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HomeMy WebLinkAboutresolution.council.062-10RESOLUTION #~O o~ (Series of 2010) A RESOLUTION APPROVING A CONTRACT BETWEEN THE CITY OF ASPEN, COLORADO, AND WHEELER FILM SOCIETY, SETTING FORTH THE TERMS AND CONDITIONS REGARDING A CINEMA SERVICES AGREEMENT AND AUTHORIZING THE CITY MANAGER TO EXECUTE SAID CONTRACT WHEREAS, there has been submitted to the City Council a contract between the City of Aspen, Colorado, and Wheeler Film Society, a copy of which contract is annexed hereto and made a part thereof. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO: Section 1 That the City Council of the City of Aspen hereby approves that contract between the City of Aspen, Colorado, and Wheeler Film Society regarding cinema services for the 2010-2011 year (renewable for two additional years), a copy of which is annexed hereto and incorporated herein, and does hereby authorize the City Manager of the City of Aspen to execute said contract on behalf of the City of Aspen. Dated: C~~C~,/,Q~ ~~ , ~J/y •~ ~ ~ +~ r'~ ~ J : R Michael C. Ireland, 1V~ayorr . ,~ r ,- . I, Kathryn S. Koch, duly appointed and acting City Clerk do certify that the foregoing is a true and accurate copy of that resolution adopted by the City Council of the City of Aspen, Colorado, at a meeting held August 9, 2010 Ka S. Koch, City Clerk SERVICES AGREEMENT WHEELER FILM SOCIETY THIS AGREEMENT made this _ day of August, 2010, by and between the City of Aspen ("City") and Jon Busch and Don Swales d/b/a the Wheeler Film Society ("Contractor"), provides as follows: WHEREAS the City wishes to make available to the public a broad range of community entertainment, artistic and cultural programs and events; and WHEREAS the Contractor possesses knowledge, skill, and experience in the arts related to the exhibition ofcommercially-available cinema product; and WHEREAS the City desires to make available to the public with the cooperation and assistance of the Contractor a specialty film program to be presented at the Wheeler Opera House; and WHEREAS the parties entered into a Service Agreement dated June 19, 2007, and the parties desire to make a successor Agreement with the terms and conditions as hereinafter set forth. NOW THEREFORE, in consideration of the following covenants, the parties agree as follows: 1. The City does hereby retain Contractor and Contractor does hereby agree to deliver, implement, and manage a cinema exhibition program to be presented through the Wheeler Opera House. Pursuant thereto, Contractor shall select, secure, and exhibit films using available open calendar dates in the Wheeler schedule. 2. Contractor has the exclusive rights to self-promote and partnered film exhibition at the Wheeler; however, Contractor acknowledges and accepts that the Wheeler Opera House may choose to present film in partnership with other entities or as rental engagements, either as individual bookings or as a formal series or festival. 3. Neither the City nor the Wheeler board of directors ("Board") warrant or guarantee to Contractor the availability of the Wheeler Opera House to Contractor on any given date or dates, nor is Contractor guaranteed any minimum number of dates upon which to exhibit film. Exhibition dates selected and entered on any calendar maybe canceled by the City and/or Board in order to accommodate live or alternative income-generating bookings, as selected by the City or Board. Dates that have been given as available for film booking but then withdrawn prior to commitment to a published calendar will incur no penalty fee. Dates that are withdrawn after commitment to such calendar will incur a penalty fee of $100 per affected date. Penalty fee will be paid to Contractor. 4. Contractor shall bear all costs associated with the film program, including but not limited to film rental or payment percentage, incoming and outgoing freight expense, advertising, press materials, projectionists, program management, and accounting services. The City shall provide liability insurance coverage, as well as provide house management, box office management, and cleanup of the theatre's public spaces. 5. Contractor shall be solely responsible to maintain in good working order all projection equipment and supplies utilized in Contractor's film exhibition. Should Contractor require use of the Wheeler's digital projector(s) or other digital media, Contractor will be wholly responsible for the equipment's proper setup and teardown before and after the scheduled screenings(s), as well as responsibility for any damage that the equipment may incur during the exhibition period. 6. Contractor shall be expected to fully promote all bookings committed under this Agreement, using all appropriate media and advertising resources. Contractor shall aggressively promote and advertise the film offerings during the film's running period through media other than those available from the Wheeler Opera House. The Wheeler will include for Contractor's publicity purposes an appropriate presence on its website and any timely passive hard-copy materials. 7. The City, through Wheeler management, shall have the right to approve or reject any image or verbiage used for the promotion of any individual film offering or for any other matter associated with the Contractor's presence within the Wheeler Opera House. 8. Contractor agrees to work cooperatively and non-competitively with all other Aspen-based not-for-profits, particularly as regards the booking of film product. 9. Contractor will not enter into any third-party venture with past or potential rental clients as regards film exhibition at the Wheeler Opera House, and will refer all such inquiries for same to Wheeler management. 10. Admission prices for all film exhibitions shall be wholly at the discretion of the Contractor. As an addition to the ticket price, Contractor shall assess, collect, and pay to the City a surcharge of fifty cents ($.50) for each ticket sold. The City shall assess a surcharge of 3% for Mastercard and Visa charges, and 4% for American Express charges, for all such credit card purchases associated with Contractor's tickets. Further, the City reserves the right to adjust these surcharge amounts either up or down at any time, based on increases or reductions in its direct cost for such charges. Finally, Contractor shall pay to the City aper-screening fee of $25.00 for box office services. The City shall be the sole supplier of box office and ticketing services for the Contractor. 11. All fees associated with Paragraph 10 above shall be deducted from gross ticket revenue and remaining monies will be paid out to Contractor within ten business days by the City. 12. The City, through Wheeler Opera House management, will receive detailed performance reports from Contractor upon the completion of each film booking within five business days of the final screening of the booking. This report will be supplied through a template created by the Wheeler Opera House and Contractor. The payout process detailed in Paragraph 10 (above) cannot be started until such documentation is received. 13. The City, through the Board, may at any time seek and obtain access to all accounts, records, or books maintained by or on behalf of the Contractor in the administration and operation of the cinema services program. 14. The Wheeler Opera House concessions bar maybe opened and staffed prior to screenings, at the sole discretion of the City. All concessions revenue shall be and remain the property of the City. 15. The term of the Agreement shall be from September 1, 2010, through August 31, 2011, unless terminated earlier at the option of either party by giving sixty (60) days written notice of such intent to terminate. Upon the termination of the Agreement, Contractor shall promptly prepare and submit a full accounting of all sums advanced to it by the City and all costs and receipts as generated by the cinema program. Contractor shall additionally be expected to remove any and all property owned by the Contractor from the Wheeler Opera House premises within ten (10) business days. Upon satisfactory annual review, and approval by the Wheeler board of directors, the term of the Agreement maybe extended for up to two additional one-year terms, for a maximum of three years total. 16. Contractor expressly agrees to refrain from and prohibit any fundraising and/or solicitation of memberships or contributions, whether for itself or an outside party, during the term of this contract, or until such time as Contractor can provide evidence of recognition as a bona fide 501 (c)(3) not-for-profit organization as defined by the Internal Revenue Service. 17. Contractor, its agents and employees, shall be bonded through a surety licensed to do business in the State of Colorado. A copy of such fidelity bond shall be presented to the City upon execution of this Agreement, and such bond shall remain in full force throughout the term hereof. 18. Contractor shall maintain, and provide annual evidence thereof, a valid license for the purpose of conducting business with the City of Aspen. Failure to maintain such license will result in immediate suspension of payments to the Contractor, and may result in termination of the Agreement. 19. The parties intend that the relationship created by this document is that of employer/independent contractor. No agent, employee, or servant of Contractor shall be or shall be deemed to be the employee, agent, or servant of the City. City is interested only in the results obtained under this contract. The manner and means of conducting the work are under the sole control of Contractor. None of the benefits provided by City to its employees, including but not limited to compensation insurance and unemployment insurance, are available from City to the employees, agents, or servants of Contractor. Contractor will be solely and entirely responsible for its acts and for the acts of Contractor's agents, employees, servants, and subcontractors during the performance of this contract. 20. Contractor shall indemnify City and Board against all liability or loss, and against all claims or actions based upon or arising out of damage or injury (including death) to persons or property caused by or sustained in connection with the Contractor's negligent performance of the contract or by conditions created thereby, or based upon any violation of any statute, ordinance, building code or regulation, and the defense of any such claims or actions. Contractor shall also indemnify City against all liability and loss in connection with, and shall assume full responsibility for, payment of all Federal, state, and local taxes or contributions imposed or required under unemployment insurance, social security and income tax law, with respect to Contractor and/or Contractor's employees engaged in performance of this Agreement. 21. In any event, the appropriate utilization and timely payment of all funds provided by the city shall be and is hereby personally warranted and guaranteed by Jon Busch and Don Swales, jointly and severally. Jon Busch and Don Swales further agree and covenant to hold the City and Board harmless for any financial claims or losses arising from the administration and operation of the film program. 22. It is expressly agreed that this Agreement contains the entire understanding of the parties relevant to the subject matter thereof and there are no verbal or written representations, agreements, warranties or promises pertaining to the subject matter hereof next expressly incorporated in writing. 23. It is agreed that neither this Agreement nor any of its terms, provision, conditions, representations or covenants can be modified, changed, terminated or amended, waived superseded or extended except by appropriate written instrument fully executed by the City and Contractor. 24. If any of the provisions of the Agreement shall be held invalid, illegal, or unenforceable, it shall not affect or impair the validity, legality, or enforceability of any other provision. 25. Any written notices as called for herein maybe hand-delivered or sent electronically by email to the respective persons and/or addresses listed below, or mailed by classified mail, return receipt requested should circumstances warrant, to: City of Aspen c/o City Manager 130 South Galena Street Aspen CO 81611 Board of Directors Wheeler Opera House 320 East Hyman Avenue Aspen CO 81611 Wheeler Film Society PO Box 1884 Aspen CO 81612 Don Swales PO Box 1884 Aspen CO 81612 Jon Busch 548 Race Street Aspen CO 81611 26. Contractor and City acknowledge and understand that there are no conditions or limitations to this understanding except those as contained herein at the time of the execution hereof and that afrer execution no alteration, change, or modification shall be made except by a document signed by Contractor and City. 27. Failure to comply with the individual or collective terms of this Agreement will result in the immediate termination of this Agreement. Having agreed to the above and foregoing, the parties hereto do affix their signatures. CITY OF ASPEN By: t GT /i°y~...w~ Steve arwick, City Manager ATTE G/~~ Kathryn Koch, C' Clerk WHEELER FILM SOCIETY By: J use By: ~..'l7wx.. r~aY Cn Don Swales