HomeMy WebLinkAboutA Reason to Survive - Maintenance Agreement of Arts Center Building - 2021AGREEMENT
BY AND BETWEEN
THE CITY Y F 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 AL CITY, a municipal l 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 m onl 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 C1TY's 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
f thCITY;
WHEREAS, ARTS is a California non-profit corportation skilled in creating public
art, including capital arts projects;
WHEREAS, the CITY desires to employ ARTS to intin the ARTS CENTER for
the benefit of tho u it and ARTS is willinand ablet 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, 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, THE PARTIES HERETO DO MUTUALLY AGREE AS
FOLLOWS:
ENGAGEMENT OF CONSULTANT. The CITY agrees to engage ARTS
to maintain and operate the real property located at 200 East 12th Street, National City,
California and known as the ARTS CENTER, in accordance with all th.e 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
recovable license to enter and operate the ARTS CENTER, subject to the covenants and
conditions hereinafter set forth, as of 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
exclusive on -site parking spaces.
1.2 OWNERSHIP OF PERSONAL PROPERTY AND IMPROVEMENTS. 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 of the effective date of this
agreement shall remain the property of the CITY during the Term.
ARTS shall not remove any improvements or fixtures from the
property and shall not waste, destroy, or modify any improvements
or fixtures, except as permitted by this agreement.
1.2.2 Ownership 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 1, 2022 through December 31,
2022. 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 intenton 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 13 (hereafter "Public
Art"), throughout the community utilizing various media; c) community event banners; d)
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public gateway improvements, that may include aspects of Public A t 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, but not exclusively limited
to, the annual Dia de los Mu rt s and Community Services Day programs and events.
ARTS is not obligated to maintain permanent public art or publicart pieces unless the
parties agree. The scope of services described in this Article 3 are in addition to all other
property maintenance nan 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
($1 25, . Of this $125,000, ARTS must obtain at least $25,000 for the Projects and
Programs through fundraising.
32 METHOD __ OF 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 of 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.
32 WAIVER OF ARTISTIC RIGHTS. ARTS expressly waives and disclaims
any residual rights in the Projects and Programs granted to ARTS by state or federal law,
including the California Civil Code, Articles -9 O, relating to intellectual property and
artistic works and Title 17 United States Code Section 106A and Section 1 3 d relating
to artistic rights.
3.4 HOURS OF OPERATION. ARTS will open the property known as the
ARTS CENTER to the public Monday through Frida from 1 : aYm. t 5: .m.
� p
3.5 SERVICE FEES. ARTS shalt 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 f 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 ly preceding quarter. Each quarterly report shall contain, at a minimum, the
total number r f a) 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.
The quarterly reports shalt also include reports on ARTS' operating and maintenance
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plans, long-term and short-term goals, and any other pertinent statistics. The information
ation
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 ay. ARTS will deliver the quarterlyre rt tthe City Manager or designee
within 30 days of the end of each quarter.
3.7 ANNUAL 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 days following June 30 of each year during the Term.
3 VOLUNTEER 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 r general liability.
3.9 ALCOHOL USE. 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.
(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'bartender's license located at the
property.
The event host must obtain approval from the California Department of
Alcoholic Beverage Control to serve alcohol.
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.
When third parties (with permission from ARTS) serve alcoholic
beverages, the following additional requirements shall apply:
. 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;
3. ARTS shall reserve the authority to immediately terminate
an event if ARTS determines, in its sole discretion, the
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City of National City and
third party has riot complied with any requirements of this
Article 3.9.
4. ARTS shall provide the CITY a copy of their third party
rental agreement template for approval.
4. CONSIDERATION. ARTS' payment of $1.00 to the CITY, in addition
to ARTS' pr vlsi n of Projects and Programs under Article 3 of this agreement and the
mutual benefit to be derived from ARTS' performance under the remainder of this
agreement, shall serve as the sole consideration due the CITY for ARTS license to use
and operate the ARTS CENTER.
5. OWNERSHIP RIGHTS AND LICENSES To ARTWORK: 'ORK WAIVER.
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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 980-989, 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. .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.
.1 OWNERSHIP OF MATERIALS. Ownership of all materials and
concepts produced for the CITY under this agreement, including but not limited to
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 respectto 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 this r r t.
5.3 SURVIVAL The provisions of Article 5.0 to 5.2 shall survive the
termination fthis agreement.
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�COMPLIANCE WITH LAWS. ARTS, at its sole discretion, shall
procure, maintain, and hold available for the CITY's inspection any oernrental license
or 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 ent 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, re lunation , orders, covenants and restrictions of record, and
requirements in effect during the Term regulating the use by ARTS of the ARTS CENTER.
7. UTILITY SERVICES. The CITY shall be responsible for maintaining
reasonable utility services to the ARTS CENTER. The CITY shall pay 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 fisted [n 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. AT.LPAIRS AND MAINTENANCE OBLIGATIONS. 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 lic 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 $3,0o , the CITY
will consider the nature and priority of the work and available funding to determine if
and when such repairs will be completed.
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8.2 CITY_ BIGHT TO INSPECT, ARTS shall permit the CITY to enter
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Revised January 202 l A Reason to Survive
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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 of the ARTS CENTER. However, nothing contained in this Article 8.2 shall
create any duty on the part of the CITY to do any work which, under any provision of
this agreement ARTS may be required to d,
9. ALTERATIONS. ARTS may alter, replace, add to, change, or
construct additional improvements to the ARTS CENTER, as ARTS may find
necessary or convenient for its operation of the property. Any alteration performed by
ARTS under this Article 9 shall be performed: ARTS' sole cost and expense; b)
with the CITY's prior written consent; and c) in accordance with construction plans
submitted to nd approved by the CITY.
.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.
,2 PROPOSED PLANS. In its sole discretion, the CITY may require
ARTS to do any of the following: submit a complete set of proposed plans of any
alterations to the CITY; b) apply for and receive a permit it from the Building
Department to complete any alterations; c) within sixty 6 days of a written request,
furnish CITY with a complete set of "as -built" plans for any CITY -approved alterations.
.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 a.s set forth in California Labor Code, including but not limited to,
Sections 1720, 1720.2, 1720,3, 1720.4, and 1771, Consultant is solely responsible to
determine if Stateprevailing wage rates apply and, if applicable, pay such rates in
accordance with all laws, ordinances, rules, and regulations.
10. - EC .NICE' .ENS: STOP NOTICES. ARTS shall pay, or
cause to be paid, the total costand expense of all works of improvement, as that
phrase is defined in the Mechanics Lien Law in effect attime 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 as the ARTS
CENTER, ARTS shall cause the lien or stop notice to discharged of record within
one hundred eighty 1days 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, mat rialm n, or others for
work performed, or materials or suppliesfurnished for ARTS or persons claiming.
under ARTS.
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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 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.
10.2 NOTICE OF NONWRESPONSIBILITY. The CITY or its
representatives shall have the right to post and keep posted on the property notices
on non -responsibility or such other notices which the CITY may deem to be proper
for the protections of the CITY's interest in the property. ARTS shall, before the
commencement nt 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 positing
of such notices.
11. DEFINITION 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, local, federal income tax,
or any real or personal property to;, increases in taxes attributable to ARTS'
operation of the property, or; (c) any taxes which are essentially payments to
governmental agency, other than the CITY, for the right to make improvements to th
property.
11.1 POSSESSORY INTEREST. Notwithstanding Articles 'I to ,2,
ARTS acknowledges, that this agreement may create a posessory 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 open 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 ordrin the Term. ARTS shall pay any Taxthat 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.
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13. INDEMNIFICATION AND HOLD ML SS. 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 or
persons, and all claims, demands, suits, actions, proceedings, reasonable attorneys'
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 othr
obligations under this Agreement, or arising either directly or indirectly from, any act,
error, omission, or negligence of ARTS or its contractors, licensees, inmvitees, 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 of this r em nt for any alleged or actual omission, act, or
negligence under this agreement that occurred during the term of this agreement.
13i 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 ment 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:
L If checked, Professional Liability Insurance (errors and omissions)
with minimum limits of $, , o r occrrenc .
(b) 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. 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.
(c) Commercial General Liability Insurance, with minimum limits feither
$2,000,000per occurrence and $4,000,000 aggregate, or $1,000,000
per occurrence and $2,O00O0O aggregate with a $2,000,000 umbrella
policy, covering all bodily injury and property damage arising out of its
operations, work, or prform nce underthi agreement. The policy shall
name the. CITY and its officers, agents,employees, and volunteers as
additional insureds, and a separate additional insured endorsement
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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 required by this Section must include
Sexual Misconduct Liability coverage,
(d) 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 subrogation in
favor of the CITY. Said endorsement t shall be provided prior to
commencement of work under this Agreement.
(e) If CONSULTANT has no employees subject to the California Workers'
Compensation tion and Labor laws, ARTS shall execute a Declaration to
that effect. Said Declaration shall be provided to ARTS by CITY.
(f) The aforesaid policies shall constitute primary inurance astothe 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 (30) 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 dateof this agreement.
(h) The Certificate Holder for all policies of insurance required by this
Section shall be:
(j)
City of National City
cio risk Manager
2 3N tion l 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 ANII 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
"L SLI"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. Manager. If ARTS does not keep
all insurance policies required by this Article 1in full force and effect
at all time. during the term of this agreement, the CITY may treat the
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failure to maintain the requisite insurance as a breach of this agreement
and terminate the agreement as provided herein.
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 14, including limits,
based on the nature of the risk, prior experience, insurer, coverage, or
other special circumstances.
(I) If ARTS maintains broader coverage or higher limits (or both) than the
minimum r 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 limits of
insurance and coverage shall be available to the CITY.
1, 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 aftorneysl
fees.
For purposes of determining who is to be considered the prevailing party, it is
stipulated that attorney's 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 attorney'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 6O y's written
notice to ARTS. During said 6O day period ARTS shall perform all
services in accordance with this agreement.
(b) 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.
(c) Termination with or without cause shall be effected by delivery of
written Notice of Termination tion to ARTS as provided for herein,
(d) CITY further reserves the right to immediately terminate this
agreement upon: 1 the filing of a petition in bankruptcy affecting
ARTS; 2 reorganization of ARTS for the benefit of creditors; or(3)
a business reorganization, change in business name or change in
business status of the ARTS.
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17. IHAZARDOU$M_ ;TE I LS LAWS. As used in this Article 17, 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 or 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, s amended 2 4
U.S.C., Section 9601 et 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 U,S.C., Section 6901 et sot .
17,2 HAZARDOUS MATERIALS DEFINITION. As used in this
Article the term " Hazardous Materials" means any chemical, compound, material,
substance or other matter that:
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 tion with other materials;
(b) is controlled, referred to, designated ted in or governed by any
Hazardous Materials Lars.;
gives rise to any reporting, notice or publication requirements under
any Hazardous Materials Lars, r;-
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:
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, s, 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;
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
Standard Agreunient
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City oE National City and
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•
•
•
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) No friable 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 C1TY's prior written consent.
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 2 days following such
filing, or(II) before any governmental authority commences proceedings to sell the
Property pursuant to the lien, ARTS shall either:
pay the claim and remove the lien from the Property, or
furnish either: 1 bond or cash deposit reasonably satisfactory o
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.
.5. At the end f 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.
PI 8. ARTS shall not voluntarily or involuntarily assign or otherwise
transfer all or any portion ofits rights and duties underthi reement witt te CITY's
prior written consent. t. Any attempted assignment or transfer without the CITY'prior
written consent shall be void.
18.1 ARTS may engage third party organizations to provide special
services or programming at the Property if: CITY consents, in writing, to the third party
organizations' proposed use of the Property and; the third party organization obtains
policies of insurance acceptable to the City's Risk Manager and Article 14 of this
agreement.
19. EVENTS OF DEFAULT;_ M . The following sub -articles
shall apply if eithr ARTS or thCITY neglects, fails to perform, or fit to observe any of
their respective obligations under the terms, covenants, or conditions contained in this
greement ("Default";
Standard Agreement
Page 13 of
City of National City and
Revised January 2021 A Reason to Survive
19. THIRTY -DAY CORRECTION OF DEFAULT. If either ARTS or t h e
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 F DEFAULT. If the defaulting party
determines that more than thirty 3 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 nd r this irti l 13 1.2 and, in any case, must correct such Default within ninety
(90) days from the date of the written notice of default.
19.3 REMEDIES FOR FAILURE TO CORRECT DEFAULT. If the
defaulting party fails to comply with Article 19.1. or 19.2, then the non -defaulting park
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
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: to 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 ub t nti lly 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 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 riot be entitled to any compensation or damages from CITY for
loss of use of the whole l r any part of the property; ARTS' Personal Property; or
Standard Agreement
City of National City and
Revised January 202 A Reason to Survive
Page 14 of 2
(c) any inconvenience or annoyance occasioned by such damage, reconstruction, or
replacement.
21.3 MAJOR.wDESTR CTIO . Notwithstanding ndin 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 to the extent of more than twenty-five percent
(25%) of their replacement cost, or the damage is such that the improvements cannot
be repaired and restored within one hundred and eighty 0 days after the casualty,
then ARTS shall have the right to terminate this agreement upon thirty days' prior
written notice to the CITY.
22. CONDEMNATION. ARTS may terminate this agreement within
twenty days after the date that a condemningauthority (by a party other than the
CITY) takes possession of the property by delivery of written notice of such condemnation
if: all of the property is taken under eminent domain proceedings; orb 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 shalt have taken possession,
22.2 CONTINUATION OF O ATING AGREEMENT 'T 1
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 byte 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 C1TY'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 MITY's intent
to a Sale or discontinuance pursuant to this Article at least ninety 9 days prior to said
proposed transfer.
23T1 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
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. RIGHTOF OF_ENTRY. CITY, its agents, employees., and contractors
may enter the Property at any time with or without notice to ARTS to: respond to
Standard Agreement Page 15 of
Revised January 2021 A Reason to Survive
City of National City and
health and safety concerns; inspect the property and improvements; determine
whether ARTS is complying with its obligations in this Agreement (including its obligations
with respect to compliance with Hazardous Materials Laws); (d) post notices of n-
r spon i ility or similar notices; 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
24.1 All work enumerated in this Article 24 must be done as promptly
as reasonably possible rid so as 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 it or fax; and shall
be deemed received upon the earlier of (0 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 5 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 if given by
telex, telecopy, facslrnHe oor fax, when sent. Any notice, request, demand, direction r
other communication delivered or sent as specified above shall be directed to the
following persons:
Standard Agreement
CITY: City Manager
City of National City
1243 National City Boulevard
National City, CA 50-43 '
With a copy to:
Library & Community Services Director
City of National City
1401 National City Boulevard
National City, CA 1 o
ARTS:ARTS:A Reason to Survive, Inc.
Executive Director
200 East 12th Street
National City, CA 1 50
Page 16 of 20
ty of Nationa!City and
Revised January 2021 A Reason to SuMve
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, telecopy,
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 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 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 CITY'S 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 its operations on the Property,
including , without limitation , any records pertaining to ARTS' use of utilities on the
Property. The cost of said audits sh ll 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.
tandardAgregiment
27. ADMINISTRATIVE PROVISIONS.
A. Amendment to this Agreement. The terms of thiagreement may not
be modified or amended except by an instrument in writing executed by
each of theparties hereto.
B. 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.
C. Assignment & Assumption of Rights. ARTS shalt 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 $1 o,00 , the
parties shall be subject to the examination and audit of the State Auditor
for a period of three 3 years after final payment under the agreement,
per Government Code Section 8546.7.
Page 17 of 20
City or National City Find
Revised Janualy 2021 A Reason to Survive
Standard Agreement
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 further action, and that the person executing this agreement on
behalf of ARTS is the duly designated agent of ARTS and is authorized
to do so.
F. Captions. Any captions to, or headings of, the sections or subsections
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 f 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 ht perform services for the CITY.
Construction, The parties acknowledge and agree that i each party
is of equal bargaining strength, (ii) each party has actively participated
in the drafting, preparation and negotiation of this agreement,Oil) 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 resolved against the drafting party 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,
together, shall constitute but one and the same 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.
City of National City and
Revised January 2021 A Reason to Survive
Page 1
No subsequent agreement, representation, or promise made by either
party hereto, or by or to an employee, officer, agent or representative of
any party hereto shall be of any effect unless it is in writing and executed
by the party to be bound thereby
L. Exhibits and Schedules. The Exhibits and Schedules attached 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 ail
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 M.aje r " , 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 Contrpctor, 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 ObligationsThird Parties. Except as otherwise 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, 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.
Q. Subcontractors or Subconsultants} The CITY is engaging the
services of the ARTS identified in this agreement. ARTS shall riot
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 sub on It nt shall be required
to comply with and agree to, for the benefit of and in favor of the CITY,
Standa-rd Agreement Page 19 of 20 City of National City and
Revised January 2021 A Reason to Survive
provision shall be valid and enforceable to the fullest extent permitted
by law.
Q. Subcontractors or subc n ult r ts. 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 sLlhconsult nt(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 assigns 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 NATION
By:
A'an.'a ote
APPROVED AS TO FORM:
B
Gabriela Trr
Deputy City Attorney
St r Atzree n 11t
Revised January 2021
REASON TO SURVIVE (ARTS)
(Corpor tion — signatures of two corporate
officers required)
(Partnership or:, Sole proprietorship one
signature);
By:
By:
Page 20 of?
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Exhibit
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EXHIBIT B - ARTS CENTER. 200 East 12th Street, National City CA