HomeMy WebLinkAboutRES 00-189 RESOLUTION NO.
BE IT RESOLVED BY THE CITY COUNCIL
OF THE CITY OF BEAUMONT:
THAT the City Manager is hereby authorized to execute a Development and Lease
Agreement with the Beaumont Community Players for the construction and lease of
a new community theatre located on City-owned property. The agreement is
substantially in the form attached hereto as Exhibit "A."
PASSED BY THE CITY COUNCIL of the City of Beaumont this the 1`../o' day
of C/ r� c� , 2000.
a
- Mayor -
STATE OF TEXAS §
COUNTY OF JEFFERSON §
DEVELOPMENT AND LEASE AGREEMENT
This Development and Lease Agreement is entered into this the day of
, 2000, by and between the City of Beaumont, a municipal
corporation of the State of Texas (hereinafter referred to as "City"), and Beaumont
Community Players, a non-profit corporation of the State of Texas (hereinafter referred to
as "BCP").
WITNESSETH :
WHEREAS, BCP desires to construct a community theater building on land owned
by City at an approximate cost of $1.5 million and give said theater building to City at the
completion of construction and thereafter lease the theater building and land (herein the
"Facility") as a community theater for the benefit of the citizens of Beaumont and Southeast
Texas; and
WHEREAS, City has Property available, said Property being described in Exhibit
"A" attached hereto and made a part hereof for all purposes (herein the "Property"), and
wishes to allow BCP the use of the Property for purposes of construction of a theater
structure and then lease the structure to BCP.
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EXHIBIT "A"
NOW, THEREFORE, IN CONSIDERATION of the mutual promises herein
contained and with successful project implementation being the common objective, City
and BCP agree as follows:
1.
CITY COMMITMENTS
1.1. City will provide to BCP, free and clear of all physical encumbrances, the
Property. The Property will be made available for a period of two (2) years after the date
of execution of this Agreement, after which time the right of BCP to use the Property will
terminate unless BCP has either completed or substantially completed the construction of
a theater building on the Property.
1.2. After completion of the theater structure and approval by the City, the City
will accept the gift of the theater structure and lease the facilities to BCP for a twenty (20)
year period.
2.
BCP COMMITMENTS
2.1. BCP will be solely responsible for providing funding of the entire project,
including, but not limited to, construction costs, architectural fees, engineering fees and
geotechnical fees necessary for the construction of the theater building.
2.2. BCP will retain an architect licensed in the State of Texas to prepare
construction drawings and specifications and provide contract management of the entire
project. The plans and specifications for the project shall be subject to the approval of the
City Manager of City or his designee.
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2.3. BCP will be responsible for the construction of the theater structure in
accordance with all laws and ordinances applicable to such construction.
2.4. BCP will execute all documents necessary to make a gift of the theater
structure to City after completion of construction and acceptance by City.
3.
LEASE AGREEMENT
3.1. For and in consideration of the gift of the theater building to the City and the
performance by BCP of covenants and agreements contained in this instrument, City does
hereby lease and let unto BCP and BCP does hereby take and lease from City the
Facility.
3.2. The Lease shall commence after the gift to City by BCP and the acceptance
by City of the theater structure and shall continue for twenty (20) years thereafter, said
Lease to terminate no later than the 31 st day of August, 2022, if not sooner terminated as
hereinafter provided.
3.3. As rental hereunder, BCP agrees to pay to City the sum of Two Hundred
Dollars ($200), said sum being payable at the rate of Ten Dollars ($10) per year during the
term of this lease.
3.4. BCP shall use and occupy the Facility as a community theater and for related
purposes, including, but not limited to, educational, civic, fundraising and entertainment
purposes. BCP agrees to operate the Facility as a community theater during the full term
of this Lease.
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3.5. BCP will comply with any and all laws, ordinances, rules, orders and
regulations of any governmental authority which are applicable to BCP's operations in and
on the Facility.
3.6. Nothing contained herein shall prevent BCP from charging an admission
price for persons to attend performances at the theater structure or to use and charge for
the use of the theater structure for related events. City shall be allowed to use the facilities
when available for no charge.
3.7. During the term of this Lease, BCP shall not, without first obtaining the
written consent of the City Manager of City or his designee, make any alterations,
additions, or improvements in, to or about the Facility, provided, however, that such
consent shall not be unreasonably withheld. Any work done by BCP in, to or about the
Facility shall be done in a good and workman-like manner and without impairing the
structural integrity of the building and in compliance with all applicable codes, ordinances
and laws and no liens shall attach to the Facility. Similarly, during the term of this Lease,
City will not, without first obtaining the written consent of BCP, make any alterations,
additions or improvements in, to or about the Facility; provided, however, that such
consent shall not be unreasonably withheld.
3.8. BCP shall not do or suffer anything to be done in or about the Facility which
will increase the rate for fire and extended coverage insurance on the Facility.
3.9. If the Facility is damaged by fire or any other casualty, all insurance proceeds
for such casualties shall be paid to either BCP or City, as their interest may appear and
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as their loss may be allocated. Either City or BCP may elect to terminate this Lease under
the terms hereof should a fire or other casualty loss result in damage to the Facility in
excess of fifty percent (50%) of the replacement cost of such Facility immediately prior to
such casualty. Should either party elect such termination, then the other party shall have
the option for sixty (60) days after the date of such election and notice of such election to
terminate the Lease or to elect to rebuild the Facility. Such election to rebuild by either
party shall be by written notice to the other party. Should such party elect to rebuild as
provided herein, then this Lease shall continue in full force and effect from and after the
completion of the rebuilding and reconstruction of the Facility. Any rebuilding or
reconstruction of the Facility shall restore such premises to substantially the same
condition as existed prior to such casualty loss. Should either party elect to rebuild, such
insurance proceeds as shall have been paid to both parties shall be deposited in a state
or federal bank with offices located in the City of Beaumont, Jefferson County, Texas.
Such insurance proceeds shall be held in escrow by such bank as a trust fund for the
purpose of paying for the cost of rebuilding and repairing the Facility and the cost of
making temporary repairs or doing such work as may be necessary to protect the Facility
against further injury. Such insurance proceeds shall be disbursed in accordance with the
provisions of paragraph 3.10 hereof. The bank shall be entitled a reasonable
compensation payable out of such fund. If insurance proceeds held by the bank as
provided in this paragraph shall exceed such costs, such excess shall belong to and be
paid over to the parties who deposited said amounts in proportion to their interest in the
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account. If rebuilding of the Facility is undertaken by BCP under this Article, the
construction shall be made subject to the approval of City.
3.10. Any monies paid out of the trust fund established under the terms of
paragraph 3.9 hereof shall be paid as the work progresses, upon the request of the party
performing the reconstruction, and against the certificates of the architect or engineer in
charge of such reconstruction showing that the amount stated in the particular certificate
has been paid or is due in respect to such work together with the names and addresses
of the persons, if any, to whom such amounts are due. Payments hereunder shall be
subject to normal retainage applicable to construction contracts entered into by home-rule
cities in accordance with the laws of the State of Texas.
3.11. Upon any termination of this Lease under any provisions of this Lease other
than on a default on the part of BCP, BCP shall be entitled to remove all of the furniture,
furnishings and other property of BCP located on the Facility, specifically including, but not
limited to, sound, lighting and special effects property associated with theatrical
productions.
3.12. Subject to all limits, deductibles and limitations of its policies chosen by City,
City shall procure and maintain Texas multi-peril form hazard insurance coverage on the
Facility in not less than the full insurable value thereof. Such insurance shall be obtained
in the name of City.
3.13. BCP shall procure and maintain all insurance which it deems necessary for
its protection against loss of or damage to any property in or on the Facility.
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3.14. If either party defaults on the performance of any covenants or conditions
hereof, such party may give notice of such default to the other and, if such other party
does not cure such default within thirty (30) days after such notice, then the non-defaulting
party may terminate this Lease by written notice to so terminate and, if terminated by City,
City may re-enter and take possession of the Facility or remove all persons and property
therefrom without being deemed guilty of any manner of trespass.
3.15. The failure of either party to insist on strict performance of any covenant or
condition hereof or to exercise any option or election herein contained shall not be
construed as a waiver of such covenant, condition, option or election. In any other
instance, this Lease cannot be changed, amended or terminated orally.
3.16. During the term of this Lease, BCP shall be responsible for general building
and grounds maintenance of the Facility and the security system. Maintenance, as used
herein, shall mean janitorial service, replacement of luminaries, minor plumbing, minor
HVAC maintenance, such as annual checks and replacement of filters, interior painting,
beautification and maintenance of landscaping other than grass cutting and general yard
maintenance. City will be responsible for walls, roof, exterior windows, HVAC system
operation, major plumbing repairs, and the structural integrity of the Facility. City will be
responsible for grass cutting and trimming in accordance with the City's regular schedule
and quarterly pest control to include termite treatment. City will be responsible for all
utilities including garbage collection costs except telephone and cable television or other
cable communication devices. Maintenance and repair or replacement of all interior
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lighting and sound systems associated with theatrical performances will be the
responsibility of BCP,
3.17. BCP agrees to schedule annually a series of not less than three (3) theatrical
performances in the Facility utilizing area talent.
3.18. BCP will have control of the use of the Facility throughout the term of this
lease and, thus, may allow the Facility to be used by others when available on terms and
conditions to be decided by BCP. However, BCP may not assign its obligations under this
lease without written consent of City Manager of City.
3.19. BCP shall provide broad form liability insurance (including contractual
coverage) naming the City as an additional insured for all uses of the Facility with
aggregate limits of not less than $1 million.
3.20. The provisions of this Lease shall apply to, bind and inure to the benefit of
City and BCP and their respective successors and assigns; provided, however, that the
inclusion of assigns in this sentence shall not be construed to permit an assignment
contrary to any other provision or covenant of this lease.
3.21. This lease and any and all amendments, modifications or other writings
pertaining thereto shall be construed under and pursuant to the laws of the State of Texas.
3.22. In the event that any provision hereof or the application thereof to any person
or circumstances shall be judged invalid or unenforceable, the remainder of this Lease or
the application of such provision to persons or circumstances other than those to which
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it is held invalid or unenforceable shall not affected thereby and each term and provision
of this Lease shall be valid and enforced to the fullest extent permitted by law.
3.23. In construing this Lease, masculine or feminine pronouns shall be substituted
for those neuter in form and vice versa and plural terms shall be substituted for singular
and singular for plural in any place in which the context so requires.
3.24. Any notice required hereunder shall be given in writing and shall be deemed
to have been duly given only if delivered personally or sent by registered or certified
United States mail, return receipt requested, in a postpaid envelope properly addressed
to the party entitled to receive such notice. Notices shall be sent to the following
addresses:
City: BCP:
City Manager Beaumont Community Players
City of Beaumont P. O. Box 21743
P. O. Box 3827 Beaumont, Texas 77720-1743
Beaumont, Texas 77704
3.25 BCP understands that BCP shall be solely responsible for providing adequate
parking for the facility during the term of this lease
3.26 City shall be provided keys to the facility and may enter the facility at any
time.
3.27 This Agreement and Lease may only be amended by the parties in writing
executed by BCP and City Manager of City.
3.28 BCP agrees to indemnify and hold harmless and defend City its officers,
agents and employees from and against all liability for claims, liens, suits, demands, and/or
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actions for damages, injuries to person (including death), property damage, (including loss
of use), and expenses including court costs and attorney's fees, and reasonable costs
arising out of or resulting from BCP's activities in the facility, expressly including
negligence of City its officers, agents, employees, or invites.
IN WITNESS WHEREOF, BCP and City have executed or cause to be executed by
the duly authorized officers or agents this Lease, all as of the day and year first above-
written.
CITY OF BEAUMONT BEAUMONT COMMUNITY PLAYERS
By: By:
Stephen J. Bonczek, City Manager President
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