MEMORANDUM OF UNDERSTANDING BETWEEN THE CITY OF WALNUT CREEK AND DIABLO REGIONAL ARTS ASSOCIATION

Attachment MEMORANDUM OF UNDERSTANDING BETWEEN THE CITY OF WALNUT CREEK AND DIABLO REGIONAL ARTS ASSOCIATION I. PARTIES. This Memorandum of Understanding [hereinafter "MOU" or "Agreement"], dated for reference purposes January 16, 2007, is made by and between the City of Walnut Creek [hereinafter "CITY"], a municipal corporation, and the Diablo Regional Arts Association [hereinafter "DRAA"], a not-for-profit public benefit California Corporation. II RECITALS. A. The CITY operates, through its Arts, Recreation and Community Services Department, the Lesher Center for the Arts [the LCA ], and within the LCA, the performing arts company known as Center REPertory Theatre [ Center REP ], and the art gallery known as the Bedford Gallery program. B. DRAA is an independent non-profit organization whose focus and mission is to support and elevate the quality of programs at the LCA in the full spectrum of arts, including drama, musical theatre, dance, opera, music, and the visual arts, and to provide families, children, seniors, educators and low-income or at-risk individuals the opportunity to experience high quality programs at the LCA. C. The CITY's Arts Vision Report, issued in June 2004, outlines a ten-year [2005 to 2015] strategic vision for the CITY's arts programs, including the LCA. The Report's vision for the LCA is for it to become the leading regional center for the arts in the San Francisco Bay Area, outside of San Francisco. DRAA shares this vision and goal. D. Neither Center REP nor the Bedford Gallery has an independent board or organization for purposes of fundraising and the DRAA has historically served as the 501(c) (3) fundraising organization for Center REP and the Bedford Gallery. E. DRAA also provides grant administration services for the CITY s Theatre Marketing and Performance Credits Award Program subject to the terms of a separate agreement between the CITY and DRAA dated September 19, 2006. This MOU does not replace or amend the September 19, 2006 agreement. F. DRAA s offices are located at the LCA and the CITY currently provides office space and certain services to DRAA without charge to DRAA. III. PURPOSE. The purpose of this MOU is to outline certain roles and responsibilities of the CITY and DRAA with respect to the LCA and to confirm their joint vision and goal to make the LCA the leading regional center for the arts in the San Francisco Bay Area, outside of San Francisco. 1

IV. RESPONSIBILITIES. It is agreed by and between the parties hereto that each party shall have the following specific responsibilities: A. DRAA: Develop and implement programs to support and enhance the quality of productions at LCA and provide annual funding for such programs. 1. Artistic Excellence Grant Program: DRAA will fund and administer an annual grant program to support and enhance the artistic excellence of the core professional and semi-professional groups who perform season series at LCA [the Anchor Producers ]. The Anchor Producers currently comprise Center REP, Contra Costa Musical Theatre, Diablo Light Opera Company, California Symphony, Festival Opera, Diablo Ballet, Smuin Ballet, and Bedford Gallery. Criteria for grants, amount of awards and selection of grantees will be determined by DRAA. DRAA may from time to time, based upon the organizations that are then regularly performing at LCA, change the producers identified as Anchor Producers. 2. New Artist Series: DRAA will fund and administer an annual grant program to encourage and facilitate diversity of programming and appearances by high quality professional groups that do not currently appear at LCA and who are likely, upon successful initial productions, to commit to season series performances at LCA and ultimately become part of the Anchor Producers. 3. Business Alliance for the Arts/Corporate Sponsorships: DRAA will bring business and major corporate support to the LCA by creating and managing sponsorship opportunities for specific events, productions and performances by and among the Anchor Producers. 4. Arts Access: DRAA will work with social service agencies, arts organizations, schools and others to enable families, children, seniors, educators and low-income or at-risk individuals the opportunity to experience exhibits at the Bedford Gallery and quality performances at LCA. DRAA will fund and administer this program, which will include purchasing tickets to performances and exhibitions at the LCA for groups of students, teachers, low-income individuals and seniors in challenging circumstances; engaging interpreters for hearing impaired audiences; and providing transportation to arts events at the LCA. This program will both provide access for underserved populations and generate earned income for the presenting arts organizations. 5. Marketing: DRAA, in collaboration with the LCA and the Anchor Producers, will encourage and facilitate marketing of Anchor productions at LCA. DRAA will fund and produce an annual brochure to include season series of the Anchor Producers. DRAA will collaborate with the CITY on a plan to modernize the LCA website, pursuant to which DRAA will fund the creative development and design work. Upon completion of the new website, in collaboration with the CITY, DRAA will create a plan for the ongoing management and maintenance of the website. DRAA will create and fund a campaign to brand LCA as a venue to see top quality programs, to highlight the advantages of attending performances and the LCA and to brand DRAA as the foundation for support of such programs. 2

6. Development Program: DRAA will operate a comprehensive development program, which includes soliciting and managing individual gifts and membership campaigns, corporate sponsorships, private foundation gifts and grants, and special events to support the program responsibilities described above. B. CITY: Support of programs to increase the quality of productions at LCA. 1. CITY will work collaboratively with DRAA to coordinate and accommodate where possible scheduling of new producers in DRAA s New Artist Series. 2. CITY will work collaboratively with DRAA to coordinate development and distribution of season brochure produced by DRAA. 3. CITY will work collaboratively with DRAA to develop and implement a marketing plan to Super Brand the LCA as a destination for quality performing and visual arts productions. 4. CITY will manage LCA facilities in manner that enhances the ability of producers to create high quality programs at LCA. 5. CITY will work collaboratively with DRAA to develop funding for enhancements to the facility and infrastructure at the LCA. V. DRAA USE OF CITY FACILITIES. The CITY shall permit DRAA to use CITY facilities as specified in subsections [A] through [C] which follows: A. Use of LCA office space at no charge to house DRAA's administrative operations; B. Use of the Encore Room and conference rooms in the LCA for administrative or fundraising activities, subject to availability of these locations, at no charge during standard business hours [Monday through Friday 8:00 a.m. to 5:00 p.m.] and, during non-standard business hours; if CITY should incur additional costs, DRAA shall reimburse CITY for such additional costs; C. Use of LCA lobbies, theatres, the Bedford Gallery, and other spaces for DRAA fundraising events or activities, subject to availability of these spaces, and upon payment of additional costs incurred by CITY, if any; and, D. Use of all LCA facilities, as set forth above shall be scheduled with the LCA and Bedford Gallery managers as appropriate. VI. FUND RAISING BY CITY AND OTHER ENTITIES. Center REP and the Bedford Gallery are among the Anchor Producers and will be beneficiaries of many of the DRAA programs described in Section III and IV above. In addition, the CITY or other entities may engage in independent fundraising efforts for Center REP and the Bedford Gallery, which may include grant seeking and patron solicitations. CITY staff will ensure communication and coordination with DRAA regarding such activities. 3

A. By the end of January each year, Center REP and Bedford Gallery will identify to DRAA their anticipated funding needs for the following season (with projected programs, budgets and related funding gaps) and in the following month, DRAA will assist, Center REP and Bedford Gallery to develop an annual fundraising plan (the CR/Bg Plan ) The CR/Bg Plan will be presented to the DRAA Board each year in March for consideration. The DRAA Board will identify components of the CR/Bg Plan for inclusion in DRAA s broader development plan for the ensuing year, and the components included in DRAA development plan will then be executed by DRAA in close coordination with Center REP and Bedford Gallery. B. In order to properly coordinate mailings and other fundraising activities, any requests for special fundraising activities not included in the annual CR/Bg Plan in which Center REP or Bedford Gallery desire for DRAA to serve as 501 (c) (3) fiscal intermediary must be submitted in writing to the DRAA Executive Director at least 45 days prior to the desired fundraising activity. If the Executive Director does not respond to a submission within 10 business days of receipt, the submission will be deemed approved. C. DRAA agrees to continue as the 501 (c)(3) of record for fundraising purposes and shall accept donations on behalf of Center REP and the Bedford Gallery, if donors wish to give to a 501 (c) (3) organization rather than directly to the CITY, and will assist in the execution of the components of the CR/Bg Plan adopted by the DRAA Board pursuant to paragraph A above. D. DRAA will account to the CITY for all funds received from donors to DRAA that are directed to Center REP and the Bedford Gallery. DRAA will provide written reports to the CITY arts program staff monthly with respect to donations it receives that are designated for the Bedford Gallery and Center REP. E. DRAA shall issue payments to the CITY on a quarterly basis by the l0th day of the month following each quarter for contributions it received that are directed to Center REP or the Bedford Gallery. When funds are paid to the City, DRAA will report any terms and conditions associated with such donations. F. As to donations received by DRAA that are designated to specific Bedford Gallery and Center REP purposes or that otherwise have specific terms and conditions, the CITY will report to DRAA the CITY s use of such funds to enable DRAA to assure, for donors who so designated such donations, that the funds have been actually expended for the designated purposes. G. DRAA will continue to provide use of its Bulk Mail Permit to Center REP and the Bedford Gallery at no cost other than postage, subject to policies established by DRAA from time to time to assure appropriate record keeping and appropriate use of the permit. 4

VII. USE OF TRADEMARKS & ACKNOWLEDGEMENTS. The CITY shall acknowledge the role and contributions of DRAA and major donors in publications and media materials of CITY arts programs and the LCA. The CITY acknowledges that DRAA may, in its discretion, change its name to better reflect its focus on and commitment to the LCA and the CITY grants DRAA the non-exclusive authority to use Lesher Center in its organizational name. VIII. ACCOUNTING PRACTICES. DRAA shall maintain its status as a 501 (c) (3) organization and shall employ generally accepted non-profit accounting practices including fund accounting. IX. IN-KIND CONTRIBUTION. By September 15 of each year, the City shall provide DRAA with a schedule of the value of each in-kind contribution to DRAA. DRAA shall acknowledge the value of rent, office telephones, utilities, basic information technology and building maintenance services associated with use of space for administrative purposes specified in Section V, subsections [A] and [B] as an in-kind contribution from the CITY to DRAA. X. REPORTING REQUIREMENTS. DRAA shall comply with the following reporting requirements: A. By September 30 of each year, DRAA will provide an annual written report to the CITY that summarizes the activities of DRAA. B. DRAA shall submit DRAA s annual audited report to the CITY no later than December 31 of each year. XI. INDEMNIFICATION. DRAA shall indemnify, defend, and hold harmless the CITY and its officers, officials, agents, employees and volunteers against any and all liability, claims, actions, causes of action or demands against any of them, including any injury or death of any person or damage to property or other liability of any nature, to the extent the claims arise out of DRAA s use of the CITY s facilities or from DRAA s performance of this Agreement. XII. INSURANCE. For all purposes and activities under this Agreement, DRAA is an independent contractor. As such DRAA and its employees, board members and volunteers are not employees or agents of the CITY. DRAA shall procure and maintain at its sole cost for the duration of this Agreement the required insurance listed on Schedule A. XIII. TERM AND TERMINATION. This MOU shall take effect on the first day of the month immediately following approval hereof by both the DRAA Board and the City Council and shall terminate on December 31, 2008. Prior thereto, DRAA and the CITY shall confer on whether to continue and/or modify this MOU for a subsequent two-year period. XIV. AMENDMENT. This Agreement may be amended only by written agreement signed by both parties. XV. ASSIGNMENT. Neither the DRAA nor the City shall assign or otherwise transfer this Agreement or the rights or obligations hereunder. 5

XVI. ENTIRE AGREEMENT. This Agreement is the entire Agreement between the parties and supersedes all prior negotiations, representations, or agreements, whether written or oral. XVII. DESIGNATED REPRESENTATIVES. For the purposes of administering this Agreement, the DRAA Executive Director and the Director of Arts, Recreation and Community Services of the City of Walnut Creek shall act as representatives for their respective organizations. Any action, notice, or request required to be taken, given, or made by DRAA shall be deemed to be duly and properly given or made if mailed postage pre-paid, personally delivered, or e-mailed to: Executive Director Diab1o Regional Arts Association 1601 Civic Drive Walnut Creek, CA 94596 Any action, notice, or request required to be taken, given, or made by CITY shall be deemed to be duly and properly given or made if mailed postage pre-paid, personally delivered, or e-mailed to: Director of Arts, Recreation and Community Services City of Walnut Creek P.O. Box 8039 [1666 North Main St.] Walnut Creek, CA 94596-8039 IN WITNESS WHEREOF, the parties have signed this Agreement in duplicate as of the date noted. CITY OF WALNUT CREEK DIABLO REGIONAL ARTS ASSOCIATION City Manager Date: Executive Director Date: 6

Schedule A A. Minimum Scope of Insurance. Coverage shall be at least as broad as: 1. Insurance Services Office Commercial General Liability coverage ["occurrence" form CG 0001]. 2. Insurance Services Office form number CA 0001 [Ed. 1/78] covering Automobile Liability, code 1 ["any auto"]. 3. Workers' Compensation insurance as required by the Labor Code of the State of California and Employers Liability insurance. B. Minimum Limits of Insurance. DRAA shall maintain policy limits of no less than: 1. General Liability: $1,000,000 combined single limit per occurrence for bodily injury, personal injury and property damage. If Commercial General Liability Insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit. 2. Automobile Liability: $1,000,000 combined single limit per accident for bodily injury and property damage. 3. Worker's Compensation and Employers Liability: Worker's Compensation limits as required by the Labor Code and Employers Liability limits of $1,000,000 per accident. C. Deductibles and Self-Insured Retention. Deductibles in excess of $10,000 or any self-insured retention must be declared to and approved by the CITY. If a deductible is in excess of $10,000, at the option of the CITY, the insurer shall reduce or eliminate such deductibles or self-insured retention with respect to the CITY, its officers, officials, employees and volunteers. D. Other Insurance Provisions. The policies shall contain, or be endorsed to contain, the following provisions: 1. General Liability and Automobile Liability Coverage. a. The CITY, its officers, officials, employees, agents and volunteers are to be covered as additional insured in all respects, including but not limited to automobile insurance; liability arising out of activities performed by or on behalf of DRAA; products and completed operations of DRAA; premises owned, occupied or used by DRAA; or automobiles hired or borrowed by DRAA. The coverage shall contain no special limitations on the scope of protection afforded to the CITY, its officers, officials, employees, agents or volunteers. b. DRAA's insurance coverage shall be primary insurance as respects the CITY, its officers, officials, employees and volunteers. Any insurance or self-insurance maintained by the CITY, its officers, officials, employees, agents or volunteers shall be excess of DRAA's insurance and shall not contribute with it. 1

c. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to the CITY, its officers, officials, employees, agents or volunteers. d. DRAA's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. 2. All Coverages. Each insurance policy required by this clause shall be endorsed to state that coverage shall not be canceled by either party except after thirty [30] days' prior written notice by mail has been given to the CITY. Ten days written notice if coverage is canceled for nonpayment. 3. Acceptability of Insurers. Insurance is to be placed with insurers with a Best's rating of no less than A: VII. 4. Verification of Coverage. DRAA shall furnish the CITY with certificates of insurance and with original endorsements effecting coverage required by this clause. The certificates and endorsements for each insurance policy are to be signed by a person authorized by that insurer to bind coverage on its behalf. All certificates and endorsements are to be received and approved by the CITY before work commences. The CITY reserves the right to require complete certified copies of all required insurance policies, at any time. 2