HomeMy WebLinkAbout07/19/2005, BUS. 2 - AMENDED AND RESTATED LEASE AGREEMENT WITH THE SAN LUIS OBISPO CHILDREN'S MUSEUM council M 7/�� a-N-
aclenaa Rep oin S,
CITY OF SAN LUIS OBISPO
FROM: Ken Hampian, CAO
Prepared By Wendy George, Assistant CAO ti
SUBJECT: AMENDED AND RESTATED LEASE AGREEMENT WITH THE SAN LUIS
OBISPO CHILDREN'S MUSEUM
CAO RECOMMENDATION
1. Adopt amended and restated lease agreement with the San Luis Obispo Children's
Museum (Children's Museum); and
2. Deny request for monetary support to assist with costs related to soil contamination
mitigation and associated construction delays.
DISCUSSION
History of Partnership with the Children's Museum .
Since January 1990, the City has allowed the Children's Museum to use 1010 Nipomo Street to
operate a Children's Museum. While initially an interim arrangement, due to prior agreements
with the San Luis Obispo Little Theatre (Little Theatre), the site became amore permanent home
to the Children's Museum in 2000, when the City amended its agreement with the Children's
Museum to allow for the development and operation of a facility on the proposed site and
extended the land lease through December 2043 (or forty years after construction of the new
facility is complete).
Over the last five years, the Children's Museum has conscientiously and systematically moved
forward with plans to construct a new facility on the site. Its staff and board of directors
completed a feasibility study, developed and conducted a successful capital campaign, prepared
plans for a creative, yet practical facility, and broke ground in the fall of 2004.
Soil Contamination Mitigation
Following demolition of the former museum, soil samples at the site revealed elevated levels of
lead contamination from imported fill. Mitigation included over-excavation ofthe site, disposal
of the material in an approved hazardous waste facility, and encapsulating the site via foundation
and hardscape to prevent further risks associated with the lead in the future. When the mitigation
was complete, direct costs to the Children's Museum exceeded $70,000. Construction delays,
increased steel prices, and other costs associated indirectly with the mitigation have added an
additional $160,000 to the cost of the project ($230,000 total). (See Attachment 1)
Letter of Request from the Children's.Museum
Upon request by the Children's Museum, on Thursday, June 23, 2005, City staff met with
members of the Museum's board of directors to discuss a number of issues of concern to the
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Amended_&_Restated_Agreement with Children's Museum Page 2
board as they move forward with construction of the new facility. Following the meeting, the
Children's Museum put their concerns on paper and submitted a letter requesting the following:
1. Amendments to the lease agreement that a) more clearly describe the portion of the
property for which the Children's Museum is responsible, and b) provide greater
indemnification for the Children's Museum should issues arise in the future from the soil
contamination; and
2. A monetary contribution from the City to cover the increased costs incurred because of
the contamination and construction delays. (See Attachment 1)
Amendments to the Lease
The board has requested amendments to the lease agreement which address the following:
1. Language which identifies the portion of property that specifically will be used by the
Children's Museum for their construction and operation. The current agreement
identifies the entire property, which includes areas associated with the Creek Walk that
have unlimited public access and are maintained by the City as part of our park system.
2. An indemnification clause that protects the Children's Museum from future claims
arising from the presence of hazardous material on the premises.
3. An extension to the terms of the agreement to fifty (50) years, commencing upon
execution by both parties.
Other minor amendments were also requested, primarily to reflect conditions that have changed
since the original agreement was developed. (See Attachment 2). Staff has worked closely with
the Children's Museum's legal counsel on developing the amended and restated agreement, and
we are supportive of the above requested changes. In particular, given the fact that the soil will
be completely enclosed by the foundation of the building and surrounding hardscape, staff
believes that the requested indemnification language would not create future liabilities for the
City.
Monetary_Contribution
As discussed above and indicated in the attached letter, the Children's Museum is requesting that
the City consider reimbursing them for costs incurred in addressing and mitigating the
contaminated soil discovered during construction of the new museum facility. Specifically, they
are requesting up to $230,000, ($70,000 direct soil remediation costs and $160,000 increased
construction costs related to construction delays caused by the soil remediation). In our
conversations with the Children's Museum boards staff has been explicit that we will not able to
support their request for monetary contributions from the City for the following reasons:
1. The City has already supported the efforts of the Children's Museum to construct a new
facility by a) leasing the premises to the Children's Museum for $1.00/year (raw land
value estimated at approximately $650,000); b) establishing a Parking in-Lieu Fee
District that separated the fees from zoning, thus enabling the Children's Museum to pay
in-lieu fees rather than provide parking spaces on-site; and then c) reducing Parking in-
Lieu Fees for Community Partners by 50% (from $11,661 to $5,831/space requirement)
thus reducing the Children's Museum fee obligation by over$104,000.
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2. The agreement with the Children's Museum specifically states in Section 2 that "the City
shall have no obligation for the development„ operation or maintenance of the proposed
facility. Any costs incurred for the development, operation or maintenance of the facility
shall be the sole responsibility of the Children's Museum.
3. The agreement also states in Section 4 that the Children's Museum shall accept the
premises "as is" and that the "agreement shall not obligate the City to guarantee the
condition of the Premises, the suitability of the Premises for the Children's.Museum's
intended use...."
4. The City has a similar relationship with other Community Partners, such as the San Luis
Obispo Art Center and the Little Theatre, both of which are in interested in constructing
new facilities on City-owned property. To provide monetary support associated with the
construction of the Children's Museum would establish a precedent for similar requests
from these organizations should issues typical of development in the downtown, such as
soil contamination, present themselves.
5. The City currently has cultural assets of its own, including the three historic adobes and
the Southern Pacific freight warehouse, for which it lacks the appropriate funding to
rehabilitate. Considering the number of budget balancing strategies implemented for the
2005-07 Financial Plan, and the City's five year financial outlook, it is hard to
recommend funding to an outside cultural organization; even though it provides an
exceptional service to the community, when we cannot maintain our own cultural
facilities. And worse still...
6. On June 21, 2005 the Council approved a Financial Plan that closed a$2 million General
Fund gap, on top of the $7 million gap we closed two years ago. While significant fee
increases played a role in closing these gaps,.75% of our solutions were through cuts in
City services, programs and projects. Here are just a few examples:
• Reducing our emergency reserve to well below our policy 20% level;
• Eliminating three sworn police officer positions and other positions in police, fire
and other City departments;
• Deferring funding a full-time Fire Marshall and instead maintaining only a 1/2
contract position for the foreseeable future;
• Suspending the Pavement Management Plan;
•. Providing no funding for flood protection or storm drain maintenance_ projects;
• Eliminating General Fund support for open space preservation;
• Cutting HRC social service grants and PCC cultural promotion grants.
Less than one month after making very difficult decisions (and disappointing many with
cuts and/or added fees), the CAO cannot recommend support for a new $200,000 expense
that, according to the existing agreement between the City and Children's Museum, is not
a City responsibility. The argument that the City would have to pay for such clean up
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costs if the City were to develop the property isn't an adequate justification for assuming
this responsibility, in staffs' opinion. This is because the City has never expressed an
interest in developing the property and instead gave that right.to the Children's Museum,
as requested by them, with the understanding that they would assume typical development
costs and risks as set forth in the 2003 agreement.
Elimination of Conditions for Street Improvements
Although not included in the attached letter,. during discussions with the Children's Museum
board, an alternative verbal request was made to consider the elimination of all or some of the
conditions for off-site improvements associated with the construction project. Of all the off-site
improvements required(installing three bulb-outs,two sidewalk ramps for disabled access, a stop
bar, mission-style sidewalks, street trees,.relocation of a light and signage, and striping a bike
lane), only the three street bulb-outs are considered discretionary. The others are actually code
requirements. Because the bulb-outs are a discretionary condition of the Architectural Review
Committee's (ARC) approval, and mentioned in the Children's Museum's environmental
document as part of the project (so they did not have to incorporate pedestrian/transportation
mitigation measures), it would be necessary for the Children's Museum to return to the ARC for
its approval, and revisit the environmental review. The engineer's estimate for the cost of the
three bulb-outs is approximately$7,000.
CONCURRENCES
The City Attorney worked with the attorney for the Children's Museum to develop the
amendments to the agreement.
FISCAL IMPACT
Assuming that the Council does not approve any additional funding assistance, the fiscal impacts
to the new agreement would be related to possible liability incurred by the addition of the new
indemnification clause, and are unknown at this time. Based on reports from the Fire
Department and Padre Associates, Inc., after remediation the property is safe for all uses,
particularly the presence of children. Therefore, the risk of providing greater indemnification for
the Children's Museum from the soil contamination is minimal.. No other fiscal impacts are
expected from amending and restating the lease agreement.
ALTERNATIVES
1. The Council could choose to reimburse the Children's Museum:
a. All or part of the direct costs of soil contamination mitigation ($70,000). Funding
would need to be appropriated from the General Fund balance, reducing the
reserve to 15.2% of operating expenditures. If the Council were inclined to
provide construction cost assistance to the Children's Museum, staff would
suggest that it be limited strictly to this direct cost. For reasons stated above,
however, this is not recommended.
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b. All or part of direct and. indirect costs of soil contamination mitigation and
subsequent increased construction costs ($230,000). Funding would need to be
appropriated from the General fund balance, reducing the reserve to 14.7% of
operating expenditures. Any-further reductions,of the reserve should be put in the
context of our policy minimum of 20% of operating expenditures, which we are
already far below by$1.7 million.
2. Although not requested in the attached letter, the Council could choose to waive the
requirement for bulb-outs. Because the bulb-outs are a discretionary condition of the
Architectural Review Committee's (ARC) approval, and mentioned in the Children's
Museum's environmental document as part of the project (so they did not have to
incorporate pedestrian/transportation mitigation measures), it would be necessary for the
Children's Museum to return to the ARC for its approval of this change and revisit the
environmental review. The value of this alternative to the Children's Museum is
approximately $7,000. If this alternative were approved; the City would need to either 1)
install the bulb-outs ourselves, or 2) waive the discretionary condition of approval
requirement for bulb-outs in that area, which is then inconsistent with the Conceptual
Physical Plan for the Downtown.
ATTACHMENTS
1. Letter of Request from the Children's Museum
2. Amended and Restated Agreement
A legislative draft of the agreement is available in the Council reading file.
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,i iUL 0 D-2005
u
SLO CI_Y COUNCIL
July 1, 200
Mayor David Romero
City of San Luis Obispo
990 Palm Street
San Luis Obispo, California 93401
Re: San Luis Obispo Children's Museum
Request for Reimbursement of Costs
Dear Mayor Romero:
This letter is written to request that the City consider reimbursement to the San '
Luis Obispo Children's Museum for costs incurred in addressing and remediating
contaminated soil discovered during construction of the new museum facility. Initially,
the Museum wishes to stress its appreciation for the cooperation and generosity of the
City to date. Over the years,the City Council and City staff has diligently worked to
assist the Museum in providing an entertaining and cultural experience for local children
since 1990. Through that collaboration, the Museum has become an institution now
enjoyed by the children of former patrons. It is our hope that our joint efforts will allow
their great-great grandchildren to experience the benefits offered by the Museum.
The Museum contributes to the character and vitality of the City's downtown.
Before the new construction,the Museum generated approximately 40,000 visitors a
year. We expect many more visitors to the new museum. Half of those visitors are from
out of the area. We are often told that the Children's Museum is a significant factor in
the vacation plans of young families.
Construction of the new facility is underway. Unfortunately,excavation revealed
the presence of some contaminated soil on the Museum site. It appears that this
contamination came from debris and rubble historically dumped along the creek. The
Museum moved quickly to analyze the extent of contamination and develop a cost
effective remediation solutions while keeping the City fully informed of its activities.
We have received a"no-action" letter from the City Fire Department. We also obtained a
health-risk assessment from Padre Associates,Inc., finding that the property, after
remediation, is safe for all uses particularly the presence of children.
The cost to the Museum for undertaking these prudent measures has been
significant. The hard costs of remediation alone will exceed$70,000. Moreover,
because of the resultant delay,at least an additional $160,000 will be incurred. This
means that the Museum is looking at an unexpected increase in construction costs of
$230,000. This increase is above and beyond any contingency budgeted by the Museum..
There is no current source of money available to meet these increased costs. Unless a
source is found through reimbursement,participation or deferment,the project will be
significantly delayed and/or reduced in scope.
Museum: 1010 Nipomo Street 805-544-6212
Business Office: 1108 Garden Street, Suite 212. Phone:805-545-5874• Fax: 805-545-5875
San Luis Obispo, CA 93401 •Website: slokids.org
Al 10MENT I
Mayor David Romero
July 1, 2005
Page Two
We recognize that the City is in a financial predicament and cannot easily help the
Museum defray the increased costs. However; we would like the City to recognize that
the costs.incurred by the Museum were to clean up City-owned property and that,
eventually;the cost would have fallen on the City. We believe, given that the
remediation benefited the City and that the completed Museuwill benefit the City, it is
reasonable for the City to cover the increased cost. (We should
ould point out that because of
in-kind contributions, the Museum was able to handle the mediation at a fraction of the
cost that would have been incurred by the City.)
Again, we reluctantly request reimbursement with the knowledge of the City's
budgetary concerns. However, in the long run,the Museum has not only saved the City
significant money but will deliver an asset to children and families for generations to
come and ad_ d to the City's efforts to maintain a commercially and culturally vibrant
downtown.
Concurrent with the reimbursement request, we are also requesting some changes
to the existing.lease that reflect changed circumstances particularly the construction of a
new facility. We have been working with the City Attorney to deliver to you a document
that protects all interests yet allows the Museum to complete the current project. We ask
that you approved the revised lease.
Thank you for your consideration and cooperation. We look forward to a_
continued mutually beneficial relationship.
Very truly yours, n
-rnIC��
D. 1ltichael Patrick.
President
San Luis Obispo Children's Museum
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ATTACHMEW2
.FIRST AMENDED AND RESTATED AGREEMENT
BETWEEN THE CITY OF SAN LUIS OBISPO AND
SAN LUIS OBISPO'S CHILDREN'S MUSEUM
FOR USE OF CITY PROPERTY AT 1010 NIPOMO STREET
This First Amended and Restated Agreement ("Amended Agreement") is entered
into this _ day of 2005, by and between the City of San Luis Obispo (herein
referred to as "City") and the San Luis Obispo Children's Museum, a non=profit
organization (herein referred to as "Children's Museum").
WITNESSETH
WHEREAS, the City is the legal owner of the property located at 1.010 Nipomo
Street in the City of San Luis Obispo as shown on Exhibit A; and
WHEREAS, on or about March 9, 2000, the City and the Children's Museum
entered into that certain °Agreement Between the City of San Luis Obispo and San Luis
Obispo's Children's Museum for the Use of City Property at 1010 Nipomo ("2000
Agreement") and
WHEREAS, pursuant to the 2000 Agreement; the City allowed the Children's
Museum the use of the City's property at 1010 Nipomo for $1.00 per year, and the
approximate fair market value of the property at the time of this writing is $650,000;
WHEREAS, the 2000 Agreement contemplated that the Children's Museum
would remodel and continue to use the existing building at 1010 Nipomo; and
WHEREAS, the Children's Museum, with the concurrence of the City; decided to
raze the existing building and construct a new building on the site; and
WHEREAS; the old building has been razed and construction has commenced
on the new building; and.
WHEREAS, the parties wish to restate and amend the 2000 Agreement in order
to address the construction of a new building;
NOW, THEREFORE, in consideration of the mutual covenants, conditions,
promises, and agreements herein set forth, the City and Children's Museum hereby'
agree to the following terms and conditions for use of this property:
TERMS
1. Location of Property. The City will allow the children's Museum to use a
portion of the City-owned property located at 1010 Nipomo Street in San Luis Obispo for
the purpose of constructing and operating a Children's Museum for the term of this
Amended Agreement. The portion of the property that may be used by the Children's
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ATTACHMEM Z
Museum is depicted on Exhibit A and hereinafter referenced as the Premises. In
general terms, the Premises consists of approximately 7411 square feet bordered by
Nipomo Street, Monterey Street, the northern property line and the fence bordering the
San Luis Obispo Creek Walk.
2. Purpose of Amended Agreement. The Children's Museum agrees to
lease the subject property and to develop and operate a facility on the proposed site for
the term of the lease, which will serve to meet the intent of this Amended Agreement.
The City shall have no obligation for development, operation or maintenance of the
proposed facility. Any costs incurred for development, operation or maintenance of the
facility shall be the sole responsibility of the Children's Museum.
3. Term of Amended Agreement. The term of this Amended Agreement
shall commence upon execution by both parties and expire on December 31, 2055.
Prior to the expiration of this Amended Agreement, the Children's Museum may request
an extension of this Amended Agreement for a mutually agreeable term. Nothing in this
paragraph 3 shall be construed to obligate the City to agree to an extension of this
Amended Agreement.
4. Extent and Condition of the Premises. The Children's Museum shall
accept the Premises "as is". This Amended Agreement shall not obligate the City to
guarantee the condition of the Premises, the suitability of the Premises for the
Children's Museum's intended use, the duration that the Premises may be safely
occupied, or the availability of alternate facilities. Should any occurrence (such as fire,
earthquake, flood or the need to repair, improve or use the Premises) necessitate
closing the Premises or a portion of the Premises to the public, the Children's Museum
shall have no recourse to the City for any loss incurred.
5. Rent-. In recognition of the benefits the Children's Museum provides the
community, the City agrees to provide the Children's Museum the use of site for $1 per
year, payable on March 9 of each year.
6. Cost of Operations. The Children's Museum shall bear the entire cost of
its operations on the Premises, including utility bills and any taxes and fees related to its
occupancy of the Premises, such as possessory interest taxes.
7. ADA Compliance. The Children's Museum agrees to assume full
responsibility for insuring that the facility complies with the requirements of the
Americans with Disabilities Act.
8. Minimum Hours of Operation. Beginning_ from the Completion Date, as
defined in Paragraph 12, The Children's Museum shall use it reasonable efforts to to
keep the museum open to the public a minimum of ten (10) hours on weekends from
September through May and twenty (20) hours per week from June through October.
The parties acknowledge that Children's Museum is a non-profit organization dependent
in large part on charitable contributions for operational funding and that a lack of
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ATTACHMENT 2
charitable contributions might temporarily impact the ability of the Children's Museum to
maintain operations.
9. Maintenance by the Children's Museum. The Children's Museum
agrees to maintain the facility in a clean, safe and attractive condition at all times. This
includes maintaining and cleaning the building interior, exterior, performing routine
repairs and maintaining landscaping.
10. Creek Access. The City reserves 8 feet, along the southeast boundary
for the purpose of entering accessing and maintain retaining walls, slope banks, creek
channel, Nipomo Street Bridge, the San Luis. Obispo Creek Walk and other related
items as they exist today and as they may be modified, changed or replaced in the
future.
11. Construction of Facility. The Children's Museum intends to complete
construction of a new building at its own expense, in accordance with the design
approved by the City.
12. Construction Schedule. The Children's Museum is in the process of
constructing a new building on the Premises. The Children's Museum will use
reasonable efforts to complete construction on or before June 30, 2007. ("Completion
Date"). The City reserves the right to grant time extensions or to cancel this Amended
Agreement for failure to make reasonable progress in the completion of construction by
the Completion Date. The Children's Museum shall follow all City requirements,
including such items as fees and permits, that are appropriate to construction of the kind
proposed.
13. Termination of Lease by City. The City reserves the right to terminate
this Amended Agreement by notifying the Children's Museum in writing six months prior
to termination should the City need the property for official City business. Additionally,
should the Children's Museum be unable to complete the proposed construction, the
lease may be terminated, and, at the City's option, all improvements will become the
property of the City or the site shall be delivered free and clear of all Improvements.
In the event of early termination of this Amended Agreement by the City
after completion of the construction, the City shall have the option to buy out
improvements at the proportional rate of 90% of actual construction costs if cancellation
is within the first ten (10) years, 70' between ten (10) and twenty (20) years, 50%
between twenty (20 and forty () years and nothing thereafter. The above "buyout"
provisions shall be in lieu of any other compensation, including, but not limited to,
relocation assistance.
14. Termination of Lease by Children's Museum. The Children's Museum
may terminate this Amended Agreement by notifying the City in writing six months prior
to termination. In the event that the Children's Museum chooses to exercise this option,
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AT�A�lMENT 2
all permanent improvements (excluding removable exhibits and outdoor play
equipment, specifically related to the functioning of the museum) shall revert to the City
Of San Luis Obispo.
15. Labor Code. The Children's Museum certifies that it is aware of the
,provisions of the Labor Code of the State of California, which require every employer to
be insured against liability for workers compensation or to undertake self-insurance in
accordance with the provisions of that Code, and it certifies that it will comply with such
provisions throughout the term of this Amended Agreement.
16. Non-discrimination of Lessee.. There shall be no discrimination against.
or segregation of any person or group of persons on account of race, religion, sex,
sexual orientation, national origin, age, physical, mental or economic status in the
construction, operation, lease, sublease, use, occupancy, tenure or enjoyment of the
Property or the improvements thereon, or any part thereof, and the Children's Museum,
or any person claiming under or through it, shall not establish or permit any such
practice of discrimination or segregation with reference to the construction of the Project
Improvements, or the selection, location, number, use or occupancy of employees,
contractors, subcontractors, laborers or materialmen, tenants, lessees, subtenants,
sublessees, invitees or vendees of the Property or the 'improvements thereon, or-any
part thereof.
Tfie Children's Museum shall not restrict access or use of the Property or
the improvements thereon, or any portion thereof, on the basis of race, religion, sex,
sexual orientation, national origin, age; physical, mental or economic status of any
person.
17. Relationship of Parties. Under this Amended Agreement, the City shall
be solely and exclusively a Lessor, and the Children's Museum shall be solely and
exclusively a lessee. The Children's Museum shall "not be considered a partner, agent,
officer or employee of the City. The Children's Museum's officers, members, affiliates,
volunteers, employees and independent contractors shall not be 'considered agents,
officers or employees of the City.
18. Assignment. The Children's Museum shall not assign this Amended
Agreement to another party without the City's prior written consent.
1.9. Subrogation Waiver. The City and the Children's Museum release and
relieve each other and waive their entire rights of recovery against each other for
damage from perils covered by their property insurance, whether due to the negligence
of the City, the Children's Museum, or their agents, officers, employees or guests.
20. Proof of Insurance. The Children's Museum agrees to provide proof of
insurance in accordance with the requirements below:
Minimum Scope of Insurance
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ATTANST2
Coverage shall be at least as broad as:
1. Insurance Services Office Commercial General Liability coverage
(occurrence form CG 0001).
2. Workers' Compensation insurance as required by the State of California
and Employer's Liability insurance (for lessees with employees).
3: Property insurance against all risks of loss to any tenant improvements or
betterments.
Minimum Limits of Insurance
Lessee shall maintain limits no less than:
1. General Liability: $1,000,000 per occurrence for
bodily injury; personal injury and property
damage. if Commercial General Liability
Insurance or other form with a general aggregate
limit is used, either the general aggregate limit
shall apply separately to this projectAocation or
the general aggregate limit shall be twice the
required occurrence limit.
2. Employer's Liability:$1,000,000 per accident for
bodily injury or disease.
3. Property Insurance: Full replacement cost with
no coinsurance penalty provision.
Deductibles and Self-Insured Retentions
Any deductibles or self=insured retentions must be declared to and approved by
the City. At the option of the City, either: the insurer shall reduce or eliminate such
deductibles or self-insured retentions as respects the City, its officers, officials,
employees and volunteers; or the Lessee shall provide a financial guarantee
satisfactory to the City guaranteeing payment of losses and related investigations,
claim administration and defense expenses.
Other Insurance Provisions
The general liability policy 'is to contain, or be endorsed to contain, the following
provisions:
1.. The City, its officers, officials, employees and volunteers are to be
covered as insureds with respect to liability arising out of ownership,
maintenance or use of that part of the premises leased to the lessee.
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AWMENT2
2. The Lessee's insurance coverage shall be primary insurance as respects
the City, its officers, officials, employees and volunteers. Any insurance
or self-insurance maintained by the City; its officers, officials, employees
or volunteers shall be excess of the Lessee's insurance and shall not
contribute with it.
3. Each insurance policy required by this clause shall be endorsed to state
that coverage shall not be canceled, except after thirty (30) days' prior
written notice by certified mail, return receipt requested, has been given
to the City.
Acceptability of Insurers
Insurance is to be placed with insurers with a current A.M. Best's rating of no less
than A:VI. Exception may be made for the State Compensation Insurance Fund
when not specifically rated.
Verification of Coverage
Lessee shall furnish the City with original certificates and amendatory
endorsements effecting coverage required by this clause. The endorsements
should be on forms provided by the City or on other than the City's forms, provided
those endorsements or policies.conform to the requirements. All certificates and
endorsements are to be "received and approved by the City before work
commences. The City reserves the right to require complete, certified copies of all
required insurance policies; including endorsements effecting the coverage
required by these specifications at any time.
21. Indemnification.
A. The Children's Museum hereby agrees to indemnify and saveharmless the City; its
officers, agents, and employees against:
('i) Any and all claims and dernands which may be made against
the City, its officers, agents or employees by reason of any injury or death of any
person or corporation caused by any act or omission of the Children's Museum
under this Amended Agreement or of the Children's Museum's employees or
agents;
(ii)Any and all damage to or destruction of the property of the City,
its officers; agents, or employees, occupied or used by or In the care, custody, or
control of the Children's Museum, or in proximity to the site of the Children's
Museum work, caused by any act or omission of the Children's Museum under
this Amended Agreement;
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ATTACHMEW2
(iii). Any and all claims and demands which may be made
against the City, its officers, agents, or employees by reason of any injury to or
death of or damage suffered or sustained by an employee or agent of the
Children's Museum under this Amended Agreement, however caused,
excepting, any such claims or demands which are the result of the sole active
negligence or willful misconduct of the City, its officers, agents, or employees;
(iv). Any and all claims and demands which may be made
against the City, its officers, agents or employees by reason of infringement or
alleged infringement of any trademark or copyright rights or claims caused by the
use of any apparatus, appliance, or materials furnished by the Children's
Museum under this Amended Agreement; and
(v) Any and all penalties imposed or damages sought on
account of the violation of any law or regulation or of any term or condition of any
permit, when said violation of any law or regulation or of any term or condition of
any permit is due to negligence on the Children's Museum.
(vi). The Children's Museum, at its own costs, expense, and risk
shall defend any and all suits, actions, or other legal proceedings that may be brought
against or for employees on any such claim or demand of such third persons, or to
enforce any such penalty, and pay and satisfy any judgment or decree that may be
rendered against the City, its officers, agents, or employees in any such suit, action, or
other legal proceeding, when same were due to negligence of the Children's Museum.
B. Notwithstanding anything to the contrary in this Amended Agreement, the City shall
defend, indemnify and hold harmless Children's Museum, its Board Members, officers,
agents and employees from and against any and all loss, liability, claim, penalty or
expense, including, without limitation claims for personal injury, property damage or
economic loss, arising from the presence of hazardous material on the Premises to the
extent that the presence of such hazardous material is not cause_ d by the Children's
Museum, its employees, contractors, guests or invitees.
22. Enforcement Costs and Attorney's Fees. The prevailing party in any
action between the parties to this Amended Agreement, brought to enforce the terms of
this Amended Agreement, may recover from the other party its reasonable costs and
attorney's fees in connection with such an action.
23. Entirety and Integrity of Amended Agreement. This Amended
Agreement is intend to supersede and replace the 2000 Agreement. This document
represents the entire and integrated agreement between the City and Children's
Museum. This document supersedes and negates all prior negotiations,
representations, agreements and amendments, either written or oral; regarding the
Premises and the operation of a children's museum on the Premises including, without
limitation, the 2000 Agreement. Both parties also recognize that some issues may not
have been anticipated or addressed herein, and that changes to the Amended
7
ATTACHMENT 2
Agreement may be warranted. This Amended Agreement may be amended upon
written consent of both parties, to the approval of the City Administrative Officer and the
City Attorney and as provided by law.
This Amended Agreement is executed this day of ; 2005, in the
City of San Luis Obispo, State of California.
CHILDREN'S MUSEUM
Executive Director
CITY OF SAN LUIS OBISPO
David Romero
Mayor
Attest:
Audrey Hooper
City Clerk
Approved as to form:
Jbmft fian P. Lo_well
City Attorney
8
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ATTACHMENT 2
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council memoRanbum
city of san suis ompo. aammistttation aepaatment RED-FI6E�
MEETING AGENDA
DATE: July 19, 2005 DATE 7 e 1f ITEM #
TO: City Council
VIA: Ken Hampian, City Administrative Officer
FROM: Wendy George, Assistant.City Administrative Officer
SUBJECT: Bulbouts for Children's Museum Project
One of the proposals suggested by board members of the Children's Museum to reduce construction
costs for their new facility was for the City to eliminate some of the off-site requirements. Discussion
has focused on the three required sidewalk bulbouts, as these could be considered discretionary. While
the bulbouts were included as a code -requirement, they do not appear to be part of any required
environmental mitigation. Therefore, Council could choose to remove the condition for some or all of
the bulbouts.
Staff is recommending that should the Council choose to consider this option, the Children's Museum
still be required to build the bulbout located on their Nipomo/Palm frontage. A bulbout in that location
would allow for children or other visitors to be dropped off safely and for pedestrians to be more
visible when crossing the street. If the other two bulbouts were eliminated, staff estimates a savings of
about $5,000 each, $10,000 total. These bulbouts could be built at a later date, either as part of the
Palm/Nipomo parking structure or perhaps using CDBG funding as part of the City's ADA
improvements.
Additionally, the architect for the Children's Museum included decorative pavers in the crosswalks,
which would add to the cost of the off-site improvements. Research indicates that pavers are not called
out in the building permit plans, therefore-are not a required improvement. Crosswalks are required to
be well-marked and appropriately signe . Council could choose to eliminate the decorative pavers
from the plans.
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