HomeMy WebLinkAboutLaurence Christensen Corp Operator Agreement 7/21/2022 OPERATOR AGREEMENT
CITY OF FRESNO, CALIFORNIA
THIS AGREEMENT is made and entered into, effective July 21, 2022, by and
between the CITY OF FRESNO, a California municipal corporation ("City"), and
LAURENCE CHRISTENSEN CORPORATION, a California corporation ("Operator").
RECITALS
A. City owns that certain real property at the intersection of Olive and Wishon in
the City of Fresno ("Property") improved with the Tower Theater building which contains
an operating theater ("Theater") and a number of business spaces.
B. City desires to obtain continued management services for the Theatre (the
performing arts theater only) ("Project") to allow currently scheduled performances to
continue as planned.
C. Operator is engaged in the business of furnishing services as the operations
manager of Theatre, a performing arts venue, and hereby represents that it desires to and
is professionally and legally capable of performing the services called for by this
Agreement.
D. Operator acknowledges that this Agreement is subject to the requirements of
Fresno Municipal Code Section 4-107.
E. This Agreement will be administered for City by its City Manager
("Administrator") or their designee.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and of the covenants,
conditions, and premises hereinafter contained to be kept and performed by the respective
parties, it is mutually agreed as follows:
1. Scope of Services. Operator shall perform to the satisfaction of City the services
described in Exhibit A, including all work incidental to, or necessary to perform, such
services even though not specifically described in Exhibit A ("Services"). Laurence
Abbate shall be the primary person performing the Services on behalf of Operator
which shall not be modified without the written consent of City.
2. Term of Agreement and Time for Performance. This Agreement shall be effective
from the date on which the City acquires fee title to the Property ("Effective Date") and
shall continue in full force and effect for one (1) year from the Effective Date, subject to
any earlier termination in accordance with this Agreement. The Services shall
commence on the Effective Date and all such Services shall be completed prior to
expiration of this Agreement and in accordance with any performance schedule set
forth in Exhibit A. The City is completing a request for proposal ("RFP") process for a
new operator.
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3. Compensation.
(a) Operator's sole compensation for satisfactory performance of all Services
shall be a total fee of Eight Thousand Dollars ($8,000) per month, payable monthly.
Such fee shall exclude all operating expenses, including, but not limited to, expenses
related to employees, promoters, sound systems, etc., reimbursed or paid by the City
for operation of the Theatre. The initial projected operating revenues/(expenses) is
attached hereto as Exhibit D.
(b) Operator and City developed the projected operating revenues/(expenses)
attached as Exhibit D. Detailed supporting documentation shall be provided by Operator
along with the monthly reports for any and all services performed and expenses
incurred. Furthermore, Operator agrees to allow City to review and/or audit all
documentation, reports, and statements provided in support of Operator's monthly
reports.
(c) The parties acknowledge and agree that Operator shall be compensated
through the Compensation Formula provided in Exhibit E, attached hereto, which is
incorporated by reference herein. Other than as provided by Section 3(a) and Exhibit E,
Operator agrees to not seek any additional compensation from the City.
(d) The parties may modify this Agreement to increase or decrease the scope of
Services or provide for the rendition of Services not required by this Agreement, which
modification shall include an adjustment to Operator's compensation. Any change in the
scope of Services must be made by written amendment to the Agreement signed by an
authorized representative for each party, provided that the City plans to conduct a
safety inspection of the Theatre immediately after close of escrow and complete repairs
as needed to the Theatre. The City reserves the right to instruct Operator not to book
any new performances until said safety inspection is completed and any necessary
repairs to the Theatre are made provided that Operator's compensation shall not be
reduced during said inspection and repair period. Should Operator's scope of services
be increased in the future, the Operator shall not be entitled to any additional
compensation if Services are performed prior to a signed written amendment to this
Agreement.
4. Termination Remedies and Force Ma'eure.
(a) This Agreement shall terminate without any liability of City to Operator
thereafter upon the earlier of: (i) Operator's filing for protection under the federal
bankruptcy laws, or any bankruptcy petition or petition for receiver commenced by a
third party against Operator; (ii) thirty (30) calendar days' prior written notice with or
without cause by Operator to City; or (iii) expiration of this Agreement. The City is
completing a RFP process for a new operator and should that RFP process for a new
operator be completed and a new operator selected before the above one year term is
completed by Operator, then the City shall be permitted to terminate this Agreement
early if it provides compensation to the Operator as set forth in Exhibit E. The City shall
provide thirty (30) days advance written notice to Operator before any such termination.
Operator is only entitled to the compensation in Exhibit E if there is an early termination
by the City of this Agreement because of the RFP process.
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(b) Immediately upon any termination or expiration of this Agreement, Operator
shall (i) immediately stop all work hereunder; (ii) immediately cause any and all of its
subcontractors to cease work, and (iii) return to City any and all unearned payments
and all properties and materials in the possession of Operator that are owned by City.
Subject to the terms of this Agreement, Operator shall be paid compensation for
Services satisfactorily performed prior to the effective date of termination. Operator
shall not be paid for any work or Services performed or costs incurred which reasonably
could have been avoided.
(c) In the event of termination due to failure of Operator to satisfactorily perform
in accordance with the terms of this Agreement, City may withhold an amount that
would otherwise be payable as an offset to, but not in excess of, City's damages caused
by such failure. In no event shall any payment by City pursuant to this Agreement
constitute a waiver by City of any breach of this Agreement which may then exist on the
part of Operator, nor shall such payment impair or prejudice any remedy available to
City with respect to the breach.
(d) Upon any breach of this Agreement by Operator, City may (i) exercise any
right, remedy (in contract, law or equity), or privilege which may be available to it under
applicable laws of the State of California or any other applicable law; (ii) proceed by
appropriate court action to enforce the terms of the Agreement; and/or (iii) recover all
direct, indirect, consequential, economic and incidental damages for the breach of the
Agreement. If it is determined that City improperly terminated this Agreement for
default, Operator may pursue damages against the City accordingly.
(e) Operator shall provide City with adequate written assurances of future
performance, upon Administrator's request, in the event Operator fails to comply with
any terms or conditions of this Agreement.
(f) Operator shall be liable for default unless nonperformance is caused by an
occurrence beyond the reasonable control of Operator and without its fault or
negligence, including, but not limited to, acts of God or the public enemy, acts of City in
its contractual capacity, nonperformance by performers and/or promoters, fires, floods,
epidemics, pandemics, quarantine restrictions, strikes, picketing, community unrest,
unusually severe weather, and delays of common carriers. Operator shall notify
Administrator in writing as soon as it is reasonably possible after the commencement of
any excusable delay, setting forth the full particulars in connection therewith, and shall
remedy such occurrence with all reasonable dispatch, and shall promptly give written
notice to Administrator of the cessation of such occurrence.
5. Confidential Information and Ownership of Documents.
(a) Any reports, information, or other data prepared or assembled by Operator
pursuant to this Agreement shall not be made available to any individual or organization
by Operator without the prior written approval of the Administrator. During the term of
this Agreement, and thereafter, Operator shall not, without the prior written consent of
City, disclose to anyone any Confidential Information. The term Confidential Information
for the purposes of this Agreement shall include all proprietary and confidential
information of City, including, but not limited to, business plans, marketing plans,
financial information, materials, compilations, documents, instruments, models, source
or object codes and other information disclosed or submitted, orally, in writing, or by any
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other medium or media, except (i) where such information is now or becomes part
of the public domain through no fault of Operator, (ii) information which is already
in Operator's possession at the time of the disclosure, (iii) information which
comes into Operator's possession from a third party without breach of this
Agreement, or (iv) information that is independently developed by Operator or a
third party without recourse to or utilization of any portion of the Confidential
Information imparted or transmitted hereunder. All Confidential Information shall be
and remain confidential and proprietary in City.
(b) Any and all writings and documents prepared or provided by Operator
pursuant to this Agreement are the property of City at the time of preparation and shall
be turned over to City upon expiration or termination of the Agreement. Operator shall
not permit the reproduction or use thereof by any other person except as otherwise
expressly provided herein.
(c) If Operator should subcontract all or any portion of the Services, Operator
shall cause each subcontractor to also comply with the requirements of this Section 5.
(d) This Section 5 shall survive expiration or termination of this Agreement.
6. Indemnification. To the furthest extent allowed by law, Operator shall indemnify, hold
harmless and defend City and each of its officers, officials, employees, agents, and
volunteers from any and all loss, liability, fines, penalties, forfeitures, costs and
damages (whether in contract, tort or strict liability, including but not limited to personal
injury, death at any time and property damage), and from any and all claims, demands
and actions in law or equity (including reasonable attorney's fees and litigation
expenses) that arise out of, pertain to, or relate to the negligence, recklessness or
willful misconduct of Operator, its officers, employees, agents, or volunteers in the
performance of this Agreement.
If Operator should subcontract all or any portion of the Services, Operator shall
require each subcontractor to indemnify, hold harmless and defend City and each of
its officers, officials, employees, agents, and volunteers in accordance with the terms
of the preceding paragraph.
This section shall survive termination or expiration of this Agreement.
7. Insurance.
(a) Throughout the life of this Agreement, Operator shall obtain and maintain in
full force and effect all insurance as required in Exhibit B, which is incorporated into
and part of this Agreement, with an insurance company(ies) either (i) admitted by the
California Insurance Commissioner to do business in the State of California and rated
no less than "A-VII" in the Best's Insurance Rating Guide, or (ii) as may be authorized in
writing by City's Risk Manager or designee at any time and in its sole discretion. The
required policies of insurance as stated in Exhibit B shall maintain limits of liability of not
less than those amounts stated therein. However, the insurance limits available to City,
its officers, officials, employees, agents, and volunteers as additional insureds, shall be
the greater of the minimum limits specified therein or the full limit of any insurance
proceeds to the named insured.
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(b) If at any time during the life of the Agreement or any extension, Operator or
any of its subcontractors/sub-Operators fail to maintain any required insurance in full
force and effect, all Services and work under this Agreement shall be discontinued
immediately, and all payments due or that become due to Operator shall be withheld
until notice is received by City that the required insurance has been restored to full force
and effect. Any failure to maintain the required insurance shall be sufficient cause for
City to terminate this Agreement. No action taken by City pursuant to this section shall
in any way relieve Operator of its responsibilities under this Agreement. The phrase
"fail to maintain any required insurance shall include, without limitation, notification
received by City that an insurer has commenced proceedings, or has had proceedings
commenced against it, indicating that the insurer is insolvent.
(c) The fact that insurance is obtained by Operator shall not be deemed to
release or diminish the liability of Operator, including, without limitation, liability under
the indemnity provisions of this Agreement. The duty to indemnify City shall apply to all
claims and liability regardless of whether any insurance policies are applicable. The
policy limits do not act as a limitation upon the amount of indemnification to be provided
by Operator. Approval or purchase of any insurance contracts or policies shall in no way
relieve from liability nor limit the liability of Operator, its officers, agents, employees,
persons under the supervision of Operator, suppliers, invitees, sub-contractors, or
anyone employed directly or indirectly by any of them.
(d) If Operator should subcontract all or any portion of the Services, Operator
shall require each subcontractor to provide insurance protection, as an additional
insured, to the City and each of its officers, officials, employees, agents, and volunteers
in accordance with the terms of this section, except that any required certificates and
applicable endorsements shall be on file with Operator and City prior to the
commencement of any Services by the subcontractor. Operator and any subcontractor
shall establish additional insured status for City, its officers, officials, employees, agents,
and volunteers by using Insurance Service Office (ISO) Form CG 20 10 11 85 or both
CG 20 10 10 01 and CG 20 37 10 01 or by an executed manuscript company
endorsement providing additional insured status as broad as that contained in ISO Form
CG 20 10 11 85.
8. Conflict of Interest and Non-Solicitation.
(a) Prior to City's execution of this Agreement, Operator shall complete a City of
Fresno conflict of interest disclosure statement in the form as set forth in Exhibit C.
During the term of this Agreement, Operator shall have the obligation and duty to
immediately notify City in writing of any change to the information provided by Operator
in such statement.
(b) Operator shall comply, and require its subcontractors to comply, with all
applicable (i) professional canons and requirements governing avoidance of
impermissible client conflicts; and (ii) federal, state and local conflict of interest laws and
regulations including, without limitation, California Government Code Section 1090 et.
seq., the California Political Reform Act (California Government Code Section 87100 et.
seq.) and the regulations of the Fair Political Practices Commission concerning
disclosure and disqualification (2 California Code of Regulations Section 18700 et.
seq.). At any time, upon written request of City, Operator shall provide a written opinion
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of its legal counsel and that of any subcontractor that, after a due diligent inquiry,
Operator and the respective subcontractor(s) are in full compliance with all laws and
regulations. Operator shall take, and require its subcontractors to take, reasonable
steps to avoid any appearance of a conflict of interest. Upon discovery of any facts
giving rise to the appearance of a conflict of interest, Operator shall immediately notify
City of these facts in writing.
(c) In performing the work or Services to be provided hereunder, Operator shall
not employ or retain the Services of any person while such person either is employed by
City or is a member of any City council, commission, board, committee, or similar City
body. This requirement may be waived in writing by the City Manager, if no actual or
potential conflict is involved.
(d) Operator represents and warrants that it has not paid or agreed to pay any
compensation, contingent or otherwise, direct or indirect, to solicit or procure this
Agreement or any rights/benefits hereunder.
(e) Neither Operator, nor any of Operator's subcontractors performing any
Services shall bid for, assist anyone in the preparation of a bid for, or perform any
Services pursuant to, any other contract in connection with this Agreement unless fully
disclosed to and approved by the City Manager, in advance and in writing. Operator
and any of its subcontractors shall have no interest, direct or indirect, in any other
contract with a third party in connection with this Agreement unless such interest is in
accordance with all applicable law and fully disclosed to and approved by the City
Manager, in advance and in writing. Notwithstanding any approval given by the City
Manager under this provision, Operator shall remain responsible for complying with
Section 9(b), above.
(f) If Operator should subcontract all or any portion of the Services, Operator
shall include the provisions of this Section 9 in each subcontract and require its
subcontractors to comply therewith.
(g) This Section 8 shall survive expiration or termination of this Agreement.
9. Recycling Program. In the event Operator maintains an office or operates a
facility(ies), or is required herein to maintain or operate same, within the incorporated
limits of the City of Fresno solely to fulfill its obligations under the terms of this
Agreement, Operator shall, at the City's expense:
(a) Immediately establish and maintain a viable and ongoing recycling program,
approved by City's Solid Waste Management Division, for each office and
facility. Literature describing City recycling programs is available from City's Solid
Waste Management Division and by calling City of Fresno Recycling Hotline at (559)
621-1111.
(b) Immediately contact City's Solid Waste Management Division at
(559) 621-1452 and schedule a free waste audit, and cooperate with such Division in
their conduct of the audit for each office and facility.
(c) Cooperate with and demonstrate to the satisfaction of City's Solid Waste
Management Division the establishment of the recycling program in
paragraph (i) above and the ongoing maintenance thereof.
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10. General Terms.
(a) Except as otherwise provided by law, all notices expressly required of City
within the body of this Agreement, and not otherwise specifically provided for, shall be
effective only if signed by the Administrator or designee.
(b) Records of Operator's expenses pertaining to this Agreement shall be kept
on a generally recognized accounting basis and shall be available to City or its
authorized representatives upon request during regular business hours throughout the
life of this Agreement and for a period of three years after final payment or, if longer,
for any period required by law. In addition, all books, documents, papers, and records
of Operator pertaining to the Project shall be available for the purpose of making
audits, examinations, excerpts, and transcriptions for the same period of time. If any
litigation, claim, negotiations, audit or other action is commenced before the expiration
of said time period, all records shall be retained and made available to City until such
action is resolved, or until the end of said time period whichever shall later occur. If
Operator should subcontract all or any portion of the Services, Operator shall cause
each subcontractor to also comply with the requirements of this paragraph. This
Section 10(b) shall survive expiration or termination of this Agreement.
(c) Prior to execution of this Agreement by City, Operator shall have provided
evidence to City that Operator is licensed to perform the Services (or that no license is
required). If Operator should subcontract all or any portion of the Services, Operator
shall require each subcontractor to provide evidence to City that subcontractor is
licensed to perform the Services (or that no license is required) before beginning work.
11. Nondiscrimination. To the extent required by controlling federal, state and local law,
Operator shall not employ discriminatory practices in the provision of Services,
employment of personnel, or in any other respect on the basis of race, religious creed,
color, national origin, ancestry, physical disability, mental disability, medical condition,
marital status, sex, age, sexual orientation, ethnicity, status as a disabled veteran or
veteran of the Vietnam era. Subject to the foregoing and during the performance of
this Agreement, Operator agrees as follows:
(a) Operator will comply with all applicable laws and regulations providing that
no person shall, on the grounds of race, religious creed, color, national origin,
ancestry, physical disability, mental disability, medical condition, marital status, sex,
age, sexual orientation, ethnicity, status as a disabled veteran or veteran of the
Vietnam era be excluded from participation in, be denied the benefits of, or be subject
to discrimination under any program or activity made possible by or resulting from this
Agreement.
(b) Operator will not discriminate against any employee or applicant for
employment because of race, religious creed, color, national origin, ancestry, physical
disability, mental disability, medical condition, marital status, sex, age, sexual
orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era.
Operator shall ensure that applicants are employed, and the employees are treated
during employment, without regard to their race, religious creed, color, national origin,
ancestry, physical disability, mental disability, medical condition, marital status, sex,
age, sexual orientation, ethnicity, status as a disabled veteran or veteran of the
Vietnam era. Such requirement shall apply to Operator's employment practices
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including, but not be limited to, the following: employment, upgrading, demotion or
transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or
other forms of compensation; and selection for training, including apprenticeship.
Operator agrees to post in conspicuous places, available to employees and applicants
for employment, notices setting forth the provision of this nondiscrimination clause.
(c) Operator will, in all solicitations or advertisements for employees placed by or
on behalf of Operator in pursuit hereof, state that all qualified applicants will receive
consideration for employment without regard to race, religious creed, color, national
origin, ancestry, physical disability, mental disability, medical condition, marital status,
sex, age, sexual orientation, ethnicity, status as a disabled veteran or veteran of the
Vietnam era.
(d) Operator will send to each labor union or representative of workers with
which it has a collective bargaining agreement or other contract or understanding, a
notice advising such labor union or workers' representatives of Operator's commitment
under this section and shall post copies of the notice in conspicuous places available
to employees and applicants for employment.
(e) If Operator should subcontract all or any portion of the Services, Operator
shall cause each subcontractor to also comply with the requirements of this Section
11.
12. Independent Contractor.
(a) In the furnishing of the Services, Operator is acting solely as an independent
contractor. Neither Operator, nor any of its officers, agents, or employees shall be
deemed an officer, agent, employee, joint venturer, partner, or associate of City for
any purpose. City shall have no right to control or supervise or direct the manner or
method by which Operator shall perform its work and functions. However, City shall
retain the right to administer this Agreement so as to verify that Operator is performing
its obligations in accordance with the terms and conditions thereof.
(b) This Agreement does not evidence a partnership or joint venture between
Operator and City. Operator shall have no authority to bind City absent City's express
written consent. Except to the extent otherwise provided in this Agreement, Operator
shall bear its own costs and expenses in pursuit thereof.
(c) Because of its status as an independent contractor, Operator and its officers,
agents, and employees shall have absolutely no right to employment rights and
benefits available to City employees. Operator shall be solely liable and responsible
for all payroll and tax withholding and for providing to, or on behalf of, its employees all
employee benefits including, without limitation, health, welfare and retirement benefits.
In addition, together with its other obligations under this Agreement, Operator shall be
solely responsible, indemnify, defend and save City harmless from all matters relating
to employment and tax withholding for and payment of Operator's employees,
including, without limitation, (i) compliance with Social Security and unemployment
insurance withholding, payment of workers' compensation benefits, and all other laws
and regulations governing matters of employee withholding, taxes and payment; and
(ii) any claim of right or interest in City employment benefits, entitlements, programs
and/or funds offered employees of City whether arising by reason of any common law,
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de facto, leased, or co-employee rights or other theory. It is acknowledged that during
the term of this Agreement, Operator may be providing services to others unrelated to
City or to this Agreement.
13. Notices. Any notice required or intended to be given to either party under the terms of
this Agreement shall be in writing and shall be deemed to be duly given if delivered
personally, transmitted by facsimile followed by telephone confirmation of receipt, or
sent by United States registered or certified mail, with postage prepaid, return receipt
requested, addressed to the party to which notice is to be given at the party's address
set forth on the signature page of this Agreement or at such other address as the
parties may from time to time designate by written notice. Notices served by United
States mail in the manner above described shall be deemed sufficiently served or
given at the time of the mailing thereof.
14. Binding. Subject to Section 15, below, once this Agreement is signed by all parties, it
shall be binding upon, and shall inure to the benefit of, all parties, and each parties'
respective heirs, successors, assigns, transferees, agents, servants, employees and
representatives.
15. Assignment.
(a) This Agreement is personal to Operator and there shall be no assignment by
Operator of its rights or obligations under this Agreement without the prior written
approval of the City Manager or designee. Any attempted assignment by Operator, its
successors or assigns, shall be null and void unless approved in writing by the City
Manager or designee. Furthermore, any change in the stock ownership of Operator or
management of Operator shall be an assignment in violation of this Section.
(b) Operator hereby agrees not to assign the payment of any monies due
Operator from City under the terms of this Agreement to any other individual(s),
corporation(s) or entity(ies). City retains the right to pay any and all monies due
Operator directly to Operator.
16. Compliance With Law. In providing the Services, Operator shall at all times comply
with all applicable laws of the United States, the State of California and City, and with
all applicable regulations promulgated by federal, state, regional, or local
administrative and regulatory agencies, now in force and as they may be enacted,
issued, or amended during the term of this Agreement. Operator shall be solely
responsible for determining whether payment of prevailing wage is required. Operator
shall indemnify, hold harmless, and defend (with counsel acceptable to City) the City
against any claim for damages, compensation, fines, penalties, or other amounts
arising out of the failure or alleged failure of any person or entity (including Operator,
its contractors and subcontractors) to pay prevailing wages as required by law or to
comply with other applicable provisions of Labor Code Sections 1720 et seq. and the
implementing regulations of the Department of Industrial Relations.
17. Waiver. The waiver by either party of a breach by the other of any provision of this
Agreement shall not constitute a continuing waiver or a waiver of any subsequent
breach of either the same or a different provision of this Agreement. No provisions of
this Agreement may be waived unless in writing and signed by all parties to this
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Agreement. Waiver of any one provision herein shall not be deemed to be a waiver of
any other provision herein.
18. Governing Law and Venue. This Agreement shall be governed by, and construed
and enforced in accordance with, the laws of the State of California, excluding,
however, any conflict of laws rule which would apply the law of another jurisdiction.
Venue for purposes of the filing of any action regarding the enforcement or
interpretation of this Agreement and any rights and duties hereunder shall be Fresno
County, California.
19. Headings. The section headings in this Agreement are for convenience and
reference only and shall not be construed or held in any way to explain, modify or add
to the interpretation or meaning of the provisions of this Agreement.
20. 5everability. The provisions of this Agreement are severable. The invalidity, or
unenforceability of any one provision in this Agreement shall not affect the other
provisions.
21. Interpretation. The parties acknowledge that this Agreement in its final form is the
result of the combined efforts of the parties and that, should any provision of this
Agreement be found to be ambiguous in any way, such ambiguity shall not be
resolved by construing this Agreement in favor of or against either party, but rather by
construing the terms in accordance with their generally accepted meaning.
22. Attorne 's Fees. If either party is required to commence any proceeding or legal
action to enforce or interpret any term, covenant or condition of this Agreement, the
prevailing party in such proceeding or action shall be entitled to recover from the
other party its reasonable attorney's fees and legal expenses.
23. Exhibits. Each exhibit and attachment referenced in this Agreement is, by the
reference, incorporated into and made a part of this Agreement.
24. Precedence of Documents. In the event of any conflict between the body of this
Agreement and any exhibit or attachment hereto, the terms and conditions of the
body of this Agreement shall control and take precedence over the terms and
conditions expressed within the exhibit or attachment. Furthermore, any terms or
conditions contained within any exhibit or attachment hereto which purport to modify
the allocation of risk between the parties, provided for within the body of this
Agreement, shall be null and void.
25. Cumulative Remedies. No remedy or election hereunder shall be deemed
exclusive but shall, wherever possible, be cumulative with all other remedies at law or
in equity.
26. No Third Party Beneficiaries. The rights, interests, duties and obligations defined
within this Agreement are intended for the specific parties hereto as identified in the
preamble of this Agreement. Notwithstanding anything stated to the contrary in this
Agreement, it is not intended that any rights or interests in this Agreement benefit or
flow to the interest of any third parties.
27. Extent of Agreement. Each party acknowledges that they have read and fully
understand the contents of this Agreement. This Agreement represents the entire
and integrated agreement between the parties with respect to the subject matter
01160.0044/783624 1 ALL-B Operator Total Feel CAO -10-
hereof and supersedes all prior negotiations, representations or agreements, either
written or oral. This Agreement may be modified only by written instrument duly
authorized and executed by both City and Operator.
28. Authority to Sign. The City Manager, or designee, is hereby authorized and
directed to execute and implement this Agreement. The previous sentence is not
intended to delegate any authority to the City Manager to administer the Agreement,
any delegation of authority must be expressly included in the Agreement.
29. Counterpart Execution. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original but all of which shall be
deemed but one and the same instrument, and a facsimile copy of such execution
shall be deemed an original.
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties have executed this Agreement at Fresno,
California, the day and year first above written.
CITY: OPERATOR:
CITY OF FRESNO, LAURENCE CHRISTENSEN
a California municipll corporation CORPORATION, a California
corporation
By:
Georg nnnne Wh te, City Manager By
3, �1 Laurence Abbate, President
APPROV AS 0 ORM:
City Attorney's Office Address:
By: Laurence Abbate
Ri FGnzales, Interim City Attorney
ATTES Phone:
E-mail:
TODD STERMER, CIVIC
City Cler
By:
Deputy
Address:
City of Fresno
Attention: Georgeanne White,
City Manager
2600 Fresno Street, Room 2064
Fresno, CA 93721
Phone: (559) 621-7770
E-mail.
Attachments:
1. Exhibit A- Scope of Services
2. Exhibit B - Insurance Requirements
3. Exhibit C - Conflict of Interest Disclosure Form
4. Exhibit D — Initial Budget
5. Exhibit E — Prior Bookings & Compensation Formula
01160.0044/783624.1 ALL-B Operator Total Fee/CAO _�2_
EXHIBIT A
SCOPE OF SERVICES
Operator Service Contract between City of Fresno (City)
and Laurence Christensen Corporation (Operator)
Continued Management of Theatre
Operator is currently engaged in the business of furnishing services as an operations
manager of Theatre as a performing arts center, and Operator agrees to maintain the
same performances currently scheduled, and traditionally held at Theatre, and to
cooperate with the City in good faith on community access rights to use and enjoy Theatre.
Any scheduling changes and new bookings shall require pre-approval in writing by the
City. The City may also request scheduling changes be made. Operator shall use its best
efforts to maximize the use of the Theatre.
The form of the contract to be used with any performers shall be approved by City together
with the rate to be charged. The processing of all monies shall be pursuant to the
directions of the City.
Use of any related entities to perform services for the Theatre shall be approved in writing
by City in advance.
Nothing herein shall be construed to require that Operator act as the property manager for
the Property and Operator shall have no duty or right to negotiate any leases for the
Property.
ALL-B Operator Total Fee/CAO
01160.0044/783624 I Page 1 of 1
EXHIBIT B
INSURANCE REQUIREMENTS
Operator Service Agreement between City of Fresno (City)
and Laurence Christensen Corporation (Operator)
Continued Management of Theater
MINIMUM SCOPE OF INSURANCE
Coverage shall be at least as broad as:
1. The most current version of Insurance Services Office (ISO) Commercial
General Liability Coverage Form CG 00 01, providing liability coverage
arising out of your business operations. The Commercial General Liability
policy shall be written on an occurrence form and shall provide coverage for
"bodily injury," "property damage" and "personal and advertising injury" with
coverage for premises and operations (including the use of owned and non-
owned equipment), products and completed operations, and contractual
liability (including, without limitation, indemnity obligations under the
Agreement) with, limits of liability not less than those set forth under
"Minimum Limits of Insurance."
2. The most current version of ISO *Commercial Auto Coverage Form CA 00
01, providing liability coverage arising out of the ownership, maintenance or
use of automobiles in the course of your business operations. The
Automobile Policy shall be written on an occurrence form and shall provide
coverage for all owned, hired, and non-owned automobiles or other licensed
vehicles (Code 1- Any Auto). If personal automobile coverage is used, the
City, its officers, officials, employees, agent, and volunteers are to be listed
as additional insureds.
3. Workers' Compensation insurance as required by the State of California and
Employer's Liability Insurance.
4. Professional Liability (Errors and Omissions) insurance appropriate to
Operator's profession. Architect and engineer's coverage is to be endorsed
to include contractual liability.
MINIMUM LIMITS OF INSURANCE
Operator, or any party the Operator subcontracts with, shall maintain limits of liability of not
less than those set forth below. However, insurance limits available to City, its officers,
officials, employees, agents, and volunteers as additional insureds, shall be the greater of
the minimum limits specified herein or the full limit of any insurance proceeds available to
the named insured:
1 COMMERCIAL GENERAL LIABILITY:
0) $1,000,000 per occurrence for bodily injury and property damage;
(ii) $1,000,000 per occurrence for personal and advertising injury;
(iii) $2,000,000 aggregate for products and completed operations; and,
Page 1
(iv) $2,000,000 general aggregate applying separately to the work
performed under the Agreement.
2. COMMERCIAL AUTOMOBILE LIABILITY.-
$1,000,000 per accident for bodily injury and property damage.
OR*
PERSONAL AUTOMOBILE LIABILITY insurance with limits of liability not
less than:
(i) $100,000 per person;
(ii) $300,000 per accident for bodily injury; and,
(iii) $50,000 per accident for property damage.
3. WORKERS' COMPENSATION INSURANCE as required by the State of
California with statutory limits.
4. EMPLOYER'S LIABILITY:
(i) $1,000,000 each accident for bodily injury;
(ii) $1,000,000 disease each employee; and,
(iii) $1,000,000 disease policy limit.
5. PROFESSIONAL LIABILITY (Errors and Omissions):
(i) $1,000,000 per claim/occurrence; and,
(ii) $2,000,000 policy aggregate.
UMBRELLA OR EXCESS INSURANCE
In the event Operator purchases an Umbrella or Excess insurance policy(ies) to meet the
"Minimum Limits of Insurance," this insurance policy(ies) shall "follow form" and afford no
less coverage than the primary insurance policy(ies). In addition, such Umbrella or Excess
insurance policy(ies) shall also apply on a primary and non-contributory basis for the
benefit of the City, its officers, officials, employees, agents, and volunteers.
DEDUCTIBLES AND SELF-INSURED RETENTIONS
Operator shall be responsible for payment of any deductibles contained in any insurance
policy(ies) required herein and Operator shall also be responsible for payment of any self-
insured retentions. Any deductibles or self-insured retentions must be declared on the
Certificate of Insurance, and approved by, the City's Risk Manager or designee. At the
option of the City's Risk Manager or designee, either:
(i) The insurer shall reduce or eliminate such deductibles or self-insured
retentions as respects City, its officers, officials, employees, agents,
and volunteers; or
(ii) Operator shall provide a financial guarantee, satisfactory to City's Risk
Manager or designee, guaranteeing payment of losses and related
investigations, claim administration and defense expenses. At no time
shall City be responsible for the payment of any deductibles or self-
insured retentions.
Page 2
OTHER INSURANCE PROVISIONS/ENDORSEMENTS
The General Liability and Automobile Liability insurance policies are to contain, or be
endorsed to contain, the following provisions:
1. City, its officers, officials, employees, agents, and volunteers are to be
covered as additional insureds. Operator shall establish additional insured
status for the City and for all ongoing and completed operations by use of
ISO Form CG 20 10 11 85 or both CG 20 10 10 01 and CG 20 37 10 01 or by
an executed manuscript insurance company endorsement providing
additional insured status as broad as that contained in ISO Form
CG 20 10 11 85.
2. The coverage shall contain no special limitations on the scope of protection
afforded to City, its officers, officials, employees, agents, and volunteers.
Any available insurance proceeds in excess of the specified minimum limits
and coverage shall be available to the Additional Insured.
3. For any claims related to this Agreement, Operator's insurance coverage
shall be primary insurance with respect to the City, its officers, officials,
employees, agents, and volunteers. Any insurance or self-insurance
maintained by the City, its officers, officials, employees, agents, and
volunteers shall be excess of Operator's insurance and shall not contribute
with it. Operator shall establish primary and non-contributory status by using
ISO Form CG 20 01 04 13 or by an executed manuscript insurance company
endorsement that provides primary and non-contributory status as broad as
that contained in ISO Form CG 20 01 04 13.
The Workers' Compensation insurance polic is to contain, or be endorsed to contain, the
following provision: Operator and its insurer shall waive any right of subrogation against
City, its officers, officials, employees, agents, and volunteers.
If the Professional Liability Errors and Omissions insurance polic is written on a claims-
made form:
1. The retroactive date must be shown, and must be before the effective date of
the Agreement or the commencement of work by Operator.
2. Insurance must be maintained and evidence of insurance must be provided for
at least five years after completion of the Agreement work or termination of
the Agreement, whichever occurs first, or, in the alternative, the policy shall
be endorsed to provide not less than a five-year discovery period.
3. If coverage is canceled or non-renewed, and not replaced with another
claims-made policy form with a retroactive date prior to the effective date of
the Agreement or the commencement of work by Operator, Operator must
purchase "extended reporting" coverage for a minimum of five years after
completion of the Agreement work or termination of the Agreement,
whichever occurs first.
4. A copy of the claims reporting requirements must be submitted to City for
review.
5. These requirements shall survive expiration or termination of the Agreement.
Page 3
All policies of insurance required herein shall be endorsed to provide that the coverage
shall not be cancelled, non-renewed, reduced in coverage or in limits except after thirty
calendar days' written notice by certified mail, return receipt requested, has been given to
City. Operator is also responsible for providing written notice to the City under the same
terms and conditions. Upon issuance by the insurer, broker, or agent of a notice of
cancellation, non-renewal, or reduction in coverage or in limits, Operator shall furnish City
with a new certificate and applicable endorsements for such policy(ies). In the event any
policy is due to expire during the work to be performed for City, Operator shall provide a
new certificate, and applicable endorsements, evidencing renewal of such policy not less
than fifteen calendar days prior to the expiration date of the expiring policy.
VERIFICATION OF COVERAGE
Operator shall furnish City with all certificate(s) and applicable endorsements effecting
coverage required hereunder. All certificates and applicable endorsements are to be
received and approved by the City's Risk Manager or designee prior to City's execution of
the Agreement and before work commences. All non-ISO endorsements amending policy
coverage shall be executed by a licensed and authorized agent or broker. Upon request of
City, Operator shall immediately furnish City with a complete copy of any insurance policy
required under this Agreement, including all endorsements, with said copy certified by the
underwriter to be a true and correct copy of the original policy. This requirement shall
survive expiration or termination of this Agreement.
Page 4
EXHIBIT C
DISCLOSURE OF CONFLICT OF INTEREST
Operator Service Agreement between City of Fresno (City)
and Laurence Christensen Corporation (Operator)
Continued Management of Theater
YES` NO
FAre you currently in litigation with the City of Fresno or any of its ❑
agents?
2 Do you represent any firm, organization, or person who is in ❑ { ]
litigation with the City of Fresno?
3 Do you currently represent or perform work for any clients who do ❑ �]
business with the City of Fresno?
4 Are you or any of your principals, managers, or professionals, ,
owners or investors in a business which does business with the ❑ rvi
City of Fresno, or in a business which is in litigation with the City of
Fresno? _
5 Are you or any of your principals, managers, or professionals,
related by blood or marriage to any City of Fresno employee who ❑
has any significant role in the subject matter of this service?
6 Do you or any of your subcontractors have, or expect to have, any
interest, direct or indirect, in any other contract in connection with ❑
this Project?
If the answer to any question is yes, please explain in full below.
Explanation-. -71S
Signature
17,1ee,S 71I2
1-6 ' d 7 Date
Name
LC 62t4iv Company
�S
Address
❑Additional page(s) attached.-
City, State Zip)
Page 5
EXHIBIT D
PROJECTED NET OPERATING REVENUES/(EXPENSES)
Estimated Budget
Description. Monthiv Annually
INCOME
Property Rentals
Lounge rental 1,000.00 12,000.00
Total Property Rentals $ 1,000.00 $ 12,000.00
Theatre Rentals
Average number of events/month
4
Average net proceeds per event:
$4,600.00
Total Net Theatre Rental $ 18,400 00 $ 220,800.00
TOTAL INCOME $ 19,400.00 $ 232.800.00
EXPENSES
Payroll.
Administration $ 6,000.00 $ 72,000.00
Soaai Media 3,333.00 39,996.00
Bar Tender 2,083.33 24,999.96
Worker's Compensation 138.59 1,663.08
Payroll Taxes 2,000.00 24.000.00
Payroll Services 300.00 3,600.00
Events/Office
Advertising 2,083.33 24,999.96
Internet/Comcast 667.00 8,004.00
Office Equipment 833.33 9,999.96
Admin/AR&AP/Marketing 600.00 7,200,00
Tech Support 1,250.00 15,000.00
Merchant Sery Leases 300.00 3,600.00
Web Master/Domaine 416.70 5,000.40
Bar
Daily Liquor Licenses 400,00 4,80000
Alcohol 1,250.00 15,000.00
Bar Supplies 167.00 2.004.00
Janitorial/M ai me ne nce/l nsu rance
MaintenancelJanitorial 2,500.00 30,000.00
Cleaning Supplies/Misc. 833.33 9,999.96
Insurance-Liquor Liability 91.50 1,098.00
Insurance-property/liability 417.00 5,004.00
Employee Health Ins, 2,008.61 24,103.32
Insurance-umbrella 182.37 2,188.44
Other
Utilities 3,000.00 36,000.00
Security 1,250.00 15,000.00
Professional Services- 3,333.33 39.999.96
Alarm/onsite calls 220.83 2,649.96
Pricketts-ice machine 204.45 2,453.40
TOTAL EXPENSES $ 35,863.70 S 430,364.40
NET OPERATING REVENUES/(EXPENSES) 5 (16,463.70 $ 197 564.40
MANAGEMENT FEE $ $000.00 $ 96 000.00
TOTAL OUTGO(City) _$ i24.463.701 $ (293,564.4U1
Page 6
EXHIBIT E
BOOKINGS PRIOR TO CLOSE OF ESCROW&COMPENSATION FORMULA
City of Fresno
Tower Theatre-Booked Events
7/20/2022
Show No. Date Show Contract Y/N Ticket Revenue 1 Deposit Total Collected
1 i 8/6/2022 Mark Curry N 1,143.60 1,143.60
2 8/23/2022 Jesse Cook Y 13,941.04 - 13,941.04
3 9/2/2022 The Black Market Trust Y 3,389.64 3,000.00 6,389.64
4 9/9/2022 JB Ball N 356.70 - 356.70
5 9/22/2022 Felipe Esparza N 11,957.40 11,957.40
6 9/25/2022 An Evening with Judy Collins Y 10,170.96 10,170.96
7 10/1/2022 Yachtley Crew Y 8,514.06 8,514.06
8 10/15/2022 Willie Barcena N 775.96 775.96
9 10/22/2022 Last in Line Y 4,544.85 4,544.85
10 11/4/2022 Aja Vu and Slealin Chicago Y 1,522.00 1,522.00
11 11/18/2022 Trinity:Classically Irish Y
12 11/26/2022 The Fab Four Y 20,759.73 20,759.73
13 12/10/2022 W.A.S.P Y 26,375.18 26,375.18
14 2/18/2023 Benise Spanish Nights Y 525.86 500.00 1,025.86
15 3/12/2023 ABBA Tribute Y 2,853.65 - 2,853.65
16 7/16/2022 Evolve Y - 3,500.00 3,500.00
19 9/16/2022 Fitwell Championships Y - -
20 10/15/2022 Barcena Y 1,000.00 1,000.00
21 11/30/2022 Popovich Comedy Y 1,000.00 1,000.00
22 12/1/2022 The Nutcracker Y -
23 4/13/2023 Elton Dan Y - -
$ 106,830.63 $ 9,000.00 $ 115,830. 33
1. Operator shall open a "reserve" account at the close of escrow in which the Operator will deposit
$115,830.63 amounting to the total revenues collected as reflected above at the time of close of escrow
that is subject to potential ticket refunds and other refunds. Operator will also open a new "operating"
account in which the City will make a one-time deposit within 10 days of execution of this Agreement of
$13,941.04 and the City will deposit thereafter $16,463 monthly starting August 1, 2022 to cover net
monthly operating expenditures per the budget as detailed in Exhibit D. Operator shall control the new
operating account, provided that Operator shall return any unused funds to the City for any funds that are
not used for events within thirty(30) days after the true up accounting under section 3(b) of the Agreement
is received by the City and further provided that the City shall receive all ticket revenues and other
revenues from the Theatre operations.
2. Additionally, should there be a shortfall in the operating account (budgeted expenditures exceed
budget revenues) beyond the net budget in Exhibit D, then a true up shall occur by 10 days after the date
the Operator submitted the monthly report except that any expenses beyond the monthly budget in Exhibit
D shall not exceed five (5%) percent additional reimbursement, calculated at $823 per month based on
$16,463 monthly. The reimbursement shall be paid by the City to Operator within 10 days from the date
the Operator's monthly report is received by the City. If Operator anticipates a shortfall greater than 5% as
described above, the Operator must obtain advanced approval in writing from the City before any
additional expenses are incurred and the City shall have discretion to deny any expenses that are either
more than five (5%) percent beyond the budgeted amount and/or a new category of expense(s). Legal fees
Page 7
of up to$1,000/month and accounting fees of$ 2,333.33 shall be permitted by Operator for each month. If
a true up shows that Operator sustained an unanticipated loss in revenues due to COVID-19, a natural
disaster, damage to the Theatre or other unanticipated shutdown of business in a given month, then the
City shall meet and confer with the Operator in good faith on appropriate payment amount by the City to
Operator for each month where there is an unanticipated shutdown of business at the Theatre so that
Operator does not bear that financial loss.
3. In consideration for the above terms, Operator agrees to not have any"side business(es)" whereby
Operator earns additional revenues beyond this Agreement related to the Theatre such as for sale of
merchandise or logos for the Theatre and/or money collected by Operator based on the use and/or sale of
the name Tower Theatre or a similar name for the Theatre. Should Operator violate this provision, then
Operator shall forfeit the protections provided in Paragraph 2 above of this Exhibit E.
4. Should the City elect to terminate the Agreement with 30 days advance written notice to Operator,
Operator shall not be paid $8,000/month for any months that the Operator no longer manages Theatre
operations and all monthly advances of$16,463 monthly shall end for any future months after Operator no
longer manages Theatre operations. For a partial month of management services after termination of the
Agreement, Operator shall receive payment by the City of a pro-rated share of$8,000/month for said days
Operator manages the Theatre, such as for training a new operator. Operator may terminate this
Agreement with 30 days advance written notice to the City.
Page 8
FIDELITY NATIONAL TITLE COMPANY
555 S.Flower Street,Suite 4420.Los Angeles,CA 90071
Phone:(213)452-7100
Buyers/Borrowers Settlement Statement
Estimated
Escrow No:30084061-002 JA Close Date: Proration Date: Disbursement Date:
Buyer(s)/Borrower(s): City of Fresno
Seller(s): TOWER THEATRE PRODUCTIONS
Properties:
Address: 1247 North Wishon Avenue
Fresno,CA 93728
Address: 777 East Olive Avenue
Fresno,CA 93728
Debit Credit i
Description
TOTAL CONSIDERATION: 6,500,000.00
Total Consideration 100,000.00
Initial Deposit-CITY OF FRESNO CO-4/27/2022
ESCROW CHARGES: 6,200.00
Escrow fee
Escrow pad(returned if not used) 2,0 45
45.00
.00
593 Remittance
TITLE CHARGES: 7,458.00
Owners Policy for$6,500,000.00
ADDITIONAL CHARGES: 129.00
NHD report to Disclosure Source NHD
PRORATIONS AND ADJUSTMENTS: 207.32
1st Installment property taxes APN 451-265.02 from 7/112022 to 7/2 212 0 2 2
[rased an the seml-W+nual amount of$1.816.48 724.01
1 at Installment property!axes APN 461-265-03 from 7111202210 7/22/2022
based on the Seml-Annual amount of$6,343.67 3,132.36
Rents-Jury 2022 from 7/2Zr2022 to 7/31/2022 biased on the Monthly
amount of$10,789.23 6,000.00
Security deposit 6,515,632.00 110,063.69
Sub Totals
6,405,766.31
Balance Due From Buyer Borrower
6,515,832.00 6,515,832.00
Totals
It is agreed by the undersigned that the foregoing statement may change if a change in the escrow closing occurs or if other unforeseen
contingencies arise. In the event changes in the statement become necessary,you are nevertheless authorized to close this escrow. It is
understood that we will receive a final statement of account if the above totals are changed.
APPROVEDANDACCEPTED THIS DAY OF
Page 1 of 2
Printed by Adina Martinez on 7/20/2022-12:10:55PM
FIDELITY NATIONAL TITLE COMPANY
555 S.Flower Street,Suite 4420,Los Angeles,CA 90071
Phone:(213)452-7100
Buyers/Borrowers Settlement Statement
Estimated
Escrow No:30084061-002 JA Close Date: Proration Date: Disbursement Date:
Buyers)/Borrower(s):
C17Y OF FRESNO,
a charter city
By: "q X�s
Gregory Od,AssistantCi Manager
ATTES .
Todd Stermer,City Clerk
APPROVED AS TO FORM
CITYATTORNEY'S OFFICE
Ri onz as.Interim City Attorney
Printed by Adina Martinez on 7/20/2022-12:10:55PM Page 2 of 2