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HomeMy WebLinkAbout2005-225 Lease - Bryant Real Property Agreement Between City of Ashland and Marty Bryant, September 2005 REAL PROPERTY SUB-LEASE AGREEMENT THIS SUB-LEASE AGREEMENT is entered into by and between the CITY OF ASIILAND (hereinafter referred to as "Sublessor") and MARTY BRYANT (hereinafter referred to as "Sublessee"). IN CONSIDERATION of the mutual promises set forth herein, the parties agree as follows: 1. Definitions. In this Agreement, the following terms shall mean: a. "Real Property" shall refer to the real property commonly known as 85 Winburn Way, Ashland, Oregon. b. "Sub-leased Property" shall refer to: (i) the building presently constructed on the Real Property (currently used by Sublessor as a concessions operation, called "Lithia Park Concessions"), together with (ii) any additions and improvements to that building which are constructed or attached by the Lessee or Owners c. "Owners" shall refer to: ROSANNA ROSEWOOD and MARC ROSEWOOD, their successors, heirs or assigns (hereinafter referred to in this Agreement collectively as "Owners"). d. "Sub-Lease" shall mean and refer to the sub-lease arrangement between Sublessor and Sublessee which is established under this agreement. e. "Sub-lease Term" shall refer to the entire term of the Sub-lease, including any extensions if all parties (including Owners), prior to the termination of this Agreement, mutually agree to such extensions. No promise, express or implied, is made concerning any extension to this agreement. f. "Hazardous Materials" shall refer to and include: (i) any and all substances defined as "hazardous substances," "hazardous materials," or "toxic substances" in the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended (42 use Section 9601, et. seq.), the Hazardous Materials Transportation Act (49 USC Section 1801, et. seq.), and the Resource Conservation and Recovery Act (42 USC Section 6901, et. seq.); and (ii) any and all substances which now or in the future are deemed to be pollutants, toxic materials or hazardous materials under any other state or federal law. 2. Sub-lease. Sublessor hereby sub-lets the Real Property and Sub-leased property to Sublessee, subject to all the terms and conditions contained in this Agreement. 3. Assienment and Sublease. Sublessee shall not assign or sub-lease his interest in the Real Property without written consent of both Sublessor and Owners. Consent to assign or sub-lease Sublessee's interest in the Real Property may be withheld for any reason. Owners shall retain title to the Real Property, and Sublessee shall have the right only to possess the Subleased Property during the term of this Sub-lease. Any attempted assignment or subcontract without written consent of Sublessor shall be void. Sublessee shall be fully responsible for the acts or omissions of any assigns or subcontractors and of all persons employed by them, and the approval by Sublessor of any assignment or subcontract shall not create any contractual relation between the assignee or subcontractor and Sublessor. H:\Concessions\Sub-lease MARTY BRYANT of Rosewood Property (Sept 2005).doc Real Property Agreement Between City of Ashland and Marty Bryant, September 2005 4. Sub-lease Term. This Agreement modifies the terms of the previous Agreement, May, 2005. This sub-lease shall commence beginning on Monday Septerober 9, 2005, and cease on Tuesday February 28,2006. Any terms of this Agreement that conflict with the terms of the previous Agreement, May 2005, shall control. 5. Use and Access of the Real Property. Sublessee shall have full access to the building, shall have a key to the building and a personal security code. Sublessee shall use the Real Property solely for the purpose of operating a commercial barbeque, the product to be sold by Sublessor to members of the public. Sublessee shall not use or permit the use of the Real Property for any other purpose without the advance written consent of Sublessor. Sublessee shall not use, or permit any other person or entity to use, the Real Property in any manner which would create or tend to create waste or a nuisance or would be unreasonably offensive to owners or users of neighboring premises. Sublessee shall refrain from any activity which would prevent Sublessor or Owners from insuring against loss or damage to the Real Property or against personal injury or property damage, or which would significantly increase the cost of insuring the Real Property against loss or damage by fire or other cause. Sublessee shall not intentionally or unintentionally cause or permit any grease or kitchen waste product or Hazardous Material to spill, leak or be discharged onto the soil or other surface of the Real Property or be discharged into any storm drain, sewer or other waste disposal system located on the Real Property which is not specifically designed for, and intended to be used solely for, the retention and disposal of that grease or kitchen waste product or Hazardous Material. In the event of any such spill, leak or discharge, Sublessee shall file all reports, take all remedial actions and pay all fines and other levies as shall be required by applicable federal, state and local statute, ordinance, regulation and order. Sublessee shall not utilize flashing lights, search lights, loudspeakers, phonographs, radios or televisions on or about the Real property which can be seen, heard or experienced outside of the boundaries of the Real property and which could reasonably be considen:d to be offensive to owners or users of neighboring premises or members of the public. Sublessee's use of the Real Property is not exclusive and shall be subject to and shall not interfere with Sublessor's use of the Real Property for the purpose of retail food, snacks and beverage concessions. Sublessee shall not use any consumable products that have been purchased by Sublessor. 6. Compliance with Laws and Ordinances. Sublessee shall promptly con1ply with all statutes, laws, ordinances, orders, judgments, decrees, injunctions, rules, regulations, licenses, directives and requirements of all federal, state, county, municipal and other governments, commissions, boards, courts, authorities, and officials, and any companies or associations insuring the premises, which now or at any tinle hereafter may be applicable to the Real Property or any part thereof, or to any use of or condition of the Real Property or any part thereof. Sublessee shall remedy at Sublessee's expense any failure of compliance created through Sublessee's fault or by reason of Sublessee's use. Sublessee shall obtain all licenses necessary to use the Real Property for the purposes permitted under this Agreement (including but not H:\Concessions\Sub-lease MARTY BRYANT of Rosewood Property (Sept 2005).doc 2 Real Property Agreement Between City of Ashland and Marty Bryant, September 2005 limited to business licenses and Health Department licenses), and those licenses shall be issued in the name of Sublessee. Sublessee shall pay when due, and h~fore delinquency, all license fees. 7. Sienaee. Sublessee shall have the right to erect one (1) sign on the Real Property which is approved by and consistent with the guidelines of the City of Ashland and which relate to Sublessee's business operations. 8. Sales Transactions and Use of Cash Reeister. During the months of October, November and December 2005 and January 2006 and February 2006, Sublessee will have sole access to all sales transactions and use of the cash register, and therefore, Sublessor shall have no duty to pay Sublessee during the months Sublessel~ has sole access and use of the sales receipts and cash register. 9. Food and Beveraee Tax. Sublessee shall be solely responsible for the payment of the Food and Beverage Tax pursuant to Ashland Municipal Code, Section 4.34. Sublessor shall have no collection authority prior to the disbursement of Sublessee's gross sales. 10. Rental Payments Required. Sublessee agrees to pay Sublessor a total of $8250.00, which shall be made in six (6) periodic installments as detailed below: a. First Installment is due on Sept 19, 2005, in the amount of $750.00. b. Second Installment is due on Oct 19,2005, in the amount of$1500.00. c. Third Installment is due on Nov 18, 2005, in the amount of $1500.00. d. Fourth Installment is due on Dec 19,2005, in the amount of$1500.00 e. Fifth Installment is due on Jan 19,2006, in the amount of$1500.00 f. Sixth Installment is due on Feb 20, 2006, in the amount of $1500.00. 11. Cleanine. Sublessee is responsible for maintaining each area for which Sublessee uses for food preparation. Each area for which Sublessee uses for food preparation and cooking shall be cleaned by Sublessee and shall always remain sanitary. 12. Davs and Hours of Operation. Sublessee shall be subject to the days and hours of operations of the Sublessor, as established by the Parks & Recreation Department. Sublessor retains the right to change the days and hours of operations of Lithia Park Concessions without consent from Sublessee. Except for emergencies, Sublessor shall provide Sublessee at least five (5) business days notice prior to any change in the days and hours of operation. No sales of Sublessee's products shall be made on the Real Property, except during the days and hours of operation of Lithia Park Concessions. Sublessee may prepare food at any time, regardless of the days and hours of operation. 13. Cookine Facilities. Sublessee shall utilize an outdoor commercial barbeque for cooking purposes. Ashland Fire Department must approve such barbeque prior to use by Sublessee. H:\Concessions\Sub-lease MARTY BRYANT of Rosewood Property (Sept 2005).doc 3 Real Property Agreement Between City of Ashland and Marty Bryant, September 2005 14. Insurance Requirements. Sublessee shall provide liability insurance with amounts at least as high as the liability limits for Sublessor as set forth in the Oregon Tort Claims Act, ORS 30.265 et. Seq. Sublessee shall submit proof of required insurance to Sublessor prior to the execution of this Agreement. Sublessee's insurance shall name Sublessor (eity of Ashland) as an additional insured. Sublessee shall maintain such required insurance throughout the term of this Agreement. 15. Independent Contractor Status of Sublessee. Sublessee is an independent contractor and not an employee of Sublessor. Sublessee shall provide workers' compensation coverage as required in ORS 656 for all persons employed by Sublessee. 16. Indemnification. Sublessee agrees to defend, indemnify and save Sublesssor, its officers, employees and agents harmless from any and all losses, claims, actions, costs, expenses, judgments, subrogations, or other damages resulting frorYL injury to any person (including injury resulting in death), or damage (including loss or destruction) to the Real Property, of whatsoever nature arising out of or incident to the performance of this contract by Sublessee (including but not limited to, Sublessee's employees, agents, and others designated by Sublessee to perform work or services attendant to this Agreement). Sublessee shall not be held responsible for any losses, expenses, claims, subrogations, actions, costs, judgments, or other damages, directly, solely, and proximately caused by the negligence of Sublessor. SUBLESS~ B t /. 0.0 }--~---- y, Signature JiM~{~ Print Name ((j ()(() '-1 Date H:\Concessions\Sub-lease MARTY BRYANT of Rosewood Property (Sept 2005).doc 4 Real Property Agreement Between City of Ashland and Marty Bryant, September 2005 ~M+J Signatu e KF t/ft;-J1 ,S=: is LE~~-'7'/ Date H:\Concessions\Sub-lease MARTY BRYANT of Rosewood Property (Sept 2005).doc 5