HomeMy WebLinkAboutReso RDA 4-2003 RESOLUTION NO. 04-2003
REDEVELOPMENT AGENCY, CITY OF SOUTH SAN FRANCISCO,
STATE OF CALIFORNIA
A RESOLUTION AUTHORIZING A LEASE AGREEMENT WITH THE
YMCA FOR THE GATEWAY CHILDCARE CENTER
WHEREAS, the Redevelopment Agency desires to enter into a lease agreement with the
YMCA for the Gateway Childcare Center, as attached hereto as Exhibit A; and
WHEREAS, the lease of the property to the YMCA for operation as a licensed childcare
center provides a benefit to the project area by providing child care for the employees of businesses
located in the plan area that is convenient to their places of employment; and
WHEREAS, the Agency benefits from providing such a facility as it contributes to the
marketability of the businesses in the redevelopment plan area eliminating conditions of blight
caused by vacant, undeveloped properties in the Gateway Redevelopment Plan Area.
NOW, THEREFORE, BE IT RESOLVED by the Redevelopment Agency of the City of
South San Francisco that the Redevelopment Agency authorizes a lease agreement with the YMCA
for the Gateway Childcare Center.
BE IT FURTHER RESOLVED that the Executive Director is hereby authorized to execute
the lease agreement on behalf of the South San Francisco Redevelopment Agency.
I hereby certify that the foregoing Resolution was regularly introduced and adopted by
the Redevelopment Agency of the City of South San Francisco at a regular meeting held on the
28th of May 2003 by the following vote:
AYES:
Boardmembers Joseph A. Fernekes, Richard A. Garbarino, and Raymond L.
Green and Vice-Chair Karyl Matsumoto and Chairman Pedro Gonzalez
NOES: None.
ABSTAIN: None.
ABSENT: None.
EXHIBIT A
May 2003
Child Care Center Lease
This Lease Agreement (the "Lease") is entered into as of ,2003
("Effective Date"), by and between the REDEVELOPMENT AGENCY OF THE CITY OF
SOUTH SAN FRANCISCO (the "Agency"), and the PENINSULA FAMILY YMCA-~OUNG
MEN'S CHRISTIAN ASSOCIATION OF SAN FRANCISCO, a California nonprofit
corporation ("YMCA").
RECITALS
A. The Agency is the owner of that certain real property located in the City of South
San Francisco, County of San Mateo, State of California; more specifically, in the Gateway
Development, property owned in fee simple by the Agency, located along Gateway Blvd.
between East Grand Ave. and Oyster Point Blvd. an area of approximately 10,000 square feet;
and which is described in the attached Exhibit [A], which is incorporated herein by this
reference (the "Property").
B. YMCA desires to lease the Property from the Agency for the purposes of
maintaining and operating a Licensed Child Care facility,(the "Center")on the Property to .... I De~et~:
provide child care opportunities for the residents and businesses of South San Francisco.
C. YMCA is willing to assume total responsibility and liability for operation,
maintenance of the Center.
D. The Agency is willing to grant a Lease to YMCA on the terms and conditions
hereinafter set forth for the purpose of using the Property as specified herein for the operation,
maintenance of the Center.
E. Both parties enter into this agreement to set forth the relative rights and duties of
each with respect to the obligations under the Lease.
FOR VALUABLE CONSIDERATION, the receipt of which is acknowledged, the parties
agree as follows:
1. Lease. The Agency leases to YMCA the Property, subject to the conditions and
covenants of this Lease.
2. Incorporation of Recitals. The Recitals set forth above are incorporated herein by
this reference.
3. Use. Under this Lease, YMCA shall use the Property for the purposes of
operating and maintaining a child care center. YMCA shall not use the Property for any other
purposes without written permission from the Agency. The YMCA anticipates that such other
purposes will include special events and recreational programming such as educational classes,
parent events and/or wellness programs.
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4. Term of Lease. The term of this Lease shall commence on or about ,
and continue for a term of twenty-five (25) years renewable unless earlier terminated as provided
herein (or in Section 6 below). YMCA shall, at its sole expense, remove all internal components
placed at the Property within sixty (60) days of the termination of this Lease or on completion of
the Lease term and shall, to the greatest extent reasonably feasible, restore the Property to its
condition prior to the commencement of operation of the Center. In the event YMCA fails to
remove such items, the Agency may, upon thirty (30) days notice to YMCA, remove said items
at YMCA's sole cost and expense.
This Lease shall terminate without further notice at the expiration of the term. Any
holding-over by YMCA after expiration shall be a month-to-month tenancy and shall not
constitute a renewal or extension or give YMCA any rights in or to the Property, except as
expressly provided in this Lease. Notwithstanding the foregoing, no termination of this Lease
shall release YMCA from any liability or obligation hereunder, whether of indemnity or
otherwise, resulting from any acts, omissions or events happening prior to the date of
termination, or date of surrender if it be later.
5. Option to Extend. YMCA shall have an option, to be exercised in YMCA's
discretion, to extend this Lease for an additional 25-year period. YMCA shall provide written
notice to Agency of its intention to exercise its option at least 6 months prior to the end of the
initial lease period. If YMCA fails to notify Agency of its intention to exercise its option, the
option shall terminate upon expiration of the lease. The parties may agree to further extensions
of this Lease by mutual written agreement.
6. Early Termination. Either the Agency or YMCA may terminate this Lease prior
to the termination date upon a minimum of six months notice ("Notice Period") to the other party
to this Lease. Upon termination by either party, YMCA shall be obligated to vacate the Property
within at the end of the notice period and return possession to the Agency.
7. Relocation Benefits. YMCA hereby expressly waives any right it may have to
receive benefits under Federal and State Uniform Relocation Acts (United States Code, Title 42,
Section 4601, et seq.; California Government Code, Section 7260, et seq.) as a result of
Agency's use or possession of any portion of the Property. This requirement shall apply to any
sublessee or tenant of YMCA.
8. Operation and Control. YMCA shall be solely responsible for the operation,
control, supervision and expense of the Center at all times pursuant to Community Care
Licensing regulations and the YMCA Operations Manual. The YMCA shall maintain and
operate a child care program in accordance with the recommended developmentally appropriate
practices established by the National Association for the Education of Young Children (NAEYC)
or nationally recognized equivalent organization.
The YMCA, at its sole cost and expense, shall be responsible for obtaining and installing
any telephone, computer, surveillance, security, and playground equipment that is necessary or
desired to safely conduct operations on the premises.
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The YMCA, by and through its employees, shall be responsible for the day-to-day cost
and expense of operation of the Center and the Property surrounding it, including payment of
electrical, gas, water, sewer and other utility charges. The Agency shall pay any development
fees applicable to the property, but the Agency shall have no obligation to provide supervision of
the Center.
9. Accreditation. The YMCA shall begin the NAEYC accreditation process, or national
equivalent, within two years of beginning operations and achieve accreditation within three years
of commencing operations. Failure of the YMCA to meet or exceed state licensing standards
and obtain NAEYC accreditation (or substantially equivalent national accreditation) as required
in this section is grounds for termination of this agreement. Once accreditation is obtained,
YMCA will be responsible for maintaining accreditation of the Center so long as it occupies the
Premises~
10. Fundraising Contribution. The YMCA intends to raise charitable contributions to
fund equipment purchases and its initial start-up costs for the operation of the Center. The
YMCA's goal is to raise at least $500,000 for this purpose. If the YMCA does not use all of the
funds it raises for this purpose, it intends to give all excess funds to the Agency for future
collaborations between the YMCA and the Agency and to fund maintenance and repairs to the
Property. Additionally, YMCA shall make a one-time capital contribution of $ 200,000 to
Agency as an initial payment to offset Agency's capital contribution.
11. Rent. The annual rent for the property will be waived in total, if the YMCA provides
financial assistance calculated in accordance with Exhibit B. The annual rent_and financial
assistance amount shall be adjusted on July Ist of each year in the amount equivalent to the
percentage change in the consumer price index over that of June Ist of the preceding year. The
financial assistance shall be provided as subsidized child care services as follows:
a. YMCA shall subsidize twenty - five percent (25%) of the total number of
enrolled childcare spaces at an average subsidy of 60% of the of the prevailing market
rate childcare fee at the center. The specific subsidy for each child shall be determined
using the Peninsula Family YMCA Financial Assistance Sliding Scale, attached as
Exhibit C
b. The YMCA shall provide childcare spaces in accordance with the following
priorities:
(i) First priority shall be given to children of residents of the City of
South San Francisco meeting the income requirements set forth in subparagraph
(b);
(ii) Second priority shall be given to children of employees who work
in the City of South San Francisco and whose incomes meet the requirements sets
forth in subparagraph(b).
c. Should the overall percentage of subsidized child care spaces fall below twenty
percent (25%) of total number of enrolled child care spaces or should the average subsidy
provided to 25% of the children fall below 60% of the of the prevailing market rate
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childcare fee at the center, the Agency shall be entitled to rent equivalent calculated in
accordance with the formula set forth in Exhibit B, attached hereto and incorporated
herein.
(d)An annual audit of YMCA by Agency shall be conducted in November of each year.
The audit shall be conducted according to standard accounting principles and shall
identify the percentage of enrollees subsidized and the amount of subsidy provided
enrollees. Any rent due shall be paid within ninety (90) days of the date on which the
audit is provided to YMCA.
12. Registration for participants identified by the City of South San Francisco.
Families of those persons employed by businesses located within the City of South San
Francisco will receive the first opportunity to register for the Center. A pre-registration period
will be provided for these families. On an on-going basis, said employees' will receive first
priority for registration when there are openings available. This courtesy will be extended
throughout the length of the twenty-five (25) year lease.
13. Hours of Operation. YMCA, pursuant to State Licensing and the YMCA
Operations Manual shall determine the hours of operation of the Center. (General purpose hours
of Monday-Friday, 250-260 days per year, with hours similar to employers in the area but shall,
at a minimum, be from 6a.m. to 8p.m. unless YMCA demonstrates to the Agency's satisfaction
that such hours are not required to serve the existing demand for services..
(a) The YMCA may operate twenty-four (24) hours per day upon approval by
the Agency. The YMCA shall inquire with companies and employers located in the area to
determine whether twenty-four (24) hour child care is a desired service for employees in the East
of 101 Redevelopment Plan Area.
14. Design. The exterior design of the site shall not be altered in any way without
approval in writing by the Agency and shall conform to the South San Francisco General Plan
and/or Municipal Code.
15. Permits and Approvals. As a condition to use of the Property, YMCA shall work
with city of South San Francisco staff to obtain any required permits, licenses and approvals
from the Agency and any other governmental agencies having jurisdiction over YMCA's use of
the Property. As a condition of this Lease, YMCA shall maintain such permits, licenses and
approvals in force throughout the term of this Lease. The Agency shall be responsible for
conducting any initial environmental review required to be undertaken in association with
YMCA's development and use of the Property as a child care center. As a result of this
environmental review, any fees, charges or other expenses that may be imposed by a regulatory
agency other than the Agency shall be the sole responsibility of the YMCA. Any future
environmental reviews that may be required during the term of the Lease shall be condt/cted by
YMCA which shall be responsible for any and all fees and charges associated with such review.
Agency's approval for these limited purposes shall not relieve YMCA from
liability arising out of performance of the work or create any assumption of design or
construction responsibility on the part of Agency. Approval by Agency shall not constitute a
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warranty by Agency that such plans conform to applicable federal, state, and/or local codes and
regulations.
16. Agency Contributions. YMCA and the Agency recognize that the Agency has
made both out of pocket and in-kind contributions in connection with the Lease of the P. roperty
and the approval, construction and operation of the Center. These contributions are summarized
in Exhibit
17. Lighting. Security lighting will be provided at the center in the form approved by
the Agency of South San Francisco and the Gateway Property security. If necessary additional
lighting will be installed in the exterior entranceway or play area. This lighting will be approved
by the Agency prior to installation.
18. Future Construction. Any additional construction or improvements of the Center
or on the Property must be approved in writing by the Agency and must be done in accordance
with the City of South San Francisco Municipal Code.
19. Maintenance. YMCA shall maintain the Property and improvements, including
the landscaping, irrigation and the water in the interior of area of the fenced playground and
building only. The Agency or Gateway Properties will maintain the area exterior of the fence.
Agency shall be responsible for extraordinary maintenance of the building, unless the
maintenance is necessary due to YMCA's failure to perform preventative maintenance or is
attributed to improvements installed by YMCA to operate the premises.
20. Tree Maintenance. YMCA shall be responsible for maintaining all trees located
within the fenced area on the Property. The Agency or Gateway Properties will maintain the
trees on the exterior of the fence.
21. Repairs.
a. Except with respect to damage caused by the negligent or willful act or omission of
YMCA, its agents, employees, invitees or contractors, or YMCA's misuse of the Property
(which YMCA shall repair at its sole expense), Agency shall repair and replace, as necessary, all
structural load-bearing components of the Property and improvements (including, without
limitation, exterior walls and interior load-bearing walls), the roof and roof membrane, all major
plumbing-which excludes interior components and fixtures, heating, ventilation, air conditioning
and electrical systems-excluding those added by YMCA as part of any installed security or
communication system, all major lighting facilities and equipment, all windows, exterior doors
and plate glass, if any. Agency shall bear the cost of all such repair and replacement, except that
YMCA shall establish a maintenance reserve in amount equal to one percent (1%) of the gross
revenues of the Center, but not to exceed $10,000 per year, and YMCA shall make those funds
available to Agency as YMCA's contribution to the cost of such repairs and replacements.
YMCA shall contribute up to 50% of the cost of necessary repairs and replacements, as funds are
available in the maintenance reserve fund. Any repairs or rebuilding performed by YMCA or
Agency shall be done in accordance with all applicable local, state and federal regulations. Such
repairs or rebuilding performed by YMCA must be approved in writing by the Agency and must
be done in conformance with the City of South San Francisco Municipal Code. The Agency or
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Gateway Owner's Association will be responsible for any and all repairs to equipment, buildings
or landscaping on the exterior of the fenced area.
b. Except for Agency's maintenance and repair obligations under Section 21 (a), YMCA
at its expense shall keep the Property in good order, condition and repair, ordinary wear and tear
excepted, including landscaping inside the fence.
22. Destruction or Damage
Partial Damage. If there is damage to the Property which can reasonably be repaired within 270
days from the date of casualty, the Agency shall repair such damage as promptly as possible and
restore the Property to the condition existing prior to the casualty, including any required code
upgrade, and this Lease shall continue in full force and effect, if such loss is insured. If the loss
is not insured or if Agency will not receive sufficient insurance proceeds to repair such damage,
Agency shall give written notice thereof to YMCA. YMCA or Agency may elect within forty-
five (45) days after such notice to contribute the shortfall, without reimbursement, and if neither
so elects, either party may terminate this Lease effective as of the date of the casualty by giving
notice to the other party prior to the commencement of restoration. Agency shall have rio
obligation to repair YMCA's trade fixtures or equipment, except for damage thereto caused by
the Agency.
b. Total Destruction. If there is damage, whether or not an insured loss, (including
destruction required by any authorized public authority), which cannot reasonably be repaired
within 270 days of the casualty, this Lease shall automatically terminate on the date on which the
casualty causing the total destruction occurred.
c. Abatement of Rent; YMCA's Remedies. If either party restores the Property
pursuant to this Section 22, the rent or financial assistance required for the period during which
such restoration continues shall be abated in proportion to the degree to which YMCA's use of
the Property is impaired. Except for such abatement, YMCA shall have no claim against Agency
for any damage suffered by reason of any such damage, destruction, repair or restoration.
If Agency is required or elects to restore the Property under the provision of this Section 22, and
does not commence such restoration within (270) days after the date of casualty, YMCA may
terminate this Lease by giving Agency notice thereof at any time prior to the commencement of
the actual work of restoration on or about the Property. If the Agency commences restoration
but fails to substantially complete the restoration within one year (365 days) from the date on
which construction begins, as such period may be extended by acts of force majeure and other
events beyond the reasonable control of the Agency, YMCA may terminate this Lease upon
notice to Agency given at any time before restoration is completed. In either event, this Lease
shall terminate as of the date of such notice.
d. Waiver. Agency and YMCA waive the provisions of any statutes that relate to
the termination of leases when leased property is damaged or destroyed, and agree that such
events shall be governed by the terms of this Lease, including California Civil Code Sections
1932 and 1933.
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23.
.Right of Entry. The Agency, its officers, agents, employees or authorized
representatives, upon reasonable notice, reserve and shall at all times have the right to
enter upon the Property and the improvements thereon at all reasonable times to
inspect the same or to perform any other acts authorized by this Lease or by the terms
of any permit or Agency ordinance.
24.
Signage. The YMCA shall post signs at the Center indicating that they are the
operating party. All signs and/or banners displayed on the exterior of the Center must
be approved in accordance with the City of South San Francisco Municipal Code's
design review provisions and be approved by the Agency's Executive Director.
25. Default/Remedies of Agency. In the event that YMCA:
a. Fails to maintain or operate the Property for the principal purposes for
which the same are hereby demised, or fails to repair or pay utilities as provided herein or
any taxes or assessments when due; or
b. Fails to maintain reasonable and adequate supervision of the Property; or
or
c. Transfers or sublets the Property in violation of Section __ of this Lease;
d. Permits liens to be placed on the property in violation of Section __
of this Lease; or
or
e. Fails to maintain insurance as provided in Section herein; or
f. Breaches any other material provision of this Lease, and further fails to
remedy any such faults or defects described in a-f herein within thirty (30) days after
written notice to do so from the Agency.
g. Said events described in a-f above shall constitute a default(s) by the
YMCA, and the Agency may then elect to terminate and cancel this Lease; provided that
in the event of a war or national or local emergency, or act of God, it becomes impossible
for YMCA to so construct upon, maintain or operate said Property, the Lease shall not be
canceled during the continuance of such cause of impossibility, but that during the
continuance the Property may be used for any other appropriate purpose which has been
approved by the Agency.
h. In addition to the Agency's right to terminate the Lease for a default
described above, the Agency may exercise any other right or remedy available at law or
in equity.
i. As a precondition to pursuing any remedy for an alleged default by
YMCA, the Agency shall, before pursuing any remedy, give notice of default to YMCA
stating that the notice was for the purpose of notice under this provision. Each notice of
default shall specify in detail the alleged event of default and the intended remedy.
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May 2005
j. If the default is for non-payment of taxes or other sums to be paid by
YMCA hereunder, YMCA shall have thirty (30) days after written notice is given to
YMCA to cure the default. For the cure of any other default, YMCA shall have thirty
(30) days after written notice of default is given as provided herein to commence curing
the default and sixty (60) days to complete curing of such default, and such time may be
extended by option of the Agency.
Mediation. Should any dispute arise out of this Lease which cannot be resolved by the
parties, the parties shall meet in mediation and attempt to reach a resolution with the
assistance of a mutually acceptable mediator. The costs of the mediator, if any, shall be paid
equally by the parties. If a mediated settlement is reached, neither party shall be deemed the
prevailing party for purposes of the settlement, and each party shall bear its own legal costs.
Neither party shall be permitted to file legal action without first meeting in mediation and
making a good faith attempt to reach a mediated resolution.
Restriction on Use. YMCA agrees that the Property will not be used for any of
the following activities:
a. Dumping. YMCA shall not cause or permit the dumping or other disposal on,
under or about the Property of refuse, Hazardous Material (as defined below) or any
other materials that could pose a hazard to the human health or safety of the
environment.
b. Hazardous Material. No Hazardous Material (as defined below) will be brought
upon, kept, used, stored, generated or disposed of in, on or about the Property, or
transported to or from the Property except that YMCA may use vehicles and equipment
customarily used during the course of its normal activities and shall be in full compliance
with all applicable environmental laws during such use. YMCA shall immediately notify
the Agency when YMCA learns of, or has reason to believe that, a release of Hazardous
Material has occurred in, on or about the Property. YMCA shall further comply with all
laws requiring notice of such releases or threatened releases to mitigate the release or
minimize the spread of contamination. In the event any Hazardous Material (as defined
below) is released on or about the Property, YMCA shall, without cost to the Agency and
in accordance with all laws and regulations, return the Property to the condition
immediately prior to the release. In connection therewith, YMCA shall afford the
Agency a full opportunity to participate in any discussion with governmental agencies
regarding any settlement agreement, cleanup or abatement agreement, consent decree or
other compromise proceeding involving Hazardous Material. For purposes hereof,
"Hazardous Material" means material that, because of its quantity, concentration or
physical or chemical characteristics, is at any time now or hereafter deemed by any
federal, state or local governmental authority to pose a present or potential hazard to
public health, welfare or the environment. Hazardous Material includes, without
limitation, any material or substance defined as a "hazardous substance, pollutant or
contaminant" pursuant to the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended, 42 U.S.C. Sections 9601 et seq., or pursuant to
Section 25316 of the California Health & Safety Code; a "hazardous waste" listed
pursuant to Section 25140 of the California Health & Safety Code; any asbestos and
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asbestos containing materials whether or not such materials are part of the Property or are
naturally occurring substances in the Property, and any petroleum, including, without
limitation, crude oil or any fraction thereof, natural gas or natural gas liquids. The term
"release" or "threatened release" when used with respect to Hazardous Material shall
include any actual or imminent spilling, leaking, pumping, pouring, emitting, emptying,
discharging, injecting, escaping, leaching, dumping, or disposing in, or under or.about the
Property. YMCA shall not be responsible to remediate, clean-up or pay any fines or
other charges resulting from any pollution or condition that was on the Property before
the Lease took effect.
c. Nuisances. No activities shall be conducted on the Property that constitute
waste, nuisance or unreasonable annoyance (including, without limitation, emission of
objectionable odors, noises or lights) to the Agency, to the owners or occupants of
neighboring property or to the public.
28. Indemnity. YMCA shall release, defend (with counsel reasonably satisfactory to
the Agency), indemnify and hold harmless the Agency, and its officers, board members,
commissioners, employees, or agents, and their respective successors and assigns (all of
the above hereinafter collectively known as "Indemnitees"), from and against all
liabilities, obligations, damages, penalties, claims, costs, charges and expenses (including
reasonable attorney's fees and expense for loss of or damage to property and for injuries
to or death of any person, including, but not limited to, the presence or release of any
hazardous materials as defined in Section 26 and the property and employees of each
party) when arising or resulting from the use of the Property by YMCA, its agents,
employees, contractors, subcontractors, or invitees or YMCA's breach of these
provisions by reason of any of the following occurrences, unless caused by the sole
negligence or willful misconduct of the Agency or its respective officers, agents or
employees, during the term of this Lease:
a. Any work or thing done in, on or about the Property and the improvements
thereon or any part thereof by YMCA, or its agents, employees, invitees, or
contractors; or
Any use, non-use, possession, occupation, condition, operation, maintenance
or management of the Property and the improvements thereon or any part
thereof by YMCA, or its agents, employees, invitees, or contractors; or
c. Any negligence on the part of YMCA or any of its agents, contractors, agents,
employees, or invitees; or
d. Any accident, injury or damage to any person or property occurring in, on or
about the Property and the improvements thereon or any part thereof; or
Any failure on the part of YMCA to perform or comply with any of the terms,
provisions, covenants and conditions contained in this Lease to be performed
or complied with on its part.
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i. In case any action or proceeding is brought against the Agency or
its respective officers, agents or employees that is subject to YMCA's indemnity
obligation hereunder, YMCA, upon written notice from the Agency, shall, at
YMCA's expense, resist or defend such action or proceeding by counsel selected
by YMCA or YMCA's insurance carrier and determined by the Agency to be
reasonably satisfactory.
ii. The duty of YMCA to indemnify and save harmless includes the
duties to defend as set forth in Section 2778 of the California Civil Code. It is the
express intent of the parties that YMCA will indemnify and hold harmless
Indemnitees from any and all claims, suits or actions arising from any cause
whatsoever as set forth above regardless of the existence or degree of fault or
negligence on the part of the Agency, YMCA, or any subcontractor or employee
of any of these, other than the sole negligence, willful misconduct or criminal acts
of the Agency, its board members, officers, employees and agents. YMCA
waives any and all rights to any type of express or implied indemnity against the
Agency, its board members, officers or employees. This indemnity shall survive
termination or expiration of this Lease.
iii. It is the intention of the parties that should any term of this
indemnity provision be found to be void or unenforceable, the remainder of the
provision shall remain in full force and effect.
f. Notwithstanding the above provisions of this paragraph 29, YMCA shall
not indemnify Agency, it officers, agents or employees for costs or expenses caused by
any injury or illness suffered by Agency's employees due to an event described in a-e
above, other than those injuries caused by the negligence or willful misconduct of
YMCA or its officers, employees, agents, invitees and assigns.
29. Insurance. YMCA and Agency shall maintain in full force and effect during the
term of this Lease and any extension hereof, the following insurance:
Worker's Compensation. As required by Section 1860 of the California Labor
Code (Chapter 1000, Statutes of 1965), or any subsequent amendments or
successor acts thereto governing the liability of employers to their employees,
the YMCA and Agency shall secure Workers' Compensation coverage with
an Employer's Liability limit of at least $1,000,000. The policies shall
contain a waiver of subrogation in favor of the other party and its respective
board members, officers, employees, agents while acting in such capacity,,
and their successors and assignees, as they now or as they may hereafter be
constituted singly, jointly or severally, consistent with the indemnity
provisions of this Lease.
Commercial General Liability. YMCA shall, at its own cost and expense,
procure and maintain Commercial General Liability insurance.. The policy
shall include, as additional insureds, Agency and its respective board
members, officers, employees and agents while acting in such capacity, and
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their successors or assignees, as they now or as they may hereafter be
constituted, singly, jointly or severally, consistent with the indemnity terms of
this Lease. The policy shall be primary and contain cross liability and
severability of interest clauses. The policy shall have a combined single limit
of at least $2,000,000 for bodily injury and property damage per occurrence.
This insurance shall include but not be limited to premises and opera[ions;
contractual liability covering the indemnity provisions contained in this
Agreement; personal injury; explosion, collapse and underground coverage;
products and completed operations and broad form property damage. The
policy shall contain a waiver of subrogation in favor of Agency and its
respective board members, officers, employees, agents while acting in such
capacity, and their successors and assignees, as they now, or as they may
hereafter be constituted singly, jointly or severally, consistent with the
indemnity provisions of this Lease.
c. Automobile Liability Insurance. YMCA shall, at its own cost and
expense, procure and maintain Automobile Liability insurance providing bodily
injury and property damage coverage with a combined single limit of at least
$2,000,000 per occurrence for all owned, non-owned and hired automobiles. This
insurance shall provide contractual liability covering all motor vehicles and mobile
equipment to the extent coverage may be excluded from general liability insurance.
Such insurance shall include, as additional insureds, Lessor and its respective board
members, officers, employees and agents while acting in such capacity, and their
successors or assignees, as they now or as they may hereafter be constituted, singly,
jointly or severally. The policy shall contain a waiver of subrogation in favor of
Agency and its respective board members, officers, employees, agents while acting in
such capacity, and their successors and assignees, as they now, or as they may
hereafter be constituted singly, jointly or severally, consistent with the indemnity
provisions of this Lease.
d. Property Insurance. YMCA shall, at its own cost and expense, procure and
maintain property insurance to protect its interest in the Property, with loss payable to the
Agency ,and any fixtures placed on the Property pursuant to this Lease covering all risks
of physical loss or damage to such Property, materials or improvements, except the perils
of flood and earthquake. The coverage under such policy shall have coverage limits
adequate to protect the full replacement value of the Property, improvements and any
fixtures placed on the Property. The policy shall contain a waiver of subrogation in favor
of Agency and its respective board members, officers, employees, and agents while
acting in such capacity, and their successors and assignees, as they now, or as they may
hereafter be constituted singly, jointly or severally, consistent with the indemnity and
maintenance provisions of this Lease.
e. Additional Policies of Insurance. In addition to the requirements described
above, YMCA shall maintain any other insurance that may be required by law, statute or
governmental regulations.
618481-1
May 2003
f. All Policies. The insurance policy[ies] shall be written by an insurance
company or companies with a minimum Best's rating of A-VII. Such insurance company
shall be authorized to transact business in the State of California.
g. Evidence of Insurance. Prior to occupying the Premises, YMCA and Agency
shall file a Certificate of Insurance with the other party evidencing coverage, and upon
request, a certified duplicate original of the policy(ies). The insurance company(les)
issuing such policy(les) shall give written notice to the other party of any material
change and provide at least thirty (30) days notice of cancellation.
h. Failure to Maintain. Failure to maintain the liability insurance policy(ies) in
conformance with this Section shall constitute a default by either party and they may
elect to terminate and cancel the Lease pursuant to Section 6
i. Self-Insured YMCA. Upon evidence of financial capacity satisfactory to
Agency and with Agency's permission, YMCA may self-insure any of the above-
required coverages.
j. Third Party Beneficiaries. The City of South San Francisco shall be
deemed a third party beneficiary under this Lease for purposes of enforcing any rights to
indemnification and insurance granted in this Lease, and shall be entitled to seek
attorneys tees and costs as provided in Section 33 below in any dispute arising from the ·
enforcement of said rights,
k. Policy Review. The liability insurance requirements required hereunder
shall be reviewed by the Agency and YMCA every five (5) years for the purpose of
increasing, if necessary, the minimum limits of such insurance to limits which shall be
reasonable and customary for similar facilities of like size and operation. YMCA agrees
to obtain insurance in the amounts deemed appropriate by the Agency pursuant to this
provision.
30. Compliance with Laws. At all times, YMCA shall comply, at YMCA's
expense, with all applicable laws, regulations, rules and orders with respect to the use of
the Property, regardless of when they become or became effective, including, without
limitation, those relating to construction, grading, signage, health, safety, noise,
environmental protection, hazardous materials, waste disposal and water and air quality,
and shall furnish satisfactory evidence of such compliance upon request of the Agency.
31. Successors and Assigns. YMCA shall not assign nor sublet, or otherwise
transfer this Lease, in whole or in part, any rights covered by this Lease, or permit any
other person, firm or corporation to use, in whole or in part, any of the rights or privileges
granted pursuant to this Lease, without first obtaining the written consent of the Agency.
Any encumbrance, assignment, transfer or subletting without the prior written consent of
the Agency, whether it be voluntary or involuntary, by operation of law or otherwise, is
void and shall, at the option of the Agency, terminate the Lease. The construction of
improvements by the YMCA shall not be considered an assignment of this Lease.
618481-1
May 2003
32. No Waiver. No waiver of any default or breach of any covenant of this Lease by
either party shall be implied from any omission by either party to take action on account of such
default if such default persists or is repeated, and no express waiver shall affect any default other
than the default specified in the waiver, and then the waiver shall be operative only for the time
and to the extent stated. Waivers of any covenant, term or condition by either party shall not be
construed as a waiver of any subsequent breach of the same covenant, terms or condition. The
consent or approval by either party to or of any act by either party requiring further consent or
approval shall not be deemed to waive or render unnecessary the consent or approval to or of any
subsequent similar acts.
33. Attorneys' Fees. If any legal proceeding should be instituted by either of the
parties to enforce the terms of this Lease or to determine the rights of the parties under this
Lease, the prevailing party in the proceeding shall receive, in addition to all court costs,
reasonable attorneys' fees.
34. Condemnation. In the event all or any portion of the Lease is condemned for
public use, YMCA shall receive no compensation whatsoever, unless a specific amount is
awarded for the taking and damaging of any of YMCA's improvements or property on the
Property and in such case compensation shall be limited to the value of YMCA's approved
improvements on the property and furnishing but only to the extent YMCA purchased, provided
or installed at their sole cost or expense said improvements and said improvements or furnishings
are not returned to YMCA for its future use.
35. Waiver of Liability. Neither the Agency nor any of its board members,
commissions, departments, boards, officers, agents or employees shall be liable for any damage
to the property of YMCA, its officers, agents, employees, invitees, parking patrons, contractors
or subcontractors or their employees, for any bodily injury or death to such persons, resulting or
arising from the condition of the Property or its use by YMCA, except where such damage,
bodily injury or death is caused by the sole negligence and/or willful misconduct of the Agency
or its board members, departments, boards, officers, agents or employees.
36. Non-Discrimination. YMCA shall not, in the operation and use of the Property,
discriminate against any person or group of persons solely because of race, color, creed, national
origin, ancestry, age, sex, sexual orientation or disability.
37. Taxes. Any and all real property taxes, sales taxes or any other form of tax
assessed or imposed against the Property arising out of, or attributable to, YMCA's occupancy
and use of the Property, including possessory interest taxes, shall be borne exclusively by
YMCA. YMCA shall be responsible for payment, before they become delinquent, of all taxes
charged and assessments levied upon or assessed against the Property during the term of this
Lease, including but not limited to Possessory Interest Tax as outlined in Section 107.6 of the
California Revenue and Taxation Code.
38. Utilities. YMCA shall pay for all water, gas, heat, light, power, telephone, refuse
and other utilities and services supplied to the Property, together with any taxes thereon. It is
acknowledged that the Lease is a "Triple Net" Lease and that the YMCA is responsible for all
utilities as well as the care and maintenance of the Center.
618481-1
May 2003
39.
parties.
Amendment. This Lease may be amended only upon written agreement of the
41. Captions. The captions of the various articles and sections of this Lease are for
convenience and ease of reference only and do not necessarily define, limit, augment or describe
the scope, content, or intent of this Lease or of any part or parts of this Lease.
42. Gender. The neuter gender includes the feminine and masculine, and each
includes corporation, partnership, or other legal entity when the context so requires.
43. Singular and Plural. The singular number includes the plural wherever the
context so requires.
44. Exhibits, Addenda. All exhibits and addenda to which reference is made in this
Lease are incorporated in the Lease by the respective references to them, whether or not they are
actually attached, provided that they have been signed or initialed by the parties. Reference to
the "Lease" includes matters incorporated by reference.
45. Applicable Law. This Lease shall be construed and interpreted in accordance
with the laws of the State of California.
46. Covenants and Conditions. All provisions of this Lease whether covenants or
conditions, on the part of YMCA shall be deemed to be both covenants and conditions and such
covenants shall survive termination. In addition to any covenants and condition is this
A~reement~ YMCA shall be responsible t'or implementing and adherence to the Covenants,
Conditions and Restrictions of the Gateway Project with respect to parking management and
traffic flow. The Covenants, Conditions and Restrictions ~ovemina fi~e property are attached
hereto as Exhibit and incorporated herein.
47. Construction of Lease; Severability. To the extent allowed by law, the terms,
covenants, conditions, provisions and agreements in this Lease shall be construed and given
effect in a manner that avoids any violation of statute, regulation or law. The Agency and
YMCA covenant and agree that in the event any term, covenant, condition, provision or
agreement in this Lease is held to be invalid or void by a court of competent jurisdiction, the
invalidity of any such term, covenant, condition, provision or agreement shall in no way affect
any other term covenant, condition, provision or agreement in this Lease.
48. No Benefit to Third Parties. Nothing herein shall be construed to be for the
benefit of third parties, except those third parties identified in this Agreement, unless otherwise
approved in writing by both parties.
49. Notices. All notices required or permitted to be given under this Lease shall be in
writing and mailed postage prepaid by certified or registered mail, return receipt requested, or by
personal delivery or by overnight courier, to the appropriate address indicated below or at such
other place or places as either the Agency or YMCA may, from time to time, respectively,
designate in written notice given to the other. Notices shall be deemed sufficiently served four
(4) days after the date of mailing or upon personal delivery.
618481-1
To YMCA:
May 2003
Peninsula Family YMCA
1877 South Grant Street
San Mateo, CA 94402
Attn: Executive Director
To Agency:
City of South San Francisco
Redevelopment Agency
400 Grand Ave
South San Francisco, Ca 94080
Attn: Director of Economic and Community Development
WITH COPY TO: City Clerk
50. Execution in Countemarts. This Lease may be executed in tWO (2) or more
counterparts, each of which shall be an original, but all of which shall constitute one and the
same instrument.
51. Integration. This Lease constitutes the complete expression of the agreement
between the parties and supersedes any prior agreements, whether written or oral, concerning the
subject of this Lease, which are not fully expressed in this Lease. Any modification of or
addition to this Lease must be in writing signed by both parties.
618481-1
May 2003
IN WITNESS WHEREOF, the parties have executed this Lease as of the day and year
first above written by their duly authorized representatives.
REDEVELOPMENT AGENCY OF THE
CITY OF SOUTH SAN FRANCISCO,
PENINSULA FAMILY YMCA - YOUNG
MEN'S CHRISTIAN ASSOCIATION OF
SAN FRANCISCO, a California nonprofit
corporation
By:
Michael A. Wilson
Executive Director
By:
Title:
Attest:
City Clerk
Approved as to form:
By:
Title:
Steven T. Mattas
Agency General Counsel
618481-1
Exhibit B
Childcare Subsidy to be Provided by the YMCA in Lieu of Rent
The YMCA agrees to provide to a minimum of 25% of the children enrolled in the YMCA childcare
program a childcare tuition subsidy averaging 60% of the prevailing market rate childcare fee at the
center. The specific subsidy for each child shall be determined using the Peninsula Family YMCA
Financial Assistance Sliding Scale, attached as Exhibit C, ranging from 25-75% based on an income to
family size ratio. All subsidies will be targeted to children of low- and very low-income families.
Default Fee To Be Paid By The YMCA If Agreed Upon Childcare Subsidy Is Not
Provided in Lieu of Rent
If the YMCA does not meet the requirement of providing subsidized childcare of an average of 60% of
the childcare fee per child for 25% of its enrolled children, they will be required to pay a fee equal to the
percentage of subsidy that they failed to provide times the average cost of child care times the number of
subsidized child care slots that are required by this lease to be filled with low-income children. The
values used to calculate this fee will vary annually depending on the total number of children enrolled in
childcare and the annual average cost of providing childcare for one child. This fee represents an
estimate of the difference between the amount of subsidy that the YMCA agrees to provide through this
lease and the amount of subsidy they actually provide in any given year, if that subsidy amount is below
what is required by the lease.
The equation is:
Fee = (.6 - Actual average childcare subsidy as a percent of market rate childcare fee)(# of required
subsidized childcare slots: 25% of total childcare enrollment)(Annual average cost of providing child
care for one child)
The average cost of providing childcare will be calculated annually by the YMCA.
The calculation of the average annual childcare fee subsidy must include 25% of the total childcare
enrollment. If less than 25% of the total childcare enrollment received subsidies, 0% subsidies must be
calculated into the average for the difference between the number of children who received childcare
subsidies and the number of children that constitute 25% of the total childcare enrollment.
The 2004 projected budget and enrollment numbers:,
Total Enrollment: 101 children
Ave. cost/child/year: $9,311.00
Given these conditions, in 2004 the equation would be:
Fee = (.6 - Actual average childcare subsidy as a percent of market rate childcare fee) (.25 x
101)($9,311.00)
For example, if the YMCA only provided an average subsidy of 50% to 25% of the enrolled children,
their fee would equal (.6 - .5)(.25 x 101)($9,311.00) or $23,510.
Exhibit C
Peninsula Family YMCA
Financial Assistance Sliding Scale
Proposed for July 2002
Proposed
Annual Income 1 2
$6,600.00 ,
$7,700.00 .~.%,,:,~'~:~;: :.':~ ::., .. .... "' '
$8,250.00 ' :...~ ,':"'..:"':"' -i!:~!~,. ' ....
$11,ooo.oo ...... .'.
*12,100.00 .; ...:.,:;;':,",,
$13,750.00 '
$15,4OO.OO
$16,500.00
$18,150.00
$19,800.00
$20,900.00
$22,550.00
$24,2OO.OO
$25,300.00
$26,950.00
$28,600.00
$29,7O0.0O
$31,350.00
$33,000.00
$34,100.00
$35,2OO.OO
$36,850.00
$38,5OO.0O
$39,600.00
$41,800.00
$42,9OO.0O
$44,0OO.0O
$45,650.00
$47,300.0O
$48,400.00
$50,050.00
$51,700.00
$52,8OO.0O
$54,450.0O
$56,100.00
$57,200.00
$58,85O.00
$60,500.00
Number in Family Unit
4 5 6
50%
25%
7 8