Item No.
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: OFFICE OF THE CITY MANAGER
BY: VANIAH DE ROJAS, ASSISTANT CITY MANAGER
DATE: NOVEMBER 28, 2023
SUBJECT: DISCUSSION REGARDING STAY ARTS
EXECUTIVE SUMMARY
The City Council will discuss Stay Arts and provide direction to City staff. Stay Arts is a 501(c)(3) nonprofit organization that engages Southeast Los Angeles communities through the arts, creative exploration, and cultural expression.
RECOMMENDATION
That the City Council:
Discuss Stay Arts programs, operations, and finances, including City funding of the organization, and provide any desired feedback and direction to City staff regarding these items.
BACKGROUND
At the November 14, 2023 City Council meeting, the City Council directed staff to return to the next City Council meeting with a staff report that would provide the City Council with an opportunity to discuss Stay Arts programs, operations, and finances, including funding assistance that has been received from the City. The following section includes an analysis of the City’s contributions towards Stay Arts over the last 10 years.
ANALYSIS
Operating/Lease Agreements
In March 2012, the City Council amended the Art in Public Places Guidelines to expand availability of art to the general public. This amendment allowed for the use of the City’s Art in Public Places fund to pay for art venues within the boundaries of the Downtown Specific Plan area. Art venues that are subsidized by these funds must display physical art such as paintings, sculptures, and the like. A minimum of 90 percent of the art displayed must be from Downey-based arts.
APPROVED BY
CITY MANAGER
DISCUSSION REGARDING STAY ARTS
NOVEMBER 28, 2023
PAGE 2
Operating Agreement #1
In May 2012, the City Council approved a five-year Operating Agreement with Downey Art Vibe (or “DAV”, now known as Stay Arts) to manage and run an art gallery (Stay Gallery) in the Downtown area. As part of the operating agreement, it included required services/programming at the gallery, and stated that the City would pay for the first two (2) years of lease payments ($2,000 per month), and the remaining three (3) years were the responsibility of DAV. The City contributed $50,000 from July 2012 – May 2014.
In May 2013, a 6-month update was provided to the City Council by DAV regarding its programming, facility usage, fundraising efforts, and business plan progress.
In July 2014, DAV submitted a proposal requesting funding for the remaining three (3) years of the contract.
In August 2014, the City Council discussed authorizing an amendment to the Operating Agreement to provide additional funding of up to $75,000 for lease payments for the remaining three (3) years of the agreement. The City Council shared its appreciation of the work of the DAV and its programming of the Stay Gallery, and expressed that they would like to see Stay Gallery be self-sustainable and for the DAV to provide a business plan. DAV shared it had plans in place to reduce further City funding in the future, which includes seeking grant funding and growing its partnership base.
The City Council approved the agreement amendment in October 2014, and t he City contributed $69,625 from August 2014 – June 2017.
Operating Agreement #2
In February 2017, the City received a funding request from DAV. The Council discussed the matter and expressed the desire for DAV and the Stay Gallery to become self-reliant, and to increase its revenue streams from other sources.
Representatives from DAV stated its difficulty with becoming self-reliant and shared that funding would not be used for salaries as the Gallery is run by volunteers. The DAV shared that they had a five (5)-year plan to become less reliant on the City
As a result of this meeting, the City Council created a Stay Gallery ad-hoc committee to discuss financial solutions for DAV and the Stay Gallery. The subcommittee also reviewed quarterly reports and other information.
In May 2017, the City entered into a second Operating Agreement with DAV, with the understanding that the DAV and Stay Gallery would be self-sufficient after the five (5)-year Agreement. The operating agreement included required
DISCUSSION REGARDING STAY ARTS
NOVEMBER 28, 2023
PAGE 3
services/programming at the Gallery, quarterly reporting and bi-annual financial statements, and a subsidy from the City to pay for lease payments and program expenses. The services in the agreement were expanded to include the Gallery’s use as a community space by civic, charitable, and community groups for special events. It also outlined the ability for the Downey Arts Coalition to use the space as a strategic partner. The City paid $2,750 per month in lease payments with three (3) percent annual increases, plus $2,625 for prorated rent for the month of June 2017. Additionally, the City committed to providing $4,000 (total $48,000) per quarter over three (3) years towards program expenses. The City’s total contribution was $150,168 from June 2017 – May 2020.
In May 2019, the City Council received a presentation by DAV. The presentation discussed the change in leadership and new programming and events at Stay Gallery. The City Council shared their appreciation for the arts and the contributions of the DAV and the work being done at Stay Gallery. The City Council shared the importance of the DAV having a plan of how it was going to engage more with the community, and promote programs and services. Additionally, the City Council suggested that DAV work with other non-profits in the community. The DAV Board shared possible ideas and discussed developing a fundraising campaign utilizing community leaders to not be as reliant on the City. Both the City Council and DAV discussed sharing Stay Gallery programs and events on the City’s social media platforms, and potentially including a link on the City’s webpage.
Operating Agreement #3
In July 2020, the City entered into its third Operating Agreement with DAV. The agreement and the prescribed services to be performed by DAV at Stay Gallery as well as required reporting requirements can be seen in Attachment A. The City paid $3,004 per month in lease payments with three (3) percent annual increases.
The City contributed $77,918 from August 2020 – May 2023.
COVID-19 Assistance
On March 8, 2022, the City Council Stay Gallery ad-hoc committee met and received a presentation from DAV regarding its current activities, funding challenges due to the COVID-19 restrictions, and a request for additional funding to operate Stay Gallery for the time period of April 2022 through July 31, 2022.
Also, due to a growing regional impact, DAV changed its corporation name to Stay Arts. The City’s Operating Agreement with DAV required that any transfer or assignment of the agreement to a different listed entity required the City's approval.
Thus, staff recommended approval of the assignment and assumption agreement.
At the March 22, 2022 City Council meeting, the City Council approved the provision of additional funding for the remaining lease payments for April-July 2022
DISCUSSION REGARDING STAY ARTS
NOVEMBER 28, 2023
PAGE 4
at a cost of $12,128, with the addition of $4,000 per month from April-July 2022, for operating costs to ensure regular open hours and programming for the public, for a total additional cost of $28,128. It also approved the assignment and assumption agreement to Stay Arts.
The total funding the City has provided to the DAV/Stay Arts for the management of Stay Gallery from May 2012 to May 2023 is $375,838.
Stay Gallery Capital Improvements
From June 2012 to December 2013, Stay Arts embarked on a capital campaign to transition the space from the former drapery shop into a multi-use creative space with the potential to house different local art groups, events, workshops, and community events.
As part of the City’s contribution, the City waived all City fees, which equate d to approximately $7,000.
City Partnership
The City has engaged with Stay Arts to participate in City events, and it also publicizes programming at Stay Gallery on its social media platforms and has included a link on the City’s website.
More recently, for the City’s Dia De Los Muertos event, Stay Arts was contracted for a water color workshop to be held during the event. The City has provided Stay Arts the following for its services at the event:
2022 – Dia De Los Muertos - $1,260
2023 – Dia De Los Muertos - $1,260
Branding Services
In addition to City partnerships, in February 2014, the City entered into a Professional Services Agreement (PSA) for $57,200 with DAV to provide branding and strategic marketing as part of Phase I of the City’s branding initiative. Phase I included:
• City of Downey & Discover Downey brand identity;
• City of Downey & Discover Downey Branding Style Guide; • City of Downey & Discover Downey Implementation & Action Plan; • North Star Brand Identity report research & analysis; • Concept designs;
• Logotype development;
• Structured brand computer folder for city staff;
• Discover Downey video;
• Branding Subcommittee meetings and workshops;
• Brand implementation plan;
DISCUSSION REGARDING STAY ARTS
NOVEMBER 28, 2023
PAGE 5
• Brand identity report;
• Stationery design options;
• Assistance with the branding and marketing of special events; • Consultation on website and social media logos;
• Consultation with Downtown subcommittee meeting regarding streetscape project; and
• Bicycle banner design and photography.
In January 2015, the City approved an amendment to the agreement in the amount of $30,000 to move forward with Phase II of the City’s branding initiative. Phase II included:
• Creation of a Discover Downey video highlighting retail, commercial , and City attractions;
• Various "On-Call" services were contracted such as: strategic marketing for Discover Downey Events; Downtown Downey branding; assistance with the design of the City's website template to match the new brand; and Discover Downey social media.
The amendment also included the assignment and assumption of the PSA to the Crawford Group, a California Limited Corporation, run by and created to compete for for- profit work for DAV. Due to the DAV’s non-profit status, it has legal limits on the revenues it can receive.
The total amount provided to Stay Arts through the Crawford Group for this project was $87,200.
Community Based Organization Funding (CBO) Program 2023
As part of the City’s Fiscal Year 2023-2024 Adopted Budget, the City Council developed a CBO funding program where Downey non-profits, including Stay Gallery/Arts, can apply.
This program was developed to create a fair and equitable process for non-profits in the City to receive funding from the City of Downey. Stay Arts was encouraged by the City to submit for funding through this program.
Stay Arts submitted the following program, which will be discussed later this meeting under a separate Administrative Report.
Art classes/workshops for March 4 - May 31, 2024 (approx. 13 weeks) - $24,000.
CITY COUNCIL PRIORITIES
Quality of Life, Safety & Infrastructure
DISCUSSION REGARDING STAY ARTS
NOVEMBER 28, 2023
PAGE 6
FISCAL IMPACT
There is no fiscal impact.
ATTACHMENTS
Attachment A – Operating Agreement #3 (August 1, 2020 – May 31, 2023)
OPERATING AGREEMENT
BY AND BETWEEN
THE CITY OF DOWNEY AND THE DOWNEY ART VIBI
This Agreement is made and entered into this 1-2 day of July, 2020 by ani qKMMff2M=-
ip; 11-iliillr;11;1111' 11111111, liiiir 11 111:W 1111111lp Iliiii1111111ii :.
FrIc-Ar. I 1 10 IN-
CUTUMIT111yTente Yor ine u1spiay of pe arlu rillysicai UN, firle anu contempurary arE and educational programs for the youth in Downey, the City requires the expertise of an organization to provide such services; and
B. Since 2012, DAV has been leasing commercial space located at 11140 Downey Avenue, Downey (the "Facility") wherein the Facty is being operated as an art gallery for the display of public art and the performance of related services. DAV intends to renew the Commercial Lease Agreement for the Facility for the period August 1, 2020 through May 31, 2023;and
C. The City desires to retain DAV to operate Facility to meet its objective of promoting art in the community as well as making the Facility available for use by civic, charitable and community groups which serve Downey residents; and D. DAV desires to perform and assume responsibility for operating a permanent art gallery in the Facility and providing certain services and programs as required by City or the terms and conditions set forth in this Agreement, DAV represents that it has demonstrated competence and experience in providing art gallery services to public clients, and is familiar with the objectives of the City.
ONE=
3. TERMS.
IIIII II!IIJ
3.1.1 General Scooe of Services. DAV promises and agrees to furnish to City all labor, materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately supply the services and programs necessary for the Project Services"). The Services are more particularly described in Exhibit "A" attached hereto and incorporated herein by reference. All Services shall be subject to, and performed in accordance with, this Agreement, the exhibits attached hereto and incorporated herein by reference, and all applicable local, state and federal laws, rules and regulations.
3.1.2 Term. The term of this Agreement shall be from August 1, 2020 to May 31, 2023, unless earlier terminated as provided herein. DAV shall complete the Services within the term of this Agreement, and shall meet any other established schedules and deadlines.
3.2.1 Control and Pavment of Subordinates; Independent Contractor. The Services shall be performed by DAV or under its supervision. DAV will determine the means, methods and details of performing the Services subject to the requirements of this Agreement. City retains DAV on an independent contractor basis and not as an employee, joint venturer, partner or agent. DAV retains the right to perform similar or different services for others during the term of this Agreement. Any additional personnel performing the Services under this Agreement on behalf of DAV shall also not be employees of City and shall at all times be under DAV's exclusive direction and control. DAV shall pay all wages, salaries, and other amounts due such personnel in connection with their performance of Services under this Agreement and as required by law. DAV shall be responsible for all reports and obligations respecting such additional personnel, including, but not limited to:
social security taxes, income tax withholding, unemployment insurance, disability insurance, and workers' compensation insurance.
Schedule of Services. DAV shall perform the Services expeditiously, within the term of this Agreement, and as determined by the parties. DAV represents that it has the professional and technical personnel required to perform the Services in conformance with such conditions. Upon request of City, DAV shall provide a more detailed schedule of anticipated performance to meet the City's deadlines.
Conformance to Applicable Reouirements. All services performed and work prepared by DAV shall be subject to the approval of City.
employee of the DAV or its sub -consultants who is determined by the City to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project, a threat to the safety of persons or property, or any employee who fails or refuses to perform the Services in a manner consistent with the standard of care set forth herein, shall be promptly removed from the Project by the DAV and shall not be re-employed to perform any of the Services or to work on the Project.
3.2.9 Laws and Regulations. DAV shall keep itself fully informed of and in compliance with all applicable local, state and federal laws, rules and regulations in force at the time the Services are performed by DAV and in any manner affecting the performance of the Project or the Services, including all applicable Cal/OSHA requirements, and shall give al notices required by law. DAV shall be liable for all violations of such laws and regulations in connection with Services. If the DAV performs any work knowing it to be contrary to such laws, rules and regulations and without giving written notice to the City, DAV shall be solely responsible for all costs arising therefrom. DAV shall defend, indemnify and hold City, its officials, directors, officers, employees and agents free and harmless, pursuant to the indemnification provisions of this Agreement, from any claim or liability arising out of any failure or alleged failure to comply with such laws, rules or regulations. DAV's violation of such laws, rules and regulations shall also constitute a material breach of this Agreement.
3.2.10. Facilitv Lease. During the term of this Agreement, DAV shall comply with any and all provisions of the Commercial Lease Agreement for the Facty, and any amendments thereto, entered into by and between the property owner and DAV. City shall be entitled to terminate this Agreement for cause if DAV breaches any of the provisions of thz Commercial Lease Agreement for the Facility or the Commercial Lease Agreement is terminated prior to the end of its term by either the property owner or DAV.
3.2.11 Insurance.
3.2.11.1 Time for Compliance. DAV shall not commence the Services under this Agreement until it has provided evidence satisfactory to the City that i has secured all insurance required under this section. In addition, DAV shall not allow an subcontractor to commence work on any subcontract until it has provided evidence satisfactory to the City that the subcontractor has secured all insurance required under t section. I
3.2.11.2 Minimum Requirements. DAV shall, at its expense, procure and maintain for the duration of the Agreement insurance against claims for injuries io persons or damages to property which may arise from or in connection with the performance of the Agreement by the DAV, its agents, representatives, employees or subcontractors. DAV shall also require all of its subcontractors to procure and maintain the same insurance for the duration of the Agreement. Such insurance shall meet at least the following minimum levels of coverage:
0 A) Minimum Scope of Insurance. Coverage shall be at least as broad as the latest version of the following: (1) General Liability. Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001); (2) Automobile Liability.
Insurance Services Office Business Auto Coverage form number CA 0001, code 1 (any auto); and (3) Workers' Compensation and Employer's Liability: Workers' Compensation insurance as required by the State of California and Employer's Liability Insurance.
B) Minimum Limits of Insurance. DAV shall maintain limits no less than: (1) General Liability. $2,000,000 per occurrence for bodily injury, personal injury and property damage. If Commercial General Liability Insurance or other form with general aggregate limit is used, either the general aggregate limit shall apply separately to this Agreement/location or the general aggregate limit shall be twice the required occurrence limit; 2) Automobile Liability. $2,000,000 per accident for bodily injury and property damage; and 3) Workers' Compensation and Employer's Liability. Workers' Compensation limits as required by the Labor Code of the State of California. Employer's Liability limits of 2,000,000 per accident for bodily injury or disease.
Professional DAV procure and
and require its sub-DAVs to procure and maintain, for a period of five (5) years following completion of the Project,errors ..: • omissionsliability.: - appropriate to ... profession. Such insurance shall be in an amount not less than $2,000,000 per claim, and shall be endorsed to include contractual liability.
3.2.11.4 Insurance Endorsements. The insurance policies shall contain the following provisions, or DAV shall provide endorsements on forms supplied or approved by the City to add the following provisions to the insurance policies:
A) General Liability. The general liability policy shall be endorsed to state that: (1) the City, its directors, officials, officers, employees, agents and volunteers shall be covered as additional insureds with respect to the Services or operations performed by or on behalf of the DAV, including materials, parts or equipment furnished in connection with such work; and (2) the insurance coverage shall be primary insurance as respects the City, its directors, officials, officers, employees, agents and volunteers, or if excess, shall stand in an unbroken chain of coverage excess of the DAV's scheduled underlying coverage. Any insurance or self-insurance maintained by the City, its directors, officials, officers, employees, agents and volunteers shall be excess of the DAV's insurance and shall not be called upon to contribute with it in any way.
B) Automobile Liability. The automobile liability policy shall be endorsed to state that: (1) the City, its directors, officials, officers, employees, agents and volunteers shall be covered as additional insureds with respect to the ownership, operation, maintenance, use, loading or unloading of any auto owned, leased, hired or borrowed by the DAV or for which the DAV is responsible; and (2) the insurance coverage shall be primary insurance as respects the City, its directors, officials, officers, employees, agents and volunteers, or if excess, shall stand in an unbroken chain of coverage excess of the DAV's
scheduled underlying coverage. Any insurance or self-insurance maintained by the City, its directors, officials, officers, employees, agents and volunteers shall be excess of the DAV's insurance and shall not be called upon to contribute with it in any way.
C) Workers' Compensation and Emplovers, Liability Coverage.
The insurer shall agree to waive all rights of subrogation against the City, its directors, officials, officers, employees, agents and volunteers for losses paid under the terms of the insurance policy which arise from work performed by the DAV.
D) All Coveraqgs. Each insurance policy required by this Agreement shall be endorsed to state that: (A) coverage shall not be suspended, voided, reduced or canceled except after thirty (30) days prior written notice by certified mail, return receipt requested, has been given to the City; and (B) any failure to comply with reporting or other provisions of the policies, including breaches of warranties, shall not affect coverage provided to the City, its directors, officials, officers, employees, agents and volunteers.
3.2.11.5 Separation of Insureds: No Special Limitations. All insurance required by this Section shall contain standard separation of insureds provisions.
In addition, such insurance shall not contain any special limitations on the scope of protection afforded to the City, its directors, officials, officers, employees, agents and volunteers.
3.2.11.6 Deductibles and Self -Insurance—Retentions. Any eductibles or self -insured retentions must be declared to and approved by the City. DAV shall guarantee that, at the option of the City, either: (1) the insurer shall reduce or eliminat 5 such deductibles or self -insured retentions as respects the City, its directors, officials, aff icers, employees, agents and volunteers; or (2) the DAV shall procure a bond guaranteeing payment of losses and related investigation costs, claims and administrative 2nd defense expenses.
3.2.11.7 Acceptabilitv of Insurers. Insurance is to be placed with insurers with a current A.M. Best's rating no less than A:Vll, licensed to do business in California, and satisfactory to the City.
3.2.11.8 Verification of Coveraqe. DAV shall furnish City with original certificates of insurance and endorsements effecting coverage required by this Agreement on forms satisfactory to the City. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf, and shall be on forms provided by the City if requested. All certificates and endorsements must be received and approved by the City before work commences. The Ci reserves the right to require complete, certified copies of all required insurance policies, at any time. I
3.2.12 Safety. DAV shall execute and maintain its work so as to avoid injury or damage to any person or property. In carrying out its Services, the DAV shall at all times be in compliance with all applicable local, state and federal laws, rules and regulations, and shall exercise all necessary precautions for the safety of employees appropriate to the nature of 6 the work and the conditions under which the work is to be performed. Safety precautions as applicable shall include, but shall not be limited to: (A) adequate life protection and life- saving equipment and procedures; (B) instructions in accident prevention for all employees and subcontractors, such as safe walkways, scaffolds, fall protection ladders, bridges, gang planks, confined space procedures, trenching and shoring, equipment and other safety devices, equipment and wearing apparel as are necessary or lawfully required to prevent accidents or injuries; and (C) adequate facilities for the proper inspection and maintenance of all safety measures.
K l X T-7vt M-.
3.3.1 Co ensation. DAV shall receive compensation for all Services rendered under this Agreement in the amounts as set forth in Exhibit "B" attached hereto and incorporated herein by reference. The total compensation for the 3-year term of this Agreement shall not exceed Seventy -Five Thousand Dollars and 00/100 cents 75,000.00). Extra Work may be authorized, as described below, and if authorized, said Extra Work will be compensated at the rates and manner set forth in an amendment to this Agreement signed by both parties.
3.3.2 IPLayment of Compensation. City shall compensate DAV for the Services Tendered under this Agreement in accordance with Exhibit
3.3.3 Reimbursement for Expenses. DAV shall not be reimbursed for any expenses unless authorized in writing by City.
3.3.4 Extra Work. At any time during the term of this Agreement, City may request that DAV perform Extra Work. As used herein, "Extra Work" means any work whic is determined by City to be necessary for the proper completion of the Project, but which th parties did not reasonably anticipate would be necessary at the execution of this Agreeme DAV shall not perform, nor be compensated for Extra Work without a written amendment t this Agreement signed by both parties. I
3.4.1 Maintenance and Inspection. DAYshall maintain complete and accurate records with respect to all costs and expenses incurred under this Agreement. All such records shall be clearly identifiable. DAV shall allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement. DAV shall allow inspection of all work, 1ata, documents, proceedings, and activities related to the Agreement for a period of three 3) years from the date of final payment under this Agreement.
3.5.1.1 Grounds for Termination. City may, by written notice to DAV, terminate the whole or any part of this Agreement at any time either for cause or for the City's convenience and without cause by giving written notice to DAV of such termination, and specifying the effective date thereof, at least seven (7) days before the effective date of such termination. DAV may only terminate this Agreement for cause upon giving the City not less than seven (7) calendar days' written notice.
In addition to th grounds for termination set forth elsewhere in this Agreement, the following reasons shall also constitute "cause" for which either party may terminate this Agreement as provided herein:
Substantial failure by the other party to perform in accordance with the terms of this Agreement and through no fault of the terminating party; Assignment of this Agreement or transfer of the Project by either party to a other entity without the prior written consent of the other party; I IW. RMWO along 11QVp, a11161:2 VAULUM-1 WILA U W NIUM
Material changes in the conditions under which this Agreement was entered into, the Scope of Services or the nature of the Project, and the failure of the parties to reach agreement on the compensation and schedule adjustments necessitated by such changes.
3.5.1.2 Effect of Termination. If this Agreement is terminated as provided herein, City may require DAV to provide all finished or unfinished Documents and Data and other information of any kind prepared by DAV in connection with the performance of Services under this Agreement. DAV shall be required to provide such Documents and Data and other information within fifteen (15) days of the City's request.
3.5.1.3 Additional Services. In the event this Agreement is terminated in whole or in part as provided herein, City may procure, upon such terms and in such manner as it may determine appropriate, services similar to those terminated.
3.5.2 Delivery of Notices. All notices permitted or required under this Agreement shall be given to the respective parties at the following address, or at such other address as the respective parties may provide in writing for this purpose:
AM
M
The Downey Art Vibe
11140 Downey Avenue
Downey, CA 90241
Phone: (562) 477-5920
Attn: Executive Director
City of Downey
11111 Brookshire Avenue
Downey, California 90241
Phone: (562) 904-7168
Attn: Director of Community Development
With a courtesy copy to:
City of Downey
City Attorney's Office
11111 Brookshire Avenue
Downey, California 90241
Such notice shall be deemed made when personally delivered or when mailed, forty- eight (48) hours after deposit in the U.S. Mail, first class postage prepaid and addressed to the party at its applicable address. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service.
3.5.3 Ownership of Materials and Confidentialitv.
3.5.3.1 Documents & Data; Licensinq of Intellectual Property. This Agreement creates a non-exclusive and perpetual license for City to copy, use, modify, reuse, or sublicense any and all copyrights, designs, and other intellectual property embodied in plans, specifications, studies, drawings, estimates, and other documents or works of authorship fixed in any tangible medium of expression, including but not limited to, physical drawings or data magnetically or otherwise recorded on computer diskettes, which are prepared or caused to be prepared by DAV under this Agreement ("Documents & Data").
DAV shall require all subcontractors to agree in writing that City is granted a non-exclusive and perpetual license for any Documents & Data the subcontractor prepares under this Agreement. DAV represents and warrants that DAV has the legal right to license any and all Documents & Data. DAV makes no such representation and warranty in regard to Documents & Data which were prepared by design professionals other than DAV or provided to DAV by the City. City shall not be limited in any way in its use of the Documents and Data 9 or omissions or willful misconduct.
3.5.7 Entire Aqreement. This Agreement contains the entire Agreement of the parties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings or agreements.
3.5.8 Governinq_Law. This Agreement shall be governed by the laws of the State of California. Venue shall be the courts in Los Angeles County.
3.5.9 Time of Essence. Time is of the essence for each and every provision of this Agreement.
3.5.10 gity's Riqht to Emplov Other DAVs. City reserves right to employ other IAVs in connection with this Project.
3.5.11 Successors and Assigns. This Agreement shall be binding on the successors and assigns of the parties.
3.5.12 Assianment or Transfer. Neither party shall assign, hypothecate, or transfer, either directly or by operation of law, this Agreement or any interest herein without the prior written consent of the other party. Any attempt to do so shall be null and void, and any assignees, hypothecates or transferees shall acquire no right or interest by reason of such attempted assignment, hypothecation or transfer.
3.5.13 Construction-, References; Captions. Since the Parties or their agents shall be construed simply, according to its fair meaning, and not strictly for or against any Party. Any term referencing time, days or period for performance shall be deemed calendar days and not work days. All references to DAV include all personnel, employees, agents, and subcontractors of DAV, except as otherwise specified in this Agreement. All references to City include its elected officials, officers, employees, agents and volunteers except as otherwise specified in this Agreement. The captions of the various articles and paragraphs are for convenience and ease of reference only, and do not define, limit, augment, or describe the scope, content, or intent of this Agreement.
3.5.14 Amendment; Modification. No supplement, modification, or amendmeM of this Agreement shall be binding unless executed in writing and signed by both Parties.
3.5.15 Waiver. No waiver of any default shall constitute a waiver of any other default or breach, whether of the same or other covenant or condition. No waiver, benefit, privilege, or service voluntarily given or performed by a Party shall give the other Party any contractual rights by custom, estoppel, or otherwise.
00 3.5.16 No Third Partv Beneficiaries. There are no intended third party beneficiaries of any right or obligation assumed by the Parties.
3.5.17 Invalidity; Severability. If any portion of this Agreement is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect.
3.5.18 Prohibited Interests. DAY' maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for DAV, to solicit or secure this Agreement. Further, DAV warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for DAV, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. For breach or violation of this warranty, City shall have the right to rescind this Agreement without liability.
For the term of this Agreement, no member, officer or employee of City, during the term of his or her service with City, shall have any direct interest in this Agreement, or obtain any presen) or anticipated material benefit arising therefrom.
3.5.19 Eaual Opportunity Emplovment. DAV represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. Such non-discrimination shall include, but not be limited to, all activities related 4; initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination. DAV shall also comply with all relevant provisions of any City Minority Business Enterprise program, Affirmative Action Plan or other related programs or guidelines currently in effect or hereinafter enacted.
3.5.20 Labor Certification. By its signature hereunder, DAV certifies that it is aware of the provisions of Section 3700 of the California Labor Code which require every employer to be insured against liability for Worker's Compensation or to undertake self- insurance in accordance with the provisions of that Code, and agrees to comply with such provisions before commencing the performance of the Services.
3.5.21 Authoritv to Enter Aweement, DAV has all requisite power and authority to conduct its business and to execute, deliver, and perform the Agreement. Each Party warrants that the individuals who have signed this Agreement have the legal power, right, and authority to make this Agreement and bind each respective Party.
3.5.22 Counterparts. This Agreement may be executed in counterparts, each which shall constitute one and the same instrument. I
12 In the event of any conflict, inconsistency, or incongruity between any provision of this Agreement, any of its exhibits, attachments, purchase order, or notice to proceed, the provisions of this Agreement will govern and control.
3.6.1 Prio.r.Approval Rectuired. DAV shall not subcontract any portion of t work required by this Agreement, except as expressly stated herein, without prior written approval of City. Subcontracts, if any, shall contain a provision making them subject to al provisions stipulated in this Agreement. 11
CITY OF DOWNY, Downey Art Vibe
a California municipal corporation a California Nonprofit Public Benefit and charter city Corporation
By:
Blame acheco, Mayor
By:
Gabriel Enamor' 'ado
Attest
City Clerk
tCity Attorney'
Secretary
13 DAV will oversee and supervise the Facility's programming and its use as a community space by civic, charitable and community groups for special events. The programming of the Facility shall consist of all of the following:
1, Conditional Use Permit:
a. At their meeting on February 5, 2014, the Downey Planning Commission approved Resolution No. 14-2864 approving PLN-13-0221 Conditional Use Permit. The uses set forth in the Conditional Use Permit and the associated Conditions of Approval must be met and adhered to for operation of an art gallery. Any future modifications to the Conditional Use Permit approved by the Downey Planning Commission shall be incorporated by reference in this Agreement.
II. Art Gallery Use and Related Events:
a. Monthly Gallery Exhibitions
i. Posted open hours for the public at a minimum of 12 hours per week during the run of the exhibition.
ii. Art Exhibits and Special Events will be programmed directly by DAV or through a partner organization such as other local art galleries and museums, the Downey Arts Coalition, Downey Unified School District, Downey Museum of Art, Downey Foundation for Educational Opportunities, Downey Rose Float Association, and Downey Historical Society.
iii. Open to public throughout the week
iv. Collection Programming
v. Partner with Museums and Galleries
b. Special Events:
i. Small Plays
ii. Comedy Nights
iii. Live Musk
iv. Poetry Readings
v. Spoken Word
vi. Lecture Series
c. Downey Arts Coalition: As a strategic partner in the success of the Facility, Downey Arts Coalition members will have direct access to program the facility under the direction of the Downey Arts Coalition board of directors, throughout the year. DAV will manage the calendar and be available to consult and support the events, though Downey Arts Coalition will be responsible for the producing and staffing requirements.
T
Ill. Educational Programming (Classes and Workshops)
a. Painting
b. Drawing
c. Photography
d. Videography
e. Sculpture
f. Art/Culture Appreciation through Lecture Series
g. Photoshop
h. Video Editing
IV. Rental of Facility for Community Uses
The Facility shall be made available for rental to Community Groups ("Community Groups" means those charitable, civic and community organizations that are either based in Downey or serve 75% or more of Downey residents through their work as verified by DAV) for special events. Community Groups that desires to use the Facility will be required to work directly with DAV's staff in scheduling and programming their special event(s). All services provided directly by DAV will be conducted inside the Facility. DAV will be responsible for obtaining a special events permit from the City when applicable.
a. The Facility shall not be rented out as a nightclub, dance hall, bar or loun with/without a cover charge and whether or not organized by a promoter. b. The Facility may be operated for family functions (i.e., anniversaries, birthdays, weddings, but no quinceafieras or baptisms) as long as the function(s) comply with the approved provisions of Resolution No. 14-2864 PLN-1 3-0221 Conditional Use Permit, applicable and appropriate zoning regulations, or any Federal, State, County, and City laws and regulations.
Unless otherwise expressly specified, all other requirements of the City of Downey Municipal Code shall apply.
c. DAV shall adopt policies and procedures for the rental of the Facility to Community Groups and shall establish rates for such rental, within 60 days the complete execution of this Agreement. A copy of such policies and procedures shall be provided to the City.
Interpretations of any provision of this Exhibit "A" or the resolution of any ambiguities in this Exhibit "A" shall be determined in writing by the Downey City Manager. The City Manager's nterpretation of any provision of this Exhibit "A" shall be final. 15 EXHIBIT "B"
i •
t • - oil I &II gi 11 GILOAon Lonri I Iis - i • • i
RENT SUBSIDY:
DAV shall lease the Facility for a 34 month term commencing August 1, 2020 and expiring May 31, 2023 pursuant to a Commercial Lease Agreement. City shall make lease payments on behalf of DAV directly to the landlord in accordance with base rent of $3,004 per month with 3% annual increases on the following schedule:
2020 — July 31, 2021): $3,004/month notto exceed
r. 0/' and
August00, is i i; to - --•
25,000.
Should the Commercial Lease Agreement be terminated by the property owner or DAV prior to the end of the lease term, the City's obligation to provide any further rent subsidy shall be terminated on the effective date of the termination of the lease.
If this Agreement is terminated for cause or without cause (as defined in Section 3.5.1.1 of this Agreement) by City, DAV shall be responsible for the lease payments due and owing under the Commercial Lease Agreement and shall reimburse City for any security deposit forfeited to the Facility's landlord.
City shall not be a party to the Commercial Lease Agreement for the Facility.
City shall not provide a guaranty for performance under the Commercial Lease Agreement.
While this Agreement and the Commercial Lease Agreement remains in effect, the City shall be responsible to pay the monthly rent due for the lease of the Facility for the total amount of $75,000 in rent subsidy on behalf of DAV for the term of the Commercial Lease Agreement. The balance of the monthly lease payments not covered by the City's rent subsidy shall be the sole responsibility of DAV.
16 111. A copy of the Lease Agreement and any amendments thereto, shall be provided to City. DAV shall indemnify City for any claims, demands, causes of actio costs, expenses, liability, loss, damage • injury arising • or related to the Commercial Lease Agreement, and any amendments thereto, for the Facility in the same manner as set forth in Section 3.5.5 ("Indemnification") of the Agreement. I V1. The Facility's internal events/activities/programs/services will be conducted as fundraisers to • the art gallery's operating •
V. Fees collected from the Facility's internal events/activities/programs/services will be used to offset the art gallery's operating costs.
V1. Fees collected • rental • the Facty to Community Groups will be used to the art gallery's operating •
17 QK4 91 :
V4WO a
Oluarterlv Reports:
1. Each August 31, November 30, February 28 and May 31, DAV shall prepare and submit to the Director of Community Development a written report which provides an update of DAV's performance of the services in the preceding quarter. At minimum the quarterly reports will include:
a. List, description and frequency of eve nts/activiti es/p rog ram s/se rvices; b. Sign -in sheets with authorized signatures from DAV staff for events/activit p rog ram s/se rvices;
c. Description of supplies used for events/activities/programs/services; d. Operating costs for events/activities/programs/services; e. Income derived from events/activities/p rog ram s/se rvices and how they were used to offset the art gallery's operating costs; and,
f. Fees collected from DAV partner organizations and how they were used to offset the art gallery's operating costs.
Bi-Annual Financial Statements:
I. Each July 15
th and January 15 th DAV will provide the Director of Community Development their organization's bi-annual Financial Statements of the activities in the preceding six month time period. At minimum the quarterly reports will include:
a. Revenue
b. Scholarships
c. Fundraising
d. Expenditures
i. Staffing listed by position
e. Gross and Net Profit
W