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HomeMy WebLinkAbout10.A- Mayor's Office 10A DOC ID: 2328 CITY OF SAN BERNARDINO—REQUEST FOR COUNCIL ACTION Budget From: Patrick J. Morris M/CC Meeting Date: 04/01/2013 Prepared by: Georgeann"Gigi" Hanna, Dept: Mayor's Office Ward(s): All Subject: Initiate Process for the Acceptance of Assets of the San Bernardino Economic Development Corporation, as Ordered by the State Controller's Office Final Asset Transfer Review Report Dated March 6, 2013. (At Meeting of March 14, 2013, Item Continued to March 18, 2013; Item Continued to April 1, 2013.) (#2328) Current Business Registration Certificate: Not Applicable Financial Impact: Account Budgeted Amount: «Inert Amount» Account No. <<Insert Account No.>> Account Description: <<Insert Account Description Balance as of. «Insert Date>> Balance after approval of this item: <<Insert Amount» Please note this balance does not indicate available funding. It does not include non-encumbered reoccurring expenses or expenses incurred,but not yet processed. Motion: That the Mayor and Common Council Acting as the Successor Agency to the Redevelopment Agency of the City of San Bernardino ("Successor Agency"), direct the City Manager, working with the City Attorney, to bring back the appropriate resolution(s) and documentation to accomplish the following: (1) accept the assets of the San Bernardino Economic Development Corporation ("SBEDC") proposed to be transferred by the SBEDC to the Successor Agency, as ordered by the State Controller's Office Final Asset Transfer Review Report dated March 6, 2013 (SBEDC Assets); (2) that acceptance of the SBEDC Assets be subject to a prior complete inventory and review of the SBEDC Assets, and that acceptance of the SBEDC Assets include acceptance by the Successor Agency of any and all outstanding liabilities, conditions, encumbrances, or other claims recorded upon, associated with, or otherwise arising from or related to the SBEDC Assets; (3) that acceptance of the SBEDC Assets be done under protest and with a reservation of any and all rights to assert, claim, and defend the validity and legality of the initial transfer of the SBEDC Assets from the former Redevelopment Agency of the City of San Bernardino to the SBEDC; and(4)that acceptance of the SBEDC Assets include the Successor Agency's acknowledgement and acceptance of all liability associated with the transfer of the SBEDC Assets, including indemnifying, defending, and holding harmless the SBEDC Board of Directors for any actions, claims or liability arising out or connected with SBEDC's ownership and transfer of the SBEDC Assets. Synopsis of Previous Council Action: «Insert synopsis here>> Updated: 3/21/2013 by Linda Sutherland Packet Pg. 306 2328 Background: <<Insert background here>> Supporting Documents: Updated: 3/21/2013 by Linda Sutherland Packet Pg. 307 Entered Into Rec. at MCC/CDC Mg: z1 -; `Ared Into at MCC/CDC Rec, by: U Agenda Rem No: •by: --------��- . � City COCDC secreta C of TION AND MANAGEMENT A R EME T CALIFORNIA . THE STURGES CENTER FOR THE FINE ARTS 10 This 2010 Operation and Management Agreement,California Theatre and Sturges Center(This Agreement) and is made and entered into this 25 day of April,2010,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("TAP')with reference to the following facts: A) The Agency owns the California Theatre of the Performing Arts(the "Theatre").The Agency desires to cause the Theatre to be operated in a manner that stimulates downtown economic activity and that provides a broad rage of cultural opportunities for San Bernardino residents. B) The Agency and TAI have previously entered into an Operation and Management Agreement dated as of February 11,2001,as amended on April 15,2002,as amended on April 25,2005 for the operation and management of the Theatre,which agreement,as amended expires pursuant to its terms on April 30, 2010. C) In order to assist the Agency with the operation of the Theatre,TAI 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 TAI agree as follows: Section 1.Engagement of TAI The Agency hereby engages TAI to provide the operating and management services described in Section 2 of this Agreement,and TAI hereby accepts such engagement and aggress to provide such services under this Agreement during the term specified Section 9. Section 2.Management Services TAI 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 at 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 submitted by the Director for such action as the Director shall deem appropriate under the circumstances.TAI shall provide the following extent required or determined by the Executive Director of the Agency(the"Director")or his or her designee from time to time. r (a) TAT shall program the Theatres and book all events in the Theatres. TAI will program the Theatres in a manner that results in the highly active use of the Theatres for a broad variety of performance types.TAI shall make the Theatres schedules available to accommodate not less than thirty(30) days per calendar year to local non-profit performance groups and for Agency 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 non-profit use is not directed otherwise by the Director,then TAI 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 TAI from time-to-time and approved in writing by the Director. (b) In connection with the booking of each event in the Theatres for which rent is charged,TAI 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 TAI for use from time to time with modifications approved by the Director or the Agency,shall obtain the signature thereon the entity booking the Theatre and shall deliver said Agency Rental Contract to the Director of his or her designee for execution on f behalf of the Agency.TAI shall forward.all rental income received to the Agency within ten (10) calendar days after receipt of such rental income. (c) TAI shall contract for all required staff to operate the Theatres and arrange for all required services needed for scheduled usages for the fiscal year.TAI shall negotiate maintenance contracts and obtain services and equipment as required,any expense which exceeds its line item allowance in the Operating Budget can only be incurred and paid if TAI has received in advance authorization of the Director except in cases of an emergence nature where an immediate preventive action is required to preserve public health or safety or the physical integrity of the Theatre and the Theatre properties.Such emergency action shall be reported to the Director as soon as practical but in no event later than twenty-four I (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 Operating Budget,TAI shall review all such bills and invoices as presented for payment and take appropriate action in each instance. (d) TAI shall assist the Agency,its inspectors,contractors and consultants in making recommendations regarding the physical condition of the Theatres and any needed capital repairs,improvements or other capital expenditures needed for the long-term operation of the Theatres.TAI shall assist and cooperate with the Agency and all contractors, architects and engineers retained by the Agency for the construction and (, implementation of all improvements.TAI 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 TAI upon direction from the Agency G� { 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." (e) TAI shall supervise the Theatre's operation for each use,event or production by using qualified personnel selected by TAI.TAI shall be responsible for the supervision of all such personnel employed or contracted which shall include all aspects of the Theatres operation,i.e., box office,stagehands, etc.TAI will physically be represented at all performances and scheduled uses of the Theatre and will maintain an office on site to be staffed during standard business hours. ( TAI shall oversee all aspects of productions presented by the EDA, including fulfillment of contracts,box office services,accounting,payroll, marketing,technical support,payments and all aspects necessary for the successful presentation of each event. (g) TAI shall receive the operating budget in monthly installments and shall be responsible for utilizing the funds to pay for all theatre expenses,staff and production costs etc. Each month TAI will submit incurred expenses to the Agency for review. Once reviewed the month will be considered settled between TAI and Agency. Section 3 Personnel: (a) In performing the management services set forth in Section 2,TAI shall report and operate under the direction of the Director and shall act as an agent of the Agency and not upon TAI'S own authority.TAI commits Joseph Henson and Allen Evenson,or their assigned qualified staff,to the performance of TAI'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.TAI shall make no diversion or replacement of Joseph Henson or Allen Evenson without the prior written consent of the Director. Section 4 Management Fee (a) In consideration for TAI's provision of the operating and management services set forth in Section 2 above,TAI shall receive thirty-five (35) rent/cost free performance days in the California Theatre during the term of this Agreement for the use by TAI for productions and other performances and Theatre uses at their discretion.TAI performance dates shall be scheduled during the time comprising each calendar year I I 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. Any performance days unused for performances by TAI will be considered credited for subsequent years. (b) TAI will receive a$2,500 event creation fee for each EDA performance that they are responsible for at the California Theatre. (c) TAI will receive a$1,000 event creation fee for each EDA performance that they are responsible for at the Sturges Center. (d) TAI will be provided with either space or rental costs for space to operate the California Theatre and Sturges Center inclusive of all utilities,phones etc. (e) TAI will be provided with support staff paid for by EDA for House f Manager,Assistant House Manager,Assistant to the Manager,Publicist and other support staff as needed to operate the theatres. (f1 TAI will be paid$50,000 for managing the Sturges Center for the Fine Arts. (C) Costs of any direct theater personnel shall be charged to and paid by the Operating Budget described in Section 6. Costs for ushers,security guards,stage manager,equipment rental,etc.,that are reimbursed by the contact users of the Theatre shall be initially paid by TAI with its own funds if necessary and to the extent required under the circumstances.TAI shall,upon payment of costs for ushers,security guards,stage manager,equipment rental,etc.,shall be reimbursed for such costs from the Operating Budget. The Agency will be responsible for losses incurred through its own presentations and productions of the Agency portion of any separately approved productions,co- sponsored or co-produced events with TAI. Section S.Vendor Payments Payments for goods and services contracted either(i) by the Agency or(ii) by TAI on behalf of the Agency,other than those for management and operating personnel retained or employed by TAI,shall be made directly from the yearly operating budget to the applicable vendors. Section 6. Operating Budget J The Sturges Center will be allocated a minimum hudgerQf$250,QS1Q,for_proAWWns and$971,1$5 and for oReratir�g xp -ses. The California Theatre� bLQ_a Q.cgtgJ minimum budget of$3,300,000.for.productions and$1,167.000 for opera, tion. The combined budgets will 6e'$5,"68',_185 for the operations and production costs of both theatres for the term of six years from the date of April 25,2010. One hundred twenty(120) days prior to the end of each fiscal year TAI,in consultation with the Director or his or her designee,shall determine to increase the budget based on inflation. Section 7.Sale of Alcoholic Beverages and Concessions To accommodate the patrons of the Theatres for all uses of the Theatres,TAI 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 Theatres,unless the party executing the Agency Rental Contract directs to the contrary that no alcoholic beverages be served during the term of such Agency Rental Contract,without any requirement for a payment of a percentage amount to the Agency.Nothing contained herein shall prevent either(i) TAI from changing and licensee who has executed an Agency Rental Contract or otherwise has contracted directly with TAI 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 free or percentage amount based on the sales of merchandise items during the applicable ever fates at the Theatre. Section 9.Term and Termination 9.1 Term This Agreement shall commence on the first(25th)day of April 2010,and shall remain in effect for six(6) years through and including April 25,2016. I Section 10. Indemnification and Insurance 10.1 Indemnification f 10.1.1 TAI will accept full responsibility for and shall defend,indemnify and save harmless the Agency and its commissioners,officials,employees and agents from all claims for all loss or damage in 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 TAI's agents,servants,and/or employees ( arising out of their employment or work pertaining to the operations under this Agreement;moreover,TAI 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 action, fines,or judgments,including costs,attorneys'and witnesses'fees and expenses incident hereto,arising out of or in connection with any act or omission or TAI or its agents,servants or employees in the execution of performance of this Agreement or as a result of the failure by TAI to comply with all laws,ordinances or governmental regulations applicable to TAI or the conduct of TAI's business. The Agency shall accept the full responsibility for an shall defend,indemnify and save harmless TAI 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 clams 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 TAI,its commissioners,officials,officers,employees and agents harmless from and against any and all liabilities, demands,claims,suits, losses,damages,causes of action,fines,or judgments,including costs,attorneys' or witnesses'fees,and expenses incident thereto,arising out of or in connection with any act of 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,TAI shall purchase and maintain in effect,at all theatres, during the term of this Agreement insurance from insurers acceptable to the Agency,protecting TAI,the Agency,its commissioners,officers, employees and agents,against claims fro bodily injury, including personal injury,property damage,including loss of use thereof,which may arise or be alleged to have arisen,from TAI'S activities in connection with the performances of this Agreement,whether such activities be of TAI,.TAI agents,or if anyone employed by TAI.The types of insurance coverage as well as the amounts of such coverage shall be as follows: 10.2.2 TAI shall furnish workman's compensation and employers']tability insurance as required by the laws of the State of California covering all persons employed by TAI in the performance of the duties described therein. 10.2.3 TAI shall provide public liability insurance coverage in the amount of not less than$1,000,000 for property,death or injury of on person,and any one accident or ( casualty,covering the performance of the services therein ordered.The Agency,its commissioners, officials,officers,employees and agents,shall be named as an additional insured. 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 TAI: Theatrical Arts International P.O.Box 270 ( San Bernardino,CA 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 delivered upon service and any notice given by certified or registered mail shall be deemed to have been given on the(5th) business day after such notice is mailed. 11.2 Integration; Supersede Prior Agreements. This agreement supersedes all prior agreements and understanding 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 April 25,2005,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 other party and any pervious practices of the parties pursuant to this agreement nor shall any such previous practices of the parties under the Prior Agreement be used to interpret and provision of this agreement. 11.3 Severability If one or more of the provisions of this agreement is hereunder 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 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 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 TAI 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 discreation. 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 this agreement or to enforce any provision hereof may only be filed in 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 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 affecting the interpretations of any of the provisions of this agreement 11.8 Assignment d 1 ( Neither party hereto shall assign,hypothecate,or otherwise transfer such party's 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 TAI in the rental of the theatre. The Director is authorized to approve the rent-free performance days which are determined by TAI to used for their purposes under Section4 (a). IN WITNESS WHEREOF,the parties have executed this Agreement as of the date first above written. REDEVELOPMENT AGANCY OF THE CITY OF SAN BE By. Executive Di c r THEAT C L ARTS INTERNATIONAL Jose h fterso Allen Evenson PO Box 21054,San Bernardino, California 92406 www.patronsofthebowl.com (909)844-7731 April 1, 2013 Dear Guest The Son Bernardino Farmers Fair Market Ajight 2013 season is quickly approaching. Our season opening night is set for May 7, 2013 at 6pm at the lovely Perris Hill Park. It would be our pleasure to have you there as a supporter and to cut the Season Ribbon Cutting. Please consider joining us. Confirm you RSVP via phone or email @ (909)844-7731 or tperoig@servicestpc.com. Sincerely, SB Farmers Fair Marketing Manager 44-