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HomeMy WebLinkAboutRES 03-196 RESOLUTION NO. 03-196 BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF BEAUMONT: THAT the City Manager be and he is hereby authorized to execute a lease agreement with Bryan and Bridget Markland for rental of the Tyrrell Park Stables facility, substantially in the form attached hereto as Exhibit "A." PASSED BY THE CITY COUNCIL of the City of Beaumont this the 23rd day of September, 2003. w - 4ior Evelyn M. Lord - State of Texas § County of Jefferson § Lease Agreement THIS AGREEMENT is made and entered into this day by and between the City of Beaumont, a municipal corporation of the State of Texas (herein referred to as "City") and Bryan and Bridget Markland(herein referred to as"Tenant"),for the lease of property within Tyrrell Park in Beaumont, Texas and being described in Exhibit"A"attached(herein referred to as "Property"). WHEREAS, City has right, title and interest in and to the facilities and privileges hereinafter granted, and has full power and authority to enter into this Agreement in respect thereof; and WHEREAS,Tenant wishes to lease Property for an equestrian oriented operation for the benefit of the citizens of Beaumont and Southeast Texas. NOW, THEREFORE, in consideration of the mutual covenants and considerations herein contained,City lets and demises to Tenant and Tenant takes from City the Property and all described rights incident thereto, subject to the following: Article 1 TERM OF AGREEMENT 1.1 The primary term of this agreement shall be five(5)years,commencing on October 1, 2003 and shall terminate on August 31, 2008, if not sooner terminated as herein provided. 1.2 Upon expiration of the primary term, the City Manager or his designee may extend this Agreement for an additional five(5)year period. The terms and conditions of the extended term must be agreed upon in writing by both parties within sixty (60) days prior to the Agreements termination. 1.3 If Tenant holds over and continues in possession of Property after the expiration of the term of this lease, or any extension of that term, Tenant will be deemed to be occupying the Property on the basis of a month-to-month tenancy,subject to all of the terms and conditions of this lease. 1.4 Tenant agrees that upon expiration of the primary term or any extension of this Agreement or sooner cancellation thereof, the Property will be delivered to City in good condition, reasonable wear and tear excepted. -1- EXHIBIT "A" Article 2 RENTAL, FEES AND PAYMENT 2.1 Tenant shall keep and maintain a complete and detailed accurate set of books and records of daily entry accounting for receipts related to the operation of the Property and such books and records shall be available for examination by City at any and all reasonable times. 2.2 During the primary term of this Agreement, Tenant shall make monthly rental payments to City in the amount of FIVE HUNDRED DOLLARS ($500) as consideration of its interest in the lease. Said payments shall commence upon the seventh(7"')month after the execution date of this lease agreement. Commencing on the thirteenth(13`i')month after the execution date of this lease agreement, Tenant shall pay to City an additional monthly rental fee of FIVE PERCENT (5%) of gross receipts collected during the previous month. 2.3 Rental payments shall be made by Tenant on or before the fifth(5 )day of each month and shall be accompanied by a summary statement of the previous monthly gross receipts collected by Tenant. Rental fees shall be payable in advance. Failure of Tenant to make prompt and timely rental payments may be cause for contract termination. Article 3 OBJECTIVES AND PURPOSE OF AGREEMENT 3.1 For the term ofthe Agreement,Tenant shall be qualified,authorized and herewith designated official in possession and control of all real property known as Property and as shown in Exhibit "A". The Property will continue to be owned by the City during the term of this Agreement and any extension thereof. 3.2 Tenant shall, at his own cost and expense, operate,manage and maintain said Property and surrounding grounds in a fit and proper order, suitable for equestrian activities only. Any other uses of the Property contemplated by Tenant must receive prior written approval by the City Manager or his designee. 3.3 Tenant is an independent contractor, not an employee or agent of City and all persons employed by Tenant shall be his employees and shall not be employees of City. Tenant shall employee only qualified competent persons. Article 4 OBLIGATIONS OF TENANT 4.1 Tenant shall at his own cost and expense: 4.1.1 furnish all personnel and labor necessary for the normal maintenance and operation of said Property, 4.1.2 acquire and furnish all equipment, including tractors, trailers, mowers and similar -2- equipment and tools necessary to operate and maintain said Property. 4.1.3 during the initial twelve(12)months of this contract, the City will provide mowing of Property,unless services are declined in writing and such services are performed by Tenant. Frequency of mowing will be provided in accordance with the maintenance schedule of Tyrrell Park. 4.2 Tenant shall furnish all equestrian equipment and a minimum of six(6)horses,tack,feed and similar equipment and supplies necessary to operate and maintain equestrian activities and rentals. Equestrian activities must begin within four(4)months of contract commencement date. 4.3 Property and all livestock boarded or owned by Tenant,clients or other individuals shall be maintained and kept in strict accordance with safety programs, rules, regulations and operating procedures,and any amendments thereto,established by the State of Texas,Texas Administrative Code,Title 4,Part 2,Chapter 48,Riding Stable Registration Program(herein referred to as"Standards")for commercial horse operations,or any applicable laws,rules or regulations governing riding stables or horse rentals. Any horse shows,camps,clinics,horse rentals,horse and carriage rides, covered wagon rides,barn tours,pony rides, etc., offered, promoted,or sponsored by Tenant shall be conducted in strict accordance with the guidelines and safety procedures set by the Standards, or any other applicable law. 4.4 Tenant shall obtain and maintain a certificate of registration issued by the State of Texas,in accordance with the Standards,prior to the start of any operations at the Property. 4.5 Tenant shall report violations of any equestrian laws, and specifically lack of proof of Coggins immunizations, to the State of Texas Animal Health Commission. Tenant shall have the right to require all horses ridden on Tyrrell Park property to have proper immunizations, including those for Coggins. 4.6 Tenant shall establish rules and regulations for horse rental and stable operations,as well as a schedule of all rental fees,horse training fees,riding lessons,camping fees,equipment and retail sales,and all other revenues to be derived from Tenant's operation of the Property and obtain written approval of the City Manager prior to the effective date thereof. Such approval will not be unreasonably withheld. 4.7 Tenant shall confine all riding activities to the Property and designated riding trails;no riding is allowed on Tyrrell Park property except in those encompassed by the Agreement. Tenant may be granted use of other areas only by written approval of the City Manager or his designee. City is responsible for mowing of the riding trails and removal of trees or other obstructions on the trail area. Tenant shall promptly report any deficiencies in the trail area to the City and shall cease use of the riding trail,if in Tenants opinion the deficiency presents a hazard,until such deficiency is removed. -3- 4.8 Tenant and his customers, clients and patrons shall drive and park only in designated areas; vehicles are only permitted on grass areas for the temporary transport of supplies and equipment. 4.9 Tenant shall be responsible for the control of air borne vectors within the Property and for removing manure from Property at least once per month. Stored manure must be limed and sprayed to control flies. Use of pesticides shall be in accordance with all applicable laws and regulations. Manure shall be removed from stalls on a daily basis at minimum. Tenant shall adhere to all regulations governing its disposal. 4.10 Tenant shall be responsible for keeping Property free of any litter, trash or debris and shall adhere to all regulations governing its disposal. 4.11 Tenant shall be responsible for locking the side gates at the Property and the Downs Road park entrance at dark each day. 4.12 Tenant shall obtain and maintain a license issued by the Texas Department of Health, in accordance with the State of Texas,V.T.C.A.,Health and Safety Code, Chapter 141.Youth Camps, or as may be amended, prior to the start of any youth camp operations at the Property. All State Department of Health rules and orders and all other applicable laws governing youth camps must be strictly adhered to,when applicable. 4.13 Tenant agrees to conform to all policies, rules and regulations of the City, and all City ordinances, and State and Federal statutes. 4.14 Tenant shall promptly pay as it becomes due and payable, all indebtedness, obligation or other amounts owing or incurred by him under this agreement. No liens of any kind may be affixed to Property. 4.15 Tenant shall submit a report of attendance, events sponsored and participation in activities at the Property to the designated City department by the fifth(5t')day of each month. 4.16 Tenant shall be responsible for the timely payment of all utility services, including but not limited to electrical, telephone, trash disposal and water and sanitary services. 4.17 Tenant shall be responsible for routine maintenance of buildings and property, including plumbing, electrical, and heating and air conditioning systems. "Routine maintenance"-as used in this section shall include but not be limited to repairing leaking faucets and running toilets, unstopping plumbing lines, replacing ballasts, light bulbs, breakers and breaks in electric lines,replacing filters on a regular basis,and having,an evaluation of the heating and air conditioning system done on an annual basis. City is responsible for major repair costs of the systems listed above and structural integrity of the house and stables only. "Major repair" as used in this section shall include but not be limited to failure of the foundation, walls,or roof systems,failure of the heating or air conditioning system,replacement of main sewer drain lines or main water supply lines. Damages caused by Tenant,Tenants guests or -4- by Tenants negligence shall be the responsibility of Tenant. Should damages to the Property occur or the Property require general maintenance,which are the responsibility of the Tenant under this lease, Tenant must promptly repair such damages. Should Tenant fail to repair such damages, City shall upon ten(10) days written notice of such failure, may repair the damages and charge the cost of same to Tenant as additional rent. 4.18 Tenant shall comply with the risk reduction program standards as set forth by the North American Horsemen's Association, as shown in Exhibit"D,"for Horse Stables and Farms, Boarding,Breeding,Leasing,Sales,Training and Lessons,and Horse Rental and Trail Rides, Guides and Outfitters, Dude Ranches and Resorts, and Horse Related Camps, as may be amended. Article 5 INDEMNITY AND INSURANCE 5.1 Indemnity 5.1.1 Tenant hereby indemnifies and hold harmless the City against any and all claims, obligations, costs, judgements and attorney's fees arising from or growing out of the operation and maintenance of the Property,stables,or day camp. Such indemnity specifically includes claims,law suits or causes of action and alleged negligent acts and omissions of the City, its officers, agents and employees. 5.2 Insurance 5.2.1 Within ten(10)days of the execution of this Agreement and prior to commencement of any activities on the Property, Tenant shall furnish a completed Insurance Certificate to the City Clerk. The certificate shall be completed by an agent authorized to bind the named underwriter(s)to the coverages,limits,and termination provisions shown thereon. City shall have no duty to pay or perform under this contract until such certificate is received by the City, and no officer or employee or the City shall have authority to waive this requirement. 5.2.2 Subject to Tenant's right to maintain reasonable deductibles in such amounts as are approved by the City,Tenant shall obtain and maintain in full force and effect for the duration of this Agreement, and any extension thereof, at Tenant's sole expense, insurance coverage written by companies approved by the State of Texas and acceptable to the City, in the following type(s) and amounts: 5.2.2.1 Workers' Compensation and Employer's Liability- Statutory Amount. 5.2.2.2 Commercial General (Public) Liability - Combined single limit for bodily injury and property damage of$1,000,000 per occurrence or its equivalent with an aggregate limit of$2,000,000. Including coverage for the following: 5.2.2.2.1 Premises operations, -5- 5.2.2.2.2 Independent contractors Products/Completed operations, 5.2.2.2.3 Personal injury, 5.2.2.2.4 Contractual liability, 5.2.2.3 Comprehensive Automobile Liability - for vehicles used by Tenant in his operations hereunder-Combined single limit for bodily injury and property damage of$1,000,000 per occupance or equivalent. 5.2.2.4 Fire and Extended Coveraize - Tenant shall provide fire and extended coverage insurance on the Property showing the City as insured. Tenant shall provide City with a certificate for such insurance and Tenant shall maintain such insurance and pay the premium for such during the term of this agreement and any extension therof. Proceeds of such issuance shall be paid to the City. 5.2.3 Tenant agrees with respect to the above required insurance, all insurance contracts and certificate(s)of insurance will contain and state, in writing, on the certificate or its attachment, the following required provisions: 5.2.3.1 Name the City of Beaumont and its officers, employees, and elected representatives as additional insured(s), as the interest of each insured may appear, to all applicable coverage. 5.2.3.2 Provide 15 days notice to City for cancellation, non-renewal, or material change. 5.2.3.3 Tenant agrees to waive subrogation against the City,its officers,employees, and elected representatives for injuries,including death,property damage,or any other loss to the extent same may be covered by the proceeds of insurance. 5.2.3.4 Provide that all provisions of this Agreement concerning liability, duty, and standard of care together with the indemnification provision, shall be underwritten by contractual liability coverage sufficient to include such obligations within applicable policies. Article 6 TERMINATION 6.1 Termination by City 6.1.1 In the event that the City determines, in its judgement, that any one or more of the provisions of this contract are being breached or violated by Tenant, it shall notify Tenant thereof in writing, therein setting forth such breach or violation and a sufficient time for correction. In the event Tenant fails to correct such breach or violation in the time allowed, such failure shall,at the sole option of the City, serve -6- to terminate this Agreement after thirty(30) days written notice. Such termination of the Agreement by City shall not deprive it of its lawful rights and pursuits to recover any and all amounts owing to it by Tenant up to and including the date of such termination. 6.1.2 Upon termination of this Agreement, City shall have the right of reentry and may remove all persons and property from the premises and may store such property at a public warehouse or elsewhere at the expense of, and for the account of Tenant. Any and all improvements made by Tenant to Property become the property of City. 6.2 Termination by Tenant 6.2.1 Tenant shall have the right to terminate this Agreement upon ninety(90)days written notice of its election to do so. Should Tenant terminate this Agreement, any and all improvements made by Tenant to Property become the property of City. Article 7 IMPROVEMENTS TO PROPERTY 7.1 Improvements by Tenant 7.1.1 Tenant may make Improvements to the Property. Tenant will not construct any permanent Improvements to Property without the written approval of the City Manager or his designee. Should permanent Improvements be constructed,Tenant and authorized City staff shall enter into an amendment to this agreement detailing the requirements necessary for construction of such Improvements. 7.1.2 All Improvements to Property must be in accordance with City, State and Federal laws, regulations and codes applicable to the construction, renovation and improvement of the structures and grounds. Due to the public nature of Property, e State regulations set forth by the Texas Department of Licensing and Regulations applicable to Architectural Barriers must be followed. Prior to commencement of Improvements to public areas, approval of the plans and specifications must be received by the Texas Department of Licensing and Regulations and City. 7.1.3 Tenant is solely responsible for all payments, claims and costs associated with Improvements unless otherwise provided for in this agreement or agreed to in writing by both parties. 7.2 Improvements by City 7.2.1 The City may, at its own cost and expense, make capital improvements to the Property, subject to the appropriation of City funds. The City shall consult with Tenant prior to making said capital improvements. 7.3 Upon termination of this Agreement,or any extension thereof,all improvements to Property shall become the property of the City. -7- 7.4 Should the Improvements or Property be damaged or destroyed by fire or other casualty,the decision to reconstruct the facility shall be solely that of the City Manager or his designee. If the City decides not to reconstruct the Property, this lease agreement shall terminate. Should the Property, or any portion of such Property, be destroyed by an insured event to such an extent that the business of the Tenant cannot continue and should the City decide to rebuild the destroyed portion of such Property such that the Tenant can continue in business, then,in that event,this lease shall be extended for a period of time equal to the period of time that the Tenant is not able to operate its business under this lease and the Tenant shall be relieved of rental payments during such time period. Article 8 GENERAL PROVISIONS 8.1 The services called for herein shall be performed by Tenant as an independent contractor,and City shall not be liable for the manner of discharge of such services. 8.2 Tenant shall be an independent contractor, not an employee of the City, and all persons employed by Tenant shall be his employees and shall not be employees of the City. 8.3 This Agreement shall not be transferred or assigned to any party,in any manner whatsoever, by Tenant without the prior written approval of the City Manager or his designee. Any sale which transfers the majority shares of the corporation's stock must have prior written approval of the City Manager or his designee. 8.4 No waiver by either parry of a breach by the other shall be construed or held to be a waiver by such parry of any succeeding breach by the other party of the same or any covenant, condition, or restriction herein contained. 8.5 Where changes to activities or areas included in this Agreement are made, such modifications must be in writing and signed by both parties. 8.6 If any term or provision of this Agreement shall,to any extent,be invalid or unenforceable, the remainder of this lease shall not be affected thereby and each other term and provision of this lease shall be valid and be enforced to the fullest extent permitted by law. 8.7 With respect to the Property, Tenant assures that it will undertake an affirmative action program to ensure that no person shall on the grounds of race,creed,color,sex,disability or national origin be excluded from participating in any employment activity. Tenant assures that no person shall be excluded on these grounds from participation in or receiving the services or benefits of any program or activity covered by this Agreement. 8.8 Any written notice to be given hereunder by either party to the other party shall be affected by certified mail,return receipt requested. Either party may change the address for notice to it by giving written notice of such change in accordance with the provisions of this section. 8.8.1 Notice to Tenant shall be sufficient if made or addressed to: -8- Bryan&Bridget Markland 5595 Tyrrell Park Road Beaumont, Texas 77705 8.8.2 Notice to City shall be sufficient if made or addressed to: City Manager City of Beaumont P. O. Box 3827 Beaumont, Texas 77704 8.9 This Agreement constitutes the entire agreement between the parties and no changes, amendments or modifications hereof shall be valid or recognized unless in writing and signed by both parties. 8.10 The Caretaker's House on the Property may only be occupied by Tenant unless written approval for occupancy by others is obtained from the City Manager or his designee. 8.11 Time is of the essence of this agreement. 8.12 This agreement shall be construed under, and in accordance with, the laws of the State of Texas, and all obligations of the parties created by this agreement are performable in Jefferson County, Texas. IN WITNESS WHEREOF,the parties hereto have caused this Agreement to be executed as of the date first mentioned above at Beaumont, Texas. CITY OF BEAUMONT: TENANT: Kyle Hayes, City Manager Bryan Markland Bridget Markland -9-