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HomeMy WebLinkAbout027431 ORD - 09/25/2007ORDINANCE AUTHORIZING CITY MANAGER OR DESIGNEE TO EXECUTE A SEVEN- MONTH LEASE WITH GEORGE EDWARDS, DBA G. EDWARDS ENTERPRISES, ("LESSEE"), TO PROVIDE CONCESSION SERVICES AT GABE LOZANO SR. GOLF CENTER AND OSO BEACH MUNICIPAL GOLF COURSE JN EXCHANGE FOR MONTHLY PAYMENT OF 13 % OF LESSEE'S GROSS RECEIPTS; AND DECLARING AN EMERGENCY BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF CORPUS CHRISTI, TEXAS: SECTION 1. That the City Manager or designee is authorized to execute a seven-month lease and use agreement with George Edwards, dba G. Edwards Enterprises for use of Gabe Lozano Sr. Golf Center and Oso Beach Municipal Golf Course for food and beverage concessions, in exchange for monthly payment of 13% of Lessee's gross receipts. A copy of the lease is attached. SECTION 2. That upon written request of the Mayor or five Council members, copy attached, the City Council (1) finds and declares an emergency due to the need for immediate action necessary for the efficient and effective administration of City affairs and (2) suspends the Charter rule that requires consideration of and voting upon ordinances at two regular meetings so that this ordinance is pias and tak s e ft upon first reading as an emergency measure this the day of , 2007. ATTEST: Armando Chapa City Secretary APPROVED: September 14, 2007 Lisa Aguila Assistant City Attorney for City Attorney THE C OF CORPUS CHRISTI He Garrett Mayor 027431 Page 1 of 8 SEVEN MONTH LEASE WITH GEORGE EDWARDS, DBA G. EDWARDS ENTERPRISES, TO PROVIDE CONCESSION SERVICES AT GABE LOZANO SR. GOLF CENTER AND OSO BEACH MUNICIPAL GOLF COURSE THE STATE OF TEXAS § KNOW BY ALL THESE PRESENTS: COUNTY OF NUECES § This Lease (this "Lease") is entered into between the City of Corpus Christi, a Texas home -rule municipal corporation ("City"), and George Edwards, dba G. Edwards Enterprises of Nueces County, Texas (the "Concessionaire"). In consideration of the covenants, agreements and conditions herein contained, the City and Concessionaire agree as follows: 1. Term. The City leases the Premises described on the attached and incorporated Exhibit"A" (Premises) to Concessionaire beginning August 1, 2007 and ending February 21, 2008, unless sooner terminated. 2. Concession Rights. In consideration of the rent paid by the Concessionaire, and of the covenants herein, City grants Concessionaire the exclusive right to use the Premises, including the basic utilities at the Gabe Lozano Sr. Golf Center and Oso Beach Municipal Golf Course to make direct sales to the public of food, drinks, and beer. Concessionaire may use vending machines to sell beverages, snacks, tobacco and other merchandise customarily handled by a concessionaire. Concessionaire may use a mobile concession on the golf course grounds with prior written approval from the Director of Parks & Recreation or designee ("Director"). Director expressly retains the right to: (1) Make final decisions on matters that may arise, not specifically covered in this Lease, including the interpretation hereof. (2) Sell space for either temporary or permanent signs. (3) Approve the form, price, and price increase of products and services to be sold and/or provided by Concessionaire. Disposable containers (paper or plastic) suitable for consumption of the products on Premises immediately after the sale are required and must meet Director's approval. Glass bottles are not permitted. Concessionaire must not reuse a container after initial sale or use. 3. Location. Except for the supervision of the Director, Concessionaire has exclusive control over the Premises subject to the terms, conditions, and covenants of this Lease. 4. Basic Utilities. Included as part of the monthly rental payment to City, City will provide: Basic electrical services for lights, refrigerators, air conditioning, etc.; water H:1LEG-DIR\Lisa\Park and Rec 20074LeaseGeorge EdwardsConcessn.6 month.doc Page 2 of 8 service; wastewater service; and garbage pickup. Concessionaire will be responsible for additional electrical costs due to the installation of heavy -utility equipment or adjustments to payments to the City. 5. Concessionaire Responsibilities. The Concessionaire will be responsible to the City as follows: (1) Concessionaire must furnish, install, service and maintain in good working order all equipment, including cooking, dispensing, and cooling equipment, and supplies required to properly execute this Lease. Vending machines remain the exclusive property of the Concessionaire. (2) Concessionaire will operate the concession in accordance with all federal, state, and local laws and all relevant rules and regulations that may be promulgated by City Manager of the City of Corpus Christi, Texas or his designee ("City Manager"). (3) Insurance. Concessionaire must secure and maintain at Concessionaire's expense during the term of this Lease, a Commercial General Liability insurance policy with the limits and requirements shown on the attached and incorporated Exhibit "B". The Certificate of Insurance must be sent to the Director and a copy to City's Risk Manager and must provide 30 days written notice of cancellation, intent to not renew or material change of any coverage required herein. Concessionaire shall provide copies of all insurance policies to the Risk Manager upon City Manager's written request. (4) The food and drink will be dispensed by attendants furnished by the Concessionaire at Concessionaire's expense. All employees who are involved in the serving of alcoholic beverages must be certified through a TABC approved program. Concessionaire's minor cleanup duties will consist of keeping tables clean, cleaning up spilled food and drink, frequent cleaning of windows, floors, walls, and ceiling fans (if installed) and removal of trash from the Premises and the outside area. (5) Concessionaire will furnish all related supplies and condiments. Tables and chairs in the service area are provided by the City. (6) Concessionaire will provide suitable signs at the facility advising the public that Concessionaire is serving as an independent contractor. (7) The Concessionaire will immediately report, upon discovery, any vandalism or malfunction of facilities to the Director (826-3461) or Head Golf Pro (826-8016), and any problems relating to unlawful activity to the Police Department (826-2600) if non- emergency or 911 for emergency response. (8) Concessionaire will establish good public relations and promote this concession service to all citizens of Corpus Christi and its visitors. Hours of operation will coincide with the Pro Shop hours or as approved by the Director. H:1LEG-DIRILisalPark and Rec 20071LeaseGeorge EdwardsConcessn.6 month.doc Page 3 of 8 (9) Director will approve the quality, quantity, and price schedule of all concession merchandise. Selling price will exclude all applicable state and local sales tax. All commissions or percentages paid to the City must be on basis of gross sales, less sales tax and alcoholic beverage tax. (10) Concessionaire will sell various sundry items (i.e., aspirin, non-prescription cold tablets, insect repellant, etc.). A list of such items being offered for sale and their price must be approved by the Director prior to sale. 6. Monthly Payments; Late Payment Fee. Commencing with the month of final Council approval, Concessionaire must, by the 10th day of each month, pay to the City at the Office of Collections the following: thirteen percent (13%) of Concessionaire's monthly Gross Receipts for the prior month for the Gabe Lozano Sr. Golf Center concession; and thirteen percent (13%) of Concessionaire's monthly Gross Receipts for the prior month, for the Oso Beach Municipal Golf Course concession. These payments are for the life of this Lease, calculated on a monthly basis. For any payment not paid by the 10th day of the month, Concessionaire shall pay, by the 10th day of the following month, to the City at the Office of Collections a late payment fee equal to five (5%) per cent of the late payment. "Gross Receipts" mean Concessionaire's total revenue for concession merchandise sold at the Premises excluding applicable sales tax and alcoholic beverage tax. Concessionaire must file with the Director on or before the 10th day of each month a monthly report of Gross Receipts, the report form being designed and supplied by the Director of Finance or designee ("Director of Finance"), as the same may be amended from time to time. Concessionaire must submit to the Director a copy of all quarterly sales and use tax reports. The Director of Finance will approve Concessionaire's system of accounting for the Gross Receipts. 7. Books of Account. The Concessionaire must keep true and accurate records in a format acceptable to the Director of Finance. The Director or Director of Finance may audit Concessionaire's records of Gross Receipts and all pertinent records at a reasonable time to determine their accuracy and Concessionaire's compliance with the Lease terms. If a monthly report of Gross Receipts understates Gross Receipts by 10% of the true Gross Receipts, that monthly report is deemed to be knowingly and falsely furnished by Concessionaire and is grounds for the City to immediately terminate this Lease. 8. Retention of Records. Concessionaire will retain permanent books, ledgers, journal accounts, and backup documentation for five years after the termination or expiration of this Lease and any holdover periods. Concessionaire must comply with all federal, state, or local accounting rules. Upon the Director's written request, the Concessionaire will prepare a report of its operations under the Lease in a format acceptable to Director, and submit the report to Director within 60 days of his written request thereof. H:1LEG-DIR1Lisa\Park and Rec 20071LeaseGeorge EdwardsConcessn.6 month.doc Page 4of8 9. Audits. If an audit establishes that Concessionaire owes City more money, Concessionaire must pay the additional money within 30 days after Director's written demand thereof. If the audit establishes that Concessionaire has under reported Gross Receipts by 2% or more, Concessionaire must pay all costs of the audit. 10. Other Food. Any allowances or adjustments for allowing other food or drinks on the Premises must have prior approval from Concessionaire. 11. General Provisions. (1) Concessionaire will not on the grounds of disability, sex, race, color, or national origin, discriminate or permit discrimination against any person or group of persons in any manner. The City Manager hereby reserves the right to take action as the United States Government may direct to enforce this covenant. (2) The Concessionaire will refrain from any unlawful employment practices and comply with all lawfully adopted regulations related thereto. (3) Concessionaire will furnish service on a fair, equal, and nondiscriminatory basis to all users thereof, and will charge fair, reasonable, and nondiscriminatory prices for each unit of service. (4) Cancellation; Termination. Director retains the right at any time to cancel this Lease without cause upon sixty (60) days written notice to Concessionaire. Director may terminate this Lease with cause upon thirty (30) days written notice to Concessionaire. The Concessionaire may terminate this Lease without cause if the Concessionaire provides the Director sixty (60) days advance written notice. Notices must be given in writing by sending by first class mail, postage prepaid, to the following: IF TO CITY: City of Corpus Christi Attn: Director of Parks and Recreation P.O. Box 9277 Corpus Christi, Texas 78469-9277 (361) 880-3461 (361) 880-3864 fax IF TO CONCESSIONAIRE: George Edwards dba G. Edwards Enterprises 5115 Cosner Dr. Corpus Christi, Texas 78415 (361) 814-9919 or at any other address that each party may designate to the other in writing. (5) Concessionaire may not alter the Premises without prior written consent of the Director. All alterations made by the Concessionaire become the property of the City in fee simple, without any further action or process of law upon termination of the Lease. (6) In any legal action undertaken by any party hereto to collect for any damages growing out of or compensation due under this Lease, the prevailing party must be H:ILEG-DIRILisa\Park and Rec 20071LeaseGeorge EdwardsConcessn.6 rnonlh.doc Page5of8 reimbursed for all court costs and expenses and reasonable attorney's fees of not Tess than ten percent (10%) of the total amount of the judgment. (7) Indemnity. To the extent permitted by Texas Law, Concessionaire, its officers, members, partners, employees, agents, and licensees ("Indemnitors") hereby fully indemnify, save and hold harmless the City of Corpus Christi, its officers, employees, agents, licensees, and invitees ("Indemnitees") against any and all liability, damage, Loss, claims, demands and actions of any nature whatsoever on account of personal injuries (including, without limitation on the foregoing, worker's compensation and death claims), or property loss or damage of any kind whatsoever, which arise out of or are in any manner connected with, or caused by, or are claimed to arise out of or be in any manner connected with, or caused by either proximately or remotely, wholly or in part, an act or omission, negligence or misconduct by Indemnitors or Indemnitees or any of Indemnitor's of Indemnitee's agents, servants, employees, contractors, patrons, guests, licensees, or invitees entering upon the Premises pursuant to this Lease, or any of the hazards commonly associated with the operation of a food and beverage concession; or the violation by Indemnitees, Concessionaire, or any of its agents, servants, employees, contractors, patrons, guests, licensees, or invitees of any law, ordinance, or governmental order of any kind, or improvements located on the Premises herein or out of the use or occupancy of the improvements to the Premises or the Premises itself by Indemnitees, Concessionaire, its agents, servants, employees, contractors, patrons, guests licensees, or invitees. The terms of indemnification are effective even though said injury or damage may result from the sole negligence, contributory negligence, or concurrent negligence of Indemnitees or any of them. Concessionaire must at its own expense, investigate all those claims and demands, attend to their settlement, or other disposition, defend all actions based thereon with counsel satisfactory to Indemnitees and pay all charges of attorneys and all other costs and expenses of any kind from any of said liability, damage, loss, claims, demands, or actions. H:ILEG-DIR\Lisa\Park and Rec 20071LeaseGeorge EdwardsConcessn.6 month.doc Page 6 of 8 (8) Concessionaire must complete an incident/accident report for each incident/injury that occurs on the Premises. Concessionaire must provide City with copy of all incident/accident reports as they are completed. (9) Concessionaire must submit a completed Disclosure of Interest Form as part of this Lease. (10) Concessionaire agrees to pay the costs of newspaper publication of this Lease and related ordinance as required by the City Charter. (11) Concessionaire covenants to pay payroll taxes, Medicare taxes, FICA taxes, unemployment taxes, and all other related taxes according to Circular E Employer's Tax Guide, publication 15, as it may be amended. Concessionaire must provide proof of payment of these taxes to Director within thirty (30) days after payment is due upon Director's written request therefor. Failure to pay or provide proof of payment will be grounds for immediate termination of this Lease and a penalty fee may be added. (12) The prior agreement between the parties dated March 5th 2007 is hereby terminated and replaced with this Agreement. I-I:ILEG-DIRILisa\Park and Rec 20071LeaseGeorge EdwardsConcessn.6 month.doc Page 7of8 SIGNED this day of , 2007. ATTEST: CITY OF CORPUS CHRISTI Armando Chapa George K. Noe City Secretary City Manager APPROVED AS TO LEGAL FORM 10 September 2007 Lisa Aguilar Assistant City Attorney For City Attorney STATE OF TEXAS COUNTY OF NUECES This instrument was acknowledged before me on , 2007, by George K. Noe, City Manager, or designee , of the City of Corpus Christi, a Texas home -rule municipal corporation, on behalf of the corporation. Notary Public, State of Texas Seal: My Commission Expires Notary's Printed Name 1-1:\LEG-DIR1Lisa\Park and Rec 2007\LeaseGeorge EdwardsConcessn.6 month.doc Page 8 of 8 CONCESSIONAIRE: George Edwards By: Name: Title: STATE OF TEXAS COUNTY OF NUECES This instrument was acknowledged before me on , 2007, by George Edwards, Notary Public, State of Texas Seal: My Commission Expires Notary's Printed Name H:ILEG-DIR\LisalPark and Rec 20071LeaseGeorge EdwardsConcessn.6 month.doc Corpu Q5 Day of Christi, Texas , 2007 TO THE MEMBERS OF THE CITY COUNCIL Corpus Christi, Texas For the reasons set forth in the emergency clause of the foregoing ordinance an emergency exists requiring suspension of the Charter rule as to consideration and voting upon ordinances at two regular meetings: l/we, therefore, request that you suspend said Charter rule and pass this ordinance finally on the date it is introduced, or at the present meeting of the.City Council. Respectfully, Respectfully, H4nry Garrett Mayor Council Members The above ordinance was passed by the following vote: Henry Garrett Melody Cooper Larry Elizondo, Sr. Mike Hummell Bill Kelly Priscilla G. Leal John E. Marez Nelda Martinez Michael McCutchon 027431