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HomeMy WebLinkAbout11 - Newport Beach Film Festival Grant AgreementCITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. 11 October 13, 2009 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Administrative Services Department Dennis C. Danner, Administrative Services Director (949) 644 -3123 or ddanneranewportbeachca.aov Susan Giangrande, Senior Budget Analyst (949) 644 -3128 or sgiangrande(cDnewportbeachca.gov SUBJECT: Newport Beach Film Festival Grant Agreement ISSUE: Should the City Council approve a grant agreement with the Newport Beach Film Festival that provides for City sponsorship of the 2010 Film Festival? Authorize the Mayor and City Clerk to execute a grant agreement with the Newport Beach Film Festival that provides City funding in the amount of $100,000. DISCUSSION: The City has been a sponsor of the Newport Beach Film Festival for the past 10 years. Original funding was in the amount of $35,000 and has grown to $100,000 for the past three years. Included in the City's FY 2009 -10 operating budget is $100,000 for sponsorship of the 11`" Annual Film Festival to be held from April 22 to May 29, 2010. The agreement requires the funds to be expended solely for the purpose of activities related to providing an annual film festival, open to the public, in the City of Newport Beach. The agreement includes standard restrictions and reportinglaccounting requirements. In the event the funds are not used prior to June 30, 2010, and for the approved use, the Film Festival is obligated to return them within 60 days. It is our understanding that future requests by the Film Festival will be reviewed by the Special Events Advisory Committee. Newport Beach Film Festival Grant Agreement October 13, 2009 Page 2 Environmental Review: The City Council's approval of this agenda item does not require environmental review. Public Notice: The agenda item has been noticed according to the Brown Act (72 hours in advance of the meeting at which the City Council considers the item). Funding Availability: Funding is available in the City Council's budget, line item 0110 -8250. Alternatives: Revise the terms of the agreement or the amount of the grant. Prepared by: Susan Giangrande Senior Budget Analyst Attachments: Grant Agreement Submitted by: Dennis C. Danner Administrative Services Director GRANT AGREEMENT BETWEEN THE CITY OF NEWPORT BEACH AND NEWPORT BEACH FILM FESTIVAL This Agreement, entered into this day of 2009 by and between the CITY OF NEWPORT BEACH, a California municipal corporation and Charter City ( "City "), and the NEWPORT BEACH FILM FESTIVAL, a California non- profit corporation located at 4540 Campus Drive, Newport Beach, CA 92660 ( "Grantee "), is made with reference to the following: RECITALS WHEREAS, it is the policy of the City Council that the City's budget specifically allow the City Council to, at any time during the year, direct revenue towards non - profit agencies, community groups, community events, or enhancement projects with worthy projects or programs which the Council deems beneficial to Newport Beach's quality of life. WHEREAS, Grantee is a California non - profit public corporation exempt from federal taxation pursuant to section 501(c)(3) of the Internal Revenue Code. WHEREAS, Grantee has requested a grant from the City to help it promote the annual film festival to be held in the City of Newport Beach, which will bring to Newport Beach the best in classic and contemporary filmmaking from April 22 to May 29, 2010 ( "Grant Proposal "). WHEREAS, the Newport Beach City Council has determined that the Grant is in the public interest and for the benefit of the citizens of Newport Beach. WHEREAS, the City has approved a grant in the amount of One Hundred Thousand Dollars and No Cents ($100,000.00) ( "Grant Funds ") to Grantee under conditions of expenditure and reporting and accounting requirements. NOW, THEREFORE, the Parties agree as follows: 1. GRANT City agrees to pay to Grantee the Grant amount of One Hundred Thousand Dollars and No Cents ($100,000.00) as requested by Grantee in the Grant Proposal attached hereto as Exhibit A and incorporated herein by reference. Grant Funds shall be paid as follows: 1) The first installation of Fifty Thousand Dollars ($50,000.00) shall be paid within 30 days of the Grantee's execution of this Agreement and receipt of the Grantee's operating budget for the 2009 -10 Fiscal Year; and 2) The second installment of Fifty Thousand Dollars ($50,000.00) shall be paid upon receipt and approval of the reporting documents outlined in Paragraph 4(b) herein, including the Statement of Activities, dated through the second quarter ending December 31, 2009. 2. TERM The term of this Agreement shall commence on the date first written above (the "Effective Date ") and shall continue in full force and effect until terminated by the City or until June 30, 2010, whichever occurs first. 3. RESTRICTIONS ON USE OF FUNDS The Grant Funds are subject to the following expenditure conditions, hereinafter the "Approved Use." The Grant Funds shall: (a) Be expended solely for the purpose of activities related to providing an annual film festival, open to the public, in the City of Newport Beach, California; (b) Not be used for any activity that would violate state or federal statutory or decisional law such as regulations affecting non - profit or tax exempt organizations exempt from taxation pursuant to Section 501(c)(3) of the Internal Revenue Code; (c) Be used such that all venues for the screening of films, and events are open to the public and held within the City of Newport Beach; and (d) Be expended during the fiscal year July 1, 2009 through June 30, 2010 ( "Spending Period "). Grantee further warrants to City that the Grant Funds will be spent solely for the approved use and the Grant shall be used by Grantee for the approved use during the spending period or the money shall be returned to City, as described in Section 5 below. 4. REPORTING AND ACCOUNTING REQUIRMENTS (a) At all times during the term if this Agreement, Grantee shall maintain true, proper, and complete books, records, and accounts (collectively called "Books and Records ") in which shall be entered fully and accurately all transactions taken with respect to the operation of Grantee and the expenditure of the Grant Funds. Grantee shall maintain the books and records in accordance with Generally Accepted Accounting Principles, and allow the City to conduct an audit of the financial records upon reasonable notice at any times within four (4) years after expiration or termination of this Agreement. (b) Grantee shall, on a quarterly basis during the term of this Agreement, furnish the City with a Statement of Activities describing the receipt and disbursement activities of Grantee. With this report, Grantee shall include quarterly check registers and descriptions of each disbursement, as well as budget -to- actual - results. Grantee shall also provide, on a quarterly Grant Agreement Page 2 basis, a Statement of Position describing the assets and liabilities of Grantee. All quarterly reports shall be due to the City no later than forty- five (45) days following the end of the reporting quarter. In the event that an independent audit is conducted, Grantee shall forward a copy of the audited report to the City for review, including any Management Letter, Report on Internal Controls, or Reportable Conditions letter generated during the course of the audit. (c) Grantee agrees to exercise prudent financial management processes including proper oversight of all assets, budget preparation, and timely reporting including budget -to- actual- comparisons. (d) All Activities shall be performed by Grantee or under Grantee's supervision. Grantee represents that it possesses the professional and technical skills required to perform the services required by this Agreement, and that it will perform all services with a standard of care and in a manner commensurate with the community professional standards. 5. USE OF THE MONEY The Grant Funds shall be used solely by Grantee for the approved use and for no other use. In the event that the Grant Funds are not used for the approved use by or before June 30, 2010, Grantee shall notify the City in writing, and shall be obligated to return the funds within sixty (60) days. 6. INDEMNIFICATION To the fullest extent permitted by law, Grantee shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents, volunteers, and employees (collectively, the "Indemnified Parties ") from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims "), which may arise from or in any manner relate (directly or indirectly) to any breach of the terms and conditions of this Agreement, any work performed or activities conducted for or at the Film Festival (including the negligent and /or willful acts, errors and/or omissions of Grantee, its principals, officers, agents, employees, vendors, suppliers, consultants, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable or any or all of them). Notwithstanding the foregoing, nothing herein shall be construed to require Grantee to indemnify the Indemnified Parties from any Claim arising from the sole negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorney's fees in any action on or to enforce the terms of this Agreement. This indemnity 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 the Grantee. Grant Agreement Page 3 7. GRANTEEINDEPENDENCE In the performance of this Agreement, the Grantee, and the agents and employees of Grantee, shall act in an independent capacity and are not officers, employees or agents of the City. 8. PROHIBITION AGAINST TRANSFERS Grantee shall not assign, sublease, hypothecate or transfer this Agreement or any of the services to be performed under this Agreement, directly or indirectly, by operation of law or otherwise without prior written consent of City. Any attempt to do so without consent of City shall be null and void. 9. NOTICES All notices, demands, requests or approvals to be given under this Agreement shall be given in writing and conclusively shall be deemed served when delivered personally or on the third business day after the deposit thereof in the United States mail, postage prepaid, first class mail, addressed as hereinafter provided. All notices, demands, requests or approvals from Grantee to City shall be addressed to the City at: City Manager City of Newport Beach 3300 Newport Boulevard P.O. Box 1768 Newport Beach, CA 92658 -8915 (949) 644 -3000; Fax (949) 644 -3020 All notices, demands, requests or approvals from City to Grantee shall be addressed to Grantee at: Gregg Schwenk Executive Director Newport Beach Film Festival 4540 Campus Drive Newport Beach, CA 92660 (949) 253 -2880; Fax (949) 253 -2881 10. TERMINATION (a) Termination for Cause. Grantee shall be in default if Grantee fails or refuses to perform any duty required by the Agreement or performs in a manner inconsistent with the terms, conditions and restrictions in this Agreement. In such event, City shall give Grantee, thirty (30) days written notice to cure, if the default can be cured and City shall be entitled to terminate this Agreement if Grantee has not cured the default within the Grant Agreement Page 4 thirty (30) day cure period. City shall be entitled to immediately terminate this Agreement if the default cannot be cured through corrective action. This Agreement is made on an annual basis, and as such is subject to non - renewal at its termination. (b) Specific Performance. Grantee agrees that the City has the legal right, and all necessary conditions have been satisfied, to specifically enforce Grantee's obligations pursuant to this Agreement. 11. WAIVER A waiver by either party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a different character. 12. INTEGRATED CONTRACT This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. 13. INTERPRETATION The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of the Agreement or any other rule of construction which might otherwise apply. 14. AMENDMENTS This Agreement may be modified or amended only by a written document executed by both Grantee and the City and approved as to form by the City Attorney. 15. SEVERABILITY If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 16. CONTROLLING LAW AND VENUE The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange. Grant Agreement Page 5 17. EQUAL OPPORTUNITY EMPLOYMENT Grantee represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. 18. COMPLIANCE WITH ALL LAWS Grantee shall at its own cost and expense comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first above written. APPROVED AS TO FORM: OFFICE OF THE CITY ATTORNEY By: Mynette Beauchamp, Assistant City Attorney ATTEST: By: Leilani Brown, City Clerk CITY OF NEWPORT BEACH, a Municipal Corporation Edward D. Selich Mayor GRANTEE: Newport Beach Film Festival By:_ Title: (Corporate Officer) Print Name: By: (Financial Officer) Title: Print Name: Grant Agreement Page 6