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HomeMy WebLinkAboutStaff Report 3406 City of Palo Alto (ID # 3406) City Council Staff Report Report Type: Consent Calendar Meeting Date: 3/4/2013 City of Palo Alto Page 1 Summary Title: Friends of Palo Alto Children's Theatre Agreement Title: Approval of the Mutual Cooperation and Support Agreement between the City of Palo Alto and the Friends of Palo Alto Children's Theatre From: City Manager Lead Department: Community Services Recommendation Staff recommends that Council approve an updated public-private partnership agreement between the City of Palo Alto and the Friends of the Palo Alto Children’s Theatre (Attachment A). Background The Friends of the Palo Alto Children’s Theatre have played an integral role in the support and operation of the Palo Alto Children’s Theatre ever since the 1970’s. The construction of the Magic Castle in the early 1990’s was the first public-private partnership with the City. Their financial contributions substantially benefit the Children’s Theatre programs and facilities. Most recently, these contributions included cash contributions, speakers and microphones for the Magic Castle, remodeling of a storage room into a revenue-generating dance studio, scholarships, transportation grants and support for teen programming. Discussion In order to enhance its efforts as a support organization the Friends seek to enter into a written agreement with the City. By being more engaged in the decision-making processes (as evidenced by meeting with a Council liaison and helping interview key staff recruitments), the Friends’ board and staff believe the potential for their successful securing of private funding is increased. A higher degree of accountability by the Friends Board of Directors to the Children’s Theatre will benefit both parties and achieves parity with such existing agreements between the City and the Junior Museum and Zoo and Art Center, respectively, and their nonprofit boards. City of Palo Alto Page 2 Resource Impact No additional City resources are required. This partnership will lead to enhanced program and capital funding over the life of the Agreement. Policy Implications This partnership is categorized as a Joint Venture under the City’s Public/Private Partnership Policy. Environmental Review This is not a project for purposes of the California Environmental Quality Act (CEQA) guidelines. Therefore, no environmental assessment is required. Attachments: Attachment A - Mutual Cooperation and Support Agreement between the City of Palo Alto and the Friends of Palo Alto Children's Theatre (DOCX) 121212 dm 00710148 1 Contract No. _______________ MUTUAL COOPERATION AND SUPPORT AGREEMENT BETWEEN THE CITY OF PALO ALTO AND THE FRIENDS OF THE PALO ALTO CHILDREN’S THEATRE 121212 dm 00710148 2 TABLE OF CONTENTS SectionDescription ____ Page 1 Term; Extension; Termination 3 2 Responsibilities of the Parties 4 3 General License to the Friends 6 4 Indemnity 6 5 Waiver 7 6 No Property Rights 9 7 Assignment 9 8 Independent Contractor 7 9 Nondiscrimination 7 10 Notices 8 11 Miscellaneous 8 Exhibit “A” Development Plan for the Friends of Palo Alto Children’s Theatre Exhibit “B” Long-term Strategic Plan for the Palo Alto Children’s Theatre Exhibit “C” Certification of Nondiscrimination 121212 dm 00710148 3 MUTUAL COOPERATION AND SUPPORT AGREEMENT BETWEEN THE CITY OF PALO ALTO AND THE FRIENDS OF THE PALO ALTO CHILDREN’S THEATRE This MUTUAL COOPERATION AND SUPPORT AGREEMENT (the “Agreement”), dated, for convenience, ____________________, 2013 (the “Effective Date”), is made by and between the CITY OF PALO ALTO, a California chartered municipal corporation (the "City"), and the FRIENDS OF THE PALO ALTO CHILDREN’S THEATRE, a California public benefit corporation organized under the California Nonprofit Public Benefit Corporation Law (the "Friends") (individually, a “Party” and, collectively, the “Parties”), in reference to the following facts and circumstances: RECITALS: A. The City owns and operates the Palo Alto Children’s Theatre (the “Theatre”), located at 1305 Middlefield Road, Palo Alto, CA 94301. The Theatre’s program is administered by the City’s Community Services Department (the “Department”) and exists within the Department’s Arts and Sciences division. B. The Friends have assisted the Theatre’s staff in supporting and advocating on behalf of the Theatre’s operations, programs and activities over the past forty-two years. The Friends intend to benefit the City government and the Palo Alto community by providing certain services and funds, which the Parties intend to be rendered in accordance with the general scope of the City’s policy on Public/Private Partnerships. By this Agreement, the Friends will, at the request of the City Manager, or designee, support the operations, programs, activities, and opportunities offered by or occurring within the Theatre premises. C. 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 Theatre to develop and provide educational opportunities and related services to the Palo Alto community. AGREEMENT: NOW, THEREFORE, in consideration of Recitals A, B and C, which are a substantive part of this Agreement, and the following covenants, terms, conditions and provisions of this Agreement, the Parties agree: SECTION 1. TERM; EXTENSION; TERMINATION 1.1 This Agreement will commence on the Effective Date, and the initial term is three (3) years (the “Term”), unless it is earlier terminated by a Party as herein provided. 1.2 The Term may be extended by the Parties for one (1) additional term of three (3) years (the “Extension Term”); provided, however, the City may require the Council’s approval 121212 dm 00710148 4 of the Extension Term. 1.3 A Party may terminate for convenience this Agreement, in whole or in part, by giving the other Party not less than ninety (90) 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 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 Friends’ rights and remedies as may be available under applicable laws. SECTION 2. RESPONSIBILITIES OF THE PARTIES 2.1 The responsibilities of the City include: A. The management of the Theatre’s facilities and programs and the City’s staff employees, including any and all City-hired contractors, subcontractors, consultants and volunteers. The City will hire, supervise, evaluate and otherwise exercise supervision and control of its employees. The City may permit the Friends’ duly authorized representatives to participate in the interview process for the hiring of the permanent director of the Theatre (the “Manager”). B. The care, maintenance and repair of the Theatre’s facilities and equipment as well as the furnishing of external landscaping and utility services to the Theatre’s facilities and premises. C. The selection of one or more individuals to serve as the City’s liaison(s) to the Friends’ board of directors and/or any board committees (the “Board”), including (1) a Council Member, who will serve as the official liaison of the City to the Board, and (2) the Manager, whose duties may include providing assistance to the Friends, including its Board, in selected fundraising activities, as may be approved by the City Manager, or designee. D. The review of all community-related activities that the Friends may propose for inclusion in the Theatre’s programs. All activities of the Friends will be pre-approved by the Manager, or designees. E. Develop and provide educational programs relating to the performing arts, produce theatrical presentations, and supervise community volunteers in connection therewith. G. Any other obligation(s) that the City or the Department may undertake in accordance with this Agreement, upon reasonable notice to the Friends; provided, however, any such undertaking will be memorialized, in writing, by an amendment to this Agreement, in order that such undertaking will be made binding upon the City. 121212 dm 00710148 5 2.2 The responsibilities of the Friends include: A. The supervision and management of its directors, officers, employees, volunteers, contractors, subcontractors and consultants, while they, and each of them, are performing obligations on behalf of the Friends pursuant to this Agreement. B. The rendering of assistance to the Manager (through the Board and/or staff), at their request, including voluntary attendance and contribution at staff meetings of the Manager. C. The provision and staffing of programs to educate the public about the Theatre and its programs and amenities, and the mobilization of volunteers for the Theatre’s projects and programs. D. The creation and implementation of a development plan for the Theatre (the “Development Plan”), as described in Exhibit “A,” that is consistent with the Theatre’s strategic plan (the “Strategic Plan”). The Development Plan will include donor acknowledgment and activities consistent with the City’s written policies and practices. E. The rendering of other services beyond those spelled out in the annual Development Plan and related to the preservation, protection and enhancement of the Theatre, will be approved, in writing, by the Manager. 2.3 The responsibilities of the Parties, acting separately and/or jointly, include: A. Under the direction of the Manager, develop and evaluate, annually, the long-term Strategic Plan to enhance and improve the vision of the Theatre’s program, as described in Exhibit “C.” B. Under the direction of the Friend’s leadership, working collaboratively with the Manager, develop the Development Plan that is consistent with the Strategic Plan, on an annual basis, effective July 1 of each fiscal year, and establish budget, fundraising and operational priorities and activities for each fiscal year of operations. The Development Play will delineate the rights and obligations of the Parties and identify each Party’s duly authorized representative. The Development Plan will include, without limitation, specific cash handling procedures followed by the City and the dispute resolution procedures for informally resolving differences of opinion of each Party regarding the substances and/or implementation of the Development Plan. C. In regard to the Development Plan, the Parties will review, on a quarterly basis, any progress made in reaching and/or exceeding the goals of the Development Plan, including budget goals, and annually, evaluate the Development Plan. 2.4 The responsibility of either Party or the Parties in regard to any capital improvement project (“CIP”) for the Theatre will not be established by this Agreement. The Parties agree to reserve for future consideration any existing or future CIP for the Theatre’s 121212 dm 00710148 6 facilities and premises, including the scope of a capital fundraising program and the responsibilities of each Party in regard to the Theatre. The provision of any CIP may be addressed by amendment to this Agreement, as determined by the Parties. 2.5 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 Theatre, 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 FRIENDS 3.1 The City hereby grants the Friends, its directors, officers, employees, contractors, subcontractors and consultants a nonexclusive license to enter upon and use the Theatre’s premises and facilities in connection with the Friends’ execution of its individual and/or joint responsibilities established by the Development Plan, including organizing board meetings, selling concessions at theatre productions, conducting fundraising events, and administering related programs. Any use of the Theatre’s facilities will be approved by the Manager in regard to program scheduling, space availability, and the functionality of shared Theatre spaces for staff use. SECTION 4. INDEMNITY 4.1 Except as provided under Section 4.2, the Friends hereby waive 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. The Friends 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 Friends’ 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 notwithstanding, no personal liability will attach to any Board member under the provisions of this Section 4 for any negligent action or inaction. In the event the City is named as co-defendant, the Friends will notify, in writing, the City, to the attention of the City’s city attorney (the “City Attorney”), of such fact and it will represent the City in such legal action, unless the City undertakes to represent itself as co-defendant in such legal action, in which event the Friends will pay to the City its reasonable litigation costs and expenses, including reasonable attorneys' fees. 4.2. The City will protect, indemnify, hold harmless and defend the Friends, its directors, officers, employees and agents, against any and all claims, losses, liability, demands, damages, costs, expenses or reasonable attorneys' fees arising out of the City's negligent performance or nonperformance of its obligations under the terms of this Agreement. SECTION 5. WAIVER 5.1 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 law, rule or 121212 dm 00710148 7 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, 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 6. NO PROPERTY RIGHTS 6.1 The Parties agree that this Agreement will not confer any property right upon the Friends, its directors, officers, employees, volunteers, contractors, subcontractors or consultants. Any work performed for the benefit of the Theatre and any improvements placed or constructed at the Theatre 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 7. ASSIGNMENT 7.1 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 8. INDEPENDENT CONTRACTOR 8.1 In the exercise of its rights and responsibilities under this Agreement, the Friends act at all times as an independent contractor and not as an employee of the City. 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 9. NONDISCRIMINATION 9.1 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 Friends 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 “C.” 121212 dm 00710148 8 SECTION 10. 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: To FRIENDS: City Clerk President City of Palo Alto Friends of the Palo Alto Children’s Theatre P.O. Box 10250 1305 Middlefield Road Palo Alto, CA 94303 Palo Alto, CA 94303-4304 with a copy to: Manager Palo Alto Children’s Theatre 1305 Middlefield Road Palo Alto, CA 94301 SECTION 11. MISCELLANEOUS 11.1 This Agreement will be governed by and construed in accordance with the laws of the State of California, the Charter of the City of Palo Alto, and the Palo Alto Municipal Code. 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. 11.2 All covenants, terms, conditions, and provisions of this Agreement, whether covenants or conditions, will be deemed to be both covenants and conditions. 11.3 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. 11.4 All exhibits referred to in this Agreement are by such references incorporated in this Agreement and made a part hereof. The following exhibits are (or will be) made a part of this Agreement: Exhibit “A” Development Plan for the Friends of the Palo Alto Children’s Theatre Exhibit “B” Long-Term Strategic Plan for the Children’s Theatre Exhibit “C” Certification of Nondiscrimination. 12.5 At the request of the City, the Friends will furnish to the City Attorney for the 121212 dm 00710148 9 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 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 The prevailing Party in any action brought to enforce the provisions of this Agreement may recover its reasonable costs and attorneys' fees expended in connection with that action. 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. // // // // 121212 dm 00710148 10 IN WITNESS WHEREOF, the Parties by their duly authorized representatives have executed this Agreement as of the Effective Date. APPROVED AS TO FORM: CITY OF PALO ALTO ______________________________ ___________________________________ Senior Asst. City Attorney City Manager APPROVED: FRIENDS OF THE PALO ALTO CHILDREN’S THEATRE ______________________________ ___________________________________ Director of Administrative Services Member ______________________________ ___________________________________ Director of Community Services Member 121212 dm 00710148 11 EXHIBIT “A” DEVELOPMENT PLANS FOR THE FRIENDS 121212 dm 00710148 12 EXHIBIT “B” LONG-TERM STRATEGIC PLAN FOR THE THEATRE 121212 dm 00710148 13 EXHIBIT “C” CERTIFICATION OF NONDISCRIMINATION