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HomeMy WebLinkAbout05.B- City Attorney 5.B RESOLUTION (ID #3405) DOC ID: 3405 A CITY OF SAN BERNARDINO—REQUEST FOR COUNCIL ACTION Agreement/Contract From: Gary D. Saenz M/CC Meeting Date: 09/02/2014 Prepared by: Jason Ewert, (909) 384-5355 Dept: City Attorney Ward(s): 3 Subject: Resolution of the Mayor and Common Council of the City of San Bernardino Authorizing the City Manager to Execute a Memorandum of Understanding with the National Orange Show. (At Meeting of August 4, 2014, Item Continued to September 2, 2014) (#3405) Current Business Registration Certificate: Yes Financial Impact: Account Budgeted Amount: <<Insert Amount» Account No. <<Insert Account No.>> Account Description: <<Insert Account Description Balance as of <<Insert Date>> Balance after approval of this item: «Inert 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: Adopt the Resolution. Synopsis of Previous Council Action: This item was presented during closed session on August 4, 2014. The item was put over until September 2, 2014, so a final approved draft could be obtained from the National Orange Show. Background: In recent past,the National Orange Show Events Center has been selected and utilized for large outdoor musical events. Due to the nature of the music at these events, significant resources have been expended by the City Police Department. These expenditures include,but are not limited to, responding to noise complaints from residents of San Bernardino and neighboring cities and management of public safety concerns associated with large scale events at the Events Center. In order to address the concerns of the public and the City,negotiations with the National Orange Show were initiated with the intent to establish an agreement regarding large scale events at the Events Center. The final Memorandum of Understanding addresses major issues including,but not limited to,number of permitted large scale outdoor events per year,noise complaints and cost recovery for services provided by the Police Department during these large scale events. City Attorney Review: This Item Has Been Reviewed and Approved as to Form by the City Attorney's Office. JEG Supporting Documents: RESOLUTION TEMPLATE 1 (DOC) %W0+ Exhibit A: National Orange Show -City of San Bernardino - MOU(PDF) Updated: 8/27/2014 by Jolena E.Grider A Packet Pg. 10 5.B.a 1 RESOLUTION NO. 2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE CITY MANAGER TO EXECUTE A 3 MEMORANDUM OF UNDERSTANDING WITH THE NATIONAL ORANGE SHOW 4 WHEREAS,it is the desire of the National Orange Show to work with the City of San 5 Bernardino to accomplish the greatest utilization of the Events Center (thereby providing 6 7 significant promotion and economic benefit to the City and the region), while ensuring the 8 safety and protecting the personal property of the attendees and the general public, the rn 0 9 National Orange Show has agreed to enter into this Memorandum of Understanding with the Z 10 City of San Bernardino in order to achieve mutually beneficial common goals; and o 11 WHEREAS, it is the desire of the City of San Bernardino to enter into this 12 � Memorandum of Understanding with the National Orange Show to achieve those mutually �'- 13 W 14 beneficial common goals. a 15 W 16 NOW THEREFORE BE IT RESOLVED BY THE MAYOR AND COMMON 0 17 COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: 0 W 18 SECTION 1. The City Manager is hereby authorized to execute the Memorandum of 19 20 Understanding with the National Orange Show, attached hereto as Exhibit "A" and E 21 incorporated herein as though fully set forth. Q 22 23 24 /// 25 26 27 0 28 Packet Pg.4L, 5.B.a RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF 1 SAN BERNARDINO AUTHORIZING THE CITY MANAGER TO EXECUTE A 2 MEMORANDUM OF UNDERSTANDING WITH THE NATIONAL ORANGE SHOW 3 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and 4 Common Council of the City of San Bernardino at a meeting 5 6 thereof,held on the day of , 2014,by the following vote, to wit: 7 Council Members: AYES NAYS ABSTAIN ABSENT 8 MARQUEZ 0 z 9 c BARRIOS 10 VALDIVIA 0 11 LO 12 SHORETT M 13 NICKEL 14 JOHNSON a 15 w MULVIHILL ~ z 16 0 17 J 0 18 Georgeann Hanna, City Clerk w 19 The foregoing resolution is hereby approved this day of , 2014. E 20 U fC w 21 a R. Carey Davis, Mayor 22 City of San Bernardino 23 Approved as to form: 24 Gary D. Saenz, City Attorney 25 26 By: 27 28 Packet Pg. 12 MEMORANDUM OF UNDERSTANDING By and between NATIONAL ORANGE SHOW, Entere�Into Rec. at MCCICDC Mtg: � z by: a California nonprofit public benefit corpoda It rn N L-I and by� CITY OF SAN BERNARDINO City CIerIVC C secretary City of San Bernardino This Memorandum of Understanding ("MOU") is entered into to be effective as of the day of September, 2014, by and between the National Orange Show, a California nonprofit public benefit corporation ("NOS") and the City of San Bernardino (the "City"). NOS and the City are sometimes hereinafter referred to individually as "Parry" and collectively as"Parties." WITNESSETH A. NOS owns and operates the National Orange Show Events Center, a multi-use, 100-acre facility with 150,000 square feet of indoor space ("Events Center"), as more particularly depicted in Exhibit A attached hereto and by this reference incorporated herein, which has traditionally been a leading entertainment venue in the Inland Empire. The Breadth and range of events held at the Events Center have attracted many thousands of patrons, contributing significantly to the vitality and economy of the City. Over the past decades, NOS has designated the City as the recipient of approximately Four Million Six Hundred Thousand Dollars ($4,600,000.00) from revenues generated by NOS' state-of-the-art satellite wagering facility. In addition, NOS has provided the City, without charge, the fire station site located at the corner of Mill St. and Arrowhead Ave. and made the Events Center available at no cost to the City's Fire and Police Department for training purposes,and has authorized the use of the Events Center for educational purposes and for disaster and emergency relief. A brief description of some of the services and benefits provided by NOS is attached hereto as Exhibit B and by this reference incorporated herein. B. As it is the desire of the parties to work together to accomplish the greatest utilization of the Events Center (thereby providing significant promotion and economic benefit to the City and the region), while ensuring the safety and protecting the personal property of the attendees and the general public, the parties have agreed to enter into this MOU in furtherance of their common goals. OPERATIVE PROVISIONS NOW THEREFORE, in consideration of the mutual promises, covenants and conditions hereinafter contained, the Parties, and each of them, do hereby agree as follows: 1. Term. The initial term ("Initial Term") of this MOU shall be five (5) years, beginning on _, 2014 (the "Effective Date"), and, unless sooner terminated pursuant to the provisions herein, ending on _, 2019. The Initial Term may be extended by mutual written agreement of the Parties(the initial term and any extension thereof is hereinafter referred to as the "Term"). Each twelve (12) month period during the term commencing on the Effective Date and continuing on the anniversary of such date shall be referred to herein as an"Operating Year." ��.Q�tsrnati�" pG�FP 2. Termination. This MOU may be terminated (i) by either Party upon thirty (30) days written notice to the other without cause, or (ii) as otherwise specifically provided for herein, provided that any Major Outdoor Event, as defined below, publicly announced prior to the time of receipt of any termination notice will proceed and be subject to the terms of this MOU. 3. Major Outdoor Event(s). Any outdoor music festival, concert or event publicly announced after the Effective Date and to be held at the Events Center,which is anticipated to have an attendance equal to, or, in excess of twenty-thousand(20,000) attendees during one twenty-four(24)hour period shall be classified as a ("Major Outdoor Event"). Notice of Major Outdoor Events must be provided to the San Bernardino Police Department("SBPD")and the San Bernardino Fire Department("SBFD") as early as possible, and under no circumstances shall notice of a Major Outdoor Event be less than thirty (30) days prior to the event. In addition, NOS will provide SBPD and SBFD a map of the venue layout for the Major Outdoor Event. The map will include the location of any stages and any other planned components such as vendors or concession stands, the location of services, such as the security office and medical facilities, and the ingress and egress routes for attendees. Absent prior written consent from the City,NOS shall not permit the use of the Events Center for more than five(5)Major Outdoor Events within any twelve(12)-month period. 4. All other Events. Not less than thirty (30) days prior to any concert or event to be held at the Events Center, which is anticipated to have an attendance equal to, or, in excess of three-thousand five hundred (3,500) attendees, NOS will provide SBPD and SBFD with written notice of the planned event and a map of the venue layout. The map will include the location of any stages and any other planned components such as vendors or concession stands, the location of services, such as the security office and medical facilities, and the ingress and egress routes for attendees. 5. Public Relations. The NOS shall require the promoter of any Major Outdoor Event to fund the use of a third- party public relations firm, selected and engaged by the City and approved by the NOS, to assist the City manage communications related to such Major Outdoor Event(s). This shall occur no less than thirty (30) days prior to such Major Outdoor Event(s). The NOS and the City shall have the right to approve, in NOS' and the City's reasonable discretion, the scope of public relations work necessary for each Major Outdoor Event, including, but not limited to, (i) the anticipated number of hours required for the public relations work, (ii)a description of the type of public relations work expected to be performed, and(iii)the anticipated cost per hour for the public relations work. For each day of any Major Outdoor Event, the number of hours required for the public relations work shall not exceed fifteen (15) hours and the hourly rate for said work shall not exceed One Hundred Fifty Dollars ($150.00) per hour. Additionally, NOS, the City, and the promoter of the Major Outdoor Event shall have the right to perform an audit of services conducted by the third-party public relations firm within sixty (60) days after each Major Outdoor Event. If the results of any such audit suggest the number or hours, quality of work, or cost for services is unsatisfactory or unreasonable, NOS, the City and the promoter shall be entitled to exercise all remedies available at equity and in law. 6. Promoters. NOS will use commercially reasonable efforts to contract for Major Outdoor Events with promoters who have previously promoted similar-size events and demonstrated the ability to produce safe, orderly and professional events. 7. Promoter Insurance. All promoters of Major Outdoor Events shall maintain throughout the Major Outdoor Event personal injury and property damage liability policies of insurance in amounts which are not less than two million dollars ($2,000,000.00) per occurrence, to cover injuries and/or damages, including, but not limited to, those resulting from civil disorder to event attendees, NOS employees, security personnel, and other persons at the Events Center during the Major Outdoor Event. 8. Security. For all Major Outdoor Events, NOS agrees that it will require promoters to provide security personnel based upon the following scales: a. One(1)security personnel for every one hundred(100) attendees; and b. SBPD will provide public safety services at all Major Outdoor Events based upon the SBPD's reasonable assessment of risk factors. The public safety services provided by SBPD shall be conducted in conformity with the best practices standards of the SBPD. NOS agrees to require promoters to pay the costs of the requisite police services at the current hourly rate for each rank of the police officer deployed. Staffing ratios will be dictated by SBPD, based on their reasonable assessment of public safety concerns. 9. Holidays. To ensure sufficient police staffing within the City of San Bernardino, Major Outdoor Events shall not be scheduled or held on Thanksgiving, Christmas, or New Year's Eve. 10. Operating hours: Access. Major Outdoor Events shall be limited to operation between the hours of 10:00 a.m. and 2:00 a.m. ("Authorized Hours") and alcoholic beverages shall be served only during Authorized Hours. Only attendees with valid admission tickets shall be granted access to the Events Center through pre- determined access points, and only during the Authorized Hours. Access to a Major Outdoor Event shall be conditioned upon the attendee's informed consent to a pat-down for the purpose of screening for weapons, drugs and/or other illegal or dangerous items. Security personnel shall perform the pat-downs of all attendees prior to granting them access to the Events Center. NOS shall ensure that the Events Center is cleared of attendees during those times which fall outside of the Authorized Hours. 11. Parking— In connection with Major Outdoor Events, NOS will ensure that it plans and coordinates sufficient parking availability to facilitate legal parking for all attendees. NOS shall require the promoter to coordinate the periodic patrolling by the security personnel of the parking areas throughout the duration of the Major Outdoor Event. 12. Medical personnel. NOS shall require the promoter to maintain throughout the Major Outdoor Event, emergency medical personnel, with the requisite licensing and certifications for providing customary emergency medical services. The number of emergency medical personnel onsite during a Major Outdoor Event shall be in proportion to the anticipated number of attendees, based upon emergency medical staffing customarily provided at similar-sized events. 13. Sound levels. NOS shall require that promoter for each Major Outdoor Event provide a person knowledgeable in sound levels including, without limitation, location and the direction of speakers, sound equipment,baffles, curtains and screens designed to reduce level of sound outside the event center. NOS and the promoter for each Major Outdoor Event and its designated sound specialist shall work in good faith to minimize the noise levels to the surrounding communities and will provide procedures for monitoring and responding to the complaints concerning sound levels during each Major Outdoor Event. Major Outdoor Event musical performances shall not commence prior to 11:00 a.m. each day, and shall conclude by 2:00 a.m. on any Friday, Saturday and Sunday, and by 12:00 a.m. on Mondays through Thursdays. Sound checks are not permitted prior to 10:00 a.m. on the day prior to a Major Outdoor Event. 14. Adjacent Property Clean-up. Within three (3) days following the last day of a Major Outdoor Event, NOS shall be responsible for the cleanup of trash and the removal of graffiti resulting from the Major Outdoor Event in the areas adjacent to the Events Center. The cleanup contemplated under this Paragraph shall commence within one (1) business day of any Major Outdoor Event. Should the cleanup contemplated herein not be completed within three (3) days of the last day of the Major Outdoor Event, as determined by the City in its reasonable discretion, the City may provide written notice of NOS' failure to perform the requisite cleanup, detailing the deficiencies in the clean-up. If NOS does not satisfy the cleanup deficiencies detailed in the City's notice within twenty-four (24) hours of NOS' receipt of the notice, the City may elect to perform the cleanup and submit an invoice to NOS for the reasonable costs incurred in connection with the City's performance of the cleanup specifically identified in the notice. NOS shall remit to the City the payment requested by the invoice within thirty(30)days of NOS' receipt of the invoice. 15. Cooperation. The Parties will work cooperatively in carrying out the spirit and intent of this MOU, with the mutual goal of ensuring the public safety in connection with all events, including Major Outdoor Events. 16. Assignment. Neither Party may assign this MOU without the prior written consent of the other, which consent shall not be un reasonably withheld or delayed; however, NOS may, without the prior written consent of the City, assign this MOU and/or its rights and obligations hereunder (i) to any person or entity who succeeds (whether by merger, consolidation or sale of assets or equity or the like) to all or substantially all of the business and properties of NOS, or (ii) in connection with a corporate restructuring, to any person who is an owner, parent, subsidiary or affiliate of NOS, and who carries on the business of NOS in substantially the same manner. Any assignee of NOS pursuant to the preceding sentence must agree in writing to assume NOS' obligations hereunder, in whole or in part (as applicable), in order for such assignment to become effective. This MOU shall be binding on the Parties' successors and permitted assigns. 17. Notices. All notices required or permitted to be given pursuant to this MOU shall be in writing and delivered personally or sent by registered or certified mail, return receipt requested, or by generally recognized, prepaid, overnight air courier services, to the address and individual set forth below. All such notices to either party shall be deemed to have been provided when delivered, if delivered personally, three (3) days after mailed, if sent by registered or certified mail, or the next business day, if sent by generally recognized,prepaid,overnight air courier services. If to the City: If to NOS: City of San Bernardino National Orange Show Mayor's Office 689 South`B" Street 300 North"D"Street, 6'''Floor San Bernardino,Ca. 92408 San Bernardino, Ca. 92418 Attn: Daniel J. Jimenez, General Manager Attn: R. Carey Davis,Mayor With a copy to: With a copy to: City of San Bernardino Varner&Brandt LLP City Attorney's Office 3750 University Avenue, Ste. 610 300 North"D" Street, 6`''Floor Riverside, Ca. 92501 San Bernardino, Ca. 92418 Attn: Bruce D. Varner Attn: Gary D. Saenz, City Attorney The designation of the individuals to be so notified and the addresses of such Parties set forth above may be changed from time to time by written notice to the other Party in the manner set forth above. 18. Severability. If a court of competent jurisdiction or any arbitrator determines that any term of this MOU is invalid or unenforceable to any extent under applicable law,the remainder of this MOU (and the application of this MOU to other circumstances) shall not be effected thereby, and each remaining term shall be valid and enforceable to the fullest extent permitted by law. 19. Entire Understanding. This MOU (including the exhibit(s) attached hereto) constitutes the entire agreement of the Parties with respect to the subject matter hereof, and supersedes all prior contemporaneous negotiations, correspondence, conversations, agreements, and understandings concerning the subject matter hereof. Accordingly, the Parties agree that no deviation from the terms hereof shall be predicated upon any prior representations, agreements or understandings,whether oral or written. 20. Governing- Law; Venue. This MOU is entered into under and pursuant to, and is to be construed and enforceable in accordance with,the laws of the State of California. Venue for any suit, action or proceeding arising under or in connection with this MOU shall exist exclusively in courts having jurisdiction over the County of San Bernardino. 21. Attorneys' Fees. If any legal action is necessary to enforce or interpret the terms of this MOU, the prevailing Party shall be entitled to reasonable attorneys' fees, reasonable expert witness fees, costs, and necessary disbursements in addition to any other relief to which that Party may be entitled. 22. Amendments. Neither this MOU nor any of its terms may be changed or modified, waived, or terminated (unless as otherwise provided hereunder) except by an instrument in writing signed by an authorized representative of the Party against whom the enforcement of the change,waiver,or termination is sought. 23. Waiver; Remedies. No failure or delay by a Party to insist on the strict performance of any term of this MOU, or to exercise any right to remedy consequent to a breach thereof, shall constitute a waiver of any breach or any subsequent breach of such term. No waiver of any breach hereunder shall affect or alter the remaining terms of the MOU, but each and every term of this MOU shall continue in full force and effect with respect to any other then existing or subsequent breach thereof.The remedies provided in this MOU are cumulative and not exclusive of the remedies provided by law or in equity. 24. Counterparts; Faxed or Emailed Signatures. This MOU may be executed in counterparts. Each of which shall constitute an original,and all of which together shall constitute one and the same document. This MOU may be executed by the parties and transmitted by facsimile or electronic mail, and if so executed and transmitted, shall be effective as if the parties had delivered an executed original of this MOU. (SIGNATURES ON NEXT PAGE] IN WITNESS WHEREOF, each Party has caused this MOU to be executed on behalf of such Party by an authorized representative to be effective as of the date first set forth above. CITY OF SAN BERNARDINO NATIONAL ORANGE SHOW By: By: ALLEN PARKER SEAN S. VARNER Its: City Manager Its: Chairman Dated: Dated: Approved as to form and content: By: By: GARY D. SAENZ BRUCE D. VARNER Its: San Bernardino City Attorney Its: Attorney for the National Orange Show Dated: Dated: Exhibit A Nation Orange Show Events Center Grounds v «a K CL Lq cts s a r ■ I Q a �1 v v u �- cu (jJ 3 a v d A v O O C'! V1 J V Q _W co o ., w. M Z Exhibit B Summary of National Orange Show Services and Benefits II I i I i i i i i i i i i i i i i S111C 1911 The National Orange Show Events Center A Valuable Community Partner In 1911 the National Orange Show was born as a citrus exhibit where growers would gather to display their choicest fruits. It was launched with the purpose of being an asset to the California citrus fruit industry and to its community. Today the National Orange Show has evolved into a full service events center,hosting The Annual Orange Show Festival and over 300 additional events per year; including first class banquets,weddings,business meetings,expos, trade shows, and concerts.As a community partner,the National Orange Show has made generous contributions to its surrounding community and the area of San Bernardino. The following are just some of the sei vices and benefits we provide. • Since 1987 the National Orange Show has awarded the City of San Bernardino with proceeds of.33%allocation funds from the Satellite Wagering Facility, known as the NOS Sports Center, defined in Section 19610.4 of the Business & Professions Code. Contributors total$4.6 million. At its discretion the National Orange Show awarded these funds to the City as opposed to the County of San Bernardino. • For the past several years,the National Orange Show Foundation has hosted the Annual Wine & Food Under the Stars,our annual fundraising event. The Foundation has raised and donated tens of thousands of dollars to nursing scholarship programs,as well as a variety of local children's charities. Now in its 26th year The Foundation continues to have Wine and Food Under the Stars with proceeds still going to local charities. Provide the Farm Bureau with free meeting space to hold discussions with elected officials,board members,farmers,community advisors, cooperative extension services,and other various citrus advisory groups. Partner with CDFA (California Department of Food and Agriculture) to hold grower meetings relating to citrus diseases and invasive species at no charge. Recently had an open forum to the public and growers presented by CDFA and UCR. We have renovated one of our buildings on-site as an Art Gallery,being the only art gallery in San Bernardino. The Gallery provides the public a place to display and visit artwork. • We donate our venue rental, decor,event services,and staff service for the"Best Buddies Prom" annual event. A program that pairs regular education students with students with special needs in high schools in order to foster friendships on campus. •g Discounted venue fee for Molina Health Care. Event benefits low income individuals and family members with free care for the weekend. Clients receive free medical,dental,vision and other services from medical professionals Free admission,food,and activities for Community Organizations affiliated with physically challenged and handicapped children on Friday during the Annual Festival known as"Sunshine Day." • We give free School Tours for elementary school children during the annual Festival. • The San Bernardino Rotary Club,"Kids Scholarly Program,"has monthly meetings with a waived venue fee. • In the past,waived our parking lot area for the San Bernardino Police Department motorbike and vehicle training. • $1.00 in rent per year to the San Bernardino Fire Department to house its Fire Station on our property. Rental income would normally be up to $5,000 per month. • We offer Big Board electronic postings for non-profit community partners, complements of the National Orange Show. The message board is located on the corner of Mill Street and E Street. • Our facility deals with a number of non-profit organizations,charities,education institutions, and fund-raisers that we house for their primer events throughout the year. Many of the events are annual and have became a tradition to our facility such as the Bonne Mere's,Forest of Hope, Children's Network, Child Help, Santa Claus Inc,Headdress Ball, and many more. • Room rental discount with free parking and linens for the California Highway Patrol testing events. • California State University of San Bernardino Alumni Association fund-raiser events get discounted rates for event services. • We offer a discounted rate for the"Time For A Change,"an event that helps the women's workforce unite and assists those in need. • In the past we have acted as an evacuation Center during the past San Bernardino Fires in 2003;where we provided displaced community members with food, shelter and family activities. Continued dialogue with the county in case of evacuation needs still remains. • Our catering and banquet center has contributed to the various San Bernardino homeless shelters with donated food. • Tables and event set up at no charge for San Bernardino County Schools Science Fair. • Free rent of National Orange Show grounds to the California Cadet Corp school marching band to conduct practices. • Street enhancements to Arrowhead Avenue (citrus trees,sidewalk,and curb). • Loma Linda Medical Center Big Hearts Guild donation of event planning and facility for their annual fund-raiser. • Donation of building space and event services to the Assistance League of San Bernardino. • Donated room rental and services to the Symphony Guild for its Valentine Brunch. • Generous donations to local charities through the NOS Foundation. • Contribution of room rental and decor for the Make A Wish Foundation. • Discount rates for Crafton Hills Community College annual Gayla event. • Contribution of food,labor and chef for the Arthritis Foundation "Taste of the Town" event. • Free floral arrangements for Arrowhead United Way's annual meeting and awards breakfast. • Provided"cooling stations"for the public during the summer heat waves. • The LA Pigeon Club has their annual event at our facility with discounted rates. In 2013 was the venue for the First Inland Empire's United States Citizen and Immigration Services naturalization ceremony. The National Orange Show Events Center is an ideal events venue. Empowered by the versatility of our unique facilities,we can provide a location to suit virtually any type of successful event you can envision. Our professional staff is ready to help assure the success of an event by offering complete event services and a wide variety of event capabilities. The Board of Directors and the National Orange Show continue to evolve with the community and surrounding businesses we proudly provides funds for a variety of causes: Education programs in agriculture,health, and general studies; services and programs that benefit at-risk children and their families; programs and services that improve quality of life; student scholarships; community enrichment, and literacy. We have contributed significantly to positive cash influx to the hotel, restaurant and service industry. Surveys show a 11.9 million dollar injection during our two day concerts.We are a valuable community partner and will continue to grow strong with those were involved with.