Loading...
HomeMy WebLinkAbout08 LIBRARY LEASE AGREEMENT 04-21-09Inter-Com DATE: APRIL 16, 2009 TO: HONORABLE MAYOR AND MEMBERS OF CITY COUNCIL FROM: WILLIAM A. HUSTON, CITY MANAGER SUBJECT: LIBRARY LEASE AGREEMENT Attached is a staff report regarding the lease agreement between the City and County of Orange for the new library. City and County staff are finalizing the amount for parking lot and landscape maintenance to be paid annually by the County. The amount will be determined by the City Council's meeting on April 21, 2009. For this reason, the amount in Section 9.3.3 of the attached agreement is indicated as "to be determined." 8 • AGENDA REPORT Agenda Item Reviewed: r .. `~~ ., City Manager ~~ Finance Director N/A MEETING DATE: APRIL 21, 2009 TO: WILLIAM A. HUSTON, CITY MANAGER FROM: CHRISTINE A. SHINGLETON, ASSISTANT CITY MANAGER SUBJECT: TUSTIN LIBRARY LEASE SUMMARY: Tustin City Council approval is requested to authorize the City to enter into along-term Lease between the City of Tustin and the County of Orange for the new Tustin Library. RECOMMENDATION: It is recommended that the City Council approve the Tustin Library Lease between the City of Tustin and County of Orange and authorize the City Manager and/or Assistant City Manager to make minor changes to the Lease as a result of final discussions with the County of Orange and to execute the Lease subject to approval of the City Attorney of all Lease documents. FISCAL IMPACT: With execution of the Tustin Library Lease, the County of Orange will be responsible for operations and maintenance of the Tustin Library for the term of the Lease. However, provisions of the lease provide for the County to share expenses with the City associated with exterior ground maintenance on the Lease Premises and adjacent parking lot areas being developed with the Library project, provided that the County's cost obligations for exterior ground maintenance will be capped annually pursuant to the Lease. City costs for parking lot and ground maintenance will be funded annually in the Public Works Field Services operational budget. The City will manage and schedule usage of the Multi-purpose Community Meeting Room/ Professional Training Facility based on a fee schedule to be established by the City with the County to bill the City for janitorial expenses. These janitorial expenses will be off-set by fees commensurate with costs to be collected by the City's Community Services Department. Tustin Library Lease Page 2 BACKGROUND: The City Council at its meeting of April 7th continued discussion on this matter to permit additional discussions with the County of Orange. General Background on Tustin Library Project Over the last several years the City has worked tirelessly to replace the existing Tustin Branch Library with a new Tustin Library building based on the City previously receiving assurance from the County of the County's willingness and commitment to operate the new Tustin Library. Completion of Phases I & II of the new Tustin Library building are rapidly approaching completion and we expect a soft opening in May or early June. Phases III and~IV of the Library Project (demolition, additional parking and Library Plaza construction) are expected to be completed in early fall, at which point in time a grand opening celebration will be scheduled. Tustin Library Lease Under an existing ground lease executed on July 9, 1974, as amended, the existing Tustin Library Branch site is owned by the City of Tustin and leased to the County of Orange. The County constructed the existing library building which, under the terms of the existing lease, would have reverted to the City upon termination of the existing lease. OC Libraries will continue to operate the existing library until the new Tustin Library is completed, at which time the County will relocate to the new Tustin Library building pursuant to the new Tustin Library Lease. Upon occupancy of the new building by the County, the new lease will commence and the existing lease will automatically terminate. The County will provide a bill of sale on the old library building which will permit the City to demolish the building. A copy of the proposed Tustin Library Lease is attached. Major terms of the Tustin Library Lease can be summarized as following: • Term of the Lease. The term of the Lease will be for forty (40) years with two (2) additional and consecutive ten (10) year extensions possible. • Option to Terminate. The City retains an option to terminate upon written notice at least three hundred sixty-five (365) days prior to a Lease Termination Date or for a non-cured breach of the Lease. • Rent. Since the Lease provides for library services within the City of Tustin, no base rent is required. The County shall be responsible for all operating expenses of the Leased Premises; certain minor exceptions are identified in the Lease. • County Purchases. As part of the Library Project, the City is providing a completely furnished new building with new fixtures, furniture and equipment. The County has Tustin Library Lease Page 3 requested that it be permitted to purchase certain furniture and equipment items from County vendors (i.e. computers) which the City was otherwise required to purchase as part of the project. City will reimburse the County for the actual costs of these purchased items at a cost not to exceed $357,498. The City shall continue to own the items purchased by the County and the City until they are replaced by the County. The County shall be responsible, at its sole expense, for the maintenance, repair and replacement of all furniture and equipment provided by the project's budget. • Permitted Uses of Leased Premises. Use and occupancy shall be solely for the purpose of operating and maintaining a Library, subject to joint services between the County of Orange, City of Tustin and Tustin Unified School District. Joint Use areas of the new Tustin Library include a Homework Center, Computer Learning Center, and Multi-Purpose Community Room/Professional Training facility and adjacent conference room, kitchen and restrooms. • Alterations/Construction of Improvements. The Lease defines what requires City approval of certain construction improvements. • Protection/Repair and Maintenance. The County shall provide, at its sole cost and expense, for the protection and repair, and keep of the Lease Premises in a good order and condition. • Parking, Hardscape and Landscape Costs. The County and City will share the costs of the parking lot and landscape areas adjacent to the lease premises with the County being responsible for parking and landscape costs on the lease premises, provided in any event that the County's annual financial obligation will be capped under the Lease. • Insurance. The City will be required to procure and maintain a property and fire insurance policy for the Premises. County will self insure and maintain a general liability policy covering its operations on the Leased Premises in a combined coverage amount of two million dollars ($2,000,000), which amount may be increased as determined necessary in the future by the City. The County will also be required to provide workers compensation insurance. Both the County and the City also have mutual indemnity and hold harmless provisions in the lease. • Other Provisions. Other provisions are basically standard to leases entered into by the City. There are a few minor elements of the Tustin Library Lease to be finalized and the City is awaiting final approval from the County. So as to permit execution of the Lease prior to the move-in date for Phases I and II of the Tustin Library, staff requests that the City Council delegate staff the authority to complete the negotiations and any minor changes to the Lease subject to approval of all documents by the City Attorney. Tustin Library Lease Page 4 Environmental Clearance Under the California Environmental Quality Act Implementing Guidelines, the City Council previously approved a Negative Declaration for the project with adoption of Resolution No. 02-49, and recorded a Notice of Determination with the County Recorder on May 30, 2002. Christine A. Shingleton Assistant City Manager Attachment -Tustin Library Lease ATTACHMENT TUSTIN LIBRARY LEASE TUSTIN LIBRARY LEASE 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 2R THIS TUSTIN LIBRARY LEASE, (hereinafter referred to as "Lease"), is made this day of , 2009, by and between The City of Tustin, a municipal corporation organized under the laws of the State of California ("CITY"), and the County of Orange ("COUNTY"), apolitical subdivision of the State of California. The term "COUNTY" shall mean the Board of Supervisors of the political body that executed this agreement or its authorized representative. The CITY and COUNTY may individually be referred to herein as a "Party" and collectively as the "Parties". RECITALS A. The City is currently a member of the Orange County Public Library system. B. The OC Public Libraries ("OCPL/OC Community Resources") is a department of the County that currently operates a library in the City of Tustin, located at 345 East Main Street, Tustin, California. C. The existing library site is currently owned by the City and ground leased to the County, pursuant to a Lease dated July 9, 1974, as amended March 30, 1976, September 17, 1991 and May 21, 2002 ("Existing Lease"). D. The City has found the existing library to be of insufficient size due to growth in the community and growth in the need for public library services and facilities. E. It is the City's current intent to remain in the OCPL system. F. City has pursued the acquisition and construction of a new Tustin Library ("New Tustin Library") based on the City previously receiving assurance from the County, as the Operating Authority, of the County's willingness and commitment to operate the New Tustin Library. G. County will continue to operate the existing library until the New Tustin Library is completed, at which time the County will relocate the current branch library staff, materials, and computer equipment to the new library, pursuant to this Lease. H. Concurrently with the commencement of this Lease, it is the desire of both parties to terminate the Existing Lease in order to accommodate the New Tustin Library site and building to be owned by City. NOW, THEREFORE, in consideration of the promises and mutual covenants herein the Parties agree as follows: Page 1 of 30 607864.3607864.3 607864.31 2 3 4 5 6 7 8 9 to 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 2R 1.0 DEFINITIONS The definitions below shall apply to the terms/phrases as used in this Agreement and in the Exhibits attached hereto: "Auditor-Controller" means the Auditor-Controller, County of Orange, or designee, or upon written notice to CITY, such other person or entity as shall be designated by the Board of Supervisors. "Board of Supervisors" means the Board of Supervisors of the County of Orange, a political subdivision of the State of California. "CITY" means the City of Tustin, a California municipal corporation. "COUNTY" shall mean the County of Orange, a political subdivision of the State of California. "County Executive Officer" means the County Executive Officer, County Executive Office, County of Orange, or designee, or upon written notice to CITY, such other person or entity as shall be designated by the Board of Supervisors. "Corporate Real Estate" means the OC Public Works, Corporate Real Estate, County of Orange or upon written notice to CITY, such entity as shall be designated by the Director of OC Public Works or the County Executive Officer. "County Librarian" means the County Librarian of the OC Public Libraries of the County of Orange, or designee, or such other person or entity as shall be designated by the Director of OC Community Resources Development, or the County Executive Officer. "County Counsel" means the County Counsel, County of Orange, or designee, or upon written notice to CITY, such other person or entity as shall be designated by the County Executive Officer or the Board of Supervisors. "Existing Lease" means that certain Lease between CITY and COUNTY dated July 9, 1974, as amended March 30, 1976, September 17, 1991 and May 21, 2002. "Leased Premises" refers to the property described in Exhibit A, and the improvements shown on the plot plan in Exhibit B, and the furnishings and equipment described in Exhibit C, which exhibits are attached hereto and by reference made a part hereof. "Lease Commencement Date" means the date that CITY notifies COUNTY upon written notice that the library building is available for occupancy. Page 2 of 30 607864.3607864.3 607864.31 "Lease Termination Date" means the date the Lease terminates pursuant to Sections 4.2.1 and 4.2.2 of the Lease. 4 6 to t1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 2R "Library Lease Administrator" means the Assistant City Manager of the City of Tustin or such other person or entity as shall be designated by the City Manager of the CITY. "Public Areas of the New Tustin Library" includes all of the Leased Premises except the areas designated as "Staff Area" and "Mechanical Room" on Exhibit B. 2.0 LEASED PREMISES FOR TUSTIN LIBRARY CITY hereby leases to COUNTY the Leased Premises described in Exhibit A and shown on Exhibit B and COUNTY leases from CITY the Leased Premises. 3.0 PARKING CITY, throughout the term of this Lease, shall provide parking for COUNTY'S free and non-exclusive use. Said parking spaces shall be located in the parking areas shown on Exhibit D. The CITY shall operate and maintain these parking spaces, roads and landscape areas located on and adjacent to the Leased Premises subject to the provisions of Section 9.3. The use of such parking areas and facilities by COUNTY employees and library patrons shall be subject to reasonable regulations as CITY may make and amend from time to time. The COUNTY shall abide by such regulations and cooperate in their observance. Throughout the Term of this Lease, thirteen (13) parking spaces located on the Leased Premises and two (2) parking spaces located adjacent to the Leased Premises shall be identified for County's free and exclusive use for County library employees only during library operating hours. Such spaces shall be clearly marked for exclusive County use for its employees during library operating hours. In addition to said parking spaces, CITY shall also provide parking for disabled persons in accordance with the Americans with Disabilities Act, Section 7102 of the California Uniform Building Code and the applicable codes and/or ordinances relating to parking for disabled persons as established by CITY, where the provisions of such Federal, State or CITY codes and/or ordinances exceed or supersede the State requirements. If necessary to comply with revised requirements for parking of disabled persons, City may reconfigure and re-stripe any available parking area shown on Exhibit D, including, at City's discretion, parking on the Leased Premises and such reconfiguration and re-striping may, if necessary, have the effect of permanently reducing the number of available parking spaces. 4.0 TERM, COMMENCEMENT, TERMINATION 4.1 Termination of Existing Lease. Upon the Lease Commencement Date of this Lease, it is mutually agreed that the Existing Lease shall automatically terminate with respect Page 3 of 30 607864.3607864.3 6o7s64.3~ 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 2R to all or any portion of the existing library and its applicable premises. Upon the Lease Commencement Date, COUNTY shall execute and deliver to CITY the "Bill of Sale" attached as Exhibit E conveying title to the old library building under the Existing Lease to the CITY. This Lease shall supersede any prior agreement between the parties (except for the duty of indemnification contained in the Existing Lease for claims arising, caused or occurring during the term of the Existing Lease), except that all personal property and/or equipment (fixtures, partitions, counters, and shelving) attached to and/or placed upon any portion of the existing library and its applicable premises by COUNTY pursuant to the Existing Lease between the parties hereto shall remain the personal property of COUNTY who shall have the right to remove same. COUNTY agrees to remove the personal property in a timely manner consistent with the schedule for demolition of the existing Tustin Library (prior to the start of Phase III of the New Tustin Library). County also agrees that the improvements, furnishings and equipment in the new Tustin Library are to be new installations and that the County shall not reinstall old personal property and/or equipment in the Public Areas of the New Tustin Library, except as follows: 4.1.1 Books 4.1.2 Periodicals 4.1.3 Archive materials 4.1.4 Other items and minor office equipment, as approved by the Parties 4.2 Commencement and Termination. 4.2.1 Term. Unless earlier terminated in accordance with provisions of this Lease, the term ("Term") of this Lease shall commence on the "Lease Commencement Date" and end on the date that is the fortieth (40th) year anniversary of the Lease Commencement Date (the "Lease Termination Date"), or until such Lease Term shall sooner cease or expire as hereinafter provided. 4.2.2 Option to Extend Term. Provided that COUNTY is not in default in the performance of this Lease, and that the Lease has not expired nor been terminated as provided herein, and provided CITY has not exercised its Option to Terminate the Lease, COUNTY shall have the option to extend the term of this Lease for two (2) additional and consecutive terms of ten (10) years each, the first commencing at the expiration of the initial Term, provided that the City shall have the right to review terms, covenants and conditions of the Lease and recommend modifications to Lease terms, covenants and conditions subject to review and approval of the COUNTY and CITY. The option(s) to extend the term shall be exercised by written notice given to the CITY not less than ninety (90) days prior to the Lease Termination Date. 4.3 Lease Commencement Date. The Parties agree that the Lease Commencement Date shall be the date the CITY notifies COUNTY in writing that the new library building is available for occupancy. Page 4 of 30 607864.36078643 607864.31 4 6 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 2R 4.4 Option to Terminate Lease. CITY shall have the option to terminate the Lease upon giving the COUNTY written notice at least three hundred sixty-five (365) days prior to a Lease Termination Date which termination shall take effect on that Lease Termination Date, or in the event of a non-cured breach of this Lease as defined in Section 16.0, the non-breaching party may give written notice upon such time frame as is defined in Section 16.0. The following sections of this Agreement shall survive any expiration or termination: Sections 4.6, 7.3,7.4,8.3.6,8.3.7,9.2and10. 4.5 Commencement of Possession. If City is unable to give possession of the Premises on the Lease Commencement Date, this Lease shall not be void or voidable by COUNTY and CITY shall not be subject to any liability for such failure to give possession on such date. No such failure to give possession on the Lease Commencement Date shall in any way affect the obligations of COUNTY hereunder, nor shall the same be construed in any way to extend the Term of the Lease, however, in no event shall the Lease Commencement Date begin prior to the commencement of possession of the Premises by County, without express written approval by County. 4.6 Surrender Upon expiration of the Term of this Lease or its termination, the COUNTY shall quietly and peacefully remove itself and its property from the Leased Premises and surrender the Leased Premises to CITY on the expiration date in good order, condition and repair (except for reasonable wear and tear) and free and clear of all liens and encumbrances other than (a) those, if any, permitted hereby or otherwise created or consented to in writing by CITY, and (b) any leasehold mortgage permitted in writing by CITY. In the event CITY terminates this Lease for a default of the Lease by COUNTY, the COUNTY shall be allowed a reasonable period of time, as determined by CITY, in which to remove all of its property from, and terminate its operation on the Leased Premises. During such period prior to surrender, all obligations assumed by COUNTY under this Lease shall remain in full force and effect. The CITY may in its discretion, following thirty (30) days notice to the COUNTY, declare any property which is owned by COUNTY and which has not been removed from the Leased Premises upon surrender, as abandoned property. 5.0 CONSIDERATION/RENT 5.1 Generally. For purposes of this Lease, Base Rent, Operating Expenses and Additional Rent are hereinafter referred to as "Rent". All Rent payments due and owing shall be made to the CITY and shall be delivered to the CITY Finance Director at 300 Centennial Way, Tustin, California 92780, or to a third party at such other place as the City may designate in writing from time to time. 5.2 Base Rent. In consideration of the library services provided to CITY by COUNTY, COUNTY shall not be obligated to pay Base Rent to the CITY for use of the Leased Premises throughout the term of the Lease. Page 5 of 30 607864.3607864.3 607864.31 4 6 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 2R 5.3 Operating Expenses. The COUNTY shall be responsible for all operating expenses of the Leased Premises, unless otherwise noted in this Lease, and shall directly pay all charges, and impositions related to the Leased Premises including, but not limited to, utility costs and costs related to operating the Leased Premises, the cost of future capital improvements, maintenance, insurance, taxes, code compliance, and provisions necessary for security, and any costs necessary to comply with the terms, covenants and conditions of this Lease (collectively "Operating Expenses"). In addition, the COUNTY shall pay for, or directly perform, all protection and maintenance services for Leased Premises as described in Sections 9.1 through 9.4, and COUNTY shall pay for its proportionate share of all operating costs and expenses for parking and landscaping areas adjacent to the Leased Premises and serving the New Tustin Library as shown on Exhibit D, and the shared use of the Multi- Purpose Community Room/Professional Training Facility on the Leased Premises as provided under Sections 9.2 and 9.3. Any costs incurred by CITY resulting from the COUNTY'S failure to perform under this section shall be a "Cost Reimbursement" obligation under Section 5.3.2. 5.4 Late Charges. If any payment, or any part thereof, to be made by COUNTY to CITY or CITY to COUNTY pursuant to the terms of this Lease shall become overdue for a period in excess of thirty (30) calendar days, then in addition to any other remedies available to Parties under this Lease or otherwise, each Party shall pay to the other Party late charge interest from the first date such payment, or part thereof, was overdue until the date paid equal to ten percent (10%) of such overdue amount for purposes of defraying the expense incident to handling such delinquent payment. 5.5 No Waiver. Nothing herein or in the imposition or acceptance by CITY of default interest shall be construed as a waiver of any rights of CITY arising out of any default of COUNTY hereunder; the right to collect any such default interest is separate and apart from any rights or remedies of CITY relating to any such default by COUNTY. 6.0 FURNITURE AND EQUIPMENT 6.1 County Purchases. In conjunction with construction of the New Tustin Library, CITY has designed, in collaboration with the County, and will fund the installation of certain new fixtures, furniture and equipment for the Leased Premises. Considerable attention has been paid in this process to ensure a high quality of finishes and the aesthetic appearance of the New Tustin Library. COUNTY acknowledges and agrees that it is the intent of both parties that installation of fixtures, furniture and equipment in the new Tustin Library will be new installations and that COUNTY will not be reinstalling old furniture, fixtures or equipment in the Public Areas of the New Tustin Library. COUNTY has requested that they be permitted to purchase certain furniture and equipment items as shown on Exhibit F and specified for the New Tustin Library project by CITY utilizing COUNTY vendors ("County Vendor Supplied Property"). Subject to the terms and limitations set forth in subsections 6.1.1 throu hg 6.1.3 below, County shall purchase and CITY shall reimburse COUNTY for the actual cost of the Page 6 of 30 607864.3607864.3 607864.31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 2R County Vendor Supplied Property and CITY shall own the County Vendor Supplied Property until it is replaced by the COUNTY. COUNTY shall, at its sole expense, maintain, repair and replace County Vendor Supplied Property during the term of this Lease. CITY agrees to provide reimbursement to COUNTY for specific furniture and equipment items as shown on Exhibit F, and any other items as agreed to by the Parties subject to the following: 6.1.1 COUNTY reviews its final purchase specifications (including, but not limited to, manufacturer's details, colors, materials, etc. for these specific items) with the CITY, for CITY written approvals to ensure proper coordination with interior finishes, furniture, equipment, and available infrastructure, and the designed locations of specific items on the approved Construction Plans for the New Tustin Library. 6.1.2 The purchase cost for County Vendor Supplied Property shall not exceed THREE HUNDRED FIFTY-SEVEN THOUSAND FOUR HUNDRED NINETY-EIGHT DOLLARS ($357,498). 6.1.3 To the extent COUNTY purchasing relationships with vendors results in savings to the purchase price for such CITY reimbursed items, this savings shall be for the benefit of the CITY and COUNTY shall not be authorized to purchase alternative or additional purchases for these CITY reimbursable items beyond the items identified on Exhibit F without written approval of CITY. COUNTY also agrees that it will have scheduled for delivery and installation any furniture and/or equipment it purchases consistent with the schedule for completion of the Phase II portion of the New Tustin Library project and will be responsible for any project management and coordination required to ensure adequate coordination of installations with the construction contractor and other furniture, fixture and equipment installations by other parties, at COUNTY's sole expense. 6.2 Moving and Relocation Expenses. In consideration of the considerable project costs that have been borne by the CITY for the New Tustin Library, COUNTY acknowledges and agrees that it will be responsible, at its sole cost and expense, for moving its books and library collections and certain other miscellaneous contents to the Leased Premises consistent with provisions of Sections 4.1 and 6.1. COUNTY also agrees that it will coordinate any such move and relocation consistent with the completion of Phase II of the New Tustin Library. 7.0 USE OF LEASED PREMISES 7.1 Permitted Use of Leased Premises. The COUNTY may use and occupy the Leased Premises solely for the purpose of operating and maintaining the New Tustin Library and other purposes incidental and related thereto, including the provision of free public library services; EXCEPT that said Premises may be used for joint use services in collaboration between the COUNTY, CITY and Tustin Unified School District as identified and pursuant to the "Joint Use Cooperative Agreement Between the County of Orange, the City of Tustin and Page 7 of 30 607864.3607861.3 607864.31 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 2R the Tustin Unified School District for Enhanced Educational Services ", dated December 16, 2003 ("Joint Use Agreement") as such agreement maybe amended. 7.2 Library Hours of Service and Description of Joint Use Pro~rammin~. 7.2.1 The COUNTY acknowledges that CITY requested, pursuant to the Joint Use Agreement and CITY's funding of the New Tustin Library, that the New Tustin Library be open a minimum of 67 hours per week, seven days a week, excluding COUNTY-wide holidays. ("Operating Hours"). COUNTY agrees that it will confer and consult with CITY at least ninety (90) days prior to any alteration of Operating Hours by COUNTY. 7.2.2 COUNTY agrees that major areas of the New Tustin Library have been designed to accommodate joint use between the OCPL and CITY including a Homework Center, Computer Learning Center, and Multi-Purpose Community Room/Professional Training facility and adjacent Conference Room, Kitchen and Restrooms. Interior Joint-use space is shown on Exhibit G, attached hereto. Additionally, an outdoor Plaza Area is an exterior joint use area and is also shown on page 2 of Exhibit G. 7.2.3 The space in the New Tustin Library for the Homework Center shall be available for use by students and their parents, dedicated volunteers (adults and students), and the COUNTY during all Operating Hours. 7.2.4 The space in the New Tustin Library for the Computer Learning Center shall be available for use by students, parents, or Tustin residents, and the COUNTY during all Operating Hours provided that the Computer Learning Center shall not be available unless a Party, including the COUNTY or CITY on behalf of anon-COUNTY or non-CITY group, has reserved the Computer Learning Center and agrees to provide dedicated volunteers or paid staff to monitor and staff the Computer Learning Center during its use. 7.2.5 The COUNTY acknowledges and agrees that there will be times when the Homework Center and Computer Learning Center shall be reserved and used, at no additional cost to the CITY, to accommodate students and teachers from local schools for library tours, class visits, technology training, volunteer or tutor training, or orientations. 7.2.6 During regular Library Operating Hours and also after regular Operating Hours, the COUNTY acknowledges and agrees that there will be times when the Multi- Purpose Community Room/Professional Training Facility with its ancillary adjacent Conference Room, Kitchen, and Restrooms, including furniture and equipment assigned to these rooms ("Training Materials and Rooms") and outdoor Plaza Area shall be reserved and used, at no additional cost to the CITY, to accommodate CITY approved meetings, trainings and other special event needs. Custodial services for the Training Materials and Rooms shall be provided in accordance with Section 9.2 hereinbelow. County costs of maintenance and operating expenses of hardscape and landscaping costs associated with the outdoor Plaza Area Page 8 of 30 607864.3607864.3 607864.31 2 3 4 5 6 7 8 9 to I1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 2R shall be provided in accordance with Section 9.3 hereinbelow. The scheduling of reservations for the Multi-Purpose Community Room/Professional Training Facility with its Training Materials and Rooms and the outdoor Plaza Area shall be coordinated by the CITY's Parks and Recreation Department in consultation with the COUNTY'S Librarian at the New Tustin Library. The COUNTY acknowledges and agrees that CITY may permit another user, other than CITY or COUNTY, to use the Multi-Purpose Community Room/Professional Training Facility and its Training Materials and shall have the right to charge a rental rate for such users. CITY shall keep all such rental income and use it for whatever purposes CITY in its sole discretion may decide. 7.3 Compliance with Laws and Regulations. The COUNTY covenants and agrees that it shall observe and comply with all laws, orders, regulations, rules, ordinances and requirements now in force, or which may thereafter be in force, of federal, state, county and city governments, and of all other governmental authorities to the extent that they are applicable to the Leased Premises (collectively, the "Governmental Requirements"). The COUNTY shall pay, and to the extent incurred by CITY, shall reimburse CITY for, all costs, expenses, claims, fines, penalties and damages, including any attorney fees and costs of defense, that may in any manner arise out of, or be imposed because of, failure of the COUNTY to comply with the provisions of this section. 7.4 Toxic Materials. COUNTY hereby warrants and represents that COUNTY in its operation of the Leased Premises will comply with all laws and regulations relating to the storage, use and disposal of hydrocarbon substances and hazardous, toxic or radioactive matter, including, but not limited to, those materials identified in Title 22 of the California Administrative Code Sections 66680 through 66685, as amended (collectively "Toxic Materials") on the Leased Premises. COUNTY shall be responsible for and shall defend, indemnify and hold CITY, its officers, directors, employees, agents, and representatives, harmless from and against all claims, costs and liabilities, including attorneys' fees and costs arising out of, or in connection with, the storage, use, and disposal of Toxic Materials on the Leased Premises by COUNTY. If the storage, use, and disposal of Toxic Materials on the Premises is caused by COUNTY and results in contamination or deterioration of water or soil resulting in a level of contamination greater than maximum allowable levels established by any governmental agency having jurisdiction over such contamination, COUNTY shall promptly take any and all action required by such agency to investigate and clean up such contamination. Likewise, CITY hereby warrants and represents that CITY has in the past and will hereafter comply with all laws and regulations relating to the storage, use and disposal of Toxic Materials on the Leased Premises. CITY shall be responsible for and shall defend, indemnify and hold COUNTY, its officers, directors, employees, agents, and representatives, harmless from and against all claims, costs and liabilities, including attorneys' fees and costs arising out of or in connection with the previous, current and future storage, use and disposal of Toxic Materials on the Leased Premises by CITY. If the previous, current and future storage, use, and disposal of Toxic Materials on the Premises is caused by CITY and results in Page 9 of 30 607864.3607864.3 607864.31 2 3 4 5 6 7 8 9 to 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 2R contamination or deterioration of water or soil resulting in a level of contamination greater than maximum allowable levels established by any governmental agency having jurisdiction over such contamination, CITY shall promptly take any and all action required by such agency to investigate and clean up such contamination. 8.0 ALTERATIONS 8.1 The COUNTY shall not make alterations to the Leased Premises without prior consultation with the CITY and approval except as are specifically identified in Section 8.2. Alterations shall mean any modifications, additions, or improvements to the real property or improvements that will be provided by OCPL , whether by addition or deletion ("Alterations"). Maintenance, repairs and replacement shall not constitute Alterations so long as any property replaced is of like kind and quality. It is intended by the Parties that after commencement of the Lease Term, the CITY shall have no obligation, in any manner, to fund or complete any Alterations to the Leased Premises. Except with respect to Minor Alterations (as hereinafter defined), COUNTY shall process all Alterations, as applicable, consistent with the provisions of Section 8.0. All Alterations (including, without limitation, all Minor Alterations) shall be done promptly and in good and workmanlike manner and shall be in quality and class. 8.2 The COUNTY may from time to time after commencement of the Lease Term without prior consultation with the CITY or approvals, perform Alterations to the real property or improvements that are non-structural alterations ("Minor Alterations") provided such Minor Alterations individually meet all of the following criteria: (1) Would not require COUNTY to obtain a building permit for the completion of the Minor Alteration; (2) Would not result in a violation of any provision of this Lease; (3) Would not cost in excess of twenty-five thousand dollars ($25,000) (an Alteration costing in excess of $25;000 shall not be divided into multiple smaller projects of less than $25,000 in order to avoid this requirement); (4) Would not result in substantial change in the character of improvements, or the use for which they are intended, or in a substantial change in access or major entries to, or public areas on, the Leased Premises; (5) Would not involve or result in any change in the exterior of the improvements that materially changes the design of the improvements, based on the original approved plan for the improvements; (6) Would not be of lesser quality or result in the diminution of the value of the Leased Premises; (7) Would not weaken the structural integrity of the improvements, or any portion thereof; Page 10 of 30 607864.3607864.3 607864.31 2 3 4 5 6 7 8 9 to 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 2R (8) Improvements and changes in the Leased Premises which meet criteria contained herein and which involve the installation of fixtures, partitions, counters, shelving, and equipment as deemed necessary or appropriate. It is agreed that any such fixtures, partitions, counters, shelving, or equipment attached to or placed upon the Premises by COUNTY shall be considered as personal property of COUNTY, who shall have the right to remove same provided that any damage to the Leased Premises in the removal or attachment is repaired. (9) COUNTY shall not, without written consent of the CITY, demolish or remove all or any structural part of the real property or any improvement located upon the Leased Premises, except any existing improvements on the Leased Premises that are demolished or removed by the Lessee in compliance with the provisions of this Lease; 8.3 Construction of Improvements. 8.3.1 In the event that the COUNTY desires to construct Alterations which are not considered Minor Alterations, the COUNTY shall prepare and submit to CITY construction plans and other drawings or plans and all related documents pertaining to the Leased Premises ("Construction Drawings") for CITY's review and written approval. All construction documents and bonds shall name the CITY as additional named insureds in any coverage required under the construction documents. Construction drawings are hereby defined as those required for, and in sufficient detail to obtain, any required City of Tustin Land Use Entitlement and building permits for all COUNTY improvements for which permits are required. The CITY shall approve or disapprove Construction Drawings within the time frame for normal construction plan check processing established by the CITY. As owner of the Leased Premises, CITY reserves the right to deny approval of the Alterations for any reason within its discretion, whether or not such reasons are within the CITY's normal authority during land use and building permit review process. Any disapproval shall state in writing the reasons therefore and the changes which the CITY requests be made. The COUNTY shall revise Construction Drawings and resubmit them to CITY, and CITY's review and approval process shall recommence. 8.3.2 Required Licenses and Permits. Before commencement of construction of Alterations on the Leased Premises, the COUNTY shall, at its own expense, secure or cause to be secured, all licenses and permits which may be required by the CITY or any other governmental agency with licensing or permitting authority over such construction. 8.3.3 The COUNTY shall require its contractors to agree in writing to indemnify the CITY from contractor's negligence or willful misconduct in the construction of any Alterations or Minor Alterations by COUNTY on the Leased Premises and to secure Commercial General Liability insurance in an amount determined by CITY appropriate to said construction, endorsed to defend and indemnify CITY in the event of claims arising from any alleged negligence of contractor or its subcontractors. All contractors and subcontractors shall be required to carry Worker's Compensation insurance as required by State Law, and such Page 11 of 30 607A64.3607A64.3 bo7s~4.3~ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 2R policies shall be endorsed to waive subrogation against CITY. COUNTY shall also require any contract design professionals designing any Alterations or Minor Alterations to carry professional errors and omissions insurance, which insurance shall also be endorsed to defend and indemnify CITY in the event of claims arising from any alleged negligence of the design professional. 8.3.4 All work and materials shall be good quality, and all workers and subcontractors shall be skilled in their trades. 8.3.5 The COUNTY covenants and agrees that, solely at COUNTY'S expense, it shall maintain the Leased Premises during and after any construction and keep Leased Premises reasonably free of debris, waste, surplus materials, and surplus equipment. 8.3.6 For any COUNTY Alterations, the COUNTY shall keep the Leased Premises free of any liens or stop notices, and in the event of any lien or stop notice, COUNTY shall incur all costs necessary to defend and promptly resolve such lien or stop notice such that such lien or stop notice shall not be noted as an exception to future title insurance policies. 8.3.7 Upon completion of construction by the COUNTY, the COUNTY shall furnish CITY with as-built plans and specifications. 8.3.8 COUNTY shall be responsible for any applicable prevailing wage requirements as identified in Section 14.2 of the Lease. 9.0 PROTECTION, REPAIR, AND MAINTENANCE 9.1 The COUNTY shall provide, at its sole cost and expense, for the protection, maintenance, repair and shall keep the Leased Premises in a good order and condition, and exercise due diligence in protecting the Leased Premises against damage and destruction by fire and other causes, subject to applicable provisions of this Lease. In the event that the CITY is unsatisfied with any maintenance or repairs performed by the COUNTY, the COUNTY and CITY agree to meet and confer and endeavor to address CITY's reasonable concerns. In addition, the COUNTY shall also provide, at its sole cost and expense, all janitorial supplies and services including, but not limited to, the supplying of restroom expendables and replacement of light bulbs and fluorescent tubes, except for those janitorial services and supplies as provided in Section 9.2. COUNTY shall also provide, at is sole cost and expense, the cleaning, refinishing and repainting of interior and exterior surfaces (as needed); the servicing, maintenance and repair of plumbing, electrical, mechanical and HVAC systems; and fire sprinkler system within the Leased Premises and all necessary repairs to the interior or exterior of the Leased Premises and its improvements. The COUNTY shall also provide, at its sole cost and expense, for the repair and maintenance or replacement, if necessary, of interior and exterior walls, landscaping and irrigation, ramps and walkways, dispenser systems, roof coverings, fixtures, equipment, and furnishings of the Leased Premises except for those maintenance and operating expenses as provided for in Sections 9.2 and 9.3. An inventory of furnishings provided with this Lease is Page 12 of 30 607864.3607864.3 607864.31 shown in Exhibit C and Exhibit F, attached hereto and made a part hereof. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 2R The CITY shall be responsible for any maintenance, repairs, or replacements to the Leased Premises as covered by any warranty or extended warranty periods covered in the CITY construction contract for New Tustin Library entered into prior to the Lease Commencement Date, but only to the extent that such maintenance, repair or replacement does not void the applicable warranty. The City shall provide COUNTY with a copy of all warranties. Any maintenance, repairs, or replacements, or portions thereof, not covered by a warranty or extended warranty, shall be COUNTY's responsibility. 9.2 Multi-Purpose Community Room/Professional Training Facility. If COUNTY schedules use of the Multi-purpose Community Room/Professional Training Facility and Training Materials and Rooms for library purposes or other COUNTY purposes, COUNTY shall provide janitorial services and supplies for said rooms during and after such use, whether such use is during Operating Hours or not. If CITY schedules the Multi-purpose Community Room/Professional Training Facility and Training Materials and Rooms for CITY use, or other CITY approved purpose, or CITY permits another user to use the Multi-Purpose Community Room/Professional Training Facility and its Training Materials and Rooms, COUNTY shall provide janitorial services and supplies for said rooms. COUNTY will submit invoices to CITY on a quarterly basis for the actual cost of providing said janitorial services and supplies for CITY use of said rooms. CITY shall reimburse COUNTY for the actual cost of providing janitorial services and supplies within thirty (30) days after CITY receives invoice from COUNTY for the actual cost of providing janitorial services and supplies. Late charges, as provided in Section 5.4, shall apply to any payments owed to COUNTY by CITY if not received by COUNTY after thirty (30) calendar days from when written invoice has been received by CITY. If COUNTY bears no additional actual costs to provide janitorial services and supplies for CITY or CITY approved user for use of said rooms, CITY shall have no obligation to reimburse COUNTY. COUNTY shall be responsible for any damage to the Multi-purpose Community Room/Professional Training Facility or its Training Materials and Rooms as a result of COUNTY'S use of said facilities for library use or other purposes. CITY shall be responsible for any damage to the Multi-purpose Community Room/Professional Training Facility or its Training Materials and Rooms as a result of CITY's or CITY approved user's use of the facilities. 9.3 Parking, Hardscape and Landscape Costs. Continuing on a quarterly basis beginning January, 2010, CITY shall, within sixty (60) days after the close of each quarter (quarters close March 31, June 30, September 30, and December 31), submit a quarterly invoice and report which states the actual parking and landscaped area maintenance costs for the areas shown on Exhibit D. The COUNTY shall be responsible for reimbursing the CITY certain costs for parking and landscaping area maintenance subject to the terms of this section and as follows: Page 13 of 30 607A64.3607R64.3 6078G4.31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 2R 9.3.1 All costs of reasonable maintenance and operating expenses for parking lot and landscape areas within the Leased Premises, except for maintenance and operating expenses associated with the hardscape area of the outdoor plaza area for which County shall only be responsible for thirty-five percent (35%) of the reasonable maintenance and operating expenses. 9.3.2 Thirty-five percent (35%) of the costs of reasonable maintenance and operating expenses for those parking and landscape areas adjacent to the Leased Premises attributable to the New Tustin Library as shown on Exhibit D. 9.3.3 CITY agrees that the COUNTY'S total annual cap for reimbursing the CITY quarterly costs pursuant to Sections 9.3.1 and 9.3.2 shall not exceed jto be determined) annually. 9.3.4 COUNTY shall have thirty (30) days upon receipt of CITY'S invoice and quarterly report to pay to CITY the COUNTY's costs for parking and landscape areas on the Leased Premises and COUNTY'S share of the reasonable maintenance and operating expenses for parking and landscape areas serving the New Tustin Library adjacent to the Leased Premises. ' Late charges, as provided in Section 5.4, shall apply to any payments owed to CITY by COUNTY if not received by CITY after thirty (30) calendar days from when written invoice has been received by COUNTY. 9.4 Building and Safety Requirements. During the full term of this Lease, COUNTY shall conduct its business on the Leased Premises and maintain the Premises in compliance with all applicable laws, rules, regulations, building codes, statutes, and orders as they are applicable on the date of this Lease and as they may be subsequently amended. Included in this provision is compliance with all applicable requirements of the Americans with Disabilities Act of 1990 (the "ADA") and all other federal, state, and local codes, statutes, and orders relating to disabled access as they are applicable on the dates of this Lease, and as they may be subsequently amended. COUNTY further represents, warrants and covenants that COUNTY shall conduct its business and maintain the Premises as a "safe place of employment," as defined in the California Occupational Safety and Health Act (California Labor Code, Division 5, Part 1, Chapter 3, beginning with Section 6400) and the Federal Occupational Safety and Health Act, where the provisions of such Act exceed, or supersede, the California Act, as the provisions of such Act are applicable on the date of this Lease, and as they may be subsequently amended. 10.0 UTILITIES The COUNTY shall be responsible for and pay when due, prior to the delinquency date, all charges for water, sewer, gas, electricity, telephone, trash disposal services, or other Page 14 of 30 607864.3607864.9 607864.31 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 is 19 20 21 22 23 24 25 26 27 2R communication services or cable television and all other forms of utility services of every kind and nature used, rendered, or supplied to, upon, or in connection with the Leased Premises throughout the Term, including all charges for installation after the Lease Commencement Date of meters, conduits, or other facilities required for such service (unless such meters, conduits, or other facilities were on the final, approved construction plans and specifications used for construction) of the Leased Premises. The COUNTY shall indemnify CITY from and defend and hold CITY harmless against any claim, liability, damage, loss, costs or expenses in connection with such charges. 11.0 INSURANCE 11.1 Property/Fire Insurance. Without limiting the CITY's indemnification, CITY shall self-insure or shall procure, pay all premiums upon, and maintain for the benefit of COUNTY and CITY throughout the Term of this Lease, a policy or policies of property and fire insurance with extended coverage, covering the loss or damage to the Premises to the full insurable value of the improvements located on the Leased Premises (including the full value of all improvements and fixtures, furniture and equipment owned by CITY) at least in the amount of the full replacement cost thereof, against all perils included within the classification of fire, extended coverage, vandalism, malicious mischief, special extended perils ("all risk" as such term is used in the insurance industry, including earthquake and flood) and shall name the COUNTY as an additional insured. The CITY-procured insurance shall not be required to cover the value of books, periodicals, and other Library contents except City-owned fixtures and furniture. Without limiting the COUNTY'S indemnification, COUNTY shall self-insure or shall procure, at its sole expense, property and fire insurance with extended coverage, covering the loss or damage to the books, peridocals, archive materials and other contents located at the Leased Premises at least in the amount of the full replacement cost thereof, against all perils included within the classification of fire, extended coverage, vandalism, malicious mischief, special extended perils ("all risk" as such term is used in the insurance industry, including earthquake and flood) and shall name the CITY as an additional insured. Included in the policy or policies of property and fire insurance shall be a waiver of right of subrogation against COUNTY and CITY by the insurance company issuing said policy or policies. CITY and COUNTY shall each provide the other with evidence of compliance with these requirements. At CITY's and COUNTY'S option, each may self-insure the coverage required by this section. CITY'S insurance (a) shall be in a form satisfactory to COUNTY and carried with a company (or companies) acceptable to COUNTY and licensed to do business in the State of California, (b) shall provide that such policies shall not be subject to material alteration or cancellation without at least thirty (30) days prior written notice to COUNTY, except for non- payment of premium, in which case such policy may be cancelled on not less than 10 days notice, and (c) shall be primary, and any insurance carried by COUNTY and CITY shall be non-contributing. CITY'S policy or policies, or duly executed certificates and endorsements for them, shall be deposited with COUNTY prior to the Commencement Date of this Lease, Page 15 of 30 607864.3607864.3 607864.31 2 3 4 5 6 7 8 9 to 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 2R and prior to renewal of such policies. If CITY fails to procure and maintain the insurance required to be procured by CITY under this Lease, COUNTY may, but shall not be required to, order such insurance and recover the cost from CITY. COUNTY'S insurance (a) shall be in a form satisfactory to CITY and carried with a company (or companies) acceptable to CITY and licensed to do business in the State of California, (b) shall provide that such policies shall not be subject to material alteration or cancellation without at least thirty (30) days prior written notice to CITY, except for non- payment of premium, in which case such policy may be cancelled on not less than 10 days notice, and (c) shall be primary, and any insurance carried by COUNTY and CITY shall be non-contributing. COUNTY'S policy or policies, or duly executed certificates and endorsements for them, shall be deposited with CITY prior to the Commencement Date of this Lease, and prior to renewal of such policies. If COUNTY fails to procure and maintain the insurance required to be procured by COUNTY under this Lease, CITY may, but shall not be required to, order such insurance and recover the cost from COUNTY. 11.2 Public Liability Insurance. Without limiting the COUNTY's indemnification, pursuant to Section 16, the COUNTY shall self insure at its sole expense, or shall maintain in force during the Term of this Lease comprehensive general liability insurance, insuring against claims covering its operations on the Leased Premises and for all injuries occurring in, upon, or about the Leased Premises. Said insurance shall provide for combined coverage of bodily injury and property damage in the amount of not less than Two Million Dollars ($2,000,000). The self-insured liability limits or policy limits shall be increased in such amounts, as may be necessary, based on the CITY's reasonable risk assessment and with written notice to COUNTY by CITY on each ten-year anniversary of the Commencement Date. Such insurance shall be provided with an insurer licensed to do business in the State of California, with a rating of at least A VII, according to the latest Best Key Rating Guide or A-X (if offered by a surplus line carrier that is not admitted). Evidence of such insurance shall be delivered to the CITY on or before the Lease Commencement Date and upon renewal of such policies, including provision of signed certificates of insurance and required signed insurer endorsements. Insurance endorsements (or a copy of the policy, if applicable) shall be provided as evidence of meeting the requirements of this section. All insurance shall be maintained on an occurrence basis. The Insurer shall specifically identify this Lease and the policy shall contain express conditions and/or be endorsed to contain the following provisions: a. The CITY, and its employees, officials, consultants, agents and contractors shall be named as an additional insured. b. Coverage shall not be suspended, voided, cancelled, reduced in coverage or in limits or the policy amended, except after thirty (30) days advance written notice by certified mail, return receipt requested, to CITY except for non-payment of premium, in which case such policy may be cancelled after receipt of not less than 10 days written notice. Page 16 of 30 607864.3607864.3 607864.31 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 2R c. Policy coverage is to be primary and not contributory with any other insurance maintained by the CITY or COUNTY. d. Policy coverage is to provide that all losses shall be payable notwithstanding any act, failure to act, or negligence, of CITY, COUNTY, or any other person. e. The insurer shall waive any right of subrogation against the CITY which may arise by reason of any activities of CITY, COUNTY, or payments made under the policy. 11.3 Workers Compensation Insurance. Workers Compensation insurance shall be maintained by the COUNTY in an amount and form meeting all applicable requirements of the California Labor Code, covering all persons providing services by or on behalf of COUNTY and all risks to such persons. The worker's compensation policies are also to contain, or be endorsed to contain the following provisions: a. The insurer shall waive any right of subrogation against the CITY which may arise by reason of any activities of CITY, COUNTY, or payments made under the policy. b. Coverage shall not be suspended, voided, cancelled, reduced in coverage or in limits except after thirty (30) days advance written notice by certified mail, return receipt requested, to CITY. At COUNTY'S option, COUNTY may self-insure the insurance coverage required by this Subsection 11.3 12.0 INDEMNIFICATION Notwithstanding anything to the contrary hereinabove contained, and irrespective of self- insurance or any insurance carried by COUNTY or CITY, COUNTY shall defend, indemnify and save harmless CITY, its officers, officials, consultants, agents, employees, contractors subtenants, invitees, or licensees from and against any and all claims, demands, losses, or liabilities of any kind or nature which CITY, its officers, officials, consultants, agents, employees, contractors, subtenants, invitees, or licensees may sustain or incur or which may be alleged against them and/or attempted to be imposed upon them for injury to or death of persons, or damage to property as a result of, or arising out of, the intentional acts or negligence of COUNTY, its officers, officials, consultants, agents, employees, contractors, subtenants, invitees, or licensees, in connection with the occupancy or use of the Leased Premises by COUNTY, its officers, officials, consultants, agents, employees, contractors, subtenants, invitees, or licensees. Notwithstanding anything to the contrary hereinabove contained, and irrespective of any insurance carried by CITY, CITY shall defend, indemnify and save harmless COUNTY, its officers, officials, consultants, agents, employees, contractors, subtenants, invitees, or licensees from and against any and all claims, demands, losses, or liabilities of any kind or nature which COUNTY, its officers, officials, consultants, agents, employees, and consultants Page 17 of 30 607A64.3607R64.3 607864.31 2 3 4 5 6 7 8 9 to 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 2R may sustain or incur or which may be alleged against them and/or attempted to be imposed upon them for injury to or death of persons, or damage to property as a result of, or arising out of, the intentional acts or negligence of CITY, its officers, officials, consultants, agents, employees, contractors, subtenants, invitees, or licensees, or arising with regard to the use of the Leased Premises by CITY, its officers, officials, consultants, agents, employees, contractors, subtenants, invitees, or licensees. 13.0 TAXES AND ASSESSMENTS 13.1 Generally. It is mutually understood and agreed that the Leased Premises will be used for a public library and as such will be exempt from real property taxes (but not from special assessments and special assessment district levies) as provided for in Section 202 of the Revenue and Taxation Code. It is also understood and agreed that it is CITY's responsibility to properly and timely claim said exemption through the Orange County Assessor's Office. If CITY has properly claimed said tax exemption and the Premises fails to qualify for said tax exemption under the above-mentioned code section, the CITY agrees to pay the real property taxes prior to delinquency, and the COUNTY agrees to reimburse the CITY for the amount of any such taxes as an Additional Cost Reimbursement pursuant to Section 5.3 of the Lease within thirty (30) days of written demand by CITY. COUNTY shall not be obligated to pay any penalties to pay delinquent taxes or special assessments. 13.2 Future Taxes. The interest created by this Lease may at any time be subject to property taxation in the future under the laws of the State of California. If real property taxes are imposed on this Lease, the party to whom the possessory interest is vested may be subject to the payment of the taxes levied upon such interest. This notice is included in this Lease pursuant to the requirements of Section 107.6 (a) of the Revenue and Taxation Code of the State of California. COUNTY shall also be responsible for payment of other levies imposed upon the Leased Premises during the Term, prior to delinquency. Such levies shall mean any personal property taxes, assessments and governmental charges, whether federal, state, county or municipal, and whether general or special, ordinary or extraordinary, foreseen or unforeseen, imposed upon the Leased Premises, the Rent, or any possessory interest therein, or in the operation of the Leased Premises. COUNTY shall pay to the appropriate governmental authority any such levy applicable to the Leased Premises. In the event that CITY is required by law to collect such levy, the COUNTY shall pay such levy to CITY as an Additional Cost Reimbursement pursuant to Section 5.3.2 of the Lease within thirty (30) days of written demand by CITY. 13.3 Proration. All taxes or levies imposed upon COUNTY, and payable with respect to the Leased Premises, if any, shall be prorated on a per diem basis for any partial tax year included in the Term. COUNTY's obligation to pay taxes or levies during the last year of the Term shall survive the termination of the Lease. Page 18 of 30 607864.3607864.3 607864.31 1 2 3 4 5 6 7 s 9 to 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 2R 13.4 Payment by CITY. In the event that COUNTY fails to pay any required taxes, levies, assessments or charges imposed on this Lease, if any, the CITY may, at its option, at any time during the ten (10) day period after delinquency, pay such taxes, levies, assessments or charges, together with all penalties and/or interest which may have been added thereto by reason of any such delinquency or default, and may likewise redeem the Leased Premises, or any party thereof, of the buildings or improvements located thereon, from any tax sale or sales. Any such amounts so paid by CITY shall be paid by COUNTY to CITY within thirty (30) days of written demand by CITY. 14.0 NON-DISCRIMMINATION, CIVIL RIGHTS AND OTHER LABOR AND PREVAILING WAGE COMPLIANCE REQUIREMENTS 14.1 Non-Discrimination and Equal Opportunity. 14.1.1 The COUNTY covenants and agrees, for itself and each and every person claiming by, through, or under, the COUNTY, that it shall not discriminate against any employee or applicant for employment on any basis prohibited by law and that it will comply with all applicable provisions of the Civil Rights Act of 1964, Section 504 of the Rehabilitation Act of 1973, and the Age Discrimination in Employment Act of 1975 in the use and occupancy, of the Leased Premises. 14.1.2 Equal Opportunity. The COUNTY shall provide equal opportunity in all employment practices. COUNTY shall not discriminate against any employee or applicant for employment because of race, color, religion, sex, or national origin. The COUNTY shall take affirmative action to ensure that applicants are employed, and that employees are treated during employment without regard to their race, color, religion, sex, or national origin. Such action shall include, but not be limited to, the following: employment, upgrading, demotion or transfer, recruitment or recruitment advertising, layoff or termination, rate of pay or other forms of compensation and selection for training, including apprenticeships. The COUNTY shall post in conspicuous places available to employees and applicants for employment, notices setting for the provisions of this non-discrimination. 14.1.3 Obligation to Refrain from Discrimination. The COUNTY covenants and agrees for itself, each and every person claiming by, through, or under the Lease, that: a. No Discrimination. There shall be no discrimination against or segregation of any person, or group of persons, on account of race, color, creed, religion, sex, sexual orientation, marital status, national origin or ancestry in the sublease, assignment, use, occupancy, tenure or enjoyment of the Leased Premises or in construction of improvements on the Leased Premises; nor shall the COUNTY itself, or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the use or occupancy of COUNTY on the Leased Premises, contractors or vendees of the Lessee; b. Restrictions. All contracts shall contain or be subject to substantially the following non-discrimination or non-segregation clauses: Page 19 of 30 607864.3607864.3 607864.31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 2R In contracts. There shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, sexual orientation, marital status, national origin or ancestry in the Lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land, nor shall the COUNTY itself, or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of the COUNTY, contractors or vendees in the Leased Premises. 14.2 Prevailing Wage Requirements. The COUNTY hereby acknowledges and agrees that construction of additional improvements by COUNTY under the Lease may be subject to applicable federal and state labor laws and requirements and that they shall be responsible for investigating the applicability of and, if and to the extent applicable, pay prevailing wages for construction of improvements meeting the requirements of state law, or Davis-Bacon Act wages required by federal law (for certain federally grant funded construction activities, as applicable), or if both are applicable, meeting the higher of the foregoing requirements. The COUNTY hereby agrees that it shall be fully responsible for determining whether the foregoing wage requirements are applicable. The COUNTY agrees to give the CITY prompt written notice of any violation, potential violation, or non-compliance by the COUNTY of these requirements as identified by the applicable agency overseeing such compliance. As a material part of the consideration under this Lease, the COUNTY shall also indemnify, protect, defend and hold harmless CITY and its appointed and elected officers, officials, consultants, employees, agents and contractors from and against any and all claims or acts or omissions of COUNTY in connection with the failure of COUNTY or its officers, officials, consultants, employees, agents or contractors to comply in construction of improvements or alterations of the Leased Premises with any applicable prevailing wage requirements imposed by state and/or the Davis-Bacon requirements imposed by federal law. 14.3 Labor Code Compliance. COUNTY acknowledges and agrees that any future improvements or modifications performed by COUNTY after the Lease Commencement Date shall be governed by, and performed in accordance with, the provisions of Article 2 of Chapter 1, Part 7, Division 2 of the Labor Code of the State of California (Sections 1770, et seq.). These provisions are applicable to improvements or modifications costing more than $1,000. Pursuant to the provisions of Section 1773 of the Labor Code of the State of California, the Orange County Board of Supervisors has obtained the general prevailing rate of per diem wages and the general prevailing rate for holiday and overtime work in the locality applicable to this Lease for each craft, classification, or type of workman needed to execute the aforesaid improvements or modifications from the Director of the State Department of Industrial Relations. Copies of said prevailing wage rates maybe obtained from the State of California, Department of Industrial Relations or County Librarian. When required by applicable law, the COUNTY hereby agrees to pay, or cause its contractors and/or subcontractors to pay, said prevailing wage rates at all times for all improvements or modifications to be completed for COUNTY within the Premises, and Page 20 of 30 607864.3607864.3 607864.31 2 3 4 5 6 7 s 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 2R COUNTY herein agrees that COUNTY shall post, or cause to be posted, a copy of the most current, applicable prevailing wage rates at the site where the improvements or modifications are performed. Prior to commencement of any improvements or modifications, COUNTY shall provide CITY's Lease Program Administrator with the applicable certified payroll records for all workers that will be assigned to the improvements or modifications, upon request. Said payroll records shall contain, but not be limited to, the complete name, address, telephone number, social security number, job classification, and prevailing wage rate for each worker. COUNTY shall provide upon request to CITY's Lease Program Administrator bi-weekly updated, certified payroll records for all workers that include, but are not limited to, the weekly hours worked, prevailing hourly wage rates, and total wages paid. 14.4 Right to Work and Minimum Wage Laws. In accordance with the United States Immigration Reform and Control Act of 1986, as applicable, COUNTY shall require its employees that directly or indirectly service the Premises, pursuant to the terms and conditions of this Lease, in any manner whatsoever, to verify their identity and eligibility for employment in the United States. COUNTY shall also require and verify that its contractors or any other persons servicing the Premises, pursuant to the terms and conditions of this Lease in any manner whatsoever, verify the identity of their employees and their eligibility for employment in the United States. Pursuant to the United States of America Fair Labor Standards Act of 1938, as amended, and State of California Labor Code, Section 1178.5, COUNTY shall pay no less than the greater of the Federal or California Minimum Wage to all its employees that directly or indirectly service the Premises, in any manner whatsoever. COUNTY shall require and verify that all its contractors or other persons servicing the Premises on behalf of the CITY also pay their employees no less than the greater of the Federal or California Minimum Wage. COUNTY shall comply and verify that its contractors comply with all other federal and State of California laws for minimum wage, overtime pay, record keeping, and child labor standards pursuant to the servicing of the Premises or terms and conditions of this Lease. 15.0 LEASEHOLD MORTGAGES 15.1 Subordination. This Lease and all rights of the COUNTY hereunder are subject and subordinate to any mortgage or deed of trust which does now or may hereafter cover the Leased Premises or any interest of CITY therein, and to any and all advances made on the security thereof, and to any and all increases, renewals, modifications, consolidations, replacements and extensions of any such mortgage or deed of trust except, insofar as COUNTY is meeting its obligations under this Lease, any foreclosure of any mortgage or deed of trust shall not result in the termination of this Lease or the displacement of COUNTY. Page 21 of 30 607864.3607A64.3 6078G4.31 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 2R In the event of transfer of title of the Premises, including any proceedings brought for foreclosure or in the event of the exercise of the power of sale under any mortgage or deed of trust, or by any other transfer of title covering the Premises, COUNTY shall attorn to and recognize any subsequent title holder as the lessor under all terms, covenants and conditions of this Lease. COUNTY's possession of the Premises shall not be disturbed by the CITY, or its successors in interest, and this Lease shall remain in full force and effect. Said attornment shall be effective and self-operative immediately upon succession of the current title holder, or its successors in interest, to the interest of CITY under this Lease. In the event of a future potential leasehold mortgage on the Leased Premises, CITY shall require all future lenders on the Leased Premises, upon initiation of their interest in the Premises, to enter into a Subordination, Attornment and Non-Disturbance Agreement with CITY, thereby insuring COUNTY of its leasehold interests in the Premises. Said Subordination, Attornment and Non-Disturbance Agreement shall be in the form of CITY's standard form Subordination, Attornment and Non-Disturbance Agreement in a form approved by CITY's Lease Program Administrator and City Attorney. Foreclosure shall not extinguish this Lease, and any lender or any third party purchasing the Premises at foreclosure sale shall do so subject to this Lease and shall thereafter perform all obligations and be responsible for all liabilities of the CITY under the terms of this Lease. Upon default by CITY of any note or deed of trust, COUNTY may, at its option, make all lease payments, if any, directly to Lender, and same shall be applied to the payment of any and all delinquent or future installments due under such note or deed of trust. The CITY's fee estate in the Leased Premises and CITY's interest under this Lease shall not be subordinate to any mortgage unless approved in writing by CITY. 15.2 Subiect to Lease. All mortgages and all renewals, modifications, consolidations, replacements and extensions thereof, shall be subject and subordinate to this Lease. Each mortgagee shall, as a condition precedent to approval of CITY, execute instruments and/or documents as CITY may request be signed. 15.3 Cross-Collateralization Prohibited. This Lease shall not be cross-collateralized to serve as additional security by COUNTY for any loan by any mortgage, which is also secured by real property other than the Leased Premises, the improvements thereon, any portion thereof, or any interest therein. 16.0 DEFAULTS AND REMEDIES 16.1 In the event of any breach of this Lease by COUNTY, CITY shall notify COUNTY in writing of such breach, and COUNTY shall have the following time frames to cure such breach: Page 22 of 30 607864.3607864.3 607864.31 1 2 3 4 5 6 7 8 9 to 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 2R 16.1.1 Non-Monetary Breach. For any non-monetary breach of this Lease by COUNTY, COUNTY shall have sixty (60) days in which to initiate action to cure said breach and COUNTY shall proceed to complete the cure of such breach with due diligence and within any reasonable time frame identified by CITY. For any non-monetary breach of this Lease by CITY, COUNTY shall notify CITY in writing of such breach, and CITY shall have sixty (60) days in which to initiate action to cure said breach and CITY shall proceed to complete the cure of such breach with due diligence and within any reasonable time frame identified by the COUNTY. If anon-monetary breach is not cured within such period, the non-breaching party may thereafter terminate this Lease upon seven (7) calendar days written notice to the breaching party. 16.1.2 Monetary Breach. For any monetary breach of this Lease, CITY shall notify COUNTY in writing of such breach, and COUNTY shall have thirty (30) days in which to cure said breach, unless specified otherwise within this Lease. For any monetary breach of this Lease by CITY, COUNTY shall notify CITY in writing of such breach, and CITY shall have thirty (30) days in which to cure said breach, unless specified otherwise within this Lease. If a monetary breach is not cured within such period, the non-breaching party may thereafter terminate this Lease upon seven (7) calendar days written notice to the breaching party. 16.2 Debt Limit. CITY acknowledges and agrees that the obligation of the COUNTY to pay Rent under this Lease is contingent upon the availability of COUNTY funds which are appropriated or allocated by the COUNTY'S Board of Supervisors for the payment of Rent hereunder. In this regard, in the event that this Lease is terminated due to an uncured default of the COUNTY hereunder, CITY may declare all Rent payments to the end of COUNTY'S current fiscal year to be due, including any delinquent rent from prior budget years. In no event shall CITY be entitled to a remedy of acceleration of the total Rent payments due over the term of the Lease. The parties acknowledge and agree that the limitations set forth above are required by Article 16, section 18, of the California Constitution. CITY acknowledges and agrees that said Article 16, section 18, of the California Constitution supersedes any law, rule, regulation or statute, which conflicts with the provisions of this paragraph. Notwithstanding the foregoing, CITY may have other rights or civil remedies to seek relief due to the COUNTY'S default under the Lease. Such rights or remedies may include a right to terminate the COUNTY'S right of possession under the Lease and sue for the Rent as it becomes past due. 16.3 Limitation on Liability. In consideration of the benefits accruing hereunder, COUNTY covenants and agrees that, in the event of any actual or alleged failure, breach, or default hereunder by CITY: (a) no official, officer, employee, contractor, agent, beneficiary or trustee of CITY (each "CITY Party") shall be sued or named as a party in any suit or action (except as may be necessary to secure jurisdiction over CITY); (b) no service of process shall be made against any CITY Party (except as may be necessary to secure jurisdiction over CITY); (c) no CITY Party shall be required to answer or otherwise plead to any service of process; (d) no judgment will be taken against any CITY Party; (e) any judgment taken against any CITY Party may be vacated and set aside at any time nunc pro tunc; (f) no writ of Page 23 of 30 607864.3607864.3 607864.31 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 i 25 26 27 2R execution will ever be levied against the assets of any CITY Party; and (g) these covenants and agreements are enforceable by CITY and also by any CITY Party. 16.4 Damage or Destruction. In the event of partial or complete destruction of the Leased Premises due to COUNTY'S negligence, the COUNTY shall make repairs as are necessary to restore the Leased Premises to the condition which existed prior to destruction or damage and/or make repairs as are necessary to make the Leased Premises safe and fit for occupancy. The destruction (including any destruction necessary in order to make repairs required by any declaration), damage or declaration shall in no way render this Lease null and void. If the COUNTY refuses to make such repairs, or if such repairs are not completed by COUNTY within a reasonable time and schedule to be agreed to by the Parties in the reasonable exercise of their discretion, CITY may, at its option, terminate the Lease or make such repairs and COUNTY shall pay CITY the documented cost thereof including labor and materials within 90 (ninety) days of CITY'S completion of repairs and written notice from CITY. In the event of partial or complete destruction of the Leased Premises due to all causes other than COUNTY'S negligence, CITY shall immediately make repairs as are necessary to restore the Leased Premises to the condition which existed prior to destruction or damage and/or make repairs as are necessary to make the Leased Premises safe and fit for occupancy, provided that CITY shall be entitled to receive any insurance proceeds from COUNTY's policy and attributable to the damage of the Leased Premises, excluding the value of the land, and CITY shall commence repair to such damage within a time period agreed to in writing between the parties. In the event that insurance proceeds are not sufficient for CITY to complete repairs and/or CITY is unable to complete repairs within a reasonable time and schedule as agreed to by the parties, the CITY may, at its option, terminate this Lease. 17.0 OWNERSHIP OF IMPROVEMENTS During the Term of this Lease, the improvements constructed upon the Leased Premises by CITY shall be and remain the property of the CITY. Any improvements constructed or placed upon the Leased Premises by COUNTY shall be and remain property of the COUNTY, except County Vendor Supplied Property, which shall be owned by CITY until such property items are replaced by COUNTY (See Section 6.1 above.) Upon expiration or earlier termination of the Lease, the improvements owned by COUNTY shall become the property of CITY without any right of COUNTY to receive compensation thereof and without further act required of either CITY or COUNTY. 18. NOTICES All written notices to be given or other documents to be delivered by either party pursuant to this Lease, or any law applicable hereto, must be either personally delivered or placed in a Page 24 of 30 607864.3607864.3 607864.31 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 2R sealed envelope, postage prepaid, addressed to the person on whom it is to be served and deposited in the United States Mail in the State of California, at the following address, or such address as any party may designate by providing notice to the other parties as provided herein and shall be deemed delivered seventy-two (72) hours after deposit in the United States Mail: TO: TUSTIN City Manager City of Tustin 300 Centennial Way Tustin, CA 92780 TO: COUNTY County Librarian OC Public Libraries 1501 E. St. Andrews Place Santa Ana, CA 92705 and Attention: Christine Shingleton Assistant City Manager or Library Lease Program Administrator City of Tustin 300 Centennial Way Tustin, CA 92780 Copy to: Tustin City Attorney C/O Woodruff, Spradlin & Smart 555 Anton, Suite 1200 Costa Mesa, CA 92626 19. GENERAL PROVISIONS Copy to: Orange County Office of County Counsel 333 W. Santa Ana Blvd. Santa Ana, CA 92701 19.1 Inspection and Right of Entry. The CITY, or its authorized representative, shall have the right at all reasonable times to inspect the Leased Premises to determine if the provisions of this Lease are being complied with. 19.2 Successors In Interest. Unless otherwise provided in this Lease, the terms, covenants, and conditions contained herein shall apply to and bind the heirs, successors, executors, administrators, and assigns of all the parties hereto, all of whom shall be jointly and severally liable hereunder. 19.3 Consent to Jurisdiction and Applicable Law. The Parties hereto agree that all actions and proceedings arising in connection with this Lease shall be tried and litigated exclusively in the Superior Court of the County of Orange, State of California, in any other Page 25 of 30 607864.3607A64.3 607864.31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 2R appropriate court of that county, or in the United States District Court for the Central District of California. This choice of venue is intended by the Parties to be mandatory and not permissive in nature. The Lease shall be governed by, interpreted under, construed and enforced in accordance with the laws of the State of California, irrespective of California's choice-of--law principles. 19.4 Waiver of Jury Trial. To the extent permitted by applicable law, each party acknowledges that it is aware of and has the advice of counsel of its choice with respect to its rights to trial by jury, and each party for itself and its successors and assigns, does hereby expressly and knowingly waive and release all such rights to trial by jury in any action, proceeding or counterclaim brought by any party hereto against the other (and/or against its officers, officials, consultants, employees, agents, contractors or subsidiary or affiliated entities) on or with regard to any matters whatsoever arising out of, or in any way connected with, its agreement and/or any claim of injury or damage. 19.5 Legal Fees. Should either party hereto institute any action or proceeding in court to enforce any provision hereof, or for damages, by reason of any alleged breach of any provision of this Lease, each party shall be responsible for its own attorney's fees and legal costs. 19.6 Entire Agreement, Waivers and Amendments. This Lease constitutes the entire understanding and agreement of the Parties with respect to the matters set forth in this Lease. This Lease supersedes all negotiations and previous agreements and leases between the Parties respecting this Lease including, but not limited to, the original Lease. No amendment, change, modification or supplement to this Lease shall be valid and binding on any of the Parties unless it is signed by the appropriate and authorized signatories of the COUNTY and CITY. 19.7 Construction and Interpretation of Lease. 19.7.1 The language in all parts of the Lease shall, in all cases, be construed simply, as a whole, and in accordance with its fair meaning and not strictly for or against any Party. 19.7.2 If any term or provision of the Lease, the deletion of which would not adversely affect the receipt of the material benefit by any Party hereunder, shall be held by a court of competent jurisdiction to be invalid or unenforceable, the remainder of the Lease shall not be affected thereby and each other term and provision of the Lease shall be valid and enforceable to the fullest extent permitted by law. 19.7.3 Any captions of the sections or subsections in this Lease are inserted solely for convenience and reference only and shall not define, explain, modify, construe, limit, amplify or aid in the interpretation, construction or meaning of any of the provisions of the Lease. 19.7.4 As used in this Lease, and as the context may require, the singular includes the plural and vice versa and the masculine gender includes the feminine and vice versa; the words "include" and "including" mean respectively "include, without limitation" and Page 26 of 30 607864.3607864.3 607864.31 "including, without limitation," and "shall" be mandatory and "should" and "may" are permissive. 4 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 2R 19.8 Covenant of Cooperation. The Parties shall cooperate with each other, and deal with each other in good faith and assist each other in the performance of the provisions of this Lease. In the event of any legal action instituted by a third party or other governmental entity or official challenging the validity of any provision of this Lease, the Parties agree to cooperate in defending such action to the extent permitted by law. 19.9 No Partnership/Joint Venture. Nothing contained in this Lease shall be deemed or construed to create a partnership, joint venture, joint enterprise or any other relationship between the Parties hereto other than Lessor and Lessee according to the provisions contained in this Lease, or cause CITY to be responsible in any way for the debts or obligations of COUNTY. 19.10 No Waiver. The failure of CITY or COUNTY to insist upon strict performance of any terms, conditions and covenants in this Lease shall not be deemed a waiver of any right or remedy that CITY or COUNTY may have under the Lease and shall not be deemed a waiver of any right or remedy for a subsequent breach or default of the terms, conditions, and covenants herein contained. Additionally, the receipt by CITY of any Rent or other Cost Reimbursements required of COUNTY with knowledge by CITY of any preceding breach by COUNTY of any covenant, term or condition of this Lease shall not be deemed to have been waived by CITY. 19.11 Force Maieure Delays. If either Party shall be delayed or prevented from performance of any act required by this Lease by reason of acts of God, blockades, rebellion, war, insurrection, acts of terrorism, strikes or lockouts, freight embargo, inability to procure materials, unusually severe weather, reasonably unforeseeable physical condition of the Leased Premises including the presence of Hazardous Materials, fire, earthquake or other casualty, or other cause, without fault and beyond the reasonable control of the Party obligation (financial inability excepted), performance of such act shall be excused for the period of delay, and the period for the performance of any such act shall be extended for a period equivalent to the period of such delay; provided however, that if any Party ("First Party") believes that an extension of time is due to Force Majeure Delay, it shall notify the other Party (the "Second Party") in writing within at least thirty (30) days from the date upon which the First Party becomes aware of such Force Majeure Delay, describing the Force Majeure Delay, when and how the First Party obtained knowledge thereof, the date the event commenced, the steps the First Party anticipates taking to respond to such Force Majeure Delay, and the estimated delay resulting from such Force Majeure Delay and response. The extension of Force Majeure Delay shall be granted or denied in the Second Party's reasonable discretion. If the First Party fails to notify the Second Party in writing of its request for Force Majeure pursuant to this section, there shall be no extension for such Force Majeure Delays. Nothing in this section shall excuse Lessee from prompt payment of Rent or other Cost Reimbursements required by Lessee except has maybe expressly provided elsewhere in this Lease. 19.12 Binding Effect. This Lease and its terms, provisions, promises, covenants and conditions hereof shall be binding upon and shall inure to the benefit of the Parties hereto and Page 27 of 30 607864.3607864.3 607864.31 their respective heirs, legal representatives, and any successors and assigns approved in writing by Lessor. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 2R 19.13 Memorandum of Lease. As may be requested by the CITY, the Parties shall execute and record a Memorandum of Lease in a form and content approved by CITY. 19.14 Holding Over. In the event COUNTY shall continue in possession of the Leased Premises after the term of this Lease, such possession shall not be considered a renewal of this Lease but a tenancy from month-to-month and shall be governed by the conditions and covenants contained in this Lease. 19.15 Earthquake Safety. CITY warrants that, as of the date of this Lease, the Leased Premises is in compliance with all applicable seismic safety regulations and building codes. 19.16 Quiet Enjoyment. CITY agrees that, subject to the terms, covenants and conditions of this Lease, the COUNTY may, upon observing and complying with all terms, covenants and conditions of this Lease, peaceably and quietly occupy the Leased Premises. 19.17 Time. Time is of the essence of this Lease. 19.18 State Audit. Pursuant to and in accordance with Section 8546.7 of the California Government Code, in the event this Lease involves expenditures and/or potential expenditures of State Funds aggregating in excess of ten thousand dollars ($10,000), CITY shall be subject to examination and audit of the Auditor General of the State of California for a period of three years after final payment by COUNTY to CITY under this Lease. The examination and audit shall be confined to those matters connected with the performance of the contract, including, but not limited to, the cost of administering the contract. 20. ATTACHMENTS AND EXHIBITS This Lease includes the following Exhibits which are attached hereto and made a part hereof: EXHIBIT A -Legal Description of the Leased Premises EXHIBIT B -Plot Plan -New Tustin Library EXHIBIT C - Inventory of CITY Provided Furnishings and Equipment EXHIBIT D -Location of Parking and Landsaped Areas EXHIBIT E -Bill of Sale /// /// /// 607864.3607864.3 607864.31 Page 28 of 30 1 2 3 4 5 6 7 8 9 to EXHIBIT F -Furniture and Equipment to be Purchased by COUNTY (COUNTY Vendor Supplied) EXHIBIT G -Joint Use Space IN WITNESS WHEREOF, the parties have executed this agreement the day and year first above written. APPROVED AS TO FORM: By: Douglas Holland City Attorney Date: 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 2R I (CONTINUED ON FOLLOWING PAGE) Page 29 of 30 607864.3607864.3 607864.31 CITY CITY OF TUSTIN By: William A. Huston, City Manager 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 2R I APPROVED AS TO FORM: By: Deputy County Counsel Date: RECOMMENDED FOR APPROVAL: OC Public Libraries By: County Librarian Signed and certified that a copy of this document has been delivered to the Chair of the Board per G.C. Sec. 25103, Resolution 79-1535 COUNTY COUNTY OF ORANGE By: DARLENE J. BLOOM Clerk of the Board of Supervisors of Orange County, California Page 30 of 30 ' 607864.3607864.3 607864.31 By: Chair, Board of Supervisors EXHIBIT A LEASED PREMISES Size of parcel is 1.27 acres. All of the Lease Premises is shown crosshatched on a Plot Plan market EXHIBIT B, attached hereto and made a part hereof. Legal Description: Parcel 2 of Parcel Map No. 2007-131, located in the City of Tustin, County of Orange, State of California, recorded on , as Instrument No. 607864.3 EXHIBIT B PLOT PLAN 607864.3 U C7 Z X W W pK K F=- I -//~/ _~/ .~ riJ ~I I l^1~~ 1"~ O ----~ w j W ~ ~ ~ G4 ° ---~ a ,-; ~ ®~ _~ W EXHIBIT C INVENTORY OF FURNISHINGS AND EQUIPMENT bo~a~a.3 Miscellaneous Publicly Bid Furniture t ~ ~ ~~ $~ ~ ~~ ~~ ~ ~ s ~ '~ 3 ~ ~~ g~ ~ a ~ ~, ~~ ~~ ~ ~ ~ aj a~ ~~ g ~ ~ y ~ ~ 4, < ~~ ~~ ~~ ~~ ~ ~~ ~ ~ ~~ ~~ j ~~ ~ ~~ ~ ~~ ~~~ s ~ . ~~ ~~a ~ ~ e ~ ~ ~ ~ ~ ~~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ x ~ ~ ~ " § ~ ~ ~ R ~ ~ ~ ~ ~ ~ = a - R ry ++ Ff i ~ _ ~ R ~ _ ~ ~ ~ ~ ~ ~ ~ ~~ ~ ~ g ~ ~ g ~ ~ ~~ ~ ~ o T > ~ ~ F ~ ~ ~ _~ ~~ ~ ~ y ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ LL jA p Q ~ ~ ~ ~ F } V ri ~ UU3d ~ ~ ~ ~ T _ ~ ~ ~ ~ ~ ~ ~ ° ~ {J N t i G '$ ~ g ~ O i ~ g < ~ g w ~ „ ~- O m n a 3 F~ 3 ~ , ~ ~ ~ ~ ~ ~~ ~ ~ ( ~ Q ~~ F °~ ~~ E ~ ~ ~ ~ ~ ~ ~ x ~ ~ ~ ~ ~ ~ ~ ~ ~~ ~ ~ ~z ~ ~ ~ ~ ~ ~ x ~ ~ ~ ~ ~ ~~ ~ ~ ~ ~ ~ ~ ~3N >. G K ~ ~ ~ r ~ Y+ ~- Vi F c> ~_~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ - ~ s ~ s ~ ~ `~ '~ ~ ~ _ o S G c' 0 3 a ( 1 I 7 ~ a• ~ ~ ~ ~ ` I ` Z `~g3g $ ~ ~ ~ ~~ ~ ~~ > ~ > ti ~ Z ~ ~r ? ~ i ~ j ~1 yyp~ ~ ] ~ 'F ~ ~11 ~ ~ j 3 I y ~2 ~ Y 3 ~~ {Wy ~ rr^^ ~ ~ w~ ~ ~ !~{+ d b ~ I ~ ` S S 3 O ~ o o ~ r`` 4 l i ^ ^ N W ~ ~~ Q'f . F~ N ~~ ~~ ~~ ~ i S~ 3~ a 4 z s s ~ ~ ~ ~ ~ ~ ~' ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ,y~ `~ ~ `~ ~ $ 8 J s a ` z ~ 4, i ~ s ~ s ~ LL ~ ~ ~1 ~ m •~ 3 O t ~ ~ ~ ~ ~ ~ ~ ~ 3 ~ ~ ~ ~ ~ ~ ` ~ ~ ~ ~8 j Y ~~ ~~ ~~ ~ ~ ~ ~ ~ A u~ a y d 5s A ~ « M q °' b '° b ~ b N $ ~ ~ 5 3 ~ ~ r~ n /\/ _ 6~, ~ ' ~ ry N ~ ~ Q^ N ~ ~ N ff ~T s W 3 } S ~ Y~pf 3 ~ ~ s ¢^ ` yt^~ ` ~ ~ ~~4 ~ I~ Z ~O ~ I~sp~~ ~ O O d~ v, t+~ 3 ~i fn ~ ~ Ci ~n~ Ci u`i iii ti3 3 ~ f i c ~ ~ ,R ~ » 2 ~ n ii Z ~ 3 ~ H ~Jy i' A 3 3 ,}~ J °~3 ~i J J J J ~ $ ddd ~i ~ y~ ~ u ~ 9 g ~ 3 ~ ~ ~55 ~ f yy N ~ U U (.l ~ S ~ ; ; ~ 5 ~ s . ~ ~ N Z ~ " ~. Y.' _4 ; R ~ 3 ~. ~ ~ 3 ~ 3 ~ r3 gs7 O 0 ~ ~ { ~ $ ~ a ~ ~~ g ~~ ~ ; ~ ~ ~ ~g ~& ~~ ~~ i ~ ~ ~ a ~ ~ ~ ti ~ M l ~' ~ _ 3~ g ~ ~ ~ ~ > ~ ~ ~~ ~ ~ ~ ~ ~ z ~~ ~ Q ~ ~~ ~ ~ ~~ ~~ ~~ ~ ~~ ~ ~~ ~~ ~ ~~ ~~ ~ ~ ~~ ~ ~ a ~ ~ ~ ~ ~ ~ a ,~... ~ ~ N ~ ~ R w ~ ~ ~ ~ 1~1~1~1 ~ , ~~ e `, °~ J O r J ( 4: 3 ;' ~ ~ ~ ~ ~ ~ ~ ~~ ~ ~ ~ s ~ ~~ ~ ~ ~ ~ ~ o ~ ~ s ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ;~ " ~ ~ ~ ~ ~ ~ e s ~ ~ ~ s ~~ ~~ ~ ~~~ g g ~ ~ ~ ~ ~ 3 ~ 3 ~ ~ S ~ ~ ~ s q ~ ~ ~ ~ ~ ~ CMAS Furniture Agati Vendor N N N C ~~ ~~ ~ o N ~ ~ H ~ n ~ H o ~ ~ y o N y m ~ ~ H ~ ~ ~ ~ N ~ y y ~ p p N pp tD Gp 1D pp fD ~ ~ ~ H ~ ~ H O ~ N ~tpp t7 ~ N G ~ ~ H {~ N N 1~pp Ol rm~p y pp Y H FyQ U g t~ qq V fR pp R ~ 8' ~ S al S ~ S a! S ~ S yi g y fH~ Ft ~z A~ ~ ~~ ~ ~~ ~ ~ ~ ~ ~ S ~~ 7F ° "~ Y ~~ ~ i7g ~ US ~ ~ g= Zi 1U~ ~+ FU@ ~ ~ ~ ~ Zi ~F ~g R~ ~~ Y g 8 ~pC H o = ~ ~ $ S3 ~ ~ ~ ~ ~ 'F, ~ ~ ~ ~ 8q ~ ~ ~ 3 ~ ~ $ IS ~ ~ l' g 3 $ Z ° ~ .w K LL Z ~ ~ ~ ~ ~ p 4F ~ ~ ~ G ~ 000 g~g i5 V _ p o S U ~y b7 ~ ~ ~ 2 ~ J J J J 9 < Q~ Z z ~ N N S ~ ~y, q '~ W ~ ~ ~ ~ O U N ¢ ~ t W N ~ ~ y ~' ~ 1- ~ F" . Z N ~ ~C ` 5 F d ~ a g 2i ~' ~ d < a m id ~ m e z LL ~z o .- ~ ~ '° ~ e Pl p p i 8 ~ ~ ~ ~ ~ ~. a Y CS O ~ ~ ~ ~ ~ ci s J ~ v '~ `z~ 6 U U U U j ~ ° u ~ Si ° N w o r N N ~ `~ i ~ ~ z O ~ Z a ~ ~ z U ~ O s~ `a~ 3 V 8 $$ g S LL r EXHIBIT D LOCATION OF PARKING, HARDSCAPE AND LANDSCAPE AREAS 607864.3 U ~~ ~~ n ~~ _~~~ ----1 ~I ~~ ~ a ~~ ~ ~~ ~~ a~ ~a ~~ ®® w w U W U Q C7 Z a w O Z 0 U O Q M~ EXHIBIT E BILL OF SALE FOR EXISTING TUSTIN BRANCH LIBRARY BUILDING LOCATED ON THE EXISTING LEASE PREMISES This Bill of Sale ("Bill of Sale") dated as of , 20 is made by and between the COUNTY OF ORANGE (the "County"),apolitical subdivision of the State of California and the CITY OF TUSTIN (the "City"), a municipal corporation organized under the laws of the State of California. The City and County may individually be referred to herein as a "Party" and collectively as the "Parties". RECITALS A. County currently operates a County library in an existing library building (the "Existing Library Building") on property leased from City pursuant to a lease (the "Existing Lease") more particularly described as the property at 345 East Main Street, Tustin located on a portion of Parcel 1 of Parcel Map No. 2007-131, recorded July 15, 2008, in the Office of the Orange County Recorder. B. The Parties have agreed to relocate the County-operated library from the Existing Library Building to a new building. C. The City and County entered into that certain Tustin Library Lease dated as of , 2009, (the "Lease") that provides, among other things, for the termination of the Existing Lease and the new Lease of City Property to include a New Tustin Library. Initially capitalized terms used and not otherwise defined in this Bill of Sale shall have the meanings set forth in the Lease. D. Pursuant to the Lease, upon the Lease Commencement Date, the County shall transfer to the City, pursuant to this Bill of Sale, the title to the Existing Library Building and all appurtenant attached fixtures in the Existing Library Building. AGREEMENT NOW, THEREFORE, in consideration of the foregoing recitals and other consideration set forth herein, it is mutually agreed as follows: 1. Transfer. The County, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, does hereby remise, release and forever quitclaim to the City all of its right, title and interest in the Existing Library Building. 2. Warranty AEainst Liens Encumbrances Not of Record To the current, actual knowledge of County, County warrants to City that, as of the date of this Bill of Sale, County has not encumbered the title to the Existing Library Building with 607864.3 any liens or granted any unrecorded encumbrances or licenses on the Existing Library Building. 3. Warranty Asainst Contracts Concerning Property County warrants that as of the date of this Bill of Sale, County has not entered into any contracts, leases, licenses, commitments, or undertakings respecting the Existing Library Building by which City would become obligated or liable to anyone. 4. Environmental Compliance. 4.1 County is aware that the Existing Library Building may contain hazardous materials, including without limitation, asbestos, radioactive materials, hazardous wastes, toxic substances, or related injurious materials, whether injurious by themselves or in combination with other materials. For purposes of this Bill of Sale, the term "hazardous materials" shall include but not be limited to asbestos, radioactive materials, hazardous wastes, toxic substances, and related injurious materials, and all other substances defined as "hazardous substance," "hazardous materials," or "toxic substances" in the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (Title 42 United States Code Sections 9601-9675); the Hazardous Materials Transportation Act, as amended (Title 49 United States Code Sections 1801- 1819); the Resource Conservation and Recovery Act of 1976, as amended (Title 42 United States Code Section 6901-6992k); and any substance defined as "hazardous waste" in Health and Safety Code Section 25117 or as "hazardous substance" in Health and Safety Code Section 25316, and in the regulations adopted and publications promulgated under these laws. 4.2 The County hereby recognizes its obligations as the possible source generator for the presence of hazardous materials in the Existing Library Building, including asbestos or lead based paint, at, on, under, or adjacent to the Existing Library Building and on the Existing Lease premises. The City shall not be responsible for, and the County hereby agrees that it shall be responsible for and at all times shall relieve, indemnify, protect, defend and hold harmless the City and its successors and assigns and its appointed and elected officials, agents, attorneys, affiliates, employees, contractors and representatives and their respective successors and assigns (collectively referred to as the "Indemnified Parties"), from any and all claims and demands, actions, proceedings, losses, liens, costs and judgments of any kind and nature whatsoever, including expenses incurred by the Indemnified Parties in defending against legal actions, for death or injury to persons or damage to property and for civil fines and penalties arising or growing out of, or in any manner connected with the Existing Library Building and in particular the presence of hazardous materials at, on, in, under or about the Existing Library Building, but only to the extent that such liability is attributable, directly or indirectly, to the presence of hazardous materials at, in, under or about the Existing Library Building that occurred while County constructed, owned and operated the Existing Library Building and not for liability arising from 607864.3 hazardous materials brought by the City onto the existing library site after the termination of the Existing Lease. For purposes of disposal of hazardous materials present at, on, in, under or about the Existing Library Building, the Parties agree that the COUNTY shall be designated as the generator of such waste on all hazardous waste transportation and disposal manifests required under Federal or State Law, and, if the CITY or CITY retained contractor is the transporter or arranger for transport, then the CITY or the CITY-retained contractor, as applicable, shall be designated as the arranger and transporter of such waste on such manifests. 4.3 'T'his Section 4 shall not apply to any claims, demands, actions, proceedings, losses, liens, costs and judgments which result directly from the presence of hazardous materials at the Existing Library Building caused by the City. With respect to such storage, transportation and disposal, City shall be responsible for and shall defend, indemnify and hold County, its officers, directors, employees, agents, and representatives, harmless from and against all claims, costs and liabilities, including attorneys' fees and costs resulting directly from the presence of hazardous materials at the Existing Library Building caused by the City 5. Miscellaneous. 5.1 Modification. No amendment, change, modification or supplement to this Bill of Sale shall be valid and binding on the parties unless it is represented in writing and signed by each of the Parties. 5.2 Applicable Law. This Bill of Sale shall be governed by, interpreted under, construed and enforced in accordance with the laws of the State of California, irrespective of California's choice-of--law principles. 5.3 Binding Effect. This Bill of Sale and the terms, provisions, promises, covenants and conditions hereof shall be binding upon and inure to the benefit of the Parties hereto and their respective heirs, legal representatives, successors and assigns. 5.4 Duly Authorized. Each individual executing this Bill of Sale on behalf of the County and City has been duly authorized to execute this Bill of Sale by the governing board or council of the agency on behalf of which he/she is executing this Bill of Sale. 5.5 Counterparts, This Bill of Sale may be executed in two or more separate counterparts, each of which, when so executed, shall be deemed to be an original. Such counterparts shall together constitute and shall be one and the same instrument. This Bill of Sale shall not be effective until the execution and delivery by the Parties hereto of at least one set of counterparts. The Parties hereby authorize each other to detach and combine original signature pages and 607864.3 consolidate them into a single identical original. Any one of such completely executed counterparts shall be sufficient proof of this Bill of Sale. IN WITNESS WHEREOF, the parties have executed this Bill of Sale the day and year first above written. "COUNTY" COUNTY OF ORANGE By: Chair of Board of Supervisors Orange County, CA Signed and certified that a copy of this document has been delivered to the Chair of the Board per G.C. Sec. 25103, Resolution 79-1535 ATTEST: By: Darlene J. Bloom Clerk of the Board of Supervisors of Orange County, California APPROVED AS TO FORM By: Date: Deputy County Counsel RECOMMENDED FOR APPROVAL OC Public Libraries By: Helen E. Fried, County Librarian "CITY" CITY OF TUSTIN, CALIFORNIA By: William Huston, City Manager or Date: 607864.3 Christine Shingleton, Assistant City Manager ATTEST: By: Pamela Stoker City Clerk Dated: APPROVED AS TO FORM By: City Attorney 607864.3 EXHIBIT F FURNITURE AND EQUII'MENT TO BE PURCHASED BY COUNTY NO.S (#) Unit Cost Total Costs A/V Headphones 30 $ 100.00 $ 3,000.00 A/V Mobile Equipment Cart 2 $ 700.00 $ 1,400.00 AN TV Monitor w/DVD & 2 $ 1,100.00 $ 2,200.00 VCR Furniture Atlas case 1 $ 1,499.00 $ 1,499.00 Office Printers, Laser 6 $ 475.00 $ 2,850.00 Office Safe, Free standing 1 $ 500.00 $ 500.00 Office Easel, aluminum 5 $ 75.00 $ 375.00 telescoping Office Paper cutter 1 $ 100.00 $ 100.00 Office Cash register 2 $ 600.00 $ 1,200.00 Office Waste baskets 50 $ 20.00 $ 1,000.00 Office FAX 1 $ 350.00 $ 350.00 RFID Allowance for $ 10,000.00 desensitizers RFID RFID Tags allowance RFID Self check machines 5 $23,000.00 $ 115,000.00 Spec.Egpt. Book Trucks 36 $ 475.00 $ 17,100.00 Spec.Egpt. Kik-Step stools 24 $ 50.00 $ 1,200.00 Tech Computers, Public 92 $ 1,200.00 $ 110,400.00 Tech Computers, Staff 23 $ 1,200.00 $ 27,600.00 Tech Printers, Receipt 17 $ 240.00 $ 4,080.00 Tech Bar code scanners 17 $ 150.00 $ 2,550.00 Tech Scanners, Flat 3 $ 275.00 $ 825.00 Tech Laptop computers 23 $ 2,200.00 $ 50,600.00 Tech Laptop security cart 1 $ 1,369.00 $ 1,369.00 Tech ADA Keyboards 6 $ 300.00 $ 1,800.00 Tech Screen magnifier 2 $ 250.00 $ 500.00 $ 357,498.00 607864.3 EXHIBIT G JOINT USE SPACE 607864.3 0.......----. _ ..... o _ __._ . o--- 0 o-- o--- o---- o---- I I I I I I I i a... _ 1 _ _ _ _ ____ ____=T- _____ ~ i i i ~ i o-- ' --- -_-~~_ ---~; -~- a-------~----1----~-_-J ~_ I I I I I I I I I b b b b b I b I I I I ~'~,1. I I I II i I I I I I I J II ~~ _.... _. _ I--o _ __ g° _ ~, -- -~-I-° { ~' -- it ~ I it I V V i I I I I I I I I ~ ~ bb N O W w U W H Z O V N Q ~ N 7 O Z ~} ---{ F B ~.~...~'~v ~~~.~: x: ~:;v;n~.t . li a N » ~ O N ............. ...... .......4 ' N i N ~ ____ _ _ 1 :L ~ I .x -~ __ i yo ... ... _~__ ____ i i __. _... ~~ ~ ~ ~~ ~ ~ _T, I i <, n ~~ n ~~ I W ~ _J i ' ~ u ~ ~ r'~ ~ ~ ~_J ~ e~ gn r 9 - , ` ~ -, ^ T~ ~ I ~~ ~ _J ~0 // ,; 130 ~~ ~ ~~ 'i ~ ~ i ~~ ii r - ~ ~ ~ „~ ~~ . II ~ __.i ~ ~ ii py ~R - r , j l ~ ._ J 1 u ` ~ II ~ ~a O i ~Io , " ~, ;, .: L.... J ~ ` r ..._.. a pl ____ __ _ ___ _ _ ___ ____ __y~ __ __ ___ __{y.__ __ __. ...~ ~ __ 1 II ~I ~ 1 . W ~~{ " ~ ~ yy~ ~ r ~ 1 tl --Jr~ --~1 I u' r ..{ ' tl ~I i ~ ~~ uu M^ "~ ..; ~ ~. i i i ~. _-^S W 1 1 '. i~i~,, ° III~~~"'lll ~ '- --- i - - --- -~" -- i --- _ _ \ L_J L_, ~ ! II \\ II 1 s_ ~ ka "~~