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HomeMy WebLinkAboutResolution - 2023-R0366 - License Agreement, Civic Lubbock Inc, 2023 Cultural Arts Grant Program - 07/25/2023Resolution No. 2023-R0366 Item No. 5.22 July 25, 2023 RESOLUTION B� IT RESOLVED I3Y TII� CITY COUNCIL OF "I'IIL CIT'Y OP LUBBOCK: "fHA"1' the Mayor of the City of Lubbock is hereby authoriied and directed to execute for and on behalf of the City of Lubbock, a License Agreement with Civic Lubbock, Inc., and all related documents. Said License Agreement is attached hereto and incorporated in this resolution as if fully set forth herein and shall be included in the minutes of the City Council. Passed by the City Council on July 25, 2023 A � ST: Courtney Paz, City Secretary APPROVED AS TO CONTF,NT: Brooke Witcher, Assistant City Manager APPROVED AS TO FORM: � _ _. oster, ssi t City Attorney cedocslRES.License Agreement Civic Lubbock, Inc. 6.1.23 Resolution No. 2023-R0366 LICENSE AGREEMENT THE STATE OF TEXAS COUNTY OF LUBBOCK This agreement is entered into on the 25th day of July_ , 2023, by and between the City of Lubbock, a home rule municipal corporation (hereinafter called "City") and Civic Lubbock, Inc., a Texas non-profit corporation (hereinafter called "Corporation"). WITNESSETH WHEREAS, the City and the Corporation did heretofore on the 13th day of September, 2018, enter into an Agreement wherein the City granted to Corporation a license for the use of the Lubbock Memorial Civic Center, and the Moonlight Musicals Amphitheatre; and WHEREAS, it is the desire of the City and Corporation to enter into a new Agreement establishing the relationship between the City and the Corporation; NOW THEREFORE: BE IT RESOLVED BY THE CITY AND THE CORPORATION AS FOLLOWS: 1. This agreement supersedes and takes the place of the Agreement entered into by and between the City and Corporation on the 13th day of September, 2018, including all amendments thereto, and any and all prior agreements between the City and the Corporation; and upon execution this Agreement shall establish and govern the relationship between the City and Corporation. 2. In consideration of the Corporation's service to the community in the enhancement of public art and the Corporation's commitment to its cultural and educational programs, the City hereby grants to Corporation a license for all food, beverage and other concession sales in or surrounding the Lubbock Memorial Civic Center, Moonlight Musicals Amphitheatre, Buddy Holly Center, Buddy & Maria Elena Holly Plaza, Silent Wings Museum and other designated municipal facilities as mutually determined by the City and Corporation. The City also grants to Corporation all commissions collected from catering fees and merchandise fees collected at the Lubbock Memorial Civic Center and Moonlight Musicals Amphitheatre. 3. Corporation agrees that for and in consideration of such license, herein granted, that Corporation shall pay: a) City a commission of five percent (5 %) of food and soft drink concession and in-house catering adjusted gross sales at the Moonlight Musicals Amphitheatre and Lubbock Memorial Civic Center and other mutually determined municipal facilities for the term of this agreement. The food and soft drink concession and in-house catering sales commission shall be paid by Corporation to the City on a quarterly basis with the first such payment being due on the l Oth day of January in each fiscal year, and a similar payment on the lOth day after each succeeding quarter during the term of this Agreement. b) City a commission of five percent (5 °/o) of alcoholic beverages gross sales at the Lubbock Memorial Civic Center, Moonlight Musicals Amphitheatre, Buddy Holly Center, Buddy & Maria Elena Holly Plaza, Silent Wings Museum and other mutually determined municipal facilities for the term of this agreement. This commission shall be paid by Corporation to the City on a quarterly basis with the first such payment being due on the l Oth day of January in each fiscal year, and a similar payment on the lOth day after each succeeding quarter during the term of this Agreement. 4. Corporation agrees to pay all operational expenses associated with such concession rights or sales, including, but not limited to, all salaries of full or part-time staff employees engaged in such sales. Routine maintenance of all concession areas included in this license shall not be considered an operational expense and shall be borne by the City at no cost to the Corporation. In addition, the City agrees to employ such full-time staff as may be necessary and appropriate to assist the Corporation in carrying out the duties and responsibilities of the concessions and accounting functions of the Corporation. Said employees will office under the Civic Center Director andlor Assistant Civic Center Director's daily supervision. Salaries and benefits of such full-time employees shall be reimbursed to the City by the Corporation on a quarterly basis. a) For the purposes of Section 4 above, the term "salaries" shall include all applicable categories of pay for eligible City of Lubbock employees as set forth in the City of Lubbock Policy Manual, including without limitation full-time pay, overtime pay, stability pay, bilingual pay, and accounting entries to salaries and compensated absences for accrued vacation, sick leave, and compensatory leave. b) For the purposes of Section 4 above, the terms "benefits" shall include those benefits which the City of Lubbock provides to every eligible City of Lubbock employee, including required City of Lubbock contributions on behalf of the employee to the Texas Municipal Retirement System, employer's share of social security and Medicare tax, health and dental insurance coverage, workers compensation insurance, and basic life insurance coverage. Reimbursement by Corporation to the City shall be based on actual contributions that the City pays for the benefit, but shall exclude accounting entries to benefits to record long-term liabilities for pension and other post- employment health benefits. 2 5. In consideration of Corporation's desire to expand its programs and in addition to the license heretofore granted, the City does hereby further grant to Corporation a license to operate and manage all box office operations reasonably necessary for ticket sales at the Lubbock Memorial Civic Center, Moonlight Musicals Amphitheatre and in other mutually agreed venues. This license authorizes the Corporation to undertake ticket sales for events scheduled by the City in its facilities; utilize the box office areas within the Lubbock Memorial Civic Center and the Moonlight Musicals Amphitheatre; and establish charges for ticketing services in City facilities and other venues in the region which may request ticketing services for their scheduled events. 6. Corporation agrees to pay all operational expenses associated with such box office services, including, but not limited to, all salaries of full or part-time staff employees engaged in such sales. Routine maintenance of all box office areas included in this license shall not be considered an operational expense and shall be borne by the City at no cost to the Corporation. In addition, the City agrees to employ such full-time staff as may be necessary and appropriate to assist the Corporation in carrying out the duties and responsibilities of the box office and accounting functions of the Corporation. Said employees will office under the Civic Center Director andlor Assistant Civic Center Director's daily supervision. Salaries and benefits of such full-time employees shall be reimbursed to the City by the Corporation on a quarterly basis. a) For the purposes of Section 6 above, the term "salaries" shall include all applicable categories of pay for eligible City of Lubbock employees as set forth in the City of Lubbock Policy Manual, including without limitation full-time pay, overtime pay, stability pay, bilingual pay, and accounting entries to salaries and compensated absences for accrued vacation, sick leave, and compensatory leave. b) For the purposes of Section 6 above, the terms "benefits" shall include those benefits which the City of Lubbock provides to every eligible City of Lubbock employee, including required City of Lubbock contributions on behalf of the employee to the Texas Municipal Retirement System, employer's share of social security and Medicare tax, health and dental insurance coverage, workers compensation insurance, and basic life insurance coverage. Reimbursement by Corporation to the City shall be based on actual contributions that the City pays for the benefit, but shall exclude accounting entries to benefits to record long-term liabilities for pension and other post- employment health benefits. 7. It is agreed and understood by both Parties that if an employee of the City in a non- reimbursed position transfers to a position that has salary and benefits fully reimbursed by the Corporation, or if an employee in a position that has salary and benefits fully reimbursed by the Corporation transfers to a non-reimbursed position within the City, the transferring Party shall reimburse the other Party for the actual amount of the employee's accrued paid leave as of the date of the employee's transfer, or the current liability amount for terminal pay benefits. This terminal pay benefits payment between the Parties shall have no effect on the transferring employee's actual accrued leave balances. Any terminal pay benefits payment payable by the 3 Corporation to the City shall be made at the time of an employee's transfer. Any terminal pay benefits payment payable by the City to the Corporation shall also be made at the time of an employee's transfer, or as soon as is practicable within scheduled accounting cycles. 8. The Civic Lubbock, Inc. Board shall have a minimum of two standing sub- committees: 1) the Museum and Arts Standing Sub-Committee; and 2) the Cultural Arts Grant Review Standing Sub-Committee. Each sub-committee shall elect a chairperson and vice-chairperson, one of whom shall be chosen from the Directors on that committee. Public representatives for each committee shall be appointed by the City Council. The Museum and Arts Standing Sub-Committee shall be composed of four Directors appointed by the Corporation, up to four representatives of the arts community appointed by the Corporation and three representatives of the arts community appointed by the City Council to serve two successive three-year terms or until successors are appointed. Responsibilities of the Museum and Arts Standing Sub-Committee include: 1. Serving as an advisory board for the Silent Wings Museum, the Buddy Holly Center, and the Garden & Arts Center; 2. Managing the Preston Smith International Airport Arts Program, which is funded with a portion of the Corporation's annual allocation of Hotel Occupancy Tax; and 3. Developing a public art program, which is funded with a portion of the Corporation's annual allocation of Hotel Occupancy Tax, as well as a portion of the Corporation's revenue, for the purpose of acquiring and maintaining public art located on City-owned property, specifically, those properties that generate tourism. The Preston Smith International Airport Arts Program includes both visual and performing arts and the portion of the Hotel Occupancy Tax utilized for this program shall not exceed four percent (4°/0) of the Corporation's annual allocation. The portion of the Hotel Occupancy Tax utilized for the public art program shall not exceed ten percent (10%) of the Corporation's annual allocation. Additionally, the Corporation will contribute at least three percent (3%) of its bingo income toward the public art program. Recommendations for expenditures to the public art and maintenance program and the Preston Smith International Airport Arts Program will be made to the Corporation's Board of Directors for approval. The President of the Corporation or his/her designee shall serve as an ex-officio member of the Museum and Arts Standing Sub-Committee. C! The Cultural Arts Grant Review Standing Sub-Committee shall be composed of three Directors appointed by the Corporation, plus two members at-large appointed by the City Council to serve two successive three-year terms or until successors are appointed. Responsibilities of the Cultural Arts Grant Review Standing Sub-Committee include: 1. Developing the guidelines for the Cultural Arts Grant Program, which is funded by the Hotel Occupancy Tax; 2. Accepting applications for Cultural Arts Grant Program; and 3. Making grant recipient recommendations to the Corporation's Board for presentation to the City Council once each year. The President of the Corporation or his/her designee shall serve as an ex-officio member of the Cultural Arts Grant Review Standing Sub-Committee. The Corporation may, from time to time and at its sole discretion, establish other committees to assist with projects and purposes associated with the Corporation's mission. Committee members appointed by the Corporation may consist of Directors of the Corporation and members of the community whose expertise would enhance the project andlor purpose for which the committee is intended. 9. At the Corporation's expense, Corporation agrees to conduct an annual audit of its book of accounts by an independent auditor and provide a copy of the final audit to the City each year during the term of this Agreement. The audit shall be completed no later than the 30th day of December of each year this Agreement is in force. The copy shall be provided to the City within 60 days after completion. 10. If the audit presented by the Corporation to the City identifies a cash fund balance, after payrnent of the total considerations hereinabove mentioned and excluding all expenses incurred or encumbered, the Corporation is hereby authorized to retain such fund balance as follows: a) The first one hundred thousand dollars of such cash fund balance shall be retained by Corporation as a reserve fund for the performance of its obligations and duties herein set forth; b) Any fund balance remaining after the contribution to a reserve account as mentioned above is satisfied shall be placed in a reserve to fund activities relative to the purposes of the Corporation as stated in its Charter. 11. The Corporation hereby agrees to prepare and submit to the City a budget for the upcoming fiscal year beginning October 1 of each year. The Corporation shall prepare this budget on forms satisfactory to the City and shall present this budget to the City Council prior to the beginning of each fiscal year. 12. The Corporation agees to use its best efforts to foster, promote, and present cultural and educational programs, attractions and entertainment for the general intellectual and physical improvement and welfare of the people of the City of Lubbock and the surrounding area which shall add to the quality of life of the citizens of the City of Lubbock in accordance with the Corporation's Charter. This will include, but is not limited to, sponsoring such programs, attractions, and entertainment and matters incidental hereto, including, but not limited to the Walk of Fame projects, development and implementation of a local grant program for events held in the Civic Center, Amphitheatre, and other local venues that utilize CLI's services, sponsorship and co-sponsorship of national touring productions and events held in the Lubbock Memorial Civic Center and Moonlight Musicals Amphitheatre and public art programs in or on property owned and operated by the City. 13. It is understood by both parties that Corporation receives no direct or indirect monetary benefit from advertising or sponsorship revenues generated by the operation of the facilities or events scheduled in the facilities. It is also understood that Corporation has no right or authority to control, either directly or indirectly, any programming or booking decision at the Lubbock Memorial Civic Center and the Moonlight Musicals Amphitheatre. These functions are handled and controlled by the City. It is also understood that Corporation is not subject to the direction or control, either directly or indirectly, by the City as the facility owner and operator, event producer, or any upper tier member of the alcoholic beverage industry as to the quantities or brands of alcoholic beverage products purchased andlor sold by Corporation. 14. In consideration of the Corporation's services to be rendered pursuant to the Agreement, the City does hereby grant the Corporation the right to use any and all of the above mentioned or agreed upon City facilities for its business meetings. The Corporation, however, will be required to schedule its meetings at times that are mutually agreeable to both the City and the Corporation. 15. The Corporation agrees to secure and maintain during the term of this Agreement general liability insurance, with the City named as an additional insured on a primary and non-contributory basis, in the amount of $2,000,000.00 which shall include products/completed operations and advertising insurance; liquor liability insurance in the amount of $1,000,000.00; and crime insurance with an employee dishonesty form in the amount of $1,000.00. In addition, Corporation shall elect to obtain workers' compensation coverage pursuant to Section 406.002 of the Texas Labor Code and shall maintain said coverage throughout the term of this Agreement. Each policy shall be endorsed to waive all rights of subrogation against the City by reason of any payment made of claims under the above coverage. 16. The City reserves the right to exercise any right or remedy available to it by law, contract, equity, or otherwise, including without limitation, the right to seek any and all forms of relief in a court of competent jurisdiction. Further, the City shall not be subject to any arbitration process prior to exercising its unrestricted right to seek judicial remedy. @ The remedies set forth herein are cumulative and not exclusive, and may be exercised concurrently. To the extent of any conflict between this provision and another provision in, or related to, this document, the former shall control. 17. The term of this Agreement shall be for two years from the date of execution of this Agreement. After the initial two year term, this Agreement may be extended by mutual agreement of the parties expressed in writing upon a year-to-year basis for up to three additional years. Should the City cease to own andlor operate the facilities listed herein during the term of this agreement the parties may amend or terminate the agreement as necessary by mutual written agreement. 18. In the event that this Agreement terminates, the Corporation shall be authorized to undertake and fulfill all existing obligations and contracts necessary and essential for the conclusion of the Corporation's business. The Corporation further agrees to cooperate with the City to insure an orderly transition of all services and facilities subject to this Agreement upon its termination. EXECUTED this 25th day of CNI LUBBOCK, C.: RESIDENT ATTEST: re 2023. CITY OF LUBBOCK: TRAY E, A OR ATTEST: Co ney Paz, City S r tary APPROVED AS TO CONTENT: � L 7�1� Brooke Witcher, Assistant City Manager APPROVED AS TO FORM: Rachael Foster, s s ant City Attorney