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HomeMy WebLinkAboutDELHI CENTER - AGREEMENT ON CONSTRUCTION-1995 ::.; I~;--: . .,:,~c.,..r ,/ ',~,,~ \ /, '.", ;l"f"']1'" ! " / h ' 1 ~;-- 0:31 . i. , \"'~" '.I',. .- ,I C,I1!9? ('{S L". ;IA> [.....' .....'.;. ( //.....-- _ ,~I..;f" .....,....u.....,!..- AGREEMENT L'::'J,:: THIS AGREEMENT, made and entered into this ~t~ day of p':" (C REL: 5/10/95 C~f municipal , 1995, by and between the CITY OF SANTA ANA, a corporation of the State of California, hereinafter referred to as "City," and the DELHI CENTER, a non-profit public benefit corporation, hereinafter referred to as "DeIhL" W-I-T-N-E-S-S-E-T-H Recitals: A. The city owns Delhi Park, located on the southwest corner of Warner and Halladay Avenue (the "Park") as shown on the map attached hereto as Exhibit A and incorporated herein. Delhi owns certain real property located on the southwest corner of Central and Halladay Avenue (the "Delhi Property"), which is more specifi- cally described in Exhibit B, attached hereto and incorporated herein. The Delhi Property is presently improved with a building in which the Delhi organization operates a community center. B. The City proposes to expand and renovate the Park. As part of this expansion and renovation of the Park, the City proposes to construct a new community center in the Park (the "New Community Center") . C. Delhi needs more space than is available in its present facility on the Delhi Property to accommodate the social service program that it provides to the community. D. Delhi is willing to assist in the construction of the New Community Center, either by donating the Delhi Property to the City 1 . . or by a financial donation to the City equal to the value of the Delhi Property. E. The parties also desire to provide for the operation and management of the New Community Center by Delhi. F. In order to accomplish the above goals and to provide necessary services to the community, the City and Delhi desire to enter into this Agreement for the construction and operation of the New Community Center. WHEREFORE, in consideration of their mutual and respective promises, and subject to the terms and condition hereinafter set forth, the parties hereto do hereby agree as follows: 1. Construction of the New Community Center. The City undertakes the following obligations in connection with the construction of the New Community Center: A. Prior to the preparation of plans for the Delhi Park expansion and renovation and the New Community Center, the City shall schedule meetings with Delhi to outline Delhi's needs and to identify the scope of work for the Delhi Park expansion and renovation and the New Community Center. B. The City shall prepare a Request for Proposals to retain a consultant to complete the conceptual plans and construction documents for the Delhi Park expansion and renovation and the New Community Center. Delhi shall be entitled to have two representatives in attendance at the meetings of the City staff committee to be created for 2 . . the purposes of consultant selection and the making of recommendations throughout the conceptual planning process. C. Upon completion and approval of the conceptual plans, the City shall approve a project budget for the expansion and renovation of Delhi Park and the construction of the New Community Center. The City shall implement construction of the Delhi Park expansion and the New Community Center promptly following approval of the project budget. D. The city shall coordinate and inspect the construction of the New Community Center. 2. Delhi's obliaations In order to contribute toward the construction of the New Community Center, Delhi undertakes the following obligations: A. During the construction of the New Community Center, Delhi shall, at its own expense, have the fair market value of the Delhi Property appraised by an independent licensed appraiser acceptable to the City, and shall provide the City with a copy of such appraisal. In the event Delhi does not do so, the City may obtain an appraisal of the fair market value of the Delhi Property made by an independent licensed appraiser of the City's choice. B. At the time of completion of the construction of the New Community Center, Delhi shall either (i) convey the Delhi Property to the City in accordance with section J of this J . . Agreement, or (ii) pay the City an amount equal to the fair market value of the Delhi Property as determined by the above specified appraisal. 3. Convevance of the Delhi ProDertv. Delhi's option to convey the Delhi Property to the City pursuant to section 2 of this Agreement, and the City's obligation to accept such conveyance in lieu of payment of an amount equal to the fair market value of the Delhi Property, is subj ect to the following conditions: A. Delhi shall deliver to the City a grant deed conveying marketable title to the Delhi Property to the City in fee simple, subject only to any items shown on the Prelimi- nary Report prepared First American Title Insurance Company, dated May 4, 1994, as updated March 24, 1995, and liens pertaining to payment of taxes. B. Delhi agrees to deliver to the City, concurrently with the conveyance of the Delhi Property to the City, a policy of title insurance to be issued by First American Title Insurance Company (the "Title Company") with the City therein named as the insured, in the amount of the value of the said real property, as determined pursuant to section 2 of this Agreement, insuring the title of the city to the Delhi Property is subject only to any items shown on the Preliminary Report prepared First American Title Insurance Company, dated May 4, 1994, as updated March 24, 1995, and liens pertaining to taxes. 4 . . C. At the time of the conveyance of the Delhi Property to the City, the Delhi Property shall be free of all leases, tenancies and occupancies. D. Such real property taxes and assessments, if any, on the Delhi Property for the fiscal year within which the Delhi Property is conveyed to City and for any prior fiscal year as are unpaid at the time of the conveyance of the Delhi Property to the City shall be paid by Delhi. E. Delhi shall deliver to the city and to the Title Company a corporate resolution authorizing the conveyance of the Delhi Property to the City and designating which corpor- ate officers have the power to execute the deed of conveyance on behalf of Delhi, in accordance with the requirements of the Title Company. 4. Non-construction of the New Community Center In the event that the City has not commenced construction of the New Community Center by July 1, 1997, or, having commenced constructions, has abandoned the project, Delhi may, at Delhi's option, terminate this Agreement. s. Grant of Lease to Delhi A. For a term commencing on the date of the completion of the New Community Center and ending fifty (50) years thereafter (unless sooner terminated as hereinafter provided), the city grants Delhi a lease to occupy and use the New Community Center to Delhi, subject to the terms and conditions set forth in this Article (the "Lease") . 5 . . . . B. It is understood and agreed that the Lease extends only to the New Community Center. The City alone will be responsible for Delhi Park outside of the New Community Center, including all maintenance and control of use reservations. C. At the city's option, the City may reserve office space in the New Community Center for use by a City employee to assist in recreation programs in Delhi Park. Such office space shall not exceed the area necessary for such purpose and shall be provided without charge to the city. D. Delhi shall not assign the Lease nor sublease nor license the use of any portion of the New Community Center without the consent of the City. The City shall not unreasonably withhold such consent from any sublease or license which serves to assist Delhi in carrying out the purposes of its use of the New Community Center as specified in this Agreement. 6. Use of the New Community Center bv Delhi. A. Delhi shall use the New Community Center for the purpose of providing social and recreational programs and services to the general public. Delhi shall be responsible for providing, at Delhi's cost, the staffing level, equipment, and supplies necessary for this purpose, as reasonably determined by Delhi. Delhi shall be responsible to schedule all programs and events in the New Community Center. All programs and events to be provided by Delhi at the New Community Center shall comply with all ordinances and regulations of the City. All programs and events to be provided by Delhi at the New Community Center must be approved by the city 6 . . . . prior to their initiation by Delhi. Those programs and events specified in Exhibit C, attached hereto and incorporated herein, are hereby approved by the City. Fees charged by Delhi for participation in programs and events shall not exceed those charged by the City for similar programs and events unless approved by the City, which approval shall not be unreasonably withheld or delayed. B. Delhi shall assure that any and all revenues received either from the City or from the public arising out of its operations in the New Community Center are expended solely for the purposes specified in paragraph A of this Section, except that Delhi may deposit a portion of such revenues into a Capital Reserve Fund which does not exceed ten (10) percent of its budget for expenditure for improvements and equipment at the New Community Center and Delhi Park, and also except for special fund-raising events approved by the City. C. Delhi shall not use or permit the use of the New Community Center in any manner that will tend to create a nuisance. D. Delhi shall provide its programs and services to the general public, without discrimination on the basis of race, color, religion, sex, marital status, national origin, ancestry, or disability. E. Upon request of the City, Delhi shall remove or terminate the employment of any member of its governing board, officer or employee who has been convicted of a crime involving moral turpitude. 7 . . 7. Maintenance A. Except as provided in paragraph B of this section, the City shall also be responsible for maintenance and repair of the New Community Center to a standard comparable with other City recreational facilities. The City shall also be responsible to pay for all costs of all utilities servicing the New Community Center. B. Delhi shall be responsible for day-to-day maintenance and minor repairs of and to the New Community Center to a standard comparable with other City recreational facilities, and shall, at Delhi's expense, retain custodial services as necessary for such purpose. As used herein, "day-to-day maintenance and minor repairs" means maintenance of all portions of the New Community Center in a neat and clean condition, regular trash disposal, regular replacement of necessary operational items (such as light bulbs and restroom supplies), and any repair work of less than $1000 per job. 8. Termination A. Either party may terminate this Agreement for cause only. B. Failure by either party to perform any obligation imposed on such party by this Lease shall constitute a default by such party, and shall be grounds for termination of this Lease by the non-defaulting party if the failure to perform is not cured within thirty (30) days after written notice thereof has been given to defaulting party by the non-defaulting party, or, if the default cannot reasonably be cured within said thirty (30) day period, if 8 . . the defaulting party commences to cure the default within the thirty (30) day period and diligently prosecutes the same to completion. Notices given under this paragraph shall specify the alleged default and the applicable Lease provisions, and shall demand that the defaulting party perform the applicable Lease provisions within the applicable period of time. C. In the event that, at any time within ten (10) years from and after the commencement date of the Lease, the City terminates the Lease pursuant to Paragraph A of this Section, the City shall reimburse Delhi for the entirety of the contribution which Delhi made to the Delhi Park project and the New Community Center pursuant to paragraph B of section 2 of this Agreement. If Delhi made a cash payment to the City, such reimbursement shall be the total amount of such cash payment. If Delhi conveyed the Delhi Property to the city, such reimbursement shall be the fair market value of the unimproved land comprising the Delhi Property, as of the time of the termination of the Lease. D. In the event that, at any time within ten (10) years from and after the commencement date of the Lease, either (i) Delhi terminates the Lease pursuant to Paragraph A of this Section, or (ii) Delhi rightfully terminates the Lease pursuant to Paragraph B of this Section, the City shall reimburse Delhi for a portion of the contribution which Delhi made to the Delhi Park project and the New Community Center pursuant to section 2 of this Agreement. The reimbursement shall be equal to A x ([120-B]/120), where A = If Delhi made a cash payment to the City: the amount of 9 . . such cash payment; or If Delhi conveyed the Delhi Property to the City: the fair market value of the unimproved land comprising the Delhi Property, as of the time of the termination of the Lease. The number of months between the commencement date of the Lease and the effective date of the termination of the Lease. E. In the event that the fair market value of the unimproved land comprising the Delhi Property, as of the time of the termina- tion of the Lease, has to be determined, the City shall retain, at the City's expense, an independent licensed appraiser, reasonably acceptable to Delhi, to provide an appraisal of such amount. It is understood and agreed that the City shall have no obligation to value the Delhi Property based on any improvements on the Delhi Property, whether made by the City or not. 9. Indemnification For purposes of this Article III: A. City shall indemnify and save harmless Delhi, its officers and employees, from and against any and all damages to property or injuries to or death of any person or persons, including property and employees or agents of Delhi, claims, demands, suits, actions or proceedings of any kind or nature, including, but not by way of limita- tion, worker's compensation claims, resulting from or arising out of the negligent or wrongful acts, errors or and B = 10 . . omissions of City, its employees or subcontractors. B. Delhi shall indemnify and save harmless City, its officers and employees, from and against any and all damages to property or injuries to or death of any person or persons, including property and employees or agents of City, claims, demands, suits, actions or proceedings of any kind or nature, including, but not by way of limita- tion, worker's compensation claims, resulting from or arising out of the negligent or wrongful acts, errors or omission of Delhi, its employees or subcontractors. 10. rnsurance (a) Property insurance. The City, at its cost, shall maintain during the term of this Lease a policy or pOlicies of all-risk property insurance to the extent of one hundred percent (100%) of full replacement value of the New Community Center, except as to earthquake and flood coverage. The City shall have no responsibility to provide insurance coverage of the personal property of Delhi located on the New Community Center. (b) Liability insurance. Delhi at its sole cost and expense shall maintain during the term of the Lease bodily injury and property damage insurance with a single combined liability limit of one million dollars ($1,000,000.00) dollars, insuring against all liability of Delhi and its authorized representatives arising out of and in connection with Delhi's use or occupancy of the New Community Center. Such 11 . . insurance shall insure performance by Delhi of the indemnity provisions in Paragraph B of Section 9 of this Agreement, but the limits of such insurance shall not, however, limit the liability of Delhi thereunder. The City of Santa Ana and its officers, agents and employees shall be named as an additional insureds. Delhi shall (a) furnish properly executed certificates of insurance to the City's Clerk of the Council prior to the commencement of the Lease, which certificates shall clearly evidence all coverages required above and provide that such insurance shall not be materially changed or terminated except on 30 days' prior written notice to the Landlordj and (b) maintain such insurance throughout the term of the Leasej and (c) replace such certificates for policies expiring prior to the expiration or other termination of the Lease. If Delhi shall fail to procure and maintain such insur- ance, the City may but shall not be required to procure and maintain same at the expense of Delhi. (c) Waiver of Subrogation. Delhi and the City each waives any and all rights of recovery against the other or against the officers, employees, agents, and representatives of the other for loss of or damage to such waiving party or its property or the property of others under its control, where such loss or damage is insured against under any insurance policy in force at the time of such loss or damage. Each party shall cause each insurance policy obtained by it hereunder to provide that the insurance company waives all right of recovery by way of subrogation against either party in connection with any 12 . . damage covered by any such policy. 11. Damaqe or destruction. (a) If during the term of the Lease the New Community Center is totally or partially destroyed rendering it totally or partially inaccessible or unusable and such damage or destruction was caused by a casualty covered to the extent of seventy-five percent (75%) of full replacement value under the insurance policy required to be maintained pursuant to Paragraph (a) of Section 10 of this Agreement, the City shall restore the New Community Center into substantially the same condition as it was in immediately before such damage or destruction within a reasonable period of time. The City shall not be required to restore Delhi's improvements, trade fixtures, equipment or alterations made by Delhi, such excluded items being the sole responsibility of Delhi to restore. (b) If the damage or destruction is caused by earthquake or flood and the City does not have insurance coverage to the extent of seventy-five percent (75%) of full replacement value, then the City may terminate this Lease by giving written notice of termi- nation to Delhi and the Lease will be deemed canceled as of the date of such damage or destruction, except that Delhi shall have the option to provide funds for restoring the New Community Center in the amount of the difference between the insurance coverage and seventy-five percent (75%) of full replacement value, and in the event Delhi provides such funds, the City shall restore the New Community Center and shall not terminate this Lease. Section 8 shall not apply to termination pursuant to this Paragraph. 13 . . 12. Taxes Delhi recognizes and understands that this Lease may create a possessory interest subject to property taxation. Delhi hereby agrees to pay any and all property taxes and assessments levied on such interest during the term of this Lease before said taxes become delinquent. 13. Landlord's riaht of entrv. The City's officers and employees shall have the right to enter the New Community Center at any time for the purpose of inspecting same and performing the City's maintenance responsibili- ties under this Lease. The City's officers and employees shall exercise such right of entry in a manner which minimizes interrup- tion of Delhi's programs and events. 14. Representatives A. For purposes of implementing this Agreement, the represen- tative of the City shall be the Executive Director of the Recre- ation and Community Services Agency of the City (or such person within the said Agency as shall be designated by the said Executive Director), and the representative of Delhi shall be its Executive Director. Such representatives are authorized to give notices pursuant to this Agreement and to enter into subordinate agreements consistent with this Agreement on behalf of their respective parties. B. Any notice served by one party to this Agreement on the other may be affected by personal delivery in writing or by deposit in the U.S. Mail, postage prepaid. Mailed notice shall be 14 . . addressed as set forth below, but each party may change party's address by written notice in accordance with this section. To City: Executive Director Recreation and Community Services Agency City of Santa Ana 20 Civic Center Plaza Santa Ana, CA 92701 To Delhi: Executive Director Delhi Center 542 E. Central Avenue Santa Ana, CA 92707 15. Certificate of non-discrimination By signing this Agreement, the parties hereto certify that they do not discriminate in hiring on the basis of race, color, creed, religion, sex, age, marital status, national origin, ancestry, physical handicap or medical conditions. 16. Choice of law. This Agreement shall be governed by the laws of the State of California. 17. Waivers. No waiver by a party to this Agreement or any provision hereof shall be deemed a waiver of any other provision hereof or of any subsequent breach by such party of the same or any other provision. A party's consent to or approval of any act shall not be deemed to render unnecessary the obtaining of that party's consent to or approval of any subsequent act. 18. Incornoration of aareements. This Agreement contains all agreements of the parties with respect to any matter mentioned herein. No prior agreement or 15 . . . understanding pertaining to any such matter shall be effective. This Agreement may be modified only in writing and signed by the parties in interest at the time of such modification. 19. Time. Time is of the essence of this Lease. 20. Severability. The unenforceability, invalidity or illegality of any provision of this Lease shall not render the other provisions hereof unenforceable, invalid or illegal. IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST: CITY OF SANTA ANA ~ ~j~ r:(,Ay Jan' e C. Guy (/ Clerk of the Council APPROVED AS TO FORM: Er:~= city Attorney DELHI CENTER by Board of ..~.et ~_c~ntent , by Citv Man2ger 16 . )> < '" z c '" ,-I, I. . , .. " .... . .. " "', (') r'I Z -j ::c )> r '" <D '" ~ 0, I -50' 3/ ' HALLADAY S..E,80-A . . SCHOOL -Nsc~ 020 -",so 100 996_60' ARMORY - -Uo""--- - PARe EL J 1- -, I 1_ -- ---, I f~rozeO J COMMUNlf'l Ct;-Nr~ I.OclirlON I \-1-, I L I CITY 1YARD - -.... ( D~I..H I F AfZ-K t;i<.FAH&II:lN) C) o. DELHI PARK ( t'XlfJTII-ll\ ) STREET OfLH' rA~ EXHIBIT 51Tr rLAN ^ 1/ A 1.30' I 45' Il<<> l, . ~o '9.S I ~ I q I 1 I I /Q' l+- I J ~ )> ::n z '" ::n " q , .50' 30' J.R.S. 10-21-7\ )> < '" Z C r'I 50' 30' l . . DESCRIPTION THE ~ REFERRED TO IN THIS REPORT IS SITUATED IN THE STATE OF CALIFORNIA, COuwTY OF ORANGE, CITY OF SANTA ANA, AND IS DESCRIBED AS FOLLOWS: PARCEL A: THAT PORTION OF ~OT 1 IN BLOCK 6 OF TRACT NO. 39, AS SHOWN ON A MAP RECORDED IN BOOK 9, PAGE 37 OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, ~~IFORNIA, TOGETHER WITH THAT PORTION OF THE 15.00 FOOT ALLEY ADJOINING SAID :'OT 1 ON THE SOUTH, AS ABANDONED BY RESOLUTION NO. 87-306 OF THE CITY COUNTY OF THE CITY OF SANTA ANA, A CERTIFIED COFY OF WHICH WAS i<.ECORDED JANUARY 7, 1958 IN BOOK 4157, PAGE 199 OF OFFICIAL RECORDS OF SAID ORANGE COUNTY, DESCRIBED AS FOLLOWS: BEGINNING AT THE NORTHWEST CORNER OF SAID LOT 1; THENCE SOUTH 00 12' 00" EAST ALONG THE WESTERLY LINE OF SAID LOT 1 AND ALONG THE SOUTHERLY PROLONGATIm, THEREOF, 147.50 FEET TO A FOINT IN THE CENTERLINE OF SAID 15.00 FOOT ALLEY; THENCE EAST ALONG SAID CENTERLINE 16.60 FEET; THENCE NORTH 40 04' 09" EAST 121.05 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE SOUTHWESTERLY HAVING A RADIUS OF 25.00 FEET; THENCE NORTHWESTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 940 04' 09" AN ARC DISTANCE OF 41.05 FEET TO A LINE TANGENT, SAID LINE TANGENT BEING THE SOUTHERLY LINE OF CENTRAL AVENUE, 60.00 FEET WIDE; THENCE WEST ALONG SAID TANGENT LINE 0.77 FEET TO THE POINT OF BEGINNING. PARCEL B: LOT 2 IN BLOCK 6 OF TRACT NO. 39, AS SHOWN ON A MAP RECORDED IN BOOK 9, PAGE 37 OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA, TOGETHER WITH THAT PORTION OF THE NORTH HALF OF THE 15.00 FOOT ALLEY ADJOINING SAID LOT 1 ON THE SOUTH, AS ABANDONED BY RESOLUTION NO. 87-306 OF THE CITY COUNTY OF THE CITY OF SANTA ANA, A CERTIFIED COPY OF WHICH WAS RECORDED JANUARY 7, 1958 IN BOOK 4157, PAGE 199 OF OFFICIAL RECORDS OF SAID ORANGE COUNTY, SAID PORTION BEING BOUNDED WESTERLY BY THE SOUTHERLY PROLONGATION OF THE WESTERLY LINE OF SAID LOT 2 AND BOUNDED EASTERLY BY THE SOUTHERLY PROLONGATION OF THE EASTERLY LINE OF SAID LOT 2. EXHIBIT "B" , .. . . DELHI COMMUNITY CENTER PROGRAMS AND EVENTS The fOllowing list of programs and events to be offered by the Delhi Organization at Delhi Community Center and Park site will be approved as part of this agreement. The programs offered at the facility will be available to all children, teens, adults, senior citizens and disable individuals. All programs and events shall comply with all laws, orders, rules, regulations, ordinances and requirements of the city of Santa Ana. Recreational activities Weight and cardiovascular equipment Personal Fitness Training Racquetball & Handball Courts Boxing Volleyball activities Billiards Table Tennis Gymnastics Aerobics Circuit Training Excursions Camping After School Programs Theater Activities & Plays Automotive Repair Classes ESL Classes Health education Music Classes Nutrition Programs Arts and Craft Programs Special Interest Programs Fitness Programs Dance Classes Self Defense Classes First Aid/CPR Programs Yoga Classes Health Prevention Screening Senior Program and activities Emergency Food Distribution Document Preparation Assistance Information and Referral Services Job Placement Assistance Non-Clinical Counseling Services Special Speaking engagements Special Events EXHIBIT "C"