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HomeMy WebLinkAboutReso 95-084 - Approve entering into a lease between COR & Redding Swim Team for use of concession stand facility at Redding Plunge in Claude H Caldwell Memorial Park during the 1995 Plunge Swimming Season RESOLUTION NO. 95- A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF REDDING APPROVING ENTERING INTO A LEASE BETWEEN THE CITY OF REDDING AND THE REDDING SWIM TEAM FOR ITS USE OF THE CONCESSION STAND FACILITY AT THE REDDING PLUNGE IN THE CLAUDE H. CALDWELL MEMORIAL PARR DURING THE 1995 PLUNGE SWIMMING SEASON. IT IS HEREBY RESOLVED that the City Council of the City of Redding hereby approves entering into the above-mentioned Lease between the City of Redding and the Redding Swim Team, a true copy of which is attached hereto and made a part hereof. BE IT FURTHER RESOLVED that the Mayor is hereby authorized to sign said Lease on behalf of the City; and the City Clerk is directed to attest the signature of the Mayor and to impress the official seal of the City of Redding thereto. I HEREBY CERTIFY that the foregoing Resolution was introduced, read, and adopted at a regular meeting of the City Council on the 21st day of March , 1995 , by the following vote: AYES: COUNCIL MEMBERS: P. Anderson, Kehoe, McGeorge, Murray and R. Anderson NOES: COUNCIL MEMBERS: None ABSENT: COUNCIL MEMBERS: None ABSTAIN: COUNCIL MEMBERS: None ROBERT C. ANDERSON, Mayor City of Redding ATTEST: FORM APPROVED: CONNIE -QTR HMAYER � W. LEONARD WINGATE City Clerk City Attorney REDD2 NG PLUNGE CONCES S 2 ON STAND LEASE THIS LEASE is made and entered into, effective June 5, 1995, by and between the City of Redding, a general law city, hereinafter referred to as the "CITY," and the Redding Swim Team, a non-profit corporation, hereinafter referred to as the "TEAM" : W I T N E S S E T H: WHEREAS, the CITY is the owner of a concession stand (hereafter called "Concession Stand" ) for the sale of food and beverages at the Redding Plunge in the Claude H. Caldwell Memorial Park; and WHEREAS, the TEAM has leased and operated the Concession Stand for many years as a refreshment concession; and WHEREAS, the TEAM has requested of the CITY, and the CITY considers it to be in the best interests of the CITY and its citizens to grant to the TEAM a lease of the Concession Stand during the Redding Plunge 1995 swimming season for the purpose of operating a refreshment concession, upon the terms and conditions hereinafter set forth; and WHEREAS, it has been determined that this matter is categori- cally exempt from the provisions of the California Environmental Quality Act; NOW, THEREFORE, IT IS MUTUALLY AGREED by and between the parties hereto as follows: 1. TERM. The CITY, for an in consideration of the covenants, conditions, and agreements herein set forth to be kept and performed by the TEAM, does hereby grant, demise, and lease unto the TEAM the Concession Stand at the Redding Plunge in the Claude H. Caldwell Memorial Park for the period June 5 through August 27 , 1995 . 2. USE OF THE CONCESSION STAND. The TEAM shall:. A. Use the Concession Stand as and for a refreshment concession only, and for no other purpose. B. Staff and operate the Concession Stand, and supervise and compensate its own employees, at no cost to the CITY. C. Furnish the necessary equipment to adequately operate the Concession Stand, and select and dispense only safe foods, containers, and services. No glass bottles or containers are to be used. The stock shall be selected by the TEAM, but must not include cigarettes, smoking materials, tobacco products, alcoholic beverages, or any other items banned by ordinance or other laws or regulations of any governing body having jurisdiction. D. Any alterations or improvements to the Concession Stand shall first require the written approval of the CITY, and shall be at the TEAM' s sole cost and expense. 3. CONDITION/MAIN'T'ENANCE. A. The TEAM accepts the Concession Stand as being in good and sanitary order, condition, and repair. B. The CITY shall perform ordinary exterior and interior maintenance when required. C. The TEAM shall, after each use, leave the Concession Stand in a clean and sanitary condition and repair, reasonable use and wear thereof or damage by fire, Act of God, or the elements excepted. D. The TEAM shall be responsible for the care and maintenance of its own equipment, and the CITY shall not be liable for any loss of or damage to any of the TEAM' s equipment. E. The TEAM is responsible for repairs to or replacement of the Concession Stand and equipment damaged by vandalism or misuse. 4. RENT. The consideration to be paid by the TEAM to the CITY under this lease shall be one and one-half percent ( 1. 5%) of the gross receipts of the refreshment concession operations during the term hereof, payable on or before October 1, 1995. The TEAM shall keep accurate records of its costs, expenses, income, and revenues, and shall file a financial statement with the CITY on or before October 1, 1995, along with its payment to the CITY of 1. 50 of the gross receipts. 5. EXPENDITURE OF NET REVENUES ACCRUING TO TEAM. It is specifically understood and agreed by the TEAM as a condition of this lease that the net revenues accruing to the TEAM from the operation of the Concession Stand shall be expended by the TEAM only in accordance with the provisions of paragraph 2(b) of Resolution No. 4148 adopted by the Redding City Council on November 18, 1968, which reads as follows: The proceeds must be designated for use for the general public betterment and not for the primary advancement or betterment of the applicant or its members and no part of the proceeds may be kept by any individual member or officer of a corporate or association type application. 6. UTILITIES. The TEAM shall pay all charges for utilities furnished to the Concession Stand. 7. TAXES. The TEAM shall pay any and all possessory interest taxes which may be levied by the Shasta County Assessor against the TEAM or the CITY arising out of the TEAM' s use of the Concession Stand. 8. COMPLIANCE WITH LAWS. The TEAM covenants and agrees to comply with all statutes, laws, ordinances, regulations, orders, judgments, decrees, directions, and requirements of the CITY, and of all federal, state, county, and city authorities now in force or which may hereafter be in force applicable to the Concession Stand. 9. WASTE; QUIET CONDUCT. The TEAM shall not commit nor suffer to be committed any waste upon the Concession Stand, nor any nuisance or other act or thing which may disturb the quiet enjoyment of any other occupant or use of the CITY' s adjoining premises. 10. HOLD HARMLESS. A. This lease is granted upon the express condition that the CITY, its officers, officials, employees, agents, and volunteers, shall be free from any and all liability and claims for damages for personal injury, death, or property damage in any way connected with the TEAM' s use of the Concession Stand, or any improvements connected with the use of the Concession Stand, including claims of the TEAM, its officers, agents, employees, members, invitees, and volunteers. B. The TEAM shall indemnify, defend, and hold the CITY, its officers, officials, employees, agents, and volunteers, harmless from any and all claims, expenses, demands, causes of action, liability, loss, injury, or death, regardless of the nature or character, in any manner whatsoever, on account of 3 or arising out of any such injury, death, or loss caused by the negligence or other legal fault of the TEAM or its officers, agents, employees, members, invitees, and volunteers. 11. INSURANCE. The TEAM shall procure and maintain for the duration of this lease insurance against claims for injuries to persons or damages to property which may arise from or in connection with the TEAM' s operations and use of the Concession Stand. The cost of such insurance shall be borne by the TEAM. Minimum Scope of Insurance Coverage shall be at least as broad as: A. Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001) . Claims-made form is also acceptable. B. Workers' Compensation insurance as required by the State of California and Employers' Liability Insurance. Minimum Limits of Insurance The TEAM shall maintain limits no less than: A. General Liability: $1,000,000 per occurrence for bodily injury, personal injury, and property damage. If Commercial General Liability Insurance or other form with a general aggregate limit is used, the general aggregate limit shall be twice the required occurrence limit. B. Employer' s Liability: $1,000,000 per accident for bodily injury or disease. Deductibles and Self-Insured Retentions Any deductibles or self-insured retentions must be declared to and approved by the CITY. At the option of the CITY, either the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the CITY, its officers, officials, employees, agents, and volunteers, OR the TEAM shall procure a bond guaranteeing payment of losses and related investigations, claims administration, and defense expenses. Other Insurance Provisions The general liability policy is to contain, or be endorsed to contain, the following provisions: 4 A. The CITY, its officers, officials, employees, agents, and volunteers, are to be covered as insureds as respects liability arising out of activities performed by or on behalf of the TEAM; products and completed operations of the TEAM; Premises owned, occupied or used by the TEAM. The coverage shall contain no special limitations of the scope of protection afforded to the CITY, its officers, officials, employees, agents, or volunteers. B. The TEAM' s insurance coverage shall be primary insurance as respects the CITY, its officers, officials, employees, agents, and volunteers. Any insurance or self-insurance maintained by the CITY, its officers, officials, employees, agents, or volunteers, shall be excess of the TEAM' s insurance and shall not contribute with it. C. Any failure to comply with reporting or other provisions of the policies, including breaches of warranties, shall not affect coverage provided to the CITY, its officers, officials, employees, agents, or volunteers. D. The TEAM' s insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer' s liability. E. Each insurance policy required by this lease shall be endorsed to state that coverage shall not be suspended, voided, cancelled by either party, or reduced in coverage or in limits except after 30 days' prior written notice has been given to the CITY. Acceptability of Insurers Insurance is to be placed with insurers with a current A.M. Best' s rating of no less than A:VII . Verification of Coverage The TEAM shall furnish the CITY with certificates of insurance and original endorsements effecting the coverages required by this lease. The endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf . All endorsements are to be received and approved by the CITY prior to June 5 , 1995 . 12. ASSIGNMENT OR SUBLETTING. The TEAM shall not assign this lease or any interest therein, nor sublet the Concession Stand or any part thereof, or any right or privilege pertinent thereto, nor suffer any other person (the officers, agents, employees, members, invitees, and volunteers of the TEAM excepted) to occupy or use said Concession Stand, or any portion thereof, without the prior written consent of the CITY. A consent by the CITY to one 5 assignment, subletting, occupancy, or use by another party shall not be deemed to be a consent to any subsequent assignment, subletting, occupancy, or use by the same or another party. Any such assignment, subletting, occupancy, or use without such consent shall be void and shall, at the option of the CITY, terminate this lease. 13. INSPECTION AND NOTICE. Insofar as the same may be necessary for the protection of the CITY' s rights, the CITY or its agents shall, at any and all times, have the right to go upon and inspect the Concession Stand; and also to serve or to post and to keep posted thereon, or on any part thereof, any notices provided in Section 3094 of the Civil Code of the State of California, or any other section of said Code, or any other notice or notices that may be at any time required or permitted by law. 14. BREACH. Upon written notice from the CITY to the TEAM that the TEAM is committing a material breach of any term, covenant, condition, or agreement of this lease, the TEAM shall forthwith cure such breach. In the event the TEAM has not cured such breach within 15 days following the mailing of such written notice to the TEAM by the CITY, the CITY shall have the right to enter and take over the Concession Stand and exclude the TEAM therefrom. This right shall be in addition to any and all other rights possessed by the CITY under the laws of the State of California relating to landlord and tenant. 15. CANCELLATION. This lease may be cancelled by either party at any time during the term of this lease upon 10 days' advance written notice to the other party of such cancellation. 16. SURRENDER. On the expiration of the term hereof , or earlier termination of this lease for cause, the Concession Stand, together with any improvements, equipment, and fixtures that may be therein, shall be turned over to the CITY broom-clean and in as good a condition as when the TEAM originally took possession, ordinary wear and tear excepted, failing which the CITY may restore the Concession Stand and such equipment and fixtures to such accepted condition and the TEAM shall pay the cost thereof to the CITY on demand. 17. ADMINISTRATION BY THE CITY. Whenever the TEAM is required to secure the approval or consent of the CITY under this 6 w • lease, "CITY" shall mean the Director of Recreation and Parks of the City of Redding. However, at the option of said Director, or the TEAM, any such questions may be referred to the City Council of the City of Redding, whose decision thereon shall be final. 18. ENTIRE AGREEMENT. This lease supersedes all previous agreements, and constitutes the entire understanding of the parties hereto. The TEAM shall be entitled to no other benefits other than those specified herein. No changes, amendments, or alterations shall be effective unless in writing and signed by both parties. Amendments which provide no substantial or functional change to the original intent of this lease may be agreed to in writing between the TEAM and the Director of Recreation and Parks of CITY. 19. INVALID PROVISIONS. In the event any covenant, condition, or provision herein contained is held invalid by any Court of competent jurisdiction, the invalidity of the same shall in no way affect any other covenant, condition, or provision herein contained, provided that the validity of any such covenant, condition, or provision does not materially prejudice either the CITY or the TEAM in their respective rights and obligations contained in the valid covenants, conditions, and provisions of this lease. 20. STATUS. It is expressly agreed that in carrying out the terms of this lease, the TEAM shall be construed to be an independent contractor, and nothing in this lease is intended nor shall be construed to create an employer-employee relationship or a joint venture relationship with the CITY. 21. NOTICE. Any notices or demands that may be given by either party hereunder, including notice of default and notice of termination, shall be deemed to have been fully and properly given when made in writing, enclosed in a sealed envelope, and deposited in the United States Post Office, certified mail, postage prepaid, addressed as follows: To the CITY OF REDDING c/o Director of Recreation and Parks, Post Office Box 496071, Redding, California 96049-6071; and to the REDDING SWIM TEAM c/o Nancy Bolen, Post Office Box 2212, Redding, California 96099. 22. ATTORNEY'S FEES. In the event suit or action is instituted to enforce any of the provisions of this lease, the prevailing party therein shall be entitled to attorney' s fees and 7 any other sums as may be adjudged reasonable and necessary at trial and on appeal. 23. BINDING ON SUCCESSORS. The provisions and conditions of this lease shall be binding upon and inure to the benefit of the successors and assigns of the parties hereto. 24. TIME OF ESSENCE. Time is of the essence of this lease and of each and every provision thereof . IN WITNESS WHEREOF, the parties hereto have caused this lease to be executed by their duly authorized representatives on the days and year set forth below. CITY OF REDDING DATED: , 1995 By: ROBERT C. ANDERSON, Mayor REDDING SWIM TEAM DATED: , 1995 By: �ta'kYJA- 6 6- NANCY BOLEN Title: � 7�n� la, GICC�F„ if� iti rY��r�"A km ATTEST: CONNIE STROHMAYER City Clerk FORM APPROVED: W. LEONARD WINGATE City Attorney 8