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HomeMy WebLinkAboutCCPACC Operating Agreement� -_ A-51-93-CC OPERATING AGREEMENT for the Christopher Cohan Center This agreement is made and entered into this 31St day of March, 1993, and amended on April 15, 2002, by and among the Foundation for the Performing Arts Center, a California non-profit public benefit corporation ("FPAC"), the City of San Luis Obispo, California (the "City") and the State of California acting through the Trustees of the California State University (the "Trustees") on behalf of California Polytechnic State University, San Luis Obispo (the "University") to provide for the operation and governance of the Performing Arts Center (the "Center") which the Trustees, the University, the City and FPAC (collectively, the "Parties") have built. Statement of Facts and Purposes On December 5, 1989, the Parties entered into a Development Agreement, Performing Arts Center (the "Development Agreement"). The Development Agreement called for the Parties to enter into an Agreement for the operation of the Center, consistent with the Development Agreement. The Parties intend that this Operating Agreement be in satisfaction of the agreement called for in the Development Agreement. It is the intent of the Parties that the Center be operated cooperatively for the mutual benefit of the University and the people of San Luis Obispo County, on a permanent basis. Section 1 — Center Mission and Policies 1.01. The Mission. The Parties agree to operate the Center as a host facility where a broad mix of community and University nonprofit organizations and commercial producers will present a diverse array of events. The Parties intend to accomplish this through a Manager (as hereafter defined) and a professional staff, and through the Central Coast Performing Arts Center Commission, all as more specifically provided in Section 2. The Parties agree that neither the Commission nor the Manager of the Center will produce, -sponsor or otherwise take financial responsibility for any event or performance in the Center or elsewhere without the unanimous agreement of the University, the City and FPAC. 1.02. Policies on Use and Access. Center policies shall be developed and implemented by the Commission for use of and access to both interior spaces and exterior, spaces of the Center. As used in this Agreement, exterior spaces means plazas and courtyards constructed as part of the Center. Such policies shall be consistent with ' the Parties' intent that the Center be available to a diverse group of users. The Manager, the Commission and the Parties shall respect the artistic and the other rights of expression of users of the Center. Section 2 — Center Governance and Management 2.01. The Central Coast Performing Arts Center Commission. In consideration for the non -state funding provided by the City and FPAC for the Center, the Parties agree that the City, FPAC and the University shall create a nonprofit public benefit corporation. The purpose of the corporation shall be to advise the University and the manager on operating policies, scheduling, and maintenance policies. The 2 Commission, with concurrence of the University President shall adopt the operating budget and budget amendments. 2.01.1 Name. The nonprofit -public benefit corporation formed by the Parties shall be known as the Central Coast Performing Arts Center Commission (the "Commission"). 2.01.2 Board of Directors. The Commission shall be governed by a board of directors consisting of nine persons (the "Board"). 2.01.3 Membership. The Commission shall have no members, as provided in California Corporations Code Section 5310. 2.01.4 Powers and Responsibilities of the Commission. The Commission shall be advisory to the University and the Manager of the Center as to operating policies, scheduling, and maintenance policies. The commission, with concurrence of the University President, shall adopt the operating budget and budget amendments of the Center all as set forth herein:, 2.01.5 Selection of Directors. The President of the University shall appoint five directors and five alternates. The City shall appoint two directors and two alternates. FPAC shall appoint two directors and two alternates. 2.01.6 Compensation of Directors. No director shall be compensated for services as such, except that directors may be reimbursed for actual expenses incurred as permitted by California Corporations Code Section 5231.5, and approved by the Board. 2.01.7 Terms of Office. Directors shall b%appointed for a three-year term. Initial directors shall be appointed before the organizational meeting of directors. At the organizational meeting, directors shall decide by lot which three among them 3 shall serve initial three-year terms, and which three shall serve initial one-year terms. A Director may be removed at any time without cause by the agency which appointed him or her. 2.01.8 Quorum. A quorum shall consist of five members of the Board, including at least one representative from each of the three Parties. 2.01.9 Officers. The Board shall select one of its members as Chair and one as Secretary to serve at the pleasure of the Board. 2.01.10 Voting. All actions of the Board other than adoption of a budget or changes to a budget require the approval of five (5) members, with. at least one vote from each of the Parties. Adoption of a budget or changes to a budget require the approval of seven (7) members with at least one vote from each of the Parties. 2.01.11 Regular Meetings. The Board shall hold regular meetings, on a schedule to be agreed upon by the members; but, in any event, not less often than every three months. 2.01.12 Special Meetings. Special meetings may be called by the Chair or by any two members. 2.01.13 Public Meetings. If the Commission seeks and is granted status as a recognized auxiliary organization pursuant to Education Code Section 89900 et seq., its meetings shall be conducted in accordance with California Education Code Section 89920 et seg. All meetings shall be held in the Center unless. some other meeting place providing convenient public accessibility is specified in the notice of meeting. 2.01.14 Bylaws. The Board shall, from time to time, adopt such bylaws, rules and policies not inconsistent with this Operating Agreement and the Development n Agreement as it determines to be best suited to the internal operation of the Commission and its advisory role to the Manager of the Center and the President of the University. Proposed bylaws and proposed bylaw amendments shall be submitted to each of the three Parties for review and comment, all in a timely manner. 2.02. Management. All aspects of the management and operation of the Center (including both interior and exterior spaces, furnishings and equipment) shall be the responsibility of a Manager. The Manager shall be a person qualified to perform the duties required to fulfill the Mission of the Center. Qualifications of the Manager shall include, but not be limited to professional training, experience and the personal traits necessary to work together effectively with a diverse group of University and community groups and individuals. The Parties intend that the Manager not be a presenter of events or an impresario, whether individually, on behalf of the Commission or otherwise. The Manager shall not otherwise be employed as a presenter of events, whether by the University or, any other entity. Mather, the Manager shall see to the wise use of the Center for the ultimate benefit of both the University community and the people of the City of San Luis Obispo and San Luis Obispo County. Prior to hiring a Manager, the Commission and the President of the University shall adopt a detailed job description for the Manager. The Manager shall be an employee of the University or a University auxiliary organization, as the President of the University shall determine. .Early each year, following guidelines established by the President of the University in consultation with the Commission, the Commission will review the past year's operations, including an assessment of the Managed performance. The employer of the Manager (University or the University Auxiliary) shall be responsible for insuring that the Manager operates within this Agreement and budgets 5 and policies of the Center adopted by the Parties or the Commission, as provided in this agreement. The Commission shall advise the President in the selection of the Manager. The Manager shall be responsible to and serve at the pleasure of the University President, and shall serve as liaison to the Commission on broad policy matters. The Manager shall be responsible for all administrative and operating matters. The President shall consult with the Commission in the review of the Manager and prior to terminating the Manager. 2.03. Other Center Staff. The balance of the operating staff of the Center will be employees of the University or a University auxiliary. The Commission shall reimburse the University and the University auxiliary as appropriate each year, in the amount, set forth in the final approved Center budget, for compensation and benefits for the Manager and operating staff of the Center; consistent with Section 3 of this Agreement and the Development Agreement. The Parties contemplate that the Commission will contract for its support services with the California Polytechnic State University Foundation, or some other entity suitable to the Commission and the University President, for its administrative and support services. The Manager shall be responsible for the appropriate use and operation of the Center, and for the hiring, training, retention, control and, as needed, the discipline and termination of Center employees reporting to the Manager. The Manager will report to the University President and inform the Commission on these matters. 3 Section 3 — Center Fiscal Matters 3.01. Financing of Center Operations. The assessments to cover the budget requirements of the Center shall be shared by the Parties as follows: two-thirds (2/3) assessed to the University, one -sixth (1/6) to the Foundation for the Performing Arts Center and one -sixth (1/6) to the City of San Luis Obispo. The assessment requirement is calculated as the sum of the Center budget for operations and reserves less revenue derived from operations. The operating costs shall include, but not be limited to, management and staff compensation, insurance, contracts for services, supplies and equipment, interest expense, routine maintenance and utilities. Reserves shall include, but not be limited to, operations, major maintenance, and repair and replacement. Center operation revenue shall include rent, concession commissions, endorsement income, royalties, endowment income, interest income and other revenue items as agreed by the Parties. 3.02. University Support and Maintenance. The University will provide the Center with utilities, building maintenance, grounds maintenance and custodial services consistent with state criteria. The University's maintenance staff will consult and cooperate with the Manager as to maintenance and service needs and scheduling occasioned by the Center's schedule and uses. Costs associated with these items will be included in the operating costs of the Center and shared by the Parties per section 3.01 above. 3.03. Operating Budget and Reserves. The Center will be budgeted to operate on a balanced, fiscally viable basis. The Manager will be .responsible for preparing an annual balanced operating budget, and setting reserve needs in consultation with the Commission. The Manager shall not exceed the authorized budget limit without the 7 prior consent of all three Parties represented on the Commission. The Commission and the Manager shall conduct no less than quarterly reviews of actual results compared with the budget. If appropriate in light of those results, the Commission shall adopt, with concurrence of the University President, and the manager shall implement revisions to the budget and to Center operations in order to avoid a deficit. The budget will be effective when approved by the Commission and the University President. 3.04. Endowment Income/Other Fundraising. The three parties may agree to pursue the establishment of a Commission endowment when the spendable earnings of the FPAC's endowment are sufficient to cover the FPAC's obligations under this agreement. When established, this Commission Operating Endowment Fund shau be held by a trustee approved by the Parties with the spendable earnings transferred for inclusion in the Center's operating budget. Other funds held by the FPAC are not subject ,to this agreement. FPAC will continue to be the primary fundraising entity for the Center, and the Commission' and the Manager shall coordinate with the FPAC to insure that fundraising is as efficient as possible. 3.05. Hold Harmless for Trustees. The Commission will release and hold harmless the Trustees of the California State University from any debts the Commission may incur. Failure to finance a deficit or to agree to a budget may be grounds to terminate this Agreement. Section 4 — Center Use and Access Scheduling 4.01. Use and Access Scheduling. The Manager; in consultation with the V Commission's board, will prepare at least one year in advance for Commission review a use schedule for the following year. The Manager's scheduling decisions will recognize E the city's and community's entitlement to fair and equitable access to and use of the Center appropriately reflecting their combined approximate one-third share of the capital costs of the Center. Two-thirds of the events at the Center shall be activities that enhance the University's educational mission. In addition, the University shall have priority scheduling for certain official University functions (such as faculty convocations and graduations). The University shall present a list of official University functions and their dates to the Manager annually not later than January 31, of each year for events in the subsequent fiscal year (July 1 — June 30). The three parties are entitled to rent-free use of the facility for official functions. In the event of a scheduling conflict, the Manager,,the University and the Commission agree to use their best efforts to resolve the conflict. The Center will not be the exclusive home for any user group. The Manager will make every effort to accommodate the needs and schedules of local performing groups (campus based and community, -based) including organizations which present touring performers. The Parties recognize that certain users may best be served by scheduling more than one year in -advance. The Manager and the Commission shall develop means to adjust to that need while maintaining opportunities for flexibility in scheduling. All use of the Center shall be subject to the Manager's scheduling decisions after consultation with the Commission, and subject to the dispute resolution procedures in Section 4.02. It is the Parties' intent that community and campus nonprofit groups be charged at a lower rate for use of the Center than other groups. The Manager shall develop and maintain a schedule of charges for use of thq Center in consultation with the Commission. W 4.02. Resolution of Usage Conflict. 4.02.1 Issues Covered. The only matter subject to conflict resolution shall be the fairness in the allocation of Center usage for city or community sponsored events. 4.02.2 Complaint Procedure. In the event the City or FPAC takes exception to the fairness of Center usage allocated to city or community sponsored events in the proposed annual calendar developed by the Manager and after review by the Commission, either the City or the FPAC may write the University President, specifying the perceived unfairness. The writing must be submitted to the- President within one week of receipt of the Manager's final schedule. The President shall use his "good offices" to mediate between the complaining party or parties and the Manager. If the entity cannot accept the President's decision in mediation, it or they may appeal the matter to a dispute resolution committee. 4.02.3 Dispute Resolution Committee. The dispute resolution committee shall be composed of three members: one member shall be appointed by the University President; one member shall be appointed by the complaining party or parties bringing the dispute; and one neutral member selected by the presiding Judge of the Superior Court of San Luis Obispo County upon application of any one party. 4.02.4 Appeals. The dispute resolution committee shall decide the matter. In the normal course of events, all parties shall accept the committee's decision as final. In an unusual circumstance, the party bringing the dispute may have a recourse to the Chancellor of The California State University by submitting a letter explaining why the committee's decision is unacceptable. The Chancellor shall affirm, modify or reject the dispute resolution committee's decision based on the written 10 submissions. The Chancellor's decision shall be appealable to the chair of The California State University Board of Trustees whose decision shall be final. 4.02.5 Time Limit. It is expected that the dispute process shall be completed within thirty (30) days of the time it is begun. Section 5 — Concessions 5.01 Concessions. The sale or other distribution of food and beverages will be an integral part of events which occur in the, Center. Therefore, it is important that the Centers users and patrons have available a first-class, diverse, food and beverage offering. The Parties agree that the California Polytechnic State University Foundation will be the primary food service provider for the Center. Under special circumstances the Commission may recommend exceptions to this provision subject to approval of the University President. -- The Manager in consultation with the Commission shall develop concessions and catering policy guidelines. All concessions at the Center will be operated within these policy guidelines. An equitable and agreed upon percentage of the gross proceeds from concessions and catered activities will accrue to the Center and be used to cover Center operations through the Operating Budget. Section 6 — Acquisition and Display of Art 6.01. Acquisition and Display of Art. The display of art at the Center is an important function of the Center. The Commission Yshall develop policies and procedures for acquiring and displaying art at the Center. Such policies shall honor and protect the free expression of ideas. Such policies shall govern, among other things, 11 which works if any will be acquired by the Commission and which works will be accepted if donated to the Commission. The Commission shall, in dealing with art, always consider its ability to preserve, protect and display pieces it may acquire consistent with available resources. In general, the Commission should not attempt to acquire a permanent collection. Section 7 — Parking 7.01. Parking Management Program. University. shall develop a parking management program providing public access to campus parking facilities for events scheduled at the Center. The University agrees that providing adequate, though nonexclusive parking is a part of its responsibility. Section 8 — Miscellaneous Matters 8.01. No Borrowing. ThQ.., Commission shall not pledge as collateral the Center building, fixtures, or land they are situated upon for any loan, debt or contract. 8.02. Insurance. The Commission shall maintain the following types and amounts of insurance, subject to periodic adjustments to recognize inflation and changes in industry standards: 8.02.1 Liability Insurance. The Commission shall obtain and keep in force a policy or policies of public liability and property damage insurance with a single combined liability limit of not less than $5,000,000, and property damage limits of not less than $500,000 insuring against all liability of the ComVission arising out of and in connection with use of occupancy of the Center. The Trustees, the City and FPAC, and 12 any supporting auxiliary shall be named as additional insureds. The Commission shall maintain such other policies of liability as the Board determines prudent. 8.02.2 Property Insurance — Premises. The Commission shall obtain and keep in force a policy or policies of insurance covering loss or damage to the Center, including fixtures, equipment, and improvements to the extent of at Least one hundred percent (100%) of full replacement value, providing protection against all perils included within the classification of fire, extended coverage, vandalism, malicious mischief, special extended perils ("all risk", as such term issued in the insurance industry). These shall include demolition, increased costs of construction, and change in building law endorsements. 8.02.3 Policy Form, Content, Insurer. All insurance required under this Agreement shall be issued by responsible insurance companies qualified to do business in California and reasonably acceptable to the Parties. All such insurance shall be issued as primary, not blanket, policies. No such policy shall be cancelable or subject to reduction of coverage or other modification except after thirty (30) days prior written notice to the Parties. 8.03. Termination. This Agreement shall terminate, and the relationship among the Parties shall be dissolved upon the happening of any of the following: Agreement of all three Parties. Failure of the commission to adopt in a timely manner an Operating Budget with appropriate provision for reserves, as established' by Commission policy, for a period of one year, after expiration of the most recent budget. 13 Failure of any of the parties to deliver on the obligations outlined in this Operating Agreement after having been given a reasonable period to remedy any deficiencies. Failure of the University to provide acceptable parking. 8.04. Amendment. This agreement may be amended in whole or in part, once or more often, by written agreement executed by the Trustees of The California State University, the University, the City of San Luis Obispo, and the Foundation for. the. Performing Arts. In the event of dissolution, Trustees will give recognition to the City's and FPAC's contributions to the Center by guaranteeing community access to the facility at a rental rate and on a schedule no less favorable than what is available to University affiliated groups, consistent with the community's expectation of fair and equitable access to and use of the Center as set forth in Section 4.01 above. , Section 9 — Execution 9.01. Due Authorization. Each of the Parties represents by executing this Agreement that he or she has been fully and completely authorized to do so and that he or she is empowered to bind the entity on whose behalf the Agreement is signed. Date: THE CALIFORNIA STATE UNIVERSITY SIGNATURES CONTINUED ON PAGE 15 14 RE: A-51-93-CC Operating Agreement for the Christopher Cohan Center Date: O Date: S- 2 0 0 Z Date: .5 — 2 0 — 0 2 CALIFORNIA POLYTECHNIC STATE UNIVERSITY By: CITY OF SAN LUIS OBISPO -By: FOUNDATION FOR THE PERFORMING ARTS CENTER FOR i THE xC City Clerk OFF N,LUIS OBISPO 15