5.4. SR 03-17-2008Elk REQUEST FOR ACTION
..r.
River
To Item Number
Ci Council 5.4.
Agenda Section Meeting Date Prepared by
Administration March 17, 2008 Bill Maertz, Parks and Recreation
Director
Item Description Reviewed by
Consideration of Agreement with "Mochas to Go" fox Lease of Lori ohnson, Ci Administrator
Space fox a Coffee Cart in the Elk River Library Reviewed by
Action Requested
Consideration of agreement with "Mochas to Go" for lease of space fox a coffee cart in the Elk River
Library
BackgroundlDiscussion
"Mochas to Go" is a locally owned business that operates a mobile coffee and smoothies shop and a
coffee cart/espresso bar. The owner Janet McCarty approached the Library Board about the possibility of
leasing a small space in the lobby fox a coffee cart. The cart would use approxnnately 63 square feet. Ms.
McCarty created a template of the footprint of the cart and met with staff to review the impact on library
use. Library staff is satisfied that the cart's operation will not interfere with library operations. "Mochas to
Go" would be responsible to pay a licensed electrician for an additional electrical outlet.
Staff researched lease rates of other new retail space in Elk River and believes that $1,417.50 per year,
inclusive of utilities and cotxtmon area maintenance, is consistent with square foot costs in similar space.
At the February 26, 2008 Library Board meeting the Board voted to recommend to City Council the
approval of a one year lease. This agreement is under review by Gray Plant Moody and approval would
be contingent upon incorporating any changes recommended by the city attorney.
Financial Impact
The proposed lease rate would generate $1,417.50 per year.
Attachments
^ Draft Lease Agreement
^ Library Board Minutes
Action Motion by _ Second by _ Vote
Follow Up
C:\Documrnts and Settings\jjohnson\Local Settings\Temporary Internet Files\OLK49\CoEFee Cart-Lilxary Action Requestdoc
LEASE AGREEMENT
THIS LEASE AGREEMENT is made this day of , 2008 by and
between the City of Elk River, 13065 Orono Parkway, Elk River, Minnesota 55330
(hereinafter referred to as "Landlord"), and Mochas to Go, Inc., a Minnesota corporation,
15165 197" Avenue, Elk River, Minnesota 55330 (hereinafter referred to as "Tenant").
WITNESSETH:
1. LEASED PREMISES. For purposes of a Agreement, "leased
premises" shall mean that portion of the building locat ~ `at 1~ Orono Parkway, Elk
River, Minnesota, the "Buildin ' `" .,
( g'), consisting of apprpgc~ately 63 s e feet of space on
-the main level and depicted on the attached Exhi~ii~~A. '° `~.~~h,
2. DEMISE AND PREMISES. Lar€dioaid.herebj~ ~ ases to Ten~i~fid Tenant
hereby leases from Landlord, for the term and u;~he~~sl~itions hereinF rovided, the
leased premises in its "AS IS" condition and withouf~a~ warranties with respect thereto,
express or implied, from Landlord. '?31z.. `E1~~'~iA,
3. TERM. The Term of thin -~t~ a, III be for o fit} year, commencing on
May 1, 2008, through and including Apnl (1, 2~D9;¢[~ ss earl terminated as hereinafter
provided. `~_ $t`~ ~~~~~a~€Ir~ .
4. GROS I~EN ~~nant cove~nts and agrees that Tenant shall pay to
Landlord rent (°Gr i~{enY') f e Leased demises in the annual amount of:
~~I(indred Seventeen and 50/100 Dollars
~ equal monthly installments of One Hundred
100 Dollars ($118.12) during the first eleven months
~` a final payment of One Hundred Eighteen and
118.18) during the final month of this Lease.
The "'° Rent sha~~~ie paid in monthly installments, in advance, on the first day of
each and every~c~i~ndar rnth during the Term. If the initial orfinal month of the Term of
this Lease is les € ~~''calendar month, Gross Rent for such partial month shall be
prorated at the rate ` "one-thirtieth of the monthly Gross Rent for each day, payable in
advance. Tenant wi pay said Gross Rent, together with all other amounts due under this
Lease, to Landlord at 13065 Orono Parkway, Elk River, Minnesota 55330, orto such other
party or to such other address as Landlord may designate from time to time by written
notice to Tenant. Tenant's obligation to pay the Gross Rent and other amounts due under
this Lease is an independent covenant, and is not and shall not be subject to any
abatement, deduction, counterclaim, reduction, setoff or defense of any kind whatsoever.
5. REAL ESTATE TAXES. Landlord shall pay all property taxes and general
assessments for the leased premises during the term hereof.
6. USE. The leased premises shall be used and occupied by Tenant for a
coffee shop selling beverages, sandwiches, desserts and the like, and Tenant covenants
not to use the leased premises for any other purpose without the prior written consent of
Landlord, which consent shall not be unreasonably withheld. Further, Tenant has
determined, in its sole discretion, that the leased premises are app~~ppriatefor her intended
uses. .~t111ElJcwo.
7. LATE PAYMENT PENALTY. If any pay
not made within ten (10) days of the due date thereof,
rent, a late payment fee of 5% of the monthly rental,!
8. ALTERATIONS. Tenant shall nq~~Fiave th
additions or changes to the leased premise~stli~ t the
alterations, additions or changes made or placed ~ on
may be removed by Tenant at the termination of ~' s[I
premises are restored to the same ~ndition as thee;
reasonable wear and tear, damage f I elements, a
from the negligence or willful miscondti tl~ord, its
s. LAn
maintain, in good
due hereunder are
I pay, as additional
right to makd{ ratjons in or
or consent o ' ~t~lord. Any
~Ieased premis s by Tenant
:ase Agreement if the leased
re in prior to said alterations,
i, or damage resulting
employees, excepted.
Landlord at its cost shall
a. :;~tl struct " I parts of the uilding and other improvements that are
p ~ # the ased premis ~nrhich structural parts include only the
yY . foun~jtg~t , " ,il~~~411~+ xterior walls, subflooring and roof.
b. "' unei d electrical, plumbing and sewage systems, including,
w~f ~>t limi .~i ~r+those portions of the systems lying outside the
10. ''~!li ANT'S -PAIRS AND MAINTENANCE. Except as provided in
Paragraph 9, a Ten!! at her cost shall maintain, in good condition, all portions of the
leased premises I ~9 the expiration of the term of this Lease Agreement, or prior
termination, Tenant I surrenderthe leased premises to Landlord in the same condition
as received, normal~iroear and tear, damage from the elements, acts of God, or damage
resulting from the negligence or willful misconduct of Landlord, its agents or employees,
excepted. Tenant shall keep the leased premises in a clean and wholesome condition and
shall regularly remove all trash and refuse of any kind from the leased premises at its own
expense. Tenant shall be liable for any damage to the leased premises resulting from the
negligent or willful acts or omissions of Tenant, its employees or agents.
11. LANDLORD'S ACCESS. The Landlord, its employees, and its agents shall
have the right to enter the premises at all reasonable times for the purpose of inspecting,
cleaning, repairing, altering, or improving the premises or to exhibit the premises to
prospective tenants, purchases, or others. Nothing in this section shall be interpreted as
requiring the Landlord to perform any such acts independent of the requirements of the
other provisions of this lease. The Landlord shall also be permitted to enter the premises
for the purpose of posting notices ofnon-responsibility for alterations, additions or repairs.
12. SUBLEASE AND ASSIGNMENT. Tenant shall not voluntarily assign or
encumber its interest in this Lease Agreement or in the leased pre tses, or allow any other
person or entity {except Tenant's authorized representatives)~~&qpy or use all or any
part of the leased premises, without first obtaining Landlord', ritten consent.
13. UTILITIES. Landlord shall make arrangep~ snts f~i§' d pay all utilities and
services furnished to the leased premises, including~~l~i hout lim~ tn, gas, electricity,
water, telephone service and trash collection, ar~~ or ~H connectio rges. Further,
Landlord agrees to provide Tenant with access,ti~ water and a drain wit e Building at
no additional cost to Tenant. t~~ t.rls' t ~E ~1t} 1s~1't
tl{~~~~~°"I € 8€BRltte, alt §
14. INSURANCE. Tenant shall at all time~c~t~ring the term hereof, at its own
expense, maintain and keep in eff~~,~, a policy of Ge`~,~ I Liability Insurance insuring
against all liabilities, claims and exper3` ° ; gr damages td• ons or property in or about
the leased premises. The amount of'S` ~~~; ty shall no' ll~ss than $1 million per
occurrence. `~~_ `"I~~t;l~rg,, ,i
Tenant shall h ~( policy of i ranee ei~iirsed to reflect the following
provisions: (i) name dlor~ t n Addition ,Jklnsured; ~ii) provide a thirty (30} day written
notice of cancell~~it( 'ii) mcl~ an endors ent wherein insurance carrier agrees to
waive rights of subrog 4 aga, t the Landlor ;,end (iv) agrees that insurance carried by
Tenant shall be~rigmary, ' ~ fi ntfibution from any insurance which is carried
by the Lank1~:~F{I1~6~ ~t1d!~~F°
13t' ~~ ~~
s[3~~ Want further ~ ` s to ~ ° ' ~ Certificates of Insurance evidencing coverage as
req~ire~Landlord pri,occu cy of the leased premises.
15. "tl EMNITY. Tenant shall indemnify and hold harmless Landlord against any
and all claims a' mane arising from the negligence of the Tenant, its officers, agents,
invitees and/or err BSI, as well as those arising from Tenant's failure to comply with any
covenants of this LeAgreement on its part to be performed, and shall defend Landlord
against any and all sluits andlor actions arising out of such negligence, actual or alleged.
Likewise, Landlord shall indemnify and hold harmless Tenant against any and all claims
and demands arising from the negligence of the Landlord, its officers, agents, invitees
and/or employees as well as those arising from the Landlord's failure to comply with any
covenant of this Lease Agreement on its part to be performed, and shall at its own expense
defend the Tenant against any and all suits and/or actions arising out or said negligence.
16. MECHANICS' LIENS. Tenant shall pay all costs for construction done by it or
caused to be done by it on the leased premises as permitted by this Lease Agreement.
Tenant shall keep the building, other improvements, and land of which the leased premises
are a part free and clear of all mechanics' liens resulting from construction done by or for
Tenant. Tenant shall have the right to contest the correctness or the validity of any such
lien if, immediately on demand by Landlord, Tenant procures an irrevocable letter of credit
in favor of Landlord in an amount equal to one and one-half times the amount of the claim
of the lien.
17. DESTRUCTION OF THE PREMISES. In case of, a total or such partial
destruction of the leased premises by fire, the elements or othe~~ u~lty, as shall make it
impracticable for Tenant's use, this Lease Agreement may kterminated at the option of
either party on written notice to the other, and in that cas+ t shall not be liable for
any rent after the date of Tenant's surrendering posses' n of`f~~ased premises.
1~. ~ tp
18. CONDEMNATION. In case of thell~~~jat~13Y such parti~~ , s of the leased
premises through condemnation, as shall m it impracticable for is use, this
Lease Agreement may be terminated at the c>~~Igf edhefsparty and in th` } °Se, Tenant
shall not be liable for any rent after the date of s i ~rrrt~~t~,n. ,rl'
19. DEFAULT OF TENANT The occurreii~i,of any of the following shall
constitute a material default and brea(¢~~,this Lease Ag dent by Tenant:
a. Any failure by Te nt t8'~ nt or d'~t5y other monetary sums
required to be paid er~li3d~~ ~,e such failure continues for
tweet ~ ptt days after v~ ~tfen notice~~}iereof from Landlord to Tenant).
b. ~+rtl~ g ab~ ~iment or v cation of the leased premises by Tenant.
t ~~I,
c. A fa _~rve and perform any other provision of this
~~[4{(~~~t ase emen ~~ ~ observed or performed by Tenant, where
{ fail ntinues for twenty (20) days afterwritten notice thereof
b dlor° ~~r~ant; provided, however, that if the nature of such
def~ g ' ~s suc at it cannot reasonably be cured within such twenty
(20) ~perio'd, Tenant shall not be deemed to be in default if Tenant
I~`It shall in such period commence such cure and thereafterdiligently
'~='~~1~, prose. to the same to completion.
d. 'making by Tenant of any general assignment or general
~anangement far the benefit of creditors; the filing by or against Tenant
of a petition to have Tenant adjudged a bankrupt or a petition for
reorganization or arrangement under any law relating to bankruptcy
(unless, in the case of a petition filed against Tenant, the same is
dismissed within ninety (90) days); the appointment of a trustee or
receiver to take possession of substantially all of Tenant's assets
located at the leased premises or of interest in this Lease Agreement,
where possession is not restored to Tenant within sixty (60) days; or
the attachment, execution or otherjudicial seizure of substantially all
of Tenant's assets located at the leased premises or of Tenant's
interest in this Lease Agreement, where such seizure is not
discharged within forty-five (45) days. In the event of any such
material default or breach of Tenant, Landlord may at any time
thereafter without limiting Landlord in the exercise of any right or
remedy at law or in equity which Landlord may have by reason of
such default or breach.
In the event of any breach of this Lease Agreement by T (iEyfiitg aLandlord shall have
the immediate right of re-entry and possession of the lease~l~~emises; which such right
remains continuous until such time as Tenant shall have c~ ~+ah default. Additionally,
Landlord shall have the right to terminate this Lease Ag men- „ ritten notice of such
intention to Tenant.
In the event Landlord elects to terminate `Lease Agreement, Tf~~rJt's liability for
rent and other sums payable hereunder and ~ ~ nn any=ia herterm, conk It', covenant
or agreement on its part to be performed under e~siAgreement sh~l cease and
terminate as to any period subsequent to the date~°' ich Landlord delivers to Tenant
written notice of such termination. TQ{I~nt shall remain~~~ however, for all rent and the
performance of all terms, conditions a~~ ~ements rela r€~~` matters priorto the date of
I ~~'~ ~ ii c~# r4 ,~r°
such termination. ~~, ¢,Is,,, ~.t;;l~
20. DEFAULT OF LANDLORDI~ L,~tlldt€i~ ~it~ be in default of this Lease
Agreement if it fails or r~~ o perform ){I~~rovision;Fthis Lease Agreement that it is
obligated to pertorm ~ ~cu~ ithin thirty~• )days after written notice of the default has
been given by Ter Landl If the defy l~t cannot reasonably be cured within thirty
(30) days, Landlord s'~ ~ t be °~ default of this L_~°ase Agreement if Landlord commences
to cure the default within ~ ~ ~~ ~ `~~
t , ~~~icd and diligently and in good faith continues
to cure thlg(' ~t~~ !
~ f II ' ~ ~~
,l~ COMPL~ E WN`~ 4 hs4WS. Tenant shall comply with all laws and
regti~ati; i.conceming lease` 'remises or Tenant's use of the leased premises,
including, ut limitatio he ob°ligation to comply with any code, law or regulation that
requires alte' _., ns, additi or restoration to the leased premises.
22. EN' [IiiENTAL MATTERS. As used herein, the term "hazardous
substances" means hazardous or toxic substance, material or waste which is or
becomes regulated<~ y any local, state or federal governmental authority. The term
"hazardous substances" includes but is not limited to any material substance which is (i)
designated as a "hazardous substance" pursuant to section 311 of the Federal Water
Pollution Control Act (33 U.S.C. section 1317); (ii) defined as a "hazardous substance"
pursuant to section 1004 of the Federal Resource Conservation and Recovery Act, 42
U.S.C. section 6901, et seq. (42 U.S.C. section 6903); or (iii) defined as a "hazardous
substance" pursuant to section 101 of the Comprehensive Environmental Response
Compensation and Liability Act (42 U.S.C. section 9601, et seq.). As used herein, the
term, "environmental requirements" means all laws, ordinances, rules, regulations, orders
and other requirements of any government or public authority now in force or which may
hereafter be in force relating to protection of human health or the environment, including all
requirements pertaining to reporting, licensing permitting, investigation and remediation of
emissions, discharges, storage, disposal or releases of hazardous substances and all
requirements pertaining to the protection of the health and safety of employees or the
public. Tenant shall not permit or conduct the generation, treatment, storage or disposal
on, in or about the leased premises of any hazardous substances without prior written
notice to Landlord. Any such notice to Landlord shall be in writing a d shall demonstrate to
the reasonable satisfaction of Landlord that such hazardous su#~es are necessary to
the business of Tenant and will be generated, treated, store €€~~r disposed of in a manner
that complies with all environmental requirements. An9~tt generation, treatment,
storage or disposal of any hazardous substances b~~t enan _~~reunder shall be in
compliance with all environmental requirements. T~e~a~ shall rij 4nnity and defend
Landlord against and hold Landlord harmless mall claims, ands, liabilities,
damages, fines, encumbrances, liens, losses, sts and expenses, mcl reasonable
attorney's fees and disbursements, and costs.' pens of investigatio ~ p'r`ising from
or related to the existence of hazardous substan~ ,m ~' Efhe leased p emises as a
result of the acts or omissions of Tenant. ~~~~1~-=
23. SIGNS/ADVERTISING `~ItF~~~nt shall not h''~$~~~he right to place, construct,
or maintain any other sign, advertisemefi~; banner, off: ~r exterior decoration on
the Building without Landlord's pnor v~~tten ~ e}n.1t Ho,'rever, Tenant may place,
l r ~e{p
construct and maintain any sign, advertis~mer~t3.a nit~trb~ner, or other such signs and
decorations if located ~i$~ lease prerij~~~s. is
$E p °'
ik {Ci,
24. ATT Y'S F 5. If eitheh arty becomes a party to any litigation
concerning this Lea ~ , re ~ ,nt, the leati~ipremises, or the building or other
improvements in which t~ _ ° ~&Pr Plocated, by reason of any act or omission
of the oth 1~~ out' ed repro 'tives, and not by any act or omission of the
party tt~l` ecome~ rty t litigation or any act or omission of its authorized
repre~atives, the p~ i at c ~tthe other party to become involved in the litigation
shad b~•l~~tle to that pa ~r real noble attorneys' fees and court costs incurred by it in
the litigatiar~~il,, i
If either` com ~nces an action against the other party arising out of or in
connection with t ~~ Agreement, each party shall pay its own attorneys' fees and
costs of suit. ~ ¢
E+
25. MISCELLANEOUS.
a. The unenforceability, invalidity, or illegality of any provision shall not
render the other provisions unenforceable, invalid, or illegal.
b. This lease agreement is made and entered into in the State of
Minnesota and shall in all respects be interpreted, enforced and
governed by the laws of the State of Minnesota. The language of all
6
parts of this lease agreement shall in all cases be construed as a
whole, according to its fair meaning, and not strictly for or against
Landlord or Tenant.
c. This Lease Agreement, and all its provisions, shall be binding upon
the heirs, administrators, executors, successors and assigns of the
parties hereof.
ee
d. This Lease Agreement sets forth the en~lr~greement between
Landlord and Tenant, and fully sug g' edes any and all prior
agreements or understandings betwe~ ertaining to the subject
matter hereof. This Lease Agreeri~`nt m i ly be modified by a
written agreement signed by Laor'tiEand Te~.
26. NOTICES. All notices as re uired~ an ofthe terms and ` 5 itions of this
q Y
Lease Agreement shall be deemed given.,~~j the riice is prepay ~~js~'dequately
addressed and deposited in the United States ma st~c~'~I~irgpaid. Noti , `'to Landlord
and Tenant are adequately addressed as follows: ~~~~,'
LANDLORD: CITY OF
13065 Or
Elk River,
TENANT: Ijlllj€~~~~~ HA9 ~hO
,~sl~tjls, Elk t+er, MN
With Cod~y To: `{III ~~ ~((~rier, Esq.
j~lll(IljjElls~~~~~ € ~ ,Moo ~ uingardner, Magnussen, Ltd.
+~ (` I Fi tional Financial Center
~, ~~~e~;ji812 reet, Suite 102
sj)~~,, I[(Il~lk Riv ,Minnesota 55330
IN WI S WHE OF, the respective parties have executed this instrument as of
the day and ye ki~'i~t hers. above written.
LANDLORD:
CITY OF ELK RIVER
By:
7
TENANT:
MOCHAS TO GO, INC.
By:
~N~o~ieinoN
Mick Stoffers, Karen Stelk, John Dietz, Jayne Dietz, Joan Allen from 6RRL, Bill
Maertz from the City, Nick Zerwas City Council Liaison and guests Janet McCarty
and Sue Bergstrom were in attendance.
Meeting was called to order at 6:30pm.
A quorum was established.
Bill and Janet gave us an updnte on the Coffee Cnrt. It's been proposed fio have a
one-year lease and it will be reviewed upon expiration. $135 per month will be the
rent and that money will be dedicated towards something specific, technology,
children's books, etc. Early Mny is the tnrgeted opening dote. A recommendation
was given from the Library Board to bring this to the City Council Mtg. A motion
and second was made to approve this next step.
Sue Bergstrom spoke next regarding a grant that has been awarded for a Bee and
Butterfly garden. Its main purpose would be to increase public awareness of the
need and importance of bees, pollinators and other related topics. It would be
approximately 15x20, located south of the parking lot, in the shape of a butterfly.
The grant would cover all expenses, library would just need to supply water in the
beginning until the plants/flowers are established. A motion and second was made
to approve this project.
Bill gave us a building update. All resin panels and glass have been instnlled. The
porch project will be reviewed once all bills nre paid.
The agenda, secretary's report and treasurer's report were reviewed, a motion and
second were made to approve all.
We asked Jann about the self-checkout system. 6RRL has received the check so it
is progressing.
Librarian's Report
Mick has looked further into having aFlag/pole erected in front of the building. We
went over prices and sizes, we decided it should be the same as City Hall. The
artwork will be picked up at the end of March. Mick is looking into hanging options.
Friends of the Library bought a DVD player and 4 new scanners for the front desk.
The tables in the community room are warping, the company is replacing aU of the
table tops in March.
The Library Board is composing a fetter to be sent to the GRRL Board and County
Commissioner requesting more Library hours. Karen is going to compile some facts
from Mick and bring it to the next mtg. At that meeting the board will review and
forward to the City Council.
Next meeting 3125 at 6.3~pm
Meeting nd~ourned at 7:30pm