CONTRACT NO.: ___________
APPROVED: ___________
FACILITIES USE AGREEMENT
This “Facilities Use Agreement” is made and entered into this 2nd day of July, 2024, by and between the CHINO COMMUNITY THEATRE and CHINO COMMUNITY CHILDREN’S THEATRE, each a California non-profit corporation, (hereinafter collectively referred to as “Theatre”) and the CITY OF CHINO, a California municipal corporation (hereinafter referred to as “City”), together referred to as “Parties.”
WITNESSETH
WHEREAS, City recognizes the benefit that local theater brings to the community; and WHEREAS, Theatre is willing and able to provide community theater programs to the City and its environs, but lacks the resources to provide the facilities to locate such community theatre programs; and WHEREAS, City is able to provide the physical facilities that Theatre requires in order to operate the nationally recognized Chino Community Theatre and Chino Community Children’s Theatre programs for the community.
NOW, THEREFORE, in consideration of the mutual agreements contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, the Parties agree as follows:
AGREEMENT
1. TERM; RENEWAL.
This Agreement shall, unless sooner terminated as hereinafter provided, remain in force for a period of 10 years commencing July 2, 2024, or the date of approval by the City Council, whichever is later, and terminating on July 1, 2034. No earlier than one hundred-twenty (120) days, and no later than sixty (60) days, prior to the end of the term hereof, the Parties shall meet and confer in good faith to negotiate continuing this Agreement for an additional period and the terms thereof; provided that neither party shall be required to continue this Agreement beyond the original term, that neither party shall be required to negotiate for more than one hundred twenty (120) days, and that neither party shall be prevented from exercising any rights retained under this Agreement solely because of such negotiations. At any time during the term hereof, the obligations of the parties hereunder may be terminated in accordance with the provisions of Section 5 below.
2. DUTIES.
2.1 City shall permit Theatre use of the Seventh Street Community Theatre Building (the “Building”), of approximately 4,990 square feet in size, located at 13123 Seventh Street, Chino, California. City shall provide heating, cooling, electrical, and plumbing services to the Building as well as exterior improvements and maintenance and care. City shall also provide basic custodial services to the interior of the Building. City shall be responsible for all utility and internet charges incurred by the Building, except telephone service.
2.2 Theatre shall provide all theater-related expertise and volunteers necessary for conducting a community theater program, including light maintenance and care needed for the interior and exterior of the Building. Theatre shall be responsible for all telephone charges as they are incurred.
2.2.1 Theater shall operate the Building as a community theater for residents and to enhance the performing arts in City.
2.2.2 The Building shall continue as the “Seventh Street Community Theatre.”
2.2.3 Theatre shall be solely responsible for the operation of theater operations in the Building, including all clerical, administrative, and ticketing services.
2.2.4 Any fundraising that may be necessary for the operational costs shall be the responsibility of Theatre.
3. RENT.
Theatre shall pay to City as rent for the Building, One Dollar ($1.00) per year, the first payment being due on the date on which this Agreement is executed, and each subsequent payment on the anniversary of the date of this Agreement.
4. CITY ACCESS.
4.1 City and its authorized representatives shall have the right to enter the Building at all reasonable times during hours of operation to determine the condition of the Building or to make necessary repairs. City and its authorized representatives shall have the right to enter the Building during non-business hours if it deems that there is an emergency or a potential emergency in or around the Building and such entry is necessary to respond to the emergency.
4.2 City also reserves the right to use the Building periodically for meetings and other City business. In this case, City will consult with Theatre on the date and time of such use and will provide a minimum of 48 hours’ notice to Theatre.
5. TERMINATION.
Either party may terminate this Agreement with or without cause upon ninety (90) days’ written notice to the other party of its election to so terminate.
6. INSURANCE.
6.1 The City shall be responsible for general liability for claims, losses, injuries, and actions by third parties arising out of incidents that occur outside the Building, except when those incidents are the result of the acts or omissions of Theatre or its officers, employees, agents, contractors, or volunteers.
6.2 Theatre shall be responsible for general liability for claims, losses, injuries, and actions by third parties arising out of incidents that occur inside the Building, except when those incidents are the solely result of the acts or omissions of City or its officials, officers, employees, agents, or volunteers.
6.3 Theatre only, and not City, shall be responsible for any damage to or loss of any personal property that belongs to Theatre while said property is in the building.
6.4 Theatre shall provide proof satisfactory to City of General Liability Insurance with limits of $1 million dollars, with an additional insured endorsement reading, “City of Chino, its officers, officials, employees, agents and volunteers.” Said insurance shall cover the Building. If Theatre employs any employees, Theatre must provide proof satisfactory to City that Theatre meets the State’s workers’ compensation insurance requirements.
6.5 Theatre shall maintain insurance coverage in full force and effect, throughout the term of this Agreement, at its own expense, naming the City as an additional insured. At least thirty (30) days prior to the expiration of the foregoing insurance policies, Theatre will furnish to City an original certificate of insurance which states that such policy will not be cancelled, reduced in scope or limits of coverage, or materially amended without at least thirty (30) days prior notice to City. Failure to provide such proof shall be ground for immediate termination of this Agreement by City.
7. GENERAL CONDITIONS AND PROVISIONS.
7.1 NOTICE. All notices under this Agreement shall be in writing and shall be delivered by personal service or by certified or registered mail, postage prepaid, return receipt requested. Any written notice to any of the Parties required or permitted hereunder shall be deemed to have been duly given on the date of service if served personally or if served by facsimile transmission (with confirmation of receipt), or seventy-two (72) hours after the mailing. Rejection or other refusal to accept or the inability to deliver because of changed address of which no notice was given as provided hereunder shall be deemed to be receipt of the notice, demand or request sent. Notices to the Parties shall be addressed as follows:
To City: Silvia Avalos
Director of Community Services, Parks & Recreation
City of Chino
13220 Central Avenue
Chino, CA 91710
To Theatre: Paul Larson
President
Chino Community Theatre
13123 Seventh Street
Chino, CA 91710
Debra Barbin
President
Chino Community Children’s Theatre
13123 Seventh Street
Chino, CA 91710
Each party shall provide the other party with telephonic and written notice of any change in address as soon as practicable.
7.2 INDEMNIFICATION. Theatre shall indemnify, defend, and hold City, its officials, officers, employees, volunteers, and agents harmless from and against any and all liability, claims, suits, actions, damages, and causes of action arising out of any personal injury, bodily injury, loss of life, or damage to property, or any violation of any federal, state or municipal law or ordinance, or other cause in connection with the acts or omissions of Theatre, its employees, volunteers, performers, or agents, except for any such claim arising out of the sole negligence or willful misconduct of City, its officials, officers, employees, volunteers, or agents. It is understood that the duty of Theatre to indemnify and hold harmless includes the duty to defend as set forth in section 2778 of the California Civil Code. Within fifteen (15) days of City’s notice that it has been made a party to an action arising out of the acts or omissions of Theatre, its employees, volunteers, performers, or agents under this Agreement, Theatre shall provide a defense to the City in that action. Acceptance of insurance certificates and endorsements required under this Agreement does not relieve Theatre from liability under this indemnification and hold harmless clause. This indemnification and hold harmless clause shall apply whether or not such insurance policies shall have been determined to be applicable to any of such damages or claims for damages.
7.3 TAXES. If applicable, Theatre shall pay prior to delinquency any and all (i) personal property taxes, and (ii) possessory interest taxes attributable to the Building. Theatre is aware that this leasehold may be subject to possessory interest taxes as assessed by the County of San Bernardino. However, as a non-profit public benefit entity, Theatre shall have the right to apply for an exemption from all real estate taxes. If taxes are imposed, Theatre shall indemnify, defend and hold harmless City against any and all such taxes, fees, penalties or interest assessed, or imposed against City hereunder. In the event Theatre fails to timely pay any tax, assessment, fee, penalty or interest, City, at its option, shall have the right to pay such charge and treat such payment as additional rent to be charged to Theatre and paid by Theatre to City within five (5) days after receipt of written notice from City.
7.4 SURRENDER OF PREMISES; HOLDING OVER. On termination of this Agreement, Theatre shall promptly surrender and deliver the Premises to City in good condition and repair subject to reasonable wear and tear and shall surrender all keys to the Premises. If Theatre holds over for any reason, it is agreed, in absence of a written agreement to the contrary, tenancy shall then be from month-to-month only and not a renewal of this Agreement, or an extension of the Term. Upon any holdover, Theatre shall pay monthly rent in an amount established by City pursuant to written notice to Theatre, and the month-to-month tenancy shall be subject to every other term, covenant and condition in this Agreement that is consistent with and not contrary to a month-to-month tenancy.
7.5 GOVERNING LAW. This Agreement shall be governed by, construed in accordance with and interpreted under the laws of the State of California and shall be deemed to have been entered into in Chino, California, for purposes of venue no matter where actually was executed.
7.6 SEVERABILITY. If any provision of this Agreement shall be determined to be contrary to law or unenforceable, the remaining provisions shall, at the option of the party who would have benefited by such unenforceable provision, be severable and enforceable in accordance with their terms.
7.7 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement between the Parties. No changes of, modification of, or additions to this Agreement shall be valid unless the same shall be in writing, signed by the Parties hereto, and made in accordance with the provisions of this Agreement.
7.8 HEADINGS. The headings contained in this Agreement are inserted for convenience only and shall not affect in any way the meaning or interpretation of this Agreement.
7.9 MISCELLANEOUS. The agreements contained herein shall not be construed in favor of or against either party, but shall be construed as if both Parties prepared this Agreement. The masculine and neuter genders, the singular number and the present tense shall be deemed to include the feminine gender, the plural number and past and future tense, respectively, where the context so requires.
8.0 FURTHER DOCUMENTS AND ACTIONS. The Parties shall deliver such other documents or take such other actions as any other party may reasonably request in connection with the consummation of or evidencing the transactions contemplated in this Agreement.
8.1 COUNTERPARTS. This Agreement may be executed in multiple identical counterparts, and may be exchanged by fax transmission, each of which shall be deemed an original, but all of which together will constitute one and the same instrument.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date and year first above written.
APPROVED AS TO FORM:
By:
City Attorney
CITY OF CHINO:
By:
Linda Reich, City Manager
ATTEST:
By:
Natalie Gonzaga, City Clerk
APPROVED AS TO CONTENT:
By:
Silvia Avalos, Director of Community Services, Parks and Recreation CHINO COMMUNITY THEATRE:
By:
Paul Larson, President
By:
Julie Mort, Secretary
CHINO COMMUNITY CHILDREN’S THEATRE:
By:
Debra Barbin, President
By:
Elizabeth Cisneros, Vice President
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Lease Agreement with Chino Community Theatre/Chino Community Children’s Theater Facilities Use Agreement with Chino Community Theatre/Chino Community Children’s Theatre