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VI.5. Approve Letter of Agreement between City of Hopkins and Artspace for an Arts Market Study; BeekmanFebruary 5, 2018 Council Report 2018-025 Approve Letter of Agreement between City of Hopkins and Artspace for an Arts Market Study Proposed Action Staff recommends adoption of the following motion: Move to approve the Letter of Agreement between the City of Hopkins and Artspace for an Arts Market Study. Overview In August 2017, the City completed a preliminary feasibility study with Artspace to explore an affordable artist live/work development in Hopkins. The results of that initial study were favorable and Artspace presented their report to the Council at their October work session meeting. At that time, the Council directed staff to move forward with the next phase of analysis; an arts market study to evaluate the depth and breadth of a market for arts-oriented spaces in Hopkins. City staff will work with Artspace to craft an online survey that will be the basis for the market study. In addition, three focus groups will be held that will specifically focus on getting input from harder to reach respondents such as the City’s east-African community, the Latinx population, and youth. The City received a $30,000 grant from the Metropolitan Council to assist with completing the market study. The total cost of the study is $35,000. The City will also be supporting the work with staff time and marketing efforts to get word out about the study. Supporting Information Letter of Agreement ___________________________ Meg Beekman Community Development Coordinator Council Report 2018-025 Page 2 Financial Impact: $_5,000___Budgeted: _Y__ Source: 2014 – Econ. Dev.________ Related Documents (CIP, ERP, etc.): _______________________________________ Notes:_______________________________________________________________ Alternatives The Council has the following alternatives: Approve the Letter of Agreement Deny the Letter of Agreement and opt not to move forward with the study 1/13 Letter of Agreement - Arts Market Study THIS LETTER OF AGREEMENT (this "Agreement") made and entered into this _____ day of ______________, 2018 (the "Effective Date") by and between ARTSPACE PROJECTS, INC., a MINNESOTA NONPROFIT CORPORATION having an address at 250 3RD AVENUE NORTH, SUITE 400, MINNEAPOLIS, MN 55401 ("Artspace") and City of Hopkins, a municipality, with a mailing address at 1010 F irst Street South, Hopkins, MN 55343. "City of Hopkins" and Artspace are each a "party" and together the "parties". The parties agree as follows: 1.Overview: Subject to the terms, conditions and covenants in this Agreement, Artspace contracts with City of Hopkins, and City of Hopkins contracts with Artspace, to perform the scope of work ("Scope") as more particularly described in Exhibit "A" attached hereto. 2.Term: The term of this Agreement shall commence on the Effective Date (as defined above) and shall continue until all deliverables as outlined in Exhibit "A" are completed (the "Scope Completion"; such period, the "Term"). 3.Qualifications: City of Hopkins shall provide any and all support relevant, the City of Hopkins’ sole discretion, to the successful completion of the Scope as outlined in Exhibit “A” and further defined in Exhibit “C”, including, but not limited to, providing documents relevant or appropriate for Artspace review, assigning key staff to work with Artspace, coordinating logistics for meetings and leading public outreach and promotional efforts. 4.Fee: The total fee for this work is Thirty-Thousand Dollars and 00/100 ($35,000.00). On the Effective Date, City of Hopkins shall pay Artspace an initial deposit in the amount of $17,500 Dollars and 00/100 ($17,500) ("Initial Deposit"). City of Hopkins shall pay Artspace the remaining balance in the amount of $17,500 Dollars and 00 /100 ($17,500) ("Balance") upon Scope Completion. In the event of a cancellation requested by City of Hopkins within the first thirty (30) days of the Term, Artspace shall be entitled to a nonrefundable cancellation fee in the amount Two Thousand and Five Hundred Dollars and 00/100 ($2,500.00) ("Cancellation Fee"), which may be deducted from the Initial Deposit the remainder of which must be repaid to the City 2/13 of Hopkins within 10 days of notice of such termination. In the event of a cancellation requested by City of Hopkins at any point after the first thirty (30) days of the Term but before Scope Completion, Artspace shall be entitled to compensation calculated at the hourly rate described in Exhibit "B" for the actual hours worked plus any documented out-of-pocket expenses ("Balance Due"). Artspace may retain a portion of the Initial Deposit up to the amount of the Balance Due. In the event that the Initial Deposit is insufficient, City of Hopkins agrees to immediately remit the remaining Balance Due to Artspace. 5.Proprietary Use: With the exception of the deliverables (“Deliverables”) described in Exhibit "A", all materials, written or otherwise, provided by Artspace remain the property of Artspace and may not be reproduced, copied, or disseminated to third parties for purposes of sale or other benefit beyond the intended use under this contract as particularly described in Exhibit “A” as the “Purpose”, without the prior written approval of Artspace. This includes but is not limited to: photos, survey respondent contact information and the survey instrument. Confidential information collected from survey respondents under this scope of work may not be shared with third party organizations or utilized in any manner that violates the privacy of survey respondents. Notwithstanding any provision contained herein, the City of Hopkins shall have a non-exclusive, irrevocable license to use such materials for any non -commercial purpose which it deems necessary and appropriate. 6.Trademark Infringement: City of Hopkins is granted the right to use the Artspace name and/or brand solely in conjunction with the Scope of the project as outlined in this Agreement, and shall not use the Artspace name and/or brand in conjunction with or connection to any other projects or marketing materials for which Artspace is not a consultant including, but not limited to, identifying a future project or development as arts -focused. City of Hopkins agrees to notify Artspace of any potentially unauthorized use of the trademarks internally or by others promptly as it comes to City of Hopkins’s attention. Artspace shall have the sole right and discretion to bring infringement proceedings involving trademarks. Because the damages resulting from unauthorized use will render irreparable harm to Artspace that will be difficult to quantify, Artspace shall be entitled to seek any and all equitable relief, including, but not limited to, injunctive relief, and to any o ther remedy that may be available under any applicable law or agreement between the parties. City of Hopkins acknowledges that an award of damages to Artspace does not 3/13 preclude a court from ordering injunctive relief. Both damages and injunctive relief shall be proper modes of relief and are not to be considered as alternative remedies. The City of Hopkins shall have no liability for any unauthorized use of such materials by third-parties. 7.Assignment or Subcontracting: With the exception of subcontract ors identified in Exhibit "A", Artspace may not subcontract any portion of the Scope without the prior written consent of City of Hopkins. 8.Address of Artspace and City of Hopkins Notices: All notices required hereunder between Artspace and City of Hopkins shall be given in writing, by United States certified mail, return receipt requested, or by nationally recognized overnight courier service, to Artspace and City of Hopkins at the address shown in the opening paragraph of the Agreement. All payments due hereunder shall be given to Artspace and City of Hopkins, as the case may be, at the address shown in the opening paragraph of the Agreement. 9.Termination: This Agreement may be terminated by either party without cause with 10 business days’ advance written notice; provided, however, that all compensation due to Artspace through such termination date, as defined herein, shall be paid by City of Hopkins. Upon termination, Artspace shall deliver to City of Hopkins all completed materials as of the date of termination. 10.Amendment and Modification: This Agreement embodies the full agreement of the parties and supersedes any and all prior understandings or commitments concerning the subject matter of this Agreement. Any modification or amendment must be in writing and signed by both parties. 11.Governing Law: This Agreement is governed by and shall be construed in accordance with the laws of the state of Minnesota without any consideration for choice of law principles. Any dispute arising hereunder shall be venued in the state or federal courts located within Hennepin County, Minnesota, and the parties hereto waive any objection to such venue. 12.Release and Indemnification: 4/13 Neither party to this Agreement shall be liable to the other for any negligent acts or omissions committed by any of that party’s officers, agents, employees, or assigns. To the extent that such negligence creates any third-party liabilities, the negligent party shall agree to indemnify, defend, and hold harmless the non-negligent party from any and all claims arising hereunder. Further, Artspace specifically agrees to indemnify, defend, and hold harmless the City of Hopkins against any and all claims of intellectual property violations arising under Artspace’s activities hereunder. Such claims include, but at not limited to, claims related to patent infringement, misappropriation of intellectual property, and any other claims related, in any way, to the intellectual property of a third party. 13.Disclaimer: Results depend upon a variety of factors unique to each agreement. Prior results do not guarantee or predict a similar result in any pending or future project undertaken by Artspace. The Deliverables, in addition to the written or other materials provided by Artspace, are intended as guidance for those who wish to explore or advance an arts -related project. While the Deliverables and other materials provided reflect Artspace's expertise as a real -estate developer for artists and arts organizations, and are provided in good faith, Artspace makes no representation or warranty about the value of any of the information in relation to the success of any specific project. 14.Return of Property: Upon Scope Completion or termination of this Agreement, City of Hopkins agrees to return to Artspace any property, documentation, records, or confidential information that is the property of Artspace. The City of Hopkins obligation under this paragraph shall only extend to those materials which are in the sole custody and control of the City of Hopkins. The City of Hopkins shall have no obligation to return property, documentation, records, or confidential information which has been shared with a third-party, by either Artspace of the City of Hopkins. 15.Capacity/Independent Contractor: Artspace shall be deemed to be an independent contractor and is not an employee, partner, or co-venturer of, or in any other service relationship with City of Hopkins. The manner in which Artspace's services are rendered shall be within Artspace’s sole control and discretion. 5/13 16.Severability of Provisions: Each provision of this Agreement shall be considered to be severable, and if for any reason any provision that is not essential to the effectuation of the basic purposes of the Agreement is determined to be invalid and contrary to any existing or future law, such invalidity shall not impair the operation of or affect those provisions of this Agreement that are valid. Notwithstanding this provision, should the Section 12 of this Agreement be deemed invalid, this Agreement shall automatically terminate, and the parties shall treat the Agreement as terminated, pursuant to the provisions contained herein. 17.No Continuing Waiver: The waiver by either party of any breach of the terms of this Agreement shall not operate or be construed to be a waiver of any subsequent breach. Failure to pursue such breach shall have no impact on a party’s right or ability to pursue future breaches. 18.Binding Agreement: This Agreement shall be binding on the parties hereto, and their heirs, executors, personal representatives, successors and assigns. 19.Headings: All section headings in this Agreement are for convenience of reference only and are not intended to qualify the meaning of any section. 20.Terminology: All personal pronouns used in this Agreement, whether used in the masculine, feminine and neuter gender, shall include all other genders, the singular shall include the plural, and vice versa as the context may require. 21.Confidentiality: It is understood and agreed to that Artspace may provide certain information that is and must be kept confidential (“Confidential Information”). The Confidential Information to be disclosed may include, but is not limited to, technical and business information relating to proprietary ideas and inventions, ideas, patentable ideas, trade secrets, drawings and/or illustrations, existing and/or contemplated products and services, research and development, production, costs, profit and margin information, finances and financial projections, customers, clients, contact lists, survey responses, marketing, and current or future business plans and models, regardless of whether such information is designated as Confidential Information at the time of its disclosure. 6/13 To ensure the protection of such information, and to preserve any confidentiality necessary under law, City of Hopkins shall not disclose any Confidential Information obtained from Artspace. Notwithstanding this Section, the City of Hopkins shall comply with all applicable law, including the Minnesota Government Data Practices Act (the “Act”), Minnesota Statutes, chapter 13. To the extent applicable, Artspace shall similarly comply wit h the Act, pursuant to Minnesota Statutes, section 13.05, subd. 11. [Page left intentionally blank; next page is the signature page.] 7/13 IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date shown on the first page of this Agreement. AGREED TO: Artspace Projects, Inc. ______________________________________________________________ Wendy Holmes Date Senior VP, Consulting and Strategic Partnerships City of Hopkins _______________________________________________________________ Molly Cummings, Mayor Date _______________________________________________________________ Mike Mornson, City Manager Date Kersten Elverum Director of Planning and Economic Development City of Hopkins 1010 First Street South Hopkins, MN 55343 kelverum@hopkinsmn.com Contact Information: Teri Deaver Vice President Artspace Projects, Inc. 250 Third Ave N, Suite 400 Minneapolis, MN 55401 teri.deaver@artspace.org (612) 465 - 0222 Please return executed contract to: ATTN: Aneesha Marwah Artspace Projects, Inc. 250 Third Ave. N, Suite 400 Minneapolis, MN 55401 8/13 Exhibit A Arts Market Study City of Hopkins has invited Artspace to conduct an Arts Market Study of Individual Artists to inform a potential development project. The “Project” will be defined as an affordable, arts-focused live/work mixed use project. The purpose of this scope of work (“Purpose”) is to provide City of Hopkins the data to inform the Project’s development. The survey(s) will collect data from artists living, working, and/or doing business within a 50-mile radius of Hopkins, MN. The survey instrument is designed to assess the demand for space, demographics, and specific space needs in the context of the project. Arts Market Study Scope of Work 1.Survey Preparation a.Provide City of Hopkins Survey Template. b.Provide City of Hopkins with online access to the Artspace Survey Outreach Packet. The packet includes original documents to guide outreach strategy, templates to organize the outreach effort, and examples from other communities. This content can be used in websites, social media, printed materials, and for coordinating events. c.Create a timeline for the Scope, outlining tasks and target dates for both Artspace and City of Hopkins, (“Timeline”). d.Facilitate one kick-off phone call with City of Hopkins Staff to walk through the Timeline and the Artspace Survey Outreach Packet, review the template and goals of the study, and discuss the formation of the Core Group (defined in Exhibit C), and answer any questions. e.Create a customized survey instrument(s) based on the survey template with up to three modifications. i.Send City of Hopkins Staff customized survey instrument(s) for review and input. The City of Hopkins Staff will have one week 9/13 from delivery of the draft survey to review and test online functionality and provide feedback or suggested edits (as defined per Timeline). Main contact should compile all feedback and edits from the Core Group into one document and submit via email for Artspace’s review; ii.If City of Hopkins Staff requests changes to the survey instrument(s), one conference call may be held on or prior to the Feedback Due Date (as defined by Timeline) to discuss the proposed changes. If the City of Hopkins Staff does not provide feedback by the Feedback Due Date, Artspace will independently finalize the survey instrument(s); and iii.Present a final draft to City of Hopkins Staff. f.Create a web page to host the survey link, if requested. g.Support outreach efforts by providing guidance and reviewing promotional materials developed by City of Hopkins. All materials that include Artspace’s name, logo and/or images must be sent to Artspace for review prior to release. 2.Survey Launch, Focus Groups and Ongoing Support a.Facilitate a conference call with City of Hopkins Staff to discuss Survey Launch preparation, and confirm dates of visit and public launch event no less than four (4) weeks prior to visit in order for Artspace to coordinate travel. b.Facilitate up to four (4) focus group meetings to gather input from specific artist populations and a potential anchor tenant. These focus groups can include: i.Three meetings with individual artists that are often underrepresented in online surveys but are important voices in the Hopkins arts community. Suggested groups include: East African artists, Latinx/Hispanic artists, and young artists involved in the Hopkins hip-hop community. The City and/or Core Group will coordinate the focus groups, with input and guidance from Artspace. Artspace recommends that the City designate one leader from each of the three target communities 10/13 to assist with outreach. Artspace will be available for phone calls and/or emails with these leaders to offer context and recommendations on who to invite. These community leaders should also be considered for inclusion in the Core Group. ii.One (1) meeting with a potential anchor tenant to discuss their space needs, capacity, timeline, interest, and potential path toward pursuing a partnership as an anchor tenant of a potential project. c.Travel to Hopkins for a Survey Launch visit. Duration of the scheduled visit will not exceed four (4) consecutive hours of consulting time with client. Visit includes: i.Presentation at public launch event. Presentation will include a summary of the initiative to date, information about the survey and a call-to-action to take the survey. Following the presentation, Artspace will facilitate a question and answer period; and ii.A meeting with the Core Group to review Survey Launch and discuss outreach strategy moving forward. d.Provide weekly survey updates to support outreach strategy. 3.Survey Analysis and Reporting a.Oversee third-party analysts during data compilation and analysis phase. b.Coordinate customization of the analysis, as requested by the City of Hopkins Staff. Customization included in this Scope may involve: i.Cross-tabulation of up to two additional survey questions. This analysis will be provided in an electronic Excel spreadsheet or in the report as appropriate; Note: Cross-tabulation is only available on certain question types. City of Hopkins should provide requests during or before instrument development to ensure that the survey design will permit the request. Artspace does not guarantee that all requests for cross-tabulation can be fulfilled. b.Deliver a Technical Report, prepared by the third-party data analyst firm under Artspace supervision. The Technical Report articulates methodology and summarizes statistical information on the individual artists interested in space in the Project. c.Artspace will provide a Recommendation Letter that interprets the technical report in the context of the Project. d.Compile and deliver Supplementary Materials, including: i.Contact information of respondents to the survey(s) who wish to receive follow up notices; ii.Verbatim responses provided from open-ended text fields; iii.Summary of total respondent data; iv.Zip code data; and v.Data summary from City of Hopkins’s customized survey questions. vi.Written summary of focus group meetings Note: Artspace will not provide raw survey data under this contract. e.Travel to Hopkins for a Presentation of Findings visit. Duration of the scheduled visit will not exceed four (4) consecutive hours of consulting time with client. Visit includes: i.Presentation at one stakeholder meeting. This stakeholder meeting can either be a public meeting or a smaller, invitation- only meeting, as determined by City of Hopkins. Presentation will include a recap of the initiative to date and a summary of findings; and ii.A meeting with the Core Group to discuss the results of the survey, answer questions and discuss next steps. Deliverables: •Technical Report •Recommendation Letter •Supplementary Materials All Deliverables will be provided digitally. Up to five (5) hard copies of the Technical Report and Recommendation Letter can be provided upon request. 11/13 Exhibit B Timeline and Fee Disbursement Budget and Hourly Rate The fee for the proposed Arts Market Study is $35,000. This flat fee includes staff time, deliverables, and travel expenses. This contract is set up not to exceed the total fee of $35,000 as noted above unless another agreement is put into place with a specific work scope. For additional services, Artspace charges $250.00 per hour for its consulting work. This rate is used for calculating fees owed due to early termination of the contract and for additional work requested by City of Hopkins. All additional work requested by City of Hopkins that exceeds the Scope as outlined in “Exhibit A” is subject to additional charg es. Additional work, resulting charges, and fee schedule must be agreed to in writing by both parties prior to commencement of such work. Additional Charges will be calculated using the hourly rate plus any out-of-pocket and third-party expenses. Timeline and Fee Disbursement Scope of Work will commence upon receipt of deposit. This timeline assumes that a contract is signed and an initial payment of $17,500 (1/2 of the work fee) is received in [MONTH PRIOR TO START, 2018]. The remaining $17,500 would be due within 30 days of the delivery of the technical report and recommendations. 12/13 13/13 Exhibit C Additional notes on roles and responsibilities of City of Hopkins The City of Hopkins agrees to: •Assign a main contact for City of Hopkins’s communication with Artspace; •Complete tasks and adhere to deadlines in agreed upon Timeline; •Assume responsibility for all community outreach and survey promotion, including the public launch and presentation of findings events and the focus group meetings; •Coordinate the agenda for visits with input from Artspace and confirmation of travel availability; •Define members of the Core Group, which should include 2 -8 individuals, and ideally at least one person from the arts community. The Core Group’s tasks may include participating in survey preparation, planning and conducting outreach, and coordinating the public launch event. City of Hopkins Staff (or assignee) will remain the primary contact for Artspace and make final decisions on behalf of the Core Group and City of Hopkins; •Maintain the confidentiality of survey respondents and only use contact information obtained from the survey to provide information specifically requested by the respondent, subject to any applicable requirements contained in Minnesota Statutes, chapter 13; and •Pay additionally to Artspace any reasonable and/or necessary costs incurred by Artspace to rearrange or cancel travel itineraries as requested by City of Hopkins or necessitated by changes initiated by same.