HomeMy WebLinkAbout1999 Ordinance No. 068•
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ORDINANCE NO. ft(}_
SERIES OF 1999
BY AUTHORITY
COUNCIL BILL NO. 70
INTRODUCED BY COUNCIL
MEMBER GRAZULIS
AN ORDINANCE AUTHORIZING THE ACCEPTANCE OF AN AGREEMENT AND
SUBLEASE BETWEEN THE MUSEUM OF OUTDOOR ARTS (MOA), THE
ENGLEWOOD ENVIRONMENTAL FOUNDATION, INC. (EEF) AND THE CITY
OF ENGLEWOOD , COLORADO (CITY).
WHEREAS, the City Council of the City of Englewood has designated
approximately 15,000 square feet of space on the second floor of the Englewood Civic
Center for cultural uses; and
WHEREAS, in an effort to activate and energize CityCenter Englewood and to
provide for a unique character to the development, the City has explored
opportunities for cooperation with cultural organizations at CityCenter; and
WHEREAS , the Museum of Outdoor Arts was approached last year a potential
tenant for Civic Center; and
WHEREAS, the operations of MOA, include an exceptional art collection,
educational programs and entertainment; and
WHEREAS , over the past several months discussions and negotiations between
MOA, EEF and City staff have been actively pursued ; and
WHEREAS , the passage of this proposed Ordinance will finalize a Sublease and
Agreement between the City of Englewood , the Englewood Environmental
Foundation, Inc. and the Museum of Outdoor Arts ;
NOW, THEREFORE , BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF
ENGLEWOOD, COLORADO, AS FOLLOWS:
Section 1. The acceptance of the Agreement and Sublease between the City of
Englewood, Colorado, Museum of Outdoor Arts and the Englewood Environmental
Foundation, Inc. for space at the Englewood Civic Center, attached as "Attachment l'',
is hereby accepted and approved by the Englewood City Council.
Section 2. The Mayor is authorized to execute and the City Clerk to attest and seal
the Agreement and Sublease for and on behalf of the City of Englewood, Colorado.
Introduced, read in full , and passed on first reading on the 8th day of November,
1999 .
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Published as a Bill for an Ordinance on the 12th day of November, 1999.
Read by title and passed on final reading on the 22nd day of November, 1999.
Published by title as Ordinance No . .k1. Series of 1999, on the 26th day of
November, 1999 .
I, Loucrishia A. Ellis, City Clerk of the City of Englewood, Colorado, hereby certify
that the above and foregoing is a true cop/ r?f the Ordinance passed on final reading
and published by title as Ordinance No. (ili, Series of 1999 .
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GOVE&"fiVIENTAL AGREEl\'IENT AND SlTBLEASE
TIIlS GOVERl'lli1ENT AL AGREEMENT Al'ID SUBLEASE (hereinafter referred to in its
entirety as "Agreement"), made and entered into this __ day of November, 1999, 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
A. CITY and EEF are in the process of redeveloping that certain property located in the
CITY and formerly known as Cinderella City located at 1000 Englewood Parkway, the legal
description for which is attached hereto as Exhibit A The redevelopment area shall become the
CityCenter Englewood (hereinafter referred to as "CityCenter ").
B. CITY acquired CityCenter from the former owner and transferred CityCenter to EEF
which is now the fee title holder.
C. As part of the rede velopment of Cinderella City , the EEF will develop CityCenter and
CITY will lease offices in the Civic Center Building , a redevelopment of the former Fole y's
Department Store at Cinderella City . The Civic Center Building is located as set forth on the plat
attached hereto as Exhibit B .
D. MOA is an Internal Revenue Code §50l(c)(3) private foundation . MOA 's exempt
purposes are described on Exhibit C attached hereto . In partial furtherance of its exempt purposes ,
MOA owns and maintains a publicly displa yed art collect ion presently located in Greenwood Village ,
Colorado , and MOA is eng ag ed in educating children and adults in the visual and performing arts .
E. In furtherance of the redevelopment of Cinderella Cit y, Englewood desires to have
MOA mo ve its presence to the CITY to be situate in the Cit yCenter.
F. MOA desires to move its offices, art classrooms and much of its art collection to the
CityCenter .
G . CITY desires to sublease to MOA and MOA desires to sublease from CITY certain
premises in the Civic Center Building pursuant to the terms hereinafter set forth; and EEF desires to
approve the sublease .
H. CITY and EEF desire to enter a business agreement with MOA pertaining to the
conduct of MOA 's exempt functions in the CityCenter and the support of those functions to be
granted by Englewood and accepted by MOA.
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I. The City Council of the City of Englewood and the Board of Directors ofEEF have
resolved to enter into this Agreement and to facilitate the presence of MOA in the CityCenter in
accordance with the terms hereof.
NOW, THEREFORE, in consideration of the foregoing Recitals and the covenants and
promises hereinafter contained, the parties agree as follows:
ARTICLE I
GRANT AND TERM
1.1 Demised Premises. In consideration of the rents , covenants and agreements herein
reserved and contained on the part ofMOA to be performed, CITY does hereby sublease and demise
unto MOA the space to be located in the Civic Center Building as shown on Exhibit D attached
hereto and incorporated herein by this reference , located at 1000 Englewood Parkway, Englewood,
Colorado , which premises (hereinafter called "Demised Premises ") are also known as "Museum
Space ". The Demised Premises contains approximatel y 7,000 square feet of rentable space as shown
on Exhibit D .
1.2 Term. The term of this Agreement and MOA's obligation to pay rent hereunder shall
commence upon occupancy by MOA (hereinafter referred to as the "Occupancy Date") and shall
terminate at 12 :00 midnight, on May 15, 2005 , unless extended pursuant to Article XIV. Occupancy
by MOA means the first date MOA conducts business in the Demised Premise, and the Occupancy
Date shall be no later than May 16 , 2000 .
ARTICLE Il
RENT
2.1 Rent. MOA agrees to pay to CITY at the office of CITY in the Civic Center Building
or at such other place as CITY may designate in writing, rent for said premises as follows :
(a) The sum of One Dollar per year payable in advance on the Occupancy Date
and on the first day of each and every anniversary of the Occupancy Date until this Agreement is
terminated .
2.2 Sublease Year Defined. The tenn "sublease year," as used herein, is hereby defined
to mean and include those periods of the term which for the first sublease year begins at the
Occupancy Date and ends on the last da y of the 12th calendar month during which the Agreement
will have been in effect, and for subsequent sublease 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 .
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ARTICLE Ill
CONDITION OF PREMISES
3.1 Englewood's Obligations. At its cost, Englewood shall deliver to MOA the MOA
Space as provided by the specifications attached hereto as Exhibit E . In the event that MOA utilizes
the CITY' s contractor to make improvements, subject to completion and acceptance of plans , the
improvements may be made simultaneously with other improvements made by the CITY ' s contractor
on the second floor of the Civic Center Building beginning no later than February 1, 2000. If MOA
does not utilize the CITY's contractor to make improvements, the MOA Space shall be delivered to
MOA no later than May 1, 2000 .
3.2 MOA's Obligations. All finish and remodeling is to be performed by MOA at :\tfOA 's
expense . It shall be done in a good and workmanlike manner, free of an y 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 build ing code requirements .
(a ) All alterat ions , addit ions or impro vements made by eit '.i.er part y at the expense
of\!fOA (except only mo vab le office furniture and other personalty not anached to the Building ) shall
be deemed a part of the real estate and the property ofEEF and shall remain upon and be surre ndered
with the Demised Premises as a part there of without moles t at io n, disturbance or inju ry at the end of
the term , whether by lapse of time or othenvise .
(b ) All impro vements and remodeling of the Demised Premises shall be
accomplished in accordance with the drawings and spec ifications prepared by MOA 's architect.
CITY 's architect will be permitted to re view MOA 's space plan and to make recommenda ti ons , if
any , concerning it prior to its appro val by CITY. The CITY shall ha ve final approval over the
improvement and remode ling of the Demised Premises . MOA ' s contractor shall coordinate with
CITY and other tenant contractors so as not to disrupt or damage work in other parts of the Civic
Center Building . MOA ' s contractor shall coordinate with the Englewood contractor in performance
of construction of the Demised Premises . MOA shall not be entitled to occup y the Demised Premises
unt il a certificate of occupancy has issued . Barring unforeseen circumstances , MOA shall complete
all impro vements by the six t eenth da y of Ma y, 2000
( c) Should CITY or EEF recei ve notice of, or should there be recordation in the
real estate records of Arapahoe Count y, Colorado of, an y materialman's or mechanic's lien on the
CITY' s or EEF 's property as the result of an y work performed , or materials pro vi ded , for or on
behalf of, MOA. MOA shall , upon receipt of written notice from CITY or EEF, immediately ha ve
such lien released . If, for any reason, MOA is unable to obtain a release of said lien within thirt y 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 .
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 permitted 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. Sh ould 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
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EEF of satisfactory proof that CITY or EEF'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 indemnify and
save CITY and EEF harmless from and against any such suit or claim, including costs .
(d) The improvements constructed by MOA shall be constructed according to drawings
and specifications approved by the CITY for offices , classrooms , art workrooms and museum display
areas . It is anticipated that MOA will provide improvements which have a value of at least $280,000.
(e) The parties acknowledge that MOA must obtain a loan in order to complete its tenant
improvement obligation hereunder . MOA shall be obligated to obtain a commitment, in a form
reasonably acceptable to CITY, for the loan by the 31st day of January , 2000 . Failure to obtain the
commitment shall render this Agreement null and void .
3.3 Common Premises Improvements. The common area of approximately 1,000
square feet described in Exhibit E adjacent to the :vfuseum Space together with bathrooms required
by the CITY 's Building Code ("Common Premises ") shail be improved by the CITY , MOA and one
or more other tenants of the Civic Center Building . Englewood and MOA each agree to pursue such
improvements through the CITY 's contractor . MOA shall not be responsible to expend more than
one-third of the cost of such improvements (estimated to be Two Hundred Seventeen Thousand
Dollars) in an amount not to exceed Se venty-three Thousand Dollars . If no third party tenant(s)
participate(s) in this obligation to construct the Common Premises improvements, the CITY shall bear
the cost of the reminder of such improvements MOA shall take the lead with respect to design
control for the Common Premises which shall be built in accordance with plans approved by the
CITY.
ARTICLE IV
USE OF PRE i"11SES
4.1 Use of Premises and Business Hours. During the entire term of this Agreement , the
Demised Premises shall be used solel y 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 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 holida ys.
4.2 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 Demised
Premises, in a lawful manner, and in strict compliance at MOA's sole expense with all governmental
laws, rules , regulat ions and orders and provisions of insurance underwriters applicable to the business
ofMOA conducted in and upon the Demised Premises.
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4.3 Affirmative Covenants of MOA Relative to Usage of Demised Premises. MOA
agrees to the following :
(a) MOA shall warehouse, store or stock in the Demised Premises only MOA's
necessary equipment and supplies .
(b) MOA shall not permit waste .
(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
MAINTE~A~TE. REPAIRS A~D 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. Englewood 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 Demised
Premises during all of MOA's business hours as may be required for the comfortable use and
occupancy of the Demised Premises ; to provide building standard nightly janitor service for the
Demised Premises during business days which, at a minimum, will include the daily empty ing of waste
receptacles , vacuuming of floors , spot cleaning of carpets as necessary, and dusting of all horizontal
surfaces; to provide quarter annual window washing and such wall cleaning as may in the judgment
of Englewood 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 Englewood for all equipment necessary
to conduct MOA's business . The CITY shall replace light bulbs or tubes used in lighting the Demised
Premises . Englewood shall, during standard business hours , provide proper and adequate security
to the Demised Premises .
5.3 Parking. Englewood shall provide yfQA with no fewer than forty ( 40) non-assigned
and shared parking spaces in the parking area of CityCenter closest to access to the Museum Space .
5.4 Surrender of Premises. At the expirat ion of this Agreement, MOA shall surrender
the Demised Premises in the same condition as exists upon the completion of the ivIOA
improvements, ordinary wear and tear excepted .
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ARTICLE VI
FIXTURES, SIGNS, AND AL TERA TIO NS
6.1 Fixtures. All fixtures of a permanent nature installed by MOA shall be in good
condition and have a useful life of at least twenty years, unless otherwise approved by EEF. Upon
the installation of any fixture of a permanent nature by the MOA, such fixture shall become the
property of EEF . EEF must approve in advance the installation of a permanent fixture and such
approval shall not be 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 Englewood, which consent shall not be unreasonably
withheld . MOA signage shall conform to other signage in the Civic Center Building . Further, all
approved , illuminated signs must derive light from a concealed source (no exposed globes , tubing ,
etc .). Englewood shall provide adequate directional signage to and from MOA throughout the
Cit yCenter as well as street and building signage identifying .\10A's presence and location and
identification of classes and events .
6.3 Alterations. Subsequent to completion of the improvements, MOA ma y, from time
to time , during the term , at its own cost and expense , upon wTitten consent of Englewood , which
consent shall not be unreasonabl y withheld , make an y reasonab le nonstructural alterations or changes
in the interior of the Demised Premises in a good and workmanlike manner in compliance with all
applicable requirements oflaw, 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 6 .3 shall limit or modify MOA's rights under Section 5.2. CITY
ag r ees 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 Space for the purp os e of
presenting an art or performance exhibit of a duration of less tbn six months . In this latter event ,
MOA will not be obligated to obtain consent of CITY MOA shall be required to obtain perm its
mandated by ordinance , if any , in order to make any such alterations or improvements
MOA will not alter the exterior of the Demised Premises and shall ha ve no right to
make any change , alteration or add ition to the Demised Premises which would impair the structural
soundness or diminish or increase the size thereof, without the prior written consent of Englewood .
All costs of an y such work shall be paid promptl y by MOA so as to pre vent 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 EEF .
ARTICLE VII
PUBLIC LL\BILITY
7.1 lVIOA'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 Demised
Premises , and the business· operated by MOA in the Demised Premises , in which the limits of public
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liability shall not be less than One .Yfillion and No/100 Dollars (Sl,000,000.00) per person and One
Million and No/100 Dollars ($1,000,000 .00) per incident and in which the total damage liability shall
not be less than Two Million and No/100 Dollars ($2,000,000 .00). The policy shall name Englewood
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 and EEF thirty (30) days prior written notice. The
insurance shall be an insurance :ompany approved to do business in the State of Colorado and a copy
of the policy or a Certificate oflnsurance shall be delivered to Englewood.
7.2 Worker's Compensation. To the extent required by law, MOA shall procure and
maintain worker's compensation coverage for its employees.
ARTICLE VIII
DAMAGE BY FIRE OR OTHER CASUAL TY
8.1 Insurance Coverage by MOA. MOA shall keep the Demised 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 fr r any business
interruption or an y loss or damage to property or injury to or death of persons occurring on the
Demised Premises or the adjoining properties , sidewalks, streets or alle ys, or in any manner growing
out of or connected with .'vfOA 's use and occupation of the Demised 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 respecti ve 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 party
(regardless of whether such insurance is payable to or protects CITY, EEF or MOA or two or more
of them) or for which such part y is otherwise reimbursed ; and licensees and assignees, for any such
loss or damage to propert y or injury to or death of persons to the extent the same is covered or
indemnified by proceeds received from an y 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 MO . ..\ than would have existed in the absence of this Section 8.3.
8.4 Notice. MOA shall gi ve immediate v.-Titten notice to Englewood of any damage
caused to the Demised Premises bv fire or other casualtv. . .
8.5 Partial Damage. In case during the term hereof the Demised 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
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Demised Premises, (subject, however , to zoning laws and building codes then in existence) to
substantially their condition at 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 Englewood or the company or the
agency doing the repair work . MOA shall be responsible for payment of all repair work for such
partial damage which is not covered by such fire insurance .
8.6 Substantial Damage. In case during the term hereof the Demised 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 Englewood 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 Demised Premises,
to substantially their condition at the time of such damage or destruction (subject , however , to zoni 11 g
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 Demised Premises it will continue the operation of its business within the Demised
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 Demised Premises restored within one hundred
and thirty-five (13 5) da ys from the time that such repair or restoration work would be commenced,
as certified by a registered architect selected by MOA and accepted by Englewood .
ARTICLE IX
HAZARDOUS ~L.\ TERL<\LS
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 Demised 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 commercially used
cleaning materials in ordinary quantities), and any substance or material if defined or designated as
a hazardous or toxic substance , or other similar term, 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 .
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9.3 Englewood's Responsibility for Removal. Notwithstanding the foregoing, if any
Hazardous Material was used in connection with the original construction of the Demised Premises
and the removal of such Hazardous Material from the Demised 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
ASSIGNL\'IENT AND SUBLETTING
10.1 Consent Required. MOA may not assign this Agreement and/or sublet the Demised
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 assignment or subletting by operation
of law . If this Agreement is assigned , or if the Demised Premises or any part thereof is sublet or
occupied by anybody other than MOA, CITY may collect rent from the assignee , sublessee or
occupant, and appl y the net amount collected to the rent herein reserved , and such assignment ,
subletting , occupancy or collection shall be deemed a release of YfOA from the further performance
by iv-IO A 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'S DEFAVLT
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 ror a period of ten ( 10) days after written notice from the CITY; or
(b) MOA shall have failed to comply with an y other provisions of this Agreement
and shall not cure such failure within thirt y (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 of similar relief) or for
the appointment of a receiver or trustee of all or a portion of \.fOA's property; or
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( 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 Demised
Premises or shall vacate or abandon the Demised Premises and leave same vacated or abandoned for
a period of thirty (3 0) days .
Upon the occurrence of an event of default, Englewood '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 incurred or paid as a result of such lit ig at io n. In the event of a compromise, neither pany shall
recover costs, expenses and attorneys ' fees , but such costs , expenses and attorneys' fees ma y be
considered by the parties in reaching a compromise .
ARTICLE XII
SUBORDINATION OR SUPERIORITY OF SJTBLEASE
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 ad vances 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 deed,s 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 ma y 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 attorne y in fact and in its name, place and stead so to
do .
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ARTICLE xm
MISCELLANEOUS PROVISIONS
13.1 Holding Over. In the event that MOA shall continue to occupy the Demised
Premises after the expiration of this Agreement , said tenancy shall be construed to be a tenancy from
month-to-month . All of the terms and conditions herein contained shall apply .
13.2 Waiver. Failure on the part of the CITY to complain or notify of any action or
nonaction on the part ofMOA, 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 pro visions 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 lav.rfull y peaceabl y
and quiet ly have , hold , occupy and enjo y the Demised Premises during the term hereof without
hindrance or ejection by an y persons laVvfull y claiming under Englewood. MOA acknowledges that
a dance studio ma y occup y premises cont ingent to the Demised Premises
13.4 Status Reports. Recognizing that both parties ma y find it necessa ry to establish t o
third parties , such as accountants , banks, mortgagees , or the like , the then cur rent status of
performance hereunder , either party , on the \.vrit t en request of the other made from time to time , Vvi ll
promptly furnish a written statement on the status of any matter penaining to this Agreement.
Without limiting the generality of the foregoing , MOA specificall y agrees , promptl y upon the
commencement of its business in the Demised Premises , to notify CITY in writing of the date thereof,
and acknowledge sat isfaction of the requirements with respect to construction and other matters by
Englewood , sa ve and except for such matters as YfOA ma y wish to set forth specificall y in said
statement .
13.5 Notice to Mortgagee. After recei ving written notice from an y person, firm , or other
entity , that it holds a mortgage (which term shall include a deed of trust ) which includes as part of
the mortgaged premises the Demised Premises , MOA shall , so long as such mongage 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 ma y be given by MOA to CITY and such holder concurrently .
It is further agreed that such holder shall ha ve the same opportuni ty 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 an y term or provis ion of this Agreement,
or the application thereof to an y person or circumstance shall , to any extent , be invalid or
unenforceab le, 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 thereb y, and each term and provision of this Agreement shall be valid and be enforced to the
fullest extent permitted by law.
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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 3400 South Elat i Street, Englewood , Colorado 80110 (through May 31, 2000 and
thereafter to 1000 Englewood Park.--way, Englewood , Colorado 80110), Attent ion : Cit y Manager and
to "YfOA at the address of the Demised Premises , with a copy to Sheldon H Smith , Davis, Graham
& Stubbs LLP , 370 17th Street , Suite 4700 , Denver, Colorado 80202 , 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
Demised 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 article numbers appearing in
this Agreement are not intended in any manner to define , limit or describe the scope of any such
section or anicle and are sole ly inserted 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
1::ng!ewood 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. Englewood shall have the right to enter upon the Demised
Premises 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 .
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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 Demised Premises at all reasonable hours for purposes of
offering the same for rent , and ma y 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 part y, if such part y shall consist of more than one person
or organizat ion, shall be deemed to be joint and se veral , and all rights and remedies of the part ies sha ll
be cumulat iv e and nonexclusi ve of an y other remed y at law or in equ ity .
13.16 Brokers. MOA warrants th at it has had no dealings with an y real estate broker or
agents in connection with the negot iat ion of this Agreement, and that it knows of no other real estate
broker or agent who is or might be en ti tle d to a commission in connection with this Agreement .
13.17 Corporate Authority. MOA is a Colorado not-for-profit corporation , and each
indi vidual executing this Agreement on behalf of MOA represents and warrants that he is dul y
authorized to dul y execute and deli ver this Agreement on behalf of MOA, and that this Agreement
is binding upon MOA in accordance with its terms .
13.18 Copies. This Agr eeme nt ma y be executed in an y 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 onl y be necessary to produce one cop y of such Agreement for proof
13.19 Approval of City Council. CITY represents and warrants that all of the terms of this
Agreement ha ve been reviewed and appro ved by its City Council , that an appropriate resolution has
been adopted by the City Council auth oriz ing 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
Ci ty 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 legall y binding upon CITY ; however, any provision of this Agreement or its exhibits
which impose upon the CITY , directl y or indirectly , any financial obligation whatsoe ver to be
performed or which ma y be performed in an y fiscal year subsequent to the year of execution of this
Agreement is expressl y made contin g ent upon and subject to funds for such financial obligation be
appropriated, budgeted and othemise made available .. A cop y of the resolution of the Cit y Council
is attached hereto and incorporated herein as Exhibit H.
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13.20 Approval of Board of Directors of EEF. EEF represents and warrants that all of
the terms of this Agreement have been reviewed and approved by the Board of Directors ofEEF, that
an appropriate resolution has been adopted by the Board of Directors authorizing EEF to enter into
this Agreement, the person executing this Agreement on behalf of EEF has full authority to do so,
and that the actions of the Board of Directors 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. EEF represents
that it is a legally constituted entity with capacity to execute this Agreement which it represents is
legally binding upon EEF . A copy of the resolution of the Board of Directors of EEF is attached
hereto and incorporated herein as Exhibit I.
ARTICLE XIV
l\'IOA'S RENEWAL OPTIO N
14.1 Option to Renew. As additional consideration for the covenants ofMOA hereunder ,
CITY hereby grants unto MOA an option (the "Option") to extend the term of the Agreement for
three (3) additional terms of five (5) years (an "Option Term ") each. Each Option shall apply to all
Museum Space at the time the Option Term would commence , and shall be on the following terms
and conditions :
(a) Written notice of:\10A's election to exercise an Option shall be gi ven to CITY
no later than six (6) months prior to the expiration of the term ("MO A's Notice"). If MOA time ly
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 ma y 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 MO A to extend the term of the Agreement.
ARTICLE XV
ARTWORK DISPLAY
15.1 Display of Artwork. The works of art described in Exhibit F hereto , each of which
is owned by MOA, shall be displayed throughout the CityCenter pursuant to the Artwork Installation
Plan described in Section 15 . 5 below. Works of art subsequently acquired by MOA and works of
art prepared through MOA' s art education programs may be displayed in such areas of CityCenter
from time to time . MOA alone shall have the right to display works of art and exhibits in CityCenter
in the locations described as MOA artwork locations in the Artwork Installation Plan, and all
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decisions with respect to the nature and propriety of any particular piece of art or any exhibit by
MOA of any anwork whatsoever is expressly granted, reserved to and held alone by MOA. Location
of artwork within CityCenter as set forth in Exhibit F shall be subject to approval of the CITY.
Exhibit F shall be amended, upon approval by CITY, EEF and MOA, from time to time as new works
of art are installed , new plans are prepared, art is removed , or otheffiise . Amendments to Exhibit F
are incorporated herein .
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
CityCenter during the term of the Agreement. The cost of moving any such art within CityCenter
shall 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 CityCenter other than those designated
as "Permanent Installations " on Exhibit F . Upon the removal of an y such sold item , MOA shall be
responsible to pa y for all costs of removal and an y cost of restoration of the space from which such
art work was removed .
15.4 Original Installation of Artwork. Within the period that commences thirty (30) da ys
prior to the Occupancy Date and ends no later than ninet y (90) days following the Occupancy Date ,
MOA, at its sole cost , will move and complete an y restoration or conservation which MOA deems
necessary on each of the eighteen pieces of art described in Exhibit F. Thirteen of these pieces of art
will be permanently installed for the term of the Agreement in the CityCenter pursuant to the Artwork
Installation Plan. Five of the pieces of art ident ifi ed as "Temporary In st allations" in Exhibit F ma y
be replaced or moved at MOA 's sole discretion within or without Cit yCemer. The initial installation
shall be paid for by Englewood and v.ill include signage , all landscaping , pedestals, lighting , pads and
other items described in the Anwork Installation Plan . In no event, hmve ver , shall Englewood be
obl igated to pay more than Sl 00,000 for the init ial installation .
15.5 Artwork Installation Plan. No later than the 15th da y of March , 200 0, the CITY,
EEF and ~-IOA shall agree to an Artwork Installation Plan . The Artwork Installation Plan shall be
in writing which, upon completion , shall be incorporated into this Agreement as Exhibit G. The
Artwork Installation Plan shall ident ify the places in the CityCemer where artwork will be permitted
to be displayed , shall set forth the requirements for installation and displa y including , but not limited
to , foundations and pedestals , fencing , light ing , security cameras , and all other matters pertaining to
the installation and display of the artwork.
15.6 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 CityCenter . Englewood shall be responsible for utilities , ground maintenance
and standard security for the art w ork installed at any time in Cit yCenter .
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ARTICLE XVI
CITY SUPPORT OF MOA
16.1 Annual Contribution by CITY. The CITY will pay to MOA the sum of Ninety-Six
Thousand Dollars ($96,000.00) annually by payment of Forty-Eight Thousand Dollars ($48,000) on
the Occupancy Date and on each date thereafter which is six months following the preceding payment
date throughout the term of this Agreement. It is anticipated that the CITY will take all reasonable
steps to fulfill this obligation recognizing that the TABOR amendment to the Colorado Constitution
does not allow for the enforcement of this promise unless there is compliance with the TABOR
amendment. This grant shall be utilized, in MOA' s discretion, solely for the following purposes, set
forth hereafter in no particular order of priority :
(a) Support for MOA 's education programs and facilities .
(b ) Assistance with special events pro vi ded within the CITY by :Y!OA.
( c) Public art dis pla ys.
( d) Ongoing maintenance of artwork displa yed in the CityCenter.
16.2 Failure of OTY to Make Annual Contribution. Should the CITY fail to make an y
annual contribution as provided for in Section 16 .1, MOA shall have the following remedies :
(a) Declare this Agreement terminated , A.i'ID
(1 ) Vacate the Demised Premises , Ai'ID
(2) Obtain from the CITY in a lump sum payment , within thirty (30) da ys
of the date MOA vacates the Demised Premises , in an amount equal to the total value (not to exceed
Five Hundred Thousand Dollars ($500,000) of impro vements made by MOA to the Demised
Premises under Section 3 .2 and to the Common Premises under Section 3 .3 reduced by Twelve
Thousand Dollars ($12,000) for each full year measured from the Occupancy Date to the date of the
CITY 's failure to pay under Section 16.1 and then multiplied by a fraction whose numerator is ten
(10) minus the number of.full years from the Occupancy Date to the date of the CITY 's failure to pay
and whose denominator is ten (10); 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 , ha ve the right to remove any or all works of art described in the Artwork
Installation Plan or in Exhibit F without the consent of Englewood .
ARTICLE XVII
MOA OBLIGATIONS, PERFQR.i\'lANCE, AND REPRESENT..\ TIO NS
1 7.1 MOA Operations. MOA will continue to operate , maintain and enhance a world-
class museum and art education program at CityCenter . MOA will develop programming that may
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include, but not be limited to, art education-based exhibitions and special events such as the state-
wide Design and Build Competition; state-wide education-based gallery exhibitions and special
programs; concerts, workshops and festivals in collaboration with Up Close and Musical, musicians
from the Colorado Symphony Orchestra, The David Taylor Dance Theatre, and other Colorado and
resident arts organizations; and temporary and permanent art installations of approximately
$1,000,000 in value. Notwithstanding the foregoing description of operations, should any of these
operations terminate at no fault ofMOA, 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 CityCenter . MOA will develop a
resident art education discount program for all residents of the City of Englewood, Colorado in
collaboration with the Englewood Cultural Arts Commission.
17.2 MOA Representations. MOA represents to the CITY as follows :
(a) MOA has been recognized for its effons in both "Arts" and "Education."
(b) The Governor of Colorado and the Colorado Council on the Ans honored
MOA in 1995 with the Governor's Award for Excellence in the Arts, Colorado 's highest arts honor.
(c) In 1993, MOA was presented with theJ\1useum Educator of the Year award
from the Colorado Art Association and has also been praised for art and education by all the major
art and news publications in Colorado , including Westword 's "Best of Denver: Best Art Classes for
Kids" 1995.
( d) MOA currently offers approximately 50 classes differing in focus and duration
in each of three annual sessions .
( e) MOA currently provides art education services for three times as many primary
school students as the Denver Art Museum .
(f) MOA produces special programming throughout each calendar year.
(g) MOA maintains a minimum annual budget of $500,000 which it shall maintain
so long as its gross income from all sources equals or exceeds its gross income for 1999; and should
its gross income fall below the amount for 1999 , the minimum budget shall reduce only in proportion
to the decrease in gross income.
(h) Up Close and Musical was established in 1987 as a Colorado non-profit
organization and independent affiliate of the Colorado Symphony Orchestra . It has performed over
500 concerts to thousands of people throughout Colorado, and the majority of its presentations are
geared for elementary school audiences . Its versatility lends itself to adaptations for expanded
prograrnrning to audiences of all ages at CityCenter .
(i) MOA shall spend at least $50,000 per year for its programming as described
in Section 17 .1, and , no later than August 31 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 CityCenter .
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IN WITNESS WHEREOF, the parties hereto have affixed their signatures the day and year
first above written.
CITY OF ENGLEWOOD
Attest: by :
----------------~ Its .· Th J Burn Ma orra.s . s , yor
by : _________ _
City Clerk -I.oucrishia A. Ellis
ENGLEWOOD ENVIRONMENTAL FOUNDATION, INC.
by :
----------------~ Its : ----------------
STATE OF COLORADO )
) SS .
COUNTYOFARAPAHOE )
The foregoing Governmental Agreement and Sublease was subscribed , acknowledged, and
affirmed or sworn to before me this __ day of , 1999, by , as
----------of Englewood Environmental Foundation, Inc .
WITNESS my hand and official seal.
Notary Public
(SEAL)
Address
My Commission Expires :
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THE MUSEUM OF OUTDOOR ARTS
STATE OF COLORADO )
) SS .
COUNTY OF ARAPAHOE )
The foregoing Governmental Agreement and Sublease was subscribed ackno,hYlede-ed , and
~rmed .~~before me this ZJJ!rray of dJa), ~~9 , by ~11,,. 1
~l<l I~ of The Museum of Outdoor Arts .
WITNESS my hand and official seal .
Notary Public
(SEAL)
My Commission Expires :
I e ~u-f!Q
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EXHIBIT A
TO
GOVE&.1\MENTAL AGREEMENT AND SUBLEASE
between
THE CITY OF ENGLEWOOD, COLORADO
ENGLEWOOD ENVIRONMENTAL FOUNDATION, INC.
AND
THE IVIUSEUM OF OUTDOOR ARTS
Legal Description for 1000 Englewood Parkway
......
"EXHIBIT A•
PARCEL A: ENGLEWOOD CIVIC CENTER SITE
A PARCEL OF LAND SITUATED IN THE SOUTHEAST ONE-QUARTER OF SECTION 33, TOWNSHIP
4 SOUTH, RANGE 68 WEST OF THE 6TH P.M., COUNTY OF ARAPAHOE, STATE OF COLORADO,
MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT THE SOUTHEAST CORNER OF SAID SECTION 33;
THENCE NORTHERLY ALONG THE EAST LINE OF SAID SECTION 33 A DISTANCE OF 68.00
FEET TO A POINT ON THE NORTH LINE OF WEST HAMPDEN AVENUE (AS SAID NORTH LINE
EXISTED PRIOR TO THE GRANT OF EASEMENTS IN INSTRUMENTS RECORDED IN BOOK 1714
AT PAGES 412, 423, 426 AND 429);
THENCE EASTERLY ON AN ANGLE TO THE RIGHT OF 90 DEGREES 07 MINUTES 26 SECONDS
ALONG SAID NORTH LINE A DISTANCE OF 163.00 FEET;
THENCE NORTHERLY ON AN ANGLE TO THE LEFT OF 90 DEGREES 00 MINUTES 00 SECONDS A
DISTANCE OF 405.00 FEET TO THE "TRUE POINT OF BEGINNING" OF A PARCEL OF LAND
DESCRIBED AS EXCEPTION "A" IN BOOK 1807 AT PAGE 713;
THENCE NORTHWESTERLY ON AN ANGLE TO THE LEFT OF 45 DEGREES 00 MINUTES 00
SECONDS ALONG SAID PARCEL A DISTANCE OF 384.00 FEET;
THENCE SOUTHWESTERLY ON AN ANGLE TO THE LEFT OF 90 DEGREES 00 MINUTES 00
SECONDS ALONG SAID PARCEL A DISTANCE OF 480.00 FEET;
THENCE NORTHWESTERLY ON AN ANGLE TO THE RIGHT OF 90 DEGREES 00 MINUTES 00
SECONDS ALONG SAID PARCEL A DISTANCE OF 70.00 FEET TO THE TRUE POINT OF
BEGINNING, SAID POINT BEING SITUATED 25.00 FEET SOUTHEASTERLY FROM THE
SOUTHEAST FACE OF THE FOLEY'S BUILDING AS MEASURED PERPENDICULAR THERETO;
THENCE AROUND SAID FOLEY'S BUILDING THE FOLLOWING SEVEN (7) COURSES:
1. NORTHEASTERLY ON AN ANGLE TO THE RIGHT OF 90 DEGREES 00 MINUTES 00
SECONDS, PARALLEL WIT~ AND 25.00 FEET DISTANT FROM SAID BUILDING, A
DISTANCE OF 145.00 FEET;
2. THENCE NORTHWESTERLY ON AN ANGLE TO THE LEFT OF 90 DEGREES 00 MINUTES
00 SECONDS, PARALLEL WITH AND 50.00 FEET DISTA.'IT FROM SAID BUILDING, A
DISTANCE OF 262.00 FEET;
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PARCEL A (CONT'D):
3. THENCE SOUTHWESTERLY ON AN ANGLE TO THE LEFT OF 90 DEGREES 00 MINUTES
00 SECONDS, PARALLEL WITH AND 10.00 FEET DISTANT FROM SAID BUILDING, A
DISTANCE OF 125.00 FEET;
4. THENCE NORTHWESTERLY ON AN ANGLE TO THE RIGHT OF 90 DEGREES 00 MINUTES
00 SECONDS, PERPENDICULAR TO SAID BUILDING, A DISTANCE OF 70.00 FEET;
5. THENCE SOUTHWESTERLY ON AN ANGLE TO THE LEFT OF 90 DEGREES 00 MINUTES
00 SECONDS, PARALLEL WITH AND 80.00 FEET DISTANT FROM SAID BUILDING, A
DISTANCE OF 165.00 FEET;
6. THENCE SOUTHEASTERLY ON AN ANGLE TO THE LEFT OF 90 DEGREES 00 MINUTES
00 SECONDS, PARALLEL WITH AND 35.00 FEET DISTANT FROM SAID BUILDING, A
DISTANCE OF .332.00 FEET;
7. THENCE NORTHEASTERLY ON AN ANGLE TO THE LEFT OF 90 DEGREES 00 MINUTES
00 SECONDS, PARALLEL WITH AND 25.00 FEET DISTANT FROM THE FACE OF SAID
BUILDING, A DISTANCE OF 145.00 FEET TO THE TRUE POINT OF BEGINNING,
COUNTY OF ARAPAHOE,
STATE OF COLORADO .
I ., .,.
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EXHIBIT B
TO
GOVERNMENTAL AGREE:MENT AND SUBLEASE
between
THE CITY OF ENGLEWOOD, COLORADO
ENGLEWOOD ENVIRONMENTAL FOUNDATION, INC.
AND
THE MUSE TThl OF O UTDOOR ARTS
Plat of CityCenter
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EXHIBITC
TO
GOVERNMENTAL AGREEMENT AND SUBLEASE
between
THE CITY OF ENGLEWOOD, COLORADO
ENGLEWOOD ENVIRONMENTAL FOUNDATION, INC.
At'l'D
THE MUSEUM OF OUTDOOR ARTS
Exempt Purposes of The Museum of Outdoor Arts
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MOA'S EXEMPT PURPOSES
The Corporation is formed exclusively for charitable and educational purposes within the
meaning of Section 501(c)(3) of the Internal Revenue Code of 1954 as amended (the "Code"), the
principal purposes 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 art forms through the
organization and operation of outdoor and indoor museums, the holding and sponsorship of music
concerts, art exhibitions and theatrical and dance performances, all for cultural and educational
purposes and to perform every act or acts necessary for, incidental to or connected with the
furtherance of its charitable and educational purposes and generally to do anything permitted of an
organization exempt from Federal income taxation under Section 501 ( c )(3) of the code .
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EXHIBITD
TO
GOVERNMENTAL AGREEMENT AND SUBLEASE
between
THE CITY OF ENGLEWOOD, COLORADO
ENGLEWOOD ENVIRONMENTAL FOUNDATION, INC.
AND
THE MUSEUI\'I OF OUTDOOR ARTS
Drawing of Demised Premises (~Iuseum Space)
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ENGLEWOOD. COLORADO
ENGLEWOOD CIVIC CENTER
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EXHIBITE
TO
GOVERNl\'IENTAL AGREEMENT AND SUBLEASE
between
THE CITY OF ENGLEWOOD, COLORADO
ENGLEWOOD ENVIRONMENTAL FOUNDATION, INC.
AND
THE MUSEUM OF OUTDOOR ARTS
Specifications for Demised Premises and Common Area
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Specifications for Demised Premises and Common Area
Extent and Expectations of the Core and Shell Finish for Englewood Cultural Arts/Museum of
Outdoor Arts and David Taylor Dance Studios:
Flooring
• Floors shall be Sealed Concrete.
Exterior Walls
• Existing furring shall be removed leaving exposed existing concrete block walls and reflective
glass block.
• Damaged existing glass block shall be repaired or replaced.
Interior Separation Walls
• 2 Hour wall construction East of the North Main Stair shall be 3 layers of 5/8" Type-X gypsum
board on the stair side and 2 layers of 5/8" Type-X gypsum board on the tenant side of 6" metal
studs w/3-1 /2" sound attenuation insulation.
• 2 Hour wall construction at Existing Exit Stairs shall be 2 layers of 5/8" gypsum board on each side
of 6" metal studs w/3-1 /2" sound attenuation insulation.
• Remaining 1 Hour walls shall be constructed of 1 layer of 5/8" Type-X gypsum board on each side
of 3-3/8" metal studs w/3-1 /2" sound attenuation insulation .
Frames (Door and Window)
• Access door frame shall be 45 min. hollow metal frame .
Ceilings
• Existing exposed structure and metal decking has 2-hour spray on fire proofing throughout. Fire
proofing damaged during demolition or construction will need to be repaired by tenant.
Mechanical
• Exposed ducts of supply and return air to be provided to satisfy minimum code requirements.
Electrical
• Lighting shall consist of strip fluorescent tube lighting to satisfy minimum code requirements.
• No additional electrical tie-ins are to be provided.
Plumbing
• Existing sanitary, roof, and overflow drains in space to remain.
• No additional plumbing tie-ins are to be provided . City will size plumbing to provide for
additional restrooms.
Fire Protection
• Sprinkler supply lines and heads to be exposes as is. Piping changes and heads will need to be
relocated to fit proposed construction.
Elevator
• No access shall be allowed to South East Employee Elevator.
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EXHIBITF
TO
GOVERNMENTALAGREE1\1ENTANDSUBLEASE
between
THE CITY OF ENGLEWOOD, COLORADO
ENGLEWOOD ENVIRONMENTAL FOUNDATION, INC.
AND
THE MUSEUM OF OUTDOOR ARTS
List of Artwork to Be Displayed at CityCenter
PUBLIC ART FOR INSTALLATION IN ENGLEWOOD CITYCENTER
Permanent Installations :
1-Porcellino
I-Resistance
2-Marzoceo Lions
2-Greek Dogs
I-Windsong ill
I-Brooklyn Bridge
I-The Fence
I-Bronze Bear
I-Child of Peace
2-Two untitled paintings by Joe Snyder
Tota l 13
Temporary Installations :
I-Spheres
I-Marble On My Mind
I-Gossips
I-Luke the Evangelist
1-Two Open Trapezoids, Excentric V.
Total 5
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EXHIBITG
TO
GOVERNMENTAL AGREEMENT AND SUBLEASE
between
THE CITY OF ENGLEWOOD, COLORADO
ENGLEWOOD ENVIRONMENTAL FOUNDATION, INC.
AND
THE MUSElm'I OF OUTDOOR ARTS
Artwork Installation Plan
(To be added to Agreement at its completion)
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EXHIBITH • TO
GOVERl~NTAL AGREEl\1.ENT AND SUBLEASE
between
THE CITY OF ENGLEWOOD, COLORADO
ENGLEWOOD ENVIRONMENTAL FOUNDATION, INC.
THE MUSEUl\il OF OUTDOOR ARTS
01<{ tJ . ti/ct ... c.e_,
ResglutieA of the City Council of the City of Englewood, Colorado
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EXHIBIT I
TO
GOVERNMENTAL AGREE1\1ENT AND SUBLEASE
between
THE CITY OF ENGLEWOOD, COLORADO
ENGLEWOOD ENVIRON1\1ENTAL FOUNDATION, INC.
AND
THE :MUSEUM OF OUTDOOR ARTS
Resolution of the Board of Directors of Englewood Environmental Foundation , Inc .
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COUNCIL COMMUNICATION
Date Agenda Item Subject
November 8 , 1999
5 a i
Agreement and Sublease with the
Museum of Outdoor Arts for space
at the Englewood Civic Center
INITIATED BY STAFF SOURCE
City Manager's Office Michael Flaherty, Assistant City Manager
COUNCIL GOAL AND PREVIOUS COUNCIL ACTION
In 1998 City Council designated approximately 15,000 square feet of space on the second floor of the Englewood
Civic Center for future cultural uses. This action is requested to finalize a sublease agreement between the City
of Englewood, the Englewood Environmental Foundation, Inc. and the Museum of Outdoor Arts (MOA) for
approximately 7000 square feet of space in Civic Center for operation of programs of the Museum that will
benefit CityCenter Englewood.
RECOMMENDED ACTION
Staff recommends council approval of a Bill for an Ordinance to enter into an agreement with MOA. The
agreement covers terms and conditions of the sublease agreement and commitments of the City and MOA
relatiave to the use of space at the Civic Center and placement of artwork and other programming throughout
CityCenter Englewood.
BACKGOUND
In an effort to activate and energize CityCenter Englewood and to provide for a unique character to the
development, the City has explored opportunities for cooperation with cultural organizations at CityCenter.
The Museum of Outdoor Arts was approached last year a potential tenant for Civic Center. Based on the
operations of MOA, which include an exceptional art collection, educational programs and entertainment,
the City seeks to enter into an agreement with MOA. Over the past several months discussions and
negotiations between MOA and City staff have been actively pursued. The proposed agreement is the result of
these joint efforts.
FINANCIAL IMPACT
The financial impact of the MOA agr8ement are summarized as follows:
To City by MOA
Valuation of loan artwork
Capital investment
Annual exhibits and events at CityCenter
Englewood resident discount programs
$ 1,000 ,000 (approximate appraised value)
$ 500,000 (estimated cost)
$ 50,000 (minimum)
Working with Englewood Cultural Arts Commission
to establish
To MOA by the City of Englewood
Art installation expenses (one-time expense)
Annual appropriation
Utilit ies & maintenance -in kind
LIST OF ATTACHMENTS
Bill for an Ordinance
Proposed agreement
Agreement summary/fact sheet
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$ 100,000 (maximum expense-MCA to pay balance
$ 96 ,000
$ 30 ,000 (based on sq. ft. calculation)
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MEMORANDUM
To:
Through:
From:
Date:
City Council
Gary Sears, City Manager /I'{
Michael Flaherty, Assistant City Manager .
November 4, 1999
Subject: MOA Proposed Agreement
BACKGOUND
In 1998 City Council designated approximately 15,000 square feet of space on the second
floor of the Englewood Civic Center for future cultural uses. The goal of the Council
through the ir action was to activate and energize CityCenter Englewood and to provide
for a unique character to the development. The City explored various opportunities for
cooperation with cultural organizations at CityCenter. The Museum of Outdoor Arts was
approached last year as a potential tenant for Civic Center. Based on the operations of
MOA, which include an exceptional art collection, educational programs and
entertainment , the City seeks to enter into an agreement with MOA. Over the past
several months discussions and negotiations between MOA and City staff have been
actively pursued. The proposed agreement is the result of these joint efforts.
ISSUES/PROPOSED RESOLUTION
The primary issues raised in coming to agreement with MOA are as follows:
First, the cost to MOA for build-out of the space has become significantly more than they
had originally projected. MOA had originally budgeted $280,000 for building out their
space. The actual cost is now estimated at nearly $500,000, due to the City requiring
MOA to provide finished ceilings and HV AC and electrical distribution and MOA
agreeing to fund 1/3 of the cost for improvements to the common area, including
additional restroom facilities. However, in order for MOA to be able to finance their
improvements, they are requesting that the annual appropriation for their CityCenter
operations be increased from $84,000 to $96 ,000. Assuming that that the actual cost of
improvements completed by MOA is $500,000, the increased contribution would cover
the incremental cost of improvements within 20 years, the maximum term of the
agreement with extensions.
The second issue relates to the City's Tabor restriction that allows only for obligations for
which annual appropriations have been approved . Because of the amount of capital
investment being made by MOA, the management and Board of Directors is requesting
Printed on Recyc led Paper. 00
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some form of security in the event that the City fails to make an annual appropriation for
MOA before their improvements are fully amortized . MOA has proposed that, in the
event that the City fails to make an annual appropriation, the City would be required to
repay , in a lump sum to MOA, its unamortized capital investment, based on a ten year
amortization but allowing an additional annual deduction of $12, 000 to account for the
City's increased annual contribution .
To legally commit for repayment in the event the City defaults will require the City to
reserve funds, in a restricted account, for this purpose . A schedule of required City
reserves over the ten year amortization period is attached .
In response to a question raised by Council member Garrett, repayment of any
unamortized expenses of MO A will occur only if the City defaults . MOA is not entitled
for repayment of unamortized improvements if they fail-or chose not to exerci~e their
initial option for extension.
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Schedule of City Reserve for MOA Contract
Year Annual Payment Default Payment* % Not Amortized Reserve Reauirement
2000 $ 96,000 NIA 100 % $ 500 ,000
2001 $ 96,000 $ 500,000 -$ 12,000 x 90% $ 439,200
2002 $ 96,000 $ 500,000 -$ 24 ,000 x 80% $ 380,800
2003 $ 96,000 $ 500,000 -$ 36,000 x 70% $ 324,800
2004 $ 96,000 $ 500,000 -$ 48,000 x 60% $ 271,200
2005 $ 96,000 $ 500,000 -$ 60,000 x 50% $ 220,000
2006 $ 96,000 $ 500,000 -$ 72 ,000 x 40% $ 171,200
2007 $ 96,000 $ 500,000 -$ 84,000 x 30% $ 124,800
2008 $ 96,000 $ 500,000 -$ 96 ,000 x 20% $ 80,800
2009 $ 96 ,000 $ 500,000-$108 ,000 x 10% $ 39,200
2010 $ 96,000 $ 500,000 -$120,000 x 0% $ 0
" * Assumes actual capital expenditures by MOA are the maximum $500 ,000 .
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AGREEMENT SUMMARY'" AND FACT SHEET .
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THE MUSE UM OF OUTD OOR ARTS
Attractions at CityCenter ...
Number of Art Pieces ...
Va lue of Public Art ...
Market Rental Value of Art
Exh ibits and Performances ...
Programs for Youth ...
Number of students ...
Discounts for Englewood Residents ...
Location at Englewood Civic Center ...
Number of Staff ...
Hours of Operation ...
Lease Agreement ...
Parking Requirements ...
MOA's Upfront Capital Costs ...
MOA's Annual Operating Budget ...
Annua l City Co ntribution ...
Art Installation Expense ...
Pub lic art, art education, exhibitions,
performances, tours, special events
13 permanent, 5 rotating
$1,000,000+
$100,000/year
$50,000 minimum annual budget
Classes, tours, performances, competitions,
special events
4,000+ students & teachers/year
Working with the Cult ura l Arts Commiss ion to
establish a resident discount program
Second floor, approx. 7,000 sf
50 FT & PT staff /teachers/ docents
Currently Mon.-Sat., but ta ilored to
CityCenter needs
5 years, plus three 5 -year options
40 shared spaces (w hich are accounted for in
the City's parking management plan)
$500,000 (Paid by MOA)
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$500,000 minimum, currently $1,000,000
$96,000 plus in-kind services est. at $30,00,
$100,000 by City, any additional by MOA