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HomeMy WebLinkAbout2010-140 1 2 3 4 5 6 7 8 f 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 NOTE: AGREEMENT EXTENDED THROUGH APRIL 30, 2014. SEE ATTACHED LETTEa RESOLUTION NO. 2010-140 RESOLUTION OF THE MAYOR AND COMMON COUNCIL AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT WITH JUNIOR UNIVERSITY OF SAN BERNARDINO FOR THE USE OF THE ROOSEVELT BOWL AT PERRlS HILL PARK AND RATIFYING ANY ACTION TAKEN BETWEEN MAY 1, 2010 AND THE DA TE THAT THIS RESOLUTION IS ADOPTED. NOW THEREFORE, BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: SECTION 1. The City Manager of the City of San Bernardino is hereby authorized to execute an Agreement between the City of San Bernardino and Junior University for the use of the Roosevelt Bowl at Perris Hill Park, a copy of which is attached here to, Marked Exhibit A and incorporated herein by reference as though fully set forth at length, and; SECTION 2. That the implementation date of the Agreement is May 1,2010, therefore, any action taken between May 1, 2010 and the date that this Resolution is adopted is hereby ratified, and; SECTION 3. That the authorization to execute the above referenced Agreement is rescinded if the parties to the Agreement fail to execute it within sixty days (60) days of the passage of this Resolution. III III III III III III III III III 2010-140 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RESOLUTION OF THE MAYOR AND COMMON COUNCIL AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT WITH JUNIOR UNIVERSITY OF SAN BERNARDINO FOR THE USE OF THE ROOSEVELT BOWL AT PERRIS HILL PARK AND RATIFYING ANY ACTION TAKEN BETWEEN MAY 1, 2010 AND THE DATE THAT THIS RESOLUTION IS ADOPTED. I HEREBY CERTIFY that the foregoing resolution was duly adopted by the Mayor and Common Council of the City of San Bernardino at a i oint regular meeting thereof, held on the 21st day of June ,2010, by the following vote to-wit: ABSTAIN ABSENT AYES NAYS Council Members: MARQUEZ ~ x DESJARDINS x BRINKER x SHORETT KELLEY x x JOHNSON x MCCAMMACK ~ City Clerk /I. UA.A. The foregoing resolution is hereby approved this 22nd day uf June 2010. "---~s Pa' . orris, Mayor City of San Bernardino Approved as to form: JAMES F. PENMAN, City A orney 2 2010-140 AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND JUNIOR UNIVERSITY OF SAN BERNARDINO, INC. This Agreement is entered into on the 21st day of June 2010, by and between the City of San Bernardino, a municipal corporation (referred to herein as "City") and Junior University of San Bernardino, Inc. (a 501 (c)(3) non-profit organization (referred to herein as "Organization") (Sometimes jointly referred to herein as "Parties"). 1. Recitals Whereas, Organization is an educational theatrical arts company which has provided annual summer performances in Roosevelt Bowl (the "Bowl") since 1965; and Whereas, Organization has requested the annual use of the bowl, together with certain support services, without payment of fees or deposits, throughout the term of this Agreement; and Whereas, Organization has provided substantial maintenance and repair of the Bowl since the mid 1980's, relieving the City of related costs. The maintenance and repair provided by the Organization includes replacing the roofing materials, upgrading the electrical transformer and electrical distribution systems, replacing protective fencing and gates, replacement of cracked and uneven concrete, remodeling of restroom and dressing room areas, painting and general building maintenance; and Whereas, The fee waiver and support services to be provided by the City are for a valid municipal purpose, to wit: to allow the continued use and maintenance of the Bowl by the Organization, thus protecting the City's investment in this City-owned property and to promote continued access to the Arts and Culture that Junior University's family oriented productions provide the members ofthe community. Now therefore, the parties hereto agree as follows: 2. Term This Agreement is for a one (I) year period beginning May 1,2010, and ending on April 30, 2011. The City Manager may administratively renew the Agreement three (3) times for a period of up to 3 (three) years per renewal upon written mutual agreement by both parties; and 2010-140 Organization's use of the Bowl will commence on the first Saturday in May and end on the Wednesday following the second Saturday in August. A specific schedule of exact dates will be provided annually to the City's Parks, Recreation and Community Services Department on or before April I. 3. Fee Waivers & SUDDort Services In support of the Program, the City hereby agrees to the following: A. Fee Waiver: Throughout the term of this Agreement, the City will allow the Organization the exclusive use of the Bowl, without fee or deposit during the annual usage period described in Section 2. The Organization will, however, be required to comply with City insurance and indemnity requirements for such use. B. Electricity: The City will provide the electricity necessary for all rehearsal and performance purposes. C. Highland Avenue Sign: The Organization will be permitted to display its pylon sign near the south west corner of Highland A venue and Harrison Street throughout the term of this Agreement. D. Street Banners: Based on availability, the City will provide use of the banner location on Highland Avenue during the period of April I through August 15 for each year during the term of this Agreement. 4. ResDonsibilitv A. Organization will be solely responsible for the management of the Bowl during its annual period of use described in Section 2. Organization covenants and agrees that not less than ten percent (10%) of its annual Excess Revenues (as defined below) will be spent on maintenance, repairs and improvements to the Bowl. The Organization will provide annual financial statements to the City, which shall include, but not be limited to, the amount of funds spent by the Organization on maintenance, repairs and improvements to the Roosevelt Bowl. For purposes of this Section, excess revenues shall be defined as any revenue that is in excess of the funds expended for the production of the show. 2 2010-140 B. Organization agrees to permit the City, its agents and representatives at reasonable intervals at any and all times upon reasonable advance notice, to inspect all books, records, and accounts for the Organization. C. Organization will be responsible for the installation and associated costs of any portable electrical system needed to support Organization's use of the Bowl. D. City will allow access to the city-leased 3 cubic yard container with bi-weekly service during the performance weeks of July and August each year. E. Organization agrees to recognize the City as a Corporate Sponsor during the term of this Agreement. F. Organization shall obtain from the City and all other appropriate agencies, all such permits and approvals as shall be required under law for the conduct of the Program, or any part thereof. 5. Indemnitv Organization agrees to and shall indemnify and hold the City, its elected officials, employees, agents it representatives, free and harmless from all claims, actions, damages and liabilities of any kind and nature arising from bodily injury, including death, or property damage, based or asserted upon any actual or alleged act or omission of Organization, its employees, agents, or subcontractors, relating to or in any way connected with the accomplishment if the work or performance of services under this Agreement, unless the bodily injury or property damage was actually caused by the sole negligence of the City, its elected officials, employees, agents or representatives. As part of the foregoing indemnity, Organization agrees to protect and defend at its own expense, including attorney's fees, the City, its elected officials, employees agents or representatives from any and all legal actions based upon such actual or alleged acts or omissions. Organization hereby waives any and all rights to any types of express or implied indemnity against the City, its elected officials, employees, agents or representatives, with respect to third party claims against the Organization relating to or in any way connected with the accomplishment of the work or performance of service under this Agreement. 3 2010-140 6. Insurance While not restricting or limiting the foregoing, during the term of this Agreement, Organization shall maintain in effect policies of comprehensive public, general and automobile liability insurance, and all such riders as are related to the operation of the Program, in the amount of $1,000,000 per occurrence combined single limit, and $2,000,000 aggregate, naming the City of San Bernardino, its departments, agencies, boards, commissions, elected officials, officers, attorneys, employees, and agents, as additionally insured. The policy shall be without right of subrogation against the City. The insurance provided shall carry the endorsement that "This insurance is primary and noncontributory as respects any loss or liability arising directly or indirectly from the insureds operations." A certificate of insurance evidencing such coverage shall be provided to the City Manager or his designee, with the added notation that the insurance policy shall not be terminated or materially altered without ten days prior notice to the City. 7. Non-Discrimination In the performance of this Agreement and in the hiring and recruitment of employees, Organization shall not engage in, nor permit its officers, employees or agents to engage in, discrimination in employment of persons because of their race, religion, color, national origin, ancestry, age, mental or physical disability, medical condition, marital status, sexual gender or sexual orientation, or any other status protected by law. 8. Assil!:nment Organization shall not voluntarily or by operation of law assign, transfer, sublet or encumber all or any part of the Organization's interest in this Agreement without CITY's prior written consent. Any attempted assigmnent, transfer, subletting or encumbrance shall be void and shall constitute a breach of this Agreement and cause for the termination of this Agreement. Regardless of CITY's consent, no subletting or assigmnent shall release Organization of Organization's obligation to perform all other obligations to be performed by Organization hereunder for the term of this Agreement. 4 2010-140 9. Termination This Agreement may be terminated by either Party without cause upon the giving of ninety (90) days written notice, provided that the effective date of any such termination made by the City may not occur during the period of use described in Section 2 unless the termination is for a material breach of this Agreement by the Organization. 10. Authorization to Execute Organization hereby covenants that it has taken all actions necessary to make the adherence to the obligations imposed by this Agreement a binding obligation of the Organization. 11. Notice All notices herein required shall be in writing and delivered in person or sent by certified mail, postage prepaid, addressed as follows: As to City: City of San Bernardino 300 North D Street San Bernardino, CA 92418 Attn: City Manager As to Organization: Junior University PO Box 6471 San Bernardino, CA 92412 Attn: President 12. Venue The parties hereto agree that all actions or proceedings arising in connection with this Agreement shall be tried and litigated either in the State courts located in the County of San Bernardino, State of California or the U.S. District Court for the Central District of California, Riverside Division. The aforementioned choice of venue is intended by the parties to be mandatory and not permissive in nature. 13. Entire Al!:reement This Agreement and any documents or instruments referred to herein integrates all terms and conditions mentioned herein or incidental hereto, and supersedes all negotiations and prior writings in respect to the subject matter hereof. In the event of conflict between the terms, 5 2010-140 conditions or provisions of this Agreement, and any such document or instrument, the terms and conditions ofthis Agreement shall prevail. 14. Modification This Agreement may be modified or amended only by a written instrument executed by all parties to this Agreement. 15. Severability If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable for any reason, such determination shall not affect the validity or enforceability of the remaining terms and provisions hereof or of the offending provision in any other circumstance, and the remaining provisions of this Agreement shall remain in full force and effect. In Witness Thereof, the parties hereto have executed this Agreement on the day and date first above shown. Date: 9~ 7 ,2010 AN BERNARDINO Date: ---r/&J{c) ,2010 , , Approved as to form: 6 2010-140 ftl..-i1Y JJ.ctct,." )"0 "to ~.. JUNIOR UNIVERSITY MUSICAL THEATRE PO Box 6471 San Bernardino, CA 92412-6471 909-889-0833 www.junioruniversity.org February 1, 2011 Mr. Tait Ecklund Management Analyst II City of San Bernardino City Manager's Office 300 North "0" Street San Bernardino, CA 92418 Sent via em ail to Ecklund_Ta@sbcity.org Re: Junior University of San Bernardino, Inc. Renewal of Agreement for use of Roosevelt Bowl Dear Mr. Ecklund: Thank you for your recent correspondence with Rochelle Campbell relating to renewal of the Agreement for Junior University's use of Roosevelt Bowl. This letter is Junior University's response to the request set forth in your emai1 of January 27, 2011. Pursuant to Resolution 2010-140 adopted by the City Counsel of the City of San Bernardino, The City and Junior University entered into an agreement relating to Junior University's use of Roosevelt Bowl. A copy of that Agreement is attached for your convemence. The term of the Agreement was originally for one year, which allowed Junior University use of the Bowl for its 2010 performance season. Section 2 of the Agreement provides for up to three (3) renewals of three (3) years each upon the mutual agreement of the parties, and specifically provides that the City's confirmation of the renewal may be accomplished administratively by the City Manager. Junior University hereby requests implementation of the first renewal of the Agreement for the next three seasons (i.e., the three year period commencing on May 1, 2011 and ending on April 30, 2014), and hereby requests that the City confirm the renewal by having Mr. McNeely execute a copy of this letter where indicated below. As this letter has been transmitted electronically, please print two (2) copies for Mr. McNeely's signature, and return one (1) fully executed original once Mr. McNeely has signed. Firm-JUNIOR_UNIVERSITY - 618655.1 Junior University Musical Theatre Robert W. Ritter, Jr. Mr. Tait Ecklund February 1,2011 Page 2 Thank you for your kind assistance. 2010-140 Very truly yours, Junior University Musical Theatre By: Robert W. Ritter, Jr., President c/o Gresham Savage Nolan & Tilden, PC 550 E. Hospitality Lane, Suite 300 San Bernardino, CA 92408 email-Bob.Rittcr@GreshamSavage.com telephone - 909-890-4499 Renewal of the attached agreement relating to the use of Roosevelt Bowl by Junior University during the period of May 1, 2011 through April 30, 2014 is hereby approved. By: [PRINTED NAME] ITS: CITY MANAGER [TITLE] RWR: Enclosures - Agreement cc: Rochelle Campbell (via email) Finn-JUNIOR_UNIVERSITY -- 618655.1 JUNIOQIVERSITY OF S I J By: . RITTER, JR. ~ [PRINTED NAME] [DATE] ITS: PRESID NT [title]