Denver District 8

Another large controversy in the area is the Open Air Cinema, now proposed for City Park the summer of 2011. It is quite unfortunate that they were not able to work it out to open this year at Civic Center Park with the upcoming Biennial of the Americas. Open Air had done their outreach and due diligence in those areas around the Golden Triangle in anticipation of opening and felt they would get to City Park neighborhoods after people were able to see what it was about and if it worked in Denver with its citizenry or not. The process of getting it passed through Council took much longer than Open Air had planned and with the economy as it is, they were not able to in the limited amount of time, lock in the sponsorships they needed to feel comfortable with going forward this summer.

Their desire had always been to be in City Park. It is their business model to set up for an iconic view and we have the best here in City Park. The Mayor had suggested that they set up in Civic Center the first year because of the Biennial and the great tie in it could have had, as well as bringing more attention to all the activities that would be going on. It was a great idea and the activation of Civic Center Park in the evening was an additional advantage that everyone got excited about. Many of us hoped that Open Air would still be open to having the first year at Civic Center Park, even without the Biennial. After looking at it all again, and their head guy came out from Switzerland to look at the sites, they decided what we all know - that the best views, and so what fits their model the best, is to be in City Park. We do have a contract with them that states the 2011 and 2012 years are set to be in City Park.

Here is the way it sits currently. Open Air wants to be able to do their event in City Park and is drawing up plans and getting their presentation ready to start to take to the neighborhoods to see if they can get buy in and a positive reception from the neighborhoods surrounding the Park. They do need to get a liquor license to make their event work and there will have to be positive feedback from the area to make that happen. They have till October to get out there, pitch it to the neighborhoods and then determine whether this will work for them or not.

I do believe that it could be a great event. I'm hoping that their plans will show that if they work with the topography of the park that the grandstand will not be as obtrusive as it was going to be in Civic Center Park. I do wish that it were maybe a two-week event, which might make it more tolerable. With set up and take down time it will be in the Park for over a month and a half of prime time summer use. I'm afraid they will need the full 30 days to have any hope of recovering costs. This is a tough one. City Park is a regional park and not just a neighborhood park, but the surrounding neighborhoods are impacted. This will be the only site in the country and it could be a real boom to our tourism and the money it brings into the City. Although our views might be compromised, 1400 people every night (and we could be in that number) will get to enjoy a spectacular view and evening. They are working out parking with the Denver Museum of Nature and Science and the Denver Zoo.

If this happens, I think the parking issues will be handled. The parking at the Museum is closer and more convenient than anything in the neighborhoods. It doesn't seem that noise will be much of an issue, with their state of the art sound system focused inward. The presence of the grandstand during the days for that length of time still sticks with me as the real issue, but that is just me. I'm going to put a survey on my website that will try to get feedback and not just ask if you are opposed or for the Cinema, but try to get at the reasons. I know many are opposed to events in our parks that charge admission; some just don't think this is an appropriate event at City Park. Others think it's a great idea, but at Civic Center Park instead - where they need the additional activation.

Take the ‘Open Air Survey’.

There have been questions about claims that the City is in violation of the charter by leasing to Open Air Cinema.

Below are the letters and explanations from our city attorneys as to the legality, according to the City Charter, of leasing a portion of City Park to Open Air Cinema.

In a nutshell, for those of you who don't want to read through the legalese below is a summary.

Without the approval of a majority of those registered electors voting in an election held by the City and County of Denver, no park or portion of any park belonging to the City as of December 31, 1955, shall be sold or leased at any time, and no land acquired by the City after December 31, 1955, that is designated a park by ordinance shall be sold or leased at any time, provided, however, that property in parks may be leased for park purposes to concessionaires, to charitable or nonprofit organizations, or to governmental jurisdictions. All such leases shall require the approval of Council as provided for in Article III of this Charter. No land acquired by the City after December 31, 1955, shall be deemed a park unless specifically designated a park by ordinance.

The underlined part was added in 1996 and completely eliminated the original charter prohibition on parks leasing, allowed leasing of park lands with voter approval in some situations, and allowed leasing of park lands with City Council approval in other situations. The charter empowers the City Council to approve or disapprove any “leasing” of city-owed real property, park land or otherwise, in excess of 30 days.

Open Air Cinema is a concessionaire. The word “concession” is not given any special definition in the charter, nor is it a term of art defined elsewhere in Colorado law. Black’s Law Dictionary (7th Ed., 1999), defines the word “concession” to simply mean, “A government grant for specific privileges.” Executive Order 8 recommends the use of a competitive selection process before awarding a parks concession, and the Department usually does so; however, there is no requirement in the Charter or elsewhere in law for the Department to issue an RFP before awarding a concession or other permission to engage in the commercial sale of goods and services in parks. Since Open Air came to the City and asked if they could do their cinema here, and they are the only ones in the world who do this type of entertainment, it was not necessary for the City to do an RFP to allow Open Air the concession.

The charter clearly says "that property in parks may be leased for park purposes to concessionaires, to charitable or nonprofit organizations". Therefore, as the charter states the City can lease to a concessionaire and/or to a charitable or nonprofit organization. A concessionaire does not have to be a non-profit to be able to obtain a lease or license.

As to the opposition to "admission-based events" in Denver Parks, it is erroneously claimed that allowing these types of events violate Denver's home rule charter. The Charter does not address restricting areas of Parks or charging admission to citizens to access areas of our parks in any way. The charter is a limiting document; it restricts what the governing body can do and under what conditions. It does not describe all the things that can happen. Just because something is not mentioned in the Charter does not mean that it is against the Charter. Again, admission based events are a philosophical discussion as to how we want to see our Parks used, not a legal argument.

Through the years, the city has granted permission to private parties for the sale of goods and services and concessions in parks in a wide variety of ways, ranging from: club house and restaurant concessions in city golf courses; commercial booths at festivals like the People's Fair; ticketed admission to facilities like the Botanic Gardens and the Zoo; ticketed concerts at Red Rocks; and bicycle and paddleboat concessions in various city parks.

All of these examples are perfectly legal under Denver's home rule charter. Likewise, the manager of parks can lawfully authorize concerts and other entertainment events for which an admission may be charged, just as other vendors and concessionaires have been allowed to charge for goods and services in Denver parks for many years.

To me the findings are clear that Open Air Cinema is a concessionaire, does not have to be a non-profit and that it is legal for the City to engage in a lease even without an RFP process. The attachments are not that difficult and worth reading if you have any further questions. If after that questions remain, please let me know and I'll get an answer for you.

Licenses and leases for the sale of goods and services in Denver parks
(Summary prepared by David W. Broadwell, Asst. City Attorney, January 25, 2010)

A. Licenses.
Two separate provisions of the Denver Charter recognize the authority of the Department of Parks and Recreation to grant licenses for the sale of goods and services or concessions in parks. These provisions were added to the charter in 1955 when the Department of Parks and Recreation was originally created. A license entitles someone to use park property for a specific purpose, subject to the management and control retained by the City as the property owner, and conveys no interest in the land. The City Attorney’s office uses the terms “license,” “permit,” and “privilege” interchangeably. Some sales of goods and services in city parks are allowed via a “permit” and some are allowed via a “concession,” but the legal nature of these instruments is essentially the same—the legal right to occupy the park is in the nature of a “license.”

While the Denver Charter expressly allows the granting of “licenses” in parks, it expressly prohibits the granting of “franchises” in parks. The Colorado Supreme Court has provided clear guidance on the difference between a “license” and a “franchise,” and the kinds of permits that are typically granted by the city for the sale of goods, services and concessions in parks are not and cannot be considered “franchises.”

B. Leases.
In contrast to a license, a lease conveys an interest in land and transfers possession of the land in a more formal and binding way. Denver’s original home rule charter (1904) categorically prohibited the leasing of park property to anybody or for any reason. Charter authority for leasing of parks evolved in the following way:

· Prior to 1983: The charter stated: “No portion of any park now belonging to or hereafter acquired by the City and County shall be . . . leased at any time . . . .”

· 1983 to 1996: In 1983 the voters approved a charter amendment stating: “No portion of any designated park or recreational facility may be leased, except for concession leases and leases to charitable or not-for-profit organizations or other governmental jurisdictions. All such leases and any subleases shall require the approval of Council . . . .”

· 1996 to present: The charter was amended again by the voters in 1996 to state in part: “Without the approval of a majority of those registered electors voting in an election held by the City and County of Denver, no park or portion of any park belonging to the City as of December 31, 1955, shall be sold or leased at any time, and no land acquired by the City after December 31, 1955, that is designated a park by ordinance shall be sold or leased at any time, provided, however, that property in parks may be leased for park purposes to concessionaires, to charitable or nonprofit organizations, or to governmental jurisdictions. All such leases shall require the approval of Council . . . .”

Thus, the 1996 amendment completely eliminated the original charter prohibition on parks leasing, allowed leasing of park lands with voter approval in some situations, and allowed leasing of park lands with City Council approval in other situations. In particular, the 1996 amendment carried forward the authority for the City Council to approve parks leases with concessionaires, just as the charter had allowed since 1983.

The charter empowers the City Council to approve or disapprove any “leasing” of city-owed real property in excess of 30 days. This provision applies equally to parks property as it does to any city-owned real property under the jurisdiction of any other city department or agency. For purpose of this charter provision, the term “lease” is defined very broadly to include any other type of legal document—i.e. any “agreements, permits, contracts, licenses, easements or other instruments”—that may grant the exclusive use of city property for more than 30 days. This is one of several charter provisions that may trigger Council approval of a parks agreement, depending on the contents of the agreement.

§ 2.4.4 Powers and duties of Department of Parks and Recreation.

The following duties and powers are hereby vested exclusively in the Department of Parks and Recreation.

(C) Licenses, privileges and concessions. In the manner and pursuant to terms and conditions fixed by the Mayor's cabinet, to grant or refuse the license or privilege of operating concessions in or of selling goods and services in all parks and recreational facilities and on the streets and sidewalks within three hundred feet of the boundary of any park or recreational facility.

No franchise, license or permit for the construction or maintenance of any railway shall ever be granted within the limits of any park or lengthwise upon any parkway nor shall any franchise for the maintenance of any other special privilege within any park be granted; provided, however, that the foregoing shall not be a limitation upon the right of the Department to grant licenses for the operation of concessions or for the sale of goods or services in or near park and recreational facilities and to designate specific areas, structures or parts of structures or to authorize the construction and maintenance of facilities or structures in which licensees or concessionaires shall operate and function.

The Council shall have the additional powers to approve or disapprove, by ordinance or resolution, leases or other instruments selling or granting the use of City-owned property to other parties, and certain contracts, under the following conditions:

(A) Definitions. For the purposes of this section the following definitions shall apply:

(ii) The term "lease" shall include all agreements, permits, contracts, licenses, easements or other instruments whereby the City grants the exclusive use of all or a portion of real property now or hereafter owned by the City for an indefinite period of time or for a specific period in excess of thirty (30) days.

(B) Leasing of city-owned real property. The Mayor of the City and County of Denver shall be and is hereby authorized to initiate actions to effect the lease of real property owned by the city, when such lease will serve a public purpose, for such considerations and upon such terms as in the Mayor's judgment shall appear proper. All leases of real property owned by the city, or amendments to existing leases, before their execution by city officials, shall be authorized by the Denver City Council acting by ordinance or resolution. The ordinance or resolution shall state the public purpose to be served by the lease or amendment.

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