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HomeMy WebLinkAboutresolution.council.054-95 (A !., ,A..... ~4. a.... t~~_ ~'<., I' Ply RESOLUTION NO. 51 (Series of 1995) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, APPROVING AN EXTENSION AND AMENDMENT TO THAT CERTAIN MANAGEMENT AGREEMENT BETWEEN THE CITY OF ASPEN AND THE ASPEN/SNOWMASS COUNCIL FOR THE ARTS RELATIVE TO THE ASPEN COMMUNITY ARTS CENTER, AND AUTHORIZING THE MAYOR OR CITY MANAGER TO EXECUTE SAID AGREEMENT ON BEHALF OF THE CITY OF ASPEN, COLORADO . WHEREAS, there has been submitted to the city Council an Agreement to renew and amend a certain Management Agreement between the city of Aspen and the Aspen/Snowmass council for the Arts relative to the Aspen community Arts Center, a true and accurate copy of which is annexed hereto and incorporated herein, and does hereby authorize the Mayor or city Manager to execute said agreement on behalf of the City of Aspen. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, That the city Council of the city of Aspen hereby approves that Agreement to renew and amend a certain Management Agreement between the City of Aspen and the Aspen/Snowmass council for the Arts relative to the Aspen community Arts Center, a copy of which is annexed hereto and incorporated herein, and does hereby authorize the Mayor or city Manager to execute said agreement on behalf of the City of Aspen. aRE~~LVED' APPROVED.AND AL~ ' 1995, Aspen, Colorado. ADOPTED this -'3 day of by the City Council for the city of ~ 7. {>~ Johd S. Bennett, Mayor .'e.... I' y \;c ~. ~. "< .(1'.. "~,- 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 Colorado, at a meeting held Council of the city of t2u~ .:tt Aspen, , 1995. 2 tA ., ~.. * \\, ~~ e AGREEMENT TO RENEW AND AMEND MANAGEMENT AGREEMENT THIS AGREEMENT is made and entered into by and between the CITY OF ASPEN, COLORADO, a municipal corporation ("city"), and the ASPEN/SNOWMASS COUNCIL FOR THE ARTS, a Colorado not-for- profit corporation ("Arts council"), and effective on this 1st day of september, 1995. WIT N E SSE T H: WHEREAS, the city and Arts Council executed that certain Management Agreement dated September 1, 1994, and approved by the Aspen City Council by Resolution No. 88 (Series of 1993); and WHEREAS, said Management Agreement is appended hereto as Exhibit "1" and by this reference incorporated herein as if fully set forth; and WHEREAS, the City and Arts Council desire to extend the term of the Management Agreement as herein amended. NOW, THEREFORE, in consideration of the mutual promises herein contained, the city and Arts Council agree as follows: 1. All the terms and conditions of .the Management Agree- ment shall remain in full force and effect during the term of this renewal except as specifically provided herein. 2. follows: section XIV, TERM OF AGREEMENT, is amended to read as The term of this agreement shall commence on September 1, 1995, and shall terminate on August 31, 1998. It' is anticipated by the parties that two (2) months before the expiration date of this agreement the parties shall confer to determine (1) the appropriateness of renewing this agreement for a new term, (2) amending the agree- ment, (3) entering into an entirely new agreement, or (4) terminating the relationship between the parties. If the parties are unable to decide upon an appropriate course of action at the end of the term of this agree~ ment, then this agreement shall continue on a month,to- month basis unti~'a new term and/or agreement has been established. rhe City shall maintain the option and unqualified right to terminate the services of the Arts Council and this agreement upon the expiration of the terms and/or after any month-to-month term as provided for hereinabove. ~, I~. ~~, i. .' \", '\, .,' '~-- 3. section IV, C, MANAGEMENT FEES, is amended to read as follows: 'The Arts Council, after the payment of the amounts as specified in Paragraphs A and B above, shall be enti- tled to collect and retain from revenues a monthly management fee in the amount of twelve percent (12%) of total building revenues as compensation for its manage- ment services as described herein. In addition to the management fee set forth above~ the Arts Council shall be authorized to occupy r:fJiJ.6 square feet of space in the property rent-free. 4. Section IX, INDEMNIFICATION AND INSURANCE, is amended to delete the requirement that the Arts Council be required to secure a policy of insurance covering all public risks relating to the leasing, use, occupancy, maintenance, or operation of the property, for the benefit of the city. Nothing in the preceeding sentence shall neither prohibit the Arts Council from securing such insurance for its own benefit, nor relieve the Arts Council from securing contents insurance for the benefit of the Arts Council. IN WITNESS WHEREOF, the City has executed this agreement in its name with its seal hereunder affixed and attested by its duly authorized officers, and the Arts Council has caused this agree- ment to be executed in its name and attested by its duly autho- rized officer. ATTEST: ~ Clerk COUNCIL FOR THE ~ WITNESS: 2 ~ ~. t), \'t \t~ . e; , It, " \~-.- c c MANAGEMENT AGREEMENT ,THIS MANAGEMENT AGREEMENT is made and entered into by and between the City of Aspen, Colorado, a municipal corporation ("city"), and the Aspen Snowmass council for the Arts, a Colorado not-for-profit corporation ("Arts Council"), and executed on the date(s) as specified below. "'1 WIT N E SSE T H: WHEREAS, the city is to purchase and secure title to that ,building and property commonly known as the Red Brick Arts and Recreation Center, and more particularly described in Exhibit A attached hereto and fully incorporated herein by this reference; and WHEREAS, the building and property are to be purchased by the city to afford a long-term home for arts and other non-profit groups and for other community uses; and WHEREAS, the City's intention and desire is to allow the Red Brick Arts and Recreation Center to be used, operated, main- tained, managed and supported as much as possible by community groups and citizens as a community center ,and not simply as another governmental service center; and WHEREAS, the Arts Council is a volunteer, citizen-based non- profit organization familiar with the needs and desires of the arts and non-prOfit community; and WHEREAS, the Arts Council desires to participate with the city and community in the operation and management of the Red Brick Arts and Recreation Center in accordance with the terms and conditions as set forth below;, and WHEREAS, the city and the Arts council are authorized and willing to enter into this agreement for the purposes as de- scribed herein. NOW, THEREFORE, in consideration of the mutual promises herein contained, the city and the Arts Council agree as follows: I. MANAGEMENT SERVICES T~e city hereby retains the A~ts Co~ncil to provide all man~gement services necessary to operate and maintain the Red Brick Arts and Recreation Center and property, exclusive of those portions of the building occupied, used and maintained by the City for recreational purposes (the "Property"), in an efficient ,e." ~\- " Lt.." (0' ~{,- ',," &e, ,. " ( c and cost-effective manner (see Exhibit B). Management services as provided by the Arts Council shall include the following: ,1. The Arts Council shall use its best efforts to rent space within the Red Brick Arts and Recreation Center ("Build- ing") , exclusive of those portions of the Building to be occupied and maintained by City, to qualified tenants on terms satisfacto- ry to the City with the goal of maintaining a one-hundred percent (100%) occupancy rate at all times. Pursuant thereto, the Arts Council shall negotiate and execute on behalf of the City all leases and tenancies, including extensions and renewals. The Arts Council shall utilize form leases approved by the city for all tenant leases. Attached hereto and fully incorporated herein as Exhibit C is an addendum listing tenant qualification and rental conditions to be utilized in tenant selection and rental agreements. The Arts Council shall not enter into any lease with any tenant for a lease term of less than one (1) year or more than five (5) years without the written consent of the city. 2. The Arts Council shall be solely responsible for the operational management and maintenance of the Property. The Arts Council shall use its best efforts to insure that the Building and surrounding premises are maintained in an attractive and safe condition and in good repair. "Maintenance" shall mean to include the provision of utility services to the Building (i.e., heat, water, electricity, sewer, and gas), pleaning, painting, grass cutting, landscaping, snow removal from accessways, parking areas and outdoor walkways, non-structural repairs, including repairs to lighting, heating, plumbing, electrical and ventila- tion facilities, refuse disposal, window and door replacement, the purchase of supplies and materials necessary thereto, and other work reasonably related to mitigate the wear and tear and aging of the Property. The Arts Council shall not be responsible for structural repairs and capital improvements. Such repairs and improvements shall be made in accordance with Section II herein. Arts Council shall be responsible for promptly and courteously responding to all citizen complaints relating to the Red Brick Arts and Recreation Center and reporting to the City as to the disposition of each complaint. 3. The Arts council shall use its best efforts to promptly collect all rents, deposits and othe~ income derived from the rental of space in the Building, and execute and serve such notices and demands as necessary to collect delinquent rents or secure compliance with rental terms from tenants. Pursuant to these duties, the Arts Council shall be authorized to the extent permitted by la~, at its! cost, to undertake, compromise or terminate such legal actions in the name of the city as it may deem necessary to collect delinquent rents, deposits, or costs, 2 &e"" ~ "" ~.,', 't~ --- ( c recover possession of any rented premises, or secure compliance with rental terms from non-complying tenants. No other form qf legal action may be instituted, compromised, or terminated by the Arts council on behalf of the city without the prior written consent of the city as obtained through the office of the city Attorney. Any and all attorney's fees or costs awarded to the City as part of any judgment or court order against a tenant shall be the property of the Arts council. "! II. STRUCTURAL REPAIRS AND CAPITAL IMPROVEMENTS The city and Arts Council jointly acknowledge that the Building will have undergone, at the city's cost, significant and extraordinar~,structural repairs and capital improvements immediately prior to the Arts Council's assumption of its manage- ment duties as provided for under this agreement. In the event additional or future structural repairs and/or capital improve- ments to the Building or premises are required as determined by the city and upon :the advice of the Arts Council, involving such matters as the roof, exterior walls, interior bearing walls, the building foundation, the plumbing, water, sewer, electrical, heating and/ or .y,e,ntilation systems, including replacement of fixtures anct'iequ'ipment, then the City shall be responsible therefor utilizing such monies as have been set aside for such repairs and/or improvements in the capital reserve fund as provided for below. In the event of insufficient capital re- serves, the city may, in its sole and exclusive discretion, utilize other funds within its control to undertake such neces~ sary repairs and/or improvements, so long as such expenditures are reimbursed to the city in a reasonably timely fashion from income derived from the rental or other income-producing use of the property. Prior to the City exercising its discretion to utilize other funds for capital improvements,the city shall take into consideration efforts undertaken by the Arts Council to raise funds for capital improvements from fund raising and/or grants undertaken by the Arts Council. Should a disagreement arise between the parties c,oncerning the necessity of any struc- tural repair or capital improvement, the City shall have ultimate decision-making authority with regard to same. III. AMERICANS WITH DISABILITIES ACT OF 1990 Notwithstanding any other provision as contained within this agreement, the parties acknowledge and agree that the City shall be solely responsible to undertake any necessary modifications or improvemenr-s 'to the Building or Property as may be required at any time in the future by reason of the Americans With Disabili- ties Act of 1990 ("Act")~ Moreover, the parties agree that the Arts Council shall not be responsible for indemnifying the city 3 . .J,""" K , . ( c for any actions, civil or otherwise, arlslng from the use of the Building or Property and brought to enforce compliance by the , city with the provisions of the Act. Should the city determine or be required to undertake modifications to the Building and/or Property by reason of the Act, then the City may draw upon the capital reserve fund as established under the terms of this agreement to pay for the cost of such modifications. IV. BUILDING INCOME DISBURSEMENT ~ A. DEBT SERVICE AND OPERATIONS/MAINTENANCE RESERVE PAYMENT Rents, fees, and all other income derived from the rental and/or use of the Building and property shall be collected by and paid to the Arts Council. From such revenues the Arts Council shall pay to the City an annual sum of $65,000.00 to help defray the cost of the Building. Such amount shall be paid in monthly installments of $5,416.66, due on or before the 1st day of the month next following collection. Failure of the Arts Council to timely and fully pay this annual sum shall constitute a material breach of the agreement. B. OPERATING EXPENSES AND MAINTENANCE After payment to the city of the amount as specified in Paragraph A above, the Arts Council shall utilize Building revenues and income to defray normal regular operating expenses and maintenance, including utility costs, as more particularly described in Section I(2) above. C. MANAGEMENT FEES The Arts Council, after the payment of the amounts as specified in Paragraphs A and B above,shall be entitled to collect and retain from revenues a monthly management fee in the amount of ten percent (10%) of total building revenues as compen- sation for its management services as described herein. D. CAPITAL RESERVE FUND After the disbursements as specified in paragraphs A, Band C above, the Arts Council shall pay any and all remaining col- lected revenues into a capital reserve fund. Such reserve fund shall be in the name of the City and shall be applied as neces- sary to defray the costs of capital repairs and/or improvements as described in Sections II and III above over the life of the property. 4 ~ .. ~, QII' I~ i_ ( c V. RECORDS AND REPORTS The Arts Council shall keep up-to-date books and records that reflect all revenues and all expenditures incurred in connection with the management and operation'of the property. The books, accounts, and records shall be maintained at the principal place of business of the Arts Council. The Arts Council shall, during regular business hours, make the b~oks, accounts, and records required to be maintained hereunder avail- able to the city, or other representatives of the City, for examination and audit by appointment on no less than one, day's notice. The Arts council shall furnish to the City, no later than the end of the next succeeding month, a detailed statement of all revenues and expenditures for each preceding month, which shall reflect rents and other income received and expenses incurred. All invoices, statements, purchase orders, and billings received or paid during such preceding month, as well as such other ,information relating to the operation or management of the property as the city deems pertinent wi~l be made available for city review at any time. The ,Ar,ts, Counci,l, shall submit an annual written report to the city on or before November 1 of each year. Such report shall accurately reflect all revenues and expenses associated with the operation and maintenance of the Property during the preceding year. simultaneously, the Arts Council shall submit a budget and operating plan for the Property for the forthcoming year, includ- ing plans for any capital expenditures or improvements. Upon the expi:r:ation or other termination of this agreement, the Arts Council shall prepare a final written report of all revenues and expenditures associated with the operation of the Property within sixty (60) days and deliver same to the city along with all books', ledgers, documents and other records pertaining thereto. VI. BANK ACCOUNTS -co A. OPERATIONS TRUST ACCOUNT The Arts Council shall deposit all revenues from the Proper- ty into a general property management trust fund with the Arts Council as trustee. The trust account shall be maintained at all times in a national or state bank that is a member of the Federal Deposit Insurance Corporation. The Arts Council shall not commingle any of the revenues or other income derived from the operations of the Property with any funds or other property of 5 - ~ f.., ~. ,ei" ~ ~ r ( the Arts Council. The Arts Council shall pay all operation and management expenses and 'other costs with respect to the property from the trust account. B. TENANT SECURITY DEPOSIT TRUST ACCOUNT Funds collected by the Arts Council as security and/or damage deposits from tenants shall be deposited in a separate trust account maintained in a national or state bank tha~ is a member of the Federal Deposit Insurance corporation. No other funds shall be deposited or commingled with the rental security or damage deposit funds. Any interest earned on funds held in the tenant security deposit trust account shall be deposited in the operations trust account described above. The tenant securi- ty deposit trust account fund shall be utilized for no purpose other than to hold and reimburse tenant security and/or damage deposits in accordance with C.R.S. section 38-12-101, et seq. VII. EMPLOYEES Arts,Council shall employ, discharge and supervise all persons and contractors as required for the efficient operation and maintenance of the property. Such persons shall not be construed as employees or contractors of the city when employe? or hired by the Arts Council. Arts Council shall be solely responsible to pay all wages, fees and costs associated there- with. The Arts Council shall exercise reasonable care in the hiring of all employees and contractors. VIII. BONDING All employees or agents of the Arts Council that handle or are responsible for monies, income or other revenue arising from or associated with the operation of the Property shall be bonded by a fidelity as approved by the city. IX: INDEMNIFICATION AND INSURANCE The Arts council agrees to indemnify, defend and hold harm- less City, its employees, officers and agents from and against any and all claims or suits for property loss or damage and/or personal injury or loss, including death, to any and all persons, whether real or asserted, arising out of or in connection with the maintenance, leasing, use or occupancy of the Property. The Arts Council shall, likewise, indemnify city for all injury Or damage to the property or equipment arising from the use, occu- pancy or maintenance of same, whether caused by the Arts counqil, its employees, agents, or invitees, or other third persons, including tenants. Nothing herein, however, shall be construed 6 $- Wi' \t\~ ~.~.,- ""'- e ( c to impose liability or responsibility upon the Arts Council for the negligent or intentional acts or omissions of the city or its employees. 'The Arts Council further agrees to ,furnish City with certif- icate(s) of insurance as proof that it has secured and paid for a policy of public liability insurance covering all public risks related to the leasing, use, occupancy, maintenance, or Qperation of the property. The insurance shall be procured from a company authorized to do business in the state of Colorado and be satis~ factory to city. The amount(s) of this insurance, without co- insurance clauses, shall not be less than the maximum liability that can be imposed upon the City of Aspen under the laws of the state of Colorado found at C.R.S. 24-10-101 et seq., as amended. At present, such amount(s) shall be as follows: $150,000~00 for any injury to one person in any single occurrence; $600,000.00 for any injury to two or more persons in any single occurrence. In no event shall such insurance amounts fall below those maximumliabi'lity'limits as set'forth at C.R.S. section 24-10- 114, as amended. During the full term of this lease, Arts Council, at its sole cost and expense, shall also cause all the Property and improvements on the Property to be kept insured, without co- insurance clauses, to the full insurable value against the perils pf wind storm, hail, lightning, explosion, fire and like perils. "Full insurance value" means the cost, as of the date 'of loss, for replacement of the damaged or destroyed property in a new . condition with materials of like size, kind and quality. The insurance shall stand as primary insurance for the Property and be procured from a company authorized to do business in the state of Colorado and be satisfactory to the city. All polices as required herein shall contain a waiver of subrogation by the insurer against city. If, absent negligence or fault on the part of the Arts council, the Property shall be damaged by fire or other catastro- phe so as to render said premises wholly untenantable, and if such damage is so great that a competent licensed architect in good standing in pitkin county, Colorado, as selected by the City within thirty (30) days from the date of loss, shall certify in I writing to the city and the Arts Council that the Property, with reasonable diligence, cannot be made fit for occupancy within ninety (90) days from the happening of the occurrence of the 7 ~-' K~).", 'Ii;" (.( '~" t.; ""~ (' c damage, then this agreement may terminate and city may re-enter the Property and take possession. The Arts Council shall subor- dinate its rights and interests in any insurance proceeds as provided for in any insurance policy as required by this agree- ment. If, however, the damage is not such as to prevent reoccu~ pat ion and use of the property within ninety (90) days, then repairs thereto shall be undertaken by city with all reasonable speed to restore the Property to its former condition and the agreement shall remain in effect. The Arts council's duwies and obligations to provide services to the city as herein set forth shall be suspended, along with the Arts Council's right to receive a management fee, during those time periods wherein the Property is unfit for normal business activities due to fire or other catastrophe, and/or repair activities associated therewith. The Arts Council shall name city as co-insured or additional insured on all insurance policies and such policies shall include a provision that written notice of any non-renewal, cancellation or material change in a policy by the insurer shall be delivered _to city thirty (30) days in,,_9.dvance of the effective date. X. USES OF THE PROPERTY The property shall be used for art, non-prOfit and other community uses and tenants of the Property shall be selected accordingly consistent with those eligibility criteria as set forth in Exhibit C attached hereto. No use or activity not authorized as provided for in this agreement shall be permitted on the Property. The Arts Council shall, furthermore, not allow any use or activity which may be prohibited by any insurance policy/coverage applicable to the Property. Arts Council shall also not permit the erection or display of any sign(s) or other advertising device without first having secured written permis~ sion therefor from the city Manager. Finally, the Arts Council agrees to comply with all laws, ordinances, rules and regulations that may pertain or apply to the Property and its Use. In performing under the agreement, Arts Council shall not discrimi- nate against any worker, employee or job applicant, or any member of the public, because of race, color, creed, religion, ancestry, national origin, sex, age, marital status, physical handicap, affectional or sexual orientation, family responsibility or political affiliation, nor otherwise commit an unfair employment practice. XI. DEFAULT AND TERMINATION OF AGREEMENT If the Arts Council shall fail to timely complYI wi'th any of the terms or conditions of this agreement or any notice given under it, or shall fail to obtain and maintain the rental of more 8 d,'_" \\ \\.~ ~~-, )~ "'-. ~~ II' ( ( than 50% of the leasable space of the Building for a period of time in excess ,of ninety (90) days (excluding time periods for repair), or should the Arts council become insolvent, or shall' have or attempt to make an assignment for the benefit of credi- tors, or if any of its property be attached and such attachment is not properly released, or if execution be issued against it, or if a petition be filed by or ,against it to have it adjudicated a bankrupt, or if a trustee or receiver shall be created or ,appointed to take charge of its assets, or should the Arts Council fail to enforce the terms and conditions of tenatit leases for space in the Building, the city may at any time afterwards treat suc~,act or omission as a breach of this agreement, enter onto the Property and assume full operational management thereof to the exclusion of the Arts Council. Any breach, default or failure by the Arts Council to perform any of the duties or obligations assumed by it under this agreement shall be cause for termination of the agreement by city "in the manner set forth in this paragraph. City shall deliver to Arts Council thirty (30) days prior written notice of its inten- tion to terminate this agreement, including in the notice a reasonable qescription of the breach, default or failure. If within that 'thirty (30) days the Arts Council shall fail or refuse, to cure, adjust or correct the breach, default or failure to the reasonable satisfaction of city, then City shall have the right to declare this agreement terminated and all rights, powers and privileges of the Arts Counci~ as provided through the agreement shall cease, and the Arts Council shall immediately vacate the entire Property and shall make no claim of any kind against City by reason of the termination. The thirty (30) days' prior written notice shall be conclusively determined to have been delivered to the Arts Council by the posting of same upon the main business entrance to th~ Property or at the time it is deposited in the U.S. Mail, certified postage prepaid, addressed to Executive Director, Aspen Snowmass Council for the Arts, P.O. Box 4615, Aspen, 81612, or such other address as previously designated in writing by the Arts Council. Any failure by City to'so terminate this agreement as herein provided after the breach, default or failure by the Arts Council to adhere to the terms of the agreement shall not be d~emed or ' construed to be a waiver or continuing waiver by City of any rights to terminate the agreement for any present or subsequent breach, default or failure. ' XII. CONDEMNATION If during the term of this agreement!, or any renewal of it, the whole or part of the Property, or such portion as will make 9 e ~ ~~ . .. c: ( the Property unusable, be condemned by public authority, includ~ ing City, for public use, then this agreement shall cease as Qf the date of the vesting of title in the Property in such condemn- ing authority, or when possession is given to such authority, whichever event occurs first. The Arts Council shall not be entitled to any part of any condemnation award for the value of the unexpired term of this agreement or for any other estate or interest in the Property, such amount belonging entirely to city. ~ XIII. OPTIONAL IMPROVEMENTS AND ALTERATIONS The Arts Council, upon city's written consent, may, at its own expense and utilizing its own funds, make reasonable and necessary alterations or improvements to the Property. All alterations, additions and improvements shall'be performed in a workmanlike manner, in accordance with all applicable building and safety codes, and shall not weaken or impair the structural strength or lessen the value of the premises. All alterations, additions and improvements made in or to the Property shall be the property of City and remain and be surrendered with the Property upon,termination of this agreement. The Arts Council agrees that prior to any construction or installation of alter- ations, additions or improvements, Arts Council shall post on the Property in a conspicuous place a notice of non-liability for mechanic's lien as specified at C.R.S. Section 38-22-105 on behalf of City and shall notify city of such posting and the exact location of same. Perfection of a mechanic's lien against the Property as a result of the Arts council's acts or omissions may be treated by city as a material breach of this agreement. City also reserves the right, from time to time, at its own expense and by its officials, employees and contractors, to make such alterations, renovations or repairs in and about the Proper- ty as City deems necessary or desirable. City shall provide reasonable notice to the Arts Council in advance of any intent to undertake alterations or repairs as authorized in this paragraph and all work shall be performed at such times as mutually agreed to between the parties so as to eliminate or minimize any disrup~ tion of the operation of the property. XIV. TERM OF AGREEMENT The initial term of this agreement shall be twelve (12) months commencing on the date that repairs and renovations of the Building as noted in Section II above shall have been comple~ed and a certificate of occupancy f,or same issued. City s~all provide the Arts Council with1sixty (60) days advance n6tice of the expected repair/renovation completion and certificate of occupancy date(s) . 10 'ei '0... \\" 'e' \~\ , 'l!! :~A . ( c It is anticipated between the parties that two (2) months before the expiration of the initial twelve (12) month term of this agreement, the parties shall confer to determine (1) the appropriateness of renewing this agreement fora new term, (2) amending the agreement, (3) entering into an-entirely new agree- ment, or (4) terminating the relationship between the parties. In the event the parties have been unable to finally determine .' the status of this agreement and their relationship by t!J.e expiration of the initial twelve (12) month term,then tnis agreement shall cont~nue on a month-to-month basis until a new term and/or agreement has been established. The city shall maintain the option and unqualified right to terminate the ,', services of the Arts Council and this agreement upon the expira- tion of the initial twelve (12) month term and/or after any month-to-month term as provided for hereinabove. XV. START UP FEE The CitYi,acknowledges that the Arts Council has limited operating funds and hereby agrees to pay to the Arts Council a monthly start-up fee of, One Thousand Four Hundred Fifty Dollars ($1,450.00) for services"rendered by Arts council during each month prior to the date(s) upon which the Building is ready for "occupancy and use by arts';, non-profit' and other tenants. During such start-up per:i,od, which shall,cominence ninety (90) days before planned occupancy, Arts council shall solicit and secure tenants for the Building, establish operating and maintenance policies, and take whatever further steps as are necessary to prepare the Building for occupancy and operation. XVI. PARKING MITIGATION The Arts ,Council agrees to monitor and control the parking on-site based on the following requirements: a. No free parking shall be provided on-site to tenants. b. Tenants shall have the option of leasing two (2) on- site parking spaces, cost to be determined by Arts Council and required to be more than the daily cost at the parking garage. c. Arts Council shall designate free spaces for qualified carpools. , , d. All on-J"site spaces not leased t-o 'tenants or assigned to carpooYs shall be signed with the 2-hour limit for Arts and Recreation Center visitors. 11 .... ", *, ~ ~ ~, \~ - (~- c e. Arts council shall be responsible for enforcing,all of the parking issues above. XVII. MISCELLANEOUS A. PERSONAL LIABILITY < The city acknowledges and agrees that the individuals comprising the Boar,d of Trustees for the Arts Council sha~l not be responsible in their personal and individual capacities for the performance of the terms and conditions as set forth in this agreement and shall, likewise, not be personally liable for the collection or payment of funds as provided for, except that nothing herein shall be construed to relieve individual Board Members from acts or omissions of a willful, malicious or illegal nature. The parties further agree that this provision shall_act as an absolute bar and defense to the commencement of any action or claim against Board Members in their personal and individual Gapacities by the city, except where such action or claim in- volves verified allegations of willful, malicious or illegal conduct. Any attempt by the city to assert a claim against one or more of the Board Members in their individual or personal capaci- ties, and which does not involve verified allegations of willful, malicious and/or illegal conduct, shall cause the City to pay reasonable attorney's fees and costs incurred by those against whom such a claim is asserted. B. NOTICES All notices, certificates or other communications hereunder sh~ll be sufficiently given and shall be deemed given when delivered or mailed by certified mail, postage prepaid, addressed as follows: If to the Arts council: Executive Director Aspen Snowmass Council for the ,Arts P.O. Box 4615 Aspen, Colorado 81612 with a copy to: Legal Counsel If to city: city of Aspen, Colorado 130 South Galena !Street Aspen, Colorado 81611 Attention: city Manager 12 I), iff, , ,{ '\\ '< '<<,',,'-,,", f? I)' '" " *",-', !, ~, ~ ( c with a copy to: city Attorney 130 South Galena Street Aspen, colorado 81611 C. SEVERABILITY 'I' In the event any provision of this agreement shall be held invalid or unenforceable by any court of competent jurisdiction, such holding shall not invalidate or render unenforceable any other provision hereof. D. AMENDMENTS The terms of this agreement shall not be waived, altered, modified, supplemented or amended in any manner whatsoever except by written instFume~t signed by the city and the Arts Council. .".,.-t;,. . ,',., E. EXECUTION IN COUNTERPARTS This agreement'may"be executed in two counterparts, each of which shall bean original and both of which shall constitute but one and' 'the same instrument. F. APPLICABLE LAW This agreement shall be governed by and construed in accor- dance with the laws of the State of Colorado and any action arising therefrom shall be maintained in the county or District Court in and for Pitkin county. G. CAPTIONS The captions or headings in this agreement are for conve- nience of reference only and in no way define, limit or describe ',;, the scope, or intent of any provision or sections of this agree- ment. H. WAIVER The failure of the city to take action with respect to any breach of any term, covenant, ,'or condition herein contained shall not be deeme4 to be a waiv~r of such term, covenant, or condi- tion, or subsequent breach of the same, or any other term, covenant, or condition. 13 -. (~ \1< - <I (- " c I. ENTIRE AGREEMENT This agreement constitutes the entire agreement between the city and the Arts Council. No waiver, consent, modification or change of terms of this agreement shall bind either party unless in writing signed by both parties, and then such waiver, consent, modification or change shall be effective only in the specific instance and for the specific purpose given. There are nR understandings, agreements, representations or warranties, express or implied, not specified herein regarding this agreement or the Property. J. ADDITIONAL DOCUMENTS The parties further agree to execute and deliver such addi- tional documents and agreements as necessary to carry out the intent of this agreement. K. NO THIRD PARTY BENEFICIARIES This agreement is not intended to create any right in or for the public, or any member of the public, including any subcon- tractor, supplier, or any other third party, or to authorize anyone not a party to this agreement to mairitain a suit to enforce or take advantage of its terms. L. ATTORNEY'S FEES If any action at law or in equity shall be brought to recover any payment under this agreement, or for or on account of any breach of, or to enforce or interpret any of the covenants, terms, or conditions of this agreement, the prevailing party shall be entitled to recover from the other party reasonable attorney's fees, the amount of which shall be fixed by the court and shall be made a part of any judgment or decree rendered. M. NO 'REMEDY EXCLUSIVE No remedy herein conferred upon or reserved to the city is intended to be exclusive and every such remedy shall be cum- ulative and in addition to every other remedy given under this agreement or existing at law or in equity. No delay or omission hereunder shall impair any such right or power or shall be construed to be a waiver thereof, but any such right and power may ,be exercised from time to time and as often as may be deemed e~pedient. I N. ARTS COUNCIL AS NON-PROFIT The Arts Council hereby represents that it is a not-for- profit organization incorporated under the laws of the State of Colorado, that it is op~rated exclusively for charitable purposes 14 ~el,'", 12 ~' Z;" . ,. ~. &_'" \< ~\, "< --- c C' as those terms are defined by Article X, section 5 of the Colo~a- do Constitution, and, that is has received tax exempt status from the Internal Revenue Service pursuant to section 501(c) (3) of the IRS Code. Any change or attempt to change the non-profit status pf the Arts Council shall be reported in writing to, the city immediately. ' IN WITNESS WHEREOF,the City has executed this agree1nent in its name with its seal hereunder affixed and attested by its duly authorized officers, and the Arts Council has caused this agree- ment to be executed in its name and attested by its duly autho- rized officer. CITY OF ASPEN' By: John S. Bennett, Mayor Date ":"" ATTEST: ",.', Kathryn S. Koch, city Clerk ASPEN SNOWMASS COUNCIL FOR THE ARTS By: Date Title: WITNESS: jC810.1 15 e, \f~ " ""'-. .~" ",,- 'I)" it' .. 'c.,_ c EXHIBIT CITY AND ARTS COUNCIL MANAGEMENT AGREEMENT TENANT SELECTION CRITERIA Tenants will be selected by the Aspen Snow mass Council for the Arts pursuant to the following standards and considerations. In order to provide the Council with the flexibility needed to evaluate and coordinate diverse prospective tenants, tenants' needs and available space, a subjective, non-formula, approach will be used. There will be no bias in favor of members of the Council. Tier 1 - Requirements " In order to be eligible for consideration as a tenant, the following absolute requirements must be met. 1. The tenant must be an arts or recreation related not-for-profit organization, or an artist (allowed within certain bond related limitations), Other "community uses" can be accommodated consistent with the language of the bonds and election, but arts, artists and recreation will be given priority. "Not for Profit" as used above means a duly constituted SOl (c) (3) corporation having received and maintained such designation from the Internal Revenue Service. 2. The prospective tenant must demonstrate ability to pay rent and meet other related financial obligations pursuant to the lease. Financial statements, tax returns and landlord references will be analyzed. 3, The prospective tenant must be willing to sign the standard lease, 4. All activities to be conducted on the premises by the prospective tenant must be consistent with zoning, Tier 2 - Considerations Those prospective tenants who meet the Tier 1 requirements will be evaluated based on factors including, but not limited to, the following which are not listed in priority order: 1. 2. 3. 4. 5. 6. 7. 8, 9, 10. 11. Compatibility with other users, Traffic generation (pedestrian, vehicle), Noise, odor, light, energy impacts, Education orientation, Creative vs, administrative ,!ctivities, Tenant improvements tal be made, Involvement in community, Input from existing tenants, Plans to manage, handle and dispose of any hazardous materials used, Neighborhood impacts and plans to mitigate, Impact on open space,