HomeMy WebLinkAbout2017 MOU with Gilroy Demonstration Gardenj 1
MEMORANDUM OF UNDERSTANDING
BETWEEN
G I LROY ARTS ALLIANCE
AND
GIILROY DEMONSTRATION GARDEN
1. 'RECITALS This Agreement is entered into on December_1. 2017 by and 'between the Gilroy
Arts Alliance, a, nonprofit corporation, ihereinafter referred to as "GAA" and G"i'liroy
Demonstration Garden, a nonprofit corporation, hereinafter referred to as "GDG.
Whereas, GAA is the leaseholder of the Gilroy Center for the Arts (the Center), and the
property surrounding the building located at 7341 Monterey Street, Gilroy, California,
and;
Whereas, GDG has provided a service to the Gilroy community since GIDG's inception,
and wishes to continue doing so in specified fenced area on Premises;
Whereas, GIDG wishes to Ilease space at the grounds of the Center on a non-exclusive
basis; and,
Whereas, GAA wishes to lease space to GDG on the Center grounds on the terms and
conditions set forth in this Agreement.
The purpose of this Memorandum of Understanding is to define the working
relationship between GAA and GDG. This agreement will) clarify the collaborative roles
and res,ponsib;illities of the two parties with respect to the Demonstration Garden,
(located within the fenced area on the Eigelberry Street side on the property that Gilroy
Arts Alliance leases. Site map attached. GDG agrees and understands to only !utilize the
area within the fenced garden. The adjoining lot(s) are not to be used by GDG. Rent for
the use of the property for the purposes of a Demonstration Garden shall be $1 annualRy
for the duration of this Memorandum o Understanding, as described in Section U,
paragraph 3.
Nothing iin this agreement slhould be construed as creating a partnership or joint
venture between GAA and GDG, or any other party or cause GAA to be responsible for
the debts or obligations of GDG or any other party.
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II. AGREEMENT
1. Term; Termination; Holding Over.
1.1. Term. The term of the Agreement shall commence on December 1, 2017 and end on
November 30, 2020, unless terminated earlier ipursuant to the terms of this Agreement.
1.2. Termination.
1.2. ��. ShouI'd either party determine that the other party has breac�hed'� material
provision of this Agreement, it may terminate the Agreement lupon sixty (60) days
written notice.
1.2.2. S!houild GAA determine, in its sole discretion, that use of the specified premises
by GDG is causing undue damage or security issues, or that GDG's use of the
specified premises is incompatible with other uses (i.e. mulch outside the fenced
garden), actual or intended!, of the Center, then GAA may terminate this lease by
giving written notice to GDG ninety {90) days before the effective date of said
termination.
1.2.3. If either iparty determines, in its sole discretion, that it is unable or unwilling to
continue this Agreement under the terms hereof, each party reserves the right to
terminate the Agreement upon providing one hundred eighty (180) days written
notice to the other party, with the exception that GDG may terminate this lease by
giving ninety {90) days written notice.
1.2.4. Should G'DG cease to operate, abandon, be dispossessed, surrender or otherwise
vacate the premises, GAA, at GAA's option, may immediately terminate this
Agreement and enter the Garden and remove all persons and property.
2. New Agreement
2.1. Prior to negotiating with any other potential occupant, GAA agrees to negotiate with
GDG regarding a potential new agreement lupon expiration of this Agreement. Notice of
intent to commence negotiation must be given by GDG to GAA at least twelve (12)
months prior to the expiration of this Agreement.
3. iFees and Charges..
3.1. Base !Lease Payments
GDG will 1pay an annual fixed base 'lease ipayments of One Dol0ar ($1:00). Lease payments
are computed separately from utility costs. Lease payment of One Dollar ($1.00) is to be
paid on an annual basis, and is due and payable on the first day of the lease, with the first
payment due and payable on December 1, 2017.
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3.2 Additional Service Fees
GDG shall be responsible for,payment for any requested addlitional services provided by
GAA, not otherwise (provided for in this agreement. This inc'l'udes, but is not limited to,
re oval of mulchi tocated outside the agreed airea of the fenced garden, and unpaid water
bills.
Water for the garden will be se,parate'ty metered) and GDG will be responsib'Ie for water
expenses of the water meter dedicatedi to the Gard'e!n. GDG will have their information on
file at the City of Gilroy pertaining to all water (bilks for the Garden within 15 days of signing
this MIOU. Should the GAA need to spay for any of the costs associatedi with the
development, maintenance or other use of the Garden, GDG will reJmb,urse GAA within 15
days of the !bill being presented to 'her by GAA. Addition fees for GAA staff to process may
be incurred.
3.3 (Due Date
Fees owed GAA under Paragraph 3.2 shall be due and payable without further notice from
GAA within thirty days from notification when such events occur. Fees owed GAA under
Paragraph 3.4, as wela as any other fees or charges in the other sections of the Agreement,
are due and payable within 30 days from incurrence.
3.4 (Late Charges; Default Interest
3.4.1. GDG acknowledges that'!late payment of sums dine under this Agreement may
cause the GAA to incur aMitional costs not contemplated by this Agreement, the
amount of which will Abe ,difficult to ascertain. Therefore, cif any sum due from GDG is not
received by GAA within thirty (30) days from the due date, then without any
requirement for notice to G'DG1, GDG shall pay to GAA ai slum equat to five percent (5 %)
of the overdue sum.
3.4.2. If GDG, fails to pay any amount due under this Agreement ,afteir sixty {60) days of
the ldu,e datejn addition to the late charges specified in Paragraph 3.4 (1) above, the
amount due sha'll'1 bear interest at the maximum rate then a'll'owabl'e by law from the due
date until paid).
4. Use of Premises
4.1 Non - Exclusive Use
Exclusive use of the Center groundls is not granted. GAA intends to and wilt allow other
entities, including GAA, to use Premises, and support and access spaces will be sharedl.
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GDG is granted use of the specified Premises (fenced area) only. The utmost etiquette is
required) of GDG, incliuding consideration to the space outside the fence.
4.2 Scope of Use
GDG shall use specified area of Premises for the purpose of the described events and for
uses nor aIlly incidentaU to such use, not for other purpose unless previousily authorized
by GAA in writing. GDG agrees to work within the fenced specifiedi area of Premises and
not to use the adjoining lot. GAA understands mulch is a part of the Garden's function
and' GDG will occasionally need to use a small' portion of the adjoining'Iot (outside the
fence) for temporary placement of mulch. GDG has al time limit of 10 business dam to
dump and remove the mulch without iincurriing additional rental expense from GAA (see
section 3.2). No other items may be deposited in the adjoining lot without written
agreement fromi GAA. GDG agrees to comply withi all terms and' conditions, and
incorporated herein, laws, ordinances, rules, regulations, and policies applicable to the
Center and property, including those imposed" or required by the �GAA's insurers and the
City of Gilroy. This includes, but is not limited) to, ikeeping the specified Premises clear of
any and all' fire danger. GDG further agrees to comply with the direction of the GAA's
Executive Director and /or President, or if there is a conflictof interest, by the Board of
Director's designee with respect to the use of the specified fenced! area.
GAA sha'IU iprovide access and the ruse of the designated portion of its premises between
6th andi 7th Streets, and Monterey and Eigleberry Streets (see attached map), to GDG for
the continued development, maintenance, and other various uses of a Demonstration
Garden ".
Use of the identified area on the premises as a community gard'e.n shall be limitedi to
faci:litating a community garden program, recruiting and managing vo'l'unteers to work at
the garden and teaching gardening classes fundamentals to the community. GDG may
collaborate with any other public agency to provide such service, provided GAA is
notified of such collaboration in writing.
GDG shall not, without prior written consent of GAA and the City of Gilroy, make or
install any alterations, improvements, additions or buildings.
GiDG shall not, without prior written consent from GAA and City of Gilroy, install) or affix
to any portion of the Premises any interior or exterior signs., placards or the like
(co'llectively "Signs "). If GAA and City of Gil'.roy consents to the erection of any Signs,
such Signs shall comply with any sign criteria imposed by GAA, City of Gilroy and all
applicable !laws.
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4.3 Salle and Consumption of Foodil and Beverages.
GDG may not iprovide any food and beverage concessions for their events, unless it is in
compliance with the Santa Clarai County Hea'Ith Department (SCCHD)l and all other
applicable laws. This compliance is solely the responsibility the GDG or other designated
entity authorized by GAA to provide food ands /or beverage. A copy of all applicable
permits from SCCHD must be submitted to GAA prior to an event.
GDG will be responsi'b'le for any necessary ABC permits, should! any form of alcohol be
served /so'ld at ai GIDG event. Copies of the ABC permits must be submitted to GAA ,prior
to an event
4.4 Restrictions on Use
GDGI shall use and maintain, the specified area of iPremises in all c1lean, orderly, and safe
manner. The visible exterior will be kept trimmed, orderly and aesthetically p''leasing.
GAA will review the appearance, of the Garden on a monthly basis and make reqluests
for changes as needled. Requests for changes to, the specified area of the Premises must
be made withijn 10 business days from the date of communication. GDG shailll not
commit any waste or any public or private nuisance upon the specified area of (Premises.
GDC shall pick up all waste generated by GDC, and p'Iace in proper waste receptacles
within 24 hours of the waste - generating event. Removal of waste from the property will
'be within the next cyclle of pubilic waste pick up.
4.5, "Good Neighbor " '.Provision
GDG shall not interfere with the use of any properties adjacent to or in the immediate
vicinity of the Center, and shall endeavor to mai taain good relations with the owners
ands /or tenants of such properties. GDG shat use reasonable efforts to m,i,tigate the
effects on such properties from parking, alights, mulch and sound incurred in the use of
the specified' area of Premises.
5. Free of clutter and mess
GDG shall ensure that the specified Premises and! adjoining Tots are free from general
clutter and trash after each use. Following any use of the Garden, GDG shall promptly
leave the specified Premises in a clean, orderly and safe condition.
6. Oblligatio,ns of GDG
6.1 Meeting Attendance /GDG 'Board Minutes
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GDG agrees to attend, upon reasonable notice, meetings called by the GAA Executive
Director, President or his /her designees to discuss issues relating to ands compliance
with the provision of this Agreement. GDG a'Iso agrees to forward minutes from alill GlDG
board meetings to GAA Executive Director, via, email, within a, reasonable time frame of
the meeting, not to exceed three weeks, to keep GAA up to date on GDG proceedings.
6.2 iEvent'Notification
G'DG shal] provide GAA with written ��notificati��on of upcomli g events, diiinners,
fundraisers, etc. at least 30 days prior to the event.
6.3 Use of Center Parking Lot
With advanced notice, GAA shall endeavor to ensure that GDG patrons may lutilize
Center parking areas, if GAA does not have an event, class or performance. GDG will
inform ipatrons of readily available public parking on the street and across the street in
the Clity's public parking Ilot.
6.4 Comply with appl'ica'ble laws
GDG shall be responsible to ensure its activities comply withi all applicable laws,
regulations, and other agreements which govern its use, including but not limited to City
of Gilroy Special Permits, ABC permits and Santa Clara County Health Department
permits.
6'5 Duty to report damage and security issues
Security and' safety on the Center Premises is a top priority for GAA. GDG shall, as soon
as practical, report every damage and security episode to GAA monthly. GDG will work
with Gilroy Police 'Department on issues of vandalism, trespassing, theft, etc. GDC will
notify GAA, in writing, of every security issue so that we may monitor the activity on the
Center Premises. Theis can be done in a monthly summary email. GAA will review and
discuss with GDC, as needled.
6.6 Use of property
Should G!DG make use of this property for any other use than al community
demonstration garden and garden related activities, the agreement can be revoked
without advance lnotice. Such garden related activities include but are not limited to a
child' gardening-surnmer camp, internships, voilunteer gardening, workshops, and a farm
to table dinner. Any revenue or expenses from such activities are the sole responsibillity
of GDG.
G
GDG shall bear all costs associated with the devel'o,pment, maintenance or other use of
the Garden. This shall inctude, but is not limited to, all equipment, labor, material,
services, graffiti abatement, repairs, removal of mutch, security, lighting, metering and
use of water, lutilitlies, ands insurance.
7. Assignment and Subletting
GDG may not assign this Agreement, nor sublet any portion of the Premises, without
GAA's 1prior written consent which it may with'ho'ld in its sole discretion.
8. Non- Discrimination; Non -Violation
GDG covenants there shall be no discrimination based upon race, co'Ior, creed, religion,
gender, marita'I status, age, disa'billity, national origin, sexua'li orientation, or ancestry, in
any activity ipursuant to this Agreement. GDG further covenants that the activities ands
use of the specified Premises shall co mply with the Americans with Disabilities Act as
best it can warrant.
8. Exemption from Liabillity
,GAA shall, not be liable for damages to GDG's property arising from natural disasters, the
failure of the supply of water, gas, electricity, or power, for necessary repairs or
otherwise, nor for the stoppage, leakage, or bursting of any gas, water, steam, sewer or
other ipipe, tank, or other fixtures, or for any annoyance, inconvenience or damage
caused by any electric or other wire, whether upon the said leased Premises or in other
parts of the Center's property.
9. Hazardous Materials
GDG shall not keep or maintain any hazardous substance, other than ordinary cleaning
supplies, small, quantities of waste, on or in the specified Premises without GAA's prior
written approval. GDG shatll promptly give notice to GAA of any hazardous substance
dispersal or spill,, or 'hazardous materials claim, of which it ilis aware. GDG shall indemnify
and holdi GAA harmless from any and all claims, costs, damages, penalties, or any
liabilities or lawsuit award's arising out of the use or release of any (hazardous substance
at, in, or on the Center. The ter "hazardous Substance" as used in this Agreement shall
mean any product, substance, chemical, material, or waste whose presence, nature,
quantity, and /or intensity of existence, use, manufacture, disposal, transportation, spill,
release, or effect either by itself or in combination with other materials expected to be
at the Center or on the Premises, is either a) ,potentially injurious to the public health,
safety, or welfare, the environment, or Center, b) regulated or monitoredi by any
governmental authority, or c) a, 'basis for liability of GAA to any governmental agency or
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third party, under any applicable statue or common law theory. Hlazard'ous Substance
shall include, but not be limited to, hydrocarbons, MTBE, petroileum, gasoline, crude oil,
or any products, by- products, or fractions thereof.
1101. Inspection
GAA and the City of Gilroy may enter GDG's specifiedi Premises at a'll reasonable times to
inspect the property. GAA will endeavor to communicate such an inspection wlith
reasonable notification, unless there is an emergency.
11. Insurance
1.1 Definition-
For purposes of this section, the following definition applies: GAA includes the duly
elected' Board members, officers, agents, employees, contracted) independent
contractors, and volunteers of GAA, and the staff, elected officials, volunteers, and
representatives of the City of Gilroy, individ'ua'lly and /or collectively.
11.2 Comprehensive General Liability
In furtherance of iits obligations pursuant to this Agreement, GDG agrees to obtain and
aintain during the term of this Agreement comprehensive general liability protecting
GDG in the amount of not less than One Million (Dollars ($1;000,000) per occurrence,
inci'uding bodily injury and property damage, as a combined single limit or equivalent.
Such insurance shall name the GAA and the owner of the Center, the City of Gilroy, as
defined! above, as an addition,alli insured by endorsement to the insurance policy.
Coverage shall be in accordance with the limits specified above and the provisions
indicated' herein. Claim -made policies are not acceptable. When an umbrella or excess
coverage is in effect, it must follow the formi of the und'er'lying coverage. Such insurance
shall not be cancelled' or materilatty altered to reduce coverage without giving GAA at
least thirty (30) days advance written notice of such cancellation or change, and it sha111
be the responsibility of GDGI and GDG's insurer to notify City of such change or
cancellation. GAA reserves the right to review the insurance policy and coverage limits,
and shialll receive a copy of the insurance policy prior to this Agreement being in effect.
11.3 Workers Compensation Insurance
To the extent GDG (has individ'uatls which may be subject to workers' compensation (law,.
,it agrees to obtain and maintain Statutory Workers Compensation and emp'loyer's
liability in an amount not less than One Million iDollars ($1,000,000) and' furnishl GAA
with a certificate showing proof of such coverage.
11.4 Certificates of Insurance with Endorsements
GDG shall file the required original Certificate of Insurance with endorsements with the
!Executive Director of the GAA iprior to any use of the specified' Premises. The Certificate
shall be subject to GAA's approval and shall clearly state:
a) Policy number; name of insurance company, name, address and te'I!ephone
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;
b) That thirty (30) days cancellation notice is required, unqualified as to the
acceptance of liability for failure to notify GAA; and
C) GDG's insurance is primary by endorsement to the insurance policy, to the
extent that GDG is otherwise liable to GAA under this Agreement.
11.15 Deductibles, Se'If- Insured, (Retentions, and Proof of Insurance
Prior to commencing any use of the specified Premises, deductibles, and se'If- insured'
retentions acceptable to GAA must be stated on Certificate of Insurance, and the
Certificate of Insurance must be approved by GAA.
11.6 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 the specified! Premises; any delays or
expenses caused due to change of insurance shall be considered GDG's delay and shall
not affect GAA.
11.7 Insurance Companies
Insurance provided pursuant to this Agreement must be from insurance companies
admitted in California and rated at A: Vil! in the latest Best's Insurance Guide, or such
other insurance companies as are acceptable to GAA in its sole and unfettered' decision.
12. Defense, Hold Harmless, and Indemnification
GDG shall defend, indemnify, and hold GAA and the City of Gilroy, its officers,
employees, contractors, agents, volunteers and elected officials harmless fromi any and
ail[ liability or claims of same arising out of this Agreement and /or use of the specified
Premises by or through GDG.
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13. Remedies
S'hou'ld GAA at any time terminate this Agreement for any breach, in addition to any
other remedy it may have, it may recover from GDG all damages it may incur by reason
of such breach, including but not limited to: a) the cost of recovering the specified
Premises; ib) all rent dues, and unpaid as of the date of such termination, plus interest
on said sum at the rate of S% per annum; c) amounts that would have fallen due as
rent between the time of termination of this Agreement and the time of the judgment
or other award, less the avails of ail re- lettings and atonements, plus interest on the
balance of fifteen percent (15%) per year; d) the worth at the time of the judgment or
other award', of the amount by which the unpaid' rent for the balance of the term
exceeds the amount of such rental loss that G!DG proves could be reasonably avoided;
and e), any other amount necessary compensate GAA for all the detriment proximately
caused by GDG's failure to perform GSG's obligations under this Agreement or which in
the ordinary course of things would be likely to result therefrom.
4. Force Majeure
Pn the event that the performance of any of the covenants of the agreement on the part
of GAA shalt be prevented by an act of nature, the acts or regulations of public
authorities, other than acts or regulation of GAA, City of Gilroy, 'labor unions, labor
difficulties., strikes, or any other cause ibeyond its control, GAA willl be relieved of its
obligations, and further, upon such event, neither party shall be obligated) for any
expenses incurred by the other party, i'ncl'uding, but not limited to, any and all expenses
incurred for promotion, artists' fees or preparation costs, if any, a.s incurred'..
15. Waiver of Breach
Any expenses or implied waiver of a breach of any term of this Agreement, or
acceptance of any late payment from GDG, shall not waive any rights of GAA or the City
of Gilroy, and shall not constitute a waiver o any further breach of the same or other
term of the Agreement.
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16. Notice
All notices sha'II The personailfy d'e!livered or mai'l'ed, via first class mail to the ibelow listed
address. This address shall be used for d'el'ivery of service of process
a. Address of G!DG is as follows:
7360 Eiglebe:rry Street
Gilroy, CA 95020
b. Address of GAA is as follows:
7341 Monterey St.
Gilroy, CA 95,020
Sends copies c/o
Executive Director
26. Entire Agreement; Amendment
This Agreement constitutes the entire Agreement of the parties as to the specified Premises,
and the specified, use term. Any agreement or representations respecting the Center or its use
not expressly set forth herein are void. This Agreement may only be amended by written
agreement signed by iboth parties.
27. Governing Law; Venue
This Agreement shall be construed and enforced pursuant to the laws of the State of California;
Santa Clara County shall be the venue for any legal proceedings in this matter.
28. Attorney's Fees
If any action at law or in equity is brought to recover any rent or other sums under this
Agreement, or for or on account of any ibreach of or to enforce or interpret any of covenants,
terms, or conditions of this Agreement, or for the recovery of t'he possession o, the specified'
Premises, the prevailing party shall' be entitled to recover from the other party their reasonable
costs and attorneys' fees, the amount of which shall be fixed by the court and made a part of
any judgment rendered.
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29. Severability
Should any provision of this Agreement be found invalid or lunenforceab'le, the decision shall
affect only the provision interpreted, andl all remaining provision shall remain enforceable.
30. No Third Party Beneficiaries
This Agreement is for the benefit of GAA and GDG, and is not intended to, and does not, create
any rights, responsibilities or obligations on behalf of third parties.
31. Authority to Execute
The person signing this Agreement declares the he /she has the authority to binds GDG. In the
event that the signatory !lacks such duly granted authority, said undersigned signatory
personally assumes all liability for fees, costs and damages. The GAA siignatory declares he /she
has the authority to bind GAA, as Executive (Director.
31. Exhibit
The following exhibit is attached hereto and incorporated' herein:
Exhibit A GAA Rentat Agreement
This Agreement accepted and approved by the GAA iboard' of directors at a regu'l'arly convened)
board meeting on September 14, 2017.
ATTEST:
GILROY ARTS ALLIANCE G'ILROY CENTER FOR THE ARTS
A California nonprofit corporation
By.
Its: rt,KtCyT1v4��
Date: / /-14? //- 7
GILROY IDEIMONSTRATION GARDEN
A California nonprofit corporation
ByQN
Its:
Date:
1 2�1 i
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*Memorandum of Understanding Between Gilroy Arts Alliance & Gilroy Demo Garden
A notary ipublic or other officer completing this certificate verifies only the identity of the individua0 who signed the
document to which this certificate i,is attached, and not the truthfulness, accuracy, or validity of that document.
State of California
County of Santai Clara
On November 29, 2017 before mme, Chris Gonzales a Notary Publlic, personally appeared' Kevin R Heath & Judy Hess, who
proved' to me on the basis of satisfactory evidence to be the person(s) whose name(s) is /are subscribed to the within
instrument and' acknowledged' to me that he /she /they executed) the same ini his/her /their authorized capacity(ies), and
that by his /her /their signature(s) on the instrument the person(s), or the entity upon beha'If of which the iperson(s) acted,
executed the instrument.
I certify under PENALTY OF iPERJURY under the laws of the State of California that the foregoing paragraph is true and
correct. j
i
WITNESS my hand an o ici eal'
Signature:
Nam ( Chris Gon
or printed) (Seal)
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