ATTACHMENT #2
MEMORANDUM OF UNDERSTANDING
BETWEEN
THE CITY OF THOUSAND OAKS AND
THE THOUSAND OAKS
ALLIANCE FOR THE ARTS (TOARTS)
This Memorandum of Understanding ("MOU") is entered into this, 29th Day of September, 2026,by and between the Thousand Oaks Alliance for the Arts, a nonprofit public benefit corporation, hereinafter referred to as "TOARTS," and the City of Thousand Oaks, hereinafter referred to as "CITY." This MOU replaces and supersedes the Memorandum of Understanding entered into between TOARTS (formerly known as the Thousand Oaks Civic Arts Plaza Foundation) and the CITY on the 15th day of November, 2016, Contract No. 12830-2021).
Recitals
A. The CITY is a government agency with an elected city council and ten (10) internal departments including the Cultural and Community Services Department ("CCS"). The CCS has three (3) divisions, including the Theatres Division, which manages all aspects of CITY’s two theatres at the Thousand Oaks Civic Arts Plaza (TOCAP), and other cultural programming throughout the City.
The purpose of CCS is to advance, support and promote diverse arts and cultural programs to strengthen CITY's economy and quality of life for its residents.
B. TOARTS is a California nonprofit public benefit corporation exempt from federal income tax as described by section 501 (c)(3) of the Internal Revenue Code (the "IRC"), and is qualified to receive tax-deductible contributions under section 170 of the IRC as well as tax-deductible bequests, devises, transfers or gifts under section 2055, 2106, or 2522 of the IRC. TOARTS was originally called the Thousand Oaks Civic Arts Plaza Foundation and was established by CITY as its official programming nonprofit for events at the TOCAP. In 2017, Alliance for the Arts, a private nonprofit 501 (c)(3) who CITY had designated to conduct fundraising efforts on behalf of the TOCAP, merged into the Thousand Oaks Civic Arts Plaza Foundation and, subsequent to the merger, renamed itself TOARTS.
C. TOARTS’ mission is to inspire and elevate arts, culture, and entertainment through presentation, education, and collaboration to provide community support at the Bank of America Performing Arts (BAPAC) and beyond.
D. TOARTS is a primary presenter of performances at BAPAC and also provides financial support for BAPAC operations. It accomplishes these goals and responsibilities in part by soliciting and raising funds as well as by accepting gifts, grants and other forms of revenue from any source consistent with the ethics of the nonprofit industry.
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E. TOARTS and CITY each desire to promote a beneficial relationship between the organizations and endeavor to work collaboratively to fulfill the mission and purpose of each organization.
Terms
1. Pursuant to the Terms of this MOU, TOARTS Will:
a. Provide mission-focused artistic, cultural, educational and entertainment programs at BAPAC and throughout the City. b. Support programs, policies, mission and purpose as outlined in TOARTS’ Articles of Incorporation, bylaws and adopted corporate policies and resolutions for the benefit of the public through donations, gifts, grants, and other forms of revenue. c. Coordinate its funding goals, programs and campaigns with CCS.
d. Be responsible for stewardship of donated and granted funds designated for future use to enhance BAPAC and TOARTS’
programs.
e. Provide CITY with the most recent and up-to-date copies of its Articles of Incorporation and Bylaws, as they may be amended from time to time and require ratification by the City Council.
f. Each fiscal year, prepare and provide an annual report to CITY at a City Council meeting. The report shall include:
i. Planned activities and operations for TOARTS.
ii. Annual Adopted Budget by TOARTS.
iii. Summary of TOARTS activities and operations for prior fiscal year.
iv. List of current directors and officers.
v. Audited annual financial statements.
vi. A copy of the most recent annual federal tax filing (i.e., IRS Form 990 or 990-EZ).
vii. Special Events or other reasonable and relevant
information requested by CITY.
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g. Be directly responsible for its own employees and their actions and conduct, including, wages and benefits, personnel
matters, hiring/firing, and liability. TOARTS employees shall work closely with CCS and will be considered a part of the BAPAC team for purposes of implementing the goals and
missions of both TOARTS and CITY.
2. TOARTS Will Provide the Following Programs and Services:
a. TOARTS Presents.
i. The purpose of the TOARTS Presents is to enrich the
lives of the citizens of Thousand Oaks and the
surrounding communities through the presentation of
local, national and international performing arts
programming.
ii. TOARTS will act as the in-house presenting arm of the BAPAC for various headline artists, family, educational, world music and other diverse performances
throughout the year in addition to select community
performances for the public benefit. The City, in
coordination with TOARTS, will be responsible for
operational and marketing aspects of performance
presentation with profit/loss recorded on TOARTS
financial records.
iii. Financial Settlement will be based on net profit/loss. In recognition of the financial risk associated with
presenting performances, especially popular
entertainment attractions, and the benefits realized by BAPAC, CITY will continue to extend shared deal terms
for TOARTS Presents engagements, consisting of
rebates relating to rent, facility fees, ticketing service charges, merchandise commissions, and soft (nonlabor) costs at the discretion of the CCS Director or Deputy Director subject to approval by City Manager or
designee on an annual basis.
b. Concessions
i. TOARTS shall hold and maintain the liquor license to serve BAPAC concessions.
ii. TOARTS will be responsible for operating concessions services at BAPAC, including hiring staff or outside
contractors to manage said services pursuant to the
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terms set forth in the separately executed Agreement
for Concession Services (Concessions Agreement)
between CITY and TOARTS.
iii. CITY will receive a percentage of net income from
concession operations in an amount set forth in the
Concessions Agreement.
c. Naming Rights. CITY has historically delegated to TOARTS the authority to raise funds to support TOARTS and CITY missions and goals via certain naming rights opportunities at TOCAP, and numerous naming rights contracts have been
executed by TOARTS with donors for that purpose. To the extent TOARTS desires to continue raising funds via naming rights on CITY owned property at TOCAP, the Parties will negotiate and enter into a separate Naming Rights Agreement setting forth the rights and responsibilities of each Party.
3. The CITY Will
a. Allow TOARTS to use the name and images of CITY and
BAPAC subject to the approval of CITY. The parties shall enter into a separate license agreement that sets forth the terms and conditions for the use of the name and images of CITY by TOARTS.
b. Allow TOARTS’ use of certain CITY facilities, subject to the limitations set forth in Section 6 of this MOU, as well as use of certain property, equipment and staff to the extent that they are available, and at a level subject to the approval of the CCS Director.
c. Work in good faith with TOARTS in its fundraising efforts. d. Provide TOARTS with BAPAC attendance numbers and other reasonable and relevant information requested by TOARTS. e. Provide staffing and administrative support, as follows:
i. CCS Director shall serve ex officio as a member of the TOARTS Board. In the event of a vacancy for the
TOARTS Executive Director, the CCS Director shall
serve as the interim Executive Director until such time as a permanent replacement is hired by TOARTS.
ii. CITY may provide operational support staff including limited Finance, Information Technology and legal
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review of performance contracts on a pro-bono basis,
subject to approval by the CITY Director of CCS and
based on CITY operational needs and capacity at any
given time.
4. Term
a. The initial term of this MOU shall be to December 31, 2031, unless sooner terminated as permitted under the terms of this MOU.
b. The Agreement shall be renewed automatically for
subsequent periods of five (5) years unless the MOU is
amended by the Parties, terminated under the terms of this MOU, or terminated by written mutual agreement confirmed by majority vote of both City Council and TOARTS Board of Directors.
5. City Council Involvement in Activities of TOARTS
a. City Council Ratification. Ratification by a majority of the City Council shall be required for the following actions of TOARTS:
i. Any amendments to TOARTS’ bylaws.
ii. Any amendments to TOARTS’ Articles of Incorporation. iii. The appointment of TOARTS Board members.
iv. Any material amendments to TOARTS’ Mission
Statement.
b. City Council, by a majority vote, shall have the authority to remove any TOARTS Board member without cause.
6. Use of BAPAC Facilities
a. CITY will provide TOARTS with access to TOTV for
community outreach information programs consistent with CITY guidelines and any applicable state, federal, or local law, and subject to approval by City Manager or designee. b. CITY will provide TOARTS with office and/or storage space at the TOCAP if available, at a rate to be determined by CITY, and based upon the needs of TOARTS and the availability of office space. In addition, subject to availability, and with the CAD:901-40\js\H:\COMMON\TOARTS\MOU\260929
exception of the Kavli Theatre and Scherr Forum, CITY will provide TOARTS with the use of public facilities and
equipment at TOCAP, including meeting rooms, the Verizon Founders Room, the Licata Lounge, chairs, tables, public parking spaces, storage and related facilities associated with the TOCAP at no charge. TOARTS will be responsible for any additional costs associated with the use of the facilities or parking at TOCAP including, but not limited to, associated labor expenses. Access to and use of these facilities will be coordinated by CCS.
c. If CITY makes material changes to the physical campus of TOCAP, TOARTS will be included in discussions and given an opportunity to participate in use of the facilities, subject to CITY determination of availability and upon good faith
negotiations between the Parties related to use and costs associated with use.
7. Investment and/or Endowment Funds
a. TOARTS Board shall elect a Treasurer and adopt an
investment policy.
b. TOARTS’ CCF Endowment Fund (CCF Fund). The CITY
previously provided a $4 Million contribution to TOARTS which was deposited with California Community Foundation (CCF), and subject to the following restrictions:
i. Annual distribution shall not exceed 5% of the fund's assets. Such amount may be distributed or withdrawn
annually at the request of the TOARTS Board.
ii. At no time may the initial $4 Million principal or any additional contribution by the CITY be invaded.
iii. TOARTS has the right to transfer all funds to another community foundation or trust with similar terms
subject to ratification by City Council and if authorized under the terms of the agreement with CCF.
c. The TOARTS Board shall establish a financial reserve appropriate for planned activities and programming.
d. TOARTS maintains investment funds that originated from the Alliance for the Arts prior to its merger in 2017 (2017 TOARTS Funds). These Funds are permanently restricted as set forth in the TOARTS bylaws for the support of the Civic Arts Plaza theatres.
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e. Thousand Oaks Civic Arts Plaza Endowment Fund (TOCAPEF) i. Funds in the Ventura County Community Foundation’s
(VCCF) TOCAPEF shall continue to be subject to that
agreement between CITY and VCCF dated July 27, 1993.
ii. Any annual distributions or withdrawals from that fund shall be used solely to fund theatre operations.
f. Annual Contribution to City Theatres Fund:
i) Theatre operations shall receive minimum funding as set forth below,which shall come from the Thousand Oaks Civic Arts Plaza Endowment Fund (TOCAPEF) deposited with the
Ventura County Community Foundation (VCCF) pursuant to
the agreement between CITY and VCCF dated July 27, 1993, with any delta being provided by TOARTS no later than June 30 of each fiscal year.
ii) For City fiscal year 2026-2027 and subsequent years thereafter: an annual increase of two percent (2%) from the previous year's minimum total contribution amount. For the City fiscal year ending 2025-2026, the total contribution was $552,040.40, with TOARTS’ proportionate contribution of $326,035.93 after distribution from the TOCAPEF. If TOARTS is unable to meet these annual funding obligations in any given year due to stock market fluctuations, loss of
programming earnings, or other financial loss, representatives of TOARTS and CITY shall meet in good faith in an attempt to determine the amount of funding that will be provided by TOARTS for that given year. However, CITY shall not be
compelled to accept less than the minimum funding
obligations set forth above unless agreed to in writing by both parties.
8. Policies & Reserves
a. The TOARTS Board will establish and, from time to time, revise reasonable policies, and may use CITY policies for normal operations.
b. Signatory policies shall be documented by written procedures adopted by the TOARTS Board, and will include a policy that the Executive Director, and City Director of CCS if delegated by the Executive Director, will have the authority to place offers for artists.
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c. TOARTS Board will establish and maintain appropriate financial reserves for TOARTS programming and concessions operations. d. TOARTS shall not purchase any goods or services on behalf of CITY without written permission from CITY.
9. Termination and Breach
a. Either party may sue for specific performance/injunctive relief.
TOARTS waives its right to object to a Petition for Injunctive Relief or Specific Performance brought by CITY.
b. If CITY sues TOARTS for specific performance, injunctive relief, or under any other theory of law, TOARTS shall be prohibited from using the funds contributed by CITY identified in Section 7 above and any interest earned from said funds to defend itself against a claim, action or suit brought by CITY.
c. Notwithstanding any action for specific performance or injunctive relief as set forth in section 9(a) or 9(b) of this MOU, either party may terminate this MOU for cause upon the occurrence by the other party of any breach of a material term of this MOU, including, without limiting the foregoing, one or more substantial violations or omissions of an obligation required to be performed under this MOU pursuant to the following process:
i. Non-breaching party provides written notification of material breach and provides breaching party 30 calendar days to cure.
ii. If, after 30 days, the dispute still exists, the parties agree to participate in private, nonbinding mediation, the cost of which is split evenly among the- parties.
iii. If the parties are unable to resolve their dispute following mediation, the non-breaching party may terminate this MOU following 30 days' written notice.
d. In the event of a termination following a material breach by TOARTS, TOARTS shall be prohibited from receiving any disbursement from the any of the funds described in Section 7 of this MOU. e. If TOARTS dissolves for any reason or ceases to operate at BAPAC, or if this MOU is terminated for any other reason whatsoever, TOARTS will:
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i. Request CCF (or applicable community foundation in which funds are deposited) to transfer all Funds outlined in Section 7(b) above, plus any net income earned from said amount to VCCF or another successor agency in accordance with the provisions of the CCF Endowment Fund Instrument of Gift agreement. In the event the funds are transferred, they shall be restricted in the same manner as set forth in Section 7(b), and use of proceeds shall be for the specific purpose of advancing, supporting and presenting visual and performing arts, cultural events, entertainers, and arts education at TOCAP; and
ii. The 2017 TOARTS Funds that are permanently restricted pursuant to Section 7(c) to be transferred to either another existing public charity exempt from federal income tax as described by section 501 (c)(3) of the IRC and is qualified to receive tax-deductible contributions under section 170 of the IRC as well as tax deductible bequests, devises, transfers or gifts under section 2055, 2106, or 2522 of the IRC, subject to City Council ratification, or to a similarly-structured corporation created at CITY's request. In the event the funds are transferred, they shall be restricted in the same manner as set forth in Section 7(c), and use of proceeds shall be for those programs set forth in Section 2, and for the specific purpose of advancing, supporting and presenting visual and performing arts, cultural events, entertainers, arts education at TOCAP, honoring donors, and protecting the visual and performing arts legacy in Thousand Oaks and the Conejo
Valley.
10. Insurance/Indemnification
a. TOARTS shall purchase Directors & Officers Liability insurance coverage with no less than $3 Million in coverage limits. If said Directors & Officers Liability Insurance does not include employment practices liability coverage, TOARTS will purchase an Employment Practices Liability insurance policy with no less than $3 Million in coverage limits.
b. TOARTS shall purchase and continually maintain commercial general liability, automobile, workers' compensation, cybersecurity, child abuse and molestation, property and special event insurance that will cover the events and other actions of TOARTS as necessary and required by law.
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c. All TOARTS insurance policies shall name CITY as an additional insured and TOARTS shall provide CITY with current additional insured certificates issued by TOARTS’ respective insurance carriers.
d. Indemnification by CITY: CITY shall fully indemnify, hold harmless and defend TOARTS, its officers, directors, volunteers, agents, and employees from and against any and all costs, claims and expenses incurred by TOARTS in connection with or arising from any claim by a third party for physical damage to or physical destruction of property, or death of or bodily injury to any person, but only to the extent caused by the negligence or willful misconduct of CITY or its agents, employees or others under CITY's control; provided, however, that CITY's obligations pursuant to this section shall not extend to claims, demands, lawsuits or actions for liability to the extent attributable to the negligence or willful misconduct of TOARTS, its officers, directors, volunteers, agents, and employees. e. Indemnification by TOARTS: TOARTS shall fully indemnify, hold harmless and defend CITY, and CITY's officers, officials, directors, volunteers, agents, and employees from and against any and all costs, claims and expenses incurred by CITY in connection with or arising from any claim by a third party for physical damage to or physical destruction of property, or death of or bodily injury to any person, but only to the extent caused by the negligence or willful misconduct of TOARTS or its officers, directors, volunteers, agents, employees or others under TOARTS’ control; provided, however, that TOARTS’ obligations pursuant to this section shall not extend to claims, demands, lawsuits or actions for liability to the extent attributable to the negligence or willful misconduct of CITY or its officials, officers or employees.
f. Notice of Claims. Any party seeking indemnification hereunder (the "Indemnified Party") shall deliver to the other party (the "Indemnifying Party") a notice describing the facts underlying its indemnification claim and the amount of such claim (each such notice a "Claim Notice"). TOARTS shall also comply with all claims and notice requirements a party must follow when seeking redress against a public entity as required by the California Government Claims Act (the '-'Act"). In addition to claims and notice requirements required under the Act, any Claim Notice shall be delivered promptly to the Indemnifying Party after the Indemnified Party receives notice that an action at law or a suit in equity has commenced. Failure to deliver the Claim Notice as aforesaid shall not relieve the Indemnifying Party of its obligations under this section, unless such Indemnifying Party has been prejudiced by such failure, or the Indemnified Party was CAD:901-40\js\H:\COMMON\TOARTS\MOU\260929
required to but failed to comply with the requirements set forth in the Act.
g. Force Majeure: If and to the extent that a Party’s performance of any of its obligations pursuant to this Agreement is prevented, hindered or delayed directly or indirectly by fire, flood, earthquake, elements of nature or acts of God, acts of war, terrorism, riots, civil disorders, rebellions or revolutions, or any other similar case beyond the reasonable control of such Party (each a Force Majeure Event) and such non-performing, hindrance or delay could not have been prevented by reasonable precautions, then the non-performing, hindered or delayed Party shall be excused for such nonperformance, hindrance or delay, as applicable, of those obligations affected by the Force Majeure Event for as long as the Force Majeure Event continues and, except as otherwise provided in this Section, such Party continues to use its reasonable efforts to recommence performance whenever and to whatever extent possible without delay, including the use of alternate sources, workaround plans or other means. The Party whose performance is prevented, hindered or delayed by a Force Majeure Event shall promptly notify the other Party of the occurrence of the Force Majeure Event and describe in reasonable detail the nature of the Force Majeure Event.
11. Assignment
This MOU is not assignable or transferable by either party without the express, written consent of the other party.
12. Third Party Agreements
Neither party shall enter into any contract that would obligate the other (and/or its facilities, equipment or personnel) without the prior written approval of the other party. Neither party has the authority to bind the other, by contract or otherwise, in any amount.
13. TOARTS Records
TOARTS shall keep and maintain records in accordance with its adopted Records and Retention Schedule. CITY shall have the right to inspect, copy and audit such records and accounts during and/or following the close of any TOARTS fiscal year following reasonable notification to TOARTS.
14. Notice
Each party shall provide written notice to the other party of any updated information that affects this MOU and any other notices by CAD:901-40\js\H:\COMMON\TOARTS\MOU\260929
addressing a letter to the attention of the other party at 2100 East Thousand Oaks Blvd., Thousand Oaks, CA 91362.
15. Conflict Between Documents
The rights and responsibilities of CITY and TOARTS are reflected in this MOU and TOARTS’ bylaws. It is the intent of the parties that matters related to this MOU be interpreted in a manner that achieves the intent, and effectuates the meaning, of both documents. In the event there is an unresolvable conflict whereby there is no reasonable interpretation to effectuate and give meaning to each provision, then the provisions of this MOU shall control.
The parties, having been duly authorized by their respective Councilor Board, execute the MOU effective
________________________.
THOUSAND OAKS ALLIANCE FOR THE ARTS
By: ___________________________________
Albert H. Lowe, Chair
CITY OF THOUSAND OAKS
By: _______________________________
Mikey Taylor, Mayor
APPROVED AS TO ADMINISTRATION:
By: ____________________________
Andrew P. Powers, City Manager
ATTEST:
By:____________________________
Laura B. Maguire, City Clerk
APPROVED AS TO FORM:
By: ____________________________
Tracy M. Noonan, City Attorney