PARKING LOT LICENSE AGREEMENT
THIS PARKING LOT LICENSE AGREEMENT is made as of April 4, 2005. between the
CITY OF GRAND HAVEN, a Michigan municipal corporation the principal business
address of which is 519 Washington Street, Grand Haven, MI (the “City”),
and PIRATES DEN, INC., a Michigan corporation doing business as the “Bil-Mar
Restaurant,” the principal business address of which is 1223 South Harbor
Ave., Grand Haven, MI (the “Licensee”).
RECITALS
A. The City owns property improved with a 42 space parking
area identified as Lot 125 of Highland Park Addition to the City of Grand
Haven, Ottawa County, Michigan (the “Licensed Premises”).
B. The Licensee owns property contiguous on the south to
the Licensed Premises (the “Bil-Mar Property”) upon which the Licensee operates
the Bil-Mar Restaurant (which, with any replacement two story restaurant
on the Bil-Mar Property is referred to as the “Restaurant”).
C. The City agrees to grant to the Licensee a license for
use of the Licensed Premises as a parking area for patrons, customers, and
invitees of the Bil-Mar, subject to the terms and conditions of this Agreement.
TERMS AND CONDITIONS
In exchange for the consideration in and referred to by this Agreement, the
City licenses to the Licensee the use of the Licensed Premises under the
following terms and conditions:
1. Use. The Licensed Premises shall be used only
as a passenger vehicle parking area by Licensee and Permitted Users (as defined
below) in connection with the conduct and operation of the Restaurant.
(a) The Exclusive Use Period is (i) 11:00 a.m.
until 9:00 p.m. on each day from Memorial Day to Labor Day, inclusive, and
(ii) Easter and Mother’s Day, and (iii) Saturdays, Sundays and holidays during
the months of May and September.
(b) Except during Exclusive Use Periods, the Licensee’s
customers, guests and invitees (“Permitted Users”) may, on a non-exclusive
basis, use the Licensed Premises to park passenger vehicles, together with
members of the public, on a first come, first served basis.
(c) During the Exclusive Use Periods, the Permitted Users
shall, during the times the Restaurant is open, have exclusive use of the
Licensed Premises solely as a passenger vehicle parking area. However, the
Licensed Premises shall be open for use by the general public anytime (including
any Exclusive Use Period) the Restaurant is closed. If only the ‘deck” is
open and the inside dining area is not open, the Licensed Premises shall
be open for use by the general public.
(d) The Licensee shall enforce the Exclusive Use Periods
at its sole cost and expense, including without limitation, signage, personnel
and security. The signage, personnel and security shall not prevent use of
the Licensed Premises by the general public when the Restaurant is closed.
The Licensee may not charge or collect any fees from the public for use of
the Licensed Premises.
(e) Any signage proposed for the site to alert the public
to exclusive use periods shall be in a form approved by the City Manager
prior to placement.
2. License Fee. The Licensee shall pay the City
a license fee in advance without any setoff or reduction as follows: an annual
license fee of $11,000.00 payable in monthly installments of $916.00 to be
paid without notice or offset, on the first day of each month during the
term beginning June 1, 2005 (the “License Fee”). The License Fee shall increase
by the percentage change in the Consumers Price Index on each anniversary
of the commencement date, but not less than two percent (2%) per year and
not more than five percent (5%) per year.
3. Term. The term of this License shall be 10 years
commencing April 1, 2005 and expiring March 31, 2015, subject to earlier
termination as provided below. There shall be no option to renew or extend
the term of the Agreement.
4. Lawful Use. The Licensee will utilize the Licensed
Premises in a lawful manner and in compliance with all laws, ordinances,
rules, regulations, permit requirements, orders and directives of any governmental
official, agency or entity of competent jurisdiction orders. including, without
limitation, the City’s zoning ordinance.
5. Assignment and Sublicensing. This License shall
not be assigned, nor shall any part of the Licensed Premises be sublicensed
by the Licensee to any person (including business entity) without the prior
written consent of the City in City’s sole and absolute discretion. Notwithstanding
the foregoing, so long as the adjacent property owned by Licensee (“Bil-Mar
Restaurant”) is used for a one or two story Restaurant and not for any other
purposes or uses and provided the Assignee has the financial ability to perform
the Licensee’s duties and obligations under this Agreement, Licensor shall
consent to the assignment of the License to the owner of the Bil-Mar Restaurant
(a “Permitted Assignee”). Any permitted assignment or sublicensing, except
to a Permitted Assignee, shall not relieve the Licensee from its covenants
and agreements under this Agreement, including without limitation, payment
of the License Fee, unless the City shall specifically in writing release
the Licensee from that requirement.
6. Acceptance of Premises. The Licensee has been
in possession of the Licensed Premises and accepts the Licensed Premises
on an “as-is” basis and acknowledges that such premises were in satisfactory
and acceptable condition on the possession date.
7. Taxes. The Licensee shall pay all real property
taxes or assessments, special or otherwise, levied or assessed on the Licensed
Premises during the term of this Agreement, including any taxes levied as
a result of the Licensee’s use of the Licensed Premises. Any taxes so assessed
shall be paid by the Licensee prior to the date on which they can no longer
be paid without penalties or interest. The Licensee shall also pay special
assessments, if any, on the real estate and other improvements as the same
become payable from time to time. However, if the special assessments are
payable in installments, the Licensee shall be responsible to pay only the
least required amount for installments which fall due during the term of
this Agreement.
8. Utility Services. The Licensee shall timely pay
(i.e., before the date on which they can no longer be paid without penalties,
interest or threatened disconnection) all gas, electricity, water and all
other public utilities used or consumed on said Licensed Premises during
the term of this License and it will have all such utilities provided in
the Licensee’s name and make all required deposits and further that all such
public utilities shall be metered by the Licensee’s own meters. The Licensee
will not, during the term of this License, suffer or permit any lien upon
said Licensed Premises on account of nonpayment of utility charges arid will
indemnify and hold the City free and harmless from the payment of any utility
charges during the term of this Agreement.
9. Repairs and Maintenance. As a condition of entering
into this License Agreement, Licensee shall during the term of this License
and at its sole cost and expense, keep the Licensed Premises in as good condition
and repair as they are at the commencement date of this Agreement, reasonable
wear and tear excepted. Such maintenance and repairs shall mean snow removal,
sand removal, landscaping and care of the grounds of the Licensed Premises
and parking lot maintenance such as sweeping, cleaning, striping and sealing
(every three (3) years). Nothing in this Agreement shall require the City
to make any capital improvements to or replacements of any portion of the
Licensed Premises. Nothing in this Agreement shall require the Licensee to
make any capital improvements to or replacements of any portion of the Licensed
Premises. The Licensee may not modify or alter the Licensed Premises without
the prior written consent of the City Manager.
10. Indemnity. Licensee shall hold the City (including
for purposes of this paragraph, its officers and employees) harmless from,
indemnify it for and defend it (with legal counsel reasonably acceptable
to the City) against any liability for damage, injury or other casualty and
costs or expenses, including reasonable attorneys’ fees, caused or arising
from any act, use or occupancy or negligence by or of the Licensee or any
of its agents, servants, visitors, licensees or employees occurring during
the term of this Agreement.
11. Insurance. The Licensee will procure, at its
sole cost and expense, commercial general liability and property casualty
insurance with insurance companies licensed to do business in the State of
Michigan and will maintain at all times during the term of the License Agreement
Commercial General Liability Insurance in a single limit amount of $1,000,000.
All policies shall name the City, including its officers and employees, as
an additional insured. Copies of certificates of insurance showing the coverage
to be in place, and that 30 days prior written notice to the City is required
in the event of cancellation, shall be provided to the City upon execution
of the Agreement.
12. Breach and Remedies. All remedies in this Agreement
are cumulative of all other remedies available at law or in equity. Remedies
may he exercised simultaneously or sequentially. The failure to initially
use any remedy is not a waiver of that remedy. To the extent not otherwise
prohibited by law, the prevailing party in any action brought pursuant to
or to enforce any provision of this Agreement shall, in addition to any other
remedies, be entitled to recover its actual costs, including without limitation,
actual reasonable attorneys fees, incurred to bring, maintain or defend such
action from the first demand through any and all appellate proceedings, and
jurisdiction and venue of any action brought pursuant to or to enforce this
Agreement shall be solely in the state courts in Ottawa County, Michigan.
The failure of either party to act upon any breach of this Agreement shall
not be deemed a waiver of that breach.
13. Termination.
(a) A closure of the Restaurant for a period
of six (6) months or longer unless building permits have been obtained for
renovation or replacement of the Restaurant (or a total of twelve (12) months
or longer if building permits have been obtained for renovation or replacement
of the Restaurant) shall result in automatic termination of the License without
notice of default or opportunity to cure.
(b) Use of the Bil-Mar Property for any purpose other than
or in addition to a one or two story Restaurant shall result in automatic
termination of the License without notice of default or opportunity to cure.
Providing any adult entertainment on the Licensed Premises is one example
of an additional use of the Premises.
(c) If Licensee shall fail to pay the License Fee within
seven (7) days after written notice from Licensor, the License shall terminate
and neither party shall have any further obligation to the other except for
indemnity under Paragraph 10, which, for events occurring expiration or termination
of this License, shall survive such expiration or termination.
14. Right of Entry. The City and its agents shall
have the right to enter the Licensed Premises at such reasonable times as
will not interfere with the Licensee’s use of the License Premises pursuant
to this Agreement.
15. Notices. Any notices, reports or statements
required to be served hereunder shall be sufficiently given if mailed by
certified United States mail, return receipt requested, addressed to City
and Licensee at their above stated respective addressed. Whenever notice
is to be given to Licensee hereunder, such notice shall also be given to
David L. Smith, McShane & Bowie, P.L.C., 1100 Campau Square Plaza, P.O.
Box 360, Grand Rapids, Michigan 49501-0360.
Notice shall be deemed to have been served one (1) day after the date of
attempted delivery.
16. Payment. If the Licensee is delinquent in the payment
of any taxes, insurance, utilities or other charges to be paid by the Licensee
under this Agreement, the City shall have the right, at its option, to pay
any such item. Upon such payment by City, said item shall be deemed as additional
License Fee due under this Agreement and shall be immediately due and payable
to the City.
17. Miscellaneous. This Agreement is written pursuant
to the laws of the State of Michigan and was made in Ottawa County, Michigan.
This is the entire agreement between the parties regarding its subject matter.
There are no prior or contemporaneous agreements. It may not be modified
or amended except in writing, signed by all parties. It shall not be affected
by any course of dealing. The captions are for reference only and shall not
affect its interpretation. The recitals, however, are an integral part of
this Agreement. More than one copy of this Agreement may be signed, but all
constitute but one agreement.
The parties have signed this Agreement as of the date first written above.
CITY OF GRAND HAVEN
By:
Roger Bergman, Mayor
By:
Howard Meyer, President PIRATES DEN, INC.
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06926 (161) 264824.04