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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 c, 1�"-!r .7 Omaha/Douglas Civic Center k'f�1rs�r f` C'J «���„ 96 DEC �7 P�� D, ` r� 1819 Farnam Street,Suite 1100 172,:[Y* gym 1 L Omaha,Nebraska 68183-0110 o•,t yam'; .. 7.6-. : . ro (402)444-5200 °RAT 'y��t�'� (402)444-5150 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. ' . , 0. . .44( L _ _. 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. -2- 41( I • 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. -3- • 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: -4- • 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: I if ,- / By �t / y/� lerk, Ci o Omaha Mayor, City of Omaha APPROVED AS TO FORM: 1--6.2"--( . ilVg.</ City Attorney P:\LAW\2312.PJM • 1 -5- 0 • 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. 4111 C-25A 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: / ()I ,---,...64_,,t. ,,r. .49..._ „ ASSISTANT CITY ATTORNEY 4.14," / • By Councilmember Adopted JAN...- 1997 <�_ ... ... . .... . ...... ... - City C rk Approved ,.. ....... Mayo , q Pecbc \. . . . 2 2 g ti \ X1 9 . / k 0 ° / q 7 § * . / $ ° Q § ' k < ' § q 2 g 3' , k; � } 7 \ m \ / R a \ 0 2 . n @ « f o 7 c \ ciiIi � vi # . . • n & i E 7 � ' � Lrn ° / \ E o - o q 0 7 n -, - o U 7 p 7 \ \ § • 11111:,--' . . � .k , 2 2 ^< _.-; x.. : .. ` « . . \ . � - _