Attachment #1
LEASE AGREEMENT
State of California
County of Yuba
City of Marysville
This Lease Agreement (the "Lease") is made and entered into as of May 1, 2023, by and between the City of Marysville, hereinafter referred to as the Lessor, and Heather Thompson dba The Brick Coffee House, hereinafter referred to as the Lessee.
RECITALS
A)
Lessee desires to lease the premises for the purposes of providing outdoor restaurant dining and entertainment activities.
The parties desire to enter into a Lease Agreement defining their rights, duties and liabilities relating to the premises.
In consideration of the mutual covenants contained herein, the parties agree as follows:
Subject and Purpose:
Lessors agree to lease, subject to Lessee's use described in Paragraph 4 below, a portion of the public contained in this Lease.
2. Terms and Rent:
Lessee agrees to lease the above-described premises for a term of five (5) years commencing on May 1, 2023. Rent for months 1 through 12, inclusive, shall be the sum of $200 per month. Rent shall be paid monthly and shall be due and payable on the first of each month. Rent shall increase annually commencin a the month of May each year and shall increase by 3% above the amount of rent in effect for the previol The monthly rental payments shall be paid in lawful money of the United States of America and shall be paid without deduction or offset to the City of Marysville at 526 C Street, Marysville, CA 95901, Attention: City Manager, or as otherwise directed by Lessor in writing. Lessee recognizes that this Lease is temporary, and the Lessee may be required to vacate the Lessor' property at any time.
In addition to the rent payments called for in this Section, Lessee shall have the obligation to make other payments as called for in this Leese, including without limitation, the maintenance and repair obligations specified herein.
If Lessee fails to pay the Rent within five (5) days after the due date, Lessee agrees that it would be impracticable or extremely difficult to fix the actual damage to Lessor caused by that failure and therefore agrees to pay a late charge of FIFTY DOLLARS ($50.00) plus interest at ten percent (10%) per annum commencing on the date on which the delinquent amount was due. The amounts due under this Section are in addition to and not in lieu of any other remedies of Lessor.
1 3. Lease Renewal:
Lessor grants Lessee the first option to negotiate a renewal of this Lease at the end of its term for an additional term of five (5) years. Lessee shall notify Lessor in writing not less than 120 days prior to the expiration of this Lease if Lessee desires to negotiate an extended term to this Lease. The parties agree that in the event such timely notification is made, that they shall enter into good faith negotiations for the renewal of the Lease. In the event the parties are unable to come to an agreement as to the amount of rent and other terms of renewal, Lessor agrees that it shall not offer the property to any other party for a period of 90 days following expiration of this Lease unless the terms offered to other prospective Lessees within said 90 day period are at least as favorable to Lessor as the terms offered to Lessee herein.
4. Use:
It is contemplated that Lessee will operate on the premises solely for the purpose of providing outdoor seating for Lessee's restaurant. Non-amplified outdoor entertainment on Lessor land between the hours of 7 a.m. and 10 p.m. daily shall be permitted and prohibited at all other times. Amplified outdoor entertainment shall be prohibited on Lessor land at all times. Lessee's use of the Lessor's land is subject to all Applicable Requirements. Lessee shall obtain Lessor's prior written approval for any proposed improvements or uses to the Lessor's land (including design review and use permit approval), shall comply with all planning, building and fire regulations if fences or gates are installed and shall insure that outdoor use complies with applicable zoning code regulations of the City of Marysville. Lessee shall permit Lessor and its agents and employees to enter upon the property at any time and from time to time during the term of this Lease in order to inspect the same or to perform any other public duty or responsibility of the Lessor. Lessee may expand the outdoor seating square footage beyond the 1,640 square feet as shown in Exhibit A with the prior written approval of the Lessor. The rent to be charged for any expanded area will be negotiated at the time a formal written request to expand the outdoor seating area is made by Lessee.
5. Utility Bills:
Except as the parties may otherwise agree to the contrary in writing or in an exhibit or addendum to this Lease, Lessee shall pay all utility bills incurred by it, including telephone, water, gas, electricity, fuel, heat and
6. Taxes:
Lessee shall pay all applicable real estate and personal property taxes, possessory interest taxes, business or license taxes or fees, service payments in lieu of such taxes or fees, annual or periodic license or use fees, excises, assessments, bonds, levies, fees or charges, general and special ordinary and extraordinary, unforeseen as well as foreseen, of any kind which are assessed, levied, charged, confirmed, or imposed by any public authority upon the Lessor's property, its operations or the Lease.
7. Maintenance:
Lessee shall, at its sole cost and expense, keep and maintain the leased premises in good and sanitary order, condition and repair including adjacent sidewalks. Lessee shall, at its sole cost and expense, furnish all labor, equipment and expenses necessary for the operations and maintenance of the leased premises, including storm drainage facilities. Lessor shall have absolutely no obligations to repair or maintain all or any portion of the leased premises. Should Lessee fail to perform any maintenance or repair specified in this Section, Lessor may, following the giving of ten (10) days' notice to Lessee, in writing, specifying the repairs to be made, Lessee's covenants under this Lease Agreement.
8. Default:
If Lessee is in default under this Lease, Lessor may pursue any and all available remedies, including the immediate termination of this Lease. A default is defined as an uncured violation of any term of this Lease within 5 days after notice is given from Lessor to Lessee. Upon any such termination, or any other termination or mutual cancellation hereof, Lessee shall tum over the leased premises to Lessor and proceed with site restoration pursuant to Section 19.
2 9. Free from Liens:
Lessee shall pay when due all claims for labor and materials furnished or alleged to have been furnished to or for Lessee at or for use in, on or about the leased premises, which claims are or may be secured by any mechanic's or materialmen's lien against the leased premises. Lessee shall give Lessor not less than 10 days' notice prior to the commencement of any work, and Lessor shall have the right to post notices of non- responsibility in or on the leased premises as provided by Applicable Requirements. If Lessee shall, in good faith, contest the validity of any such lien, claim or demand, then Lessee shall, at its sole expense, defend and protect itself, Lessor, and the leased premises against the same and shall pay and satisfy any adverse judgment that may be rendered thereon before the enforcement thereof against Lessor, the leased premises or any interest therein. If Lessor shall require, Lessee shall furnish to Lessor a surety bond satisfactory to Lessor in an amount equal to one and one-half times such contested lien claim or demand, indemnifying Lessor against liability for the same as required by law to bold free from the effect of such lien or claim the leased In addition, Lessor may require Lessee to pay Lessor's attorneys' fees and costs in participating in such action if Lessor decides it is to Lessor's best interest to do so.
10. Indemnification and Hold Harmless:
Lessee agrees to indemnify and hold harmless the Lessor, its officers, officials, employees and volunteers from any and all liability, loss or damage Lessor may suffer as a result of claims, demands, costs or judgments against it arising from Lessee's use of the subject property, including any claims of "dangerous condition" of property and said indemnification shall extend to claims for property damage and for injuries (including death which may arise from or in connection with Lessee's -operation and use of the leased premises, including any claims of a "dangerous condition" existing on said premises, except where caused by the sole negligence, or willful misconduct of the City.
Lessee agrees to hold the Lessor harmless from any claims, which it may have in addition to claims of third parties, except where caused by the active negligence, sole negligence, or willful misconduct of the City.
The indemnity and hold harmless obligations under this Agreement extend to and include in addition to the borne by Lessee irrespective of whether a legal action is filed by the claimant).
The indemnity and bold harmless provisions of this Agreement shall commence on the date of execution of this Lease and shall continue in full force and effect until this Lease is terminated, provided however, that the Lessee's obligations to defend and indemnify as to the claims which arose during the original or any extended term of this Lease shall continue with respect to such claims until they have been fully and finally resolved.
Lessee agrees to notify Lessor in writing within two (2) days of any claim made against Lessee on the obligations indemnified against. The indemnity obligations survive the expiration or earlier termination of this Agreement.
11. Waiver:
The waiver by either party of any breach of any term, condition, or provision herein contained shall not be deemed to be a waiver of such term, condition, or provision, or any subsequent breach of the same, or any other term, condition, or provision contained herein.
12. Compliance with Laws:
Lessee shall promptly comply at its sole cost with all federal, state, county, Lessor or local governmental agency laws, statutes, cod es, ordinances, standards, rules, regulations, requirements and orders, covenants and restrictions of record, life and fire safety and similar requirements and requirements of any fire insurance underwriters or rating bureaus, now in effect or which may come into effect at any time (collectively "Applicable Requirements"), relating in any manner to the leased premises. The Applicable Requirements shall include the Americans with Disabilities Act of 1990, 42 U.S.C. $ 12101 et seq., as amended. and the California Environmental Quality Act of 1970, California Public Resources Code§ 21000, et seq., as amended.
13. Waste; Nuisances:
Lessee shall not commit, or suffer to be committed, any waste upon the leased premises; nor shall Lessee 3 maintain or suffer to be maintained, any nuisance or any other act or thing which may disturb the enjoyment or use of any other lands or public rights of way adjacent to the leased premises.
14. Insurance:
Lessee shall procure and maintain for the duration of this Agreement insurance against claims for injuries to persons or damages to property, which may arise from or in connection with Lessee's operation, and use of the leased premises. The cost of such insurance shall be borne by Lessee. Lessee further agrees to comply with the Lessor's "Insurance Requirements for Lessees" as set forth herein.
Lessee shall procure and maintain for the duration of the Agreement insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the Agreement by Lessee, its agents, representatives, employees or subcontractors.
This Agreement identifies the minimum insurance levels with which Lessee shall comply; however, the minimum insurance levels shall not relieve Lessee of any other performance responsibilities under this Agreement (including the indemnity requirements) and Lessee may carry, at its own expense, any additional insurance it deems necessary or prudent.
14.1 Minimum Scope of Insurance. Coverage shall be at least as broad as:
1. Insurance Services Office Commercial General Liability coverage (occurrence Form CG 00 01) or Insurance Services Office Form (CG 00 09 11 88 Owners and Contractors Protective Liability Coverage Form - Coverage for Operations of Designated Contractor).
Insurance Services Office Form Number CA 0001 covering Automobile Liability, Code 1 (any auto).
Workers' Compensation insurance as required by the State of California and Employer's Liability Insurance.
Minimum Limits of Insurance - Lessee shall maintain limits no less than the following:
14.1.2 General Liability: (including operations, products and completed operations): $2,000,000 er occurrence for bodily injury, personal injury and property damage. It Commercia general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit.
14.1.2 Automobile Liability: $2,000,000 per accident for bodily injury and property damage.
14.1.3 Workers' Compensation: As required by the State of California.
14.1.4 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 satisfactory to the City guaranteeing payment of losses and related investigations, claim
14.2 Other Insurance Provisions.
14.2.1 The City, its officers, officials, employees and volunteers are to be covered as insured with respect to liability arising out of automobiles owned, leased, or hired or borrowed by or on behalf of Lessee; and with respect to liability arising out of work or operations furnished in connection with the Agreement. General liability coverage can be provided in the form of an endorsement to Lessee's insurance or as a separate owner's policy. 4 14.2.2 For any claims related to this Agreement, Lessee's insurance coverage shall be primary insurance as respects the City, its officers, officials, employees, and volunteers. Any insurance or self-insurance maintained by the City, its officers, officials, employees, or volunteers shall be excess of Tenant's insurance and shall not contribute with it.
Each insurance policy required by this clause shall be endorsed to state that coverage shall not be canceled by either party, except after thirty (30) days prior written notice has been provided to the City via certified mail with return receipt.
14.3 Waver of Subrogation. Lessee hereby agrees to waive subrogation which any insurer of Lessee may acquire from Lessee by virtue of the payment of any loss. Lessee agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation.
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14.4 Qualifications of Insurers. All insurance companies providing coverage to Lessee shall be insurance organizations authorized by the Insurance Commissioner of the State of California to transact the business of insurance in the State of California, and shall have an A.M. Best's rating of not less than "A:VII".
14.5 Verification of Coverage. Lessee shall furnish the City with original certificates and amendatory endorsements affecting coverage required by this clause. The endorsements should be on forms provided by the City or on other than the City's forms, provided those endorsements or policies conform to the requirements. The City reserves the right to require complete, certified copies of al required insurance policies, including endorsements affecting the coverage required by these specifications at any time.
14.6 Contractors. Lessee shall require and verify that any of its contractors maintain insurance meeting all the requirements stated herein.
15. Hazardous Materials Prohibited:
(a) Lessee shall not (before, during or after the term of this Lease) cause or permit any Hazardous Material (as defined in Section 25(b) below) to be brought, kept, used, generated, released or disposed in, on, under or about the leased premises by Lessee, or its members, agents, employees, contractors or invites in violation of Applicable Requirements. Lessee shall indemnify Lessor from and against any breach by Lessee of the obligations stated in the preceding sentence, and agrees to defend (with legal counsel acceptable to Lessor) and hold Lessor harmless from and against any and all claims, liability, losses, damage, costs and expenses (including diminution in value of the leased premises, or any portion thereof, damages for the loss or restriction on, and sums paid in settlement of claims, fines, penalties, attorneys' fees, and expert's fees) which arise during or after the term of the Lease as a result of such breach. This indemnification of Lessor by Lessee includes death of or injury to person, damage to any property or the environment and costs incurred in connection with any investigation of site conditions and any cleanup, remedial, removal, or restoration work required by and federal, state or local governmental agency or political subdivision because of any Hazardous Material present in, on, under or about the leased premises (including soil and water contamination) which results from such a breach. Without limiting the foregoing, if the presence of any Hazardous Material in, on, under or about the leased premises caused or permitted by Lessee (before, during or after the term of this Lease) results in any contamination of the leased premises, Lessee shall promptly take all actions at its sole expense as are necessary to return the same to the condition existing prior to the introductions of such Hazardous Material; provided that Lessor's approval of such actions, and the contractors to be used by Lessee in connection therewith, shall first be obtained. This indemnification of Lessor by Lessee shall survive the expiration or sooner termination of the Lease.
5 (b) As used in the Lease, the term "Hazardous Material" means any hazardous or toxic substance, material, or waste which is or becomes regulated by any local governmental authority, the State of California or the United States Government. The term "Hazardous Material includes, without limitation, any substance, material or waste which is (i) defined as a "hazardous waste" or similar term under the laws of the jurisdiction where the leased premises is located; (ii) designated as a "hazardous substance" pursuant to Section 311 of the Federal Water Pollution Control Act (33 U.S.C. § 1317); (ili) defined as a "hazardous waste" pursuant to Section 1004 of the Federal Resource, Conservation and Recovery Act, 42 U.S.C: $ 6901 et seg. (42 U.S.C: § 6903); (iv) defined as a "hazardous substance)) pursuant to Section 101 of the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. § 9601 et seq. (42 U.S.C. § 9601); (v) hydrocarbons, petroleum, gasoline, crude oil or any products, by-products or fractions thereof; or (vi) asbestos in any form or condition.
16. Destruction of or Damage to Premises
If the premises are totally destroyed by storm, fire, lightening, earthquake, or other casualty Lessor shall have the option of rebuilding the premises, in which event Lessee's obligations to make rental payments shall cease from the time of destruction until the premises are again ready for occupancy. The term of this agreement shall be extended for a period of time equal to the time that the Lessee was no longer in possession of the premises (i.e., from the time of the destruction until the time that the premises have been rebuilt and are again ready for occupancy). If the Lessor chooses not to rebuild the premises, then the Lessor may, by notice to Lessee, terminate this agreement.
17. Assignment and Subletting:
Lessee shall have no right to assign or otherwise transfer or convey all or any of Lessee's rights or interests under this Lease without the prior written approval of Lessor, which may be reasonably withheld.
18. Attorney's Fees:
In case suit should be brought for recovery of the premises, or for any sum due hereunder, or for any breach or any act which may arise out of the possession of the premises, by either party, the prevailing party shall be entitled to all costs incurred in connection with such action including reasonable attorneys' fees.
19. Surrender of Premises and Removal of Fixtures:
At termination of this Lease, Lessee shall surrender the premises and keys thereof to Lessors in same condition as at commencement of term, ordinary wear and tear only expected. Lessee may, if not in lefault hereunder prior to the expiration hereof, remove all fixtures and equipment which it has place n the premises, provided Lessee repairs all damages to premises caused by such remova
20. Notices:
Any notices given pursuant to this lease shall be in writing and sent by registered or certified mail to:
A) Lessor's Address: City of Marysville
526 C Street
Marysville, CA 95901
B) Lessee's Address: Heather Thompson
316 D Street
Marysville, CA 95901
6 21. Definitions!
Lessors: As used in this Lease shall include all the Lessors officers, employees, representatives, assigns and volunteers.
Lessee: Shall mean Heather Thompson dba The Brick Coffee House.
Lessor and Lessee include singular and plural, corporation, partnership, or individual, as may be appropriate for the particular parties.
22. Holding Over:
Lessee has no right to use or retain possession of the leased premises or any part thereof beyond the expiration or earlier termination of this Lease. If Lessee remains on the leased premises or any part thereof after the expiration or earlier termination of this Lease, Lessee shall pay Lessor a lease fee equal to $1,000 per month, together with all other sums due under this Lease; for the entire period of Lessee's wrongful holding over. If Lessee fails to fully surrender the leased premises or any part thereof upon the expiration or termination of this Lease despite Lessor's demand to do so, Lessee shall indemnify, defend, protect and hold Lessor harmless from all claims, losses, costs, expenses, damages and liabilities, including attorneys' fees, Lessor incurs as a result of Lessee's failure to surrender.
23. Entry:
Lessor shall have the right to enter the leased premises for inspection or otherwise, except in the case of an emergency, entry shall be made during normal business hours and on at least forty-eight (48) hours' prior notice. In the case of an emergency or Lessee's abandonment or surrender of the leased premises, Lessor may enter the leased premises at any time without obtaining Lessee's prior consent. Lessee agrees not to change the locks to the leased premises without the prior consent of Lessor and without providing Lessor with a key to the locks.
24. Amendment:
This Lease may not be amended or altered except by an instrument in writing executed by Lessor and Lessee.
25. Partial Invalidity:
Any provision of this Lease that is unenforceable or invalid or the inclusion of which would adversely affect the validity, legality, or enforcement of this Lease shall have no effect, but all the remaining provisions of this Leases hall remain in full force.
26. Integration:
This Lease and the attached exhibits contain the entire agreement between the parties regarding the subject matter of the Lease, and this Lease expressly supersedes all previous or contemporaneous agreements, understandings, representations, or statements between the parties regarding those matters.
27. Governing Law:
The validity, meaning, and effect of this Lease shall be determined in accordance with California law.
28. Counterparts:
This Lease may be executed in one or more counterparts, each of which shall be deemed an original and all of which taken together shall constitute one and the same instrument.
29. Further Assurances:
Whenever requested to do so by the other party, each party shall execute, acknowledge, and deliver any further conveyances, agreements, confirmations, satisfactions, releases, powers of attorney, instruments of further assurance, approvals, consents, and any further instruments and documents as may be necessary, 7 expedient, or proper to complete any conveyances, transfers, sales, and agreements contemplated by this Lease. Each party also agrees to do any other acts and to execute, acknowledge, and deliver any documents requested to carry out the intent and purpose of this Lease.
30. Third Party Rights:
Nothing in this Lease, express or implied, is intended to confer upon any person, other than the parties and their respective successors and assigns, any rights or remedies under or by reason of this Lease.
31. Binding Agreement:
This Lease Agreement and each term and condition contained herein, shall be binding on the heirs, successors, transferees of the parties, and any other person or entity claiming through such parties.
The foregoing constitutes the entire Agreement between the parties and may be modified only in writing.
IN WITNESS WHEREOF, we the undesigned hereby execute this Lease and acknowledge having read the foregoing prior to execution and having received a copy thereof.
CITY OF MARYSVILLE HEATHER THOMPSON dba THE BRICK
HOUSE
By: _
Chris Branscum, its Mayor Title:
ATTEST: Business License #:
By: TaxID No: 85-134552
Nicole Moe, City Clerk