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HomeMy WebLinkAboutNational City Historical Society - Maintenance and Operating Agreement - 2025 MAINTENANCE AND OPERATING AGREEMENT BY AND BETWEEN THE CITY OF NATIONAL CITY AND THE NATIONAL CITY HISTORICAL SOCIETY This Maintenance and Operating Agreement (the "Agreement") is entered into as of January 1, 2025,by and between the CITY OF NATIONAL CITY, a municipal corporation(the"CITY"), and the National City Historical Society, a California non-profit corporation("Historical Society"). RECITALS A. WHEREAS, the CITY owns the improved real property commonly known as the"Frank Kimball House,"located at 923 "A" Avenue,National City, California 91950 (the "Property"). A legal description of the Property is attached hereto as Exhibit"A" and incorporated herein by reference; and B. WHEREAS, the CITY desires the services of an organization to maintain and operate the Property in a manner beneficial to the public; and C. WHEREAS, the CITY has determined that the National City Historical Society is a qualified non-profit corporation experienced in managing a historic residential structure within the city; and D. WHEREAS, the CITY has further determined that the Historical Society is skilled in maintaining a cultural and educational program to encourage an understanding and appreciation of the history of National City for the benefit of residents and visitors of National City; and. E. WHEREAS, the CITY wishes to have the Historical Society maintain and operate the Property as an educational and cultural resource for the community's benefit, and the Historical Society is willing to operate and maintain the Property for such a purpose. NOW, THEREFORE, in consideration of the foregoing facts, and in consideration of the promises and covenants hereinafter set forth, the parties agree as follows: ARTICLE 1 TERM OF AGREEMENT 1.1 Term. The term of this Agreement shall be thirty-six(36) months, commencing January 1,2025 (the"Commencement Date") and expire on December 31, 2027. 1.2 Option to Extend Term. If Historical Society is not in default of any provision of this Agreement upon the expiration of the term described in Article 1.1, the City Manager or Page 1 of 19 Maintenance&Operating Agreement Between City and National City Historical Society December 2024 designee may extend the term for up to three (3) five-year periods. The initial thirty-six- month term, and any extensions pursuant to this Article 1.2, shall collectively be referred to hereafter as the"Term." ARTICLE 2 THE PROPERTY 2.1 License for Use of Property. The CITY grants the Historical Society a revocable license to enter and operate the Property for the purpose of maintaining the historic nature of the premises and operating a museum for the benefit of the residents and visitors of National City. It is understood and agreed that the Historical Society shall have access to the first floor only. The Historical Society's revocable license is subject to the covenants and requirements of this Agreement as of the Commencement Date. 2.2 Ownership of Personal Property and Improvements. The rights and obligations of the parties regarding the ownership of personal property and improvements on the Property shall be as follows: 2.2.1 Ownership of Personal Property. All improvements existing on the Property (Improvements), together with all fixtures permanently attached to the Property (Fixtures), as of the Commencement Date shall remain the property of the CITY during the Term. The Historical Society shall not remove any Improvements or Fixtures from the Property and shall not waste, destroy, or modify any Improvements or Fixtures on the Property, except as permitted by this Agreement. (Pictures are not to be considered fixtures.) 2.2.2 Ownership of Improvements and Equipment. All improvements made to the property by the Historical Society shall become the property of the CITY. ARTICLE 3 PERMITTED USE 3.1 Purpose. The parties intend that operation of the Property by the Historical Society will provide an opportunity for the community to tour a historic home and provide an educational and cultural resource within National City. 3.2 Hours of Operation. The Historical Society will open the Property to the public Saturday and Sunday from 11 a.m. to 1 p.m. except holidays and for special events for the public. The Historical Society shall post in a visible location the hours that the premises will be open to the public. 3.4 Service Fees. The Historical Society shall not provide programs and services for profit. However, the Historical Society may charge fees for classes and programs offered to school groups and community to offset costs incurred by the Historical Society. Any fees charged under Page 2 of 19 Maintenance&Operating Agreement Between City and National City Historical Society December 2024 this Article 3.4 must be approved by the City Manager or designee. There will be no fee for the public to gain access to the Property during hours of operation listed in Article 3. 3.5 Reporting by National City Historical Society. The Historical Society shall provide quarterly reports to the CITY identifying the total number of: (a)National City residents who participated in the Historical Society events; (b)participants and volunteers who participated in the Historical Society events; (c) events and programs coordinated by the Historical Society; (d) capital projects completed; (e) operating and maintenance plans; and (f) any other relevant statistics. The information required to appear in these reports by this Article 3.5 will be referred to as "Statistical Information." Each report will include all previous years' worth of Statistical Information, if any. The Historical Society will deliver an annual report to the CITY at a City Council meeting and at a mutually agreeable date and time. 3.6 Annual Budget. The Historical Society shall provide to the CITY a proposed budget for the Historical Society's estimated maintenance and operating expenses for the Property by January 1st of each year during the Term. The Historical Society shall provide to the CITY an audited financial report and tax returns by December 31 stof each year during the Term. 3.7 Reimbursable Maintenance and Upkeep. The CITY agrees to reimburse the Historical Society an annual amount not to exceed Five Thousand Dollars ($5,000) for expenses related to the maintenance and upkeep of the Property. The Historical Society shall make a written request for reimbursement to the City Manager or designee. The written request must be supported by receipts for purchases or maintenance and upkeep services rendered on the Property. Requests for reimbursement will be approved or denied within 7 business days. Once approved, payment will be issued within 45 days of approval. 3.8 Volunteer Management. The Historical Society may utilize volunteers to operate the Property, and in providing the Projects required by this Agreement. The Historical Society is responsible for recruiting, training and managing all volunteers on the Property. Volunteers are considered the responsibility of the Historical Society for the purpose of workers compensation or general liability. The Historical Society is responsible for ensuring that volunteers are apprised of the obligations and requirements contained in this Agreement. 3.9 Alcohol Use. The Historical Society may from time to time hold events on the Property that will involve serving alcoholic beverages. Alcoholic beverages shall be served subject to the following requirements: • Alcohol will not be served during youth programming under any circumstances. • Alcohol will be served only in limited areas of the Property, designated by the Historical Society in advance and approved by the City Manager or designee. • Alcoholic beverages must be served by a licensed bartender, with a copy of their license on the Property. • The event host must obtain approval from the state Department of Alcoholic Beverage Control (ABC) to serve alcohol. • One licensed security guard per every 100 guests must be present. Page 3 of 19 Maintenance&Operating Agreement Between City and National City Historical Society December 2024 • The event host is responsible for all guest behavior during and following the service of alcohol. • "Last call" for service of alcohol shall be at least thirty(30)minutes prior to the scheduled end of the event. 3.10 Third Party Rentals. The Historical Society shall not rent the premises to a third party for any event. 3.11 Consideration. The Historical Society's payment of$1.00 to the CITY, in addition to its performance under the remainder of this Agreement shall serve as the sole consideration due the CITY for the Historical Society's license to use and operate the Property. 3.12 Compliance with Laws. The Historical Society, at its sole expense, shall procure, maintain and hold available for the CITY's inspection any governmental license or permit required for the proper and lawful conduct of the Historical Society's operation of the Property. The Historical Society shall not use the Property for any use or purpose in violation of the laws of the United States of America, or the laws, ordinances, regulations, orders or requirements of the State of California, the County of San Diego,the CITY, or of other lawful authorities. The Historical Society shall, at its sole expense, comply with all applicable statutes, laws, ordinances, rules, regulations, orders, covenants and restrictions of record, and requirements in effect during the Term (Laws or Orders), regulating the use by the Historical Society of the Property. 3.12.1 TUP Requirements. Any programs, activities, or events that are not provided for in this Agreement may, in the CITY's sole discretion, require a Temporary Use Permit(TUP) or other permit as required by the CITY. The Historical Society may hold up to 12 events per year for promoting the history of National City for the benefit of residents and visitors in partnership with the City and at no cost to the City and no TUP costs to the Historical Society. 3.12.2 Cannabis Cultivation Prohibited. Notwithstanding any other provision in this Agreement, or in this Article 3.11, the Historical Society shall neither cultivate, nor allow the cultivation of cannabis at the Property. ARTICLE 4 UTILITIES 4.1 Utility Services. The CITY shall be responsible for maintaining reasonable utility services to the Property. The Historical Society shall provide and pay for all utilities or services necessa or its use and operation of the Property during the Term, including electricity, trash a I sewer charge The Historical Society shall pay directly to the applicable utility company suc .' • :-:, •nd the City shall have no obligation to pay for such utility services. The CITY shall pay for the water to the Kimball House and the CITY shall provide law care services. Page 4 of 19 Maintenance&Operating Agreement Between City and National City Historical Society December 2024 ARTICLE 5 REPAIRS; MAINTENANCE 5.1 The Historical Society's Repair and Maintenance Obligations. The Historical Society acknowledges that it has made a thorough inspection of the First Floor of the Property and that it accepts the First Floor of the Property"as-is" as of the Commencement Date. At the Historical Society's own cost and expense, the Historical Society shall repair, replace, and maintain the First floor of the property in good, tenantable condition. The Historical Society shall not be obligated to repair or replace damage to the Property caused by ordinary wear and tear. The Historical Society shall maintain the First Floor of the Property in an accessible manner for use by individuals with disabilities and comply with federal and state law regarding accessibility, including but not limited to the Americans with Disabilities Act and California's Disabled Persons Act. Other than repair work in emergency situations not exceeding Three Thousand and no/100 Dollars ($3,000), the Historical Society shall not perform any repair work without the CITY's prior written consent. As used in this Section 5.1, "emergency"means a sudden, unexpected occurrence that poses a clear and imminent danger, requiring immediate action to prevent or mitigate the loss or impairment of life, health, property, or essential public services. All emergency repairs performed by the City on the Property are governed by Public Contract Code Section 22050. The Historical Society's obligations under this Article shall apply regardless of whether the repairs, restorations, and replacements are ordinary or extraordinary, foreseeable or unforeseeable, capital or noncapital, or the fault or not the fault of the Historical Society, its agents, employees, volunteers, invitees, visitors, or contractors. All replacements made by the Historical Society shall be of like size, kind, and quality to the items replaced. 5.2 CITY Repair and Maintenance Obligations. For any repair and maintenance work exceeding Three Thousand and no/100 Dollars ($3,000) the CITY will consider the nature and priority of the work and available funding to determine if and when such repairs will be completed. 5.3 CITY Right to Inspect; CITY Not Obligated to Repair or Maintain. The Historical Society shall permit the CITY to enter the Property at all times during usual hours of operation to inspect the Property. Any entry pursuant to this Article 5.3 shall not unreasonably interfere with the Historical Society's operation of the Property. However, nothing contained in this Article 5 shall create any duty on the part of the CITY to do any work which, under any provision of this Agreement, the Historical Society may be required to do. ARTICLE 6 IMPROVEMENTS; ALTERATIONS 6.1 Alterations. The Historical Society may alter, replace, add to, change, or construct additional improvements to the Property (collectively, "Alterations") as the Historical Society may find necessary or convenient for its operation of the Property. Any Alterations performed by the Historical Society under this Article 6.1 shall be performed: (a) at the Historical Society's sole cost and expense; (b) with the City's prior written consent; and(c) in accordance with construction plans submitted to and approved by the CITY. Page 5of19 Maintenance&Operating Agreement Between City and National City Historical Society December 2024 6.2 Construction Permits and Licenses. At all times during the Term, the Historical Society shall procure, at its sole cost and expense, all permits and licenses that are necessary or required from any local governmental agency for the proposed construction of any Alterations. The CITY may, in its sole discretion, waive CITY permitting fees where applicable. 6.3 Proposed Plans. In its sole discretion, the CITY may require the Historical Society to do any of the following: • Submit a complete set of proposed plans for any Alteration to the CITY; • Apply for and receive a permit from the Building Department to complete any Alterations; • Within sixty(60) days of a written request, furnish the CITY with a complete set of"as- built"plans for any City-approved Alterations. 6.4 Prevailing Wages. The Historical Society shall comply with prevailing wage statutes for any work not performed by volunteers. ARTICLE 7 MECHANICS' LIENS; STOP NOTICES 7.1 Mechanics' Liens; Stop Notices. The Historical Society shall pay, or cause to be paid, the total cost and expense of all works of improvement, as that phrase is defined in the Mechanics Lien Law in effect at the place of construction, done by it, or caused to be done by it, on the Property, and for all materials furnished for or in connection with any such work. If any lien or stop notice is filed against the Premises, the Historical Society shall cause the lien or stop notice to be discharged of record within one hundred eighty (180) days after it is filed. The Historical Society shall indemnify, defend, and hold the CITY harmless from any and all liability, loss, damage, costs, attorneys' fees and all other expenses on account of claims of lien of laborers or materialmen or others for work performed or materials or supplies furnished for the Historical Society or persons claiming under the Historical Society. 7.2 Notice of Lien or Stop Notice. Should any claim of lien or stop notice related to the Historical Society's work of improvement of the Property be filed against the Property, or any action be filed against the Property, or any action affecting the title to the Property be commenced, the party receiving notice of such lien or stop notice or action shall immediately give the other party written notice thereof. 7.3 Notice of Non-responsibility. The CITY or its representatives shall have the right to post and keep posted on the Premises notices of non-responsibility or such other notices which the CITY may deem to be proper for the protection of the CITY's interest in the Property. The Historical Society shall,before the commencement of any work which might result in any such lien or stop notice, give to the CITY written notice of its intention to do so with sufficient time to enable posting of such notices. Page 6 of 19 Maintenance&Operating Agreement Between City and National City Historical Society December 2024 ARTICLE 8 TAXES 8.1 Definition. "Taxes" shall mean all taxes, governmental bonds, special assessments, charges, or transfer taxes, license and transaction fees, including,but not limited to, (i) any state, local, federal income tax, or any real or personal property tax, (ii) increases in taxes attributable to the Historical Society's operation of the Property, or(iii) any taxes which are essentially payments to a governmental agency, other than the CITY, for the right to make improvements to the Property. 8.2 Possessory Interest. Notwithstanding Article 2.1, the Historical Society recognizes and agrees that this Agreement may create a possessory interest subject to property taxation and that the Historical Society may be subject to the payment of taxes levied on such interest. The Historical Society shall pay,before delinquency, all taxes, assessments and fees assessed or levied upon the Property. 8.3 Responsibility for Payment of Taxes. The CITY shall not be obligated to pay any Taxes accruing against any interest in the Historical Society's use of the Property at any time before or during the Term. The Historical Society shall pay any taxes that accrue against any interest in the Historical Society's use of the Property. In addition, the Historical Society shall pay any Taxes levied upon any Improvements, Fixtures or Personal Property located on the Property, to the extent that such Taxes result from the operations or other activities of the Historical Society upon, or in connection with, the Property. ARTICLE 9 INDEMNIFICATION AND INSURANCE 9.1 Historical Society Indemnity. The CITY shall not be liable for, and the Historical Society shall defend, indemnify, and hold harmless the CITY, its officers, officials, agents, employees, and volunteers from any and all claims, costs, liability, loss, damages to property, injuries to, or death of any person or persons, and all claims, demands, suits, actions, proceedings, reasonable attorneys' fees, and defense costs, of any kind or nature, including workers' compensation claims resulting from, related to, or arising out of the Historical Society's improvement, operation or use of the Property or arising either directly or indirectly from any act, error, omission or negligence of the Historical Society or its contractors, licensees, invitees, members, agents, servants or employees; provided,however, that this indemnification and hold harmless shall not include any claims or liability arising from the established sole negligence or willful misconduct of the City, its agents, officers, or employees. CITY will cooperate reasonably in the defense of any action, the Historical Society shall employ competent counsel, reasonably acceptable to the City's City Attorney. The indemnity, defense, and hold harmless obligations contained herein shall survive the termination of this Agreement for any alleged or actual omission, act, or negligence under this Agreement that occurred during the term of this Agreement. Page 7 of 19 Maintenance&Operating Agreement Between City and National City Historical Society December 2024 9.1.1 Third Party Indemnity. The Historical Society shall not invite third party organizations onto the Property until said third party organization furnishes CITY a written agreement in which it indemnifies and holds CITY harmless, upon terms satisfactory to CITY. 9.1.2 Waivers from Third Party Entities. Historical Society agrees to obtain from all guests, invitees, or third-party organizations whose participants visit the Property, a waiver of liability and hold harmless agreement upon terms satisfactory to the CITY. 9.2 Insurance. The Historical Society, at its sole cost and expense, shall purchase and maintain, and shall require its subcontractors, and third-party organizations the Historical Society invites onto the Property, to purchase and maintain throughout the term of this Agreement, the following insurance policies: 9.2.1 Commercial General Liability Insurance (CGL): Insurance Services Office Form CG 00 01 covering CGL on an"occurrence"basis, including products and completed operations, property damage,bodily injury and personal & advertising injury with minimum limits of$1,000,000 per occurrence and $2,000,000 aggregate, covering all bodily injury and property damage arising of its operations under this Agreement. The policy shall name the CITY and its officers, agents, employees, and volunteers as additional insureds, and a separate additional insured endorsement shall be provided. The general aggregate limit must apply solely to this "project"or"location."The Commercial General Liability required by this Article must include Sexual Misconduct Liability coverage. 9.2.2 Automobile insurance covering all bodily injury and property damage incurred during the performance of this Agreement, with a minimum coverage of$1,000,000 combined single limit per accident. Such automobile insurance shall include owned, non- owned, and hired vehicles ("Any Auto"). The policy shall name the CITY and its officers, agents, employees, and volunteers as additional insureds, and a separate additional insured endorsement shall be provided. 9.2.3 Workers' Compensation Insurance in an amount sufficient to meet statutory requirements covering all of the Historical Society's employees, and employers' liability insurance with limits of at least $1,000,000 per accident. In addition, the policy shall be endorsed with a waiver of subrogation in favor of the CITY. Said endorsement shall be provided prior to commencement of work under this Agreement. If the Historical Society has no employees subject to the California Workers' Compensation and Labor laws, the Historical Society shall execute a Declaration to that effect. The form of said Declaration shall be provided by the Historical Society to the CITY. 9.2.4 Property Insurance against all risks of loss to any improvements or betterments made by the Historical Society, or any third party with permission from the Historical Society, at full replacement cost with no coinsurance penalty provision. Page 8 of 19 Maintenance&Operating Agreement Between City and National City Historical Society December 2024 9.2.5 The aforesaid policies shall constitute primary insurance, at least as broad as ISO CG 20 01 04 13 as to the CITY, its officers, employees, and volunteers, so that any other policies held by the CITY shall not contribute to any loss under said insurance. Said policies shall provide for thirty(30) days prior written notice to the CITY'S Risk Manager, at the address listed in Article 9.2.7 below, of cancellation or material change. 9.2.6 If required insurance coverage is provided on a"claims made"rather than "occurrence" form, the Historical Society shall maintain such insurance coverage for three years after expiration of the term (and any extensions) of this Agreement. In addition, the "retro" date must be on or before the date of this Agreement. 9.2.7 The Certificate Holder for all policies of insurance required by this Article 9.2 shall be: City of National City do Risk Manager 1243 National City Boulevard National City, CA 91950-4397 9.2.8 Insurance shall be written with only insurers authorized to conduct business in California that hold a current policy holder's alphabetic and financial size category rating of not less than A VIII according to the current Best's Key Rating Guide, or a company equal financial stability that is approved by the CITY'S Risk Manager. In the event coverage is provided by non-admitted "surplus lines"carriers, they must be included on the most recent California List of Eligible Surplus Lines Insurers (LESLI list) and otherwise meet rating requirements. 9.2.9 This Agreement shall not take effect until certificate(s) or other sufficient proof that these insurance provisions have been complied with, are filed with and approved by the CITY'S Risk Manager. If the Historical Society does not keep all of such insurance policies in full force and effect at all times during the terms of this Agreement, the CITY may elect to treat the failure to maintain the requisite insurance as a breach of this Agreement and terminate the Agreement as provided herein. 9.2.10 All deductibles and self-insured retentions in excess of$10,000 must be disclosed to and approved by the CITY. CITY reserves the right to modify the insurance requirements of this Article 9.2, including limits,based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances. 9.2.11 If the Historical Society maintains broader coverage or higher limits (or both) than the minimum limits shown above, the CITY requires and shall be entitled to the broader coverage or higher limits (or both) maintained by the Historical Society. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the CITY. Page 9 of 19 Maintenance&Operating Agreement Between City and National City Historical Society December 2024 ARTICLE 10 TERMINATION 10.1 This Agreement may be terminated with or without cause by the CITY. Termination without cause shall be effective only upon 90-day's written notice to the Historical Society. During said 90-day period, the Historical Society shall perform all services in accordance with this Agreement. This Agreement may also be terminated immediately by the CITY for cause in the event of a material breach of this Agreement,misrepresentation by the Historical Society in connection with the formation of this Agreement or the performance of services, or the failure to perform services as directed by the CITY. Termination with or without cause shall be affected by delivery of written Notice of Termination to the Historical Society as provided for herein. The CITY further reserves the right to immediately terminate this Agreement upon: (a) the filing of a petition in bankruptcy affecting the Historical Society; (b) a reorganization of the Historical Society for the benefit of creditors; or(c) a business reorganization, change in business name or change in business status of the Historical Society. ARTICLE 11 HAZARDOUS MATERIALS 11.1 Hazardous Materials Laws-Definition. As used in this Article, the term "Hazardous Materials' Laws" means any and all federal, state or local laws or ordinances, rules, decrees, orders, regulations or court decisions (including the so-called "common law") relating to hazardous substances,hazardous materials, hazardous waste, toxic substances, environmental conditions on, under or about the Property, soil and ground water conditions or other similar substances of conditions. The following legal authority is a non-exhaustive list of the legal authority that applies to the definition of the term "Hazardous Materials Laws": • the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended (42 U.S.C., Section 9601 et seq.) • the Hazardous Materials Transportation Act, as amended (49 U.S.C., Section 1801 et seq.), and • the Resource Conservation and Recovery Act of 1976, as amended (42 U.S.C., Section 6901 et seq.) 11.2 Hazardous Materials - Definition. As used in this Section the term "Hazardous Materials" means any chemical, compound, material, substance or other matter that: 11.2.1 is a flammable, explosive, asbestos, radioactive nuclear medicine, vaccine, bacteria, virus, hazardous waste, toxic, overtly injurious or potentially injurious material, whether injurious or potentially injurious by itself or in combination with other materials; 11.2.2 is controlled, referred to, designated in or governed by any Hazardous Materials Laws; 11.2.3 gives rise to any reporting, notice or publication requirements under any Hazardous Materials Laws, or Page 10 of 19 Maintenance&Operating Agreement Between City and National City Historical Society December 2024 11.2.4 is any other material or substance giving rise to any liability, responsibility or duty upon the CITY or the Historical Society with respect to any third person under any Hazardous Materials Law. 11.3 Historical Society Representations and Warranties. The Historical Society represents and warrants that, during the Term or any extension thereof, the Historical Society shall comply with the following provisions of this Article unless otherwise specifically approved in writing by the CITY, subject to the terms and conditions of the Historical Society's maintenance obligations provided elsewhere in this Agreement: 11.3.1 Historical Society shall not cause or permit any Hazardous Materials to be brought, kept or used in or about the Property by the Historical Society, its agents, employees, assigns, contractors or invitees, except as required by the Historical Society's permitted use of the Property in the normal course of operations; 11.3.2 Any handling, transportation, storage, treatment or usage by the Historical Society of Hazardous Materials that is to occur on the Property following the Commencement Date shall be in compliance with all applicable Hazardous Materials Laws; 11.3.3 Any leaks, spills, release, discharge, emission or disposal of Hazardous Materials which may occur on the Property following the Commencement Date shall be promptly and thoroughly cleaned and removed from the Property by the Historical Society at its sole expense, and any such discharge shall be promptly reported in writing to the CITY, and to any other appropriate governmental regulatory authorities; 11.3.4 No friable asbestos shall be constructed, placed on, deposited, stored, disposed of, or located by the Historical Society on the Property; 11.3.5 No underground improvements, including but not limited to treatment or storage tanks, or water, gas or oil wells shall be located by the Historical Society on the Property without the CITY's prior written consent; 11.3.6 Historical Society shall promptly supply the CITY with copies of all notices, reports, correspondence, and submissions made by the Historical Society to the United States Environmental Protection Agency,the United Occupational Safety and Health Administration, and any other local, state or federal authority which requires submission of any information concerning environmental matters or hazardous wastes or substances pursuant to applicable Hazardous Materials' Laws; and 11.3.7 Historical Society shall promptly notify the CITY of any liens threatened or attached against the Property pursuant to any Hazardous Materials' Law. If such a lien is filed against the Property, then, within the earlier of(i) twenty(20) days following such filing, or(ii)before any governmental authority commences proceedings to sell the Property pursuant to the lien, the Historical Society shall either: Page 11 of 19 Maintenance&Operating Agreement Between City and National City Historical Society December 2024 (a) pay the claim and remove the lien from the Property, or (b) furnish either: (1) a bond or cash deposit reasonably satisfactory to the CITY in an amount not less than the claim from which the lien arises, or; (2) other security satisfactory to the CITY in an amount not less than that which is sufficient to discharge the claim from which the lien arises. 11.3.8 At the end of this Agreement, the Historical Society shall surrender the Property to the CITY free of any and all Hazardous Materials and in compliance with all Hazardous Materials' Laws affecting the Property. ARTICLE 12 ASSIGNMENT 12.1 Assignment; CITY's Consent Required. The Historical Society shall not voluntarily or involuntarily assign or otherwise transfer all or any portion of its rights and duties under this Agreement without the CITY's prior written consent. Any attempted assignment or transfer without the CITY's prior written consent shall be void. ARTICLE 13 DEFAULTS BY HISTORICAL SOCIETY OR BY CITY; REMEDIES 13.1 Events of Default; Remedies. The following sub-articles shall apply if either the Historical Society of the CITY neglects, fails to perform, or fails to observe any of their respective obligations under the terms, covenants, or conditions contained in this Agreement ("Default"): 13.1.1 Thirty-Day Correction of Default. If either the Historical Society or the CITY determines that the other party is in Default, then the non-defaulting party must provide the defaulting party written notice of the Default and thirty(30) days to correct the default. 13.1.2 Extended Correction of Default. If the defaulting party determines that more than thirty (30) days is required to correct the Default, the defaulting party must provide the other party written notice of the reasons why additional time is required to correct such Default. The defaulting party must use diligent efforts to correct a Default under this Article 13.1.2 and, in any case, must correct such Default within ninety (90) from the date of the written notice of Default. 13.1.3 Remedies for Failure to Correct Default. If the defaulting party fails to comply with Article 13.1.1 or 13.1.2, then the non-defaulting party may immediately terminate this Agreement. The defaulting party shall be liable to the non-defaulting party for any and all damages sustained by the non-defaulting party as a result of the defaulting parties' breach. Page 12 of 19 Maintenance&Operating Agreement Between City and National City Historical Society December 2024 ARTICLE 14 ABANDONMENT 14.1 Abandonment. The Historical Society shall not vacate or abandon the Property at any time during the Term nor permit the Property to remain unoccupied for a period of longer than five (5) consecutive days during the term of this Agreement. These provisions shall not apply if the Property is closed and operation is temporarily discontinued therein on account of strikes, lockouts, acts of nature, or similar causes beyond the reasonable control of the Historical Society. Any exceptions must be submitted in writing to the City Manager or designee for approval. ARTICLE 15 DAMAGE OR DESTRUCTION 15.1 Historical Society's Duty to Repair Casualty. The Historical Society shall, as expeditiously as reasonably possible, repair any damages to the Property caused by fire, earthquake, or any other identifiable event of a sudden, unexpected, or unusual nature ("Casualty"), and repair, restore and replace any such damaged or destroyed Fixtures, Improvements or Personal Property("Casualty Repairs"). Any Casualty Repairs made under this Article 15 are: (a) To be performed at the Historical Society's sole cost and expense; (b) To be performed except as otherwise provided in this Article 15; and are (c) Subject to all other terms and conditions of this Agreement. 15.2 Construction Provisions. In the event of any reconstruction of the Property, Fixtures or Improvements required of the Historical Society pursuant to this Article, the Historical Society shall repair the Property, and repair or rebuild such Fixtures and Improvements, to substantially the same condition they were in immediately preceding such Casualty. 15.3 No Abatement. In the event of reconstruction, replacement or repair by the Historical Society pursuant to this Article, the Historical Society shall continue its operations on the Property during any such period to the extent reasonably practicable from the standpoint of prudent business management, and in continuing compliance with applicable laws and regulations. The Historical Society shall not be entitled to any compensation or damages from CITY for: (a) loss of use of the whole or any part of the Property; (b) the Historical Society's Personal Property; or(c) any inconvenience or annoyance occasioned by such damage, reconstruction or replacement. 15.4 Major Destruction. Notwithstanding any of the foregoing provisions of this Article to the contrary, if, at any time after the Commencement Date, (a) the Improvements are damaged or destroyed to the extent of more than twenty-five percent (25%) of their replacement cost, or(b) the damage is such that the Improvements cannot be repaired and restored within one hundred Page 13 of 19 Maintenance&Operating Agreement Between City and National City Historical Society December 2024 and eighty (180) days after the Casualty, then the Historical Society shall have the right to terminate this Agreement upon thirty(30) days' prior written notice to the CITY. ARTICLE 16 EMINENT DOMAIN 16.1 Condemnation. The Historical Society may terminate this Agreement within twenty(20) days after the date that a condemning authority(by a party other than the CITY)takes possession of the Property by delivery of written notice of such condemnation if: (a) If all of the Property is taken under eminent domain proceedings; or (b) Less than all of the Property is taken under such eminent domain proceeding and the part taken substantially impairs the ability of the Historical Society to use the remainder of the Property for the purposes permitted by this Agreement. In the absence of such written notice from a condemning authority, the Historical Society may terminate this Agreement within twenty(20) days after the condemning authority shall have taken possession. 16.2 Continuation of Operating Agreement After Condemnation. If this Agreement is not terminated by the Historical Society, it shall remain in full force and effect as to any portion of the Property remaining, and this Agreement will end as of the date possession of the part taken by the public entity as to the part of the Property that is taken. 16.3 Award. All monies awarded in any condemnation shall belong to the CITY. The CITY shall have no liability to the Historical Society for any award not provided by the condemning authority. ARTICLE 17 SALE OR MORTGAGE BY CITY 17.1 Sale or Mortgage. The CITY may, pursuant to existing and subsequently enacted the CITY ordinances and State laws, at any time and without the consent of the Historical Society, vacate, sell, purchase, exchange, transfer, assign, lease, encumber or convey the CITY's interest in whole or in part, in the Property(collectively referred to in this Article as a "Sale"). The CITY shall provide to the Historical Society written notice of the CITY's intent to a Sale or discontinuance pursuant to this Article at least ninety(90) days prior to said proposed transfer. 17.2 Release on Sale. From and after a Sale or discontinuance of the CITY's entire interest in the Property, the CITY shall be released from all liability to the Historical Society and the Historical Society successors and assigns arising from this Agreement because of any act, occurrence or omission of the CITY occurring after such Sale. Page 14 of 19 Maintenance&Operating Agreement Between City and National City Historical Society December 2024 ARTICLE 18 CITY'S RIGHT OF ACCESS 18.1 Right of Entry. CITY, its agents, employees, and contractors may enter the Property at any time with or without notice to the Historical Society to: (a)respond to health and safety concerns; (b) inspect the Property and Improvements; (c) determine whether the Historical Society is complying with its obligations in this Agreement (including its obligations with respect to compliance with Hazardous Materials Laws); (d) post notices of non-responsibility or similar notices; (e) inspect the progress of construction of any improvement; or (f) make repairs that this Agreement requires or allows CITY to make, or make repairs to any adjoining space or utility services, or make repairs, alterations, or improvements to any other portion of the Property. All work enumerated in this Article 18.1 must be done as promptly as reasonably possible and so as to cause as little interference to the Historical Society as reasonably possible. ARTICLE 19 NOTICES 29.1 Notices. Whenever in this Agreement it shall be required or permitted that notice or demand be given or served by either party to this Agreement to or on the other, such notice or demand shall be in writing, mailed or personally delivered to the other party at the addresses specified below. Mailed notices shall be sent by United States Postal Service, postage prepaid and shall be deemed to have been given, delivered and received three (3)business days after the date such notice or other communication is posted by the United States Postal Service. All other such notices or other communications shall be deemed given, delivered and received upon actual receipt. Either party may,by written notice delivered pursuant to this provision, at any time designate a different address to which notices shall be sent. CITY: CITY OF NATIONAL CITY City Manager City of National City 1243 National City Boulevard National City, CA 91950-4301 With a copy to: City of National City Community Services Director 140 E 12th Street. Page 15 of 19 Maintenance&Operating Agreement Between City and National City Historical Society December 2024 National City, CA 91950 Historical Society: National City Historical Society Executive Director 923 A Avenue National City, CA 91950 ARTICLE 20 NONDISCRIMINATION 20.1 Nondiscrimination. The Historical Society hereby covenants by and for itself,its successors, assigns and all persons claiming under or through it,that this Agreement is made and accepted upon and subject to the condition that there shall be no discrimination against, or segregation of, any person or group of persons on account of race, color, creed,religion, sex, sexual orientation,marital status, national origin,physical handicap,medical condition or ancestry in the use, operation, or enjoyment of the Property. ARTICLE 21 RECORDS, ACCOUNTS AND AUDITS 21.1 Historical Society's Duty to Keep Records. The Historical Society shall, at all times during the Term, and for a period of five(5)years following expiration or earlier termination of this Agreement,keep or cause to be kept,true and complete books,records and accounts of all (a) construction undertaken pursuant to the rights conferred on the Historical Society under this Agreement, and(b) financial transactions in the operation of all business activities, of whatever nature, conducted pursuant to the rights granted by this Agreement. Such records shall also include the source and disposition of all trash and other waste collected and disposed of by the Historical Society in the operation of its business. Said records must be supported by source documents such as receipts, sales slips, cash register tapes,purchase invoices or other pertinent documents. 21.2 CITY's Right to Audit. All the Historical Society books, accounts and records shall be kept and made available at one location within the limits of the County of San Diego. The CITY shall have the right at any reasonable time to examine and perform audits of the Historical Society's records pertaining to (a) construction undertaken pursuant to the rights conferred on the Historical Society under this Agreement, and(b)its operations on the Property, including, without limitation, any records pertaining to the Historical Society's use of utilities on the Property. The cost of said audits shall be borne by the CITY;however, the Historical Society shall provide to the CITY at the Historical Society's expense, necessary data to enable the CITY to fully comply with each and every requirement of the State of California or by the United States of America for information or reports relating to this Agreement and to the Historical Society's use of the Property. Page 16 of 19 Maintenance&Operating Agreement Between City and National City Historical Society December 2024 ARTICLE 22 ADMINISTRATIVE PROVISIONS 22.1 Authority. The Historical Society represents and warrants that it has full power and authority to execute and fully perform its obligations under this Agreement pursuant to its governing instruments, without the need for any further action, and that the person executing this Agreement on behalf of the Historical Society is the duly designated agent of the Historical Society and is authorized to do so. 22.2 Captions. The captions and headings appearing in this Operating Agreement are inserted for convenience only and in no way define, limit, construe, or describe the scope or intent of the provisions of this Operating Agreement. 22.3 CITY Approval. Except where stated in the Agreement to the contrary, the phrases "CITY approval," and "CITY written approval" or such similar phrases shall mean approval of the City Manager or designee, which approval shall not be unreasonably withheld. 22.4 Cumulative Remedies. In the event of a default under this Agreement, each party's remedies shall be limited to those remedies set forth in this Agreement. Any such remedies are cumulative and not exclusive of any other remedies under this Agreement to which the non- defaulting party may be entitled. 22.5 Entire Agreement. This Agreement, together with all addenda and exhibits attached hereto, constitutes the entire agreement between the parties with respect to the subject matter hereof, and all prior or contemporaneous agreements, understandings and representations, oral or written, are superseded. 22.6 Exhibits. All exhibits referred to herein are attached hereto and incorporated by reference: Exhibit A: Legal description of the Property 22.7 Force Majeure. If either party is prevented or delayed from performing any act or discharging any obligation hereunder,because of any and all causes beyond either party's reasonable control, including unusual delays in deliveries, abnormally adverse weather conditions, unavoidable casualties, strikes, labor disputes, inability to obtain labor,materials or equipment, acts of God, governmental restrictions, regulations or controls, any hostile government actions, civil commotion and fire or other casualty, legal actions attacking the validity of this Agreement or the CITY or the Historical Society's operations of the Property, or any other casualties beyond the reasonable control of either party ("Force Majeure"), performance of such act shall be excused for the period of such delay, and the period for performance of such act shall be extended for a period equivalent to the period of such delay. Force Majeure shall not include any bankruptcy, insolvency, or other financial inability on the part of either party hereto. Page 17 of 19 Maintenance&Operating Agreement Between City and National City Historical Society December 2024 22.8 Governing Law. This Agreement shall be governed, construed and enforced in accordance with the laws of the State of California. 22.9 Independent Contractor. The Historical Society acknowledges that it is an independent contractor; that it alone retains control of the manner of conducting its activities in furtherance of this Agreement; and that it, as well as any persons, contractors or agents it may employ, are not employees of CITY for any purpose. 22.10 Interpretation. The provisions of this Agreement shall be liberally construed to effectuate its purpose. The language of all parts of this Agreement shall be construed simply according to its plain meaning and shall not be construed for or against either party. 22.11 Historical Society's Agreement Administration. The Historical Society confirms that the Historical Society's Agreement Administrator has been given full operational responsibility for compliance with the terms of this Agreement. The Historical Society shall provide the CITY with a written schedule of its normal hours of business operation on the Property, and the Historical Society's Agreement Administrator or a representative designated thereby shall be available to the CITY during the Historical Society's normal business hours, to resolve problems or answer question pertaining to this Agreement and the Historical Society's operations on the Property. 22.12 Modification. The provisions of this Agreement may not be modified, except by a written amendment signed by both parties. 22.13 Partial Invalidity. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable, the remainder of this Agreement shall not be affected thereby. Each provision shall be valid and enforceable to the fullest extent permitted by law. 22.14 Successors & Assigns. This Agreement shall be binding on and inure to the benefit of the parties and their successors and assigns, except as may otherwise be provided herein. The Historical Society shall not assign this agreement to any other party unless approved in writing by the CITY. 22.15 Time of Essence. Time is of the essence of each and every provision of this Agreement. 22.16 Waiver. No provision of this Agreement or the breach thereof shall be deemed waived, except by written consent of the party against whom the waiver is claimed. [Signatures on following page] Page 18 of 19 Maintenance&Operating Agreement Between City and National City Historical Society December 2024 IN WITNESS WHEREOF, the CITY and the Historical Society have duly executed this Agreement as of the day and year first above written. CITY OF NATIONAL CITY National City Historical Society, a non- (CITY) profit California corporation (Historical Society) By: n Morrison, Mayor By: &/77(-et"'/)-j‘ (Nam ) EErrec Y S7o'v APPROVED AS TO FORM: (Print) 26"444 (Title) BarryJ. S City Attorney �/V By: (Name) er (Print) 5 441107— (Title) Page 19 of 19 Maintenance&Operating Agreement Between City and National City Historical Society December 2024