HomeMy Public PortalAbout2017.10.12 Commercial Lease Agreement- Golf Course RestaurantCOMMERCIAL LEASE BETWEEN
CITY OF MCCALL AND
COUGAR RESTAURANT ENTERPRISES
This COMMERCIAL LEASE (the "Lease"), made and entered into this 12 day of October, 2017, is
by and between COUGAR RESTAURANT ENTERPRISES, INC., with a principal place of
business at 840 Bishop Boulevard, Suite 1008, Pullman, Washington ("Tenant"), and the CITY
OF MCCALL, a Municipal Corporation, organized and existing under the laws of the State of Idaho
(„City„)
I. GENERAL CONDITIONS
A. INITIAL TERM. The initial term of this Lease shall be five (5) years (the "Initial Term"),
beginning November 1, 2017 (the "Commencement Date"), and ending October 31, 2022.
B. RENEWAL OPTION. This Lease may be renewed upon the same terms and conditions
(with the exception of Monthly Rent, which shall be renegotiated by the parties) for two
(2) additional periods of five (5) years upon the mutual written consent of the parties (the
"Renewal Term") as referenced in V.A. below. Written notice of intent to renew must be
given by Tenant to City not later than ninety (90) days prior to the end of a term.
C. ASSIGNMENT, SUBLEASE, OR LICENSE. Tenant shall not assign, sublease or license
the Premises without the prior written consent of City, which consent may be granted,
denied, or made conditional, in City's sole discretion.
II. USE
A. PREMISES. City leases to Tenant, and Tenant agrees to lease from City, that certain
premises located at the McCall Golf Course on the City of McCall City Golf Course in
McCall, Idaho, and consisting of approximately 5000 rentable square feet (the "Premises")
within the McCall Golf Course Clubhouse (the "Building"), as more particularly identified
on Exhibit A attached hereto and incorporated herein. Tenant shall also have access to and
use of the deck, the snack shack, and beverage cart. Tenant shall be the sole provider of
food and beverage on the property known as McCall City Golf Course and all its property.
B. PERMUTED USE AND PURPOSE. The Premises shall be used for the operation of a full -
service restaurant with bar/lounge, for related activities such as special events, and for
providing cafe and beverage service for users of the golf course, and for no other purpose
without the express written consent of City.
C. POSSESSION. Tenant shall be entitled to possession on or about November 1, and shall
yield possession to City on the last day of the term of this Lease, unless otherwise agreed
to by both parties in writing. City shall not be liable for any damages caused by failure to
deliver possession of the Premises, and Tenant shall not be liable for rent until such time
as City delivers possession. By entry on the Premises, Tenant acknowledges that it has
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examined the Premises and accepts the Premises in their then present condition. Taking of
possession of the Premises by Tenant shall be conclusive evidence the Premises were, on
that date, in acceptable condition, except as otherwise noted by Tenant in writing to City
within ten (10) days.
D. EXCLUSIVE USE. Tenant shall enjoy exclusive and sole use of the Premises consistent
with the stated Purpose. Tenant shall promptly comply with all laws, ordinances, orders,
rules, or regulations of all applicable governmental authorities in its use of the Premises,
including environmental laws. Tenant shall observe such rules and regulations as may be
adopted by City from time to time for the safety, care and cleanliness of the Premises.
Tenant shall not do or permit to be done in or about the Premises any activity which may
be deemed illegal or a nuisance, which may endanger persons or property, or which
disturbs other tenants or neighbors of the building in which the Premises are located.
Tenant shall not use the Premises in any manner that would render the insurance risk on
the Premises as more hazardous.
E. QUIET ENJOYMENT. As of the Commencement Date of this Lease, Tenant shall have
the right to peaceably and quietly enjoy the Premises and all rights, easements, covenants,
and privileges belonging or in any way pertaining thereto, during the Initial 5 Year Term
and any Renewal Term of this Lease. City's use of the Building other than the Premises,
including but not limited to expansion or modifications to the Building, shall not be deemed
to be a disruption of Tenant's quiet enjoyment, nor a constructive eviction.
F. USE OF PREMISES BY THE CITY FOR MEETINGS: The City may use a portion of the
restaurant for meetings without charge. Said meetings will not be deemed to cause a
disruption to the Tenant. Notice of such meetings shall be given by the City as soon as they
are scheduled and such meetings will be rescheduled by the City if prior reservations have
been made of Restaurant use.
G. ACCESS. City may enter the Premises at all reasonable times for the purposes of
inspecting, repairing, altering, or improving the Premises. In addition, City may enter the
Premises during normal business hours for the purpose of showing the Premises to
prospective tenants for a period of ninety (90) days prior to expiration of the then -
applicable term.
H. PARKING. City does not provide Tenant with any reserved parking at the Premises or
elsewhere as a part of this Lease. City does provide general first -come, first -served parking
for clientele of the McCall Golf Course and Tenant and Tenant's employees shall be
entitled to use such parking incident to this Lease.
III. RESTAURANT OPERATIONS
A. The Tenant shall have the exclusive right to operate the Restaurant and catering services,
which shall include performing the following duties, as well as other duties necessarily
implied herein:
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1. To hire, fire, and supervise all Restaurant employees engaged in the operation of the
business of the Restaurant, to include bartenders, wait persons, bus and cleaning
persons (except such as are furnished by caterers contracting with persons reserving
the building for an event, provided the Tenant approves use of the facility for a catered
event); to be responsible for salaries and benefits and ensure compliance with all state
and federal labor laws including FICA, state and federal income tax withholding,
unemployment insurance and workman's compensation insurance;
2. To furnish the City with a Certificate of Insurance evidencing Workman's
Compensation Insurance for its employees; to provide $500,000 single limit insurance
in the following categories: general liability, products (food and drink), maintenance,
and liquor liability; to provide $10,000 cash loss, theft or embezzlement bond or
insurance; and to provide a Certificate of Insurance evidencing such insurance and the
naming of the City as an additional insured on all such policies;
3. If the Tenant elects to accept credit cards, to request proof of identity of the cardholder
submitting the card if that identity is not already known;
4. To provide the necessary food, beverages and consumable supplies used in the business
of Restaurant and to operate the bar;
5. To determine the prices to be charged for food and drink served in Restaurant, none of
which prices shall be stated to include sales tax;
6. To comply with all terms of the Special Use (Conditional Use) Permit for the golf
clubhouse, insofar as relates to operations of the Restaurant;
7. To operate the Restaurant 12 months a year, at a minimum of 9:00 AM until 7:00 PM
seven days a week during June, July, August, and September. The balance of the year
the Restaurant shall be operated a minimum of four (4) days per week unless otherwise
approved by the City Manager. The Tenant is responsible for handling all bookings and
coordinating services and handling all reservation -making for the use of the Restaurant.
If at any time June - September the Course is closed by weather or other causes beyond
the Tenant's control, the Tenant may in its discretion close the Restaurant. During
October -May, Tenant may close the Restaurant at its discretion if the parking lot is
inaccessible due to snow. The Tenant shall obtain at its own expense any menus not on
site;
8. To provide the opportunity to purchase at a maximum cost of One Dollar ($1.00) per
bottle, bottled water at no less than 5 locations on the Course utilizing vending
machines, the snack shack, and beverage cart;
9. To ensure employees and patrons do not smoke while in the building or on the deck;
10. To ensure that employees do not consume alcohol while working;
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11. To ensure all employees are dressed professionally, are clean, courteous, efficient, and
neat in appearance and are health certified for food handling and preparation;
12. The Tenant may, at its sole discretion, offer complimentary staff meals, and
complimentary food and beverage to select guests as a promotional tool.
B. NONDISCRIMINATION. Tenant certifies it will not discriminate in employment on the
basis of race, color, religion, gender, sexual orientation (to include gender identity),
national origin, Veteran status or physical or mental disability in regard to any position for
which the employee is qualified, in compliance with:
1. Presidential Executive Order 11246, as amended, including the Equal Opportunity
Clause contained therein;
2. Section 503 of the Rehabilitation Act of 1973, as amended, and the Vietnam Era
Veterans Readjustment Act of 1974, as amended, and the Affirmative Action Clauses
contained therein; and
3. The Americans with Disabilities Act of 1990, as amended.
Tenant agrees it will not maintain facilities which are segregated on the basis of race, color,
religion or national origin in compliance with Presidential Executive Order 11246, as
amended, and will comply with the Americans with Disabilities Act of 1990, as amended,
regarding its programs, services, activities and employment practices.
C. PERMITS AND LICENSES. Tenant shall obtain and maintain during the existence of this
Lease all licenses and permits as may be required by law to operate its business in the
Premises. This includes a City of McCall Business License and State, County, and City
Liquor License. Please note that upon expiration or termination the ownership of said
liquor license belongs to the golf course and would not stay with the Tenant.
IV. FACILITY IMPROVEMENTS AND MAINTENANCE:
A. ACCEPTANCE AND CARE OF PREMISES. The Tenant shall ensure that the facility is
kept clean and attractive, including maintaining upstairs lobby, deck and restrooms as well
as providing towels, tissue, soap and other supplies, to include cleaning all furniture,
fixtures and appliances devoted to Restaurant use, including the interior walls and floor
coverings, normal wear and tear excluded. If Tenant fails to keep the Premises neat and
clean and in good condition and repair, City may at its option cause the Premises to be put
into good condition and repair and in such case Tenant shall pay the cost thereof. At the
expiration or earlier termination of this Lease, Tenant, agrees to deliver possession of the
Premises in as good condition as when received from City, excepting such ordinary wear
and tear as is consistent with Tenant's maintaining the Premises in good, clean, tenantable
condition.
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B. JANITORIAL. Tenant shall provide and pay for such janitorial service to the Premises as
may be necessary to maintain the Premises in a clean and sanitary condition.
C. REPAIRS.
1. Tenant shall coordinate with City for the routine maintenance and repair of all
nonstructural and interior components of the Premises (including glass doors and
windows), and Tenant shall be charged for all such maintenance and repair services
provided by the City at the then -prevailing hourly rate of City's Facilities Operations
Department.
2. Tenant shall be responsible for maintenance, repair and replacement of all specialty
equipment, fixtures, and furniture used or supplied by it in the operation of its business
on the Premises.
3. Notwithstanding the foregoing allocation of responsibility for repair and maintenance,
Tenant shall bear the expense of any damage to the Premises (whether caused to roof,
structure, walls; or any other portion of the Premises) caused by Tenant, its officers,
employees, agents or invitees. City shall repair, at its expense, any damage to the
Premises caused by City, its officers, employees or agents.
D. DAMAGE OR DESTRUCTION.
1. If the Premises or the Building are damaged or destroyed by fire or other casualty, City
shall, at its option, repair the Premises as nearly as practicable to the same condition as
prior to such damage or destruction, with the exception of tenant improvements,
alterations and trade fixtures, the restoration of which shall be the Tenant's sole
obligation and expense. The City's and Tenant's obligations to repair provided in this
paragraph shall be subject to the termination rights provided below.
2. Total destruction of the Premises shall automatically terminate this Lease.
3. If in the City's reasonable estimation, the Premises are not totally destroyed but cannot
be repaired within one hundred eighty (180) days of the date of damage or destruction,
City shall give written notice to Tenant estimating the length of time necessary to
complete such repairs, and Tenant shall have fourteen (14) days thereafter to elect to
terminate this Lease by written notice to City. If Tenant does not elect to terminate
within fourteen (14) days, Tenant shall be deemed to have irrevocably waived its rights
of termination under this paragraph. If the Premises or the Building are destroyed or
damaged to such an extent that City deems it is not economically practical to repair the
same, in City's sole discretion, then City shall give Tenant notice to that effect and
terminate this Lease effective as of the date of the damage or destruction.
4. If Tenant does not have the right to terminate, or has the right but does not elect to
terminate, and if City elects to repair such damage, repairs shall commence as soon as
possible after the occurrence of such damage and after Tenant has irrevocably waived
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its rights of termination under this paragraph, if any such rights apply. City shall not be
liable for lost profits or other consequential damages of Tenant resulting from any
casualty damage.
5. If damage or destruction to the Premises or the Building occurs within the last 12
months of the term of this Lease or any extension or renewal hereof, City may, in its
sole discretion, terminate this Lease by delivery of notice to Tenant within thirty (30)
days after the date the City is advised of the damage or destruction.
E. TENANT IMPROVEMENTS. The Tenant accepts the Restaurant in its present condition,
after complete inspection of the same. The Tenant shall furnish the City a dated inventory,
signed by the Tenant, of all equipment and fixtures found by the Tenant at the Restaurant when
taking inventory in anticipation of possession. The Tenant may remove City -owned fixtures
and appliances at the Tenant's expense, and replace them with equal or better also at its expense,
provided the Tenant first obtains the written consent of the City Manager as to the change and
as to storage or disposition of City property.
Any improvements or repairs or alterations undertaken by Tenant during the Initial Term
or any Renewal Term of this Lease shall be at the expense of the Tenant and be performed
in such a manner and during such hours as City may designate so as to minimize disruption
to other tenants of the Building. Any such improvements by Tenant shall require City's
prior written approval, which approval shall not be unreasonably conditioned, withheld, or
delayed.
V. RENT:
A. MONTHLY RENT AND OTHER CHARGES. Tenant shall pay to City in advance on the
fifth (5th) day of each calendar month during the Initial Term, without demand, and without
deduction or offsets, to the address set forth in Paragraph D below.
Tenant's Monthly Rent for the Initial Term shall be an incentive -based rent equal to nine
percent (9%) of Tenant's gross monthly receipts for the preceding month. If, in any fiscal
year, Tenant's gross annual receipts exceed $500,000, Tenant's Monthly Rent for the
remainder of that fiscal year shall be reduced to six percent (6%) of gross monthly receipts
for any amounts exceeding $500,000. "Gross Monthly Receipts" and "Gross Annual
Receipts" shall be defined to mean all gross revenues received by Tenant from the sale of
food, beverages, and other products sold on the Premises, the Golf Course, and during any
off -premises catering for that particular period. Gross Receipts shall not include tips,
charges for City of McCall sales tax or other tax imposed by any public body on the sale
of the goods and services provided by Tenant.
Upon renewal, as referenced in I.B., Rent will be equal to ten percent (10%) for the first
renewal term and eleven percent (11%) for the second renewal term of the Tenant's gross
monthly receipts for the preceding month. If, in any fiscal year, Tenant's gross annual
receipts exceed $500,000, Tenant's Monthly Rent for the remainder of that fiscal year shall
be reduced to six percent (6%) of gross monthly receipts for any amounts exceeding
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$500,000. Upon termination or expiration, rent for the last month will be due on or before
the fifth (5th) day of the following the final month.
Tenant shall include with each payment of Monthly Rent to City an itemized accounting
of Tenant's gross monthly receipts for the prior calendar month and their Local Option Tax
collected along with the corresponding voucher.
B. LATE PAYMENT FEE. Tenant acknowledges that late payment by Tenant of Rent due
and/or other sums due will cause City to incur costs not contemplated by this Lease, the
exact amount of which costs would be extremely difficult to ascertain. Accordingly, a late
charge equal to 10% of such overdue amount or $200.00, whichever is greater, will be
imposed if Rent and/or other charges have not been received by City by 5:00 p.m. on the
fifth (5th) day of the calendar month in which payment is due at the address shown in
paragraph D below. ("ADDRESS FOR RENT PAYMENTS"). Any rent payment which is
made late shall be accompanied by Tenant's payment of such late fees. In addition, Tenant
will be assessed a service fee of not less than $25.00 for any check which is returned as
NSF (non -sufficient funds).
C. INTEREST ON PAST DUE AMOUNTS. Any amounts owing from Tenant to City under
this Lease shall bear interest at the higher of the statutory judgment rate then prevailing in
City of City of McCall, or 12% per annum, calculated from the due date of such payment.
This interest is in addition to late charges otherwise provided for in this Lease.
D. ADDRESS FOR RENT PAYMENTS.
City of McCall
216 East Park Street
McCall, ID 83638
E. SECURITY DEPOSIT. Tenant shall pay $5,000 upon execution of this Lease as security
for the performance of Tenant's obligations hereunder. This deposit shall not bear interest
for Tenant's benefit. If Tenant defaults in performance of any of Tenant's obligations
hereunder, City may apply the whole or any part of the security deposit toward City's costs
resulting from the default and toward remedying such default. Within ten (10) days after
notice of any such application, Tenant shall restore the amount on deposit to its original
balance. Any balance of the security deposit shall be returned to Tenant within thirty (30)
days after termination or expiration of this Lease, after full satisfaction of Tenant's
obligations hereunder.
F. PRO RATA ADJUSTMENTS. Rent for any partial month shall be adjusted on a pro rata
basis.
G. CONTINUOUS OPERATION AND HOURS OF BUSINESS. Tenant shall commence
operation of its business in the Premises within 90 days of this Lease. Thereafter, Tenant
shall continuously, and without interruption, operate its business in the Premises during
those days and hours as agreed upon between Tenant and City and as may be modified
from time to time based on the mutual consent of the parties. Tenant and City shall meet
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no less than annually to reassess the hours of operation of Tenant's business to most
effectively serve the Golf Course clientele and community. The covenant of continuous
operation shall not apply during any period when Tenant's business is temporarily
discontinued by reason of acts of God, governmental requirement, fire, flood, strikes, or as
City and Tenant may agree upon in writing. Failure of Tenant to operate its business as
required under this section shall constitute a default under this Lease, and may result in
termination of the Lease after thirty (30) days' prior written notice. If Tenant fails to
commence its business operations or to remain open for business as required by this Section
and Section III. A. 7., City shall have, in addition to any and all other remedies, the right
at its option to collect not only the Monthly Rent and Local Option Tax provided, but such
additional rent ("Additional Rent") of one hundred dollars ($100) for each and every day
or partial day that Tenant shall fail to conduct its business.
W. UTILITIES AND SERVICES.
A. UTILITIES: The Tenant shall assume full responsibility and expense for all private
telephone service. The Tenant shall also assume responsibility of his personal taxes,
merchant invoices, and all other liabilities with respect to his operation of the restaurant.
The Tenant will be responsible for expenses associated with electric, water and sewer
utility, and trash services as outlined below.
1. Electric Service: The City will pay in full all monthly invoices for electric services
serving the Clubhouse (Restaurant and Pro -shop) then later invoice a proportional cost
allocated to the Tenant as defined within this paragraph. During the period of each year
when the McCall Golf Course is open for use by the public, the Tenant will be
responsible for fifty percent (50%) of the monthly invoiced amount for electric service.
If the clubhouse restaurant is operated when the Golf Course is closed each year, then
the Tenant will be responsible for seventy percent (70%) of electric cost during the
closure period. If the restaurant is not operated when the McCall Golf Course is closed
each year, then the Tenant is responsible for fifty percent (50%) of the cost during this
period. The aforementioned percentages will be pro -rated to the date of opening or
closure of the Golf Course and/or restaurant.
2. Water and Sewer Utility: The Tenant will be responsible for fifty percent (50%) of total
water and fifty percent (50%) of total sewer utility expense, which includes base rate
and usage, associated to the Golf Course clubhouse.
3. Trash: The Tenant will provide and pay for trash services at the restaurant facility
suitable for services being provided under the terms of this agreement. The City
Manager will have sole authority to deem services as suitable. Provision of trash
services can be negotiated and split, if desired by the Tenant, with the Golf
Professional.
4. The Tenant, City of McCall, or Golf Professional may request, in writing, a review of
the utility cost share outlined above. Any amendments to this agreement to alter the
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cost share outlined must be agreed upon and approved by the City of McCall, Tenant,
and Golf Professional.
5. The City does not guarantee an uninterrupted supply of water, or electric current; nor
does the City guarantee uninterrupted service in providing any utilities. The City shall
not be liable to the Tenant for any loss, damage, cost or expense which may result from
the interruption or failure of any utility services.
B. SUPPLIES: The Tenant shall provide at his expense, supplies and tools necessary for
carrying out his maintenance responsibilities, including light bulbs, soap, paper products
and like consumables.
C. CITY GENERAL OBLIGATIONS: The City shall be responsible for all facility and
ground maintenance and repair not otherwise required to be performed by the Tenant,
including maintenance of building siding, roofing, windows, decking, stairways, etc. as
well as routine cleaning and inspection of the fire suppression system, electrical, plumbing
and any structural matters, upkeep of landscaping, turf conditions, and paving. City shall
maintain and repair at its cost the roof, structural components of the building exterior walls,
structural parts of the floors and the exterior components of the Premises (excluding glass
doors and windows).
VII. TENANT INSURANCE.
For the duration of the term of the Lease, Tenant shall maintain at its sole expense the following
insurance policies:
A. "Special" form (all-risk) property insurance policy covering all of Tenant's improvements,
alterations, trade fixtures and personal property in, on or about the Premises; on a 100%
replacement cost basis. In the event of loss, the proceeds of any such policy shall promptly
be used by Tenant for the restoration of its improvements, alterations and trade fixtures and
the replacement of its personal property;
B. Commercial general liability and professional liability policy, including liquor liability,
with limits of not less than $1,000,000 per occurrence;
C. Commercial liquor liability policy with limits of not less than $5,000,000 per occurrence;
D. Automobile liability policy with limits of not less than $1,000,000 per occurrence, covering
all owned, non -owned and hired autos; and
E. Workers' compensation and employers' liability insurance with limits as required by law.
F. All such insurance shall be issued by carriers acceptable to City, shall name City as an
additional insured and permit recovery on such policies by City on a primary, non-
contributing basis, and shall contain a provision whereby the carrier agrees not to cancel
or modify the insurance without forty-five (45) days' prior written notice to City. Proof and
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certificate of such coverage shall be delivered to City prior to commencement of this Lease
and annually thereafter upon renewal of the policies. Tenant shall be solely responsible for
payment of premiums, deductibles and co -payments. If Tenant fails to procure or maintain
the insurance required by this Section, City may (but is not required to) obtain and maintain
insurance for protection of its own interest, and all premiums paid of payable by City
therefore shall be deemed to be additional Rent and shall be due on the payment date of
the next installment of Rent under this Lease. Tenant's failure to obtain or maintain any
insurance required under this Lease shall constitute a material breach of the Lease. Tenant
agrees to waive subrogation against City.
VIII. HAZARDOUS MATERIALS.
Tenant shall not receive, store, use or dispose of any product, material or merchandise which is
toxic, explosive, highly flammable or classified by law as hazardous. Tenant shall defend and hold
harmless City from and against any and all claims, liabilities, losses, damages, cleanup costs and
expenses (including reasonable attorney's fees) arising out of or in any way related to the presence,
storage, use, transportation, disposal or handling of any hazardous materials in; on or about the
Premises resulting from the acts or omissions of Tenant. Tenant shall not release any Hazardous
Substances any flammable, explosive, toxic, carcinogenic, mutagenic, or corrosive substance or
waste, including volatile petroleum products and derivatives, other than those materials which are
technically within the foregoing definition but which are contained in prepackaged office supplies,
cleaning materials, personal grooming items or other items which are sold for consumer or
commercial use and typically used in other similar buildings or space at, on or in the Premises.
IX. EXPIRATION OR TERMINATION OF LEASE
A. TERMINATION FOR CONVENIENCE. After expiration of the Initial 5 Year Term and
upon at least six (6) months prior written notice, either party shall have the right to
terminate this Lease for convenience.
B. DEFAULT. The occurrence of any one or more of the following events shall constitute a
material default and a breach of this Lease by Tenant:
1. The failure by Tenant to make any payment of rent or any other payment required to
be made by Tenant hereunder, as and when due;
2. The failure by Tenant to observe or perform any of the other covenants, conditions or
provisions of the Lease;
3. The appointment of a trustee or receiver to take possession of substantially all of
Tenant's assets located at the Premises or of Tenant's interest in the Lease where
possession is not restored to Tenant within thirty (30) days, or
4. The attachment, execution or other judicial seizure of substantially all of Tenant's assets
located at the Premises or of Tenant's interest in this Lease, where such seizure is not
discharged within thirty (30) days. All notice and cure periods set forth above are in
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lieu of and not in addition to any notice required pursuant to applicable laws, codes and
ordinances.
C. NOTICE OF DEFAULT. If Tenant defaults in any payment of rent or any other charges
due hereunder, or defaults in the performance of any of the covenants or conditions of this
Lease, City may give to Tenant notice of such default. If Tenant does not cure all defaults
relating to payment of rent and other charges within three (3) days after the date of such
notice, or does not cure all other defaults within ten (10) days after the date of such notice
(or if such default is of a nature that it cannot be completely cured within that ten day
period, if Tenant does not substantially commence such cure within the ten (10) days and
thereafter proceed with reasonable diligence and in good faith to cure such default), then
City may elect to terminate this Lease by notice, by lawful entry or otherwise.
D. NONCURABLE DEFAULTS. If Tenant, three (3) times within any twelve (12) month
period, is in default under any provision or provisions of this lease and receives a notice of
default from City, then regardless of whether such defaults are or have been timely cured,
the fourth such default (even if of a different nature) shall constitute a non -curable default
and City shall be entitled to terminate this Lease by giving thirty (30) days' written notice
to Tenant.
E. REMEDIES AND REENTRY. In the event of default by Tenant, City shall have the
remedies described in this Paragraph, in addition to any remedies now or later allowed by
law. All rights of City enumerated herein shall be cumulative, and none shall exclude any
other right or remedy allowed by law of in equity, and all of the following may exercised
with or without legal process as then may be provided or permitted by the laws of the State
of Idaho. City may terminate Tenant's right to possession at any time in the event of
Tenant's default. Upon termination of Tenant's right to possession, City has the right to
recover from Tenant:
1. the worth at the time of award of any unpaid Rent and other charges which had been
earned at the time of termination of Tenant's right to possession plus
2. the worth at the time of award of the amount by which the unpaid Rent and other
charges which would have been earned after the date of termination of Tenant's right
to possession until the time of the award exceeds the amount of such rental loss that
Tenant proves could have been reasonably avoided; plus
3. the worth at the time of award of the amount by which the unpaid Rent and other
charges for the balance of the Term after the time of award exceeds the amount of such
rental loss that Tenant proves could be reasonably avoided; plus
4. all other amounts, including expenses of reletting, court, brokerage, attorney and
collection costs, necessary to compensate City for all detriment proximately caused by
Tenant's default.
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"The worth" as used for items (1) and (2) in this paragraph is to be computed by allowing
interest at the lesser of 12% or the maximum rate an individual is permitted to charge by
law. "The worth" as used for item (3) in this paragraph is to be computed by discounting
the amount at the discount rate of the Federal Reserve Bank of San Francisco at the time
of termination plus one percent (1%). :
In the event of any default by Tenant, City shall also have the right, with or without
terminating this Lease, to reenter the Premises and remove all persons and property from
the Premises at Tenant's expense. Such property may be removed and stored in a public
warehouse or elsewhere at the cost of and for the account of Tenant or disposed of in a
reasonable manner by City. No reentry or taking possession of the Premises by City
pursuant to this Paragraph shall be construed as an election to terminate this Lease unless
a written notice of such intention is given to Tenant or unless the termination thereof is
decreed by a court of competent jurisdiction.
F. REMOVAL OF PROPERTY. Tenant shall remove all of its personal property and Tenant's
signage from the Premises upon expiration or earlier termination of this Lease. Title to any
personal property remaining on the Premises ten (10) days thereafter shall be deemed to
have been conveyed by Tenant to City, and City may dispose of such personal Property in
its sole discretion. Tenant agrees to reimburse City for actual costs and expenses incurred
to remove or dispose of such personal property and signage within thirty (30) days after
receipt of invoice for same.
G. HOLDOVER. If the Tenant continues to occupy or hold the Premises after expiration of
the Initial Term or any Renewal Term, such occupancy shall constitute a month -to -month
tenancy subject to all of the terms of this Lease, except the Rent, which shall be
automatically, and without notice, accelerated to $4,500. Any such holdover tenancy may
be terminated as provided by law. City also reserves the right to claim such damages as
may accrue due to Tenant's holding over, which may exceed the amount of $4,500
applicable to the holdover period.
H. TENANTS LEASED FIXTURES OR EQUIPMENT. Upon expiration or termination of
this Lease, Tenant shall terminate all leases for fixtures or equipment on the Premises.
I. OWNERSHIP AND REMOVAL OF ALTERATIONS. IMPROVEMENTS &
FIXTURES. Title to the initial tenant improvements provided by City as set forth on
Exhibit B shall remain with City upon termination of this Lease. Title to any other
alterations and improvements performed by Tenant during the existence of this Lease shall
remain with City upon termination of this Lease, unless otherwise agreed by the parties.
Before expiration or earlier termination of the Lease, Tenant shall notify City of its, intent
to vacate, and City shall instruct Tenant which, if any, alterations and improvements made
by Tenant must be removed at Tenant's expense before the termination of the Lease. If any
alterations and improvements which Tenant is instructed to remove are not so removed by
Tenant, Tenant shall reimburse City the cost of removal of such alterations and
improvements. During the Initial Term or any Renewal Term of the Lease, Tenant may
install on the Premises trade fixtures and equipment as are customarily used in the type of
Page 12 of 18
Commercial Lease Agreement — Golf Course Restaurant
October 12, 2017
business conducted by Tenant on the Premises. Title to such trade fixtures and equipment
shall remain with the Tenant, unless otherwise agreed by the parties. Upon termination of
this Lease, Tenant shall remove such trade fixtures and equipment and repair any damage
to the Premises or Building caused by such removal.
X. INDEMNIFICATION.
Each party shall indemnify and hold the other harmless from and against any damage, loss or
liability from injuries to persons or property arising from negligent acts of their respective agents,
officers and employees. Tenant shall protect, defend, indemnify and hold City harmless from and
against any and all claims, debts, demands, obligations, losses, liens, damages, judgment or
liabilities now or hereafter arising from Tenant's use of the Premises, the design, development,
construction, operation, maintenance or repair of the Premises or the conduct of Tenant's business
or from any activity, work or thing done, permitted or suffered by Tenant or any person in or about
the Premises and shall further protect, defend, indemnify and hold the City harmless from and
against any and all claims arising from any breach or default in the performance of any obligation
of Tenant under this Lease. The foregoing indemnifications shall survive the expiration or other
termination of this Lease. These indemnities are, for the sole benefit of City and Tenant and shall
not inure to the benefit of any third party.
XI. MISCELLANEOUS:
A. SIGNS. Tenant shall not cause or permit the display of any sign, notice or advertising in
or about the Premises without the prior written consent of City. City shall have sole
discretion whether to approve or disapprove any such signage. Tenant shall remove, at its
sole expense, all of its signs or other advertising on or about the Premises prior to vacating
the Premises, and shall repair any damage to the Premises or Building caused by such
removal.
B. BOOKS & RECORDS. City shall have access to and the right to audit Tenant's books and
records for the purposes of tracking the Monthly Rent and to verify the accounting from
Tenant with each payment of Monthly Rent. The Tenant shall cooperate with the City's
Auditors. This right to inspection and audit shall include the right to access point of sale
software, z-tapes, or any other regularly used, or compiled, information regarding restaurant
receipts.
C. CONFIDENTIAL. Business financial information furnished to City by the Tenant shall be
confidential and protected from disclosure as allowed under I.C. § 9-340. Such information
may be made available to the City Manager, City Clerk, City Treasurer, City Attorney, and
City Auditors. In the event of termination of this Agreement by either party, the most recent
two years of financial data shall be provided by the Tenant to the top five incoming
candidates as identified by the City. If the Tenant is unavailable, the City will release the
summary information relating to sales and expenses.
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Commercial Lease Agreement — Golf Course Restaurant
October 12, 2017
D. ADDRESSES FOR NOTICES.
Tenant:.
Cougar Restaurant Enterprises, Inc.
840 Bishop Blvd., Suite 1008
Pullman WA 99163
Phone: (509) 334-3663
City:
City of McCall
216 East Park Street
McCall, ID 83638
Phone: (208)634-7142
Fax: (208)634-3038
D. BROKERS. City is responsible for any broker fees to be paid in connection with this lease
unless otherwise agreed in writing with the broker.
E. LIENS. Tenant shall keep the Premises and the property in which the Premises are situated
free from any liens arising out of any work performed, materials furnished or obligations
incurred by Tenant. If a lien is filed, Tenant shall cause the same to be discharged of record
within thirty (30) days. The provisions of this paragraph shall survive the term and any
holdover of this Lease.
J. TIME OF THE ESSENCE. Tenant's performance of its obligations under this Lease is a
condition as well as a covenant. Time is of the essence in the performance of all conditions
and covenants.
K. NON -WAIVER. The failure of either City or Tenant to insist upon strict performance of
any of the covenants and agreements of this Lease shall not be construed as a waiver
thereof. Waiver of a particular breach or default shall not be deemed to be waiver of any
subsequent breach or default.
L. NOTICES. Notices under this Lease shall be in writing and delivered in person, sent by
registered or certified mail or via facsimile transmission to the parties at their respective
addresses as set forth above, or to such other place as may hereafter be designated by either
party in writing, effective three (3) days after the postmark date.
M. GOVERNING LAW. This Lease shall be governed by the laws of the State of Idaho, with
venue lying in the City of McCall, Valley County.
N. AUTHORITY TO EXECUTE. If Tenant is a corporation, association, limited liability
entity, partnership or government agency, each individual executing this Lease on behalf
of such entity represents and warrants that he or she is duly authorized to execute and
deliver this Lease on behalf of such entity, and that this Lease shall be binding upon said
entity in accord with its terms.
O. FORCE MAJEURE. In the event either party is delayed or prevented from performing any
of its respective obligations under this Lease by reason of acts of God, governmental
requirement, fire, floods, or strikes, then the time period for performance of such obligation
shall be extended for the period of such delay.
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Commercial Lease Agreement — Golf Course Restaurant
October 12, 2017
P. ENTIRE AGREEMENT AND INTERPRETATION. There are no oral agreements
affecting this Lease, and this Lease, together with its Exhibits, supersedes and cancels any
and all previous negotiations, arrangements, letters of intent, lease proposals, brochures,
agreements, representations, promises, warranties and understandings between the parties
as stated by, including but not limited to, Tenant's agent(s), or employee(s). No alteration,
amendment, change or addition to this Lease shall be binding upon either party unless
reduced to writing and signed by both parties. This Lease has been submitted to the scrutiny
of all parties and their counsel, if desired, and shall be given a fair and reasonable
interpretation, without consideration or weight being given to its having been drafted by
any party or such party's counsel.
Q. COUNTERPARTS: This Lease may be executed in counterparts and each counterpart
constitutes an original document.
XII. EXECUTION:
This Agreement is executed for the City by the Mayor, attested to by the City Clerk, with the
imprinted seal of the City and executed by Terrence Michael Byrne, the Tenant.
DATED this \A, day of OC ko, 2017.
STATE OF IDAHO )
ss
County of Valley )
COUGAR RESTAURANT ENTERPRISES
Pullman, Washington
Terrence Michael Byrne, Jr., President
On this \l. day of 2017, before me, a Notary for the state of Idaho, personally appeared
Terrence Michael Byrne, Jr. known , or identified to me to be the President, of the corporation that
executed this instrument or the person who executed the instrument on behalf of said corporation,
and acknowledged to me that such corporation executed the same.
IN WITNESS WHEREOF, I have hereto set my hand and affixed my official seal the date
and year in this certificate first above written.
DEBBIE L. OLSO
N
Commercial Lease Agreement — Golf Course Restaurant
October 12, 2017
NOTARY PUBLIC FOR IDAHO
Residing at M7' ) CA)
My Commission Expires: a, eti
Page 15 of 18
PERSONAL GUARANTY
The undersigned hereby personally guarantee the performance of the Lessee,
Cougar Restaurant Enterprises, Inc., under the terms and conditions of that certain Lease
Agreement with the City of McCall, Idaho, dated , 2017, and
acknowledge that, in executing this Personal Guaranty, they become personally and severally
liable for all of the obligations of the Lessee under such Lease Agreement.
Dated:
Dated:
`), ri' ! 7
lo-(7 -(7
The undersigned spouses consent to this guaranty.
STATE OF (Vein D )
:ss
County ofG1 )
On this \`A day of 0 , 2017, before me, the undersigned,
a Notary Public in and for said State, personally appeared Terrence Michael Byrne, Jr. and Frank
Maryott, known to me to be the persons whose names are subscribed to the within instrument, and
acknowledged to me that they executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year first above written.
(SEAL`
DEBBIE L. OLSON
Notary Public
_ _ _ State of Idaho
, cm\%>n
Notary Public for VADS -')c--->
Commission Expires: MRr'L gtD3
Page 16of18
Commercial Lease Agreement — Golf Course Restaurant
October 12, 2017
DATED this 12- day of OC-60e/17 , 2017.
CITY OF MCCALL
Valley County, Idaho
_7
Jac ie J. Aymo /Mayor
ATTEST:
L
BessieJo Wier, City Clk k
STATE OF IDAHO )
: ss
County of Valley ) On this 12,day of 64brrL, 2017, before me, the undersigned, a Notary Public in and for said
State, personally appeared Jackie J. Aymon and BessieJo Wagner, Mayor and City Clerk of the
City of McCall, respectively, known or identified to me to be the persons whose names are
subscribed to within the instrument, and acknowledged to me that they executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and
year in this certificate first above written.
NOTARY f .": L � RJDAHO
Residing at � 0 , hi1Ci P�-Q-e-
My Commission Ex . ires:
Page 17of18
Commercial Lease Agreement — Golf Course Restaurant
October 12, 2017
EXHIBIT A
Description/Floor Plan/Site Plan of Premises and Building [To be added when finalized]
EXHIBIT B
Description of Initial Tenant Improvements Provided By City [To be added when finalized]
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Commercial Lease Agreement — Golf Course Restaurant
October 12, 2017