HomeMy WebLinkAboutA Reason to Survive - Maintenance of Arts Center - 2021AGREEMENT
BY ET1 EE 1
THE CITY OF NATIONAL CITY
AND
A REASON TO SURVIVE
THIS AGREEMENT is entered into on this 7 day of December, 2021, by and
between the CITY OF NATIONAL CITY, a municipal corporation (the "CITY"), and A
REASON TO SURVIVE (the "ARTS").
RECITALS
WHEREAS, the. CITY. owns the. improved. -real property located at 200 East 12th
Street, National City, California. This real property is mm my known as the Arts
Center Building (the "ARTS CENTER"). A description of the ARTS CENTER is
attached hereto as Exhibit "A" and Exhibit "B", incorporated herein by reference;
WHEREAS, one of the goals of the Mrs General Plan is to develop a cultural
arts program that that encourages and facilitates the development of art in public
spaces and promotes greater awareness of architectural, urban design, and the cultural
heritage of the CITY;
WHEREAS, ARTS is a California non-profit c rp rtati n skilled in creating public
art, including capital arts projects;
WHEREAS, the CITY desires to employ ARTS to maintain the ARTS CENTER
for the benefit of the community and ARTS is willing and able to maintain the ARTS
CENTER for such purpose;
WHEREAS, in exchange for maintaining the ARTS CENTER for the benefit of
residents and visitors, the CITY desires to grant ARTS a revocable license to enter and
operate the ARTS CENTER located at 200 East 12th Street, National City, California;
WHEREAS, S, the CITY previously entered into a similar arts maintenance
agreement with ARTS which commenced on January 1, 2018 and expires on December
31, 2021;
WHEREAS, the CITY wishes to enter into this new agreement for continued arts
maintenance with ARTS.
NOW, THEREFORE, RE, THE PARTIES HERETO DO MUTUALLY AGREE AS
FOLLOWS:
1. ENGAGEMENT F CONSULTANT. The CITY agrees to engage
ARTS to maintain and operate the real property located at 200 East 12t 1 Street, National
City, California and known as the ARTS CENTER, in accordance with all the terms and
conditions contained herein. ARTS represents that all services shall be performed
directly by ARTS or under direct supervision of ARTS.
1.1 LICENSE FOR USE OF PROPERTY. The CITY grants ARTS a
recovable license to enter and operate the ARTS CENTER, subject to the covenants
and conditions hereinafter set forth, as f the Effective Date of this agreement.
1.1.1 Parking. CITY will maintain control of the public parking lot
adjacent to the Arts Center. ARTS shall neither have reserved
parking nor exclusiveon-site, parking spaces.
•
.2 OWNERSHIP P PERSONAL PROPERTY T AND IMPROVEMENT'S. The
rights •and .obligations of CITY and ARTS regarding the ownership of personal property
and improvements on the property known as the ARTS CENTER shall be as follows:
1.2.1 Ownership of Personal Property. All improvements existing on the
property known as the ARTS CENTER, together With all fixtures
permanently attached to the property as f the effective date of this
agreement shall remain the property of the CITY during the Term.
ARTS shall not remove any improvements r fixtures from the
property and shall not waste, destroy, or modify any improvements
or fixtures, except as permitted by this agreement.
1.2.2 Own r hip of Improvements and Equipment. All improvements
made to the ARTS CENTER by ARTS shall become property of
the CITY.
2. TERM. This agreement will become effective on January 1, 2022. The
duration of this agreement is for the period of January 17 2022 through December 31,
2024. This agreement may be extended by mutual agreement upon the same terms
and conditions for an additional two (2) year term. CITY and ARTS may exercise up to
three two-year extensions. Any extension of this agreement must be approved by
resolution of the City Council.
3. SCOPE OF SERVICES. It is the int nt n of this agreement that the
operation of the Arts Center by ARTS will encourage and foster arts education
programming, creative youth development, project based learning, and support services
for the students and families at the ARTS CENTER, as well as the creation of public art
projects in the community.
In exchange for its use of the ARTS CENTER, ARTS shall provide capital
projects and programming services (the "Projects and Programs") within National City's
jurisdictional boundaries during the Term. Such Projects shall serve as consideration for
the use of the property and shall include: a) capital improvements to the ARTS
CENTER; b) the performance of works of authorship as described in California Civil
Code 980-989 and United States Code Title 17, Article 106(A) and Section 113(d)
(hereafter "Public Art"), throughout the community utilizing various media; c) community
Standard Agreement Page 2 of 20 City ofNati n l City and
Revised January 2021 A Reason to Survive
event banners; d) public gateway improvements, that may include aspects of Public
Art; landscape, streetscape, and park improvements; and f art consultancy, art
installation and art maintenance of ARTS -installed temporary art pieces done on behalf
of and for the benefit of the City of National City or National City programs such as, bit
not exclusively limited to, the annual Dia de los Muertos and Community Services Day
programs and events. ARTS is not obligated to maintain permanent public art or public
art pieces unless the parties agree. The scope of services described in this Article 3 are
in addition to all other property maintenance obligations more specifically described
herein.
3.1 VALUE OF PROJECTS AND PROGRAMS. . The annual value of the
Projects and programs shall total at least one hundred and twenty-five thousand dollars
($125,000.00). Of this $125,000, ARTS must obtain at least $25,000 for the -Projects.,
and Programs through fundraising.
3 METHOD F DETERMINING VALUE OF PROJECTS AND
PROGRAMS. The value of all Projects and Programs shall, be determined according to
a) the dollar value of each Project and Program, as represented by a separate written
agreement approved by the City Manager or designee, or b) copies of invoices,
receipts, or bills demonstrating the dollar value f materials purchased for a Project and
Program. ARTS must promptly make all invoices, receipts, or bills demonstrating the
dollar value of materials purchased for a Project or Program available to the City
Manager or designee within 3 days of a written request.
3.3 WAIVER OF ARTISTIC RIGHTS. ARTS expressly waives and disclaims
any residual rights in the Projects and Programs granted to rTS by state or federal
law, including the California Civil Code, Articles 980-989, relating to intellectual property
and artistic works and Title 17 United States Code Section 106A and Section 113(d)
relating to artistic rights.
3.4 HOURS S F OPERATION. ARTS will open the property known as the
ARTS CENTER to the public Monday through Friday from 10:00 a.m. to 5:00 p.m.
.5 SERVICE FEES. ARTS shall not provide any programs and services for
profit. However, ARTS may charge user fees for classes and programs offered to
school groups and the community to offset costs incurred by ARTS in its maintenance
and operation of the ARTS CENTER. Any fees charged this Article 3.5 must be
approved by the City Manager or designee. There will no fee for the public to gain
access to the ARTS CENTER during the hours of operation listed in Article 3.4.
3.6 REPORTING BY ARTS. ARTS shall provide quarterly reports to the City
Manager, or designee, that provide Statistical information (defined below) for the
immediately preceding quarter. Each quarterly report shall contain, at a minimum, the
total number of a) National City residents who participated in ARTS' Projects or
Programs; b) participants and volunteers who participated in ARTS' Projects or
Programs; all events and programs coordinated; d) the capital projects completed.
Standard Agreement
Page 3 of 2
City of National City and
Revised January 2021 A Reason to Survive
The quarterly reports shall also include reports on ARTS' operating and maintenance
plans, long-term and short-term goals, and any other pertinent statistics. The
information required to appear in the quarterly reports by this Article 3.6 will be referred
to as "Statistical Information.',' Each quarterly report will include all previous quarters'
Statistical Information", if any. ARTS will deliver the quarterly report to the City Manager
or designee within 30 days of the end of each quarter.
3.7 Ii U L BUDGET. ARTS shall provide the City Manager, or
designee, with a courtesy copy of the proposed budget for ARTS' estimated
maintenance and operating expenses for the ARTS CENTER by July 1 of each year
during the Term.. ARTS shall provide to the City Manager or designee,, an audited
financial report and tax return, ninety :(90y'days following' June 30 of h' year during
the Term.
.-.:m,:.
3.8 LU TEE MANAGEMENT. ARTS may utilize volunteers to
operate the ARTS CENTER, and in providing the Projects and Programs required by
this agreement. ARTS is responsible for recruiting, training, and managing all volunteers
on the property. Volunteers are considered the responsibility of ARTS for the purpose of
workers compensation or general liability.
3,9 ALCOHOL U.SE. ARTS or third parties with permission from ARTS,
may, hold events at the ARTS CENTER where alcoholic beverages are served.
Alcoholic beverages shall be served subject to the following requirements.
Standard Agreement
(a) Alcohol will not be served during youth programming under any
circumstance.
(b) Alcohol will be served in limited areas of the ARTS CENTER
designated by ARTS in advance of any event and approved by the City
Manager or designee.
Alcoholic beverages must be served by a licensed bartender,. The
bartender must have a copy of their bartender's license located at the
property.
(d) The event host must obtain approval from the California Department of
Alcoholic Beverage Control to serve alcohol.
(e) The event host is responsible for all guests' behavior during and
following the service of alcohol.
(f) "Last call" for service of alcohol shall be at least thirty 3 minutes
prior to the scheduled end of the event.
(g) When third parties (with permission ion from ARTS) serve alcoholic
beverages, the following additional requirements shall apply: t.
1. The third party shall provide the CITY proof of liability
insurance acceptable to the City's Risk Manager;
2. The third party shall provide two licensed security guards
for every 100 guests registered to attend the event;
Page 4
City ofNational City and
Revised January 2021 A Reason to Survive
3. ARTS shall reserve the authority to immediately
terminate an event if ARTS determines, in its sole
discretion, the third party has not complied with any
requirements of this Article 3.9.
.--.-ARTS_.sh ll provide the CITY a copy of their third party
rental agreement template for approval.
4. .CONSIDRATION. ARTS' payment of $1.00 to the CITY, in addition
to ,ARTS'. provision of Projects and Programs under Article 3 of this agreement and the
mutual -benfit to be derived from ARTS'.... performance under the remainder .:f this
agreement,: shall serveservQps the sole. o id rati due the CITY for ARTS.licenselb use
and operate the 1 TS'CEl TEI .
. OWNERSHIP RIGHTS AND LICENSES TO ARTWORK: WAIVER.
Through its provision of- Projects and Programs to the CITY, ARTS makes an
unconditional donation, in perpetuity, of all Public Art created to the CITY. ARTS
acknowledges that the CITY is authorized to accept donations of Public Art pursuant to
Sections 37354 and 37355 of the Government Code. Before beginning each Project or
Program that contains Public Art, ARTS and all individuals participating in the Project or
Program must sign a CITY -approved waiver that expressly waives and disclaims any
and all rights they each may have under the California Art Preservation Act, as set forth
in Civil Code Section 9 o-g 9, and any rights under the Visual Artists Rights Act, as set
forth at 17 U.S.C. Section 106A and Section 113(d) to any Public Art created pursuant
to this agreement. ARTS, and all participants who create Public Art., shall not attempt to
defeat Sections 3.2 3 and 9.2 by cooperating with any organization which seeks to bring
an action under Civil Code Article 989 or any other applicable provision of law.
5.1 OWNERSHIP. OF MATERIALS. Ownership of all materials and
p
concepts produced forthe CITY under this agreement, including but not limited to
p
completed Projects, and all rights to licensing and reproductions of Public Art, shall pass
to and become the property of the CITY once the CITY accepts the completed Project.
The CITY, at its option, will store all drawings and materials that may assist with future
repairs.
5.2 ASSIGNMENT. ARTS hereby assigns to the CITY all rights to
produce, give, sell, and distribute still or motion images and models or other likeness of
any kind of Public Art but shall exercise no rights thereto inconsistent with any provision
of this Article 5.0. Any Memoranda, Reports, Maps, Drawings, Renderings, Photos,
Plans, Specifications, and other documents prepared by ARTS for any Project or
Program, whether paper or electronic, shall become the property of the CITY for use
with respect to the specific Project or Program provided to the CITY, and shall be turned
over to the CITY upon completion of the Project or Program, or any phase thereof, as
contemplated by thigreement.
.3 SURVIVAL. The provisions of Article 5.0 to 5.2 shall survive the
termination of this agreement.
Standard Agreement
Revised January 2021 A Reason to Survive
Page 5 of
City of National City and
6. COMPLIANCE 1I ITH LAWS. ARTS, at its sole discretion, shall
procure, maintain, and hold available for the CITY's inspection any governmental
license r permit required for the proper and lawful conduct of ARTS' operation of the
ARTS CENTER. ARTS shall not use the ARTS CENTER 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. ARTS shall, at its sole expense, comply with all
applicable statutes, laws, ordinances, rules, regluations, orders, covenants and
restrictions of record, and requirements in effect. during the Term regulating the use by
ARTS of th ..AI TS.CE 1TER.
.:7. UTILITY SE- V C S. The.. CITY hall;b -responsibler ,maintaining:
reasonable utility.' services to the ARTS CENTER. The CITY' shall :iiby -for Twenty
Thousand dollars ($20,000) worth of electricity . and reasonable water usage at the
property known as the ARTS CENTER. . ARTS shall pay for all costs of electricity that
exceeds the sum listed in this Article 7. If the CITY determines, in its sole discretion,
that ARTS is negligent in its use of the -utilities, including water usage, the CITY may
hold a good faith meet and confer meeting with ARTS to discuss its utilities usage.
8. ARTS REPAIRS IRS ND MAINTENANCE LIG TIONS. ARTS
acknowledges that it has made a thorough inspection of the ARTS CENTER . and that it
accepts the property "as -is" as of the Effective Date of this agreement. At ARTS' own
cost and expense, ARTS shall repair, replace, and maintain the ARTS CENTER in
good, tenable condition as necessary. ARTS shall not be obligated to repair or replace
damage to the Property caused by ordinary wear and tear. ARTS shall maintain 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 the California" s Disabled Persons Act. Other than repair work
in emergency situations, not exceeding Three Thousand Dollars ($3,000), ARTS shall
not perform any repair work without the CITY's prior written consent. As used in this
Article 8, "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 known as the ARTS CENTER are governed by
Public Contract Code Section 22050. ARTS' obligations under this Article shall apply
regardless of whether the repairs, restorations, and replacements are ordinary or
extraordinary, foreseeable or unforeseeable, capital or noncapital, the fault or not the
fault of ARTS, its agents, employees, volunteers, invitees, visitors, or contractors. All
replacements made by the ARTS shall be of like size, kind, and quality to the items
replaced.
8.1 CITY REPAIR AND MAINTENANCE OBLIGATIONS. For any
repair and maintenance work exceeding Three Thousand 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 bcompletd.
Standard Agreement
Page 6 of 20
City of National City and
Revised January 2021 A Reason to Survive
8.2 CITY RIGHT TO INSPECT. ARTS shall permit the CITY to enter the
ARTS CENTER at all times during usual hours of operation to inspect the property. Any
entry pursuant to this Article 8.2 shall not unreasonably interfere with with ARTS
operation-offihe AR-T-S--C-EN-T-ERHowev-e- r--nofihing-con#wined-inthis-Ar-title 8-2-shall-
creafie any duty on the part of the CITY to do any work which, under any provision of this
agreement ARTS may be required to do,
9. ALTERATIONS. ARTS may alter, replace, add to, change, or
construct additional improvements to the ARTS CENTER, as ARTS may find necessary •
or GonVenient for. ita operation of the •properly. p. Any al#eratianperformed by ARTS under..
this Ar#icle ARTS' sole Goat and expense; b) with the _CITY's
prior written consent; and • c) -in ac
cordance with •construction • plans submitted to and •
approved by the CITY.
9.1 CONSTRUCTION PERMITS_AND LICENSES. At all times during
the Term, ARTS 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 disrection, waive CITY
permitting fees where applicable.
9.2 PROPOSED PLANS. L S. in its sole discretion, the CITY may require
ARTS to do any ofthe following: submit a complete set of proposed plans of any
alterations to the CITY; b) apply for and receive a permit from the Building Department
to complete any alterations; within sixty 6 days of a written request, furnish CITY
with a complete set of "as -built" plans for any CITY -approved alterations.
9.3. PREVAILING WAGES. ARTS shall comply with prevailing wage
statutes for any work not performed by volunteers. State prevailing wage rates may
apply to work performed under this agreement. State prevailing wages rates apply to all
public works contracts as set forth in California Labor Code, including but not limited to,
Sections 1720, 1720.2, 1720.3, 172 . , and 1771. Consultant is solely responsible to
determine if State prevailing wage rates apply and, if applicable, pay such rates in
accordance with all laws, ordinances, rules, and regulations.
10. MECHANICS' LIENS: STOPNOTJ.CES. ARTS shall pay, or cause
to paid, the total cost and expense of all works of improvement, as that phrase is
defined in the Mechanics Lien Law in effect at time and place of construction, done by it,
or caused to be done by it, on the property known as the ARTS CENTER, and for all
materials furnished for, or in connection with any such work. If any lien or stop notice is
filed against the property known rn as the ARTS CENTER, ARTS shall cause the lien or
stop notice to be discharged of record within one hundred eighty (180) days after it is
filed. ARTS 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, materialmen, or others for work performed, or materials or
Standard Agreement
Page 7 of
City of National City and
Revised January 2021 A Reason to Survive
supplies furnished for ARTS or persons claiming urnd r 1 TS.
10.1 NOTICE OF LIEN .OR STOP NOTICE. Should any claim of lien or
stop notice related to ARTS' work of improvement of the property be filed against the
property,- or any action be -filed against _the....property, _or any . action..-- affecting_ .th -...titl ... t ..
the property be mm nc d, the party receiving notice of such lien or stop notice or
action shall immediately give the other party written notice thereof.
10.2 NOTICE OF NON -RESPONSIBILITY. The CITY _ or its
representatives shall have the right to post .andkeep posted on the property notices on
non -responsibility or such other notices.whi h the CITY m y deem t , be proper, for Y:::Y`, ..
protection- f ..the IT�'� interest: in the:property, ARTS shalt,:,, before _:
commencement. f are word. which ; might result in _such lien or stop n: tic ,2 give to
the CITY written notice of its intention to with sufficient time, to n b•l positing of
such notices.
11. DEFINITION OF TAXES. "Taxes" shall mean all taxes,
governmental bonds, special assessments, charges, or transfer taxes, license and
transaction fees, including, but not limited to: any state, Ioca, federal income tax, or
any real or personal property ta;, increases in taxes attributable to ARTS' operation
of the property, or; any taxes which are essentially payments to a governmental
agency, other than the CITY, for the right to make improvements to the property.
11.1 POSSESSORY INTEREST. Notwithstanding Articles 'I to 1.2,
ARTS acknowledges that this agreement may create a possessory interest subject to
property tax ton and that ARTS may be subject to the payment of taxes levied on such
interest. ARTS shall pay, before delinquency, all taxes, assessments, and fees
assessed or levied upon the property.
11.2 RESPONSIBILITY FOR PAYMENT OF TAXES. The CITY shall
not be obligated to pay any Taxes accruing against any interest in ARTS' use of the
property at any time before or during the Term. ANTS shall pay any Taxes that accrue
against any interest in ARTS' use of the property. Additiontally, ARTS shall pay any
Taxes levied upon any improvements, fixtures, or personal property located on the
property to the extent such Taxes results from ARTS operation or other activities held
upon, or in connection with, the property.
12. PROJECT COORDINATION AND SUPERVISION. The Library
Community Services Director hereby is designated as the Project Coordinator for the
CITY and will monitor the progress and execution of this agreement. ARTS shall assign
a single Project Director to provide supervision and have overall responsibility for the
progress and execution of this agreement for the ARTS. The ARTS Executive Director
thereby is designated as the Project Director for the ARTS.
Standard Agreement
Revised ised January 2021. A Reason to Survive
Page 8 of 20
City of National. City and
13. INDEMNIFICATION AND HOLD HARMLESS. To the maximum
extent provided by law, ARTS agrees to defend, indemnify and hold harmless the City
of National City, its officers, officials, agents, employees, and volunteers against and
from any and all liability, loss, damages to property, injuries to, or death of any person
r p r_s_ont, .r d !Lc I a i ms_,A e-m ands, - su-it ti c n _procead-in. s_,_r_eas r .l l tt rne_ys
fees, and defense costs, of any kind or nature, including workers' compensation claims,
of or by anyone whomsoever, resulting from or arising out of ARTS' performance or
other obligations, under this Agreement, or arising either directly or indirectly from any
act, error, omission, or negligence of ARTS or its contractors, licensees, inm itee ,
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 CITY, its agents, officers, employees or
volunteers:: CITY will cooperate reasonably in the defense ,of any action, and ARTS
shall employ .competent counsel, reasonably acceptable to the City Attorney.
The indemnity, defense, and hold harmless obligations contained herein
shall survive the termination f this Agreement for any alleged or actual omission, act,
or negligence under this agreement that occurred during the term of this agreement.
13.1 THIRD PARTY INDEMNITY. ARTS shall not invite third party
organizations onto the property known as the ARTS CENTER until said third party
organization furnishes CITY a written agreement in which it indemnifies and holds CITY
harmless, upon terms satisfactory to CITY,
13.2 WAIVERS FROM THIRD PARTIES. ARTS 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.
14. INSURANCE. ARTS, at its sole cost and expense, shall purchase
and maintain, and shall require its subcontractors, and third party organizations ARTS
invites onto the property to purchase and maintain, throughout the term of this
agreement, the following insurance policies:
(a) If checked, Professional Liability Insurance (errors and
omissions) with minimum limits of $1,000,000 per occurrence.
(b) Automobile Insurance covering all bodily injury and property damage
incurred during the performance f 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. 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.
Commercial General Liability Insurance, with minimum limits of
either $2,0007000 per occurrence and $4,000,000 aggregate, or
$1,000,000 per occurrence and $2,000,000 aggregate with a
$2,000,000 umbrella policy, covering all bodily injury and property
damage arising out of its operations, work, or performance under this
agreement. The policy shall name the CITY and its officers, agents,
employees, and volunteers as additional insureds, and a separate
Standard Agreement
Page 9 20
City of National City and
Revised January 2021 A Reason to Survive
additional insured endorsement shall be provided. The general
aggregate limit must apply solely to this ,"project" or "location". The
"project" or "location" should be noted with specificity on an
endorsement that shall be incorporated into the policy. The
Commercial General Liability rpquired by this Section must include
Sexual Misconduct Liability coverage.
Workers' Compensation Insurance in an amount sufficient to meet
statutory requirements covering all of ARTS 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
ubrogartin ini favor of the CITY. Said endorsement shall be provided
prior t.o comm n em nt.of w r under t ii Agreement.
SULTA T:h '.,n :: l s subject to the Californiaif r r '
Compensation and Labor laws, ARTS shall execute- a . D l 'rati n to
that effect. Said Declaration shall be provided- to ITS' by CITY.
(f) The aforesaid policies shall constitute primary insurance as to the
CITY, its officers, officials, 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 3 days prior
written -notice to the CITY'CITY's Risk Manager, at the address listed in
subsection (h) below, of cancellation or material change.
(g) If required insurance coverage is provided on a "claims made" rather
than "occurrence" form, the CITY 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.
(h) The Certificate Holder for all policies of insurance required by this
Section shall be:
0)
G)
Standard Agreement
City of National City
o Risk Manager
12 3 ational City Boulevard
National City, CA 91950-4397
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:11 according to
the current Best's Key Rating Guide, or a company of 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 List of Approved Surplus Line
Insurers `LASL1" and otherwise meet rating requirements.
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 l Manager. if
ARTS does not keep ail insurance policies required by this Article 14
Page 10 of2
City of National City and
Revised January 2021 A Reason to Survive
in full force and effect at all times during the term of this agreement,
the CITY may treat the failure to maintain the requisite insurance as
breach of this agreement and terminate the agreement as provided
herein.
-(k)AI.Lde.ducti bies - .n.d-s.e.Ifinsure-d-r te.ntie.ns_in-ex .e.ss-of $. - 1- - - -must.
be disclosed to and approved by the CITY. CITY reserves the right to
modify the insurance requirements of this Article 145 including limits,
based on the nature of the risk, prior experience, insurer, coverage, or
other special circumstances.
I.f ARTS maintains broader coverage or higher limits (or both) than the
:minimum Limits shown above, the CITY shall be entitled to the broader
coverage or •higher limits (or both) maintained by ARTS. Any available
insurance proceeds in excess of the specified minimum .lirits of
insurance and coverage shall be available to the CITY..
15. LEGAL FEES. if any CITY or ARTS brings a suit or action against
the other arising from any breach of any of the covenants or agreements or any
inaccuracies in any of the representations and warranties on the part of the other party
arising out of this agreement, then in that event, the prevailing party in such action or
dispute, whether by final judgment or out -of -court settlement, shall be entitled to have
and recover of and from the other party all costs and expenses of suit, including
attorneys' fees.
For purposes of determining who is to be considered the prevailing party, it is
stipulated that attorneys fees incurred in the prosecution or defense of the action or suit
shall not be considered in determining the amount of the judgment or award. Attorney's
fees to the prevailing party if other than the CITY shall, in addition, be limited to the
amount of attorny's fees incurred by the CITY in its prosecution or defense of the
action, irrespective of the actual amount of attorney's fees incurred by the prevailing
party.
16. TERMINATION.
This agreement may be terminated with or without cause by the
CITY. Termination without cause shall be effective only upon 6 -
d ay's written notice to ARTS. During said -day period ARTS 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 ARTS 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 effected by delivery of
written Notice of Termination to ARTS as provided for herein.
CITY further reserves the right to immediately terminate this
agreement upon: the filing of a petition in bankruptcy affecting
ARTS; 2 a reorganization of ARTS for the benefit of creditors; or(3)
Standard Agreement
Page 11 of 20 City ofNational City and
Revised January 2021 A Reason to Survive
a business reorganization, change in business name or change in
business status of the ARTS.
17. HAZARDOUS MATERIALS LAWS. As used in this Article 17, the
term "Hazardous Materials' Laws' means arty.. and I11federaf,_state1. local laws .. .1 .
ordinances, rules, decrees, orders, regulations r courtdecisions (including the so-
called '1co 1 1 n l w11 relating to hazardous dour substances, hazardous materials,
hazardous waste, toxic substances, environmental conditions on, under, or about the
Property, soil and ground water conditions, or other similar substances or conditions.
The following legal authority is 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 2
UPSC, . 'Section ::9 01 seq.); the Hazardous Materials Transportation Act, as
amended 9 U.S.C., Section 1801 et seq.); and the Resource Conservation and
Recovery Act of 1976, as amended 2 UP&C., Section 6901 et seq.).
17.2 HAZARDOUS MATERIALS DEFINITION. As used in this Article
the term u Hazardous Materials" means any chemical, compound, material, substance
or other matter that:
(a) 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;
is controlled, referred to, designated in or governed by any
Hazardous Materials Laws;
(c) gives rise to any reporting, notice or publication requirements under
any Hazardous Materials Laws, or;
(d) is any other material or substance giving rise to any liability,
responsibility or duty upon the CITY or the ARTS with respect to any
third person under any Hazardous Materials Law.
17.3 ARTS REPRESENTATIONS AND WARRANTIES. ARTS
represents and warrants that, during the Term or any extension thereof, ARTS 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 ARTS'
maintenance obligations provided elsewhere in this Agreement:
(a) ARTS shall not cause or permit any Hazardous Materials to be
brought, kept or used in or about the property by ARTS, its agents,
employees, assigns, contractors or invitees, except as required by
ARTS' permitted use of the propertyy in the normal course of
operations;
Any handling, transportation, storage, treatment, or usage by ARTS
of Hazardous Materials that is to occur on the property following the
Effective Date shall be in compliance with all applicable Hazardous
Materials Laws;
Standard Agreement Page 12 of 20
City of National City and
Revised January 2021 A Reason to Survive
(c) Any leaks, spills, release, discharge, emission or disposal of
Hazardous Materials which may occur on the Property following the
Effective Date shall be promptly and thoroughly cleaned and
removed from the Property by ARTS 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;
(d) Nfriable asbestos shall be constructed, placed on, deposited,
stored, disposed of, or located by ARTS on the property;
No underground improvements, including but not limited to treatment
or storage tanks, or water, gas or oil wells shall be located by ARTS
on the property without the CITY's prior written consent.
(f) ARTS shall promptly supply the CITY with copies of all notices,
reports; correspondence, and submissions made by ARTS 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
17.4 ARTS 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, ARTS shall either:
(a) pay the claim and remove the lien from the Property, or
(kb) 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.
17.5. At the end of this agreement, ARTS 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.
18. ARTS shall not voluntarily or involuntarily assign or otherwise
transfer all or any portion of its rights and duties under this agreement without the
Mrs prior written consent. Any attempted assignment or transfer without the CITY's
prior written consent shall be void.
18.1 ARTS may engage third party organizations to provide special
services or programming at the Property if: a) CITY consents, in writing, to the third
party organizations' proposed use of the Property and; b) the third party organization
obtains policies of insurance acceptable to the City's Risk Manager and Article 14 of
this agreement.
Standard A'reement
Revised January 2021 A Reason on to Survive
Page 13 of 2
City of la icy n. i and
19. EVENTS OF DEFAULT; LT .E IE IES. The following sub -articles
shall apply if either ARTS or 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"):
IU mrRTv:oAvcoRREcTIoN OF DEFAULT 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 3 days to correct
the default.
19.2 EXTENDED CORRECTION OF DEFAVI.j. If the defaulting
party determines that more than . thirty 3 days is required t . correct •the Default, the
defaulting party must provide the otherparty 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 days from the date of the written notice of default.
19.3 REMEDIES FOR FAILURE E TO CORRECT
...DEFAULT. If the
defaulting party fails to comply with Article i g.1. or 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.
20. ABANDONMENT. ARTS 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 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 ARTS. Any exceptions must be submitted in writing to
the City Manager or designee for approval.
21. ARTS' DUTY TO REPAIR CASUALTY. ARTS 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 are: (a) to be performed at ARTS' sole cost and expense; (b)
subject to all other terms and conditions of this agreement.
21.1 CONSTRUCTION PROVISIONS. In the event of any
reconstruction of the property, fixtures or improvements required of ARTS pursuant to
this Article, ARTS shall repair the property, and repair or rebuild such fixtures and
improvements, to substantially the same condition they were in immediately preceding
such casualty.
21.2 NO ABATEMENT. In the event of reconstruction,
replacement, or repair by ARTS pursuant to this Article, ARTS shall continue its
Standard Agreement
Page 14 of 2
City ofI National City and
Revised. January 2021 A Reason to Survive
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. ARTS 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)
ART-' Personal -Property; or--any-inconvenience - rannoyance- w i n d-by-such
damage, reconstruction, or replacement.
21.3 MAJOR DESTRUCTION. Notwithstanding any of the foregoing
provisions of this Article to the contrary, if, at any time after the Effective Date, (a) the
improvements are damaged or destroyed tthe 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 onehundred and . eighty 1. g. days after the
casualty, then ARTS shall have the -right to terminate this agreement upon thirty 0)
days' prior vvritten notice to the CITY.
22. CONDEMNATION. ARTS 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) 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 ARTS to use the remainder of the property
for the purposes permitted by this agreement.
22.1 In the absence of such written 'notice from a condemning
authority, ARTS may terminate this agreement within twenty 2 days after the
condemning authority shall have taken possession.
22.2 CONTINUATION OF OPERATING AGREEMENT AFTER
CONDEMNATION. If this agreement is not terminated by ARTS, 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.
22.3 AWARD. All monies awarded in any condemnation shall belong
to the CITY. The CITY shall have no liability to ARTS for any award not provided by the
condemning authority.
23. SALE OR MORTGAGE. The CITY may, pursuant to existing and
subsequently enacted CITY ordinances and State laws, at any time, and without the
consent of ARTS, vacate, sell, purchase, exchange, transfer, assign, lease, encumber
or convey the C TY's interest in whole or in part, in the property (collectively referred to
in this Article as a "Sale"). The CITY shall provide to ARTS written notice of the CITY's
intent to a Sale or discontinuance pursuant to this Article at least ninety days prior
to said proposed transfer.
23.1 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
Standard Agreement -
Page 15 of 20
City ofNational City and
Revised January 2021 A Reason to Survive
ARTS and ARTS successors and assigns arising from this Agreement because of any
act, occurrence, or omission of the CITY occurring after such Sale.
24. RIGHT OF ENTRY. CITY, its agents, employees, and
contractors may enter the Property at any time with or without notice to ARTS to: (a)
respond to health and safety concerns; (b) inspect the property
and improvements; determine whether ARTS is complying with its obligations in this
Agreement (including its obligations with respect to mplian with Hazardous
Materials Laws); (d) post notices of non -responsibility or similar notices; inspect
the progress of construction of any irprmnt; 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
24.1 All work enumerated in this Article 24 must be done as promptly
as reasonably possible and so s to cause as little interference to ARTS as reasonably
possible.
25. NOTICES. All notices or other communications required or
permitted hereunder shall be in writing, and shall be personally delivered; or sent by
overnight mail (Federal Express or the like); or sent by registered or certified mail,
postage prepaid, return receipt requested; or sent by ordinary mail, postage prepaid; or
telegraphed or cabled; or delivered or sent by telex, telecopy, facsimile or fax; and shall
be deemed received upon the earlier of i if personally delivered, the date of delivery to
the address of the person to receive such notice, ii if sent by overnight mail, the
business day following its deposit in such overnight mail facility, (iii) if mailed by
registered, certified or ordinary mail, five days (ten 1 days if the address is outside
the State of California) after the date of deposit in a post office, mailbox, mail chute, or
other like facility regularly maintained by the United States Postal Service, (iv) if given
by telegraph or cable, when delivered to the telegraph company with charges prepaid,
or (v) if given by telex, telecopy, facsimile or fax, when sent. Any notice, request,
demand, direction or other communication delivered or sent as specified above shall be
directed to the following persons:
CITY: City Manager
City of National.City
1243 National City Boulevard
National City, CA 91 - 39 '
With a copy to:
Library & Community Services Director
City of National City
1401 National City Boulevard
National City, CA 91950
Standard Agreement Page 16 of 20
Revised January 2021 A Reason to Survive
City of National City and
A TS: A Reason to Survive, Inc.
Executive Director
200 East 12th Street
National City, CA 91950
25.1 Notice of change of address shall be given by written notice in
the manner specified in this Section. Rejection or other refusal to accept or the inability
to deliver because of changed address of which no notice was given shall be deemed to
constitute receipt of the notice, demand, request or communication sent. Any notice,
request, demand, direction or other communication sent by cable, telex,. tplecopy,
facsimile or fax must be confirmed within forty-eight hours by letter 'mailed or
delivered as specified in. this Article.
26. ARTS' DUTY TO KEEP RECORDS. ARTS shall, at all times
during - the term, and for a period of fiveyears following .expiration or earlier
t rmination 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 ARTS 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 ARTS in the operation of its business. Said
records must be supported by source documents such as receipts, invoices, sales slips,
cash register tapes, purchase invoices or other pertinent documents.
26.1 CIT WS RIGHT TO AUDIT. All ARTS 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 ARTS' records pertaining to (a) construction undertaken pursuant to
the rights conferred on ARTS under this Agreement, and (b) its operations on the
Property, including , without limitation , any records pertaining to ARTS' use of utilities
on the Property. The cost of said audits shall be borne by the CITY, except that ARTS
shall provide to the CITY, at ARTS' 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 ARTS' use
of the Property.
27. ADMINISTRATIVE PROVISIONS.
A. Amendment to this Agreement. The terms of this agreement may
not be modified or amended except by an instrument in writing
executed by each of the parties hereto.
E. Applicable Law. This agreement shall be governed by and construed
in accordance with the laws of the State of California. The venue for
any legal action arising under this agreement shall be in either state or
federal court in the County of San Diego, State of California. .
Standard rem n t
Revised January 2021 A Reason to Survive
Page 17 of 20
City of National City and
C. Assignment & Assumption of Rights. ARTS shall not assign this
agreement, in whole or in part, to any other party without first obtaining
the written consent of CITY.
D. Audit. If this agreement exceeds ten thousand dollars ($10,000), the
parties... -shall.._. -be subjeLto the examination and audit of the ate
Auditor for a period of three years after final payment under the
agreement, per Government Code Section 8546,7.
E. Authority. ARTS 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 furthpr action, . and that the person executing this agreement on
behalf of ARTS is the duly designated argent of ARTS and is authorized
F. 'Captions.. Any 6aptiOns to, r headingsof, the .sections orsubsections
of this agreement are solely for the convenience of the parties hereto.,
are not a part of this agreement, and shall not be used for the
interpretation or determination of the validity of this agreement or any
provision hereof.
G. Computation of Time Periods. if any date or time period provided for
in this Agreement is or ends on a Saturday, Sunday or federal, state or
legal holiday, then such date shall automatically be extended until 5:00
p.m. Pacific Time of the next day which is not a Saturday, Sunday or
federal, state, or legal holiday.
H. Conflict of Interest and Political Reform Act Obligations. During
the term of this agreement, ARTS shall not perform services of any
kind for any person or entity whose interests conflict in any way with
those. of the City of National City. ARTS shall at all times comply with
the terms of the Political Reform Act and the National City Conflict of
Interest Code. ARTS shall immediately disqualify itself and shall not
use its official position to influence in any way any matter coming
before the CITY in which ARTS has a financial interest as defined in
Government Code Section 87103, ARTS represents that it has no
knowledge of any financial interests that would require it to disqualify
itself from any matter on which it might perform services for the CITY.
I. Construction. The parties acknowledge and agree that (0 each party
is of equal bargaining strength, (ii) each party has actively participated
in the drafting, preparation and negotiation of this agreement, (iii) each
such party has consulted with or has had the opportunity to consult
with its own, independent counsel and such other professional
advisors as such party has deemed appropriate, relative to any and all
matters contemplated under this agreement, (iv) each party and such
party's counsel and advisors have reviewed this agreement, (v) each
party has agreed to enter into this agreement following such review
and the rendering of such advice, and (vi) any rule or construction to
the effect that ambiguities are to be resolved against the drafting party
1
Standard Agreement gent Page 18 of i
Revised January 2021 A Reason to Survive
City oflationaJ City and
shall not apply in the interpretation of this agreement, or any portions
hereof, or any amendments hereto.
J. Counterparts. This agreement may be executed in multiple
counterparts, each of which shall be deemed an original, but all of
which, th &, h l I. co n t iturt b t-..one- ndit s me instrument.
K. Entire Agreement. This agreement supersedes any prior
agreements, negotiations and communications, oral or written, and
contains the entire agreement between the parties as to the subject
matter hereof. No subsequent agreement, representation, or promise
made by either party hereto, or by or to n employee, officer, agent or
representative of any partyhereto shall be f any effect unless it isin
writing and executed by the party to e bu:nd: thrr
L. Exhibits'and Schedules. The Exhibits ='and Schedulesattached
hereto are hereby incorporated herein by this reference .for all
purposes. To the extent any exhibits, schedules, or provisions thereof
conflict or are inconsistent with the terms and conditions contained in
this agreement, the terms and conditions of this agreement shall
control.
M. 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' 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, acts of
terrorism, civil commotion and fire or other casualty, legal actions
attacking the validity of this agreement or the CITY or ARTS'
operations of the property, or any other casualties beyond the
reasonable control of either party ("Force I ajeure" , 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.
N. Independent Contractor. ARTS 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.
O. No Obligations to Third Parties. Except as therise expressly
provided herein, the execution and delivery of this agreement shall not
be deemed to confer any rights upon, or obligate any of the parties
hereto, to any person or entity other than the parties hereto.
P. Partial Invalidity. Ifanyprovision 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
Standard Agreement Page 19 of 20
Revised January 2021 A Reason to Survive
City of National City and
provision shall be valid and enforceable to the fullest extent permitted
by law.
Q. Subcontractors or Subconsultants. The CITY is engaging the
services of the ARTS identified in this agreement. ARTS shall not
subcontract any portion of the work, unless such subcontracting was
part of the original proposal or is allowed by the CITY in writing, or
within the terms of this agreement. In the event any portion of the work
under this agreement is subcontracted, the subconsultant(s) shall be
required to comply with and agree to, for the benefit of and in favor of
the CITY, both the insurance provisions and the indemnification and
hold harmless provisions of this Agreement.
R. Successors and Assigns. This agreement shall be binding upon and
shall inure to the benefit of the successors and assiris of the parties
hereto.
S. Waiver. The waiver or failure to enforce any provision of this
agreement shall not operate as a waiver of any future breach of any
such provision or any other provision hereof.
IN WITNESS WHEREOF, the parties hereto have executed this agreement on.
the date and year first above written.
CITY OF NATIONAL CITY
By
��ASON TO SURVIVE (ARTS)
(Corporation — signatures of two corporate
officers required)
(Partnership or mole proprietorship — one
signature)
andra &lelo '8oJL' p Mayor
APPROVED AS TO FORM:
By'
ab i eIa Torres
Deputy City Attorney
Standard Agreement
Revised January 202
By:
By:
Page 20 of 20
}
ffrifir /1/4. zi 7>(-4
(Print)
1-10-64117fric i)1,/,4qc
(Title)
(Print)
(Title)
aa r
Aare
14/ 6nel le)
City of National City and
:1 Reason to Stirti. ive