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HomeMy WebLinkAboutPACKET AUGUST 12 2003 M ° EL City of Beaumont REGULAR MEETING OF THE CITY COUNCIL COUNCIL CHAMBERS AUGUST 12,2003 1:30 P.M. AGENDA I� CALL TO ORDER i * Invocation Pledge Roll Call li * Presentations and Recognition * Public Comment: Persons may speak on scheduled agenda items 1-6/Consent Agenda * Consent Agenda GENERAL BUSINESS 1. Receive the FY 2004 Proposed Budget and schedule a public hearing on the { FY2004 Proposed Budget 2. Consider scheduling a public hearing on the FY 2004 Capital Improvement Program(CIP) 1 3. Consider establishing the proposed 2003 tax rate, take a record vote and schedule a public hearing related to the proposed 2003 tax rate 4. Consider approving an ordinance establishing the terms of agreement for the Joint Election between the City of Beaumont and Jefferson County, Texas to be held on September 13, 2003 5. Consider authorizing the City Manager to terminate the Operation and Maintenance Agreement for the Henry Homberg Golf Course 6. Consider authorizing the City Manager to execute an extension of the Beaumont Community Players" Development and Lease Agreement 1 COMMENTS * Councilmembers/City Manager comment on various matters * Public Comment (Persons are limited to 3 minutes) EXECUTIVE SESSION * Consider matters related to contemplated or pending litigation in accordance with Section 551.071 of the Government Code; Claim of Shyla Johnson Persons with disabilities who plan to attend this meeting and who may need auxiliary aids or services are requested to contact Pat Buehrle at 880-3725 a day prior to the meeting. 1 August 12,2003 Receive the FY 2004 Proposed Budget and schedule a public hearing on the FY2004 Proposed Budget 10 Cit y of Beaumont Council Agenda Item K g TO: City Council FROM: Kyle Hayes, City Manager PREPARED BY: Andrea S. Deaton, Budget Officer MEETING DATE: August 12, 2003 AGENDA MEMO DATE: August 6, 2003 REQUESTED ACTION: Receive the FY 2004 Proposed Budget and schedule a public hearing. RECOMMENDATION It is recommended that Council schedule a public hearing on September 9, 2003 to review the FY 2004 Proposed Budget. BACKGROUND Article VI, Section 2 of the City Charter requires that the proposed budget be submitted to the Council at least 45 days prior to the beginning of the new fiscal year. In addition, Section 4 requires Council to schedule a public hearing on the FY 2004 Proposed Budget and authorize the City Clerk to publish the notice of the public hearing. BUDGETARY IMPACT The detail budget information for all funds will be submitted to Council at the August 12, 2003 meeting. PREVIOUS ACTION None. SUBSEQUENT ACTION A public hearing will be held on the date Council schedules. If the appropriations increase, another public hearing must be held. The target date for adoption of the Budget is September 16, 2003. However, it must be adopted no later than September 27, 2003. RECOMMENDED BY: City Manager RECOMMENDED MOTION: Approve/Deny scheduling a hearing on the FY 2004 proposed Budget for September 9, 2003. 2 August 12,2003 Consider scheduling a public hearing on the FY 2004 Capital Improvement Program(CIP) City of Beaumont Council Agenda Item TO: City Council FROM: Kyle Hayes, City Manager PREPARED BY: Andrea S. Deaton, Budget Officer MEETING DATE: August 12, 2003 AGENDA MEMO DATE: August 6, 2003 REQUESTED ACTION: Schedule a public hearing on the FY 2004 Capital Improvement Program (CIP). RECOMMENDATION It is recommended that Council schedule a public hearing on September 9, 2003 to review the FY 2004 Capital Improvement Program. BACKGROUND The FY 2004 Capital Improvement Program was originally submitted to Council on May 13, 2003. Article VI, Section 20 of the City Charter requires Council to schedule a public hearing on the FY 2004 proposed CIP and authorize the City Clerk to publish the notice of the public hearing. BUDGETARY IMPACT The financial impact of the FY 2004 Capital Improvement Program will be reviewed with Council at a workshop on August 26, 2003. PREVIOUS ACTION In accordance with Article VI, Section 19 of the City Charter, the FY 2004 proposed Capital Improvement Program was submitted to Council May 13, 2003. SUBSEQUENT ACTION A public hearing will be held on the date Council schedules. The target date for adoption of the CIP is September 16, 2003. However, it must be adopted no later than September 27, 2003. RECOMMENDED BY: City Manager RECOMMENDED MOTION: Approve/Deny scheduling a public hearing on the FY 2004 Capital Improvement Program for September 9, 2003. 3 August 12, 2003 Consider establishing the proposed 2003 tax rate,take a record vote and schedule a public hearing related to the proposed 2003 tax rate V~Q.. City of Beaumont •�• Council Agenda Item I g TO: City Council FROM: Kyle Hayes, City Manager PREPARED BY: Andrea S. Deaton, Budget Officer MEETING DATE: August 12, 2003 AGENDA MEMO DATE: August 7, 2003 REQUESTED ACTION: Establish the proposed 2003 tax rate,take a record vote and schedule a public hearing. RECOMMENDATION It is recommended that Council establish a tax rate required to support the City Manager's proposed budget. In accordance with Chapter 26 of the Property Tax Code, if the proposed rate exceeds the lower of the rollback rate ($0.6894) or 103 percent of effective tax rate ($0.6593), the City Council must take a record vote to place the proposal to adopt the rate on the agenda of a future meeting. The current $0.67 tax rate exceeds 103 percent of the effective tax rate of $0.6593 by $0.0107. If the motion passes, a public hearing must be scheduled. It is recommended that the public hearing be held on September 9, 2003. BACKGROUND Chapter 26 of the Property Tax Code requires taxing units to comply with truth-in-taxation laws in adopting their tax rate. BUDGETARY IMPACT The detail budget information for all funds, including proposed property tax revenues, will be submitted to Council at the August 12, 2003 meeting. PREVIOUS ACTION None. SUBSEQUENT ACTION A public hearing will be held if scheduled by Council. The target date for adoption of the tax rate is September 16, 2003. However, it must be adopted no later than September 30, 2003. RECOMMENDED BY: City Manager RECOMMENDED MOTION: Establish the proposed 2003 tax rate, take a record vote and schedule a public hearing. TC= rn TOY n=T(-C D r)1 The City of Beaumont will hold a public hearing on a proposal to iii t, revenues from properties on the tax roll in the preceding year by 4.67 percent. Your individual taxes may increase at a greater or lesser rate, or even decrease, depending on the- change- in the taxable value of your property in relation to the change in taxable value of all other property and the tax rate that is adopted. The public hearing will be held on September 9, 2003 at 130 PM at City Council Chambers 801 Main Street Beaumont, Texas. FOR the proposal. AGAINST the proposal: REC01RD VOTE HERE PRESENT and not voting: ABSENT: The following table compares taxes on an average home in this taxing unit last year to taxes proposed on the average home this year. Again, your individual taxes may be higher or lower, depending an the taxable value of your property, Last Year This Year Average residence homestead value $ 71,160 $ 78,015 General exemptions available $ 0 so (amount avw1abLe on the average bomestc.4 not indudM senior citizen's or disabled person's exempdow) Average taxable value $ 71,160 $ 78,015 Tax rate (per$100) $ 0-670000 $ 0.670000 Tax S476.77 $ 522.70 Under this proms,taxes on the average homestead would increase by W.93 or 9.63 percent compared with last year's taxes. Comparing tax rates without adjusting for changes in property value.,the tax rate would increase by$0000m per$1oo of taxable value or 0.00 percent compared to last year's tax rate. These tax rate figures are not adjusted for changes in the taxable value of property. TOTAL P.01 4 August 12,2003 Consider approving an ordinance establishing the terms of agreement for the Joint Election between the City of Beaumont and Jefferson County, Texas to be held on September 13, 2003 City of Beaumont AM ,0 •�• Council Agenda Item TO: City Council FROM: Kyle Hayes, City Manager PREPARED BY: Susan Henderson, City Clerk MEETING DATE: August 12, 2003 AGENDA MEMO DATE: August 7, 2003 REQUESTED ACTION: Council consider an ordinance establishing the terms of agreement for the Joint Election between the City of Beaumont and Jefferson County, Texas to be held on September 13, 2003 RECOMMENDATION Council approve an ordinance establishing the terms of agreement for the Joint Agreement for the Joint Election between the City of Beaumont and Jefferson County, Texas to be held on September 13, 2003. BACKGROUND Council called a Special Election to present to the voters of Beaumont certain amendments to the City Charter of the City of Beaumont. This election will be held in conjunction with a Special Constitution Amendment Election called by the Texas Secretary of State. The City Clerk's office and the Jefferson County Clerk's election division will work co jointly to hold these elections. BUDGETARY IMPACT Estimated expense to conduct an election is estimated at $45,000.00. Expenses will be shared with the Jefferson County Clerk's Election Division. PREVIOUS ACTION Council called a Special Election to present to the voters of Beaumont certain amendments to the City Charter of the City of Beaumont on July 22, 2003. SUBSEQUENT ACTION The Special Election for the purpose of allowing the voters of Beaumont, Texas to choose certain amendments to the City Charter of Beaumont, Texas will be conducted on September 13, 2003 in conjunction with the Special Constitutional Amendment Election. RECOMMENDED BY: City Manager and City Clerk RECOMMENDED MOTION: Approve/Deny an ordinance establishing the terms of agreement for the Joint Election between the City of Beaumont and Jefferson County, Texas to be held on September 13, 2003. ORDINANCE NO. AN ORDINANCE ESTABLISHING THE TERMS OF AGREEMENT FOR THE JOINT ELECTION BETWEEN THE CITY OF BEAUMONT AND JEFFERSON COUNTY, TEXAS TO BE HELD ON SEPTEMBER 13, 2003. WHEREAS, the City Council adopted Ordinance No. ordering a Special Election to be held jointly with Jefferson County on September 13, 2003. NOW, THEREFORE, BE IT ORDAINED BY THE CITY OF BEAUMONT: Section 1. THAT Jefferson County will be responsible for the preparation, adoption, and publication of all required election orders, resolutions, notices, and pertinent documents required by its governing body. Section 2. THAT the terms of the agreement of said joint election shall be as follows: a. The five (5) early voting polling locations within the City of Beaumont shall be shared by the County and the City. b. Early Voting will be conducted jointly between the County and the City. c. On election day the polling locations within the City of Beaumont shall be shared with the County and the City. d. The cost of the election officials and polling locations within the City on election day will be divided equally between the City and the County. e. Transportation fees for voting units used by the City shall be borne by the County. f. The Election procedures at each location shall be handled separately for each entity. g. The cost of Central Counting Station personnel shall be divided equally. Section 3. THAT the Ordinance shall take effect immediately upon and after its passage. PASSED BY THE CITY COUNCIL of the City of Beaumont this the 12th day of August, 2003. - Mayor Evelyn M. Lord - 5 August 12,2003 Consider authorizing the City Manager to terminate the Operation and Maintenance Agreement for the Henry Homeberg Golf Course City of Beaumont Council Agenda Item TO: City Council FROM: Kyle Hayes, City Manager PREPARED BY: Kirby Richard, Central Services Director MEETING DATE: August 12, 2003 AGENDA MEMO DATE: August 7, 2003 REQUESTED ACTION: Council consider authorizing the City Manager to terminate the Operation and Maintenance Agreement for the Henry Homberg Golf Course. RECOMMENDATION Administration recommends authorizing the City Manager to terminate the Operation and Maintenance Agreement for the Henry Homberg Golf Course with Mr.Thomas A.Hebert for breach of contract. BACKGROUND In 1997, City Council authorized the transfer of an operating and maintenance agreement for the City's municipal golf course,from Mr.Ronald Pfleider to Mr. Thomas A.Hebert. Mr.Pfleider,who requested the contract's assignment, had been operating the golf course as an independent contractor since 1982. At the expiration of the agreement's term in 1999,Hebert's agreement was renewed for an additional five(S)year term. At the time the agreement was renewed, Hebert agreed to make improvements to the golf course, which was then estimated to be $600,000. The improvements included reconstruction of all the greens and tee boxes,installation of a fairway irrigation system and construction of two separate tee boxes for each hole. In order to secure financing for the improvements, a new agreement with Hebert was approved by Council in July 2000. The new agreement provided for a ten(10)year term, commencing upon the completion ofthe improvements,and the subordination offees and rentals due the City should Hebert become financially constrained. Subordination of the payments does not relieve Hebert of his Henry Homberg Municipal Golf Course Operation and Maintenance Agreement August 7, 2003 Page 2 responsibility to pay the City, but only defers the payments. Also provided was the abatement of rental payments during construction of the improvements. With the revised agreement, Hebert was able to secure financing for the improvements through Hibernia National Bank (HNB) and the U. S. Small Business Administration (SBA). The improvements were completed, accepted by the City and the term of the agreement commenced on December 19, 2001. On May 28,2003,Hebert was issued written notification that he was delinquent on his monthly rental payments to the City. At the time of the letter, Hebert had not made any required payments to the City since October 2002, nor had he requested subordination of his rental fees as required by the agreement. He was given thirty(30)days to make restitution on all delinquent payments owed. Hebert is contractually obligated to pay the City $2,500 per month plus five percent(5%) of gross receipts collected in the operation of the golf course, subject to a minimum annual payment of $60,000. His payments during FY 2002 averaged approximately $5,400 per month, however, according to the information submitted with the latest payments,this year's course play has not been as active. Hebert was also notified that his Workers' Compensation had expired, and that his Commercial General Liability Insurance coverage was due to expire at the end of the month. Both coverages are required by the agreement. His liability coverage was renewed but no verification of workers' compensation coverage for his employees has been received. On June 30,2003,Hebert remitted payments in the amount of$13,545.70 for the months of October, November and December 2002. Because Hebert was still in breach of his agreement with the City and because he would not return calls from staff members,he was contacted by the City Manager and a meeting to discuss the remaining deficiencies was scheduled. After a meeting with Hebert on July 9,2003, attended by the City Manager and the Central Services Director, a letter summarizing a payment schedule for the delinquent payments, as agreed to by Hebert,was issued. The letter stated that Hebert was to remit his payment for the month of June by July 15, 2003, its normal due date_ The outstanding payments were to be remitted in the following manner: On or before August 25,2003,the$2,500 monthly rental fee must be received for the months delinquent, January through May 2003. On or before October 10, 2003, the remaining rental due (5% of gross receipts) for the months January through May 2003 must be received. Henry Homberg Municipal Golf Course Operation and Maintenance Agreement August 7, 2003 Page 3 Also stipulated was that all future rental payments must be received by the City in accordance with the contract's provisions. He was notified that if he did not comply with the plan or any of the agreement's terms, the City would have no other choice but to terminate his agreement. The letter was sent to Hebert by Certified Mail on July 10, 2003,with a copy to HNB. He refused to take delivery of the letter until July 19, 2003. Since this letter,the second written notice of violations, was received by Hebert, there has been no communication with the City, nor have any delinquent payments been received. It is estimated that Hebert owes the City in excess of $27,000. Due to Hebert's breach of contract for failing to make rental payments and for providing inadequate insurance coverage, the Administration is seeking Council approval to terminate the agreement. Article 7 of the agreement provides that Hebert must be notified of the contract's breach and must be given sufficient time to correct the violations. This notice has already been given and Hebert has failed to correct the deficiencies in the time allowed. Since Hebert has failed to correct such breach, the City may terminate the agreement within sixty(60) days of legal notice and require Hebert to vacate the premises. At the time the contract with Hebert was executed,the City also entered into a Collateral Assignment of Lessee's Interest in Lease with Hebert and HNB. This agreement transfers to HNB the rights and security interest in our agreement with Hebert. Specifically, it grants them the right to assume the responsibilities of the agreement or to reassign them to another party should Hebert default. VHNB assumes the operation of the golf course, they are bound by the terms and conditions of Hebert's agreement. However, they are not liable for any debt owed the City by Hebert. City staff has contacted HNB and they are aware of the termination request. Hebert signed a promissary,note in the amount of$483,946 with HNB to finance the improvements to the course. BUDGETARY IMPACT It is currently estimated that Hebert owes the City in excess of$27,000. By agreement, monthly payments of approximately$4,500 are delinquent for a six(6)month period. PREVIOUS ACTION None. SUBSEQUENT ACTION None. RECOMMENDED BY City Manager and Central Services Director. Henry Homberg Municipal Golf Course Operation and Maintenance Agreement August 7, 2003 Page 4 RECOMMENDED MOTION Approve/Deny authorizing the City Manager to terminate the Operation and Maintenance Agreement with Mr. Thomas A.Hebert for the Henry Homberg Golf Course for breach of contract and to ratify all previous actions taken by the City Manager related to notification of such breach. City of Beaumont May 28, 2003 Mr. Thomas A. Hebert P. O. Box 20436 Beaumont, TX 77720 Re: Henry Homberg Municipal Golf Course Operation and Maintenance Agreement Dear Mr. Hebert: A review of our records indicates that the City has not received rental payments for Henry Homberg Municipal Golf Course since October, 2002. Paragraph 2.1 of our Operation and Maintenance Agreement,which commenced on January 1,2000,states the following: During the term of this Agreement and any extension thereof, except as provided in Article 8 hereof,Hebert shall pay the City Two Thousand and Five Hundred Dollars($2,500)per month as rental,plus five percent(5%)of the gross receipts collected by Hebert in the operation of the Golf Course, subject to a minimum annual payment of Sixty Thousand Dollars ($60,000). This section also states that,"such payments shall be made by Hebert on or before the fifteenth day of each month and shall be accompanied by a summary statement of monthly gross receipts collected by Hebert" and that"payments shall be paid following the calendar month collected." The payments required under the terms and conditions of our agreement have not been received by the City. As such,you are in violation of the agreement and are subj ect to the termination provisions provided in the contract. In accordance with these provisions,this letter shall serve as written notice that all rentals, fees and payments due under the terms of our agreement must be remitted to the City within thirty(30) days of your receipt of this letter. If all payments owed are not remitted within the specified time, there will be no recourse but to take further action. Also,Article 6 of our agreement requires you to provide Workers'Compensation and Commercial General (Public)Liability Insurance coverage. The last certificates of insurance that we received from you indicate that your workers' compensation coverage expired February 1, 2003, and that your general liability Central Services Department • (409) 880-3755 • Fax (409) 880-3747 P.O. Box 3827 • Beaumont, Texas 77704-3827 Henry Homberg Municipal Golf Course May 28, 2003 Page 2 coverage expires on May 31, 2003. If proof of insurance coverage, as required by the agreement, is not received prior to the termination date of your liability insurance policy,you will be required to cease all operations at the golf course until the insurance requirements are satisfied. If there is an error in our record keeping system and if the information reported in this letter is not correct, please inform me so corrective action can be taken. However, it is important that all provisions of our agreement be adhered to as specified, and that contract conditions be satisfied in a timely manner. If you have any questions regarding this request,please feel free to contact me. Sincerely, Kirby Ric d Central Se ices Director KR:bd cc: Lane Nichols, City Attorney Hibernia National Bank, Pierce Harrington, 510 Park Street,Beaumont, TX 77701 ACCEPTED BY: a� o Signature Date City of Beaumont July 10, 2003 Mr. Thomas A. Hebert VIA• CERTIFIED MAIL P. O. Box 20436 CERTIFICATE#7001 0360 0001 7182 6338 Beaumont, TX 77720 Re: Henry Homberg Municipal Golf Course Operation and Maintenance Agreement Dear Mr. Hebert: On May 28, 2003,you accepted a letter from Kirby Richard, the City's Central Services Director, concerning the remittance of delinquent rental payments for Henry Homberg Municipal Golf Course. This letter stated that all rental fees due the City under the terms and conditions of our agreement must be paid within thirty(30)days. Since your receipt of this letter,you have remitted delinquent payments for the months of October, November and December 2002. All of the 2003 monthly payments remain due,through the month of June. In a meeting on July 10,2003,you requested that additional time be granted toward the payment of your delinquent rentals. In accordance with your request, the following payment plan will be allowed: 1. By August 25,2003,the$2,500 monthly rental fee must be received for the months that you are delinquent,January through May 2003. 2. By October 10, 2003,the remaining rental due for the months January through May 2003, five percent(5%)of gross receipts,must be received. 3. All rentals due for the month of June must be received by the City by July 15,2003 and all future monthly rental fees must be paid as required by our agreement. It is imperative that the payments as outlined in the plan above,and all future rental fees are remitted in a timely manner. Failure to do so constitutes a breech of our.contract. As such,the City will have no other choice but to terminate your agreement. Office of the City Manager • (409) 880-3708 • Fax (409) 880-3112 P.O.Box 3827 • Beaumont,Texas 77704-3827 Henry Homberg Municipal Golf Course Operation and Maintenance Agreement July 10, 2003 Page 2 It is my desire to have a long and prosperous relationship with you and your fmn. Hopefully the financial matters that have plagued you are past and the future will be brighter for all. If you have any questions concerning this matter,please fill free to contact me or Kirby Richard. Sincerely, Kyle Hayes City Manager KH/KR:bd cc: Kirby Richard, Central Services Director Lane Nichols, City Attorney Hibernia National Bank,Pierce Harrington, 510 Park St.,Beaumont,TX 77701 Fes- I I COMPLETE ON • SECTION ON DELIVERY Postal Service ■ Complete items 1,2,and 3.Also complete Ilsdefivery by ase Print clearly) B. Date Deliv CERTIFIED (Domestic Only; Item 4 if Restricted Delivery is desired. . D. / rage f; _U. ■ Print your name and address on the reverse / so that we can return the card to you. a ■ Attach this card to the back of the mailpiece, ❑Agent n Ti or on the front if space permits. � C ❑Address 14 1. Article Addressed to: a different from item 1? ❑Yes U��ostage $ ��X p If YES,enter delivery address below: ❑No Certified Fee O� Mr. Thomas A. Heb,;,it, Retum Receipt Fee P P. O Box 20436 (Endorsement Required) :3 Restricted Delivery Fee , ` 2 Beaumont, TX 77720 3 (Endorsement Required) 3. Service Type Total Postage&Fees $ US ACertified Mail [3 Express Mail 1 ❑Registered ❑Return Receipt for Merchand 7 Sent To ❑Insured Mail 13 C.O.D. Mr. Thomas A. Hebert ;• 4. Restricted Delivery?(Extra Fee) ❑Yes Street Apt.N. P. p. Box 20436 (Copy from service label) or PO Box No. 2. Article Number C -- Beaumont, TX 7772 i�� (_ 0 � ? f Itt 1 it i r i � . rrri .r i rr i it it i :�r �� iS Ftr�tj 0,811 'j, t�l`y;1s�9 iii i 1 it i it Diimestic Return Receipt 102595-00 M 09[ 6 August 12,2003 Consider authorizing the City Manager to execute an extension ofthe Beaumont Community Players' Development and Lease Agreement City of Beaumont Council Agenda Item TO: City Council FROM: Kyle Hayes, City Manager PREPARED BY: Kirby Richard, Central Services Director MEETING DATE: August 12, 2003 AGENDA MEMO DATE: August 6, 2003 REQUESTED ACTION: Council consider authorizing the City Manager to execute an extension of the Beaumont Community Players' Development and Lease Agreement. RECOMMENDATION Administration recommends authorizing the City Manager to execute a one year extension to the current Development and Lease Agreement which the City holds with the Beaumont Community Players (BCP), for the construction of a new community theater on City-owned property. BACKGROUND Council authorized a Development and Lease Agreement with BCP on August 8, 2000 for the construction and lease of a new community theater located on City-owned property. BCP proposed to raise approximately$1.5M to fund the design and construction of a 13,000 square foot building. The proposed building will seat 250 to 300 patrons in an auditorium-style arrangement. It will also provide a multipurpose room to host dinner plays, rehearsals and meetings, administrative offices for BCP, costume and scene shops, and storage. The terms of the agreement require the City to provide a site at the corner of College and Orleans Streets,upon which the new theater is to be constructed. Upon completion of construction,BCP will donate the theater to the City,then lease the facility for a twenty(20)year term. Lease payments of $10 per year for the term of the lease will provide contractual consideration. BCP will have exclusive use of the facility for education, civic, entertainment, and community theater purposes. In accordance with the conditions stated in the original agreement, construction was to have commenced within two(2)years after execution of the agreement(August 9,2000),after which time the right of BCP to use the property terminates. Extension to Development and Lease Agreement- BCP August 6, 2003 Page 2 On July 19, 2002, BCP requested an extension to the agreement. This was due to the fact that BCP was in need of more time to raise the then-estimated $2.5M required before building could begin. On July 30, 2002, City Council authorized a one-year extension of the Development and Lease Agreement with BCP. BCP has again requested an extension of the lease agreement. Several proposals for grants are pending review, and private sector contacts are waiting for a response. Currently, BCP has raised $577,973 in donations for the theater's construction. A copy of the original agreement and the first annual Extension of Lease is attached for your review. BUDGETARY IMPACT After transfer of ownership of the completed facility to the City,BCP agrees to pay the City lease payments of$10 per year for the term of the twenty(20)year lease. City maintenance and utility costs for the completed structure are currently estimated to be $25,000 per year. Future City expenses will be funded from the General Fund. PREVIOUS ACTION City Council authorized the execution of a Development and Lease Agreement with BCP on August 8, 2000, and the first extension on July 30, 2002. SUBSEQUENT ACTION None. RECOMMENDED BY City Manager and Central Services Director. RECOMMENDED MOTION Approve/Deny authorizing the City Manager to execute a one-year extension to the current Development and Lease Agreement with the Beaumont Community Players, to provide additional time for the organization to raise the remainder of funds necessary before construction of a new community theater may begin. C:�ownrvts evd SetEngsWrendsNly Documrnts\NPDOCSICaueBmt Comm.PleprsW6nlmmBCPp2 Extmsioo.wpd STATE OF TEXAS § COUNTY OF JEFFERSON § DEVELOPMENT AND LEASE AGREEMENT This Development and Lease Agreement is entered into this the _ q' 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. G:%RMIMBCPAGR Page 1 of 15 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. GARMWlBCP.AGR Page 2 of 10 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. G:1RMWI3CP.AGR Page 3 of 10 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 as GARMIMBCP.AGR Page 4 of 10 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 G:%RMWMCPAGR Page 5 of 10 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. G:1RMWI3CPAGR Page 6 of 10 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 G:%RMW\BCPAGR Page 7 of 10 5 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 it GARMWIBCPAGR Page 8 of 10 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 actions for damages, injuries to person (including death), property damage, (including loss G:RMWIBCPAGR Page 9 of 10 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 P RS By. By: �- Stephen J. Yon-czeC,"Ibity Manager resident G:%RMWIBCPAGR Page 10 of 10 "EXHIBIT A-1" A 46,871 square foot tract of land out of Block 38 of the Original Town of Beaumont, Jefferson County, Texas, according to the map or plat of said Original Town of Beaumont of record in the office of the County Clerk of Jefferson County, Texas, being described by metes and bounds as follows, to-wit: BEGINNING at the Northeast corner of Lot 179, Block 38 of said Original Town of Beaumont; THENCE South 40 degrees 35 minutes East along the East line of Lot 179 and thru Lot 183, a distance of 180.00 feet to corner at the Northeast corner of Lot 174 and the Northwest corner of Lot 173; THENCE South 49 degrees 25 minutes West along the North line of Lot 174, a distance of 60.00 feet to corner at the Northwest corner of Lot 174 and the Northeast corner of Lot 175; THENCE South 40 degrees 35 minutes East along the West line of Lot 174, a distance of 120.00 feet to the Southwest corner of Lot 174; THENCE South 53 degrees 42 minutes 21 seconds West a distance of 120.34 feet to the Southwest corner of Lot 176; THENCE North 40 degrees 35 minutes West a distance of 171.00 feet to the Northwest corner of Lot 182; THENCE North 49 degrees 25 minutes East along the North line of Lot 182, a distance of 1.6 feet to comer; THENCE in a Northeasterly direction along the arc of a curve to the right,and a distance of 119.21 feet to comer at the end of said curve,the radius of said curve being 127.74 feet with a central angle of 53 degrees 28 minutes 23 seconds; THENCE North 21 degrees 54 minutes 07 seconds East, a distance of 57.81 feet to the Northeast corner of Lot 178 and the Northwest corner of Lot 179 in the South right-of-way line of Wall Street; THENCE North 49 degrees 25 minutes East along the North line of Lot 179, a distance of 60.00 feet to the PLACE OF BEGINNING and containing 46,871 square feet, more or less. CKORIGINALTOWN "EMBTT A-2" ° N oRL�"S STREW m a7.61'S 2 B s o ' O /78 /77 / /79 /8 co --- � y c.rAMNG S o 0 .�� /82 AREA=46,871 � v /85 0 176 6 p 175 � I 'RO' cur ►� u 74 /4 8 /75 I / /7Z � antes/ ein6ti n ° � O I 0 TREEj- o m 0 0 COLLEGE 0 AFARL BRAIPN BY.- B.TRISTAN SCALE.• t p=60' STATE OF TEXAS § COUNTY OF JEFFERSON § EXTENSION OF LEASE WHEREAS, on August 9, 2000, the City of Beaumont (herein "City") entered into a Development and Lease Agreement with Beaumont Community Players (herein "BCP") for a term expiring August 9, 2002; and WHEREAS,City and BCP desire to extend the expiration date for said lease for one (1) year; and WHEREAS, said lease may only be amended by the parties in writing executed by BCP and the City Manager of City; NOW, THEREFORE, the City and BCP agree as follows: 1.01. The Development and Lease Agreement between City and BCP is hereby ak" extended to terminate August 9, 2003. 1.02. All provisions of said Development and Lease Agreement are hereby accepted and ratified by BCP and City. 1.03. , Paragraph 2.3 of such Lease is hereby amended to clarify that the parties understand and agree that the laws applicable to construction of the theater on City-owned property requires that the prime contractor provide a payment bond to BCP to protect the rights of laborers,vendors and materialmen who provide goods and services to the project. Page 1 Ok2DOCUMENTS AND SETTINGSXBRENDAWIY DOCUMENTS\WPDOCSM-mESIBMT.COMM.PLAYERSUxASE-ExTENSION.WPD RECEIVED AUG 19 2002 CENTRAL SERVICES IN WITNESS WHEREOF, BCP and City have executed or caused to be executed by the duly authorized officers or agents this lease extension on the Za _ day of 2002. CITY OF BEAUMONT BEAUMONT COMMUNITY PLAYERS By: By: Alz-'aA Kyle Hayed, City Ma ager Beverly H' man, President Page 2 Of2DOCUMENTS AND SETTINGSIBRENDAWIY DOCUMENTS\WPDOCSULEASESXBMT.COMM.PLAYERS\LEASE-EXTENSION.WPD suzLi City of Beaumont REGULAR MEETING OF THE CITY COUNCIL COUNCIL CHAMBERS AUGUST 12, 2003 1:30 P.M. CONSENT AGENDA Approval of minutes Confirmation of committee appointments Shaheen Farah would be reappointed to the Historical Landmark Commission. His current term will expire June 23, 2005. (Councilmember Nancy Beaulieu) Dr. Richard LeBlanc would be reappointed to the Convention and Tourism Advisory Committee. His current term will expire July 26, 2005. (Councilmember Andrew P. Cokinos)