RES 1997-0127 - Lease agmt with Omaha Magic Foundation for performing arts theater at 325 S 16th St ) 441 L/ 4yreeme4
' e4, RECEIVED Planning Department
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ED FEBR CITY CLERK Telefax(402)444-6140
City of Omaha tiklit al y Ni[BiV9$K A
Hal Daub,Mayor .
Honorable President
and Members of the City Council,
The attached proposed Resolution approves a Lease Agreement between the City of Omaha and the
Omaha Magic Theatre Foundation for the building at 325 South 16th Street. This building is the
former Lerner.Building that was donated to the City in 1995. The Omaha Magic Theatre Foundation
is a Nebraska non-profit corporation with its principal place of business at 325 South 16th Street,
Omaha,Nebraska 68102.
The City acquired the structure to continue the revitalization of 16th Street. The rehabilitation of
the Securities Building at 305 South 16th Street is underway and the remaining major structures
along 16th Street have been revitalized or are new structures. At the time the City accepted the
donation of the Lerner Building, consideration was given to use the site for a parking facility or to
seek to rehabilitate the building.
This Lease Agreement provides that the City rent the building to the Magic Theatre Foundation for
a .6 month term for $1.00. The Lease Agreement provides the option to renew the lease for 3
additional 6 month terms. The building will be used as a performing arts theater and for associated
activities. The Magic Theatre will be responsible for all utilities used and for repairs, upkeep and
maintenance of building systems. The Magic Theatre will maintain property, liability and worker's
compensation insurance with the City as an additional named insured.
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LEASE AGREEMENT
This Lease Agreement is hereby made and entered into this 1st day of January, 1996,by and
between the CITY OF OMAHA,a municipal corporation organized and existing under the laws of
the State of Nebraska located in Douglas County,Nebraska, (hereinafter referred to as "") and THE
OMAHA MAGIC THEATRE FOUNDATION, a non-profit organization, (hereinafter referred to
as "Magic").
In consideration of the mutual covenants herein set out,the parties agree as follows:
I. DESCRIPTION OF PREMISES
The City hereby leases to Magic the building situated as 325 South 16th Street, Omaha,
Douglas County,Nebraska,more specifically being the area and buildings formerly occupied by a
Lerner Store and Brodkey Jewelry Company and being all floors and basements therein; for use as
a performing arts theater by a non-profit organization and to conduct educational events open to the
general public with storage, dressing rooms, rehearsal space, ticket sales, displays and associated
activities therewith.
II. RENT
Magic shall pay the City one dollar($1.00)only for each six month term.
III. TERM
The City grants Magic three(3)separate and consecutive options to renew this lease for three
(3) consecutive six(6)month terms at said rental amount.
IV. UTILITIES AND SERVICES
Magic shall pay for all electricity, gas, water, fuel, or any services or utilities used in or
assessed against the premises,unless otherwise herein expressly provided.
The City does not guarantee the condition or efficiency of the boilers, furnaces, hot water
heaters, elevators,roof,or air conditioning units. Magic agrees to pay for necessary repairs,upkeep,
and maintenance of these existing items. However,if these items cannot be repaired and/or replaced
by Magic because of excessive or intolerable cost,the City may, at its option, replace and/or repair
these said items in order to continue the use and tenancy of the premises; and if said repairs or
replacements are not made,Magic may vacate the premises herein and the City will provide moving
and removal services and costs as allowed by law.
• V. USE OF THE LEASED PREMISES
Magic agrees that the leased premises shall be used by Magic exclusively as non-profit
theater company and for no other purpose whatever. Such use shall conform with applicable city
ordinances and state and federal laws. Magic may not sell, sublet, assign, or relinquish any or all
of the premises without written consent of the City.
At the election of the City, Magic agrees to use reasonable care and diligence in guarding
said property,with buildings,gates,fences, shrubbery,etc.,from any and all damage. Magic further
agrees to repair the same as often as the City may require it. Magic agrees that it will not permit any
unreasonable noise or nuisance whatever on said premises to the disturbance of other tenants.
VI. INSURANCE
Magic agrees to procure and maintain in force with companies licensed to do business in the
State of Nebraska, (1)comprehensive general liability insurance with, at minimum, policy limits of
$1,000,000 per person/$5,000,000 per occurrence for bodily injury or death and $200,000 for
property damage exclusive of coverage for property damage to adjacent structures, and (2)workers'
compensation insurance in accordance with the laws of the State of Nebraska. Said policies shall
include the City of Omaha as an additional named insured.
A certified copy of the policies, or a certificate evidencing the existence thereof, shall be
delivered to the City. Each such copy shall contain a valid provision or endorsement that the policy
may not be cancelled,terminated, or materially changed or modified without giving thirty (30) days
written notice thereof to the City. Each such policy shall contain an additional endorsement
providing that the insured's carrier shall not,without obtaining express advance permission from the
City, raise any defense involving in any way the immunity of the City, its officers, agents or
employees,the governmental nature of the City,or provisions of any statutes respecting suits against
the City.
Upon receipt of notice from the City, Magic shall take such action as the City deems
necessary and expedient to insure that the City is held harmless from any liability from any cause
whatsoever arising as a result of Magic's conduct as a non-profit theater company pursuant to the
terms of this Lease Agreement.
VII. INDEMNIFICATION
Magic agrees to indemnify and hold harmless the City, its officers, agents, and employees,
their successors and assigns,individually and collectively from and against all liability for any fines,
claims, suits, demands, actions, or causes of action of any kind and nature asserted by Magic or
anyone else, for personal injury or death, or property damage in any way arising out of or resulting
from any activity, program, use, action or determination of Magic, its agents or employees or its
patrons. Magic further agrees to pay all expenses,including attorney's fees,in defending against any
claims made against the City;provided that Magic shall not be liable for any injury, loss, damage,
or attorney's fees occasioned by the negligence or wilful misconduct of the City, its agents or
employees.
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• VIII. INDEPENDENT CONTRACTOR
It is understood by and between Magic and City that any and all acts that Magic or its
personnel,employees, agents, contractors, or servants,perform pursuant to the terms of this Lease
Agreement shall be undertaken as independent contractors and not as employees of the City. The
City and Magic shall each act in their individual capacities and not as agents, employees,partners,
joint venturers or associates of the other. An employee or agent of one shall not be deemed or
construed to be the employee or agent of the other for any purpose whatsoever. Magic is not entitled
to any City benefits except moving and removal services and costs as allowed by law. The City shall
not provide any insurance coverage to Magic or its employees including,but not limited to,workers'
compensation insurance. Magic shall pay all wages, salaries and other amounts due its employees
and shall be responsible for all reports, obligations, and payments pertaining to social security
taxation, income tax withholding, workers' compensation, unemployment compensation, group
insurance coverage,collective bargaining agreements or any other such similar matters. Magic shall
have no authority to bind the City by or with any contract or agreement, nor impose any liability
upon the City. All acts and contracts of Magic shall be in its own name and not in the name of the
City, unless otherwise provided herein.
IX. INTEREST OF THE CITY
Pursuant to section 8.05 of the Home Rule Charter, no elected official or any officer or
employee of the City shall have a financial interest, direct or indirect, in any City contract. Any
violation of this section with the knowledge of the person or corporation contracting with the City
shall render the contract voidable by the Mayor or Council.
X. INTEREST OF THE CONTRACTOR
Magic covenants that it presently has no interest and shall not acquire any interest, direct or
indirect,which would conflict with the performance of services required to be performed under this
Lease Agreement;it further covenants that,in the performance of this Lease Agreement, no person
having any such interest shall be employed.
XI. EQUAL EMPLOYMENT OPPORTUNITY CLAUSE
Annexed hereto as Exhibit "A" and made a part thereof by reference are the equal
employment provisions of this Lease Agreement. Refusal by Magic to comply with any portion of
this program as therein stated and described will subject the offending party to any or all of the
following penalties:
A. Withholding of all future payments under the involved contracts to the contractor in
violation until it is determined that Magic is in compliance with the provisions of the
contract;
B. Refusal of all future bids for any contracts with the City or any of its departments or
divisions until such time as Magic demonstrates that it has established and shall carry
out the policies of the program as herein outlined.
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• XII. NONDISCRIMINATION
Magic shall not, in the performance of this Lease Agreement, discriminate or permit
discrimination in violation of federal or state laws or local ordinances because of race, color, sex,
age,political or religious opinions, affiliations or national origin.
XIII. CAPTIONS
Captions used in this Lease Agreement are for convenience and are not used in the
construction of this Lease Agreement.
XIV. APPLICABLE LAW
Parties to this Lease Agreement shall conform with all existing and applicable City
ordinances,resolutions, state and local laws, federal laws, and all existing and applicable rules and
regulations. Nebraska law will govern the terms and the performance under this Lease Agreement.
XV. STRICT COMPLIANCE
All provisions of this Lease Agreement and each and every document that shall be attached
shall be strictly complied with as written, and no substitution or change shall be made except upon
written direction from an authorized representative.
XVI. MERGER
This contract shall not be merged into any other oral or written contract,lease or deed of any
type. This is the complete and full agreement of the parties.
XVII. MODIFICATION
This Lease Agreement contains the entire agreement of the parties. No representations were
made or relied upon by either party other than those that are expressly set forth herein. No agent,
employee or other representative of either party is empowered to alter any of the terms hereof unless
done in writing and signed by an authorized officer of the respective parties.
XVIII. ASSIGNMENT
Neither Magic or City may assign its rights under this Lease Agreement without the express
prior written consent of the other.
XIX. AUTHORIZED REPRESENTATIVE
In further consideration of the mutual covenants herein contained,the parties hereto expressly
agree that for purposes of notice, including legal service of process, during the term of this Lease
Agreement and for the period of any applicable statute of limitations thereafter,the following named
individuals shall be the authorized representatives of the parties:
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• A. City of Omaha :.
Jeffrey P. Johnson,Director
Parks,Recreation and Public Property Department
Omaha/Douglas Civic Center
1819 Farnam Street
Omaha,NE 68183 .
B. The Omaha Magic Theatre Foundation
JoAnn Schmidman
325 South 16th Street
Omaha,NE 68102
EXECUTED this day of 1--- , 1996.
ATTEST: THE OMAHA MAGIC THEATRE
FOUNDATION
/ a �....,
/771tf-1 ✓D By � ,
torus. Title
EXECUTED this /Aay of __ 199 .
CITY OF OMAHA, a Municipal Corporation,
A'IthST:
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By �t / y/�
lerk, Ci o Omaha Mayor, City of Omaha
APPROVED AS TO FORM:
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City Attorney
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Exhibit "A"
• - • EQUAL EMPLOYMENT OPPORTUNITY CLAUSE
During the performance of this contract, the contractor agrees as follows:
( 1 ) The contractor shall not discriminate against any employee applicant for employment
because of race, religion. color, sex or national origin. The contractor shall take
affirmative action to ensure that applicants are employed and that employees are treated
• during employment without record to their race. religion. color, sex or national origin.
As used herein, the word 'treated' shall mean and include, without limitation, the
following: Recruited. whether advertising or by other means: compensated: selected for
:raining: including apprenticeship: promoted: upgraded: demoted: downgraded:
transferred: laid off:•and terminated.
The contractor agrees to and shall post in conspicuous places, available to employees and
applicants for employment, notices to be provided by the contracting officers for
•
employment, notices to be provided by the contracting officers setting forth the
provisions of this nondiscrimination clause.
_ (2 ) The contractor shall, in all solicitations of advertisements for employees placed by or on
behalf of the contractor, state that all qualified applicants will receive consideration for
employment without regard to race, religions, color, sex or national origin.
( 3 ) The contractor shall send to each labor union or representative of workers with which
he has a collective bargaining agreement•or other contract or understanding a notice
advising the labor union or worker's representative of the contractor's commitments
under the equal employment opportunity clause of the city and shall post copies of the
notice in conspicuous places available to employees and applicants for employment.
(4 ) The contractor shall furnish to the contract compliance officer all federal forms
containing the information and reports required by the federal government for federal •
contracts under federal rules and regulations, and including the information reouired by
Section 10-192 to 10-194, inclusive, and shall permit reasonable access to his
records. Records accessible to the contract compliance officer shall be those which are
related to Paragraphs (1) through (7) of this subsection and only atter reasonable
notice is given the contractor. The purpose of this provision is to provide for
investigation to ascertain compliance with the procram provided for herein.
- • • (5 ) The contractor shall take such actions with respect to any subcontractor as the city may
direct as a means of enforcing the provisions of Paragraphs (1) through (7) herein,
including penalties and sanctions for noncompliance: however, in the event the
contractor becomes involved in or is threatened with litigation as the result of such
directions by the city, the city will enter into such litigation as necessary to protect the
interests of the city and to effectuate the provisions of this division: and in the case of
contracts receiving leoeral assistance, the contractor or the city may recuest the United
States to enter into such litigation to protect the interest of the United Sates.
(6 ) The contractor shall file and shall cause his subcontractors. if any. to file compliance
reports with the contractor in the same form and to the same extent as reouired by the
federal government for feoeral contracts under feoeral rules -and regulations. Such
compliance reports shall be filed with the contract compliance officer. Compliance
reports filed at such times as directed shall contain information as to the employment
• practices. policies, programs and statistics of the contractor and his subcontractors.
(7 ) The contractor shall include the provisions of Paragraphs (1) through (7) of this
Section. "Equal Employment Opportunity Clause', and Section 10-193 in every
subcontract or purchase order so that such provisions will be binding upon .each
subcontractor or vendor.
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PP . CITY OF OMAHA
LEGISLATIVE CHAMBER
c
Omaha, Nebr January 7 19......7„
RESOLVED BY THE CITY COUNCIL OF THE CITY OF OMAHA:
WHEREAS, the primary objectives of the City of Omaha's Master Plan and
Community Development Program are to encourage additional investment and development within
inner-city neighborhoods; and to eliminate conditions which are detrimental to public health, safety ' -,
and welfare,by developing underutilized property within these neighborhoods; and, j
WHEREAS,The Omaha Magic Theatre Foundation operates a performing arts theater
in the building owned by the City of Omaha at 325 South 16th Street; and,
WHEREAS,The Omaha Magic Theatre Foundation and the City of Omaha desire to
enter into a Lease Agreement to provide for the operation of a performing arts theater at 325 South
16th Street; and,
WHEREAS,it is in the best interests of the citizens of the City of Omaha to enter into .
a Lease Agreement with The Omaha Magic Theatre Foundation for the operation of a performing
arts theater at 325 South 16th Street.
NOW THEREFORE,BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF OMAHA:
THAT, the Mayor and City Clerk are authorized to execute the attached Lease
Agreement with The Omaha Magic Theatre Foundation, a Nebraska Non-profit Corporation, 325
South 16th Street, Omaha, Nebraska 68102, for the operation of a performing arts theater at 325
1 South 16th Street.
P:\PLN1\2515.PJM APPROVED AS TO FORM:
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ASSISTANT CITY ATTORNEY 4.14," /
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By Councilmember
Adopted JAN...- 1997 <�_
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