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HomeMy WebLinkAbout022493 ORD - 02/20/1996AN ORDINANCE AUTHORIZING THE CITY MANAGER, OR HIS DESIGNEE, TO EXECUTE A ONE YEAR LEASE WITH THE CORPUS CHRISTI ART FOUNDATION FOR THE ART MUSEUM OF SOUTH TEXAS BUILDING, IN CONSIDERATION OF FOUNDATION OPERATING THE MUSEUM FOR THE BENEFIT OF THE PUBLIC ANDTO FURTHER PUBLIC APPRECIATION OF ART; AND DECLARING AN EMERGENCY. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF CORPUS CHRISTI, TEXAS: SECTION 1. That the City Manager, or his designee, is hereby authorized to execute a one (1) year lease with the Corpus Christi Art Foundation ("Foundation") for the Art Museum of South Texas Building, in consideration of the Foundation operating the museum for the benefit of the public and to further public appreciation of art. A copy of the lease is on file with the City Secretary. SECTION 2. That upon written request of the Mayor or five Council members, copy attached, to find and declare an emergency due to the need for immediate action necessary for the efficient and effective administration of City affairs, such finding of an emergency is made and declared requiring suspension of the Charter rule as to consideration and voting upon ordinances at two regular meetings so that this ordinance Owassed and shall take effect upon first reading as an emergency measure this the 2.1) day of 1-f in rub, ✓l.1 , 1996. ATTEST: City Secretary THE CITY OF CORPUS CHRISTI MAYOR The City of Corpus Christi APPROVED THIS THE I rJ DAY OF 4 A , 1996. By: Alison Galla ay Assistant City Attorney AG\96\5000.874.vr 09, 3 hleRut ttj%tu Corpus Christi, Texas 2-0 day of %_ Yu'wtirl 19 ci c; TO THE MEMBERS OF THE CITY COUNCIL Corpus Christi, Texas For the reasons set forth in the emergency clause of the foregoing ordinance an emergency exists requiring suspension of the Charter rule as to consideration and voting upon ordinances at two regular meetings: I/we, therefore, request that you suspend said Charter rule and pass this ordinance finally on the date it is introduced, or at the present meeting of the City Council. Respectfully, Respectfully, MAYOR THE CI OF CORPUS THE CI OF CORPUS CHRISTI Council Members The above ordinance was passed by the following vote: Mary Rhodes Dr. Jack Best Betty Black Melody Cooper Tony Heldenfels Betty Jean Longoria John Longoria Edward A. Martin Dr. David A. McNichols AG\96\5000.874.vr �3 a, ART MUSEUM OF SOUTH TEXAS LEASE AGREEMENT THE STATE OF TEXAS § COUNTY OF NUECES § WHEREAS, the Corpus Christi Art Foundation ("Foundation") constructed the Art Museum of South Texas building ("Museum") on property owned by the City of Corpus Christi, ("City"); and WHEREAS, Foundation conveyed the Museum to the City; and WHEREAS, the City has leased the Museum to the Foundation continuously since the original lease dated February 18, 1970 through the most recent lease dated January 17, 1991, authorized by ordinance No. 021068; and WHEREAS, the City desires to lease the Museum to Foundation for a term of one (1) year in consideration of the terms and conditions and mutual promises set out below. NOW, THEREFORE, the City and the Foundation hereby agree as follows: 1. Premises. This Lease covers the building located in the Bayfront Arts and Science Park known as the Art Museum of South Texas. 2. Definitions. Whenever used in this Lease, the following terms shall have the meanings ascribed to them as set forth in this paragraph, to wit: A. Foundation shall mean the Corpus Christi Art Foundation, a nonprofit Texas corporation. B. City shall mean the City of Corpus Christi, a Texas home -rule municipal corporation. C. City Council shall mean the City Council of the City of Corpus Christi. D. City Manager shall mean the City Manager of the City, or his designee. E. Museum shall mean the Art Museum of South Texas and its successor. F. Building shall mean the building housing the Museum. H:\ 95ag0800.023.vr 2 3. Consideration. As consideration for the use of the Museum and the providing of said services and/or funds by the City, the Foundation hereby covenants and agrees to operate and manage the Museum in accordance with the terms and conditions of this Lease and to provide or authorize and supervise the providing of exhibits, functions, programs and events therein involving art activities, art education, and similar cultural functions in the manner as hereinafter set forth. 4. Term. This lease shall be for a term of one (1) year, beginning March 1, 1996 and expiring automatically on the effective date of a 10 -year lease. 5. City's Obligations. A. The City agrees to provide and pay the cost of fire and extended coverage insurance on the structure of the Building as part of the City's insurance program. B. City will pay to Foundation an agreed maximum sum each fiscal year, subject to appropriation, to be used to offset the cost of providing janitorial services, interior and exterior maintenance services, utility services (including electricity, water, sewage collection, gas and garbage collection, but excluding telephone); security services; fire and extended insurance coverage on the Building. Maintenance services will be limited to the care and upkeep of the Building and the area surrounding the Building, the operation and maintenance of ventilation system, including both heating and cooling facilities; the maintenance of mechanical and electrical equipment which is a part of the Building; and the maintenance of the physical structure of the Museum. Security services and janitorial services shall include labor, equipment and supplies needed to provide said services. C. City will maintain exterior grounds. City will use its best efforts to provide adequate parking and access to parking for Museum members and guests including providing signs directing visitors to the Musuem parking lots. City and City's agents will endeavor to provide at least thirty (30) days advance notice of an event using the barge dock area which will limit access or preclude visitor parking. D. The amount, if any, to be paid by the City to the Foundation annually shall be as adopted by the City Council in the approved City fiscal year budget. When the City has paid the budgeted amount for the above services and expenditures, it shall have no other obligation to the Foundation for maintenance, utilities, insurance, custodial, or security expenditures except expenditures for maintenance of the grounds outside the Building for which the City shall be directly responsible. The City will not reimburse the Foundation should it incur expenditures for outside ground maintenance without the City Manager's prior written approval. H:\ 95ag0800.023.vr 3 E. The Foundation shall submit its annual budget request, according to the City's regular budget procedure. The request will be subject to the usual review and appropriation process. The Foundation will submit requests for payment monthly in the amount of one -twelfth of the annual appropriation and City shall pay such requested amounts until the total appropriation for payment to the Foundation for the particular fiscal year has been expended. Each such request for reimbursement shall be approved by an officer of the Foundation or an employee authorized in writing by the Foundation to submit such requests. F. The City Council may, at its discretion, provide additional funds to assist in the carrying out of functions, programs, and events within the Museum by or under the authorization of the Foundation in accordance with the spirit and terms of this Lease. G. The Foundation recognizes that the continuation of any expenditure by the City, after the close of any fiscal year of the City, which fiscal year ends on July 31 annually , shall be subject to appropriations and budget approval providing for such expense as an expenditure in said budget. The City does not represent that said budget item will be actually adopted, said determination being within the sole discretion of the City Council at the time of adoption of such budget. 6. Foundation Obligations. The Foundation agrees to operate the Museum for the benefit of the general public and agrees that the general exhibits, functions, programs, and events held, conducted and/or presented therein by or under the authorization of the Foundation shall be open and available for the attendance of and/or participation and support of the general public and stipulates that any and all law-abiding residents of South Texas are eligible for membership. In operating the Museum, the Foundation shall have complete control over the planning, execution, and presentation of all exhibits, functions, programs, and events. In the ordinary course of providing or authorizing functions, programs, exhibits, and events under and in accordance with this Lease the Foundation may, without the prior consent thereto of the City Manager, enter into written contracts and agreements of a routine nature and of more than 90 days duration, with such contracts and agreements being in accordance with and subject to the terms and provision of this Lease. Exhibits, functions, programs, and events exclusively for members of the Foundation and/or for members of similar cultural organizations may be held, conducted or presented in the Museum by or under the authorization of the Foundation only at such times and only in such manner as not to interfere with the operation of the Museum for the benefit of the public during normal opening hours. H:\ 95ae0800.023.vr 4 7. Personal Property of the Foundation. The Foundation shall provide, or otherwise acquire, any necessary furnishings and special equipment in the Building, including but not limited to display lighting, which furnishings and equipment are to be used in functions, programs, and events at the Museum. Said furnishings and special equipment shall be maintained by or under the authorization and direction of the Foundation. The Foundation shall have the right to remove from the Museum, or to authorize and direct the removal of, all personal property not belonging to or under the custody, care, or control of the City unless such personal property is attached to the Museum in such manner that the removal of same would damage the Building, in which latter event said attached personal property shall become the property of the City at the time of expiration or other termination of this Lease without further process of law. All personal property of any nature, regardless of ownership which is or may be placed in the Museum temporarily or permanently and which is not maintained by the City, shall be maintained by or under the authorization and direction of the Foundation in a manner satisfactory to the City. No property owned by or under the care, custody, or control of the City shall be sold or otherwise disposed of by or under the authorization or direction of the Foundation. 8. Alterations to the Building. The Foundation shall not make or allow any structural alterations to the Museum; construct or allow any additions to the Museum nor additional buildings on City property without the prior written approval of the City Council. 9. Signs. Exterior signs may be installed, subject to prior written approval of the City Manager. Subject to zoning regulations, the Foundation shall be entitled to install lettering on the side of the Museum building showing the name of the facility to create visibility to traffic from North beach and along Ocean Drive. The Museum shall also be entitled to drape from the side of the Museum temporary signs in the form of large banners announcing exhibits without having to procure the prior approval of the City Manager provided that such banners are in compliance with zoning requirements and can be removed if objected to by the City Manager after installation. Nothing in this paragraph shall be construed to require the City Manager to approve art work placed on the Museum walls or sculptures placed on the Museum grounds, whether part of a temporary exhibit or a permanent exhibit. H:\95ae0800.023.vr 5 10. City Use of the Building. The Building may be used by the City for meetings and similar functions provided such meetings and similar functions do not conflict with prior commitments made by the Foundation under and in accordance with the Lease. City shall not be required to make any payment therefor to Foundation other than reimbursement for any extra costs for security personnel, overtime to staff employees, and other out of pocket expenses incurred by the Foundation in making the Building available. The City agrees to enter into a facility use contract of the type utilized by the Museum for outside groups. In addition, qualified City officials or employees shall have the right to enter, examine, and inspect all portions of the Museum at all reasonable times. As used in the preceding sentence, the term "qualified City officials or employees" shall mean the Mayor and other members of the City Council and the City Manager. 11. Third Party Use of the Museum. The Foundation shall have the right to authorize individuals, groups of individuals, or organizations ("Third Parties") to use portions of the Museum for a purpose or purposes for which the Foundation is herein authorized to use the Museum, including the use of portions of the Museum for office purposes. All of said use by Third Parties shall be subject to and in accordance with the spirit and terms of this Lease and shall be under the direction and supervision of the Foundation. The Foundation shall not enter into any written contract or agreement with a third party for use of the Museum, including a concession contract or agreement, regarding the operation or use of the Museum for longer than ninety (90) days without the prior written consent of the City Manager. For all purposes incident to the obligations, covenants and agreements of the Foundation contained in this contract, use of the Museum by Third Parties under the authorization, supervision, and direction of the Foundation shall be deemed to be the use of the Museum by the Foundation. 12. Compliance with Laws. The Foundation will comply, and will require all Third Parties using the Museum in accordance with Section 11. hereof to comply, with all local, state, and federal rules, ordinances, laws, regulations, and with the provisions of the City Charter in the operation and management of the Museum and in all exhibits, functions, programs, and events held, conducted, or presented in the Museum. 13. Insurance. A. The Foundation shall carry with an insurance company or companies satisfactory to the City Manager a comprehensive general liability insurance policy covering bodily injury and property damage in reasonable amounts as approved by the City Manager. Said policy shall name the City as additional insured. H:95ag0800.023.vr 6 B. The Foundation shall also adequately insure all property, including artwork as Foundation deems advisable but excluding the Building, for which it is custodian or trustee so as to protect itself from claims which might arise from the loss of, damage to, or destruction of said property. C. The Foundation shall also provide workers' compensation insurance which complies with state law. A copy of the Certificate(s) of Insurance, for the coverages required by 13 A. and B. shall be provided to the City's Risk Management Department, prior to the execution of this Lease. The Policy(ies) shall provide that the Director of Convention Facilities be given at least thirty (30) days written notice of cancellation, material change, or intent to not renew any insurance coverages required hereunder. Upon the City Manager's written request, the lessee shall provide copies of all insurance policies to the City Attorney within 10 working days after the written request therefor. 14. Indemnity. The Foundation hereby covenants and agrees to assume all risks of whatsoever kind or character incident to or arising out of the use and occupancy or management and operation of the Museum by the Foundation under this Lease and does hereby covenant and agree to defend, indemnify, and hold harmless the City, its agents, officers, and employees ("Indemnitees"), from and against any and all suits, claims for damages, or injuries to persons or property, whether real or asserted, arising out of both bodily injury accidents and property damage accidents to the public, invitees, or guests or resulting, directly or indirectly, from the use and occupancy of the Museum by or under the authorization of the Foundation. This indemnification and hold harmless agreement shall hold without regard to the City, the City Council, and its agents and employees being in any manner legally at fault due to negligence or sole negligence, whether such negligence be contractual, comparative or concurrent, simple or gross or any other degree or type of negligence. Except as expressly stated below for the benefit of the City, nothing in this paragraph is intended to limit or restrict in any way any rights, benefits, protections, or limitations the Foundation may be entitled to under the Charitable Immunity and Liability Act of 1987 (Chapter 84, Civil Practice and Remedies Code of Texas, V.T.C.A.), as the same may be amended. The Foundation and City agree that upon any claim or allegation of liability by a third party arising from or in connection with the use, occupancy, or management and operation of the Museum, each party shall assert all defenses, either statutory or otherwise, providing for limitations or exemptions from liability. Only upon a finding or judgment of liability against the City shall the Foundation agree not to assert against the City any immunity or exemption and hereby expressly waives any such right to plead such immunity or exemption as against the City in such event. H:\ 95ag0800.023.vr 7 15. Fidelity Bonds. The Foundation covenants that during this Lease it shall procure and maintain in effect individual fidelity bonds to indemnify the City against loss resulting from misfeasance or nonfeasance of each officer, member and/or employee of the Foundation who receives, handles and/or disburses money in any form and in any manner for or on behalf of the City as to term and conditions, amounts of coverage, and company from which purchases. A copy of such coverage shall be submitted to the City's Risk Management Department prior to the execution of this Lease. 16. Recordkeeping. The Foundation will maintain, in a manner recommended by a CPA acceptable to the City, adequate books and records showing its receipts and disbursements. In addition, the Foundation agrees to have an annual audit and report thereof of such books and records by an auditor who is independent of the management or board of the Foundation but who may be a member of the Foundation, and to furnish the City Director of Finance with a copy of the report of such audit each year, certified as to truth and accuracy by the auditor making same, within 30 days after said audit is complete. Such audit report shall include, but not be limited to, a balance sheet and a complete statement of receipts and disbursements for the preceding fiscal year. 17. Entrance Fees. The Foundation may collect or authorize the collection of reasonable admission, attendance, or tuition charges for attendance at and/or participation in programs, exhibits, events, and functions conducted by or under the authorization of the Foundation in the Museum, and may make reasonable charges to individuals, groups of individuals or organizations for their use of the Museum. Also, the Foundation may collect or authorize the collection of reasonable charges for any items sold at the Museum in connection with activities therein. The admissions, dues, rentals, and other charges referred to in this Section 17. shall be deemed to be reasonable so long as they are within the range of charges made by other similar Museums located in Texas for similar purposes and apply to all individuals or groups without discrimination. A schedule of such charges shall be approved by the Foundation, available to the public on request. Such funds as may be realized by the Foundation from charges made in accordance with this section shall be used by the Foundation in the operation, development, and management of the Museum and its resources. 18. Assignments. This Lease shall be binding upon the successors and assigns of the parties hereto, but no assignment by the Foundation shall be valid without the prior written approval of the City Council. H:\ 95ag0800.023.vr 8 19. Termination. In case of any breach by the Foundation, or by any Third Parties of any of the obligations, covenants, or agreements contained in this Lease, the City Council may terminate this Lease at any time after it shall have given the Chairman of the Foundation written notice of the breach and a period to cure same and of its intent to terminate. However, City Council may terminate this Lease immediately upon a finding by it of the termination of the corporate existence, or the bankruptcy or the insolvency of the Foundation. The Foundation covenants that upon the termination of this Lease for any reason, including the expiration of the term hereof, (i) the Foundation, its officers, agents, servants, and employees shall vacate the Museum within ten (10) working days; (ii) the Foundation shall cause all Third Parties to quit and vacate the premises of the Museumwithin the same ten (10) day period; and (iii) the Foundation shall remove or cause to be removed from the Museum all personal property not belonging to or under the care, custody, and control of the City, excepting such personal property as may have become a part of the Museum in accordance with Section 7 hereof. The Foundation hereby expressly waives any right to contest or in any way defend against the right of the City, upon such termination or expiration of this Lease, to require the Foundation to comply with the covenant and agreement in the preceding sentence hereof. 20. Supersedes prior agreements. This Lease contains all of the provisions agreed upon by the parties hereto and displaces all previous verbal or oral agreements. 21. Gift. This Lease shall be construed as a contract concerning a gift to the City of Corpus Christi, and all of the real property improvements shall be the property of the City except where herein specifically excluded. City Council agrees that during the period this Lease is in force it will, upon request of the Foundation, submit for approval of the voters of the City on the same day that other City elections are scheduled, a Lease containing similar terms and conditions as those herein set forth for a period of thirty (30) years. Executed in duplicate originals on the day of 1996. ATTEST: CITY OF CORPUS CHRISTI By: City Secretary, Armando Chapa City Manager, Juan Garza H:\ 95ag0800.023.vr APPROVED AS TO LEGAL FORM THIS 14th DAY OF February, 1996. JAMES R. BRAY, JR., CITY ATTORNEY By: ut1/4,1. (Zil a L l Alison Gallaway Assistant City Attorney CORPUS CHRISTI ART FOUNDATION ) By: H. Charle Chairman H:\95ag0800.023.vr 9