r 9 q- 2001-129
AMENDED AND RESTATED OPERATING AGREEMENT _..__..".,._ 30 _'_- zao? THIS AGREEMENT, made and entered into this 18th day of June, 2001, by and b tween the City of Santa Ana, a charter city and municipal corporationduly organized and existing under the Constitution and laws of the State of California, hereinafter referred to as " City," and the Charles W. Bowers Museum Corporation, a California nonprofit public benefit corporation, hereinafter referred to as " Corporation."
RECITALS
A. The Charles W. Bowers Memorial Museum ( the "Museum") is owned by the City and operatedby the Corporation in accordance with the terms of this Agreement and a conveyance in trust by the late Charles W. Bowers and his wife Ada Bowers ( the "Bowers Trust"). The Museum is composedof several buildings and other improvements located at 2002 North Main Street ( the Premises"). Under separate agreements, the Corporation leases a parking lot from the Santa Ana Community Redevelopment Agency immediately south of the Premises as well as a childrens' museum adjacentthereto.
B. The Corporation is a non- profit public benefit corporation organized and existing under the laws of the State of California for the purpose of managing and operatingthe Museum.
C. The City and the Corporation entered into that certain Agreement dated April 20, 1987 for the purpose of establishing a program whereby the Corporation would undertake full operationand maintenance of the Museum on behalf of the City for a period of twenty years. The Agreement was amended in 1993, among other things, to grant the Corporation the option to extend the term of OperatingAgreement. The Agreementwas also amended in 1999 to extend the term five years and to modify the terms of the City operatingassistance. The Agreement as amended in 1993 and 1999 shall hereafter be referred to as the 1987 OperatingAgreement.
D. Under the terms of the 1987 Operating Agreement, the Corporation agreed to be fully responsiblefor the cost of both operating the Museum and maintaining the Premises. In exchange for the license to operate and maintain the Museum, the City agreedto provide operatingassistance, which would increase in accordance with the cost of living for the first ten years, and then decline to zero over the second ten years. The 1999 amendment caused the operating assistance to be stabilized for a period of five additional years before beginning to decline.
E. The City and the Corporation have now determined that it is not economically feasible for the Corporation to operate the Museum at a mutually acceptable level of programming and maintain the Premises appropriately without permanent economic participation by the City.
F. The Corporation also leases or licenses three other facilities from the Community Redevelopment Agency of the City of Santa Ana which are part of the overall operations of the EXHIBIT 1
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Museum. They are the Bowers Kidseum located at 1802 N. Main Street, the Bowers Museum Parking Lot located at 1900 N. Main Street and a storage facility located at 430 E. Third Street.
While these facilities, hereafter collectively referred to as the "Associated Properties", are not part of this Agreement, the City and the Corporation desire to reflect the costs of operation of those facilities within the overall costs of the Museum.
G. Under this Amended and Restated Operating Agreement the parties propose to restate the Agreement to ( 1) extend the Term of the Agreement, (2) to provide that the City's operating assistance will be fixed annually at the cost for repair and maintenance of the Premises, (3) to provide for City funding of Capital Repair and Replacement, as necessary; and (4) make certain other technical modifications to the Agreement.
WHEREFORE, for and in consideration of their mutual and respective covenants and promises hereinafter set forth, and subject to the terms and conditions of this Agreement, the parties hereto do herebyagree as follows:
ARTICLE 1
PRELIMINARY MATTERS
1. 01 Definitions
As used in this Agreement, the following terms shall have the following meanings:
a) " City" means the City of Santa Ana, California.
b) " City Council" means the City Council of the City.
c) " City Manager" means the City Manager of the City.
d) " City Attorney" means the City Attorney of the City. e) " Clerk of the Council" means the Clerk of the Council of the City. f) " Corporation" means the Charles W. Bowers Museum Corporation, a California nonprofit public benefit corporation.
g) " Board" means the Board of Governors of the Corporation. h) " Museum President" means the chief executive officer retained by the Corporation to manage and operate the Bowers Museum.
i) " Premises" means the land shown on the map attached to this Agreement as Exhibit 2 A, and incorporatedherein by reference, togetherwith all improvements thereon. 0) " License" means the license specifiedin Section 2 of this Agreement. k) " Commencement Date" means May 1, 1987.
1) " Term" means a period of thirty-nine ( 39) years from and after the Commencement Date, and any extended term occurring by reason of the Corporation's exercise of the option herein granted in Section 2. 02. m) Capital Repair and Replacement" shall mean periodic upgrade and/or replacement of items or systems maintained and repaired by the Corporation pursuant to Section 1. 01(n) exemplified by such things as replacement of roofs, repainting of exterior walls and replacement of floor coverings, replacement of worn climate control components such as compressors, fans, motors, etc.; repaving of parking lots; replacement/upgrades of doors, stairs, ramps, etc due to changes in access or other legal requirements; and replacement of elevator motors, controls and components.
n) Regular Maintenance and Repair" shall mean costs for labor [ including Allocable Internal Administrative Costs] and materials for:
1) all cleaning, janitorial and landscapemaintenance services for the Premises [ which shall include waste management, trash removal and vermin control];
2) maintenance and repair of climate control systems and equipment [such as replacementof filters, coolants, repair of minor leaks, cleaningof ducts, replacementof registersand adjustmentof balancers]; 3) maintenance and repair of electrical and lighting systems and circuits such as replacementsof bulbs, ballasts, and fluorescent tubes, repair/ replacementof circuit breakers, electrical outlets, lighting fixtures and diffusers];
4) maintenance and repair of plumbing systems [such as repair/ replacement of bathroom fixtures, drinking fountains, landscapeirrigation, fire sprinkler heads];
5) maintenance and repair of roofs and drainagesystems [such as regular inspectionand repair of minor or periodic roof leaks, cleaningof all gutters, downspoutsand surface drainagesystems;
3 6) maintenance and repair of signs, windows and doors [ such as replacement of broken or cracked windows, and repair of broken or worn interior and exterior doors and hardware including locks]; 7) maintenance and repair of elevators [ such as all routine inspectionand upkeep, minor repairsand payment of maintenance contracts]; 8) maintenance and repair of telecommunications and security systems such as maintenace/ repair/replacment of telephoneinstruments, wiring, and switches, and maintenace/ repair/replacment of all elements of any electronic/ automatic securitysystem];
9) maintenance and repair of parking lots and patios and courtyards including landscaping [such as cleaning, inspectingand repairing of minor cracks in asphaltand sidewalks ( other than public rights of way), restriping parking spaces and postingof all parking signsand controls, gates etc., repair/ replacementof handrails and safetyand directional lighting, and replacement of dead or diseased plants and trees ( other than mature trees);
10) maintenance and repair of interior and exterior walls and floor surfaces such as painting and repainting of interior walls, doors and trim, removal of graffiti and minor repainting of exterior walls due to repair of minor damage, and cleaning and repairing of carpeting and other floor coverings]; and,
11) payment of all utility costs for water, gas and electricity, but excluding telecommunication;
12) premiums for third party personalinjury and property damage insurance for losses arising from the operationof the Museum and/or conditions of the Premises.
o) " Allocable Internal Administrative Costs" shall mean Six Hundred Seventy Two Thousand Dollars ($ 672, 000) of the Corporation's total payroll and benefit costs for labor, adjustedannually according to the Consumer Price Index for All Urban Consumers ( CPI) during the prior twelve ( 12) month period for the Los Angeles- Long Beach- Anaheim area.)
1. 02 Status of Corporation
a) By its execution of this Agreement, Corporation warrants that it is duly incorporatedunder the laws of the State of California and that true and correct copies of its Articles of 4 Incorporation and Bylaws and a true and correct listing of Corporation's governors and officers and their terms of office, certified as such by Corporation's Secretary, have been filed with the Clerk of the Council.
b) By its execution of this Agreement, City accepts and agrees to the organization of the Corporation as set forth in the above said Articles of Incorporation and Bylaws.
1. 03 Compensation of Board Mernbersand Meetings
a) The members of the Board shall serve without compensation other than reimbursement for expenses incurred by them in the course of the performance of services for the Corporation when authorized by the Board.
b) The Corporation shall conduct its board meetingsin accordance with applicablelaw.
1. 04 Changesin Govemors and Officers, Articles and Bylaw.-, The Corporation shall notify the Clerk of the Council of any changein the membershipof Board and any changein the officers of the Corporation. Any amendment of the Corporation's Articles or Bylaws shall be filed with the Clerk of the Council.
1. 05 City Renr . s . ntatinn on the Board
The City Manageror his/ her designatedrepresentative shall be entitled to attend all meetings of the Board and to participate in the discussions of the Board to the same extent as the members of the Board, and Corporation shall assure that the City Manager or his/ her designatedrepresentative is provided with reasonable advance notice of all meetingsof the Board. Nothing herein shall be construed to provide the City Manageror his designatedrepresentative with any authority to make, second, or vote on motions, or to cause him to be counted for purposes of determiningwhether a quorum exists, at meetingsof the Board.
1. 06 City Residents nn the Board
At least two members of the Board shall be City residents. If the number of members who are City residents become less than two due to the death, resignation, or change of residence of a member, The Corporation shall not be in default under this section, provided, however, that the next member appointedto the Board shall be a City resident. 5 ARTICLE 3
MUSEUM OPERATIONS
3. 01 Corporation's Undertaking to Operate Museum
Corporation herebyagrees to operate the Museum open to the public on the Premises during the Term, subjectto the terms and conditions herein set forth.
3. 02 QVeration and Main . n nc - Standards
Corporation agrees that its operation of the said Museum shall be in accordance with the following standards:
a) The Premises and the museum operations carried on thereon shall be known formally as the " Charles W. Bowers Memorial Museum" and referred to less formally as the Bowers Museum." All operations shall likewise conform in all respects to all other requirementsof that certain Trust No. 58, created the 26th of May, 1924, by C. W. Bowers and Ada A. Bowers, his wife, as Trustors, and the First National Bank of Santa Ana as Trustee. b) The Corporation shall display exhibits and conduct programs having artistic, scientific, cultural, or historic interest on the Premises. Such exhibits and programs shall be held open to the general public on a regular basis without regard to race, color, creed, religion, sex, marital status, national origin, or ancestry.
c) The Corporation shall be responsiblefor all Regular Maintenance and Repair of the Premises and the Associated Properties..
d) The Corporation shall be responsible for carrying out all Capital Repair and Replacementof the Premises and the Associated Facilities subjectto funding approved by the City pursuant to Section 4. 07 (e), unless otherwise agreedby the City and the Corporation. e) Corporation shall not permit any use of the Premises, except those authorized bythis Agreement or by written authorization of the City Manager. f) Corporation will operate and manage the Museum in a competent and efficient manner at least comparable to other well- managedoperations of the same type. g) The name " Bowers Museum" or " Charles W. Bowers Memorial Museum" and similar usages of the name Bowers in conjunction with a museum shall at all times remain the sole property of the City of Santa Ana, and right of the Corporation to use the name in connection with a museum, art gallery, exhibition or show shall be limited to the license for such use granted hereby. 7 5. 06 Workers' C omnensation Tnsur nc
Corporation shall provide a policy or policies of workers' compensation insurance as requiredby law.
5. 07 Other Insnrance
a) City shall maintain such insurance protection against loss of or damageto the buildings and personal property located on the Premises ( exclusive of fine arts property covered pursuant to section 5. 04 and of the Bowers Museum Shop stock- in-trade) as City shall deem appropriate. Corporation shall have no responsibility for such insurance. b) Corporation shall maintain such insurance protection against loss of or damageto the Bowers Museum Shopstock- in-trade as Corporation shall deem appropriate. City shall have no responsibilityfor such insurance.
5. 08 Mortification of Insurance Requirements
The City Managermay modify or suspendthe requirements imposedon Corporation by this Article if in his reasonable determination, strict compliance is impossibleor excessively costly due to insurance market conditions.
ARTICLE 6
RESERVED
ARTICLE 7
DEFAULTS, REMEDIES AND TERMINATION
7. 01 Defaults
a) Failure or delayby either party to perform any term or provision of this Agreement shall constitute a default under this Agreement. The injured party shall not initiate the remedies hereinafter provided until the defaulting party has been given written notice of the default, specifyingthe nature thereof, and a period of sixty (60) daysto cure or correct such default. b) Any failure or delay by either party in assertingany of its rights or remedies as to any default shall not operate as a waiver of any default or of any such rights or remedies, or deprivesuch party of its right to institute and maintain any actions or proceedings which it may deem necessary to protect, assert or enforce any such rights or remedies. 13 0
And:
City Attorney
City of Santa Ana
20 Civic Center Plaza
P. O. Box 1988
Santa Ana, CA 92702
b) If sent by City to Corporation:
Bowers Museum Corporation
2002 N. Main Street
Santa Ana, CA 92707
Attention: President
With a Copy to:
Chair, Board of Governors
Bowers Museum Corporation
2002 N. Main Street
Santa Ana, CA 92707
8. 03 Nn_ n- assignahilitT
The rights and obligations of Corporation under this Agreement may not be assignedor delegatedwithout the prior approval of the City Council.
8. 04 Partial Invalidity
If any term, covenant, condition, or provision of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remainder of the provisions hereof shall remain in full force and effect, and shall in no way be affected, impaired or invalidated thereby.
8. 05 Rx usiY4
This Amended and Restated Agreement supersedesany and all other agreements including the 1987 Agreement and any other amendments made prior hereto, either oral or in writing, between the parties hereto and contains all covenants and agreements between the parties. Each party to this Agreement acknowledgesthat no representations, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which are not embodied herein, and that no other agreement or amendment hereto shall be effective unless executed in writing and signed by both City and Corporation. 16 0
ATTEST:
9 Patricia E. Healy
Clerk of the Council
APPROVED AS TO CON NT:
David N. Ream
City Manager
n
J
APPROV
L
J se Fletcher
Cit Attorney
CHARLES W. BOWERS MUSEUM
CORPORATION
By =??
Donald Kennedy
Chairman of the Board
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BOWERS MUSEUM
EXHIBIT A