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HomeMy WebLinkAboutresolution.council.158-00 RESOLUTION NO. 158 (Series of 2000) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, APPROVING THAT .CERTAIN MANAGEMENT AGREEMENT BETWEEN THE CITY OF ASPEN AND THE ASPEN/SNOWMASS COUNICL FOR THE ARTS RELATIVE TO THE YELLOW BRICK SCHOOL BUILDING AlXff) 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 a certain Management Agreement between the City of Aspen and the Aspen/Snowmass Council for the Arts relative to the Yellow Brick School, 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 certain Management Agreement between the City of Aspen and the Aspen/Snowmass Council for the Arts relative to the Yellow Brick School, 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. , APPROVED AND ADOPTED this lO'day of 2000__, by the City Council for the City of As~ ~Ma~ 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 Cotmcil of the City of Aspen, Colorado, ara meeting held' ~~' //t~ , 200~ Kathryn S. I~h, Cit~ Clerk MANAGEMENT AGREEMENT TI-lIS 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. WlTNESSETH: WHEREAS, the City is to purchase and secure title to that building and property commonly known as the Yellow Brick School, and more particularly described in Exhibit A attached hereto and fully incorporated herein by this reference; and WHEREAS, the building and property are m be purchased by the City to afford a long- term home for childcare and other non-profit groups and for other community uses; and WHEREAS, the City's intention and desire is to allow the Yellow Brick School to be used, operated, maintained, managed and supported as much as possible by community groups and citizens as a community center andnot 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 Yellow Brick School in accordance with the terms and conditions as set forth below; and WI-IEREAS, the City and the Arts Council are authorized and willing to enter into this agreement for the purposes as described herein, NOW, THEREFORE, in consideration of the mutual promises herein contained, the City and the Arts Council agree as follows: I. MANAGEMENT SERVICES The City hereby retains the Arts Council to provide all rnana~ment services necessary m operate and maintain the Yellow Brick School and property, exclusive of those portions of the building occupied, used and maintained by the City for governmental purposes (the "Property"), in an efficient 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 Yellow Brick School ("Building"), exclusive of those portions of the Building to be occupied and maintained by City, to qualified tenants on terms satisfactory 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. 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), cleaning, painting, grass cutting, landscaping, snow removal from accessways, parking areas and outdoor walkways, non- structural repairs, including repairs to lighting, heating, plumbing, electrical and ventilation 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 Yellow Brick School 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 other income derived from the rental of space in the Building, and execute and serve such notices and demands as necessary to collect delinquem rents or secure compliance with rental terms from tenants. Pursuant to these duties, the Arts Council shall be authorized to the extent permitted by law, at its cost, to undertake, compromise or terminate such legal actions in the name of the City as it may deem necessary to collect delinqnem rents, deposits, or costs, recover possession of any rented premises, or secure compliance with rental terms from non- complying tenants. No other form of 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 parr 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 extraordinary structural repairs and capital improvements immediately prior to the Arts Council's assumption of its management duties as provided for under this agreement. In the event additional or future structural repairs and/or capital improvements 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 2 walls, the building foundation, the plumbing, water, sewer, electrical, heating and/or ventilation systems, including replacement of fixtures and equipment, 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 reserves, the City may, in its sole and exclusive discretion, utilize other funds within its control to undertake such necessary repatrs and/or improvements, so long as such expenditures are reimbursed to the City m 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 concerning the necessity of any structural repmr or capital improvemem, the City shall have ultimate decision-making authority with regard to same. m. 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 improvements to the Building or Property as may be required at any time m the future by reason of the Amermans with Disabilities Act of 1990 ("Act"). Moreover, the parties agree that the Arts Council shall not be responsible for indemnifying the City for any actions, civil or otherwise, arising 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 $30,000.00 to help defray the cost of the Building. Such amount shall be paid in monthly installments of $2,500.00, due on or before the 1s* 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 agreemem. 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 aud nlaintenance, including utility costs, as more particularly described in Section I (2) above. C. CAPITAL RESERVE FUND 3 After payment to the City 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 (12%) of total building revenues as compensation for its management services as described herein. D. CAPITAL RESERVE FUND After the disbursements as specified in Paragraphs A, B and C above, the Arts Council shall pay any and all remaining collected revenues into a capital reserve fund. Such reserve fund shall be in the name of the City and shall be applied as necessary to defray the costs of capital repairs and/or improvements as described in Sections II and III above over the life of the property. 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 books, accounts, and records required to be maintained hereunder available to the City, or other representatives of the City, for examination and audit by appointmem on no less than one day's notice. The Arts Council shall furrdsh 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 invomes, 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 will be made available for City review at any time. The Arts Council 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, including plans for any capital expenditures or improvements. Upon the expiration 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 m the City along with all books, ledgers, documents and other records per~ining thereto. VI. BANK ACCOUNTS A. OPERATIONS TRUST ACCOUNT The Arts Council shall deposit all revenues from the Property 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 the Arts Council; The ACts Council shall pay all operation and management expenses and other costs with respect to the Property from the trust accoum. 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 that 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 security 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, er 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 employed or hired by the Arts Council. Arts Council shall be solely responsible to pay all wages, fees and costs associated therewith. The Arts Council shall exercise reasonable care in the hiring of all employees and contractors. VIH. 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 indenmify, defend and hold harmless 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. occupancy or maintenance of same, whether caused by the Arts Council, its employees, agents, or invitees, or other third persons, including tenants. Nothing herein, however, shall be construed to impose liability.or 5 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 certificate(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 operation of the Property. The insurance shall be procured from a company authorized to do business in the State of Colorado and be satisfactory to City. The mount(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 maximum liability 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 of 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 catastrophe so as to render said premises wholly untenantable, and ff such damage is so great that a competent licensed architect in good standing in Pitloa County, Colorado, as selected by the City within thirty (30) days from the date of loss, shall certify in 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 damage, then this agreement may terminate and City may re-enter the Property and take possession. The Arts Council shall subordinate its rights and interests in any insurance proceeds as provided for in any insurance policy as required by this agreement. If, however, the damage is not such as to prevent reoccupation 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 duties and obligations to provide services to the City as herein set forth shall be suspended, along with the Art 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. 6 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 advance of the effective date. X. USES OF ~ PROPERTY The property shall be used for childcare and education, non-profit and other community uses and tenants of the Property shall be selected accordingly consistem with those eligibility criteria as set forth in Exhibit C attached hereto. No use or activit7 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 devise without first having secured written permission therefor from the City Manager. Finally, the Arts Council agrees m comply with all laws, ordinances, rules and regulations that may pertain or apply to the Property and its use. In performing under the agreemem, Arts Council shall not discriminate against any worker, employee or job applicant, or any member of the public, because of race, color, creed, religion, ancesu'y, 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 comply with 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 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 creditors, 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 u:ustee 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 tenant leases for space in the Building, the City may at any time afterwards treat such 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 m 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 intention to terminate this agreement, including in the notice a reasonable description 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 Council 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 mason 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 the 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, 110 East Hallam Street, Suite 118, Aspen, Colorado 81611, 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 deemed or construed to be a waiver or continuing waiver by City of any fights to terminate the agreement for any present or subsequent breach, default or failure. XII. CONDEMNATION If during the term of this agreemem, or any renewal of it, the whole or part of the Property, or such portion as will make the Property unusable, be condemned by public authority, including City, for public use, then this agmemem shall cease as of the date of the vesting of title in the Property in such condemning authority, or when possession is given m 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 Propervy, such amount belonging entirely to City. XIH. 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, m 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 alteratiom, 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, m make such alterations, renovations or repairs in and about the Property 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 mi~imi?e any disruption of the operation of the Property. 8 XIV. TERM OF AGREEMENT The initial term of this agreement shall be twelve (12) months commencing on January 1, 2001. It is anticipated between the parties that two (2) months before the expiration of the initial twelve (12) month term of this agreemem, the parties shall comer to determine (1) the appropriateness of renewing this agreement for a new term, (2) mending the agreement, (3) entering into an entirely new agreemem, 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 the expiration of the .initial twelve (12) month term, then this agreement shall continue on a month-to-month basis until a new term and/or agreement has been established. The City shall, maintain the option and unqualified fight to terminate the services of the Arts Council and this agreement upon the expiration of the initial twelve (12) month term and/or after any month-to-month term as provided for hereinabove. XV. START UP FEE The City acknowledges that the Yellow Brick School has existing operating funds and hereby agrees to mm over the management of such funds to the Arts Council. XVL PARKING The Arts Council is aware that there is no on-site parking available and on-street parking is controlled by the City of Aspen Parking and Transportation Depa~huent. XVII. MISCELLANEOUS A. PERSONAL LIABILITY The City acknowledges and agrees that the individuals comprising the Board of Trustees for the Arts Council shall 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 capacities by the City, except where such action or claim involves 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 capacities, 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 9 All notices, certificates or other communications hereunder shall be sutlicienfly 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 110 East Hallam, Suite 118 Aspen, Colorado 81611 With a copy to: Legal Counsel City of Aspen, Colorado 130 South Galena Street Aspen, Colorado 81611 Attention: City Manager With a copy to: City Attorney 130 South Galena Street Aspen, Colorado 81611 C. SEVERABILITY 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. I)o AMENDMENTS The terms of this agreement shall not be waived, altered, modified, supplemented or mended in any manner whatsoever except by written instrument signed by the City and the Arts Council. E. EXECUTION IN COUNTERPARTS This agreement may be executed in two counterparts, each of which shall be an original and both of which shall constitute but one and the same instrument. F. APPLICALE LAW 10 This agreement shall be governed by and construed in accordance 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 tiffs agreement are for convenience of reference only and in no way define, limit or describe the scope or intent of any provision or sections of this agreement. 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 a waiver of such term, covenant, or conditions, or subsequent breach of the same, or any other term, covenant, or condition. I. ENTIRE AGREEMENT This agreemem constitutes the entire agreement between the City and the Arts Counci/. No waiver, consem, modification or change of terms of this agreemem shall bind either party unless in writing signed by both parties, and then such waiver, consem, modification or change shall be effective only in the specific instance and for the specific purpose given. There are no understandings, agreements, representations or warranties, express or implied, not specified herein regarding this agreement or the Property. J. ADDITIONAL DOCLrMENTS The parties further agree to execute and deliver such additional 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 subcontractor, supplier, or any other third party, or to authorize anyone not a party to this agreement to maintain 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 agreemem, 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. 11 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 cumulative and in addition ~o 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 eomtrued 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 expedient. N. ARTS COUNTIL 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 operated exclusively for charitable purposes as those terms are defined by Article X, Section 5 of the Colorado Constitution, and that it has received tax exempt status from the Internal Revenue Service pursuant to Section 501 ICI (3) of the IRS Code. Any change or attempt to change the non-profit status of the Arts Council shall be reported in writing to the City immediately. 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 agreement to be executed in its name and at-tested by its duly authorized officer. CITY OF ASPEN ATTEST: Kathryn S. ~a, Cj~ ~lerk ASPEN SNOWMASS COUNCIL FOR THE ARTS 12 WITNESS: 13 // / EXHIBIT "C" CITY OF ASPEN AND ARTS COUNCIL MANAGEMENT AGREEMENT TENANT SELECTION CRITERIA For ail space within the facility not occupied by the City of Aspen or lessees of the City, tenants shall be selected by the Aspen Snowmass Council for the Arts pursuant to the following standard and considerations. In order to provide the Council with the flexibility needed to evaiuate 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: I. The tenant must be a Child Care, Educational, not for profit, or governmental organization related to "Community Needs", to be given priority and consideration. "Not for Profit" as used above mans a duly constituted 501 (c) (3) corporation having received and maintained such designation from the Internal Revenue Service. 2. The prospective tenant must demonstmt, e ability to pay rent and meet other related financial obligation pursuant to the lease. Financiai statements, tax returns and landlord references will be anaiyzed. 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 and building use. Tier 2 - Considerations Those prospective tenants who meet the Tier 1 requirements will be evaiuated based on factors including, but not limited to, the following which are not listed in priority order: 1. Compatibility with other users, 2. Traffic generation (pedestrian, vehicle), 3. Noise, odor, light, energy impacts, 4. Education orientation, 5. Administrative vs. Creative activities, 6. Tenant improvements to be made, 7. Involvement in community, 8. Input from existing tenants, 9. Neighborhood impacts and plans to mitigate, 10. Impact upon open space.