Memo-Staff Summary of the Hopkins Center for the Arts Cooperative Agreement
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Memo
To: Honorable Mayor and City Council Members
Operations Board Members
From: Jay Strachota, Facilities Manager
Date: August 1, 2000
Re: Staff summary of the Hopkins Center for the Arts Cooperative Agreement
Attached is a copy of the Hopkins Center for the Arts Cooperative Agreement that the City
Council and Operations Board will review. This cover memo is a summary of the various
sections contained in the dOOJment. The section summaries are intended to help clarify key
points and assist in the understanding of the intent of each section.
Recitals (page 1)
. The recitals contain general language that state both fact and intent. The recitals recognize
that: the City owns the facility, Hopkins Center For the Arts Association (HCA) is a tax
exempt 501 (c)(3), both parties agree that arts related uses of the facility take priority, and
that both parties agree to enter into the terms and conditions of the agreement.
1. Retention and Term (page 2)
This section states that the agreement begins on the date of signature, and continues
indefinitely until terminated by either party. The agreement can be terminated as follows: 1)
either party may terminate this agreement in the event the other party defaults in the
performance of its obligation under this agreement, and such default is not corrected within
thirty (30) days of written notice to the defaulting party: 2) Either party may terminate this
agreement at any time, without cause upon ninety (90) days prior written notice to the other
party.
The balance of this section speaks to the exchange of records and revenues in case of a
termination of the agreement.
2. Programming Duties of HCA (Page 3)
This section fecognizes HCA as the Art Center programmer in this agreement being
responsible fOf the scheduling, conducting and administration of events.
Sub-section (a) gives recognition to the existing meet and confer process for time allocation
. between the major tenants and the City.
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. Sub-section (b) states how the hours allocated to the City and the unallocated hours are
divided between the City and HCA. In summary, the section allocates the hours as follows:
First, the City reserves hours for recurring annual arts events, such as, spring dance
recitals, John Ireland School plays and concerts, etc.
Second, HCA reserves dates for events and programming
Third, the City reserves dates for "occasional users" and non-arts activities, such as
Rotary, business rentals, receptions, etc. Note: The Raspberry festival activity dates
are protected in the leases with the tenants, so those dates are secured before this
sections division of dates.
Fourth, the City reserves dates to achieve objectives to be set forth in a community
use directive.
The balance of the sub-sections state that HCA will negotiate, administrate, and enforce
contracts on their own behalf. HCA will be entitled to the use of City employees (covered
more thoroughly in section 4). The SO/50 split of excess revenues between the City and
HCA is defined. Sub-section (h) states that sixty (60) days after the end of the Activity Year,
HCA will provide an itemized accounting of Event Revenues and Event Expenses to the
City. It is stated that the City is responsible for the facility and leases. Finally, Sub-Section U)
. states that HCA agrees to assign contracts over to the City, if the City so desires, in the case
of termination of this agreement.
3. Fundraising Functions of HCA (Page 6)
This section states that HCA will assume the primary responsibility for all fundraising
activities including membership enrollments, contributions, bequests and grants. The section
goes on to explain that the City will dedicate it's portion of shared revenues to expenses
related to facJlity, operations and facility debt HCA will be required to have one annual
fundraising event and HCA may use the name "Hopkins Center for the Arts" in connection
with its fundraising activities. The balance of the section defines the SO/50 split of fundraising
excess revenues and the reporting necessary to the City, State and IRS in relation to
fundraising activities. The final sub-section (k) gives the City the right to do fundraising
provided the City does so in good faith and shall not interfere with the fundraising efforts of
HCA under this agreement.
4. Use of City Employees (page 8)
This section states that HCA shall be entitled to forty (40) hours per week of City staff
services at no charge to HCA. This may be the service of the Arts Coordinator, Scheduling
Coordinator and the Facilities Manager. The Facilities Manager will determine which City
employees are available to HCA The City retains all employment authority and City
employees can only be used for purposes of performing the duties and responsibilities of
this agreement. The City agrees to provide employees that are qualified and competent to
. fulfill the objectives of this agreement.
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. 5. Expenses and Division of Revenues (page 10)
This section defines what are considered events and fundraising expenses and revenues
and then goes on to define the division of the excess revenues and space usage fees.
Excess revenues will be split SO/50 between the City and HCA. HCA will pay a fee for use of
space at the Art Center. The fee is calculated as a percentage of the expense budget for
each activity. The percentages are 5% of the expense budget for main theater usage and
10% of the expense budget for other space usage.
The City also agrees to advance up to $10,000 interest free, to HCA as start up capital for
event and fundraising expenses. HCA is required to repay the amount of advance that
exceeds $5,000 on the first anniversary of the agreement, and repay the balance of
advanced funds 6 months after the first anniversary.
6. Bank Accounts and Financial Reports (page13)
This section states that HCA will have their own bank account for their business activities
and ninety (90) days after the end of each activity year HCA must deliver a compiled annual
financial report to the City.
7. Insurance and Indemnification (Page 14)
This section defines the types and amounts of insurance required by the City and HCA. It
also cross indemnifies the City and HCA, so that each party is held harmless from and
e against claims, damages and liabilities arising from failure to perform, acts of third parties,
and negligence or intentional misconduct by the other party to the agreement.
8. Miscellaneous Provisions (page 15)
This section contains the legal language that identifies HCA as an independent contractor of
the City, prohibits third party beneficiaries, prohibits assignment of the agreement, and other
legal requirements.
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. Drafted 7/27/00 HOPKINS CENTER FOR THE ARTS
COOPERATIVE AGREEMENT
THIS AGREEMENT is made and entered into effective as of the _ day of
,2000, by and between the City of Hopkins, a municipal corporation under the
laws of Minnesota ("City") and Hopkins Center for the Arts Association, a non-profit corporation
under the lav.'s of Minnesota CoHCA").
RECIT ALS:
A. The City is the owner of an arts and recreational facility located at 1111 Mainstreet.
Hopkins, Minnesota. knovvn as the Hopkins Center For The Arts (the "Facility"). The City is
authorized to own and operate the Facility and to enter into this Agreement by Minn. Stat. 471.16-
471.191.
e B. HCA is a non-protit corporation organized and existing under Milmesota law and
qualified as a tax exempt organization under Section 501(c)(3) of the Internal Revenue Code. The
purpose and mission ofHCA is to foster community appreciation for and involvement in the ar1s,
C. The City and HCA share the common objective of fostering community appreciation for
and involvement in the arts by promoting the successful use and operation of the Facility. with
priority being given to arts-related uses. and are entering into this Agreement for the purpose of
accomplishing that common objective.
D. The City and HCA have agreed to enter into this Agreement for the purpose of stating
the ten11S and conditions under which the parties will cooperate in the programming and fundraising
functions for the Facility and HCA will perfom1 the programming and fundraising functions
described in this Agreement. In furtherance of its mission and purpose. HCA has agreed to assume
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. those functions, subject to the terms and conditions stated in this Agreement.
In consideration of the foregoing Recitals, \\'hich are incorporated and made a part oftrus
Agreement, and of the terms, covenants and conditions stated in this Agreement, the City and HCA
agree as follows;
]. Retention and Term. The City and HCA hereby enter into th1s Agreement, and the Cit)'
retains HCA to perform, and HCA accepts. the duties and responsibilities stated in this Agreement
and agrees to perform the same for a term commencing on the date of this Agreement and
continuing indefinitely until tenl1inated by either party, as proyided in this Paragraph. This
Agreement may be terminated as follows: i) either party may terminate this Agreement in the event
the other party defaults in tl1e perfonnance of its obligations under this Agreement. and such default
is not cured within thirty (30) days of \\Tinen notice to the defaulting party. which notice shall
. specify the nature of the default: or ii) either party may tenninate this Agreement at any time. without
cause. upon ninety (90) days prior \\Tinen notice to the other party.
Cpon termination of this Agreement. for whatever reason. each parry shall promptly remit
10 the other, as soon as the same is determinable after the date of termination and within the time
periods specified herein, all amounts due such other party under the terms of this Agreement.
Further, upon termination, for whate\'er cause, HCA shall, not later than ten business days afterthe
effecti\'e date of tennination, deliver to tbe City, copies of all books, records, contracts, accounts,
statements, financial records and other documents in the possession or control of HCA pertaining
to t}1e Facility and its operation and the performance ofHCA's duties and responsibilities underthis
Agreement that have not pre\"iously been deli\"ered to the City, and any and all other records or
. documents. whether or not described herein, which are necessary or desirable for the o\\l1ership and
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. operation of the Facility or the continued performance of the duties and responsibilities formerly
perfoffi1ed by HCA. HCA shall also, as soon as reasonably possible, provide final accountings to
the City as required by Paragraphs 2.h. and 3.f. of this Agreement. complete through the date of
teffi1ination. Any and all documents and materials related to the perfonnance of contracts for HCA
Events shall also be delivered to the City. All personal property ofthe City shall be delivered intact
to the City or its representatives. HCA agrees to do all things reasonably necessary to cause an
orderly transfer of its duties and responsibilities under this Agreement without detriment to the
interests of the Cit)'.
After termination of this Agreement. the revenues and expenses incident to the performance
ofHC A' s duties under this Agreement shall be accounted for and distributed as provided in Section
5 of this Agreement. which may be subsequent to the date of termination.
. 2. Programing Duties ofHCA. During the term of this Agreement and subject to its terms
and conditions, HCA shall work cooperatively with the City and shall be responsible for scheduling.
conducting and administering certain concerts. perfoffi1ances. receptions, visual arts display.
community arts programming and other events (collectively "HCA Events'") in the Facility during
those times and using those spaces within the Facility that are available for such use by the City. The
following tem1S and conditions shall apply to the performance of HCA's duties with respect to
programing HCA Events:
a. HCA acknO"wledges it is familiar with the terms and conditions of the Leases (""Leases")
between the City, Stages Theater Company ("'Stages'") and Independent School District No.
270 ('"District 270"), \vhich Leases specify a process for allocating the use of dates and
spaces \\'ithin the Facility between the City. Stages and District 270. HCA acknowledges
that the availability to the City of dates and spaces \\'ithin the Facility is limited by the Leases
and that HCA Events may only be scheduled during the times and dates and using the spaces
available to the City under those Leases. Further, HCA agrees that it shall participate \\'ith
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. Agreement is tenninated before the end of an Activity Year, HCA shall provide the
accounting required by this paragraph h. no later than sixty (60) days after the date of
tem1ination of this Agreement.
1. The authority and responsibility ofHCA shall be limited to that explicitly described in this
Agreement. The City retains all rights. responsibilities and authority related to the O\\'TIership
and operation of the Facility that are not explicitly delegated to HCA by this Agreement. The
rights, responsibilities and authority retained by the City shall specifically include all right.
title and interest of the City in and to the Leases with Stages and District 270 and
responsibility for the repair, maintenance and physical operation of the Facility.
J. Upon termination ofthis Agreement. the City shall have the right and option to require HCA
to assign all of its right, title and interest in all contracts and agreements for HCA Events to
the City, upon \vritten notice to HCA given within thirty (30) days of service of Notice of
Termination under Section 1 ofth1s Agreement. HCA agrees that it shall assign all such
contracts and agreements to the City, provided the City assumes all liabilities under such
contracts and agreements from and after the date of assignment.
3. Fundraising Functions Of HCA. During the term of this Agreement. HCA shall work
cooperatively with the City and assume primary responsibility for all fundraising activities for the
. Facility and, in that capacity, shall solicit. apply for and obtain membership enrollments.
contributions, bequests and grants for the uses and purposes stated below. HC A shall perform these
fundrais1ng activities subject to the following terms and conditions:
a. The membership enrollments, grants. bequests, gifts, contributions and other payments
obtained by HCA as a result offundraising activities for the Facility are hereinafter referred
to as the "Fundraising and Membership Revenues'" The City and HCA agree that the
Fundraising and Membership Revenues shall be used to pay the "Fundraising Expenses"
defined and identified in Paragraph a. of Section 5 of this Agreement, and that the balance
ofthe Fundraising and Membership Revenues shall be divided and distributed to the City and
the HCA as specified in Section 5 of this Agreement. The City's share of Excess
Cooperative Revenues. ifany. under Paragraph S.c. of this Agreement. shall be dedicated to
and used for the operation, maintenance. repair and improvement of the Facility and for
promoting and conducting City Events and activities consistent \\'ith the priorities described
in Paragraph Lb., of this Agreement. The uses and purposes for which the City's share of
Excess Cooperative Re\'enues are dedicated include. but afe not limited to: i) all operating
and maintenance expenses of the Facility, of whatever kind or nature. including. but not
limited to, employment costs for City employees, insurance premiums. utility charges,
maintenance, repair and cleaning. and fees of attorneys. accountants and other consultants
. employed by! the City; ji) debt seryice. including principal and interest. on any financial
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. obligations the City related to the acquisition, construction and operation of the Facility; iii)
depreciation; and iv) capital improvements and repairs to the Facility (induding funding of
a capital improvement reserve account). Subject to the provisions of Paragraph S.b. of this
Agreement. the City shall have the exclusive right to detem1ine and designate which of the
foregoing uses and purposes the proceeds of emollments, grants and contributions shall be
used for, provided that any grant or contribution that is specifically designated or dedicated
for a particular use or purpose by the grant-making agency or donor shall be used for such
designated purpose.
b. HCA shall diligently pursue and actively solicit Fundraising and Membership Revenues to
the end that the maximum possible revenues shall be obtained from such fundraising
activities. The fundraising duties assumed by HCA under this Agreement shall include
conducting an am1Ual fundraising event at the Facility, grant \\iTiting, research, advertising,
correspondence, promotion of the arts related activities of the Facility, correspondence.
conducting fundraising activities and soliciting membership enrollment contributions and all
other activities that are reasonably necessary to achieve the fundraising objectives in this
Agreement.
c. HCA may use the assumed name "Hopkins Center For The Arts" in connection with the
fundraising activities conducted by it under this Agreement. Such use shall be on a non-
exclusive basis. and the City shall continue to use such name in connection \vith all activities
. of the City related 10 the Facility consistent with the provisions of this Agreement. Upon
termination of this Agreement. HCA shall discontinue use of the name "Hopkins Center For
The Arts".
d. All grants, contributions. bequests and membership enrollments obtained by HCA under this
Agreement shall be payable to "Hopkins Center for the Arts." HCA shall disclose to all
donors and members that such grants, contributions. bequests and membership enrollments
are dedicated to the uses and purposes identified in this Agreement.
e. All grants and contributions obtained by HCA under this Agreement shall be deposited and
accounted for as provided in Section 6 of this Agreement. HCA shall deliver to the City
copies of all statements, invoices and billings for costs and expenses related to fundraising
activities conducted pursuant to the tenns of this Agreement. It shall be the responsibility
of HCA to pay such statements, invoices and billings. HCA shall cooperate with the City
in compiling financial and other information as necessary for the City to complete anv
bookkeeping and accounting work necessary to account for revenues from fundraising and
expenses related thereto. HCA shall also provide the City with originals and/or copies of all
documents related to fundraising activities. In no event shall the City assume responsibility
for any record keeping. bookkeeping or accounting related to the business or affairs ofHCA
or its status as a tax exempt organization under Section 501(c)(3) of the Intema] Revenue
Code.
. f. No later than sixty (60) days after the end of each Acti\"ity Year during the term of this
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. Agreement, HCA shall deliver to the City a detailed, itemized accounting of all Fundraising
and Membership Revenues and expenses for the preceding Activity Year, detailing all
revenues from fundraising activities under this Agreement and expenses related thereto in
a fonnat approved by the City. In the event this Agreement is terminated before the end of
the an Activity Year, HCA shall provide the accounting required by this paragraph f no later
than sixty (60) days after the date of termination of this Agreement.
g. HCA shall maintain and submit all required reports. returns, disclosures and financial
statements and records to the Internal Revenue Service, Minnesota Department of Revenue,
Minnesota Attorney General Charities Division and any other state or federal agency or
authority to \\'hich reports or financial disclosures are required to be made in cOJU1ection with
the fundraising activities to be conducted under this Agreement. Copies of all such reports,
returns. disclosures and records shall be promptly delivered to the City.
h. It is the intention of the parties that all membership enrollments. grants and contributions
obtained by HCA as a result of its fundraising activities shall be tax deductible. To that end.
HCA shall maintain its status as an organization described in Section SOl (c)(3) of the
Internal Revenue Code at all times during the tenn of this Agreement.
1. HCA shall be entitled to use the services of City employees and staff to perform the duties
assumed by it under this Section 3, upon the tenns and conditions stated in Section 4 ofthis
. Agreement.
J. HC A shall pay the expenses that it incurs in performing its fundraising activities under this
Agreement in the manner provided in Section 5 of this Agreement. The sole consideration
or payment to either party with respect to or as a result of the Membership and Fundraising
Revenues or the performance of He A' s fundraising activities under this Section 3 shall be
eachparty's (fifty) 50% annual share of Excess Cooperative Revenues specified and defined
in Section 5 of this Agreement.
k. The authority and responsibility ofHCA in its fundraising capacity shall be limited to that
delegated and described in this Agreement. The City retains all rights, responsibilities and
authority related to the ownership and operation of the Facility that are not explicitly
delegated to HCA by this Agreement, including the right to conduct other fundraising
activities in its o\'\'n behalf or to employ third parties to conduct fundraising activities during
the term of this Agreement. provided the City shall do so in good faith and shall not
materially interfere with the fundraising activities to be performed by HCA under this
Agreement.
4. Use of City Employees _ The City and HCA agree that HCA shall. subject to the terms
and conditions described in this Section 4. be entitled to use the selTices of the Facility Manager.
. Arts Coordinator and Scheduling Coordinator employed by the City. or other City personnel
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. designated by the City, for the purpose of performing the duties and responsibilities assumed by
HCA under Sections 2 and 3 this Agreement.
The employees listed above. and any other City employee assisting the HCA, are and shall
at all times remain City employees and shall not in any \\'ay be deemed an employee or agent of the
HCA.
The City retains all employment authority over the employees, including but not limited to
the right to establish work schedules and compensation rates, the right to supervise the employee' s
performance ofhis/her job duties, including those performed under this Agreement, and the right to
make all decisions regarding promotion. demotion or discipline of the employee, Further. the City
retains all obligations for the employees' compensation. including payment of wages. withholding
and payment of employment taxes, payment of contributions for benefits, including but not limited
. to insurance and retirement benefits and inclusion of the employee under the City's WOrker.S
Compensation coverage. Reemployment Insurance coverage, liability insurance coverage and any
and all other similar coverages.
The employees identified above shall be a\'ailable to the HCA for a cumulative total of no
more than forty (40) hours per week. The use of City employees by the HCA shall be upon and
subject to the following additional terms and conditions:
a. The City's Facility Manager or other City employee designated by the City shall
determine which City employee or employees shall be made available to HCA, the
dates and times of such availability, and the Facility Manager's determination in this
regard shall be final.
b. There shall be no charge to HCA for its use of City employees as described in this
Agreement.
c. HCA shall be entitled to use City employees solely for the purpose of performing the
. duties and responsibilities assumed by HCA under this Agreement.
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. d. HCA shall be entitled to use space within the Facility designated by the City for the
purpose of performing its duties and obligations under the Agreement.
e. The City employees may use office equipment, telephones, computer systems and
other property of the City while perfom1ing services for HCA without charge to
HCA.
t. The City agrees that HCA shall be entitled to require that the City employees to be
made available for use by the HCA shall be qualified to perform the services to be
provided by HCA under this Agreement and othenvise competent to fulfill the
objectives of this Agreement.
5. Expenses and Division of Revenues. Payment of expenses and consideration for the
serv1ces performed by HCA under this Agreement shall be made and distributed as follows:
a. Definitions: In addition to the words and phrases defined elsewhere in this Agreement.
which definitions are incorporated in this Section 5. the follov.'ing words and phrases. \vhen
used in this Agreement. shall have the meaning stated below:
"Activity Year"' shall mean and refer to each successive t\velve (12) month period beginning
on July 1 and ending on June 30.
. .. Cooperative Revenues" shall mean and refer to, collectively. all of the Event Revenues and
the Fundraising and Membership Revenues.
"Event Expenses" shall mean and refer to:
i) all reasonable and necessary fees, costs and expenses due to third parties related to
scheduling. programming. conducting, enforcing or administering HCA Events and contracts
for HCA Events under this Agreement. including, but not limited to, advertising and
promotional expenses. printing and postage, insurance premiums, attomey' s and accountant" s
fees. fees and expenses due to independent contractors, any excess Fundraising Expenses
identified in Paragraph b. of this Section and all other reasonable and necessary costs and
expenses ofv.'hatever kind or nature associated \\'ith the performance ofHCA' s duties under
this Agreement related to HCA Events;
ii) all payments and other sums due to performers or other persons perfom1ing HCA Events:
and
iii) a space usage fee due and payable to the City in the amount of: aa) five percent (5%) of
the amount of the fees. costs. expenses and payments identified in clauses i) and ii) for HCA
Events in the large theatre space: and bb) ten percent (10%) of the amount of the fees. costs.
expenses and payments identified in clauses i) and ii) for HCA Events that do not use the
. large theatre space. HCA agrees that such space usage fee shall be due and payable to the
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. City for each HCA Event within thirty (30) days of the final performance of such HCA
Event.
iv) reimbursement of the advances to be made by the City under Paragraph S.b.v. of this
Agreement.
"Event Revenues" shall mean and refer to all revenues, ticket receipts, payments,
concessions, rents, royalties sponsorship and advertising payments and other income deri ved
from HCA Events scheduled and administered by HCA under Section 2 ofthis Agreement.
"Fundraising Expenses" shall mean and refer to all reasonable and necessary fees. costs and
expenses related to conducting, performing and administering the fundraising activities of
HCA described in Section 3 of this Agreement, including but not limited to, advertising and
promotional expenses. printing and postage. attorney's and accountant's fees, fees and
expenses due to independent contractor's, any excess Event Expenses identified in Paragraph
b. ohhis Section and any and all other fees, costs and expenses of whatever nature associated
\~vi th the perfomlance ofHC A - s fundraising duties under thi s Agreement. including a space
usage fee due and payable to the Cit)' equal to ten percent (10%) of the foregoing Fundraising
Expenses for all fundraising programs and events that are conducted in and use space within
the Facility. Fundraising Expenses shall also include reimbursement of the $10.000.00
advance made by the City under Paragraph 5.b.v. of this Agreement. Costs or benefits
. payable to or for the benefit of employees, officials or other representatives ofHCA shall not
be included in the Fundraising Expenses.
"Fundraising and Membership Revenues" shall mean and refer to the "Fundraising and
Membership Revenues" defined and identified in Paragraph a. of Section 3 of this
Agreement.
b. Payment of Expenses. The Event Expenses and the Fundraising Expenses shall be paid as
follows:
i) The Event Expenses shall be paid from the Event Revenues. This payment shall
include the space usage fee payable to the City as specified in Paragraph a of thi s
Section 5.
ii) To the extent the cumulative Event Revenues for any Activity Year during the tenn
of this Agreement are not sufficient to pay the cumulative Event Expenses for such
Activity Year. the excess Event Expenses shall be included in and paid as part ofthe
Fundraising Expenses. provided that certain Fundraising and Membership Revenues
that are restricted to certain uses or purposes by the donor shall only be used for such
uses and purposes. Upon termination of this Agreement. there shall be a final
accounting of the Event Expenses and Event Revenues for the partial Activity Year
. through the date of tennination, and the Eyent Expenses for such partial Activity
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. Year shall be paid as specified above.
iii) The Fundraising Expenses shall be paid from the Fundraising and Membership
Revenues.
iv) To the extent the cumulati\'e Fundraising and Membership Revenues for any
Activity Year during the tenn of this Agreement are not sufficient to pay the
cumulative Fundraising Expenses for such Activity Year. the excess Fundraising
Expenses shall be included in and paid as part of the Event Expenses. Upon
termination of this Agreement. there shall be a final accounting of the Fundraising
Expenses and Fundraising and Membership Revenues during the partial Activity
Year through the date oftem1ination, and the Fundraising Expenses for such partial
Activity Year shall be paid as specified above.
v) The City agrees that it shall advance an amount not to exceed $10,000.00 to HCA
to pay Event Expenses and Fundraising Expenses until a sufficient amount of
Cooperative Reyenues have been received to defray Event Expenses and Fundraising
Expenses. Said $1 0.000.00 shall be adyanced to HCA and repaid to the City. \vithout
interest. on the following tenns and conditions:
aa) For a period of 365 days from and after the date of this Agreement. the City
. agrees that it shall make advances of cash to HCA in a cumulative amount
not to exceed $10,000.00 for the purpose of defraying Event Expenses and
F undrai sing Expenses upon request by HCA designating the amount of such
advance.
bb) HCA shall repay all of such advances that exceed the sum of $5.000.00 on
the first anni'versary date of this Agreement. provided the City may, in its sole
discretion. consider extending such initial repayment date for a period not to
exceed 180 days upon such tem1S and conditions as the City may determine.
cc) The balance of all amounts advanced by the City to HCA shall be repaid, in
full. on the first business day that is 180 days after the first anniversary date
of this Agreement.
c. Division of Excess Cooperative Revenues. The sole consideration or payment to either party
with respect to or as a result of: the scheduling. conduct, administration or perfom1ance of
HCA Events or any services provided by HCA in relation thereto; or the Membership and
Fundraising Revenues or the performance ofHCA's fundraising activities under Section 3
of this Agreement shall be determined and distributed as follows:
To the extent the Cooperative Revenues forthe immediately preceding Acti\'ity Year
exceed the cumulative total of the Event Expenses and Fundraising Expenses for
. such Activity Year (such excess Cooperative Revenues being herein referred to as
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. ""Excess Cooperative Revenues''), such Excess Cooperative Revenues shall be
divided between and distributed to the City and HCA, as follows:
The City shall receive 50% of the Excess Cooperative Revenues.
HCA shall receive 50% of the Excess Cooperative Revenues.
The Excess Cooperative Revenues. if any, for each Activity Year during the tenn of this
Agreement shall be distributed to the City and HCA. annually, no later than sixty (60) days
after the end of each Activity Year in the percentages stated above. Such excess Cooperative
Revenues shall be distributed in arTearS. based on the Excess Cooperative Revenues for the
preceding Activity YeaL but only to the extent of Cooperati ve Revenues actually collected.
Upon temlination of this Agreement and delivery ofthe accountings required by Paragraphs
2.h. and 3.f. of this Agreement, the Excess Cooperative Revenues, if any, for the year of
termination shall be distributed to the City and HCA, no later than thirty (30) days after
delivery of such final accountings.
6. Bank Accounts and Financial Reports. All sums received by HCA in connection with
its programming and fundraising duties under Sections 2 and 3 of this Agreement shall be deposited
. into a separate bank account maintained by HCA for that purpose. HCA shall not commingle the
funds deposited in the bank account to be established under this Section 6 'kith other funds ofHCA.
and the City shall at all times by entitled to receiw copies of all books and records related to the
bank accounts so established by HCA.
No later than ninety (90) days after the end of each Activity Year during the term of this
Agreement. HCA shall cause its certified public accountant to prepare. in accordance with generally
accepted accounting principles. and deliver to the City a compiled annual financial report of the
programming activities and fundraising acti\'ities perfonned by HCA under this Agreement. Within
ninety (90) days following the termination of this Agreement. HCA shall also deliver to the City a
compiled 11nancial report for the year of termination complete through the date oftemlination. HCA
agrees that the City shall have the right to inspect, audit and receive copies of all books. records,
. bank statements and other documents related to or evidencing HC A . s programming and fundraising
HopCI\ ll\,Dli.U1agcmc-nGII..:m 13
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. activities and duties under this Agreement. and HCA agrees to give the City or its representatives
access to HCA's records for that purpose.
7. Insurance and Indemnification.
a. Insurance. The City shall maintain casualty insurance coverage for the Facility. \\'ith
coverage limits, terms and conditions as determined by the City in its sole discretion. HCA
shall not be named as an additional insured in the City's casualty insurance policies. HCA
shall maintain fire and extended coverage casualty insurance insuring all personal property
of HCA that is located within the Facility and personal property of third parties that is
consigned or entrusted to HCA for display purposes within the Facility. Such fire and
extended coverage casualty insurance to be maintained by HCA shall name the City as an
additional insured. and the costs of maintaining such insurance shall not be an Expense
reimbursable to HCA under the provisions of Paragraph 5.a. of this Agreement. The City
and HCA shall each maintain comprehensive general liability insurance providing coverage
for claims arising from the operation of the Facility and (in the case of HCAl the
perfOlmance ofHCA' s duties and responsibilities under this Agreement. The coverages and
liability 11l11its for the comprehensi ve general liability insurance to be maintained by the City
shall be as determined by the City in its sole discretion. The comprehensive general liability
insurance to be maintained by HCA shall provide for limits of coverage of not less than
. $1.000.000.00 combined single limit coverage. The City shall be named as an additional
insured on the comprehensive general liability insurance policy to be maintained by HCA.
The City and HCA agree that they shall provide one another \vith certificates evidencing the
insurance coverages that they are required to maintain by this Agreement. which certificates
will provide for thirty (30) days' prior written notice to any par1y named as an additional
insured prior to cancellation of the applicable policy. HCA ackno\vledges that it has been
advised the City does not maintain liability insurance in excess of the statutorily imposed
liability limit of S] .000.000.00, and that H CA is solely responsible for insuring itself against
all risks associated \",ith the performance of its duties under this Agreement. As provided in
Section 4- of this Agreement. the City shall provide all Worker's Compensation insurance and
other insurance to be prO\'ided on behalf of the City employees and staff whose services are
to be used by HCA pursuant to Section 4.
b. Indemnification. Except to the extent such claims. damages and liabilities are covered by
insurance maintained by the City, HCA agrees that it shall indemnify and hold the City
harmless from and against any and all claims. damages and liabilities arising out of:
i) Any failure ofHCA to perform any of its obligations under this Agreement:
ii) Any acts of HCA or its agents or representatives beyond the scope of the agency and
authority specifically granted to HCA under this Agreement; and
. iii) The negligence or intentional misconduct ofHC A, its agents or representatives other
than the City employees to be provided to HCA under Section 4 of this Agreement.
Hl1pci\ 1I",managclllCf1L3a.an 14
. Except to the extent such claims, damages and liabilities are covered by the insurance HCA
is required to maintain under Paragraph a., above. the City shall indemnifY and hold HCA
harmless from and against any and all claims, damages and liabilities arising out of the
operation, ownership, leasing and maintenance of the Facility. Other than those arising out
of the matters described in Subparagraphs i), ii) and iii) of this Paragraph 6.b.
8. Miscellaneous provisions.
a. The captions and headings used in this Agreement are used for convenience only and shall
not be used in construing or interpreting the provisions of this Agreement.
b. Any notice, demand or other communication required or permitted to be given hereunder
shall be deemed delivered and effectively given when delivered personally to the
representatives of the City and HC A identified belo\\' or one (1) business day after being
mailed by registered or certified mail. retum receipt requested. addressed as follows:
To City: City of Hopkins
Attention:
1010 First Street South
Hopkins, MN 55343
. To HCA: Hopkins Center for the Arts
Attention:
Either party may change its address or the identity of its designated representative named
above by \\Titten notice to the other party in the maImer stated in this paragraph.
c. H C A is an independent contractor of City, and shall act only pursuant to and in accordance
with the tem1S of this Agreement. No provision of this Agreement nor any acts of the parties
hereto. shall be deemed to create a partnership or joint venture between the City and HeA.
d. There are no third party beneficiaries of this Agreement intended or otherwise.
e. This Agreement represents the entire Agreement between the City and HCA \vith respect to
its subject matter, and supersedes all prior agreements between the parties related to the
subject matter of this Agreement. Any amendment to this Agreement must be in \\Titing and
signed by both parties.
f. HCA may not assign its rights or responsibilities under this Agreement without the prior
\vrinen consent of the City. \\hich consent may be withheld in the City's sole discretion.
Subject to such limitation concerning assignment. this Agreement shall be binding upon and
.
I-I"rei\ II '.m3nagcmenL'3.3I1 15
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, ,
inure to the benefit of the City, HC A and their respective representatives. successors and
. assIgns.
a HCA agrees that it shall comply with all state and federal codes. statutes, rules, regulations
_.
~
and ordinances applicable to the perforn1ance of its duties and responsibilities under this
Agreement.
h. In the event any claim, action or proceeding is filed or initiated to enforce the provisions of
this Agreement. the prevailing party in such claim, action or proceeding shall be entitled to
recover such parties' reasonable anorney's fees as detern1ined by a court or arbitrator.
l. This Agreement shall be governed by, construed and enforced in accordance with the laws
of the State of Minnesota.
J. Each and every provision of this Agreement is intended to be severable. If any term or
provision hereofls determined to be illegal or unenforceable for any reason whatsoever. such
term or provision shall be severed from this Agreement, and shall not affect the validity of
enforceability of the remaining tenm and provisions ofthls Agreement.
k. HC A acknovdedges and agrees that it is familiar with the provisions of the Leases \\'ith
Stages and District 270 and, in addition. \\lith the provisions of that certain Grant Agreement
End Grant. dated April 1. 1997. between the City and the State of Minnesota Department of
. Administration (the "Grant Agreemenf'). HCA agrees. in the perfonnance oflts duties under
this Agreement. that it shall not \'iolate any Agreement, term, covenant. condition or
requirement of such Leases or the Grant Agreement. Without limitation of the foregoing
provisions of this Paragraph k.. HCA shall comply with the provisions of Section 3.03 of the
Grant Agreement, including Paragraph I. thereof. \vhich requires H C A. for one (1) year from
the date of this Agreement to list any vacant or new positions HCA may have with job
services of the Commissioner of Economic Security of the State of Minnesota, or the local
service units. as required by Minn. Stat. 268.66. Subd. 1, as the same may be subsequently
amended, modified or replaced.
1. Any and all documents. records and data created, collected, received, stored, used,
maintained or disseminated by HCA in perfonl1ing the duties and functions assumed by it
under this Agreement are subject to the requirements ofthe GoverJU11ent Data Practices Act.
Minn. Stat. Chapter 13, and HCA acknowledges and agrees that, by entering into this
Agreement. it shall comply wi th the requirements of Mim1. Stat. Chapter 13 as if it were a
governmental entity subject to such requirements.
m. Durlng the tem1 of this Agreement. HCA agrees that its By]av,'s shall provlde that at least
one-third of its board members shall be Hopkins residents. No provision of this Agreement
sha]L however. be construed as granting the City control over the governance. existence or
operation of HC A \\'hlch. at all times. shall remain fully independent of the City.
.
HupCI\ J!,managclllcnL,aart ]6
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IN WITNESS WHEREOF, the City and HCA have executed and entered into this Agreement
. effective as of the date first above \\'riuen.
CITY OF HOPKlNS, MINNESOTA HOPKINS CENTER FOR THE ARTS
ASSOCIA TION
By By
Its Its
By - By
Its Its
.
. 17
H[lpej, lrmanJgcmcnL' a. art
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