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HomeMy WebLinkAboutStaff Report 350-10TO: CITY COUNCIL FROM: CITY MANAGER DEPARTMENT: COMMUNITY SERVICES DATE: OCTOBER 4, 2010 CMR: 350:10 REPORT TYPE: CONSENT SUBJECT: Agreement Between The City Of Palo Alto And The Palo Alto Art Center Foundation For Mutual Cooperation And Support To Facilitate The Foundation's Financial And Administrative Support Of The Art Center RECOMMENDATION Staff requests that the Council approve a mutual cooperation and support agreement with the Palo Alto Art Center Foundation (Attachment A). BACKGROUND The Palo Alto Art CenterFoundation (Foundation) has played an integral role in the support and operation of the Palo Alto Art Center (PAAC) since its inception in 1973. (Note that from 1973 to 2000 the organization was identified as the Palo Alto Cultural Center Guild). The mission of the Foundation, a 501(c)(3) nonprofit organization, is to support the mission and goals of the Palo Alto Art Center, promote unique art experience and education for people of all ages, and serve as the Art Center's advocates and ambassadors in the community. Beginning with a January 19, 1999 letter to the Council, the Foundation confirmed its intent to initiate discussions on the subject of a public/private partnership to renovate and expand the Palo Alto Art Center. In 2007, the Foundation formally approached the City to create a public/private partnership for the renovation and expansion of the Palo Alto Art Center with a Letter of Intent (CMR: 288:07). As planning for the renovation of the Art Center has continued, the City and Foundation have identified the need for a public/private partnership agreement that articulates the roles and responsibilities of both parties more generally. City staff and Foundation representatives began developing a concept for the proposed public/private partnership in 2009. Similar public/private partnership agreements have been developed for the Friends of the Junior Museum, Palo Alto Recreation Foundation, and the Family Resources Foundation. This agreement differs from previous standard agreements between the City and the Friends of the Junior Museum, and the City and the Family Resources Foundation. This agreement would CMR:350:10 Page 1 of 3 institute a limit of liability to the level of insurance carried by the Art Center Foundation. As a result, the City will assume some risk. In consultation with the Senior Assistant City Attorney and the City's Risk Manager, the City Manager has determined that this level of risk is acceptable in light of the scope of this agreement and the Art Center Foundation's ongoing support of City operations. As outlined in the August 2007 Public/Private Partnerships Policy Statement (Attachment B), the relationship between the Foundation and PAAC is that of an alliance: "This type of public/private partnership involves organizations that have been created for the sole purpose of supporting a City program or array of City programs." DISCUSSION In order to enhance their efforts as a support organization, City staff and the Foundation proposed a concept whereby the partnership between the City and the Foundation would be strengthened via a written agreement that outlines overall responsibilities, procedures and process for decision making, use of funds, property, and facilities, and staff management. This proposed agreement will clarify the roles and expectations of both parties. In addition, this proposed agreement helps the City to leverage .resources and work in collaboration with the community through its relationship with the Foundation. This partnership concept has a precedent in the successful partnership between the City and the Friends of the Junior Museum and Zoo (CMR: 416:07). The attached agreement includes some of the basic concepts of the Junior Museum partnership but includes revisions and updates, outlined below, that reflect the programs, services, and operations of the PAAC and the Foundation. The proposed agreement provides the opportunity for the Foundation to actively participate with City staff in short-term and long range planning efforts for the PAAC and to have use of the PAAC facility for administrative and fundraising efforts. As outlined in the agreement, the Foundation will develop a fundraising strategy to solicit cash and in -kind contributions to support PAAC programs, will provide assistance to the Art Center Manager, and will enable the provision and staffing of programs and activities to educate the public about the Art Center mission. To further unite the partnership, the City will play an active role with the Foundation. As outlined in the agreement, the City will maintain the PAAC facility, manage staff, provide mailing services and volunteer staffing, and appoint a City liaison to the Foundation —including the Art Center Manager and a Council member who will serve as the official liaison of the City to the Board. The City will also have an opportunity to review all community related activities that the Foundation may propose for inclusion in PAAC programs. To guide their future workings together, as outlined in the proposed agreement, the Foundation and City staff will collaboratively develop an annual Art Center Plan. This plan will establish program, budget, fundraising, and administrative and operational priorities and activities for the applicable fiscal year, with annual reporting requirements on accomplishments. CMR:350:10 Page 2 of 3 A separate agreement between the City of Palo Alto and the Foundation governing the upcoming Art Center renovation project will be brought to Council later in the fall for approval along with an estimated timeline. Final responsibility for the planning and operation of the PAAC program will continue to lie with the City, but this proposed agreement provides for a higher level of collaboration between both parties in the planning and implementation of PAAC activities. RESOURCE IMPACT No additional City resources are required. The Palo Alto Art Center Foundation has provided hundreds of thousands of dollars of direct and indirect program support to the Art Center over the past five years. POLICY IMPLICATIONS This partnership would be categorized as an Alliance under the City's Public/Private Partnership Policy. This agreement is consistent with and furthers the intention of Comprehensive Plan Policy C-1: Encourage the creation of partnerships within the Mid -Peninsula or the greater Bay Area to seek effective solutions to shared problems and community service needs and Program B-3: On an ongoing basis, evaluate opportunities for City involvement in public/private partnerships including public investment in infrastructure and other improvements, siting of public art, and modification of land use regulations and other development controls. ENVIRONMENTAL REVIEW This is not a project requiring review under the California Environmental Quality Act. ATTACHMENTS Attachment A: Agreement Between the City of Palo Alto and the Palo Alto Art Center Foundation for Mutual Cooperation and Support Attachment B: Public/Private Partnership Policy PREPARED BY: APPROVED BY: CITY MANAGER APPROVAL: GREG ETTS REN KIENZLE er, Art Center Director, Community Services Department JA ► S ENE Ci ► . nager CMR:350:10 Page 3 of 3 Contract No. AGREEMENT BETWEEN THE CITY OF PALO ALTO AND THE PALO ALTO ART CENTER FOUNDATION FOR MUTUAL COOPERATION AND SUPPORT TO FACILITATE THE FOUNDATION'S FINANCIAL AND ADMINISTRATIVE SUPPORT OF THE ART CENTER Dated as of , 2010 TABLE OF CONTENTS Section Description Page 1 Term; Extension; Termination 4 2 Responsibilities of the Parties 4 3 General License to the Foundation 7 4 Insurance 7 5 Indemnity 9 6 Waiver 10 7 No Property Rights 10 8 Assignment I 0 9 Independent Contractor 10 10 Nondiscrimination 10 11 Notices 11 12 Miscellaneous 11 Exhibit "A" Certification of Nondiscrimination 100920 jb 0073415 2 AGREEMENT BETWEEN THE CITY OF PALO ALTO AND THE PALO ALTO ART CENTER FOUNDATION FOR MUTUAL COOPERATION AND SUPPORT This MUTUAL COOPERATION AND SUPPORT AGREEMENT (the "Agreement"), dated, for convenience, , 2010 (the "Effective Date"), is entered into by and between the CITY OF PALO ALTO, a California chartered municipal corporation (the "City"), and the PALO ALTO ART CENTER FOUNDATION, a California public benefit corporation organized under the California Nonprofit Public Benefit Corporation Law (the "Foundation") (individually, a "Party" and, collectively, the "Parties"), in reference to the following facts and circumstances: RECITALS: 1. The City owns and operates the Palo Alto Art Center (the "Art Center"), located at 1313 Newell Road, Palo Alto. The Art Center serves the community through a diverse and accessible range of art programs with the mission of fostering creative process and thought by forging a greater appreciation and understanding of the visual arts through exhibitions, studio experiences, and related educational programs. The Art Center is a program of the City's Division of Arts and Sciences, Community Services Department ("CSD"). 2. The Foundation is a § 501(c)(3) public benefit corporation, which was founded in 1973 with the mission of supporting the mission and goals of the Art Center, promoting unique experiences and education for people of all ages, and serving as the Art Center's advocates and ambassadors in the community. By its operations- and education -related programs, activities and opportunities, the Foundation has assisted the CSD's Art Center manager (the "Manager") and other staff in supporting and advocating on behalf of the Art Center's operations, programs and activities over the past thirty-seven years. The Foundation intends to benefit the City and the community by serving in the capacity of an "alliance" organization to the City and thereby providing certain membership, fundraising and community advocacy services, which the Parties intend to be rendered in accordance with the City's policy on Public/Private Partnerships, Policy and Procedures 1-25. By this Agreement, the Foundation will, in collaboration with the City, represented by the City Manager, or designee, and through the use of City and/or CSD employees and the Foundation' s staff -supervised and unpaid community volunteers, support the programs and activities offered at the Art Center. 3. The Parties wish to more closely collaborate and mutually cooperate and support each other in the future, to improve, enhance and sustain the capacity of the Art Center to develop and provide educational opportunities and related services to the Palo Alto community. AGREEMENT: NOW, THEREFORE, in consideration of the foregoing recitals and the following covenants, terms, conditions and provisions of this Agreement, the Parties agree: 100920jb 0073415 3 SECTION 1. TERM; EXTENSION; TERMINATION 1.1 This Agreement will commence on the Effective Date, and the initial term is five (5) years (the "Term"), unless it is earlier terminated by a Party as herein provided. 1.2 No provision for the automatic extension of the Term is made; provided, however, nothing in this Agreement shall limit the Parties from negotiating one or more renewals of this Agreement in the future on the same, substantially similar or different terms and conditions as set forth in this Agreement. 1.3 Except as provided in Section 4.3, a Party may terminate for convenience this Agreement, in whole or in part, by giving the other Party no less than ninety (90) days' prior written notice. A Party may terminate for cause this Agreement, in whole or in part, by giving the other Party no less than thirty (30) days' prior written notice. 1.4 This Agreement is subject to the fiscal provisions of the Charter of the City of Palo Alto and the Palo Alto Municipal Code (the "PAMC"). This Agreement will terminate without penalty: (A) at the end of any fiscal year in the event that funds are not appropriated for the Art Center's programs for the following fiscal year; or (B) at any time within a fiscal year in the event that funds are appropriated for a portion of the fiscal year and funds for this Agreement are no longer available. This Section 1.4 will take precedence in the event of a conflict with any other covenant, term, condition or provision of this Agreement and the Exhibits. Nothing in this Section 1.4 is intended to affect the Foundation's rights and remedies as may be available under applicable laws. SECTION 2. RESPONSIBILITIES OF THE PARTIES 2.1 The responsibilities of the City will include the following: A. The management of the Art Center's facilities, programs and the CSD staff employees assigned to the Art Center, including, without limitation, the Manager, and any and all independent contractors, subcontractors, consultants and volunteers hired by the City. The City will hire, supervise, evaluate and otherwise exercise supervision and control of its employees at the Art Center; provided, however, the City may invite the Foundation to assist the City in the selection of key CSD employees, who are or may be directly involved in the Art Center's management, operations and programs; B. The construction, alterations, repairs and maintenance of the Art Center building facilities and open air spaces; C. The provision of furnishings, fixtures and improvements, the performance of landscaping at the Art Center, and the provision of utility services to the Art Center; D. The selection of one or more individuals to serve as the City's liaison to the Foundation's board of directors and/or any board committee or subcommittee (the "Board") meetings, including (1) a Council Member, if any, who will serve as the official liaison of the City to 100920 jb 0073415 4 the Board, and (2) the Manager, whose duties may include providing assistance directly to the Foundation, including the Board, in selected fundraising activities, as may be directed or approved by the City Manager, or designee; E. The review of all community -related activities that the Foundation may propose for inclusion in the Art Center's programs. All activities of the Foundation will be pre -approved by the Manager, or designee; F. Develop and provide educational programs relating to the Art Center's programs and activities and supervise community volunteers in connection therewith; G. Manage the Art Center exhibition and education programs in accordance with City, CSD, California and federal laws, museum procedures and applicable professional standards; H. Provide mailing services and volunteer staffing and supervision for certain bulk mailings to the Foundation's members, and including any assistance deemed reasonably necessary arising in connection with annual fundraising activities; I. Provide supervisory assistance in connection with cash handling and credit card transaction handling services relating to the Foundation's fundraising events, all in accordance with the City's cash handling policies and procedures, Policy and Procedures 1-3; and J. Any other obligation that the City, the CSD or the Art Center may undertake in accordance with this Agreement, upon reasonable notice to the Foundation; provided, however, any such undertaking will be memorialized, in writing, by an amendment to this Agreement, in order that such undertaking will be binding upon the City. 2.2 The responsibilities of the Foundation will include the following: A. The supervision and management of its directors, officers, employees, volunteers, independent contractors, subcontractors and consultants, while they, and each of them, are exercising rights and/or performing obligations on behalf of the Foundation pursuant to this Agreement; provided, however, the Parties acknowledge that, although certain Foundation employees, independent contractors, subcontractors, consultants and volunteers may be paid by the Foundation, to the extent such persons are also employees of the City and report to the Manager, the City and not the Foundation shall be primarily responsible for the management and supervision of such persons. B. The rendering of assistance to the Manager (through the Board and/or staff), at the Manager's request, including voluntary attendance and contribution of recommendations and advice at staff meetings of the Manager; C. Subject to the availability of adequate funding, the provision and staffing of activities to educate the public about the mission of the Art Center and its programs and amenities, and the mobilization of volunteers for the Art Center's projects and programs; 100920jb 0073415 5 D. The development of a fundraising strategy to solicit cash and in -kind contributions from_individuals, businesses and other similar entities (such as partnerships and corporations) and the implementation of a grants writing program to seek out funds for the support of the Art Center's programs and activities, which may include both capital and non -capital projects; E. The acquisition and maintenance of charitable donations database management software for the purpose of recording and monitoring pertinent information relating to the Foundation's supporters and donors; F. The purchase and maintenance of bulk mail privileges with the United States Postal Service for the purpose of facilitating the Foundation's fundraising activities; G. At the Foundation's discretion, the acquisition as appropriate of personal property for the benefit of the City and the CSD, in particular, which the Foundation will endeavor to acquire for the purpose of donating the same to the City, and with respect to which the City will exercise all rights and obligations relating thereto; and H. The rendering of any other service beyond those included in the annual Art Center Plan (as defined in Section 2.3.B) and related to the preservation, protection and enhancement of the Art Center and the artworks contained therein, as may be approved, in writing, by the Manager. I. Subject to the availability of adequate funding and at the Foundation's discretion, the operation, management, staffing and implementation of the Cultural Kaleidoscope program, or any equivalent program, which is intended to match classrooms in neighboring communities and Palo Alto schools with artists whose residences will enable students to experience multicultural art activities; and J. Subject to the availability of adequate funding and at the Foundation's discretion, the staffing, operation, and maintenance of the gallery shop in the Art Center, where unique handmade objects are sold. 2.3 The responsibilities of the Parties will include the following: A. Under the direction of the Manager, develop a long-term strategic plan to enhance and improve the vision of the Art Center (the "Strategic Plan"); and B. Under the direction of the Manager and consistent with the Strategic Plan, develop on an annual basis, effective as of July 1 of each year, a work plan that among other things establishes program, budget, fundraising, and administrative and operational priorities and activities for the applicable fiscal year of operations (each, an "Art Center Plan"). Each Art Center Plan will delineate the rights and obligations of the Parties and identify each Party's duly authorized representative who is responsible for executing such rights and duties in connection therewith.. 2.4 The Parties acknowledge that the responsibility of either Party or the Parties in regard to any capital improvement project ("CIP") for the Art Center will not be established by this Agreement. The Parties agree to reserve for future consideration any existing or future CIP for the 100920jb 0073415 6 Art Center, including the scope of a capital fundraising program and the responsibilities of each Party in regard to thereto. The provision of any CIP may be addressed by amendment to this Agreement or by separate instrument, as determined by the Parties. 2.5 Notwithstanding any provision of this Agreement to the contrary and in consideration of the facts and circumstances described in Recital number 2, any and all funds received by the Foundation (through donations, grants or otherwise) shall remain the property of and shall be solely under the control of the Foundation. To the extent that the Foundation conducts its own funding activities without the participation of the City at or in connection with the Art Center, the Foundation shall control the method and timing of such funding. 2.6 To the extent this Section 2 does not specifically identify the Party who will be primarily responsible for any action or decision in regard to the Art Center, the Parties agree that the City will be the party to assume all rights and obligations in connection with such decision. SECTION 3. GENERAL LICENSE TO THE FOUNDATION 3.1 The City hereby grants the Foundation, its directors, officers, employees, contractors, subcontractors and consultants a nonexclusive license to enter upon and use the Art Center facilities in connection with the Foundation' s execution of its individual and/or joint responsibilities established by the Art Center Plan, including, but not limited to, organizing small group meetings and large group/community meetings and events at the Art Center and other City locations (during the Art Center's closure from approximately January 2011 through January 2012), such as fundraising events, programs, and tours of the Art Center facilities, and using the office space provided to the Foundation, at no cost to the Foundation, under a license and right to use the Art Center' s facilities in connection with the exercise of its rights and responsibilities under this Agreement. The City will not revoke this license while this Agreement remains in effect. Any use of the Art Center facilities by the Foundation will be approved by the Manager in regards to program scheduling, space availability, and the functionality of shared Art Center spaces for staff use. The City will provide to the employees of the Foundation as licenses security card access to the Art Center premises, which licenses may be revoked only for cause by the City; any additional cards will be approved by the Manager, upon request, in writing. SECTION 4. INSURANCE 4.1 As of the Effective Date, the Foundation, at its sole cost and expense, will obtain and maintain the following insurance coverage, acceptable to the City's insurance risk manager (the "Risk Manager") in full force and effect during the Term, insuring not only the Foundation but, with the exception of worker' s compensation and employer's liability insurance, naming the City as an additional insured, concerning the Foundation's participation under this Agreement. POLICY MINIMUM LIMITS OF LIABILITY A. WORKER'S Statutory COMPENSATION 100920jb 0073415 7 B. COMMERCIAL Bodily Injury $1,000,000 ea. person AUTOMOBILE LIABILITY Property Damage $1,000,000 each person, including owned, hired, and non -owned automobiles C. COMPREHENSIVE Bodily Injury $1,000,000 each person, GENERAL $1,000,000 each occurrence, LIABILITY $1,000,000 aggregate including products, Property Damage $1,000,000 each occurrence & completed operations, Personal Injury $1,000,000 each occurrence, broad form contractual, and personal injury. 4.2 Any deductibles must be declared to and accepted by the Risk Manager. The Foundation's insurance will be carried in full force and effect on or before the Effective Date. The insurance provided by the Foundation shall satisfy the following requirements: A. The Foundation shall deliver a certificate of insurance in which the party issuing the certificate shall endeavor to provide thirty (30) days' prior written notice of any proposed cancellation of the policy to: City of Palo Alto/Palo Alto Art Center Manager, P.O. Box 10250, Palo Alto, CA 94303. B. The City of Palo Alto shall be added by endorsement or otherwise as an additional insured as respects operations of the named insured at or from the Art Center. C. Any insurance maintained by the City of Palo Alto will apply in excess of, and not contribute to, insurance provided by each policy provided by the Foundation." 4.3 Evidence of Insurance Coverage and/or Changes will be, as follows: A. Certificate of Insurance. The Foundation agrees to deposit with the Manager before the Effective Date, certificates of insurance necessary to satisfy the City that the insurance provisions of this Agreement have been complied with, and to ensure that such insurance is kept in effect, with the certificates on deposit with the City, during the Term. B. Review of Coverage. The City will retain the right, at any time, to review the coverage, form, and amount of the insurance required hereby. If, in the opinion of the Risk Manager, the insurance provisions in this Agreement do not provide adequate protection for the City and for members of the public using the Art Center in connection with City -Foundation events and Foundation -only events, the City Manager, or designee, may require, and the City will endeavor to give the Foundation at least sixty (60) days' prior written notice, an amount to provide 100920jb 0073415 8 adequate protection as determined by the Risk Manager. The City's requirements shall be reasonable and shall be designed to assure protection from and against the kind and extent of risk which exists at the time a change in insurance is required. The Foundation may terminate this Agreement upon thirty (30) days' prior written notice if the Foundation will not agree to pay for additional insurance coverage as required by the Risk Manager. C. Reserved. D. Limit of Liability. As long as the Foundation obtains and maintains the policy or policies of insurance required by this Section 4, the Foundation's obligation under Section 5.1 will be limited to the coverage(s) afforded by such policy or policies of insurance. E. Acceptability of Insurers. Insurance shall be placed with insurers with a current A.M. Best's rating of no less than A -VII. SECTION 5. INDEMNITY AND LIMITATION OF LIABILITY 5.1 Except as provided under Section 5.2 and except to the extent caused by the negligence, willful misconduct or breach of this Agreement by the City or its agents, employees or contractors, the Foundation hereby waives all claims, liability and recourse against the City, including the right of contribution for loss or damage of or to persons or property arising from, growing out of, or in any way connected with or related to this Agreement. Subject to Section 4.3.D, the Foundation will protect, indemnify, hold harmless and defend the City, its officials, officers, employees, representatives and agents, from and against any and all claims, losses, liability, demands, damages, costs, expenses or attorneys' fees, caused by or arising out of the Foundation's negligent acts or omissions, or willful misconduct, in the performance or nonperformance of its obligations under the covenants, terms, conditions and provisions of this Agreement. The preceding sentence or any other provision of this Agreement notwithstanding, no personal liability will attach to any Board member or officer, employee or volunteer of the Foundation under the provisions of this Section 5 or any other provision of this Agreement. In the event the City is named as a co- defendant in a suit which also names the Foundation, the Foundation will following its receipt of the complaint relating to such suit promptly notify, in writing, the City, to the attention of the City's City Attorney (the "City Attorney"), of such fact. 5.2 The City will protect, indemnify, hold harmless and defend the Foundation, its directors, officers, employees and agents, against any and all claims, losses, liability, demands, damages, costs, expenses or attorneys' fees arising out of the City's negligent performanceor nonperformance of its obligations under the terms of this Agreement. SECTION 6. WAIVER 6.1 The waiver by either Party of any breach or violation of any covenant, term, or condition of this Agreement or of the provisions of the PAMC or other City ordinance, resolution, policy, rule or regulation, will not be deemed to be a waiver of any such covenant, term, condition, or provision or of any subsequent breach or violation of the same or any other covenant, term, 100920 jb 0073415 9 condition, or provision. The subsequent acceptance by either Party of any consideration which may become 'due or payable hereunder will not be deemed to be a waiver of any preceding breach or violation by the other Party. SECTION 7. NO PROPERTY RIGHTS 7.1 The Parties agree that this Agreement will not confer any property right upon the Foundation, its directors, officers, employees, volunteers, contractors, subcontractors or consultants. Any work performed for the benefit of the Art Center and any improvements placed or constructed at the Art Center will conform to the City's standards and approved by the City Manager, or designee, and will, upon acceptance, become the property of the City. SECTION 8. ASSIGNMENT 8.1 Neither Party may assign, transfer, or convey this Agreement or any interest that it may have in this Agreement without the other Party's express consent or approval. Any attempted assignment without the required consent or approval will be void and will confer no right, title, or interest in or to this Agreement, or part thereof. In the event of an unauthorized assignment, at the option of the Party not making the assignment, this Agreement may be terminated upon reasonable notice to the Party making the assignment. SECTION 9. INDEPENDENT CONTRACTOR 9.1 In the exercise of its rights and responsibilities under this Agreement, the Foundation acts at all times as an independent contractor and not as an employee of the City. Notwithstanding the Foundation's status as an "alliance" organization referred to the second recital of this Agreement, nothing in this Agreement will be construed to establish a partnership, joint venture, group, pool, syndicate or agency between the Parties. No provision contained herein will be construed as authorizing or empowering either Party to assume or create any obligation or responsibility whatsoever, express or implied, on behalf, or in the name of, the other Party in any manner, or to make any representation, warranty or commitment on behalf of the other Party. In no event will either Party be liable for (a) any loss incurred by the other Party in the course of its performance hereunder, or (b) any debts, obligations or liabilities of the other Party, whether due or to become due. SECTION 10. NONDISCRIMINATION 10.1 The PAMC prohibits discrimination in the employment of any individual under this Agreement because of race, skin color, gender, age, religion, disability, national origin, ancestry, sexual orientation, housing status, marital status, familial status, weight or height of that person. The Foundation acknowledges that it has read and understands the provisions of PAMC Chapter 2.30 relating to nondiscrimination in employment and the penalties for violations thereof, and it agrees to comply with all requirements of PAMC Chapter 2.30 pertaining to nondiscrimination in employment, including the completion, execution and submission to the City of the Certification of Nondiscrimination, as described in Exhibit "A." 100920 jb 0073415 10 SECTION 11. NOTICES 11.1 Any notice, request, consent or approval by a Party that is required to be furnished by this Agreement, will be given, in writing, and delivered by personal service, the United States Postal Service, mailed, first class, postage prepaid, or by facsimile transmission, to the following: To CITY: City Clerk City of Palo Alto P.O. Box 10250 Palo Alto, CA 94303-4303 with a copy to: Manager, Palo Alto Art Center City of Palo Alto P.O. Box 10250 Palo Alto, CA 94303 SECTION 12. MISCELLANEOUS To FOUNDATION: Chief Operating Officer Palo Alto Art Center Foundation 1313 Newell Road Palo Alto, CA 94303-2909 12.1 This Agreement will be governed by and construed in accordance with the laws of the State of California and the Charter of the City of Palo Alto and the PAMC. The Parties will comply with all applicable federal, state and local laws in the exercise of their rights and the performance of their obligations under this Agreement. 12.2 All covenants, terms, conditions, and provisions of this Agreement, whether covenants or conditions, will be deemed to be both covenants and conditions. 12.3 This Agreement represents the entire agreement between the Parties and supersedes all prior negotiations, representations and contracts, written or oral. This Agreement may be amended by an instrument, in writing, signed by the Parties. This Agreement may be executed in any number of counterparts, each of which will be an original, but all of which together will constitute one and the same instrument. 12.4 All exhibits referred to in this Agreement are by such references incorporated in this Agreement and made a part hereof. The following exhibit is made a part of this Agreement: Exhibit "A" - Certification of Nondiscrimination. 12.5 At the request of the City, the Foundation will furnish to the City Attorney for the City's review and approval copies of its articles of organization, operating agreement, and other information relating to its organization status. 12.6 The Parties agree that the normal rule of construction to the effect that any ambiguity is to be resolved against the drafting party will not be employed in the interpretation of this 100920 jb 0073415 11 Agreement, the Exhibits, or any amendment thereto. 12.7 In the event that an action is brought, the Parties agree that trial of such action will be vested exclusively in the state courts of California or in the United States District Court for the Northern District of California in the County of Santa Clara, State of California. 12.8 No director, officer, employee or volunteer of the Foundation will be held personally liable under this Agreement or as the result of any failure to act or any action or decision taken or made by such person in good faith relating to the subject matter of this Agreement. 12.9 If a court of competent jurisdiction finds or rules that any provision of this Agreement, the Exhibits, or any amendment thereto, is void or unenforceable, the unaffected provisions of this Agreement, the Exhibits, or any amendment thereto, will remain in full force and effect. 12.10 The term "day" means a calendar day, unless a "business day" is specified; for the purposes of this Agreement, "business day" excludes any "Regular Holiday" or "Other Special Day" referred to in PAMC Section 2.08.100 or any Friday that is considered a `9/80' day, when the City does not require employees, electing to work nine (9) business days in a ten -business days biweekly period, to work on such days. // // // 100920jb 0073415 12 IN WITNESS WHEREOF, the Parties by their duly authorized representatives have executed this Agreement on the Effective Date. APPROVED AS TO FORM: CITY OF PALO ALTO Senior Asst. City Attorney City Manager APPROVED: PALO ALTO ART CENTER FOUNDATION Director of Administrative Services Chair, Board of Directors Director of Community Services 100920 jb 0073415 13 EXHIBIT "A" CERTIFICATION OF NONDISCRIMINATION As suppliers of goods or services to the City of Palo Alto, the firm and individuals listed below certify that they do not discriminate in employment of any person because of race, skin color, gender, age, religion, disability, national origin, ancestry, sexual orientation, housing status, marital status, familial status, weight or height of such person; that they are in compliance with all Federal, State and local directives and executive orders regarding nondiscrimination in employment. 1. If Proposer is INDIVIDUAL, sign here: Date: Proposer's Signature Proposer's typed name and title 2. If Proposer is PARTNERSHIP or JOINT VENTURE, at least (2) Partners or each of the Joint Venturers shall sign here: Partnership or Joint Venture Name (type or print) Date: Member of the Partnership or Joint Venture signature Date: Member of the Partnership or Joint Venture signature 3. If Proposer is a CORPORATION, the duly authorized officer(s) shall sign as follows: The undersigned certify that they are respectively: and Title Title Of the corporation named below; that they are designated to sign the Proposal Cost Form by resolution (attach a certified copy, with corporate seal, if applicable, notarized as to its authenticity or Secretary's certificate of authorization) for and on behalf of the below named CORPORATION, and that they are authorized to execute same for and on behalf of said CORPORATION. Corporation Name (type or print) By: Date: Title: By: Date: Title: 100920 jb 0073415 14 POLICY AND PROCEDURES 1-25/MGR REVISED: AUGUST 2007 PUBLIC/PRIVATE PARTNERSHIPS POLICY STATEMENT The City of Palo Alto encourages the formation of public/private partnerships for the benefits the community receives. For the purposes of this policy, "public/private" also encompasses "public/nonprofit" partnerships. Definitions Public/private partnership: A public/private partnership is an agreement between the City and a nonprofit or private organization to provide services or to assist in funding of public facilities and programs. Such partnerships may take various forms, including: • Acceptance of or solicitation of service or facility proposals • Facilitation of such proposals through the City's regulatory process • Waiver of City General Fund fees to help reduce project costs. • Contributions of City matching funds for construction of facilities to be owned and controlled or operated by the City. • Provision of facilities to the private partner at no charge or at a subsidized rent. Public/private partnerships typically fall into one of three categories: co-sponsorship, alliances or joint ventures. Co -Sponsorships: This is the most common type of public/private partnership. An organization furthers the mission of the City by supporting a City activity or program in conjunction with pursuit of that organization's own mission or program. Co -sponsorships can take the form of one-time events or annual agreements. Some examples of co -sponsorships include the Palo Alto Tennis Club use of City courts to provide a youth tennis program and American Youth Soccer Organization's use of space in a City facility to train referees. Co - sponsorships are entered into by staff and normally have no or minimal financial impact. Alliances: This type of public/private partnership involves organizations that have been created for the sole purpose of supporting a City program or an array of City programs. The organization does not expect to receive any direct financial benefit or to alter City policy and/or operations, but undertakes to work closely and cooperatively with staff to implement City goals. Alliance organizations include the Recreation Foundation, the Art Center Foundation (Project Look or Cultural Kaleidoscope), the Friends of the Children's Theatre (the Magic Castle), the Library Foundation and the Friends of the Palo Alto Library (financial assistance with the renovation and expansion of the Children's Library). Alliances are approved by the Council if there are any staffing or budgetary implications to the partnership. 1 POLICY AND PROCEDURES 1-25/MGR REVISED: AUGUST 2007 Joint Ventures: This type of partnership involves organizations which have programs or missions independent of the City and involve the City entering into a contractual relationship with the public or nonprofit organization with both parties contributing to the partnership for their mutual benefit. Each joint venture is uniquely negotiated by the staff and approved by the City Council. Examples of Joint Ventures include TheatreWorks, Palo Alto Players and West Bay Opera's use of the Community Theatre and use of the former police station by older adult service provider, Avenidas. PROCEDURES Initiation of partnerships: Public/private partnerships may be initiated in one of three ways: • By staff: Staff identifies an opportunity for such a partnership and undertakes an informal or formal request for proposal process to identify partners. • By Council: The City Council directs staff to work with a private or nonprofit organization to develop such a partnership. • By a private or nonprofit organization: An organization makes a partnership proposal to the staff or City. City Manager Review: If the partnership proposal involves more than one City department, the City Manager's Office will appoint a team with representatives of all City departments who are stakeholders in the partnership proposal. The team will analyze the proposal and inform the City Manager of the resource implications of the proposal, including staffing and monetary commitments. This would include proposed fee waivers. If the proposal will require a re -ordering of department priorities that have already been approved by the Council in setting its annual priorities or in the budget process, Council approval will be required prior to commitment to the partnership. Council approval will also be required if the partnership requires a new or adjusted allocation of operating or capital funding. Note: Co -sponsorships usually only involve a single department and do not necessitate the formation of an interdepartmental committee, the involvement of the City Manager's Office or the approval of the City Council. City -Initiated Partnerships: Such partnerships will be guided by existing policies and procedures governing purchasing and outsourcing, using "requests for proposals" and/or bid processes as the method of initiating a partnership. A City -initiated partnership may incorporate incentives including naming rights, waiver of non -enterprise fund building and planning fees, reduced lease rates, free use of space, subsidies, and staff resources. All incentives may be negotiated on a case -by -case basis. 2 POLICY AND PROCEDURES 1-25/MGR REVISED: AUGUST 2007 Evaluation of Viability of Partnering Organization: Staff will provide the City Manager and/or City Council with its assessment of the viability of the proposed partnership, based on the partnering organization's possession of sound organizational, administrative and fiscal management, and its demonstrated experience to achieve and sustain project tasks, - such as fundraising and building community support. For proposed facility improvement or expansion initiatives, the nonprofit or private organization should have the ability and commitment to make a substantial pledge to the project's cost. Facilities Proposals: • If a City facility is to be renovated, expanded or otherwise be directly affected by the partnership, the Infrastructure Management Plan will have to be adjusted appropriately. • Long-term staffing, operational and maintenance costs must be identified in the proposal. The project's applicable costs and funding sources for furnishings, fixtures and equipment will be identified. • The parties will negotiate the joint or separate financial responsibility for any project cost overruns on a project -by -project basis. • Staff may recommend that any standard City processing or use fee authorized under the Municipal Fee Schedule, excluding fees and charges levied by City of Palo Alto Utilities or other City enterprise fund programs, should be waived as a condition of the City's participation. Waiver of fees may be granted by the Council and limited to those fees associated with a construction or capital improvement project which, upon its completion, results in a new or improved public facility, building or park, or some portion thereof, that will be solely owned or controlled by the City. In the event that only a portion of a construction or capital improvement project will result in a new or improved City facility, building or park, or portion thereof, then the Council may waive only that portion of any associated fee directly relating to the construction, improvement or enhancement of the City facility, building or park. As appropriate, the summary and recommendation in the report to the Council will include a staff recommendation on waiving fees which the Council can approve or reject. • The City will determine whether the nonprofit or private organization shall use or may forego a formal or informal competitive selection process in the hiring of professionals who will perform the management, design and/or construction phases of the project. The City shall review and approve the requirements for and the performance of all phases of design, planning and construction work for the proj ect. 3