1 LEASE
This Lease (“Agreement”) is made effective May 1, 2023 and is by and between the City of Marysville, a Municipal Corporation (“City”) and Highlands Community Charter School (“Lessee”).
RECITALS
The City owns a facility commonly known as Bryant Field (“Bryant Field”) which is located on real property (“Property”) at 1431 C Street in the City of Marysville, Yuba County, California and designated as Assessor’s Parcel Number 009-144-001.
Lessee desires to lease from the City, on a shared-use basis Bryant Field pursuant to this Agreement.
IN WITNESS WHEREOF, the parties agree as follows:
SECTION 1
Incorporation of Recitals
The foregoing recitals are not merely recitals but are contractual in nature and are incorporated into this Agreement.
SECTION 2
Definitions
In addition to the terms defined elsewhere in this Agreement, the following terms shall be defined as follows:
1. Rent - means the Rent as specified in Section 4 of this Agreement as well as other monetary obligations of the Lessee pursuant to this Agreement.
2. City - means City of Marysville.
3. Lessee - means Highlands Community Charter School.
4. Baseball Games - means all baseball games played at Bryant Field involving the Marysville League Drakes as a participant, including without limitation, all pre-season games, exhibition games, regular season games, post-season “playoff” games, and “all-star” games involving the Marysville Drakes as well as practice days reserved by the Marysville Drakes.
5. The Marysville Drakes - means the Baseball Club known by such name and sponsored by the Pecos League of Professional Baseball Clubs LLC.
2 6. Community Events - means any and all events promoted, sponsored and/or staged by City or on behalf of City.
7. Other Reserved Events - means an organized activity on a designated date(s), whether open to the public or reserved for private gatherings, other than baseball home games, or community events, which is booked, promoted, sponsored or staged by Lessee, including without limitation, concerts or other live and film performances or presentations festivals, fairs, tournaments, rallies and exhibitions as approved in advance by the City. Lessee has the exclusive right and obligation to manage and operate security and ushering services sufficient to control pedestrian traffic within Bryant Field and at the Property and adjacent area during all Other Reserved Events. Lessee shall obtain an approved safety plan from the City’s Chief of Police and adhere to the same for Other Reserved Events (which safety plan may differ from event to event depending on the nature thereof). Lessee shall not hold Other Reserved Events of a political nature.
SECTION 3
Terms of Shared Use Lease
The City leases to Lessee on the terms and conditions set forth in this Agreement to conduct other reserved events subject to the provisions stated herein.
Lessee shall conduct all activities at the Property in compliance with all laws.
Lessee shall have the right to use and occupy the Property for Other Reserved Events in compliance with the provisions of this Section.
The City anticipates that the Marysville Drakes will reserve baseball games in the Spring and Summer of each year in addition to the baseball home games presently scheduled to be played at Bryant Field at the Property. In addition to baseball home games, the City intends to promote, sponsor and/or stage community events. With the exception of baseball home games and community events, Lessee shall have the right to book, promote, sponsor and/or stage Other Reserved Events on condition that Lessee provide City a minimum of 60 days advance notice of Lessee’s proposed Other Reserved Event and obtains the City’s consent to same, which consent will not be unreasonably withheld.
SECTION 4
Rent and Other Consideration
1. Rent. Lessee shall pay to City monthly Rent of $2,000.00 per month payable in advance on the 1st day of each month. Rents shall commence on the 1st of the month following execution of this Agreement (the “Rent Commencement Date”). Rent shall increase 3% per year on the anniversary of the Rent Commencement Date such that the monthly Rent shall increase by 3% above the Rent in effect for the previous year. Should Lessee exercise the option to extend the term of this Agreement, the 3% annual increases shall continue through the Extended Term.
3 2. Ticket Sales and Pricing. In its sole discretion, Lessee shall set ticket prices and admission fees for Other Reserved Events.
3. General Public Parking. City agrees to make available on-street and off-street parking, at City’s discretion, for Other Reserved Events within a ten (10) minute walk of the Property.
Lessee is solely responsible for providing adequate parking attendants at all off-street private property locations where event parking is sanctioned. Lessee shall not close, block or restrict access to any City streets absent a separate written agreement with City concerning the closure or any other restricted access or use of City streets. Except that Lessee may cause C Street to be closed between 14th Street and 16th Street for its other reserved events provided it is in compliance with the other terms and provisions of this Agreement.
4. Media Rights. Lessee has the exclusive right to all radio and television broadcast, telecast, webcast, cablecast, video on demand and all other forms of media and distribution rights for Other Reserved Events and to retain all revenues generated thereby.
5. Utilities. The cost of utility services, namely the water, sewer, gas, electric, as well as trash and recycled product removal and any other services or utilities shall be the responsibility of Lessee to the extent the same are incurred with respect to Lessee’s use of the Property.
The City will invoice Lessee monthly for all utilities and Lessee shall pay an invoice for the same within fifteen (15) days of receipt of such invoice.
SECTION 5
Capital Improvements, Maintenance, Repairs and Operations
1. Security/Usher Services and Traffic Control. Lessee has the exclusive right and obligation to manage and operate security and ushering services sufficient to control pedestrian traffic within Property and vehicle parking attendants during Other Reserved Events.
2. Set-up and Clean-up for Other Reserved Events. Lessee shall have the exclusive right and obligation to manage and operate the Property during Other Reserved Events and shall, at its sole expense, clean the Property and all improvements therein and keep it in orderly condition. Lessee shall comply with all applicable federal, state and local laws, codes, ordinances, and regulations, including without limitation, ADA and access laws, waste management, recycling, county health and alcoholic beverage sales/license laws.
3. Lessee is Responsible for all Aspects of Maintenance and Repair. During the term of this Agreement in addition to its obligations under paragraph 2 (Setup and Cleanup for Other Reserved Events), Lessee is responsible at its sole expense to fully and completely maintain the Property and all City-owned facilities therein. These maintenance obligations are ongoing. Lessee shall be responsible for all aspects of maintenance and repairs to include without limitation any capital repairs and major maintenance of the Property and all Cityowned capital facilities therein. In addition to major maintenance of the Property and all City-owned capital facilities, Lessee shall be responsible for regular maintenance as well.
These obligations include clean-up of seating and concession areas and maintenance of 4 seats, public laboratories and restroom facilities, regular and routine maintenance of the HVAC, plumbing, electrical, water, sewage and onsite drainage systems.
As described above, Lessee is further responsible to maintain the facilities which are the subject of this Agreement in a fully operational condition such that the structures and facilities at the Property and all City-owned capital facilities therein shall be in at least as good or better condition at the end of this Agreement than the condition of such facilities on the effective date of this Agreement. Lessee’s obligations of maintenance, replacement and repair shall not take into consideration “reasonable wear and tear”. To the contrary, Lessee’s obligations require Lessee to maintain and repair the Property and all City-owned capital facilities at all times so as to negate the effects of “ordinary wear and tear”. Without limiting the generality of the foregoing, Lessee is responsible for capital replacement and repairs of the structure, structural members, foundations, footings, roof, balconies, floors, columns, steps, ramps, doors, windows, walls, fixed stadium seats and seating areas, fixed concession areas, water and plumbing systems, electrical systems and electrical lights (including light standards and field lighting/ballasts), pipes and mains, sidewalks, fencing, parking surfaces, the scoreboard and all integral components of the foregoing and all fences and fencing. Such major maintenance and repair responsibilities Lessee apply whether the major maintenance or repair is ordinary or extraordinary, foreseen or unforeseen, necessitated by wear and tear, obsolescence, or any other cause.
4. Discretionary Improvements. Lessee has the right, at its own expense, to make alterations and improvements to the Property as are reasonably necessary or appropriate for Lessee’s conduct of its business, subject to prior written approval by City and, once approved, such alterations or improvements are performed in a good and workmanlike manner by qualified personnel. Any necessary operations, maintenance and/or repairs relating to such alterations or improvements are the sole responsibility of Lessee, unless City first agrees in writing to accept responsibility. At the end of the term of this Agreement, any improvement installed by Lessee shall remain at the Property and shall be property of City.
Lessee shall obtain all required City permits prior to making any improvements. Lessee shall comply with applicable general plan, zoning and other requirements of the City regarding improvements they install.
SECTION 6
Term, Termination, Default, Remedies
1. Term and Option to Extend. The Term of this Agreement shall be 3 years commencing with the Rent Commencement Date on the 1st of the month provided Lessee is not in default under the Terms of this Agreement, Lessee shall have the option to extend this Agreement for an additional 3 years by providing written notice to the City no earlier than 6 months nor later than 2 months prior to the expiration of the Original Term.
2. By Destruction. In accordance with Section 7 of this Agreement, City may terminate this Agreement.
3. Default by Lessee. It shall be a default under this Agreement if any of the following occurs:
5 A. Lessee fails to pay the Rent, and any other costs, surcharges or other monetary obligations as required by this Agreement; or
B. Lessee fails to observe and comply with any other term, condition, covenant or agreement to be observed and complied with by Lessee under this Agreement.
4. Remedies. As to any monetary defaults or obligation of Lessee to pay any monies to City, such default shall continue uncured for a period of three (3) days after Lessee receives notice from City, City shall be entitled to terminate this Agreement. As to any default of Lessee of a non-monetary nature, if such default continues uncured for a period of three (3) days after Lessee receives notice from City specifying the nature of the default in reasonable detail (or such period if such default cannot be reasonably cured within such 3- day period, provided Lessee commences such cure within such 3-day period and thereafter diligently pursues such to completion), City shall have the right, in addition to any other remedy available hereunder, or at law, or in equity, to terminate this Agreement.
Termination of this Agreement shall not relieve Lessee of its obligation to make any monetary payment required of it pursuant to this Agreement (including the full payment of all license fees) nor shall Lessee’s obligations of indemnity, insurance and other obligations which would naturally survive termination be excused. All such obligations shall continue to be binding upon Lessee until such obligations have been performed and satisfied in full.
5. Lessee’s Right to Terminate for Loss of Funding Source. Lessee may, upon 90 days’ notice to City, terminate this Agreement in the event they lose their funding source for their operations.
SECTION 7
Damage or Destruction
1. In the event the Property is substantially or totally damaged or destroyed so as to be unfit for occupancy or use by Lessee as contemplated, City in its sole and absolute discretion may terminate this Agreement. In the event City elects to terminate this Agreement, it may give Notice of Termination which shall be effective immediately. Whether City elects to terminate this Agreement pursuant to this section, City shall have no liability to Lessee with respect to any losses or damage occasioned by Lessee due to such termination or due to any delays occasioned by the time of repair, construction/reconstruction of the Property facilities. Lessee shall obtain business interruption insurance or take such other financial precautions as it deems necessary for any losses which might arise from the destruction or substantial destruction of the Property.
6 2. Restoration of the Property. For termination of this Agreement other than for damage or destruction as described in paragraph 1 above (to include expiration of this Agreement according to its terms or termination occasioned by default), Lessee will return the Property to its original or subsequently improved condition, and shall return to City all equipment and tangible personal property owned by City, if any, in good working condition, or reimburse City for reasonable cost of repairing such damage and/or replacing such personal property.
SECTION 8
Indemnity; Insurance
1. Indemnity by Lessee. Lessee shall indemnify and hold City, and its representatives officers, directors, employees and agents free and harmless from any and all claims, suits, liens, demands, damages, injuries, liabilities, losses and expenses of any kind (including reasonable attorneys’ fees, expert witnesses and costs of investigation with regard to any claim, demand or action) to the extent they arise out of or are in any way connected with the performance of this Agreement by City, its agents, directors or employees or by Lessee, its agents, directors or employees whether such claims, liens, demands, losses or expenses are based upon a contract or upon a claim for personal injury, death, or property damage or upon any other legal or equitable theory whatsoever. Lessee agrees at its own expense and upon written request by City, to defend any claim, suit, action or demand brought against City on any injury, loss, or liability, actual or alleged covered herein.
Notwithstanding this defense obligation, Lessee shall not be required to indemnify City from loss or liability to the extent such loss or liability arises from the sole negligence or willful misconduct of City, its agents, directors and employees, at such time that such sole negligence or willful misconduct has been finally determined by a court of competent jurisdiction. Lessee shall provide City with a defense until such determination has been made (i.e., until a court of competent jurisdiction has finally determined that the loss or liability arises from the sole negligence or willful misconduct of City, Lessee shall provide a defense as to such loss or liability). Lessee’s obligations of defense and indemnity arise even if the claim is frivolous or lacking in merit. The defense indemnification obligations of this Agreement are undertaken in addition to, and shall in no way be limited by, the insurance obligations contained in this Agreement. The indemnification obligation is not limited in any way by any limitation on the amount or type of damages or compensation payable to or for Lessee or its agents under workers’ compensation acts, disability benefit acts or other employment benefit acts. The Lessee shall pay all costs that may be incurred by the City in enforcing this indemnity, including reasonable attorneys’ fees. Lessee’s indemnity obligations survive this Agreement.
Lessee’s duties to defend is separate and independent of its duty to indemnify. The duty to defend includes claims for which the City may be liable without fault of be strictly liable.
The duty to defend applies regardless of whether the issues of negligence, strict liability, fault, default or other obligation on the part of the City has been determined. The duty to defend applies immediately regardless of whether the City has paid any sums or incurred any detriment arising out of or relating (directly or indirectly) to any claims.
Notwithstanding the foregoing, the City on behalf of itself reserves the right to assume the 7 defense of any action, arbitration or proceeding against which Lessee may have an obligation to defend pursuant to this Agreement including the right to appoint counsel of its choice, without effecting Lessee’s obligation to indemnify for the cost of such defense.
Lessee shall be liable to the City for any loss or damage to City property arising from or in connection with Lessee’s performance hereunder.
2. Insurance Requirements.
A. Commercial General Liability. During the term of this Agreement, Lessee shall at all times maintain in full force and effect commercial general liability insurance in an amount determined as reasonably necessary from time to time by Northern California Cities Self-Insurance Fund (NCCSIF), a California joint powers agency, or City’s subsequent insurance carrier. At the commencement of this Agreement, the commercial general liability insurance shall be $2,000,000 minimum combined single limit and a general aggregate limit of at least $4,000,000. The policy shall cover bodily injury, property damage, personal injury and other covered loss however occurring during the policy term. The coverage shall be primary and any insurance maintained by City shall be excess insurance only. Such insurance shall contain endorsements: (a) deleting any employee exclusion on personal injury coverage; (b) including employees as additional insureds; (c) deleting any liquor liability exclusion; (d) providing for coverage of employer’s automobile nonownership liability.
The commercial general liability insurance policy shall provide coverage on an “occurrence” basis, including products and complete operations, property damage, bodily injury and personal and advertising injury. If a general aggregate limit applies, the general aggregate limit shall apply separately to this Agreement and the Property.
B. Automobile Liability. Lessee shall, during the term of this Agreement maintain coverage for automobile liability using ISO Form CA 00 01 covering any auto (Code 1), hired (Code 8) and non-owned automobiles (Code 9), with limits of no less than $1,000,000 per accident for bodily injury and property damage.
C. Property Insurance. During the term of this Agreement Lessee shall at all times during this Agreement maintain in full force and effect property insurance, special extended coverage or all-risk coverage insurance (including, but not limited to coverage for vandalism and malicious mischief) in the amount of 100% of the full replacement value of all improvements at the Property. Such policy shall contain a replacement cost endorsement and a stipulated amount endorsement. Lessee may maintain the required coverage by means of coverage obtained by City through City’s insurance carrier, which may change from time to time, for which Lessee shall reimburse City for coverage required during the Baseball Season. 8 D. Workers’ Compensation. During the term of this Agreement Lessee shall at all times maintain in full force and effect workers’ compensation insurance as required by the laws of the State of California. Lessee may be permissibly self-insured in accordance with applicable law.
E. Forms of Policies; Deductibles. All insurance policies required by this section shall provide for severability of interests; shall provide that an act or omission of one of the named or additional insureds shall not reduce or void coverage to the other named or additional insureds, shall not reduce or void coverage to the other named or additional insureds; and shall afford coverage for all claims based on acts, omissions, injury and damage, which claims occurred or arose (or the onset of which occurred or arose) in whole or in part during the policy period. All insurance policies required to be carried under this section shall be (a) written by companies rated A-VII or better in Best’s Insurance Guide and authorized to do business in California, and (b) name City, its officers, officials, employees and volunteers as additional insureds. Any deductible amounts in excess of $5,000 under any insurance policies required to be carried by Lessee by this section shall be subject to City’s prior written approval. Lessee shall be responsible for any such deductible amount, so that so far as City is concerned, it will be as if the insurance had no deductible.
Each insurance policy required above shall provide that coverage shall not be cancelled, except with no less than thirty (30) days prior notice to City.
Lessee hereby grants to City a waiver of any right to subrogation which any insurer of said Lessee may acquire against City by virtue of the payment of any loss under such insurance. Lessee agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not City has received a waiver of subrogation endorsement from the insurer.
City reserves the right to modify these insurance requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage or other special circumstances.
City, its officers, officials, employees and volunteers are to be covered as additional insureds on the commercial general liability policy with respect to liability arising out of work or operations performed by or on behalf of the Lessee including materials, parts or equipment furnished in connection with such work or operations.
General liability coverage can be provided in the form of an endorsement to the Lessee’s insurance (at least as broad as ISO Form CG 20 10 11 85 or both CG 20 10 and CG 20 37 forms if later revisions are used).
For any claims related to this Agreement, the Lessee’s insurance coverage shall be primary insurance as respect to City, its officers, officials, employees and volunteers. Any insurance or self-insurance maintained by City, its officers, 9 officials, employees or volunteers shall be in excess of Lessee’s insurance and shall not contribute to it.
F. Insurance Endorsements; Failure to Deliver. Lessee shall furnish City upon execution of this Agreement, and thereafter within 30 days prior to the expiration of each such policy, amendatory endorsements issued by the insurer carrier of each policy of insurance carried hereunder and such policy endorsement to verify the additional insured status of City. The endorsements shall expressly provide that the policy shall not be cancellable or subject to reduction of coverage or otherwise be subject to modification except after 30 days’ prior written notice to City. If Lessee shall fail to procure such insurance or deliver such endorsements, City may, at its option, and in addition to City’s other remedies in the event of default by Lessee under this Agreement procure the same for the account of Lessee, and the cost thereof shall be paid to City as an additional license fee. Failure to obtain and maintain the required endorsements prior to the commencement of the Baseball Season in 2023 shall not waive Lessee’s obligation to provide them. City reserves the right to require complete, certified copies of all required insurance policies, including endorsements required by these specifications, at any time.
SECTION 9
Sublicense or Assignment of Agreement
1. No Assignment or Sublicense. The license granted to Lessee is personal to Lessee and may not be assigned or sublicensed in whole or in part to any third party without the prior written consent of City, which City may withhold in its sole discretion.
2. No Release. Regardless of City’s consent, no sublicensing or assignment shall release Lessee of Lessee’s obligations or alter the primary liability of Lessee to pay the Rent and all monetary obligations under this Agreement and to perform all other obligations to be performed by Lessee hereunder, to include the indemnity and insurance obligations.
Consent to one assignment or sublicensing shall not be deemed consent to any subsequent assignment or sublicensing. In the event of any default an assignee of Lessee, or any successor of Lessee in the performance of any of the terms hereof, City may proceed directly against Lessee without the necessity of exhausting remedies against such assignee or successor. City may consent to subsequent sublicensing or assignment of this Agreement or amendments or modifications of this Agreement with assignees of Lessee, without notifying Lessee, or any successor of Lessee, and without obtaining its or their consent thereto, and such action shall not relieve Lessee of liability under this Agreement.
SECTION 10
Additional Agreements
1. Hazardous Materials. For purposes of this paragraph “Hazardous Materials” shall mean any substances or materials classified as hazardous materials, hazardous substances, hazardous waste or toxic waste under any federal, state or local statute, regulation or ordinance, including by not limited to any petroleum products and agricultural chemicals 10 used as pesticides or herbicides. Lessee shall not, and shall not permit any third party to, transport onto, store on or use on the Property any Hazardous Materials. Lessee shall not release or allow any third party to release any Hazardous Materials on any portion of Property. Lessee, at Lessee’s sold expense, shall conduct any and all investigation, cleanup and/or eliminate any and all Hazardous Materials released in violation of this paragraph
2. 2. Security. Lessee shall provide reasonable security personnel for Other Reserved Events and related operations conducted at the Property, and any other activities permitted by this Agreement.
3. Community Events. From time to time, as stated herein, City has the right to schedule City sponsored community events.
4. Additional Obligations of Lessee.
A. Lessee shall keep and maintain a valid business license issued by City during the term of this Agreement. Lessee must secure such permits, variances and licenses as may be necessary or desirable to operate its business as contemplated in this Agreement at its sole expense and obligation.
B. Lessee shall pay any possessory interest tax levied against the Property by the Assessor of Yuba County. Any taxes owing as a result of the private or commercial use of the Property are the sole expense of Lessee, including any subsequent taxes, levies or increases to existing taxes to which Lessee or its affiliates would be subject.
C. Lessee shall abide by all local ordinances, rules and regulations, and all State laws, pertaining to the operation of a baseball facility open to members of the public, including, but not limited to all such ordinances, rules, regulations and laws pertaining to health, fire, safety, the sale of food and beverages, and alcohol sales and consumption.
D. Cooperation to Protect Surrounding Neighborhood. Lessee agrees to cooperate with City to insure that Property is used in such a manner as not to produce undue annoyance to persons living in the neighborhood surrounding the Property.
Measures to be taken may include, but are not limited to, noise restrictions, hours during which the Property may not be used, crowd controls, parking restrictions, and related matters.
E. Access by City. Authorized personnel from City shall have reasonable access to the Property at all times during the term of this Agreement to ensure compliance with all the provisions of this Agreement. Such access does not provide the right to interfere with the on-going business operations of Lessee. 11 SECTION 11
NAMING RIGHTS
1. For the Term of this Agreement, Lessee shall have the right to name the stadium at the Property to include signage associated with such naming rights as approved in writing in advance by the City.
The name selected by Lessee shall be subject to the City’s approval, which approval shall not be unreasonably withheld, provided however, that “Bryant Field” must remain as part of the name selected by Lessee.
2. Future Departure of Marysville Drakes. In the event the Marysville Drakes cease to utilize the property to conduct baseball games in the future, Lessee shall have a first right to negotiate for a substitute baseball team. In the even the Drakes decline to enter into a license agreement to hold baseball games at Bryant Field, the City shall provide written notice to Lessee. Lessee shall, within fifteen (15) days of the date of such notice, advise the City in writing if it intends to negotiate to have a substitute baseball team hold baseball games at the Property. Should Lessee fail to request negotiation with the City within fifteen (15) days of the date the City notifies Lessee of its intention to negotiate to have a substitute baseball team or should the parties fail to reach an agreement within sixty (60) days of such notification, the City shall be free to negotiate with others concerning a substitute baseball team to hold baseball games at the Property. The City must approve the name of any successor team within its absolute discretion. Should Lessee advise the City of such intention, the parties agree to negotiate in good faith to reach an agreement for a substitute team to hold baseball games at the Property.
SECTION 12
MISCELLANEOUS
1. Rent Payable in United States Money. Rent and all other sums payable under this Agreement must be paid in lawful money of the United States of America,
2. No Partnership or Other Legal Entity Formed. By virtue of this Agreement no partnership, joint venture, or other legal entity is formed between the parties and neither becomes the guarantor or obligator of any debt, liability or obligation of the other.
3. Lessee’s Employees No employee, agent, contractor, or other person to the employ of one party shall be deemed to be in the employ of the other party.
4. No Independent Contractor. Neither City, nor Lessee, shall be independent contractors of one another pursuant to the terms of this Agreement.
12 5. No Liens or Encumbrances.
A. Lessee shall not permit to be enforced against the Property or any part of them, any mechanic’s, materialmen’s, contractor’s or subcontractor’s lien arising from any work of improvement, however it may arise. Lessee shall defend and indemnify City against all liability and loss of any type arising out of work performed at the Property by Lessee, together with reasonable attorneys’ fees and all costs and expenses incurred by city in negotiation, settling defending or otherwise protecting against such claims in the event of the breach by Lessee of the duty to defend or indemnify City.
B. If Lessee does not protect the Property from a lien or liens as provided in paragraph A, and a final judgment has been rendered against Lessee by a court of competent jurisdiction for the foreclosure for a mechanic’s, materialman’s, contractor’s or subcontractor’s lien claim, and if Lessee fails to stay the execution of the judgment by lawful means or to pay the judgment, City shall have the right, but not the duty, to pay or otherwise discharge, stay, or prevent the execution of any such judgment or lien or both. Lessee shall reimburse City for all sums paid by City under this paragraph, together with all City’s reasonable attorneys’ fees and costs, plus interest on those sums, fees and costs at the rate of 10% per year from the date of payment until the date of reimbursement.
6. Integrated Agreement; Amendments. This Agreement covers all matters concerning the use and occupancy of the Property by Lessee. All prior understandings, whether written or oral, shall be of no further force or effect. All amendments hereto shall be in writing, signed by both parties.
7. Notices. Notices to either party, and correspondence between them, shall be made by personal delivery, fax, overnight delivery (Federal Express or equivalent), or registered U.S. Mail.
To the extent a time limit is prescribed for the giving of any notice, such notice shall be deemed given:
A. Upon personal delivery.
B. Upon the sending of fax; provided another copy is provided by another method described above on the same day as the fax is sent.
C. At the time shown as the time received by the overnight delivery service or the U.S.
Postal Service.
The addresses, phone numbers and fax numbers of the parties are as follows. A party will promptly notify the other in writing of any changes.
13 City: Jim Schaad
City Manager
City of Marysville
526 C Street, P.O. Box 150
Marysville, California 95901
(530) 749-3901
(530) 749-3992 facsimile
With a copy to:
Rich, Fuidge, Bordsen & Galyean, Inc.
Attn: Brant J. Bordsen
City Attorney
1129 D Street
Marysville, California 95901
(530) 742-7371
(530) 742-5982 facsimile
Lessee:Highlands Community Charter School
Attn: Murdock Smith
Executive Director
1333 Grand Avenue
Sacramento, California 95838
(916) 844-2283
[email protected]
8. Authority. Each party represents that the person signing this Agreement on its behalf has been duly authorized to do so in accordance with all applicable laws pertaining thereto and that the signature of such person is to be construed as legally binding the party to the terms and conditions of this Agreement.
9. Binding on Heirs, Successors, and Assigns. This Agreement, and each term and condition of it, shall be binding on the heirs, successors, and assigns of the parties. Nothing in this subparagraph permits Lessee to assign or sublet all or any rights under this Agreement.
10. Modification; Waiver. Changes or modifications to this Agreement may be made by mutual written agreement of the parties. No change or modification shall be effective unless in a writing executed by the parties. No waiver shall be deemed given unless in writing, and one waiver shall not constitute a subsequent waiver.
11. Provisions are Covenants and Conditions. All provisions, whether covenants or conditions, on the part of Lessee shall be deemed to be both covenants and conditions.
12. Nuisance. Lessee shall not commit or permit the maintenance or commission of any nuisance within the Property.
14 13. Captions. The captions of the various sections or paragraphs of this Agreement are for convenience and ease of reference only and do not define, limit, augment or describe the scope, content or intent of this Agreement or of any part of this Agreement.
14. Number and Gender. The singular number includes the plural whenever the context so requires. The neuter gender includes the feminine and masculine, the masculine includes the feminine and neuter and the feminine includes the neuter and the masculine, and each includes corporation, partnership or other legal entity when the context so requires.
15. Severability. The unenforceability, invalidity or illegality of any provision shall not render the other provisions unenforceable, invalid or illegal.
16. Exclusive Representative. The parties agree that they shall each designate exclusive representatives for purposes of ongoing communications concerning this Agreement. Each party agrees that it shall not communicate with other persons concerning the subject matter of this Agreement except with the designated representatives of each party. In that regard the designated representative(s) for Lessee shall be Mike Reid, the designated representative for City shall be Dan Flores, Community Development Director. Either party may change its designated representative(s) by giving notice to the other party pursuant to Section 13 subdivision 7 of this Agreement.
17. Governing Law and Attorneys’ Fees. This Agreement shall be governed and construed in accordance with the laws of the State of California. If this Agreement gives rise to a dispute, lawsuit or other legal proceeding between the parties hereto, the prevailing party shall be entitled to recover its court costs and reasonable attorneys’, expert fees in addition to any other relief to which such party may be entitled.
18. Authority. Each individual executing this Agreement on behalf of Lessee represents and warrants that he is duly authorized to execute and deliver this Agreement on behalf of Lessee.
19. Time is of the Essence. Time is of the essence in performance of this Agreement.
20. No Third-Party Beneficiaries. Except as specifically provided in this Agreement, nothing in this Agreement is intended to create any third-party benefit.
21. Severability. If any provision of this Agreement or the application of any provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable to any extent, the remaining provisions of this Agreement and the application of it will remain in full force and will not be affected, impaired or invalidated.
22. Identification of Lessee’s Owners. Concomitantly with execution of this Agreement, Lessee shall provide City with a list setting forth the identity of every person, firm or other entity holding an ownership interest in Lessee.
15 23. Signage. The use of digital or electronic billboard signage is not currently permitted at the Property. The City reserves the right (assuming it acquires the rights to do so) to locate a digital/electronic billboard on the back of the scoreboard (or other appropriate location outside of Bryant Field on the Property).
Lessee shall not erect any billboards or signage on the outside of the stadium at Bryant Field absent the City’s advance written consent to do so.
24. Recorded Memorandum. Following execution of this Lease, the City shall cause a memorandum thereof in the form shown on attached Exhibit A to be recorded with the official records of the County of Yuba.
25. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together, when signed by all the parties hereto, shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement, effective on the date set forth below.
Date: ___________________ CITY:
CITY OF MARYSVILLE, a municipal corporation
By: ______________________________________
_____________________, its ___________
Attest:
________________________
City Clerk
LESSEE:
HIGHLANDS COMMUNITY CHARTER SCHOOL
Date: ___________________ By: ________________________________ ___________________, its ________________ Murdock Smith Executive Director/CEO 6/16/23
16 Recording Requested By and
When Recorded Return To:
Nicole Moe, City Clerk
City of Marysville
526 C Street
Marysville, CA 95901
______________________________________________________________________________ (space above line for recorder’s use only)
MEMORANDUM OF LEASE
THIS MEMORANDUM OF LEASE (“Memorandum”) dated as of _______ is entered into between the City of Marysville (“City”) and Highlands Community Charter School (“Lessee”)
RECITALS
A. On or about May 1, 2023, City and Lessee entered into that certain Lease, pursuant to which City leased to Tenant and Tenant leased from Landlord, on a shared possession basis, real property, more particularly described as 1431 C Street in the City of Marysville, Yuba County, California and designated as Assessor’s Parcel Number 009-144-001 (“Premises”).
B. City and Lessee desire to execute this Memorandum to provide constructed notice of Tenant’s rights under the Lease to all third parties.
NOW THEREFORE FOR GOOD AND VALUABLE CONSIDERATION the receipt and adequacy of which are hereby acknowledged, the parties agree as follows:
1. Term. City leases to Lessee for a term of three (3) years, with a three (3) year option to extend.
2. Lease Terms. The Lease of the Premises to Lessee is pursuant to the Lease which is incorporated in this Memorandum by reference.
3. Assignment. Lessee’s rights and obligations under the Lease shall not be assigned without City’s prior written consent, and any assignment without this consent shall be void.
4. Successors and Assigns. This Memorandum and the Lease shall bind and inure to the benefit of the parties and their respective heirs, successors and assigns, subject, however, to the provisions of the Lease on assignment.
EXHIBIT A
17 5. Governing Law. This Memorandum and the Lease are governed by California law.
DATE: _________________ HIGHLANDS COMMUNITY CHARTER SCHOOL, Lessee
By: __________________________________
its ______________________________
DATE: _________________ CITY OF MARYSVILLE
By: __________________________________
its ______________________________
ATTEST: _________________
City Clerk
6/16/23
Executive Director/CEO