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HomeMy WebLinkAboutContract 1956 HCATHEDRAL CITY COMMUNITY r---� AMPHITHEATER AMPHITHEATER STANDARD RENTAL AGREEMENT This Rental Agreement (the "Agreement") is entered into as of January 18, 2022 by and between the City of Cathedral City, a California municipal corporation (the "City"), and the DAP Health (the "Tenant"), who agree as follows: RECITALS A. The City owns the Cathedral City Community Amphitheater located at 68526 Avenida Lalo Guerrero, Cathedral City, CA 92234 ("Amphitheater"); and B. Tenant submitted a Special Use Permit application for the rental of the Amphitheater, which was approved by the City on January 12, 2022. OPERATIVE PROVISIONS For consideration, the receipt and value of which is hereby acknowledged by both Parties, City and Tenant hereby agrees as follows: 1. Material Inducement. Tenant agrees that its promises and agreements to strictly adhere to and comply with the terms and conditions set forth in this Agreement are a material inducement to City's rental of the Amphitheater to Tenant, in the absence of which City would not have rented the Amphitheater to Tenant. Tenant's failure to adhere to and comply with the terms and conditions of this Agreement shall be deemed a material breach of the Agreement. 2. "AS-IS" Condition; Tenants Sole Risk. Tenant agrees that it is thoroughly familiar with the Amphitheater and all aspects thereof, including, without limitation, the physical condition of the Amphitheater, and all other restrictions and limitations applicable to the Amphitheater (whether or not of public record). Tenant additionally agrees that it assumes all liability and responsibility for the physical condition of the Amphitheater. Tenant agrees that neither City nor anyone acting on City's behalf has made any representation or warranty of any kind or nature whatsoever respecting the physical condition of the Amphitheater, its suitability for Tenant's use, or any other matter relating to the Amphitheater (including, but not limited to, the environmental condition of the Amphitheater) or this Agreement, and Tenant agrees that it is renting the Amphitheater in its "AS-IS CONDITION AND WITH ALL FAULTS". ThL Tenant's Initials 3. Term. The term ("Term") of this Agreement and Tenant's authority to enter and use the Amphitheater commences at 10:00 a.m. on April 3, 2022 and terminates at 9:00 p.m. on April 3, 2022. IRV#4824-1276-6696 v 1 4. Use; Warranties; Rental Guide; Compliance with Laws. 4.1 Use. Tenant agrees that it shall use the Amphitheater solely for the uses as stated in Tenant's Special Use Permit application ("Permitted Use"), and in accordance with any conditions of approval issued by the City. 4.2. Warranties. Tenant represents and warrants that all statements and representations made by Tenant in its Special Use Permit application are true and correct. 4.3 Compliance with Rental Guide. Tenant acknowledges that it has received a copy of the Rental Guide for the Amphitheater ("Rental Guide") and that Tenant has reviewed and is familiar with all terms and provisions of the Rental Guide. The terms and provisions of the Rental Guide are incorporated fully herein, and Tenant agrees to comply with all terms and provisions of the Rental Guide. 4.4 Safety Measures. Tenant agrees to take all actions reasonable necessary to protect human safety in the course of its use of the Amphitheater. 4.5 Compliance with Laws. In its use of the Amphitheater, Tenant will comply with all federal, state, and local law and regulations, including, without limitation, laws relating to fire, health, sanitation, and safety. 5. Payment. Tenant shall make all payments to the City for the booking, reservation, and use of the Amphitheater in accordance with the Rental Guide and the Financial Check-Off Sheet attached hereto as Exhibit A and incorporated herein. 7. Insurance. Tenant agrees to keep and maintain insurance in accordance with the terms and provisions of the Rental Guide. 8. Indemnification. To the fullest extent permitted by law, Tenant agrees to indemnify, protect, defend (by counsel reasonably satisfactory to City) and hold City and its officials, officers, agents and employees, and each of them, harmless from and against all claims, losses, liabilities, actions, judgments, orders, demands, costs and expenses (including without limitation reasonable attorneys' fees and costs) arising from or in any way related to: (1) the use and/or occupancy of the Amphitheater by Tenant and/or its officers, employees, agents, contractors, or invitees; (2) any bodily injury or trauma (including, without limitation, death, dismemberment, mental or physical illness, and/or emotional distress) suffered by any person while on the Amphitheater relating in any way to Tenant's use of the Amphitheater, or condition of the Amphitheater; (3) any injury or damage (including, without limitation, loss of profit, loss of opportunity)to any real or personal property or rights thereto, that is owned by City, or its officers, employees, agents, contractors, or invitees where such injury or damage is in any way related to the Tenant's use of the Amphitheater or condition of the Amphitheater; (4)any willful misconduct, negligence, or act or omission of Tenant, or its officers, employees, agents, contractors, or invitees in or about the Amphitheater; or (5) any default by Tenant under this Agreement, but excluding any claims, losses, liabilities, actions, judgments, costs and expenses arising from or relating to City's willful misconduct or sole negligence. 9. Alterations. Tenant agrees that it will not make any alterations or improvements to the Amphitheater, or any portion thereof, without City's prior written consent, which consent _ 2 _ IRV#4824-1276-6696 v City is under no obligation to give. If City consents to the making of any alterations or improvements, Tenant agrees that such alterations or improvements will be made in strict compliance with all applicable laws, rules and regulations of all governmental authorities having jurisdiction, will be performed in a good and workmanlike manner, and will be made in compliance with such other conditions as City may require in connection with the granting of its consent. Tenant agrees that it will pay, when due, all claims for labor or materials furnished or alleged to have been furnished to or for Tenant at or for use on the Amphitheater, which claims are or may be secured by any mechanics' or materialmen's lien against the Amphitheater or any interest therein. All alterations and improvements made by Tenant shall, at City's option and at Tenant's sole cost and expense, be removed from the Amphitheater at the end of the Term of this Agreement and the Amphitheater restored to the condition prior to the making of such alterations or improvements. 10. Tenant's Personal Property. All personal property of Tenant including, but not limited to, equipment, tools, supplies, and materials will be removed from the Amphitheater on the expiration or termination of the Agreement, at Tenant's sole cost and expense, and shall remain the property of Tenant. In the event Tenant fails to remove all equipment and personal property in accordance herewith, City shall be entitled to recover the actual cost to remove such personal property of Tenant and or clean the Amphitheater. 11. Damage and Destruction. Tenant shall keep the Amphitheater, facilities and fixtures in good condition and repair, and at the expiration or other termination of this Agreement, Tenant shall leave the Premises and facilities in at least as good a condition, state of repair and cleanliness as existed at the commencement of Tenant's use of the Amphitheater. Prior to the commencement of the Term of this Agreement, Tenant shall have an opportunity to inspect the condition of the Amphitheater and document any and all defects or damage existing at the Amphitheater prior to Tenant's use of the Amphitheater. Tenant shall document any and all defects or damage existing at the Amphitheater on the Pre/Post Rental Condition Settlement Form, which shall be attached hereto as Exhibit B and incorporated herein. Tenant shall not be responsible for the cost to repair or replace any pre-existing defects or damages at the Amphitheater. At the conclusion of the Term, the City shall prepare a post rental inspection of the Amphitheater and document any new defects or damage caused by Tenant's use. In accordance with the Rental Guide, Tenant shall be responsible for the costs to repair or replace any defects or damages caused by Tenant's use of the Amphitheater. 12. Assignment. Tenant may not assign this Agreement nor sublet all or any part of the Amphitheater, without the express written consent of the City. 17. Remedies. If Tenant is in default, then, in addition to all other rights and remedies which City may have at law or in equity, City has the following rights and remedies which are not exclusive but are cumulative: (a) City can terminate Tenant's right to possession of the Amphitheater at any time. No act by City other than giving written notice to Tenant will terminate this Agreement. (b) On termination, City has the right to recover from Tenant all unpaid rent or other payments due in accordance with the Agreement, in addition to any other amount, and court costs, necessary to compensate City for all detriment proximately caused by Tenant's default. - 3 - IRV#4824-1276-6696 vl 18. Late Payment. Rent and other amounts not paid by Tenant when due under this Agreement shall bear interest at the rate of ten percent(10%) per annum from the date due until the date paid. 19. City Entry. City and its authorized representatives shall have the right to enter all portions of the Amphitheater for any of the following purposes: (a) to determine whether the Amphitheater is in good condition and whether Tenant is complying with its obligations under this Agreement; (b)to inspect the Amphitheater; (c) in connection with City's design and construction planning respecting City's future use of the Amphitheater; (d)to post notices of nonresponsibility; and (e) where an emergency situation necessitates such entry. No exercise by City of its rights under this Section shall entitle Tenant to any damages for any injury or inconvenience occasioned thereby or to any abatement of rent or other amounts payable under this Agreement. 20. Hazardous Materials. Tenant agrees that it shall not generate, store, release, dispose of, or use any Hazardous Materials on, in, at or under the Amphitheater. In addition to Tenant's other obligations of indemnity under this Agreement, Tenant agrees to indemnify, protect, defend (by counsel reasonably satisfactory to Landlord) and hold Landlord and its officials, officers, agents and employees, and each of them, harmless from and against all claims, losses, liabilities, actions, judgments, costs and expenses (including reasonable attorneys' fees and costs) which they, or any of them, may suffer or incur arising from or relating to the use, generation, storage, disposal, or release by Tenant, its agents, employees, contractors, guests or invitees of any Hazardous Materials in, on or about the Property. As used herein, "Hazardous Materials" shall mean any and all of the following: any substance, product, waste or other material of any nature whatsoever which is or becomes listed, regulated, or for which liability arises for misuse, pursuant to the Comprehensive Environmental Response Compensation and Liability Act ("CERCLA"), 42 U.S.C. § 9601, et seq.; the Hazardous Materials Transportation Act, 49 U.S.C. § 1801, et seq.; the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. § 6901, et seq.; the Toxic Substances Control Act, 15 U.S.C.S. § 2601, et seq.; the Clean Water Act, 33 U.S.C. §1251, et seq.; the Insecticide, Fungicide, Rodenticide Act, 7 U.S.C. § 136, et seq.; the Superfund Amendments and Reauthorization Act, 42 U.S.C. § 6901, et seq.; the Clean Air Act, 42 U.S.C. § 7401, et seq.; the Safe Drinking Water Act, 42 U.S.C. § 300f, et seq.; the Solid Waste Disposal Act, 42 U.S.C. §6901, et seq.; the Surface Mining Control and Reclamation Act, 30 U.S.C. § 1201, et seq.; the Emergency Planning and Community Right to Know Act, 42 U.S.C. § 11001, et seq.; the Occupational Safety and Health Act, 29 U.S.C. §§ 655 and 657; the Hazardous Waste Control Act, California Health and Safety Code ("H.&S.C.") § 25100, et seq.; the Hazardous Substance Account Act, H.&S.C. § 25330, et seq.; the California Safe Drinking Water and Toxic Enforcement Act, H.&S.C. § 25249.5, et seq.; the Underground Storage of Hazardous Substances, H.&S.C. § 25280, et seq.; the Carpenter-Presley-Tanner Hazardous Substance Account Act, H.&S.C.§25300, et seq.;the Hazardous Waste Management Act, H.&S.C. §25170.1, et seq.;the Hazardous Materials Response Plans and Inventory, H.&S.C. § 25001, et seq.; the Porter-Cologne Water Quality Control Act, Water Code § 13000, et seq., all as they may from time to time be amended; 21. Notices. Except as otherwise provided, all notices required or permitted to be given under this Agreement must be in writing and addressed to the parties at their respective notice addresses set forth below; provided, that notices to Tenant may also be effectively given in writing and addressed to Tenant at the Amphitheater address. Notices must be given by personal delivery (including by commercial delivery service) or by first-class mail, postage prepaid. Notices will be deemed effectively given, in the case of personal delivery, upon receipt (or if receipt is refused, upon attempted delivery), and in the case of mailing, three (3) days -4 - IRV#4824-1276-6696 v following deposit into the custody of the United States Postal Service. The notice addresses of the parties are as follows: If to City: City of Cathedral City 68700 Ave Lalo Guerrero Cathedral City, CA 92234 Attention: Chris Parman If to Tenant: DAP Health 1695 N. Sunrise Way Palm Springs, CA 92262 Attention: David Brinkman 24. General. (a) The acceptance by City of any rental or other payments due hereunder with knowledge of the breach of any of the terms, covenants or provisions of this Agreement by Tenant shall not be construed as a waiver of any such breach. The acceptance at any time or times by City of any sum less than that which is required to be paid by Tenant shall, unless City specifically agrees otherwise in writing, be deemed to have been received only on account of the obligation for which it is paid, and shall not be deemed an accord and satisfaction notwithstanding any provisions to the contrary written on any check or contained in any writing transmitting the same. (b) The titles to the sections of this Agreement are for convenience of reference only and are not a part of this Agreement and shall have no effect upon the construction or interpretation of any part of this Agreement. Any exhibits attached to this Agreement and all other documents referenced in this Agreement(including, but not limited to, the Rental Guide and Special Permit Application) are, however, a part of this Agreement. In the event of a conflict between this Agreement and any attachment or other document referenced in this Agreement, the provisions of this Agreement shall prevail. This Agreement shall be governed by and construed in accordance with the laws of the State of California, without regard to any otherwise governing principles of conflicts of law. In construing this Agreement, none of the parties to it shall have any term or provision construed against it solely by reason of its having drafted the same. (c) Any provision of this Agreement that is invalid, illegal or unenforceable shall be ineffective to the extent of such invalidity, illegality or unenforceability without invalidating, diminishing or rendering unenforceable the rights and obligations of the parties under the remaining provisions of this Agreement. (d) No term or provision of this Agreement may be amended, altered, modified or waived orally or by a course of conduct, but only by an instrument in writing signed by a duly authorized officer or representative of the party against which enforcement of such amendment, alteration, modification or waiver is sought. Any amendment, alteration, modification or waiver shall be for such period and subject to such conditions as shall be specified in the written instrument affecting the same. Any waiver shall be effective only in the specific instance and for the specific purpose for which given. (e) This Agreement and all exhibits attached to it constitutes the entire agreement of the parties with respect to the subject matter hereof and supersedes all prior or contemporaneous agreements (whether written or oral)with respect to that subject matter. - 5 - IRV#4824-1276-6696 v (f) This Agreement may be executed in several counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. (g) If either party hereto brings an action to enforce the terms hereof or declare rights hereunder,the prevailing party in such action, on trial or appeal, shall be entitled to reasonable attorneys'fees to be paid by the losing party as fixed by the court. The parties have caused this Agreement to be duly executed by their respective duly authorized officers or representatives as of the date first set forth above. CITY OF CATHEDRAL CITY, a municipal corporatio *1—P p n Jl ll- Charles P. McClendon, City Manager ATTEST: ' 0_11A(.%r . i i ,-Cify Clerk APPROVED AS TO FORM: Eric S. Vail, City Attorney , Tenant By: Name: m OX A e Le rn e-1' . Title: \/Q I LA n4-ee f- C-oo rd ii a.f or - 6 - IRV#4824-1276-6696 v1