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Home My WebLink AboutRES 04-003 RESOLUTION NO. 04-003 BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF BEAUMONT: THAT the City Manager is hereby authorized to execute the renewal of a Management Agreement with Beaumont Council of Garden Clubs (BCGC). The agreement is attached hereto as Exhibit "A" and made a part hereof for all purposes. PASSED BY THE CITY COUNCIL of the City of Beaumont this the 6th day of January, 2004. Mayor Evelyn M. Lord - t* MANAGEMENT AGREEMENT THE STATE OF TEXAS § COUNTY OF JEFFERSON § WHEREAS,the City of Beaumont,a municipal corporation domiciled in Jefferson County, Texas, hereinafter called "City," and the Beaumont Council of Garden Clubs, a Texas non-profit corporation domiciled in Jefferson County, Texas, hereinafter called"Garden Council," and WHEREAS, the parties recognize the mutual benefit to Garden Council and City derived from the existence of the Beaumont Botanical Gardens and the Warren Loose Conservatory on the grounds of Tyrrell Park, and WHEREAS, to that end, City and Garden Council agree as follows: WITNESSETH : Article 1. Description of Lease Premises For and in consideration of payment by City of the management fee hereinafter reserved to Garden Council and the performance by Garden Council of the covenants and agreements hereinafter contained to be performed by Garden Council, and in accordance with all of the provisions hereinafter set forth, City does hereby lease and let unto Garden Council, and Garden Council does hereby take and lease from City, the following described real property and premises (the "Leased Premises"): That certain land more fully described in Exhibit"A" attached hereto and made a part hereof by this reference,hereinafter called the"Land,"and the Garden Council,Warren Loose Conservatory and parking facilities, hereinafter called the"Building." Page 1 of 11 EXHIBIT "A" Garden Council is also given the non-exclusiveght during the term of this Agreement to ,4 utilize the property described in Exhibit`B" for any purpose that has been approved in writing in advance by the City Manager of the City, or his designee. Article 2. Term of Agreement The term of this Agreement shall be for five(5)years commencing on February 1,2004 and terminating at 11:59 p.m. on January 31, 2009, if not sooner terminated as hereinafter provided. Article 3. Management Fee In consideration for Garden Council maintaining and managing the Leased Premises herein described, City shall pay to Garden Council the sum of Two Thousand Dollars ($2,000.00) per month,payable on the first day of each month during the term of this Agreement, commencing on February 1, 2004. Article 4. Use and Occupancy Garden Council shall use and occupy the Leased Premises as a botanical garden, Garden Council building and conservatory for the education and promotion of horticultural activities and related purposes during the full term of this Agreement. The grounds of the botanical gardens and conservatory shall be open to the public during normal hours of operations as shall be agreed to between the parties. Garden Council will comply with any and all laws,ordinances,rules,orders and regulations of any governmental authority which are applicable to Garden Council's operations in and on the Leased Premises. Garden Council further agrees that no part of said facility will be used for any unlawful purpose. Any use of the Leased Premises or property described in Exhibit"B"by Garden Council shall be in accordance with the Americans with Disabilities Act and any revision thereof. Page 1 of l l City covenants that if,and so long as,Garden Council performs the covenants hereof,Garden Council shall peaceably and quietly have, hold and enjoy the Leased Premises for the term of this Agreement, subject to each and all of the covenants and provisions contained herein. Article 5. Alterations, Additions or Improvements Garden Council shall not,without first obtaining the written consent of the City Manager or his designee,make any alterations,additions or improvements to the Building or the land;provided, however,that such consent shall not be unreasonably withheld. Any work done by Garden Council to the Leased Premises or property described in Exhibit `B" shall be done in a good and workmanlike manner and without impairing the structural integrity of the Land or Building. Any alterations, additions or improvements made by Garden Council shall become the property of City at the termination of this Agreement. In the event improvements are contemplated or made to the property or grounds, the City may, at its sole discretion, assist the Garden Council by providing employees, equipment and/or materials as may be available at the time. All improvements shall be made in accordance with Garden Council's master plan. Article 6. Obligations of City and Garden Council Garden Council shall use the funds provided in Article 3 above to provide and maintain a clean and pleasant environment, free of any hazards, at all times. Garden Council shall pay all personal property taxes, if any, imposed on the equipment, inventory, fixtures and other personal property located on the Leased Premises. Garden Council should maintain such insurance as it deems appropriate to protect its personal property on the Leased Premises. Page 2 of 11 Garden Council shall, at its own expense,provide such competent help and personnel as it shall deem necessary for the safe operations and management of the facility. Any employee of the Garden Council shall be solely an employee of the Garden Council and shall not be considered an employee of City for any purpose. City shall be obligated and responsible for the following: a. Maintenance and repair of the interior and exterior walls,roof,foundation,doors and sidewalks of the Garden Council building; and b. Maintenance and repair of parking areas; and C. Maintenance and repair of electrical systems; and d. Maintenance and repair of air conditioning systems in the Garden Council building; and e. Maintenance services for lawn and turf areas described in Exhibit"A." Planting beds and garden areas shall be the responsibility of Garden Council; and f. Payment of electrical, gas, water utilities and telephone services, excluding long distance telephone service charges; and g. Maintenance and repair of the Warren Loose Conservatory's structural systems, including the replacement of windows; and h. Repair of Building's plumbing system, excluding services required to remove obstructions from sewer lines. All irrigation systems are the responsibility of Garden Council. All obligations which are not listed above shall be the responsibility of Garden Council. City shall, at its expense,maintain such casualty insurance covering the Leased Premises as Page 3 of 11 it deems appropriate to cover its interest thereon. Garden Council shall have no authority to incur any obligation on behalf of the City nor does City have any authority to incur any obligation on behalf of the Garden Council concerning the facility. This Management Agreement shall not be assignable in whole or in part by Garden Council or City without the written consent of the other party. Garden Council shall, at all times, keep the property of City free and clear of all liens, attachments, encumbrances or claims arising out of Garden Council's operations. Article 7. General Liability Insurance Garden Council shall provide general liability insurance in the minimum aggregate amount of One Million Dollars ($1,000,000), such insurance naming City as an additional named insured, and provide City with a certificate of insurance evidencing such coverage. The insurance must additionally insure the indemnity required by this Agreement. Article 8. Damage to Leased Premises In the event the Leased Premises are partially damaged or destroyed or rendered partially unfit for occupancy by fire or other casualty, Garden Council shall give immediate notice to City. City may repair the damage and restore the Leased Premises to substantially the same condition as immediately prior to the occurrence of the casualty. Garden Council shall allow City a fair reduction of the management fee during the time the Leased Premises are partially unfit for occupancy. If the Leased Premises are totally destroyed or deemed by the City to be rendered unfit for occupancy by fire or other casualty, or if City shall decide not to repair or rebuild, this management Agreement shall terminate and the management fee shall be paid to the time of such casualty. Page 4 of 11 Article 9. Default In the event either party defaults in the performance of any of its obligations under this Agreement,and such default continues uncorrected for thirty(30)days after written notice from the other party of the particular default, said notice being given by certified mail, return receipt requested, addressed to the defaulting party at its address as hereinafter set forth,thereupon, at the sole election of the non-defaulting party,this Agreement may be terminated. City shall have a right of re-entry and operation of the facility upon any termination. Article 10. Indemnification Garden Council shall indemnify and hold City harmless from any and all liabilities, claims,damages,judgments,injuries,costs,and expenses,including reasonable attorney's fees for the defense thereof,arising from the conduct or management of Garden Council's business or its use of the Leased Premises. Article 11. Non-Appropriation of Funds Notwithstanding anything contained in this Agreement to the contrary,in the event no funds or insufficient funds are appropriated and budgeted or are otherwise unavailable by any means whatsoever in any fiscal period for management payments due under this Agreement, City will immediately notify Garden Council in writing of such occurrence and this Agreement shall terminate on the last day of the fiscal period for which appropriations have been received or made without penalty or expense to City. If both the City and Garden Council wish to continue the Agreement without payment of any management fees, and it is agreed to by both parties in writing, the Agreement will continue in accordance with the terms and conditions as stated herein. Article 12. Miscellaneous Provisions Page 5 of 11 All notices required to be given hereunder by City to Garden Council shall be in writing and delivered by certified mail, return receipt requested, and addressed to Garden Council as follows: Beaumont Council of Garden Clubs 6088 Babe Zaharias Dr. Beaumont, TX 77705 All notices required to be given by Garden Council to City shall be similarly given,addressed to City as follows: City Manager City of Beaumont P. O. Box 3827 Beaumont, TX 77704 provided that either party may, by notice in writing to the other, designate any additional or alternative address to which such notices shall be given. If any portion of this Agreement shall be held to be invalid or unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable. If a court finds that any provision of this Agreement is invalid or unenforceable,but that by limiting such provision it would become valid and enforceable, then such provision shall be deemed to be written, construed and enforced as so limited. This document contains the entire Agreement of the parties and there are no other promises or conditions in any other agreement,whether oral or written. This Agreement may be modified or amended in writing, if the writing is signed by the party obligated under the amendment. This Agreement shall be deemed to be made and shall be performable in Jefferson County, Texas and shall be construed in accordance with the laws of the State of Texas. Page 6 of 11 IN WITNESS WHEREOF, the parties herets have executed this Agreement on the day of , 2004. BEAUMONT COUNCIL OF GARDEN CLUBS CITY OF BEAUMONT By: By: Bea Klages, President Kyle Hayes, City Manager J C�rl *vim WYD-r WFDOLlYrr�&a C.W KGWm0.6.'f."CM L.2OU pd Page 7 of 11 Exhibit"A"� TRACT A BEING a 7.744 acre tract of land in Tyrrell Park; BEGINNING at a 3/4"iron rod set for the Northwesterly corner of the herein described tract,to-wit; THENCE North 88 degrees 15 minutes 20 seconds East for a distance of 125.38 feet to a fence corner; THENCE North 88 degrees 50 minutes 27 seconds East for a distance of 249.39 feet to a fence corner; THENCE North 46 degrees 32 minutes 13 seconds East for a distance of 236.8 feet to a fence corner; THENCE North 61 degrees 53 minutes 35 seconds East for a distance of 89.05 feet to a fence corner; THENCE North 68 degrees 12 minutes 12 seconds East for a distance of 233.74 feet to a fence corner; THENCE South 30 degrees 30 minutes 29 seconds East for a distance of 172.4 feet to a fence corner; THENCE South 45 degrees 26 minutes 00 seconds West for a distance of 281.45 feet to a fence corner; THENCE South 06 degrees 09 minutes 37 seconds West for a distance of 176.99 feet to a fence corner; THENCE South 66 degrees 24 minutes 56 seconds West for a distance of 168.37 feet to a fence corner; THENCE South 87 degrees 32 minutes 09 seconds West for a distance of 61.0 feet to a fence corner; THENCE South 45 degrees 55 minutes 30 -seconds West for a distance of 161.61 feet to a fence corner; THENCE South 31 degrees 14 minutes 50 seconds West for a distance of 134.53 feet to a 3/4" iron rod; THENCE North 42 degrees 23 minutes 01 seconds West for a distance of 376.74 feet to a spike nail; THENCE North 24 degrees 58 minutes 28 seconds West for a distance of 181.42 feet to a 3/4" iron rod; Page 8 of 11 THENCE North 15 degrees 48 minutes 35 seconds East for a distance of 79.18 feet to a 3/4" iron rod and the PLACE OF BEGINNING,containing 7.744 acres of land, more or less. Page 9 of I 1 Exhibit"B" ' TRACT B BEING a 15.336 acre tract of land in Tyrrell Park; BEGINNING at a 3/4"iron rod set for the Northwesterly corner of the herein described tract,to-wit; THENCE North 31 degrees 14 minutes 50 seconds East for a distance of 134.53 feet to a fence corner; THENCE North 45 degrees 55 minutes 30 seconds East for a distance of 161.61 feet to a fence corner; THENCE North 87 degrees 32 minutes 09 seconds East for a distance of 61.0 feet to a fence corner; THENCE North 66 degrees 24 minutes 56 seconds East for a distance of 168.37 feet to a fence corner; THENCE North 06 degrees 09 minutes 37 seconds East for a distance of 176.99 feet to a fence corner; THENCE North 45 degrees 76 minutes 00 seconds East for a distance of 281.45 feet to a fence corner; THENCE North 30 degrees 30 minutes 29 seconds West for a distance of 172.40 feet to a fence corner; THENCE North 44 degrees 45 minutes 59 seconds East for a distance of 63.21 feet to a 3/4" iron rod; THENCE South 19 degrees 84 minutes 58 seconds East for a distance of 350.44 feet to a 3/4" iron rod; THENCE South 28 degrees 12 minutes 35 seconds East for a distance of 413.3 feet to a 3/4" iron rod; THENCE South 24 degrees 33 minutes 43 seconds West for a distance of 85.05 feet to a 3/4" iron rod; THENCE South 01 degrees 46 minutes 35 seconds West for a distance of 521.04 feet to a 3/4" iron rod; THENCE South 07 degrees 06 minutes 03 seconds East for a distance of 667.91 feet to a 3/4" iron Page 10 of 11 rod; THENCE South 74 degrees 41 minutes 23 seconds West for a distance of 39.58 feet to a 3/4 iron rod; THENCE North 21 degrees 15 minutes 48 seconds West for a distance of 221.83 feet to a 3/4"iron rod; THENCE North 29 degrees 45 minutes 48 seconds West for a distance of 225.33 feet to a 3/4" iron rod; THENCE North 33 degrees 19 minutes 18 seconds West for a distance of 168.08 feet to a 3/4" iron rod; THENCE North 37 degrees 06 minutes 14 seconds West for a distance of 256.86 feet to a 3/4"iron rod; THENCE North 49 degrees 50 minutes 46 seconds West for a distance of 353.95 feet to a 3/4"iron rod; THENCE North 58 degrees 29 minutes 26 seconds West for a distance of 237.4 feet to a 3/4" iron rod and the PLACE OF BEGINNING, containing 15.336 acres of land, more or less. 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