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Home My WebLink AboutRES 16-117RESOLUTION NO. 16-117 BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF BEAUMONT: THAT the City Manager is hereby authorized to execute a Management Agreement with Beaumont Council of Garden Clubs (BCGC). 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 5th day of July, 2016. 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-exclusive right during the term of this Agreement to 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 ofthis Agreement shall be for five (5) years commencing on July, 1, 2016 and terminating at 11:59 p.m. on June 30, 2021, 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 July 1, 2016. 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 2 of 11 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 3 of I I 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 basic telephone services, excluding long distance telephone service, basic DSL or U -verse internet services; 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 4 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 Inthe 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 5 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. Page 6of11