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HomeMy WebLinkAboutAGENDA REPORT 2024 0619 CCSA REG ITEM 10FCITY OF MOORPARK, CALIFORNIA City Council Meeting of June 19, 2024 ACTION APPROVED STAFF RECOMMENDATION. (VOICE VOTE: 4-0, COUNCILMEMBER GROFF RECUSED) BY A. Hurtado. F. Consider Renewal of Operating Agreement with the Moorpark Foundation for the Arts for a Three-Year Term. Staff Recommendation: Approve Operating Agreement with the Moorpark Foundation for the Arts, for a three-year term beginning July 1, 2024, with two one-year options to extend the term, and authorize the City Manager to sign the Agreement and future term extensions, subject to final language approval of the City Manager. (Staff: Jessica Sandifer, Deputy Parks and Recreation Director) Item: 10.F. MOORPARK CITY COUNCIL AGENDA REPORT TO: Honorable City Council FROM: Jessica Sandifer, Deputy Parks and Recreation Director DATE: 06/19/2024 Regular Meeting SUBJECT: Consider Renewal of Operating Agreement with the Moorpark Foundation for the Arts for a Three-Year Term BACKGROUND The Redevelopment Agency of the City of Moorpark (Agency) acquired the High Street Arts Center at 45 High Street (“HSAC”) on August 1, 2005, in an effort to preserve a venue for live performances in the downtown. On February 1, 2012, the State of California eliminated Redevelopment Agencies and responsibility for Agency assets fell to the Successor Agency to the Redevelopment Agency of the City of Moorpark (Successor Agency). In 2012, the Successor Agency approved an operating agreement with the Moorpark Foundation for the Arts (Foundation) for a three-year term beginning in July 2012. Effective July 1, 2014, the Successor Agency transferred the properties at 45 High Street, and 33 High Street to the City of Moorpark for management and disposal in accordance with the adopted Long Range Property Management Plan. Since the properties were transferred to the City, the City Council was asked to affirm and approve an Operating Agreement with the City of Moorpark in July 2015. In April 2016, the Operating Agreement was amended to add the property at 61 High Street, which was purchased by the City in support of HSAC Operations. The amendment added the requirement for a rental payment of $3,000/month for 61 High Street, and to make some other minor amendments regarding technology use and naming rights. In 2017, the City purchased the property at 31 Poindexter Avenue for future road widening activities. Since the property also had a vacant warehouse, the new Operating Agreement approved in 2018, had a provision added that allowed the Foundation to use Item: 10.F. 478 Honorable City Council 06/19/2024 Regular Meeting Page 2 the warehouse at 31 Poindexter Avenue for storage and set building, until such time as the City requires the property for road widening activities. As a reminder, the Foundation was established in September 2009 by the City of Moorpark and the Foundation is independent of the City both administratively and financially as it relates to Theater operations. The purpose of the Foundation is to support and promote the growth and enjoyment of the performing and visual arts in the City of Moorpark. The Foundation is continuously seeking and securing funding through private donations, private and public grants, and other available sources to provide financial support to the High Street Arts Center and reduce the required financial contribution from the City of Moorpark. The Foundation also makes financial assistance available to diverse groups and individuals within our community, encouraging access and participation in the visual and performing arts. DISCUSSION The current operating agreement, approved in 2018, expires on June 30, 2024. A new Agreement has been drafted to allow the Foundation to continue to operate the High Street Arts Center, 33 and 61 High Street, and 31 Poindexter Avenue (Premises) to facilitate operation of the Theater. The new Agreement proposes an initial three-year term, and two optional one-year extensions, for a possible total term of five years. The new Operating Agreement remains substantively the same as the prior agreement. Language changes were made to combine the previously executed amendments into the 2024 Agreement. These changes defined how the rent for 33 High Street was calculated, reduced the Annual Report requirement from twice a year to once per year, and changed the uses at 31 Poindexter. The rental amount for 33 High Street will remain the same at $3,000 per month. Rental revenues will be deposited back into the Endowment Fund, which is where the purchase of the building was made from. Under the Agreement, the Foundation will continue to operate the High Street Arts Center and cover all expenses for show production, and pay for electricity, water, security alarms, and internet/phone for the Premises. The City will continue to provide major maintenance and repairs to the Premises and will provide solid waste and recycling services at the HSAC through the Solid Waste Franchise Agreement. The Foundation will use the trash service at the HSAC for 33 High Street and 61 High Street. When trash service is needed at 31 Poindexter Avenue due to set building or other theater activities, the Foundation will rent a temporary bin; and the City will continue to maintain liability insurance on all properties. The Foundation is still required to produce a minimum of 5 main stage productions, conduct a minimum of one youth musical theater camp, and make the HSAC available to the City of Moorpark for eight events each fiscal year, including Moorpark Has Talent, State of the City, and other events as determined by the City. The Operating Agreement also allows the Foundation to re-invest their funds into the Premises by making improvements to the facilities and outlining the process by which they can request to make those changes. 479 Honorable City Council 06/19/2024 Regular Meeting Page 3 Other general language changes and updates have been made to remove references to items or sections that were relevant when the operations transferred from the City to the Foundation, but that are no longer relevant now that the Foundation has operated the Theater for several years. ENVIRONMENTAL DETERMINATION This action is exempt from the California Environmental Quality Act (CEQA) as it does not constitute a project, as defined by Section 15378 of the State CEQA Guidelines. Therefore, no environmental review is required. FISCAL IMPACT The Foundation will continue to pay $3,000 per month rent for 61 High Street, amounting to $36,000 per year in rent revenue, which is being allocated to the Endowment Fund to pay back the City for the purchase of 61 High Street. The City also budgets $30,000 per year for building maintenance activities required under the Agreement. COUNCIL GOAL COMPLIANCE This action does not support a current strategic directive. However, continuing operation of the High Street Arts Center does support the overall Strategic Priority of Economic Development. STAFF RECOMMENDATION Approve Operating Agreement with the Moorpark Foundation for the Arts, for a three-year term beginning July 1, 2024, with two one-year options to extend the term, and authorize the City Manager to sign the Agreement and future term extensions, subject to final language approval of the City Manager. Attachment: Operating Agreement 480 OPERATING AGREEMENT THIS OPERATING AGREEMENT (hereinafter “Agreement”) is made and entered into as of this ______ day of _______________, 2024, by and between the City of Moorpark, a municipal corporation, (hereinafter the “City”), and the Moorpark Foundation for the Arts, a California non-profit corporation under the IRS code 501 (c) 3, (hereinafter the “Foundation’). WHEREAS, the City Council deems that operation of the High Street Arts Center (HSAC) as a performing arts venue contributes to the economic health of High Street; and WHEREAS, the City has the need for a professional operator to operate the HSAC; and WHEREAS, the Foundation has been successfully operating the HSAC since 2012 and has agreed to continue to operate the HSAC. NOW, THEREFORE, in consideration of the mutual covenants, benefits, and premises herein stated, the parties hereto agree as follows: SECTION 1. OPERATING AUTHORITY City hereby agrees and authorizes the Foundation to operate as hereinafter provided the HSAC located at 45 East High Street as a performing arts venue. This Agreement shall also include use of 33 High Street for office space, dressing room, costume fitting and alteration, limited equipment storage and rehearsal space for the Foundation’s activities relevant to operation of the HSAC; 61 High Street for rehearsal, member functions, youth program activities and prop storage, as further detailed in Section 32; and 31 Poindexter Avenue, as detailed in Section 33, for storage of costumes, props, set fabrication and storage of materials and equipment. When the provisions of this Agreement apply to HSAC, 33 High Street, 61 High Street and 31 Poindexter Avenue, the term Premises may be used. Based on availability and prior written approval by the City Manager or authorized designee, Foundation may also have use of the Apricot Room at the Moorpark Community Center located at 799 Moorpark Avenue, when necessary for performer auditions or rehearsals on Mondays through Fridays between 4:00 p.m. and 9:00 p.m. or other dates and times as approved, in writing, by the City Manager or the City Manager’s designee, not including City holidays, at no cost provided no City personnel are required to be available for such use. Both parties acknowledge that the public parking available along High Street and in the public parking lots accessible from High Street may be used but will not be reserved for HSAC events, and other public use of the public parking areas may occur and affect the availability of parking for patrons at HSAC events. ATTACHMENT 481 Operating Agreement - 2 – Moorpark Foundation for the Arts SECTION 2. TERM The term of this Agreement shall commence on the 1st day of July, 2024 and all terms and conditions of the Agreement shall continue to the 30th day of June, 2027. SECTION 3. OPTION TO EXTEND TERM Foundation and City shall have the option to approve a written amendment to this Agreement to extend the term up to a maximum of three (3) years to June 30, 2030. The parties shall provide notification in writing of the intent to approve an amendment to extend this Agreement no less than sixty (60) days prior to the end of the term of this Agreement on June 30, 2027. SECTION 4. RENT Foundation shall pay City, without abatement, deduction or offset, rent in the amount of one dollar ($1.00) per year for use of 45 High Street, 33 High Street and 31 Poindexter Avenue, payable in advance on or before the 1st of July each year of the rental term. For the use of 61 High Street, Foundation shall pay City, without abatement, deduction or offset, the amount of three thousand dollars ($3,000.00) per month throughout the term of the Agreement, and through any extended terms, with said sum being used to reimburse the City for the purchase of 33 High Street with the sum being calculated as the purchase price divided over a thirty (30) year term. City acknowledges that Foundation has already paid the City a security deposit of one thousand dollars ($1,000.00) for 33 High Street and that when escrow closed for 61 High Street, the security deposit, paid by Foundation to the prior owner, was transferred to the City in the amount of three thousand dollars ($3,000.00) for 61 High Street. SECTION 5. REPORTING Foundation shall provide a written Annual Financial and Activity Report due to the City by July 31 of each year. The report shall include but not be limited to revenues from box office sales, concession and rental fees, a list of rentals, attendance at all events, all expenses and other information that may be requested by the City Manager. If Foundation should project an operational budget deficit, Foundation shall notify City with a special written report as soon as the deficit is projected. 482 Operating Agreement - 3 – Moorpark Foundation for the Arts SECTION 6. INDEMNIFICATION AND HOLD HARMLESS To the fullest extent permitted by law, Foundation shall, at Foundation’s sole expense and with legal counsel reasonably acceptable to City, defend, indemnify, and hold harmless City and City’s officers, employees, and agents from and against all claims (including demands, losses, actions, causes of action, damages, liabilities, expenses, charges, assessments, fines or penalties of any kind, and costs including consultant and expert fees, court costs, and legal counsel’s fees) from any cause, arising out of or relating (directly or indirectly) to this Agreement, the tenancy created under this Agreement, or the Premises, including without limitation: 1. The use of occupancy, or manner of use or occupancy, of the Premises or Building by the Foundation; 2. Any act, error, omission, or negligence of Foundation or of any subtenant, invitee, guest, contractor, or licensee of Foundation or any subtenant in, on, or about the Real Property; 3. Foundation’s conducting of its business; 4. Any alterations, activities, work, or things done, omitted, permitted, allowed, or suffered by Foundation in, at, or about the Premises or Building, including the violation of or failure to comply with any applicable laws, statutes, ordinances, standards, rules, regulations, orders, decrees, or judgments in existence on the Agreement Commencement Date or enacted, promulgated, or issued after the date of this Agreement; 5. Any breach or default in performance of any obligation on Foundation’s part to be performed under this Agreement, whether before or during the Agreement Term or after its expiration or earlier termination 6. This indemnification extends to and includes, without limitation, claims for: a. Injury to any persons (including death at any time resulting from that injury); b. Loss of, injury or damage to, or destruction of property (including loss of use at any time resulting from that loss, injury, damage, or destruction); and c. All economic losses and consequential or resulting damage or any kind. Foundation’s indemnification obligation hereunder shall survive the expiration or earlier termination of this Agreement until all claims against City involving any of the indemnified matters are fully, finally, and absolutely barred by the applicable statutes of limitation. City does not and shall not waive any rights that it may have against Foundation by this Section, because of the acceptance by City, or deposit with City, of any insurance policy or certificate required pursuant to this Agreement. 483 Operating Agreement - 4 – Moorpark Foundation for the Arts SECTION 7. USE AND OBLIGATIONS OF THE FOUNDATION Foundation shall use the HSAC for Foundation and performing arts, film and other entertainment or training purposes only, including rentals for these purposes, including but not limited to a minimum of five (5), main stage productions during each season and a minimum of one (1) youth musical theater program each year (July 1 – June 30). The Foundation will continue to present diversified programming including music and film. Certain events and performances may be co-sponsored by the City at its sole discretion. If an event or performance is co- sponsored by City, at City’s further discretion, such event or performance may be promoted through use of City’s electronic message boards, advertising in the City’s Quarterly Recreation Guide, inserts in solid waste collection bills, notices on the City’s Government Access Channel, and a link from the City’s website. The HSAC marquee shall be used only to display advertising messages for events to be held at the HSAC including private rentals and co-productions. For the required main stage and youth theater productions, the Foundation is allowed to post banners at the entrance to Arroyo Vista Community Park and Campus Canyon Park. Banners for each of the required main stage productions may be posted a maximum of four (4) weeks, either consecutively or in two (2) week increments, but in no event will banners be posted more than one (1) week prior to the first performance. Foundation will submit written notification to the City indicating dates for banner posting and removal for each production. The size of the Foundation’s banners will comply with the City’s sign ordinance for temporary signs and banners. Foundation is responsible for ensuring that posted banners are in good condition, free from rips or tears. Foundation will remove the banners within twenty-four (24) hours of notification by the City of any unsatisfactory banners. The Foundation shall continue to make the HSAC available for private rentals based on availability without discriminating based on race, religious creed, color, national origin, ancestry, physical handicap, medical condition, marital status, gender, gender identity or any other protected class. Such rentals shall adhere to the same standards required of the Foundation. The Foundation shall make every effort to provide the highest level of customer service including a prompt response to verbal or written contact, including telephone calls and emails, maintaining a clean and safe environment, and providing courteous staff and volunteers. The Foundation shall contract for the services of an HSAC General Manager and provide for any other staffing necessary to operate the HSAC at no cost to the City. Foundation shall provide the City with a twenty-four (24)-hour emergency contact number. To the greatest extent possible, all productions, presentations, exhibitions, and motion pictures shall be suitable for general audiences of all ages. In no event shall the Foundation permit the exhibition of adult type motion pictures that are rated 484 Operating Agreement - 5 – Moorpark Foundation for the Arts “NC-17”, “X”, “XX”, or “XXX” or higher, as such ratings are now or hereafter in effect, or similarly rated under any other rating system. Motion pictures that are not rated may be allowed after preview and approval by the Foundation for confirmation that the motion picture does not fall within the ratings referenced above. The Foundation will make the HSAC including lighting and sound staff available at no cost to the City for up to eight (8) special community events each year, which may include, but are not limited to, the “Moorpark Has Talent” Show, the State of the City event, entertainment for Country Days, City Library and recreation events and other activities and events as the City may authorize, including but not limited to City-hosted training events or meetings. Upon request from the City to book one of these City events, the Foundation shall respond, in writing, within three (3) business day to confirm City’s event. Foundation shall fund prizes for “Moorpark Has Talent” at a minimum level of one thousand two hundred dollars ($1,200.00). The City shall receive all revenue, with the exception of concession sales, from any City event or activity as described herein. The Foundation shall retain all revenues from the operation of the HSAC Theatrical Season and special events including all box office revenues season ticket sales, Musical Theater Camp registration fees, and revenues from concessions and playbill ads. Any rentals for more than one day in duration by a single entity or affiliate of a single entity and for which the rental revenue exceeds $5,000, must be pre-approved by the City. The Foundation shall retain revenues, less reasonable expenses, for private rentals up to five thousand dollars ($5,000.00). Any revenues over five thousand dollars ($5,000.00) are to be maintained in a separate account (CIP Fund) by the Foundation to be used by Foundation to offset capital improvement and maintenance projects for the HSAC which have been approved in a separate Capital Improvement Request, as further detailed in Section 12. Foundation will report on the balance and expenditures from the CIP Fund as a part of the reporting requirement in Section 5. Any film production rentals at the HSAC for which a City-issued film permit is required, must be pre- approved by the City. On July 19, 2006, the City Council of the City of Moorpark changed the name from the “Theater on High Street” to the “High Street Arts Center”, and as such the Foundation has no ownership of the name “High Street Arts Center”. The Foundation shall also not have naming rights for the HSAC building generally; however, the Foundation may sell other sponsorship opportunities, such as theater seat sponsorships as a fundraiser, provided it is acknowledged that such sponsorships shall expire upon termination of this Agreement. Sponsorship shall not include any signage on the exterior of the HSAC building. The Foundation shall have exclusive use of Theater Equipment. Theater Equipment shall include sound, stage, and lighting equipment, and other equipment including concession equipment. The HSAC shall not be used for any 485 Operating Agreement - 6 – Moorpark Foundation for the Arts other purpose, except with the prior written consent of the City Manager. The Foundation shall continuously maintain 501(c) 3 non-profit organization status during the term, and any extended terms, of the Agreement. The Foundation acknowledges that maintaining non-profit status is a material consideration for entering into this Agreement and as such, failure to maintain such non-profit status shall be considered a breach of this Agreement and subject to the remedies provided for in this Agreement. City reserves the right to install technology and communications equipment in locations determined by the City at the Premises, as necessary. Access to this equipment shall be governed by Section 21 of this Agreement. All deliveries or drop-offs made to the Premises shall be done in accordance with the California Vehicle Code and should not impede traffic on the public rights-of- way. SECTION 8. NOTICE OF NON-ELIGIBILITY FOR RELOCATION BENEFITS Foundation acknowledges previous receipt of Notice of Non-Eligibility for Relocation Benefits in prior operating agreements. Please read this notification carefully prior to signing this Agreement and moving into the property. As a post-acquisition tenant, Foundation will not be eligible for relocation benefits under the federal and State Law. This notice is to inform you of the following information before you enter into any agreement and occupy a unit at the above address: 1. You may be displaced at the end of Agreement term. 2. You may be subject to a rent increase upon Agreement renewal or option to extend the Agreement term. 3. You will not be entitled to any relocation benefits. If you have to move or your rent is increased, you will not be reimbursed for any such rent increase or for any costs or expenses incurred by you in connection with a move. SECTION 9. DISPOSITION OF THEATER EQUIPMENT Upon termination of this Agreement, Theater Equipment purchased by the Foundation that is not affixed to the building, shall be disposed of in accordance with the Foundation’s Articles of Incorporation or be transferred to the City. SECTION 10. UTILITIES City agrees to provide solid waste and recycling services to HSAC, at no cost to 486 Operating Agreement - 7 – Moorpark Foundation for the Arts Foundation. Trash services at 33 High Street and 61 High Street can be serviced using the trash at the HSAC. When trash service is needed at 31 Poindexter, or additional refuse services are needed at the HSAC, the Foundation shall be responsible for renting a temporary trash bin for the site. Foundation is required to provide, electricity, water, internet access and monthly telephone services for the Premises, including internet service to the theater box office, and shall pay for said service directly to the service providers. City may, at its own discretion, continue to provide public wireless internet service to the HSAC, but such wireless service is not guaranteed, and City Staff will not respond to Foundation wireless service repair requests. City further agrees to provide and maintain a fire alarm system for HSAC, including provision of the telephone service required for the system. Foundation is required to provide the security alarm system at the HSAC. At a minimum, the system should provide for alarm and motion sensors at all windows and doors per the satisfaction of the City. The City shall inspect the HSAC annually to ensure the required alarm measures are installed. The Foundation shall provide the City an alarm code for access to the Premises. Foundation is not required to provide and maintain a security alarm system at 33 High Street, 61 High Street or the portion it occupies at 31 Poindexter, however, damage to the building as a result of vandalism or theft shall be the responsibility of the Foundation, at their sole cost and expense. Foundation will notify City immediately of any damages that occur to the Premises. The City will bear no cost for the installation of security alarm systems or monitoring of the Premises. It is further agreed that in the event Foundation shall fail to pay the above mentioned charges when due, City shall have the right to pay the same on demand, together with any interest thereon and any other fees that may be owed. The City shall be reimbursed by the Foundation within five (5) days of notice from City for the amount of payment plus any interest or fees, with an additional fifteen percent (15%) administrative fee. Failure to pay monthly service charges for any above-mentioned utilities in a timely fashion shall be cause for termination of this Agreement. SECTION 11. TAXES, ASSESSMENTS AND LIENS Foundation shall pay directly to the tax collector, when due, all taxes and assessments which may be levied against Foundation’s possessory interest in the Premises and upon all improvements and personal property which are located on the Premises. Within five (5) days after the date when any tax or assessment would become delinquent, Foundation shall serve upon City receipts or other appropriate evidence establishing the payment. Foundation shall keep the Premises and improvements free from all liens and encumbrances by reason of the use or occupancy of the Premises by Foundation. If any liens or encumbrances are filed thereon, Foundation shall remove the same at their own cost and expense and shall pay any judgment and penalties which 487 Operating Agreement - 8 – Moorpark Foundation for the Arts may be entered thereon. Should Foundation fail, neglect or refuse to do so, City shall have the rights to pay any amount required to release any lien or encumbrance or to defend any action brought thereon, and to pay any judgment or penalty, and Foundation shall be liable to City for all costs, damages, and legal counsels’ fees, and any amounts expended in defending any proceedings, or in the payment of any lien, encumbrance, judgment or penalty. City may post and maintain upon the Premises notices of non-responsibility as provided by laws. Upon demand by City, Foundation shall post the bond contemplated by Civil Code Section 8424. SECTION 12. IMPROVEMENTS AT PREMISES If Foundation desires to make alterations, additions, or improvements upon the Premises, Foundation, may do so at their sole cost and expense as outlined below. Foundation shall prepare a Capital Improvement Request (Request) and identify desired improvements, estimated cost, and priority, and submit the Request to the City Manager for authorization to move forward with the identified improvement(s). Improvements that are not listed in the Request may not be undertaken without City Manager approval or City Council approval as may be determined by the City Manager. Thereafter, the Foundation will report on progress on the improvements annually, as part of the annual report. Any alterations, additions, or improvements installed or caused to be installed to the building or site, or any fencing, floor covering, interior or exterior lighting, plumbing fixtures, shades or awnings, or any other improvements on the Premises (collectively “Improvements”) pursuant to the approved Request shall be solely at Foundation’s cost and will generally be funded by the Foundation’s CIP Fund and will not be reimbursable by City, unless pre-approved and funded by action of the City Council. All Improvements shall be done in a good and workmanlike manner and diligently prosecuted to completion, and shall be performed and maintained in strict accord with all federal, state, county, and local laws, ordinances, codes, standards, and requirements relating thereto. Unless otherwise expressly agreed to by the City, any Improvements shall remain on and be surrendered with the Premises upon the expiration or termination of this Agreement. Foundation agrees to and shall indemnify, defend with legal counsel approved by City and hold harmless City and its officers, employees, servants and agents from and against all liability, loss, damage, costs, legal counsels’ fees, and other expenses of any nature resulting from any Foundation alterations, additions, or improvements to the Premises. SECTION 13. REMEDIES AND TERMINATION In case of the failure or refusal of Foundation to comply with and perform each and all of the terms and covenants on their part herein contained, this Agreement and all rights hereby given shall, at the option of the City, cease and terminate, and the City shall have the right forthwith to remove Foundation’s personal property from 488 Operating Agreement - 9 – Moorpark Foundation for the Arts the Premises at the sole cost, expense, and risk of Foundation, which cost and expense Foundation agrees to pay to City upon demand, together with interest thereon at the maximum rate allowed by law from the date of expenditure by City. Such action shall be preceded by thirty (30) day written notice. This Agreement may also be terminated by either City or Foundation consistent with Section 2. SECTION 14. MAINTENANCE City shall provide major maintenance, repairs, and insurance for the Premises during the term of the Agreement including major repairs to building, roof, electrical and plumbing systems, water systems (potable and waste), air conditioning and heating systems and building structure. City shall not be obligated to repair or maintain the Premises or improvements in any manner throughout the term of the Agreement, except as stated herein. However, City may elect to perform any obligation of Foundation pursuant to this Section due to Foundation’s failure or refusal to do so and at Foundation’s waiver of any rights or remedy for Foundation’s default. Foundation shall provide janitorial services including periodic cleaning of carpeting, curtains and seating by contract or by volunteer services. Foundation shall be responsible for maintaining Safety Data Sheets (SDS) as required by law on the Premises. Foundation has examined the Premises and accepts the same as being clean, in good order, condition, and repair with the exceptions of items specifically stated in this Section. Throughout the term of this Agreement, Foundation shall, at Foundation’s sole cost and expense, maintain the Premises and all improvements thereon in good order, condition, and repair and in accordance with all applicable statutes, ordinances, rules, and regulations. Foundation shall immediately report any problems requiring City maintenance or repair to the City Manager or his designated representative. Foundation shall reimburse City for the cost and expense they incurred in the performance of Foundation’s janitorial obligations required by this Section within fifteen (15) days of City’s request for payment, plus any interest or fees, with an additional fifteen percent (15%) administrative fee. Should City perform any of the Foundation’s janitorial obligations, such services shall be at the sole discretion of City, and the performance of such services shall not be construed as an obligation or warranty by City of the future or ongoing performance of such services. Failure to maintain Premises as outlined herein shall be considered grounds for termination of this Agreement. Foundation shall also indemnify, defend with legal counsel approved by City, and hold harmless City and its officers, employees, servants, and agents from and against all claims, actions, liabilities, losses, damages, costs, legal counsels’ fees, and other expenses of any nature for loss or damage to property, or injury to or death of persons, arising in any manner whatsoever, directly or indirectly, from 489 Operating Agreement - 10 – Moorpark Foundation for the Arts Foundation’s performance pursuant to this Section. The indemnification, legal defense and hold harmless provisions of this Agreement shall survive the termination of the tenancy. SECTION 15. PESTICIDES AND HERBICIDES Foundation shall use pesticides and herbicides on the Premises in strict accordance with all applicable statutes, ordinances, rules and regulations, including maintenance of required Safety Data Sheets (SDS) on all products used on the Premises. Such pesticides and herbicides shall be limited to those that are permitted for residential housing units. SECTION 16. HAZARDOUS MATERIALS INDEMNITY As used in this Section, Hazardous Materials means any substance, product, waste, or other material of any nature whatsoever which is or becomes listed, regulated or addressed pursuant to: (1) the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. Section 9601, et seq. (“CERCLA”); the Hazardous Materials Transportation Act, 49 U.S.C., Section 1801, et seq.; the Resource Conservation and Recovery Act, 42 U.S.C., Section 6901, et seq.; the Substances Control Act, 15 U.S.C., Section 2601, et seq.; the Clean Water Act, 33 U.S.C. Section 1251, et seq.; the California Hazardous Waste Control Act, Health and Safety Code Section 25100, et seq.; the California Hazardous Substance Account Act, Health and Safety Code Section 25330, et seq.; the California Safe Drinking Water and Toxic Enforcement Act, Health and Safety Code Section 25249.5 et seq.; California Health and Safety Code Section 25280, et seq. (Underground Storage of Hazardous Substances); the California Hazardous Waste Management Act, Health and Safety Code Section 25170.1, et seq.; California Health and Safety Code Section 25501, et seq.; (Hazardous Materials Response Plans and Inventory); or the Porter-Cologne Water Quality Control Act, Water Code Section 13000, et seq. all as amended, (2) any other federal or state law or any local law regulating, relating to, or imposing liability or standards of conduct concerning any hazardous, toxic, or dangerous waste, substance or material, as now is, or at any time hereafter may be, in effect, and (3) any rule or regulation adopted or promulgated under or pursuant to any of said laws. If Foundation receives any notice, whether oral or written, of any inquiry, test, investigation, enforcement proceeding, environmental audit, or the like regarding any Hazardous Material on the Premises, Foundation shall immediately serve City with a copy of such notice. In no case shall Foundation cause or allow the deposit or disposal of any such substance on the Premises. However, household products necessary for routine cleaning and maintenance of the Premises may be kept on the Premises in quantities reasonable for current needs. 490 Operating Agreement - 11 – Moorpark Foundation for the Arts The provisions of this Section shall survive the termination of the Agreement and shall relate back to all periods of Foundation’s use of the Premises. The provisions of this Section are intended to operate as an agreement pursuant to Section 107(e) of CERCLA, 42 U.S.C. Section 9707(e), and California Health and Safety Code Section 25364, to insure, protect, hold harmless, and indemnify City from any liability pursuant to such law. SECTION 17. NO WARRANTIES BY CITY The Premises are accepted by Foundation in an “as is” condition and without any representation or warranty by City as to the condition of the Premises or as to fitness of the Premises for Foundation’s use. SECTION 18. CASUALTY INSURANCE City shall continue to maintain general liability, fire, and earthquake insurance coverage for the HSAC and shall maintain general liability insurance for 33 High Street, 61 High Street, and 31 Poindexter Avenue, with the amounts for such insurance to be determined by City. City shall not be obligated to insure 33 High Street, 61 High Street, and 31 Poindexter Avenue or Foundation for any personal injury related to Foundations activities upon the Premises or for damage to Foundation-owned personal property or equipment. Foundation hereby and forever waives all right to claim or recover damages from City in any amount as the result of any damage to the HSAC or any improvement thereon or as a result of any injury to any person upon the Premises. SECTION 19. INSURANCE Foundation shall maintain prior to the beginning of and for the duration of this Agreement insurance coverage as specified in Exhibit A attached to and part of this Agreement. The policy shall name Foundation as the insured and the City of Moorpark as additional insured. SECTION 20. VENUE AND GOVERNING LAW This Agreement is made, entered into, and executed in Ventura County, California, and any action filed in any court or for arbitration for the interpretation, enforcement or other action of the terms, conditions, or covenants referred to herein shall be filed in the applicable court in Ventura County, California. The City and Consultant understand and agree that the laws of the state of California shall govern the rights, obligations, duties, and liabilities of the parties to this Agreement and also govern the interpretation of this Agreement. SECTION 21. ENTRY BY CITY During the tenancy, City may enter the Premises upon not less than twenty-four 491 Operating Agreement - 12 – Moorpark Foundation for the Arts (24) hours advance notice and Foundation shall make the Premises available during normal business hours to the City’s authorized agent or representative for the purpose of: (1) to show the Premises to prospective or actual purchasers, mortgagee, foundations, workmen, or contractors, (2) to make necessary or agreed repairs, decorations, alterations, improvements, or to access City equipment located at the HSAC, and (3) at all reasonable times to examine the condition thereof, including its environmental condition. In an emergency, as determined by the City, City’s agent or authorized representative may enter the Premises at any time without securing prior permission from Foundation. SECTION 22. ASSIGNMENT AND SUBLETTING No portion of the Premises or of Foundation’s interest in this Agreement shall be transferred by way of sublease of Premises, assignment or other voluntary or involuntary transfer or encumbrance, without the prior written consent of the City Manager, except as provided for in Section 7 for short term rentals, which consent Foundation agrees may be reasonably withheld by the City Manager at his sole and absolute discretion. Foundation shall pay City the sum of two Hundred Dollars ($200.00), all out of pocket expenses related to investigation of the qualifications of a proposed assignee or sublessee, plus a fifteen percent (15%) administrative fee.; City shall not be required to account for the use of said sum paid. A consent to one transfer shall not be deemed to be a consent to any subsequent transfer. Any transfer without consent shall be void, and shall, at the option of the City, terminate this Agreement. SECTION 23. DEFAULT OR BREACH Except as otherwise provided, at any time one party to this Agreement is in default or breach in the performance of any of the terms and conditions of this Agreement, the other party shall give written notice to remedy such default or breach. If the default or breach is remedied within thirty (30) days following such notice, then this Agreement shall continue in full force and effect. If such default or breach is not remedied within thirty (30) days following such notice or if the nature of the default is such that it cannot reasonably be cured within thirty (30) days, if Foundation fails to commence to cure within the thirty (30) day period, the other party may, at its option, terminate this Agreement. Such termination shall not be considered a waiver of damages or other remedies available to either party because of such default or breach. Each term and condition of this Agreement shall be deemed to be both a covenant and a condition. SECTION 24. INSOLVENCY OR BANKRUPTCY If Foundation shall be adjudged bankrupt or insolvent, this Agreement shall thereupon immediately terminate and the same shall not be assignable by any process of law, or be treated as an asset of the Foundation under such adjudication, nor shall it pass under the control of any trustee or assignee by virtue 492 Operating Agreement - 13 – Moorpark Foundation for the Arts of any process in bankruptcy or insolvency, or by execution or assignment for the benefit of creditors. If any such event occurs, this Agreement shall immediately become null and void and of no effect, and City may thereupon repossess said Premises and all rights of the Foundation thereupon shall cease and terminate. SECTION 25. DISPOSSESSION In the event Foundation is lawfully deprived of the possession of the Premises or any part thereof, at any time during the tenancy, by anyone other than City, they shall notify City in writing, setting forth in full the circumstances in relation thereto. Upon receipt of said notice, City may, at its option, either install Foundation in possession of the Premises or terminate the tenancy. No claim for damages or whatsoever kind or character incurred by Foundation by reason of such dispossession shall be chargeable against City. SECTION 26. CONDEMNATION If the whole of the Premises should be taken by a public authority under the power of eminent domain, then the term of this Agreement shall cease on the day of possession by the public authority. If only a part of the Premises should be taken under eminent domain, Foundation shall have the right to either terminate this Agreement or to continue in possession of the remainder of the Premises. If Foundation remains in possession, all of the terms hereof shall continue in effect for the balance of the Agreement term. SECTION 27. WAIVER A waiver by either party of any default or breach by the other party of any provision of this Agreement shall not constitute or be deemed to be a waiver of any subsequent or other default or breach. No waiver shall be binding, unless executed in writing by the party making the waiver. No waiver, benefit, privilege, or service voluntarily given or performed by either party shall give the other party any contractual right by custom, estoppel, or otherwise. SECTION 28. ACQUIESCENCE No acquiescence, failure, or neglect of any party hereto to insist on strict performance of any or all of the terms hereof in one instance shall be considered or constitute a waiver of the rights to insist upon strict performance of the terms hereof in any subsequent instance. SECTION 29. PARTIES BOUND AND BENEFITTED The covenants and conditions herein contained shall apply to and bind the heirs, successors, executors, administrators, and assigns of all the parties hereto; and all of the parties hereto shall be jointly and severally liable hereunder. 493 Operating Agreement - 14 – Moorpark Foundation for the Arts SECTION 30. CONDITION UPON TERMINATION Upon termination of the Agreement, Foundation shall surrender the Premises to City including all improvements, clean and in good condition, except for ordinary wear and tear which Foundation was otherwise obligated to remedy under Section 14 above. Any installation which Foundation installs during the term of this Agreement in accordance with Section 12 of this Agreement, and has not been removed at the termination of the Agreement, shall become the possession of the City. Foundation shall repair at Foundation’s expense, any damage to the Premises caused by the removal of any improvement made by Foundation from such installation. Any installations, improvements, or additions to the Premises prior to the execution of this Agreement shall be deemed as part of the Premises and shall be the possession of the City. SECTION 31. FOUNDATION’S FAILURE TO REMOVE PERSONAL PROPERTY Upon termination of the tenancy, City may reenter and retake possession of the Premises and store Foundation’s personal property including items that have become the personal property of the Foundation for a thirty (30) day period at Foundation’s cost and expense. If Foundation fails to pick up said personal property and pay said cost and expenses during said thirty (30) day period, City may dispose of any or all of such personal property in any manner that City, in its sole and absolute discretion, deems appropriate. If any of Foundation’s personal property remains on the Premises after the termination of the tenancy, City may use, dispose of, or sell any of said property, in its sole and absolute discretion, without compensating Foundation for the same and without the City having any liability whatsoever therefore. SECTION 32. USE AND OBLIGATIONS OF THE FOUNDATION – 61 HIGH STREET Foundation shall use 61 High Street in support of Foundation’s activities at the HSAC, including but not limited to performing arts uses, film and other entertainment, or training purposes, including special event or other rentals for these purposes. Foundation agrees to obtain Temporary Use Permits (TUP), as required by the Moorpark Municipal Code, for those events to be held at 61 High Street that meet the requirements for a TUP. Foundation also agrees to the use of 61 High Street at no cost to the City for up to four (4) events each year subject to availability. Upon request from the City to book one of these events, the Foundation shall respond, in writing, within three (3) business day to confirm City’s event. 494 Operating Agreement - 15 – Moorpark Foundation for the Arts SECTION 33. USE AND OBLIGATIONS OF THE FOUNDATION – 31 POINDEXTER AVENUE The Foundation may use 31 Poindexter for storage of costumes, props, set fabrication and storage of materials and equipment. In the event the Foundation elects to proceed with the “Design, Plan, Build, Program, a portion of the facility may be used upon submittal and approval by the City Manager, or his designee, of a written proposal outlining the program, including dates/times and expected attendance. Foundation acknowledges that the building at 31 Poindexter will be modified to accommodate future road widening activities. Foundation agrees to cooperate with City in the planning and execution of these activities including relocating, moving or re-arranging their storage operations to accommodate the building modifications. Activities undertaken to accommodate the modifications shall be at Foundation’s sole expense. Foundation also agrees to adhere to all parking restrictions that now exist or will exist in the future on the site. Foundation is advised that the driveway located at the west side of the property is a shared driveway between 31 Poindexter and the adjacent commercial property. Foundation shall not block, impede access, or cause any damage along the shared driveway or cause a default under the easement agreement for misuse of the driveway. SECTION 35 TUBERCLUOSIS SCREENING City policy requires that requirements for tuberculosis screening be included in all Agreements with contractors, consultants, and vendors permitted by written agreement to provide services in a City park, playground, recreational center, or library, and requiring contact with children. Foundation employees that come in contact with children on the Premises shall obtain a valid and current certificate documenting tuberculosis clearance in compliance with requirements of California Public Resources Code Section 5163 et seq., and such certificate shall be maintained on file by Foundation for all persons providing services to children. Tuberculosis screening and clearance compliance must be achieved prior to the provision of any services. In addition, volunteers shall be free of communicable tuberculosis when participating in a program on the Premises, which requires contact with children. Volunteer applications shall include a statement to be signed by the volunteer certifying that the volunteer is free of communicable tuberculosis. The signed statement must be on file with the Foundation prior to the commencement of any services. 495 Operating Agreement - 16 – Moorpark Foundation for the Arts SECTION 34. NO RECORDATION Neither this Agreement nor a memorandum thereof shall be recorded by Foundation. SECTION 35. ATTORNEYS’ FEES In the event any action, suit or proceeding is brought for the enforcement of, or the declaration of, any right or obligation pursuant to, this Agreement or as a result of any alleged breach of any provision of this Agreement, or for an unlawful detainer action, the prevailing party shall be entitled to recover its costs and expenses, including attorneys’ fees, from the losing party, and any judgment or decree rendered in such a proceeding shall include an award thereof. SECTION 36. NOTICES AND PAYMENTS All notices required under this Agreement, including notices of change of address, shall be in writing, and all notices and payments shall be addressed as follows: City: City of Moorpark 799 Moorpark Avenue Moorpark, California 93021 Attn: City Manager Foundation: Moorpark Foundation for the Arts 33 East High Street Moorpark, California 93021 Attn: President Either party may, from time to time, by written notice to the other, designate a different address which shall be substituted for the one specified above. Except as otherwise provided by statute, notice shall be deemed served and received upon receipt by personal delivery or upon the second (2nd) day after deposit in the United States mail, certified or registered, return receipt requested, with postage prepaid. SECTION 37. PARTIAL INVALIDITY If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of this Agreement shall nonetheless remain in full force and effect to the full extent allowed by law. SECTION 39. SECTION HEADINGS Section headings in this Agreement are for convenience only, and they are not intended to be used in interpreting or construing the terms, covenants and 496 Operating Agreement - 17 – Moorpark Foundation for the Arts conditions of this Agreement. SECTION 40. INTEGRATION AND MODIFICATION This Agreement constitutes the entire agreement of the parties concerning the subject matter hereof and all prior agreements and understandings, oral or written, are hereby merged herein. This Agreement may not be modified or amended except: (1) in a writing signed by all of the parties hereto; or (2) upon expiration of thirty (30) days service in accordance with Civil Code Section 1946, or any successor statute in effect on the date the written notice is served, by City on Foundation of a written notice setting forth the modification or amendment. The parties agree that no estoppel argument can be raised during legal proceedings in order to avoid the provisions of this Section. SECTION 41. INTERPRETATION Should interpretation of this Agreement, or any portion thereof, be necessary, it is deemed that the Agreement was prepared by the parties jointly and equally, and the Agreement shall not be interpreted against either party on the ground that the party prepared it or caused it to be prepared. SECTION 42. ANTI DISCRIMINATION Neither the Foundation, nor any employee or contract manager under the Foundation, shall discriminate in employment of persons because of race, religious creed, color, national origin, ancestry, physical handicap, medical condition, marital status, gender, gender identity, or any other protected class, except as provided in Section 12940 of the Government Code. The Foundation shall have responsibility for compliance with this Section. [SIGNATURES NEXT PAGE] 497 Operating Agreement - 18 – Moorpark Foundation for the Arts IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly authorized representatives as of the date first written above. CITY OF MOORPARK MOORPARK FOUNDATION FOR THE ARTS Dba The High Street Arts Center By:__________________________ By: ___________________________ Troy Brown, City Manager XXXXXX, President ATTEST: ATTEST: By:____________________________ By:_____________________________ Ky Spangler, City Clerk XXXXXX, Executive Vice President Exhibit A: Insurance Requirements 498 EXHIBIT A Insurance Requirements Foundation as operator will maintain insurance in conformance with the requirements set forth below. Foundation will use existing coverage to comply with these requirements. If that existing coverage does not meet the requirements set forth here, Foundation agrees to amend, supplement or endorse the existing coverage to do so. Foundation acknowledges that the insurance coverage and policy limits set forth in this section constitute the minimum amount of coverage required. Any insurance proceeds available to CITY in excess of the limits and coverage required in this Agreement and which is applicable to a given loss, will be available to CITY. Foundation shall provide the following types and amounts of insurance: Commercial General Liability Insurance using Insurance Services Office “Commercial General Liability” policy form CG 00 01 or the exact equivalent. Defense costs must be paid in addition to limits. There shall be no cross liability exclusion for claims or suits by one insured against another. Limits are subject to review but in no event less than $1,000,000 per occurrence and $2,000,000 in aggregate. Business Auto Coverage on ISO Business Auto Coverage form CA 00 01 including symbol 1 (Any Auto) or the exact equivalent. Limits are subject to review, but in no event to be less than $1,000,000 per accident and $2,000,000 in aggregate. If Foundation owns no vehicles, this requirement may be satisfied by a non-owned auto endorsement to the general liability policy described above. If Foundation or Foundation’s employees will use personal autos in any way on this project, Foundation shall provide evidence of personal auto liability coverage for each such person. Worker’s Compensation on a state-approved policy form providing statutory benefits as required by law with employer’s liability limits no less than $1,000,000 per accident or disease. Insurance procured pursuant to these requirements shall be written by insurers that are admitted carriers in the State of California and with an A.M. Best rating of A- or better and a minimum financial size VII. General conditions pertaining to provision of insurance coverage by Foundation. Foundation and CITY agree to the following with respect to insurance provided by Foundation: 1. Foundation agrees to have its insurer endorse the third party general liability coverage required herein to include as additional insureds CITY, its officials, employees, servants, agents, and independent consultants (“CITY indemnities”), using standard ISO endorsement No. CG 2011 with an edition prior to 1996. 499 Foundation also agrees to require all contractors and subcontractors working on the Premise to do likewise. 2. No liability insurance coverage provided to comply with this Agreement shall prohibit Foundation, or Foundation’s agents, from waiving the right of subrogation prior to a loss. Foundation agrees to waive subrogation rights against CITY regardless of the applicability of any insurance proceeds, and to require all contractors and subcontractors to do likewise. 3. All insurance coverage and limits provided by Foundation and available or applicable to this Agreement are intended to apply to the full extent of the policies. Nothing contained in this Agreement or any other agreement relating to the CITY or its operations limits the application of such insurance coverage. 4. None of the coverages required herein will be in compliance with these requirements if they include any limiting endorsement of any kind that has not been first submitted to CITY and approved of in writing. 5. No liability policy shall contain any provision or definition that would serve to eliminate so-called “third party action over” claims, including any exclusion for bodily injury to an employee of the insured or any contractor or subcontractor. 6. All coverage types and limits required are subject to approval, modification, and additional requirements by the CITY, as the need arises. Foundation shall not make any reductions in scope of coverage (e.g. elimination of contractual liability or reduction of discovery period) that may affect CITY’S protection without CITY’S prior written consent. 7. Proof of compliance with these insurance requirements, consisting of certificates of insurance evidencing all of the coverages required and an additional insured endorsement to Foundation’s general liability policy, shall be delivered to CITY at or prior to the execution of this Agreement. In the event such proof of any insurance is not delivered as required, or in the event such insurance is canceled at any time and no replacement coverage is provided, CITY has the right, but not the duty, to obtain any insurance it deems necessary to protect its interests under this or any other agreement and to pay the premium. Any premium so paid by CITY shall be charged to and promptly paid by Foundation or deducted from sums due Foundation, at CITY’s option. 8. Certificates are to reflect that the insurer will provide Thirty (30) day notice to CITY of any cancellation of coverage. Foundation agrees to require its insurer to modify such certificates to delete any exculpatory wording stating that failure of the insurer to mail written notice of cancellation imposes no obligation, or that any party will “endeavor” (as opposed to being required) to comply with the requirements of the certificate. 500 9. It is acknowledged by the parties of this Agreement that all insurance coverage required to be provided by Foundation, is intended to apply first and on a primary, non-contributing basis in relation to any other insurance or self-insurance available to CITY. 10. Foundation agrees to ensure that subcontractors, and any other party entering onto the Premises, provide the same minimum insurance coverage required of Foundation. Foundation agrees to monitor and review all such coverage and assumes all responsibility for ensuring that such coverage is provided in conformity with the requirements of this section. Foundation agrees that upon request, all agreements with subcontractors and other parties entering onto the Premises will be submitted to CITY for review. 11. Foundation agrees not to self-insure or to use any self-insured retention or deductibles on any portion of the insurance required herein and further agrees that it will not allow any contractor, subcontractor, or other entity or person entering onto the Premises to self-insure its obligations to CITY. If Foundation’s existing coverage includes a deductible or self-insured retention, the deductible or self- insured retention must be declared to the CITY. At that time the CITY shall review options with the Foundation, which may include reduction or elimination of the deductible of self-insured retention, substitution of other coverage, or other solutions. 12. For purposes of applying insurance coverage, only, this Agreement will be deemed to have been executed immediately upon any party hereto taking any steps that can be deemed to be in furtherance of or towards performance of this Agreement. 13. Foundation acknowledges and agrees that any actual or alleged failure on the part of the CITY to inform Foundation of non-compliance with any insurance requirement in no way imposes any additional obligations on CITY nor does it waive any rights hereunder in this or any other regard. 14. Foundation will renew the required coverage annually as long as CITY, or its employees or agents face an exposure from operations of any type pursuant to this Agreement. This obligation applies whether or not the Agreement is canceled or terminated for any reason. Termination of this obligation is not effective until CITY executes a written statement to that effect. 15. Foundation shall provide proof that policies of insurance required herein expiring during the term of this Agreement have been renewed or replaced with other policies providing at least the same coverage. Proof that such coverage has been ordered shall be submitted prior to expiration. A coverage binder or letter from Foundation‘s insurance agent to this effect is acceptable. A certificate of insurance and/or additional insured endorsement is required in these specifications 501 applicable to the renewing or new coverage must be provided to CITY within five days of the expiration of the coverages. 16.The provisions of any workers’ compensation or similar act will not limit the obligations of Foundation under this Agreement. Foundation expressly agrees not to use any statutory immunity defenses under such laws with respect to CITY, its employees, officials, and agents. 17.Requirements of specific coverage features or limits contained in this section are not intended as limitations on coverage, limits or other requirements nor as a waiver of any coverage normally provided by any given policy. Specific reference to a give coverage feature is for purposes of clarification only as it pertains to a given issue, and is not intended by any party of insured to be limiting or all- inclusive. 18.These insurance requirements are intended to be separate and distinct from any other provision in this Agreement and are intended by the parties here to be interpreted as such. 19.The requirements in this Section supersede all other sections and provisions of this Agreement to the extent that any other section or provision conflicts with or impairs the provisions of this Section. 20. Foundation agrees to be responsible for ensuring that no contract used by any party involved in any way with the project reserves the right to charge CITY or Foundation for the cost of additional insurance coverage required by this Agreement. Any such provisions are to be deleted with reference to the CITY. It is not the intent of CITY to reimburse any third party for the cost of complying with these requirements. There shall be no recourse against CITY for payment of premiums or other amounts with respect thereto. 21. Foundation agrees to provide immediate notice to CITY of any claim or loss against Foundation arising out of the lease of the Premises. CITY assumes no obligation or liability by such notice, but has the right (but not the duty) to monitor the handling of any such claim or claims if they are likely to involve CITY. 502