FACILITY LICENSE AGREEMENT
BETWEEN
THE CITY OF RIALTO
AND
THE RIALTO COMMUNITY PLAYERS
This FACILITY LICENSE AGREEMENT (herein “Agreement”) is made and entered into this ____ day of ______________, 2022, by and between the City of Rialto, a municipal corporation and California general law city (“City”), and RIALTO COMMUNITY PLAYERS, a nonprofit organization (“RCP”). City and RCP are sometimes individually referred to as “Party” or collectively as “Parties”.
RECITALS
A. The City owns the real property and improvements located at 150 E. San Bernardino Avenue, Rialto, California 92376, commonly known as the Sandra R. Courtney Community Playhouse (“Theater”).
B. The Parties wish to enter into this Agreement to memorialize the agreements between the City and RCP regarding RCP’s use of the Theater.
OPERATIVE PROVISIONS
NOW, THEREFORE, in consideration of the mutual promises and covenants made by the Parties and contained herein and other consideration, the value and adequacy of which are hereby acknowledged, the Parties agree as follows:
Licensing of Theater.
City hereby grants to RCP a nonexclusive license to use the Theater as set forth in this Agreement.
Term: Termination:
Term.
The term of the Agreement shall commence on _______, 2022, and end three years thereafter, unless terminated earlier pursuant to the terms of this agreement. RCP may request up to two (2) one-year extensions to the term of this Agreement. The request must be received by the City not less than 30 days prior to the expiration of the term, or any extension thereof. The request for extension may be approved by the City Manager, or his or her designee, in writing, in his or her sole and complete discretion.
Termination.
Each party reserves the right to terminate the Agreement without cause upon providing thirty (30) days written notice to the other party.
Surrender of Theater:
On the termination date or the end of any extension or renewal of this Agreement, RCP shall promptly surrender and deliver Theater to City in as good of a condition as it was as of the date of first occupancy under this Agreement; reasonable wear and tear excepted.
All equipment located in the Theater is the sole property of the Rialto Community Players, unless clearly labeled "Property of City of Rialto.” All lights, props, costumes, computers, sound and light boards, tools, set pieces & material, three (3) refrigerators (1 in kitchen and 1 in the pool-deck storage room) are the sole property of RCP. City reserves the right to purchase and store its own equipment at the Theater at its discretion. This Agreement establishes a shared agreement, whereas, all RCP designated property can be used by the City upon approval by RCP. The building, carpeting, seating, main curtain, kitchen and aerobics room is the sole property of the City and can be used by RCP upon approval for the term and within the constraints of this Agreement. It is hereby agreed that this shared agreement will also apply to any subcontracted entity, whereas, the City and RCP will monitor and/or supervise the use of any equipment for the purposes of productions. It is hereby agreed that any future improvements to the Theater shall be approved by the City prior to the beginning of such construction.
City Liaison:
The City shall appoint a Liaison to oversee all activities of the Sandra R. Courtney Community Playhouse. The City Liaison is responsible for reporting use of the Sandra R. Courtney Community Playhouse by anyone other than the RCP in adherence of the City’s Fee Policy. The City Liaison will be responsible for oversight of those activities that include the City’s scheduling, booking, and oversight of use un-related to the use by RCP. This position will report all Theater proceedings directly to the Community Services Director, including but not limited to, the coordination of all outside vendors using the playhouse during off seasons or City intervals, social media advertisements, and City website maintenance. This position will monitor and respond to the need for City services requested by RCP, scheduling maintenance, and repair services from the appropriate City agencies as necessary.
Scheduling:
City and RCP agree to the following uses in each general annual production season (“Season”), defined as July 1 through June 30 of each year of this Agreement, consisting of the following:
Notwithstanding the terms and provisions of this section, City retains the authority to make all administrative decisions regarding the Theater, including, but not limited to, scheduling, canceling previously scheduled uses, and programing. In the event that an unforeseen circumstances requires to the City to limit, cancel, or postpone a previously scheduled use of the Theater by RCP, the City will take all reasonable steps to reschedule the use or accommodate a partial use of the Theater.
RCP will provide to the City a proposed season calendar for each Season 45 days prior to the start of the Season. The proposed Season calendar will include the dates and times for any and all RCP activities, including performances, rehearsals, and technical run-throughs. In its sole and complete discretion, the City will review the proposed Season calendar, meet and confer with RCP, amend the proposed calendar, and provide a final Season calendar to RCP within two (2) weeks following the receipt of the proposed Season calendar.
In setting the final Season calendar, RCP shall have priority over any other user aside from City programs. For open dates on the final Season calendar, RCP shall not have priority over any other users in booking or reserving such dates.
In the event a third party seeks to use the Theater on date that RCP is scheduled to use the Theater, RCP will cooperate with the City and that third party to accommodate a shared use of the Theater to the extent that shared use does not interfere with RCP’s scheduled use of the Theater.
Use of Theater:
Use of Theater is on a priority basis. City intends to and will allow other entities, including City, to use Theater, and performance, support, and access spaces will be shared. This includes the limited concurrent use of Theater.
As the primary user of the Theater, during periods in which it is scheduled to use the Theater, RCP shall have primary control over the Box office/foyer closet backstage, second box office, stage wings, dressing rooms, restrooms, paint closet, tool closet, dressing rooms, outside dock area, supply closet, under stairs storage, props & costume loft. These areas may be used to store personal property belonging to RCP. City retains the right to enter and use any rooms in the Theater during RCP’s scheduled use time, provided the City gives RCP one-week advance notice of such use so that RCP may secure its property. RCP shall be responsible for securing their personal property during times when they are not scheduled to use the Theater. The City shall not be responsible or liable to RCP for the loss of damage to any personal property owned by RCP and kept at the Theater, unless such loss or damages is the result of the City’s sole negligence or willful misconduct.
Permitted Use. RCP shall use Theater for the purpose of producing, rehearsing and staging public performances, including, but not limited to, live musical and theater productions. Uses include those normally incidental to such productions and for no other purpose unless previously authorized by City in writing. RCP shall comply with all applicable federal, state, and local laws; observing all City rules, regulations, standards, and procedures in performing the instruction under this Agreement. RCP further agrees to comply with the direction of the Community Services Director or his/her designee with respect to use of Theater.
RCP may provide any food and non-alcoholic beverage concession for their productions and performances. The sale and consumption of food on premises must be in compliance with the San Bernardino County Health Department and all other applicable laws. This compliance is solely the responsibility of RCP. The sale and consumption of alcoholic beverages on premises must be approved in accordance with applicable policies and procedures duly established for City events. RCP must provide the required alcohol license and host liability insurance acceptable to the Community Services Director or his/her designees twenty-one (21) days before the sale and/or consumption date.
Restrictions on Use. RCP shall use and maintain the Theater in a clean, orderly, and safe manner.
Interference with Exits, RCP shall not in any way interfere with exits and exit signs, including attaching anything to panic hardware. All exit signs and exit paths shall be kept clear and illuminated. ''Good Neighbor" Provision. RCP shall not interfere with the use of any properties adjacent to or in the immediate vicinity of Theater, and shall endeavor to maintain good relations with the owners and/or tenants of such properties. RCP shall use reasonable efforts to mitigate the effects on such properties from parking, lights, and sound incurred in its use of premises.
In accordance with the map attached hereto as Exhibit A, RCP will have designated parking space assignments during program events in the Theater parking lot.
In its use of the Theater, RCP shall comply with all rules, guidelines, regulations, and laws (“Regulations”) from the State of California, County of San Bernardino, City, or any other local or federal authority with jurisdiction, concerning COVID-19.
Obligations of the City:
The City agrees to provide the following for the ongoing maintenance and operation of the Theater:
Payment of utilities relating to the operation of the Theater.
Maintenance of the Theater including, but not limited to, plumbing, electrical, exterior painting and repairs, roofing, HVAC, interior, and alarm systems.
Maintenance of the landscaping and the parking lot.
Cleaning of the Theater area, the kitchen, and aerobic room.
Door keys and alarm codes to designated RCP Board members.
Provide janitorial service & supplies every Friday for all three (3) Theater restrooms. As well as general cleaning in Theater lobby and seating area.
Obligations of RCP:
RCP agrees to provide a flat fee of $500 per year, payable within 30 days of the commencement date of this Agreement and on each anniversary of such commencement date for the ongoing operation of the Theater. This cost represents a fraction of the costs reasonably borne by the City in maintaining and servicing the needs of the facility.
Tenant Improvements: Additions: Alterations:
It is hereby agreed that any future improvements to the Theater shall be approved by the City prior to the beginning of such construction. RCP shall take reasonable steps to ensure that the Theater provided to house the program is not damaged by RCP, or any person affiliated with RCP pursuant to Paragraph 10.3 of this Agreement. As used in this Agreement, the term “Theater” includes any City building or portion thereof made available by City to house RCP or any non-City building or portion thereof secured by City for the purpose of housing the program. The term “equipment,” as used in this Agreement, means all property within the Theater owned by the City.
Maintenance: Repairs and Utilities:
Payment of Costs. City shall provide and pay for the routine costs of maintenance and utilities. "Maintenance and Utilities" includes (a) routine maintenance of City-owned equipment and facility necessary for the City's performance of this Agreement and repair of said equipment or facility for normal wear and tear and of damages not caused by the RCP, its personnel, volunteers or invitees, (b) utilities, including deposits and monthly charges for gas, electricity, and water; (c) routine landscaping costs, (d) routine charges for maintenance and repair of parking lots and accessory structures, including but not limited to paving and painting; and (e) routine charges for maintenance and repair of HVAC systems.
Duty to Report Damage and Maintenance Requests. RCP shall, as soon as practical, report all damage to City equipment or facilities to City by email to City Liaison and the Community Services Director. RCP shall also request routine maintenance and repairs as specified in Paragraph 11.1 to be completed by the City by email to City liaison. City shall respond to routine maintenance or repair requests by RCP which do not involve a bona fide safety hazard within three (3) working days. City shall provide immediate emergency maintenance, service on an on-call basis.
Duty to Maintain Interior. Except for damage caused by the negligence of City or normal wear, RCP will keep and maintain the interior of Theater in good condition and repair, including but not limited to the walls, structural elements, light and sound systems, paint, carpets, flooring, plumbing, and electrical components of the building. RCP shall have the right to refinish the stage floor using its own labor and materials as needed.
Capital Repairs. City shall be responsible for charges for major capital repairs, including roof replacement to Theater.
Waiver of Civil Code Sections 1941 and 1942. In light of the provisions of paragraph 11.2 above, RCP waives the provisions of California Civil Code sections 1941 and 1942, and any other law that would require City to maintain Theater in a tenantable condition or would provide RCP with the right to make repairs and deduct the cost of those repairs from the rent.
Signs
RCP shall not place, maintain, nor permit on any door, wall, or window of Theater, any sign, or other advertising, without the express written consent of City. If City consents to placement of such items, RCP will have priority regarding signage and agrees to maintain said item in good appearance and repair at all times, and to comply with City's direction as to time limits for display of such items. City has the right to, without damage or liability, remove and/or destroy such item in its discretion.
Assignment and Subletting:
RCP shall not assign their obligations under this Agreement, or any part thereof, without the prior written consent of City to such assignment. City’s consent to one assignment shall not be deemed consent to any subsequent assignments. The City reserves the right to subcontract AND/OR sublease the Theater to outside parties for any purposes stated or implied as deemed by City designee. The City and RCP will collaborate to address any scheduling conflicts that may arise as a result of a subcontract. The City retains the right to make all decisions in regards to scheduling and unforeseen conflicts. RCP may retain or subcontract for such services as are necessary to perform his/her duties under this Agreement. Payment for any services subcontracted for by RCP shall be the sole responsibility of RCP. No person or persons employed by RCP in conjunction with the performance of this Agreement is an agent of the City. Failure to comply with this requirement may result in the cancellation of the contract.
Non-Discrimination: Non-Violation.
During the performance of this Agreement, RCP, in carrying out its responsibilities, shall not discriminate against any person(s), member(s), participant(s), student(s) or any person affiliated with RCP on the basis of race, color, national origin, religion, sex, gender, gender identity (including gender expression), sexual orientation, disability, age, marital status, familial/parental status, income derived from a public assistance program, political beliefs, reprisal or retaliation for prior civil rights activity.
Abandonment.
Should the RCP abandon, be dispossessed, surrender or otherwise vacate Theater, the City at City's option, may immediately terminate this Agreement and enter Theater and remove all persons and property.
Site Walkthrough and Rules of Conduct.
The City and RCP agree to participate in a collaborative meeting, annually, to facilitate terms and conditions established in this Agreement. The annual meeting will establish a check list and timeframe for making any repairs or changes to the season’s Master Calendar if necessary. Prior to the collaborative and open of the: season run, the City Liaison and RCP will hold a joint walkthrough of the Theater in order to identify the condition of the facility and any necessary repairs to be made. The parties agree to meet and confer in good faith to resolve any issues to both parties satisfaction. However, the City reserves the right to make decisions which are in the best interest of the City and its constituents.
Damage to or Destruction of Theater.
If any portion of premises, fixtures, equipment or facilities are damaged or destroyed by RCP due in part or whole to the negligence of RCP, or if such damage is incurred during RCP's use of Theater and/or arising from RCP's use of Theater due in part or whole to the negligence of RCP, the damage shall be repaired, replaced or restored at City's discretion, and RCP shall be responsible for its proportionate share of the full cost and expenses of repairs, replacement or restoration based on its comparative fault, including but not limited to cost of any janitorial, cleaning or other services.
Exemption from Liability.
RCP agrees to indemnify, defend, and hold harmless City, its officers, agents, and employees from and against any and all claims, costs, suits, liability, and damages, including attorneys' fees, arising out of or in any way related to RCP’s use of the Theater.
Hazardous Materials.
RCP shall not keep or maintain any Hazardous Substance, other than ordinary cleaning supplies, small quantities of latex paint and waste, on or in Theater without City's prior written approval. RCP shall promptly give notice to City of any Hazardous Substance dispersal or spill, or Hazardous Materials claim, of which it is aware. RCP shall indemnify and hold City harmless from any and all claims, costs, damages, penalties, or liabilities arising out of the RCP's use or release of any hazardous substance at, in or on Theater.
Inspection.
City may enter Theater at all reasonable times to inspect, maintain and repair the property.
Liens.
RCP shall keep Theater free from any and all liens arising out of any work performed, materials furnished, or obligations incurred by or for RCP; and RCP agrees to defend City at its sole cost and expense against any and all lawsuits arising from such lien upon receipt of notice of opportunity to defend from City.
Insurance.
For purposes of this Paragraph, the following definition applies: City of Rialto includes the duly elected or appointed officers, agents, employees and volunteers of the City of Rialto, individually or collectively.
Comprehensive General Liability. In furtherance of its obligations pursuant to this Agreement, RCP agrees to obtain and maintain during the term of this Agreement comprehensive general liability protecting RCP in an amount of not less than One Million Dollars ($1,000,000) per occurrence, including bodily injury and property damage, as a combined single limit or equivalent. Such insurance shall name the City of Rialto, as defined above, as an additional insured by endorsement to the insurance policy. Coverage shall be in accordance with the limits specified above and the provisions indicated herein. Claims-made policies are not acceptable. When an umbrella or excess coverage is in effect, it must follow the form of the underlying coverage. Such insurance policy or policies shall be stated to be primary and noncontributing with any insurance that may be carried by City and shall state that the insurer waives the right of subrogation against City and City’S elected or appointed officials, boards, agencies, officers, agents, employees, and volunteers. Such insurance shall not be canceled or materially altered to reduce coverage without giving City at least thirty (30) days advance written notice of such cancellation or change, and it shall be the responsibility of RCP and RCP's insurer to notify City of such change or cancellation.
Workers Compensation Insurance. If and to the extent RCP has individuals which may be subject to workers' compensation law, it agrees to obtain and maintain Statutory Workers Compensation and employer's liability in an amount not less than One Million Dollars ($1,000,000) and furnish City with a certificate showing proof of such coverage.
Certificates of Insurance with Endorsements. RCP shall file the required original Certificate of Insurance with endorsements with the City Attorney of the City of Rialto prior to any use of Theater. The Certificates shall be subject to City'S approval and shall clearly state:
Policy number; name of insurance company; name, address and telephone number of the agent or authorized representative; name, address and telephone number of insured; show title and producer; policy expiration date; and specific coverage amounts; and That thirty (30) days' cancellation notice is required, unqualified as to the acceptance of liability for failure to notify City; and Deductibles. Self-Insured Retentions, and Proof of Insurance. Prior to commencing any use of Theater, deductibles, and self-insured retentions acceptable to City must be stated on Certificates of Insurance, and the Certificate of Insurance must be approved by City.
Absence of Insurance. The absence of in-force insurance or reduction below limits as specified in this article shall cause revocation of permission to use Theater; any delays or expenses caused due to change of insurance shall be considered RCP’s delay and shall not affect City.
Insurance Companies. Insurance provided pursuant to this contract must be from insurance companies admitted in California and rated at least A: VII in the latest Best's Insurance Guide; or such other insurance companies as are acceptable to City in its sole and unfettered discretion.
Time of Essence.
Time is of the essence in the performance of this Agreement by RCP and the Breach and Remedies.
Breach. In the event RCP breaches the terms of this Agreement, the City may immediately terminate this Agreement upon written notice.
Remedies. City is relying on RCP to provide services as described herein. In the event RCP breaches the terms of this Agreement, RCP recognizes that it would be extremely difficult for City to replace RCP if a breach occurs. Both parties agree that it would be impractical to determine the amount of such a breach would cause the City, thus making it impossible to ascertain the exact amount and extent of detriment and damages such a breach would cause to City. Therefore, RCP and City agree that if RCP fails to perform services or exercises their right to terminate this Agreement pursuant to the terms of Paragraph 14, RCP shall forfeit their claim to agreements contained in this Agreement. In addition, RCP and City further agree that if RCP fails to commence services or ceases services after publicity has begun without notifying City of their intent to cancel, RCP shall pay to City all costs assumed by the city for said services. Such damages are in lieu of any other monetary relief. Liquidated damages set forth in the paragraph do not apply if the service is cancelled due to lack of interest, failure to meet minimum requirements, or if City cancels performance.
Force Majeure.
In the event and to the extent that the performance of any of the covenants of this agreement shall be prevented by an act of God, the acts or regulations of public authorities other than acts or regulations of City, labor unions, labor difficulties, strikes, civil tumults, war, epidemic, pandemic, or any other cause beyond the parties' reasonable control, the parties will be relieved of their obligations under this Agreement; provided that an extension of time for any such cause shall be for the period of the enforced delay equal to the number of days during which a party’s performance was delayed and shall commence to run from the time of the commencement of the cause, if written notice by the party claiming such extension is sent to the other party within twenty (20) days of knowledge of the commencement of the cause.
Notices.
All notices shall be in writing, personally delivered or mailed via first class mail to the below listed mailing address. These addresses also shall be used for delivery of service of process:
Rialto Community Players
P.O. Box 6027 Koa Drive
Rialto, CA 92377
EMAL:
[email protected]
Entire Agreement.
This Agreement represents the entire and integrate Agreement between City and RCP and supersedes any prior negotiations, representations, or Agreements, either written or oral.
Governing Law.
This Agreement shall be governed by and construed in accordance with the laws of the State of California. In the event it becomes necessary for either party to resort to the court system to enforce any of the obligations pursuant to this Agreement, the parties hereto agree that the proper venue for all court proceedings shall be San Bernardino Superior Court.
Severability.
Should any provision of this Agreement be found invalid or unenforceable, the decision shall affect only the provision so interpreted, and all remaining provisions shall remain enforceable.
No Third Party Beneficiaries.
This Agreement is for the benefit of City and RCP, and is not intended to, and does not, create any rights, responsibilities or obligations on behalf of third parties.
Authority to Execute.
The persons executing this Agreement on behalf of the parties hereto warrant that (i) such party is duly organized and existing, (ii) they are duly authorized to execute and deliver this Agreement on behalf of said party, and (iii) by so executing this Agreement, such party is formally bound to the provisions of this Agreement.
City OF RIALTO
Rialto Community Players
By:
By:
Marcus Fuller
Name:____________________
City Manager
Title: _____________________
Attest:
By:
Barbara McGee
City Clerk
Approved as to Form:
By:
Eric Vail
City Attorney
IRV #4881-0023-4505 v5
4/19/22 7:15 PM
IRV #4881-0023-4505 v5
4/19/22 7:15 PM
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