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HomeMy WebLinkAbout5/21/2008 - STAFF REPORTS - 4.B. aO�pA`M SA4 iy c c.. n ' I cq[IFORN,P CITY COUNCIL STAFF REPORT DATE: May 21, 2008 UNFINISHED BUSINESS SUBJECT: RECEIVE, AND FILE MAIN STREET PALM SPRINGS BYLAWS AND APPROVE A ONE-YEAR CONTRACTUAL SERVICES AGREEMENT WITH MAIN STREET PALM SPRINGS, A CALIFORNIA NONPROFIT BENEFIT CORPORATION, IN AN AMOUNT NOT TO EXCEED $20,000 FROM: David H. Ready, City Manager BY: Community & Economic Development Department SUMMARY Staff recommends the City Council receive and file the Main Street Palm Springs Bylaws. Additionally, Staff recommends the Council approve a one-year Contractual Services Agreement with Main Street Palm Springs in an amount not to exceed $20,000. RECOMMENDATION- 1. Receive and file the Main Street Palm Springs Bylaws. 2. Approve a one-year Contractual Services Agreement with Main Street Palm Springs, a California Nonprofit Benefit Corporation, in an amount not to exceed $20,000 and in a form acceptable to the City Attorney. 3. Approve a Budget Resolution appropriating $20,000 from the Fund Balance of the General Fund. STAFF ANALYSIS: In order to be more responsive to the needs of the business community in the downtown, Main Street Palm Springs has restructured its Bylaws to attempt to make the Board of Directors more representative of downtown and uptown. Additionally, to demonstrate the level of support for Main Street in the downtown and uptown area, the Bylaws recast the organization as an actual membership organization, with a nominal dues payment to join. The Corporation represents the interests of businesses and ITEM NO--- � - City Council Staff Report (May 21, 2008) -- Page 2 (Main Street Palm Springs Bylaws & Funding) property owners located within the downtown and uptown areas of the City within the boundaries described in Article III Section 2(b) of the Bylaws. The new bylaws keep the Block Captain (Merchant Director) structure but increase the number of representatives per block and also increase representation for Indian Canyon Drive and side streets. In addition, the uptown directors would be directly elected in the Main Street elections. Overlaying the geographic designation is a requirement that no fewer than four Merchant Directors be retailers, four members shall be restaurants, and one member represent office or service businesses. The structure also keeps outside appointed representatives from the Chamber of Commerce, the Palm Springs Hospitality Association, and the Tribe. The Main Street Board appoints the property owner representative. The Annual Membership Fee is $1.00 per business and due on July 1 of each year. At that dues level, the organization's new membership structure will provide only nominal income to provide the services and programs to its members. Main Street has requested $20,000 from the City, which will be for administration and to initiate special downtown revitalization programs on behalf of the City not otherwise covered under the Palm Springs Business Improvement District assessment. Other notable changes to the Bylaws include Article VI, Section 12, where the bylaws would allow directors and members of committees to receive compensation for their services, in addition to reimbursement of expenses. Also, Article VII, Section 3 would require that any advisory committee, which is a committee comprised of board members and non-board members, be chaired by a Board Member. This could affect the BID Marketing Steering Committee that was created by the BID Bylaws; that committee is comprised of six non-Main Street Board Members and three Board Members and has been chaired by non-Board Members to help preserve its autonomy, since the Main Street Board reviews and approves the work of the Steering Committee before sending it on to City Council. A Contractual Services Agreement is included that defines the specific downtown revitalization tasks Main Street is to perform on behalf of the City and the BID, as well describes the allowed uses of the funds. Tasks include regular opinion surveys on matters affecting downtown businesses but outside the scope of the BID, such as events, street closures, signage, maintenance, and code enforcement, as well as coordinating special events with the BID and other event promoters. On the use of funds side, the contract allows City funds to be used for administrative expenses including part-time staff support, accounting and audit services; liability and directors insurance; legal services; office supplies and equipment, and collateral materials. The funds are not intended to be used for compensation for directors as described above. The Contractual Services Agreement would be in the amount of $20,000 and be in a form acceptable to the City Attorney. This action approves the contract and allows the City Manager to execute the Agreement and all related documents. City Council Staff Report (May 21, 2008) -- Page 3 (Main Street Palm Springs Bylaws & Funding) FISCAL IMPACT' The cost of the Agreement to the City is $20,000, to be appropriated from Fund Balance. Jo Ray, ond,��❑i��ctor Co mu ' y & Ecomic Development David H. Ready, City ager Tom Wilson, , sistant CityManager Attachments: Main Street Palm Springs Bylaws Non-Profit Funding Agreement Budget Resolution BYLAWS OF MAIN STREET PALM SPRINGS A California Nonprofit Benefit Corporation ARTICLE I NAME The name of this corporation is Main Street Palm Springs (hereinafter referred to as the "Corporation"or the"Association"). ARTICLE II OFFICES OF THE CORPORATION SECTION 1. PRINCIPAL OFFICE The principal office for the transaction of the activities and affairs of the Corporation ("principal office") is located at 264 N. Palm Canyon Drive, Palm Springs CA 92262, in Riverside County, California. The Board of Directors ("Board") may change the principal office from one location to another. Any change of location of the principal office shall be noted by the secretary on these Bylaws opposite this section, or this section may be amended to state the new location. SECTION 2. OTHER OFFICES The Board may at any time establish branch or subordinate offices at any place or places where the Corporation is qualified to conduct its activities. ARTICLE III PURPOSES AND LIMITATIONS SECTION 1. GENERAL PURPOSES a. This corporation is a nonprofit mutual benefit corporation organized under the Nonprofit Mutual Benefit Corporation haw. The purpose of this corporation is to engage in any lawful act or activity for which a corporation may be organized under such law. b. Notwithstanding any of the above statements of purposes and powers, this corporation shall not, except to an insubstantial degree, engage in any activities or exercise any powers that are not in furtherance of the specific purpose of this corporation. SECTION 2. SPECIFIC PURPOSES a. The purpose of this corporation is to revitalize and increase the economic vitality of the downtown and uptown business districts of the City of Palm Springs, California. b. The Corporation shall represent the interests of businesses located within the downtown and uptown areas of Palm Springs, California, specifically including all businesses on Palm Canyon Drive, north of and including Ramon Road and south of and including Tachevab Drive along both sides of the street; Indian Canyon Drive, north of and including Ramon Road and south of and including Alejo Road along both sides the street; Belardo Road, north of and including Ramon Road and south of and including and Alejo Road on both sides of the street; Museum Drive on both sides of the street; Tahquitz Canyon Way west of Indian Canyon Drive on both sides of the street; Andreas Plaza; Amado Road; Arenas Road; and Baristo Road from Indian Canyon Drive west to Belardo Road on both sides of the street and La Plaza;. SECTION 3. LIMITATIONS a. All corporate property is irrevocably dedicated to the purposes set forth in Article III, Section 1(a) above. No part of the net income or assets of this Corporation shall ever inure to the benefit of any director, officer, or member thereof, or to the benefit of any private Person, b. Upon the dissolution or winding up of the corporation, its assets remaining after payment, or provision for payment, of all debts and liabilities of this corporation shall be distributed to a nonprofit fund, foundation or corporation which is organized and operated exclusively for mutual benefit purposes and which has established its tax exempt status under Section 501(c)(6) of the Internal Revenue Code. ARTICLE IV MEMBERS SECTION 1. MEMBERSHIP. a. This Corporation is a membership organization. Membership shall be limited to those businesses and/or property owners with a permanent physical location within the area described in Article III, Section 2(b) of these Bylaws. The Aninial Membership Fee shall be no less than SI.00 per year. The Board of Directors may change the membership fee from time to time. Any change of Annual Membership Fee shall be noted by the secretary on these Bylaws opposite this section, or this section may be amended to state the new Annual Membership Fee. b. The Board of Directors may create a category of Associate Member and determine qualifications for the Associate Member category_ Associate Members may 2 000095 participate in all Main Street activities except voting and may not hold office on the Board of Directors. c. The Amrual Membership Fee is due and payable on July 1 of each year. The Board of Directors shall keep records on active membership in the Member and Associate Member categories. Such information is public and shall be produced on request. ARTICLE V ELECTION AND APPOINTMENT OF DIRECTORS SECTION 1. ELECTION OF MERCHANT DIRECTORS BY MEMBERSHIP Thirteen members of the Board of Directors shall be elected by a vote of the Members in good standing on the date of the election. Candidates seeking a position on the Board of Directors shall represent the following areas of Members: (1) 500-1100 N. Palm Canyon Drive, two seats; (2) 300-499 N_ Palm Canyon Drive, two seats; (3) 100-299 N. Palm Canyon Drive, two seats; (4) 100-299 S. Palin Canyon Drive, two seats; (5) 300-499 S. Palm Canyon Drive, two seats; (6) S. Indian Canyon Drive (including side streets), two seats; (7) N. Indian Canyon Drive, one seat.. No less than 4 retail, 4 restaurant, I service or office on board. If elected board falls short on these categories the Board shall appoint representative or choose next highest vote getter_ The Board shall Consulate procedures that allow the Members to elect the Board of Directors block by block. Each Member Business shall have one vote. Each Member Business can vote for all open seats. SECTION 2. APPOINTMENT BY AQUA CALIENTE BAND OF CAHUILLA INDIANS One Member of the Board of Directors shall be appointed by the Tribal Council of the Agua Caliente Band of Cahuilla Indians. SECTION 3. APPOINTMENT BY PALM SPRINGS HOSPITALITY ASSOCIATION One additional member of the Board shall be appointed by Palin Springs Hospitality Association, a California corporation ("PSHA"), or its successor-in-interest. SECTION 4. APPOINTMENT BY PALM SPRINGS CHAMBER OF COMMERCE One member of the Board of Directors shall be appointed by the Board of Directors of the Palm Springs Chamber of Commerce,. 3 � � SECTION 5. APPOINTMENT OF PALM SPRINGS PROPERTY OWNER One downtown or uptown property owner within the area shall be appointed by the Main Street Palm Springs Executive Board. ARTICLE VI DIRECTORS SECTION 1. POWERS a. General Corporate Powers Subject to the provisions and limitations of the California Nonprofit Mutual Benefit Corporation Law and any other applicable laws, the Corporation's activities and affairs shall be managed, and all corporate powers shall be exercised, by or under the direction of the Board. b. Specific Powers Without prejudice to the general powers set forth in Article VI, Section I(a) of these Bylaws, but subject to the same limitations, the directors shall have the power to: (1) Appoint and remove, at the pleasure of the Board, all the Corporation's officers, agents and employees; prescribe powers and duties for them that are consistent with law,with the articles of incorporation, and with these Bylaws; and fix their compensation and require from them security for faithful perfonnance of their duties. (2) Change the principal office or the principal business office in California from one location to another; cause the Corporation to be qualified to conduct its activities in any other state, territory, dependency or country and conduct its activities within or outside California; and designate any place within or outside Califomia for holding any meeting of the Board. (0) Adopt and use a corporate seal; and alter the forms of the seal and certificates. (4) Borrow money and incur indebtedness on behalf of the Corporation and cause to be executed and delivered for the Corporation's purposes, in the corporate name, promissory notes, bonds, debentures, deeds of trust, mortgages, pledges, hypothecations, and other evidences of debt and securities- 4 00005 ,11 SECTION 2. NUMBER AND QUALIFICATION OF DIRECTORS a. Authorized Number The Board of Directors shall consist of seventeen (17) directors until changed by amendment to these Bylaws. b. Restriction on Interested Persons as Directors No more than 49 percent of the persons serving on the Board may be interested persons. An interested person is (1) any person compensated by the Corporation for services rendered to it within the previous 12 months, whether as a full-time or part-time employee, independent contractor, or otherwise, excluding any reasonable compensation paid to a director as a director; and (2) any brother, sister, ancestor, descendant, spouse, brother-in law, sister-in-law, daughter-in-law, mother-in-law, or father-in-law of such person. However, any violation of the provisions of this paragraph shall not affect the validity or enforceability of any transaction entered into by the Corporation. SECTION 3. TERM OF OFFICE a. Merchant Directors Those directors elected by the merchants of their blocks shall serve for two-year terms. There shall be no limit on the number of times a Merchant Director elected by the merchants may be reelected. b. Agua Caliente Band of Cahuilla Indians Designees Directors designated by the Agua Caliente Band of Cahuilla Indians or its successor, shall serve one-year terms. There shall be no limit on the number of times a director appointed by the Agua Caliente Band of Cahuilla Indians may be reappointed- C. Palm Springs Hospitality Association Designees Directors designated by PSHA or its successor, shall serve one-year terms. There shall be no limit on the number of times a director appointed by PSHA may be reappointed. d. Palm Springs Chamber of Commerce Designees Directors designated by Palm Springs Chamber of Commerce or its successor, shall serve one-year terms. There shall be no limit on the number of times a director appointed by Palm Springs Chamber of Commerce may be reappointed. e. Downtown and/or Uptown Property Owner 5 Directors designated as Palm Springs Downtown or Uptown Property Owner or its successor, shall serve one-year terms. There shall be no limit on the number of times a director appointed by the Board may be reappointed. SECTION 4. VACANCIES ON BOARD a_ Events Causing Vacancy A vacancy or vacancies on the Board shall exist on the occurrence of the following: (1) The death or resignation of any director; (2) The declaration by resolution of the Board of a vacancy in the office of a director who has been declared of unsound mind by an order of court, convicted of a felony, or, if the corporation holds assets in charitable trust, has been found by a final order of judgment of any court to have breached a duty arising under Section 7238 of the Calii'omia Corporations Code; (3) A director who has missed three or more meetings in a year; or (4) The increase of the authorized number of directors; b. Resignations Except as provided below, any director may resign by giving written notice to the chairman of the board, if any, or to the president or the secretary of the Corporation. The resignation shall be effective when the notice is given unless it specifies a later time for the resignation to become effective. If a director's resignation is effective at a later time, the Board may elect a successor to take office as of the date when the resignation becomes effective. C. Filling Vacancies If a Merchant Directors seat becomes available, the Board may fill the vacancy by appointing a representative from the same block or area that the vacating Merchant Director represented. If one of the other seats on the Board becomes available, the entity that previously designated the person to fill that seat shall appoint the successor in a timely manner. If the subject entity fails to appoint a successor within thirty (30) days of the vacancy, the Board may fill the vacancy by a majority vote of the directors then in office, whether or not less than a quorum. d_ No Vacancy on Reduction of Number of Directors No reduction of the authorized number of directors shall have the effect of removing any director before that director's teen of office expires. SECTION 5. DIRECTORS' MEETINGS a. Place of Meetings Meetings of the Board shall be held at any place within or outside California that has been designated by resolution of the Board or in the notice of the meeting or, if not so designated, at the principal office of the Corporation. b. Meetings by Telephone, Email Any meeting may be held by conference telephone, email or similar communication equipment, as long as all directors participating in the meeting can hear one another or can participate fully. All such directors shall be deemed to be present in person at such a meeting. C. Annual Meetin r The Board shall hold a regular Annual Meeting for the purpose of electing officers and conducting other appropriate business. d. Other Re-ular Meetings Other regular meetings of the Board may be held without notice at such time and place as the Board may fix from time to time. SECTION 6. SPECIAL MEETINGS OF THE BOARD OF DIRECTORS a. Authority to Call Special meetings of the Board for any purpose may be called at any time by the chairman of the Board, if any, the president or any vice president, or the secretary or any two directors- b. Notice (1) Manner of Giving Notice Notice of the time and place of special meetings shall be given to each director by one of the following methods: (i) by personal delivery of written notice; (ii) by first-class mail, postage prepaid; (iii) by telephone, either directly to the director or to a person at the director's office who would reasonably be expected to communicate that notice promptly to the director; or (iv) by e-mail. 7 Hccl0 All such notices shall be given or sent to the director's address, e-rnail or telephone number as shown on the records of the Corporation. (2) Time Requirements Notices sent by first-class mail shall be deposited in the United States mail at least four days before the time set for the meeting. Notices given by personal delivery, telephone, or e-mail shall be delivered, telephoned or e-mailed at least 48 hours before the time set for the meeting. (3) Notice Contents The Notice shall state the time of the meeting, and the place if the place is other than the principal office of the Corporation. It need not specify the purpose of the meeting. SECTION 7. QUORUM A majority of the authorized number of directors shall constitute a quorum for the transaction of business, except to adjourn. Every action taken or decision made by a majority of the directors present at a duly held meeting at which a quorum is present shall be the act of the Board, subject to the more stringent provisions of the California Nonprofit Mutual Benefit Corporation Law, including, without limitation, those provision relating to (1) approval of contracts or transactions between the corporation and one or more directors or between the corporation and any entity in which a director has a material financial interest, (2) creation of and appointments to committees of the Board, and (3) indemnification of directors. A meeting at which a quorum is initially present may continue to transact business, despite the withdrawal of directors, if any action taken or decision made is approved by at least a majority of the required quorum for that meeting. SECTION S. WAIVER OF NOTICE Notice of a meeting need not be given to any director who, either before or after the meeting, signs a waiver of notice, a written consent to the holding of the meeting, or an approval of the minutes of the meeting. The waiver of notice or consent need not specify the purpose of the meeting. All such waivers, consents, and approvals shall be filed with the corporate records or made a part of the minutes of the meetings. Notice of a meeting need not be give to any director who attends the meeting and does not protest, before or at the commencement of the meeting, the lack of notice to him or her. SECTION 9. ADJOURNMENT A majority of the directors present, whether or not a quorum is present, may adjourn any meeting to another time and place. SECTION 10. NOTICE OF ADJOURNED MEETING Notice of the time and place of holding an adjourned meeting need not be given unless the original meeting is adjourned for more than 24 hours. if the original meeting is adjourned for more than 24 hours, notice of any adjournment to another time and place shall be given, before the time of the adjourned meeting, to the directors who were not present at the time of the adjournment. SECTION I 1_ ACTION WITHOUT A MEETING Any action that the Board is required or permitted to take may be taken without a meeting if all members of the Board consent in writing or by email to the action. Such action by written or email consent shall bave the same force and effect as any other validly approved action of the i consents shall be filed the roceedings of the Board. N 12. COMPENSATION AND REIMBURSEMENT and members of conuiiittees may receive such compensation, if any, for their and such reimbursement of expenses, as the Board may determine by resolution and reasonable as to the Corporation at the time that the resolution is adopted. N 13.CONFLICTS OF INTEREST Whenever a director or officer has a financial or personal interest in any matter coming before the board of directors, the board shall ensure that: 1_ The interest of such officer or director is fully disclosed to the board of directors. 2. No interested officer or director may vote or lobby on the matter or be counted in determining the existence of a quorum at the meeting of the board of directors at which such matter is voted upon. 3. Any transaction in which a director or officer has a financial or personal interest shall be duly approved by members of the board of directors not so interested or connected as being in the best interests of the organization. 4. Payments to the interested officer or director shall be reasonable and shall not exceed fair market value. 5. The minutes of meetings at which such votes are taken shall record such disclosure, abstention, and rationale for approval. SECTION 14. RULES OF ORDER Robert's Rules of Order shall govern the proceedings of all meetings_ ARTICLE VIl COMMITTEES 9 05COM SECTION 1. COMMITTEES OF THE BOARD The Board, by resolution adopted by a majority of the directors then in office, provided a quorum is present, may create one or more committees, each consisting of two or more directors and no persons who are not directors, to serve at the pleasure of the Board. Appointments to committees of the Board shall be by a majority vote of the directors then in office. The Board may appoint one or more directors as alternate members of any such committee, who may replace any absent member any meeting. Any such committee, to the extent provided in the Board resolution, shall have all the authority of the Board, except that no cotmmiee, regardless of Board resolution, may: a. Fill vacancies on the Board or on any committee that has the authority of the Board; b. Fix compensation of the directors for serving on the Board or on any committee; C. Amend or repeal Bylaws or adopt new Bylaws; d. Amend or repeal any resolution of the Board that by its express terms is not so amendable or repealable; e. Create any other committees of the Board or appoint the members of committees of the Board. f With respect to any assets held in charitable trust, approve any contract or transaction between the Corporation and one or more of its directors or between the corporation and an entity in which one or more of its directors has a material financial interest, subject to the special approval provisions of Section 7233 of the California Corporations Code_ SECTION 2. MEETINGS AND ACTION OF COMMITTEES Meetings and actions of committees of the Board shall be governed by, held, and taken in accordance with the provisions of these Bylaws concerning meetings and other Board actions, except that the time for regular meetings of such committees and the calling of special meetings of such committees may be determined either by Board resolution or, if there is none, by resolution of the committee of the Board. Minutes of each meeting of any connnittee of the Board shall be kept and shall be filed with the corporate records. The Board may adopt toles for the government of any committee, provided they are consistent with these Bylaws or, in the absence of rules adopted by the Board, the committee may adopt such toles. SECTION 3. PARTICULAR BOARD AND ADVISORY" COMMITTEES The Board shall have the power from time to time to establish particular committees, e.g., an executive committee, fund-raising committee, audit committee, nominating committee, compensation committee, and finance committee. if any committee is to include any non- director committee member, it is not a"committee of the Board," and it shall be deemed to be an "advisory cormnittee." The advisory committee shall be chaired by a Board Member. The Board may delegate management of the Corporation's activities to an advisory committee, subject to the provisions of Corporations Code Sections 7210 and 7212, to the same extent that those powers could be delegated to anyone under Corporations Code Section 7210. ARTICLE VIII OFFICERS SECTION 1. OFFICERS OF THE CORPORATION The officers of the Corporation shall be a president, a vice president, a secretary, and a treasurer. The Corporation may also have, at the Board's discretion, a chairman of the board, one or more vice presidents, one or more assistant secretaries, one or more assistant treasurers, and such other officers as may be appointed in accordance with Section 3 of Article VIII of these Bylaws. Any number of offices may be held by the same person. SECTION 2. ELECTION OF OFFICERS The officers of the. Corporation, except those appointed under Section 3 of Article VIII of these Bylaws, shall be chosen annually by the Board and shall serve at the pleasure of the Board, subject to the rights, if any, of any officer under any contract of employment. SECTION 3. OTHER OFFICERS The Board may appoint and may authorize the Chainnan of the board, the president, or other officer, to appoint any other officers that the Corporation may require. Each officer so appointed shall have the title, hold office for the period, have the authority, and perform the duties specified in the Bylaws or determined by the Board. SECTION 4. REMOVAL OF OFFICERS Without prejudice to any rights of an officer under any contract of enmployrnent, any officer may be removed with or without cause by the Board and also, if the officer was not chosen by the Board, by any officer on whom the Board may confer that power of removal. SECTION 5. RESIGNATION OF OFFICERS Any officer may resign at any time by giving written notice to the Corporation. The resignation shall take effect as of the date the notice is received or at any later time specified in 11 the notice and, unless otherwise specified in the notice, the resignation need not be accepted to be effective. Any resignation shall be without prejudice to the rights, if any, of the Corporation under any contract to which the officer is a party. SECTION G. VACANCIES IN OFFICE A vacancy in any office because of death, resignation, removal, disqualification, or any other cause shall be filled in the manner prescribed in these Bylaws for regular appointments to that office, provided, however, that vacancies need not be filled on an annual basis. SECTION 7. RESPONSIBILITIES OF OFFICERS a. President The president shall be the general manager of the Corporation and shall supervise, direct, and control the Corporation's activities, affairs, and officers. The president shall preside at all Board meetings. The president shall have such other powers and duties as the Board or the Bylaws may prescribe. b. Vice Presidents If the president is absent or disabled, the vice president, if any, shall perform all duties of the president. When so acting, a vice president shall have all powers of and be subject to all restrictions on the president. The vice presidents shall have such other powers and perform such other duties as the Board or the Bylaws may prescribe. c. Secretary (1) Book of Minutes The secretary shall keep or cause to be kept, at the Corporation's principal office or such other place as the Board may direct, a book of minutes of all meetings, proceedings, and actions of the Board, of committees of the Board. The minutes of meetings shall include the time and place that the meeting was held, whether the meeting was annual, regular or special, and, if special, how authorized, the notice given, and the names of those present at Board and committee meetings. The secretary shall keep or cause to be kept, at the principal office in California, a copy of the articles of incorporation and Bylaws, as amended to date. (2) Notices, Seal, and Other Duties 12 HOE?5 The secretary shall give, or cause to be given, notice of all meetings of the Board and of committees of the Board required by these Bylaws to be given. The secretary shall keep the corporate seal in safe custody and shall have such other powers and perform such other duties as the Board or the Bylaws may prescribe. d. Treasurer (1) Books of Account The Treasurer shall keep and maintain, or cause to be kept and maintained, adequate and correct books and accounts of the Corporation's properties and transactions_ The treasurer shall send or cause to be given to the directors such financial statements and reports as are required to be given by law, by these Bylaws, or by the Board. The books of account shall be open to inspection by any director at all reasonable tunes. (2) Deposit and Disbursement of Money and Valuables The treasurer shall deposit, or cause to be deposited, all money and other valuables in the name and to the credit of the Corporation with such depositories as the Board may designate, shall disburse the Corporation's finds as the Board may order, shall render to the president, chainnan of the board, if any, and the Board, when requested, an account of all transactions as chief financial officer and of the financial condition of the Corporation, and shall have such other powers and perform such other duties as the Board or the Bylaws may prescribe. (3) Bond If required by the Board, the treasurer shall give the Corporation a bond in the amount and with the surety or sureties specified by the Board for faithful performance of the duties of the office and for restoration to the Corporation of all of its books, papers, vouchers, money, and other property of every kind in the possession or under the control of the chief financial officer on his or her death, resignation, retirement, or removal horn office. ARTICLE IX INDEMNIFICATION SECTION 1. RIGHT OF INDEMNITY To the fullest extent pennitted by law, this Corporation shall indemnify its directors, officers, employees, and other persons described in Section 7237(a) of the California Corporations Code, including persons formerly occupying any such position, against all expenses, judgments, fines, settlements and other amounts actually and reasonably incurred by them in connection with any "proceeding," as the term is used in that Section, and including an action by or in the right of the Corporation, by reason of the fact that the person is or was a ]3 61Jriew.S person described in that Section. "Expenses," as used in this bylaw, shall have the same meaning as in Section 7237(a) of the California Corporations Code. SECTION 2. APPROVAL OF INDEMNITY On written request to the Board by any person seeking indemnification under Section 7237(b) or Section 7237(c) of the California Corporations Code, the Board shall promptly determine under Section 7237(e) of the California Corporations Code whether the applicable standard of conduct set forth in Section 7237(b) or Section 7237(c) has been met and, if so, the Board shall authorize indenmification. SECTION 3. ADVANCEMENT OF EXPENSES To the fullest extent permitted by law and except as otherwise detennined by the Board in a specific instance, expenses incurred by a person seeking indenmification under Sections 1 and 2 of this Article IX of these Bylaws in defending any proceeding covered by those Sections shall be advanced by the Corporation before final disposition of the proceeding, on receipt by[lie Corporation of an undertaking by or on behalf of that person that the advance will be repaid unless it is ultimately detennined that the person is entitled to be indemnified by the Corporation for those expenses. ARTICLE X INSURANCE The Corporation shall have the right to purchase and maintain insurance to the full extent permitted by law on behalf of its officers, directors, employees, and other agents, against any liability asserted against or incurred by any officer, director, employee, or agent in such capacity or arising out of the officer's, director's, employee's, or agent's status as such. ARTICLE XI RECORDS AND REPORTS SECTION I- MAINTENANCE OF CORPORATE RECORDS The Corporation shall keep: a. Adequate and correct books and records of account; and a. Written minutes of the proceedings of its Board and committees of the Board. SECTION 2. INSPECTION BY DIRECTORS 14 Every director shall have the absolute tight at any reasonable time to inspect the Corporation's books, records, documents of every kind, physical properties, and the records of each of its subsidiaries. The inspection may be made in person or by the director's agent or attorney. The right of inspection includes the right to copy and snake extracts of documents_ SECTION 3. MAINTENANCE AND INSPECTION OF ARTICLES AND BYLAWS The Corporation shall keep at its principal office, or if its principal office is not in California, at its principal business office in this state, the original or a copy of the articles of incorporation and bylaws, as amended to date, which shall be open to inspection at all reasonable times during office hours. If the principal office of the Corporation is outside California and the Corporation has no principal business office in this state, the secretary shall, on the written request of any Board member, furnish to that Board member a copy of the articles of incorporation and bylaws, as amended to date. SECTION 4_ ANNUAL REPORT (1) An annual report shall be prepared within 120 days after the end of the corporation's fiscal year. That report shall contain the following information in appropriate detail: a. A balance sheet as of the end of the fiscal year, and an income statement and statement of changes in financial position for the fiscal year, accompanied by any report on them by independent accountants, or, if there is no such report, by the certificate of an authorized officer of the corporation that they were prepared without audit from the books and records of the corporation. b. A statement of the place where the names and addresses of current Board member are located. C. Any information that is required by Section 5 of Article XI. (2) This Section shall not apply if the corporation receives less than $20,000 in gross revenues or receipts during the fiscal year. SECTION 5. ANNUAL STATEMENT OF CERTAIN TRANSACTIONS AND INDEMNIFICATIONS As part of the annual report, or, in the event an annual report is not issued pursuant to the provisions of Corporations Code section 8321(c) then as a separate statement, the Corporation shall annually prepare and furnish to each director a statement of any transaction or indemnification of the following kind within 120 days after the end of the Corporation's fiscal year: a. Any transaction (i) in which the Corporation, its parent, or its subsidiary was a party, (ii) which involved more than $50,000.00, or was one of a number of 15 9560"8 transactions with the same interested person involving, in the aggregate, more than 550,000.00, and (iii) in which either of the following interested persons had a direct or indirect material financial interest (a mere common directorship is not a material financial interest): (1) Any director or officer of the Corporation, its parent, or subsidiary; (2) Any holder of more than 10 percent of the voting power of the Corporation, its parent, or its subsidiary. The statement shall include a brief description of the transaction, the names of interested persons involved, their relationship to the Corporation, the nature of their interest in the transaction and, when practicable, the amount of that interest, provided that if the transaction was with a partnership in which such person is a partner, only the interest of the partnership need be stated. b. A brief description of the amounts and circumstances of any loans, guaranties, indemnifications, or advances aggregating more than 510,000 paid or made during the fiscal year to any officer or director of the corporation under Article IX of these Bylaws, unless the loan or guaranty is not subject to the provisions of Section 7235(a) of the California Corporations Code. ARTICLE XII CONSTRUCTION AND DEFINITIONS Unless the context requires otherwise, the general provisions, rules of construction and definitions in the California Nonprofit Corporation Law shall govern the construction of these Bylaws. Without limiting the generality of the preceding sentence, the masculine gender includes the feminine and neuter, the singular includes the plural, the plural includes the singular, and the term "person" includes both a legal entity and a natural person. ARTICLE XIII AMENDMENTS SECTION 1. AMENDMENT BY BOARD Except as provided in subdivision (c) of Section 7150 and Sections 7151, 7220, 7224, 7512, 7613, and 7615, of the California Corporations Code, and unless otherwise provided herein, the Bylaws may be adopted, amended or repealed by the affirmative vote of at least eight (8) members of the Board. 16 QIQd21 S1 CERTIFICATE OF SECRETARY I certify that I am the duly elected and acting Secretary of Main Street Palm Springs, a California Nonprofit Mutual Benefit Corporation, that the above Bylaws, consisting of 16 pages, are the Bylaws of this Corporation as adopted by the Board of Directors on July 14, 1994 and that they have been amended and ratified by the Board on March 26, 2008. Executed on 2008 at Palm Springs, California. Secretary 17 GO9213 NON-PROFIT FUNDING AGREEMENT Main Street Palm Springs This Agreement is entered into on 2008, by and between the City of the City of Palm Springs, a California Charter City, herein called "City", and Main Street Palm Springs, a California nonprofit mutual benefit corporation organized under the Nonprofit Mutual Benefit Corporation Law, hereinafter called "Recipient". WHEREAS, Recipient is a California Nonprofit Mutual Benefit Corporation which has established its tax exempt status under Section 501(c)(6) of the Internal Revenue Code and under Section 170(c)(2) of the Internal Revenue Code; and, WHEREAS, Recipient is organized to revitalize and increase the economic vitality of the downtown and uptown business districts of the City of Palm Springs, California; and, WHEREAS, the City recognizes the intrinsic value of the downtown and uptown business areas of the City, and the role they play in enhancing and expanding the economic vitality of and image of the City; and, WHEREAS, the City recognizes the significant role the Recipient plays in Downtown and Uptown Palm Springs as a facilitator of community input to the City and a mechanism to organize and disseminate information to affected businesses; and WHEREAS, Recipient also serves as the District Advisory Board to City Council for the City's Business Improvement District, formed for the purpose set forth in the Parking and Business Improvement Area Law of 1989 (California Streets and Highways Code Part 6 of Division 18 starting with Section 36500) and established by the City Council by Ordinance No. 1709, adopted on February 21, 2007; and WHEREAS, Recipient has requested financial assistance from the City to ensure legal compliance with tax laws, to maintain its corporate status, and to perform basic administrative functions related to its public purpose and its advisory capacity related to the Business Improvement District; and 00H2 '1f NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS: 1. SERVICES 1.1 Recipient shall perform its function described in the Bylaws of the Business Improvement District as generally described in Exhibit "A" attached hereto and incorporated herein by this reference. 2. PUBLICIZED CREDIT 2.1 The parties hereby agree that the City of Palm Springs shall be acknowledged as a sponsor of all Recipient's activities. 3. TERMS AND CONDITIONS 3.1 In consideration of City financial support, Recipient shall provide the services as described in Exhibit "A" attached hereto and incorporated herein by this reference. 3.2 The City will provide Recipient with Twenty Thousand Dollars ($20,000) in financial support. The City shall disburse funds upon execution of this Agreement unless otherwise determined by the City. 3.3 Recipient is responsible for raising all funds necessary to produce the services in excess of the City's contribution of Twenty Thousand Dollars ($20,000), or for any purpose not specifically allowed in Exhibit "B." 3.4 All amounts paid to Recipient pursuant to this Agreement shall be subject to reimbursement to the City upon the occurrence of any of the following Services: 3.4.1 Recipient loses its Federal tax-exempt status under Section 501(c)(6) and 170(c)(2) of the Internal Revenue Code, or its State tax-exempt status from the California Franchise Tax Board; or 3.4.2 The dissolution of Recipient; or 3.4.3 Recipient terminates or attempts to terminate this Agreement for any reason other than City's failure to make payments as provided hereunder; or 3.4.4 Recipient fails to fulfill all of the responsibilities, duties, and obligations wet forth herein. 3.5 Recipient shall .provide for open public access to general membership meetings, events, or exhibits to ensure accessibility to all individual 6a'U regardless of gender, race, ancestry, place of origin, citizenship, creed, color, ethnic origin, cultural practices, sexual orientation, sexual preference, age, ability, physical, mental or emotional health, family status, marital status, political or religious affiliation, place of national origin, occupation, income, education or social status. 4. CITY PUBLICATION 5.1 City shall make a reasonable effort to promote the services provided by Recipient in the City's website, government access channel and other advertising and marketing vehicles as deemed appropriate by the City in its sole and absolute discretion, including marketing focused on Downtown Palm Springs. 6. TERM OF AGREEMENT 6.1 Basic Term. The term of this agreement is twelve months. The effective date of this Agreement shall be 2008 and this Agreement shall terminate , 2009. 6.2 Breach of Agreement. Any material deviation by Recipient for any reason from the requirements hereof, or from any other provision of this Agreement, shall constitute a breach of this Agreement and may be cause for termination at the election of the City. City may terminate this Agreement, for cause, by giving ten (10) days notice to Recipient. In the event of termination of this Agreement, for cause, the City shall have the right to have use of and access to materials concerning the Services and to assign rights pertaining to the Services, such as name, customer or invitation lists, performer contracts to the City or its designee. The City reserves the right to waive any and all breaches of this Agreement, and any such waiver shall not be deemed a waiver of all previous or subsequent breaches. In the event the City chooses to waive a particular breach of this Agreement, it may condition same on payment by Recipient of actual damages occasioned by such breach of Agreement and on Recipient making every effort to resolve the same quickly and amicably. 6.3 Agreement Termination. In the event Recipient is unable to fulfill any of its responsibilities under this Agreement for any reason whatsoever including, without limitation, circumstances beyond its control, the City may terminate this Agreement in whole or in part in the same manner as for breach hereof and be entitled to the same rights on termination. 6.4 Recipient shall provide to the City an Annual Financial Report, including a balance sheet, income statement, and a description of the Recipient's operations prepared in compliance with generally accepted auditing principles (GAAP) and certified by a licensed Certified Public Accountant no later than four t months following the close of Recipient's fiscal year end on June 30, 2009 in 0aaa73 addition to the Internal Revenue Service Form 990 to be filed within the same time constraints. 6.5. Recipient shall provide to the City an Annual Financial Report completed by an independent auditor when funding provided by City exceeds $25,000 per the City's fiscal year (July 1 through June 30), or upon disbursements exceeding the sum of $60,000 within a three-year period, prior to requesting any additional funding. 7. GENERAL. 7.1 Indemnity. To the fullest extent permitted by law, Recipient shall defend at Recipient's sole cost and expense, indemnify, protect, and hold harmless City, its elected officials, officers, employees, agents, and volunteers from and against any and all liabilities, actions, suits, claims, demands, losses, costs, judgments, arbitration awards, settlements, damages, demands, orders, penalties, and expenses including legal costs and attorney fees (collectively "Claims"), including but not limited to Claims arising from injuries to or death of any person, for damage to property, including property owned by City, from any violation of any federal, state, or local law or ordinance, and from errors and omissions committed by Recipient, its officers, employees, representatives, and agents, which Claims arise out of or are related to Recipient's performance under this Agreement. 7.2 Governing Law, This Agreement shall be governed by the laws of the State of California. Venue shall be in Riverside County. 7.3 Time of Essence. Time is of the essence for each and every provision of this Agreement. 7.4 Successors and Assigns. This Agreement shall be binding on the successors and assigns of the Parties. 7.5 Insurance. Recipient shall provide the City certificates and/or endorsements or other evidence of the insurance coverage required in this Section 7.5. The City's Risk Manager may require the Recipient to provide complete, certified copies of any insurance offered in compliance with this Section. Certificates, policies and other evidence provided shall specify that the City shall receive 30 days advanced notice of cancellation from the insurers. Throughout the term of this Agreement, Recipient shall, at its sole expense, obtain and maintain in full force and effect General Liability Insurance with a limit of not less than $1,000,000 per occurrence. Such insurance shall be of the type usual and customary to the business of the Recipient. The City and its officers, employees, and agents shall be named as additional insured and the insurance shall not be subject to cancellation except upon thirty (30) days written notice to the City. 7.6 Audits. The City shall have the right to monitor and audit the Services and all work performed under this Agreement. The City will notify Recipient in writing within thirty (30) days of any potential exceptions discovered during such audits. Where such findings indicate that the requirements of this Agreement are not being met, upon such written notification Recipient shall take appropriate corrective action immediately. For this purpose, the Recipient shall make available to the City during normal business hours of the City, and to the City's employees, agents and representatives, all books and records which pertain to this Agreement and the programs undertaken by Recipient hereunder, including records of membership and dues collected from members. 7.7 Complete Agreement. This Agreement contains all the terms and conditions agreed upon by the parties. No other understandings, oral or otherwise, regarding the subject matter of this Agreement shall be deemed to exist or to bind any of the parties hereto. This Agreement supersedes all previous agreements, if any, between the parties. 7.8 Amendments. Any alterations, variations, modifications or waivers of provisions to this Agreement shall be valid only when reduced to writing duly signed and attached to the original of this Agreement. 7.9 Notices. Communications among the parties hereto shall be addressed as follows: MAIN STREET PALM SPRINGS Joy Meredith, President 264 North Palm Canyon Drive Palm Springs, CA 92262 psca@msn.com CITY OF PALM SPRINGS David H. Ready, Esq., Ph.D., City Manager 3200 E. Tahquitz Canyon Way Palm Springs, CA 92262 Phone: 760.322-8350 Fax: 760.323-8207 david.readV(@ paImsprings-ca.gov 7.10 City Representation. Recipient shall work closely with the City Manager or his designee. Recipient shall provide regular updates to the Liaison Representative of City to keep the City currently advised on the status of the Services. G0C. 7.11 Compliance with Law. Recipient shall comply with all applicable federal, state, and local laws, ordinances and regulations. 7.12 Standard of Care. The City relies upon the professional ability of Recipient as a material inducement to entering into this Agreement. Recipient agrees to use reasonable care and diligence in meeting its obligation under this Agreement. Recipient agrees that the acceptance of its work by the City shall not operate as a waiver or release of said obligation of Recipient. The absence, omission, or failure to include in this Agreement, items which are normally considered to be a part of generally accepted professional procedure or which involve professional judgment shall not be used as a basis for submission of inadequate work or incomplete performance. 7.13 Demand for Assurance. Each party to this Agreement undertakes the obligation that the other's expectation of receiving due performance will not be impaired. When reasonable grounds for insecurity arise with respect to the performance of either party, the other may in writing demand adequate assurance of due performance and until he/she receives such assurance may, if commercially reasonable, suspend any performance for which the agreed return has not been received. "Commercially reasonable" includes not only the conduct of a party with respect to performance under this Agreement but also conduct with respect to other agreements with parties to this Agreement or others. After receipt of a justified demand, failure to provide within a reasonable time, but not exceeding ten (10) days, such assurance of due performance as is adequate under the circumstances of the particular case is a repudiation of this Agreement. Acceptance of any improper delivery, service, or payment does not prejudice the aggrieved party's right to demand adequate assurance of future performance. 7.14 Third Party Beneficiaries. Nothing contained in this Agreement shall be construed to create and the parties do not intend to create any rights in third parties. ®G J0126 IN WITNESS WHEREOF, the parties have executed and entered into this Agreement as of the date first written above. THE CITY OF PALM SPRINGS David H. Ready, Esq., Ph.D. Date City Manager ATTEST: By: James Thompson, City Clerk Date APPROVED AS TO FORM: By: Douglas C. Holland, City Attorney Date MAIN STREET PALM SPRINGS (NOTARIZED) By: Signature Print Name and Title (NOTARIZED) By: Signature Print Name and Title Mailing Address: 264 North Palm Canyon Drive Palm Springs, CA 92262 (Corporations require two signatures; one from each of the following: A. Chairman of Board, President, any Vice President; AND B. Secretary, Assistant Secretary, Treasurer, Assistant Treasurer, or Chief Financial Officer.) 000 EXHIBIT "A" DESCRIPTION OF SERVICES The services Recipient shall provide include but are not limited to the following and shall accept all financial responsibility for such services: 4.1 Recruitment, coordination and supervision of administrative or clerical personnel necessary to produce the Services; 4.2 All promotional activities related to the Downtown, Uptown, or Business Improvements District including: 4.2.1 Holding monthly General Membership Meetings at which issues related to the marketing, maintenance, development, and redevelopment of Downtown and Uptown are discussed. 4.2.2 Local public relations including, without limitation, distribution of press materials and assist the City's public information officer in distributing the City's message. 4.2.3 Arranging placement of radio and/or television interviews and/or advertising relating to Downtown and Uptown, when it applies. 4.2.4 Providing a local telephone number to City for interested persons to call for general information about the Downtown and Uptown. 4.3 Recipient shall be responsible for coordinating with the Business Improvement District, the Business Improvement Marketing Steering Committee, and the Downtown Coordinator all promotional activities related to the Downtown and Uptown, without limitation: 4.3.1 Design, production, printing and distribution of collateral pieces to advertise Downtown and Uptown. 4.3.2 Local and regional public relations including distribution of press materials to entertainment and travel writers. 4.4.3 Planning and implementation of print advertising campaign in consumer and trade publications. 4.3.4 Promoting the Downtown and Uptown through personal appearances and/or the distribution of collateral materials. 4.4 Recipient shall acknowledge the City in all publicity, press releases and promotional materials related to the services provided. EXHIBIT "A" USE OF FUNDS The funds are to be used for administrative expenses including: • Part-time staff support • Accounting and audit services • Liability and directors insurance • Legal services • Office supplies and equipment • Collateral materials • Coffee and Refreshments at General Membership meetings or other general Main Street meetings. • Internet Service charges not paid for by the Business Improvement District but solely used for the benefit of Main Street The funds are not intended to be used for compensation for directors as described above. RESOLUTION NO. OF THE CITY COUNCIL OF THE CITY OF PALM SPRINGS, CALIFORNIA, AMENDING THE BUDGET FOR THE 2007-08 FISCAL YEAR, WHEREAS Resolution 21901 approving the budget for the fiscal year2007-08 was adopted on June 6,2007; and WHEREAS the City Manager has recommended, and the City Council desires to approve, certain amendments to said budget; NOW THEREFORE BE IT RESOLVED that the Director of Finance is authorized to record inter-fund cash transfers as required in accordance with this Resolution, and that Resolution 21901, adopting the budget for the 2007-08 fiscal year is hereby amended as follows: SECTION 1. ADDITIONS Fund Activity Account Amount 001 1400 43200 $20,000 Purpose SECTION 2. SOURCE Fund Activity Account Amount Fund Balance $20,000 ADOPTED THIS 215` day of May, 2008. David H. Ready, City Manager ATTEST: James Thompson, City Clerk CERTIFICATION STATE OF CALIFORNIA ) COUNTY OF RIVERSIDE ) ss. CITY OF PALM SPRINGS ) I, JAMES THOMPSON, City Clerk of the City of Palm Springs, hereby certify that Resolution No. is a full, true and correct copy, and was duly adopted at a regular meeting of the City Council of the City of Palm Springs on by the following vote: AYES: NOES: ABSENT: ABSTAIN: James Thompson, City Clerk City of Palm Springs, California ®SIN