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HomeMy WebLinkAboutCOUNCIL - AGENDA ITEM - 07/20/2004 - RESOLUTION 2004-089 AUTHORIZING THE EXECUTION OF A ITEM NUMBER: 29 AGENDA ITEM SUMMARY DATE: July20, 2004 FORT COLLINS CITY COUNCIL STAFF: Marty Heffernan SUBJECT Resolution 2004-089 Authorizing the Execution of a Grant Contract with the Colorado Council on the Arts for Funding of the Winter Wishes Ice Show. RECOMMENDATION Staff recommends adoption of the Resolution. EXECUTIVE SUMMARY The City Recreation Division was recently awarded a matching grant from the Colorado Council on the Arts in the amount of$14,400 to provide performances of the Fort Collins Symphony at the annual Winter Wishes Ice Show at Edora Pool Ice Center(EPIC)in December,2004. The Colorado Council on the Arts requires that the City Council obligate the local match funding, as well as authorize the City Manager to execute the contract and bind the City to its terms. Match funding was appropriated in the Recreation Division budget by Ordinance No. 156,2003,which authorized the 2004 City expenditure budget. BACKGROUND The Recreation Division staff applied for and received a$14,400 grant from the Colorado Council on the Arts to provide for the first time live performances by the Fort Collins Symphony at its annual Winter Wishes Ice Show at EPIC December 15-18, 2004. This event will not only highlight ice skating as a performance medium,but it will introduce members of the community to the expertise and range of the local symphony orchestra. Over 300 skaters will skate in five performances attended by a total audience of 7,000. In order to receive the grant funding, the City must match the amount of the grant. Funding to match this grant has already been appropriated by Ordinance No. 156, 2003, which authorized the 2004 operational budget for the City, including the Ice Show budget, as part of the Recreation Division budget. The appropriated City match will be offset through ticket sales for the shows, as well as through other grants that have been received or applied for to support the Ice Show. July 20, 2004 -2. Item No. 29 Exhibit "A" to the Resolution is a draft of the contract between the Colorado Council on the Arts and the City of Fort Collins that expressly outlines the provisions for which the grant was awarded. The contract requires appropriate reporting,recognition, and a commitment to execute the contract and all its terms. It also requires that the City provide the Colorado Council on the Arts with a City Council resolution obligating the matching funds to the project and authorizing the execution of the contract. RESOLUTION 2004-089 OF THE COUNCIL OF THE CITY OF FORT COLLINS AUTHORIZING THE EXECUTION OF A GRANT CONTRACT WITH THE COLORADO COUNCIL ON THE ARTS FOR FUNDING OF THE WINTER WISHES ICE SHOW WHEREAS, the Colorado Council on the Arts ("CCA") was created by the Colorado Legislature through the Arts and Humanities Act of 1967 for the purpose of encouraging and assisting the development of the arts and humanities throughout the state, as well as public interest and participation therein; and WHEREAS, the CCA invests in the cultural development of arts activities through annual competitive grant programs that distribute state funds; and WHEREAS, the City of Fort Collins Recreation Division applied for a CCA grant to fund live performances by the Fort Collins Symphony at the annual Winter Wishes Ice Show at EPIC December 15-18, 2004; and WHEREAS, the CCA has approved the application and prepared a Grants to Artists and Organizations Contract("Contract")which the City must enter into in order to receive grant funding from the CCA in the amount of no more than $14,400; and WHEREAS,a copy of the Contract is attached hereto as Exhibit"A"and incorporated herein by reference; and WHEREAS, under the terms of the Contract, the City's receipt of the grant funds is contingent on several requirements, including providing dollar-for-dollar matching funds for the project, and providing to the CCA a resolution by the Council obligating the matching funds to the funded project and authorizing the execution of the Contract by a specific individual; and WHEREAS, the required amount of matching funds was previously appropriated in the Recreation Division budget for 2004 pursuant to Ordinance No. 156, 2003; NOW,THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF FORT COLLINS that the Council hereby approves the terms,conditions and obligations of the Contract, obligates the City to provide the required matching funds to the grant project,and authorizes the City Manager to execute the Contract on behalf of the City of Fort Collins. Passed and adopted at a regular meeting of the City Council held this 20th day of July, A.D. 2004. Mayor Attest: City Clerk EXHIBIT "A" COLORADO COUNCIL ON THE ARTS APPROVED WAIVER FORM Colorado Council on the Arts Grants to Artists and Organizations Contract THIS CONTRACT, made this_day of , by and between the State of Colorado for the use and benefit of the Department of Higher Education, Colorado Council on the Arts, 1380 Lawrence Street, Suite 1200, Denver, Colorado 80204 hereinafter referred to as the State, and City of Fort Collins Recreation Division hereinafter referred to as the Contractor, WHEREAS, authority exists in the Law and Funds have been budgeted, appropriated and otherwise made available and a sufficient unencumbered balance thereof remains available for payment in AGENCY NUMBER: GBA, FUND NUMBER: 100,APPROPRIATION NUMBER: PRG; and WHEREAS, required approval, clearance and coordination has been accomplished from and with appropriate agencies; and WHEREAS,the Legislature has declared in Section 23-9-102, CRS that encouragement and support of the arts and humanities are appropriate matters of concern to the state government; and WHEREAS, the duties of the State include assisting communities and organizations within the state in originating and creating their own cultural and artistic programs; and WHEREAS, in furtherance of these purposes, the State has determined that it is necessary to encourage the development of local resources supporting creative activity by awarding grants funds; and WHEREAS, based upon the statements and assurances given by the Contractor in its Grant Application,the State has determined that the Contractor can assist the State toward realizing this objective; a copy of the applicant's fact sheet is attached as Attachment"A"; and WHEREAS, the State has selected the Contractor in accordance with the requirements of the State Procurement Code and those of Title 23,Article 9 Colorado Revised Statutes. NOW THEREFORE, it is hereby agreed that 1. The Contractor shall use funds subject to this contract in support of: Winter Wishes- Symphony on Ice in accordance with Attachment"A" incorporated herein by reference. 2. Any modification of the implementation of these projects must be by written amendment to the contract. 3. For these services the Contractor shall receive no more than: $14400 which shall be matched dollar for dollar by the contractor and expended by June 30,2005 in accordance with the State Guidelines for Arts Council Grantees, a copy of which the Contractor received. Page 1 of 8 4. Work or services performed, or expenses incurred prior to July 1, 2004 shall not be reimbursable and are not eligible expenditures under the terms and conditions of this Contract. This is in accordance with the provisions of CRS 24-30-202 as amended. S. Payment will be made as soon as possible after the contract is executed by the$tate Controller. 6. The Executive Director of the Colorado Council on the Arts or her designee will represent the State in all communications regarding this contract. 7. The termination date of the activity within this contract shall be June 30, 2005. 8. The Contractor shall provide the State with an evaluation and fiscal report of this activity by the termination date of this contract which is thirty days(30)after the activity's ending as described in the Assurances section of Attachment A. 9. In the event of any conflict, inconsistency, variance or contradiction between the provisions of this contract and any of its attachments or exhibits, the provisions of this contract shall in all respects supersede, govern, and control. 10. Since the Contractor is receiving State funds as a grant provided under this contract,the following statement shall acknowledge such receipt by including the following statement in all advertising and published materials relating to the activity funded: "THIS ACTIVITY IS SUPPORTED BY FUNDING FROM THE COLORADO COUNCIL ON THE ARTS,A STATE AGENCY FUNDED BY THE COLORADO GENERAL ASSEMBLY AND THE NATIONAL ENDOWMENT FOR THE ARTS,A FEDERAL AGENCY." GENERAL PROVISIONS 1. FAIR LABOR STANDARD: The Contractor must abide by the Fair Labor Standards outlined under section 50) of the National Foundation on the Arts and Humanities Act of 1965 which provides that: a. all professional performers and related or supporting professional personnel (other than laborers or mechanics with respect to whom labor standards are prescribed in subsection 5(k)of the said act)employed on projects or productions which are financed in whole or in part under this section will be paid, without subsequent deduction or rebate on any account, not less that the minimum compensations for persons employed on similar activities; and b. no part of any project or production which is financed in whole or in part under section 5 of the National Foundation on the Arts and Humanities Act of 1 965 will be performed or engaged in under working conditions which are unsanitary or hazardous or dangerous to the health and safety of the employee engaged in such project of production, including particularly, work which is prohibited for safety or sanitary reasons by any of the Page 2 of 8 contracts with the labor organizations listed in 29 CFR 505 3(a). 2. SEVERABILITY: To the extent that this contract may be executed and performance of the obligations of the parties may be accomplished within the intent of the contract, the terms of this contract are severable, and should any term or provision hereof be declared invalid or become inoperative for any reason, such invalidity or failure shall not affect the validity of any other term or provision hereof. The waiver of any breach of a term hereof shall not be construed as waiver of any other term. Further, the waiver of any breach of a term hereof shall not be construed as a waiver of any subsequent breach of the same term. 3. INTEGRATION OF UNDERSTANDING: This argument is intended as the complete integration of all understandings between the parties. No prior or contemporaneous addition, deletion, or other amendment hereto shall I have any force of effect whatsoever, unless embodied herein in writing. No subsequent novation, renewal, addition, deletion,.or other amendment hereto shall have any force or effect unless embodied in a written contract executed and approved pursuant to the State Fiscal Rules. 4. TERMINATION FOR CAUSE: if, through any cause, the Contractor shall fail to fulfill, in a timely and proper manner, his obligations under this contract, or if the Contractor shall violate any of the covenants, agreements, or stipulations of this contract, the State shall thereupon have the right to terminate this contract for cause by giving written notice to the Contractor of such termination and specifying the effective date thereof, at least five (5)days before the effective date of such termination. In that event, all finished or unfinished documents, data, studies, surveys, drawings, maps, models, photographs, and reports or other material prepared by the Contractor under this contract shall, at the option of the State, become its property, and the Contractor shall be entitled to receive just and equitable compensation for any satisfactory work completed on such documents and other materials. Notwithstanding above, the Contractor shall not be relieved of Liability to the State for any damages sustained by the State by virtue of any breach of the Contract by the Contractor, and the state may withhold any payment to the Contractor for the purpose of setoff until such time as the exact amount of damages due the State from the Contractor is determined. 5. TERMINATION FOR CONVENIENCE: The State may terminate this contract at any time the State determines that the purposes of the distribution of State monies under the contract would no longer be served by completion of the Project. The State shall effect such termination by giving written notice of termination to the Contractor and specifying the effective date thereof, at least twenty (20)days before the effective date of such termination. In that event, all finished or unfinished documents and other materials as described in Termination for Cause shall, at the option of the State, become its property. If the contract is terminated by the State as provided herein, the Contractor will be paid an amount which bears the same ratio to the total compensation as the services actually performed bear to the total services of the Contractor covered by this contract, less payments of compensation previously made, provided, however, that if less than sixty percent (60%)of the services covered by this contract have been performed upon the effective date of such termination, the Contractor shall ._ Page 3 of 8 be reimbursed (in addition to the above payment)for that portion of the actual out-of-pocket expenses (not otherwise reimbursed under this contract) incurred by the Contractor during the contract period which are directly attributable to the uncompleted portion of the services covered by this contract. If this contract is terminated due to the fault of the Contractor under paragraph 5, Termination for Cause shall apply. 6. FEDERAL FUNDING This contract is subject to and contingent upon the continuing availability of Federal funds for the purposes hereof. [The parties hereto expressly recognize that the contractor is to be paid, reimbursed, or otherwise compensated with funds provided to the State [by the United States Department of Labor under the Comprehensive Employment and Training Act of 1973, as amended]for the purpose of contracting for the services provided for herein, and therefore, the contractor expressly understands and agrees that all its rights, demands, and claims to compensation arising under its contract are contingent upon receipt of such funds by the State. In the event that such funds or any part thereof are not receive by the State, the State may immediately terminate this contract without liability, including liability for termination costs.] 7. MATCHING FUND REQUIREMENTS The contractor shall provide "matching funds,' as that term is defined in Attachment A in the amount listed in item 3 page 1. 8. LEGAL AUTHORITY—MATCHING FUNDS The governing body (City Council; Board of County Commissioners; Corporation Board of Directors; etc.)shall execute and provide to the State a resolution, or other document as appropriate, which: obligates the full amount of the Local Share of the funds require by this contract; and authorizes a specific individual to execute the contact and bind the contractor/grantee to its terms. 9. ADVANCED FUNDS: If this contract involves an advance of funds and such funds are not used for the purposes herein described by the deadlines provided, all such funds shall be immediately returned to the State following expiration of such applicable deadlines. Further, if this contract is terminated,with or without cause, any unused funds shall, subject to the applicable provisions of either paragraph 5 or paragraph 6, be immediately returned to the State. 10. MAINTENANCE OF RECORDS: The Contractor shall maintain a complete file of all records, documents, communications, and other written materials which pertain to the operation of programs or the delivery of services under this Contract, and shall maintain such records for a period of three (3)years after the date of termination of the Contract or final payment hereunder, whichever is later, or for such further period as may be necessary to resolve any matters which may be pending. All such records, documents, communications, and other materials shall be the property of the State, and shall be maintained by the Contractor in a central location and the contractor shall be custodian on behalf of the State. 11. AUDIT INSPECTION OF RECORDS AND MONITORING: The Contractor shall permit the State, the Federal Government, or any other duly authorized agent of a governmental agency to audit or inspect Contractor's records during the term of this Contract and for a period of three (3) years following termination of this Contract or final payment hereunder, whichever is later, to assure compliance with the terms hereof, or to evaluate the Contractor's performance hereunder. The Contractor shall also permit these same described entities to monitor all activities conducted by the Contractor pursuant to the terms of this Contract. As the monitoring agency may in its sole discretion deem necessary or appropriate, such monitoring may consist of internal evaluation Page 4 of 8 procedures, examination of program data, special analyses, on-site check, or any other reasonable procedure. 12. LIMITATION OF PARTICULAR FUNDS: The parties hereto expressly recognize that the Contractor is to be paid, reimbursed, or otherwise compensated with funds provided to the state for the purpose of contracting for the services provided for herein, and therefore, the Contractor expressly understands and agrees that all its rights, demands, and claims to compensation arising under this contract, are contingent upon receipt of such funds by the State. In the event that such funds or any part thereof are not received by the State, the State may immediately terminate this contract without liability for funding all or part of the award contemplated herein. 13. REMEDIES: In addition to any other remedies provided in this Contract,the Executive Director of the State or their designee may exercise the following remedial actions should they find the Contractor substantially failed to satisfy or perform the duties and obligation in this Contract. Substantial failure to satisfy the duties and obligations shall be defined to mean insufficient, incorrect, improper activities or inaction by Contractor. These remedial actions are as follows: a. suspend Contractor's performance pending necessary corrective action as specified by the State; and/or b. withhold payment to Contractor until the necessary services or corrections in performance are satisfactorily completed; and/or C. request the removal from work on the contract of employees or agents of Contractor whom the Executive Director designee justifies as being incompetent, careless, insubordinate, unsuitable, or otherwise unacceptable, or whose continued employment on the contract they deem to be contrary to the public interest or not in the best interest of the State; and/or d. deny payment for those services or obligation which have not been performed and which due to circumstances caused by Contractor cannot be performed or if performed would be of no value to the State. Denial of the amount of payment must be reasonably related to the amount of work or performances lost to the State. The above remedies are cumulative and the State, in its sole discretion, may exercise any or all of them individually or simultaneously. 14. LITIGATION: Unless otherwise provided: The Contractor shall promptly notify the State in the event that the Contractor learns of any actual litigation in which it is a party defendant. The Contractor, within five (5)days after being served with a summons, complaint, or other pleading in a case which involves services provided under this contract and which has been filed in any Federal or State court or administrative agency, shall deliver copies of such document to the State's Executive Director. 15. LEGAL AUTHORITY: The Contractor assures and guarantees that it possesses the legal authority to enter into the contract. The person or persons signing and executing this contract on behalf of the Contractor do hereby warrant and guarantee that they have full authorization to execute this contract. Page 5 of 8 16.ASSIGNMENT: The Contractor may not assign its rights or duties under this contract without the prior written consent of the State. 17. FEDERAL AUDIT PROVISIONS: The Office of Management and Budgets (OMB) Circular No. A-133 Audits of States, Local Governments, and Non-Profit Organizations defines audit requirements under the Single Audit Act of 1996 (Public Law 104-156). All state and local governments and non-profit organizations expending $500,000 or more from all sources (direct or from pass-through entities)are required to comply with the provisions or Circular No. A-133. The Circular also requires pass-through entities to monitor the activities of subrecipients and ensure that subrecipients meet the audit requirements. To identify its pass-through responsibilities, the State of Colorado requires all subrecipients to notify the State when expected or actual expenditures of federal assistance from all sources equal or exceed $500,000. 18. SURVIVAL OF CERTAIN CONTRACT TERMS: Notwithstanding anything herein to the contrary, the parties understand and agree that all terms and conditions of this contract and the exhibits and attachments hereto which may require continued performance&.compliance beyond the termination date of the contract shall survive such termination date and shall be enforceable by the State as provided herein in the event of such failure to perform or comply by the Contractor. Page 6 of 8 SPECIAL PROVISIONS (For Use Only with Inter-Governmental Contracts) 1. CONTROLLER'S APPROVAL. CRS 24-30-202(1) This contract shall not be deemed valid until it has been approved by the Controller of the State of Colorado or such assistant as he may designate. 2. FUND AVAILABILITY. CRS 24-30-202(5.5) Financial obligations of the State of Colorado payable after the current fiscal year are contingent upon funds for that purpose being appropriated,budgeted,and otberwise made available. 3. INDEMNIFICATION. To the extent authorized by law,the contractor shall indemnity,save,and hold harmless the State against any and all claims, damages,liability and court awards including costs,expenses,and attorney fees Incurred as a result of any act or omission by the Contractor,or its employees,agents,subcontractors,or assignees pursuant to the terms of this contract. No term or condition of this contract shall be construed or interpreted as a waiver,express or implied,of any of the immunities, rights, benefits, protection,or other provisions for the parties,of the Colorado Governmental Immunity Act,CRS 24-10-101 at seq.or the Federal Tort Claims Act,2B U.S.C.2671 at seq.as applicable,as now or hereafter amended. 4. INDEPENDENT CONTRACTOR. 4 CCR 801-2 THE CONTRACTOR SHALL PERFORM ITS DUTIES HEREUNDER AS AN INDEPENDENT CONTRACTOR AND NOT AS AN EMPLOYEE, NEITHER THE CONTRACTOR NOR ANY AGENT OR EMPLOYEE OF THE CONTRACTOR SHALL BE OR SHALL BE DEEMED TO BE AN AGENT OR EMPLOYEE OF THE STATE, CONTRACTOR SHALL PAY WHEN DUE ALL REQUIRED EMPLOYMENT TAXES AND INCOME TAX AND LOCAL HEAD TAX ON ANY MONIES PAID BY THE STATE PURSUANT TO THIS CONTRACT. CONTRACTOR ACKNOWLEDGES THAT THE CONTRACTOR AND ITS EMPLOYEES ARE NOT ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS UNLESS THE CONTRACTOR OR THIRD PARTY PROVIDES SUCH COVERAGE AND THAT THE STATE DOES NOT PAY FOR OR OTHERWISE PROVIDE SUCH COVERAGE. CONTRACTOR SHALL HAVE NO AUTHORIZATION,EXPRESS OR IMPLIED,TO BIND THE STATE TO ANY AGREEMENTS, LIABILITY, OR UNDERSTANDING EXCEPT AS EXPRESSLY SET FORTH HEREIN. CONTRACTOR SHALL PROVIDE AND KEEP IN FORCE WORKERS COMPENSATION (AND PROVIDE PROOF OF SUCH INSURANCE WHEN REQUESTED BY THE STATE) AND UNEMPLOYMENT COMPENSATION INSURANCE IN THE AMOUNTS REQUIRED BY LAW,AND SHALL BE SOLELY RESPONSIBLE FOR THE ACTS OF THE CONTRACTOR,ITS EMPLOYEES AND AGENTS, 5. NON-DISCRIMINATION. The Contractor agrees to comply with the letter and the spirit of all applicable state and federal laws respecting discrimination and unfair employment practices. 6. CHOICE OF LAW The laws of the State of Colorado and rules and regulations issued pursuant thereto shall be applied in the interpretation, execution, and enforcement of this contract. Any provision of this contract, whether or not incorporated herein by reference, which provides for arbitration by any extra-judicial body or person or which is otherwise in conflict with said laws, rules, and regulations shall be considered null and void. Nothing contained in any provision incorporated herein by reference which purports to negate this or any other special provision in whole or in part shall be valid or enforceable or available in any action at law whether by way of complaint,defense,or otherwise. Any provision rendered null and void by the operation of this provision will not invalidate the remainder of this contract to the extent that the contract is capable of execution. At all times during the performance of this contract,the Contractor shall strictly adhere to all applicable federal and state laws, rules,and regulations that have been or may hereafter be established. 7. SOFTWARE PIRACY PROHIBITION Governor's Executive Order D 002 00 No State or other public funds payable under this Contract shall be used for the acquisition, operation, or maintenance of computer software in violation of United States copyright laws or applicable licensing restrictions. The Contractor hereby certifies that,for the term of this Contract and any extensions,the Contractor has in place appropriate systems and controls to prevent such improper use of public funds. If the State determines that the Contractor is in violation of this paragraph,the State may exercise any remedy available at law or equity or under this Contract,including,without limitation,immediate termination of the Contract and any remedy consistent with United States copyright laws or applicable licensing restrictions. �. EMPLOYEE FINANCIAL INTEREST. CRS 24-18-201 &CRS 24-50-507 The signatories aver that to their knowledge, no employee of the State of Colorado has any personal or beneficial interest whatsoever in the service or property described herein. Page 7 of 8 THE PARTIES HERETO HAVE EXECUTED THIS CONTRACT CONTRACTOR: STATE OF COLORADO: BILL OWENS GOVERNOR By Gi�u �t Pori l,U lrts By Legal Namb of Contracting�Entity Elaine Mariner, Executive Director $4 ` LO oo Q 5 z 1/ Department of Higher Education/ Social Security Number or FEIN Colorado Council on the Arts LEGAL REVIEW: Signature of Authorized Officer Attorney General, Ken Salazar p _ BY PrintafeL&Titlbf (�I��AJ1UAPr Print Name &Title o Authorized O Icer � CORPORATIONS: Approv s F rm (A corporate attestation is required.) t\`�►y� 1 J, A(�ssis nt it ttorn y Attest (Seal)By y4� • \lFe�:_CG JC 4GawwwoEeerel37*M wva /City/Cow*Clerk) (Place corporate seal here,if available) ALL CONTRACTS MUST BE APPROVED BY THE STATE CONTROLLER CRS 24-30-202 requires that the State Controller approve all state contracts. This contract is not valid until the State Controller, or such assistant as he may delegate, has signed it. The contractor is not authorized to begin performance until the contract is signed and dated below. If performance begins prior to the date below, the State of Colorado may not be obligated to pay for the goods and/or services provided. STATE CONTROLLER: By Date Page 8of8