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CITY COUNCIL AGENDA ITEM NO. 6

Meeting Date: November 13, 2007

Subject/Title: Adopt a Resolution approving a Memorandum of Understanding between the City of Brentwood and the Brentwood Arts Society regarding running a wide variety of community arts programs and authorize the City Manager or her designee to execute the Memorandum of Understanding and make minor technical revisions to the MOU after review by the City Attorney

Prepared by: Poldina Scherff, Recreation Manager

Submitted by: Craig Bronzan, Director of Parks and Recreation

RECOMMENDATION
Adopt a Resolution approving a Memorandum of Understanding between the City of Brentwood and the Brentwood Arts Society regarding running a wide variety of community arts programs and authorize the City Manager or her designee to execute the Memorandum of Understanding and make minor technical revisions to the MOU after review by the City Attorney.

PREVIOUS ACTION
On September 12, 2000, City Council approved Chapter 2.44 Arts Commission of the Brentwood Municipal Code which established the present Arts Commission.

On September 23, 2003, City Council waived the second reading of Ordinance No. 760 amending Chapter 2.44 Arts Commission to amend officers (adding position of Past-Chair), add the position of poet laureate, and establish the Public Art Program.

On February 27, 2007 City Council discussed the future filling of Commission vacancies.

On September 11, 2007, introduced and waived the first reading and on September 25, 2007 waived the second reading and adopted Ordinance 847 amending in its entirety, Chapter 2.44 of Title 2 of the Brentwood Municipal Code entitled “Arts Commission” with a new Chapter 2.44 entitled “Arts”.

BACKGROUND
The September 25, 2007 City Council action adopted Ordinance No. 847 amending in its entirety, Chapter 2.44 of Title 2 of the Brentwood Municipal Code entitled “Arts Commission” with a new Chapter 2.44 entitled “Arts”. As a result of that action, the Arts Commission no longer runs art programs. Parks and Recreation Department staff provided support to the 2007 Art, Wine and Jazz Festival that concluded on September 29 & 30, 2007 at City Park. Staff also provided support to the remaining art show exhibit at the Tech Center. These events have concluded and remaining revenues and expenditures that were budgeted for arts related programs remain outstanding. Once the Art, Wine and Jazz Festival budget has been finalized, staff expects to have approximately $30,000 left in the Arts Commission budget for arts related programs. Currently we have appropriate funding in the 2007/08 and 2008/09 Operating Budgets. It is from these funds that staff is recommending a Memorandum of Understanding with the Brentwood Arts Society or another arts related 501(c)3 non-profit to continue programs until the funding ends.

As outlined in the MOU the City will waive facility and mobile stage rental fees; however, the Arts Society would be responsible for payment of application fees, deposits, cleaning fees and staff costs as these items are hard costs and cannot be waived.

Staff is recommending that the City continue to enter into these agreements annually as a means of properly projecting costs and services for a variety of community wide arts programs until the balance of the account is zero. At that time, the City will no longer fund arts related programs unless specific funding is identified upfront. This MOU outlines the various responsibilities and costs associated with art program events and, for consistency, follows the format established by the City for Cornfest.

FISCAL IMPACT
The request for funds for the duration of this MOU are as follows: $7,000 has been allocated in the Fiscal Year 2007/08 and $30,000 has been allocated in Fiscal Year 2008/09 in the Operating Budget for running arts programs. No anticipated waiver of fees for Fiscal Year 2007/08. The anticipated waiver of fees for facility and mobile stage rental is estimated at $5,000 for Fiscal Year 2008/09.

Attachments:
Resolution
Memorandum of Understanding

RESOLUTION NO.

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BRENTWOOD APPROVING A MEMORANDUM OF UNDERSTANDING BETWEEN THE CITY OF BRENTWOOD AND THE BRENTWOOD ARTS SOCIETY REGARDING RUNNING A WIDE VARIETY OF COMMUNITY ARTS PROGRAMS AT A COST OF $37,000 AND AUTHORIZING THE CITY MANAGER OR HER DESIGNEE TO EXECUTE THE MEMORANDUM OF UNDERSTANDING AND MAKE MINOR TECHNICAL REVISIONS TO THE MOU AFTER REVIEW BY THE CITY ATTORNEY

WHEREAS, on September 12, 2000, City Council approved Chapter 2.44 Arts Commission of the Brentwood Municipal Code which established the present Arts Commission; and

WHEREAS, on September 23, 2003, City Council waived the second reading of Ordinance No. 760 amending Chapter 2.44 Arts Commission to amend officers (adding position of Past-Chair), add the position of poet laureate, and establish the Public Art Program; and

WHEREAS, on February 27, 2007, City Council discussed the future filling of Commission vacancies; and

WHEREAS, on September 11, 2007, introduced and waived the first reading and on September 25, 2007 waived the second reading and adopted Ordinance No. 847 amending in its entirety, Chapter 2.44 or Title 2 of the Brentwood Municipal Cod entitled “Arts Commission” with a new Chapter 2.44 entitled “Arts”; and

WHEREAS, the City desires to continue its support of the arts programs that were previously run by the Arts Commission through the currently available budgeted arts program money; and

WHEREAS, the Arts Society has expressed an interest in running a wide variety of arts programs at cost of $7,000 for the remainder of Fiscal Year 2007/2008 and $30,000 for Fiscal Year 2008/2009; and

WHEREAS, the Parties further desire to memorialize their relationship in this MOU and to set forth their respective roles and obligations; and

NOW THEREFORE BE IT RESOLVED that the City Council of the City of Brentwood approves a Memorandum of Understanding between the City and the Brentwood Arts Society regarding running a wide variety of arts programs at a cost of $37,000 ($7,000 for Fiscal Year 2007/2008 and $30,000 for Fiscal Year 2008/2009) and authorizes the City Manager or her designee to execute the Memorandum of Understanding and make minor technical revisions to the MOU after review by the City Attorney.

PASSED, APPROVED AND ADOPTED by the City Council of the City of Brentwood at a regular meeting held on 13th day of November, 2007 by the following vote:

MEMORANDUM OF UNDERSTANDING
BETWEEN
THE BRENTWOOD ARTS SOCIETY
AND THE CITY OF BRENTWOOD

This Memorandum of Understanding (“MOU”) is entered this ____ day of _________, 2007 (“Effective Date”), by and between the Brentwood Arts Society , a 501(c)3 non-profit in the State of California (“Society”), and the City of Brentwood, a municipal corporation of the State of California (“City”) (collectively, the “Parties”).

RECITALS

A. On September 12, 2000, the City Council approved Chapter 2.44 Arts Commission of the Brentwood Municipal Code which established the present Arts Commission.

B. On September 23, 2003, the City Council waived the second reading of Ordinance No. amending Chapter 2.44 Arts Commission to amend officers (adding position of Past-Chair), add the position of poet laureate, and establish the Public Art Program.

C. On February 27, 2007, the City Council discussed the future filling of Arts Commission vacancies.

D. On September 11, 2007, introduced and waived the first reading and on September 25, 2007 waived the second reading and adopted Ordinance 847 amending in its entirety, Chapter 2.44 or Title 2 of the Brentwood Municipal Cod entitled “Arts Commission” with a new Chapter 2.44 entitled “Arts”.

E. The City desires to continue its support of the arts programs that were previously run by the Arts Commission through the currently available budgeted arts program money.

F. The Society has expressed an interest in running a wide variety of arts programs in the City.

G. The Parties further desire to memorialize their relationship in this MOU and to set forth their respective roles and obligations related to the City’s support of the arts programs that the Society may run.

NOW, THEREFORE, IT IS HEREBY AGREED by the Parties as follows:

1. Responsibilities of the Society. Along with the terms and conditions of this MOU, the Society agrees to be responsible for and complete those items set forth in the attached Exhibit A, which is incorporated herein by this reference.

2. Responsibilities of the City. Along with the terms and conditions of this MOU, the City agrees to be responsible for and complete those items set forth in the attached Exhibit B, which is incorporated herein by this reference.

3. Relationship of the Parties. It is understood that this is an MOU by and between independent contractor(s) and is not intended to, and will not be construed to, create the relationship of agent, servant, employee, partnership, joint venture or association, or any other relationship whatsoever other than that of independent contractor.

4. Term. This MOU will commence on the Effective Date and, unless terminated earlier pursuant to this Agreement, will terminate December 31, 2008.

5. Indemnity. Except as to the sole negligence or willful misconduct of the Society, City will defend, indemnify and hold the Society, its officers, agents and employees, harmless from any and all loss, damage, claims, demands, liability, expense or cost, including reasonable attorneys’ fees, which arises out of, or is in any way connected with the performance of, the services by City or any of City’s employees, agents or subcontractors, notwithstanding that the Society may have benefited from their services.

Except as to the sole negligence or willful misconduct of City, the Society will defend, indemnify and hold City, its officers, agents and employees, harmless from any and all loss, damage, claims, demands, liability, expense or cost, including reasonable attorneys’ fees, which arises out of, or is in any way connected with the performance of, the services by the Society or any of the Society’s employees, agents or subcontractors, notwithstanding that City may have benefited from their services.

The duty of the Parties to indemnify and save harmless as set forth herein, will include the duty to defend as set forth in Section 2778 of the California Civil Code. This Section 5 will survive the expiration of this MOU.

6. Insurance. Each Party will maintain comprehensive general liability insurance in the amount of one million dollars ($1,000,000) combined single limit to protect the Parties, their officers, employees and agents against claims for bodily injury, and property damage arising from the any Party’s participation in the activities described herein. The form of such insurance will be satisfactory to each Party and may include self-insurance at levels acceptable to all Parties. Each Party’s policy or policies will name the other Party as additional insured. This Section 6 will survive the expiration of this MOU.

7. Non-discrimination. The Parties will comply with all applicable local, state and federal laws and regulations prohibiting discrimination and harassment.

8. Entire Agreement. This MOU and its Exhibits A and B set forth and contain the entire understanding and agreement of the Parties, and all oral or written representations, understandings or agreements are expressly stated in this MOU. No testimony or evidence of any such representations, understandings, or covenants will be admissible in any proceeding of any kind or nature to interpret or determine the terms or conditions of this MOU.

9. Amendments. Changes to the terms and conditions of this MOU will be made only by written amendment signed by the Parties.

10. Notices. All notices with respect to this MOU will be given by first class mail to the parties as follows:

City: City of Brentwood
Attention: Craig Bronzan, Director of Parks & Recreation
730 Third Street
Brentwood, CA 94513

Arts Society: Brentwood Arts Society
Attention: Jan Melloni
1155 Sea Breeze Circle
Brentwood, CA 94513

Or to such other persons, addresses or telephone numbers as the Parties may designate in writing from time to time.

11. Termination. Either Party may terminate this MOU, by delivery of written notice of election to terminate to the other Party. In the event of termination and in addition to the requirements of Exhibit B, any unexpended funds will be returned to the Party that has contributed them.

12. Assignment. Neither Party will assign any right or obligation pursuant to this MOU without the written consent of the other Party. Any attempted or purported assignment without the written consent of the other Party will be void and of no effect.

13. Jurisdiction and Venue. Any action at law or in equity brought under this MOU for the purpose of enforcing a right or rights provided for by this MOU will be tried in a court of competent jurisdiction in the County of Contra Costa, State of California, and the Parties waive all provisions of law providing for a change of venue in these proceedings to any other county.

14. Paragraph Headings. Paragraph headings as used herein are for convenience only and will not be deemed to be a part of such paragraphs and will not be construed to change the meaning thereof.

15. Waiver. Waiver by either Party of any default, breach or condition precedent will not be construed as a waiver of any other default, breach or condition precedent or of any other right under this MOU.

16. Severability. If any term, provision, covenant, or condition of this MOU is ruled invalid, void, or unenforceable by a court of competent jurisdiction, this MOU will nonetheless remain in full force and effect as to all remaining terms, provisions, covenants, and conditions.

17. Maintenance of Records. Society will maintain complete and accurate records with respect to costs incurred under this MOU. All records will be clearly identifiable. Society will provide City with an account statement in accordance with non-profit funding no later than the thirty (30) days after termination date set forth in Section 4. The account statement shall include categorized revenues and expenditures and contributions made to local service and non-profit organizations.


18. Post-Evaluation Report. No later than thirty (30) days after the termination date set forth in Section 4 of the MOU, the Society and City shall prepare a written post-evaluation report (“Report”) that evaluates the events.

19. Authority. The individuals executing this MOU represent and warrant that they have the right, power, legal capacity and authority to enter into and to execute this MOU on behalf of the respective legal entities of the Parties.

Brentwood Arts Society:

By:

Printed Name: _______________________

Title: _______________________________

City of Brentwood:

By:
Donna Landeros, City Manager

ATTEST:

By:
Margaret Wimberly, City Clerk

APPROVED AS TO FORM:

By:
Damien B. Brower, City Attorney

Exhibit A
Society Responsibilities

1. Fully and solely responsible for running the following programs:

Event
Schedule FY 2007/2008 FY 2008/2009
Art, Wine & Jazz Festival September 20 & 21, 2008 - $25,000
Art Walk April 26, 2008 $2,000 -
Poetry Reading/Open Mic Every other month on the third Thursday of the month beginning in February 2008 $1,500 $1,500
Art Shows Quarterly $2,000 $2,000
City Read 1 per year $1,500 $1,500
Total $7,000 $30,000

2. Arts Society will be solely responsible for the storage of all equipment and supplies for the events listed in Section 1 above.

3. While City agrees to waive rental fees for use of City facilities and mobile stage as further described in Exhibit B, requests for additional fee waivers, will require submission of a City Request for Fee Waiver and/or Fee Reduction/Donation Application by the Society. The Society will be responsible for payment of application fees, deposits, cleaning fees and staff costs as these items are hard costs that cannot be waived.

4. Should the Society elect not to run the programs listed above, all supplies and equipment (e.g., banners, signs, glasses, and tokens) provided by the City, to the Society for the purpose of running those programs, shall be returned to the City within 30 days of termination of the MOU.

Exhibit B
City Responsibilities

1. City will waive rental fees for use of City facilities and Mobile Stage for each program described in Exhibit A, Section 1 and such waivers will not be subject to the Use of City Funds Policy 10-12.

2. City will provide all current associated festival supplies (e.g., banners, signs, glasses, tokens) of the Art, Wine and Jazz Festival to the Society.

3. The City will provide the glass display cases, currently located at the Brentwood Education & Technology Center, to the Society for use at future art shows. Should the Society elect not to run art shows, the Society will return the glass display cases to the City.

4. City will provide funding, by event, in a lump sum, thirty (30) days prior to the event; as follows:

Event
Schedule FY 2007/2008 FY 2008/2009
Art, Wine & Jazz Festival September 20 & 21, 2008 - $25,000
Art Walk April 26, 2008 $2,000 -
Poetry Reading/Open Mic Every other month on the third Thursday of the month beginning in February 2008 $1,500 $1,500
Art Shows Quarterly $2,000 $2,000
City Read 1 per year $1,500 $1,500
Total $7,000 $30,000

5. City will invoice the Society for actual City services not mentioned in this Agreement no later than thirty (30) days after each event.

K:\ekwan\City Council 2007\November\111307\At Society MOU 2007 Attachment.Pscherff.doc
 
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