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HomeMy WebLinkAboutresolution.council.050-07 ,"...._,_...<.__""._...__<_."'''.._ < _ ...._............__._~~<_._ '"_'_'_~'._"""'-.~_"---'-<~"~_~_""__<__ '._ _ _. ...."_.-._,.___~__,,_._.u RESOLUTION # ~ (Series of 2007) A RESOLUTION APPROVING A CONTRACT BETWEEN THE CITY OF ASPEN, COLORADO, AND WHEELER FILM SOCIETY, FOR THE PURPOSE OF SECURING A CINEMA PROGRAM FOR THE WHEELER OPERA HOUSE, 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 provision of a regular cinema program for the Wheeler Opera House, 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: ~ Od::-",,/ Q:ltX) 7-- ( ~~$r- ichael C. Ireland, Mayor I, Kathryn S. Koch, duly appointed and acting City Clerk do certify that the foregoing is a true and accurate copy of that resolution ador~:~~~he City Council of the City of Aspen, Colorado, at a meeting held ~u L.: i2007. SERVICES AGREEMENT WHEELER FILM SOCIETY THIS AGREEMENT made this ~ day of June, 2007, 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 of commercially-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 August 13, 1990, 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: I. 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, aRB witll tile fiRal allprsyal sf Wlleeler Ollere HSHse 0# maAageIHeRt as regards titles aHa sereeRiRg times, Contractor shall select, secure, and exhibit films using available open calendar dates in the Wheeler schedule. 2. Contractor has the exclusive rights to self-promoted and non-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. The Wheeler Opera House shall not engage in the booking or exhibition of cinema product in a manner that will directly compete philosophically in or practice with the Contractor. 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 may be 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 $ I 00 per affected date. Penalty fees 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 clean-up 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), Contractor will be wholly responsible for the equipment's proper set-up and tear-down before and after the scheduled screening(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 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 co-promotion or other third-party venture 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 or 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 a per-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. II. All fees associated with Paragraph 10 above shall be deducted from gross ticket revenue and 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 mutually by the Wheeler Opera House and Contractor. Further, the Contractor will supply the City on a monthly basis a fully-detailed financial summary with year-to-date figures for all Wheeler Film Society operations conducted onsite at the Wheeler Opera House. This report will be expected not later than the 20th day of the month, or the first regular business day thereafter, for the previous month. Responsibility for the delivery of this report to City will rest solely with the Contractor. 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 may be 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 August 1,2007 through July 3 1,2008, 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 Wheeler Opera House premises within five business days. Upon satisfactory annual review, the term of the Agreement may be 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 within the City of Aspen. Failure to maintain such license will result in immediate suspension of payments to the Contractor, and may result in tennination 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, induding, 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 perfonnance 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 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 from 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, provisions, conditions, representations or covenants can be modified, changed, terminated or amended, waived, superceded 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 may be hand-delivered to the respective persons and/or addresses listed below or mailed by classified mail, return receipt requested, to: City of Aspen c/o City Manager 130 South Galena Street Aspen CO 8161 I Board of Directors Wheeler Opera House 320 East Hyman A venue Aspen CO 81611 Wheeler Film Society PO Box 1884 Aspen CO 81612 Jon Busch 548 Race Street Aspen CO 8161 I Don Swales PO Box 1884 Aspen CO 81612 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 after 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: Steve Barwick, City Manager ATTEST: Kathryn S. Koch, City Clerk WHEELER FILM SOCIETY BY~ B~ n usch By: Don Swales Addendum to Cinema Services Agreement AGREEMENT, made this fith day of 2007, by and between WHEELER FILM SOCIETY (hereinafter referred to as Contractor) and the CITY OF ASPEN - THE WHEELER OPERA HOUSE (hereinafter referred to as City) whose address is 320 East Hyman Avenue, Aspen CO 81611. 1. This Addendum document, dated _ June 2007, is accepted by both City and Contractor as a part of the Cinema Services Agreement. 2. Contractor, as part of the acceptance of the Cinema Services Agreement offer, shall reimburse the City for all past monies loaned or otherwise provided by the City over the course of its contractual arrangement to provide cinema services for the Wheeler Opera House over the period from 1990 - 2007. These monies include a $5,000 loan, and $2,500 in seed money, for $7,500 total. 3. Contractor shall not be allowed to execute in any manner the duties and assigns associated with its 2007-2008 Cinema Services Agreement until such time that such past monies have been reimbursed to the City. 4. Failure on the part of Contractor to provide payment for such past monies within six months from signature date below will result in the 2007-2008 Cinema Services Agreement being rendered null and void. In Witness Whereof, the parties have executed this agreement as of the date first written above. ~II~ for The City of Aspen '7~1/~o) date '/I~ / D7 1 date