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1992-1117_LIBROS Y ARTES DE SJC_Charter Agreement CHARTER AGREEMENT DECORATIVE ARTS STUDY CENTER SAN JUAN CAPISTRANO, CALIFORNIA THIS AGREEMENT is made and entered into this day of 1992, by and between the City of San Juan Capistrano, a municipal corporation (City), and Libros y Artes de San ,Juan Capistrano, a California nonprofit public benefit corporation (Libros), pursuant to Resolution No. of the City Council of the City of San Juan Capistrano granting a Charter for the development and establishment of a Center for the Study of the Decorative Arts. WHEREAS, said properties include the site acquired for a center for the study of the decorative arts, which site has heretofore been leased to Libras y Artes for the purpose of operating the Study Center; and; WHEREAS, the public benefit to be derived from such activity includes an increased awareness and interest in the expressions of culture through the arts in general and the decorative arts specifically and provide the public with the opportunity to view exhibits, hear lectures, and otherwise participate in a variety of enriching learning experiences; and, WHEREAS, Libras (aka, The Decorative Arts Study Center) has generated financial contributions, as well as administrative and professional support for the study of the decorative arts as the Study Center is presently constituted, including volunteer services and in-kind contributions of materials and equipment for the support of programs, exhibits and other activities of the Study Center; and, WHEREAS, the City encourages broad based fund raising efforts by Libros, as the Decorative Arts Study Center, and recognizes that the financial and other support generated by Libros through the Study Center is a valuable community resource and therefore, considers the public benefits to be derived from this Agreement to be worthwhile and of significant value by providing museum quality exhibits, programs and other high quality activities for the public that would otherwise not be available within the City of San Juan Capistrano; and, -1- WHEREAS, the City may enter into agreements for the provision of services to the public consistent with its scope of authority and may provide support for the activities of outside organizations fulfilling public purposes; and, WHEREAS, the City now desires to grant a Charter to Libros for the continued operation of the Decorative Arts Study Center for the benefit of the public in general and the City of San Juan Capistrano, and the establishment of the Decorative Arts Study Center as a nationally recognized institution of learning for the study of the decorative arts; and, WHEREAS, Libros is desirous of undertaking the charge granted by the City; NOW, THEREFORE, in consideration of the mutual covenants and conditions contained herein, the parties agree as follows: to GENERAL OBLIGATIONS OF LIBROS. Libros agrees to develop, establish, and operate the Decorative Arts Study Center as an accredited institution of national repute for the study of the decorative arts and to provide programs of education, exhibits, and resources of which merit continuing national recognition. The Center will be governed by a Board of Trustees pledged to operate the Center in a fiscally responsible manner and to maintain the institutional standing and recognition of the Center. The Center shall be operated within the following guidelines to provide: *world-class exhibitions, lectures, and educational programs; *educational programs and library resources suitable for scholarly research, recognized by institutions of higher learning and art institutes as important to the field of study; *coordination with local schools, educational institutions of higher learning (public and private), museums of art, history, science, etc., as well as other professionally recognized institutions; 'special programs for professional and industry support groups; *opportunities for volunteer participation and leadership; -2- *programs which appeal to and maintain the interest of the general public in the study of the decorative arts and related subjects; *a public relations program, including widespread event publicity, to increase public interest, awareness, and support (including attendance and financial support) for the Center and its activities; *a sound basis of financial support for programs, activities, and the general operations of the Center, as well as fiscally responsible management. 2. GENERAL OBLIGATIONS OF THE CITY, The City, in Chartering the Decorative Arts Study Center, intends that it be known that the City believes the establishment of the Decorative Arts Study Center as an accredited institution of national repute will be a significant benefit to the community, and therefore pledges its support for the Center and agrees to provide the following: *cooperation in fund raising activities for the programs and operations of the Study Center; *cooperation in promoting events and activities of the Study Center to improve the public's awareness and interest in the decorative arts and the opportunities for public participation; *assistance with communication and coordination between various City departments and other local, state and federal governmental organizations; *assistance securing general and special insurance through sources available to the City; *active support for applications for recommendation to assist in the receipt of state, federal and private foundation grants in aid. -3- 3. TERM. a. The term of this Agreement shall be for a period of four (4) years, commencing on , 1992, and concluding on 1996, unless sooner terminated as provided herein. b. Libros shall have four (4) consecutive options of six (6) years each to extend the terms of this Agreement. Libros shall give notice to the City that Libros is exercising an option at least ninety (90) days, but not more than one hundred and eighty (180) days prior to the expiration of the original and extended terms. If Libros is in default hereunder on the date of its notice, or if Libras defaults between the date of notice and the expiration of the original term or any extended term and has not cured that default on or before any extended term is to commence, then the notice regarding the exercise of the option shall be void and ineffective. 4. BUDGET, FINANCIAL REPORTS, AND RECORDS. a. Libros shall annually, prepare a budget for the operation and maintenance of the Decorative Arts Study Center in a form to be specified by the City and which shall be filed with the City on the 31st day of March during each year of the original and any extended term of this Agreement. b. Libros shall keep its books and records and shall deliver to the City an annual financial report by a firm of certified public accountants approved by the City for each year of the original and any extended term of this Agreement. c. City shall have the right, at all reasonable times, to have its City Auditor audit the books and records of Libros and the Center. d. All records of Libros relating to the operation and maintenance of the Center shall be open for inspection at all reasonable times to the City Manager or designee, except for membership records, personnel files and records subject to legal privilege. 6. TERMINATION. a. Either party may terminate this Agreement on the .failure of the other party to perform any of the terms, covenants and conditions of this Agreement if -4- said failure is not cured within thirty (30) days after the nonbreaching party gives notice to the breaching party of said failure. The notice shall specify the breach. b. City may terminate this Agreement if Libros or the Center attempts to assign or transfer this Agreement or delegate its duties hereunder without the consent of the City. c. City may terminate this Agreement if Libras or the Center become a "debtor" as defined under federal bankruptcy laws then in effect, if Libros or the Center makes an assignment for the benefit of creditors, or if Libros or the Center become subject to to receivership. If City terminates this Agreement pursuant to this subparagraph "c.", all monies and other assets held by Libros or the Center in accordance with Sections x and x of this Agreement shall immediately be transferred to and become the property of the City for the sole purpose of operating and maintaining the Center. 7. ASSIGNMENT. Libros shall not assign or transfer this Agreement nor any interest herein or its rights hereunder, nor delegate any duties hereunder without the prior written approval of the City and the Agency. Any attempted assignment, transfer, or delegation shall be void and any assignee, transferee, or delagatee shall acquire no right nor interest by reason of such attempted assignment, transfer or delegation. 8 EXPENSES, ATTORNEY'S FEES. Each party shall bear enforcement thereof, including but not limited to attorney's fees. 9. INDEPEN©ENT CONTRACTOR. In performing its duties hereunder, Libros is and shall act as an independent contractor, and not as an employee, agent, or representative of the City. Libros acknowledges and agrees that, a) City will not withhold taxes of any kind from any monies paid by City to Libros; b) City will not secure worker's compensation or pay unemployment insurance to , for or on Libros' behalf; and, c) City will not provide and Libros is not entitled to any of the usual and customary rights, benefits, and privileges of City employees. Libros expressly warrants that neither it nor any of its employees or agents shall represent themselves to be employees or agents of the City. 10. NOTICES. All notices required hereunder shall be in writing and personally served or deposited in the United States Postal Service, first class, postage -5- prepaid, to the address below: City: City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, California 92675 Attention: City Manager Libros: Libros y Artes de San Juan Capistrano Decorative Arts Study Center 31431 Camino Capistrano San Juan Capistrano, California 92675 Attention: Executive Director Changes of address shall be given in the same manner as stated for other notices. Notices shall be deemed given on the date deposited in the mail or the date personal service is obtained, whichever first occurs. 11. FURTHER ASSURANCES. Each party shall perform any further acts and execute and deliver any further documents which may be reasonably necessary to carry out the provisions of this Agreement. 12. ENTIRE AGREEMENT, AMENDMENTS. This Agreement constitutes the entire understanding between the parties pertaining to the subject matter hereof and supersedes all prior negotiations, agreements and understandings of the parties with respect to the subject matter hereof. This Agreement may not be amended except by a writing authorized and duly executed by both parties. 13. GOVERNING LAW. This Agreement shall be governed by the laws of the State of California. 14. INDEMNIFICATION. Libras shall defend, indemnify, and otherwise hold harmless City, its officials, employees and agents from all claims, demands, damages, causes of action, losses, liability, costs or expenses (including reasonable attorney's fees) which City, its officials, employees and agents may incur for injury to or death of persons or damage to or Ioss of property occurring in or at the Decorative Arts Study Center arising from or connected with Libro's performance of this Agreement, the -6- condition of the Center, or the alleged acts or omissions of Libros, its officers, employees, or agents. 15. HAZARDOUS MATERIALS. No goods, merchandise, supplies, personal property, materials or items of any kind shall be kept, stored, or sold in or at the Center which are hazardous or explosive. 16. CAPTIONS. The captions and numbers herein and the grouping of the provisions of this Agreement into separate sections and paragraphs are for the purpose of convenience only and shall not be considered a part hereof, and shall have not effect on the interpretation of this Agreement. 17. INVALIDITY. If any term, covenant, or condition of this Agreement is found to be invalid, ineffective, void, or unenforceable for any reason by a court of competent jurisdiction, the remaining terms, covenants, and conditions shall remain in full force and effect. 18. WAIVER OF RIGHTS. The failure or delay of the City to insist upon strict enforcement of any of the terms herein and the acceptance of any services or the payment of any money by the City shall not operate or be deemed a waiver of any provision of this Agreement or any right or remedy (including indemnity) that the City may have and shall not be deemed a waiver of any subsequent or other breach of any term herein. The City's consent to any act by Libros requiring City's consent shall not be deemed to waive City's consent of any subsequent act of Libros where consent is required. CITY OF SAN JUAN CAPISTRANO, A Municipal Corporation By: GIL JONES, MAYOR ATTEST: CITY CLERK -7- Libros y Artes de San Juan Capistrano, a California nonprofit public benefit corporation (Libros) By: Title: APPROVED AS TO FORM: Richard K. Denhalter City Attorney -8_