CITY MANAGER
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: OFFICE OF THE CITY MANAGER
BY: VANIAH DE ROJAS, ASSISTANT CITY MANAGER
DATE: JANUARY 23, 2024
SUBJECT: STAY ARTS COOPERATIVE FUNDING AGREEMENT
EXECUTIVE SUMMARY
The City Council will discuss approving a Cooperative Funding Agreement with Stay Arts.
Stay Arts is a 501(c)(3) nonprofit organization that engages Southeast Los Angeles communities through the arts, creative exploration, and cultural expression. The Cooperative Funding Agreement states that the City will provide funding to Stay Arts to be used for its monthly lease payments of Stay Gallery located at 11140 Downey Avenue, Downey, CA 90241.
RECOMMENDATION
That the City Council:
Approve the Cooperative Funding Agreement with Stay Arts where the City of Downey will provide funding towards the monthly lease payments of Stay Gallery for a 12-month term beginning on January 1, 2024 for a total contract amount of $39,372; and
2. Authorize the City Manager or his designee to execute the agreement with Stay Arts.
BACKGROUND
Stay Arts (formerly known as Downey Art Vibe) is a 501(c)(3) nonprofit organization that engages Southeast Los Angeles communities through the arts, creative exploration, and cultural expression. Since 2012, Stay Arts has produced 120 public art exhibitions, 500 classes and has impacted over 25,000 youth. Stay Arts operates under three arms:
1. Public Art Facility Management — Stay Gallery (Partner: City of Downey)
2. Arts Education — After School Art Classes (Partner: Downey Foundation for Educational Opportunities)
3. Arts -Based Services and Projects — Art Consulting, Mural Production, Art Installations, etc.
STAY ARTS COOPERATIVE FUNDING AGREEMENT
JANUARY 23, 2024
PAGE 2
At the November 28, 2023 City Council meeting, the City Council received an informational presentation regarding the various agreements and work products between Stay Arts and the City of Downey, and the total funding received over the years by Stay Arts from the City of which is $375,838. At this meeting, the City Council directed staff to return to a future City Council meeting with a one-year funding agreement between the City and Stay Arts that included additional conditions/measurable outcomes for Stay Arts.
ANALYSIS
City staff have been working with the representatives of Stay Arts to formalize an agreement as directed by the City Council. Based on these discussions, the following changes were made to the agreement:
Minor Chanaes
• Changing name from Downey Art Vibe to Stay Arts
• Exhibit "A" Services was updated to better reflect the current services being provided by Stay Arts at Stay Gallery
Additional Conditions — Exhibit "C" Reporting and Measurable Outcomes The Quarterly Reports and Bi-Annual Financial Statements requirements were updated to provide for greater clarity regarding attendance, operational costs, income derived, and detailed listings/categories of revenues and expenditures incurred.
Exhibit C also asks for various plans to demonstrate future planning of the organization and financial stability. Since 2019, Stay Arts has made administrative and operational improvements to its organization. Examples of some of those efforts are listed below:
Revised• its mission and vision
• ^• . i-i the organization fr• Downey Art Vibe to Stay Arts • Streamlined .i • expanded its programs, services, . • operating model • Established partnerships ! r r • regional organizations California• Attained legal compliance with regulatory bodies, including the Internal Revenue Service (IRS), • of •' the California
Department of Tax and Free Administration (CDTFA)
• Implemented policies,and protocols t• centralize r • maintain legal r • tax compliance, payroll entry s • record keeping, human resources/risk management documents, financial management and tracking, etc. • Undertook r comprehensive rebranding initiative to streamline and modernize all print and digital marketing assets for : cohesive s • impactful • r' • presence To build upon these efforts, the agreement calls for:
• A Business Plan for Stay Gallery
• Updated Organization Bylaws
o Include new name of the Organization, Stay Arts, as approved by the IRS
STAY ARTS COOPERATIVE FUNDING AGREEMENT
JANUARY 23, 2024
PAGE 3
• Update Section 3.2 Tax -Exempt Status section to be consistent with th4 services provided by Stay Arts
• Provide a more detailed reporting structure, term limits, and roles U1, responsibilities of the Stay Arts Board and the Executive Director A 5-Year Strategic Fundraising Campaign Plan for Stay Gallery One Year of Financial Audits
Stay Arts has stated that they have already began working on these documents and can provide them to the City by October 2024.
Additionally, the agreement calls for measurable outcomes, specifically:
• Additional board members on the Stay Arts Board who have experience in fundraising and non-profit financial management
• Fundraising activities that generate at least 10% of Stay Arts 2024 Operating Budget by October 2024
• A documented increase in grant submissions
If the City Council approves the agreement, City staff will provide the monthly payments on the 1 st of every month to Stay Arts.
CITY COUNCIL PRIORITIES
Quality of Life, Safety & Infrastructure
FISCAL IMPACT
Approval of the recommended action will result in an appropriation of $39,372 from the Special Revenue Fund — Arts in Public Places Account, Account No. 47-1-3068-0680.
There is sufficient fund balance for the recommended actions.
ATTACHMENTS
Attachment A — Cooperative Funding Agreement
'COOPERATIVE FUNDING AGREEMENT BY AND BETWEEN
THE CITY OF DOWNEY AND STAY ARTS
1. PARTIES AND DATE.
This Agreement is made and entered into this _ day of January 2024 by and between the City of Downey, a California municipal corporation and charter city with its principal place of business at 11111 Brookshire Avenue, Downey California 90241 ("City") and Stay Arts, a California nonprofit public benefit corporation, with its principal place of business at 11140 Downey Avenue, Downey, CA 90241. City and Stay Arts are sometimes individually referred to as "Party" and collectively as "Parties."
2. RECITALS.
2.1 Purpose:
A. In order to further the City Council's commitment to the arts and to provide a community venue for public art exhibitions, special events, and educational programming for youth, families and residents in Downey, the City requires an organization to provide such services; and
B. Since 2012, Stay Arts has been utilizing a commercial space located at 11140 Downey Avenue, Downey (the "Facility") wherein the Facility is being operated as an art gallery for the display of public art and the performance of related services. Stay Arts intends to continue leasing the Facility for this purpose during the period of January 1, 2024 through December 31, 2024, and
C. The City desires to provide funding to Stay Arts for this purpose to operate Facility to help serve the City's objective of promoting art in the community and to make the Facility available for use by civic, charitable and community groups which serve Downey residents; and
" D. In exchange for City funding, "Stay Arts desires to perform and assume responsibility for operating a public art gallery in the Facility and providing certain services and programs as required by City on the terms and conditions set forth in this Agreement.
Stay Arts represents that it has demonstrated experience in providing art gallery services to public clients, and is familiar with the objectives of the City.
2.2 Project.
-Stay Arts shall render such services for the operation of Facility for the operation of a public art gallery and for the provision of art and educational programs as set forth in this Agreement ("Project").
ATTACHMENT A
i?
3. TERMS.
3.1 Scope of Services and Term.
3.1.1 General Scope of Services. Stay Arts 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.
3.12 Term. The term of this Agreement shall be from January 1, 2024 to December 31, 2024, unless earlier terminated as provided herein. Stay Arts shall complete the Services within the term of this Agreement, and shall meet any other established schedules and deadlines.
3.2 Responsibilities of STAY ARTS.
3.2.1 Control and Payment of Subordinates: Independent Contractor. The Services shall be performed by Stay Arts or under its supervision. Stay Arts will determine the means, methods and details of performing the Services subject to the requirements of this Agreement. Stay Arts shall be on an independent contractor basis and not as an employee, joint venturer, partner or agent. Any additional personnel performing the Services under this Agreement on behalf of Stay Arts shall also not be employees of City and shall at all times be under Stay Arts' exclusive direction and control. Stay Arts 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. Stay Arts 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.
3.2.2 Schedule of Services. Stay Arts shall perform the Services expeditiously, within the term of this Agreement, and as determined by the parties. Stay Arts represents that it has the professional and technical personnel required to perform the Services in conformance with such conditions. Upon request of City, Stay Arts shall provide a more detailed schedule of anticipated performance to meet the City's deadlines.
3.2.3 Conformance to Applicable Requirements. All services performed and work prepared by Stay Arts shall be subject to the approval of City.
3.2.4 Substitution of Key 'Personnel. Stay Arts has represented to City that certain key personnel will perform and coordinate the Services under this Agreement. Should one or more of such personnel become unavailable, Stay Arts may substitute other personnel
of at least equal competence upon written approval of City. In the event that City and Stay Arts cannot agree as to the substitution of key personnel, City shall be entitled to terminate this Agreement for cause. As discussed below, any personnel who fail or refuse to perform the `Services in a manner acceptable to the City, or who are determined by the City to be uncooperative, incompetent, a threat to the adequate or timely completion of the Services or a threat to the safety of persons or property, shall be promptly removed from the Project by Stay Arts at the request of the City.
3.2.5 City's Representative. The City hereby designates the Assistant City Manager, or his or her designee, to act as its representative for the performance of this Agreement ("City's Representative"). City's Representative shall have the power to act on behalf of the City for all purposes under this Contract. Stay Arts shall not accept direction or orders from any person other than the City's Representative or his or her designee.
3.2.6 Stay Arts' Representative. Stay Arts hereby designates the Stay Arts Executive Director, or his or her designee, to act as its representative for the performance of this Agreement ("Stay Arts' Representative"). Stay Arts' Representative shall have full authority to represent and >act on behalf of the Stay Arts for all purposes under this Agreement. Stay Arts' Representative shall supervise and direct the Services, using his best skill and attention, and shall be responsible for all means, methods, techniques, sequences and procedures and for the satisfactory coordination of all portions of the Services under this Agreement.
3.2.7 Coordination of Services. Stay Arts agrees to work closely with City staff in the performance of Services and shall be available to City's staff, consultants and other staff at all reasonable times. Stay Arts shall prepare and submit to the Assistant City Manager reports in accordance with Exhibit "C"
3.2.8 Standard of Care; Performance of Employees. Stay Arts shall perform all Services under this Agreement in a skillful and competent manner, consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. Stay Arts represents and maintains that it is skilled in the professional calling necessary to perform the Services. Stay Arts warrants that all employees and subcontractors shall have sufficient skill and experience to perform the Services assigned to them. Finally, Stay Arts represents that it its employees and subcontractors have all licenses; permits, qualifications and approvals of whatever nature that are legally required to perform the Services, including a City Business License, and that such licenses and approvals shall be maintained throughout the term of this Agreement. As provided for in the indemnification provisions of this Agreement, Stay Arts shall perform, at its own cost and expense and without reimbursement from the City,any services necessary to correct errors or omissions which are caused by Stay Arts' failure to comply with the standard of care provided for herein. Any employee of Stay Arts or its subcontractors 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 Stay Arts and shall not be re-employed to perform any of the Services or to work on the Project.
3.2.9 Laws and Regulations. Stay Arts shall keep itself fully informed of and in compliance with all applicable local, state and federallaws rules and regulations in force at the time the Services are performed by Stay Arts and in any manner affecting the performance of the Project or the Services, including all applicable Cal/OSHA requirements, and shall give all notices required by law. Stay Arts shall be liable for all violations of such laws and regulations in connection with Services. If Stay Arts performs any work knowing it to be contrary to such laws, rules and regulations and without giving written notice to the City, Stay Arts shall be solely responsible for all costs arising therefrom. Stay Arts 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. Stay Arts' violation of such laws, rules and regulations shall also constitute a material breach of this Agreement.
3.2.10 Intentionally left blank
3.2.11 Insurance.
3.2.11.1 Time for Compliance. Stay Arts shall not commence the Services under this Agreement until it has provided evidence satisfactory to the City that it has secured all insurance required under this section. In addition, Stay Arts shall not allow any 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 this section.
3.2.11.2 Minimum Requirements. Stay Arts shall, at its expense, procure and maintain for the duration of the Agreement insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the Agreement by Stay Arts, its agents, representatives, employees or subcontractors. Stay Arts 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:
(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. Stay Arts 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:
3..11.3 Insurance Endorsements. The insurance policies shall contain the following provisions, or Stay Arts 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 Stay Arts, 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 Stay Arts' scheduled underlying coverage. Any insurance or self-insurance maintained by the City, its directors, officials, officers, employees; agents and volunteers shall be excess of Stay Arts' 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 Stay Arts or for which Stay Arts 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 Stay Arts' scheduled underlying coverage. Any insurance or self-insurance maintained by the City, its directors, officials, officers, employees, agents and volunteers shall be excess of Stay Arts' insurance and shall not be called upon to contribute with it in any way. (C) Workers' Compensation and Employers 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 Stay Arts.
(D) All Coverages. 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.
3.211.4 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.
3.2.11.5 Deductibles and Self -Insurance Retentions. Any deductibles or self -insured retentions must be declared to and approved by the City. Stay Arts shall guarantee that, at the option of the City, either. (1) the insurer shall reduce or eliminate such deductibles or self -insured retentions as respects the City, its directors, officials, officers, employees, agents and volunteers; or (2) Stay Arts shall procure 'a bond guaranteeing payment of losses and related investigation costs, claims and administrative and defense expenses.
3.2.11.6 Acceptability of Insurers. Insurance is to be placed with insurers with a current AM. Bestsrating no less than A Vil, licensed to do business in California, and satisfactory to the City.
3.211.7 Verification of Coverage. Stay Arts 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 City reserves the right to require complete, certified copies of all required insurance policies, at any time.
3.2.12 Safety. Stay Arts shall execute and maintain its work so as to avoid injury or damage to any person or property. In carrying out its Services, Stay Arts 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 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.
3.3 Funding Amount and Schedule.
3.3.1 FundingyCity. City shall provide funding to Stay Arts for the purposes described in this Agreement and in the amounts as set forth in Exhibit"B" attached hereto and
incorporated herein by reference. The total funding for the 'I -year term of this Agreement shall not exceed Thirty -Nine Thousand Three Hundred Seventy -Two Dollars and 001100- cents ($39372.00).
3.3.2 Reimbursement for Expenses. Stay Arts shall not be reimbursed for any expenses unless authorized in writing by City.
3.4 Accounting Records.
3.4.1 Maintenance and Inspection. Stay Arts shall maintain complete and accurate records with respect to all costs and expenses incurred under this Agreement for which City funds are used. All such records shall be clearly identifiable. Stay Arts 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. Stay Arts shall allow inspection of all work, data, documents, proceedings; and activities related to the Agreement for a period of four (4) years from the date of final payment under this Agreement.
3.5 General Provisions.
3.5.1 Termination of Agreement.
3.5.1.1 Grounds for Termination City may, by written notice to Stay Arts, 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 Stay Arts of such termination, and specifying the effective date thereof, at least seven (7) days before the effective date of such termination.
Stay Arts shall receive funds only for expenditures incurred before notice of termination, and Stay Arts shall be entitled to no further funding. The City shall within fifteen (15) calendar days following termination pay Stay Arts for such expenditures incurred by Stay Arts up to the date of termination, in accordance with the payment provisions of this Agreement.
In addition to the 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 any other entity without the prior written consent of the other party;
• Suspension of the Projector Stay Arts' Services by the City for more than ninety (90) calendar days, consecutive or in the aggregate, without good cause; • 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 Stay Arts to provide all finished or unfinished Documents and Data and other information of any kind prepared by Stay Arts in connection with the performance of Services under this Agreement. Stay Arts 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 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:
Stay Arts:
Stay Arts
11`140 Downey Avenue
Downey, CA 90241
Phone: (562) 477-5920
Attn: Executive Director
City•
City of Downey
11111 Brookshire Avenue
Downey, California 90241
Phone: (562) 904-7168
Attn: Assistant City Manager
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 Confidentiality
Documents & Data; Licensing 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 Stay Arts under this Agreement ("Documents & Data"). Stay Arts 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. Stay Arts represents and warrants that Stay Arts has the legal right to license any and all Documents & Data. Stay Arts makes no such representation and warranty in regard to 'Documents & Data which were prepared by design professionals other than Stay Arts or provided to Stay Arts by the City. City shall not be limited in any way in its use of the Documents and Data at any time, provided that any such use not within the purposes intended by this Agreement shall be at City's sole risk.
3.5.4 Cooperation: Further' Acts. The Parties shall fully cooperate with one another, and shall take any additional acts or sign any additional documents as may be necessary, appropriate or convenient to attain the purposes of this Agreement.
3.5.5 Attorney's Fees. In the event of any litigation, whether in a court of law, administrative hearing, arbitration, or otherwise, arising from or related to this Agreement of the services provided under this Agreement, the prevailing party shall be entitled to recover from the non -prevailing party all reasonable costs incurred, including staff time, court costs, attorneys' fees and all other related expenses in such litigation.
3.5.6 Indemnification. Stay Arts shall defend (with counsel acceptable to City), indemnify and hold the City, its officials, officers, employees, volunteers and agents free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury, in law or equity, to property or persons, including wrongful death, in any manner arising out of or incident to any alleged negligent acts, errors, omissions or willful misconduct of Stay Arts; its officials; officers, employees, agents, and contractors arising out of or in connection with the performance of the Services, the Project or this Agreement, including without limitation the payment of all consequential damages and attorneys' fees and other related costs and expenses. Stay Arts shall defend, at Stay Arts ' own cost, expense and risk, any and all such aforesaid suits, actions or other legal proceedings of every kind that may be brought or instituted against City, its directors, officials, officers, employees, agents or volunteers. Stay Arts shall; pay and satisfy any judgment, award or decree that may be rendered against City or its directors, officials, officers, employees, agents or volunteers, in
any such suit, action or other legal proceeding. Stay Arts shall reimburse City and its directors, officials, officers, employees, agents and/or volunteers, for any and all legal expenses and costs incurred by each of them in connection therewith or in enforcing the indemnity herein provided. Stay Arts ' obligation to indemnify shall not be restricted to insurance proceeds, if any, received by the City, its directors, officials officers, employees, and agents or volunteers.
Stay Arts shall not be obligated to defend; indemnify or hold the City harmless in any manner whatsoever for any claims or liability arising solely out of the City's own negligent acts, errors or omissions or willful misconduct.
3.5.7 Entire Agreement. 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 Governing 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 Successors and Assigns. This Agreement shall be binding on the successors and assigns of the parties.
3.5.11 Assignment 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.
3.5.12 Construction; References; Captions. Since the Parties- or their agents have participated fully in the; preparation of this Agreement, the language of this Agreement 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 Stay Arts include all personnel, employees, agents, and subcontractors of Stay, Arts, 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 easeof reference only, and do not define, limit, augment, or describe the scope, content, or intent of this Agreement.
3.5.13 Amendment; Modification.` No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties.
3.5.14 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:
3.5.15 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.
3.5.16 Prohibited Interests. Stay Arts 'maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Stay Arts, to solicit or secure this Agreement. Further, Stay Arts 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 Stay Arts, 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 present or anticipated material benefit arising therefrom.
3.5.17 Equal Opportunity Employment._ Stay Arts 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 to initial employment, upgrading, demotion, transfer, recruitmentor recruitment advertising, layoff or termination.
3.5.18 Labor Certification. By its signature hereunder, Stay Arts 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.
3.5.19 Authority to Enter Agreement. Stay Arts 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.;
3.5.20 Counterparts. This Agreement may be executed in counterparts, each of which shall constitute one and the same instrument.
3.5.21 Effect of Conflict.
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 Subcontracting.
3.6.1 Prior ApprovalRequired. Stay Arts shall not subcontract any portion of the 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 all provisions stipulated in this Agreement.
CITY OF DO NEY, STAY ARTS,
a California municipal corporation and a California Nonprofit Public Benefit charter city Corporation
;By. ,
Roger Bradley, City Manager Gabriel Enamorado
Its: Executive Director
Attest: Attest:
City Clerk
Approved as to Form:
Secretary
Approved as to Form:
1411z %N -
Legal C nsel
EXHIBIT "A"
SERVICES
Stay Arts 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.
Il. Public Art Gallery & Exhibitions
a. Posted open hours for the public at a minimum of 12 hours per week for the duration of the exhibition.
111. Special Events, such as
a. Small Plays'
b. Comedy Nights
c. Live Music
d. Poetry Readings
e. Spoken Word
f. Lecture Series
IV. Educational Programming (Classes and Workshops) such as:
a. Painting
b. Drawing
c. Photography
d. Videography
e. Sculpture
f. Media Arts
V. Art exhibitions, special events and classes/workshops will be programmed directly by Stay Arts or through a partner organization, such as the Downey Arts Coalition, the Downey Conservancy, the Downey Historical Society, Downey Rose Float Association, Downey Unified School District and the Downey Foundation for Educational Opportunities. Stay Arts will manage the calendar and be available to consult and support the events, though partner organizations will be responsible for the producing and staffing requirements.
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 residentsthrough their work as verified by Stay Arts) for special events. Community Groups that desire to use the Facility will be required to work directly with Stay Arts staff in scheduling and programming their special event(s). All services provided directly by Stay Arts will be conducted inside the Facility. Stay Arts will be responsible for obtaining a special event permit from the City when applicable.
a. The Facility shall not be rented out as a nightclub, dance hall, bar or lounge 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 ` ) as long as the'function(s) comply with the approved provisions of Resolution No 14-2864 - PLN-13-0221 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. Stay Arts shall adopt policies and procedures for the rental of the Facility to Community Groups and shall establish rates for such rental, within 60 days of 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 interpretation of any provision of this Exhibit "A" shall be final
EXHIBIT
111311
FUNDING
City shall provide funding to Stay Arts to be used solely towards the ;monthly lease amount stated in the Commercial Lease Agreement between Stay Arts and the Facility Owner, as provided below.
Stay Arts shall lease the Facility for a 12-month term commencing January 1, 2024 and expiring December 31, 2024. City shall provide funding to Stay Arts in the monthly amount of $3,281 to be used solely towards lease payments to the landlord, in accordance with the monthly base rent of $3,28`1, for a total annual funding amount of $39,372.
The City will provide the funds to Stay Arts on the 1 st of every month.
EXHIBIT 'V$
REPORTING AND MEASURABLE
OUTCOMES
Quarterly Reports:
I. On March 31, June 30,'September 30, and December 31, Stay Arts shall prepare and submit to the Assistant City Manager a written report which provides an update of Stay Gallery's performance of the services in the preceding quarter. The quarterly reports shall include:
a. Open Hours
i. List of days and hours open each month
b. Events, Activities, Programs and Services at Stay Gallery List, description and frequency
ii. Income derived
iii. Program costs
iv. Daily attendance numbers
V. Digital List of program participants/registrants (name, age, ZIP, program attended)
c. Donors, Members and Fundraising
i. Ongoing donations
ii. Membership fees collected
iii. Fees collected from partner organizations
iv. Fundraising campaigns
Bi-Annual Financial Statements:
1. On July 15t" and December 31 st Stay Arts will provide the Assistant City Manager their organization's bi-annual Financial Statements of the activities in the preceding six-month time period. The quarterly reports will include:
a: Revenue, which may include, but is not limited to:
i. Grants
ii. Donations
iii. Membership Fees
iv. Admission Fees
v. Additional Fundraising Activities
vi. City Funding
b. Expenditures, which may include, but is not limited to:
i. Wages and Benefits Staffing listed by position
ii Supplies
iii. Operating' Costs
iv. Lease Payment'
v. Contractor Costs
vi. Advertising Costs
vii.Gross and Net Profit
Plans and Documents
By October 2024, the following items shall be provided to the Assistant City Manager:
• A Business Plan for Stay Gallery
• Updated Organization ;Bylaws
• Include new name of the Organization, Stay Arts, as approved by the IRS,
o Update Section 3.2 Tax -Exempt Status section to be consistent with the services provided by Stay Arts
o Provide a more detailed reporting structure, term limits, and ~roles of responsibilities of the Stay Arts Beard and the Executive Director • A 5-Year Strategic Fundraising Campaign Plan for Stay Gallery • One Year of Financial Audits
Measurable Outcomes
• Additional board members on the Stay Arts Board who have experience in fundraising and non-profit financial management
• Fundraising activities that generate at least 10°f of Stay Arts 2024 Operating Budget by October 2024
• A documented increase in grant submissions