LEASE AGREEMENT
BETWEEN THE CITY OF HERCULES
AND THE COUNTY OF CONTA COSTA
FOR THE OPERATION OF THE HERCULES PUBLIC LIBRARY
PARTIES: Effective on 7-l _, 2007, the CITY OF HERCULES, a municipal corporation hereinafter called "CITY," and the COUNTY OF CONTRA COSTA, a political subdivision of the State of Calitornia, hereinafter called "COUNTY," mutually agree and promise as follows:
PURPOSE: The CITY is the owner of that property improved with a 22,000 square foot library Library ("Library") in that building for the use and benefit of the residents of the City of Hercules, and neighboring areas. One room in that building is also used by the CITY for the operation of the Homework Help Center. It is the purpose and intent of this agreement to formally set forth the tenancy and various rights, duties, obligations and responsibilities of each party with regard to the use and maintenance of the Library, including the division of responsibilities.
3. LEASE OF PREMISES: CITY, for and in consideration of the mutual promises of the parties as set forth herein, hereby leases to COUNTY, and COUNTY leases from CITY, the Premises described herein for the use and operation of the Hercules Public Library.
4. TERM AND TERMINATION: The term ("Term") of this Agreement shall be forty (40) years commencing on April 1, 2007, and terminating on March 31, 2047, unless earlier terminated as provided herein. Either party shall have the right to terminate this Agreement by giving the other party one hundred eighty (180) days prior written notice. In the event of termination, COUNTY shall leave the Premises and all furnishings and equipment in good working order, and shall remove only personal property, equipment, and collection material paid for or funded by COUNTY and not reimbursed by the CITY. All other equipment and collection materials shall remain with the Premises. CITY shall have the right to purchase any equipment and collection materials paid for or funded by the COUNTY, and not reimbursed by the CITY, at its fair market value existing at the time of termination.
CONSIDERATION: The sole consideration for the use of the Premises shall be COUNTY'S provision of public library service to the residents of the Hercules community, as well as the covenants set forth herein. No rent shall be due or payable during the Term of this Agreement.
HOLDING OVER: Any holding over after the Term of this Agreement as provided hereinabove shall be construed to be a tenancy from month to month, subject to the terms of this Agreement so far as applicable.
USE OF PREMISES: The Premises shall be used by COUNTY during the Term of this Agreement exclusively for purposes of conducting public library services, subject only to such rules, regulations, and conditions as are generally applied throughout the COUNTY's library 8/12/2007 5:04 PM 1
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service. The Library will be managed by the Hercules Community Library Manager ("Library Manager") employed by the COUNTY.
A. CITY currently shares the occupancy of that room on the Premises shown on page two of Exhibit "B" described herein with COUNTY. CITY uses the room for the operation of a Homework Help Center, and the COUNTY uses the room for training and other activities.
Clly reserves the right to use the Premises for the programming of classes, activities and programs in conjunction with that Homework Help Center, so long as such use does not interfere directly with normal Library functions. All such use will be coordinated between the CITY and the Library Manager prior to commencement of such use.
B. CITY shall establish use guidelines for use of the Library meeting rooms, shall schedule use of the meeting rooms and shall collect fees for using the meeting rooms, if applicable.
Library programs shall be given priority for the use and scheduling of the meeting rooms during Library hours of operation, and COUNTY shall not be charged for use of the meeting rooms.
C. The space shown on page two of Exhibit "B 3," attached hereto and made a part hereof, shall be provided for use by the Hercules Friends of the Library.
D. Any use of the Premises after Library hours by CITY or parties acting under CITY's direction shall be entirely the responsibility of CITY. CITY shall indemnify COUNTY for such use as described in Section 15. Indemnification, herein. Similarly, any use of the Premises after Library hours by COUNTY or parties acting under COUNTY's direction shall be entirely the responsibility of COUNTY. COUNTY shall indemnify CITY for such use as described in Section 15. Indemnification, herein.
CITY RESPONSIBILITIES:
CITY shall both provide and pay for the following services to the Premises:
A. Exterior building maintenance, including landscaping and grounds; B. Interior building maintenance;
C. HVAC system maintenance and service;
D. Custodial services;
E. Provision of maintenance and replacement of the building furnishings that are identified in Exhibit "C," attached hereto and made a part hereof;
Garbage and recycling service;
G. Telephone;
H. Building Security System, including alarm and card readers; I. Pest control;
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J. Water, sewer, gas and electricity; and
K. Fire protection and fire extinguisher service.
Items 8.A. through K. in this Section above shall be provided at a level consistent with the level of maintenance provided to all CITY facilities. CITY shall meet with COUNTY prior to the selection of a custodia. contractor, so that CITY and COUNTY can agree upon the level of custodial services that will be provided to the Premises. Alternately, CITY shall have the right to provide such services utilizing CITY employees.
COUNTY RESPONSIBILITIES:
A. The COUNTY has agreed to provide the following at its expense:
Library services. COUNTY shall provide forty-five (45) hours of operation each week, including but not limited to, all personnel costs. CITY and COUNTY hereby acknowledge that the 45-hour amount was derived upon consideration of the following:
a. Twenty-nine (29) hours is the base level of staffing paid for by the COUNTY provided to each COUNTY library.
b. Three (3) hours as follows: The CITY originally agreed to pay for three (3) additional hours of operation each week, in exchange for the COUNTY Agreed that 1) rather tha her of a paral or there and in to o operation, CITY will instead create and make a contribution to the Technology Fund described in Section 9.B.3 herein in an amount equal to the COUNTY's estimated cost of providing three (3) hours of service, and ii) the COUNTY will provide those three (3) additional hours of operation at the COUNTY's expense. In addition, the COUNTY will continue to match the three (3) additional hours of operation that were originally to be paid for by CITY, as described in Section 9.A.1.c herein below.
c. Three (3) hours that represent the COUNTY's match of the CITY's contribution described in Section 9.A.1.b. herein above. d. Ten (10) hours are in exchange for the CITY paying the costs of operating the Library as described in Section 8. City Responsibilities, as further described in Exhibit "D," attached hereto and made a part hereof. The number of hours outlined above, and the specific hours of operation each week, may only be changed upon the written agreement of the COUNTY and the CITY.
2. Books and supplies. COUNTY will provide all books and other materials and supplies necessary to operate the Library.
3. Data lines. COUNTY will provide all data lines for automated library systems, except that the CITY will pay for costs to install those data lines.
4. Machinery. COUNTY will provide five (5) self-check machines.
B. In addition to the above items, COUNTY shall provide the following services or equipment to the Premises, but at CITY'; expense. CITY shall immediately reimburse COUNTY for the following upon its receipt of COUNTY's written request for reimbursement:
1. All equipment described in Exhibit "E," attached hereto and made a part hereof 6/12/2007 5:04 PM 3
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2. Maintenance and replacement of all of the equipment described in Exhibit "E," including but not limited to the payment of annual service agreements for all copy machines.
In exchange for three (3) additional hours of operation that the CllY agreed to fund described above in Section 9.A.1.b, CITY will instead create a Technology Fund ("Technology Fund") for the sole purpose of replacing Library computers, and will deposit an amount into the Technology Fund each year that is equal to the COUNTY's cost of providing the three (3) additional hours of service. CITY and COUNTY acknowledge and agree that the cost of the three (3) additional hours provided by COUNTY is estimated to cost the following amounts in future years:
Fiscal Year 06/07 - $39,858
Fiscal Year 07/08 - $41,564
Fiscal Year 08/09 - $43,643
Fiscal Year 09/10 - $45,825
Fiscal Year 10/11 - $48,116
CITY and COUNTY shall mutually agree upon the number of computers to be replaced at the beginning of each fiscal year based on the amount available in the Technology Fund
C. Prior to the beginning of each fiscal year, COUNTY shall submit to the CITY a list of building furniture and equipment described in Exhibits "C" and "E" attached hereto that will require either repair, maintenance, or replacement in the following year. CITY agrees to either perform that repair, maintenance, or replacement of that furniture or equipment, at its expense, or shall provide COUNTY with the funds necessary for the COUNTY to perform such maintenance, repair, or replacement.
10. USE OF VOLUNTEERS: Volunteers are vital and welcome in the operation of the Hercules Public Library. CITY acknowledges and understands that volunteers will be utilized on the Premises to enhance services offered to the public.
11. STAFFING: In the event the Library Manager is replaced for any reason, then COUNTY shall allow the CITY to participate in the selection of a permanent replacement of the Library Manager.
The Library Manager will report to a Deputy County Librarian, and will make regular reports to the Hercules Library Commission, the CITY Manager, and, when appropriate, to the Hercules CITY Council.
12. ALTERATIONS AND/OR ADDITIONS: No improvements or alterations shall be made to the Premises, including, but not limited to, the building, without the prior written approval of the CITY. Any such alterations or additions shall be at COUNTY's sole cost and expense.
13. SIGNS AND/OR FIXTURES: The Library shall be kept free of visual clutter including but not limited to unsightly advertising and notices. Temporary paper signs or notices shall not be attached to shelving, furniture, counters, walls, windows, or doors within the Library, and shall only be attached to appropriate tackable surfaces or bulletin boards. All signs shall meet with existing code requirements, and with CITY's approval.
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14. OWNERSHIP OF CONTENTS: CITY's personal property, including all fixtures, furnishings and equipment, existing on the Premises at the commencement of this Agreement are as described on Exhibit "C," which is attached hereto and made a part hereof ("CITY's Property"). Such CITY's Property shall include all personal property within the Premises provided or purchased by the CITY, by the fundraising efforts of either the Friends of the Hercules Library, the Hercules Library Foundation, or by private fundraising, for use of and operation by COUNTY under the terms of this Agreement, including but not limited to the Opening Day Collection. Further, all of CITY's Property within the Premises shall be separately catalogued and inventoried by the CITY throughout the Term of this Agreement, and shall remain CITY's Property in the event of the termination of this Agreement. All personal property provided by the COUNTY ("COUNTY's Property"), shall remain the property of the COUNTY beyond the termination of this Agreement.
15. INDEMNIFICATION: COUNTY agrees to indemnify and hold CITY, its officers and employees harmless from the COUNTY's share of all liability, losses, costs or expenses, including attorneys' fees arising out of the negligent acts, errors or omissions of COUNTY, its officers, agents or employees.
CITY agrees to indemnify and hold COUNTY, its officers and employees harmless from the CITY's share of all liability, losses, costs or expenses, including attorneys' fees arising out of the negligent acts, errors or omissions of CITY, its officers, agents or employees.
CITY shall further indemnify, save, protect and hold the COUNTY, its officers, agents and employees harmless from any and all claims, costs and liability, including reasonable attorneys' fees, for any damage, injury or death, including without limitation all consequential damages from any cause whatsoever, to persons or property, including but not limited to the Library Exhibits described in Exhibit "F," attached hereto and made a part hereof, arising directly or indirectly from or connected with any after-hours use by any party, as referenced in Subsection 7.D herein above, or CITY's or any third party's operations, or CITY's or third party's use or possession of the Premises, save and except claims or litigation arising through the sole negligence or sole willful misconduct of the COUNTY, its officers or employees.
Similarly, COUNTY shall further indemnify, save, protect and hold the CITY, its officers, agents and employees harmless from any and all claims, costs and liability, including reasonable attorneys' fees, for any damage, injury or death, including without limitation all consequential damages from any cause whatsoever, to persons or property, including but not limited to the Remington statue owned by the COUNTY and on display in the Library, arising directly or indirectly from or connected with any after-hours use by any party, as referenced in Subsection
7.D herein above, or COUNTY's or any third party's operations, or COUNTY's or third party's use or possession of the Premises, save and except claims or litigation arising through the sole negligence or sole willful misconduct of the CITY, its officers or employees.
16. INSURANCE: COUNTY is self-insured and shall maintain coverage under its self- insurance program for public liability, and for COUNTY-owned materials, furniture, and equipment, as well as the CITY-owned Opening Day Collection. CITY shall maintain adequate comprehensive property and public liability coverage for the building, grounds, and contents, excluding COUNTY employees and COUNTY-owned materials, furniture, and equipment. 6/12/2007 5:04 PM 5
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17. ASSIGNMENT OR SUBLEASE: COUNTY shall not have the right to assign this Agreement or sublease the Premises or any part thereof at any time during the Term of this Agreement without the prior written consent of CITY.
18. DESTRUCTION:
A. In the event of damage causing a partial destruction of the Premises during the Term of this Agreement from any cause, and repairs can be made within sixty (60) days from the date of the damage under the applicable laws and regulations of governmental authorities, CITY shall repair said damage promptly and within a reasonable time, but such partial destruction shall not void this Agreement.
B. if such repairs cannot be made in sixty (60) days, CITY may, at its option, make the same within a reasonable time. In the event CITY does not so elect to make such repairs (which cannot be made in sixty (60) days), or such repairs cannot be made under such laws and regulations, this Agreement may be terminated at the option of either party.
C. A total destruction of the Premises shall terminate this Agreement.
D. Damage caused by negligence of COUNTY personnel shall be repaired at COUNTY's expense.
19. DEFAULTS: In the event of a material breach of this Agreement by a party hereto, the non- defaulting party may serve the defaulting party with written notice of the breach and the action the defaulting party needs to take in order to cure the breach. If the defaulting party fails to cure the breach within thirty (30) days after the service of such written notice, or within such additional time as the non defaulting party may allow in writing, then this Agreement shall terminate.
20. ALTERNTATE DISPUTE RESOLUTION: Before resorting to mediation, arbitration or other legal process, the parties shall meet-and-confer and attempt to amicably resolve any and all disputes arising from or relating to this Agreement or the breach thereof, subject to the following provisions:
A. Any party desiring to meet and confer shall so advise the other party pursuant to a written notice. Within fifteen (15) calendar days after provision of that written notice by the party desiring to meet and confer, the primary contacts for each party shall meet in person and attempt to amicably resolve their dispute. Each primary contact, or the duly authorized person acting in their absence, shall attend the meeting, shall have full authority to resolve the dispute and shall be prepared to devote an entire day thereto. If any dispute remains unresolved at the end of the first meeting, the parties can either (1) agree to schedule one or more subsequent meetings, or (i) any party to this Agreement shall have the right to invoke the mediation process provided for in subparagraph (b) below. 6/12/20075:04 PM 6
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B. Subject to the provisions of subparagraph (a), any dispute that remains unresolved after the meet-and-confer session or after either party invokes the mediation process shall immediately be submitted to non-binding neutral mediation before a mutually acceptable, neutral retired judge or justice at the Walnut Creek, California Offices of the Judicial Arbitration and Mediation Service (JAMS) or its successor. The parties shall have ten (10) calendar days after the conclusion of the meet-and-confer process, or after any party invokes the mediation process, whichever is earlier, to select a mutually acceptable, neutral retired JAMS judge or justice to serve as the neutral mediator. If within said ten calendar days the parties are unable to agree upon the selection of a neutral mediator, then the first available retired judge or justice at the Walnut Creek JAMS Office shall serve as the neutral mediator. The first session of mediation shall be held no sooner than fifteen (15) calendar days and no later than forty-five (45) days after the selection or appointment of the neutral mediator. The parties agree to dedicate at least one (1) full day to each mediation session. Each of the parties' primary contacts, or the duly authorized person acting in their absence, shall attend each mediation session and shall have full authority to resolve the dispute. Additionally, to expedite the resolution of any dispute that is not resolved by mediation, the parties shall each bring to every session of the neutral mediation a list of at least five (5) neutral arbitrators, including their resumes, whose availability to commence an arbitration hearing within fifteen (15) calendar days after the mediation is unsuccessful as defined below has been confirmed.
C. If mediation is unsuccessful, then before the mediation concludes, the parties shall mediate the selection of a neutral arbitrator to assist in the resolution of their dispute. For purposes of this Agreement, mediation shall be deemed unsuccessful if (i) the parties agree that they are not able to reach a mutually satisfactory resolution of their dispute, or (li) they have participated in mediation sessions involving their dispute on three (3) separate days without reaching a resolution, whichever is earlier. If the parties are unable to agree on the selection of a neutral arbitrator, the parties shall submit the selection of a neutral arbitrator to the mediator, whose selection shall be final and binding on the parties provided, however, that the mediator shall be disqualified from serving as arbitrator unless the parties otherwise agree. In that case, the mediator shall select one neutral arbitrator from the then active list of retired judges or justices at the Walnut Creek JAMS Offices. The arbitration shall be conducted pursuant to the provisions of the California Arbitration Act, sections 1280-1294.2 of the California Code of Civil Procedure as in effect or as amended from time to time. In the case of arbitration, the provisions of California Code of Civil Procedure Section 1283.05 shall not be incorporated into, made a part of, or made applicable to this Agreement, and no discovery shall be permitted or allowed. The arbitrator's award shall be final, binding, and irrevocable except that it may be confirmed, corrected, or vacated as provided in California Code of Civil Procedure Sections 1285- 1288.8, as amended from time to time.
D. The parties covenant and agree that they will participate in any meet and confer session, mediation, and arbitration in good faith. The parties will equally share the costs of any mediator or arbitrator, but will otherwise bear their own costs and attorneys fees in any meet and confer session, mediation, or arbitration. All offers, promises, conduct and statements, whether oral or written, made in the course of the meet-and-confer or mediation by any of the parties, their agents, employees, experts and attorneys, and by the mediator or any JAMS employee, are confidential, privileged and inadmissible for any 6/12/2007 5:04 PM
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purpose, including but not limited to impeachment, in any arbitration or other proceeding involving the parties, provided that evidence that is otherwise discoverable or admissible shall not be rendered inadmissible or non-discoverable as a result of its use in any meet and confer session or mediation.
21. SURRENDER OF PREMISES: On the last day or earlier termination of this Agreement, COUNTY will peaceably and quietly leave and surrender the Premises to CITY.
INSPECTION: CITY reserves the right to have its employees, agents, or contractors enter the Premises at any time in performance or exercise of CITY's obligations and rights hereunder.
CITY shall exercise this right in a manner which minimizes the disruption of Library activities.
WRITTEN AGREEMENT:Neither party has relied on any promise or representation not contained in this Agreement. All previous conversations, negotiations, and understandings are of 10 further force or effect. This Agreement may be modified only in writing signed by bot arties. The headings of the paragraphs are for convenience only and are not a part of thi Agreement; nor shall they be considered in construing the intent of this Agreement.
SUCCESSORS AND ASSIGNS: The terms and provisions of this Agreement shall extend to and be binding upon and inure to the benefit of the successors and assigns of the respective parties
25. TIME: Time is of the essence of each and all of the terms and provisions of this Agreement.
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26. NOTICES: All notices required by this Agreement shall be directed as follows:
TO COUNTY: TO CITY:
County Librarian City Manager
Contra Costa County Library City of Hercules
1750 Oak Park Blvd. 111 Civic Drive
Pleasant Hill, CA 94523 Hercules, CA 94547
Contra Costa County
General Services Department
Real Estate Services Division
1220 Morello Avenue, Suite 100
Martinez, CA 94553
IN WITNESS WHEREOF, THE PARTIES HAVE EXECUTED THIS Agreement on the day and year first above written.
COUNTY CITY
COUNTY OF CONTRA COSTA, a CITY OF HERCULES, a municipal political subdivision of the State of corporation
California
By Haup By
Michael J. Lango Nelson Oliva
Director of General Services City Manager
RECOMMENDED FOR APPROVAL:
Dune Cane
By
Anne Cain Alfred Cabra
County Librarian City Attorney
By n but veines.
Dick R. Awenius
Real Estate Manager
APPROVED AS TO FORM:
Silvano Marchesi, County Counsel
By Whathe
Deputy
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