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HomeMy WebLinkAboutContracts & Agreements_69-2023FACILITY USE AGREEMENT BY AND BETWEEN THE CITY OF REDLANDS AND REDLANDS THEATRE FESTIVAL This Facility Use Agreement ("Agreement") is made and entered into this 2"d day of May, 2023 ("Effective Date"), by and between the City of Redlands, a municipal corporation and general law city (hereinafter "City") and the Redlands Theatre Festival, a California non-profit Corporation (hereinafter "RTF"). City and RTF are sometimes individually referred to herein as a "Party" and, together, as the "Parties." RECITALS WHEREAS, City is the owner of a building located at 1352 Prospect Drive within Prospect Park in the City of Redlands and commonly known as the Sewall Theatre; and WHEREAS, RTF desires to utilize the Sewall Theatre for performances, rehearsals, receptions, and fundraising activities; and WHEREAS, City and RTF are parties to an existing facility use agreement dated November 1, 2011, for the Sewall Theatre, and desire to enter into this new agreement to set forth terms and conditions under which City will continue to use the Sewall Theatre to RTF; NOW, THEREFORE, in consideration of the mutual promises contained herein, the City of Redlands and Redlands Theatre Festival agree as follows: AGREEMENT Section 1. Premises. A. City hereby allows RTF use of that certain building located at Prospect Park in the City of Redlands commonly known as the Sewall Theatre (the "Premises") subject to the terms and conditions set forth herein. The Premises are more particularly shown in Exhibit "A," which is attached hereto and incorporated herein by this reference. B. RTF acknowledges and agrees that City is the owner of Premises and that nothing in this Agreement grants to RTF any rights, title, or interest in the Premises, except for the revocable, non-exclusive right to use the Premises as provided in this Agreement. RTF is not a tenant or lessee of City and holds no rights of tenancy or leasehold in relation to the Premises. Section 2. Term. Unless terminated earlier as provided for herein, this Agreement shall be for a term of one (1) year commencing on its Effective Date. Section 3. Use of Premises. A. The Premises shall be used for theatrical performances conducted at the Sewall Theater, and for rehearsals, receptions, and fundraising activities. No other use of the Premises by RTF is permitted without the prior written consent of the City. 1 I:\cmo\Agreements\Redlands Theatre Festival Rental Use Agreement. FY22-0134.doc-la B. City retains the right to use the Premises for itself, and to accept bookings by third parties for use of the Premises, during times when the Premises are not used by RTF; provided, however, such use and bookings for third parties shall not include use of the offices, storage rooms, or equipment rooms of the Premises (the "Excluded Areas"). The Excluded Areas are more particularly shown in Exhibit "B," attached hereto and incorporated herein by this reference. All fees charged for third party bookings shall be established by the City and shall be the property of City. C. In connection with any third party bookings of the Premises, City shall require the third party to secure liability insurance satisfactory to City and RTF for the use of the Premises and to provide City and RTF with certificates of insurance naming City and RTF as additional insureds, and to agree to indemnify and hold City and RTF harmless in connection with any claims, damages, losses, costs, and liabilities arising from the third party's use of the Premises. D. At City's request, RTF shall issue the appropriate key(s) to third parties who have booked areas of the Premises through City, provided that such third parties have presented RTF with a copy of City's approved reservation form and satisfied the insurance and indemnification requirements with respect to City and RTF referenced in. Section 8 below and have paid RTF a deposit against return of the keys to RTF. RTF shall have no obligation to provide any services, staff, sound, lighting, or other equipment to any third party. Any arrangement for utilization of RTF's services, staff, sound, lighting, or other equipment shall be made by separate written agreement with RTF on the terms and conditions (including payment of fees) specified by RTF. RTF shall have no obligation to provide access to the Excluded Areas to any third party. E. RTF may utilize the wooden sign, located at the south corner of the intersection of Cajon Street and Highland Avenue, between May 2nd and August 15th of each year, for the advertisement or promotion of theater events. Section 5. Utilities. City shall pay all costs associated with the furnishing of water, sewer, and solid waste services to the Premises during the term of this Agreement. Section 6. Maintenance of Premises. A. RTF shall, at its own cost, maintain the Premises and all improvements therein in good order and repair, present condition and reasonable wear and tear excepted, except as provided in Subsection B, below. City shall have the right to enter the Premises, at reasonable times, for inspection and maintenance purposes. Should an inspection disclose the need for maintenance or repairs, City shall provide RTF with written notice of the items requiring repair or maintenance. If action is not taken on such items by RTF within sixty (60) days from the provision of such notice, City may enter the Premises and take whatever action is necessary to perform such maintenance or repairs at RTF's expense. RTF shall also be responsible for any costs of any repairs to the structural elements of the Premises caused by RTF acts of omission of its employees, agents, or invitees during the term of this Agreement. B. City shall be responsible for maintenance and repair of all the structural elements, the plumbing systems, and the electrical system of the Premises. "Structural Elements" shall 2 I:\erne\Agreements\Redlands Theatre Festival Rental Use Agreement. FY22-0134.doe-la include the roof, gutters, downspouts, walls, doors, windows, stairs, structural supports, and foundation of the Premises. "Electrical System" shall include the electric meter and the power line to the distribution pole. RTF shall be responsible for the breaker panel and its connections into the Premises. RTF shall be responsible for the repair and maintenance of the Premises and all improvements in good order and repair. City shall be responsible for the repair of any damages and wear and tear to the Premises arising from any third -party bookings under Subsection 4 B. C. On the expiration or earlier termination of this Agreement, RTF shall promptly surrender and deliver the Premises to City in as good condition as the Premises are in on the Effective date of this Agreement, excluding reasonable wear and tear. Section 7. Improvements. A. RTF shall not make any improvements to the Premises without the prior written consent of City except that, after making reasonable attempts to contact City for its approval, RTF may undertake minor maintenance and repairs to the Premises which RTF reasonably determines are immediately necessary to protect against injury to persons or property. Within three (3) days of performing any minor maintenance or repairs not verbally approved by City, RTF shall provide written notification to City of the same. All RTF proposals for improvements shall be submitted in writing to City for its consideration and prior approval. City shall approve or disapprove such proposals within thirty (30) days of their submission. With the prior written consent of City, RTF may enter into contracts and agreements for improvement work to be performed by contractors in compliance with the City's Purchasing Ordinance and prevailing wage laws, and shall require contractor insurance and bonding as required by the City. RTF shall have the right to remove all improvements made by it to the Premises provided such removal results in no damage to the Premises. Improvements not removed by RTF shall, on expiration or earlier termination of this Agreement, remain on the Premises and become the property of City. B. RTF and City representatives may meet to discuss improvement progress under this Agreement on an annual basis (dates of which to be agreed upon by the Parties), or at the written request of either Party, to discuss any concerns related to the work to be performed under this Agreement. Section 8. Indemnity. A. RTF shall defend (with counsel reasonably acceptable to City), indemnify, and hold harmless City, and its elected and appointed officials, officers, and employees, from and against any and all liability resulting from the RTF's negligent acts or omissions, and intentional wrongful acts of RTF, and its agents, and employees, and invitees, during RTF's occupation and use of the Premises during the term of this Agreement. B. City shall defend, indemnify, and hold harmless RTF, its officers, directors, and employees from and against any and all liability resulting from the City's negligent acts or omissions, and intentional wrongful acts of City, and its agents and employees during RTF's occupation and use of the Premises during the term of this Agreement. 3 I:\cmo\Agreements\Redlands Theatre Festival Rental Use Agreement. FY22-0134.doc-la Section 9. Public Liability and Property Damage Insurance. RTF shall maintain, at its own cost the term of this Agreement, public liability insurance in the amount of One Million Dollars ($1,000,000) per occurrence and Two Million Dollars ($2,000,000) in the aggregate, issued by an insurance company acceptable to City. RTF shall provide City with a renewed certificate of insurance and endorsements showing City as an additional insured on the policy prior to RTF's use and occupancy of the Premises. Such insurance shall be primary with respect to City and non-contributory to any insurance or self-insurance maintained by City. The policy shall require that before amending or canceling the policy, the issuing insurance company shall give City at least thirty (30) days prior written notice. City and RTF acknowledge and agree that the insurance required of RTF is subject to annual review by City and subject to increases in the amount and scope of coverage, as reasonably determined by City. Section 10. Assignment/subletting. RTF shall not encumber, assign, sublease, or otherwise transfer this Agreement, or any right or interest therein, without the prior written consent of City. Any such encumbrance, assignment, sublease, or transfer without such prior consent of City shall constitute an immediate breach of this Agreement and may, at the sole discretion of City, result in the immediate termination of this Agreement. Section 11. Attorneys' Fees. In the event any action is commenced to enforce or interpret the terms or conditions of this Agreement, the prevailing party shall, in addition to any costs and other relief, be entitled to the recovery of its reasonable attorneys' fees, including fees for use of in-house counsel by a Party. Section 12. Notices. Any notice or other communication required, or which may be given, pursuant to this Agreement, shall be in writing. Any such notice shall be deemed delivered (i) on the date of delivery in person; (ii) five (5) days after deposit in first class registered mail, with return receipt requested; (iii) on the actual delivery date if deposited with an overnight courier; or (iv) on the date sent by facsimile or electronic mail transmission (including PDF), if confirmed with a copy sent contemporaneously by first class, certified, registered or express mail; in each case properly posted and fully prepaid to the appropriate address set forth below, or such other address as a Party may provide notice in accordance with this section: CITY: City Clerk City of Redlands 35 Cajon Street P.O. Box 3005 (mailing) Redlands, CA 92373 jdonaldson@cityofredlands.org Phone: (909) 798-7531 REDLANDS THEATRE FESTIVAL: Shannon Cabanilla Galuszka Redlands Theatre Festival P.O. Box 8055 Redlands, CA 92375 Shannon@RTFseason.com Phone: (714) 269-7176 Section 13. Entire Agreement. This Agreement constitutes the entire agreement between City and RTF regarding the use of the Premises to RTF. Any prior written or oral agreements or representations respecting the Premises by City or RTF not expressly set forth herein are null and void. 4 I:\cmo\Agreements\Redlands Theatre Festival Rental Use Agreement. FY22-0134.doc-la Section 14. Amendments. Any amendment to this Agreement shall be in writing and executed by the Parties. Section 15. Termination. This Agreement may be terminated by either Party by giving thirty (30) days prior written notice to the other Party. In the event of any termination of this Agreement, in addition to any other rights or remedies City may have, City shall have the immediate right of reentry and may remove all persons and property from the Premises; and store the same in a public warehouse or elsewhere at the cost of RTF. All remedies of City under this section shall be cumulative and in addition to any other legal or equitable rights and remedies which City may have. Section 16. Waiver. No waiver by either Party of any provision of this Agreement shall be deemed to be a waiver of any other provision of this Agreement, or of any subsequent breach by either Party of the same or any other provision of this Agreement. Section 17. Severability. If any provision of this Agreement is held invalid or unenforceable for any reason, this Agreement shall otherwise remain in full force and effect and shall be construed in all respects as if such invalid or unenforceable provision were omitted. Executed on the 2nd day of May, 2023, at Redlands, California. CITY 0 Eddie Tejeda, Mayor ATTEST: e Donaldson, City Clerk REDLANDS THEATRE FESTIVAL Allan Griesemer, President 5 I:\cmo\Agreements\Redlands Theatre Festival Rental Use Agreement. FY22-0134.doc-la EXHIBIT A 6 I:\cmo\Agreements\Redlands Theatre Festival Rental Use Agreement. FY22-0134.doc-la EXHIBIT B 7 L•\cmo\Agreements\Redlands Theatre Festival Rental Use Agreement. FY22-0134.doc-la