1 GENERAL COOPERATIVE PROGRAMMING AGREEMENT
Between
CITY OF FONTANA and FONTANA ART ASSOCIATION
Tracking Number MS-xxx-CS-23
This Agreement (“Agreement”) is made and entered into this 25_ day of July by and between the City of Fontana, a municipal corporation, hereinafter referred to as the “CITY” and the Fontana Art Association, a non -profit organization, hereinafter referred to as the “ASSOCIATION”. The CITY and the ASSOCIATION are sometimes referred to in this Agreement, each individually, as a “Party”, or collectively, as the “Parties”.
WHEREAS, the parties hereto desire to make available to the people within t he City of Fontana the cultural art programs, classes, event, services and facilities of the CITY in an economical and efficient manner; and
WHEREAS, the parties hereto agree that sound cultural art planning and programming are enhanced by cooperation between the CITY and the ASSOCIATION; NOW THEREFORE, the parties hereto agree as follows:
1. The Program: The cultural art programs, classes, events, and services (collectively, the “Joint Program”) established pursuant hereto shall be coordinated jointly by the Community Services Department of the CITY and the Board of the ASSOCIATION.
2. The Term:
A. The term of this Agreement shall commence as of July 25, 2023 (“Commencement Date”), except as to any submission obligations for which an earlier date is herein specified and shall continue for a period of one (1) year unless earlier terminated as provided herein (“Term”).
B. An “Operating Year” shall be each 12 -month period commencing on the Commencement Date.
C. Renewal Terms: ASSOCIATION and CITY may renew the Term of this Agreement for up to two (2) additional one ( 2) year periods upon providing notice of renewal to ASSOCIATION. The Parties shall act in good faith to determine mutually agreeable terms 90 days prior to Agreement commencement date or renewal commencement date to maintain and promote the successful operation of the Facility.
3. Termination: This Agreement may be terminated by either party by providing 90 days written notice to the other party.
A. Upon termination or expiration of this Agreement, the obligations of the Parties shall cease except for such liability or obligations deemed necessar y for the Joint Program that accrued or were to be performed prior to such termination or expiration. These include Joint Program instructor contracts, instructor payments and utilities.
2 4. Modification: No supplement, modification , or amendment of this Ag reement shall be binding unless executed in writing, approved by the City Manager or designee of the CITY and the Board of the ASSOCIATION, and signed by both parties.
A. The CITY and ASSOCIATION shall provide Agreement supplement, modification, or amendment requests by providing 90 days written notice to the other party.
5. Budget: Budget funds are to be evaluated by CITY and are subject to annual budgetary appropriation by the City Council of the CITY. The CITY has the right to adjust support funding as necessary based upon fund availability, community interest and needs.
6. Mutual Responsibilities:
A. Approval of the Joint Program between the CITY and the ASSOCIATION shall be by mutual agreement of the CITY and ASSOCIATION.
B. The CITY and ASSOCIATION shall each be responsible for the ongoing maintenance and upkeep of their respective facilities used for the Joint Program.
7. Responsibility of the CITY: The responsibility of the CITY shall be as follows:
A. Bear the financial cost of community services, recreation , and cultural programs which are established by the CITY as part of the Joint Program, subject to annual budgetary appropriation by the City Council of the CITY. All equipment and furniture purchased as a part of the Joint Program shall remain property of the City of Fontana.
i. Authorized purchases shall consist of item s for enhancement of joint cultural programs. Purchase examples could include marketing efforts, promotional material and general gallery support items to include but not limited to the following: Walker hanging items, printing of Joint Program materials a nd gallery name plaques. Items purchased shall not include any technology or electronic items.
ii. All purchases specific to associated Joint Program activities related to the Joint Program require prior approval from the CITY. Requests must be submitted in writing to the CITY through the Pre-Authorization form.
The CITY will authorize requests based on community interests and available funding.
iii. Review quarterly inventory statements of the ASSOCIATION reflecting CITY purchased equipment and supplies.
B. Review monthly performance evaluations submitted by ASSOCIATION to determine if responsibilities of the ASSOCIATION are met as outlined in Agreement.
3 C. Directly pay utility bills for the ASSOCIATION studio and gallery (located at 8536 Sierra Ave, “Facility ”) used for Joint Program activities until the termination of the Agreement or at such time the ASSOCIATION can pay utility costs, whichever comes first, subject to the annual budgetary appropriation by the City Council of the CITY, prior approval of the City Manager of the CITY or his designee.
D. Make available for educational purposes on a second priority basis, CITY Art Depot Gallery (located at 16822 Spring Street, “Art Depot Gallery”) to the ASSOCIATION at such times when it is not required for city p urposes and to maintain the Art Depo t Gallery properly and safely . Availability is to be determined by the City Manager of the CITY or his designee.
E. No fees shall be charged to the ASSOCIATION for use of CITY recreation facilities where CITY facilities are open for normal operating hours and additional CITY supervision is not required.
F. Repair, cause to be repaired, or reimburse the ASSOCIATION for the cost of repairing damage to the Facility during period of use by the CITY, except where such damage may be attributed to ordinary or reasonable use of the Facility.
G. Enter into Independent Contractor Agreement for Joint Program instructors (“Independent Contractor”) with individuals selected by the ASSOCIATION and approved by the CITY.
H. The CITY shall collect all fees associated with Joint Programs offered at Facility.
I. Upon successful completion of each Joint Program related to the Joint Program Agreement conducted at the Facility, pay 70 percent of all fees collected for said program directly to the Independent Contractor responsible for the instruction of the Joint Program and 20 percent to the ASSOCIATION and 10 percent to remain with the CITY as outlined in the individual Independent Contracto r Agreement(s), subject to the annual budgetary appropriation of the City Council of the CITY, and not to exceed total revenue generated from Joint Program to reflect the Joint Program Agreement annually without prior approval of the City Manager of the CITY or his designee.
J. CITY will, when possible, reserve the Facility at least 30 days in advance of the scheduled use.
K. Cooperate with the ASSOCIATION in the distribution of informational materials about ASSOCIATION programs.
L. Designate the Art Depot Gallery as the alternate program site for persons with disabilities that cannot be accommodated by the Facility.
4 M. Audit financial statements of the ASSOCIATION as needed to determine whether the ASSOCIATION can pay utility bills related to the Facility.
Determination of the ASSOCIATION’s ability to bear the financial responsibility for the utilities of the Facility will be based upon revenues exceeding liabilities in an amount equal to or greater than actual monthly utility cost.
8. Responsibility of the ASSOCIATION: The responsibility of the ASSOCIATION shall be as follows:
A. Provide the CITY Pre-Authorization form purchase requests 15 calendar days prior to purchase need by date for CITY review. Authorized purchases are subject to the annual budgetary appropriation by the City Council of the CITY.
All Pre-Authorization requests are required to be approved by the CI TY prior to purchase.
i. The CITY will review Pre -Authorization requests based on community interest and available funding.
a. CITY will fulfill pre-authorized purchase request s for administration and supply costs specific to associated Joint Program activities related to the Joint Program Agreement, subject to the annual budgetary appropriation by th e City Council of the CITY.
i. Authorized purchases are limited to items geared
towards the enhancement of joint cultural programs.
Purchase examples could include marketing efforts,
promotional material and gallery support items. General support items include but not limited to the following:
Walker hanging items, printing of Joint Program
materials, gallery name plaques.
ii. Provide the CITY with quarterly inventory statements of the ASSOCIATION reflecting CITY purchased equipment and supplies.
B. Provide the CITY with quarterly financial statements of the ASSOCIATION reflecting current revenues and liabilities.
C. Provide the CITY with a monthly written performance evaluation summarizing activities and programs offered the previous calendar month.
D. Offer enough joint classes related to the Joint Program to result in revenue of no less than $5,000 per fiscal year required annually with a 5% increase per succeeding year of the Joint Program Agreement.
5 E. Operate and supervise facility during all scheduled joint classes as well as during publicized events. Hours will vary with a minimum number of open public hours being 12 hours per week. ASSOCIATION is required to continue to seek new and creative art opportunities with the intent of expanding regular operational hours.
F. Make available for organized cultural art programming purpose on a second priority basis, the Facility to CITY at times it is not required for ASSOCIATION purposes and maintain such facilities properly and safely. Availability is to be determ ined by the ASSOCIATION Programming Board Chair (or designee) and approved by the Board of the ASSOCIATION.
G. No fees shall be charged to the CITY for use of the Facility where Facility is open during normal operating hours and additional ASSOCIATION supervision is not required. Modification of operating hours to support Joint Program permissible upon agreement between CITY and ASSOCIATION.
H. Cooperate with the CITY in the distribution of informational materials about community services, recreation, and cultural programs.
I. Repair, cause to be repaired , or reimburse the CITY for the cost of repairing damage to the Facility during period of use by the ASSOCIATION, except where such damage may be attributed to ordinary or reasonable use of the Facility.
J. ASSOCIATION will, when possible, reserve CITY facilities at least 30 days in advance of its scheduled use.
9. Liability: Except for liability occurring as a result of acts or omissions of the ASSOCIATION, and insofar as it is legally authorized, the CITY shall indemnify, defend, and hold harmless and free from liability the ASSOCIATION and any of its officers, agents, volunteers, or employees from all damages, costs or expenses which may arise by reason of liability imposed by law because of damage to property or injury to or dea th of persons received or suffered by reason of use of facilities and appurtenances owned by and under control of the CITY pursuant to this Agreement. Except for liability occurring as a result of acts or omissions of the CITY, and insofar as it is legally authorized, the ASSOCIATION shall indemnify, defend and hold harmless and free from liability the CITY and any of its officers, officials, directors, agents and employees from all damages, costs , or expenses which may arise by reason of liability imposed by law because of damage to property or injury to or death of persons received or suffered by reason of use of facilities and appurtenances owned by and under control of the ASSOCIATION pursuant to this Agreement.
6 10. Day(s): All references in this Agreement to “days” shall mean one calendar day.
11. Performance Evaluation: All references in this Agreement to “performance evaluation” shall mean a monthly summary of concluded activities and attendance during activities at the Facility related to the Joint Program.
12. Utilities: All references in this Agreement to “utility” or “utilities” shall mean gas, electricity, water, trash, and sewer.
13. Classes: All references in this Agreement to “class” or “classes” shall mean programs offered for the public registration held at times and dates consistent with CITY Independent Contractor policies. As used here, “CITY Independent Contractor Policies” shall mean and refers to the CITY Independent Contractor Policy, attached hereto as Exhibit “A”, and incorporated by reference.
14. Activities: All references in this Agreement to “activity” or “activities” shall mean cultural art programs, classes, events, and services that take place as part of the Joint Program.
15. Monthly: All references in this Agreement to “monthly” shall mean due on the 15th day of each calendar month with the first quarter to conclude 15 days from the commencement of this Agreement.
16. Quarterly: All references in this Agreement to “quarterly” shall mean every three calendar months with the first quarter to conclude three months from the commencement of this Agreement.
17. Fiscal Year: All references in this Agreement to “fiscal year” shall mean the budgetary fiscal year adopted by the CITY (July 1 through June 30).
18. Hours of Operation: All references to “hours of operation” shall mean the hours adopted by the ASSOCIATION the Facility is open for business, attached hereto Exhibit “B”, and incorporated by reference. These hours shall be posted clearly in the front window or on the entrance door to the Facility. If an hours of operation change is necessary, the ASSOCIATION is to provide written notice 30 days prior to the CITY for approval.
19. Attorney’s Fees and Costs: If any legal actions or other proceedings is brought for the enforcement of this Agreement or because of a dispute or an alleged breach, default or misinterpretation in connection with any provisions of the Agreement, the successful or prevailing party shall be entitled to recover reasonable attorney’s fees and other costs incurred in that action or proceeding in addition to any other relief to which may be entitled and agreed to by a court of reasonable jurisdiction.
IN WITNESS THEREOF, the parties have hereto affixed their names by their respective offices thereunto duly authorized.
7 CITY OF FONTANA FONTANA ART ASSOCIATION A municipal corporation, A non-profit organization,
________________________ __________________________ Matthew C. Ballantyne Rebecca Peck City Manager President; Fontana Art Association
Exhibit “A”
City of Fontana Community Services Department
8 Independent Contract Instructor Policy
[Attached]
Exhibit “B”
Exhibition Hours of Operation
9 Hours are subject to change depending on exhibits, classes and community needs and interest.
Monday Closed
Tuesday Closed
Wednesday 1:00pm – 5:00pm
Thursday 1:00pm – 5:00pm
Friday 1:00pm – 5:00pm
Saturday 11:00am – 3:00pm
Sunday Closed