October 4, 2022, Item #6
DATE:
TO:
FROM:
CONTACT:
SUBJECT:
Summary:
AGENDA REPORT CityofPoway
October 4, 2022
Honorable Mayor and Members of the City Council
Audrey Denham, Director of Community Services ~
Audrey Denham, Director of Community Services
(858) 668-4584 or [email protected]
CITY COUNCIL
Approval of Joint-Use Agreement between the City of Poway and Poway Unified School District for the Poway Center for the Performing Arts On May 22, 1990, the City entered into a Joint-Use Agreement (1990 Agreement) with the Poway Unified School District (PUSD) for use of the Poway Center for the Performing Arts (PCPA). Since that time, facility use, maintenance responsibilities, associated costs, and processes related to the facilitation of the Agreement have changed. The City and PUSD are partnering to support the arts and ensure the best experience for PUSD students. Both parties have cooperatively renegotiated a new Joint Use Agreement (Agreement) to reflect operational changes, maintain the facility, and serve the students of PUSD.
Recommended Action:
It is recommended the City Council approve the Joint Use Agreement between the City of Poway and the Poway Unified School District for the Poway Center for the Performing Arts and authorize the City Manager to execute all necessary documents associated with the agreement.
Discussion:
The PCPA was established in 1990 as a municipal and educational facility for the presentation of performing arts, educational programming, and the display of fine arts. The facility was constructed by the City on land leased from PUSD and is subject to the 1990 Agreement that sets forth the terms by which the City, the Poway Redevelopment Agency, and PUSD share in its use, maintenance, and operating costs. After the dissolution of the Redevelopment Agency in 2012, the City became the Successor Agency to the former Redevelopment Agency, leaving just the City and PUSD as the parties to the 1990 Agreement. The 1990 Agreement has been modified several times through the use of side letters or amendments.
During a workshop in April 2021 City Council provided direction on several critical decision points related to Use and Use Policy, Cost Recovery, Agreements with User Groups, and Fund raising. Council 1 of 18
October 4, 2022, Item #6
directed
staff
to
perform
the
following
tasks
:
1. Conduct
a feasibility
study
to
determine
the
possibility
of
an
endowment
fundraising campaign
that
would
help
support
PCPA
operations
and
maintenance
.
2. Oversee
a complete
operational
analysis
and
fee
study
to
review
all
aspects
of
PCPA
operations
and
recommend
operational
and
fee
changes
to
improve
efficiency
, decrease
the
operating
subsidy,
and
generate
additional
revenue
for
the
facility.
3. Renegotiate
the
1990
Agreement
with
PUSD
to
reflect
current
operations
and
needs.
4. Request
proposals
for
a
professional
mainstage
presenter
with
an
agreement
that
is
more
favorable
to
the
City.
City
and
PUSD
staff
met
multiple
times
to
discuss
, draft,
and
review
a proposed
Agreement
that
would
be
beneficial
to
both
parties
. The
goals
of
the
Agreement
included
increasing
PUSD's
use
of
the
facility
and
revising
the
cost-sharing
formula,
as
well
as
updating
operating
procedures
and
other
elements
of
the
Agreement.
The
35%
cost
share
used
in
the
terms
of
the
Agreement
outlined
below
is
reflective
of
the
percentage
of
time
PUSD
is
using
the
PCPA
throughout
the
year.
When
the
new
Agreement
is
executed,
it
will
supersede
the
existing
1990
Agreement,
and
subsequent
side
letters
and
amendments.
The
PUSD
Board
of
Education
will
discuss
and
consider
the
Agreement
at the
October
13,
2022,
PUSD
Board
meeting.
Changes
from
the
previous
1990
Agreement
include
the
following:
1. The
term
of
the
agreement
is
25 years.
The
agreement
may
be
cancelled
by
either
party
with
not
less
than
one
full
PUSD
calendar
year's
not
ice,
ensuring
both
parties
have
ample
time
to
plan
and
budget
for
the
change
in
use
.
2. Beginning
with
the
current
fiscal
year
, which
began
on
July
1,
2022,
PUSD
will
pay
35%
of
the
PCPA
operating
budget
and
capital
projects,
excluding
electricity
costs
, auto
and
cell
phone
allowance
for
the
manager,
concession
operations,
ticket
printing,
and
ticket
handling.
PUSD's
portion
of
cost-sharing
includes
, but
is
not
limited
to,
labor,
gas,
utilities,
contractual
services
,
janitorial
services,
landscape
maintenance
, equ
ipment
maintenance
, repair,
and
replacement,
building
repair
and
maintenance,
and
ope
rating
supplies.
3. PUSD
pays
100%
of
the
cost
for
building
repair
and
maintenance,
telephone
services
, and
custodial
services
for
the
rehearsal
space,
which
is
used
as
the
drama
room
by
Poway
High
School.
4. The
annual
increase
in
total
labor,
operations,
and
maintenance
costs
reimbursed
by
PUSD,
excluding
capital
projects,
will
not
exceed
7.5%
each
year.
If
cost increases
exceed
7.5%
the
City
and
PUSD
will
discuss
increases
in
good
faith
and
not
unreasonably
withhold
approval
for
justified
increases.
5. The
City
and
PUSD
will
review
use
and
cost
sharing
every
3 years
or
as
requested
by
either
party
and
adjust
as
necessary.
6. PUSD
will
pay
35%
of
capital
projects
. The
City
and
PUSD
will
meet
each
year
between
October
and
December
to
review
potential
capital
projects
and
their
impact
on
budget
deve
lopment
and
shall
tentatively
agree
on
which
capital
projects
will
commence
in
the
following
fiscal
year
. In
March,
the
parties
will
agree
and
finalize
the
capital
projects
list
for
the
next
fiscal
year.
7. The
City
handles
the
scheduling
of
all
rental
clients.
PUSD
has
priority
over
rental
clients
until
dates
have
been
confirmed
with
rental
clients
. Once
dates
are
confirmed,
PUSD
cannot
bump
rental
clients.
Staff
is
confident
the
City
can
meet
the
needs
of
rental
clients
while
adhering
to
the
terms
of
the
Agreement.
8. PUSD
use
of
the
PCPA
will
be
expanded
from
77 days
to
88 days
for
rehearsals,
performances,
and
events
. One
day
is
defined
as
any
PUSD
use
regardless
of
the
length
of
time
the
PCPA
is
2 of
18 October 4, 2022, Item #6
used
. Use
of
the
PCPA
beyond
88 days
is
permitted
if the
PCPA
is
available
and
PUSD
reimburses
the
City
for
additional
days
based
on
the
City
Master
Fee
Schedule
.
9. PUSD
can
access
the
PCPA
Monday
through
Friday
during
regularly
scheduled
school
hours
,
excluding
holidays,
when
the
PCPA
is
not
being
used
by
the
City
or
a
rental
client.
The
purpose
will
be
for
educational
instruction
and
no
audience
will
be
permitted
. PUSD
use
will
be
fully
supervised
by
PUSD
staff
with
no
City
or
technical
theater
support;
City
will
be
onsite
to
open
and
close
the
PCPA.
10 . The
PCPA
will
be
available
for
PUSD
use
in
the
summer
for
performing
and
visual
arts
camps,
but
scheduling
will
take
into
consideration
maintenance
closures,
City
programs,
and
rental
clients
.
11 . The
City
will
provide
opportunities
for
two
students
per
semester
to
participate
in
a new
theater
internship
program.
The
estimated
FY22-23
PCPA
operating
subsidy
is
$726,000.
Per
the
terms
of
the
new
agreement,
PUSD's
estimated
cost
sharing
for
this
fiscal
year
will
increase
from
$93,000
to
$356
,000
for
an
increase
of
$263,000
in
City
revenue.
With
approval
of
this
Agreement
the
FY22-23
PCPA
operating
subsidy
is
estimated
at
$463
,000.
Capital
projects
are
estimated
at
$4
million
over
the
next
four
years
.
This
preliminary
estimate
was
calculated
in
2020
and
does
not
include
inflationary
changes
or
ADA
requirements
. As
included
in
the
Agreement
, with
PUSD
paying
for
35%
of
cap
ital
projects
, PUSD's
cost
sharing
amount
for
capital
projects
is
estimated
at
$1.4
million
over
the
ne
xt four
years
.
Environmental
Review:
This
item
is
not
subject
to
California
Environmental
Quality
Act
review.
Fiscal
Impact:
The
estimated
annual
increase
in
reimbursement
costs
from
PUSD
is
$263,000.
The
estimated
reimbursement
from
PUSD
for
capital
projects
is
$1.4
million
spread
out
over
four
years.
Public
Notification:
None
.
Attachment: A.
Joint-Use
Agreement
Reviewed/
Approved
By
:
Assistant
City
Manager
3 of
18 Reviewed
By
:
Alah
Fenstermacher
City
Attorney
Chris
Hazeltine
City
Manager
October 4, 2022, Item #6
JOINT-USE AGREEMENT BETWEEN THE CITY OF POWAY AND THE
POWAY UNIFIED SCHOOL DISTRICT FOR THE POWAY CENTER FOR
THE PERFORMING ARTS
THIS AGREEMENT is made and entered into by and between the City of Poway (hereinafter called "City"), and the Poway Unified School District (hereinafter called "District"), on this __ day of _____ , 2022 ("Effective Date"). The City and District are at times referred to individually as a Party, or collectively as the Parties.
WHEREAS, the governing bodies of the City and the District are mutually interested in and concerned with the provision of community leisure activities including cultural programs, under the auspices of the City Community Services Department, and in cooperation with the District; and
WHEREAS, cities and school districts are authorized by Chapter 10 of Part 7 of Division 1, Title 1 of the Education Code of the State of California (Sections 10900 et. seq.) to organize, promote, and conduct a community leisure activity program within or without their territorial limits; and
WHEREAS, in 1990, the City built the Poway Center for the Performing Arts ("PCPA"), on land leased to the City by the District, pursuant to the terms of the May 22, 1990 Joint-Use Agreement Poway Center for the Performing Arts between City, Poway Redevelopment Agency and District; and
WHEREAS, the City initially contributed $8,100,000 toward the construction of the PCPA, and the District contributed $500,000, as well as the property upon which the PCPA sets; and
WHEREAS, the City owns and operates the PCPA as a municipal and educational facility designed to provide a venue for the presentation of the fine and performing arts and educational programming; and
WHEREAS, the City currently pays all capital costs associated with the PCPA, and District pays a portion of the operating and maintenance costs; and WHEREAS, on February 1, 2012, the Redevelopment Agency was dissolved by operation of law, and, pursuant to California Health and Safety Code section 37173, City became the Successor Agency to the former Redevelopment Agency; and WHEREAS, the governing bodies of the City and District are authorized by Government Code of the State of California, Chapter 5' (Section 6500 et. seq.) to enter into agreements with each other to promote the health and general welfare of the community and contribute to the attainment of leisure activity goals and objectives for children and adults within the community; and
WHEREAS, the City has established a Community Services Department responsible for carrying out the purposes of community cultural enrichment; and 4of 18 ATTACHMENT A
October 4, 2022, Item #6
Poway Center for the Performing Arts Joint-Use Agreement 2022
WHEREAS, the District has as its mission to create culture and conditions in order to empower world class learners; and
WHEREAS, in the interest of providing the best public service, cooperation between the City and the District is necessary; and
WHEREAS, the City has installed and maintains a carport-mounted photovoltaic system in a parking lot adjacent to the Poway Center for the Performing Arts, which provides mutual benefit to both Parties by providing covered parking and renewable energy generation and use at the facility; and
WHEREAS, the District has agreed to pay 35% of costs associated with PCPA labor, operations, maintenance, and Capital Projects (defined herein) as of July 1, 2022; NOW, THEREFORE, based on the foregoing recitals, City and District agree as follows:
1. TERM
The term of this agreement shall be twenty-five (25) years from the Effective Date. This Agreement may be cancelled by either Party upon written notification not less than one (1) full District school calendar year in advance.
2. PREVIOUS AGREEMENT
This Agreement entirely supersedes the Joint-Use Agreement Poway Center for the Performing Arts between City, the Poway Redevelopment Agency and District entered into on May 22, 1990 ("1990 Agreement"), the Memorandum of Understanding between City and district entered into on March 20, 2017 ("2017 MOU"), and the City of Poway, Poway Center for the Performing Arts Use Policy, which as of the Effective Date, shall no longer have any force or effect.
3. USE OF FACILITIES
City will make available to the District the use of the PCPA, which the City built on land leased to the City by the District, pursuant to the terms and conditions set forth in the 1990 Agreement.
4. DEFINITIONS
5 of 18
a. "PCPA" is the collective term used when addressing all interior facilities and exterior areas considered to be part of the Poway Center for the Performing Arts, excluding the Rehearsal Space as defined in 5(d). b. "District Use" refers to any time and manner in which District is responsible for the activities at PCPA, as specified in this Agreement.
District Use includes use by those schools under the control and jurisdiction of the Poway Unified School District. At the District's discretion use by organizations affiliated with the Poway Adult School may fall under the definition of District Use.
October 4, 2022, Item #6
Poway Center for the Performing Arts Joint-Use Agreement 2022
c. "City Use" refers to any time and manner in which City is responsible for the activities at PCPA, as specified in this Agreement. d. "Rehearsal Space" refers to the PCPA rehearsal room, and the office, storage rooms, and dressing rooms located within.
e. "Capital Projects" refer to all capital improvement projects, as that term is commonly understood, relating to the PCPA. Capital Projects involve the significant update or replacement of PCPA facilities and equipment, and are typically undertaken when the PCPA is not being utilized. f. "Third Party Use" refers to any use of the PCPA by a third party other than the City or District that is managed, approved, and permitted by the City.
5. SCHEDULING
6 of 18
a. Scheduling of the PCPA shall be the responsibility of the City. b. City shall, at all times, have direct access to and direct control over all areas of the PCPA, although during the school day District students will be supervised by District teachers and/or staff.
c. Master schedules shall be developed by the City and the City shall make reasonable accommodation of District's needs.
d. The Director of Community Services or designee shall be the point of contact for City and the Visual and Performing Arts Specialist or designee shall be the point of contact for the District. Both Parties shall designate, in writing, one point of contact responsible for Agreement administration, use of the PCPA, and scheduling. Both Parties are responsible for promptly notifying the other party if there are changes in the point of contact. e. Requests for District Use of the PCPA shall be reviewed and approved by the District before submitted to City. District Use is subject to City approval. District-sponsored arts events shall have priority, followed by District-sponsored non-arts events.
f. District Use of the PCPA shall not be sublet or otherwise assigned to non District organizations or groups. At the District's discretion use by organizations affiliated with the Poway Adult School may fall under the definition of District Use.
g. District agrees to limit approval of District Use for performances with audiences of one hundred fifty (150) or less.
h. Requests for use by entities other than the District shall be submitted to the City. All contractual agreements for the use of the PCPA shall be exclusively between the City and the third party. Prior to scheduling and confirming any third party scheduled use, City and District uses shall have October 4, 2022, Item #6
Poway Center for the Performing Arts Joint-Use Agreement 2022 Page4
7 of 18
priority. However, after a third party scheduled use has been confirmed it shall have priority over all other uses.
i. City shall have first priority for use of all areas at the PCPA for performances and events, with the exception of the Rehearsal Space.
District shall have second priority use of the stage, green room, and dressing rooms as scheduled by the City and unless previously scheduled and confirmed by City for third party uses.
j. District shall have first priority for the day-to-day use of the Rehearsal Space for the purpose of student instruction and related activities of Poway High School. City shall have second priority use of the Rehearsal Space upon arrangement with the District.
k. District Use of the PCPA shall be expanded from 77 days to 88 days for rehearsals, performances, and events. One day is any District Use regardless of the length of time the PCPA is used. Use of the PCPA beyond 88 days is permitted if the PCPA is available. District will reimburse the City for additional days based on the City Master Fee Schedule.
I. District shall have access to the PCPA Monday through Friday during regularly scheduled school hours, excluding holidays, when the PCPA is not being used by City or a confirmed third party. The purpose shall be for educational instruction and no audience shall be permitted. City shall approve all District Use and locations within PCPA. District Use shall be fully supervised by District with no City or technical theater support. City shall be onsite to open and close the PCPA.
m. PCPA will be available for District Use in the summer for performing and visual arts camps hosted by the District. Summer camps shall take into consideration maintenance closures, City programs, and confirmed third party uses, and shall be scheduled in consultation with City staff. n. City shall provide opportunities for two (2) students per semester to participate in a theater internship program.
o. Except for emergency situations, City shall advise District, with not less than thirty (30) days' notice of the closure of PCPA due to damage, lack of sufficient heating or air conditioning of the PCPA, or the need for repairs or replacement of fixtures, furnishings, or equipment. To the extent that City has knowledge of future closures more than thirty (30) days in advance it shall provide such notice as soon as possible.
October 4, 2022, Item #6
Poway Center for the Performing Arts Joint-Use Agreement 2022
6. EQUIPMENT AND IMPROVEMENTS
a. City shall install, own, and operate all PCPA equipment and be responsible for preventative maintenance, repair, and replacement, and district shall share in the costs as identified in Exhibit A. b. District shall have the right to operate theater-related technical equipment as authorized by City, and under direct supervision of City personnel.
District shall be responsible for repair or replacement of any theater related technical equipment if any such equipment is damaged as a result of District's Use of the equipment.
c. Installation of equipment or improvements by City shall meet standards established in the California Education Code. Any work done on structural, life or fire safety, or ADA compliance issues must meet all Division of the State Architect (DSA) requirements, including DSA inspection requirements. Title to such equipment or improvements shall remain with the City.
7. BUILDING REPAIR AND MAINTENANCE
a. City and District shall share in the costs of building repair and maintenance as identified in Exhibit A.
b. City shall provide upkeep of all common areas and overs_ee all contract custodial services for the PCPA. City and District shall share the cost of the contract custodial services as set forth in Exhibit A. District shall provide custodial services for the Rehearsal Space, as set forth in Exhibit A.
c. District shall be responsible for all building repair and maintenance for the Rehearsal Space, as set forth in Exhibit A.
d. Except for normal wear and tear the District shall be solely responsible for the cost to repair damage done to the PCPA during approved District Use.
City shall be solely responsible for the cost to repair damage done to the PCPA during City Use or Third Party Use.
e. City shall approve of all storage of equipment and other materials by District, including all items within the Rehearsal Space. City shall conduct safety inspections of the Rehearsal Space and when directed, District shall, within thirty (30) days, adhere to requirements of the safety inspection. Routine repair and maintenance that impacts safety and/or program operations must be made within 21 days of notification or City retains the right to make the repair and directly bill District.
8. CAPITAL PROJECTS
8 of 18
a. In each year this Agreement is in effect, including the year of the Effective Date, City and District shall meet between October and December to review potential Capital Projects, their impact on budget development, and October 4, 2022, Item #6
Poway Center for the Performing Arts Joint-Use Agreement 2022
shall tentatively agree on which Capital Projects will commence in the following fiscal year. In March, each year the Parties will agree and finalize Capital Projects. For each Capital Project to which the Parties mutually agree, the Parties shall determine a projected design and construction cost, and each Party's portion of that projected cost shall be reflected in each Party's approved budget for the appropriate fiscal year(s). District shall share the cost of Capital Projects as set forth in Exhibit A. b. Each Party shall determine the appropriate representatives to participate in discussions regarding Capital Projects.
b. Each Party covenants that it shall not object to any Capital Project agreed upon in writing, and instead, expressly agrees that each Capital Project set forth therein is and will be necessary in the year indicated. c. For potential Capital Projects not agreed upon before the commencement of the fiscal year, the Parties agree that as part of their obligations under Section 8(a), each Party shall discuss such Capital Projects in good faith, and shall not unreasonably withhold its approval of a Capital Project that the other Party has determined is necessary.
d. During a Capital Project the City shall make partial payments to the contractor upon completion of a predefined stage of work established by the City and contractor. Upon completion of predefined stages of work the District shall reimburse the City for 35% of the cost within ninety (90) days of receipt of the invoice from the City requesting payment. Failure to make such payment constitutes a Default under Section 9 of this Agreement.
f. City shall manage Capital Projects and obtain applicable permits, including required permits from the Division of State Architect (DSA). Any structures to be constructed by City shall meet all standards required by the California Education Code and shall be constructed in accordance with the requirements of the DSA. City shall furnish to District all plans and specifications for approval by the District. District approval shall not be unreasonably withheld.
9. DEFAULT
9 of 18
In the event of a Default under this Agreement, as described in Section 8(d) and 12(i) of this Agreement, the Defaultee Party shall give written notice to the Defaulting Party that a Default has occurred, and the Defaulting Party will have thirty (30) days to cure that Default by making the required payment to the Defaultee Party. If the Default is not cured within thirty (30) days of this notice, the Defaulting Party shall owe an additional 10% on the amount owed, which will increase by an additional 2% each additional sixty days that the payment at issue remains unpaid.
October 4, 2022, Item #6
Poway
Center
for
the
Performing
Arts
Joint-Use
Agreement
2022
Page
7 10.
UTILITIES
a.
City
shall
provide
a
security
system
and
monitoring
service
for
the
PCPA.
The
Rehearsal
Space
shall
have
a
separate
arm/disarm
capability.
Access
to
the
PCPA
will
be
controlled
by
the
City,
except
within
the
Rehearsal
Space.
b.
District
shall
submit
a
quarterly
schedule
for
heating,
ventilation,
and
air
conditioning
(HVAC)
use
in
the
Rehearsal
Space
and
City
shall
be
responsible
for
programming
the
HVAC.
c.
The
City
and
District
shall
share
the
costs
associated
with
utilities
other
than
electricity
as
identified
in
Exhibit
A.
District
will
resume
sharing
the
cost
of
electricity
at
35%
when
the
estimated
twenty-five
(25)
year
life
of
the
photovoltaic
systems
concludes
on
March
20,
2042.
d.
City
shall
provide
telephone
services
for
City
operations.
The
City
and
District
shall
share
the
costs
as
identified
in
Exhibit
A.
District
shall
provide
telephone
services
for
the
Rehearsal
Space
and
District
shall
be
solely
responsible
for the
cost
of
telephone
services.
11. PARKING
AREAS
10 of
18 a.
District
agrees
to
make
parking
available
on
a
first-priority
basis
to
the
City
during
all
City-sponsored
events
at
the
PCPA.
The
first-priority
parking
is
located
in
the
parking
area
on
the
south
side
of
Titan
Way
.
b.
District
agrees
to
make
all
other
parking
areas
on
District
property
available
to
the
City
for
City-sponsored
events
at
the
PCPA
on
a
space
available
basis.
c.
District
agrees
that
29 spaces
in
the
District-owned
parking
area
immediately
adjacent
to
the
west
side
of
the
PCPA
will
be
available
for
the
exclusive
use
of
the
City,
as
shown
in
Exhibit
B.
City
is
responsible
for
parking
signage.
City
agrees
to
make
parking
spaces
in
this
area
available
for
use
by
Poway
High
School
upon
request
on
a
space-available
basis.
Partial
and
complete
blocks
of
the
parking
lot
will
occur
for performances
as
shown
in
Exhibit
B.
District
is
responsible
for
communicating
and
enforcing
the
City's
exclusive
use
of
the
parking
lot
with
District
students
and
parents
.
d.
City
agrees
that
the
City-owned
parking
lot
south
of
Titan
Way
will
be
available
for
District
Use
when
school
is
in
session
and
during
District
Use
of
the
PCPA
facility.
e.
Routine
maintenance
including
scheduled
sealing
and
striping
of
each
parking
lot
is
the
sole
responsibility
of
the
Party
owning
the
lot.
f.
District
has
granted
an
easement
to
the
City
to
allow
for
construction
and
maintenance
of
the
photovoltaic
system.
As
between
the
Parties,
funding
October 4, 2022, Item #6
Poway Center for the Performing Arts Joint-Use Agreement 2022
for the construction, permits, environmental, and Department of State Architect approvals, commissioning, interconnection, and maintenance for the system shall be the sole responsibility of City. During the operational life of the system, the City shall be responsible for all electrical charges at the PCPA and will also receive all bill credits generated by the photovoltaic system. If City decides to purchase the system, the terms of this Agreement shall be evaluated and may be modified by mutual written agreement between City and District.
12. COST SHARING, PAYMENTS, AND INCOME RETENTION
11 of 18
a. Beginning July 1, 2022, City and District shall share in the costs of labor, operations, maintenance, and Capital Projects as identified in Exhibit A.
City and District shall review use and cost sharing every 3 years or as requested by either Party and Exhibit A shall be adjusted as necessary. b. All payments and reimbursements for actual costs shall be billed and paid twice annually, and billing will be for the six (6) previous months of operation. District shall reimburse the City within ninety (90) days of receipt of the invoice from the City requesting payment. c. City and District each have the right to establish and retain admission charges and fees for events. Admission fees may be charged by either City or District and all monies charged and collected shall be and remain the sole property of the collecting entity.
d. City shall operate the PCPA box office at all times. District may utilize PCPA box office services or handle all tickets through District. e. City shall operate and retain all income from the PCPA concession at all times, including all pre-show, post-show, and intermission concessions and all food served in and around the PCPA.
f. Upon request, City may grant Poway High School permission to utilize the PCPA concession. All concession food and beverage items must be provided by Poway High School. Approval shall not be unreasonably withheld, and Poway High School shall retain all income associated with sale of food and beverages. Poway High School is responsible for following all applicable laws including, but not limited to, the County of San Diego Health Department.
g. All food, beverages, souvenirs, or other merchandise, whether for sale or given as complimentary, must be approved by City.
h. The annual increase in total labor, operations, and maintenance costs reimbursed by the District, exclusive of Capital Projects, shall not exceed seven and a half percent (7.5%). If total labor, operation, and maintenance costs exceed seven and a half percent (7.5%) City and District shall discuss such increases in good faith and shall not unreasonably withhold '
October 4, 2022, Item #6
Poway
Center
for
the
Performing
Arts
Joint-Use
Agreement
2022
Page
9 approval
of
justified
increases
in
costs
if
the
Parties
have
determined
costs
are
necessary
to
the
operation
of
the
PCPA.
i.
For
all
PCPA-related
costs
that
are
incurred
by
either
City
or
District
and
subject
to
reimbursement
as
identified
in
Exhibit
A
hereto,
each
Party
shall
reimburse
the
other
Party
within
ninety
(90)
days
of
receipt
of
the
invoice
from
that
Party
requesting
payment.
Failure
of
either
Party
to
make
such
payment
within
ninety
days
shall
be
a
Default,
as
that
term
is
used
in
Section
9 of
this
Agreement.
13.STAFFING
AND
SUPERVISION
a.
City
is
responsible
for
the
overall
management
and
operation
of
the
PCPA.
District
shall
supervise
all
activities
and
events
conducted
by
District
, however
City
shall
require
and
provide
adequate
personnel
to
ensure
safe
and
supervised
use
of
all
areas
and
equipment
within
the
PCPA.
The
final
decision
regarding
the
number
of
personnel
shall
be
determined
by
the
City
.
b.
District
shall
supervise
all
activities
and
events
conducted
by
District
in
the
Rehearsal
Space
.
City
shall
supervise
all
activities
and
events
conducted
by
City
in
the
Rehearsal
Space
.
c.
The
District
shall
be
solely
responsible
for
the
supervision
of
students
while
utilizing
the
PCPA
and
shall
provide
sufficient
adult
supervision
backstage
and
in
the
lobby
.
No
students
shall
be
allowed
inside
the
PCPA
during
District
Use
without
a
representative
from
the
District.
City
reserves
the
right
to
suspend
and/or
deny
future
use
if
sufficient
supervision
is
not
provided
at
all
times
during
District
Use.
14. LIQUOR
LICENSE
No
alcoholic
beverages
shall
be
sold
or
consumed
on
the
premises
during
District
Use.
15.EDUCATION
CODE
LIMITATIONS
In
the
use
of
the
facilities
subject
to
this
Agreement,
City
agrees
to
comply
with
all
of
the
requirements
of
the
Education
Code
of
the
State
of
California
setting
forth
the
limitations,
requirements,
and
restrictions
on
the
use
of
school
facilities
.
16.EMPLOYMENT
RELATIONSHIPS
AND
OBLIGATIONS
12 of
18 a.
For
facilities
subject
to
this
Agreement,
all
persons
employed
in
the
performance
of
services
and
functions
for
the
City
shall
be
deemed
City
employees
and
no
City
employee
shall
be
considered
as
an
employee
of
the
District
or
under
jurisdiction
of
the
District,
nor
shall
such
City
employees
have
any
District
pension,
civil
service,
or
other
status
while
an
employee
of
the
City
.
District
shall
not
be
responsible
for
the
payment
of
any
salary,
wage
or
other
compensation
to
any
City
personnel
performing
services
hereunder
for
the
City
.
City
shall
not
be
liable
for
compensation
October 4, 2022, Item #6
Poway Center for the Performing Arts Joint-Use Agreement 2022
or indemnity to any District employee for injury or sickness or wages arising out of his/her employment with the District.
b. For purposes of this Agreement, all persons employed in the performance of services and functions for the District shall be deemed District employees and no District employees have any City pension, civil service, or other status while an employee of the District. City shall not be responsible for the payment of any salary, wage or other compensation to any District personnel performing services hereunder for the District.
District shall not be liable for compensation or indemnity to_,any City employee for injury or sickness or wages arising out of his/her employment with City.
17. INDEMNITY AND HOLD HARMLESS
a. District shall hold harmless, defend, and indemnify City, members of its governing body, and its officers, employees, and agents from any and all losses, demands, damages (including costs and attorney's fees), or causes of action arising from injury to property or person which may arise from District use or sponsorship of the PCPA subject to this Agreement.
However, District shall not be obligated to hold harmless, defend, or indemnify City when the aforementioned claims arise from the City's negligence.
b. City shall hold harmless, defend, and indemnify, District, members of its governing body, and its officers, employees, and agents from any and all losses, demands, damages (including costs and attorney's fees), or causes of action arising from injury to property or person which may arise from City use or sponsorship of the PCPA subject to this Agreement.
However, City shall not be obligated to hold harmless, defend, or indemnify District when the aforementioned claims arise from the District's negligence.
18. INSURANCE
During the term of this Agreement, each Party shall obtain and maintain in full force and affect the following insurance coverages:
13 of 18
a. Workers' Compensation Insurance. Each Party shall provide full workers' compensation insurance in the amount necessary in connection with the performance of this Agreement for each Party to protect itself and its employees under the Workers' Compensation Act.
October 4, 2022, Item #6
Poway Center for the Performing Arts Joint-Use Agreement 2022
b. Liability Insurance. Each Party hereto shall carry property damage and public liability insurance either through commercial insurance or by an approved self-insurance or joint powers arrangement, in the minimum amount of $5,000,000 combined single limit and $6,000,000 annual aggregate and shall furnish proof thereof in the form of a certificate of insurance to the other Party within thirty (30) days of the effective date of this Agreement.
c. Certificate of Insurance. Each Party shall deliver within fifteen (15) days of the demand by the other Party, certificates of insurance or self insurance.
Endorsements shall be obtained so that each policy contains the following three provisions:
i. Additional Insured. "City of Poway and its elected and appointed boards, officers, agents and employees are additional insureds with respect to the joint use and contract with City.
ii. Cancellation. "Party agrees to oblige its insurance agent or broker and insurers to provide the City of Poway with a thirty (30) day notice of cancellation (except for nonpayment for which a a ten (10) day notice is required) or non renewal of coverage."
iii. Primary & Noncontributory Coverage. "This insurance is primary and will not seek contribution from any other insurance available to an additional insured under your policy provided that:
a. The additional insured is a Named Insured under
such insurance; and
b. You have agreed in writing in a contract or agreement that this insurance would be primary and would not
seek contribution from any other insurance available
to the additional insured."
19.NOTICE
Notices or demands hereunder given or to be given by City or District to the other may be personally served upon City or District or any person hereafter authorized by either in writing to receive such notice or may be served by certified letter addressed to the appropriate address hereinafter set forth or to such other address as City and District may hereafter designate by written notice.
City of Poway
Director of Community Services
City of Poway
13325 Civic Center Drive
Poway, CA 92064
14 of 18
Poway Unified School District
Associate Superintendent,
Business support Services
Poway Unified School District
15250 Avenue of Science
San Diego, CA 92128
October 4, 2022, Item #6
Poway
Center
for
the
Performing
Arts
Joint-Use
Agreement
2022
Page
12 20.AMENDMENT
The
provisions
of
this
Agreement
may
be
amended
or
modified
only
by
mutual
consent
and
written
agreement
of
the
respective
Parties
.
21. DISPUTE
RESOLUTION
In
the
event
of
any
dispute
or
difference
arising
from
this
Agreement
or
from
the
use
or
proposed
use
of
the
facility,
then,
in
this
event,
said
dispute
or
difference
should
be
settled
and
arbitrated
jointly
by
the
City
Manager
and
Superintendent
or
respective
designee.
If
the
dispute
is
not
resolved,
the
Parties
retain
all
rights
to
bring
an
action
interpreting
or
enforcing
this
Agreement
in
a
court
of
competent
jurisdiction.
22. INVALIDITY The
invalidity
of
any
provision
of
this
Agreement
as
determined
by
a
court
of
competent
jurisdiction,
shall
in
no
way
affect
the
validity
of
any
other
provision
hereof.
23. BINDING
EFFECT
This
Agreement
shall
inure
to
the
benefit
of
and
shall
be
binding
upon
City
and
District
and
their
respective
successors
and
assigns.
IN
WITNESS
WHEREOF,
the
City
and
District
have
signed
this
Agreement
in
Poway,
California
.
City
of
Poway
Chris
Hazeltine
City
Manager
ATTEST: Carrie
Gallagher
City
Clerk
APPROVED
AS
TO
FORM:
Alan
Fenstermacher
City
Attorney
15 of
18 Poway
Unified
School
District
Marian
Kim-Phelps,
Ed.D.
Superintendent ATTEST: Darshana
Patel
Clerk
of
the
Board
October 4, 2022, Item #6
Poway
Center
for
the
Performing
Arts
Joint-Use
Agreement
2022
Page
13 Exhibit
A:
Cost-Sharing
Formula
Exhibit
B:
Parking
Spaces
Dedicated
for
City
Use
16 of
18 October 4, 2022, Item #6
Exhibit
A
Cost-Sharing
Formula
Based
on
District's
utilization
of
the
PCPA,
per
the
Agreement,
District's
portion
of
the
cost
sharing
formula
is
35%
of
the
PCPA
operating
budget,
excluding
electricity
costs,
auto
and
cell
phone
allowance
for
the
manager,
concession
operations,
ticket
printing,
and
ticket
handling
. District's
portion
of
cost-sharing
includes,
but
is
not
limited
to
labor,
gas,
utilities,
contractual
services,
janitorial
services,
landscape
maintenance,
equipment
maintenance,
repair,
and
replacement,
building
repair
and
maintenance,
and
operating
supplies.
District's
s portion
of
the
Capital
Projects
cost-sharing
formula
is
35%.
The
City
and
District
shall
meet
between
October
and
December
to
review
potential
Capital
Projects,
their
impact
on
budget
development,
and
shall
tentatively
agree
on
which
Capital
Projects
will
commence
in
the
following
fiscal
year.
In
March,
each
year
the
Parties
will
agree
and
finalize
Capital
Projects.
In
exchange
for
allowing
the
City
to
use
District's
parking
area
for
installation
of
a
photovoltaic
system,
District
cost-share
of
the
PCPA
electrical
charges
is
reduced
to
zero
from
initial
operation
of
the
system
through
end
of
life
of
the
photovoltaic
system,
which
is
March
20,
2042.
District
shall
be
solely
responsible
for
the
cost
of
building
repair
and
maintenance,
telephone
services
and
custodial
services
for
the
Rehearsal
Space.
Per
the
adopted
FY22-23
budget,
District's
share
of
the
costs
is
$356,000.
Invoices
will
reflect
actual
expenses
. The
annual
increase
in
total
operations
and
maintenance
costs
reimbursed
by
the
District,
exclusive
of
Capital
Projects,
shall
not
exceed
7.5%
year
over
year.
17 of
18 October 4, 2022, Item #6
Exhibit 8
Parking Spaces Dedicated for City Use
The parking spaces highlighted in red below are reserved for City as described in Section 11 (c) of the Agreement.
In addition to the spaces reserved for City Use, partial and complete blocks of the PCPA parking lot will occur as follows:
1. Partial parking lot block for daytime performances shall occur 20 times per year. District shall have access to four (4) parking spaces for Poway High School special education drop-off.
2. Full parking lot block for evening performances shall occur 15 times per year. 18 of 18