HomeMy WebLinkAboutCDC/2005-14
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RESOLUTION NO. CDCj2005-14
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RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION
OF THE CITY OF SAN BERNARDINO APPROVING AND
AUTHORIZING A ONE (1) YEAR EXTENSION TO THE THEATRICAL
ARTS INTERNATIONAL OPERATION AND MANAGEMENT
AGREEMENT FOR THE CALIFORNIA THEATRE ("2005
AGREEMENT") AND AUTHORIZING THE EXECUTIVE DIRECTOR
TO EXECUTE THE 2005 AGREEMENT ON BEHALF OF THE
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO
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WHEREAS, the Agency owns the California Theatre of the Performing
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"Theatre") and the Agency desires to cause the Theatre to be operated in a manner tha
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stimulates downtown economic activity and that provides a broad range of cultural opportunitie
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for San Bernardino residents; and
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WHEREAS, the Agency and TAl have previously entered into an Operation an
Management Agreement dated as of February 11, 1999, as amended on April 15, 2002 and lun
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2,2003, for the operation and management of the Theatre which agreement, as amended, expire
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pursuant to its terms on April 30, 2005; and
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WHEREAS, prior to entering into the original agreement with Theatrical Art'
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International ("TAl") for the operation and management of the Theatre, the Agency wa
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incurring substantial costs and use of Staff time in an excess amount of $250,000 annually; and
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WHEREAS, TAl's operation and management of the Theatre for the past five years ha
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resulted in the community receiving significant benefits for the efforts of TAl, includin
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increasing the quality and frequencies of the performances, filling the Theatre with patrons, an
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reducing costs and increasing revenues as documented in the Staff Report; and
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WHEREAS, the Agency is aware that the Theatre requires certain improvements an
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upgrades, and will elicit the assistance and expertise of TAl to identify and assist the Agency i
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identifying and prioritizing any improvements and upgrades which said improvements
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upgrades have been preliminarily identified in Exhibit "A" of the Agreement; and
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WHEREAS, any such upgrades and improvements that are identified, or any supplies 0
equipment required that are supplied by TAl, will be acquired by the Agency under thi
Agreement utilizing the applicable provisions of the Public Contracts Code, the "Agency'
Procurement Policies and Procedures Purchase Orders" updated February 24, 2004, and
thereafter, may be amended from time to time; and
WHEREAS, it is a requirement that the Agency seek competitive proposals to extend th
term of the Agreement, and TAl acknowledges that the Agency will be seeking proposal
through a process to be undertaken by the Agency during the term of the Agreement; and
WHEREAS, notwithstanding that TAl is receiving such use of the Theatre at no cost, it i
recognized that the value of the cost of the operation of the Theatre to TAl, utilizing it
management team, employees and contractors, is equal to or exceeds the amount of the value 0
the 35 days use of the Theatre authorized pursuant to this Agreement and as further evidenced i
the Staff Report.
NOW, THEREFORE, THE COMMUNITY DEVELOPMENT COMMISSION OF THE
CITY OF SAN BERNARDINO DOES HEREBY RESOLVE, DETERMINE AND ORDER, AS
FOLLOWS:
Section 1. The Commission hereby approves the Agreement attached hereto and
incOlporated herein by reference.
Section 2. The Executive Director of the Agency is hereby authorized to execute the
Agreement on behalf of the Agency in substantially the form attached hereto, together with such changes
therein as may be approved by the Executive Director and Agency Counsel. The Executive Director or
such other designated representative of the Agency is further authorized to do any and all things and take
any and all actions as may be deemed necessary or advisable to effectuate the purposes of the
Agreement, including making non substantive modifications to the Agreement. The Executive Director
of the Agency is hereby authorized and directed to prepare and distribute a Request For Proposals and to
submit qualified proposals together with a recommendation for action to the Commission within 60 days
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RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION
OF THE CITY OF SAN BERNARDINO APPROVING AND
AUTHORIZING A ONE (1) YEAR EXTENSION TO THE THEATRICAL
ARTS INTERNATIONAL OPERATION AND MANAGEMENT
AGREEMENT FOR THE CALIFORNIA THEATRE ("2005
AGREEMENT") AND AUTHORIZING THE EXECUTIVE DIRECTOR
TO EXECUTE THE 2005 AGREEMENT ON BEHALF OF THE
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO
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6 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the
joint
7 Community Development Commission ofthe City of San Bernardino at a regular meeting
8 thereof, held on the 18th day of April
, 2005, by the following vote to wit:
9 Commission Members:
Aves
Navs
Abstain
Absent
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ESTRADA
LONGVILLE
MCGINNIS
DERRY
KELLEY
JOHNSON
MC CAMMACK
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---X......
---L.
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X
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ecrr
The foregoing resolution is hereby approved this ".J,t;rfi day of April
,2005.
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Approved as to form and Legal Content:
By: ~#' ~
Agency unsel
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CDC/200S-14
2005 OPERATION AND MANAGEMENT AGREEMENT
CALIFORNIA THEATRE
This 2005 Operation and Management Agreement, California Theatre (this "Agreement") is
made and entered into this 18th day of Aori12005, 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:
- RECITALS -
Whereas, the Agency owns the California Theatre of the Performing Arts (the "Theatre"), and
the Agency desires to cause the Theatre to be operated in a manner that stimulates downtown
economic activity and that provides a broad range of cultural opportunities for San Bernardino
residents; and
Whereas, the Agency and TAl have previously entered into an Operation and Management
Agreement dated as of February 11, 1999, as amended on April 15,2002, and June 2, 2003 for the
operation and management of the Theatre which agreement, as amended, expires pursuant to its terms
on April 30, 2005; and
Whereas, prior to entering into the original Agreement with TAl for the operation and
management of the Theatre, the Agency was incurring substantial costs and use of Staff time in the
amount in an excess amount of $250,000 annually; and
Whereas, TAl's operation and management of the Theatre for the past five years has resulted in
the community receiving significant benefits for the efforts of TAl, including increasing the quality
and frequencies of the performances, filling the Theatre with patrons, and reducing costs and
increasing revenues as documented in the Staff Report; and
Whereas, the Agency is required pursuant to its purchasing policies and procedures to
undertaken a Request For Proposals process and as such may only enter into this Agreement for a
period of time equal to one (1) year from the date here during which time the Agency has directed that
a formal Request For Proposals process be initiated, and nothing contained herein shall prevent TAl
from submitting any proposal to the Agency in response to such Request For Proposals; and
Whereas, the Agency is aware that the Theatre requires certain improvements and upgrades,
and will elicit the assistance and expertise of TAl to identify and assist the Agency in identifying and
prioritizing any improvements and upgrades which said improvements and upgrades have been
preliminarily identified on Exhibit "A" of this Agreement; and
Whereas, any such upgrades and improvements that are identified, or any supplies or
equipment required that are supplied by TAl, will be deemed to have been acquired by the Agency
under this Agreement with TAl utilizing the applicable provisions of the Public Contracts Code, the
"Agency's Procurement Policies and Procedures Purchase Orders", updated February 24, 2004, and as
thereafter may be amended from time to time; and
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Whereas, notwithstanding that TAl is recelVlng such use of the Theatre at no cost in
furtherance of those performances produced by TAl, it is recognized that the value of the cost of the
operation of the Theatre to TAl, utilizing its management team, employees and contractors, is equal to
or exceeds the amount of the value of the 35 days use of the Theatre authorized pursuant to this
Agreement and as further evidenced in the Staff Report; and
Whereas, 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 in this Agreement and upon the
terms and subject to the conditions as contained in this Agreement.
NOW THEREFORE, the Agency and TAl agree as follows:
Section 1.
Enl!al!ement 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 9.
Section 2.
Manal!ement Services.
TAl shall supervise all aspects of the Theatre's management and will provide operating and
management services on behalf of the Agency that include physical operation of the Theatre,
booking of rentals of the Theatre, collection of rent for the Agency, development of new
business opportunities and assistance in developing a list of necessary and desirable capital
improvements and estimates costs thereof which are preliminarily set forth in Exhibit "A" and
which Exhibit shall be updated by TAlon an as-needed basis as determined by TAl and
submitted to the Director for such action as the Director shall deem appropriate under the
circumstances. TAl shall provide the following specific services to the extent required or
determined by the Executive Director of the Agency (the "Director") or his or her designee
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 exclusive of any use of the second
floor banquet room both prior to and after the completion of the renovation and
reconstruction thereof unless directed otherwise in writing by the Director. TAl will
program the Theatre in a manner that results in the highly active use of the Theatre for a
broad variety of performance types. TAl shall make the Theatre's schedule available to
accommodate not less than thirty (30) days per calendar year to local non-profit
performance groups and for Agency presentations as requested in writing by the
Director, which days shall be reasonably available throughout the year at such rental
rates as may be directed in writing by the Director. If the rental rates for any such non-
profit use is not directed otherwise by the Director, then TAl shall charge the then
applicable rental rates and charges then in effect as set forth in Exhibit "B" as attached
hereto with such changes to said rental rates and charges as may be recommended by
TAl from time-to-time and approved in writing by the Director.
(b) In connection with the booking of each event in the Theatre for which rent is to be
charged, TAl shall fill out and complete the standard form Agency Rental Contract in
the form as attached hereto as Exhibit "c" and as may be presented to TAl for use from
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(e)
Section 3.
(a)
time to time with modifications approved by the Director or the Agency, shall obtain
the signature thereon of the entity booking the Theatre and shall deliver said Agency
Rental Contract to the Director or his or her designee for execution on behalf of the
Agency. All rental income shall be paid to the Agency within ten (10) calendar days
after receipt of such rental income by TAL
(c)
Upon approval of each budget for the appropriate fiscal year of the Agency as described
in Section 6 (the "Operating Budget"), TAl shall contract for all required operating staff
to operate the Theatre and arrange for all required services needed for scheduled usages
for such fiscal year. TAl shall negotiate maintenance contracts and obtain services and
equipment as required. TAl 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 can only be
incurred and paid if T AI has received the advance written authorization of the Director
except in cases of an emergency nature where immediate preventive action is required
to preserve public health or safety or the physical integrity of the Theatre and the
Theatre property. Such emergency action shall be reported to the Director as soon as
practical but in no event later than twenty-four (24) hours after the occurrence of the
emergency situation. Prior to submission to the Agency for payment of those bills and
invoices which are required by this Agreement to be paid by the Agency, TAl shall
review all such bills and invoices as presented for payment and advise the Agency as to
the appropriate action to be taken in each instance.
(d)
TAl 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 other capital expenditures needed for the long-term
operation of the Theatre. TAl shall assist and cooperate with the Agency and all
contractors, architects and engineers retained by the Agency for the construction and
implementation of all approved capital improvements as are approved by the Agency
upon the written direction of the Director to TAl to so assist and cooperate such
construction and implementation activities. TAl and the Director shall meet on an
annual basis to determine those capital improvements, if any, that will be undertaken by
the Agency, or by TAl upon the written direction from the Agency or the Director,
during the next succeeding fiscal year and ascertain the funding sources as may then be
available to accomplish such capital improvements. The initial list of recommended
capital improvements are set forth in Exhibit "A".
TAl shall supervise the Theatre's operation at each and every performance or use of the
Theatre using qualified personnel selected by TAL TAl shall be responsible for the
supervision of all such personnel employed or contracted which shall include all aspects
of the Theatre operation, i.e., box office, stagehands, etc. TAl will be physically
represented at all performances and scheduled uses of the Theatre and will maintain an
office on site to be staffed during standard business hours.
Personnel: Grant Writer.
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
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Section 4.
(a)
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 the prior express written
consent of the Director.
(c)
The Agency intends to fund in the annual budget of the Agency for the Theatre a grant
writer position for an individual to be hired by TAl as a TAl employee, subject to the
approval by the Director, in an effort to obtain grant funds from federal, state and local
funding sources and from private foundations, corporations and individuals to
accomplish the various capital improvement projects or operations required from time-
to-time for the betterment and renovation and operation of the Theatre. To the extent
possible, the parties intend that salary and benefits of the such grant writer will be
funded from the grants as obtained from any administrative fee or overhead
reimbursement as may be permissible pursuant to the terms and conditions of such
grants as obtained. On an annual basis commencing in anticipation of the 2005-06
fiscal year, the parties shall review and evaluate the performance of the grant writer and
the number of applications submitted and the number and dollar value of grants
committed or obtained during the previous review period. For such period of time that
the Agency funds the position of the grant writer, either in whole or in part, within the
Agency budget line item for the Theatre, the Director at his or her sole discretion shall
decide whether such grant writer position should be continued and whether such
position should continue to be funded by the Agency, whether in whole or in part, in
each subsequent fiscal year of the Agency until such time as the position of grant writer
is funded in whole by TAl and/or grant funds.
Manal!ement Fee.
In consideration for TAl's provision of the operating and management services set forth
in Section 2 above, TAl shall receive thirty-five (35) rent free performance days during
the term of this Agreement for the use by TAl for productions and other performances
and Theatre uses at their discretion. TAl shall pay all direct third party costs associated
with these performance dates, including, but not limited to security, ushers, etc. TAl
performance dates will be scheduled during the period of time comprising each calendar
year during the term of this Agreement and prorated for the partial year upon the
commencement of the term of this Agreement and prorated for the final year of the term
of this Agreement.
(i) In addition, TAl shall receive fifty percent (50%) of cash sponsorships for the
Theatre with respect to operations thereof obtained through the sole efforts of TAl as
reasonably demonstrated by TAl in writing to the satisfaction of the Director from
individuals, private foundations and corporate sponsors. It is the intent hereof that any
such cash sponsorships for the Theatre obtained through the efforts of TAl which
reduce or eliminate the operating costs required to be paid by the Agency for the
Theatre will thus benefit the Agency through such efforts of TAl and encourage TAl to
seek such forms of cash sponsorships for the Theatre operations. Said percentage of the
appropriate sponsorship fees will be paid annually by the Agency to TAl within sixty
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(b)
(60) calendar days after the close of each fiscal year. All disputes as to the amounts to
be paid and the facts as to whether TAl was the sole procuring source for such cash
sponsorships shall be finally determined by the Agency in the event TAl disagrees with
any determination of the Director and TAl appeals any determination of the Director to
the Agency for its consideration.
(ii) Any and all grant funds obtained by the position of grant writer as described in
Section 3(c) shall be exempt from any such payment by the Agency to TAl of the
percentage amount whether such grants as obtained through the efforts of the grant
writer are for capital improvements to the Theatre or for the general operations thereof.
(iii) Prior to the acceptance by TAl of either (a) any contributions made in-kind for
specific improvement or upgrade items for the Theatre or (b) cash contributions towards
any of the capital improvement costs for the Theatre, the Director on behalf of the
Agency and TAl will negotiate at their discretion as to whether or not any form of a
percentage amount should be payable by the Agency to TAl with respect to such in-
kind or cash contributions for capital improvements; provided, however, that such
parties must agree in writing prior to such acceptance by TAl of any such in-kind or
cash contributions if TAl intends to seek any such payment of a percentage amount.
The Director is hereby authorized to negotiate on behalf of the Agency and to execute
any such written agreements that may be entered into, if at all, at the discretion of the
Director.
(c) TAl shall not bill the Agency separately for any services provided by its officers or
other representatives of TAl as such services are included in the management fee under
this Agreement. Costs of any direct theater personnel (i.e., the box office manager and
cleaning staff including costs for payroll and employee 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 the contract users of the Theatre
shall be initially paid by TAl with its own funds if and to the extent required under the
circumstances. TAl shall, upon payment of costs for ushers, security guards, stage
manager, equipment rental, etc., submit to the Agency an invoice indicating the amount
paid by TAl and the Agency shall, within thirty (30) days following the receipt of any
such invoice, pay to TAl the amount shown on the invoice. For all items discussed in
the preceding sentence, with respect to scheduled uses of the Theatre by TAl, whether
for a rental fee or without a rental fee as permitted by this Agreement, the costs of such
items shall be paid by TAl without any payment or reimbursement obligation by the
Agency to TAl.
(d) This Agreement is not intended to address any relationship between the parties for any
joint presentations or productions sponsored or produced by the Agency or co-
sponsored or co-produced by the Agency and TAl of theatrical events and musical
performances at the Theatre, and such presentations or productions as described above
are outside the intent and scope of this Agreement. TAl will be financially responsible
for losses incurred through its own presentations and productions sponsored or
produced by TAl or, if approved by an appropriate separate written agreement with the
Agency, the TAl portion of any separately approved co-sponsored or co-produced
events with the Agency pursuant to a separate written agreement between the parties.
The Agency will be responsible for losses incurred through its own presentations and
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productions or the Agency portion of any separately approved co-sponsored or co-
produced events with TAl pursuant to such separate written agreement with the
Agency.
Section 5.
Vendor Payments.
Payments for goods and services contracted either (i) by the Agency or (ii) by TAlon behalf of
the Agency, other than those for management and operating personnel retained or employed by
TAl, shall be made directly by the Agency to the applicable vendors. No such payments shall
be made by or through TAl under item (ii) above to such vendors without the prior written
approval of the Director.
Section 6.
Operatin2 Bud2et.
One hundred twenty (120) days prior to the end of each fiscal year TAl, in consultation with
the Director or his or her designee, shall develop a budget detailing the required expenditures to
be determined by the Director as appropriate for inclusion as a single Theatre line item within
the Agency's budget to be subsequently approved by the Community Development
Commission as a part of the overall Agency annual budget for each fiscal year. Such approved
budget shall then be the Operating Budget of the Theatre for the applicable fiscal year of the
Agency with the Director having the discretion, at the request of TAl or upon the determination
of the Director, to move line item expenditures from one line item to another within the
detailed Theatre budget provided that the total dollar amounts of all such modifications do not
exceed the line item dollar amount approved by the Agency within the Agency's budget for the
Theatre.
Section 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 with respect to the
Theatre. In the event any of the above-described actions occur, TAl shall be obligated to
continue to provide to the Agency the management services for the Theatre, which are the
subject of this Agreement.
Section 8.
Sale of Alcoholic Bevera2es and Concessions.
To accommodate the patrons of the Theatre for all uses of the Theatre, TAl shall conduct sales
of alcoholic beverages and other food and non-alcoholic beverages and other merchandise
concessions, subject to the provisions contained below, to the patrons in the course of events at
the Theatre unless the party executing an Agency Rental Contract directs to the contrary that no
alcoholic beverages be served during the term of such Agency Rental Contract. TAl has
previously acquired the liquor license from the Agency for the sale of alcoholic beverages at
the Theatre and was previously required to pay a percentage of the gross sales receipts to the
Agency. From and after the date of this Agreement TAl shall continue to conduct sales of
alcoholic beverages and other food, non-alcoholic beverages and other merchandise
concessions, subject to the provisions of the following sentence, to the patrons of the Theatre
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but without any requirement for a payment of a percentage amount to the Agency. Nothing
contained herein shall prevent either (i) TAl from charging any licensee who has executed an
Agency Rental Contract or otherwise has contracted directly with TAl for the use of the
Theatre, or (ii) the Agency from charging a licensee who has executed a license agreement with
the Agency for the use of the Theatre for a date specified in Section 2(a) hereof, a fee or
percentage amount based upon sales of merchandise items during the applicable event dates at
the Theatre.
Section 9.
Term and Termination.
9.1
Term
This Agreement shall commence on the first (151) day of May 2005, and shall remain in effect
for one (1) year through and including April 30, 2006; provided, however, that any
performance dates which are designated by TAl as of the date of the approval of this
Agreement by the Agency shall be honored by the Agency and any other party or person then
operating and managing the California Theatre after the termination date of this Agreement.
9.2 Termination
Either party to this Agreement may cancel this Agreement by gIVIng a 90-day written
cancellation Notice to the other party pursuant to Section 11.1 herein and provided that such
termination is effective as of the end of a fiscal year unless the parties should agree in writing
to an earlier termination at their sole discretion.
Section 10. Indemnification and Insurance.
10.1 Indemnification
10.1.1 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 ofT AI'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 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 the Agency's agents, servants and/or employees arising out of their
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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 liabilities, 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 any act or
omission of Agency or its agents, servants or employees in 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 to determine the amount of any
payment or reimbursement of attorneys' fees to the Agency as may be appropriate pursuant to
this Agreement.
10.2 Insurance
10.2.1 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:
10.2.2 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.
10.2.3 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,
officials, officers, employees and agents, shall be named as an additional insured.
10.2.4 Within ten (10) calendar 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 10.2 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 or insurance policies by TAl's insurance company or
insurance companies 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 10.2 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.
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Section 11. Miscellaneous.
11.1 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: Executive Director
If to TAl:
Theatrical Arts International
P.O. Box 270
San Bernardino, California 92402-0270
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.
11.2 Integration; Supersede Prior Agreements
This Agreement supersedes all prior agreements and understandings between the parties
relating to the subject matter hereof and, in particular, this Agreement supersedes in its entirety
the previously executed and approved Operation and Management Agreement, as amended,
dated as of February 11, 1999, between the parties (the "Prior Agreement"). 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 and any previous practices of the parties under the
Prior Agreement, whether formal or informal, shall not be used to determine the rights and
responsibilities of the parties pursuant to this Agreement nor shall any such previous practices
of the parties under the Prior Agreement be used to interpret any provision of this Agreement.
11.3 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.
11.4 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 the Agency having approved any such
change or modification in the manner required for such actions to be authorized by the
governing board of the Agency as required unless the authority for making such change or
modification has been specifically delegated to the Director as provided herein. However, the
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parties recognize that during the term of this Agreement those circumstances that existed as of
the date of this Agreement may change and either party may desire to seek amendments or
modifications to any of the terms or provisions of this Agreement. Either the Agency or TAl
may present in writing to the other party any suggested amendments or modifications to this
Agreement based upon changed circumstances or as may be otherwise desirable to address new
matters that occur subsequent to the date of this Agreement that are then deemed to be not
adequately addressed by this Agreement. Both parties shall cooperate in good faith to
understand any such concerns raised by the other party, but neither party shall be obligated or
required to enter into any such proposed amendment or modification to this Agreement except
with their approval as shall be evidenced by an amendment or modification to this Agreement
duly approved and executed at their sole discretion.
11.5 Governing Law
This Agreement shall be construed, interpreted and applied in accordance with the laws of the
State of California. Any action filed by either party to interpret any provision of this
Agreement or to enforce any provision hereof may only be filed in the Superior Court of the
County of San Bernardino, Main Branch in the City of San Bernardino.
11.6 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.
11.7 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.
11.8 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.
11.9 Contract Evaluation and Review
The ongoing assessment and monitoring of this Agreement shall be the responsibility of the
Director. The Director is authorized to approve any changes to the Agency Rental Contract,
with the concurrence of Agency Counsel regarding legal form and content thereof as shall be
used by TAl in the rental of the Theatre. The Director is authorized to approve the rent-free
performance days, which are determined by TAl to be used for their purposes under Section
4(a).
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above
written.
By:
x?ive Director
~
By: ~~
Age c> Assistant Secretary
Approved as to Legal Form
and Content:
tf)~!I!lI~
Agency unsel
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