AMENDMENT NO. 5
TO
PROPERTY OPERATING AGREEMENT
THIS AMENDMENT NO. 5 TO PROPERTY OPERATING AGREEMENT ("Amendment No. 5") is made and entered into as of (the "Date of Amendment") by and between MUZEO FOUNDATION, a California nonprofit corporation ("Muzeo"), and CITY OF ANAHEIM, a municipal corporation and charter city ("City").
RECITALS
A. Muzeo, City, and the former Anaheim Redevelopment Agency (each, a "Party" and collectively, the "Parties") entered into that certain Property Operating Agreement dated as of October 19, 2007 (the "Original Agreement"), whereby the City appointed Muzeo to operate and provide programming for certain real property and improvements generally located at 241 South Anaheim Boulevard and 115 West Broadway in the City of Anaheim (the "Premises") owned, in part, by the City and, in part, by the former Anaheim Redevelopment Agency (the "Agency") for thirty (30) years, commencing October 19, 2007; and B. Under the Original Agreement, the City agreed to provide certain financial assistance to Muzeo to support the operations of the Muzeo, including a revolving line of credit (the "Line of Credit") for a three (3) year period ending October 19, 2010 (the "Maturity Date"), the repayment of which would come from revenue received by Muzeo from pledges, donations, fundraisers and similar sources; and
C. The Original Agreement was subsequently amended by that certain Amendment No. 1 to Property Operating Agreement dated as of August 1, 2010 ("Amendment No. 1") for the purpose of (i) extending the Maturity Date of the Line of Credit from October 19, 2010 to June 30, 2015, (ii) amending the amount of the Line of Credit, (iii) recasting a portion of the funds drawn from the Line of Credit as a grant based upon the amount of donations raised by Muzeo, and (iv) requiring Muzeo to satisfy certain minimum fundraising requirements; and D. The Original Agreement and Amendment No. 1 were subsequently amended by that certain Amendment No. 2 to Property Operating Agreement dated as of January 1, 2013 ("Amendment No. 2") for the purpose of, among other things, (i) advancing the Maturity Date of the Line of Credit from June 30,2015 to December 31,2014, (ii) changing the period during which Muzeo can draw-down from the Line of Credit from a fiscal year basis to a calendar year basis, commencing January 1,2013, thereby enabling Muzeo to draw down an amount not in excess of Two Hundred Thousand Dollars ($200,000.00) during calendar year 2013 and a like amount during calendar year 2014, which amounts would be recast as grants at the end of each calendar year provided Muzeo raised an amount at least equal to the amount of the annual draw-downs from pledges, donations, fundraisers and other similar sources; and
E. The Original Agreement, Amendment No. 1 and Amendment No.2 were subsequently amended by that certain Amendment No. 3 to Property Operating Agreement dated as of 1 June 30, 2014 ("Amendment No. 3") to provide for the modification of the City's financial assistance to Muzeo by (i) increasing the amount of the Line of Credit from Two Hundred Thousand Dollars ($200,000.00) annually to Two Hundred Fifty Thousand Dollars ($250,000.00) annually commencing July 1,2014 for Fiscal Year 2014-15, (ii) extending the Maturity Date of the Line of Credit from December 31, 2014 to June 30, 2019, and (iii) changing the basis for duties and responsibilities relating to the Line of Credit from a "Calendar Year" basis to a "Fiscal Year" basis, commencing July 1, 2014; and F. The Original Agreement, Amendment No. 1 and Amendment No.2 and Amendment No. 3 were subsequently amended by that certain Amendment No. 4 to Property Operating Agreement dated as of June 18, 2019 ("Amendment No. 4") to provide for the modification of the City's financial assistance to Muzeo by: (i) extending the Maturity Date of the Line of Credit from June 2019 to June 30, 2024; and (ii) providing a new loan as a Capital Working Line of Credit in an amount not to exceed $150,000 per Fiscal Year from June 30, 2019 to June 30, 2024.
G. Muzeo and City desire to further amend the Agreement: (i) to extend the maturity date of the Line of Credit to coincide with term of the Property Operating Agreement; and (ii)to increase the Line of Credit by CPI beginning June 30, 2029 and each year thereafter throughout the Term of the Agreement.
H.. The Original Agreement, Amendment No. 1, Amendment No. 2, Amendment No.3 and Amendment No. 4 shall be referred to herein collectively as the "Agreement" and are incorporated herein by this reference. All references in the Agreement or this Amendment No. 5 to the "Agreement" are deemed and construed to refer to the Agreement, as amended by this Fifth Amendment.
NOW, THEREFORE, MUZEO AND CITY AGREE AS FOLLOWS:
Section 1. Defined Terms. Except as otherwise defined herein, all quoted or capitalized terms used herein shall have the meanings set forth for such terms in the Agreement.
Section 2. Maturity Date. The term "Maturity Date" shall mean June 30, 2029, which shall be the maturity date for the Loan Period, meaning that Muzeo may not make any further draw-downs from Line of Credit and Working Line of Credit following the expiration of Fiscal Year 2028-29 and that any amounts due and owing to City under the Agreement shall be due and payable in full as of June 30, 2029. The Director of Community Services, in their sole discretion, may extend the "Maturity Date" by an additional one (1) five (5) year period, making the "Maturity Date" June 30, 2034. Upon expiration of the aforementioned extension periods, the Director of Community Services, in their sole discretion, may make an additional three (3) year extension, making the "Maturity Date" June 30, 2037.
Section 3. Amendment of Schedule for Line of Credit Allocation. (i)
Line of Credit. The Line of Credit available for draw down by Muzeo for each Fiscal Year during the remaining term of the Loan Period is hereby Two 2 Hundred Fifty Thousand Dollars ($250,000.00) per annum. Muzeo is hereby authorized to draw down upon its Line of Credit during each Fiscal Year during the remaining term of the Loan Period an amount not in excess of Two Hundred Fifty Thousand Dollars ($250,000.00), which amount would be recast as a grant at the end of each calendar year provided Muzeo raised an amount at least equal to the amount of the annual draw-downs from pledges, donations, fundraisers, admission sales, in kind volunteer hours and services and other similar sources and provided that Muzeo meets the requirements of Section 1.4 of Amendment No. 1, and is not otherwise in default of the Agreement, as amended. The Muzeo and Director of Community Services shall endeavor to set the goals and programing for each year prior to the start of the next Fiscal Year. The Director of Community Services has the sole discretion to approve such goals and programming. Beginning in Fiscal Year 2029 and every year thereafter, the Line of Credit shall be increased by an amount equal to the increase in the Consumer Price Index ("CPI"). The CPI shall mean the Consumer Price Index (All Items, Base 1982-84 = 100) as published by the United States Department of Labor, Bureau of Labor Statistics for All Consumers for the Los Angeles-Riverside-Orange County Area, or if such index shall be discontinued, the successor index, or if there shall be no successor index, such comparable index as mutually agreed upon by the Parties. The CPI adjustment will be calculated on an average twelve (12) month time frame from April 1 of the preceding year to April 1 of the current year. At the close of each Fiscal Year, the Muzeo shall provide to the City, for Director of Community Services' consideration, expense and revenue statements based upon a Fiscal Year calendar and a report of its impact to the community showing monthly community outreach events, number of attendees, number of exhibits and fundraising events and any other community benefit programs, including but not limited to those listed in Attachment 1. It shall be the goal of the Muzeo to collect revenue in an amount equal to the Line of Credit by the end of each Fiscal Year. Failure to meet the requirements of Attachment No.1 shall require City's consideration and approval of the Line of Credit for the next Fiscal Year and may result in termination of Line of Credit and/or the Agreement. All duties and responsibilities of City and Muzeo shall be performed under the Agreement, as amended, for the balance of the Loan Period and shall be based upon a Fiscal Year commencing July 1, 2024.
(ii) Capital Working Line of Credit. In addition, the City may provide, at its sole discretion, a Capital Working Line of Credit in an amount not to exceed $150,000 per Fiscal Year. The City shall provide a Capital Working Line of Credit allowing Muzeo to draw such funds as Muzeo may request, including any outstanding amounts from the Capital Working Line of Credit for the period of June 30, 2023 to July 1, 2024, provided that the aggregate amount of such Capital Working Line of Credit shall not exceed $150,000.00 during any Fiscal Year period. The Muzeo may draw down against the Capital Working Line of Credit prior to each fmancial quarter in increments not to exceed $50,000: beginning August 15, 2024 and continuing on the 15th of each month thereafter, the Muzeo may make payments to repay the principal and interest accrued on the Capital Working Line of Credit. During the Capital Working of Line of Credit period, interest shall accrue at a simple interest rate of 5% annually. The Capital Working Line of Credit shall be due and payable in full at the end of each Fiscal Year. In the event MUZEO fails to pay in full this Capital Working Line of Credit by June 30th of each Fiscal Year, the City shall have the right to terminate the Capital Working Line of Credit and any balance remaining on this Capital Working Line of Credit shall be due and payable in full, with any accumulated interest, immediately upon conclusion of the Fiscal Year. Failure to repay the Capital Working Line of Credit may be cause for City to terminate the Capital Working Line of Credit or the Agreement.
Section 4. Integration; Conflicts or Inconsistencies. This Amendment No. 5, the agreements specifically referred to herein, and all attachments hereto (if any) integrate all of the terms and conditions mentioned herein, and supersede all negotiations with respect to the subject matter hereof.
This Amendment No. 5 amends, as set forth herein, the Agreement and, except as specifically amended hereby, the Agreement shall remain in full force and effect. To the extent that there is any conflict or inconsistency between the terms and provisions of this Amendment No. 5 and the terms and provisions of the Agreement, the terms and provisions of this Amendment No. 5 shall control and govern the rights and obligations of the parties.
[SIGNATURES ON FOLLOWING PAGE]
4 IN WITNESS WHEREOF, Muzeo and City have executed this Amendment No. 5 as of the respective dates set forth below.
CITY OF ANAHEIM, a municipal corporation
and charter city
Dated: , 2024. By:
ATTEST:
ANAHEIM CITY CLERK
By:
Theresa Bass
APPROVED AS TO FORM:
ROBERT FABELA, CITY ATTORNEY
By:
Bryn M. Morley
Deputy City Attorney
151065.7
MUZEO FOUNDATION, a California nonprofit
corporation
Dated: , 2024. By:
Printed Name:
Title: Executive Director
5 ATTACHMENT A
MUZEO Museum and Cultural Center
Muzeo Anticipated Impact Fiscal Year 2024/2025
Muzeo Museum and Cultural Center is a local hub for cultural exploration.Through exhibitions and programs - many provided to the public for free - Muzeo tells local stories with global themes that celebrate difference, cultivate empathy, and inspire community connection.
Beyond a conservator of culture, Muzeo also works to connect the citizens of the City of Anaheim to the resources they need to be civically-engaged cultural creators, consumers, and stewards. For the 2024/2025 Fiscal Year Muzeo anticipates the following programs, exhibitions, events, and gatherings to address the diverse needs of the community:
Exhibitions
• Ten new exhibitions in the Muzeo Main Gallery and Carnegie Galleries • Stewards of the permanent "Walk Through History" exhibition permanent display; open 5 days a week
• Grade School, Jr High, and High School docent -led exhibit tours; free for Anaheim School District Schools; anticipated attendance 600
• Host Anaheim Art Association annual juried exhibition; free of charge; anticipated artists participation 150
• Host one artist in residence program for Makers@Muzeo; artist is paid for residency; anticipated participants (public, community organizations) 120 • Fall Festival reduced gallery admission; kids free, adults $2; anticipated attendance 150 • Nutcracker Festival reduced gallery admission; kids free, adults $2; anticipated attendance 100
• Black History Parade reduced gallery admission; kids free, adults $2; anticipated attendance 75
• Representation for over 300 artists annually through various exhibitions and displays • Museums for All for EBT card holders year-around; free children, $1 adults; anticipated attendance 100
• Blue Star Museum 2024 from May 18- September 2; free admission for all active military and their families; anticipated attendance 100
Programs
• Four exhibit preview receptions to celebrate the opening of the new exhibitions; free to the public; anticipated attendance 1,000
• Three concerts for the Summer Concert Series, Music at Muzeo; free to the public; anticipated attendance 900
• Family Arts and Crafts for Music at Muzeo; free to the public; anticipated participants 120 • Children's Festival at Pearson Park; free to the public; anticipated attendance 4,000 • Craft booth at the Fall Festival; free to the public; anticipated participants 600 • Craft booth at the Nutcracker Festival; free to the public; anticipated participants 400 • Art Camps for Kids; 2 a year; 40 students; 10 free scholarship participants • Teacher Appreciation Night; free to Anaheim School District teachers; anticipated attendance 40
• Seven to Ten scholarly lectures or panel discussions; free with gallery admission; anticipated attendance 200
• Four Art and Jazz performances; free with gallery admission; anticipated attendance 100 • Four Poetic Voices live poetry reading programs; free with gallery admission; anticipated attendance 100
• Four Open Book authors lectures; free with gallery admission; anticipated attendance 100
• Three outdoor movies in the plaza; free to the public; anticipated attendance 600 • Train Days train event; free with gallery admission; anticipated attendance 150 • Yoga in the gallery; throughout the year; anticipated attendance 120 • Family Day at the close at each exhibition; 4-5 a year; free to the public; anticipated attendance 150
Operations
• Open to the public 5 days a week; 30 regular hours a week, not including special events • Museum and art industry paid internships; anticipated participants 12; average of 750 hours of on-the-job mentorship each intern
• Stewards and assisted upkeep of the historic Carnegie building and surrounding facility Special Projects
• Oversight of new public art installation at Miraflores on Anaheim and Midway; June/July 2024
• Collaboration and partnership with the Chance Theater offering facility support and program partnership; throughout the year
• Support and host facility for the Anaheim Workforce Connection Youth Job Fair; May 2024
• Offsite programming at Emerald Court Senior Housing; throughout the year; anticipated attendance 75
• Assistance with art integration for the Rebuild Beach initiative • Assistance with art integration for Store One initiative