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HomeMy WebLinkAboutAgr 2013-06-10 (Sam's Anchor Cafe) (2)AGREEMENT REGARDING MAINTENANCE OF DOWNTOWN TIBURON PUBLIC RESTROOM FACILITIES THIS AGREEMENT, made and entered into this Io`- "day ofT0,%_k 2013, by and between the TOWN OF TIBURON, a municipal corporation ( "Town ( "Sam's "). ") and Sam's Anchor Cafe, an LLC RECITALS A. Sam's is the owner of certain property located at 27 Main Street, Tiburon, CA, which property is described in Exhibit A, attached hereto and incorporated herein by reference ( "Sam's Premises "). B. For over twenty years, the Town, Sam's and other parties have shared the benefit of certain public restroom facilities located at 23 -25 Main Street in Tiburon, shown on Exhibit B as Parcel C and described in more detail on Exhibit C ("Premises "). Exhibits B and C are attached hereto and incorporated herein by reference. The improvements on the Premises are aging and in need of significant renovation. C. The Premises are currently subject to a lease dated March 5, 1996 ("Existing Lease ") between Zelinsky Properties ( "Landlord ") and the State of California ( "State "), which includes the right to access the Premises by an adjacent hallway show as Parcel A on Exhibit A ( "Hallway "). The Hallway is separately leased by Sam's, which has maintained the Premises and Hallway throughout the term of the Lease, with financial contributions from the Town and other parties. D. The Lease will terminate on June 30, 2014 and the State does not intend to renew it. The Town is currently negotiating with the Landlord to lease and remodel the Premises. These negotiations may result in the early termination of the Existing Lease as ofthe effective date of the proposed lease between the Town and Landlord ("Town Lease "). E. In consideration of the benefit that Sam's would realize from continued access to the restroom facilities on the Premises, which will be increased substantially by the proposed renovations, Sam's and the Town have agreed to share responsibility for the Premises as set forth here. AGREEMENT 1. This Agreement shall take effect on the effective date ofthe Town Lease ("Effective Date "). 2. Sam's Obligations. A. Within 10 (ten) days of the Effective Date, Sam's shall pay the Town $5000 (five thousand dollars) as a one -time contribution to the Town's renovation of the Premises Page 1 B. Within 90 (ninety) days of written notice of the anticipated completion by Town of the Town Project, Sam's will clean, repair and paint the Hallway, using white or a light color paint and replacing the light fixtures therein, to make it a more attractive accessway for the Premises. C. Sam's will at all times keep the Premises and Hallway in a clean, safe and sanitary condition, free from trash, garbage or debris of any kind and in full compliance with all state and local laws governing sanitation, public health, safety or welfare. D. Sam's shall perform all housekeeping activities necessary and appropriate to keep the Premises and Hallway clean, neat and orderly, including, without limitation, sweeping, vacuuming, dusting, mopping, wiping, washing, hosing and other general cleaning of the doors, walls, floors, ceilings, windows and fixtures and replacing non - functioning light bulbs. E. For purposes of this Agreement i. A "Major Repair" shall mean an individual repair that costs more than $1000, which amount shall be increase by 2% (two percent) each anniversary of this Agreement. All other repairs shall be Minor Repairs. ii. A "Major Replacement" shall mean the replacement of an entire toilet, sink or urinal. All other replacements shall be Minor Replacements. F. Sam's shall be responsible for keeping the Premises and its fixtures in good repair including promptly fixing plumbing problems that arise, replacing light bulbs, and making other Minor Repairs and Minor Replacements. G. Sam's shall supply all cleaning chemicals, equipment and tools necessary and appropriate to perform the housekeeping activities described in this section. H. Sam's shall supply all materials and supplies customarily used in public restrooms, including, without limitation, toilet paper, paper towels, soap, tissue toilet seat covers and light bulbs and ensure that the restrooms themselves are appropriately stocked on a daily basis. I. Sam's shall lock the Premises each night when the Sam's Anchor Cafd closes - fore, business (or 9:00 p.m. if Sam's is not open), and open them each morning lby 7:00 a.m. J. Sam's shall notify the Town promptly if the Premises require a Major Repair or Major Replacement. Town's Obligations. A. During the term of this Agreement, the Town shall use the Premises for public restroom Page 2 facilities and customary accessory uses_ B. Town shall be responsible for all payments due to the Landlord under the Town Lease. including, without limitation, rent, all water and other utility charges, insurance costs and real and personal property tax payments. C_ Town shall be responsible for Major Repairs and Major Replacements, as defined in Section 3 of this Agreement. 4. Mutual Indemnities. A. The Town will indemnify, defend and hold Sam's harmless against any and all claims, damages and expenses (including, without limitation, attorneys fees), liabilities and judgments relating to injury to persons, loss of life or damage to property arising from the alleged active negligence or willful misconduct of Town or from its failure to perform its duties under this Agreement. B. Sam's will indemnify, defend and hold the Town harmless against any and all claims, damages and expenses (including, without limitation, attorneys fees), liabilities and judgments relating to injury to persons, loss of life or damage to property arising from Sam's alleged active negligence or willful misconduct or from Sam's failure to perform its duties under this Agreement. C. As used in this Section, "Town" and "Sam's" shall include the named party's agents, employees, officials and contractors. 5. Miscellaneous. A. Governing Law. The laws of the State of California shall govern this Agreement. In the event that a dispute arises under this Agreement, the venue for resolving said dispute shall be the County of Marin. B. Severabili ty. If any provision of this Agreement is found to be invalid or unenforceable, the validity and enforceability of the remaining portions shall not be affected unless the effect thereof would materially change the economic burden on either party. C. Successors in Interest Assignment. This Agreement is intended to run with the land with respect to the Sam's premises and be binding on the assigns and successors in interest to both parties. Notwithstanding the forgoing: i. Sam's shall have no obligations under this Agreement during any period of six months or more during which there is no restaurant on Sam's Premises. ii. In the event that the Town ceases to use the Premises for public restaurants, this Agreement shall terminate and be of no further force and effect. Page 3 D. Entire Agreement, Amendment. This Agreement represents the entire Agreement between the parties. This Agreement may only be amended in writing. IN WITNESS WHEREOF the parties hereto have caused their duly authorized representatives to execute this Agreement the day and year above written. Anchor 1 By Steve Sears Its: Owner APPROVED AS TO FORM: Ann R. Danforth, Town Attorney Ken Downs, Attorney for Sam's Page 4 TOWN OF TIBURON By: Margaret A. Curran Its: Town Manager