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Home My WebLink About1999-11-08 (Special) Meeting Agenda- • November 8, 1999 Special Meeting -HOA .. • • - 0 .. ,. .. '• ... • t . ' . - '9 ~ _... • ).!,":, ,, .. • . . • -.. SPECIAL MEETING OF CI TY COU CIL NOVEMBER 8, 1999 ORDINANCE# 59, 60, 61, 62 RESOLUTION # 98, 99, 100, 101 ,· .. ' . .. ,. .. .. ' . .,, 0 • • 0 0 I • 0 32X • • J 0 • ---,----------------------.. ,---------------------~----______ _,_ ,. -·· • J, • -.. ENGLEWOOD CITY COUNCIL ENGLEWOOD, ARAPAHOE COUNTY, COLORADO Special Saaioa All Council Members signed an M ACKNOWLEDGMENT OF RECEIYf OF NOTICE" OF Tiffi "CALL OF SPECIAL MEEITNG AND NOTICE OF SPECIAL MEETING." l. Call to Order The special meeting ofibc Englewood City Council wu called to order by Mayor Bums at 6 :03 p.m. 2. lavocatloa The iDvocatioo wu given by Council Member Nabbolz. J . Pledae o1 ADepuce The Pledge of Allegianc:e was led by Mayor Bums. 4 . lilllll Call Present: Absent: A quorum wu present Also present: Council Members Nabbolz, Grazulis, Garrett, Bradshaw, Habenicht, Waggooer, Bums None City Manager Scars City Attorney Brotzman Deputy City Clerk Castle Deputy City Clerk White Assistant City Manager Flaherty Recreation Services Manager Hultberg Mayor Bums staled that this is a special meeting. which bas been noticed, and Council is allowed to consider only the item on the Agenda. .5 . Rqular AFada (a) Approval of Ordinances OD Finl Reading (i) Assistant City Manager Flaherty presented a recommendation from the City Manager to adopt a bill for an onlinaoce authorizing the aa:epWICC of an agreement and sublease between the MIIICWII of Ouldoor Arts, the Englewood Eovironmenlal Foundation, and the City of Englewood . He staled that Council bas desipaled approximalely 1.5,000 square feet of the second floor of Civic Cent« for cultural wa. He said the acuoa tonight is rcqucllCd to finaliu the sublease that we have been working on with the Mwieum of Outdoor Arts for the put several weeks. and going back several months in terms of communications. Regarding the buic lffml of the agreement, it is a five year agreement, with three five year options. The MIIICWII of Ouldoor Arts will provide to the City, thirteen permanent pieces and five revolving pieces of artwork, to be placed in the CityCenter complex. Mr. Flaherty stated that the artwork bas a valuation of approximalcly SI million. He said that MOA, in terms of tenant finish-out of their space, ,. ., . ' I • 0 • • I 0 • Englewood City Council November 8, 1999 Pagel I¥•' p .,-. • • - .. ,. ... will make a capital investment of approximalcly SS00,000.00. That figure has not been finali7.Cd yet, but based on the aquarc foocage and the amount of work to be done, that is the estimate that we have been provided with. Mr. Flaherty said that includes about $72 ,000 .00 of common area space improvements on a shared basis with the City and with the other potential user of the space on the second floor . the other cultural user. He said. in addition. MOA will provide annual exhibits and events al CityCemer "ith a value ofSS0,000.00 a year and 11iU work with the Englewood Cultural Arts Commission to establish special rates for Englewood residents for their programming. The City will provide for an installation expenses of a maximwn ofSI00,000.00 , and that is a one time expense. The MOA will pick up an y expenses over $100 ,000 .00 and the City will make an annual contribution to MOA of$96,000 .00 . Additionall y, we anticipale that the in kind services provided for that portion of the building will be approximatel y $30,000.00, be said. Mr. Flaherty DOICd that the Council packets included a Council Communication of the propoml c::onuact and council bill. A memorandwn that discusses various issues that we got into in the negotiations of this conttact and the proposed resolution of those issues, including the reserve that would be set aside u part of the agreement to aa:onunodatc the amortiration of the MOA improvements over a ten year period. He asked Council to nolice the additional $12 ,000.00, thal MOA requested to meet the full demand& of the space improvements, ue deducted on an annual basis from the amortization so we have a somewhat accelerating amortization because our contribution went up from $84 ,000.00 to $96,000 .00 . There is also a contract summary and fact sheet attached thal is an updaled fact sheet on the Museum of Outdoor Arts programs and services as well as the contribution by the City towards this contract. Mr. Flaherty stated that, if there were any questions, be would be happy to answer those. He said there was a representative from the musewn here this evening and he also knows that Council "ill be holding a public comment session on this contract on November 22nd, so if Council would like to hold their questions for then. that would be fine . Mayor Bwns DOied the schedule of rese,ve was a little difl'erent than .tiat was discussed previously. He said they were talking about $50,000.00 a year the last time they talbd about this, and this schedule amortiz.cd it a liUJc slower to begin with, but it accelerates faslcr than $50,000 .00 a year at the end. Assistant City Manager Flaherty said that is because we U'C deducting the S 12,000.00 incremental contribution that we make directly to MOA on an annual basis. 1bat goes from twelve to twenty-four to thirty-six to forty<ight. so it does accelerate it somewhat. Council Member Garrett stated that it is always going to be $50 ,000.00 a year . We ha ve just taken out the twelve additional payments. Council Member Waggoner stated thal thal was what Mr. Garrett had asked for . Mr. Garrett said that was not exactly what he asked for but it must have been the compromise negotiation. Mr. Flaherty said that they also responded in the memorandwn to Mr. Garrett's question, in the event that MOA would cboole not to pick up their initial option, there would be no payment to MOA, unless the City defaults. If they fail to exercise their first option, there would be DO amortization owed to MOA, and at the second option period, al the end of tea years, they an: fully amortized. Mayor Burns asked about an article in the conuact, number nine, on hal.ardous materials. The definition includes paints and solvents, and it seems there might be a lot of thal around a classroom of the arts. He said he 1w 1CCD the classrooms of MOA and was UIISUl'C if they use ordinary oil paint or acrylic paint or whatever, but those should be recognized . It says that DO ha7..ardous malerials may be brought in. kept or disposed of, on the premises. He opined that you have to have some paint. acrylic and things like that in there . Assistant City Manager Flaherty said Mayor Bums was correct and thal he was assuming this is our standard language. We may aced to make aa:ommodations if it includes all types of paint. Mayor Bwns added there should be -kind of agreement as to how that will be contained or used or disposed of according to certain standards, as those kinds of malerials would certainly be there . . .. I • 0 ]- • • Englewood City Council November I. 1999 Page 3 l • .. ~ .. • /' . • • • -... ... Council Member Onzulis said sbc noticed. Wider definition of haz.ardous material, ii did exclude CX1111J11e1cia1 med cleaning lllllerials in ordinaly quantities . She asked if this would be like cleaning type things for brushes or arc they talking more about indulb'ial things, such as for cleaning. Mayor Bums IIIICd that be lhoughl they were talking about Public Works building maintenance. Ms . Grazulis aid nllhcr lban I 1111111 dling or IUlpCllline or something like that. Mayor Bums said that just Ilka care or commercial solvents in ordilwy cleaning operations. Mr. Flabcrty Slated that he thinks it is preny clear we will need to wort out some details with MOA and particularly for dilpOIII or paints and IOlvcnts and the like. He said he assumes that MOA is disposing of their maaerial& in I reasonable manner now . We will certainly talk to them and sec what those processes arc and make sure that they meet the laws or the City and of the Stale. Council Member Bradshaw lllled that, in mme cues when people dispose of har.lcdous malcrial , whoever is in clwge of' disposing or it has their name on the container. She asked if that was whal we were doing here, on 9.3. Assistant City Manager Flaherty Slated that the City Attorney brought to his attention lhal 9 . I indicates that, if MOA keeps or uses any hazardous materials on site. it is their responsibility to comply with the laws in terms of their possession, storage use and disposal . Mayor Bums said that might cover ii there . Mr. Flabcrty said that 9 .3 basically talks about our own construction of the site and our responsibilities to provide them with a clean site to move into. Mayor Bums said that Exhibit F is a list or all the an pieces . He asked if they could possibl y have pbolograpbs or thole, pouibly in I liUlc pacllcl.10 sllow III wbal Ibey arc. He thought Council had seen a number ortbcm, they took I tour, and prol,lbly would recogniz.c some or the names . Mr. Flabcrty said that he would certainly check with MOA and sec if they can provide that for the public meeting 111d perhaps I display of thore u well. He said Ibey have a video that some of the Council members saw when we toured their facility . He said he had asked them to bring their video and ii may make SC111c: for them to also bring pbo«ograpbs of the anwort they arc going to bring on 10 the site . Mayor Bums said that it would be nice if the public could sec what these picocs arc . Council Member Nabbolz agn,ed with Mayor Bums, cspccially with the an in Little Dry Creek, where there has been such hard feelings . She felt it would be very wise if they showed their constituents whal Cowicil is considering pulling in there. Mayor Bums aped. Council Member Bradshaw asked MOA rq,rcscntativc Rodney Lontinc, ifhe was keeping his office at Harlequin Plal.a. Mr. Lontinc said no , this would be the main plant at the Musewn . Ms. Bradshaw said that was unclear, and there is some oonccm about MOA now having two offices. Mr. Lontine said this would definitely be the main and only plant We probably won't even do any of the tours there anymore, he said, and may bring another piece of art over . We arc ninety-nine percent sure of that coming over . Ms. Bradshaw asked if this would be the headquarters for MOA. Mr. Lontinc said yes , eventually it will probably all be here . Council Member Garrett asked, rclali\lC to the CODb1ICI, whal is the City's money being spenl for . He said, for people who do not hive copicl of the c:omact, the 596 ,000.00 the City is sending to MOA is to support MOA '1 educatioall progmm and filcilitics which will be here in Englewood, assist with special events provided within the City, public an dilplayl, and ongoing maiDlmaocc of' art wort displayed in the CityCcntcr. He said the money is IIJPl)Oltll to my here . 1bc ao1y one that is not really qualified as such is • ' .. ' . I • 0 -~-----~--:----------~--------:. .. i---~----------~-~~- • • Englewood City Council November 8 , 1999 Pagc4 • • -.. .... ilem C, but you' II have public art displays outside the City limits. He said he did not know if we could modify ilem C, under 16.1, to say public art displays within the City. He said everything else is qualified with wbal is going to be baR)mi113 here in Englewood wl ID, we would like our tax dollars to stay here . Mr. Garrett said that is the only one that does not seem to have a qualification and you will have some public art displays outside of the City. Mr. Lootinc said that he did not know bow we would diffcrcntialc that, from an audit point of view. He said that he knew that with the SS0,000.00 they arc definitely showing that they are committing to specific programs, that there is going to be an audit and bow it is going to specifically rclale back . He said the majority of the other portion of that is going to be specifically just for maintenance of the an work at the City. Cumutly tbo&c pieces arc leased ID dilrcrcnt buildings for more or less an offset. He said those monies arc spccifically used ID maiDlain the pieces. Council Member Garrett said that MOA has already committed ID do that, so, whether you can audit or not is a different issue. He said be would just like ID qualify what he had referred to in the contract Mr. Lontine said yes, if lbcrc is • easy way that does not open it up ID a lot of things. Mr. Garrett said that be did not want ID plaClc a burden on MOA. but, ralhcr, his inlent was to make it clear that this $96,000.00, that the City is paying, is going to be used here. Mr. Lootinc said right, wl that was the intent and that goes back to Ms. Bradshaw's question. this will be our main site. Council Member Bradshaw said there would be programs open to Englewood citizens that our Recreation Department docsn 't provide at this time. Recreation Services Manager Hultberg said that is primarily correct . Mr. Lonlinc ~ tbat they llave yet to lit clown with their commislion and work this thing out We have had intenal mcetinp, be said, wl we have talked about everything from free classes for Englewood citizens ID di11COW1ts to a whole laundry list of things. He said they arc just waiting for this to get done. Ms . Bradshaw llated that what we arc getting for our dollars is an illUC with our citizens. Because wc do not have prognms of this IIIIUrc, il does not equate in their mind with the dollar value . She requested that Mr. Lonlinc do _,..,.bing ID prclCIII that in a much more a>naete way . Mr. Lontinc said they plan oo having a list of all the different classes and the brochures on the classes, the cost of the classes wl a IChcckilc that says, these arc all the classes otrcrcd in other pans of the City and County and where we fall from a aJSI stand point But above and beyond just the classes that arc going to be offered, it is going to be real lpCCific tbal there arc going ID be programs wl art exhibitions that arc definitely going ID be free . Ms . Bradshaw llated that if they put a dollar 8DIOWlt on how much each of tbo&c programs would be, if we were .. ying for it, that were going to be free, that would belp too. Mr. Lonlinc said that is why we asked bow we would quantify something, without saying wc will do this and this. They may change every year, and wc may know where about $12,000.00 of that $96,000.00 is going, but then for the rest of it, wc know that fifty thousand of it is going immediately back and it has to be audited CVCrY year. He said there is only another $30,000.00 that is going to go pretty much into just maintaining the art collection. so, it is pretty well already laid out. Ms . Bradshaw llated that, for a DOIi-art person. it is not clear at all. She said it looks like wc arc totally subsidizing the MOA. ID some of our constituents. Mr. Lontinc said irnowtialcly, right off the top, SS0,000.00 is coming back CVCrY year. ' < .. I • 0 -------~--------.,...._---------:. .. ,----------------~-- • • • Englewood City Council November 8, 1999 Pagc5 • • -... Council Member Garrett said, in the meeting of November 22•, someone should get up and say this is the money and this is where it is going. Ms . Bradshaw AlggeslCd having handouts, also . Mr. Lontinc said, out ofthal, right away fifty comes back in these types of programs, be it classes, performances, or what have you . Council Member Bradshaw said to show, if MOA was not here, bow much these programs would cost Mayor Bums suggested that tonight or somcwberc in bctwcco, that Mr. Lontine get veiy specific in the benefits that an: being given to the cilimls, 111d the opportunities ror the citil.CIIS, especially the children, to pal1icipalc in these programs. becaUle that ques&ioll bas been ubd many times, too. He said the more specific and the more direct Mr. Lootinc can get with that, the better people will Wldcrsland what you arc providing and what they an: getting for their tax dollar. Ma. 8radlbaw said -have -families that cannot afford shoes, and this looks like this is a big, huge luxury . She said she knew -priorities in families arc clifferelll, but she does know that that 's a complainl she bas bcanl, that they can barely keep their kids in shoes and clothing and here is the City subsidizing this . And they an: not looking at just the annual rec , they arc looking al a million doll.in or $500 ,000 .00. Mayor Bums said especially if the programs arc free to the kids, because he feels that once they start to parucipaac, they will really sec the value or the programs, they will bring ii back to the parents. Mr. Lontinc said that that was discussed in the Slaff meeting just this week, something free , so they show up and it also gets them in the habit of coming in and taking advanl.agc of it We have not met with the An Commiaion, IO WC don't Wlllll to decide anything. Ms. Bradshaw said thal she wldcrstood that. Mr . Lootinc said that be 111J111ecia1a that 111d they will ti)' to have informalioo out there that helps people undcnland the benefits from a big picture, even bow it atrcru their life . Ms . Bradshaw said it is not just kids, it is the rest of the population and bow someone in their thirties might benefit from MOA . You need to hit the people who vote, also, she added. because there will be a push to put this on a ballot. Council Member Nabholz ubd Mr. Lontinc if they had not discussed at one time the possibility or reduced raics for some of the classes. Mr. Lontine said they were, hopefully, going to ti)' to do both. Mayor Bums suggested that it would be very beneficial if they were to make it easy for people to start the propam1. Mr. Lootinc qn,od. maybe IIOl a cliSCOWll, but perbapl a reason for them to get used to doing il We did a lot ofbrainslonning. he said, 111d there will be a dilCOUllt, but we were trying to think whal else we might do. Council Member Bnldlbaw said the COlllpa1lbles jllll an: not there for the programs MOA provides, because they an: one of a kind programs. That needs to be stated. also, she suggested. Council Member Habenicht said she had two questions . At one poilll, pan of the deal was that MOA would guaninlCC an annual budget of $500,000 .00 while in Englewood . She asked also if Mr. Lontine knew bow many jobs they would be bringing in, suggesting possibly two to seven. Mr. Lontine said it would be more than that, depeoding on whether you count all the teachers, and we have a full-time Slaff. We have also been working with the City Slaff to put together a sheet that will list the number of classes, types or performanocs, something that would be easy to look at and ror people to know what they will get Thal would include Slaff members, nwnber of teachers, and that son of thing, he advised . • .. I • 0 • • l v • ~ -• ,~ ..... .. ·, • -' ... Council Member Habcaicbl askcd Mr. Flaherty, if the City were to pay to finish lbal I S,000 square feet. wbc:dler it CIOll • about $500,000.00 . Mr. Flabaty said yes, there: is really very lialc cliffcrencie between the type of finilh thM -are providillg in the Civic Center 111d what MOA will be providing. 'Ibey are bMically providing offi<lCI • -11 • some llrFf illllnlCtioaal roo1m. We are looking • S60 to S80 per IQllll'C foal far fillisll in tbal building. 111d MOA is in that IIIIIC ballpark. be said. Ms . Habenicht said. if we wae to lilli* dlll ilr our own pogramming. we would have to put that much money in up fi'ont ounelves. Ms. Hlbeaick aid her undentanding -that the Certific:ates of Puticipalion require tbal we can not utiliD: tbal space far putting in commercial businesses. City Auomey Brotzman said thal is colTCCl . Ms. Habeaicllt aid we would not be able to put a commercial enlerpril: in tbal space because of the Ca1ificatcl of Panicipalioo. Mr. Flaherty said that is correct, adding that be did not believe we would want to put COIIIIIICll:ial ill there:. Ms. Bradshaw said that needs to he said loud 111d clear also. Council Member Bradshaw askcd if the City is allowed to enter um an agrc:ment that obligates us for lWCllly yc:an. City AUOmey Brotzman respoadcd that this is why the reserves are set up as they ar:. There is a lepl aa,....ait becauae you have the reserve issues, be aid. There is a TABOR problem •ith multi- year filCal oblipliom. 111d that is why you have the reserves. Finre Councils can ope out of this contract. be aid, 111d tben you would go to that IIChedule 111d that amount is paid. Council Member Habenicht asked bow this differs from a lCVCllly-five year lc:uc agrcc:ment with Miller Weinptm. Mr. Brotzman said, for on: thing. they arc paying us . The key is. the City , in this case , would he paying out the money . But. Ms. Habenicht said, we arc obligating us to tbal amount of money . Mr. ~ aid you do DOI have to appoprialc any money wm thole cin:umltanc:a. Mayor Bums added tbal dlere is an icdq,codr.nl approprialioc made for that each year . City Auomey Brotzman said that is aina:t. '111c Dcpuly City Ciak Rilld die CIOUIICil bill by title : COUNCIL BILL NO . 70, INTRODUCED BY COUNCIL MEMBER ORAZULIS A BDJ. l'Oll AN ORDINANCE AU'J1fORIZING 11IE ACCEPTANCE OF AN AGREEMENT AND SUBLEASE BETWEEN 11IE MUSEUM OF Ol1IDOOR ARTS (MOA), 11IE ENGLEWOOD ENVIRONMElffAL FOUNDATION, INC. (EEF) AND 11IE CITY OF ENGLEWOOD, COLORADO (CITY). COUNCIL MEMBER GRAZULIS MOVED, AND IT WAS SECONDED, TO APPROVE AGENDA ITEMS (a)-COUNCIL BILL NO. 70. Molion carried. Ayes : Council Members Nabholz, Grazulis, Gam:tt, Bradshaw, Habenicht, Waggoner and Bums Nays : Non: 6 . Mjell,.... COUNCIL MEMBER BRADSHAW MOVED TO ADJOURN . The meeting adjourned at 6 :30 p.m. '~~ ' ,. ' I . 0 I ·.o- l • .. • ,. ....... '· • •• AGENDA FOR THE SPECIAL MEETING OF THE ENGLEWOOD CITY COUNCIL MONDAY, NOVEMBER 8, 1999 6:00 P .M . 1. Call to order. (p : 0 3 p . M . 11/~/ 2 . Invocation. /UL...-,~ 2) 3. Pledge of Allegiance. Q,wvk4 4 . RollCall. 1~ 5 . Regular Agenda . .. ... ., ~~JJA a. Approval of Ordinances on First Reading. . -r:J~+~../fD ~ Recommendation from the City Manager to adopt a bill for an ordinance 1)\i,.N"' . o.'. O fi authorizing the acceptance of an agreement and sublease between the rf{) City of Englewood. STAFF SOURCE: Michael Flaherty, Assistant City ~ D ~ Museum of Outdoor Arts, the Englewood Environmental Foundation , and the ~\ ~ l Manager. PleaN note: H you have a dlublllty and l1Nd auxiliary aids or Nl'Vlces, pleue notify the City of Englewood (303-762·2405) at INat 48 hours In advance of when NrVlc:H are needed. Thank you . • . ' ' I . 0 • • ... •' ...... ,. ..-·· • • - CALL OF SPECIAL MEETING AND NOTICE OF SPECIAL MEETING .. I, Thomas J . Bums, Mayor of the City of Englewood , Colorado , hereby call a Special Meeting of the Englewood City Council at the Englewood City Hall Council Chambers to be held on Monday , November 8 , 1999 at 6 :00 p .m. to address the attached agenda. ACKNOWLEDGMENT OF RECEIPT OF NOTICE The following persons, all Council Members of the City of Englewood, do hereby ledge re · t otice of the above si>e:ci'iat'!;ess '· Printed on Recycled Paper, -.. ., " I . 0 o- • 1) Call to order. 2) Invocation . • • • •• .. AGENDA FOR 11tE SPECIAL MEETING OF 11tE ENGLEWOOD CnY COUNCIL MONDAY, NOVEMBER 8, 1999 6:00P.M. 3) Pledge of Allegiance . 4) Roll Call . 5) Regular Agenda. i) Approval of Ordinances on Rrst Reading .... .. (a) Recommendation from the City Manager to adopt a bill for an ordinance authorizing the acceptance of an agreement and sublease between the Museum of Outdoor Arts , the Englewood Environmental Foundation and the City of Englewood . Staff Source: Michael Flaherty, Aulatant City Manager. 6) Adjournment. Pnnled on Recycled Pai:,«. , .. ., ·• \ • I I I . • 32X • • • ORDINANCE NO ._ SERIES OF 1999 • .. • - BY AUTHORITY A BILL FOR ... bR,· COUNCIL BILL NO. 70 INTRODU~Y CO~L MEMBER~< AN ORDINANCE AUTHORIZING THE ACCEPTANCE OF AN AGREE'.\1ENT 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 Englewoo d Civi c Center for cultural uses ; and WHEREAS , in an effort to a ctivate 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 CityCe nter: a nd WHEREAS. the Museum of Outdoor Arts wa s approached las t yea r a pote ntial tenant for Civic Center; and WHEREAS, the operatio n s of '.\10A . include an exceptional art collection . educational programs and entertainment; and WHEREAS , over the past several months discussions and negotiation s betwee n MOA , EEF and City staff have been actively pursued: and WHEREAS, the passage of this proposed Ordinance will final ize 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 l. The acceptance of the Agreem e nt and Sublease between the City of Englewood , Colorado, Museum of Outdoor Arts and the Englew ood Environmental Foundation, Inc . for space at the Englewood Civic Center, attac hed as ·'Attachment !". is hereby accepted and approve d 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 fir s t reading on the 8th day of November, 1999. -1- ' " I • 0 .]- • • • -· • ' ' } }. ··-.. .. • -.. ... ~ Published as a Bill for an Ordinance on the 12th day of November, 1999. Thomas J . Burns, Mayor ATTEST: Loucrishia A. Ellis, City Clerk I, Loucrishia A. Ellis, City Clerk of the City of Englewood, Colorado, hereby certify that the above and foregoing is a true copy of a Bill for an Ordinance, introduced , rea d in full, and passed on first reading on the 8th day of November, 1999. Loucrishia A. Ellis -2- -., o ' ', ' ,,; ., ' .. .. • . I • 0 -- • • • • _ .... , • -.. GOVE~IENTALAGREEMENTANDSUBLEASE .. ' ... nns GOVER.'-IMENTAL AGREEME~"T AND 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 01.1,ner and transferred CiryCenter to EE F which is now the fee title holder . C. As part of the redevelopment of Cinderella City , the EEF will de \el o p C ityCenter and CITY will lease offices in the Civic Center Building, a redevelopment of the former Foley'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 §50!(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 displayed art coUection presently located in Greenwood Village, Colorado, and MOA is engaged in educating children and adults in the visual and performing arts . E. In furtherance of the redevelopment of Cinderella City , Englewood desires to have MOA move its presence to the CITY to be situate in the CityCenter. 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 . B. 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. IM1Np.1 941l41 ,I Now), 1"9 · l )6 pm I A t t a C h n e n t 1 .. , • J I .. ., .. I . 0 32 ·.]~ • -. • " .,,-. • 'ii . • •• L The City Council of the City of Englewood and the Board of Directors of EEF 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 ITR\<I I.I Demised Premises. In consideration of the rents, covenants and agreements here in reserved and contained on the part ofMOA to be performed , CITY does hereby sublease and dem ise 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 I 000 Englewood Park-way , Englewo od. Colorado , which premises (hereinafter called ''Demised Premises") are also known as '·Mu seum Space". The Demised Premises contains approximatel y 7,000 square feet of rentable space as sh own on Exhibit D. 1.2 Tenn. The term of this Agreement and :vtOA's obligation to pay rent hereunder sha ll commence upon occupancy by MOA (hereinafter referred to as the "Occupancy Date ") and sha ll terminate at 12 ·00 midnight, on May 15, 2005 , unless extended pursuant to Article XIV . Occupanc y by MOA means the first date MOA conducts business in the Demised Premise , and the Occupanc y Date shall be no later than :Vlay 16, 2000 ARTICLE ll Rr:IT 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 term "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 day 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 . -2- I • 0 . ] • • -. .. ~ -·· • 1•. 1 .. .... • -.. ARTICLE ID CONDIDON OF PREMISES .. 3.1 Englewood's Obligations. At its cost, Englewood shall deliver to '.\10A the MOA Space as provided by the specifications attached hereto as Exhibit E . In the event that '.VIOA 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'.VIOA does not utilize the CITY's contractor to make improvements, the '.VIOA 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 '.\10:\ at '.\!OA'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 regulat io ns of CITY CITY shall grant to :'v!O . .\ all required building permits, subject to compliance with CITY bu ildi ng code requi rements (a) All alterat io ns . ad di tio ns or improvements made by eit~er party at the expen se of'.VIOA (except only movable office furniture and other personalty not attached to the Buildi ng ) sha ll be deemed a part of the real estate and the property of EEF and shall re ma in up on and be sur rend ered with the Demised Premises as a pan the reof without mol estat ion , disturbance or injury at the end of the term , whether by lapse of time or other.v ise (b) All impro vements and remodeling of the Dem is ed Premises shall be accomplished in accordance with the drawings and specifications prepared by '.\10..\'s ar chit ect CITY 's architect will be permitted to re\i ew \'IOA 's spa ce plan and to make recommendat ions , if any , concerning it prior to its appro val by CITY The CITY shall have final appr ov al over the improvement and remodeling of the Demised Premises MO . .\· s contrac to r shall coo rdina te with CITY and other tenant contractors so as not to disrupt or damag e work in other pans of the Civic Center Building . MOA 's contractor shall coordinate wit h the En glewood co nt rJct or in performance of construction of the Demised Premises MOA shall not be entitled to occup y the Demised Premi ses until a certificate of occupancy has issued Barring unforeseen circumstances , '.\'IOA shall comp lete all improvements by the sixteenth da y of:v!ay, 2000 . (c) Should CITY or EEF receive notice of, or should there be recordation in the real estate records of Arapahoe County, Colorado of, any materialman's or mechanic 's lien on the CITY ' s or EE F's property as the result of any work performed , or materials pro vided , for or on behalf of, MOA . MOA shall, upon receipt of written notice from CITY or EEF , immediatel y ha ve such lien releasea If, for any reason, MOA is unable to obtain a release of sa id lien within thirty da ys of CITY or EE F'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 EE F'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 follo\ving 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 . Should MOA obtain a release of the lien after making the cash depo si t, the entire balance of the cash deposit shall be paid to MOA upon receipt by CITY or -3- ' . ,. • ' I • 0 • • . -. • ~ --· • .. "1-: .. • -' EEF of satisfactory proof that CITY or EEFs 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 an y 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 com. (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 displa y 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 obta in the commitment shall render this Agreement null and void . 3.3 Common Premises Improvements. The common area of approximatel y 1,0 00 square feet described in Exhibit E adjacent to the '.'vtu seum Spa ce together with bathr ooms re quir ed by the CITY 's Building Code ("Common Premises'') shall be improved by the CITY , MOA and one or more other tenants of the Civic Center Building . Englewood and MOA each ag ree to pursue such improvements through the CITY 's contractor . MOA shall not be re sp onsibl.-: 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 Seventy-three Thousand Dollars . If no third pany 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 des ig n control for the Common Premises which shall be built in ac cordance with plans appro ved by th e CITY ARTICLE IV rsE OF PRDllSES 4.1 t:se of Premises and Business Houn. Durin g the entire term of this Agreement , the Demised Premises shall be used solely for the purpose of the conduct ofMOA 's exempt purposes , its business offices , classes , and other lawful acti vities 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 holidays . 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 maMer , and in strict compliance at MOA's sole expense with all governmental laws, rules, regulations and orders and provisions of insurance underwriters applicable to the business ofMOA conducted in and upon the Demised Premises . -4- ' ., ... I • 0 ] • • " • .. • - ... 4.3 Aff"innative Covenants or MOA Relative to Usage or 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 )\,L.\~JE'.";\'\CE, R£P;\1RS ,\SD SER\,JCES 5.1 By '.\'IOA. MOA agrees that during the term of this Agreement , it will be obli ga ted to make all repairs , maintenance and replacements to all fixtures , appliances and facilit ies furnishe d byMOA. 5.2 By Englewood. Englewood agrees that, \.Vithout extra charge , during the term of thi s Agreement, and in accordance with standards from time to time prevailing for like office bu ild ing s 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, \llill include the daily empt) ,ng 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 :V[OA '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 MOA with no fewer than forty ( 40) non-assigned and shared parking spaces in the parking area ofCityCenter closest to access to the Museum Space . 5.4 Surrender or Premises. At the expiration of this Agreement , MO . .\ shall surrender the Demised Premises in the same condition as exists upon the completion of the MOA improvements, ordinary wear and tear excepted . -5- ., ', I • 0 • ------,----------· .. ·--------------------------------- • I • ~ .... .. . :· ..... • •• ' ARTICLE VI FIXTURES, SIG:N'S. AND ALTERATIONS 6.1 Fixtures. All fixtures of a permanent nature installed by MOA shall be in good condition and have a useful life ofat 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 \ilOA throughout the CityCenter as well as street and building signage identifying '.\10 . .\'s presence and location and identification of classes and events 6.3 Aherations. Subsequent to completion of th e improvements , :\IOA ma y , fr o m ti me to time, during the term, at its own cost and expense , upon written consent of Englewood . which consent shall not be unreasonably withheld , make an y reasonable 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 :\IOA's rights under Section 5 2 CITY agrees to cooperate with MOA for the purpose of securing necessary permits for any changes . alterations or additions permitted under this section . For this purpose , nonstructural alterat ions or changes do not include alterations or changes being made in the '.\1useum Space for the purpose of presenting an art or performance exhibit of a duration of less tLn six months In this latter e\·ent . MOA will not be obligated to obtain consent of CITY . MO . .\ shall be required to obtain permits 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 have no right to make any change, alteration or addition 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 any such work shall be paid promptly by MOA so as to prevent the assertion of any liens for labor or materials . MOA agrees that any improvements made by it (except trade fixtures and unattached signs) shall immediately become the property of EEF ARTICLE VII PUBLIC LIABil.JD' 7.1 MOA's Liability Insurance. MOA shall, during the entire term hereof, keep in full force and effect a policy of public liability and property damage insurance with respect to the Demised Premises, and the business operated by MOA in the Demised Premises, in which the limits of public -6- -.... ,-....-----~------ ' . , . .. • I I • • t • • ..-. • 1.;\", ... • -.. ... ' ... liability shall not be less than One Million and No/100 Dollars (S!,000 ,000 .00) per person and One Million and No/100 Dollars (S 1,000,000 .00) per incident and in which the total damage liability shall not be less than Two Million and :,../o/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 or Insurance shall be delivered to Englewood . 7.2 Worker's Compensation. To the extent required by law , l\lOA shall procure and maintain worker's compensation coverage for its employees . ARTICLE VIII DAMAGE BY FIBI OR OTHER C;\st· UD'. 8.1 Insurance Coverage b~· '.\IOA. '.\IOA sha ll keep the Demised Premises insured against loss or damage by fire , with the usual extended coverage endorsements , in amounts not ess than the full insurable value of the improvem ents thereof 8.2 Additional Coverage by '.\IOA. l\lOA agrees that it shall keep its fixtures . merchandise and equipment insured against loss or damage by fire with the usual ex tended coverage endorsements . It is understood and agreed that '.'v!OA assumes all risk of damage to its own propert y arising from any cause whatsoever , includ ing , without limitation, loss by theft or otherwise 8.3 Protection from Subrogation. Any1hing in this Agreement to the contrary notwithstanding, neither CITY . EEF nor \·IOA shall be liable to the other for any busines interruption or any loss or damage to propert y or injury to or deJth of persons occurring on the Demised Premises or the adjoining propen ies , sidewalks , streets or alle ys . or in any manner growing out of or connected with '.'v!OA 's use and occupation of the Demised Premises , or the condition thereof, or of sidewalks , streets or alle ys adjo ining caused by negligence or other fault of CITY , EEF or MOA or of their respective agents , employees , licensees , assignees , guests or invitees, to the extent that such business intenuption 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 '.'v!OA or two or more of them) or for which such party is otherwise reimbursed ; and licensees and assignees . for any such loss or damage to property or injury to or death of persons to the extent the same is covered or indemnified by proceeds received from any such insurance, or for which reimbursement is otherwise received . Nothing in this Section 8.3 contained shall be construed to impose any other or greater liability upon CITY , EEF or MOA than would have existed in the absence of this Section 8.3. 8.4 Notice. MOA shall give immediate written notice to Englewood of any damage caused to the Demised Premises by fire or other casualty . 8.5 Partial Damage. In case during the term hereof the Demised Premises shall be panially 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 -7- ___ ___,..___ '· I • 0 • • ----~------------------·-.·------------------------------- ,.,-·· • .. .. • -' " 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 complet io n of such work, it "ill 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 directl y 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 casual ty, the risk of which is co vered by insurance , MOA shall have the option exercisable in writing within forty-fi ve ( 4 5) da ys to termin at e this Agreement and deliver to Englewood all insurance proceeds (other than proceeds in respec t of inventory, fixtures and equipment), if any, or to retain this Agreement in full force an d effe ct in which event MOA shall , proceeding with all reasonable dispatch , repair or rebuild the Demi sed Premi ses , to substantially their condition at the time of such damage or destructi on (subject , howev er, to zon ing and building codes then in existence ). For this purp o se the tenn .. inven tory " incl udes. amo ng other things , MOA 's artwork . 8. 7 No Abatement of Operation. MOA agrees that during an y period of re constructi on or repair of the Demised Premises it will cont inue the operati on of its business withi n the De mis ed Premises to the extent practicable . 8.8 Definition of Substantial Damage. The tenns "substant iall y dama ged " and "substantial damage ," as used in this Article , shall ha ve reference to damage of such a char act er as cannot reasonabl y be expected to be repaired or the Demised Premises restored wit hin one hund red and thirty-five (135) da ys from the time that such repair or restoration work woul d be commence d, as certified by a re gistered architect selected by MOA and accepted by Engle wood ARTICLE IX HAZARDOUS ~UTERl.:\LS 9.1 MOA's Representation. MO A agrees that whene ver it, or an y of its age nts , emp loyee s, contractors , licensees or invitees, causes or pennits an y Hazardous \1aterial to be brought upon , kept , used or disposed ofin, about or from the Demised Premises by MOA, the same will be kept , used and disposed ofin a manner that complies with all laws regu lat ing an y such Hazardous Material and the ir possession , storage , use and disposal . 9.2 Definition of Hazardous Material. "Hazardous Material ", as used in thi s Agreement , shall be an y petroleum based products , paints and sol vents , polychlorinated biphen yl, lead , acids, ammonium compounds and other chemical products (excluding commerciall y used cleaning materials in ordinary quantities), and an y substance or material if defined or designated as a hazardous or toxic substance , or other similar term , by an y 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 -8- • I • 0 • ' • ! .. -· • • • 9.3 Englewood's Responsibility for Removal. Notwithstanding the foregoing , if any Hazardous '.\1atcrial was used in coMection 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 . ARTICLEX ASSIGNMENT AND SUBLETTING IO.I 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 necessit y for such consent to any subsequent assignment or subletting . This prohibition against assigning or subletting shall be construed to include a prohibition against an y assignment or sublett ing by operat ion of law If this Agreement is assigned . or if the Demised Premise s or any part thereo f is sublet or occupied by anybody other than \IOA, CITY ma y collect rent from the assigne e. su bles see or occupant, and appl y the net amount coll ected to the rent he~e in re served , and su ch assignment. subletting, occupancy or collection shall be deemed a release of ~IOA from the further perfo rmance by \'IOA of covenants on the part of \IOA herein contained \\i th respect to the assigned or sublet premises . Not\llithstanding the right to ass ig n or sublet herein granted, the CITY shall be permitted to refuse to consent to assignment or sublet unless the CITY ' s obligation under Article X\ 1 is eliminated upon assignment or sublet ARTICLE XI MOA'S DEHt;LJ 11.1 Events of Default. The following events shall be deemed to be events of default by MOA under this Agreement . (a) MOA shall ha ve failed to pay an y instal lment of rent or an y 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 ( I 0) days after written notice from the CITY , or (b) MOA shall have failed to comply with any other pro visions of this Agreement and shall not cure such failure within thirty (30) days after CITY, by written notice , has informed MOA of such noncompliance ; or (c) MOA shall file in an y 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\lOA's property; or -9- ' . . , I • 0 . ] • • .. ~ ,,,- • •' • -' ' (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 (30) days . Upon the occurrence of an event of default , Englewood's sole remed y shall be to cancel and terminate this Agreement . 11.2 Costs, Expenses and Attorneys' Fees . In the event of an y su it inst :tute d by either party to enforce the covenants and agreements co ntained in thi s Agree ment , the pre vaili ng pany in any such litigation shall be entitled to recove r all cos ts , expenses . and reas ona ble att orn eys ' fees that may be incurred or paid as a result of such lit igation . In the event of a compro mi se , ne it he r pany sha ll recover costs, expenses and attorne ys' fees , but such costs , expenses and att orne ys' fees ma y be considered by the parties in reaching a compromise . ARTICLE XII st-BORDNs\JION OR Sl"PERIORID' OF SCBLEs\SE 12.1 Le:ase Subordinate or Superior to Deed of Trust. It is agreed that the right s and interest of MO:\ under thi s Agreement shall be subject and subordinate to an y mortga ge or deed s of trust placed upon the Civ ic Center Bu ilding , to an y and all advances to be made thereunder , to the interest thereon, and to all renewals , modifications , replacements and extension thereof, provided the mortgagee or trustee named in said mortgages or deeds of trust must elect by written not ice deli vered to :VIOA 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 ; howe ver , any mortgagee or trustee ma y elect to giv e 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 (JO) days after demand in writing, MOA does hereby make , constitute and irrevocably appoint CITY as its attorney in fact and in its name , place and stead so to do . -1 0 - ' .... • I • 0 ] -• .. ,--. • • -.. ARTICLEXID MISCELLANEOUS PROYJSIONS .. ... 13.1 Bolding 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 \.\a iv er 13.3 Covenant of Quiet Enjoyment. MOA, subject to the terms and provisions of this Agreement on payment of the rent and observing , keeping and performing all of the terms and provisions of this Agreement on its pan to be observed , kept and performed . shall lawfully peaceably and quietly have , hold , occupy and enjo y the Demised Premises during the term hereof withou t hindrance or ejection by any persons lawfully claiming under Englewood MOA ackn owledges that a dance studio may occupy premises cont ingent to the Demised Premi ses 13.4 Status Reports. Recognizing that both parties may find it necessa ry to estab lish to third parties, such as accountants , banks , mortgagees , or the like. the then current status of performance hereunder , either pany , on the Viritten request of the other made from tim<! to time, \.\i ll promptly furnish a written statement on the status of any matter pertaining to this Agreement Without limiting the generality of the foregoing , MOA specifically agrees , promptly up on the commencement of its business in the Demised Premises , to notify CITY in writing of the date there of, and acknowledge satisfaction of the requirements \.\i th respect to construction and other matters by Englewood , save and except for such matters as ~IOA may wi sh to set forth spec ificall y in sa id statement 13.5 Notice to '.\'lortgagee. Afier receiving written not ice fr om any pers on, 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 mortgage is outstanding be required to give to such holder the same notice as is required to be given to CITY under the terms of this Agreement , but such notice may be given by MOA to CITY and such holder concurrently . It is further agreed that such holder shall have the same opportunity to cure any default, and the same time within which to effect such curing, as is available to CITY , and if necessary to cure such a default , such holder shall have all rights of CITY . 13.6 Invalidation of Particular Provisions. If any term or provision of this Agreement , or the application thereof to any person or circumstance shall , to an y extent , be invalid or unenforceable, the remainder of this Agreement, or the application of such term or provision to person or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby, and each term and provision of this Agreement shall be valid and be enforced to the fullest extent permitted by law . -11- · .. I • 0 • • • ,,... .. • "; .. .. .. ; • - 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 ofMOA 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 panicular assignment as permitted by the provisions of Section l O l 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 t o Englewood at 3400 South Elati Street, Englewood, Colorado 80110 (through May 3 I , 2000 and thereafterto 1000 Englewood Parkway. Englewood . Colorado 80 11 0), Attention : City Ylanager an d to :vtOA at the address of the Demised Premises , with a copy to Sheldo n H . Smith, Davis , Grah am & Stubbs LLP , 370 17th Street, Suite 4 700, Denver, Colorado 80202, or to either party at such o t her 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 sha ll be deemed sufficient notice and service thereof if such not ice to y{QA is in wTiting addressed to ~!OA at the Demised Premises and deposited in the mail with postage prepaid, and if such notice to Englewoo d 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 defi ne , limit o r desc ri be the sc o pe of a ny such section or article and are solely inserted as a matter of co nvenience 13.11 Entire Agreement. This Agreement and any exhibits o r riders made a part hereof constitute the entire agreement between the parties relat ing to the subject matter hereof It is understood that there are no oral agreements between the part ies heret o affectin g this Agreeme nt , and this Agreement supersedes and cancels an y and all previous neg otiations , arrangement s, brochures, agreements or understandings, if any, between the parties hereto or displayed by 1:nglewood 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 ma y be executed in writing between the panies 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 l\!OA to make such repairs, as ma y be required under this Agreement, at MOA's expense . -12- .. : .. I • 0 • • -. ~ ,,,-. • . "•· .. .. • -' ' 13.13 Payment After Termination or Notice. No payment of mone y by MOA to Englewood after the termination of this Agreement in any manner , or after the giving of an y notice to MOA, shall reinstate, continue or extend the tenn of this Agreement or affect any not ice gi ven to MOA prior to the payment of such money , it being agreed that after the service of not ice or the commencement of a suit or after final judgment granting Englewood possession of said premises , Englewood may receive and collect an y sums of rent due , or any other sums of mone y 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 su it or any judgment theretofore obtained . 13.14 Access for Reletting. Englewood may at an y time within ninety (9 0) da ys before the expirat ion of this Agreement , enter the Demised Premises at all reasonable hour s for purposes of offering the same for rent , and ma y place and keep on the window and doors of said pr emi se s sign s advertising the premises for rent . 13.15 Joint and Several Liability . Al l the te nn s, covenant s and cond itio ns contained in this Agreement to be perfonned by either party . if such part y sh all cons ist of more tha n one pers on or organization, shall be deemed to be joint an d several , an d all righ ts and remedies o f the parties sha ll be cumulat iv e and nonexclus i\·e of any other remed. at law or in equity 13.16 Brokers. MO A warrants that it ha s had no deali ngs \!oi th any re:i l est ate broker or agents in connection with the ne gotiat ion of this Agreement, an d that it knows of no other real estate broker or agent who is or mi ght be ent itl ed to a co mmiss ion in connectio n with this Agreement . 13.17 Corporate Authori~·. MO:\ is a Co lo rado not-fo r-p ro fit co rpo ratio n, an d each individual executing this Agreement on behalf of \10A represe nts and war rants th at he is dul y authorized to dul y execute and de liver this Agreement on behalf of \-10 . .\, and that this Agreement is binding upon \10A in accordan ce with its term s 13.18 Copies. This Agreemen t may be exe cut ed in any num ber of copi es all of which shall be deemed an ori gi nal and all of the m sha ll constitu te one and the same agr ee ment . provid ed, tha t. it shall onl y be necessa ry to produce one co py of such Agr ee ment fo r pro of 13.19 Approval of City Council. CITY represents an d warrants that al l of the term s of th is Agreement ha ve been re vi ewed and app rov ed by its Cit y Counc il, that an appropriate res ol uti on has been adopted by the City Counc il authorizing CITY to enter into this Agreement , that the per son executin g this Agreement on behalf of CITY ha s full authori ty to do so , and that the acti ons of the Ci ty Council are su ch that this Agreement shall remain in full force and effect in ac co rdance wit h 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 provi sion of this Agreement or its exhibits which impose upon the CITY , directl y or indirectly , an y financ ial obligat ion what soe ver to be perfonned or which ma y be performed in an y fis cal year subsequent to the year of execution of thi s Agreement is expressl y made cont ingent upon and subject to funds for such financial obligation be appropriated , budgeted and otherwise mad e available .. A copy of the resolution of the City Counc il is attached hereto and incorporated here in as Exhibit H . -13- ' . • I I • 0 • • '·• I ......... .. • •• .. 13.20 Approval or Board or Directon or EEF. EEF represents and warrants that all of the terms of this Agreement have been reviewed and approved by the Board of Directors of EEF, that an appropriate resolution has been adopted by the Board of Directors 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 tenns 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 ofEEF is attached hereto and incorporated herein as Exhibit I. ARTICLE XIV MOA'S RENEW U OPTION 14.1 Option to Renew. As additional consideration for the covenants of~OA 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 follov,ing terms and conditions : (a) Written notice of~OA's election to exercise an Option shall be given to CITY no later than six (6) months prior to the expiration of the term ("MOA's Notice"). If::VlOA timel y 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) IfMOA is in default of this Agreement at the time of notice hereunder , the option may be exercised only v.-ith 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 ofMOA 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 ofCityCenter 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 -14- • -----·--·-·-..... '· ' ,. .. .. I . 0 • • -• ,,,-. • • -.. ... decisions with respect to the nature and propriety of any particular piece of art or any exhibit by MOA of any artwork whatsoever is expressly granted, reserved to and held alone by MOA . 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 otherwise . Amendments to Exhibit F are incorporated herein . 15.2 Movement or Artwork. With the consent of EEF, MOA shall be pennined 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 pennitted 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 Exhib it F Cpon the removal of any such sold item. \10 . .\ shall be responsible to pay for all costs of removal and an y cost of restoration of the space from \\ hich such artwork was removed . 15.4 Original Installation of Artwork. Within the period that commences thi rty (30) da ys prior to the Occupancy Date and ends no later than ninety (90) days following the Oc cupanc y Date . MOA, at its sole cost , will move and complete any restoration or conservation which \'lOA dee ms necessary on each of the eighteen pieces of art described in Exhibit F Thirteen of these pieces of an will be permanently installed for the term of the Agreement in the CityCenter pursuant to the Artw ork Installation Plan . Five of the pieces of an identified as "Temporary Installations " in Exhibit F ma y be replaced or moved at \'lOA 's sole discret ion within or without Cit yCenter The initial installat io n shall be paid for by Englewood and will include signage , all landscaping , pedestals , lighting , pads and other items described in the Artwork Installation Plan . In no event , however , shall Englewood be obligated to pay more than S 100 ,000 for the initial installation . 15.5 Artwork Installation Plan. No later than the 15th day of March , 2000, the CITY , EEF and MOA shall agree to an Artwork Installation Plan . The Artwork Installat ion Plan shall be in writing which , upon completion , shall be incorporated into this Agreement as Exhibit G. The Artwork Installation Plan shall identify the places in the CityCenter where artwork will be pennitted 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 mat ters 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 securit y for the artwork installed at any time in CityCenter. Englewood shall be responsible for utilities , ground maintenance and standard security for the artwork installed at any time in CityCenter. -15- I • 0 • • -----~--~---------------.------------------------------- • " • • • ARTICLE XVI CITY SUPPORT OE MOA , . 16.1 Annual Contribution by COY. The CITY will pay to MOA the sum of Ninety-Six Thousand Dollars ($96,000 .00) annually by payment ofForty-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 provided within the CITY by MOA. (c ) Public art displays (d) Ongoing maintenance of anwork disp layed in the CityCemer 16.2 Failure of CITY to '.\lake Annual Contribution. Should the CITY fail to make any annual contribution as provided for in Section I 6 I , MO . .\ shall have the following remedies : (a) Declare this Agreement terminated , Ai'\/D (1) Vacate the Demised Premises, Ai'\/D (2) Obtain from the CITY in a !ump sum payment , within thirty (30) days 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 improvements 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 (Sl2,000) 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 (IO); 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 . land, notwithstanding any provision to the contrary, have 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. PERFORMANCE, AND REPRESENTATIONS 17.1 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 -16- / I . 0 • • .. ~ ,,-- • ... .. ·~ • -' ... 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 Da,,id 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 ofoperations, 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 tenninated opera:ion 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 .. Am" and ·'Education ' (b) The Governor of Colorado and the Colorado Cou nc il on the Ans hon ored MOA in 1995 with the Governor ·s .4wardfor Excellence in the Arts, Colorado ·s highest arts honor (c) In 1993, MOA was presented with the .Wuseum Educator of rh e Year award from the Colorado Art Association and has also been praised for an and educatio n by all the major art and news publications in Colorado, including Westword 's "Best of Denver : Best Art Cla sses fo r Kids" 1995 . (d) MOA currently offers approximately SO classes differing in focus and durat io n in each of three aMual sessions. (e) MOA currently provides an education services for three times as man y prima ry school students as the Denver An Museum . (t) 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 proponion 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 programming 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. -17- ' ' " ' ' I • 0 ... • .. ,,. .. • -.. •• " ... .. IN WITNESS WHEREOF, the parties hereto have affixed their signatures the day and year first above written . CITY OF ENGLEWOOD Attest: by: _____________ _ Its :. _____________ _ by: _____ _ City Clerk ENGLEWOOD ENVIRONMENTAL FOCND .~ TIO'.',;. ~C by : _____________ _ Its :. ______________ _ STATE OF COLORADO ) ) ss . COUNTY OF ARAPAHOE ) The foregoing Governmental Agreement and Sublease was subscribed , acknowledged , and affirmed or sworn to before me this_ da y of , 1999, by , as ---------of Englewood Environmental Foundation, Inc . WITNESS my hand and official seal . Notary Public (SEAL) Address My Commission Expires : -18 - ', • l . ' . I . 0 32X • ' . • --., • ~ -.. r.; .• .. . , . .. ., .. • . ' -' ... THE MUSEUM OF OUIDOOR. ARTS by :~~~~~~~~~~ Its : _____________ _ STATE OF COLORADO ) ) ss . COUNTY OF ARAPAHOE ) The foregoing Governmental Agreement and Sublease was subscribed , acknowledged, and affirmed or sworn to before me this_ day of , 1999, by , as ---------of The Museum of Outdoor Ans . WITNESS my hand and official seal. Notary Public (SEAL) Address My Commission Expires : • I . 0 -19- 32X - • .. • ,.-- • • •. -·· EXHIBIT A TO .. . GOVERNMENTAL AGREEMENT AND SUBLEASE between THE CITY OF ENGLEWOOD, COLORADO ENGLEWOOD ENVIRONMENTAL FOUNDATION, INC. THE MUSEUM OF OUTDOOR ARTS Legal Description for 1000 Englewood Parkway ,. ' • .. , . .. ~ .,, ' ... . ' • : ... I . . 32X • • • .. .-----------------------~--- • , .... ,• .. • "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 COLORAD O, MORE PARTICULARLY DESCRIBED AS FOLLOWS : COMMENCING AT THE SOUTHEAST CORNER OF SAID SECTI ON 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 LIN E EXISTED PRIOR TO THE GRANT OF EASEMENTS IN INSTR UMENTS REC ORDED IN BOO K 17 14 AT PAGES 412, 423, 426 AND 429 ); THENCE EASTERLY ON AN ANGLE TO THE RIGHT OF 90 DEGREES 07 MINUTES 26 SECO NDS 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 MI NUTES 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 FR OM 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 WITH 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 DISTANT FROM SAID BUILDING, A DISTANCE OF 262 .00 FEET; ... I • 0 . ]- • • • .. ... .. PARCEL A (CONT'D): 3 . THENCE SOUTHWESTERLY ON AN ANGLE TO THE LEFT OF 90 DEGREES 00 MINUTES 00 SECONDS, PARALLEL WITH ANO 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 BUir..DING, A DISTANCE OF 70 .00 FEET ; 5 . THENCE SOUTHWESTERLY ON AN ANGLE TO THE LEFT OF 90 DEGREES 00 MINUTES 00 SECONDS, PARALLEL WITH ANO 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 ANO 35 .00 FEET DI STANT 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 ANO 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 • 0 32X - • • EXBIBITB TO " • • .. GOVERNMENTAL AGREEMENT AND SUBLEASE THE CITY OF ENGLEWOOD, COLORADO ENGLEWOOD ENVIRONMENTAL FOUNDATION, INC. AND THE MUSEUM OF OUTDOOR ARTS Plat or CityCenter .. ' .. ' .. .. ... .. I . • ........ . ·-----·-.. __ ,.. .... _ _. ___ . ___ ._.. __ _ •••••--·1.t•- • • ' -11 - I • r IC. ..... ,,·-100 • .. • ,,.--• • , .. , .. . .. • -' ... 0 FINAL PLAT ENGLEWOOD CITY°CENTER FILING NO. A PAIi!' 0, TD •• ,, 0, IICTlON ss. AND A PART or TD SW 11, OP Dt'l10II " TOWll8mP , S01/!11, IIANGI Ill 111ST or TD 11TB P .11 . aTY or IIIIGl&WOOD, COUNTY or AIW'AIIOS. lrl'ATI or COLO- /.,,.' .. ~ .... -~ .............. .___~l:."\iz.~ C , ! • 'I 1 C '< I a ' .. GJ P"Q[ r'l 1,1: L :r ', .. ..,.. ..... . ~ ,: ..::-:,· ,•~1r 11 R !Jr.v l CIT ( 01 [NGLL ~ IIJ , C l'• 1'i1-• - ... • • • ••• EXHIBITC TO .. . , GOVERNMENTAL AGREEMENT AND SUBLEASE between THE Cl1Y OF ENGLEWOOD, COLORADO ENGLEWOOD ENVIRONMENTAL FOUNDATION, INC. AND THE MUSE UM OF OUTDOOR ARTS Exempt Purposes of The Museum of Outdoor Arts ' .. ' .. .. . ' .. . ' . I . 0 32X - -_ I I • .. ~ --• . ·' .. • •• .. ... .. MOA'S EXEMPT PURPOSES The Corporation is formed exclusively for charitable and educational purposes within the meaning of Section 50l(cXJ) 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 orpniz.ation and operation of outdoor and indoor museums, the holding and sponsorship of music concerts, art cxlul>itions and theatrical and dance performances, all for cultural and educational purposes and to perform ,:very act or acts necessary for, incidental to or coMected with the furtherance of iu c:baritable and educational purposes and generally to do anything permitted of an organization exempt from Federal income taxation under Section 50 l ( c X3) of the code . .. • Jt H I • I T C . ' ..: \ .. . ( . .. ,. _, ' • I . 0 32X - • .. ! .. • .. • •• EXBIBITD TO .. GOVERNMENT AL AGREEMENT AJ.'ffl SUBLEASE between THE CITY OF ENGLEWOOD, COLORADO ENGLEWOOD ENVIRONMENTAL FOUNDATION, INC. AND THE MUSEUM OF OUTDOOR ARTS Dnwing of Demised Premises ()luseum Space) ,. · .... ... ·, ~ .. ' •\ .. ' ' ... .. I . 0 32X .. • - • - • • LO BO~ :-;,;- -' ... .... ·\ .-Q -- .. ."."5 • 0 Mu sEu W\ O~T O I= 000/l. A/1. LE,.,'>E. 1 2 "o .Oil.EA F LOo /2. '.PJO ::':,,:.:_•,:,._ Ill,· i II: w ... z w CJ CJ > u g i w .J C, z w ............. ~·- ; ! ~ ;i ~~~ "'.~ 99 ll 0 - • J, • • • • •• EXBIBITE TO .. GOVERNMENTAL 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 .. ·, ... .. .. • I . ' . ... I . C, 32X • ---------.------------------------~~~~------,· • .. • •• .. Specifications for Demised Premises and Common Area Extent and Expectations of the Core and Shell Finish fo r 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 reflecti ve glass block. • Damaged existing glass block shall be repaired or replaced . Interior Separation Walls • 2 Hour wall construction East of the North MJ.in Stair shall be 3 la ye rs of 318" Type-X gypsu m board on the stair side and 2 layers of 3/8" Type -X gy p su m boa rd on the tenant sid e o f 6" metal studs w/3-1/2" sound attenuatio n insulation . • 2 Hour wall construction .it E isting Exit Stair shall be 2 byers of 3/8" gypsum board on each sid e of 6" metal studs w/3 -1 _,, so und att,muatio n in ulati o n . • Remaining 1 Hour walls shall be con stru cte d of l laye r of 318" Type-X gyps um bo:ird o n each 1dc of 3-3/8 " metal studs w/3 -1 ,2" sound atte nuatio n in sula ti o n . Frames /Door and Window} • Access door frame shall be -l3 min . h oll o w metal frame . Ceilings • Existing exposed structure and metal decking has 2-hour spray on fire proofi n g th rough o ut. Fire proofing damaged during demolition o r construction will need to be repaired by tenant. Mechanical • Exposed ducts of supply and return air to be prov ided to satisfy minimum code require me n ts . 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 sa nitary, roo f, and ove rflow drains in space to remain. • No additional plumbing tie -ins are to be provided . City will size plumbing to provide for additional restroom s . 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 Elevato r. E X H I • I T E .. . ' . I • 0 - • • EXBIBITF TO • • .. GOVERNMENTAL AGREEMENT A.'W SUBLEASE between THE CITY OF ENGLEWOOD, COLORADO ENGLEWOOD ENVIRONMENTAL FOUNDATION, INC. THE MUSEUM OF OUTDOOR ARTS List of Artwork to Be Displayed at CityCenter • .. , .. .. . ' ... .. I . 0 .]- ... --• .. • .. ... PUBLIC ART FOR INSTALLATION IN ENGLEWOOD CITYCENTER Permanent Installations : 1-Porcellino I-Resistance 2-Marzoceo Lions 2-Greek Dogs 1-Wmdsongm 1-Brooldyn Bridge 1-The Fence 1-Bronze Bear 1-Child of Peace 2-Two untitled paintings by Joe Snyder Total : 13 Temporary Installations : I-Spheres I-Marble On My Mind I-Gossips I-Luke the Evangelist I-Two Open Trapezoids , Excentric V Total : 5 ii • X .. I • I T F ~· .. ., ' ' . I· 0 32X . J- • EXHIBITG TO ... • • •• .. GOVERNMENTAL AGREEMENT AND SUBLEASE THE CITY OF ENGLEWOOD, COLORADO ENGLEWOOD ENVIRONMENTAL FOUNDATION, INC. AND THE MUSEUM OF OUTDOOR ARTS Artwork Installation Plan (To be added to Agreement at its completion) · ... -.. .. .. : • I . 0 32X - .. ,, -• . • -.. EXHIBITH TO GOVERNMENTALAGREEMENTANDSUBLEASE between THE CITY OF ENGLEWOOD, COLORADO ENGLEWOOD ENVIRONMENT AL FOUNDATION, INC. AND THE MUSEUM OF OUTDOOR ARTS Ordinance of the City Council of the City of Englewood, Colorado .. .. ·, .. ., .. ' .. .,, • ... .. I . 0 32X - • ...... . ' . • • • •• EXBIBITI TO .. GOVERNMENTAL AGREEMENT AND SUBLEASE between THE CITY OF ENGLEWOOD, COLORADO ENGLEWOOD ENVIRONMENTAL FOUNDATION, INC. AND THE MUSEUM OF OUTDOOR ARTS .. ' Resolution or the Board or Direc:ton or Englewood Environmental Foundation, Inc. .. • . ' . I . 0 • • .. --· • t·.,-.. .. • - ... .. 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 Engl ewood Civic Center for future cultural uses. This action is requested to finalize a ;ublease 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 Civ ic 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 programm ing 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 agreement 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 (estimatf:d cost) $ 50 ,000 (minimum) Working with Englewood Cultural Arts Commission to establish • ., .. .. I • 0 -.:· ... To MOA by the City of Englewood Art installation expenses (one-time expense) Annual appropriation Utilities & maintenance -in kind LIST OF ATTACHMENTS Bill for an Ordinance Proposed agreement Agreement summa,ylTact sheet .. • .. • · .. ••• .. ... $ 100,000 (maximum expense-MCA to pay balance $ 96,000 $ 30,000 (based on sq . ft . calculation) ., ' '• ... ' . ' . ' I • 0 32X • • • To: Through: From: Date : ,. • ·,. • -.. MEMORANDUM City Council Gary Sears, City Manager ,..,(· Michael Flaherty, Assistant City Manager November 4, 1999 Subject: MOA Proposed Agreement BACKGOUND ... In 1998 City Council designated approximately 15.000 square feet of pace o n the second floor of the Englewood Civic Center for future cultural uses. The go al o f the C o uncil through their action was to activate and energize CityCenter Englewood and to provide for a unique character to the devel o pment. The City cxplo n:d v;iri ,i u o pp,1rtun1t1cs for cooperation with cultural o rganizati o ns at City-Center. The :\1u eum o f Outdoor Ans w;is approached last year as a potential tenant for Civic Center. Ba. ed o n the Ll pcratio ns o f MOA, which include an exceptional art collection, educational programs and entertainment, the City seeks to enter int o an agreement with :\10A. Over the past several months discussions and neg o tiati o ns between MOA and City s taff ha,·e been actively pursued . The proposed agreement is the result o f th ese joint dforts. ISSUES/PROPOSED RESOLUTION The primary issues raised in coming to agreement with MOA ;ire as follows: First, the cost 10 MOA for build-out of the space has become sig nifo;antly mo re than the y had o riginally projected . MOA had o riginall y budgeted $280.000 for building o ut th eir space. The actual cost is now estimated at nearly $500,(XlO. due to the City requiring MOA to provide finished ceilings and HY AC and electrical distributi o n and MOA agreeing to fund 1/3 o t' the cost for impro ve ments 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 appropriati o n for their CityCcntcr operations be increased from $84,000 to $96,000. Assuming that that the actual cost of improvements completed by MOA is $500,<XX), 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 o f capital investment being made by MOA, the management and Board o f Directors is requesting . . (,'. Printed on Recyc led Pape,.~' • .. 'I I • 0 . ]- .. • • .. .. . · ... • •• ' .. 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 e!tpenses ofMOA will occur only if the City defaults . MOA is not entitled for repayment of unamortized improvements if they fail or chose not to e,cerci5e their initial option for extension. ., ,, .. , .. I· 0 ( • • ,) • Schedule of City Reserve for MOA Contract Year Anny1l e1)'.m~nt Default Pa)'.ment• % N2t Amortiz~d Resrv~ R~uirement 2000 $96,000 NIA 100% S S00 ,000 2001 $96,000 $ 500,000 -$ 12,000 X 90 % $439,200 2ooz $96,000 $ S00,000 -$ 24 ,000 X 80% $380,800 200] $96,000 $ S00 ,000 -$ 36,000 X 70% $324,800 2004 S 96,000 $ S00,000 -$ 48 ,000 X 60% $271 ,200 2005 $96,000 S S00,000 -S 60,000 X SO% S 220,000 2006 $96,000 S S00,000 -$ 72 ,000 X 40% $171 ,200 2007 S 96,000 S S00,000 -S 84 ,000 X 30% $124,800 2008 $96,000 $ 500 ,000 -$ 96,000 X 20% $ 80,800 2009 $96,000 $ S00.000 -$108,000 X 10 % $ 39,200 2010 $96,000 $ S00.000 -$120,000 X 0% $ 0 • Assumes actual capital expenditures by MOA are the maximum $500,000 . \ I . • .. • ., ,I • • • , . 0 . ]- • • .. • • .. ..... .... • •• ... - AGREEMENT SUMMARY AND FACT SHEET THE MUSEUM OF OUTDOOR ARTS Attraction5 at CityCenter ... Numuer of Art Piece5 ... Value of Pul11ic Art ... Martcet Rental Value of Art Exhil1it5 and Performance5 ... P~ram5 for Youth ... Numuer of 5tudent5 ... Di5COunt5 for Englewood Re5ident5 ... Location at Englewood Civic Center ... Numuer of Staff ... Hour5 of Operation ... Lea5e Agreement ... Parlcing Requirement5 ... MOA'5 Upfront Capital Co5t5 ... MOA'5 Annual Operating Budget ... Annual City Contril1ution .. . Art ln5tallation Expenee .. . Publi c art, art educatio n, exhibitions, performances, tours, special events 13 permane nt, 5 rotating $1 ,000,000+ $100,000/year $50,000 min imum annual budget Classes, t ours, performances, competitions, spec ia l events 4,000+ students & teac hers /year Working with the Cultural Arts Commission t o establish a res id ent discount program Second floor, approx . 7,000 sf 50 FT & PT staff/teachers/docents Currently Mon.-Sat., but tailored t o CityCenter needs 5 yea r s, plu s three 5 -year options 40 shared spaces (which are accounted for in the City's parking management plan) $500,000 (Paid by MOA ) $500,000 minimum, currently $1 ,000,000 $96,000 plus in-kind services est. at $30,000 $100,000 by City, any additional by MOA ., .. I . 0 • • f\) .__ . __ ,.._,_ __ _ -._.. ... .,. . .,. __ _ . ·---~--- ' 1-... K,:M.[ 1·-100· ·····-.... ·U·- r • • 0 • FINAL PLAT ENGLEWOOD C!TYCENTER FILING NO. • ,,.., • m::,JI:.,.• IICftOII a. AND• •• or TD n 11, o, a:tm " ' IOVIIL IWIGI II ftft or TD 11'11 P.11. mr or llflllnllOD, COUlftT OP ........ ITAft 0, COLOUDO I -,,,,, -... .....____'"""·JLJ»-... ,,,, .. , .. ""-" ~ ........... . I . .......,.. ~ ,Ii ;1 • i : , ... ,;: f e .~ ~ a V ~ " Ii I I , I I I ~ .. ;! 'i CJ .. I 'Ii I I I : ~~ I~ f.l II 1 Ii I I! I a I T ~ L ~ --1ut111..,~- I -:r GJR l\~C ,'LIi,::' S..'!l::>'.V!SIC'N c :r ', B_QCI( I CIT Y OF .:NGcL'-'GOD CJ1 Y HA ,c. I ,. •' I ~ ·:.- \ • • "' • ~ ,. J . ., ·.]- • • l .. ~ _. • f i,. 't ' ~ .. , .... ' "' • -' AGENDA FOR THE SPECIAL MEETING OF THE ENGLEWOOD CITY COUNCIL MONDAY, NOVEMBER 8, 1999 6:00 P.M. .. 1. Call to order. & ; 03 2. Invocation . llM,.,r, 3. Pledge of Allegiance . 'iJ/,l/Vf'&(J 4 . RollCall. 5. Regular Agenda. a. Approval of Ordinances on First Reading. i. Recommendation from the City Manager to adopt a bill for an ordinance authorizing the acceptance of an agreement and e between the Museum of Outdoor Arts, the Englewood · men ndation , and the City of Englewood. STAFF SOURC hael Flaherty, stant City Manager. Adjournment. /o ·. ~ 0 PleaN notlt: If you hllv. a dlsablllty and need auxlllary aids or Nl'Vlces, pleUe notify the City of Englewood (303-762-2405) at INat 48 holn In advance of when Nl'Vlces are needed. Thank you. ' . ~ .. ... .. ... ,:. I· 0 32X ' . • - • • I . 0 ~~---...------. •