HomeMy WebLinkAbout2020 Resolution No. 014RESOLUTION NO. 14
SERJES OF 2020
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
ENGLEWOOD, COLORADO APPROVING A PREMISES LEASE
AGREEMENT WITH MUSEUM OF OUTDOOR ARTS (MOA).
WHEREAS , in 1999 Englewood and MOA entered into a Govermnental Agreement
and Sublease wherein MOA would sublease from CITY certain space in the Civic Center
Building for the operation , maintenance and enhancement of a world-class museum and art
education program at the City Center;
WHEREAS , begim1ing in 1999 MOA has developed programming for the Englewood
community including art education-based exhibitions , special events , Design and Build arts
education internships , gallery exhibitions , special programs , concerts , workshops , and
temporary and permanent art installations;
WHEREAS, since the parties entered into the original Agreement in 1999 , MOA has
installed 40 public sculptures , spent an average of $400 ,000 per year in arts programming ,
workshops, conservation , and community events , and has spent over $900 ,000 for all
tenant finish and improvements at its City of Englewood location;
WHEREAS , MOA 's current collection in Englewood , including the Civic Center and
City Center area , is comprised of 34 outdoor artworks and 6 indoor artworks ;
WHEREAS, MOA spends approximately $50 ,000 ammally in sculpture conservation
and repair , and in 2018 MOA invested $122,913 in art conservation efforts on the art
installations in the City of Englewood , including the Brooklyn Bridge , Bathroom People ,
Horizon , Duo , Bagatelle , and various bronze , metal and stone sculptures ;
WHEREAS , MOA has been recognized tlu·oughout the State for its efforts in both
"Arts " and "Education", and has earned the Governor 's Award for Excellence in the Arts ,
and the Museum Educator of the Year award;
WHEREAS, MOA is active in Englewood schools , providing educational outreach
tlu-ough aiiist workshops in the MOA studios , artist workshops within Englewood schools ,
grants for arts education projects , site specific art installations and free student touring;
WHEREAS , MOA currently offers year-round Artist in Residence progranuning ,
three sessions of its paid arts education internship , Design and Build , artist demonstrations ,
lectures , and events at no charge to the public.
WHEREAS , MOA has developed a three-year exhibition , conservation , and events
progranm1ing plan for its Englewood location , which is comprised of major arts exhibitions
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including a Robert Rauschenberg retrospective , increased collaboration on public art and
community placemaking events with the City of Englewood , Englewood Arts , and the
Englewood schools , and interactive workshops , lectures , and artist demonstrations with
planned expenditures of approximately $400 ,000 in each calendar year.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL
OF THE CITY OF ENGLEWOOD, COLORADO, THAT:
Section 1. Approval. The Premises Agreement and Sublease , as attached hereto as
Exhibit A , is hereby approved , and the Mayor is hereby authorized to execute the same
on behalf of the City .
Section 2. Effective Date. This Resolution shall take effect upon its approval by the
City Council.
Section 3. Savings Clause . If any section , paragraph , clause or provision of this
Resolution shall for any reason be held to be invalid or unenforceable , the invalidity or
unenforceability of such section, paragraph , clause or provision shall not affect any of
the remaining issues of this Resolution.
ADOPTED AND APPROVED this 6th day of April , 2020 .
~t~
ATTEST:
I, Stephanie Carlile , City Clerk for the City of Englewood , Colorado , hereby
certify the above is a true copy ofResolution No.14 , Series of2
Page I 2
PREMISES AGREEMENT
AND SUBLEASE
THIS GOVERNMENT AL AGREEMENT AND SUBLEASE , (hereinafter referred to
m its entiret.Y, as "Agreement"), made and entered into this ~th day of :f\pn I 2020 , by and between the City of Englewood , Colorado
(hereinafter referred to as "CITY "), the Englewood Environmental Foundation , Inc. (hereinafter
referred to as "EEF "), and The Museum of Outdoor Arts (hereinafter referred to as "MOA''). CITY
and EEF are herein collectively referred to as "Englewood".
RECITALS
WHEREAS , in 1999 Englewood and MOA entered into a Governmental Agreement and
Sublease wherein MOA would sublease from CITY certain space in the Civic Center Building for
the operation , maintenance and enhancement of a world-class museum and art education program
at the City Center;
WHEREAS , begirming in 1999 MOA has developed programming for the Englewood
community including art education-based exhibitions , special events , Design and Build arts
education internships , gallery exhibitions , special programs , concerts , workshops , and temporary
and permanent art installations ;
WHEREAS, since the parties entered into the original Agreement in 1999 , MOA has
installed 40 public sculptures , spent an average of $400 ,000 per year in arts progranm1ing ,
workshops , conservation , and community events , and has spent over $900 ,000 for all tenant finish
and improvements at its City of Englewood location ;
WHEREAS , MOA 's current collection in Englewood, including the Civic Center and City
Center area, is comprised of 34 outdoor artworks and 6 indoor artworks ;
WHEREAS , MOA spends approximately $50 ,000 annually in sculpture conservation and
repair , and in 2018 MOA invested $122 ,913 in art conservation efforts on the art installations in
the City of Englewood , including the Brooklyn Bridge, Bathroom People, Hori z on , Duo ,
Bagatelle , and various bronze , metal and stone sculptures ;
WHEREAS , MOA has been recognized tlu·oughout the State for its efforts in both "Arts "
and "Education", and has earned the Governor 's Award for Excellence in the Arts , and the
Museum Educator of the Year award ;
WHEREAS , MOA is active in Englewood schools , providing educational outreach
tlu·ough artist workshops in the MOA studios , artist workshops within Englewood schools , grants
for arts education projects , site specific art installations and free student touring ;
(COE/MOA Premises Lease (2020)) Page 1 of 22
WHEREAS , MOA currently offers year-round Artist in Residence programming, three
sessions of its paid arts education internship , Design and Build , artist demonstrations , lectures , and
events at no charge to the public.
WHEREAS , MOA has developed a three-year exhibition , conservation, and events
programming plan for its Englewood location , which is comprised of major arts exhibitions
including a Robert Rauschenberg retrospective , increased collaboration on public art and
community placemaking events with the City of Englewood, Englewood Arts , and the Englewood
schools, and interactive workshops, lectures, and artist demonstrations with planned expenditures
of approximately $400 ,000 in each calendar year.
NOW THEREFORE, in consideration of the mutual covenants and agreements , and the
promises herein contained the Parties agree as follows:
ARTICLE I
GRANT AND TERM
1.1 Museum Premises. In consideration of the rents, covenants and agreements herein
set forth and reserved for the performance of MOA, CITY does hereby sublease unto MOA the
space on the second floor of the Civic Center Building, occupied and used by MOA as identified
on Exhibit B of this Agreement , Map of MOA Museum Premises , located at 1000 Englewood
Parkway, Englewood , Colorado , hereinafter the "Museum Premises". The Museum Premises
contain approximately 10 ,000 square feet of rentable space.
12 Term. The Term of this Agreement shall conm1ence upon the date the Parties
execute this Agreement , and shall terminate at 12:00 midnight, on December 31 si, 2022, unless
extended pursuant to Article XIV.
13 Participation by Eni:Iewood Environmental Foundation. The Parties hereby
acknowledge that upon the retirement of the Certificates of Participation, the Englewood
Environmental Foundation (EEF) shall no longer be a Party to this Agreement , and any references
to EEF herein shall have no force or effect.
ARTICLE II
RENT AND IN-KIND SERVICES
2.1 Rent. MOA agrees to pay the CITY at the office of the CITY in the Civic Center
Building or at such other place as CITY may designate in writing, annual rent for each sublease
year for said premises as follows:
(a) The sum of One Dollar per year payable in advance on the date of this Agreement
and thereafter on the Agreement datethereafter until this Agreement is terminated.
(b) Collaboration on public art and community placemaking events with the City of
Englewood, Englewood Arts , and the Englewood schools , to assist the City with its
increased branding and community building efforts including, but not limited to ,
participation in the Sounds of Summer event series and annual Englewood Block Party ,
site-specific placemaking events planned by the CITY , or an Englewood Holiday Tree
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Lighting event.
( c) Provide educational workshops , artist demonstrations , and gallery activations at no
cost for the conmrnnity including arts education outreach and touring incentives for
Englewood schools. Host at least one gallery exhibition/installation annually with
supplemental programming (i .e . workshop , guest lecture , panel discussion or artist
demonstration) as appropriate. Conduct at least one session of Design and Build education
programming in the MOA galleries or in partnership with local Englewood high schools.
Collaborate with the CITY to produce the Englewood Calendar Art Show. Continue free or
reduced cost touring for all Englewood schools , senior groups , and special needs groups .
Enable Englewood residents to visit exhibitions at no charge as part of community-wide free
days as currently supported by the Scientific and Cultural Facilities District grants. Continue
outreach programming and artist workshops with Englewood schools. MOA will also
conduct special programming, concerts , temporary exhibitions , and events when annual
progranm1ing scope , directives from the board of trustees , and annual budgets permit these
additional activities
(d) Maintain a public art collection of no fewer than thi1ieen (13) outdoor artworks with
a combined value of at least five hundred thousand ($500 ,000) dollars.
2.2 Sublease Year Defined. The term "sublease year ', as used herein , is hereby defined
to mean and include those periods of the term which for the first sublease year begin on the date of
this Agreement, as first above written, and ends on the last day of the 12 th calendar month during
which the Agreement will have been in effect, and for subsequent years begins immediately after
the end of the first sublease year and on the anniversary date of such beginning in each year
thereafter, and ends twelve (12) months later in each subsequent year.
2.3 Deposit. No deposit is required hereunder.
ARTICLE III
CONDITIONS OF PREMISES
3.1 MOA's Obligations. MOA shall continue to occupy only those premises currently in
use by MOA and will maintain those premises in good order. All finish and remodeling is to be
performed by MOA at MOA's expense. Work shall be completed in a good and workmanlike
manner , free of any liens for labor and materials , and in accordance with all building codes and
other regulations of CITY. CITY shall grant to MOA all required building permits , subject to
compliance with CITY building code requirements.
(a) All alterations , additions , improvements or fixtures of a permanent nature , made by
either party at the expense of MOA (except only movable office furniture and other
personal items not attached to the Building) shall be deemed a part of the real estate and
the property of CITY and shall remain upon and be surrendered with the Museum Premises
as a part thereof without molestation , disturbance or injury at the end of the term , whether
by lapse of time or otherwise. The glass double doors on the East side of the building ,
entitled Th e Keepers Mandala , installed by MOA in 2008 are considered a work of fine art,
are included in the MOA collection schedule for this purpose , and are not considered
alterations , additions , improvements , or fixtures of a permanent nature.
(b) All improvements and remodeling of the Museum Premises shall be accomplished
in accordance with the drawings and specifications prepared by MOA's architect. CITY's
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architect will be permitted to review MOA's space plan and to make recommendations , if
any , concerning it prior to its approval by CITY. The CITY shall have final approval over
the improvement and remodeling of the Museum Premises .
(c) Should CITY or EEF receive notice of, or should there be recordation in the real
estate records of Arapahoe County , Colorado of, any materialman's or mechanic's lien on
the CITY's or EEF's prope1ty as the result of any work performed , or materials provided ,
for or on behalf of, MOA, MOA shall , upon receipt of written notice from CITY or EEF ,
immediately have such lien released. If, for any reason , MOA is unable to obtain a release
of said lien within thirty days of CITY or EEF's notice , MOA shall provide CITY or EEF
with a cash payment in the amount of the stated amount of the lien. CITY or EEF shall
place such cash deposit in an interest:-bearing account of CITY or EEF's choice at the bank
where CITY or EEF conducts its banking business.
(d) If the lien is not thereafter released no later than six months following the date of
CITY or EEF's notice , CITY or EEF shall be pennitted to use the cash deposit and all
earnings thereon to obtain a release of the lien. Should there be any balance remaining in
the cash account after release of the lien, the balance shall be refunded to MOA. Should
MOA obtain a release of the lien after making the cash deposit, the entire balance of the
cash deposit shall be paid to MOA upon receipt by CITY or EEF of satisfactory proof that
CITY or EEF 1 s title is no longer encumbered by the lien. Should CITY or EEF be named
in any suit , whether or not it is a suit to foreclose upon a lien , resulting from any work
performed , or materials provided , for or on behalf of, MOA, MOA agrees to indenmify and
save CITY and EEF harmless from and against any such suit or claim , including costs.
(e) Any improvements constructed by MOA to the Museum premises over the term of this
Agreement shall be constructed according to drawings and specifications approved by the
CITY for offices , classrooms , art workrooms and museum display areas .
ARTICLE IV
USE OF PREMISES
4.1 Use of Premises and Business Hours. During the entire term of this Agreement,
the Museum Premises shall be used solely for the purpose of the conduct of MOA's exempt
purposes , its business offices , classes , and other lawful activities associated with such business.
The business hours for MOA shall conform to the standard building hours of operation. The CITY
agrees to accommodate additional hours outside standard building hours on a reasonable basis.
MOA shall be required to provide the CITY with notice of the need for additional hours at least
fourteen (14) days in advance. For all purposes under this Agreement standard building hours
means 7:00 a .m. to 9:00 p.m., Monday through Friday, and 7 :00 a.m . to 6:00 p.m. Saturday, other
than holidays.
42 Compliance with Laws and Regulations. MOA shall , at all times maintain and
conduct its business , insofar as the same relates to MOA's use and occupancy of the Museum
Premises , in a lawful manner, and in strict compliance at MOA 's sole expense with all
governmental laws, rules , regulations and orders and provisions of insurance underwriters
applicable to the business of MOA conducted in and upon the Museum Premises.
43 Affirmative Covenants of MOA Relative to Usage of Museum Premises. MOA
agrees to the following:
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(a) MOA shall warehouse , store or stock in the Museum Premises only MOA's
necessary equipment and supplies.
(b) MOA shall not permit waste of the Museum Premises.
(c) MOA shall keep said premises clean and in the sanitary condition as required by
the ordinances , and the health, sanitary , and police regulations, of CITY.
(d) MOA shall not permit nor allow said premises, or the walls or floors thereof to be
endangered by overloading.
ARTICLE V
MAINTENANCE, REPAIRS AND SERVICES
5.1 By MOA . MOA agrees that during the term of this Agreement , it will be obligated
to make all repairs , maintenance and replacements to all fixtures , appliances and facilities furnished
byMOA.
5.2 By Englewood. CITY agrees that , without extra charge , during the term of this
Agreement, and in accordance with standards from time to time prevailing for like office buildings
in Englewood , Colorado , to furnish water, sewer, and such heated or cooled air to the Museum
Premises during all of MOA's business hours as may be required for the comfortable use and
occupancy of the Museum Premises; to provide building standard nightly janitor service for the
Museum Premises during business days which , at a minimum, will include the daily emptying of
waste receptacles , vacuuming of floors , spot cleaning of carpets as necessary , and dusting of all
horizontal surfaces; to provide quaiier annual window washing and such wall cleaning as may in the
judgment of CITY be reasonably required; to provide snow removal as needed ; and to cause electric
current to be supplied for lighting in the leased premises and public halls , and it is understood that
MOA shall use such electric current as shall be supplied by CITY for all equipment necessary to
conduct MO A's business. The CITY shall replace light bulbs or tubes used in lighting the Museum
Premises. CITY shall , during standard business hours , provide proper and adequate security to the
Museum Premises.
5.3 Parking. CITY shall provide MOA with no fewer than forty (40) non-assigned and
shared parking spaces in the parking area of City Center closest to access to the Museum Premises .
5.4 Surrender of Premises. At the expiration of this Agreement, MOA shall surrender the
Museum Premises in the same condition as exists upon the completion of the MOA improvements ,
ordinary wear and tear excepted .
ARTICLE VI
FIXTURES, SIGNS, AND ALTERATIONS
6.1 Fixtures . All fixtures of a permanent nature installed by MOA shall be in good
conditions and have a useful life of at least twenty years , unless otherwise approved by CITY.
Upon the installation of any fixture of a permanent nature by MOA, such fixture shall become the
property of CITY. CITY must approve in advance the installation of a permanent fixture and such
approval shall not unreasonably withheld.
6.2 Signs. MOA shall not erect any antenna, loudspeaker, or any exterior or interior
signs without first obtaining the written consent of the CITY, which consent shall not be
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unreasonably withheld. MOA signage shall conform to the signage in the Civic Center Building.
Further, all approved , illuminated signs must derive light from a concealed source (no exposed
globes , tubing, etc .). The CITY shall provide adequate directional signage to and from MOA
throughout City Center as well as street and building signage identifying MOA 's presence and
location and identification of classes and events .
6.3 Alterations. Subsequent to completion of the improvements , MOA may, from time
to time , during any term , at its own cost and expense , upon written consent of CITY, which consent
shall not be unreasonably withheld, make any reasonable nonstructural alterations or changes in
the interior of the Museum Premises in a good and workmanlike manner in compliance with all
applicable requirements of law, it being understood that "nonstructural" shall include moving of
stud partitions , minor plumbing and electrical work and modification and rearrangement of
fixtures; provided that nothing in this Section.shall limit or modify MOA's rights under Section
5.2. CITY agrees to cooperate with MOA for the purpose of securing necessary permits for any
changes , alterations or additions permitted under this section. For this purpose, nonstructural
alterations or changes do not include alterations or changes being made in the Museum Premises
for the purpose of presenting an art or performance exhibit of a duration of less than six months. In
this latter event, MOA will not be obligated to obtain consent of CITY. MOA shall be required to
obtain permits mandated by ordinance , if any , in order to make any such alterations or
improvements.
6.4 MOA will not alter the exterior of the Museum Premises and shall have no right to
make any change , alteration or addition to the Museum Premises which would impair the structural
soundness or diminish or increase the size thereof, without the prior written consent of CITY.
6.5 All costs of any such work shall be paid promptly by MOA so as to prevent the
assertion of any liens for labor or materials. MOA agrees that any improvements made by it ( except
trade fixtures and unattached signs) shall immediately become the property of CITY.
ARTICLE VII
PUBLIC LIABILITY
7.1 MOA's Liability Insurance. MOA shall , during the entire term hereof, keep in full
force and effect a policy of public liability and property damage insurance with respect to the
Museum Premises , and the business operated by MOA in the Museum Premises , in which the limits
of public liability shall not be less than One Million and Noll 00 Dollars ($1 ,000 ,000.00) per person
and One Million and Noll 00 Dollars ($1 ,000 ,000.00) per incident and in which the total damage
liability shall not be less than Two Million and Noll 00 Dollars ($2 ,000,000.00). The policy shall
name CITY as an additional named insured , and shall contain a clause that the insurer will not
cancel or change the insurance without first giving the CITY thirty (30) days prior written notice.
The insurance shall be an insurance company approved to do business in the State of Colorado and
a copy of the policy or a Ce1tificate oflnsurance shall be delivered to Englewood. Nothing herein
shall be construed as a waiver by the City of its immunities as set forth within the Colorado
Goverrunental Immunities Act.
7.2 Worker's Compensation. To the extent required by law, MOA shall procure and
maintain worker 's compensation coverage for its employees.
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ARTICLE VIII
DAMAGE BY FIRE OR CASUALTY
8.1 Insurance Coverage by MOA. MOA shall keep the Museum Premises insured
against loss or damage by fire , with the usual extended coverage endorsements , in amounts not
less than the full insurable value of the improvements thereof.
8.2 Additional Coverage by MOA. MOA agrees that it shall keep its fixtures ,
merchandise and equipment insured against loss or damage by fire with the usual extended
coverage endorsements. It is understood and agreed that MOA assumes all risk of damage to its
own property arising from any cause whatsoever , including, without limitation , loss by theft or
otherwise.
8.3 Protection from Subrogation. Anything in this Agreement to the contrary
notwithstanding, neither CITY , EEF nor MOA shall be liable to the other for any business
interruption or any loss or damage to property or injury to or death of persons occurring on the
Museum Premises or the adjoining properties , sidewalks , streets or alleys, or in any maimer growing
out of or c01mected with MO A's use and occupation of the Museum Premises, or the condition
thereof, or of sidewalks , streets or alleys adjoining caused by negligence or other fault of CITY,
EEF or MOA or of their respective agents, employees, licensees , assignees , guests or invitees , to
the extent that such business interruption or loss or damage to the property or injury to or death of
persons is covered by or indemnified by proceeds received from insurance carried by the other
pai1y (regardless of whether such insurance is payable to or protects CITY, EEF or MOA or two or
more of them) or for which such party is otherwise reimbursed; and licensees and assignees , for any
such loss or damage to property or injury to or death of persons to the extent the same is covered
or indemnified by proceeds received from any such insurance, or for which reimbursement is
otherwise received. Nothing in this Section 8.3 contained shall be construed to impose any other or
greater liability upon CITY, EEF or MOA than would have existed in the absence of this Section
8.3.
8.4 Notice. MOA shall give inm1ediate written notice to CITY of any damage caused
to the Museum Premises by fire or other casualty.
8.5 Partial Damage. In case during the term hereof the Museum Premises shall be
partially damaged (as distinguished from "substantially damaged ," as that term is hereinafter
defined) by fire or other casualty , MOA shall forthwith proceed to repair such damage and restore
the Museum Premises , (subject, however, to zoning laws and building codes then in existence) to
substantially the same condition as before the time of such damage. MOA agrees that , promptly
after completion of such work, it will proceed with reasonable diligence and at its sole cost and
expense to restore its fixtures and equipment for reopening. In making such repairs of partial
damage MOA shall be permitted to obtain the proceeds , if any , of the fire insurance procured by
MOA which proceeds are paid as a result of such fire damage, whether paid directly to CITY or the
company or the agency doing the repair work. MOA shall be responsible for payment of all repair
work for such pat1ial damage which is not covered by such fire insurance.
8.6 Substantial Damage. In case during the term hereof the Museum Premises shall
be substantially damaged or destroyed by fire or other casualty , the risk of which is covered by
insurance, MOA shall have the option exercisable in writing within forty-five (45) days to
terminate this Agreement and deliver to CITY all insurance proceeds ( other than proceeds in
respect of inventory, fixtures and equipment), if any , or to retain this Agreement in full force and
effect in which event MOA shall , proceeding with all reasonable dispatch , repair or rebuild the
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Museum Premises , to substantially their condition at the time of such damage or destruction
(subject, however, to zoning and building codes then in existence). For this purpose the term
"inventory" includes, among other things, MOA's artwork.
8.7 No Abatement of Operation. MOA agrees that during any period of
reconstruction or repair of the MuseLm1 Premises it will continue the operation of its business
within the Museum Premises to the extent practicable.
8.8 Definition of Substantial Damage. The terms "substantially damaged" and
"substantial damage ," as used in this Article , shall have reference to damage of such a character as
cannot reasonably be expected to be repaired or the Museum Premises restored within one hundred
and thirty-five (135) days from the time that such repair or restoration work would be commenced,
as certified by a registered architect selected by MOA and accepted by CITY.
ARTICLE IX
HAZARDOUS MATERIALS
9.1 MOA's Representation. MOA agrees that whenever it , or any of its agents ,
employees , contractors , licensees or invitees , causes or permits any Hazardous Material to be
brought upon , kept, used or disposed of in , about or from the Museum Premises by MOA , the same
will be kept, used and disposed of in a manner that complies with all laws regulating any such
Hazardous Material and their possession, storage , use and disposal.
9.2 Definition of Hazardous Material. "Hazardous Material ", as used in this
Agreement, shall be any petroleum based products , paints and solvents , polychlorinated biphenyl ,
lead , acids , ammonium compounds and other chemical products (excluding conunercially used
cleaning materials in ordinary quantities), and any substance or material if defined or designated
as a hazardous or toxic substance , or other similar te1m , by any federal , state or local law, statute ,
regulation , or ordinance presently in effect or that may be promulgated in the future , as such
statutes , regulations and ordinances may be amended from time to time.
9.3 CITY's Responsibility for Removal. Notwithstanding the foregoing , if any
Hazardous Material was used in connection with the original construction of the Museum Premises
and the removal of such Hazardous Material from the Museum Premises becomes necessary during
the term of this Agreement , Englewood shall be responsible for the removal of the same , except if
MOA, or any of its agents , employees , contractors , licensees , or invitees , by their actions (as
opposed to ordinary wear and tear) has somehow affected the original construction materials in
some way so that the same have to be removed , in which event MOA shall be responsible for such
removal.
ARTICLE X
ASSIGNMENT AND SUBLETTING
10.1 Consent Required. MOA may not assign this Agreement and/or sublet the Museum
Premises or any part thereof, without in each instance obtaining the written permission of CITY .
The consent by Englewood to any assignment or subletting shall not constitute a waiver of the
necessity for such consent to any subsequent assignment or subletting . This prohibition against
assigning or subletting shall be construed to include a prohibition against any assignn1ent or
subletting by operation of law. If this Agreement is assigned , or if the Museum Premises or any
part thereof is sublet or occupied by anybody other than MOA, CITY may collect rent from the
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assignee, sublessee or occupant, and apply the net amount collected to the rent herein reserved , and
such assignment, subletting , occupancy or collection shall be deemed a release of MO A from the
further performance by MOA of covenants on the part of MOA herein contained with respect to
the assigned or sublet premises. Notwithstanding the right to assign or sublet herein granted , the
CITY shall be permitted to refuse to consent to assignment or sublet unless the CITY's obligation
under Article XVI is eliminated upon assignment or sublet.
ARTICLE XI
MOA'SDEFAULT
11.1 Events of Default. The following events shall be deemed to be events of default by
MOA under this Agreement.
(a) MOA shall have failed to pay any installment of rent or any other charge provided
herein, or any portion thereof when the same shall be due and payable , and the same shall
remain unpaid for a period often (10) days after written notice from the CITY; or
(b) MOA shall have failed to comply with any other provisions of this Agreement and
shall not cure such failure within thirty (30) days after CITY, by written notice , has
informed MOA of such noncompliance; or
(c) MOA shall file in any court a petition in bankruptcy or insolvency or for
reorganization within the meaning of the United States Bankruptcy Code, as amended , (or
for reorganization or arrangement under any future Bankruptcy Act for the same or similar
relief) or for the appointment of a receiver or trustee of all or a portion of MOA's property ;
or
( d) An involuntary petition of the kind referred to in paragraph ( c) of this Section 11.1
shall be filed against MOA and such petition shall not be vacated or withdrawn within ninety
(90) days after the date of filing thereof; or
(e) MOA shall make an assignment for the benefit of creditors; or
(f) MOA shall be adjudicated a bankrupt; or
(g) MOA shall for reasons other than those specifically permitted in this Agreement,
cease to conduct its business operations required by Article IV hereof in the Museum
Premises or shall vacate or abandon the Museum Premises and leave same vacated or
abandoned for a period of thirty (30) days.
Upon the occurrence of an event of default, CITY' s sole remedy shall be to cancel and terminate
this Agreement.
11.2 Costs, Expenses and Attorneys' Fees. In the event of any suit instituted by either
party to enforce the covenants and agreements contained in this Agreement, the prevailing party
in any such litigation shall be entitled to recover all costs , expenses , and reasonable attorneys' fees
that may be inctmed or paid as a result of such litigation. In the event of a compromise, neither party
shall recover costs , expenses and attorneys' fees , but such costs, expenses and attorneys' fees may
be considered by the parties in reaching a compromise.
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ARTICLE XII
SUBORDINATION OR SUPERIORITY OF SUBLEASE
12.1 Lease Subordinate or Superior to Deed of Trust. It is agreed that the rights and
interest of MOA under this Agreement shall be subject and subordinate to any mortgage or deeds
of trust placed upon the Civic Center Building, to any and all advances to be made thereunder, to
the interest thereon, and to all renewals , modifications , replacements and extension thereof,
provided the mortgagee or trustee named in said mortgages or deeds of trust must elect by written
notice delivered to MOA to subject and subordinate the rights and interest of the MOA under this
Agreement to the lien of its mortgagee or deed of trust and shall agree to recognize this Agreement
of MOA in the event of foreclosure if MOA is not in default; however, any mortgagee or trustee
may elect to give the rights and interest of the MOA under this Agreement priority over the lien of
its mortgage or deed of trust. In the event of either such election, and upon notification by such
mortgagee or trustee to MOA to that effect, the rights and interest of the MOA under this
Agreement shall be deemed to be subordinate to , or have priority over, as the case may be, the lien
of said mortgage or deed of trust , whether this Agreement is dated prior to or subsequent to the date
of said mortgage or deed of trust. MOA shall execute and deliver whatever instruments may be
required for such purposes , and in the event MOA fails so to do within ten (10) days after demand
in writing , MOA does hereby make , constitute and irrevocably appoint CITY as its attorney in fact
and in its name , place and stead so to do.
ARTICLE XIII
MISCELLANEOUS PROVISIONS
13.1 Holding Over. In the event that MOA shall continue to occupy the Museum
Premises after the expiration of this Agreement, said tenancy shall be construed to be a tenancy
from month-to-month , unless a letter is delivered to MOA by City, at the address set f01ih herein ,
demanding immediate removal from the premises. All of the terms and conditions herein contained
shall apply during a month-to-month tenancy.
13.2 Waiver. Failure on the part of the CITY to complain or notify of any action or non-
action on the part of MOA , no matter how long the same may continue , shall never be deemed to
be a waiver by Englewood of any of its rights hereunder. Further, it is covenanted and agreed that
no waiver at any time of any of the provisions hereof by Englewood shall be construed as a waiver
at any subsequent time of the same provisions unless Englewood so agrees at the time of the waiver.
13.3 Covenant of Quiet Enjoyment. MOA , subject to the terms and provisions of this
Agreement on payment of the rent and observing, keeping and performing all of the terms and
provisions of this Agreement on its part to be observed , kept and performed , shall lawfully
peaceably and quietly have, hold, occupy and enjoy the Museum Premises during the term hereof
without hindrance or ejection by any persons lawfully claiming under Englewood.
13.4 Status Reports. Recognizing that both parties may find it necessary to establish to
third parties, such as accountants , banks , motigagees , or the like , the then current status of
performance hereunder, either party , on the written request of the other made from time to time ,
will promptly furnish a written statement on the status of any matter pertaining to this Agreement.
13.5 Notice to Mortgagee. After receiving written notice from any person , firm , or other
entity , that it holds a mortgage (which term shall include a deed of trust) which includes as part of
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the mortgaged premises the Museum Premises , MOA shall , so long as such mortgage is outstanding
be required to give to such holder the same notice as is required to be given to CITY under the terms
of this Agreement, but such notice may be given by MOA to CITY and such holder concurrently.
It is further agreed that such holder shall have the same opportunity to cure any default , and the
same time within which to effect such curing , as is available to CITY ; and if necessary to cure
such a default , such holder shall have all rights of CITY.
13.6 Invalidation of Particular Provisions. If any term or provision of this Agreement ,
or the application thereof to any person or circumstance shall , to any extent , be invalid or
unenforceable , the remainder of this Agreement, or the application of such term or provision to
person or circumstances other than those as to which it is held invalid or unenforceable , shall not
be affected thereby, and each term and provision of this Agreement shall be valid and be enforced
to the fullest extent permitted by law.
13. 7 Provisions Binding, Etc. Except as herein otherwise expressly provided , the terms
hereof shall be binding upon and shall inure to the benefit of the successors and assigns ,
respectively, of Englewood and MOA. Each term and each provision of this Agreement to be
performed by Englewood or MOA shall be construed to be both a covenant and a condition. The
reference contained to successors and assigns of MOA is not intended to constitute a consent to
assignment by MOA , but has reference only to those instances in which Englewood may later give
written consent to a particular assignment as permitted by the provisions of Section 10.1 hereof.
13.8 Governing Law. This Agreement shall be governed exclusively by the provisions
hereof and by laws of the State of Colorado and its political subdivisions as the same may from
time to time exist.
13.9 Notices. Any notice which may be required to be given under this Agreement shall
be delivered in person or sent by registered or certified mail, postage prepaid and shall be addressed
to Englewood at 1000 Englewood Parkway, Englewood , Colorado 80110 , Attention: City
Manager and to MOA at the address of the Museum Premises , or to either party at such other
address as shall be designated by written notice to the other party. Whenever under this Agreement
a provision is made for notice of any kind , it shall be deemed sufficient notice and service thereof
if such notice to MOA is in writing addressed to MOA at the Museum Premises and deposited in
the mail with postage prepaid, and if such notice to Englewood is in writing addressed to the
location for payment of rent as provided in Article II and deposited in the mail with postage prepaid.
13.10 Section Headings. The headings , section numbers and aiiicle numbers appearing
in this Agreement are not intended in any manner to define , limit or describe the scope of any such
section or article and are solely inse11ed as a matter of convenience .
13.11 Entire Agreement. This Agreement and any exhibits or riders made a part hereof
constitute the entire agreement between the parties relating to the subject matter hereof. It is
understood that there are no oral agreements between the parties hereto affecting this Agreement ,
and this Agreement supersedes and cancels any and all previous negotiations, arrangements ,
brochures , agreements or understandings , if any , between the parties hereto or displayed by
Englewood to MOA with respect to the subject matter hereof, and none shall be used to interpret
or construe this Agreement. It is further agreed by and between the parties hereto that there shall
be no modification or amendment of this Agreement except as may be executed in writing between
the parties hereto.
13.12 Access to Premises. CITY shall have the right to enter upon the Museum Premises
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at all reasonable hours for the purpose of inspecting the same and during any emergency. If
Englewood deems any repairs necessary , Englewood may make at its expense or cause MOA to
make such repairs , as may be required under this Agreement , at MOA's expense.
13.13 Payment After Termination or Notice. No payment of money by MOA to
Englewood after the termination of this Agreement in any manner, or after the giving of any notice
to MOA, shall reinstate , continue or extend the term of this Agreement or affect any notice given
to MOA prior to the payment of such money , it being agreed that after the service of notice or the
commencement of a suit or after final judgment granting Englewood possession of said premises,
Englewood may receive and collect any sums of rent due , or any other sums of money due under
the terms of this Agreement, and the payment of such sums of money whether as rent or otherwise ,
shall not waive said notice , or in any manner affect any pending suit or any judgment theretofore
obtained.
13.14 Access for Reletting. Englewood may at any time within ninety (90) days before
the expiration of this Agreement, enter the Museum Premises at all reasonable hours for purposes
of offering the same for rent , and may place and keep on the window and doors of said premises
signs advertising the premises for rent.
13.15 Joint and Several Liability. All the terms , covenants and conditions contained in
this Agreement to be performed by either party, if such party shall consist of more than one person
or organization , shall be deemed to be joint and several , and all rights and remedies of the parties
shall be cumulative and nonexclusive of any other remedy at law or in equity.
13.16 Brokers. MOA warrants that it has had no dealings with any real estate broker or
agents in connection with the negotiation of this Agreement, and that it knows of no other real
estate broker or agent who is or might be entitled to a commission in connection with this
Agreement.
13.17 Corporate Authority . MOA is a Colorado not-for-profit corporation, and each
individual executing this Agreement on behalf of MOA represents and warrants that he is duly
authorized to duly execute and deliver this Agreement on behalf ofMOA, and that this Agreement
is binding upon MOA in accordance with its terms.
13.18 Copies. This Agreement may be executed in any number of copies all of which shall
be deemed an original and all of them shall constitute one and the same agreement; provided , that ,
it shall only be necessary to produce one copy of such Agreement for proof.
13.19 Approval of City Council. CITY represents and warrants that all of the terms of
this Agreement have been reviewed and approved by its City Council , that an appropriate
Resolution has been adopted by the City Council authorizing CITY to enter into this Agreement ,
that the person executing this Agreement on behalf of CITY has full authority to do so , and that
the actions of the City Council are such that this Agreement shall remain in full force and effect in
accordance with its terms throughout the term described in Section 1.2 . CITY further represents
and warrants that this Agreement is legally binding upon CITY; however, any provision of this
Agreement or its exhibits which impose upon the CITY , directly or indirectly , any financial
obligation whatsoever to be performed or which may be performed in any fiscal year subsequent
to the year of execution of this Agreement, is expressly made contingent upon and subject to funds
for such financial obligation be appropriated , budgeted and otherwise made available. A copy of
the Resolution of the City Council is attached hereto and incorporated herein as Exhibit D.
13.20 Approval of Board of Directors of EEF. EEF represents and warrants that all of
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the terms of this Agreement have been reviewed and approved by the Board of Directors of EEF ,
that an appropriate resolution has been adopted by the Board of Directors approving and
recommending this Agreement to the City Council , and that the person executing this Agreement
on behalf of EEF has full authority to do so. EEF represents that it is a legally constituted entity
with capacity to oversee this Agreement following its approval by the City Council. A copy of the
Resolution of the Board of Directors of EEF is attached hereto and incorporated herein as Exhibit
C.
ARTICLE XIV
MOA'S RENEW AL OPTION
14.1 Option to Renew. As additional consideration for the covenants of MOA hereunder,
CITY hereby grants unto MOA an option (the "Option") to extend the term of the Agreement for
three (3) additional terms of three (3) years (an "Option Term") each . Each Option shall apply to
all Museum Premises at the time the Option Term would commence , and shall be on the following
terms and conditions:
(a) Written notice of MOA's election to exercise an Option shall be given to CITY no later
than six (6) months prior to the expiration of the term ("MOA's Notice"). If MOA timely
exercises an Option , the Agreement shall be deemed extended with all of its terms.
(b) Unless CITY is timely notified by MOA in accordance with paragraph (a) above , it
shall be conclusively deemed that MOA does not desire to exercise the Option , and the
Agreement shall expire in accordance with its terms , at the end of the term.
(c) If MOA is in default of this Agreement at the time of notice hereunder , the option
may be exercised only with the written consent of the CITY.
(d) The Options granted hereunder shall be upon all of the terms and conditions contained
herein.
( e) After exercise of all of the Options above described , there shall be no further rights
on the part of MOA to extend the term of the Agreement.
ARTICLE XV
ARTWORK DISPLAY
15.1 Display of Artwork. The works of art , each of which is owned by MOA, shall be
displayed throughout the City Center pursuant to the Artwork Installation Plan described in Section
15.4 below. Works ofart subsequently acquired by MOA and works of art prepared through MO A's
art education programs may be displayed in such areas of City Center from time to time. MOA
alone shall have the right to display works of art and exhibits in City Center in the locations
described as MOA artwork locations in the Artwork Installation Plan , and all decisions with respect
to the nature and propriety of any particular piece of art or any exhibit by MOA of any artwork
whatsoever is expressly granted , reserved to and held alone by MOA.
15.2 Movement of Artwork. With the consent ofEEF, MOA shall be permitted to move
any permanent work of art from one designated point to any other designated point within the City
Center during the term of the Agreement. The cost of moving any such art within City Center shall
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be paid by MOA , unless the request to move the art was made by the CITY or EEF in which event
the CITY or EEF shall pay the cost.
15.3 Sale of Artwork. MOA, in its sole and absolute discretion , shall be permitted to
sell any work of art which it owns and which is on display in the City Center other than those
designated as "Permanent Installations" on Exhibit B . Upon the removal of any such sold item ,
MOA shall be responsible to pay for all costs of removal and any cost of restoration of the space
from which such artwork was removed.
15.4 Responsibility for Installed Artwork. MOA shall be responsible for , and pay the
expense of, maintenance , repair, replacement, insurance and extraordinary security for the artwork
installed at any time in City Center. Englewood shall be responsible for utilities , ground
maintenance and standard security for the artwork installed at any time in City Center.
ARTICLE XVI
CITY SUPPORT OF MOA
16.1 Annual Contribution by CITY. The CITY will pay to MOA the sum of $48 ,000
(Forty-eight thousand dollars) within 30 days of the date that this Agreement takes effect. The City
will pay to MOA $24,000 (Twenty-four thousand dollars) within 30 days one year subsequent to the
date that this Agreement takes effect. No fm1her payment from the City to MOA will be made during
the te1111 of this Agreement. The grant shall be utilized , in MOA's discretion , solely for the
following purposes , set forth hereafter in particular order of priority:
(a) Support for MOA's education programs and facilities.
(b) Assistance with special events provided within the CITY by MOA.
(c) Public Art Displays.
(d) Ongoing maintenance of artwork displayed in the City Center.
16.2 TABOR. The parties understand and acknowledge that this Agreement and the
CITY is subject to Article X , §20 of the Colorado Constitution ("TABOR"). The parties do not
intend to violate the terms and requirements of TABOR by the execution of this Agreement. It is
understood and agreed that this Agreement does not create a multi-fiscal year direct or indirect
debt or obligation within the meaning of TABOR and, notwithstanding anything in this Agreement
to the contrary , all payment obligations of the City are expressly dependent and conditioned upon
the continuing availability of funds beyond the term of the City's current fiscal period ending upon
the next succeeding December 31. Financial obligations of the City payable after the current fiscal
year are contingent upon funds for that purpose being appropriated , budgeted , and otherwise made
available in accordance with the rules, regulations , and resolutions of the City and applicable law.
16.3 Failure of CITY to Make Annual Contribution. Should the CITY fail to make any
annual contribution as provided for in Section 16.1 without first having terminated this Agreement,
MOA shall have the following remedies:
(a) Declare this Agreement terminated , AND Vacate the Museum Premises , OR
(b) Elect to keep this Agreement in effect by remaining a subtenant pursuant to the
terms hereof without payment of the amounts set forth in Section 16.1 and , notwithstanding
any provision to the contrary, have the right to remove any or all works of art without the
consent of CITY.
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ARTICLE XVII
MOA OBLIGATIONS, PERFORMANCE, AND REPRESENTATIONS
17.1 MOA Operations. MOA will continue to operate , maintain and enhance a world
class museum and art education program at City Center. MOA will develop programming as
described in Article II that may include, but not be limited to , arts education-based exhibitions and
special events such as the nationwide Design and Build Competition; education-based gallery
exhibitions and special programs; concerts , workshops , and festivals in collaboration with
Englewood Arts, and other Colorado arts organizations; and temporary and permanent art
exhibitions and installations of approximately $1 ,000 ,000 in value . Notwithstanding the foregoing
description of operations, should any of these operations terminate at no fault of MOA, there shall
be no breach of this operations requirement, but, MOA shall thereafter use all reasonable efforts
to replace the terminated operation with a similar one. MOA shall continue to market all of its
programs and activities at City Center. MOA will develop a resident arts education discount
program for all residents of the City of Englewood , Colorado and shall continue to participate as a
community partner with the Englewood Cultural Arts Commission.
17.2 MOA Representations. MOA represent to the City as follows:
(a) MOA has been recognized for its efforts in both "Arts " and "Education".
(b) The Governor of Colorado and the Colorado Council on the Arts honored MOA in
1993 with the Governor 's Award.for Excellence in the Arts , Colorado 's highest arts honor.
(c) In 1993 , MOA was presented with the Museum Educator of the Year award from
the Colorado Arts Association and has also been praised for art and education by all major
art and news publications in Colorado , including Westword 's "Best o,f Denver: Best Art
Classes for Kids " 199 5.
(d) MOA produces special programming tlu·oughout the calendar year.
(e) MOA maintains an annual budget of $1 ,000,000 annually, which it shall maintain
so long as its gross income from all sources equals or exceeds its gross income for 2018
and should its gross income fall below the amount for 2018 , the minimum budget shall
reduce only in proportion to the decrease in gross income.
(f) MOA shall spend at least $100,000 per year for its programming as described in
Section 17.1 , and in collaboration with Englewood Arts and other resident Colorado arts
organizations , as well as CITY-sponsored special programs and events , and temporary and
permanent art installations. No later than November 30 th of each year , MOA shall provide
a report to the CITY describing the programs provided and costs incurred during the
preceding year of this Agreement with respect to all programs provided at City Center.
ARTICLE XVIII
SHARED USE OF CULTURAL SPACE
18.1 Cooperation in Program Planning. The CITY and MOA agree to cooperate in
planning cultural programs and events for the Civic Center building and City Center Englewood.
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ARTICLE XIX
TERMINATION
19.1 Termination. Both the CITY and MOA may terminate this Agreement with written
notice given no less than six (6) months prior to the requested date of termination for any reason ,
including a failure on the part of the CITY to appropriate funds for the programming as set forth in
Article XVI of this Agreement. All tenns and conditions shall remain in effect during the termination
period until MOA officially vacates the Museum Premises. MOA may choose to leave art work in
place , the CITY shall not be responsible for any maintenance or upkeep to any artwork left in place
by MOA , whether located inside City Center or in the outdoor public spaces. In the event that the
CITY requested that art work be removed by MOA, all expenses for moving the art work shall be
borne by MOA. Further, the CITY is under no obligation to pay for any expenses incurred by MOA
associated with the closure and vacation of the Museum Premises by MOA. MOA shall leave the
Museum Premises in good , clean and safe condition, ordinary wear and tear excepted.
[remainder of page intentionally left blank]
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TN WITNESS WHEREOF, the parties hereto have affixed their signatures the day and year first above
written.
CITY OF ENGLEWOOD
ATTEST: Linda Olson , May;«·
ENGLEWOOD ENVIRONMENTAL FOUNDATION , TNC.
STATE OF COLORADO )
) ss.
COUNTY OF ARAPAHOE )
The foregoing Governmental Agreement and Sublease was subscribed , acknowledged , and
affirmed or swori\o before me this § day of ffi o, ~ , 2020 , by
\\\CtC, v-.. 1 t\ acA re. 0-,, , as p f'e "J-; ½ ·\--, of Englewood
E1~vTi;mnental Foundation, Inc.
WITNESS my hand and official seal.
(SEAL)
JACQ UEL1NE McKI N
NO TA R 'I ' ·ri uc
STAT E O F CL , \DO
NOTARY ID 20 16 'lu,.,j8 67
MY COM MISSI ON EXPIR ES JULY B, 2020
Address ?~z )1€U)O / j l u 7 ~
--r I 9 .__, o' ,,,. My Commission Expires: __ ~.....,J~..,_("--',:l _~--+--v---r-~L~~/_u __
_j J
(COE/MOA Premises Lease (2020)) Page 17 of22
TIIE MUSE.UM OF OUTDOOR ARTS
ST ATE OF COLORADO )
) ss.
COUNTY OF ARAPAHOE )
The foregoing Governmental A reement and Sublease was subscribed, acknowledged, and
affinned or sworn to before me this S day of ~~ 1..~ 1 2020, by
C.fbtlQ ~a... Mc;~'il L ~•"'ti.<J ,-, as 'us-":;;:,: [x ~(,....,__~1.J <i '3-,~oc\Q(ofThe Museum
o utdoor Arts.
WJTNESS my hand and official seal.
T OTHY JAMES A C
NOTARY PUBLIC
STATE OF COLORADO
(SEAittbt ARY ID 20074009417
MY COMMISSION EXPIRES FEI. 11, 20H Address ,
, / /-:,, ?,'I ((A ~ I •• I' i ), ', !, J ( L--' a ,I _u
I
I
My Commission Expires:_.;:; ____________ _
(COE/MOA Premises Lease (2020)) Page 18 of22
EXHIBIT A
TO
GOVERNMENTAL AGREEMENT AND SUBLEASE
between
THE CITY OF ENGLEWOOD, COLORADO
ENGLEWOOD ENVIRONMENTAL FOUNDATION , INC.
AND
THE MUSEUM OF OUTDOOR ARTS
*************************************************************************
Exempt Purposes of The Museum of Outdoor Arts
MOA'S 501(3)(c) STATUS
The Corporation is formed exclusively for charitable and educational purposes within the meaning
of Section 50 I (c)(3) of the Internal Revenue Code of 1954 as amended (the "Code"0 , the principal purpose
of which shall include , but not be limited to , the stimulation , promotion and development of the interest of
the general public in every manner of ait forms throu g h the organization and operation of outdoor and indoor
museums, the holding and sponsorship of music conceits , ait exhibitions and theatrical and dance
performances, all for cultural and educational purposes and to perform ev e ry act or acts necessary for ,
incidental to or connected with the fu1therance of its charitable and educational purposes and generally do
anything permitted of an organization exempt from Federal income taxation under Section 50l(c)(3) of the
code.
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