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HomeMy WebLinkAboutCDC/2000-09 1 2 3 4 5 6 7 RESOLUTION NO. CDe 2000""9 RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF SAN BERNARDINO, AS THE GOVERNING BODY OF THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO, AUTHORIZING THE CHAIRPERSON OF THE COMMUNITY DEVELOPMENT COMMISSION TO EXECUTE A TWO (2) YEAR OPERATION AND MANAGEMENT AGREEMENT WITH THEATRICAL ARTS INTERNATIONAL. 8 NOW, THEREFORE, BE IT RESOLVED, DETERMINED AND ORDERED BY 9 THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF SAN BERNARDINO, 10 AS FOLLOWS: 11 12 Section 1. Based upon the record submitted at the 13 meeting at which this Resolution was approved by the Commission, as 14 the governing body of the Redevelopment Agency of the City of San 15 Bernardino (the "Agency"), the Commission hereby finds and 16 determines that the terms of the Operating and Management Agreement 17 attached hereto as Attachment No.1 and incorporated herein by this 18 reference (the "Agreement") are acceptable to the Commission. The 19 Commission is informed by Theatrical Arts International that the 20 terms of Agreement are acceptable to it. 21 22 Section 2. The Commission hereby approves and accepts 23 the Agreement, as attached hereto as Attachment No.1. The 24 Chairperson of the Commission of the Agency is hereby authorized 25 and directed to execute the Agreement on behalf of the Agency. 26 III 27 I I I 28 I I I SBEO/0001/DOC/4029 4/13/00 dgw 1 CDC 2000-9 RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF SAN BERNARDINO, AS THE GOVERNING BODY OF THE REDEVELOPMENT AGENCY 2 OF THE CITY OF SAN BERNARDINO, AUTHORIZING THE CHAIRPERSON OF THE COMMUNITY DEVELOPMENT COMMISSION TO EXECUTE A TWO (2) YEAR 3 OPERATION AND MANAGEMENT AGREEMENT WITH THEATRICAL ARTS INTERNATIONAL. 4 5 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Community Development Commission of the City of San Bernardino at a j oint regular meeting 6 thereof, held on the 1st day of May , 2000, by the following vote, to wit: 18 19 The foregoing Resolution is hereby approved this 3d day of May ,2000. 20 '-LL<--- . IT ALLES, Chairperson /t munity Development Commission / OJ the City of San Bernardino l_/ 21 22 23 Approved as to form and legal content: 24 City Attorney's Office 25 By: declined to sign. Agency Counsel 26 27 28 2 CDe 2000-9 OPERATION AND MANAGEMENT AGREEMENT This Operation and Management Agreement (Agreement) is made and entered into as of this May 1, 2000, by and between the REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO, a public body corporate and politic (the "Agency") and THEATRICAL ARTS INTERNATIONAL, a California Corporation ("TAl") with reference to the following facts: A. The Agency owns the California Theatre of the Performing Arts ("Theatre"). The Agency desires to operate the Theatre in a manner that stimulates downtown economic activity and that provides a broad range of cultural opportunities for San Bernardino citizens. B. In order to assist the Agency with the operation of the Theatre, TAl is willing to provide operating and management services as more fully described thereunder, upon the terms and subject to the conditions in this Agreement. NOW THEREFORE, the Agency and TAl agree as follows: 1. Engagement of TAl The Agency hereby engages TAl to provide the operating and management services described in Section 2 of this Agreement, and TAl hereby accepts such engagement and agrees to provide such services under this Agreement during the term specified in Section 8. 2. Management Services TAl shall supervise all aspects of the Theatre's management and will provide operating and management services that include physical operation of the Theatre, booking of rentals, collection of rent, development of new business opportunities and assistance in developing approaches to capital expenditures. TAl shall provide the following specific services to the extent required or determined by the Agency's Director of Business Recruitment, Retention & Revitalization or designee ("Director") from time to time. (a) TAl shall program the Theatre and book all events in the Theatre, whether in the main auditorium or in any other public room in the Theatre. TAl will program the Theatre in a manner that results in highly active use of the Theatre for a broad variety of performance types. TAl shall make the Theatre's schedule available not less than SBEO/0001/DOC/4027 4/12/00 1055 jrnw 1 CDC 2000-9 27 days per year to local non-profit performance groups and for Agency presentations (including Main Street) which days shall be reasonably available throughout the year upon adequate notice. So long as performance dates are delivered to TAI not later than the last day of February of the immediately preceding calendar year. (b) TAI shall use the standard Agency rental contract and ticket sales agreement. (c) Upon approval of each year's budget as described in Section 6 ("Operating Budget"), TAI shall contract for all required operating staff to operate the Theatre and arrange for all required services needed for scheduled usages. TAI shall negotiate maintenance contracts and obtain services and equipment as required. TAI will diligently strive to obtain the best prices for goods and services or sponsorship of such goods and services consistent with the quality required. Any expense which exceeds its line item allowance in the Operating Budget shall have received the advance written authorization of the Director except in cases of an emergency nature where action is required to preserve public safety or the integrity of the property. Such emergency action shall be reported to the Director as soon as practical but within 24-hours in any event. TAI shall review all bills and invoices prior to submission to the Agency for payment and advise the Agency for payment and advise the Agency as to the appropriate action to be taken in each instance. (d) TAI shall assist the Agency, its inspectors, contractors, and consultants in making recommendations regarding the physical condition of the Theatre and any needed capital repairs, improvements or programs needed for long-term operation of the Theatre. TAI shall coordinate the execution of all approved capital improvements. (e) TAI shall supervise the Theatre's operation at each and every performance or use of the building using qualified personnel. Supervision to include all aspects of operation, i.e., box office, stagehands, etcetera. TAI will be physically represented at all functions and will maintain an office on site to be staffed at all normal business hours. (f) TAI shall deposit all ticket or other income into a separate TAI bank account ("Box Office Account") held in SBEOI0001/DOC/4027 4/12/00 1055 jmw 2 CDe 2000-9 trust for the Agency. TAl shall deposit all received funds into the Box Office Account on a regular basis (not less than twice a week). TAl may payout Reimbursed Expenses (as defined in Section 4) and rental settlements from the Box Office Account. TAr will provide a full accounting of all transactions at the end of each calendar month. Excess funds will be transferred to the Agency in accordance with procedures determined by the Director from time to time. This section 2(f) shall not apply to ticket sales for San Bernardino non-profit performance groups which retain the proceeds from sales of their own tickets. 3. Personnel (a) In performing the management services set forth in Section 2, TAl shall report to and operate under the direction of the Director and shall act as an agent of the Agency and not upon TAl's own authority. TAl commits Joseph Henson and Allen Evenson, or their assigned qualified staff to the performance of TAl's duties under this agreement. (b) It has been determined that Joseph Henson and Allen Evenson are necessary to the successful performance of this agreement. No diversion or replacement of Joseph Henson and Allen Evenson shall be made by TAl without written consent of the Director. 4. Management Fee (a) In consideration for TAl's provision of the operating and management services set forth in Section 2 above, TAl shall receive 20 rent free performance days during the term of this agreement. TAl will pay all hard costs associated with these performance dates, included but not limited to security, ushers, janitorial, etc. TAl performance dates will be scheduled over the period of one calendar year. See Attachment "Au. (b) In addition, TAl shall receive 50 percent of cash sponsorships obtained by TAl as determined in accordance with generally accepted accounting principles. Said sponsorship fees will be paid annually within 60 days of the close of each fiscal year. (c) TAl shall not bill the Agency separately for any services provided by its officers or other representatives of TAl SBEO/0001/DOC/4027 4/12/00 1055 jmw 3 CDC 2000-9 as such services are included in the management fee. Costs of any direct theater personnel, (i. e., the box office manager and cleaning staff including costs for payroll and pertinent benefits) shall be charged to the Operating Budget described in Section 6. Costs for ushers, security guards, stage manager, equipment rental, etc., that are reimbursed by Theatre's renters ("Reimbursed Expenses") may be paid from the Box Office Account in accordance with Section 2(f). (d) All presentations by TAl and/or others are outside the scope of this agreement. TAl will be responsible for losses incurred through its own presentations or its portion of any separately approved co-promotions with Agency. Agency will be responsible for losses incurred through its own presentations (including those of Main Street, etc) or its portion of any separately approved co-promotions with TAl. 5. Vendor Payments Payments for goods and services, other than those for management and operating personnel, shall be made directly by the Agency to the applicable vendors. No such payments shall be made by or through TAl without prior written approval of the Director. 6. 0gerating Budget Ninety days prior to the end of each fiscal year TAl, in consultation with the Director of Business Recruitment, Retention and Revitalization, shall develop a budget for inclusion in the Agency's budget to be approved by the Community Development Commission. Such approved budget shall be the following fiscal year's Operating Budget. 7. Maintenance of Services Neither TAl nor its employees shall hinder, delay, limit or suspend the continuity of the Theatre's function, operation or service in any manner. TAl shall not in any manner coerce, intimidate, instigate, endure, sanction, suggest, conspire with, promote, support, sponsor, engage in, condone or encourage any employee to participate in any strike, slowdown, mass resignation, mass absenteeism or any type of concerted work stoppage. In the event any of the above-described actions occur, TAl shall be obligated to maintain the management services which are the subject of this agreement. SBEO/0001/DOC/4027 4/12/00 lOSS jmw 4 CDC 2000-9 8. Term and Termination 8.1 Term This Agreement shall commence on the first (1st) day of May, 2000, and stay in effect for two (2) years through April 30, 2002. 8.2 Termination Either party may cancel this agreement by giving a 30-day written cancellation Notice pursuant to Section 10.1 here with in. 9. Indemnification and Insurance 9.1 Indemnification 9.1.1 TAl will accept the full responsibility for and shall defend, indemnify and save harmless the Agency and its commissioners, officials, officers, employees and agents from all claims for all loss or damage to property, including loss of use thereof, costs, attorneys' and witnesses' fees, and expenses incident thereto, and injury to persons resulting from the negligent execution or performance of this Agreement as well as for any claims made by or on behalf of TAl's agents, servants, and/or employees arising out of their employment or work pertaining to the operations under this Agreement; moreover, TAl shall at all times defend, indemnify and hold the Agency, its commissioners, officials, officers, employees and agents harmless from and against any and all liabilities, demand, claims, suits, losses, damages, causes of actions, fines, or judgments, including costs, attorneys' and witnesses' fees, and expenses incident thereto, arising out of or in connection with any act or omission of TAl or its agents, servants or employees in the execution or performance of this Agreement or as a result of the failure by TAl to comply with all laws, ordinances or governmental regulations applicable to TAl or the conduct of TAl's business. The Agency shall accept the full responsibility for and shall defend, indemnify and save harmless TAl and its commissioners, officials, officers, employees and agents from all claims for all loss or damage to property, including loss of use thereof, and inj ury to persons SBEO/0001/DOC/4027 4/12/00 1055 jmw 5 CDC 2000-9 resulting from the negligent execution or performance of this Agreement as well as for any claims made by or on behalf of the Agency's agents, servants and/or employees arising out of their employment or work pertaining to the operations under this Agreement; moreover, the Agency shall at all times defend, indemnify and hold TAl, its commissioners, officials, officers, employees and agents harmless from and against any and all labilities, demand, claims, suits, losses, damages, causes of action, fines, or judgments, including costs, attorneys' and witnesses' fees, and expenses incident thereto, arising out of or in connection with the execution or performance of this Agreement or as a result of the failure by the Agency to comply with all laws, ordinances or governmental regulations applicable to the Agency or the conduct of the Agency's business. For the purposes of this section, the costs, salaries and expenses of the city Attorney and members of his office shall be considered as attorneys' fees. 9.2 Insurance 9.2.1 Without limiting the effect of any indemnity in this Agreement, TAl shall purchase and maintain in effect, at its own expense, during the term of this Agreement insurance from insurers acceptable to the Agency protecting TAl, the Agency, its commissioners, officers, employees and agents, against claims for bodily injury, including personal injury, property damage, including loss of use thereof, which may arise or be alleged to have arisen, from TAl's activities in connection with the performance of this Agreement, whether such activities be of TAl, TAl's agents, or of anyone employed by TAl. The types of insurance coverage as well as the amounts of such coverage shall be as follows: 9.2.2 TAl shall furnish workmen's compensation and employers' liability insurance as required by the laws of the State of California covering all persons employed by TAl in the performance of the duties described herein. 9.2.3 TAl shall provide public liability insurance coverage in the amount of not less than $1,000,000 for property, death or injury of one person, and anyone accident or casualty, covering the performance of the services herein ordered. The Agency, its commissioners, SBEO/0001/DOC/4027 4/12/00 1055 jmw 6 CDC 2000-9. officials, officers, employees and agents, shall be named as an additional insured. 9.2.4 Within ten (10) days after the acceptance of this Agreement by the Agency, TAl shall deliver to the Agency certificates of insurance evidencing that insurance has been purchased by TAl as required in this Section 9.2 and copies of endorsements providing (i) thirty (30) days' written notice of cancellation, non-renewal, or reduction in coverage by the insurers to the Agency, (ii) automobile liability and comprehensive general liability insurance, and (iii) that the Agency, its commissioners, officials, officers, employees, and agents are additional insureds. Said certificates and insurance and copies of endorsements shall be on file with the Agency at all times thereafter during the term of this Agreement. Failure of TAl to provide the certificates of insurance or subsequent receipt by the Agency of a notice of cancellation of the insurance policy(ies) by TAl's insurance company (ies) shall constitute a material breach of this Agreement and this Agreement may be terminated by the Agency upon written notice. All policies of insurance required and provided by TAl under this Section 9.2 shall include, or be endorsed to provide, a waiver by the insurers of any rights of subrogation that the insurers may have at any time against the Agency, its commissioners, officials, officers, employees and agents. 10. Miscellaneous 10.1 Notices Any and all notices required or permitted to be given hereunder shall be in writing and shall be personally delivered or mailed by certified or registered mail, return receipt requested, postage prepaid, to the respective parties at the addresses indicated below: If to Agency: Redevelopment Agency of the City of San Bernardino 201 North "E" Street, Suite 301 San Bernardino, California 92401-1507 Attn: Director, Business Recruitment, Retention & Revitalization If to TAl: Theatrical Arts International PO Box 270 San Bernardino, California 92402-0270 SBEO/0001/00C/4027 4/12/00 1055 jmw 7 CDe 2000-9 Any party may change its address by a notice given to the other party in the manner set forth above. Any notice given personally shall be deemed to have been given upon service and any notice given by certified or registered mail shall be deemed to have been given on the fifth (5th) business day after such notice is mailed. 10.2 Integration This Agreement supersedes all prior agreements and understandings between the parties relating to the subject matter hereof. Neither of the parties has relied upon any oral or written representation or oral or written information given to it by any representative or the other party. 10.3 Severability If one or more of the provisions of this Agreement is hereafter declared invalid or unenforceable by judicial, legislative or administrative authority of competent jurisdiction, the parties hereto agree that the invalidity or unenforceability of any of the provisions shall not in any way affect the validity or enforceability of any other provisions of this Agreement. 10.4 Amendment; Modification No change or modification of the terms or provisions of this Agreement shall be deemed valid unless in writing and signed by both parties subject to governmental approval, if required. 10.5 Governing Law This Agreement shall be construed, interpreted and applied in accordance with the laws of the State of California. 10.6 Waiver No waiver of any breach or default shall be construed as a continuing waiver of any provision or as a waiver of any other or subsequent breach of any provisions contained in this Agreement. 10.7 Headings The headings of Sections of this Agreement have been inserted for convenience of reference only and shall not affect the interpretation of any of the provisions of this Agreement. SBEO/0001/OOC/4027 4/12/00 1055 jrnw 8 CDC 2000-9 10.8 Assignment Neither party hereto shall assign, hypothecate, or otherwise transfer such party's rights. hereunder, or delegate such party's duties hereunder, without the prior written consent of the other party hereto. 10.9 Contract Evaluation and Review The ongoing assessment and monitoring of this Agreement is the responsibility of the Director. The Director is authorized to approve any changes to the Rental Contract, with the concurrence of Agency Counsel regarding legal form and content. The Director is authorized to approve the remaining 11 rent-free performance days under Section 4(a). SBEO/0001/DOC/4027 4/12/00 1055 jmw 9 CDe 2000-9 IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written. Approved as to legal form and Content: SBEO/0001/DOC/4027 4/12/00 1055 jrnw REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARD 0 By: By: Judi Valles Cha of the Community De opment Commission of ~~g~y~nardino, . MvI: r(- Ag cy Secretary INTERNATIONAL Allen Evenson 10 the its