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HomeMy WebLinkAbout2005 Resolution No. 080• • • RESOLUTION NO. jQ SERIES OF 2005 CONTMCT NO, /O'i/-.J,oo'a A RESOLUTION AUTHORIZfNG A USE AGR[EMENT BETWEEN ENGLEWOOD CU LTURAL ARTS CENTER ASSOC IATI ON (dba E-Art s), THE MUSEUM OF OUTDOOR ARTS AND THE CIT Y OF ENG LEWOOD , COLORADO PERTAINING TO THE CU L TUR.AL ART S SPACE AT C!VIC CEN TER . WH EREAS , the Ci ty of Englewood is in the proc ess of developing , on the seco nd noor of it s Civic Ce nter buildin g, a Cu ltural An s Space as a cul tural performance v~nuc fu r communi ty arts pcrfmmances, as well as ot her event and meeting usesj and WHEREAS, the City of Engl ewoo d leases th e Civic Center fr om the Eng lewood Env ironmental Foundation and has full authority and discretion for it s use; and WHEREAS , E-Arts is a private non-profit organ ization engaged in deve loping and prescnt 'ng cult uru l and artis ti c program s for th e Eng lewo od community; and WHEREAS, it is the City's desire to promote artistic activities within the commun ity in accordance wi th Section IO of the 2003 Englewood Comprehensive Pinn and spec ifi ca ll y at the CityCe nter Englewoo d; and WHEREAS , the City des ire s to pennit E-Arts a nonexclusive use of the Space to provide cu ltural and artistic programs ; and WHEREAS, the City de sires to enter into thi s Agreement with E-Arts to assist E-Arts ii: the conduc t of its non-profit functions and to clarify the ri ghts and duties granted by the City and accepted by E-Arts; and WHEREAS, the City Counci l of the City of Englewood has reso lved to ente r into thi s Agreement and to facilita te the pre se nce ofE-Arts programs in ac.::o rdance with the tenns of the Use Agreement; and WHEREAS the Museum ofOutd ou Arts is aware of this Agreement and agrees to change its priority of use of the Space; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNC IL OF THE CITY OF ENG LEWOOD , CO LORADO , THAT: Sec tion 1. The Use Agreement between Eng lewoo d Cu ltu ral h , Ce nter Association, The Museum of Ou tdoor Arts and the City of Eng lewood, pertaining to t>e Cultu ra l Art s Space in the Civic Cente r, attached hereto as Exhibit I, is hereby accep ted and approved by th e Englewood City Co un cil. Sectio.!! :!. The Mayor and City Clerk are authori ze d to exec ute and attest sa id Use Agreement for and or. ~ci:,•lf of the City of Englewood . ADOPTED AND APPROVED this 17th day of October, 2005. I, Loucri sh ia A. Ellis, Cily Clerk fer the City of Eng lewood , C o ado, hereby certify the above is a true copy of Resolution "lo .~ Series of 2005 . l,;ouc ri shia A. Ellis, City Clerk • • • • USE AGREEMENT This USE AGREEMENT (hereinafter referred to in it s entirety as "Agreement "), made and entered into thi s ___ day o f October, 2005, by and be tw een th e City of Englewood, a Co lorado Mun icip al Corporat io n, (hereinafter referred to as "CITY"); th e Englewood Cultural Arts Cent er Association, a Co lorado not-for-profit corporatio n, doi ng bu si ne ss as Englewood Arts (herei nafter referred to as "E-Arts") and th e Museum of Ou tdoor Arts (hereinafter referred 10 as "MOA"). A. B. c. D . E. F. G. RECITALS The CITY is in the process of deve lop ing , on th e seco nd noor of it s Civic Center building, a Cultural Arts Space (hereinafter referred to as "the Space") as a cultural performance venue for community arts perfonnances, as we ll as other eve nt and meeting use s. Th e CITY leases th e C ivic Center from tbc Englewood Environmental Foundation and has full authority and di scretion for its use . E-Arts is an Int ernal Revenue Code 501 (c) (3) pri va te organization engaged in developing and presenting cultural and arti stic programs fo r the En gle wood community . It is the Ci ty 's de sire to promote artistic activities within the community in accordance with Section 10 of the 2003 Englewood Comprehensive Pl an and specifically at the Civic Center En ,:lcwood. The CITY desire s to permit E-Arts non-exclusive use of the Space to provide cultural and arti stic programs . The CITY desires to enter in to th is Agreement wit h E-Art s to assist E-Arts in th e cond uct of its non-profit functions in th e Space and to clari fy the ri ghts and duties grant ed by tbe CITY and accepted by E-Arts. The City Co uncil of the City of En glewood bas resol ved to en ter into this Agreement and to faci litate the presence of E-A rt s programs in the Space in accordance with th e following terms. The Mu seum of Outdoor Arts is aware of thi s agreement and agrees to change its priority o f use of the Space . NO',V, THEREFORE, in co nsid erati on of the foregoing Rec it als and the covenant s and promises hereinafte r contained, th e parties ag ree as follow s: I .I ARTICLE! .lERM Premises. In consideration of the use fees , covenants and agreem ent s herein, to be per fo rm ed on the part of E-Arts, the CITY docs hereby permit the non-exclusive right to E-Arts to use the Sp ace located in the Civic Center building, located at IOOO Englewood Parkway, Englewood, as shown on fahibit A attached hereto and in co rporated herein. The premi ses, known as the Space co nt ai ns approx imatel y 4000 square fee t. E X h i b i t 1.2 1.3 Term of the Use. The term of the use which is the subject of this agreement shall commence upon the first day of the month following the completion of the construction of the Space by the CITY ("Commencement Date" herein), currently anticipated to be March I, 2006, but subject to final approvals and satisfaction of all permit requirements. The Term of this Agreement shall expire on the last day of the calendar month ten (10) years a fler the Commencement Date. Io addition, the CITY hereby grants to E-Arts .J option to extend the Term of the Agreement for two (2) additional five (5) year periods subject to the following terms and conditions : 1.2.1 Written notice of E-Arts' election to exercise an option term shall be given to the CITY no later than six (6) months prior to expiration of the then current existing term. If E-Arts timely exercises the option, the Agreement shall be deemed extended under the Sime term and conditions provided herein, except that the CITY or E-Arts shall oot be required (but may individually choose to do so) to contribute any additional construction monies to the Space. 1.2.2 If at the time of the exercise of an option period E-Arts bas received notice from the CITY that it is in default of this agreement, such defa ·1lt shall be cured by E·Arts as provided herein and if such default is not cured the CITY may withhold its consent to such cxtcosion, in the City's sole discretion. Subject lo Annual Appropriation. Any provision of this Agreement or anachments 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 being appropriated, budgeted and otherwise made available by the City Couocil of the City of Englewood, Colorado. ARTICLE II llll...Ew 2.1 Use Fees. In lieu of fees for its use of the Space for the term of this Agreement, as extended by the option(s) provided herein, E-Arts shall contribute a minimum of Seventy-Five Thousand Dollars ($75,000) toward construction cost of the Space. Payment of this contribution shall be made to the CITY in conjunction with the commencement of the construction of the space. ARTICLE ill CONSTRUCTION AND U3E OF THE SPACE J.1 CITY Respooslbllllies. The CITY shall have the following responsibilities: J. I. 1 Space design. The CITY shall develop a specific design for the Space with appropriate consultation with E-Arts and other prospective users . Particular attention shall be paid to the acoustical considerations for the Space . Said design ("Space Piao" herein) shall be approved by the CITY and E-Arts. J.1.2 Space Construction. Based upon the approved Space Plan and subject to availability of necessary funding, the CITY will use its best efforts to complete construction of th e Space by March I , 2006. ·2· • • • • • • 3. 1.3 Facility Equipment. An initial complement of equipment for 1hr. Space shall be pro vided by the CITY and shall be available for use by E·Arts . The equipment available is lo include production equipment such as Egbting fixtures, sound equipment and audience related items such as chJirs and tables . A list of available equipment shall be provided to E-Ans. Any addit ional or different equipment required for a panicular event beyond the standard complimer.c of equipment shall be provided by E-Ans, subject lo approval by the CITY . 3.1.4 Space Scheduling, The CITY shall create and maintain a Master Schedule for usage of the space . The Master Schedule shall be developed on a timely basis in order 10 accommodate the annual event schedule of E-Ans, the CITY and other users . 3.1.5 Maintenance and Staffing Coordination. The CITY will provide, at its own expense, only routine maintenance and cleaning of the facility , per current CITY standards for Civic Center. Determination of staffing requirements related to individual events or other specific uses of the Space by E-Arts, including but not limited to, custodial, equipment operators, security and concessions shall be made by the CITY and provided or paid for by E-Arts 3.1.6 Storage Space. Subject to availability, the CITY may make space available to E-Ans for purposes of temporary storage. Only those spaces so designated by the CITY for use by E-Ans may be used on an on-going basis . 3.2. E-Arts Re,ponslbilides. E-Arts shall have the following responsibilities regarding construction and use of the space : 3.2.1 Design Assistance. E-Ans will assist the CITY in the design, design review and , as appropriate, the construction process for the Space . E-Ans will provide guidance as to requirements of the production aspects as well as bow the facility will function as a performance venue . As needed and requested by the CITY, E-Ans will identify technical support persons or organizations 10 assist the CITY. 3.2.2 Use Commitment. E-Ans shall commit to produce or present a minimum of fourteen (14) events each year. E-Artli will assist the CITY in the development of an annual performance program of value to the community . In addition, E-Arts will cooperate with the CITY to locate and en courage other performing groups to use the space. E-Ans shall meet semi-annually with the Englewood Cultural Arts Commission , on dates to be determined t.r the Commission, to review, schedule and approve the propo sed programs to be presented by E-Arts . 3.2 .3 "Event Use Agreement." E-Arts shall secure and agree to comply with terms and conditions of the "Event Use Agreement", as developed by th• CITY and as may be revi sed from time to time, for each of its event uses . As part of each individual use agreement, the CITY will conicr with E-Ans regarding staffing and equipment requirements ; however, the CITY shall have final authority on staffing requirements . E-Ans shall provide, at its sole expense , for all costs associated with required equipment and staffing as may be determined for each event. -3- 3.2.4 Food and Beverage Service. Subject lo the availability of food and beverage service facilities in the Space, E-Arts events shall be granted permission to serve food and beverages to its patrons during its events consistent with the current Civic Center food and beverage policy. E-Arts may retain any income recei ved from such service . E-Arts shall be responsible for obtaining any required permits and licenses required for sale and service of food and beverages. Sale or service of alcoholic beverages at any E-Arts event shall be subject to the prior approval of the City Manager. It shall be the responsibility of E-Arts to secure fr om tho CITY a liquor license for each of its events at which it chooses to provide alcoholic beverages. 3.2 .S Equipment. While the CITY will prov ide, per Section 3.1.3 above, a defi ned list of equipment for the Space, E-Arts shall be responsible for engaging experienced sound ar.d/or lighting operators. Such operators shall he selected from a liSI of operators approved by the CITY. Us e of any other operators shall be approved in advance in writing by the CITY. E-Arts will provide for any other equipment necessary for its operations, including phones and phone line s, which may be necessary for its use of the Space. 3.l.6 Non-Competitive Use. E-Arts agrees that its use o f the Space will not directly compete with programs offered by the Museum of Outdoor Arts. ARTICLE IV SCREDULING PRIORITY 4.1 CITY Priority. As owner of the Space, the City has first priority for establishing dates for its use of the Space. 4.2 E-Arts Priority. The sec ond priority for scheduling will be programs that are offered by E-Arts or jointly by the CITY and E-Arts. 4.3 Requests for Event Date. E-Arts may request a date fo r use of the Space base d upon an anticipated event, but for which an "Event Use Agreement" has not yet been completed. This shall be design••ed an ev ent "hold ." If another party requests the same date a,1d is pr:pared lo enter into a formal •·~vent Use Agreement", E-Arts must , within 48 hours, either enter into an "E,.·ent Use Agreement" or lose its priority for that dale . The CITY , through its City Manager or hi s designee, shall make the final decision re garding any di sputes over dates. 4.4 In co nsideration for the E-Arts and the City's contribution lo the construction of the Sp ace, the Museum of Outdoor Arts agrees lo the change in ils priority for sc heduling of the Space from second priority lo third priori ty . 5.1 ARTICLEV SIGNAGE, PROMOTION AND NAMING RIGHTS Slgnage. The CITY ma y consider appropriate sign age adjacent to the entrance lo the Space and at other appropriate lo ca tions within Civic Center to direct patrons to the Space . • • • • • • 5.2 Promotion. E-Arts will be re sponsible to provide, on a timely basis , infonnation about its events for appropriate placement within Civic Center and the CityCenter Englewood. In addition, as appropriate, the CITY may, at its sole discretion, include E-Arts perfonnance information on its we bsite 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 appropr:ateness, the level of contribution to be so honored and what ponion of the Space should be defined as a naming opponunity . Final approval for naming rights shall remain solely with the City Council of the City of Englewood . ARTICLE VI INSURANCE AND INDEMNITY 6. 1 E-Arts Liability Insurance. 6.1.1 Public Liablllty. E-Arts shall, during the tenn of this Agreement, keep in full force and affect a policy of commen:ial general public liability insurance with personal injury and propeny d311111ge liability limits in an amowit of not less than $1,000,000 . Tho policy shall name the CITY and the Englewood Environmental Fowidation as additional insured and shall contain a clause that the insurer will not cancel or change the insurance without first giving the CITY ten (IO) days prior written notice . The insurance shall be with an insurance company qualified to do business in Colorado, and a copy of the policy or evidence of insurance, in a fonn approved by the CITY shall be delivered to the CITY with.n thiny (30) days of the execution of this Agreement. C,.1.2 Worker's Compensation. To the extent required by law, E-Arts shall procure and maintain worker's compen sation coverage for its employees . 6.2 E-Arts Property Insurance. E-Arts agrees that it shall keep its furn iture, fixtures, men:handise, equipment and all items it is obligated to maintain and repair wider this Agreement insured against los s or damage by fire and all risk endorsements . It is understood and agreed that E-Arts assumes all risk of damage to its own propeny arising frcm any cause whatsoever, including , but without limitation , loss by theft or otherwise . 6.3 E-Arts Indemnity. E-Arts shall indemnify and bold the CITY and the Englewood Envirnnmental Fowidation harmless from and against any and all los ses, claims and damages arising from E-Ans ' use of the Space , or the conduct of its business or from any act or omission to act, activity, work or thing done, pennitted or suffered by E- Ans in or about the Space, and shall funber indemnify and bold the CITY hannle ss from and against any and all claims ari sin g from any breach or default in the perfonnan ce of any obligation of E-Arts to be perfonned wider the terms of this Agreement, or arising from any act or neglig en ce of E-Ans or any of its agent s, contractors or employees, and from and against all costs , attorneys' fees , expen ses and liabilities incurred in coMection tnerewith . The CITY shall not be liabl e for injury or damage which may be sustained by the person , goods, wares, merchandise or propeny of E-Arts , its employees, invitees or customers, or any other perso n in or about the Space however or wherever caused. -5 - ARTICLE VII l!EFAllLI 7.1 Default by the E-Arts. Subject to the E-Art's notice and cure rights set forth below, the CITY may tenninate this Agreement upo n default by E-Arts under this Agreement. Notice of default termination , wh ich shall state the de si gnated date of the default, shall be in writing, delivered by certified U.S. Mail, Rerurn Receipt Reque sted, at least one hundred twenty (120) day s prior to the designated date for default tennination of this Agreement. E-Arts shall have th irty (3 0) days from re,eipt of a default termination notice to correct or commence such correction if such co rrection cannot be reasonably corrected within such thirty (3 0) dnys. If so corrected, or commenced and corrected, within a reasonable time then this Agreement shall not tenninate. Upon tennination for default , E-Arts shall reimburse any and all charges due to the CITY for which it is entitled under this Agreement. ARTICLEVUI 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 cons¢nt of the CITY, in its sole and subjective discretion . 8.3 Severabliity. The invalidity of any provision of this Agreement, as detennined 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 th e parties relative to the Premises and Progrananing, and there are no oral agreements or representations between the parties with respec t to the subject matter hereof. This Agreement supersedes and cancels all prior agreements and understandings with respect to the subject matter hereof. This Agreement may be ,nodified onl y in writing, signed by the parties in interest at the time of modification. 8.5 Third Party Beneficiary. Nothing hr.rein 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 provisions hereof restricting assigning by E-Arts , this Agreement shall bind the parties, their successors and ass igns . This Agreement shall be governed by the law s of the State of Colorado . 8. 7 Authority. Each individual executing this Agreement on beh alf of the respective parties , represents and warrants that he is du ly authorized to execute and deliver this Agreement on behalf of such party and that this Agreement is binding upon each party in ac cordance with its term s. -6- • • • • • • 8 .8 Notices. AU notices, coo rdin ation , and othe r com mWli cation required or permilled by thi s Agreement shall he made lo the following person s: CITY OF ENGLEWOOD City Manager City of Englewood IOOO Englewood Parkw.iy Englewood, CO 80 I I 0 E-Arts Name Title __________ _ Address _________ _ 8 .9 Noadlscrlmlnatlon. 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 ha ve affixe d their signatu ces 1.0 this Agreement the day and year fir.a above written . CITY OF ENGLEWOOD By:------------- Douglas Garrett, Mayor ATTEST : By: ____________ _ Loucri ,hia A. Ellis, City Clerk ENGLEWOOD CULTURAL ARTS CENTER ASSOCIATION By: Its : ST A TE OF COLORADO ) ) ss. COUNTY OF ARA PAHOE ) The foregoing instrument was ackn owledged befr,re me this __ day of ____ , 2005 by __________ as _______ of ________ _ Witnes s my hand and official seal. Notary Public My commission expires: -7- • MUSEUM OF OUTDOOR ARTS By : Its : STATE OF COLORADO ) ) ss . COUNTY OF ARAPAHOE ) The foregoing instrument was acknowledged before me chis __ day of ___ _, 2005 by _________ as _______ of ________ _ Witness my hand 11nd official seal . Notary Public My commission expires: • -8· • EXHIBIT A PROPOSED CULTURAL ARTS SPACE BASE BID kolfoScdt • PJ.ATPORM 35" A.FI. EXIST. El.EC. • • • • COUNCIL COMMUNICATION Date: Agenda Item: Subject : Octo be r 1 7, 2005 11 c ii Use Ag reement wi th Eng lewood Cultural Arts Cent er As so cia ti on Initiated By: I Staff Source: Ci ty Manager's Office M ichae l Fl aherty, Deputy Ci ty Manager COUNCIL GOAL AND PREVIOUS COUNCIL ACT ION Council auth orized $227,500 for th e Civic Center Cultural Arts Space in th e 2005 bud ge t. O n August 15, 2005, by Res o lo 11i on #7 4, Counci l authorized trans fer o f an additi onal $175,000 to the Cu ltural Art s Space pro je< I from two other cap ital proj ect funds . RECOMMENDED ACTION Staff recommends Coun cil adopt a Re so luti on to ap prove a Us ~ Agreement wi th th e Engle wood Cultu ral Arts Center Association, d.b.a., E-Arts , for th e no n-excl u ;ive use of th e Cultural A rts Space at th e Civic Cen ter . BACKGROUND D uri ng th e cons tru cti on of th e Ci vic Center, City Co un ci l designated approxim ately 4,000 squ are fee t of space on th e se cond flo o r adjace nt to th e Mus eum of Outdoor Arts (MOA) fo r additi ona l cultural uses . The goal of the Council thr ough th eir acti on wa s to ad d p osi tive activity to th e building an d to CityCenter Englewood. At th at time, funding was no t availabl e for build-o ut of th e space. In 2004 City Co uncil auth oriz ed a transfer of $227,000 fr om two prio r cap ital ap propriati ons, S 1 77 ,500 from th e Cult ura l Arts Center land Bank and $50,000 fr om the Cons ~rvation Tru st Fund to th e Cultural Arts Space projec t. These funds were intend ed to initiate proj ec t planning; howeve r, addi tional fund ing was nee ded to co mplet e th e proj ec t. O n Augu st 15, 20 05, Counc il au th orized tra nsfe r of an additi onal $' 75,000, fro m two ex isting capital proj ec ts, an additiona l $100,000 fr o m th e Cu hural Aris Center Land Bank, and $75,000 fro m th e Co nse rva tion Trust Fund . In addition, E-A rts had pledged a m ini mum .-f $50,000 toward co nstru cti on cos ts . O ver the past seve ral months, concurrent w ith preliminary plannin g fo r bu ild-out of th e spa ce, disc ussions and negoti ations b etween Ci ty staff and th e Eng lewood Cultu ral \rts Ce nt er Associat ion have been p1Jrsued . Th e result of th at process is the draft ag ree m ent now being pres ented to Council. N ote: A curren t Ci ty ag ree m ent with MOA all ows MOA second p riority, after th e City, fo r schedu ling th e Cultural Arts space. Due to a change in th is agreemen t in th e sched ul ing 1,ri or iIy, E· Arts tak in g sec ond pri ority an d MOA movi ng to third priority, language has bee n add ed t,, th is ag reement th at doc um ent s co ncurr ence by MOA with th is cha nge. An amendment to th e curr ent • MOA ag reement is in pro cess and will be presented to Co unci l at a later date. FINANCIAL IMP ACT City appro pria ti ons for th is projec t l o l al $402,500. Th e E-Arl s conl ribu li on l o l he proj ect is $75,000. UST OF ATTAC HMENTS Fin al Changes M emora dum Re solution • • MEMORANDUM TO : Mike Flaheny, Assistant City Manager Gary Sears , City Manager Dan Brotzman , City Attorney FROM: Nancy Reid, Assistant City Attorney ;;{j; l DATE: October 11, 2005 REGARDING : Final Changes -E Arts Use Agreement. The following substantive changes were made to the Agreement after the Council Meeting of October 10, 2005 : Heading : MOA was added t, 1.2 Changed the dcfinit. This docs not limit the , itself. crm of this agreement'' to the "term of the Use". . ,od for requiring payment under the agreement 2.1 .1 This Section changed the seventy-five thousand for the initial term to seventy• five thousand for the tcnn plus two S year renewals. 3.1.1 A plan has not yet been finalized. Therefore the timing has been changed to "Shall be "designed and approved . (See also 3.2.1) 3.1.5 The ''unreasonably withhold" sentence has been deleted. It is too subjective to be enforceable and the City can not be held lo a vague standard when we may have competing interests and activities going on in the Civic Center at any one time, e.g. parties with overlapping activities in the community room, Council Chambers or MOA. Signature Block: Attachment The limitation noted before MOA 's signature is not necessary . The understanding is stated in the body of the agreement. In addition , MOA and the City arc aware that an amendment, to the MOA sublease is also required , with an Ordinance .