HomeMy WebLinkAbout20081103 - VIII-C-1VIII-C-1
MEMORANDUM
TO: Honorable Mayor and City Councilmembers
FROM: Dave Osberg, City Administrator
DATE: October 30, 2008
SUBJECT: Amended Leduc Operating Agreement
RECOMMENDED CITY COUNCIL ACTION
It is recommended that the City Council take action approving the enclosed Leduc
Operating Agreement with certain amendments.
BACKGROUND
Currently, the City of Hastings is operating under an agreement with the Dakota County
Historical Society for the operation of the LeDuc Mansion that was executed with an
effective date of June, 2005. A variety of duties, responsibilities and obligations of each
party are outlined in the agreement, that is currently scheduled to expire in 2010, with
opportunities to automatically extend for an additional five years.
The new agreement, which is attached results in several proposed changes, that both
parties contend will be advantageous after now experiencing several years of operations.
In particular, the new agreement will:
-Shift to the DCHS the responsibility of completing certain minor kitchen repairs and
maintenance. (Page #3 Section 10 (e) and (f))
-The DOHS will take over the responsibility of basic janitorial services and cleaning,
such as the restrooms, etc. (Page #3 Section 13)
-Window cleaning, to a certain extent shall become the responsibility of the DCHS
(Page #3 Section 14)
-Minor repairs such was painting, woodworking, fixtures, plumbing etc, shall become the
responsibility of the DCHS (Page #3/#4, Section 16)
-Certain pest control measures shall become the responsibility of the DCHS. (Page #4,
Section 17).
As a result of the DCHS assuming additional responsibilities, the pending agreement
suggests an annual payment of $5,000.
The agreement also reflects continuation of the agreement through the end of 2009, and
then the automatic renewal for an additional five years.
Staff has conducted extensive discussion with Staff at the DCHS and all are in
agreement, that these changes will foster even further the excellent working relationship
that has been established over the last several years, and assure the continued efficient
operation and maintenance of the LeDuc Mansion for future years. Staff recommends
approval.
~~~1~~~ ~ ~~~~
David M. Osberg
City Administratc
cc. Chad J~obe~, DOHS
OPERATING AGREEMENT
LeDuc Historic Estate
City of Hastings and the Dakota County Historical Society
THIS AGREEMENT, is made this 1St Day of December 2008 by and between the
City of Hastings, a municipal corporation of the State of Minnesota, herein called the
CITY and the Dakota County Historical Society, anon-profit corporation, herein called
the DOHS.
WHEREAS, the CITY has made determination that it wishes to utilize the
services of the DCHS to operate the LeDuc Historic Estate, 1629 Vermillion Street,
Hastings, herein called the SITE. Both the CITY and DCHS enter into this Agreement for
a period of one (1) year and seven (7) months, with an automatic renewal for an
additional five (5) year period, unless terminated by either party according to the
provisions outlined in Section IV. E and F, with said agreement starting on January 1,
2009.
This agreement modifies and replaces the "Operating Agreement LeDuc Mansion" that
was signed into effect on June 24th, 2005.
TERMS OF THE AGREEMENT
I. DCHS shall provide the following services relating to the general operation and
management of the SITE:
1. Open the SITE to the public on or about May 15th, continuing until about October 31St
of each year beginning with 2005 for a period of approximately 30-40 hours per week,
with the CITY advised and allowed to approve the specific days and times of operation.
The DCHS and CITY agree to meet on an annual basis to determine the hours of
operation for the upcoming year.
2. Manage the day-to-day operations of the SITE, including but not necessarily limited to
the following:
a.) Provide tours and programs that offer an historic interpretation of the house,
carriage barn and grounds to the public, as well as providing stories and
exhibits related to the LeDuc family, Carroll Simmons, Andrew Jackson
Downing, the City of Hastings, Dakota County and other relevant history
related to the SITE.
b.) Plan, schedule and manage activities and special events at the house, carriage
barn and on the grounds to generate operating revenues while maintaining the
quality and character of the SITE.
3. Abide by the Partnership Agreement for the Operation of the SITE, which is hereby
included as a part of this Operating Agreement, and is attached as Exhibit #A.
4. Design, create, install and control the selection, display, storage and preservation of the
art and historical objects appropriate to the SITE. Arrange or facilitate cleaning of
artifacts and exhibits, and be responsible for said cost, in the LeDuc House and the
Carnage Barn. DOHS will be responsible for care and replacement of light bulbs and
fixtures for the exhibit lighting. These displays will be cleaned, repaired and/or replaced
by DOHS. All of the foregoing shall be at the sole expense of DCHS.
5. DCHS shall own all exhibits, cases, lighting and the like developed and paid for, either
in whole or in part, by DCHS for the SITE. Exhibits, cases and lighting and the like
developed and paid for wholly by parties other than DOHS, including the CITY, shall
remain the property of the parties that developed and/or paid for them unless gifted to
DCHS. Exhibits, cases, lighting and the like developed solely for the SITE and having no
practical use away from the SITE will be gifted to the CITY by the DCHS should this
agreement be terminated. Additional exhibits, cases, lighting and the like, may at the sole
discretion of DCHS, be gifted to the CITY should this agreement be terminated. This
does not include assets belonging to DOHS which are not offered to the SITE, and which
were not acquired solely for use at the SITE.
6. DCHS, in recognition of the reputation and highly public nature of the CITY as the
owner of the SITE, agrees to develop exhibitions, tours and programs, and the like
following best practices identified by the American Association of Museums (AAM)
and/or the American Association for State and Local History (AASLH). Should
appropriate best practices not be available from AAM or AASLH for some aspect of
operating the SITE, DOHS shall make a good faith effort to identify and follow
appropriate best practices in closely related fields. Furthermore, should any potentially
controversial subject be selected for exhibition at the SITE, DCHS shall inform the CITY
as to the nature of the subject and possible controversial aspects the subject.
7. DCHS will employ the personnel necessary for the operation of the SITE. DOHS will
recruit, train and supervise employees, volunteers and interns necessary for the operation
of the SITE, and be responsible for providing the necessary workers compensation
insurance and payroll taxes
8. DOHS will provide telephone service and computer Internet and email service to the
SITE, and be responsible for payment of said service.
9. DCHS will be responsible for specialized grounds maintenance such as, but not
necessarily limited to the apple orchard, flower gardens, watering heirloom plants, shrubs
and flowers.
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10. DOHS will be responsible for the operation and maintenance of the kitchen facilities
that will include, but not be limited to the following:
a. Purchase and acquisition of kitchen equipment it deems necessary and it
ongoing maintenance.
b. Purchase, acquisition and maintenance and replacement of utensils, glassware,
plates, it deems necessary.
c. Purchase and acquisition of tables and chairs for rental events it deems
necessary.
d. Cleaning and maintenance including plumbing within the kitchen, supply and
waste lines.
e. Kitchen plumbing maintenance including clog removal, and other normal day-
to-day maintenance.
f. Make minor repairs that are within its capacity to complete, only after having
received prior approval from the City.
1. Major kitchen plumbing repairs shall be completed by the City, which
may include, but not necessarily be limited to: pipe or fitting
replacement and repair, frozen pipes or repairs that are expected to
exceed $500.00 in cost. Those repairs expected to exceed $500.00
shall be paid by the City, unless the DOHS agrees to make full or a
partial payment.
11. DOHS will operate a gift shop on the premises and be responsible for insuring the
contents, and receiving waivers of liability from those dealers who display for sale, their
items in the gift shop.
12. DCHS will insure its personnel and the exhibit contents in the SITE and carnage
barn.
13. DOHS shall be responsible for basic janitorial services and cleaning, including
bathroom cleaning and restocking; sweeping, mopping, dusting, changing light bulbs, and
similar day-to-day cleaning.
14. DCHS shall be responsible for washing all window surfaces that can be accessed
without removing storm windows or other window structure and that can be reached
safely using a step ladder of no more than 6' in height. The CITY shall be responsible
for cleaning all other window surfaces (see III.C.)
15. DCHS staff will accompany CITY staff in annual (or more frequently as needed) site
inspections to identify any damage, needed repairs, insect/pest infestations, mechanical
failures, or other issues that may harm the integrity of the site.
16. DOHS staff may complete minor repairs with prior approval from CITY. These
minor repairs may include painting, woodworking, fixture repair/replacement, plumbing
repairs, etc. Costs associated with such measures shall be paid by either DCHS or CITY
as determined by mutual, written, agreement.
17. DCHS may take measures to control pests not covered by the CITY's pest control
contract with prior approval from CITY. Costs associated with such measures shall be
paid by either DCHS or CITY as determined by mutual, written, agreement.
II. DCHS recognizes the CITY as the owner of the SITE, and will complete the
following in consideration:
A. Provide a standard activity report to the CITY, quarterly, and participate in meetings
as needed, that allow both the CITY and DOHS to evaluate their mutual contractual
obligations and performance.
B. Adhere to the provisions of the REAL ESTATE TRANSFER AGREEMENT and
DECLRATION CREATING RESTRICTIVE COVENANTS that specify DCHS'
obligations and services.
C. Promptly notify the CITY of any building or grounds maintenance needed for the
protection of the public and the SITE.
D. DCHS shall secure approval from the CITY, prior to submission, for any proposal for
funds that creates an obligation on the part of the CITY beyond that which is outlined in
this agreement.
E. DCHS will notify the CITY of all special events, fairs festivals and private events
planned at the SITE as soon as is reasonably possible. Any CITY events involving the
SITE must be coordinated with DCHS prior to being scheduled at the SITE. DCHS shall
also notify the CITY of any new exhibitions being considered or developed for the SITE.
F. DCHS shall provide the CITY with a list of suggested site improvements and
maintenance needs annually
G. DCHS will secure approval from the CITY for any improvements or alterations to the
SITE, excluding exhibits, tours and educational programs, prior to the start of said
improvements or alterations.
III. The City of Hastings agrees to perform the following services and provide the
following to the SITE:
A. The CITY shall be responsible for electricity, natural gas, sewer, water and solid waste
removal.
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B. The CITY shall be responsible for the structural repairs to the foundations, wall,
floors, roofs, chimneys; window replacement; exterior and interior painting; and any
other structural repairs or replacement.
C. The CITY shall be responsible for annually cleaning all window surfaces other than
those described under item I.14.
D. The CITY shall be responsible for pest control (including vermin and animals not
generally covered by the CITY's pest control contract), grounds maintenance, lawn
mowing, snow removal (including manual shoveling of sidewalks and access paths for
staff and visitors), tree and shrub trimming, except those noted as the responsibility of
DCHS.
E. Except as otherwise provided, CITY shall be responsible for the mechanical systems,
such as sinks, toilets, electrical switches, heating systems, electrical systems, plumbing,
air conditioning, humidity control and security, and shall agree to maintain said systems
following the maintenance, repair and replacement recommended by the manufacturer of
each system or component, with the goal ofcreating anear-museum quality environment,
with minimal temperature, humidity or air quality fluctuations.
F. The CITY shall also be responsible for the following: parking lot, sign maintenance,
exterior lighting, fence and gate repair and maintenance, and exterior signage, and
replacement of specialized trees and shrubs.
G. The CITY will conduct a site inspection at least annually to identify any damage,
needed repairs, insect/pest infestations, mechanical failures, or other issues that may harm
the integrity of the site.
H. The CITY may allow DCHS staff or contractors to conduct any of the activities listed
in items III.A through III.G by providing DCHS with written approval. City shall pay all
costs associated with such activities unless DCHS agrees in writing to pay for the
activity.
IV. Other Duties and Responsibilities
A. DOHS agrees not to discriminate in providing services on the basis of race, religion,
color, national origin, sex, marital status, mental or physical disability.
B. DCHS agrees to indemnify, hold harmless and defend the CITY, its officers agents
and employees from and against any all claims for injury or property damage arising out
of, or related to the services to be performed as outlined in this AGREEMENT, and the
attached exhibit.
C. DCHS, receiving money from the CITY and in providing non-profit services in the
interest of the citizens, shall at all times be considered an independent contractor and not
an agent, partner or in joint venture with the CITY. The parties acknowledge that any
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contract or agreement entered into between the DCHS and a third party shall not be an
obligation of the CITY. DCHS shall not represent that it has the power or authority to
contractually obligate the CITY.
D. DCHS agrees that the responsibility for performing the services to be implemented
under the terms of this agreement shall not be assigned, transferred or delegated by the
DCHS to a third party without the prior written consent of the CITY.
E. Either party may terminate this agreement for failure of the other party to comply with
any term, condition or obligation under this agreement, no earlier than 6 months after
written notice specifying the nature of the default, with reasonable particularity, and such
default not having been substantially corrected, within four weeks after the notice has
been sent. Upon such termination, DOHS shall be entitled to receive apro-rated portion
of the payment owned under Section V (G) and the City shall receive the balance of any
unspent funds already allocated to DCHS, but not yet expended.
F. This Agreement shall be for an initial five (5) years, and automatically continue for an
additional five (5) years, unless either party provides notice to the other that the second
five (5) year term will not be renewed for the additional five (5) year term, which must be
submitted in writing not less than one (1) year before the expiration of the first five (5)
year term expiring.
G. DCHS shall maintain in force for the duration of this agreement the insurance
coverage specified below. Each policy required by these provisions shall be written as a
primary policy, not contributing with or in excess of any coverage that the CITY may
carry. A copy of each policy or certificate of insurance satisfactory to the CITY shall be
delivered to the CITY upon the execution of this agreement. Unless otherwise specified,
each policy shall be written on an "occurrence" form, with an admitted insurance carrier
licensed to do business in the State of Minnesota and shall contain an endorsement
entitling the CITY to not less than 30 days prior written notice of any material change,
non-renewal or cancellation. The adequacy of such insurance required by these
provisions shall be subject to approval by the CITY. Failure to maintain any insurance
coverage required by this agreement shall be cause for immediate termination of this
agreement by the CITY.
G-l. Comprehensive General Liability. DCHS shall maintain a broad form
comprehensive liability insurance policy with coverage of not less than $1,000,000
combined single limit per occurrence, with an aggregate of $2,000,000 for bodily injury,
personal injury or property damage. Such policy shall contain contractual liability
endorsement and tenant legal liability coverage.
The policy shall also contain an endorsement naming the CITY as an additional insured,
in a form satisfactory to the CITY, and expressly providing that the interest of the CITY
shall not be affected by the DCHS' breach of policy provisions.
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G-2. Workers Compensation. If the DOHS shall perform the work with the help of others,
DCHS shall provide proof of worker's compensation insurance coverage in compliance
with all applicable provisions of worker's compensation laws in the State of Minnesota.
G-3. Property Insurance. It is agreed that the CITY will provide property insurance
coverage for building and contents owned by the CITY. DOHS shall maintain separate
property insurance coverage for all personal property owned by the DCHS, or loaned to
the DOHS by the Minnesota Historical Society. The CITY will not provide any type of
insurance for property or contents not owned by the CITY that is located at the SITE.
H. DCHS and the CITY shall comply with all applicable federal, state and local laws and
rules, ordinances and regulations at all times, while this agreement is in force.
I. This Agreement can be modified with the written consent and approval of both parties.
Financial Obligations and Responsibilities
A. By August 1 of each year DCHS will submit a SITE operating budget to the CITY for
review. The annual budget shall include yearly goals and projections of anticipated
revenues that will be generated at the SITE. DCHS agrees to include only expenses that
are directly related to the operation of the SITE, as required by the terms and conditions
of this agreement and the Partnership Agreement which is included as Exhibit #A.
DCHS shall also submit a list of capital needs, repairs, improvements, etc. to the CITY.
B. The CITY will prepare a capital budget for review during the budget review process
and DCHS may assist the CITY as necessary to complete this capital budget.
C. At the same time the CITY and DCHS review and approve the annual budget, each
party agrees to meet and confer on the budget, in an effort to determine the amount of
Simmons Trust that will be needed to operate the SITE in the upcoming year, and the
amount of Simmons Trust that will be needed for certain capital expenditures during the
next year. Furthermore, the CITY agrees to meet and confer with the DCHS any time it
draws funds from the Simmons Trust to repair, replace, maintain any item at the SITE, or
for any capital expenditure or any operating expenditure of which it is responsible. Each
party understands that the Simmons Trust are the sole ownership of the CITY and
allocation of the funds is at the sole discretion of the CITY, with the further
understanding that allocation for a legitimate expense shall not be unreasonable held back
by the CITY.
D. DCHS and the CITY agree that any earned income from the operation and rental of
the SITE shall remain with the SITE and used for expenses associated with the operation
and capital expenditures and repairs at the SITE.
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E. Each party agrees to meet on a quarterly basis to review the projected budget and
actual expenditures, in an effort to firmly establish the need for an allotment of Simmons
Trust and establish a schedule for their distribution.
F. Each party expects, on an annual basis that the earnings from the Simmons Trust will
be distributed 50% to the CITY and 50% to the DCHS for the operation and maintenance
of the SITE. Of that amount, it is expected that half will be distributed on or about
February ls` of each year, with the remaining amount distributed during the balance of the
year, as determined in "D" above.
G. In consideration of items I.13 & I.14, the CITY agrees to pay DCHS $5,000 annually
in addition to payments specified elsewhere in this agreement. This payment shall be
used by DCHS to purchase cleaning supplies & equipment; touch-up paint; minor shop
materials/expendables; as well as to pay staff to conduct general cleaning identified in
items I.13 &I.14.
H. The CITY and DCHS agree that should any grant funds be received solely for use at
the SITE, that those funds will remain with the SITE and that DCHS shall be responsible
for administering and accounting for those grant funds. Should this agreement be
terminated and grant funds dedicated solely for use at the SITE remain unspent, those
funds will remain with the SITE and become the responsibility of the CITY to administer
and account for, unless the grantor requests and alternative arrangement be made.
I. Should either party terminate the agreement according to the terms outlined, DCHS
shall receive apro-rated portion of the payment owed, based on the actual expenses
incurred by the DOHS at the time of termination.
Execution of this Agreement hereby cancels the previous Lease Agreement
between the City of Hastings and the Dakota County Historical Society executed and
dated in March, 2003.
Paul Hicks, Mayor, City of Hastings
Melanie Mesko Lee, City Clerk, City of Hastings
-seal-
Chad Roberts, Executive Director, Dakota County Historical Society