~ure;/ Unanimous Consent of the City Council,'as indicated by the following signa~res: ~ ~ ~. ~ CA-301