HomeMy WebLinkAboutBOWERS MUSEUM - 2001 AMENDED & OPERATING AGMTr 9 q-2001-129
AMENDED AND RESTATED OPERATING AGREEMENT _..__..".,._30 _'_-zao?
THIS AGREEMENT, made and entered into this 18th day of June, 2001, by and b tween
the City of Santa Ana, a charter city and municipal corporation duly organized and existing under
the Constitution and laws of the State of California, hereinafter referred to as "City," and the
Charles W. Bowers Museum Corporation, a California nonprofit public benefit corporation,
hereinafter referred to as "Corporation."
RECITALS
A. The Charles W. Bowers Memorial Museum (the "Museum") is owned by the City and
operated by the Corporation in accordance with the terms of this Agreement and a conveyance in
trust by the late Charles W. Bowers and his wife Ada Bowers (the "Bowers Trust"). The Museum
is composed of several buildings and other improvements located at 2002 North Main Street (the
"Premises"). Under separate agreements, the Corporation leases a parking lot from the Santa Ana
Community Redevelopment Agency immediately south of the Premises as well as a childrens'
museum adjacent thereto.
B. The Corporation is a non-profit public benefit corporation organized and existing under
the laws of the State of California for the purpose of managing and operating the Museum.
C. The City and the Corporation entered into that certain Agreement dated April 20, 1987 for
the purpose of establishing a program whereby the Corporation would undertake full operation and
maintenance of the Museum on behalf of the City for a period of twenty years. The Agreement was
amended in 1993, among other things, to grant the Corporation the option to extend the term of
Operating Agreement. The Agreement was also amended in 1999 to extend the term five years and
to modify the terms of the City operating assistance. The Agreement as amended in 1993 and 1999
shall hereafter be referred to as the 1987 Operating Agreement.
D. Under the terms of the 1987 Operating Agreement, the Corporation agreed to be fully
responsible for the cost of both operating the Museum and maintaining the Premises. In exchange
for the license to operate and maintain the Museum, the City agreed to provide operating assistance,
which would increase in accordance with the cost of living for the first ten years, and then decline
to zero over the second ten years. The 1999 amendment caused the operating assistance to be
stabilized for a period of five additional years before beginning to decline.
E. The City and the Corporation have now determined that it is not economically feasible for
the Corporation to operate the Museum at a mutually acceptable level of programming and
maintain the Premises appropriately without permanent economic participation by the City.
F. The Corporation also leases or licenses three other facilities from the Community
Redevelopment Agency of the City of Santa Ana which are part of the overall operations of the
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Museum. They are the Bowers Kidseum located at 1802 N. Main Street, the Bowers Museum
Parking Lot located at 1900 N. Main Street and a storage facility located at 430 E. Third Street.
While these facilities, hereafter collectively referred to as the "Associated Properties", are not part
of this Agreement, the City and the Corporation desire to reflect the costs of operation of those
facilities within the overall costs of the Museum.
G. Under this Amended and Restated Operating Agreement the parties propose to restate the
Agreement to (1) extend the Term of the Agreement, (2) to provide that the City's operating
assistance will be fixed annually at the cost for repair and maintenance of the Premises, (3) to
provide for City funding of Capital Repair and Replacement, as necessary; and (4) make certain
other technical modifications to the Agreement.
WHEREFORE, for and in consideration of their mutual and respective covenants and
promises hereinafter set forth, and subject to the terms and conditions of this Agreement, the parties
hereto do hereby agree as follows:
ARTICLE 1
PRELIMINARY MATTERS
§ 1.01 Definitions
As used in this Agreement, the following terms shall have
the following meanings:
(a) "City" means the City of Santa Ana, California.
(b) "City Council" means the City Council of the City.
(c) "City Manager" means the City Manager of the City.
(d) "City Attorney" means the City Attorney of the City.
(e) "Clerk of the Council" means the Clerk of the Council of the City.
(f) "Corporation" means the Charles W. Bowers Museum Corporation, a California
nonprofit public benefit corporation.
(g) "Board" means the Board of Governors of the Corporation.
(h) "Museum President" means the chief executive officer retained by the Corporation
to manage and operate the Bowers Museum.
(i) "Premises" means the land shown on the map attached to this Agreement as Exhibit
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A, and incorporated herein by reference, together with all improvements thereon.
0) "License" means the license specified in Section 2 of this Agreement.
(k) "Commencement Date" means May 1, 1987.
(1) "Term" means a period of thirty-nine (39) years from and after the
Commencement Date, and any extended term occurring by reason of the
Corporation's exercise of the option herein granted in Section 2.02.
(m) Capital Repair and Replacement" shall mean periodic upgrade and/or
replacement of items or systems maintained and repaired by the Corporation
pursuant to Section 1.01(n) exemplified by such things as replacement of roofs,
repainting of exterior walls and replacement of floor coverings, replacement of
worn climate control components such as compressors, fans, motors, etc.;
repaving of parking lots; replacement/upgrades of doors, stairs, ramps, etc due to
changes in access or other legal requirements; and replacement of elevator
motors, controls and components.
(n) Regular Maintenance and Repair" shall mean costs for labor [including Allocable
Internal Administrative Costs] and materials for:
(1) all cleaning, janitorial and landscape maintenance services for the
Premises [which shall include waste management, trash removal and
vermin control];
(2) maintenance and repair of climate control systems and equipment [such
as replacement of filters, coolants, repair of minor leaks, cleaning of
ducts, replacement of registers and adjustment of balancers];
(3) maintenance and repair of electrical and lighting systems and circuits
[such as replacements of bulbs, ballasts, and fluorescent tubes,
repair/replacement of circuit breakers, electrical outlets, lighting fixtures
and diffusers];
(4) maintenance and repair of plumbing systems [such as repair/replacement
of bathroom fixtures, drinking fountains, landscape irrigation, fire
sprinkler heads];
(5) maintenance and repair of roofs and drainage systems [such as regular
inspection and repair of minor or periodic roof leaks, cleaning of all
gutters, downspouts and surface drainage systems;
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(6) maintenance and repair of signs, windows and doors [such as
replacement of broken or cracked windows, and repair of broken or worn
interior and exterior doors and hardware including locks];
(7) maintenance and repair of elevators [such as all routine inspection and
upkeep, minor repairs and payment of maintenance contracts];
(8) maintenance and repair of telecommunications and security systems
[such as maintenace/repair/replacment of telephone instruments, wiring,
and switches, and maintenace/repair/replacment of all elements of any
electronic/automatic security system];
(9) maintenance and repair of parking lots and patios and courtyards
including landscaping [such as cleaning, inspecting and repairing of
minor cracks in asphalt and sidewalks (other than public rights of way),
restriping parking spaces and posting of all parking signs and controls,
gates etc., repair/replacement of handrails and safety and directional
lighting, and replacement of dead or diseased plants and trees (other than
mature trees);
(10) maintenance and repair of interior and exterior walls and floor surfaces
[such as painting and repainting of interior walls, doors and trim,
removal of graffiti and minor repainting of exterior walls due to repair
of minor damage, and cleaning and repairing of carpeting and other
floor coverings]; and,
(11) payment of all utility costs for water, gas and electricity, but excluding
telecommunication;
(12) premiums for third party personal injury and property damage
insurance for losses arising from the operation of the Museum and/or
conditions of the Premises.
(o) "Allocable Internal Administrative Costs" shall mean Six Hundred Seventy Two
Thousand Dollars ($672,000) of the Corporation's total payroll and benefit costs
for labor, adjusted annually according to the Consumer Price Index for All Urban
Consumers (CPI) during the prior twelve (12) month period for the Los Angeles-
Long Beach-Anaheim area.)
§ 1.02 Status of Corporation
(a) By its execution of this Agreement, Corporation warrants that it is duly incorporated
under the laws of the State of California and that true and correct copies of its Articles of
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Incorporation and Bylaws and a true and correct listing of Corporation's governors and officers and
their terms of office, certified as such by Corporation's Secretary, have been filed with the Clerk of
the Council.
(b) By its execution of this Agreement, City accepts and agrees to the organization of the
Corporation as set forth in the above said Articles of Incorporation and Bylaws.
§ 1.03 Compensation of Board Mernbersand Meetings
(a) The members of the Board shall serve without compensation other than reimbursement
for expenses incurred by them in the course of the performance of services for the Corporation
when authorized by the Board.
(b) The Corporation shall conduct its board meetings in accordance with applicable law.
§ 1.04 Changes in Govemors and Officers, Articles and Bylaw.-,
The Corporation shall notify the Clerk of the Council of any change in the membership of
Board and any change in the officers of the Corporation. Any amendment of the Corporation's
Articles or Bylaws shall be filed with the Clerk of the Council.
§1.05 City Renr .s .ntatinn on the Board
The City Manager or his/her designated representative shall be entitled to attend all meetings
of the Board and to participate in the discussions of the Board to the same extent as the members of
the Board, and Corporation shall assure that the City Manager or his/her designated representative
is provided with reasonable advance notice of all meetings of the Board. Nothing herein shall be
construed to provide the City Manager or his designated representative with any authority to make,
second, or vote on motions, or to cause him to be counted for purposes of determining whether a
quorum exists, at meetings of the Board.
§1.06 City Residents nn the Board
At least two members of the Board shall be City residents. If the number of members who
are City residents become less than two due to the death, resignation, or change of residence of a
member, The Corporation shall not be in default under this section, provided, however, that the
next member appointed to the Board shall be a City resident.
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ARTICLE 2
LICENSE FOR USE AND OCCUPANCY
OF THE PREMISES
§ 2.01 Grant of T .icense
City hereby grants to the Corporation, and the Corporation hereby accepts, a license for the
occupancy and use of the Premises during the Term for the uses and purposes set forth, in this
Agreement and subject to the terms and conditions of this Agreement.
§2.02 Option to Extend Term
The Corporation is hereby granted the option to extend the Term for two (2) ten (10) year
periods following expiration of the initial term or any prior extended term, by giving notice to the
City not less than one (1) year or more than two (2) years before expiration of the term to be
extended, as applicable; provided however, that such notice shall be of no force or effect if at the
time of notice the Corporation is in material default of this Agreement and such default is
continuing.
§ 2.03 Additions and Alterations
Throughout the Term, Corporation shall make no substantial additions or alterations to the
buildings and grounds except after providing the City Manager with an opportunity to review and
comment upon the plans for such additions or alterations. The retention and enhancement of the
current physical character and appearance of the buildings and grounds shall be a primary objective
in determining the propriety of any proposed addition or alteration.
§ 2.04 Personal Property
The City and the Corporation agree that all personal property including, but not limited to,
furnishings, equipment, exhibit materials and collection materials shall become the property of the
Corporation for its use for purposes of this Agreement. The Corporation shall not sell or otherwise
dispose of any such items other than in the ordinary course of business and consistent with good
museum practices and procedures regarding de-accession. The Corporation shall maintain such
property in good condition, reasonable wear and tear excepted.
Upon termination of this Agreement for whatever reason whatsoever, all right title and
interest of the Corporation in all property referenced in this Section, including all items of personal
property donated or loaned to the Corporation for museum purposes shall be turned over and
become the property of the City, subject to such loan or trust agreements and/or conditions affecting
the Corporation's ownership or use of such property. The terms and conditions of any such
donation or loan shall prevail over any inconsistent term or condition of this Agreement.
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ARTICLE 3
MUSEUM OPERATIONS
§3.01 Corporation's Undertaking to Operate Museum
Corporation hereby agrees to operate the Museum open to the public on the Premises during
the Term, subject to the terms and conditions herein set forth.
§ 3.02 QVeration and Main .n nc -Standards
Corporation agrees that its operation of the said Museum shall be in accordance with the
following standards:
(a) The Premises and the museum operations carried on thereon shall be known
formally as the "Charles W. Bowers Memorial Museum" and referred to less formally as the
"Bowers Museum." All operations shall likewise conform in all respects to all other requirements
of that certain Trust No. 58, created the 26th of May, 1924, by C. W. Bowers and Ada A. Bowers,
his wife, as Trustors, and the First National Bank of Santa Ana as Trustee.
(b) The Corporation shall display exhibits and conduct programs having artistic,
scientific, cultural, or historic interest on the Premises. Such exhibits and programs shall be held
open to the general public on a regular basis without regard to race, color, creed, religion, sex,
marital status, national origin, or ancestry.
(c) The Corporation shall be responsible for all Regular Maintenance and Repair of the
Premises and the Associated Properties..
(d) The Corporation shall be responsible for carrying out all Capital Repair and
Replacement of the Premises and the Associated Facilities subject to funding approved by the City
pursuant to Section 4.07 (e), unless otherwise agreed by the City and the Corporation.
(e) Corporation shall not permit any use of the Premises, except those authorized by
this Agreement or by written authorization of the City Manager.
(f) Corporation will operate and manage the Museum in a competent and efficient
manner at least comparable to other well-managed operations of the same type.
(g) The name "Bowers Museum" or "Charles W. Bowers Memorial Museum" and
similar usages of the name Bowers in conjunction with a museum shall at all times remain the sole
property of the City of Santa Ana, and right of the Corporation to use the name in connection with a
museum, art gallery, exhibition or show shall be limited to the license for such use granted hereby.
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Such right of use shall expire upon termination, for whatever cause, of this Agreement.
(h) The Corporation shall be responsible for retaining security personnel and systems to
adequately protect the facility and collections.
§ 3.03 Permitted Activities
In addition to normal museum operations, under the license herein granted, Corporation
may conduct or permit the following activities on the Premises:
(a) Events designed to raise funds for the benefit of the Museum or promote
Museum interests.
(b) Meetings of persons involved in Museum activities.
(c) Events sponsored by the City of Santa Ana or by community organizations,
subject to Corporation's normal scheduling procedures.
(d) The operation of a shop for the sale of books, artifacts or pictorial
reproductions and similar items pertaining to Museum exhibits and programs or otherwise
having artistic, scientific, cultural or historical interest.
(e) The operation of a restaurant provided that any agreement for such
restaurant operation shall grant no rights any greater than those enjoyed by the Corporation
under this Agreement, or operate as an assignment of any duties or rights of the Corporation
under this Agreement. .
(f) The licensing or renting out of Museum facilities on an occasional basis for
such activities as weddings, corporate parties and other events for which the public may
want to rent all or part of the Museum.
§ 3.04 Museum Staffing T.evels
(a) Corporation shall at all times retain sufficient active, qualified, competent staff to
conduct the Museum operations. Corporation shall maintain supervision over such personnel to
insure the maintenance of a high standard of service to the public. Corporation shall take
appropriate action against any employee whose conduct is detrimental to the maintenance of such
standard.
(b) Except as otherwise provided herein, all personnel retained by Corporation to
perform services pertaining to Museum operations shall be employees or independent contractors of
Corporation which shall be solely responsible for the terms and conditions of employment thereof
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and for any and all wages, salaries, benefits and expenses due or owing thereto, and for any claims
or liability arising out of the employment thereof.
(c) City and Corporation, by one or more separate agreements, may arrange for City
officers and employees to perform services pertaining to Museum operations upon such terms and
conditions as may be mutually agreeable to the parties. The City Manager and the Museum
President are authorized to execute such agreements on behalf of City and Corporation.
§ 3.05 Exhibits and Materials nd C oll tionc
Corporation shall have full control over the custody, display, and storage and disposition of
exhibit items, collections, and research materials on the Premises or stored elsewhere for future use
on the Premises and shall bear sole responsibility for the protection of the same from damage,
destruction, theft or loss. Corporation shall likewise have control and responsibility for the interior
design and decoration of the buildings on the Premises as appropriate for the accommodation of
exhibits.
ARTICLE 4
REPORTS AND RECORDS
AND COMPENSATION
§ 4.01 The Fiscal Year
Corporation's fiscal year shall be July 1 of each calendar year through June 30 of the
following calendar year.
§ 4.02 Annual Rudnet and Program R=nrt
At the time called for in §4.07(a), Corporation shall provide the City Manager with a copy
of a detailed operating budget showing expected sources of revenue and the nature of all expected
or proposed expenditures for the forthcoming fiscal year and a report on the proposed programs to
be undertaken by the Corporation in the said forthcoming fiscal year. Included therein shall be the
proposed maintenance and repair budget described in Section 4.07 for the purpose of allowing City
to determine the compensation to be paid to Corporation pursuant to said Section.
§ 4.03 Annual Financial Statem .nt nd Audit
Within one hundred twenty (120) days following the end of each fiscal year, Corporation
shall submit to the City Manager a complete statement of Corporation's revenues and expenditures
and a financial audit for the preceding fiscal year prepared by an independent certified public
accountant.
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§ 4.04 Financial Records
Corporation shall keep, or cause to be kept, true, accurate and complete records, including
double-entry books, a profit and loss statement, and a balance sheet, such that if possible at all times
to determine the amount and nature of all revenues and expenditures. All expenditures and
transactions shall be supported by documents of original entry such as sales slips, cash register
tapes, and purchase invoice and receipts. All such account books, statements, balance sheets and
supporting documents shall be retained by Corporation for a period of three (3) years after the end
of the accounting year to which they pertain.
§ 4.05 Accounting Procedures
Corporation shall maintain a system of accounting according to Generally Accepted
Accounting Practices.
§ 4.06 Inspection and Audit
(a) City shall be entitled, during the term of the License granted in this Agreement and for a
period of one year following the termination of said License, to inspect and examine all of
Corporation's books, statements, records, and supporting documents to ascertain the correctness of
Corporation's financial statements. Any such inspection shall be conducted during normal business
hours with prior notice to Corporation.
(b) City shall also be entitled during the Term and for a period of one year thereafter, but
not more frequently than once in any one-year period, to an independent audit of Corporation's
books, statements, records and supporting documents. Any such audit shall be at City's expense
and shall be conducted during normal business hours at the location where Corporation's records
are maintained.
§4.07 Management Comb ensation-(calculation
As compensation for the Corporation's services in operating the museum on the Premises
pursuant to this Agreement, City agrees to pay annually to Corporation an amount equal to the
estimated cost of maintaining the Premises pursuant to Sections 3.02 (c), above. For the Fiscal Year
2001-2002, the parties agree that the compensation shall be $1,180,800.00. The amount of such
compensation thereafter shall be determined each fiscal year by the City Council in accordance with
the procedures set forth as follows.
(a) No later than February 15 of each year, the Museum President shall submit to the
City Manager an estimated budget for the succeeding fiscal year intended to reflect the projected
cost of Regular Maintenance and Repair as defined in Section 1.01 (o), above.
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(b) Within 30 days of receipt of the proposed budget, the City Manager shall respond in
writing to the Museum President with acceptance or rejection of the budget, or elements thereof. If
the proposed budget is accepted by the City Manager, it shall be submitted to the City Council for
approval, in whole or in part. If the proposed budget is rejected by the City Manager, the City
Manager and the Museum President shall meet in good faith in an attempt to reach agreement on a
budget. If they are unable to do so, the City Manager shall submit the Corporation's proposed
budget to the City Council for approval, in whole or in part.
(c) In each fiscal year, once the amount of the annual compensation has been
determined by the City Council, it shall be paid to Corporation in equal monthly installments, or in
such other manner as is mutually agreed upon by the City Manager and the Museum President
from time to time.
(d) In any event, the amount approved annually by the City pursuant to this Section
shall be sufficient to reasonably permit the Corporation to meet its obligations set forth in Section
3.02 (c) and (d).
(e) The City and the Corporation hereby agree to promptly negotiate in good faith to
reach agreement, separate and apart from this Agreement, on a schedule and funding program
which will identify existing deferred Capital Repair and Replacement matters which will provide
for them to be implemented within five (5) years. The City and the Corporation will devise similar
continuing five (5) year plans for Capital Repair and Replacement to be paid from set aside funds
for such purposes annually.
§4.08 Capital Fxpansinn
Additions to, or upgrades of, the Premises beyond the levels existing at the time of this
Agreement shall be subject to mutual agreement between the City Council and the Museum Board
of Governors.
ARTICLE 5
INDEMNITY AND INSURANCE
§ 5.01 Indemnification
Corporation shall indemnity and save harmless City and its officers, agents and employees
from and against any and all claims, demands, loss or liability of any kind or nature which City or
its officers, agents, or employees may sustain or incur, or which may be imposed upon them or any
of 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 the occupancy and use of the Premises by Corporation, its officers,
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agents, and employees, volunteers and visitors.
§ 5.02 Insurance Requirement Generally
Prior to the Commencement Date (except as hereinafter otherwise provided), Corporation
shall obtain at its sole cost and file with the Clerk of the Council, and maintain throughout the
Term, policies of insurance as required by this section and sections 5.03 through 5.06, or a
certificate of such insurance, satisfactory in form to the City Attorney. Each such policy (except
policies of Workers' Compensation Insurance) shall name City as an insured or additional insured
and each liability insurance policy shall also name the officers, agents and employees of City as
insureds or additional insureds. Each such policy shall also contain a provision that no termination,
cancellation or change of coverage or (where applicable) of insured or additional insured shall be
effective until after thirty (30) days notice thereof has been given in writing to City.
§ 5.03 Lia_hifiJ3? Insurance
Corporation shall provide a policy or policies of insurance which provides coverage not less
than that provided in the form of a comprehensive general liability insurance policy against liability
for any and all claims and suits for damages or injuries to persons or property resulting from or
arising out of the operations of Corporation, its officers, employees, agents or assigns. Said policy
or policies of insurance shall provide coverage for both bodily injury and property damage in not
less than One Million Dollars ($1,000,000.00) combined single limit, or its equivalent.
§ 5.04 Fine Arts Insurance
Corporation shall provide insurance protection against loss of or damage to all fine arts
property in the custody and control of Corporation. Such insurance shall be at least equivalent in
coverage to policy number IMC 435 117 issued by Continental Insurance Company to City and
Corporation for a term beginning November 1, 1985, in a maximum payable amount of not less
than $5,000,000.00. The City Manager and the Museum President may agree upon any method
whereby such insurance is maintained by City at the cost of Corporation for any mutually agreeable
period of time. Corporation's obligation under this section shall not begin until the first premium
date on the aforesaid policy occurring after the Commencement Date, or the termination of said
policy, whichever first occurs.
§ 5.05 Fich Rondin?u
Corporation shall provide a policy or policies of insurance insuring Corporation against loss
due to dishonesty of Corporation's officers, agents and employees. Said policy or policies shall
provide coverage in not less than $1,000,000.
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§ 5.06 Workers' C omnensation Tnsur nc
Corporation shall provide a policy or policies of workers' compensation insurance as
required by law.
§ 5.07 Other Insnrance
(a) City shall maintain such insurance protection against loss of or damage to the
buildings and personal property located on the Premises (exclusive of fine arts property covered
pursuant to section 5.04 and of the Bowers Museum Shop stock-in-trade) as City shall deem
appropriate. Corporation shall have no responsibility for such insurance.
(b) Corporation shall maintain such insurance protection against loss of or damage to
the Bowers Museum Shop stock-in-trade as Corporation shall deem appropriate. City shall have no
responsibility for such insurance.
§ 5.08 Mortification of Insurance Requirements
The City Manager may modify or suspend the requirements imposed on Corporation by this
Article if in his reasonable determination, strict compliance is impossible or excessively costly due
to insurance market conditions.
ARTICLE 6
RESERVED
ARTICLE 7
DEFAULTS, REMEDIES AND TERMINATION
§ 7.01 Defaults
(a) Failure or delay by either party to perform any term or provision of this Agreement shall
constitute a default under this Agreement. The injured party shall not initiate the remedies
hereinafter provided until the defaulting party has been given written notice of the default,
specifying the nature thereof, and a period of sixty (60) days to cure or correct such default.
(b) Any failure or delay by either party in asserting any of its rights or remedies as to any
default shall not operate as a waiver of any default or of any such rights or remedies, or deprive
such party of its right to institute and maintain any actions or proceedings which it may deem
necessary to protect, assert or enforce any such rights or remedies.
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§ 7.02 Remedies of City
In the event of any default and failure to cure, correct or remedy the same by Corporation,
City may, at City's sole discretion, in addition to or in lieu of any other remedies, exercise either of
the following remedies:
(a) Delay of any or all compensation to Corporation pursuant to § 4.07 of this
Agreement until such default is cured, corrected or remedied; provided such delay is
approved by the City Council.
(b) Terminate this Agreement, provided such termination is approved by the City
Council.
§ 7.03 Legal Actions
In addition to any other rights or remedies, either party may institute legal action to cure,
correct or remedy any default, to recover damages for any default, or to obtain any other remedy
consistent with the purpose of this Agreement. Such legal action must be instituted in the Superior
court of the County of Orange, State of California, or in any other appropriate court in that county.
§ 7.04 Cumulative Rights and Remedies
The rights and remedies of the parties are cumulative and the exercise by either party of one
or more such rights or remedies shall not preclude the exercise by it, at the same or different times,
of any other rights or remedies for the same default or any other default by the other party.
§ 7.05 Termination
Upon the expiration of the Term or upon the earlier termination of this Agreement:
(a) City shall have no further obligation to provide funding or other assistance to
Corporation pursuant to this Agreement for any period following such expiration or early
termination.
(b) Corporation shall vacate the Premises and deliver possession thereof to City.
(c) Corporation shall return to City possession of all personal property loaned to
Corporation pursuant to Section 2.04.
(d) All cash donated to Corporation for museum purposes and all items of personal property
donated or loaned to Corporation for museum purposes shall be delivered over to the City to be
held in trust for the donor or lender and used solely for the purpose for which the donation or loan
was made.
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ARTICLE 8
GENERAL PROVISIONS
§ 8.01 Representatives
(a) All actions authorized to be taken by City pursuant to this Agreement, without
specification in this Agreement as to the body or office so authorized, shall be deemed exercisable
on behalf of City by the City Manager, unless otherwise stated. The City Manager may, by written
notice to Corporation, designate any officer of the City as his representative with respect to any
specified authority given to the City Manager by this Agreement, and in such event the actions of
such officer within the scope of such authority shall have the same effect as if taken by the City
Manager.
(b) All actions authorized to be taken by Corporation pursuant to this Agreement,
without specification in this Agreement as to the body or office so authorized, shall be deemed
exercisable on behalf of Corporation by corporation's governing board or by such officer of
Corporation as may be designated by resolution of said governing board.
(c) The officers designated as representatives of City and Corporation pursuant to this
section may, on behalf of the parties hereto, enter into such subordinate arrangements and
agreements as are consistent with the terms and conditions of this Agreement.
§ 8.02 Nntice
Notices and written communications sent by one party to the other shall be either personally
delivered or sent by U.S. Mail, postage prepaid, to the following addresses:
(a) If sent by Corporation to City:
Clerk of the Council
City of Santa Ana
20 Civic Center Plaza
P.O. Box 1988
Santa Ana, CA 92702
With Copies to:
City Manager
City of Santa Ana
20 Civic Center Plaza
P.O. Box 1988
Santa Ana, CA 92702
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And:
City Attorney
City of Santa Ana
20 Civic Center Plaza
P.O. Box 1988
Santa Ana, CA 92702
(b) If sent by City to Corporation:
Bowers Museum Corporation
2002 N. Main Street
Santa Ana, CA 92707
Attention: President
With a Copy to:
Chair, Board of Governors
Bowers Museum Corporation
2002 N. Main Street
Santa Ana, CA 92707
§ 8.03 Nn_ n-assignahilitT
The rights and obligations of Corporation under this Agreement may not be assigned or
delegated without the prior approval of the City Council.
§ 8.04 Partial Invalidity
If any term, covenant, condition, or provision of this Agreement is held by a court of
competent jurisdiction to be invalid, void, or unenforceable, the remainder of the provisions
hereof shall remain in full force and effect, and shall in no way be affected, impaired or
invalidated thereby.
§8.05 Rx usiY4
This Amended and Restated Agreement supersedes any and all other agreements
including the 1987 Agreement and any other amendments made prior hereto, either oral or in
writing, between the parties hereto and contains all covenants and agreements between the
parties. Each party to this Agreement acknowledges that no representations, inducements,
promises or agreements, orally or otherwise, have been made by any party, or anyone acting on
behalf of any party, which are not embodied herein, and that no other agreement or amendment
hereto shall be effective unless executed in writing and signed by both City and Corporation.
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ATTEST:
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Patricia E. Healy
Clerk of the Council
APPROVED AS TO CON NT:
David N. Ream
City Manager
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APPROV
L
J se Fletcher
Cit Attorney
CHARLES W. BOWERS MUSEUM
CORPORATION
By =??
Donald Kennedy
Chairman of the Board
17
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PROJECT
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SITE
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20TH ST.,
BOWERS MUSEUM
EXHIBIT A