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HomeMy WebLinkAboutRES 04-167 RESOLUTION NO. 04-167 BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF BEAUMONT: THAT the City Council hereby approves awarding a thirty (30) year lease agreement to Industrial Safety Training Council (ISTC) for the management and operation of the Beaumont Fire Training Grounds located on Marina Drive. The agreement is substantially in the form 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 27th day of July, 2004. - Mayor Evelyn M. Lord - a STATE OF TEXAS § COUNTY OF JEFFERSON § LEASE AGREEMENT THIS AGREEMENT entered effective the day of 200 by and between the City of Beaumont, a home-rule city, herein called LESSOR, and Industrial Safety Training Council, herein called LESSEE. WITNESSETH : LESSOR does by these presents lease and demise unto LESSEE the property described on Exhibit "A" (leased premises) and made a part hereof for all purposes for a term of three hundred sixty (360) months, beginning on September 1, 2004 and ending on August 31, 2034, (the "Primary Term") to be used for its lawful purpose and paying therefor rent in the following amounts: 1. Monthly base rental of $11,111.11 for the first 168 months with the base rent for the first 18 months ($200,000) payable upon execution of this Lease; then $8,700.00 per month for the remaining 192 months of the primary term. Payments of base rent are due on the 1'day of each month. In addition to base rental, LESSEE shall pay additional rent based upon the increase in the Houston/Galveston/Brazoria Consumer Price Index (C.P.I.) as reported by the United States Department of Labor, Bureau of Labor Statistics, to be calculated as follows: The year 2005 will be the base year for calculations hereunder. Thereafter, beginning on the 25' month of this lease, an adjustment based on the increase in the C.P.I. will be added to the monthly payment annually through the first fourteen (14) years of the lease. Rental beginning in the fifteenth (15th) year will be calculated at $8,700 per month plus an adjustment based on the increase in the C.P.I. from 2005 t EXHIBIT "A" Page 1 G:WMWU,GREEMENTSUSTC-FIRE TRNG GRNDS.WPD until 2016 (the 14th year of the lease) (e.g. If the C.P.I. has increased a total of 15% over that period, the monthly rental in the 15th year would be $10,005 [$8,700 plus 15% of $8,700 or $1,305]). The C.P.I. escalator will be applied each year thereafter during the term of the lease. Rental shall be due on the dates stated above. Rental payments which are paid after the last day of each month shall be assessed a $500 late fee; unpaid rental after such thirty (30) day grace period shall bear interest at ten percent (10%) per annum and such failure to make a timely payment shall be considered a breach of this lease. 2. If LESSEE is not then in default, it may renew this Lease for an additional term to be agreed upon between LESSOR and LESSEE no later than one year prior to the expiration of the primary term. 3. LESSEE shall pay rental installments to LESSOR in person at 801 Main Street, Suite 110, Beaumont, Texas, 77701, or by mail at P. 0. Box 3827, Attn: Cash Management Division, Beaumont, Texas, 77704, or at such other place as LESSOR may from time to time instruct LESSEE in writing. 4. LESSEE shall take good care of the property and its fixtures, and suffer no waste. 5. LESSEE has inspected the premises and agrees to accept possession of the premises in its present condition. 6. LESSEE shall be responsible for the erection and maintenance of all signs and trade fixtures on the leased premises relating to LESSEE'S programs. Page 2 GARMW\AGREEMeNTSUSTC-FIRE TRNG GRNDS.WPD 7. LESSEE will use the leased premises for emergency services educational purposes. LESSEE will allow LESSOR to send up to three (3) students free of charge to attend any such class presented by LESSEE. 8. LESSEE recognizes that various hazardous and environmentally dangerous products are necessary to the educational process of teaching fire technology and assumes full and complete responsibility for all spills, leaks and/or environmental liability that may occur as a result of LESSEE'S operations on the leased premises. LESSOR currently has permits from the Railroad Commission of Texas, the Texas Commission on Environmental Quality, Texas General Land Office and the Environmental Protection Agency which are necessary for operation of the leased premises as a fire training facility. LESSOR will maintain any and all permits required by any governmental body having jurisdiction which are necessary to the operation of the property as a training facility as in periods prior to this Lease, and LESSEE will reimburse LESSOR for LESSOR'S expenses in maintaining said permits. Should any of these permits be revoked or lost for any reason such that LESSEE may no longer be allowed to continue its use of the premises, this lease shall terminate at LESSEE'S option and rent shall be prorated to the date of such event. 9. LESSEE shall be solely responsible for all maintenance, repairs, capital expenditures, operational costs and overhead of the lease premises during the term of this lease. It is the intent of the parties that LESSOR shall have no obligation to incur any costs associated with the use, occupancy or operation of the lease premises during the term of this lease, except utility costs associated with LESSOR's use of its office and classroom. Page 3 GARMWWGREEMENTsXISTC-FIRE TRNG GRNDS.wPD 10. LESSEE will be responsible for payment of all utilities, including water and sewer usage, except that associated with LESSOR's classroom and office on the lease premises. 11. LESSEE shall, in case of fire or other casualty damage, give immediate notice to LESSOR. If the premises are so damaged as to be unfit for occupancy, LESSOR or LESSEE may elect to terminate this lease, in which case LESSEE rental will be prorated to the date of such damage. 12. The LESSOR shall have access to all projects and facilities to train its firefighters a minimum of nine (9) days per month upon written consent from LESSEE, which consent shall not be unreasonably withheld, and at times that do not conflict with LESSEE'S use of the premises. LESSOR will maintain the Beaumont Fire/Rescue classroom and one (1) office on the premises to conduct Beaumont Fire Department training classes. LESSEE is free to use the "brown" classroom, but not the Beaumont Fire/Rescue classroom, if available, upon 10 days advance notice to LESSOR. LESSOR shall have access to the "drafting pit" for testing of its pumps. 13. LESSOR has previously scheduled events on the premises and LESSEE agrees to honor the scheduled dates and rates for such use of the premises by others during the year 2004, limited to those listed on Exhibit "B" attached hereto. 14. LESSEE will adopt rules for the use of the property and the hours of operation, and will provide copies of same to LESSOR for its consent and comment by December 31, 2004. LESSOR's consent will not be unreasonably withheld. 15. In case of default in any of the covenants herein, LESSOR may enforce the performance of this lease in any manner provided by law, and this lease may be c Page 4 GARMMAGREEMENTSUSTC-FIRE TRNG GRNDS.wPD forfeited at LESSOR'S discretion if such default shall continue for a period of sixty (60) days after LESSOR notifies LESSEE of such default and its intention to declare the lease forfeited. Such notice to be sent by certified mail to LESSEE'S address as shown herein or delivered to LESSEE in any other manner, including leaving such notice at the demised premises. Unless LESSEE shall have completely removed or cured said default, this lease shall cease and come to an end as if that were the day originally fixed herein for the expiration of the term and LESSOR'S agent or attorney shall have the right, without further notice or demand, to re-enter and remove all persons and LESSEE'S property therefrom without being deemed guilty of any manner of trespass. 16. LESSOR shall not be liable to LESSEE or to LESSEE'S employees, patrons, or visitors, for any damage to person or property due to the buildings on said premises or any appurtenances thereof being improperly constructed, or being or becoming out of repair, nor for any damage from the defects or want of repair of any part of the building of which the leased premises form a part, but the LESSEE accepts such premises as suitable for the purposes for which same are leased and accepts the buildings and each and every appurtenance thereof, and waives defects therein and agrees to hold the LESSOR harmless from all claims for any such damage. LESSOR and LESSEE will conduct an examination of the property upon commencement of this Lease and will prepare a written condition inventory of the buildings and improvements, signed by authorized agents of LESSOR and LESSEE, which will conclusively establish the condition of the buildings and improvements upon commencement of this Lease. Page 5 GARMMAGREEMENTSUSTC-FIRE TRNG GRNDS.WPD 17. To the extent allowed by law, and only to the extent of insurance coverage actually paid by LESSEE'S insurers, LESSEE agrees to indemnify and hold LESSOR harmless against any and all claims, demands, damages, costs and expenses, including reasonable attorney fees for the defense thereof, arising from the conduct or management of LESSEE'S use of the leased premises or from any breach on the part of LESSEE of any conditions of this lease, or from any act of negligence or allegation of negligence of LESSEE or LESSOR, their officers, employees, agents, contractors, subtenants, concessionaires, or licensees in or about the leased premises. 18. If, during the term of this lease, there is a taking of the leased premises or so large a part thereof as to render the remainder unsuitable for the continuation of LESSEE'S activities by any governmental authority under the power of eminent domain, then the LESSOR may elect to terminate this lease or to continue the same in effect but if LESSOR elects to continue the lease, the rental hereunder shall be reduced proportionately to the same extent, that the leased premises are taken. The provisions hereof shall be applicable to any conveyance in lieu of condemnation proceedings. All sums awarded or agreed upon between LESSOR and the condemning authority for the taking of the fee or the leasehold interest, whether as damages or as compensation, shall be the property of the LESSOR. Any amount specifically awarded to the LESSEE by the condemning authority for the taking of tenant's trade fixtures or other equipment shall be the property of the LESSEE. Page 6 GARMMAGREEMENTMISTC-FIRE TRNG GRNDS.wPD 19. During all times this lease is in effect, LESSEE must, at LESSEE'S expense, maintain in full force and effect from an insurer authorized to do business in Texas public liability insurance and other coverages as set out in Attachment "A" in the bid document covering operations hazards in an amount not less than $1,000,000 per occurrence, $5,000,000 in the aggregate on an occurrence basis naming LESSOR as a named insured. Should LESSOR determine at anytime during the term of this lease that the amount of the above coverage is inadequate, it shall notify LESSEE, in writing to increase the amount of such insurance to a higher amount as determined by LESSOR. 20. LESSEE, with approval of LESSOR, and at its own expense, may make alterations, additions and improvements in and to said premises. All such alterations, additions and improvements shall belong to LESSOR and become a part of the premises so demised unless LESSOR and LESSEE agree otherwise in writing. 21. LESSEE agrees to abide by the LESSOR's "Spill Prevention Control Encounter Measure Plan" (herein "Plan"), attached hereto as Exhibit "C," specifically including, but not limited to, maintaining the existing trailer and booms and spill kits and not using them in any training. 22. At the termination of this lease, by lapse of time or otherwise, LESSEE agrees to surrender and yield to LESSOR immediate peaceful possession of the leased premises, together with all additions and improvements thereto which are not allowed by LESSOR to be removed; to surrender and turn over to LESSOR all keys to said premises, and deliver possession of the premises in as good condition as received, Page 7 GARMMAGREEMENTMISTC-FIRE TRNG GRNDS.wPD ordinary wear and tear and damages by casualty not caused by the negligence or willful act of LESSEE, its agents, servants, or employees excepted. 23. LESSOR shall have the right to assign in whole or in part, each and every, all and singular its rights under this lease agreement and to convey all or any part of the property and improvements the subject hereof, subject however to the terms and conditions thereof. 24. It is expressly understood, covenanted and agreed, anything to the contrary herein appearing notwithstanding, that upon the expiration of this lease and any renewal or extension thereof, the above-described property shall remain the property of LESSOR, together with all improvements, alterations and additions thereto, except such as LESSOR expressly allows to be removed by LESSEE. LESSEE agrees to repair any and all damage to said premises caused by removal of any improvement, alteration or additions so allowed to be removed by LESSOR. 25. Any holding over by LESSEE after the expiration of the primary term of this lease shall operate as a tenancy from month-to-month at a rental of $8,700 per month plus an escalation amount as defined in paragraph 1 hereof. 26. Words of any gender used in this lease shall be held and construed to include any other gender, and words in the singular number shall be held to include the plural, unless the context otherwise requires. Page 8 c GARMWb{GREEMENrs\1STC-FIRE TRNG GRNDS.WPD 27. It is not a waiver of default if the non-defaulting party fails to declare immediately a default or delays in taking any action. Pursuit of any remedies set forth in this lease does not preclude pursuit of other remedies in this lease as provided by law. 28. LESSOR and LESSEE shall submit in good faith to mediation before filing a suit for damages. 29. All of the covenants, agreements, terms and conditions to be observed and performed by the parties hereto shall be applicable to and binding upon their respective successors and, to the extent assignment is permitted hereunder, their respective assigns. 30. This agreement shall be construed under and in accordance with the laws of the State of Texas. 31. Venue is in the county in which the premises are located, i.e. Jefferson County. 32. Nothing herein contained shall be deemed or construed by the parties hereto, nor by a third party, to be a creation of the relationship of principal and agent, or of partnership, or of joint venture between the parties. Neither computation of rent, nor any other provision contained herein, nor any acts of the parties hereto, shall be deemed to create any relationship between the parties thereto, other than the relationship of landlord and tenant. 33. Time is of the essence in the performance of all of the obligations hereunder. c Page 9 GARMMAGREEMENTMISTC-FIRE TRNG GRNDS.wPD 34. This lease, together with the attached exhibits, is the entire agreement of the parties, and there are no oral representations, warranties, agreements, or promises pertaining to this lease or to the expressly mentioned exhibits not incorporated in writing in this lease. 35. This lease may be amended only by an instrument in writing signed by LESSOR and LESSEE. 36. LIMITATIONS OR WARRANTIES. THERE ARE NO IMPLIED WARRANTIES OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, OR OF ANY KIND ARISING OUT OF THIS LEASE, AND THERE ARE NO WARRANTIES THAT EXTEND BEYOND THOSE EXPRESSLY STATED IN THIS LEASE. THE LEASED PREMISES ARE LEASED "AS IS," "WITH ALL FAULTS." 37. Any notices required by this lease shall be deemed to be delivered (whether or not actually received) when deposited with the United States Postal Service, postage prepaid, certified mail, return receipt requested, and addressed to LESSOR or LESSEE at their address. 38. LESSOR may retain, destroy, or dispose of any property left on the premises at the end of the term. 39. Up to five (5) of LESSOR'S employees who are designated by LESSOR to LESSEE in writing as authorized by LESSOR to enter the property shall have access to the leased premises at all times the facility is open so long as the use by LESSOR'S authorized employees does not interfere with LESSEE'S use of the leased premises. 40. LESSEE shall be responsible for remediation of any environmental spill or other such event that may occur during the term of this lease so long as the spill or Page 10 GARMMAGREEMENTSUSTC-FIRE TRNG GRNDS.wPD other such event is not the result of the sole negligence of LESSOR. LESSEE shall purchase remediation insurance in the principal amount of$2,000,000 naming LESSOR as a named insured to fund its obligations under this provision of this lease. LESSEE's obligations under this provision shall be limited in amount by the coverage of such insurance actually paid by LESSEE'S insurers. EXECUTED on the date first above written at Beaumont, Jefferson County, Texas. LESSEE: INDUSTRIAL SAFETY TRAINING COUNCIL By: LESSOR: CITY OF BEAUMONT By: Kyle Hayes, City Manager c Page 11 GARMW AGREEMENTSUSTC-FIRE TRNG GRNDS.wPD