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HomeMy WebLinkAbout2016 Resolution No. 002• • RESOLUTION NO. ,2._ SERIES OF 2016 A RESOLUTION AUTHORIZING AN AGREEMENT BETWEEN ENGLEWOOD CULTURAL ARTS CENTER ASSOCIATION (dba E-Arts), AND THE CITY OF ENGLEWOOD, COLORADO PERTAINING TO THE MANAGEMENT OF HAMPDEN HALL AT THE ENGLEWOOD CIVIC CENTER. WHEREAS, on October 17, 2005 the City entered into an agreement with E-Arts for the use of Hampden Hall, to provide cultural and artistic programs; and WHEREAS, the initial term of the agreement expires on February 29, 2016, E-Arts has requested to enter into a new five year agreement; and WHEREAS, in 2015 there were a total of 76 events held at Hampden Hall, all of which were booked and managed by the Englewood Public Library; and WHEREAS, the Englewood Public Library currently manages the booking and oversight of Hampden Hall spending 300 hours annually, and cost of approximately $9,700.00 in routine maintenance and event related costs; and WHEREAS, E-Arts proposes to assume the responsibility for scheduling all rental uses of Hampden Hall, including all routine maintenance and event related costs and in return will retain all rental fees; and WHEREAS, the City would incur a loss of $3,000 to $5,000 in annual revenue, this loss would be offset by the time and expense currently provided by Public Works facility maintenance and Library staff time spent on booking and management; and WHEREAS, the City and Museum of Outdoor Arts shall have use of Hampden Hall at no cost, with each party responsible for its event related staffing including pre and post event related activities; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ENGLEWOOD, COLORADO, THAT: Section 1. The agreement between the Englewood Cultural Arts Center Association ( dba E-Arts) and the City of Englewood, Colorado pertaining to the management of Hampden Hall, attached hereto as Exhibit 1, is hereby accepted and approved by the Englewood City Council Section 2. The Mayor and City Clerk are authorized to execute and attest said Use Agreement for and on behalf of the City of Englewood. ADOPTED AND APPROVED this 4th day of January, 201 I, Loucrishia A. Ellis, City Clerk for the City of Englew above is a true copy of Resolution No .d::-, Series of 201 . • • • • • Hampden Hall Use/Management Agreement This USE/MANAGEMENT AGREEMENT (hereafter referred to in its entirety as "Agreement"), made and entered into this __ day of ___ _, 2016, by and between the City of Englewood, a Colorado Municipal Corporation (hereafter referred to as "City"); the Englewood Cultural Arts Center Association, a Colorado not-for-profit corporation, doing business as Englewood Arts (hereafter referred to as E-Arts), and the Museum of Outdoor Arts (hereafter referred to as MOA). RECITALS The City developed, on the second floor of its Civic Center building, a Cultural Arts Space (hereafter referred to as "the Space"), as a cultural performance venue for community arts performances, as well as other events and meeting uses. The CITY leases the Civic Center from the Englewood Environmental Foundation and has full authority and discretion for its use. E-Arts is an Internal Revenue Code 501 (c) 3 organization engaged in developing and presenting cultural and artistic programs for Englewood and the surrounding communities. It is the City's desire to maximize the use of the Space, thereby attracting increased numbers of visitors to Englewood and the Civic Center. The City desires to enter into this Agreement with E-Arts to assist E-Arts in the conduct of its activities and operations in the Space and to clarify the rights and duties granted by the CITY and accepted by E-Arts. The Museum of Outdoor Arts is aware of this agreement and agrees to its current priority use of the Space as defined in Section 4.3. The City Council of the City of Englewood has resolved to enter into this Agreement in accordance with the following terms. NOW, THEREFORE, in consideration of the foregoing Recitals and the covenants and the promises hereinafter contained, the parties agree as follows: ARTICLE I TERM 1.1 Premises. The CITY does hereby permit the non-exclusive right to E-Arts to use the Space located in the Civic Center and named Hampden Hall, located at 1000 Englewood Parkway, Englewood, as shown on Exhibit A attached hereto and incorporated herein. The premises, known as the Space contains approximately 4,000 square feet. 1.1.2 Utilities. As lessee of the building, the CITY shall be responsible, at no cost to E- Arts, for the cost of utilities, such as heating, cooling and electricity for the Space E X H I B I T 1 1.2 Term of Use. The Term of Use, which is the subject of this Agreement, shall commence upon the first day of January 2016, and shall expire on the final day of December 2020. In addition, a joint option to extend the Term of the Agreement for five (5) • additional one (1) year periods shall be granted, subject to the following condition: 1.2.1 Written notice of E-Arts election to exercise an option term shall be given no later than twelve months prior to the expiration of the existing term. The CITY shall either accept or deny the extension within thirty (30) days of E-Arts written notice. ARTICLE II FEES 2.1 In recognition of E-Arts' initial contribution of eighty-three thousand dollars ($83,000) toward the construction of the Space, and in recognition of the successful efforts by E-Arts to create and present artistic programs attracting thousands of visitors to the Space during the past ten (10) years, the CITY shall not require E-Arts to pay fees for the right to manage the Space. ARTICLE III FACILITY AND STORAGE SPACE 3.1 Facility Equipment. An initial complement of equipment (Attachment Exhibit B) for the Space has been provided by the CITY and shall be made available to E- Arts. An inventory of the Hampden Hall equipment and furnishings shall be conducted jointly by the City and E-Arts. The condition of the equipment and furnishings provided by • the City shall be on a "where is, as is" basis .. The equipment available is to include production equipment, such as lighting fixtures, sound equipment, video projector, drop- down screen and audience related items, such as chairs and tables. Any additional equipment required beyond the standard compliment of equipment for particular events shall be provided by E-Arts, subject to approval by the CITY. The CITY shall grant favorable consideration to E-Arts for the installation of additional equipment, but it shall not be the responsibility of the CITY to pay for the equipment or its continued maintenance not included in Attachment A. The parties shall annually assess the compliment of equipment and determine if replacement or upgrades are required; funding of such equipment shall be determined by negotiation between the parties. Replacement or addition by the City of equipment or furnishings is subject to appropriation. 3.1.2 Storage Space. Subject to availability, the CITY shall make space available to E- Arts for the purpose of temporary storage. Only those spaces specifically designated by the CITY for use by E-Arts may be used on an on-going basis. 3.1.3 Space Scheduling. E-Arts shall create and maintain a Master Schedule for annual usage of the Space. The Master Schedule shall be developed on a timely basis in order to accommodate the annual event schedule of E-Arts, the CITY, MOA and other users. The up- to-date Master Schedule must be available to the City at all times in an electronic or print format. 3.1.4. Maintenance. The CITY, at its own expense, shall provide routine (non-event related) maintenance and cleaning of the facility, per current CITY standards for the Civic • .. ' • • • Center. The repair of faulty electrical wiring, not the result of misuse by E-Arts, shall be included in routine maintenance. Also included in routine maintenance shall be the replacement of burned out light bulbs, with the exception of theatrical lighting. The CITY shall, subject to appropriation, make repairs to the standard equipment, when deemed necessary, in a timely manner, so as to avoid harm to E-Arts events. 3.1.5. Staffing. Each party to this Agreement shall have the sole responsibility for providing staffing for its uses of the Space, including all pre-and post-event chair placement, equipment adjustments, ticketing, event attendants, sound and lighting technicians and post event cleaning, including the public restrooms and rotunda. E-Arts may request assistance from City staff, but shall reimburse the City for any staffing costs so incurred. 3.2 Rental Uses and Fees. E-Arts shall be responsible for scheduling all rental uses of the Space and shall retain 100 per cent (100%) of the rental fees . Rental rates shall be established by E-Arts. The City nor MOA shall not be charged rental fees for its use of the Space, nor shall the City or MOA receive rental fees for any of its uses of the Space. All rental inquiries received by the CITY or MOA shall be directed to E-Arts. 3.2.1 Use Commitment. E-Arts shall commit to produce a minimum of thirty (30) uses each year. E-Arts shall make its best efforts to promote the use of the Space to other performing groups, arts organizations, businesses, organizations and individuals. 3.2.2 Rental Applications. E-Arts shall use the existing or any revised rental application (approved by the CITY) for all uses scheduled by E-Arts and shall provide copies of the completed applications to the CITY. 3.2.3 Food and Beverage Service. Subject to the availability of food and beverage service facilities in the Space, E-Arts shall be granted permission to serve food and beverages to its patrons during its events. E-Arts shall be responsible for obtaining any required health department permits and City and State sales tax licenses required for the sale of food and beverages. Addition of any temporary or permanent food and beverage service facilities shall be subject to the advance approval by the City. 3.2.4 Equipment Use. E-Arts shall engage experienced, skilled sound and/or lighting persons to operate the CITY-owned equipment in the Space. 3.2.5 Non-competitive Use. E-Arts agrees that its uses of the Space will not directly compete with programs offered by the City or the Museum of Outdoor Arts. 3.2.6 Civic Center Entrances. The CITY agrees to keep all Civic Center public entrance doors open during the times of E-Arts uses of the Space. E-Arts shall be responsible for notifying the City of event dates and times, or any cancellations or changes in event dates and times, at least 48 hours in advance of any event. ARTICLE IV SCHEDULING PRIORITY 4.1 City Priority. As lessee of the Space, the CITY has first priority for scheduling dates for the use of the Space for City or City sponsored functions 4.2 E-Arts Priority. The second priority for scheduling will be programs that are offered and/or presented by E-Arts or jointly by the CITY and E-Arts . 4.3 MOA Priority. MOA agrees to having third priority for the scheduling of it events in the Space and shall provide E-Arts with copies of the Use Applications for inclusion in the Master Schedule. 4.4 Requests for Event Date. The CITY may request a date for use of the Space based on an anticipated event, but for which an "Event Use Application" has not yet been completed. This shall be designated an "Event Hold." If E-Arts requests the same date and is prepared to enter into a formal "Event Use Application," the CITY must, within 48 hours, submit an "Event Use Application" or lose its priority for that date. E-Arts and the CITY shall mutually resolve disputes over dates. ARTICLE V SIGNAGE, PROMOTION AND NAMING RIGHTS ' .. • 5.1 Signage. The CITY has provided appropriate signage on the south outside wall of the Civic Center and in various locations within the Civic Center to direct patrons to the • Space. 5.2 Promotion. E-Arts will be responsible for providing, on a timely basis, information about its events for appropriate placement within the Civic Center and the City Center Englewood. In addition, as appropriate, the CITY may, subject to time and availability include E-Arts performance information on the City's website and Citizen Newsletter. 5.3 Naming Rights. The CITY and E-Arts may enter into discussions regarding potential revenue generation to fund capital and/or operating expenses of the Space in exchange for naming rights. Such discussions shall include consideration of the appropriateness, the level of contribution to be so honored and what portion of the Space should be defined as a naming opportunity. Final approval for naming rights shall remain solely with the City of Englewood. ARTICLE VI INSURANCE AND INDEMNITY 6.1 E-Arts Liability Insurance. 6.1.1 Public Liability. E-Arts shall, during the term of this Agreement, keep in full force and affect a policy of commercial general public liability insurance with personal injury and • property damage limits in an amount of not less than $1,000,000 per occurrence and $2,000,000 aggregate. The policy shall name the CITY and the Englewood Environmental • • Foundation (EEF) as additional insured and shall contain a clause that the insurer will not cancel or change the insurance without first giving the CITY ten (10) days prior written notice. The insurance shall be with a company qualified to do business in Colorado, and a copy of the policy or evidence of insurance, in a form approved by the CITY, shall be delivered to the CITY within thirty (30) days of the execution of this Agreement. 6.1.2 Worker's Compensation. To the extent required by law, E-Arts shall procure and maintain worker's compensation coverage for its employees. 6.2 E-Arts Property Insurance. E-Arts agrees that it shall keep its furniture, fixtures, merchandise, equipment and all items it is obliged to maintain and repair under this agreement insured against loss or damage by fire and all risk endorsements. It is understood and agreed that E-Arts assumes all risk of damage to its own property arising from any cause whatsoever, including, but without limitation, loss by theft or otherwise. 6.3 E-Arts Indemnity. E-Arts shall indemnify and hold harmless the CITY and the Englewood Environmental Foundation harmless from and against any and all losses, claims and damages arising from E-Arts' use of the Space, or the conduct of its business or from any act or omission or activity, work or thing done, permitted or suffered by E-Arts in the Space, and shall further indemnify and hold the CITY harmless from and against any and all claims arising from any breach or default in the performance of any obligation of E-Arts to be performed under the terms of this Agreement, or arising from any act or negligence of E- Arts or any of its agents, contractors or employees, and from and against all costs, attorneys' fees, expenses and liabilities incurred in connection therewith. The CITY shall not be liable for injury or damage, which may be sustained by the person, goods, wares, merchandise or property of E-Arts, its employees, invitees or customers, or any other person in the Space however caused. 6.4 E-Art Third Party Use. E-Arts shall be responsible for all third party use of the Space and shall require certifications of insurance from those third party users naming the CITY and EEF as additional insureds. ARTICLE VII DEFAULT 7.1 Default by E-Art. Subject to the E-Arts' notice and cure rights set forth below, the CITY may terminate this Agreement upon default by E-Arts under this Agreement. Notice of default determination, which shall state the designated date of the default, shall be in writing, delivered by certified U. S. Mail, Return Receipt Requested, at least thirty (30) days prior to the designated date for default determination of this Agreement. E-Arts shall have ten (10) business days from receipt of a default determination notice to correct or commence such correction if such correction cannot be reasonably corrected within such ten (10) days. If so corrected, or commenced and corrected, within a reasonable time then this Agreement shall not terminate. Upon termination for default, E-Arts shall reimburse any and all charges due to the CITY for which it is entitled under this Agreement. • 7.2 Annual Performance Review. The City shall, on an annual basis following the completion of the E-Arts season ( on or about July 1) evaluate and assess the E-Art's compliance with all contract terms and performance standards. Any deficiencies noted shall be subject to the default provision in 7.1. 7 .3 Termination. In the event that the building in which the Space is located is sold or vacated prior to the termination of this Agreement, or any subsequent renewal period, the parties hereby acknowledge that this Agreement and the parties' duties under this Agreement shall terminate. 7.4 Notification of Termination. In the event that Hampden Hall is sold or the City requires E-Arts to vacate the premises prior to the termination of this agreement, or any subsequent renewal, the City shall provide E-Arts with written notice at least 360 days prior to the required vacation. ARTICLE VII MISCELLANEOUS 8.1 Time of Essence. Time is of the essence. 8.2 Assignment. E-Arts shall not assign this agreement or any interest herein, without the prior written consent of the CITY, in its sole and subjective discretion. 8.3 Severability. The validity of a provision of this Agreement, as determined by a court of competent jurisdiction, shall in no way affect the validity of any other provision hereof. • 8.4 Entire Agreement. This Agreement, along with any exhibits or attachments • hereto, constitutes the entire agreement between the parties relative to the Space and Programming, and there are no oral agreements or representations between the parties with respect to the subject matter thereof. This Agreement supersedes and cancels all prior agreements and understandings with respect to the subject matter thereof. The Agreement may be modified only in writing, signed by the parties in interest at the time of modification. 8.5 Third-Party Beneficiary. Nothing herein shall be construed as giving rise to any rights or benefits to any third party. E-Arts and the CITY expressly disclaim any intent to create any third-party beneficiary status or rights in any person or entity not a party to this Agreement. 8.6 Binding Effect: Choice of Law. Subject to any provision hereof restricting assigning by E-Arts, this Agreement shall bind the parties, their successors and assigns. The laws of the State of Colorado shall govern this Agreement. 8. 7 Authority. Each individual signing this Agreement on behalf of the respective parties represents and warrants that he/she is duly authorized to sign and deliver this Agreement on behalf of such party and that this Agreement is binding upon each party in accordance with its terms. 8.8 Notices. All notices, coordination, and other communication required or permitted by this Agreement shall be made to the following persons: • • • • \ CITY OF ENGLEWOOD Englewood Cultural Arts Center Museum of Outdoor Arts City Manager City of Englewood 1000 Englewood Parkway Englewood, CO 80110 Executive Director 1000 Englewood Parkway . Englewood, CO 80110 Executive Director 1000 Englewood Parkway Englewood, CO 80110 8.9 Nondiscrimination. E-Arts shall make its services and programs available to all persons, regardless of race, color, age, creed, national origin, sex, or disability. IN WITNESS WHEREOF, the parties hereto have affixed their signatures to the Agreement the day and year first above written. CITY OF ENGLEWOOD By: __________ _ ATTEST: By: __________ _ ENGLEWOOD CULTURAL ARTS CENTER ASSOCIATION Its: £xecu-tiv'e t2,cec.fo,- MUSEUM OF OUTDOOR ARTS Its: ;j?r/dr] ~ • COUNCIL COMMUNICATION Date Agenda Item Subject January 4 , 2016 Resolution approving an 11ci agreement with the Englewood Cultural Arts Association , d.b.a, Englewood Arts for the management of Hampden Hall. INITIATED BY STAFF SOURCE City Manager's Office Michael Flaherty, Deputy City Manager COUNCIL GOAL AND PREVIOUS COUNCIL ACTION The City entered into an agreement with Englewood Cultural Arts Center Association , d.b.a ., Englewood Arts (E-Arts), for the use of Hampden Hall on October 17 , 2005 . The initial term of the agreement expires on February 29 , 2016, however, the agreement provides for two additional five year options . E-Arts submitted a notice of intent to exercise the first five-year extension option of the agreement on August 25 , 2015 . At the same time , Eric Bertoluzzi , Executive Director, on behalf of the Board of Directors of E-Arts , submitted a request to enter into a new five year agreement in which E-Arts proposes to assume full responsibility for book ing and managing Hampden Hall. Staff presented the proposal to City Council during the November 16, 2015 Study Session . • RECOMMENDED ACTION • Staff recommends approval of this Resolution . BACKGROUND, ANALYSIS AND ALTERNATIVES IDENTIFIED In 2015 , the space has been booked for 76 events. Of that number, 27 were E-Arts events, 4 were MOA, and 2 were booked by Freedom Service Dogs , whose use of the Hall was paid for under Aid to Other Agencies . City uses, such as the Business Summit, HR training use , Library and Parks and Recreation programs , accounted for 24 uses , none of which were paid uses . The remaining 15 externally sponsored events were paid uses, including 5 that were multi-day uses. Revenue from paid events for 2015 is approximately $6500 . Under the terms of the proposed agreement, E-Arts will assume responsibility for scheduling all rental uses of the space and E-Arts shall retain all rental fees. The City and the Museum of Outdoor Arts shall have use of the space at no charge . Each party shall provide for all applicable event related staffing for its use of the space , including all pre and post event set-up and break-down , equipment adjustment, ticketing, event attendants, sound and lighting technicians and post-event cleaning of the space , FINANCIAL IMPACT The Library , which currently manages the booking and oversight of Hampden Hall spends approximately 300 hours annually on management of the space . The annual cost of facility maintenance of Hampden Hall was approximately$ 9700 in 2014 and $7500 year-to-date 2015 , including routine maintenance and event related costs . In the agreement is approved, all revenue and all cost of all non-City events come to E-Arts . While approval of the agreement would result in the loss of $3000-$5000 in annual revenue, that loss would be offset by the time and expense currently provided by Public Works Facility Maintenance and would relieve the Library staff of its time spent on booking and management of the space . LIST OF ATTACHMENTS City Council Resolution Hampden Hall Use/Management Agreement • • •