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HomeMy WebLinkAboutRES 04-179 RESOLUTION NO. 04-179 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 one-(1) 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. A copy of the original agreement and the last annual Extension of Lease 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 10th day of August, 2004. I IMO, � ® let 2 10 - Mayoivpro Tern Becky Ames - t14 ®s 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, BCP was granted a one (1) year extension on August 9, 2002 which expired August 9, 2003; and WHEREAS, said lease may only be amended by the parties in writing executed by BCP and the City Manager of City; and WHEREAS,City and BCP desire to extend the expiration date for said lease for one (1) additional year; NOW, THEREFORE, the City and BCP agree as follows: 1.01. The Development and Lease Agreement between City and BCP is hereby extended to terminate August 9, 2004. 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 Qb2cuMENTS AND SETTINGS\BRENDAWY D0c:UMENTSkWPD0CSUXASEs1BMT.COMM.PLAYERSUXASE-EXTENSIONS 2.WPD If 1 EXHIBIT "A" 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 21st day of AUGUST , 2003. CITY OF BEAUMONT BEAUMONT COMMUNITY PLAYERS By: By: dz�� Kyle Hayes, City Manager Beverly re ckman, President Page 2 Qb&UMENTS AND SETTINGS\BRENDAWWY DOCUMENTS\WPDOCS\LEASES\BMT.COMM.PLAYERS\LEASE-EXTENS1002MM I d STATE OF TEXAS § COUNTY OF JEFFERSON § DEVELOPMENT AND LEASE AGREEMENT This Development and Lease Agreement is entered into this the day of 2000, by and between the City of Beaumont, a municipal corporation of the State of Texas (hereinafter referred to as "City"), and Beaumont Community Players, a non-profit corporation of the State of Texas (hereinafter referred to as "BCP"). WITNESSETH : WHEREAS, BCP desires to construct a community theater building on land owned by City at an approximate cost of$1.5 million and give said theater building to City at the completion of construction and thereafter lease the theater building and land (herein the "Facility") as a community theater for the benefit of the citizens of Beaumont and Southeast Texas; and WHEREAS, City has Property available, said Property being described in Exhibit "A" attached hereto and made a part hereof for all purposes (herein the "Property"), and wishes to allow BCP the use of the Property for purposes of construction of a theater structure and then lease the structure to BCP. G:1RMtMBCPAGR Page 1 of 10 F 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. G:1RMW18CP.AGR Page 2 of 10 1 f 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 31st 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:VRMWOCPAGR Page 3 of 10 . 1 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 G: CPAGR Page 4 of 10 i 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:1RMW16CPAGR Page 5 of 10 t 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:V ArtW1BCPAGR Page 6 of 16 ' . I 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:1RMW18CPAGR Page 7 of 10 t t 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 G: WOCPAGR Page a of 1 o F 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�r 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 GARMWOCPAGR Page 9 of i o f i _ of use), and expenses including court costs and attorney's fees, and reasonable costs p 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. ot�c By: �- G Stephen J. oncze , ity Manager resident A S G:1f2Mw0CP.AGR Page 1 o of 1 o f t "EXMIT A-1" `=h 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 comer 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 comer of Lot 178 and the Northwest comer 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 "OBIT A-2" o N m O Rj-EgNS SrREE � m ® N t Ir P.0 B. / O 177 178 / 179 ® O co 5 o 0 AREA=46,871 v ® /e3 on. !76 \ 175 far co 7 • 0 74 !73 / 044,C-1 �STREF!' t p o m O � O COLLEGE ® PZT4RL f l BVUWN BY- B.TRISTAN SC4I�.• 1"'=60'