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HomeMy WebLinkAboutUkiah Valley Cultural and Recreation Center 2011-02-15; Amendment 2 2013-02-15 _. ��.. � ����J �� " A�- I AMENDMENT NO. 2 TO MANAGEMENT AGREEMENTFOR ALEX RORABAUGH CENTER I This agreement amends the City of Ukiah and Ukiah Valley Cultural Recreation Center Management Agreement for the Alex Rorabaugh Center between the City of Ukiah ("City") and the Ukiah Valley Cultural and Recreation Center ("ARC"), dated February 15, 2011 ("Management AgreemenY'). This is the second amendment to the Management Agreement. Except as expressly amended by this agreement, the Management Agreement is not changed and remains in full force and effect between the Parties, as it read on February 15, 2011. , Section 2.1 in Section 2, headed: "Term," is amended to read as follows: 2. Term. � 2.1 The term of this Agreement shall commence on February 15, 2011 and , terminate at midnight on February 14, 2015, unless eariier terminated by I either party as provided in Section 2.2 or extended as provided in Section 2.3. The term of this Agreement shall be four (4) years, provided, however, that within 60 days after the end of the third year of the four year term, the , parties shall review their experience during that first three years. Upon completion of that review, either party shall have the option to notify the I other party that it will not extend the lease beyond the four year term and the lease shall terminate on February 14, 2015. If neither party gives notice as provided in this paragraph after the parties have conducted the three year review, this Agreement may be extended on the same terms for � an additional five years. The extended term shall be subject to a review within a reasonable time after the fourth year of the extended term. Both parties may agree to extend the lease for an additional five year term. . ,, . IN WITNESS WHEREOF, the UVCRC and the City have executed this Agreement as of , the day and year first above written. UVCRC By: Ma-¢.�tcJ (¢�T�v _ Name: �/��e� , Title: City of Ukiah Appr� s to for David apport By: �%-,,.-� ���_��— City Attorney Name: Jane Chambers Title`�ity Manager . SECOND AMENDED SUBLEASE AGREEMENT I This amended sublease agreement is amended for a second time, effective February 15 2013, between the City of Ukiah ("City"), a general law municipal corporation, having its principal place of business at the Ukiah Civic Center, 300 Seminary Avenue, Ukiah, California, on behalf of and as the agent for Ukiah I Valley Cultural and Recreation Center ("Sublessor") and the Boys 8� Girls Club of ' Ukiah ("Sublessee"), a non-profit, public benefit corporation organized under the laws of the State of California, having its principal place of business at 1640 S. State St, Ukiah, Mendocino County, California. This Second Amended Sublease Agreement replaces in its entirety the sublease agreement for the Leased Premises originally entered by the Parties on February 15, 2011, as amended by � the Amended Sublease Agreement. The Sublessor leases the premises located at 1640 S. State Street, Mendocino County, California ("Alex Rorabaugh Center") from the Ukiah Unified School District under an Agreement for the Construction, Operation, Maintenance of A Gymnasium by and between the Ukiah Unified School District and Ukiah Valley Cultural And Recreational Center, dated March 30, 2010 ("Lease AgreemenY'). � This sublease shall comply with all applicable provisions of the Lease Agreement. In any conflict between the provisions of this sublease and the Lease Agreement, the provisions of the Lease Agreement shall prevail. The City is authorized by its Management Agreement with Subleassor to negotiate and enter sublease agreements for all or part of the Alex Rorabaugh Center. When the Sublessor or Sublessee is authorized or required to give or I receive notice or payment or perform an act under the terms of this Sublease, the ' City shall give or receive that notice or payment or perform that act on behalf of Sublessor. SECTION ONE I DESCRIPTION OF PREMISES II Sublessor subleases to Sublessee a portion of the Alex Rorabaugh Center ("the I Leased Premises") that portion being more particularly described in paragraph 4 of Attachment A, which is attached hereto and incorporated herein. As stated in said paragraph portions of the building described therein are subleased to Sublessee for its exclusive or non-exclusive use during prescribed days and hours. These areas are part of the Leased Premises during those days and hours, but not at other times, unless otherwise agreed in writing. The Gymnasium is not complete and is not currently available for use by the j Sublessee and is not included in the term "Leased Premises." When the 'i Gymnasium has been completed and accepted for occupancy and use by Sublessor, it will give Sublessee written notice of such acceptance and availability for use. The notice shall contain a space for Sublessee to sign as acknowledging receipt of the notice and of Sublessee's inspection and approval �i Page 1 of 10 � � I thereof. Upon execution of the notice by Sublessee, the Leased Premises will include the Gymnasium to which Sublessee will thereafter have access in accordance with paragraph 4.K of Attachment A. SECTION TWO TERM The term of this sublease shall commence on February 15, 2011 and terminate at midnight on February 14, 2015, unless earlier terminated as provided in other provisions of this sublease or extended as provided in this Section Two. The term of this sublease shall be four (4) years, provided, however, that within 60 days after the end of the third year of the four year term, the parties shall review their experience during the that first three years. Upon completion of that � review, either party shall have the option to modify the other party that it will not I extend the lease beyond the four year term and the lease shall terminate on February 14, 2015. If neither party gives notice as provided in this paragraph I after the parties have conducted the third year review, this sublease may be extended on the same terms for an additional five years. The extended lease term shall be subject to a review within a reasonable time after the fourth year of the extended term. Both parties may agree to extend the lease for an additional five year term. SECTION THREE RENT A. During the initial 24 month sublease, rent for the Leased Premises shall be $2,000 per month until the Leased Premises includes the gymnasium, when the rent will increase to $2,500 per month. Rent payments under this lease include the cost of utilities which will be furnished by Sublessor. If the gymnasium becomes part of the Leased Premises after the first of the month, rent for that month will be pro-rated based on the number of days in that month. After the initial 24 month sublease, rent will not increase by more than five percent (5%) annually. Rent is due on or before the first day of each month and shall be considered delinquent, if not received by Sublessor by the tenth day of the month. "Received" means physical delivery of cash or a check, made payable to the City of Ukiah, to 411 West Clay Street, unless the check is returned for insufficient funds, in which event "received" will mean credit in immediately available funds to the City of Ukiah's bank account of funds paid or transferred by Sublessee. The parties may agree to electronic funds transfer in which event "received° means credit of immediately available funds to the City of Ukiah's bank account. �I B. If rent due under this paragraph is delinquent, Sublessee shall pay Sublessor I a late fee of 10% of the monthly rent. Rent that remains delinquent for 30 days or Page 2 of 10 i more shall be subject to interest at the monthly rate of 1.5% on the unpaid balance, until paid in full. Late fees and interest shall be considered part of the rent due hereunder. Their imposition is in addition to any other remedies Sublessor may have in law or in equity for Sublessee's failure to pay rent when due under the terms of this Lease, including, but not limited to, termination of the sublease. Failure to cure a rent delinquency within 45 days of the date the rent become delinquent shall furnish grounds to terminate this lease. C. SECTION FOUR USE OF PREMISES Sublessee shall use the Leased Premises in accordance with the requirements set forth in Attachment A, paragraphs 1-5 and not at any other day or time or for � any other purpose without the prior written consent of Sublessor. SECTION FIVE RESTRICTIONS ON USE A. Sublessee shall not use the Leased Premises in any manner that will increase the risks covered by insurance on the Leased Premises or result in an increase in the rate of insurance or a cancellation of any insurance policy, even if such use may be in furtherance of Sublessee's business purposes. B. Sublessee shall not keep, use, or sell anything prohibited by any policy of fire insurance covering the Leased Premises, and shall comply with all requirements of the insurers applicable to the Leased Premises necessary to keep in force the fire and liability insurance. SECTION SIX i WASTE, NUISANCE, OR UNLAWFULACTIVITY Sublessee shall not allow any waste or any public or private nuisance on the Leased Premises, or use or allow the Leased Premises to be used for any i unlawful purpose, in violation of any applicable, statue, regulation, ordinance or rule, or in a manner that disturbes the peaceful enjoyment of other tenants or users of the Alex Rorabaugh Center or Grace Carpenter Hudson School.. SECTION SEVEN DELAY IN DELIVERING POSSESSION This lease agreement shall not be rendered void or voidable by the inability of Sublessor to deliver possession to Sublessee on the date set forth in Section Two. Sublessor shall not be liable to Sublessee for any loss or damage suffered by reason of such a delay. No extension of this lease agreement shall result from i a delay in delivering possession. � Page 3 of 10 - � • j SECTION EIGHT REPAIRS AND MAINTENANCE Routine cleaning and maintenance shall be performed by Sublessor and Sublesee as specificed in paragraph 4 of Attachment A. Sublessor shall be responsible for maintenance or repairs not covered by paragraph 4, except for i repairs to damage caused by Sublessee or its invitees, which shall be the ' responsibility of Sublessee. Notwithstanding Section Sixteen, a party responsible for a maintenance or repair activity will be in breach of the sublease, if it fails to perform the required maintenance or repair or to adequately warn of the condition and subsequently perform the maintenance and repair within the time required to avoid a dangerous condition of the Leased Premises. SECTION NINE DELIVERY, ACCEPTANCE, AND SURRENDER OF PREMISES A. Sublessee has had an adequate opportunity to inspect the Leased Premises and satisfy itself that prior to Sublessee's occupation and use thereof, the Leased Premises are in a safe and satisfactory condition for Sublesee's intended use thereof. Sublessee has not relied upon any representation or warranty of Sublessor, the City of Ukiah or Ukiah Unified School District about the condition of the Leased Premises and accepts the , Leased Premises in its AS IS condition. Acceptance of the Leased Premises by Sublessee shall be construed as recognition that the Leased Premises are in a good state of repair and in sanitary condition. B. Sublessee shall surrender the Leased Premises at the end of the sublease term, or any renewal of such term, in the same condition as when Sublessee took possession, allowing for reasonable use and wear, and damage by acts of God, including fires and storms. Before delivery, Sublessee shall remove all business signs placed on the Leased Premises by Sublessee and restore the portion of the Leased Premises on which they were placed in the same condition as when received. SECTION TEN PARTIAL DESTRUCTION OF PREMISES Partial destruction of the Leased Premises shall not render this sublease void or voidable, nor terminate it except as specifically provided herein. If the Leased Premises are partially destroyed in a manner that adversely affects Sublessee's ability to use and occupy the Leased Premises, it shall be entitled to an abatement of rent based on the percentage of use curtailed by the I damage. If the space is not restored to a satisfactory condition within 120 days, either party may, but neither party is required to, terminate the sublease. Page 4 of 10 I J SECTION ELEVEN ENTRY ON PREMISES BY SUBLESSOR C. Sublessor reserves the right to enter at any time upon the Leased Premises in connection with its management of the Alex Rorabaugh Center, including those portions of the Leased Premises subject to Subiessee's exclusive and non-exclusive use and to inspect them, except thjat Sublessor shall give Sublessee 48 hours prior notice before it enters the premises to pertorm required, non-emergency maintenance and repairs, or to make additions, alterations, or modifications to any part of the building in which the Leased Premises are located, and Sublessee shall permit Sublessor to do so. Sublessor may erect scaffolding, fences, and similar structures, post relevant notices, and place moveable equipment in connection with making alterations, additions, or repairs, all without incurring liability to Sublessee for disturbance of quiet enjoyment of the Leased Premises, or loss of occupation of the Leased Premises. SECTION TWELVE I SIGNS, AWNINGS, AND MARQUEES INSTALLED BY SUBLESSEE il A. Except as stated in paragraph 2 of Attachment A, Sublessee shall not I construct or pface signs, awnings, marquees, or other structures projecting from or on the exterior of the Leased Premises without the prior written consent of Subfessor. Sublessee shall remove signs, displays, advertisements, or decorations it has placed on the premises that, in the opinion of Sublessor, are offensive or othennrise objectionable. If Sublessee fails to remove such signs, displays, advertisements, or decorations within 10 days after receiving ; written notice from Sublessor to remove them, Sublessor reserves the right to enter the Leased Premises and remove them at the expense of Sublessee. B. The primary signage for the facility will be "Alex Rorabaugh Center." SECTION THIRTEEN ', NONLIABILITY OF SUBLESSOR FOR DAMAGES Sublessor shall not be liable for damage claims for injury to persons or property from any cause relating to the occupancy of the Leased Premises by Sublessee, including those arising out of damages or losses occurring on sidewalks and other areas adjacent to the Leased Premises. Sublessee shall indemnify, defend, and hold harmless the Sublessor, City of Ukiah and Ukiah Unified School District and their officers, officials, and employees from and against any and all liability, loss, damage, expense, costs (including without limitation costs and fees of litigation) of every nature arising out of Sublessee's occupation and use of the , Leased Premises, including the condition of the Leased Premises. 'I Page 5 of 10 SECTION FOURTEEN LIABILITY INSURANCE Sublessee shall comply with the insurance requirements in Attachment B, attached hereto and incorporated herein. SECTION FIFTEEN ASSIGNMENT, SUBLEASE, OR LICENSE A. It is the intent of both parties that the Alex Rorabaugh Center will be available to the public, non-profit organizations and others for rental use. The Sublessor may rent portions of the Leased Premises not designated for Sublessee's exclusive use and all or any portion of the Center which are not part of the Leased Premises without notice to or consent of Sublessee. Sublessor agrees to operate, manage and coordinate all programs, activities and events occurring at the Alex Rorabaugh Center consistent with the Center's overall mission and purpose. B. Sublessee shall not assign, sublease or rent the Leased Premises, or any right or privilege connected with the Leased Premises, or allow any other person except invitees, agents and employees of Sublessee to occupy the Leased Premises or any part of the Leased Premises without first obtaining the written consent of Sublessor. Consent by Sublessor shall not be consent to a subsequent assignment, sublease, or occupation by other persons. C. An unauthorized assignment, sublease, or license to occupy by Sublessee shall be void and shall terminate this sublease agreement at the option of Sublessor. D. The interest of Sublessee in this sublease is not assignable by operation of law without the written consent of Sublessor. E. If City terminates its Management Agreement with Subleassor and ceases to perform as its agent, this sublease shall continue in effect between Sublessor and Sublessee. SECTION SIXTEEN BREACH A. Any material breach of this lease constitutes a breach and any action taken or suffered by Sublessee as a debtor under any insolvency or bankruptcy laws, including the filing of a voluntary or involuntary petition in the United States bankruptcy court, any assignment for the benefit of creditors or the appointment I of a receiver or any failure to perForm in compliance with this sublease shall � constitute a material breach of this sublease. In such event, Sublessor shall have the right to terminate this sublease and retake possession of the Leased Premises and any improvements thereon. Alternatively, if Sublessee successfully Page 6 of 10 I I petitions a bankruptcy court under 11 U.S.C. §365, or any successor statute, to assume this sublease as an executory contract or lease, the parties agree that the rent hereunder shall immediately increase to its fair rental value, which shall be based on comparable square footage of high quality commercial property. Except for failure to pay rent, Sublessee shall have 45 days after receipt of written notice from Sublessor of any breach to correct the conditions specified in the notice. If the corrections cannot be made within the 30 day period, Sublessee shall have a reasonable time to correct the default if action is commenced by Sublessee within 10 days after receipt of the notice and Sublessee diligently pursues to completion the actions required to cure the breach. B. In the case the breach is of the insurance requirements set forth in Section Fourteen, the Sublessee will immediately cease operations until the Sublessor excises its right in Section Fourteen or the Sublessee furnishes to the satisfaction of the Sublessor reasonable proof of insurance coverage in accordance with Section Fourteen. SECTION SEVENTEEN REMEDIES OF SUBLESSOR FOR BREACH BY SUBLESSEE Sublessor shall have the following remedies in addition to its other rights and remedies in the event Sublessee breaches this sublease and fails to make corrections as set forth in Section Si�een: A. Sublessor may terminate this sublease, in which event Sublessee shall immediately vacate the Leased Premises. If Sublessor is guilty of unlawful detainer as provided in California Code of Civil Procedure Section 1161, Sublessor may bring an action to recover possession and, at its option, declare of forfeiture of the sublease. B. Upon termination, Sublessor may recover from Sublessee all damages proximately resulting from the breach, including, but not limited to, the cost of recovering the Leased Premises and the balance of the rent payments remaining due and unpaid under this sublease agreement. I C. After reentering, Sublessor may relet the Leased Premises or any part of the Leased Premises for any term without terminating this sublease, at such rent and on such terms as it may choose. Sublessor may make alterations and repairs to the Leased Premises. D. In addition to Sublessee's liability to Sublessor for breach of this sublease, Sublessee shall be liable for all expenses for repairs made, and for the difference between the rent received by Sublessor under the new lease agreement and the rent installments that were due for the same period under this sublease. E. Sublessor, at its option, shall have the right to apply the rent received from reletting the premises (a) to reduce Sublessee's indebtedness to Page 7 of 10 Sublessor under this agreement, not including indebtedness for rent, (b) to expenses of repairs made, (c) to rent due under this lease agreement, or (d) to payment of future rent under this lease agreement as it becomes due. SECTION EIGHTEEN ATTORNEY'S FEES In the event that either party commences litigation against the other to enforce any provision or terms of this Agreement, the prevailing party in said litigation shall be entitled to recover all attorneys' fees, costs, and expenses incurred in connection with the litigation, all fees to be fixed by the court. SECTION NINETEEN I, WAIVERS I Waiver by Sublessor of any breach of any covenant or duty of Sublessee under this sublease is not a waiver of a breach of any other covenant or duty of I Sublessee, or of any subsequent breach of the same covenant or duty. SECTION TWENTY I DISPUTES The parties agree that the law of the State of California shall be used in � interpreting this Agreement and will govern all disputes under this Agreement and will determine all rights thereunder. Venue shall be in Mendocino County. Both parties agree to resolve disputes, except for non-payment of rent, at an informal level and to pursue mediation where they are not able to resolve the dispute informally. Either party may request informal dispute resolution and/or mediation by written notice to the other party. If any dispute is not resolved informally or by mediation within 30 days after a party gives notice pursuant to this Selction 20, the parties may exercise any or all remedies available at law or in equity for a material breach of this sublease. SECTION TWENTY ONE ENTIRE AGREEMENT This sublease agreement, including Attachments A and B, shall constitute the entire agreement between the parties concerning Sublessee's occupation and use of the Leased Premises. Any prior understanding or representation of any kind preceding the date of this sublease agreement shall not be binding upon either party except to the extent incorporated in this agreement. Page 8 of 10 I � SECTION TWENTY TWO I MODIFICATION OF AGREEMENT This agreement may only be modified by a writing approved by both parties and signed by authorized representatives of the parties.. SECTION TWENTY THREE , NOTICES � � All notices, demands, other writings, or payments required or permitted by this agreement shall be given, by either party to the other, and delivered personally, by fax with acknowledgment of reciept, or by U.S. Mail with proper first class postage affixed thereto. Notices shall be deemed given when received or 24 hours after deposited in the mail and addressed as follows: To Sublessor. City of Ukiah, 300 Seminary Dr., Ukiah, CA 95482. FAX: 463-6204 , To Sublessee: Boys & Girls Clubs of Ukiah, POB 67, 1640 South State St., I Ukiah, CA 95482. FAX: The address or fax number to which any notice, demand, or other writing may be I ' given or made or sent to any party as above provided may be changed by written notice given by such parry as above provided. SECTION TWENTY FOUR BINDING EFFECT This lease agreement shall bind and inure to the benefit of the respective heirs, personal representatives, successors, and assigns of the parties � SECTION TWENTY FIVE TIME OF THE ESSENCE It is specifically declared and agreed that time is of the essence of this sublease. SECTION TWENTY SIX I PARAGRAPH HEADINGS The titles to the paragraphs of this lease agreement are solely for the convenience of the parties and shall not be used to explain, modify, simplify, or aid in the interpretation of the provisions of this lease agreement. In witness, each party to this sublease has caused it to be executed at Ukiah, CA on the date indicated below. Page 9 of 10 i - --- — — ��-� ��-�- Y���� James Goltz, Preside ,�oys & Girls Club of Ukiah Date ` 1;� / - �1Z l� � ��C�y-,ti��.__ ��Yr�� Jane Chambers, City Manager, City of Ukiah Date / 1a/�ctr4�_�� 3f�y I�i Marvin Trotter, President, UVCRC at Page 10 of 10