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® CITY COUNCIL
AGENDA ❑ COMMUNITY DEVELOPMENT COMMISSION
REPORT ❑ SUCCESSOR AGENCY
❑ BUENA SANITATION DISTRICT
❑ JOINT POWERS FINANCING AUTHORITY
Department: Recreation & Community Services Item No: C7 Prepared by: Jessica Boensch, Management Analyst Meeting Date: September 13, 2022 Mike Pacheco, Director
Approved by: Patrick Johnson, City Manager Agenda Location: Consent Calendar SUBJECT: MOONLIGHT CULTURAL FOUNDATION AGREEMENT AMENDMENT RECOMMENDATION:
1. Adopt City Council Resolution No. 2022- , adopting the First Amendment to the agreement between the City of Vista and Moonlight Cultural Foundation.
2. Adopt City Council Resolution No. 2022- , amending the Operating Budget for Fiscal Year 2022/23.
CORRELATION TO CITY COUNCIL GOALS: Parks and Recreation.
PRIOR ACTION: No prior action.
STATEMENT ON THE SUBJECT: In 2015, the City entered into an agreement with the Moonlight Cultural Foundation (Foundation) to outline the Foundation's philanthropic and fundraising role for the benefit of facilities and programs operated by the Cultural Arts Division of the Recreation and Community Services Department.
The Foundation utilizes the AVO Playhouse (AVO) and Moonlight Amphitheatre (Moonlight) for the Moonlight Youth Theatre. Currently, the Foundation is charged a per use fee for each facility, which includes the production of two shows at the AVO, one show at the Moonlight, and summer camp. The Foundation pays approximately $22,000 in rental fees annually, excluding labor, janitorial, and ticket fees.
Staff recommends amending the agreement with the Foundation to set an annual rental rate of$25,000, which would include show productions, rehearsals, and camps. The $25,000 rate provides Moonlight Youth Theatre with the opportunity to produce an additional show in 2023 and beyond in response to heightened demand for the program.
The amendment provides the Foundation 120 hours of Moonlight rentals over a maximum of 12 days and 150 hours of AVO Playhouse rentals over a maximum of 15 days. The Foundation would also be granted an additional 25 days of Moonlight rentals for Moonlight Youth Theatre Summer Camp for the given rate.
Any use of the facilities over the hours specified in the agreement amendment would be subject to normal rental fees.
FISCAL IMPACT: City Council approval of the staff recommendation will amend the FY 2022/23 Operating Budget to recognize increased revenue in 0010030.431210.AVREN by $3,000 and ACTION: Approved above recommendation, adopted the following: 1) City Council Resolution No. 2022-136; and 2) City Council Resolution No. 2022-137. Vote: 5-0 Clerk/Secr tary
09/13/2022 C7 1 of 14
MEETING DATE: September 13, 2022 PAGE 2
SUBJECT: MOONLIGHT CULTURAL FOUNDATION AGREEMENT AMENDMENT appropriating $500 of additional rental labor expenses into the 0010560.512000.AVREN expenditure account.
EXHIBITS:
1. City Council Resolution No. 2022- , adopting the First Amendment to the agreement between the City of Vista and Moonlight Cultural Foundation
2. City Council Resolution No. 2022- , amending the Operating Budget for Fiscal Year 2022/23
3. Agreement with Moonlight Cultural Foundation for Philanthropic Services
4. First Amendment to the agreement with Moonlight Cultural Foundation 09/13/2022 C7 2 of 14
RESOLUTION NO. 2022-
A RESOLUTION OF THE CITY COUNCIL OF THE CHARTERED CITY OF
VISTA, CALIFORNIA, ADOPTING THE FIRST AMENDMENT TO THE
AGREEMENT BETWEEN THE CITY OF VISTA AND THE MOONLIGHT
CULTURAL FOUNDATION
The City Council of the City of Vista does resolve as follows:
1. Findings. The City Council hereby finds and declares the following:
A. The Moonlight Cultural Foundation ("Foundation") serves a philanthropic and fundraising role to benefit the facilities and programs operated by the Cultural Arts Division of the Recreation & Community Services Department.
B. The City Council approved an agreement with the Foundation on December 15, 2022. The amendment to this agreement would allow the Foundation to rent the AVO Playhouse and Moonlight Amphitheatre facilities for the number of hours designated in the amendment for a base rate of$25,000.
2. Action.
A. The First Amendment to the contract between the City of Vista and Moonlight Cultural Foundation is approved, and the Mayor is authorized to execute the amendment.
3. Adoption. PASSED AND ADOPTED at a meeting of the City Council of the City of Vista held on September 13, 2022, by the following vote:
AYES:
NOES:
ABSTAIN:
JUDY RITTER, MAYOR
APPROVED AS TO FORM: ATTEST:
WALTER CHUNG, CITY ATTORNEY KATHY VALDEZ, CITY CLERK By: By:
APPROVED
Walter C.Chung
20220830101026
000292137 EXHIBIT 1
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RESOLUTION NO. 2022-
A RESOLUTION OF THE CITY COUNCIL OF THE CHARTERED CITY OF
VISTA, CALIFORNIA, AMENDING THE OPERATING BUDGET FOR
FISCAL YEARS 2021/22 AND 2022/23
The City Council of the City of Vista does resolve as follows:
1. Findings. The City Council hereby finds and declares the following:
A. On June 8, 2021 the City Council adopted Resolution 2021-89 approving the Operating Budget for Fiscal Years 2021/22 and 2022/23.
B. The City Council desires to amend the Operating Budget at this time to reflect changed circumstances.
2. Action.
A. The Operating Budget for Fiscal Years 2021/22 and 2022/23 is amended as set forth in Exhibit A.
3. Adoption. PASSED AND ADOPTED at a meeting of the City Council of the City of Vista held on September 13, 2022, by the following vote:
AYES:
NOES:
ABSTAIN:
JUDY RITTER, MAYOR
APPROVED AS TO FORM: ATTEST:
WALTER CHUNG, ACTING CITY ATTORNEY KATHY VALDEZ, CITY CLERK By: By:
APPROVED
Walter C.Chung
20220613085455
EXHIBIT 2
09/13/2022 C7 4 of 14
RESOLUTION NO. 2022-
CITY COUNCIL FOR THE CHARTERED CITY OF VISTA
PAGE 1 EXHIBIT A
Appropriations are hereby made and estimated revenues are hereby adjusted to fund the Moonlight Cultural Foundation 1' Agreement Amendment.
Account Number Account Description Increase Decrease 0010030.431210.AVREN AVO RENTALS $ 3,000 0010560.512000.AVREN SALARIES-TEMPORARY $ 500 09/13/2022 C7 5 of 14
AGREEMENT BETWEEN THE CHARTERED CITY OF VISTA AND THE
MOONLIGHT CULTURAL FOUNDATION FOR PHILANTHROPIC SERVICES THIS AGREEMENT is made and entered into as of IS. ,DCIE ("Agreement Date"), by and between the CITY OF VISTA, a chartered municipal corporation ("City"), and MOONLIGHT CULTURAL FOUNDATION, California non-profit public benefit corporation ("Foundation"). City and Foundation are sometimes individually referred to as a "Party" and collectively as "Parties."
RECITALS
A. City's Moonlight Amphitheatre cultural arts facilities ("Facilities")and programs ("Programs"), can be expanded and improved with the assistance of private individuals and organizations, such as Foundation.
B. Increasing public awareness of the Facilities and Programs within City, San Diego County, and Southern California generally is necessary to promote the public's use and support of the Facilities and Programs.
C. Foundation is duly incorporated pursuant to the California Nonprofit Public Benefit Corporation law and is authorized by law to provide philanthropic volunteer assistance services for the Facilities and Programs, including soliciting and receiving funds and conducting fund-raising events to improve the Facilities and Programs.
D. Foundation and City jointly desire to have Foundation provide its philanthropic volunteer assistance and fundraising capacities ("Services")for the benefit of the Facilities and Programs.
E. Foundation requires a City liaison and requires access to the Facilities and office space in order to provide the Services.
NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, City and Foundation agree as follows:
1. SERVICES TO BE PROVIDED BY FOUNDATION
a. Foundation shall conduct its activities under this Agreement(i.e., soliciting and receiving funds to improve the facilities and programs) in a professional manner for to assist City. The Foundation's activities shall conform to all applicable statutes, laws, and regulations for such activities.
b. Foundation shall use commercially reasonable efforts to solicit, receive and distribute donations and grants of materials, services and funds, or assist City in such efforts, for the improvement of the facilities and programs, provided that, in no event, may Foundation solicit, receive, accept or distribute any donations or grants in the name of City of Vista or its Recreation & Community Services Department without the prior written approval on a project-by-basis by the Director of Recreation & Community Services or his or her designee ("City Agreement Coordinator").
PHILANTHROPIC SERVICES 1 MOONLIGHT CULTURAL FOUNDATION 000293472 EXHIBIT 3 CITY OF VISTA
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C. Foundation will provide a quarterly financial statement in a format approved by the Recreation & Community Services Department on all funds related to joint City/Foundation projects.
d. Foundation may assist City in marketing the Moonlight Amphitheatre and its Facilities and Programs. All marketing (including press releases, press conferences, advertisements, fliers, and public service announcements)will be coordinated by the Director of Recreation & Community Services.
2. USE OF SERVICES
Each of the terms of this Agreement shall be subject to the condition that City may lawfully perform such activities. In the event Foundation has adopted or amended its Bylaws or amended its Articles of Incorporation with the result that Foundation's policies or programs conflict with the purposes of this Agreement, City may terminate this Agreement as provided in Section 7.c.
3. PROGRAM ADMINISTRATION
This Agreement will be administered by the Recreation & Community Services Department of City and the City Agreement Coordinator. The Foundation shall provide two representatives, President of the Moonlight Cultural Foundation and Executive Director of Moonlight Cultural Foundation, (each a "Foundation Principal") to be available to City for consultation and assistance during the term of this Agreement.
4. ASSISTANCE BY CITY
The City shall assist Foundation in performing its obligations under this Agreement by providing staff support, use of space, materials, equipment, postage and mail handling on an as-needed basis to the extent available and only if approved in writing by City Agreement Coordinator.
5. EXPENSES
a. Expenses
The City shall not reimburse Foundation for any expenses incurred by Foundation in performing its obligations under this Agreement except as expressly provided in this Section 5.
b. Authorized Expenses
No expenses are preauthorized under this Agreement. In no event shall City be liable for payment of expenses except as authorized in writing in advance by the City Agreement Coordinator.
C. Schedule
(1) Foundation shall bill City, c/o the Director of Recreation & Community Services at 200 Civic Center Drive, Vista, CA 92084, for expenses incurred under this Agreement.
PHILANTHROPIC SERVICES 2 MOONLIGHT CULTURAL FOUNDATION 000293472 CITY OF VISTA
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(2) The City shall process any applicable expenses due under this Agreement within 20 days after receipt of such bills from Foundation. Payment of any reimbursement shall not constitute a waiver by City of any breach of any part of this Agreement.
6. DISPUTES
If a dispute should arise regarding the performance of this Agreement, the parties agree to attempt to settle the dispute by subsequent agreement between Foundation President and City Agreement Coordinator; and they shall meet within ten days in an effort to resolve the dispute. In the event a dispute continues and has not been resolved within 30 days after first notice of the dispute, Foundation President and City Agreement Coordinator shall state their respective views of the dispute in a letter to City Manager within ten days after the end of such 30-day period, sending copies to each other. The City Manager shall, within ten days after receiving letters from both parties, consider the facts and solutions recommended by each party. In such cases, the action of City Manager shall be binding upon City and Foundation.
Nothing in this procedure shall prohibit the parties from seeking remedies available to them at law or in equity.
7. TERM OF AGREEMENT
a. This Agreement shall take effect on the Agreement Date and continue through the subsequent June 30tn
b. This Agreement will thereafter automatically renew on a year-to-year basis at the end of any agreement period unless terminated as described in Section 6.
C. Either party may terminate this Agreement by tendering written notice to the other party 30 days before the effective date of termination. In such event, or upon request of City, Foundation shall assemble all City property and any rental property in Foundation's possession and put them in order for proper filing and closing, and deliver said documents to City.
8. STATUS OF THE FOUNDATION
Employees of Foundation are not to be considered employees of City, nor shall any members of Foundation be considered employees of City, for any purpose. Similarly, employees of City are not to be considered employees of Foundation for any purpose.
9. OWNERSHIP OF DOCUMENTS
This Section applies in the event Foundation retains an architect or other design professional for the purpose of designing improvements or alterations to City's Moonlight Amphitheatre cultural arts facilities. Subject to the rights and interests of such design professionals, as between City and Foundation, all plans, studies, sketches, drawings, reports, and specifications as herein required are property of City, whether the work for which they are made is executed or not. In the event this Agreement is terminated, and at the end of the term of this Agreement, all such plans, studies, sketches, drawings, reports, and specifications shall, subject to the rights and interests of such design professionals, be delivered immediately to City. The Foundation may retain one copy of each document for its records, but shall have no proprietary rights to them as between City and Foundation.
PHILANTHROPIC SERVICES 3 MOONLIGHT CULTURAL FOUNDATION 000293472 CITY OF VISTA
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10. ASSIGNMENT AND SUBCONTRACTING
a. Foundation shall not assign this contract or subcontract, any part thereof without the prior written consent of City. However, Foundation may retain the services of consultants and design professionals as it deems necessary, pursuant to independent contractor's agreements, to assist it in fulfilling its obligations under this Agreement. b. The Foundation shall be fully responsible to City for any acts and omissions of Foundation's consultants. Nothing contained in this Agreement shall create any contractual relationship between City and any consultant of Foundation.
C. All terms, conditions, and provisions hereof shall inure to and bind each of the parties hereto, and each of their respective heirs, executors, administrators, successors, and assignments.
11. PAROL AGREEMENTS
No oral agreement or representation by any officer, agent, or employee of either party made before, during, or after the execution of this Agreement shall become a part of this Agreement except to the extent such oral agreement or representation is expressly reflected in this written Agreement or a written amendment to this Agreement.
12. CONFLICT OF INTEREST
The Foundation agrees that it shall comply with and be bound by all laws and regulations concerning the relationship of Foundation to City, and in particular with the Conflict of Interest laws, being Chapter 7 of Title 9 of the California Government Code, otherwise known as the Political Reform Act. As a condition precedent to the formation of this Agreement, Foundation warrants and covenants that it is adequately informed regarding the obligations and duties imposed by the Political Reform Act and that to the best of Foundation's knowledge and belief, there exists no conflict of interest(within the meaning of the Political Reform Act) that would disqualify Foundation from participation in any decisions arising out of the performance of this Agreement. Prior to commencement of any work in the performance of this Agreement, Foundation shall comply with the requirements of Chapter 2.32 of the Vista Municipal Code, including the requirement to file a financial disclosure statement with City Clerk.
13. INDEMNIFICATION; INSURANCE
a. The Foundation agrees to defend, indemnify and save harmless City, its officers, agents, and employees from and against any and all claims, demands, losses, defense costs, or liability of any kind or nature which City, its officers, agents, and employees may sustain or incur or which may be imposed upon them for injury to or death of persons, or damage to property as a result of , arising out of, or in any manner connected with Foundation's performance under the terms of this Agreement, excepting to the extent arising out of the negligence or willful misconduct of City or its employees, agents or contractors. b. Without limiting, Foundation's indemnification, it is agreed that Foundation shall maintain in force at all times during the performance of this Agreement the following policy or policies of insurance covering its operations:
PHILANTHROPIC SERVICES 4 MOONLIGHT CULTURAL FOUNDATION 000293472 CITY OF VISTA
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(1) Commercial General Liability, including contractual liability, business automobile liability, and products and completed operations, all of which shall include coverage for both bodily injury and property damage, with a combined single limit of$2,000,000. (2) Workers' Compensation coverage at statutory limits. If Foundation has no employees, this requirement may be waived by the Risk Manager of City in writing.
Foundation's liability insurance policy shall contain the following clauses:
(a) "The City of Vista is named as an additional insured as respects operations of the named insured performed under contract with City". (b) "It is agreed that any insurance maintained by City shall apply in excess of, and not contribute with insurance provided by this policy".
All insurance policies required by this Section shall contain the following clause:
"This insurance shall not be canceled, limited or non-renewed until after thirty days written notice has been given to City".
Certificates of insurance evidencing the coverage required by the clauses set forth above shall be filed with City prior to the effective date of this Agreement. This is a condition precedent to the formation of any obligation by City to compensate Foundation under this Agreement.
14. NOTICE
Any notice, which either party may desire to give to the other party, must be in writing and may be given by personal delivery, by overnight courier service to that party's address set forth below, or by mailing the same by registered or certified mail, return receipt requested, to the party to whom the notice is directed at the address of such party set forth below or such address as the parties may hereinafter designate by giving notice in the manner provided for herein. Any notice given by mail will be deemed given 48 hours after such notice is deposited in the United States mail, addressed as provided, with postage fully prepaid.
All notices to City shall be sent addressed to the following:
City of Vista
Director of Recreation & Community Services
200 Civic Center Drive
Vista, CA 92084
All notices to Foundation shall be addressed to the following:
Moonlight Cultural Foundation
President of the Board
PO Box 2497
Vista, CA 92085
15. ADDITIONAL PROVISIONS
a. This Agreement has been made and is made solely for the benefit of City and Foundation and their respective successors and permitted assigns. Nothing in this PHILANTHROPIC SERVICES 5 MOONLIGHT CULTURAL FOUNDATION 000293472 CITY OF VISTA
09/13/2022 C7 10 of 14
Agreement is intended to confer any rights or remedies under or by reason of this Agreement on any persons other than the parties to it and their respective successors and permitted assigns.
Nothing in this Agreement is intended to relieve or discharge the obligation or liability of any third persons to any party to this Agreement.
b. No party shall be liable for any failure to perform its obligations in connection with any action described in this Agreement, if such failure results from any act of God, riot, war, civil unrest, flood, earthquake, or other cause beyond such party's reasonable control (excluding failure caused by a party's financial condition).
C. No amendment, modification or supplement to this Agreement shall be binding on any of the parties unless it is in writing and signed by the parties in interest at the time of the modification.
d. This Agreement constitutes the entire agreement between the parties with regard to the subject matter hereof. This Agreement supersedes all previous agreements between or among the parties. There are no agreements, representations or warranties between or among the parties other than those set forth in this Agreement. e. If any material covenant, condition or provision herein contained is held to be invalid, void or unenforceable by a final judgment of any court of competent jurisdiction, this Agreement shall become rescinded unless the party benefitted by such covenant, condition or provision delivers to the other party and Escrow Holder, within five (5) days after the judgment becomes final, a written waiver of the covenant, condition or provision, in which case the remainder of this Agreement shall be enforceable.
f. If either party to this Agreement shall bring any action, suit, counterclaim, appeal, arbitration or mediation for any relief against the other, declaratory or otherwise, to enforce the terms hereof or to declare rights hereunder, the losing party shall pay to the prevailing party a reasonable sum for attorneys' fees and costs (including expert witness fees and costs, whether or not the expert is called to testify). g. This Agreement shall be governed by and construed under the laws of the State of California, irrespective of choice-of-law principles. h. Article, section and subsection titles and captions contained in this Agreement are inserted as a matter of convenience and for reference, and in no way define, limit, extend or describe the scope of this Agreement or the intent of any of its provisions. [Continued on page 7.]
PHILANTHROPIC SERVICES 6 MOONLIGHT CULTURAL FOUNDATION 000293472 CITY OF VISTA
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15. EXECUTION
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed as of the Agreement Date.
CITY OF VISTA, a chartered municipal MOONLIGHT CULTURAL FOUNDATION, corporation a California non-profit public benefit corporation
I
By: Pau By.
PATRICK JOHNADN, CITY MANAGER
-,�—
ATTEST: NAME/TITL
KATHY VALDEZ, CITY CLERK
k DOBy:
APPROVED AS TO FORM: 44,fty �3, rq a$,�4S�N VI C��1°R' "NNt a
DAROLD PIEP , CITY T NEY NAME/TITLE
By:
RISK MANAGEMENT REVIEW:
DOLORES GASCON, RISK MANAGER
By:�/
APPROVED
Darold Pieper
20150928215055
PHILANTHROPIC SERVICES 7 MOONLIGHT CULTURAL FOUNDATION 000293472 CITY OF VISTA
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FIRST AMENDMENT TO THE CONTRACT BETWEEN THE CITY OF VISTA
AND MOONLIGHT CULTURAL FOUNDATION FOR PHILANTHROPIC
SERVICES
THIS FIRST AMENDMENT ("First Amendment") to the Contract between the City of Vista and Moonlight Cultural Foundation, dated December 15, 2015 ("Contract"), is made and entered into as of ("First Amendment Date"), by and between the City of Vista, a chartered municipal corporation ("City"), and Moonlight Cultural Foundation, a California non-profit public benefit corporation ("Foundation").
Recitals: City and Foundation now desire to enter into a First Amendment to the Contract by modifying the terms of the Contract.
NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, City and Foundation agree as follows:
1. Section 4 of the Agreement is amended to add Section 4.1 as follows:
In addition to as-needed facility use for Moonlight Cultural Foundation events and concerts, City agrees to allow the Moonlight Cultural Foundation use of the Moonlight Amphitheatre and Avo Playhouse for Moonlight Youth Theatre rehearsals, productions, and camps at the cumulative rate of(1) $25,000 above the Moonlight Cultural Foundation's annual subsidy commitment to City, (2) $1 per ticket fee, (3) all City's reasonable labor expenses, and (4) all costs necessary to clean the venue after Foundation's use.
Foundation's use of the Moonlight Amphitheatre and Avo Playhouse is not unlimited. City agrees to allow Foundation use of the Moonlight Amphitheatre, in its entirety, for up to 120 hours over a maximum of 12 calendar days for Moonlight Youth Theatre productions or concerts. City agrees to allow Foundation use of the Avo Playhouse for up to 150 hours over a maximum of 15 calendar days for Moonlight Youth Theatre Productions or concerts.
City agrees to allow Foundation use of the Moonlight Amphitheatre outdoor spaces, apron of the stage, and rehearsal room for up to 25 calendar days between the hours of 7am and 4pm for Moonlight Youth Theatre Summer Camp.
The dates and times of any allowed use by Foundation herein shall be mutually determined by the parties in advance of any use by Foundation.
The terms of this section, section 4.1, shall be reviewed and amended whenever City Council approves an increase in cultural arts rental rates or, in its sole determination, as needed by the City.
2. All other conditions of the Contract shall continue in full force and effect. 000980644
EXHIBIT 4
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Contract Amendment
IN WITNESS WHEREOF, the parties have executed and entered into this First Amendment as of the First Amendment Date.
CITY OF VISTA, a chartered municipal MOONLIGHT CULTURAL FOUNDATION, corporation a California non-profit public benefit corporation
By:
JUDY RITTER, MAYOR
By: C;)�
ATTEST: Ll
KATHY VALDEZ, CITY CLERK NAMElTitlee ti � t �CGf ? F
By. By:
APPROVED AS TO FORM: NAME/Title GAP-rz- 1r,
WALTER CHUNG,ACTING CITY ATTORNEY
By:
RISK MANAGEMENT REVIEW:
DOLORES GASCON, RISK MANAGER
By:
APPROVED
Walter Chung
20160391622GB22
000980644
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