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HomeMy WebLinkAboutBOWERS MUSEUM - 2005 1ST AMEND TO OPERATING AGMT ---., .----- . ORIGINAL A-2005-257 FIRST AMENDMENT OF AMENDED AND RESTATED OPERATING AGREEMENT This agreement is made and entered into as of the sixth day of September, 2005, by and between the City of Santa Ana, a charter city and municipal corporation duly organized and existing under the Constitution and laws of the State of California (the "City"), and the Charles W. Bowers Museum Corporation, a California non-profit public benefit corporation ("Bowers"). RECITALS A. The City and Bowers are parties to that certain Amended and Restated Operating Agreement dated June 18, 2001 (the "Original Agreement") relating to the ownership and operation of the Charles W. Bowers Memorial Museum (the "Museum"). B. Bowers desires to construct certain additional museum facilities (the "Additional Facilities" as hereinafter defined) adjacent to the existing Museum on land acquired or to be acquired by the City (the "Additional Property", defined as the Leased Premises in the Lease), and thereafter to manage and operate the Additional Facilities as an integrated part of the Museum. " C. Concurrently herewith the City (as Landlord) and Bowers (as Tenant) have entered into that certain lease of the Additional Property (the "Lease"), pursuant to which Bowers has agreed to construct the Additional Facilities on the Additional Property at no cost or expense to the City. Now, therefore, for and in consideration of their mutual and respective covenants, conditions and promises hereinafter set forth, and subject to the terms and conditions of this Agreement, the parties hereto do hereby agree as follows: 1. Definitions. Except as otherwise provided in this Agreement, the definitions set forth in the Original Agreement shall have the meanings ascribed thereto in that document. 2. Effective Date. Subject to Paragraph 3 hereof, effective on the first day of the first full calendar month following issuance of a Certificate of Occupancy for the Additional Facilities (the "Effective Date"), the Lease shall be deemed terminated in accordance with its terms and this Agreement shall take effect and supersede the Lease. 3. Title to Additional Facilities. As a condition precedent to the effectiveness of this Agreement, Bowers shall transfer title to the Additional Facilities to the City on the Effective Date, free and clear of all liens and encumbrances relating to the construction, equipping and furnishing of the Additional Facilities. 4. Premises. From and after the Effective Date, the Additional Facilities shall be and become part of the Premises, as defined in the Original Agreement. 5. Allocable Internal Administrative Costs. From and after the Effective Date, the Allocable Internal Administrative Costs of Bowers for the remainder of the fiscal year in which the Effective Date occurs shall mean the amount computed in accordance with Section 1.01(0) of the Original Agreement as of such date plus such additional internal administrative costs associated with the operation of the Additional Facilities. Thereafter such costs shall be adjusted annually as provided in the Original Agreement. 6. Name. Notwithstanding Section 3.02(a) of the Original Agreement, the Additional Facilities may be named and known as a wing of the Charles W. Bowers Museum named after a benefactor of the Museum. 7. Management Compensation. As soon as reasonably practical after the Effective Date, Bowers and the City shall agree upon the reasonable increase in the amount the City pays annually to Bowers pursuant to Section 4.07 of the Original Agreement to reflect the increased cost of maintaining the Premises with the addition of the Additional Facilities. This amount shall be payable in connection with the period from the Effective Date to the end of the Fiscal Year in which the Effective Date occurs, and thereafter the amount shall be determined in accordance with Section 4.07 of the Original Agreement, including costs associated with the Additional Facilities. From and after the Effective Date, the costs of Capital Repair and Replacement under Section 4.07(e) of the Original Agreement shall include such costs associated with the Additional Facilities. 8. Proiect Developments Costs. Immediately upon approval of this Agreement, the City Manager is authorized to payor reimburse to Bowers the following amounts related to development of the Additional Facilities: a. Up to $100,000 in predevelopment costs incurred by Bowers; b. Building and development fees required for the project; c. That amount for design of the north parking lot as called for in the land exchange agreement between the City and Steadfast Development Co. IN WITNESS WHEREOF, the parties have caused this First Amendment of Amended and Restated Operating Agreement to be executed by their duly authorized representatives. [Signatures on next page] 2 --- . . . ATTEST: c "- . . -=- (P",Q/ ~ c:'~~- ",Patricia E. Healy " (j Clerk of the Council . AS~RM: / CHARLES W. BOWERS MUSEUM CORPORATION -#i~ Donald P. Kennedy Ch' an Board Dr. Peter W. Keller President . CITY OF SANTA ANA ii I.}/) ~/ a,,-i'/.J! 6~ti~~ David N. Ream City Manager 3