Item 5 - Proposed Programming Agmt. with PCPA Foundation AGENDA REPORT SUMMARY °'�� �F P���r
���m'«u rt+e co���i
TO: Honorable Mayor and Members of the City Council
FROM: James L. Bowersox, City Manager�
INITIATED BY: Robert A. Clark, Director of Community Service
DATE: July 5, 2005
SUBJECT: Proposed Programming Agreement with the Poway Center for the Performing Arts
Foundation for FY 05/06 through FY 06/07
ABSTRACT
The City Council is being asked to approve the two-year programming with the private non-profit
Poway Center for the Performing Arts Foundation. Once approved, the amended Programming
Agreement will be in effect until June 30, 2007.
ENVIRONMENTAL REVIEW
This action is not subject to the CEQA review.
FISCAL IMPACT
The recommended annual subsidy for the Poway Center for the Performing Arts Foundation is
$211,000 for FY 05/06 and $221,000 for FY 06/07 and is consistent with the amounts requested in
the City's Proposed Financial Plan. The $100,000 line of credit will remain in place to be used for
the purposes of cash management only. If such funds are drawn upon, they are to be reimbursed
to the City during the same or immediately following fiscal year.
ADDITIONAL PUBLIC NOTIFICATION AND CORRESPONDENCE
Additional notification sent to the Executive Director, Poway Center for the Performing Arts
Foundation and the Board of Directors for the Poway Center for the PerForming Arts Foundation.
RECOMMENDATION
It is recommended that the City Council approve the proposed Programming Agreement
(Attachment C)with the Poway Center for the Performing Arts Foundation and authorize the annual
subsidy of $211,000 for FY 05/06 and $221,000 for FY 06/07, consistent with the City's Proposed
Financial Plan.
ACTION
N:�Ciry�Share�agenGa-sum.tloc 7/1/03
1 of 17 July 5, 2005 Item # �`
CITY OF POWAY °� ��Y
AGENDA REPORT �E�„� ,�,E�o��°
TO: Honorable Mayor and Members of the City Council
FROM: James L. Bowersox, City Manag�
INITIATED BY: Robert A. Clark, Director of Community Servi
Peggy Stewart, Community Services Manag��
DATE: July 5, 2005
SUBJECT: Proposed Programming Agreement with the Poway Center for
the Performing Arts Foundation for FY 04/05 through FY 05/06
BACKGROUND
In 1996 the City first entered into a Programming Agreement with the private, non-profd
Poway Center for the PerForming Arts Foundation. That agreement was revised and
extended in 1998 to reflect the move toward more independence from the City by the
Foundation, including the hiring of a full-time Executive Director. Under the terms of the
agreement approved by the Council on June 24, 2003, the City provided an annual
subsidy of $191,000, a $100,000 line of credit, and use of the Center facilities at no
cost to the Foundation.
This agreement followed steps taken by the Council on November 19, 2002, of
providing $251,000 in additional financial support aimed at keeping the Foundation
solvent, and positioning it to begin FY 03/04 without a deficit and to implement a viable
reorganization plan. The City required the Foundation to provide detailed financial
reports to the Community Services Department on a monthly basis and to report to the
City its specific plan for staffing, fundraising and program schedule adjustments.
In the intervening two years, the Foundation developed a new business and financial
plan, restructured the organization and sta�ng levels, and established a reduced
presenting program that was more financially viable overall. Through ticket sales and
fundraising efforts,they ended the FY 03/04 season with a$73,082 reserve to be used
for future programming and operations. Akhough ticket sales and fundraising activities
for FY 04/05 were not as successful as the prior year's, the Foundation still projects to
end June 30, 2005, with over $37,000 in reserves. They have not drawn any funds
from the City's line of credit during the two-year period.
2 of 17 July 5, 2005 Item # -�r'
Agreement with Poway Center for the Performing Arts Founda6on
July 5, 2005
FINDINGS
Under the leadership of Henry Kom, Executive Director, and the Board of Directors,the
Poway Center for the Performing Arts Foundation has been committed to stabilizing
and rebuilding the Foundation. To this end they have:
. Maintained lean staffing levels, implemented stringent cost controls, and
aggressively pursued private fundraising activities. When ticket sales
dropped early in the 04/05 season, they immediately instituted cost cutting
measures to offset the losses.
• Expanded the Board of Directors and provided extensive Board training in
strategic planning, development and fundraisi�g. Established a Business
Council.
• Pursued a reduced season in the short term and focused on programs that
best fulfill the key values of entertainment, education and high quality. The
Foundation's line-up for the 2006 Season includes a mini-drama series
featuring notable Broadway, Hollywood, and literary personalities; a concert
version of the popular Broadway musical "Smokey Joe's Cafe":, rock icon,
solo aRist and guitarist Dave Mason; and two family shows presented by the
Kennedy Center and Missoula Children's Theatre.
• Continued with timely submissions of monthly financial reporting, which
provides clear information on overall revenue and expenses and on
individual performances.
. The budget for FY 05/06 is a break-even budget based upon the above
season and conservative revenue estimates (Attachment A).
The proposed Programming Agreement (Attachments B 8�C)recognizes the progress
made by the Foundation.
• Reflects that the Foundation has not received any inflation adjustments to
the City's contributions over the past three years. Therefore,the City's direct
financial contribution increases by 10.5% in FY 05/06 to $211,000 and
increases an additional 5% in FY 06/07 to $221,000. The funding is to be
used for presenting 4 to 6 main stage productions during each of the two
fiscal years.
• Specifies that the contributions are to be used to offset expenses not
recovered from ticket sales associated with the productions including artist
fees, technical labor, marketing and a proportionate amount of Foundation
staff time.
• Authorizes the Foundation to carry over excess funds from each fiscal year
to be used for future programming and operations.
ENVIRONMENTAL REVIEW
This action is not subject to the CEQA review.
3 of 17 July 5, 2005 Item # S
Agreement with Poway Center for fhe Performing Arts Foundation
Juty 5, 2005
FISCAL IMPACT
The recommended annual subsidy for the Poway Center for the Performing Arts
Foundation is$211,000 for FY 05/06 and $221,000 for FY 06/07 and is consistent with
the amounts requested in the City's Proposed Financial Plan. The $100,000 line of
credit will remain in place to be used for the purposes of cash management only. If
such funds are drawn upon, they are to be reimbursed to the City during the same or
immediately following fiscal year.
PUBLIC NOTIFICATION AND CORRESPONDENCE
Additional not�cation sent to the Executive Director, Poway Center for the Performing
Arts Foundation and the Board of Directors for the Poway Center for the Pertorming
Arts Foundation.
RECOMMENDATION
It is recommended that the City Council approve the proposed Programming
Agreement (Attachment C)with the Poway Center for the Performing Arts Foundation
and authorize the annual subsidy of$211,000 for FY 05/06 and $221,000 for FY 06/07,
consistent with the City's Proposed Financial Plan.
JLB:RAC:PAS
Attachments:
A. FY 05/06 Budget & Comparisons
B. Proposed Programming Agreement, Comparative Form
C. Proposed Programming Agreement, Signature Form
4 of 17 July 5,2005 ltem# 5
� o 00000 � � oo�o�oo (p avno � o
W O 000pp Mh tr PfNOCD V f� W 1'! O
� O 000 V n0 � a tO0DYi1D t0 N Y/ N O
O m O m � (p N�M N N NN� NfOMe�a�Yf
O9 O 9 O) ' V N N N 1q W �V � N N � N
7 �
LL m �y m o 0 0
O � �
v1 aD N
� N V
.om o �o � o n � n �noo�
f0 m . �000 a OD OtD OD N t� bt0000 � �. ^ O�D ��[1 r
m �'O � Y OON N t� CftOAOD 011�v1 �000N
V .�.. tn t0 �P') O{O 00�tl N 10 O t0 W f0 � 00 Ol 1� 00
10 %N d Ol� m N �� N A 00 � � V � N .r.. .; � A t�'! 1`A'/
�O
'C V W �t� � ...
A
� ti}m� o °o_ n ° m
'O ti ° � � v
C V O O�O O O ��� CD O � O OD h O O'O O ^ �N t'!
� � � O O O O O Of�O N O N {V O O YI O � OD W N
� �� m DO00 OD TO � � O !"f OD � NO � OM �
O � �m a O! �N t'f h 1fl O W f�t0 01 O ID fD �e'f M
O O p N' N A 00 e� Pi N e� N � fr lV �
� 9 O�� q � 5� �
� m ��n & � 25S g
O. O w.� m `� v - ��
� p C� � pf� N 100 P� Ol Aa /a0P'! A NA
C` � � OT � a�DO0a�0 mY1M001 W A '�t Ia.N _
+ �} n vi ai mv � ai� � vm �
� G O!p � 10 t+f N ' N OD � e� {h N P� ;•f _t�b �
N
� � O �
.a � LLa a N 00
�' ID O 00 O OD 17
m � � {�V O W � � � .�_
d � � CD� N N OD
p � € � a a � ;� �U
� €' e = �` �c
m o � c
l�L � � a � t�' v�i � ���` �9�
� 5 °0 °6 A �
� � LL c c r � , '�� a p
Q � � � C X �' O m
(� (� O
� W b � q : ���- m a rd
m
C C C p � C .' �.:,r'y L
v�i m
H
� � V c .. W � �' � u
� .e o ,. ` m �W c
� p �
� 5 ° a � c 'v �
E � m n a W � � av �a •;
o Eaa 5 '.� c � c x �a L
c «C7cC� a ....: W a � mm wc � �.i a
� v m �c � ° a � w '�t' .. m ;` c o �v t` �
uW m �jpWQ m • �mcpipQ � ° • a « m
mai a axE « � •. oc8c � m $ � Ew � m 'S:; w
E — a_ � � x;
tm F q� "m �4� � o W � a � p � Lm �°rnromua � '
o � o ��'� L �c o�� K m o �.'i' $ m ? : m ' S. �= o�': m
V H U MUF a _W .�..: WaUOQ '1' F- KG. U' � Nd�
5 of 17 Attachment A July 5, 2005 Item # 5
PROGRAMMING AGREEMENT
The City of Poway (hereinafter called "City") and the Poway Center for the
Perfornung Arts Foundation, a charitable, tsx-exempt, California nonprofit corporation
(hereinafter called "Foundation") enter into this Pmgramming Agreement, as it relates to
the presentation of public stage performances and those activities related to the
presentation of public stage performances at the Poway Center for the Performing Arts
(hereinafter called "Center"), on this 1 st day of July�9A3 2005, pursuant to the acdons of
the Poway City Council on '��°°�''�3 July 5, 2005. This Agreement supersedes and
makes void any other previous Ageement between the parties hereto.
IT IS HEREBY AGREED:
RIGHTS AND RESPONSIBILITIES OF THE CITY OF POWAY
1. Ciry shall provide the Center and its facilities and equipment to the Foundation for
the purposes of presenting public stage performances, fundraising events, and other
related activities, at no cost and on a first priority basis, subordinate only to the terms
established in the Center Use Policy, as adopted by the Poway City Council at its meeting
on '���°� ''�� June 12, 2001, which is attached to and made part of this Agreement. �
The administration, scheduling, facility use policies and procedures and the supervision
and the day-to-day management of the Center and its City personnel shall remain the
exclusive right and responsibility of the City. Foundation shall abide by the terms and
conditions of the Center Use Policy, referred to hereinabove, in accommodating the
second (school) and third (community) priority uses of the Center, in the exercise of its
first priority status. Any issues related to the interpretation or applica6on of the Center
Use Policy or the terms of this Agreement shell be referred to the City's Performing Arts
Advisory Committee who shall advise City staff on such matters. The Director of
Community Services or his/her designee, subject only to appeal to the City Manager, or
his/her designee, shall resolve such issues.
2. City shall continue to pmvide office space, office fiuniture, office equipment and
telephone service at no cost as outlined in previous agreements.
3. City shall provide access to the services of its Performing Arts Division staff, as
scheduled, assigned, and supervised by the Director of Community Services or his/her
designee, in support of the Foundation's programming at the Center. The nature, limits,
and amount of such access shall be at the sole discretion of the City as represented by the
Director of Community Services or his/her designee. Such staff shall include the Box
Office staff, the Volunteer Coordinator/House Manager, volunteer front-of-house staff,
and the technical theatre staff. Such staff services shail be provided subject to the
personnel policies and procedures of the City and wiUvn the annual budgetary limitations
as established by the City. City shall provide its technical theatre staff to support the
6 of 17 Attachment B July 5, 2005 Item #_ C'
production of the performances presented by the Foundation. Foundation shall reimburse
the City for the hourly cost of such technicai staff services at a rate to be established by
the City. If, in the sole judgment of the City's Community Services Manager acting in
consultation with the City's Technical Theatre Coordinators, additional technical
personnei, in addition to the City's technical staPF, are required for the safe and effective
support of such perfonnances, the Foundaiion agrees to hire such additional personnel as
its employees. Such Foundation employees shall perform their dudes at the direction and
under the supervision of the City's Technical Theatre Coordinators. The City reserves the
right to charge the Foundation fees to recover the costs of the services, referred to
hereinabove including but not limited to credit cazd merchant account services, provided
for the Foundation's benefit. City and Foundation agtee to discuss alternatives and
reevaluate options at such time as the on-line ticketing fees services aze instituted.
4. City shall provide the following direct financial contributions to the Foundation to
produce 4 to 6 professional main stage productions:
a. The amount of�-99 $211,000 on or about July 1, �9A3- 2005 for presenting
4 to 6 main stage productions during Fiscal Yeaz"'"�4 2005-2006.
b. The amount of�-k�1-99$221,000 on or about July 1, �8A4 2006 for presenting 4
to 6 main stage productions during Fiscal Year�994-�9�5 2006-2007.
5. City payments to the Foundation ouflined in Section 4 shali be made in each fiscal
year for the term of this Ageement upon the City's first regular weekly distribution date
of that respective fiscal yeaz.
6. It is the City's intent that the financial contributions outlined in Section 4 shall be
used to offset expenses not recovered from ticket sales associated with the presentation of
the pmfessional main stage producdons including but not limited to: marketing, artist
fees, technical labor, performance riders, annual brcehure, Foundation staff time
associated with the main stage productions.
7. The City shall secure for the Foundation a Line of Credit in the amount of
$100,000 at a mutually agreed upon financial insritution, collateralized by assets of the
Ciry. These funds shall be used exclusively by the Foundation for the purposes of cash
management and shall be reimbursed to the City within the same or during the
immediately following fiscal year from the year that such funds shall be drawn down.
Such funds shall not be considered as an additional subsidy or budget sugmentation for
the Foundation.
8. City shall provide commemial insurance for the Foundation and each of its boazd
members and staff with Liquor Liability coverage.
7 of 77 July 5, 2005 Item # S
RIGHTS AND RESPONSIBILITIES OF THE POWAY CENTER FOR THE
PERFORMING ARTS FOUNDATION
1. During each fiscal year of the term of this Agreement, the Foundation shall plan,
select, contract for, promote and present, or produce a series of live main stage
performances by professional touring artists and entertainers, and/or semi-professional
locally based productions. All such events shall be consistent with the terms of the
Center Use Policy referenced hereinabove.
2. Foundation shall appoint City's Director of Community Services and another
representative of the Community Services Director's choice (or any two other
representatives designated by City) to serve as voting, Ex Officio members of the
Foundation's board of directors. Foundation shall also invite a member of City's
Performing Arts Advisory Committee to serve as an Ex Officio member of Foundation's
Board of Directors and a member of the Foundation's Boazd of Directors shall be invited
to serve as an Ex Officio member of City's Performing Arts Advisory Committee.
3. Foundation shall commit itself to achieving an annually balanced budget tluough
the generation of earned and uneazned revenue and prudent management by a qualified
board of directors and staf£ Each member of the Boazd of Directors shall meet the
minimum requirements and qualifications established by the boazd, including personal
financial contribution, time commitment and active participation in Foundation events.
Foundation shall recruit, contract for, or employ a well-qualified staff of professionals to
implement the Boazd of Director's policy decisions. Foundation shall ensure effective and
sound management of both its intemal and extemal affairs.
4. Foundation shall take all necessary steps to achieve a balanced budget at the end
of FY 2002-2003 and each Fiscal Yeaz thereafter. The Foundation shall make every
effort to raise additional funds in each Fiscal Yeaz to be used as a reserve for future
programming and operations. The City acknowledges that it is in the best interest of all
parties that the Foundation fund future yeaz reserve accounts and contingencies to reduce
the need for mid-year funding from the City. To meet this objective, the City permits
and encourages the Foundation to carry over excess funds from FY 2002-2003 and each
fiscal year thereafter. The Foundation acknowledges that if fundraising and prudent
fiscal management does not result in a balanced budget that the City has the right to
assume the duties and functions of the Foundation.
5. Foundation shall take all necessary steps to ensure that it contracts with or
employs and supervises qualified labor (e.g. pazking lot attendants, backstage security,
etc.) required to fulfill the Foundation's contractual obligations with artists and meet the
needs of any special or unique services or perquisites provided by the Foundation to its
patrons at its events held at the Center (excepting as provided in Paragraph 3 of The
Rights and Responsibilities of the City of Poway, here-in-above). Such services shall
include but are not limited to reserved pazking, pre or post performance receptions and
other special events and activities. Foundation shall also be solely responsible for
8 of 17 July 5, 2005 Item # 5
maintaining a lisison and good working relationship with I.A.T.S.E. (International
Alliance of T'heatrical Stage Employees) and any other labor unions (e.g. Actor's Equity
Association, American Federation of Musicians, etc.) having jurisdiction over an event
presented by Foundation at the Center. Foundarion sha11 provide, at City's request, a
well-qualified individual to coordinate with the City's technical theatre staff for the
facility and equipment use requirements of each Foundation event. At the City's option,
the Foundation agrees to pay the City a reasonable fee for recovery of the costs of City
parsonnel performing some or all of these technical functions.
6. Foundation shall be responsible for the payment to BMI (Bmadcast Music
Ins6tute, Inc.) and/or ASCAP (American Society of Composers, Arrangers and
Publishers), or any other entity having legal jurisdiction for any contract licensing fees
incurred through the use of copyrighted material, over which such licensing agents have
jurisdiction,during a Foundation event.
7. The CiTy will require the Foundation to provide detailed financial reports to the
City of Poway Community Services Department on a monthly basis that will include
expenditures, revenues and pmjected cash flow, in a format that is satisfactory to the City.
The first report is due no later than July 20,�A93 2005,with subsequent reports due to the �
City on the 20`� of each month. Foundation shall allow the City to inspect its regulaz
montiily financial reports, upon the City's request, including income and expense
statements, bank records, audits, and a balance sheet including but not limited to any
documentation the City deems necessary from this point forward.
8. Foundation shall obtain and maintain in full force and effect for the duration of
tlris Agreement General Liability and Pmperty Damage Insurance, in an amount of not
less than $1,000,000; Director's and Officer's Liabiliry Insurance; and Worker's
Compensation Insurance for all of its employees and independent contractors as required
by law. Such coverage shall name the City of Poway, by separate endorsement, as an
additional insured.
9. Foundation agrees to maintain in good working order all office machinery,
equipment and fiuniture provided to it by the City.
10. Foundation agrees to provide for its own postage, office supplies and
photceopying needs. Mail with postage affixed may be sent out through the City's daily
inter-office mail delivery system.
General Provisions
1. The term of this Agreement shall be July 1, ��2005 through June 30, �995
2007.
2. Ttris Agreement may be terminated for cause upon tlrirty(30)days notice.
9 of 17 July 5, 2005 Item #�_
3. NotUing in this Agreement shall be construed as creating an agency, a
partnership, or any other sort of joint venture between the Ciry and the Foundation, nor
sha11 anything in this Ageement be conshued as creating an employer relationship
between the City and any member of the Foundation's board of directors, its employees,
volunteers, artists, or contractors. Foundation shall not represent, at any time, that it is
the alter ego of the City nor provide the inference or implication that the Foundation
represents the City or the Poway Center for the PerForming Arts in any way. The
Foundation shall do everything within its means and to the City Manager or his/her
designee satisfaction to create a separate and unique identity from the City and the
physical facility of the Poway Center for the Performing Arts.
4. The terms of tlus Agceement are severable and if any portion of this Agreement is
subsequently waived or found to be invalid or illegal, all the remaining portions of the
Ageement shall remain in full force and effect for the full term of the Agreement.
5. The terms of this Agreement shall be subject to a force majeure event, such as an
Act of God, labor disturbance, act of the public enemy, war, insurrecdon, riot, fire, storm
or flood, explosion, breakage or accident to machinery or equipment, any curtailment
order, regulation or restriction imposed by government, military or lawfWly established
civilian authorities, or any other cause beyond the control of the parties to this
Agreement. A fosce majeure event does not include an act of negligence or intentional
wrongdoing. Either party to this Agreement, which is hindered by a force majeure event,
shall make all reasonable efforts to perform its obligations under tlris Agreement.
6. T'his Agreement fully expresses ail understandings between the City and the
Foundation in regards to subject matters addressed in this Agreement. No additions to or
alterations of the terms of this Ageement shall be valid unless made in writing and
formally appmved and executed by duly suthorized agents of both parties.
IN EVIDENCE WHEREOF:
City of Poway Poway Center for t6e Performing
Arts FoundsKon
James L. Bowersox,City Manager �4ar�-Bav�isJane McCarthy, President �
Date: Date:
Approved as to form:
10 of 17 July 5, 2005 Item #�+
c'°��s Tamaza Smith �
City Attomey
11 of 17 July 5, 2005 Item #�_„
PROGRAMMING AGREEMENT
The City of Poway (hereinafter called °City") and the Poway Center for the
Performing Arts Foundation, a chazitable, tax-exempt, Califomia nonprofit corporation
(hereinafter called "Foundation") enter into this Programming Agreement, as it relates to
the presentation of public stage performances and those activities related to the
presentation of public stage performances at the Poway Center for the Performing Arts
(hereinafter called "Center"), on this 1 st day of July 2005, pursuant to the actions of the
Poway City Council on July 5, 2005. This Agreement supersedes and makes void any
other previous Agreement between the parties hereto.
IT IS HEREBY AGREED:
RIGHTS AND RESPONSIBILITIES OF THE CITY OF POWAY
1. City shall provide the Center and its facilities and equipment to the Foundation for
the purposes of presenting public stage performances, fundraising events, and other
related activities, at no cost and on a first priority basis, subordinate only to the terms
established in the Center Use Policy, as adopted by the Poway City Council at its meeting
on June 12, 2001, which is attached to and made part of this Agreement. The
administration, scheduling, faciliTy use policies and procedures and the supervision and
the day-to-day management of the Center and its City personnel shall remain the
exclusive right and responsibility of the City. Foundation shall abide by the terms and
conditions of the Center Use Policy, referred to hereinabove, in accommodating the
second (school) and third (community) priority uses of the Center, in the exercise of its
first priority status. Any issues related to the interpretation or application of the Center
Use Policy or the terms of this Agreement shall be referred to the City's Performing Arts
Advisory Committee who shall advise City staff on such matters. The Director of
Community Services or his/her designee, subject only to appeal to the City Manager, or
his/her designee, shall resolve such issues.
2. City shall continue to provide office space, office furniture, office equipment and
telephone service at no cost as outlined in previous agreements.
3. City shall provide access to the services of its Performing Arts Division staff, as
scheduled, assigned, and supervised by the Director of Community Services or his/her
designee, in support of the Foundation's programming at the Center. The nature, limits,
and amount of such access shall be at the sole discretion of the City as represented by the
Director of Community Services or his/her designee. Such staff shall include the Box
Office staff, the Volunteer Coordinator/I3ouse Manager, volunteer front-of-house staff,
and the technical theatre staf£ Such staff services shall be provided subject to the
personnel policies and procedures of the City and within the annual budgetary limitations
as established by the City. Ciry shall provide its technical theatre staff to support the
12 of 17 Attachment C July 5, 2005 Item #�_
production of the performances presented by the Foundation. Foundation shall reimburse
the City for the hourly cost of such technical staff services at a rate to be established by
the City. If, in the sole judgment of the City's Community Services Manager acting in
consultation with the City's Technical Theatre Coordinators, additional technical
personnel, in addition to the City's technical staff, are required for the safe and effective
support of such performances, the Foundation agrees to hire such additional personnel as
its employees. Such Foundation employees shall perform their duties at the direction and
under the supervision of the City's Technical Theatre Coordinators. The City reserves the
right to chazge the Foundation fees to recover the costs of the services, referred to
hereinabove including but not limited to credit cazd merchant account services, provided
for the Foundation's benefit. City and Foundation agree to discuss alternatives and
reevaluate options at such time as the on-line ticketing fees services are instituted.
4. City shall provide the following direct financial contributions to the Foundation to
produce 4 to 6 professional main stage productions:
a. The amount of$211,000 on or about July 1, 2005 for presenting 4 to 6 main stage
productions during Fiscal Year 2005-2006.
b. The amount of$221,000 on or about July 1, 2006 for presenting 4 to 6 main stage
productions during Fiscal Year 2006-2007.
5. City payments to the Foundation outlined in Section 4 shall be made in each fiscal
year for the term of this Agreement upon the City's first regular weekly distribution date
of that respective fiscal year.
6. It is the City's intent that the financial contributions outlined in Section 4 shall be
used to ofFset expenses not recovered from ticket sales associated with the presentation of
the professional main stage productions including but not limited to: marketing, artist
fees, technical labor, performance riders, annual brochure, Foundation staff time
associated with the main stage productions.
7. The City shall secwe for the Foundation a Line of Credit in the amount of
$100,000 at a mutually agreed upon financial institution, collateralized by assets of the
City. These funds shall be used exclusively by the Foundation for the purposes of cash
management and shall be reimbursed to the City within the same or during the
immediately following fiscal year from the year that such funds shall be drawn down.
Such funds shall not be considered as an additional subsidy or budget augmentation for
the Foundation.
8. City shall provide commercial inswance far the Foundation and each of its board
members and staff with Liquor Liability coverage.
13 of 17 July 5, 2005 Item # 5
RIGHTS AND RESPONSIBILITIES OF THE POWAY CENTER FOR THE
PERFORMING ARTS FOUNDATION
1. During each fiscal year of the term of this Agreement, the Foundation shall plan,
select, contract for, promote and present, or produce a series of live main stage
performances by professional touring artists and entertainers, and/or semi-professional
locally based productions. All such events shall be consistent with the terms of the
Center Use Policy referenced hereinabove.
2. Foundation shall appoint CiTy's Director of Community Services and another
representative of the Community Services Director's choice (or any two other
representatives designated by City) to serve as voting, Ex Officio members of the
Foundation's board of directors. Foundation shall also invite a member of City's
Performing Arts Advisory Committee to serve as an Ex Officio member of Foundation's
Boazd of Directors and a member of the Foundation's Board of Directors shall be invited
to serve as an Ex Officio member of City's Performing Arts Advisory Committee.
3. Foundation shall commit itself to achieving an annually balanced budget through
the generation of earned and unearned revenue and prudent management by a qualified
board of directors and staf£ Each member of ttte Board of Directors shall meet the
minimum requirements and qualifications established by the board, including personal
financial contribution, time commitment and active participation in Foundation events.
Foundation shall recruit, contract for, or employ a well-qualified staff of professionals to
implement the Boazd of Director's policy decisions. Foundation shall ensure effective and
sound management of both its internal and external affairs.
4. Foundation shall take all necessary steps to achieve a balanced budget at the end
of FY 2002-2003 and each Fiscal Year thereafter. The Foundation shall make every
effort to raise additional funds in each Fiscal Year to be used as a reserve for future
programming and operations. The City acknowledges that it is in the best interest of all
parties that the Foundation fund future yeaz reserve accounts and contingencies to reduce
the need for mid-year funding from the City. To meet this objective, the City permits
and encourages the Foundation to carry over excess funds from FY 2002-2003 and each
fiscal year thereafter. The Foundation acknowledges that if fundraising and prudent
fiscal management does not result in a balanced budget that the City has the right to
assume the duties and functions of the Foundation.
5. Foundation shall take all necessary steps to ensure that it contracts with or
employs and supervises qualified labor (e.g. pazking lot attendants, backstage security,
etc.) required to fulfill the Foundation's contractual obligations with artists and meet the
needs of any special or unique services or perquisites provided by the Foundation to its
patrons at its events held at the Center (excepting as provided in Paragraph 3 of The
Rights and Responsibilities of the City of Poway, here-in-above). Such services shall
include but are not limited to reserved parking, pre or post performance receptions and
other special events and activities. Foundation shall also be solely responsible for
14 of 17 July 5, 2005 Item # 5
maintaining a liaison and good working relationship with I.A.T.S.E. (International
Alliance of Theatrical Stage Employees) and any other labor unions (e.g. Actor's Equity
Association, American Federation of Musicians, etc.) having jurisdiction over an event
presented by Foundation at the Center. Foundation shall provide, at Ciry's request, a
well-qualified individual to coordinate with the City's technical theatre staff for the
facility and equipment use requirements of each Foundation event. At the City's option,
the Foundation agrees to pay the City a reasonable fee for recovery of the costs of City
personnel performing some or all of these technical functions.
6. Foundation shall be responsible for the payment to BMI (Broadcast Music
Institute, Inc.) and/or ASCAP (American Society of Composers, Arrangers and
Publishers), or any other entity having legal jurisdiction for any contract licensing fees
incurred through the use of copyrighted material, over which such licensing agents have
jurisdiction, during a Foundation event.
7. The City will require the Foundation to provide detailed financial reports to the
City of Poway Community Services Department on a monthly basis that will include
expenditures, revenues and projected cash flow, in a format that is satisfactory to the City.
The first report is due no later than July 20, 2005, with subsequent reports due to the CiTy
on the 20th of each month. Foundation shall allow the City to inspect its regular monthly
financial reports, upon the City's request, including income and expense statements, bank
records, audits, and a balance sheet including but not limited to any documentation the
City deems necessary from this point forward.
8. Foundation shall obtain and maintain in full force and effect for the duration of
this Agreement General Liability and Property Damage Insurance, in an amount of not
less than $1,000,000; Director's and Officer's Liability Insurance; and Worker's
Compensation Insurance for all of its employees and independent contractors as required
by law. Such coverage shall name the CiTy of Poway, by separate endorsement, as an
additional insured.
9. Foundation agrees to maintain in good working order all office machinery,
equipment and furniture provided to it by the City.
10. Foundation agrees to provide for its own postage, office supplies and
photocopying needs. Mail with postage affixed may be sent out through the City's daily
inter-office mail delivery system.
General Provisions
1. The term of this Agreement shall be July 1, 2005 through June 30, 2007.
2. This Agreement may be terminated for cause upon thirty(30) days notice.
15 of 17 July 5, 2005 Item # S
3. Nothing in this Agreement shall be construed as creating an agency, a
partnership, or any other sort of joint venture between the City and the Foundation, nor
shall anything in this Agreement be construed as creating an employer relationship
between the City and any member of the Foundation's board of directors, its employees,
volunteers, artists, or contractors. Foundation shall not represent, at any time, that it is
the alter ego of the City nor provide the inference or implication that the Foundation
represents the City or the Poway Center for ttte Performing Arts in any way. The
Foundation shall do everything within its means and to the City Manager or his/her
designee satisfaction to create a sepazate and unique identity from the City and the
physical facility of the Poway Center for the Performing Arts.
4. The terms of this Agreement are severable and if any portion of this Agreement is
subsequently waived or found to be invalid or illegal, all the remaining portions of the
Agreement shall remain in full force and effect for the full term of the Agreement.
5. The terms of this Agreement shall be subject to a force majeure event, such as an
Act of God, labor disturbance, act of the public enemy, war, insurrection, riot, fire, storm
or flood, explosion, breakage or accident to machinery or equipment, any curtailment
order, regulation or restriction imposed by government, military or lawfully established
civilian authorities, or any other cause beyond the control of the parties to this
Agreement. A force majeure event does not include an act of negligence or intentional
wrongdoing. Either party to this Agreement, which is hindered by a force majeure event,
shall make all reasonable efforts to perform its obligations under this Agreement.
6. This Agreement fully expresses all understandings between the City and the
Foundation in regazds to subject matters addressed in this Agreement. No additions to or
alterations of the terms of this Agreement shall be valid unless made in writing and
formally approved and executed by duly authorized agents of both parties.
IN EVIDENCE WHEREOF:
City of Poway Poway Center for the Performing
Arts Foundation
James L. Bowersox, City Manager Jane McCarthy, President
Date: Date:
Approved as to form:
16 of 17 July 5, 2005 Item #�_
Tamaza Smith
City Attorney
17 of 17 July 5, 2005 Item # 5 ,