Lease Agreement Between
Arts Consortium and the City of Visalia for the
Lincoln Oval Park Service Building
THIS LEASE AGREEMENT (hereinafter "Agreement" or "Lease") is made and effective ________________, by and between the CITY OF VISALIA, a Municipal C orporation and charter law city of the State of California (hereinafter "CITY"), and ARTS CONSORTIUM, (hereinafter "CONSORTIUM"). CITY and CONSORTIUM may be individually referred to herein as a "Party" and may be collectively referred to herein as the "Parties."
RECITALS
WHEREAS CITY owns the building and appurtenances located within the boundaries of the CITY'S Lincoln Oval Park (hereinafter the "Park"); and
WHEREAS the building in the Park is located at 808 North Court Street, and is known as the Oval Park Service Center Building (hereafter "Center"); and
WHEREAS CONSORTIUM desires to lease the Center for the operation of the “Oval Gallery”; and
WHEREAS the purpose of this Agreement is to document the terms and conditions under which CONSORTIUM will lease the Center.
NOW, THEREFORE, for the consideration described herein and performance of the covenants to be performed by the CITY and CONSORTIUM pursuant to this agreement, CITY agrees to lease the Center to CONSORTIUM, and CONSORTIUM agrees to lease the Center from the CITY, on the terms and conditions set forth as follows:
1. PREMISES. Except as otherwise provided in this Agreement, reference to the "Leased Premises" shall be to the Center, identified herein as the building located in the Park with a street address of 808 North Court Street. The Leased Premises shall consist of the Center building and appurtenances thereto, including any improvements now or hereafter located on or within the Leased Premises, without regard as to whether ownership of the improvements is in the CITY or CONSORTIUM.
See Section 5 of this Agreement concerning the use of the adjacent Oval Park facilities. Parties acknowledge that while these adjacent park facilities, such as the children's playground, picnic areas, and the covered arbor, are available for use they are not considered part of this Lease Agreement.
2. RENT. CONSORTIUM agrees to pay rent monthly at the rate of $225 per month.
Rent shall be due by the fifth day of each month during the term of this lease.
This amount shall be considered the Rent Amount. Upon the annual anniversary of the Effective Date, the Lessor may increase the Rent Amount for the following annual period up to the annual percentage increase, if any, in the California
Consumer Price Index for All Urban Consumers ("CPI Increase”) for the prior year.
If this index is discontinued, then any successor Index of the United States Bureau of Labor Statistics, or successor agency thereto, shall be used. If there is no successor Index, the Parties agree to substitute an alternative index formula. If the CPI Increase is a decrease, then the applicable Rent Amount for the subsequent annual period shall remain unchanged. The City shall notify Lessee of any changes at least thirty (30) days prior to modifying the Rent Amount.
3. TERM OF AGREEMENT. The term of this Agreement is two (2) years commencing January 1, 2024, and ending December 31, 2025. Subject to negotiation of mutually agreeable terms and conditions, Consortium shall have the option to renew this agreement for one (1) additional year, so the total term of the lea se, with the extension, would be three (3) years. To terminate tenancy either Party must give the other party a written 90 -day notice of Lease non -renewal. If CONSORITUM plans to terminate on or after the first (1st) day of payment for a given month, the rent shall be pro-rated accordingly.
4. TERMINATION.
a. Either Party shall have the right to terminate this Agreement based on the other's failure to comply with the terms , covenants and requirements contained herein. Prior to termination, the non-breaching Party shall provide written notice in accordance with the notice provisions of Section 13 herein to the other Party identifying the breach and providing for thirty (30) calendar days for the breaching party to cure. If the breaching Party has not cured the breach within thirty (30) calendar days from the date notice was completed pursuant to the notice provisions of Section 13, the non-breaching Party may terminate the Agreement by providing the breaching Party with written notice of termination in accordance with the notice provisions of Section 1 3 herein, and therein specifying the effective date of the termination.
b. If the Center shall be partly or completely destroyed by fire or other casualty, the CITY shall not be required to repair same and may elect not to rebuild the Center, or any portion thereof, and may terminate this Agreement by delivering notice of such election to CONSORTIUM in accordance with the notice provisions of Section 1 3 within six (6) months of the occurrence of such destruction.
c. Upon the termination of this Agreement, CONSORTIUM shall surrender possession of the Center to the CITY and shall, at the time of surrender, leave the Center in as good order and condition as said Center was at the inception of this Agreement, ordinary wear and tear, and damage by the elements, fire, earthquak e, flood, act of God, or public calamity, excepted. Upon surrender of the Center, CONSORTIUM shall not be entitled to relocation expenses under any circumstances.
5. PARK GROUNDS AND FACILITIES. CITY hereby permits CONSORTIUM to use the Park
grounds surrounding the Center in furtherance of the services and programs it will conduct at the Center pursuant to the terms and conditions of this Agreement. CONSORTIUM's use of the Park shall be non -exclusive, shall be coordinated with the Parks and Recreation Department as stated below.
Maintenance of the Park shall be the sole responsibility of the CITY.
CONSORTIUM acknowledges the Oval Park facilities are open to the public, and not available for exclusive use by CONSORTIUM unless it contacts the Visalia Parks and Recreation Department and separately reserves a section of the park area for exclusive use. Such reservations may be subject to separate fees that are governed by applicable Visalia Parks and Recreation Department park usage fee requirements and not this Lease Agreement. CONSORTIUM acknowledges that the hours of the adjacent Oval Park facilities are 8:00 a.m. - 8:00 p.m. during the summer season and 8:00 a.m. - 6:00 p.m. during the winter season, these changes in operational hours coincide with daylight savings time. The Oval Park facilities are available for use after these hours, but usage must be scheduled in advance with the City Parks and Recreation Department.
CITY acknowledges that the Center hours shall be controlled by CONSORTIUM during the term of this lease and are not subject to the same operating hours as the Oval Park facilities.
6. MODIFICATIONS TO CENTER.
a. CONSORTIUM agrees that any alterations to the interior of the building cannot be completed without the written approval of the CITY and any modifications made without CITY approval must be removed at CONSORTIUM's expense upon request by the CITY. CONSORTIU M also acknowledges that CITY may include as a condition for permission to alter the Center that CONSORTIUM remove the alteration prior to termination of this Lea se.
b. CONSORTIUM shall require all contractors who perform work on the Center to provide evidence of general liability insurance and workers compensation insurance in a manner that is consistent with CITY policy regarding contracts for work on CITY owned property, as shall be determined by CITY.
c. CONSORTIUM acknowledges that the subject premises have not been issued a disability access inspection certificate as described in Civil Code section 55.53. A Certified Access Specialist (CASp) can inspect the subject premises and determine whether the subject premises comply with all the applicable construction-related accessibility standards under state law. Although state law does not require a CASp inspection of the subject premises, state law prohibits a property owner from prohibiting a lessee or tenant from obta ining a CASp inspection of the subject premises for the occupancy or potential occupancy of the lessee or
tenant, if requested by the lessee or tenant. The parties shall mutually agree on the arrangements for the time and manner of the CASp inspection, the payment of the fee for the CASp inspection, and the cost of making any repairs necessary to correct violations of con struction- related acces sibility standard s within the premises.
d. Upon expiration of the term of this Agreement, unless expressly reserved to CONSORTIUM by the Parties prior to installation, modifications to the Center constructed by CONSORTIUM shall become the sole property of the CITY unless the CITY requested CONSORTIUM remove such modifications to the Center prior to termination.
7. CONSORTIUM USE OF CENTER. CONSORTIUM covenants and agrees to:
a. Prior to taking possession of the Center, CONSORTIUM shall submit for approval by CITY a statement of operations for the Center, which addresses, among other things, hours of operation, staffing of the Center, security for the Center, 24 -hour emergency contact, and other items pertinent to CONSORTIUM'S use of the Center (hereinafter "Operational Statement"). CONSORTIUM may amend the Operational Statement from time to time as circumstances dictate.
b. Any signage installed by CONSORTIUM on the Center must comply with Visalia Municipal Code Chapter 17.48 - Signs. CONSORTIUM is solely responsible for the costs to install and maintain any signs it installs.
c. During the term of this Agreement, CONSORTIUM shall keep and maintain said Premises in as good order, condition and repair as reasonable use and wear thereof will permit. CONSORTIUM shall be responsible for all maintenance and preventative maintenance including janitorial services, window washing , all window and glass replacements, and pest control. The CITY shall be responsible for any structural damage. CITY represents that when the CONSORTIUM takes possession of the Premises, all plumbing and electrical will be in good working condition. At the end of the term, or on the sooner termination of this Lease, CONSORTIUM shall quit, and surrender said Premises to CITY in as good order, condition and repair as reasonable use and wear thereof will permit, damage by the elements excepted.
d. CONSORTIUM shall also establish and be solely responsible for the payment of all public utilities provided to the Center, including but not limited to water, gas, electricity, alarm contract, fire extinguisher maintenance and garbage removal service.
e. CONSORTIUM will be responsible for all major repairs (such as electrical, plumbing, or mechanical systems, including heating and cooling systems). If the premises are uninhabitable as the result of the CONSORTIUM determining to terminate rather than complete any
required repairs, CONSORTIUM shall provide written notice in accordance with Section 4 herein, by providing written notice of termination in accordance with the notice provisions of Section 1 3 herein, and therein specifying the effective date of the termination. f.
8. INSPECTIONS.
a. At the commencement of this Agreement, CONSORTIUM and CITY shall perform a walk -through of the Center to determine condition of facility at inception of this Agreement.
b. CITY shall have access to inspect the Center during CONSORTIUM'S approved hours of operation. CITY shall have access to inspect the Center at all other times by providing 24 hours’ notice to CONSORTIUM.
9. INSURANCE.
a. Required Policies: CONSORTIUM agrees to provide evidence of insurance coverage, through specific policies or proof of adequate self -insurance, for the following coverage:
i. Worker's Compensation as required by law.
ii. Commercial General Liability and Property Damage: Commercial general liability insurance with a combined single limit of not less than One Million Dollars ($1,000,000) per occurrence. Such insurance shall include products/completed operations liability, owners and contractor's protective, blanket contractual liability, personal injury liability, and broad form property damage coverage.
b. Additional Insured: The General Liability/ Property Damage policies shall:
i. Name CITY, its appointed and elected officials, officers, employees, and agents as additional insureds.
ii. Be primary with respect to any insurance or self -insurance programs maintained by CITY.
iii. Shall apply separately to each insured against whom claims are made or suit is brought, except with respect to limits of the insurer's liability.
iv. Contain standard cross-liability provisions.
c. Each required policy shall provide that such insurance shall not be materially changed, terminated, or allowed to expire except on thirty (30) days prior written notice to CITY.
d. Each required policy shall be endorsed to include a waiver of subrogation against the CITY, it s officers, officials, agents, and employees.
e. This insurance shall be maintained during the Term of this Agreement until the Term expires if an occurrence policy form is used. If a claims- made policy is used, coverage shall be maintained during the Agreement Term and for a period extending five (5) years beyond the Agreement Term. CONSORTIUM shall replace such certificates for policies expiring prior to the expiration of the Term of this Agreement and shall continue to furnish certificates five (5) years beyond the Agreement Term, when CONSORTIUM utilizes claims-made form(s).
f. If CONSORTIUM for any reason fails to maintain insurance coverage which is required pursuant to this Agreement; the same shall be deemed a material breach of this Agreement.
10. INDEMNIFICATION. Each party agrees to indemnify, defend, and hold harmless the other party and its respective agents, officers, and employees from and against any and all claims, demands, lawsuits or other proceedings, bodily injury, property damages, personal injury, and other liabilities and damages, including reasonable attorneys' fees, arising out of the indemnifying party' s alleged or actual omission, act or negligence, in the performance or failure to perform its obligations under this Agreement. The indemnity, defense, and hold harmless obligations set forth herein shall survive the termination of this Agreement for any alleged or actual omission, act, or negligence, in the performance or failure to perform its obligations under this Agreement that occurred during the term of this Agreement.
11. NO PARTNERSHIP OR JOINT VENTURE. Nothing in this Agreement shall be construed to render CITY in any way or purpose a partner, joint venture, or associate in any relationship with CONSORTIUM other than that of lessor and lessee, nor shall this Agreement be construed to authorize either party to act as agent for the other Party.
12. NON-DISCRIMINATION. CONSORTIUM shall not discriminate in provision of programs and services hereunder on the basis of race, color, national origin, ancestry, gender, disability, religion, or political affiliation.
13. NOTICES. Any notice, demand, or communication required or permitted to be given by the terms of this Agreement, or by any law, may be given by either party by depositing said notice, demand, or communication in the U.S. Mail, postage prepaid, addressed to the other at the party's address or any new address provided by such party in writing to the other. Service of said notice, demand, or communication shall be complete five (5) calendar days after deposit of said notice, demand, or communication in the mail.
Notices and communication concerning this Agreement shall be sent to the
following addresses:
CITY CONSORTIUM
City of Visalia Arts Consortium
220 N. Santa Fe Street PO BOX 2696
Visalia, CA 93292 Visalia, CA 93279-2696
Attn: Community Services Director Attn: Executive Director
Either party may, by notice to the other party, change the address specified above. Service of notice of change of address shall be complete when received at the designated address.
14. MISCELLANEOUS PROVISIONS.
a. Authority: CITY and CONSORTIUM and its respective signatories represent that the signatory holds the position set forth below his/her signature and that the signatory is authorized to execute this Agreement and to bind said party hereto.
b. Assignment: Neither this Agreement nor any of the rights hereunder may be assigned without prior written consent of CITY.
c. Interpretation/Headings: The headings/captions are for convenience and reference only and are not intended to define or limit the scope of any provision and shall have no effect on the Agreement's interpretation. When required by the context of this Agreement, the singular shall include the plural.
d. Integration/Amendment: This Agreement represents the complete and entire understanding between the parties as to those matters contained herein. This Agreement may only be modified or amended in writing and signed by both parties.
e. Severability: If any term, condition, covenant, prov ision or part thereof of this Agreement is, or is declared, invalid, void or unenforceable for any reason, the remainder of the Agreement shall continue in full force and effect.
f. Governing Law: The laws of the State of California shall govern the interpretation and enforcement of this Agreement and any legal actions arising out of the terms of this Agreement shall be brought in Tulare County.
g. Attorney's Fees/Costs: In the event of legal action arising from this Agreement, the non-prevailing party agrees to pay the prevailing party reasonable attorney's fees and costs.
h. Contract Enforcement: The City Manager of City shall be
responsible for the enforcement of this Agreement on behalf of City and shall be assisted therein by those officers and employees of City having duties in connection with the administration thereof.
i. Cumulative Rights and Remedies: Except as otherwise expressly stated in this Agreement, the rights and remedies of the parties are cumulative, and the exercise by any party of one or more of its rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies.
j. Fire and Other Perils Insurance: Parties agree to be responsible for damage by the perils of fire, earthquake, and vandalism to those items of real and personal property for which they hold title or for which they have assumed liability to others.
k. Loss: CITY agrees that should the Center be so badly damaged by fire, earthquake, or other act of the elements as to render it wholly unfit for occupancy by CONSORTIUM, then this Lease shall be terminated immediately upon the happening of any such event. CONSORTIUM shall surrender the Center and shall not be liable for any further payments. In the event of lesser damage by such cause, then CITY shall restore the Center to the condition it was in immediately prior to the event causing the damage, and the lease payments shall abate in proportion to the area not used by CONSORTIUM during the period of restoration. If CITY does not pursue restoration work with reasonable diligence, then CONSORTIUM may, at its option, surrender the Center, terminate this Lease, and shall not be liable for any further payments under this Lease.
l. Surrender: CONSORTIUM shall surrender the Center to CITY at the expiration of this Lease Agreement in as good a condition as at the commencement of it, excepting reasonable wear and tear, damages by the elements, or damages by other persons.
IN WITNESS WHEREOF, the Parties hereto have entered into this Agreement on the date indicated above.
City of Visalia Arts Consortium
By: By:
City Manager Executive Director
Approved as to Form:
City Attorney Risk Manager