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HomeMy WebLinkAboutRES 16-182RESOLUTION NO. 16-182 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-year financial assistance agreement, substantially in the form attached hereto as Exhibit "A," between the Texas Energy Museum and the City of Beaumont in the amount of $95,000 for FY 2017. PASSED BY THE CITY COUNCIL of the City of Beaumont this the 27th day of September, 2016. LU sp" ayor Becky Ames - STATE OF TEXAS § COUNTY OF JEFFERSON § AGREEMENT This agreement between the City of Beaumont, a municipal corporation, herein called "City", and the Texas Energy Museum, herein called "TEM", is as follows: WITNESSETH: WHEREAS, V.T.C.A., Tax Code Section 351.001 et.seq., authorizes the City to levy by ordinance, a hotel tax which may not exceed seven percent (7%) of the consideration paid by a hotel occupant; and WHEREAS, V.T.C.A. Tax Code Section 351.101 (a)(5), authorizes the City to use a portion of the revenues derived from its hotel occupancy tax for historical restoration and preservation projects or activities or advertising and conducting solicitation and promotional programs to encourage tourists and convention delegates to visit preserved historic sites or museums at or in the immediate vicinity of convention center facilities or located elsewhere in the municipality or its vicinity that would be frequented by tourists; and, for projects that directly enhance and promote tourism and convention activities. WHEREAS, under the authority of V.T.C.A. Tax Code Section 351.101(a)(5), the City desires to provide financial assistance to TEM. NOW, THEREFORE, the City and TEM agree as follows: 1. City agrees to pay to TEM the amount of Ninety -Five Thousand ($95,000) Dollars. The payment provided for herein will be made quarterly in the amount of Twenty -Three Thousand Seven -Hundred ($23,750) Dollars per quarter commencing October 1, 2016 from funds as available and collected from the hotel occupancy tax. EXHIBIT "A" Any funds not expended by TEM will be retained by TEM to be reallocated for similar purposes by approval of City. 2. All expenditure of funds shall be reasonably related to the purposes established by V.T.C.A. Tax Code Section 351.101(a)(5). 3. The TEM is an independent contractor and is not an officer, agent or employee of the City. 4. In return for the payments provided for herein, TEM agrees to operate for the period October 1, 2016 to September 30, 2017. 5. The TEM shall submit quarterly reports in the format provided by the City reflecting the activities of TEM as they relate to this contract. The TEM shall submit such reports quarterly commencing January 15, 2017. 6. The City Manager of City or his designated representative shall, upon reasonable notice, have the right to inspect all books and records of the TEM. 7. Upon termination of this agreement or any extension thereof, unless it be renewed, the TEM shall deliver to the City all funds paid under this contract that it may have and all removable personal property that may have been purchased with funds derived from said tax. 8. Funding under this contract will require that should a seminar be held during the term of this contract designed to assure that expenditures of Hotel Occupancy Tax funds are made in compliance with the Act, a representative of TEM will attend the seminar. 9. TEM agrees to indemnify, save harmless, and defend the City of Beaumont from any and all claims, causes of action and damages of every kind arising from the operations of TEM, its officers, agents and employees, including the officers, agents, and employees involved in TEM operation and specifically including herein any and all acts of negligence by the City of Beaumont, its agents, officers or employees, carried out under the terms of this agreement. EXECUTED this the day of , 2016. CITY OF BEAUMONT In ATTEST: City Clerk Kyle Hayes City Manager TEXAS ENERGY MUSEUM, INC. In Name: Title: ATTEST: M Name: Title: STATE OF TEXAS LEASE AGREEMENT L COUNTY OF JEFFERSON § WHEREAS, the City of Beaumont, a municipal corporation of the State of Texas, and the Texas Energy Museum, Inc., a Texas non-profit corporation, entered into an Lease Agreement on the 30th day of June 1988 wherein the City of Beaumont, hereinafter referred to as "Landlord", and the Texas Energy Museum, Inc., hereinafter referred to as "Tenant", agreed to a forty (40) year lease on the land and building to be used as an energy museum; and, WHEREAS, Landlord and Tenant desire to amend such lease in its entirety to read as follows: WITNESSETH: ARTICLE 1 - Description of Lease Premises For and in consideration of payment by Tenant of the rental hereinafter reserved to Landlord and the performance by Tenant of the covenants and agreements hereinafter contained to be performed by Tenant, and in accordance with all of the provisions hereinafter set forth, Landlord does hereby lease and let unto Tenant, and Tenant does hereby take and lease from Landlord, 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 energy museum building, parking facilities, landscaping, and other improvements as may be constructed on the Land by Tenant, which improvements are hereinafter called the "Building" or "Facilities." ARTICLE 2 - Term of Lease The term of this lease shall be for twenty (20) years commencing on the 30th day of December, 2014, and terminating at 11.59 p.m. on the 29th day of December, 2034, if not sooner terminated as hereinafter provided. ARTICLE 3 - Rental Tenant shall pay to Landlord as rent hereunder the sum of ONE DOLLAR ($1.00) per year payable on the 30th day of December, 2014 and on the same day of each calendar year of the term of this Lease commencing on the 30th day of December, 2014. ARTICLE 4 - Use and Occupancy 4.1 Tenant shall use and occupy the leased premises as an energy museum open to the public, for the promotion of energy and for related purposes, including, but not limited to, education purposes, civic purposes, fund raising purposes, and entertainment purposes. Tenant agrees to operate the leased premises as an energy museum during the full term of this Lease. 4.2 Tenant will comply with any and all laws, ordinances, rules, orders and regulations of any governmental authority which are applicable to Tenant's operations in and on the leased premises. 4.3 Nothing contained herein shall prevent Tenant from charging an admission price for persons to visit the energy museum located on the leased premises. City Administration shall be allowed to use facilities when available at no charge for official City of Beaumont business. ARTICLE 5 -Alterations. Additions or Improvements Tenant shall not, without first obtaining the written consent and approval of Landlord, make any alterations, additions or improvements in, to or about the leased premises; provided, however, that such consent shall not be unreasonably withheld. Any work done by Tenant in, to or about the leased premises shall be done in a good and workmanlike manner and without impairing the structural integrity of the Building, and no liens shall attach to the leased premises or to the Building of which same are a part. Similarly, during the term of this Lease, City will not, make any alterations, additions or improvements in, to or about the facilities without first giving notice to Tenant of Landlord's intent. ARTICLE 6 -Activities Increasing Fire Insurance Rates Tenant shall not do or suffer anything to be done in or about the leased premises which will increase the rate for the fire insurance on the leased premises. ARTICLE 7 -Assignment or Sublease Tenant shall not, without first obtaining the written consent of City Manager of Landlord, which consent shall not be unreasonably withheld, assign, mortgage, pledge or encumber this Lease, in whole or in part, or sublet the leased premises or any part thereof. This covenant shall be binding upon the Tenant and every person to whom Tenant's interest under this Lease passes by operation of law. However, Tenant may rent a portion, but not all, of the leased premises for periods not to exceed 72 hours without first obtaining the written consent of the City Manager of Landlord. ARTICLE 8 - Damage to Building 8.1 If the Facilities are damaged by fire or any other casualty, all insurance proceeds for such casualties shall be paid to either Tenant or City, as their interest may appear and as their loss may be allocated. Either City or Tenant may elect to terminate this Lease under the terms hereof should a fire or other casualty loss result in damage to the Facilities in excess of fifty percent (50%) of the replacement cost of such Facilities 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 to terminate the Lease or to elect to rebuild the Facilities. Any rebuilding or reconstruction fo the Facilities 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 Facilities and the cost of making temporary repairs of doing such work as may be necessary to protect the Facilities against further injury. Such proceeds shall be disbursed in accordance with the provisions of paragraph 8.2 hereof. The bank shall be entitled to 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 account. If rebuilding of the Facilities is undertaken by Tenant under this Article, the construction shall be made subject to the approval of City. 8.2 Any monies paid out of the trust fund established under the terms of paragraph 8.1 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 person, if any, to whom such amounts are due. Payments hereunder shall be subject to normal retainage applicable to construction contracts entered in by home -rule cities in accordance with the laws of the State of Texas. 8.3 If the damage to the leased premises is less than fifty per cent (50%) of the replacement cost of the leased premises (exclusive of foundations and the Land) immediately prior to such casualty, then Tenant shall promptly after such casualty commence to repair the damage to the leased premises and restore same to substantially the same condition as existed prior to such casualty. In such event Landlord shall pay to Tenant the proceeds of the insurance paid to Landlord for such casualty loss. 8.4 Notwithstanding anything contained herein to the contrary, if any casualty occurs to the leased premises repair of which shall cost Twenty Thousand and No/100 Dollars ($20,000.00) in excess of the insurance proceeds available for such casualty or which is not covered by insurance (either of such events being hereinafter called an "uninsured loss"), Tenant shall have one hundred eight (180) days after the date of an uninsured loss to elect by written notice to Landlord to either repair an uninsured loss or to terminate this Lease. If Tenant elects to repair the uninsured loss, Tenant shall commence to repair the uninsured loss promptly after the exercise of its election to repair hereunder and shall restore the leased premises to substantially the same condition as existed prior to the uninsured loss. If Tenant elects to terminate this Lease as set forth above on such uninsured loss, then Landlord shall have the option for a period of sixty (60) days after notice of such election to terminate by Tenant to elect to repair the uninsured loss and to continue the lease in full force and effect. If Landlord elects to repair the uninsured loss under the terms of this Paragraph, then Landlord shall promptly proceed to make such repairs as are needed to restore such uninsured loss to the leased premises. If the Tenant and Landlord elect not to repair as provided above, Landlord shall demolish any remaining structures on the leased premises. Tenant upon such demolition shall pay Landlord the cost thereof out of any insurance proceeds up to the full amount thereof. Any cost in excess of the insurance proceeds shall be paid by Landlord. 8.5 Upon any termination of this Lease under any provisions of this Lease other than on a default on the part of Tenant, Tenant shall be entitled to remove all of its furniture, furnishings, and other property of Tenant located on the leased premises. ARTICLE 9 - Insurance and Waivers of Subrogation 9.1 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 Facilities in not less than the full insurable value thereof. Such insurance shall be obtained in the name of City. 9.2 Tenant shall procure and maintain all insurance which it deems necessary for its protection against loss of or damage to any of its property in or on the leased premises. ARTICLE 10 - Eminent Domain 10.1 If the whole or any part of the leased premises shall be taken under the power of eminent domain, this Lease shall terminate as to the part so taken on the date, hereinafter called the "date of taking", that Tenant is required to yield possession of the whole or part of the leased premises so taken. The term date of taking shall also mean and refer to the date of any other transfer of possession of any part or all the leased premises to a condemning authority under power of eminent domain. On any taking of all of the leased premises by power of eminent domain this Lease shall terminate on the date of taking and the rent reserved herein shall abate. If less than all of the leased premises shall be taken by power of eminent domain, then Tenant shall have one hundred eight (180) days after the date of such taking to exercise an option to terminate this Lease or to keep this Lease in full force and effect. Such option shall be exercised by written notice to Landlord. 10.2 All compensation awarded for any taking of the leased premises under power of eminent domain shall be the property of Landlord and Tenant hereby assigns its interest therein to Landlord. 10.3 The term "eminent domain" as used herein shall include the exercise of any similar governmental power and any purchases or other acquisition in lieu of condemnation. ARTICLE 11 - Landlord's Remedies on Default If Tenant defaults in the payment of rent payable hereunder, or either party hereto defaults in the performance of any of the other covenants or conditions hereof, such non defaulting party may give the other party notice of such default; and if Tenant does not cure any default covering the payment of Rent or other sums of money hereunder within thirty (30) days, or other default within sixty (60) days, after the receipt of such notice (or if the default is of such nature that it cannot be completely cured within such period of time, if Tenant does not commence curing such default within such sixty (60) days and thereafter proceeds with reasonable diligence to cure such default), then Landlord may terminate this Lease by written notice to Tenant, or in the alternative Landlord may reenter and take possession of the leased premises and remove all persons and property therefrom, without being deemed guilty of any manner of trespass. If this Lease shall have been terminated by Landlord, Landlord may at any time thereafter resume possession of the leased premises by any lawful means and remove Tenant or other occupants and their belongings and property therefrom. ARTICLE 12 - No Waiver of Covenants or Conditions The failure of either party to insist on strict performance of any covenant or condition thereof, 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. ARTICLE 13 - Quiet Enjoyment Landlord covenants that if, and so long as, Tenant pays the rent herein reserved and performs the covenants hereof, Tenant shall peaceably and quietly have, hold and enjoy the leased premises for the term of this Lease, subject to each and all of the covenants and provisions of this Lease. ARTICLE 14 - Headings The headings of the several Articles in this Lease are intended for convenience and reference purposes only and shall not be taken into consideration in any construction or interpretation of this Lease or any of its provisions. ARTICLE 15 - Binding Effect The provisions of this Lease shall apply to, bind, and inure to the benefit of the Landlord and Tenant and their respective heirs, executors, administrators, successors and assigns; provided, however, that the inclusion of assigns in this sentence shall not be construed to permit any assignment in violation of the covenants herein contained. ARTICLE 16 - Construction 16.1 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. 16.2 In the event that any provision hereof, or the application thereof to any person or circumstance, shall be adjudged invalid or unenforceable, the remainder of this Lease, or the application of such provision to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby, and each term and provision of this Lease shall be valid and enforced to the fullest extent permitted by law. 16.3 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. 16.4 Any notice or demand required or permitted to be given by the terms of this Lease shall be in writing and shall be deemed to have been duly given only if delivered personally or 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 addressed to the parties at their respective addresses set forth above, or to such other address as the parties may later designate by written notice given as provided herein. Notice shall be to have been duly given, if delivered personally, upon the delivery thereof, and if mailed, upon the earlier of (a) the actual receipt thereof, or (b) three (3) business days after the mailing thereof, provided that such notices, if mailed, are addressed and transmitted as herein required, with full postage prepaid. ARTICLE 17 - Maintenance During the term of this lease agreement Tenant shall be responsible for all general upkeep of the Facilities. City will be responsible for the general structural maintenance of the building, HVAC system operation including annual checks and replacement of filters, pest control inspections and treatment, roof, exterior windows, and major repair of the elevator. Tenant will be responsible for grass cutting and trimming. Tenant will be responsible for all utilities, including gas, electrical, water and garbage collection costs, telephone and cable television or other communication devices. Tenant will also be responsible for routine maintenance, routine plumbing, janitorial service, replacement of luminaries, interior painting and inspection and general maintenance of the elevator. Tenant will be responsible for the maintenance and repair of the fire alarm system and security systems. Tenant is also responsible for the monitoring of these systems. IN WITNESS WHEREOF, Landlord and Tenant have executed (or caused to be executed by their duly authorized officers or agents) this Lease, all as of the day and year first above written. CITY OF BEAUMONT � s r Kyle Hayes, City Manager Date: '1 - Z 8-(L TEXAS ENERGY MUSEUM, INC. By: Ryan S Ex utive Director Date: g/')L07) � STATE OF TEXAS § COUNTY OF JEFFERSON § GREEMENT This agreement between the City of Beaumont, a municipal corporation, herein called "City", and the Texas Energy Museum, herein called "TEM", is as follows: WITNESSETH: WHEREAS, V.T.C.A., Tax Code Section 351.001 et.seq., authorizes the City to levy by ordinance, a hotel tax which may not exceed seven percent (7%) of the consideration paid by a hotel occupant; and WHEREAS, V.T.C.A. Tax Code Section 351.101 (a)(5), authorizes the City to use a portion of the revenues derived from its hotel occupancy tax for historical restoration and preservation projects or activities or advertising and conducting solicitation and promotional programs to encourage tourists and convention delegates to visit preserved historic sites or museums at or in the immediate vicinity of convention center facilities or located elsewhere in the municipality or its vicinity that would be frequented by tourists; and, for projects that directly enhance and promote tourism and convention activities. WHEREAS, under the authority of V.T.C.A. Tax Code Section 351.101(a)(5), the City desires to provide financial assistance to TEM. NOW, THEREFORE, the City and TEM agree as follows: 1. City agrees to pay to TEM the amount of Ninety -Five Thousand ($95,000) Dollars. The payment provided for herein will be made quarterly in the amount of Twenty -Three Thousand Seven -Hundred ($23,750) Dollars per quarter commencing October 1, 2016 from funds as available and collected from the hotel occupancy tax. Any funds not expended by TEM will be retained by TEM to be reallocated for similar purposes by approval of City. 2. All expenditure of funds shall be reasonably related to the purposes established by V.T.C.A. Tax Code Section 351.101(a)(5). 3. The TEM is an independent contractor and is not an officer, agent or employee of the City. 4. In return for the payments provided for herein, TEM agrees to operate for the period October 1, 2016 to September 30, 2017. 5. The TEM shall submit quarterly reports in the format provided by the City reflecting the activities of TEM as they relate to this contract. The TEM shall submit such reports quarterly commencing January 15, 2017. 6. The City Manager of City or his designated representative shall, upon reasonable notice, have the right to inspect all books and records of the TEM. 7. Upon termination of this agreement or any extension thereof, unless it be renewed, the TEM shall deliver to the City all funds paid under this contract that it may have and all removable personal property that may have been purchased with funds derived from said tax. 8. Funding under this contract will require that should a seminar be held during the term of this contract designed to assure that expenditures of Hotel Occupancy Tax funds are made in compliance with the Act, a representative of TEM will attend the seminar. 9. TEM agrees to indemnify, save harmless, and defend the City of Beaumont from any and all claims, causes of action and damages of every kind arising from the operations of TEM, its officers, agents and employees, including the officers, agents, and employees involved in TEM operation and specifically including herein any and all acts of negligence by the City of Beaumont, its agents, officers or employees, carried out under the terms of this agreement. K_. EXECUTED this the � day of 2016. CITY OF BEAUMONT L IL By: Kyle Hayes City Manager ATTEST: ►`;x3t J.1N go City Clerk TEXAS ENERGY MUSEUM, INC. By: N a me: Title:c���Z� _ ATTEST: By: Name: /" ftQ arc /ti Title: .CD f deer