ORIGINAL
DILE ENE at, T 0 S 2303
PROPERTY OPERATING AGREEMENT
by and between the
MUZEO FOUNDATION
and
ANAHEIM REDEVELOPMENT AGENCY
and
CITY OF ANAHEIM
DOCSOC/1237569v5/022621-0123
PROPERTY OPERATING AGREEMENT
THIS PROPERTY OPERATING AGREEMENT is made and entered into this I I th day of le\ , 2007 by and between The Muzeo Foundation, a California non-profit corporation, Anaheim Redevelopment Agency, and the City of Anaheim, a municipal corporation.
WITNESSETH THAT:
In consideration of the mutual covenants herein contained and for other valuable consideration, the parties hereto do hereby agree as follows:
1. Definitions; Rules of Construction; Recitals
A. Definitions
Unless the context otherwise requires, the terms defined in this section shall for all purposes hereof and of any amendment hereof or supplement hereto and of any report or other document mentioned herein or therein have the meanings defined herein, the following definitions to be equally applicable to both the singular and plural forms of any of the terms defined herein:
Agency The term "Agency" means the Anaheim Redevelopment Agency, a public body corporate and politic.
Annual Grant Amount The term "Annual Grant Amount" means the amount as described in Section 3.A.
Carnegie Library Building Premises The term "Carnegie Library Building" means that certain real property and improvements identified as such on Exhibit A.
CIM The term "CIM" means CIM Urban Fund LP, LLC.
City The term "City" means the City of Anaheim, a municipal corporation.
City Priority Premises The term "City Priority Premises" means that certain real property and improvements identified as such on Exhibit A.
2 DOCSOC/1237569v5/022621-0123
Commencement Date The term "Commencement Date" means that on the date this Agreement is executed by City, as evidenced by the signature of City's authorized representative on the signature page of this Operating Agreement.
Commitment The term "Commitment" means the lesser of (i) One Million Dollars ($1,000,000), or (ii) 95% of Pledges actually received by Muzeo.
Default The term "Default" means the failure by either party to observe or perform any of the covenants, conditions or provisions of this Operating Agreement where such failure shall continue for a period of thirty (30) days after written notice thereof from non-breaching party.
Cultural Center Site The term "Cultural Center Site" means that certain real property as described in 1.C.
Fiscal Year The term "Fiscal Year" means each one-year period beginning on July 1 and ending on each June 30.
Line of Credit The term "Line of Credit" means the line of credit provided to Muzeo by the City as described in Section 3.B.
Loan Period The term "Loan Period" means the period beginning on the Commencement Date of this Agreement and ending on the Maturity Date.
Maturity Date The term "Maturity Date" means the date three (3) years from the Commencement Date.
Multi-Purpose Room The term "Multi-Purpose Room" means that certain real property and improvements as identified as such on Exhibit A.
Muzeo The term "Muzeo" means The Muzeo Foundation., a California non-profit corporation.
Muzeo Priority Premises The term "Muzeo Priority Premises" means that certain real property and improvements as identified as such on Exhibit A. 3 DOCSOC/1237569v5/022621-0123
Operating Agreement The term "Operating Agreement" means this Operating Agreement, as originally executed or as it may from time to time be amended or supplemented as provided for herein.
Pledges The term "Pledges" means unrestricted donations to Muzeo evidenced by Pledge Agreements.
Pledge Agreement The term "Pledge Agreement" means a writing which binds the donor/pledgor to contribute a specified amount to Muzeo during the Loan Period.
Premises. The term "Premises" means that certain real property and improvements located thereon which is generally located at 241 South Anaheim Blvd., Anaheim, Ca 92805 and 115 W. Broadway, Anaheim, Ca 92805, as identified on Exhibit A.
Program Building. The term "Program Building" means that certain real property as described in 1.C.
B. Rules of Construction
Words of any gender shall be deemed and construed to include all genders, and words importing persons shall include corporations and associations, including public bodies, as well as natural persons. Unless the context otherwise indicates, words importing the singular number shall include the plural number and vice versa.
C. Recitals
WHEREAS, the real property which is generally located at the northwest corner of Anaheim Boulevard and Broadway identified in Exhibit A as the Cultural Center Site was previously owned by the Agency and was conveyed by the Agency to CIM for the construction of a mixed used project which includes a Cultural and Heritage Center on the ground floor as identified in Exhibit A as the Program Building, and will subsequently be conveyed by CIM to the Agency.
WHEREAS, the City owns that certain real property and improvements located thereon which is generally located at the northwest corner of Anaheim Boulevard and Broadway identified on Exhibit A as the Premises for the purposes and terms set forth herein; 4 DOCSOC/1237569v5/022621-0123
WHEREAS, the City desires to appoint Muzeo to operate and provide programming within the Premises;
NOW, THEREFORE, for and in consideration of the promises, the mutual covenants and conditions contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto do hereby agree as follows:
1. GENERAL
City hereby appoints Muzeo as agent, and Muzeo hereby accepts the appointment, effective as of the date hereof to operate and provide programming for the Premises, pursuant to the terms of this Operating Agreement.
2. TERM
The term of the Operating Agreement shall be for thirty (30) years, effective on the date hereof City and Muzeo shall have the option of extending the Operating Agreement for two additional terms of thirty (30) years under the same terms and conditions contained herein by mutual consent of both parties. Such consent of the City shall not be unreasonably withheld, provided the Muzeo has not been deemed in Default during the preceding term. This Operating Agreement may otherwise be earlier terminated in the event there is a Default described hereunder.
3. CITY FINANCING
A. Grants
At the sole discretion of the City, City may provide a restricted grant of funds to Muzeo on the first day of each Fiscal Year to support the daily operation of the Premises ("Annual Grant Amount").
B. Loans
During the Loan Period, the City shall provide a Line of Credit to Muzeo allowing Muzeo draw such funds as Muzeo may request provided that the aggregate amount of such Line of Credit will not exceed the lesser of (i) One Million Dollars ($1,000,000), or (ii) 95% of Pledges actually received by Muzeo ("Commitment"). If Muzeo exceeds this limit, Muzeo will immediately pay the excess to City at City's demand. This is a revolving line of credit. During the Loan Period, Muzeo may repay principle amounts and re-borrow them. During the Loan Period, interest shall accrue on DOCSOC/1237569v5/022621-0123
the unpaid principal balance of the Line of Credit at a simple interest rate of 5% annually. Individual draws on the Line of Credit shall be in an amount as required under the operating budget for the next financial quarter. The revenue received by the Muzeo in connection with its pledge agreements are hereby pledged to the repayment of the Line of Credit. Beginning January 15, 2008 and continuing on the fifteenth day of each third (3rd) month thereafter until the Maturity Date, Muzeo shall make quarterly payments of principal and interest in the amount equal to all revenue received in connection with the pledge agreements. Such payments will be applied first, to current interest then due;. second, to the accumulated interest, due, if any; and third, to. the principal outstanding. The entire unpaid principal balance of the Line of Credit, and all accrued and previously unpaid interest, shall be paid to the City on or before the Maturity Date
4. MUZEO OPERATIONS
A. Fundraising
Muzeo shall be, solely, responsible for fundraising activities to finance Muzeo activities on the Premises other than as provided herein. For fiscal years one through three Muzeo shall endeavor to raise, on average, $800,000 per year in donations and grant support. After the third Fiscal Year, City will review and approve the Muzeo's annual budget, including its fundraising goal and Muzeo shall be required to meet such goal.
B. Visitation
Muzeo shall be primarily responsible for the volume of visitors to the Premises. For fiscal years one through three Muzeo shall endeavor to secure 40,000 visitors per year. After 3r d fiscal year, on an annual basis, City will review/approve the Muzeo's projected annual visitation rate and Muzeo shall be required to meet such goal.
C. Exhibits
One exhibit of no less than 5,000 sqft, shall be open to the general public a minimum of forty (40) weeks. At the discretion of Muzeo, additional exhibitions or programs shall be maintained as funding from Muzeo is available.
D. Performance Measures
The City will perform annual review of Muzeo's compliance with fundraising, visitation, and exhibit obligations as set forth above.
6 DOCSOC/1237569v5/022621-0123
5. USE OF FACILITIES
A. Naming Rights
Muzeo shall have the exclusive naming rights for the Premises for the duration of the Operating Agreement, provided that City retains a right to reject such names that are, in the reasonable judgment of the City, in competition with the City or the City's interests.
B. Muzeo Priority Premises
Muzeo shall have first priority for all such rights related to the utilization of Muzeo Priority Premises and will be guaranteed use of no less than 800 sqft for office space, no less than 5,000 sqft for exhibitions, and no less than 7,000 sqft of indoor exhibition and program space and 2,000 sqft of clear lobby area. During Muzeo use of the Muzeo Priority Premises, Muzeo may restrict access to all Muzeo Priority Premises and permit only visitors who have paid admission or have been granted free admission by Muzeo to access such areas. At the discretion of Muzeo, Muzeo may use the Premises as event space to facilitate private functions. The Premises may be made available for lease to private organizations and civic groups. Muzeo shall condition use of the Premises by any group other than City or the Agency upon execution of a rental agreement, the form of which is approved by the City Attorney and which complies with all anti-discrimination provisions of similar rental agreements used by the City for use of its public facilities by private groups. City shall have the second priority for all such rights related to the utilization of Muzeo Priority Premises.
C. City Priority Premises
The City shall have first priority for all such rights related to the utilization of City Priority Premises. Muzeo shall have the second priority for all such rights related to the utilization of City Priority Premises. The City and Muzeo shall meet and confer on a annual basis to coordinate Muzeo's use of City Priority Premises for office space. Muzeo's use of City Priority Premises for office space will be based on a quarterly allocation plan prepared by Muzeo and approved by the City acting in their sole discretion. Muzeo and the City require Thirty (30) days notice for any amendment to the allocation plan prior to the annual review. The City and Muzeo shall meet and confer on a quarterly basis to coordinate Muzeo's use of City Priority Premises for exhibitions.
Muzeo's use of City Priority Premises for exhibitions will be based on a quarterly utilization plan prepared by Muzeo and approved by the City acting in their sole discretion. 7 DOCSOC/1237569v5/022621-0123
D. Multi-Purpose Room
Muzeo will operate the Multi-Purpose Room. The Multi-Purpose Room shall be made available for lease by both Muzeo or the City to private organizations and civic groups, subject to approved exhibition schedule, provided that such leases are subject to profit sharing agreement.
Muzeo shall also make the Multi-Purpose Room available to the City for use at no charge, subject to the Exhibition Building schedule. Muzeo shall condition use of the Premises by any group other than City or the Agency upon execution of a rental agreement, the form of which is approved by the City Attorney and which complies with all anti-discrimination provisions of similar rental agreements used by the City for use of its public facilities by private groups. The City and Muzeo will use reasonable efforts to meet and confer on a quarterly basis to schedule City's required use of the Multi-Purpose Room.
6. ALTERATIONS AND ADDITIONS
Muzeo shall not, without City's prior written consent, which may be granted or withheld in the City's sole and absolute discretion, make any alterations, improvements, or additions on or about the Premises during the term of this Operating Agreement; provided that City shall grant all reasonable requests for same. As a condition to granting its consent, City may require that MUZEO remove any or all of said alterations, improvements, or additions at the expiration of the term, and restore the Premises to its prior condition. Should MUZEO make any permanent alterations, improvements, or additions without the prior approval of City, City may require that MUZEO remove any or all of the same. Any alterations, improvements or additions on or about the Premises that MUZEO shall desire to make and which require the consent of the City shall be presented to City in written form, with proposed detailed plans. If City shall give its consent, the consent shall be deemed conditioned upon MUZEO acquiring any necessary permit to do so from appropriate governmental agencies, the furnishing of a copy thereof to City prior to the commencement of the work and the compliance by MUZEO of all conditions of said permit in a prompt and expeditious manner.
7. CITY'S RIGHT OF ENTRY
City, its agents, contractors, servants and employees may enter the Premises following reasonable notice to Muzeo and City's good faith efforts to coordinate such entry with Muzeo's on- site management so as to minimize interference with Muzeo's business operations (except in a case of 8 DOCSOC/1237569v5/022621-0123
emergency): (a) to examine the Premises; (b) to perform any obligation or exercise any right or remedy of City under this Operating Agreement; (c) to make repairs, alterations, improvements or additions to the Premises or to other portions of the Premises as City deems necessary or desirable; (d) to perform work necessary to comply with laws, ordinances, rules or regulations of any public authority or of any insurance underwriter; (e) to perform any remedial work which is necessary or appropriate as a result of any governmental order, investigation or proceeding; and (f) to perform work that City deems necessary to prevent waste or deterioration in connection with the Premises.
In exercising its right of entry herein provided, City shall not materially and unreasonably interfere with the operation of Muzeo's business on the Premises. Nothing contained in this Section shall imply any duty on the part of City to do any such work which, under any provision of this Operating Agreement, Muzeo may be required to do, nor shall it constitute a waiver of Muzeo's default in failing to do the same. No exercise by City of any rights contained in this Section shall entitle Muzeo to any damage for any injury or inconvenience occasioned thereby. If in connection with City's inspection of any alterations or additions performed by Muzeo, any such work is not in conformity with the plans and specifications approved pursuant to this Operating Agreement, City may, upon five (5) days notice to Muzeo, stop the work and order correction of any such work.
Inspection by City of the Premises or any improvements thereon is for the sole purpose of protecting the rights of City and is not to be construed as an acknowledgment, acceptance or representation by City that there has been compliance with the provisions of this Operating Agreement or the plans and specifications approved by City for such alterations and additions.
8. ALCOHOLIC BEVERAGES
Muzeo shall be permitted to enter into agreements with vendors and caterers for alcohol to be served on the Premises for specific events subject to the State of California Alcohol and Beverage Control and applicable city codes.
9. MAINTENANCE, REPAIRS, UTILITIES, JANITORIAL SERVICES AND
ALTERATIONS
A. Maintenance and Repairs
The City shall maintain the Premises and every part thereof, including all landscaping, in good order and condition, consistent with the level of maintenance provided by City for its own land and facilities. City's obligation hereunder shall include all normal day-to-day maintenance activities for the Premises, including all extraordinary maintenance, except required maintenance resulting 9 DOCSOC/1237569v5/022621-0123
from the negligence of Muzeo. The City shall also be responsible for effecting necessary repairs to the interior improvements of Premises and any portion thereof, and for replacing or repairing heating, air-conditioning, and ventilating facilities and interior plumbing, electrical and lighting facilities and interior walls, ceilings and floors.
B. Utilities
During the term of the Operating Agreement, the City shall pay for all water, gas, heat, light, power, telephone and other utilities and services supplied to the Premises, together with any taxes thereon.
C. Janitorial Services
The City shall provide all janitorial services for the Premises, including for special events, required by the nature of Muzeo; at a level of maintenance that may be substantially higher than the level of maintenance provided by the City for its own land and facilities; which in particular requires the frequent cleaning of restrooms, trash removal, and general cleaning of interior and exterior public access areas. City's obligation hereunder shall include all janitorial services for the building which consists of keeping the Premises clean and stocked with all usual and normal supplies. Janitorial services must occur during normal business hours of Muzeo and will be required on a Seven (7) day schedule during exhibitions, including public holidays.
10. INSURANCE, INDEMNIFY
A. Insurance
The City shall carry and maintain during the course of this Operating Agreement property insurance, including fine arts coverage, for property owned or contractually loaned or rented to City, Agency, or Muzeo.
B. Indemnity.
Muzeo shall indemnify and hold harmless the City from and against any and all claims arising from Muzeo's use of the Premises, or from any activity, work or things done, permitted or suffered by Muzeo in or about the Premises or elsewhere and shall further indemnify and hold harmless the City from and against any and all claims arising from any breach or default in the performance of any obligation on Muzeo's part to be performed under the terms of this Operating Agreement, or arising from any negligence of Muzeo, or any of Muzeo's agents, contractors, or 10 DOCSOC/1237569v5/022621-0123
employees, and from and against all costs, attorney's fees, expenses and liabilities incurred in the defense of any such claim or any action or proceeding brought thereon; and in case any action or proceeding be brought against the City by reason of any such claim, Muzeo, upon notice from City, shall defend the same at Muzeo's expense.
11. DEFAULTS; REMEDIES
A. Default
The failure by either party to observe or perform any of the covenants, conditions or provisions of this Operating Agreement where such failure shall continue for a period of thirty (30) days after written notice thereof from non-breaching party shall be deemed a "Default" for purposes of this Operating Agreement; provided, however, that if the nature of breaching party's default is such that more than thirty (30) days are reasonably required for its cure, then the breaching party shall not be deemed to be in Default if the breaching party commences such cure within said 30-day period and thereafter diligently prosecutes such cure to completion.
B. Remedies
In the event of any such Default by the defaulting party, the non-defaulting party may, at any time thereafter, with or without notice or demand and without limiting non-breaching party in the exercise of any right or remedy which non-breaching party may have by reason of such Default.
12. SEVERABILITY
The invalidity of any provision of this Operating Agreement, as determined by a court of competent jurisdiction, shall in no way affect the validity of any other provision hereof.
13. TIME OF ESSENCE
Time is of the essence.
14. INCORPORATION OF PRIOR AGREEMENTS; AMENDMENTS
This Operating Agreement, contains all agreements of the parties with respect to any matter mentioned herein. No prior agreement or understanding pertaining to any such matter shall be effective. This Operating Agreement may be modified in writing only, signed by the parties in interest at the time of the modification. Except as otherwise stated in this Operating Agreement, Muzeo hereby acknowledges that neither the City nor any of its officers, officials, employees or 11 DOCSOC/1237569v5/022621-0123
agents has made any oral or written warranties or representations to Muzeo relative to the condition or use by Muzeo of said Premises and Muzeo acknowledges that Muzeo assumes all responsibility regarding the Occupational Safety Health Act, the legal use and adaptability of the Premises and the compliance thereof with all applicable laws and regulations in effect during the term of this Operating Agreement except as otherwise specifically stated in this Operating Agreement.
15. NOTICES
Any notice required or permitted to be given hereunder shall be in writing and may be given by personal delivery or by certified mail and, if given personally or by mail, shall be deemed sufficiently given if addressed to Muzeo or to the City at the address noted below:
16. EFFECTIVE DATE
The effective date of this Operating Agreement shall be the latest date of execution hereinafter set forth opposite the names of the signators hereto. In the event Muzeo fails to set forth a date of execution opposite the name(s) of Muzeo's signator(s), Muzeo hereby authorizes City and Agency, by and through its representative(s), to insert the date of execution by Muzeo's signator(s) as the date said Operating Agreement, as executed by Muzeo, is received by City or Agency. 12 DOCSOC/1237569v5/022621-0123
oodhead IV
City Attorney
A W REDEVELOP NT AGEN Y, a
publi orate and
By
Elisa Stipkovich
Executive Director
MUZEO FOUNDATION, a C
profit co ration
By
/
Title 56C-1F—TA-12--LI
non-
IN WITNESS WHEREOF, the parties hereto have caused this Operating Agreement to be executed on the dates hereinafter respectively set forth.
Dated: 10 • 7A • ?A51)1
CITY OF ANAHEIM, a municipal corporation
By
David M. or
City Manager
ATTEST: Dated: \Q• 7Asol
Dated: • 7,61 •
City C
APPR S TO FORM:
Jack ite, ty Attorney
Dated: \0•29 .
Dated: I b
By
Title
13 DOCSOC/1237569v5/022621-0123
BROADWAY BOULEVARD
(M) = Priority Programming Rights for Muzeo
(C) = Priority Programming Rights for City
11171
Public Plaza
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EXHIBIT A
A- 1
DOCSOC/1237569v5/022621 -0123
OFFICE
(M)
1 OFFICE
(M) RESTROOM KITCHEN
(M)
LOWER
LOBBY
ELECTRICAL ROOM
OFFICE
(M)
WORK
ROOM
(MI = PRIORITY PROGRAMMING
RIGHTS FOR MUZEO
rW,)
(C) = PRIORITY PROGRAMMING
RIGHTS FOR CITY
PROGRAM ROOM 1
(M)
CARNIEGIE LIBRARY BUILDING, 1ST FLOOR
PROGRAM ROOM 2
RESTROOM
A-2
DOCSOC/1237569v5/022621-0123
,
CM) = PRIORITY PROGRAMMING
RIGHTS FOR MUZEO
(C) = PRIORITY PROGRAMMING
RIGHTS FOR CITY
CARNEGIE LIBRARY BUILDING, 2ND FLOOR
A-3 DOCSOC/1237569v5/022621-0123
Cr/ IG/NA
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Amendment No. 1 To
Property Operating Agreement
This Amendment No. 1 to Property Operating Agreement (this "Amendment No. 1"), dated for purposes of identification only as of August 1, 2010 (the "Date of Amendment"), is made and entered into by and among the Muzeo Foundation, a California nonprofit corporation ("Muzeo"), the Anaheim Redevelopment Agency, a public body, corporate and politic ("Agency"), and the City of Anaheim, a municipal corporation and charter city ("City").
RECITALS
A. Muzeo, Agency and City (each, a "Party" and collectively, the "Parties") entered into that certain Property Operating Agreement dated as of October 19, 2007 (the "Agreement") pursuant to which Muzeo operates and programs certain real property generally located at 241 South Anaheim Boulevard and 115 West Broadway, Anaheim, California 92805 (defined in the Agreement as the "Premises"). The Agreement is available as a public record in the offices of the City Clerk/Agency Secretary located at 200 South Anaheim Boulevard, 2 nd Floor, Anaheim, California 92805. Capitalized terms set forth in this Amendment No. 1 shall have the meanings ascribed to such terms in the Agreement unless otherwise defined herein.
B. The Parties desire to amend the Agreement to provide for the modification of the City Financing (as set forth in Section 3 of the Agreement) by (i) extending the expiration of the Maturity Date to June 30, 2015, (ii) amending the aggregate amount of the Line of Credit, (iii) recasting the nature of the funds drawn from the Line of Credit to a grant to the extent that Muzeo raises certain funds, and (iv) requiring that Muzeo satisfy certain minimum fundraising requirements.
NOW, THEREFORE, FOR AND IN CONSIDERATION OF THE MUTUAL PROMISES,
COVENANTS AND CONDITIONS CONTAINED HEREIN, THE CITY AND THE VENDOR AGREE AS FOLLOWS:
SECTION 1. AMENDMENT OF AGREEMENT. The Agreement is amended as set forth in this Section.
1.1 Extension of Maturity Date. The term "Maturity Date," set forth in Section lA of the Agreement, is deleted and replaced with the following:
"Maturity Date The term "Maturity Date" means June 30, 2015."
1.2 Line of Credit Limit. The first sentence of Section 3B of the Agreement is deleted and replaced with the following:
"During the Loan Period, the City shall provide a Line of Credit to Muzeo allowing Muzeo to draw such funds as Muzeo may request, provided that the aggregate amount of such Line of Credit shall not exceed Five Hundred Thousand Dollars ($500,000) during Fiscal Year 2010-2011 and Two Hundred Thousand Dollars during each Fiscal Year thereafter."
1.3 Grant of Portions of Line of Credit Draws. Commencing with Fiscal Year 2010-2011, that portion of the unpaid principal balance of the Line of Credit outstanding as of the end of that Fiscal Year equal to the amount of money raised by the Muzeo from Pledges, donations, fundraisers and similar sources (but specifically excluding gate receipts and retail sales revenue) during that same Fiscal Year shall be recast as a grant from the City pursuant to Section 3A, provided that (i) during Fiscal Year 20 10-201 1 such recasted amount shall not exceed Five Hundred Thousand Dollars ($500,000), and (ii) each Fiscal Year thereafter, such recasted amount shall not exceed Two Hundred Thousand Dollars ($200,000).
1.4 Minimum Fundraising Requirements. The last sentence of Section 4A of the Agreement is deleted and replaced with the following:
"In the event that Muzeo fails to raise at least Five Hundred Thousand Dollars ($500,000) during Fiscal Year 2010-2011 and Two Hundred Thousand Dollars ($200,000) each Fiscal Year thereafter, City may (i) terminate Muzeo's right to draw further upon the Line of Credit, and/or (ii) terminate the Agreement." SECTION 2. INTEGRATION. Except as expressly provided to the contrary herein, all provisions of the Agreement shall remain in full force and effect. The Agreement and this Amendment No. 1 shall hereinafter be collectively referred to as the "Amended Agreement".
The Amended Agreement integrates all of the terms and conditions of agreement between the Parties and supersedes all negotiations or previous agreements between the Parties with respect to the subject matter hereof.
SECTION 3. EFFECTIVE DATE. This Amendment No. 1 shall take effect on immediately upon the execution hereof by the Parties.
2 By:
ANAHEIM REDEVELO ENT AGENCY,
a public srporate a s jo t.
1111. 11 ffh
...AL Alf A
A.'ISA -STIP OVIf xecutive Director
ATTEST:
LINDA N.
By:
OAL, CITY LERK/a CY SECRETARY
MAA API Oa
MUZEO FOUND N,
a California no t corporation
By:
PETER COMISKEY, Executiv
3 'rector
IN WITNESS WHEREOF, THE PARTIES HAVE EXECUTED THIS AMENDMENT NO. 1 AS OF THE RESPECTIVE DATES SET FORTH BELOW.
"AGENCY"
Dated: y1 (3 I to
"CITY"
CITY OF ANAHEIM,
a municip corporation and c rter city
Dated: 94 4 / 1'2 By:
TERRY L WE, Director, Community
Services Depai tinent
LINDA N. ANDAL,
City Clerk
APPROVED AS TO FORM:
CRISTINA ITALLEY, CITY ATTORNEY
By:
JO E. WOODHEAD IV,
As istant City Attorney
"MUZEO"
Dated:
C
ORIGINAL Amendment No. 2
4 9 35.2_
To
Property Operating Agreement
This Amendment No. 2 to Property Operating Agreement (this Amendment No. 2), dated for purposes of identification only as of January 1, 2013 (the Date of Amendment), is made and entered into by and among the Muzeo Foundation, a California nonprofit corporation (Muzeo), the City of Anaheim, a municipal corporation and charter city (City), and the City of Anaheim, as the Successor Agency to the Anaheim Redevelopment Agency (Successor Agency).
RECITALS
A. Muzeo, City, and the 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). The Parties subsequently entered into that certain Amendment No. 1 to Property Operating Agreement dated as of August 1, 2010 ("Amendment No. 1," and together with the Original Agreement, the "Agreement"). Thereafter, the Anaheim Redevelopment Agency ("Agency") became a dissolved redevelopment agency and the City Council of the City of Anaheim elected to have the City of Anaheim serve as the Successor Agency to the Agency, thereby assuming all authority, rights, powers, duties and obligations previously vested with the Agency. Pursuant to the Agreement, Muzeo operates and programs certain real property generally located at 241 South Anaheim Boulevard and 115 West Broadway, Anaheim, California 92805 (defined in the Agreement as the Premises).
The Agreement is available as a public record in the offices of the City Clerk/Successor Agency Secretary located at 200 South Anaheim Boulevard, 2nd Floor, Anaheim, California 92805. Capitalized terms set forth in this Amendment No. 2 shall have the meanings ascribed to such terms in the Agreement unless otherwise defined herein.
B. Muzeo, City and the Successor Agency desire to further amend the Agreement to provide for the modification of the City Financing (as set forth in Section 3 of the Original Agreement and Section 1 of Amendment No. 1) by (i) advancing the Maturity Date from June 30, 2015, to December 31, 2014, and (ii) changing "Fiscal Year" in Section 3 of the Original Agreement and Section 1 of Amendment No. 1 to "Calendar Year."
NOW, THEREFORE, FOR AND IN CONSIDERATION OF THE MUTUAL PROMISES,
COVENANTS AND CONDITIONS CONTAINED HEREIN, MUZEO, CITY AND THE SUCCESSOR AGENCY AGREE AS FOLLOWS:
SECTION 1. AMENDMENT OF AGREEMENT. The Agreement is amended as set forth in this Section.
1.1 Advancement of Maturity Date. The term Maturity Date, set forth in Section lA of the Original Agreement, as amended in Section 1.1 of Amendment No. 1, is deleted and replaced with the following:
Maturity Date The term Maturity Date means December 31, 2014.
1.2 Amendment of Schedule for Line of Credit Allocation and Minimum Fundraising Requirements. Each use of the term "Fiscal Year" set forth in Sections 3 and 4 of the Original Agreement and Section 1 of Amendment No. 1 shall be deleted and replaced with the term "Calendar Year" and all duties and responsibilities of the parties to be performed under the Agreement, as amended, for the balance of the term thereof shall be based upon a calendar year, commencing upon the Date of Amendment (i.e., on and after January 1, 2013). As of the Date of Amendment, the sum of One Hundred Ninety-one Thousand Dollars ($191,000.00) has been drawn down by Muzeo from its Line of Credit limit for Fiscal Year 2012-13. The City and Successor Agency acknowledge that the Muzeo has raised at least Two Hundred Thousand Dollars ($200,000.00) during the period from July 1, 2012 to and including December 31, 2012 for the period from July 1, 2012 to and including December 31, 2012 and, therefore, has satisfied its minimum fundraising requirement for Fiscal Year 2012-13. Accordingly, the sum of One Hundred Ninety-one Thousand Dollars ($191,000.00) shall, pursuant to Section 1.3 of Amendment No. 1 and Section 3A of the Original Agreement, be recast as a grant from the City effective as of and on January 1, 2013. As a result, the Muzeo will be entitled to draw down upon its Line of Credit during calendar year 2013 and each calendar year thereafter during the term of the Agreement, as amended, in an amount not in excess of Two Hundred Thousand Dollars ($200,000.00) each calendar year, which amount(s) may be subject to being recast as a grant pursuant to Section 1.3 of Amendment No. 1, provided that the Muzeo meets the requirements of Section 1.4 of Amendment No. 1 and is not otherwise in default of the Agreement, as amended."
SECTION 2. INTEGRATION. Except as expressly provided to the contrary herein, all provisions of the Agreement shall remain in full force and effect. The Agreement and this Amendment No. 2 shall hereinafter be collectively referred to as the Amended Agreement. The Amended Agreement integrates all of the terms and conditions of the agreement between the parties to this Amendment No. 2 and supersedes all negotiations or previous agreements between the parties hereto with respect to the subject matter hereof.
SECTION 3. EFFECTIVE DATE. This Amendment No. 2 shall take effect immediately upon the execution hereof by City, Muzeo and the Successor Agency. [Remainder of page intentionally left blank; signatures on next page.] By: 47 v 7— Dated: 12./4
Terry Lowe)
Director, Community Services Department
By:
Cristina L. Talley
Dated: By:
n A. Scola, a sole proprietor, doing
usiness as John A. Scola & Associates, its
Executive Director
92779.3
3 IN WITNESS WHEREOF, THE PARTIES HAVE EXECUTED THIS AMENDMENT NO. 2 AS OF THE RESPECTIVE DATES SET FORTH BELOW.
CITY OF ANAHEIM, a municipal corporation
and charter city
-P
CI OF ANAHEIM, AS TH UCCESSOR
AGEN 0 THE ANAH
REDEVELO NT A NCY
Dated: By:
John Woodhead IV
Exe utive Director
ATTEST:
LINDA N. NDAL, CITY CLERK
,, imehAll,
By: IA /A WA 46.4 11
Linda N. Andal
APPROVED AS TO FORM:
CRISTINA L. TALLEY, CITY ATTORNEY
MUZEO FOUNDATION, a California nonprofit
corporation
AMENDMENT NO. 3
TO
PROPERTY OPERATING AGREEMENT
THIS AMENDMENT NO. 3 TO PROPERTY OPERATING AGREEMENT ("Amendment No. 3") is made and entered into as of June 30, 2014 (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 shall be referred to herein collectively as the "Agreement" and are incorporated herein by this reference. All c. %
1 references in the Agreement or this Amendment No. 3 to the "Agreement" are deemed and construed to refer to the Agreement, as amended by this Third Amendment; and F. Pursuant to the terms and conditions of Amendment No. 2, Muzeo raised more than Two Hundred Thousand Dollars ($200,000) during Calendar Year 2013 from pledges, donations, fundraisers and similar sources. Accordingly, and in accordance with the terms of Amendment No. 2, the amount drawn down by Muzeo from the Line of Credit during Calendar Year 2013 has been recast as a grant; and
G. As of the Date of Amendment of this Amendment No. 3, the sum of Two Hundred Thousand Dollars ($200,000.00) has been drawn down by Muzeo from its Line of Credit for Calendar Year 2014 and Muzeo has raised an amount sufficient to repay the amount drawn down by Muzeo for Calendar Year 2014 from pledges, donations, fundraisers and similar sources; and H. In light of the ability of Muzeo to raise an amount sufficient to repay the amount drawn down by it for Calendar Year 2014, the City and Muzeo desire to change the timing for future draw-downs of funds from the Line of Credit from a calendar year basis to a fiscal year basis, comencing as of, on and after July 1, 2014; and
Accordingly, Muzeo and City desire to further amend the Agreement 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.
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, 2019, which shall be the maturity date for the Loan Period, meaning that Muzeo may not make any further draw-downs from the Line of Credit following the expiration of Fiscal Year 2018-19 and that any amounts due and owing to City under the Agreement shall be due and payable in full as of June 30, 2019.
Section 3. Amendment of Schedule for Line of Credit Allocation and Minimum Fundraising Requirements. As of the Date of Amendment, the sum of Two Hundred Thousand Dollars ($200,000.00) has been drawn down by Muzeo from its Line of Credit for Calendar Year 2014. The City and Muzeo acknowledge and agree that Muzeo has raised an amount sufficient to repay the amount drawn down by Muzeo for Calendar Year 2014. Therefore, Muzeo has satisfied its minimum fundraising requirement for Calendar Year 2014. Accordingly, the sum of Two Hundred Thousand Dollars ($200,000.00), together with accrued but unpaid interest thereon, is hereby recast as a grant from the City to Muzeo pursuant to Section 1.3 of Amendment No. 1 and Section 3A of 2 the Original Agreement.
Commencing as of, on and after July 1, 2014, future draws by Muzeo from the Line of Credit shall be based upon a fiscal year. Accordingly, the Line of Credit available for draw down by Muzeo for each fiscal year during the remaining term of the Loan Period (i.e., Fiscal Year 2014-15 through Fiscal Year 2018-19, inclusive) is hereby increased from the sum of Two Hundred Thousand Dollars ($200,000.00) per annum to the sum of Two Hundred Fifty Thousand Dollars ($250,000.00) per annum. Therefore, Muzeo is hereby authorized to draw down upon its Line of Credit during Fiscal Year 2014-15 and each fiscal year thereafter during the remaining term of the Loan Period an amount not in excess of Two Hundred Fifty Thousand Dollars ($250,000.00), each of which amount, together with interest accrued thereon, may be subject to being recast as a grant provided that Muzeo has raised money from pledges, donations, fundraisers and similar sources (exclusive of gate receipts and revenue received from retail sales at the Premises) in an amount equivalent to or more than the unpaid principal balance of the Line of Credit outstanding at the end of each fiscal year.
All duties and responsibilities of City and Muzeo to be performed under the Agreement, as amended, for the balance of the Loan Period shall be based upon a fiscal year, commencing upon July 1,2014.
Section 4. Former Anaheim Redevelopment Agency Not a Party. Because the City of Anaheim, in its capacity as the Successor Agency to the former Anaheim Redevelopment Agency, has no duties, responsibilities or obligations to Muzeo or to the City for any of the fmancial matters involving the Line of Credit or repayment or recasting of any amounts due and owing or to become due and owing by Muzeo to the City, the City and Muzeo acknowledge and agree that the City of Anaheim, as Successor Agency to the Anaheim Redevelopment Agency, a public entity organized and existing under California Health and Safety Code Section 34173, need not be a party to this Amendment No. 3.
Section 5. Integration; Conflicts or Inconsistencies. This Amendment No. 3, 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. 3 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. 3 and the terms and provisions of the Agreement, the terms and provisions of this Amendment No. 3 shall control and govern the rights and obligations of the parties.
[Remainder of page intentionally left blank. Signatures continued on next succeeding page.] 3 MICHAEL R.W. STON, CITY ATTORNEY
By:
Theodore
Assistant
olds
ttorney
lN WITNESS WHEREOF, Muzeo and City have executed this Amendment No. 3 as of the respective dates set forth below.
crry OF ANAHEIM, a municipal corporation
and charter city
Dated: As.da.A.) -c 1 ,2014. By:
Terryve
Director, Community Services Department
ATTEST:
LINDA N. ANDAL, CITY CLERK
By:
Linda N. Andal
it5iNcite
APPROVED AS TO FORM:
MUZEO FOUNDATION, a California nonprofit
corporation
Dated: ,2014. By:
Printed Name: Do e.
Title: Executive Director
102288-v5/TReynolds
4 ORIGINAL Cl
A 6a. - c63°I LI
AMENDMENT NO. 4
TO
PROPERTY OPERATING AGREEMENT
THIS AMENDMENT NO. 4 TO PROPERTY OPERATING AGREEMENT ("Amendment No. 4") is made and entered into as of his I (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
1 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 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, Amendment No. 2 and Amendment No.3 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. 4 to the "Agreement" are deemed and construed to refer to the Agreement, as amended by this Fourth Amendment; and
G. Muzeo and City desire to further amend the Agreement 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 30, 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.
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, 2024, which shall be the maturity date for the Loan Period, meaning that Muzeo may not make any further draw-downs from the Line of Credit following the expiration of Fiscal Year 2023-24 and that any amounts due and owing to City under the Agreement shall be due and payable in full as of June 30, 2024.
Section 3. Amendment of Schedule for Line of Credit Allocation and Minimum Fundraising Requirements.
(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 (i.e., Fiscal Year 2019-20 through Fiscal Year 2023-24, inclusive) is hereby Two Hundred Fifty Thousand Dollars ($250,000.00) per annum. Therefore, Muzeo is hereby authorized to draw down upon its Line of Credit during Fiscal Year 2019-20 and each Fiscal Year thereafter during the remaining term of the Loan Period an amount not in excess of Two Hundred Fifty Thousand Dollars ($250,000.00), each of which amount, together with interest accrued thereon, may be subject to being recast as a grant, provided that Muzeo meets the 2 requirements of Section 1.4 of Amendment No. 1 and is not otherwise in default of the Agreement, as amended. 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. 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 Section 1.4 of Amendment No.1, shall require City Council 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, 2019.
(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 Line of Credit for the period of June 30, 2018 to July 1, 2019, 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 financial quarter in increments not to exceed $60,000:
beginning August 15, 2019 and continuing on the 15 th 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. 4, 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. 4 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. 4 and the terms and provisions of the Agreement, the terms and provisions of this Amendment No. 4 shall control and govern the rights and obligations of the parties.
3 IN WITNESS WHEREOF, Muzeo and City have executed this Amendment No. 4 as of the respective dates set forth below.
CITY OF ANAHEIM, a municipal corporation
and charter city
Dated: ,2019.
ATTEST:
ANAHEIM CITY CLERK
APPROVED AS TO FORM:
ROBERT FABELA, CITY ATTORNEY
ea, it di M0\111"il
132454.3
io
De p7r City Attorn ey
B :
MUZEO FOUNDATION, a California nonprofit
corporation
Dated: ,2019. By: cuie-z„
Printed Name: U-1.- 6'4 /66k,
Title: Executive Director
4