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HomeMy WebLinkAboutAgr 2012-12-01 (Joint Recreation Committee)TOWN OF TIBURON LEASE OF DAIRY KNOLL BUILDING TO THE BELVEDERE TIBURON JOINT RECREATION COMMITTEE This Agreement ("Agreement") is entered into this first day of December 1, 2012, by and between the TOWN OF TIBURON, a municipal corporation (the "Town") and the BELVEDERE- TIBURON JOINT RECREATION COMMITTEE (the "BTJR) RECITALS: 1. The Town and the City of Belvedere ("City") created the BTJR pursuant to a Joint Powers Agreement ("JPA") executed in June of 1975 and most recently amended on June 12, 2012. The BTJR provides programs and services on the Tiburon Peninsula meeting the needs of the Parties. 2. Pursuant to the JPA, the Town and City provide financial assistance for those of BTJR's expenses that are not covered by program income. 3. The BTJR has offices at the Town's property at 1505 Tiburon Boulevard ("Town Hall") and locates its programs at various sites on the Tiburon peninsula. 4. The BTJR requires additional office and programmable space if it is to satisfy and expand local programming to meet the growing needs of the Tiburon Peninsula. 5. The Town is the owner of certain real property situated in the Town of Tiburon and located at 600 Ned's Way in Tiburon, California on which the Town is constructing Dairy Knoll, a building of approximately 4800 square feet, adjacent parking lot and associated improvements ("Facility"). 6. On October 11, 2010, the Town and City entered into an agreement whereby the City agreed to make an annual monetary contribution to the Town if the Town created new space on Town-owned land and the Town agreed to allow the BTJR to use any such facility for so long as the Town receives the annual monetary contribution from City and for so long as Town believes this to be an appropriate use of Town resources ("Contribution Agreement"). 7. On April 30, 2012, the Town and City entered into a supplemental agreement amending the City's commitment to provide funding for the Facility. 8. Town, the BTJR and the City acknowledge that the relocation contemplated by this Agreement will increase the BTJR's operational expenses and that the BTJR may require additional financial assistance from the Town and the City for up to two years after BTJR takes possession of the Facility. - 1 - 9. The Town and the BUR (collectively, "Parties") have entered into this Agreement, which has been reviewed by counsel for both parties, to set forth the terms and conditions for the use of the Facility. AGREEMENT: 1. Purpose. Nothing in this Agreement shall obligate the Town to complete the Facility. However, if Town constructs the Facility, Town will allow the BUR to use the Facility subject to the terms and conditions set forth in this Agreement. 2. Term of Agreement. The Initial Term of this Agreement shall be one (1) year from the date that the Town makes the Facility available for occupancy by the BUR ("Occupancy Date"). Each one year anniversary of the Occupancy Date ("Renewal Date"), the Agreement shall automatically renew for an additional one-year term on the terms and conditions set forth in this Agreement. Notwithstanding the foregoing, (a) on any Renewal Date, the Town may give the BUR written notice of intent not to renew on the next Renewal Date; and (b) the Town shall have the right to terminate this Agreement as set forth in Section 6 hereof. 3. Rent. A. The BUR shall pay no rent for the use of the Facility during the first five years after the Occupancy Date. Thereafter, the BUR will pay rent as set forth in this section beginning one (1) year after receiving written notice from the Town Manager. B. Beginning on the first day of the first month following the one-year notice period set forth in Subsection 3.A, the BUR shall pay rent of $2500 per month, i.e., approximately $.52 per gross square foot (the "Rent"). C. The Town shall have the right to modify the Rent or other terms of this Agreement by giving the BUR one year written notice of said intended modification. In making future Rent adjustments, the Town may consider, without limitation, the market rate for similar square footage, the BTJR's revenues and the Town's capital and maintenance costs associated with the Facility. 4. Rights and Responsibilities of Parties: A. The Town will provide the BUR with thirty (30) days prior written notice of the Occupancy Date. B. The Town will have the sole right to name the Facility and each portion thereof. Without prior approval of the Town Manager, the BUR will not erect any exterior or interior signage, other than informational signs regarding the Facility's components (including, without limitation, bathrooms, the kitchen and emergency exits), BUR programs and other authorized activities and uses in the Facility. -2- C. Beginning with the Occupancy Date and continuing for the term of this Agreement pursuant to Section 2, Town shall be responsible only for maintenance of the Facility's exterior landscaping and for major building repair and maintenance, such as roof repair and replacement and structural and HVAC system repairs. D. Nothing in this Agreement shall require the Town to repair the Facility if the Town decides, in its sole discretion, that such expenditure is not an appropriate use of the Town's resources, in which event, the Town may terminate this Agreement as provided in Section 6 hereof. E. The BUR shall vacate Town Hall within 15 (15) days of the Occupancy Date. The BUR shall leave at Town Hall any and all personal property items previously provided by the Town except as otherwise expressly authorized by the Town Manager. The items so authorized are set forth in Exhibit A, which is attached hereto and incorporated herein by reference. F. Beginning on the Occupancy Date, BUR will cease receiving technology support services from the Town and will be responsible for obtaining such services. G. Except as provided in Section 6, the BUR will pay for all utilities and services required for the Facility, including, without limitation, minor Facility repairs and replacement, solid waste disposal, janitorial services, utilities and all other operational expenses associated with the building. The BUR will maintain the Facility in good repair. All damage or injury done to the Facility by the BUR or by any person who may be in or at the Facility with the BTJR's consent or invitation or by the BTJR's failure to properly secure the Facility shall be paid for by the BTJR. If at any time during the term of this Agreement, the BUR fails to maintain or repair the Facility as required by this Section, the Town may, but shall not be required, to perform the maintenance or make the repairs or replacements for the account of the BTJR; any sums expended by Town in so doing, together with interest at ten percent (10%) per annum, shall be deemed immediately due from the BUR on demand of the Town. H. Town shall have the option of using the Facility for Town programs at no charge for at least 12 days per year, provided that such use does not conflict with previously scheduled BUR programs. Town may allot, at its discretion, any portion of said days to other public agencies or not-for-profit organizations. 1. The BUR shall provide Town with an annual report of its operating budget, which may include, without limitation, appropriate operating reserves. Town may, in its sole discretion, undertake an independent audit and/or evaluation of the BTJR's records and accounts of income, expenditures and program activities at its own expense. The BUR shall furnish all items necessary in the Town's discretion to complete said audit and/or evaluation. -3- 5. Use of Facility; Compliance with Laws. The BUR shall use the Facility only for offices, BUR programs and other events compatible with said uses. The BUR may allow other third parties to occupy the space for short term uses only, not to exceed 48 hours in duration, provided that such use does not interfere with the BTJR's normal programming. The BUR shall comply with all applicable legal requirements including all federal, state, and local laws (including ordinances and resolutions), whether or not said laws are expressly stated in this Agreement. 6. Termination. In addition to the right of non-renewal set forth in Section 2 of this Agreement, Town may terminate this Agreement, in whole or in part, as set forth in this Section. A. In the event that the Town Manager, in her sole discretion, determines that due to an emergency condition, the public interest requires the Town to take immediate possession, the Town may require the BUR to vacate all or a portion of the Facility. The Town will give the BUR such advance notice as is reasonable and practical under the particular circumstances. B. The Town Manager may determine, after consultation with the Town Council and the BUR, that a portion of the Facility is under-utilized, in which case the Town may require the BUR to vacate that portion upon three months prior written notice. C. In the event that the Town takes possession of a portion of the Facility under this Section 6, the restrooms and kitchen shall be deemed Common Areas. The Parties will share responsibilities for maintenance of Common Areas in proportion to each Party's proportional share of the non-common area in the Facility. D. Rent: In the event that the Town takes possession of the Facility under this Section, Rent shall be refunded or reduced as set forth herein. (i) In the event that the Town takes possession of the entire Facility under Subsection 6.A, the Town will refund any prepaid Rent on a pro rata basis. If the Town takes possession of only a portion of the Facility under Subsection 6.A, any refund will be proportionate to the amount of the portion of the Facility as a whole exclusive of the Common Areas. (ii) In the event that the Town takes possession of a portion of the Facility under Subsection 6.B, the Rent shall be reduced in proportion to the size of the area so occupied by the Town relative to the Facility as a whole exclusive of the Common Areas. 7. Alterations; Improvements. The BUR shall not, without the Town's prior written consent, make any alterations, improvements or additions in or about the Facility except -4- for nonstructural work that does not exceed $2,000.00 in cost. As a condition to giving any such consent, the Town may require the BTJR to remove any such alterations, improvements, or additions at the expiration of the term pursuant to Section 2 and to restore the premises to their prior condition by giving the BTJR thirty (30) days written notice prior to the expiration of this Agreement. Unless the Town requires their removal as set forth above, all alterations, improvements or additions which are made on the Facility by the BTJR shall become the property of the Town and remain upon and be surrendered with the Facility at the expiration of the term pursuant to Section 2. Any damage to the Facility caused by said removal shall be repaired at the BTJR's sole cost. The BTJR shall give The Town advance notice of the commencement of any planned alteration, so that the Town, at its option, may post a Notice of Non-Responsibility to prevent potential liens against the Town's Interest in the Facility. The Town may also require the BTJR to provide the Town with lien releases from any contractor performing work on the Facility. 8. Relationship Between the Parties. The BTJR is, and at all times shall remain, an independent contractor solely responsible for all acts of its employees, agents, or contractors, including any negligent acts or omissions. The BTJR is not the Town's agent, and shall have no authority to act on behalf of the Town, or to bind the Town to any obligation whatsoever, unless the Town provides prior written authorization to the BTJR. 9. Condition of Property; Release and Indemnification; Insurance. A. The BTJR accepts the Facility on an "as-is" basis. The BTJR acknowledges that Town has made no representations or warranties regarding the condition of the Facility or its suitability for the BTJR's intended use. B. The BTJR will indemnify, defend and hold 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 the alleged active or passive negligence or willful misconduct of BTJR, its agents, employees and contractors in connection with BTJR's use of the Facility. BTJR's obligations under this section shall survive the termination of this Agreement with respect to claims arising or accruing before said termination. C. The BTJR shall, throughout the duration of this Agreement, maintain insurance to cover the Town (including its agents, representatives, contractors, and employees) in connection the BTJR's use of the Facility under this Agreement. Section 9.D of this Agreement identifies the minimum insurance levels with which the BTJR shall comply; however, the minimum insurance levels shall not relieve the BTJR of any other performance responsibilities under this Agreement (including the indemnity requirements) Concurrently with the execution of this Agreement by the BTJR, and prior to the commencement of any services, -5- the BUR shall furnish written proof of insurance (certificates and endorsements), in a form acceptable to the Town Attorney. The BUR shall provide substitute written proof of insurance no later than 30 days prior to the expiration date of any insurance policy required by this Agreement. D. The BTJR shall maintain the following levels of insurance: i. Commercial General Liability (with coverage at least as broad as ISO form CG 00 01 01 96) coverage in an amount not less than $2,000,000 general aggregate and $1,000,000 per occurrence for general liability, bodily injury, personal injury, and property damage. ii. Automobile Liability (with coverage at least as broad as ISO form CA 00 01 07 97, for "any auto") coverage in an amount not less than $1,000,000 per accident for bodily injury and property damage. iii. Workers' Compensation coverage as required by the State of California. E. The insurance policies shall be endorsed as follows: i. For the commercial general liability insurance, the Town (including its elected officials, employees, and agents) shall be named as insured, and the policy shall be endorsed with a form at least as broad as ISO form CG 20 10 11 85. ii. BTJR's insurance is primary to any other insurance available to the Town with respect to any claim arising out of this Agreement. Any insurance maintained by the Town shall be excess of the BTJR's insurance and shall not contribute with it. iii. BTJR's insurance will not be canceled, limited, or allowed to expire without renewal until after 30 days written notice has been given to the Town. F. The Town Manager shall have the authority to accept levels and forms of insurance that differ from this Section if, in consultation with the Town Attorney and the Town's Risk Manager, she determines that the BTJR's proffered coverage provides the Town with protection equal to or better than the coverage specified in this Section 9 10. Damage or Destruction. If, by no fault of the BUR, the Facility is totally or partially damaged or destroyed by fire, earthquake, accident or other casualty, the Town shall have the right to restore the Facility by repair or rebuilding. If the Town elects to repair or rebuild, and is able to complete such restoration within ninety (90) days from the date of damage, subject to the terms of this paragraph, this Agreement shall remain in full force and effect. If the Town is unable to restore the Facility within this time, or if the Town elects not to restore, then -6- either the Town or the BUR may terminate this Agreement by giving the other written notice. Any Rent otherwise owing shall be abated as of the date of damage. The abated amount shall be the current Rent, if any, prorated on a thirty (30) day basis. If this Agreement is not terminated, and the damage is not repaired, the Rent shall be reduced based on the extent to which the damage interferes with the BTJR's reasonable use of Facility. If damage occurs as a result of an act of the BUR or the BTJR's guest, only the Town shall have the right of termination, and there will be no reduction in Rent. 11. Assignment and Subletting. The BUR may not assign or sublet all or any portion of the Facility or its interest in this Agreement without the Town's prior written consent, which may be withheld by the Town in its sole discretion. 12. Hazardous Materials. A. Except as identified by the Town in writing to the BUR as known environmental conditions prior to the execution of this Lease, T the own makes no representation or warranty regarding the condition of the Facility or the site thereof. B. The BUR covenants and agrees that it shall not, and that it shall not permit any licensee to, treat, use, store, dispose, release, handle or otherwise manage Hazardous Materials on or around the Facility except in connection with any construction, operation, maintenance or repair of the Facility or in the ordinary course of its business, and that such conduct shall be done in compliance with all applicable federal, state and local laws. The BTJR's violation of the foregoing prohibition shall constitute a material breach hereunder and the BUR shall indemnify, hold harmless and defend the Town for such violation as provided below. C. The BUR shall, within five (5) days of such occurrence or immediately in cases of imminent threat of injury to life or property, notify Town of any significant release of any Hazardous Materials, and/or any notices, demands, claims or orders received by the BUR from any governmental agency pertaining to Hazardous Materials which may affect the Property. The BTJR's breach of the above shall be deemed a material default under the terms of this Agreement giving rise to the Town's right, in its sole discretion, to terminate this Agreement. D. The BUR hereby agrees to hold harmless, defend and indemnify the Town and its employees, members and officials from and against all liability, loss, damage, costs, penalties, fines and/or expenses (including attorney's the fees and court costs) arising out of or in any way connected with (a) the BTJR's breach or violation of any covenant, prohibition or warranty in this Agreement concerning Hazardous Materials, or (b) the activities, acts or omissions of BUR, its employees, contractors or agents on or affecting the Facility from and after the Possession Date, including but not limited to -7- the release of any Hazardous Materials or other kinds of contamination or pollutants of any kind into the air, soil, groundwater or surface water on, in, under or from the Facility whether such condition, liability, loss, damage, cost, penalty, fine and/or expense shall accrue or be discovered before or after the termination of this Agreement. This indemnification supplements and in no way limits the scope of the indemnification set forth in Section 9.B. E. The BTJR waives, releases, acquits and forever discharges the Town and its employees, members and officials or any other person acting on behalf of the Town, of and from any and all claims, actions, causes of action, demands, rights, damages, costs, expenses, or compensation (collectively "Claims") whatsoever including, but not limited to, all Claims at common law, whether direct or indirect, known or unknown, foreseen or unforeseen, which the BTJR has as of the Possession Date on account of or in any way growing out of or in connection with any Hazardous Materials or other conditions on, in, under, from, or affecting the Facility, or any law or regulation applicable thereto. The BTJR is hereby subrogated to any and all rights possessed by the Town against third parties with respect to said Claims. F. The agreements and obligations of the BTJR under this Section 12 with regard to indemnification of the Town shall survive the scheduled termination or sooner expiration of the Term for any reason, for five (5) years and all claims relating thereto must be delivered in writing to the BTJR within such period. 13. Assignment and Delegation. This Agreement, and any portion thereof, shall not be assigned or transferred, nor shall any of the BTJR's duties be delegated, without the written consent of the Town. Any attempt to assign or delegate this Agreement without the written consent of the Town shall be void and of no force or effect. The Town's consent to one assignment shall not be deemed to be consent to any subsequent assignment. 14. Waivers. Waiver of a breach or default under this Agreement shall not constitute a continuing waiver or a waiver of a subsequent breach of the same or any other provision of this Agreement. 15. Notices. All notices required or contemplated by this Agreement shall be in writing and shall be delivered to the respective party as set forth in this section. Communications shall be deemed to be effective upon the first to occur of. (a) actual receipt by a party's Authorized Representative, or (b) actual receipt at the address designated below, or (c) three working days following deposit in the United States Mail of registered or certified mail sent to the address designated below. The Authorized Representative of either party may modify their respective contact information identified in this section by providing notice to the other party. TO: -8- Town Attn: Town Manager Tiburon Town Hall 1505 Tiburon Boulevard Tiburon, CA 94707 BUR Attn: Director, Belvedere-Tiburon Joint Recreation Committee 16. Headings. The heading titles for each section of this Agreement are included only as a guide to the contents and are not to be considered as controlling, enlarging, or restricting the interpretation of the Agreement. 17. Severability. If any term of this Agreement (including any phrase, provision, covenant, or condition) is held by a court of competent jurisdiction to be invalid or unenforceable, the Agreement shall be construed as not containing that term, and the remainder of this Agreement shall remain in full force and effect; provided, however, this paragraph shall not be applied to the extent that it would result in a frustration of the parties' intent under this Agreement. 18. Governing Law, Jurisdiction and Venue. The laws of the State of California shall govern the interpretation, validity, and enforcement of this Agreement. Any suit, claim, or legal proceeding of any kind related to this Agreement shall be filed and heard in a court of competent jurisdiction in the County of Marin. 19. Attorney's Fees. In the event any legal action is commenced to enforce this Agreement, the prevailing party is entitled to reasonable attorney's fees, costs, and expenses incurred. 20. Modifications. This Agreement may not be modified orally or in any manner other than by an agreement in writing signed by both parties. 21. Conflicts. If any conflicts arise between the terms and conditions of this Agreement and the terms and conditions of the attached exhibits or any documents expressly incorporated, the terms and conditions of this Agreement shall control. -1- 22. Entire Agreement. This Agreement, including all documents incorporated herein by reference, comprises the entire integrated understanding between the parties concerning the work described herein. This Agreement supersedes all prior negotiations, agreements, and understandings regarding this matter, whether written or oral. The documents incorporated by reference into this Agreement are complementary; what is called for in one is binding as if called for in all. 23. Binding on Successors. This Agreement shall be binding on the heirs, legatees, devisees, administrators, executors, successors and assigns of both parties. 24. No Third Party Beneficiaries. This Agreement is by and between only the Town and the BTJR and creates no rights in third parties. 25. Signatures. The individuals executing this Agreement represent and warrant that they have the right, power, legal capacity, and authority to enter into and to execute this Agreement on behalf of the respective legal entities of the Town and the BTJR. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns. IN WITNESS WHEREOF, the Town and the BTJR do hereby agree to the full performance of the terms set forth herein. APPROVED AS TO FORM: By Town Attorney APPROVED AS TO FORM: By Attorney for BTJR TOWN OF TIBURON By ,/lug 1c Town Manag BELVEDERE-TIBURON JOINT RECREATION COMMITTEE By BTJR Cofnmittee L -2- Exhibit A. The Town has authorized BUR to remove the following items from their current offices in Town Hall 1. Desks and office furnishings. 2. Desk top computers. 3. The telephones [to be discussed]. 4. All other personal property located in BTJR's current offices that is not affixed to the building in some way (no fixtures, window coverings, etc.) As used in this Agreement, BTJR's current offices do not include the Community Room located upstairs in Town Hall. All table, chairs, easels, furnishings and other items used in the CommunityRoom will remain in Town Hall. -3-