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HomeMy WebLinkAboutAgr 2013-06-10 (Sam's Anchor Cafe)AGREEMENT REGARDING MAINTENANCE OF DOWNTOWN TIBURON PUBLIC RESTROOM FACILITIES THIS AGREEMENT, made and entered into this 1� "day of mss .. , 2013, by and between the TOWN OF TIBURON, a municipal corporation ("Town ") 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 of the 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. i AGREEMENT 1. This Agreement shall take effect on the effective date of the 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 L A "Maj or 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 Cafe closes -forte, .. business (or 9:00 p.m. if Sam's is not open), and open them each morning y 7:00 a.m. J. Sam's shall notify the Town promptly if the Premises require a Major Repair or Major Replacement. 3. Town's Obli ations. 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. Severabiliiy. 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 1riterest-Assinment. 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 WBEREOF the parties hereto have caused their duly authorized representatives to execute this Agreement the day and year above written. Anchor 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 To: From: Subject: Reviewed By: TOWN OF TIBURON 1505 Tiburon Boulevard Tiburon, CA 94920 Mayor and Members of the Town Council Office of the Town Manager Town Council Meeting June 19, 2013 Agenda Item: Recommendation to Approve Agreement with Sam's Anchor Cafe for Maintenance of Downtown Restrooms and Contribution to Restroom Renovation -0� BACKGROUND AND ANALYSIS On March 6, 2013, the Town Council authorized the Town Manager to execute a Lease Agreement with Zelinksy Properties for public restrooms at 23 -25 Main Street. The Lease, which is contingent upon the State of California's agreement to abandon its current leasehold of the space, anticipates the Town will demolish and reconstruct the restrooms to substantially upgrade their utility and attractiveness for the public. Historically the restrooms at this location have been maintained by Sam's Anchor Cafe ( "Sam's ") pursuant to an agreement in which it received contributions from the Town, the Angel Island Ferry and the Chamber of Commerce for this work. Monthly maintenance contributions currently total $730.00. Because the State is no longer willing to support restrooms at this location, the finances for this amenity have changed substantially. As the new leaseholder, the Town will be liable for lease payments previously paid by the State, as well as capital improvements for restroom renovation. The Town is currently negotiating agreements with Blue and Gold Ferry, the Angel Island Ferry and the Chamber of Commerce for substantial contributions to offset this ongoing lease payment; these agreements will be brought to the Town Council for approval once completed. Sam's Anchor Cafe will be a unique beneficiary of these new restrooms given their adjacency to the restaurant and heavy use by Sam's patrons, who, under this arrangement, will now have significantly upgraded restrooms available for use. Sam's is also capable of maintaining the restrooms more readily and inexpensively than the Town or other parties as it already engages staff for this purpose on its own premises. Consequently, Sam's and the Town have agreed that Sam's will maintain the restrooms at its expense, including minor repairs such as fixing plumbing problems, for as long as the Town retains restrooms at this location. The Town will be responsible for major repairs to the facility should they be required, such as replacing fixtures. Sam's has also agreed to a modest $5,000 contribution to the capital construction expense; total capital costs are estimated at this time to be $150,000, although this number cannot be ascertained until the project is bid out. Sam's will not be required to contribute to the lease payment. TOWN OF TIBURON PAGE 1 OF 2 Town Council Meeting June 19, 2013 FINANCIAL IMPACT Under the proposal, Sam's Anchor Cafe will assume full responsibility for maintaining the restrooms in a clean, functional and well supplied manner and make a small ($5,000) capital contribution to the restroom renovations. The Town will be responsible for the capital construction of the restrooms and periodic major repairs should they become necessary. The Town will also be responsible for the lease payment but will have substantial offsetting contributions, in amounts to be finalized shortly, from several third parties. (Lease costs were detailed in the March 6, 2013 staff report on this subject.) RECOMMENDATION Staff recommends that the Town Council: Approve the attached Agreement between the Town and Sam's Anchor Caf6 for the maintenance of the downtown restrooms at 23 -25 Main Street and authorize the Town Manager to execute it, making any minor changes if necessary. Exhibits: Agreement Prepared By: Peggy Curran, Town Manager TO \,'N OF TIM TRON Page 2 of 2