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HomeMy WebLinkAboutMO # 2150211956 MUNICIPAL ORDER NO. 2150 A MUNICIPAL ORDER APPROVING AND AUTHORIZING THE EXECUTION OF A TERMINATION OF LEASE AGREEMENT AND A NEW CONCESSION AGREEMENT AMONG CITY OF PADUCAH, MCCRACKEN COUNTY, KENTUCKY AND OSCAR CROSS BOYS AND GIRLS CLUB OF PADUCAH, INC. WHEREAS, The United States of America has deeded to the City of Paducah ("City") certain property located at 2956 Park Avenue, Paducah, Kentucky (the "Premises") pursuant to the Federal Lands to Parks Program of the National Parks Service; and WHEREAS, pursuant to Municipal Order No. 1767, the City has leased the Premises to Oscar Cross Boys and Girls Club of Paducah, Inc. ("Oscar Cross") through a lease agreement dated January 1, 2014; and WHEREAS, City has determined that it is necessary to terminate the above -referenced lease and to enter into a new agreement ("Concession Agreement') with Oscar Cross in compliance with the requirements of the National Parks Service; NOW, THEREFORE, BE IT ORDERED BY THE FOLLOWS: Section 1. The Board of Commissioners Lease Agreement among the City and Oscar Cross in subst Exhibit A and made part hereof. It is further determined if the best interests of the City to enter into the Termination c therein specified, and the execution and delivery of the Ter hereby authorized and approved. The Mayor of the City is Termination of Lease Agreement. Section 2. The Board of Commissioners hereby app among the City and Oscar Cross in substantially the form a part hereof. It is further determined that it is necessary and the City to enter into the Concession Agreement for the pin execution and delivery of the Concession Agreement is her Mayor of the City is hereby authorized to execute the Cone other agreements, instruments or certifications which may 1 transaction contemplated by the Concession Agreement. Section 3. All ordinances, resolutions, orders or parts provisions of this Order are, to the extent of such conflict, he this Order shall prevail and be given effect. OF PADUCAH, KENTUCKY, AS approves the Termination of lly the form attached hereto as is necessary and desirable and in ase Agreement for the purposes ltion of Lease Agreement is by authorized to execute the ;s the Concession Agreement red hereto as Exhibit B and made irable and in the best interests of -s therein specified, and the authorized and approved. The :)n Agreement together with such -cessary to accomplish the conflict with the repealed and the provisions of Section 4. This Order shall be in full force and effect on and after the date as approved by the Board of Commissioners of the City of Paducah, Kentucky. Harless ATTEST: %' dsay Parish, 4ity Clerk Adopted by the Board of Commissioners, September 10, 2018 Recorded by City Clerk, September 10, 2018 MO\lease termination and concession agreement — Oscar Cross — 2956 Park Avenue EXHIBIT A TERMINATION OF LEASE AGREEMENT TERMINATION OF LEASE THIS TERMINATION OF LEASE AGREEMENT is made and executed on this day of 12018, by and between the CITY OF PADUCAH, KENTUCKY, OF P.O. Box 7265, Paducah, Kentucky 42002-7265, hereinafter referred to as "City," and OSCAR CROSS BOYS & GIRLS CLUB OF PADUCAH, INC., of P.O. Box 203, Paducah, KY 42002- 0203, hereinafter referred to as "Oscar Cross". WITNESSETH: WHEREAS, on or about January 1, 2014, the City and Oscar Cross entered into a certain lease agreement whereby the City leased to Oscar Cross the real property and improvements located at 2956 Park Avenue, Paducah, McCracken County, Kentucky; WHEREAS, Oscar Cross continues in possession of the Leased Premises under the terms of said Lease; and WHEREAS, the City and Oscar Cross, with approval from the Secretary of the Interior and/or its representative, the National Park Service, have entered into a new Concession Agreement for the assignment of the above-described premises to Oscar Cross; WHEREAS, to consummate such Concession Agreement, Oscar Cross and the City are required to terminate the current Lease Agreement; NOW, THEREFORE, in consideration of the foregoing premises, the City and Oscar Cross hereby declare that the Lease Agreement, and any amendments thereto, concerning the Leased Premises is hereby terminated, and of no legal force and effect, as of the effective date of this Termination. This Termination of Lease shall be effective as of the day and date first above written. WITNESS our signatures as of the date first above written. CITY OF PADUCAH, KENTUCKY OSCAR CROSS BOYS & GIRLS CLUB OF PADUCAH, INC. Brandi Harless, Mayor Title: State of KENTUCKY County of MCCRACKEN Subscribed, sworn, and acknowledged before me on this day of 2018 by Brandi Harless, Mayor of the City of Paducah, Kentucky, on behalf of said entity. My commission expires Notary Public, State at Large State of KENTUCKY ) County of MCCRACKEN ) Subscribed, sworn, and acknowledged before me on this _ day of , 2018 by of Oscar Cross Boys & Girls Club of Paducah, Inc., on behalf of said entity. My commission expires Notary Public, State at Large 3 EXHIBIT B CONCESSION AGREEMENT CONCESSION AGREEMENT THIS CONCESSION AGREEMENT, ("Agreement") is made and executed as of this day of 2018, by and between the CITY OF PADUCAH, KENTUCKY, of P.O. Box 7265, Paducah, Kentucky 42002-7265, hereinafter referred to as "City," and OSCAR CROSS BOYS & GIRLS CLUB OF PADUCAH, INC., of P.O. Box 203, Paducah, KY 42002-0203, hereinafter referred to as "Oscar Cross". WHEREAS, the City took fee title to certain lands located at 2956 Park Avenue, Paducah, McCracken County, Kentucky, known as the Army Reserve Training Center, from the United States of America (hereinafter referred to as the "USA") as surplus property, and deeded to the City of Paducah on February 28, 2012. Said deed is attached and hereinafter referred to as Exhibit A; and WHEREAS, Condition No. 3 of said deed provides that the City shall not sell, lease, assign, or otherwise dispose of the premises, except to another eligible government agency. However, nothing in this provision shall preclude the City from providing related recreational facilities and services compatible with the approved application, through concession agreements entered into with third parties, provides prior concurrence with such agreement is provided in writing by the Secretary of the Interior or his/her delegated representative, National Parks Service and WHEREAS, the City and Oscar Cross desire to provide a public nondiscriminatory recreation facility on the above-described premises for the use and benefit of the general public; and WHEREAS, the City is satisfied that the provision of additional services and facilities at the above-described premises is in the City's best interest; NOW THEREFORE, for the reasons set forth above, and in consideration of the mutual covenants and agreements as hereinafter set forth, the City agrees to allow Oscar Cross to provide a recreation facility upon a portion of the real property described in Exhibit A attached hereto and incorporated herein by this reference. . 1. Location. The City does hereby assign to Oscar Cross the use of the premises as described in Exhibit A, along with exclusive use of the appurtenant parking lot ("Assigned Premises"). The City and Oscar Cross shall reasonably cooperate in their joint use and enjoyment of the parking lot. The Assigned Premises shall also include the detached maintenance garage located on the property. The City will at all times maintain possession and control of the detached maintenance garage and shall have the right to use the detached maintenance garage until such time as Oscar Cross shall notify the City of its desire to construct a gymnasium on the property. All plans and specifications for such construction shall be submitted to the City Commission for approval. After approval of the plans and specifications by the City, Oscar Cross agrees to give the City no less than forty-five (45) days' notice prior to the start of construction, at which time the City will vacate the property. Said Assigned Premises shall be utilized by Oscar Cross ONLY as a public, nondiscriminatory recreation facility and for no other purpose. Oscar Cross shall utilize the Assigned Premises in compliance with any and all applicable federal, state, and local laws, codes, and ordinances. Oscar Cross hereby accepts the Assigned Premises in its present condition, "AS IS," and with all present defects and deficiencies. 2. Use of Assigned Premises. (a) Oscar Cross shall use, occupy and maintain the Assigned Premises in a business like, careful, clean, and non -hazardous manner for the sole purpose of a El recreational facility; (b) such use shall be considered Oscar Cross's Concession Operation; (c) Oscar Cross shall conduct its operations in strict compliance with, and subject to all of the restrictions, covenants, terms, and provisions imposed by the Secretary on the Assigned Premises as set forth in Exhibit A; (d) Written approval by the City and written concurrence by the Secretary shall be required for any other proposed use(s) in conjunction with or in addition to those specified in this Agreement. Oscar Cross shall have full use and control of the Assigned Premises. Oscar Cross may, at its sole option, open the Assigned Premises for public use during times Oscar Cross is not conducting games or other regularly scheduled activities. Oscar Cross shall not be liable for any claims, demands, or causes of action arising from public use or use by other organizations of the property and improvements thereon, unless said claim, demand, or cause of action directly arises from Oscar Cross's failure to keep the Assigned Premises in a state of good repair. 3. Personal Property and Fixtures. In furtherance of the objectives of this Agreement, Oscar Cross shall have the use of certain personal property and fixtures currently owned by the City which shall be maintained in good working condition, subject to reasonable wear and tear. Upon completion of this Agreement, all items shall be accounted for and returned to the City. During the course of this Agreement, any damage to personal property or fixtures shall be reported to the City within a reasonable time of when the damage occurs. 4. Term. The primary term of this agreement shall be for a term of twenty (20) years, commencing on , 2018 and ending on 2038. 5. Concession Payments. Oscar Cross shall pay unto City, as fees for the use and occupancy of the Assigned Premises, the sum of One Dollar ($1.00) per annum, which sum shall be paid on the date of the execution of this Agreement and upon each renewal date hereof. 6. Records and Documents. With respect to all matters covered by this Agreement, Oscar Cross's records and documents shall be subject at all times to inspection or review by the City. Oscar Cross will supply the City with any documents that may be needed by the City to file required compliance reports with the Secretary. 7. Maintenance and Repair. During the term of this Agreement, Oscar Cross shall, at its sole cost and expense, keep the Assigned Premises, both interior and exterior, in a state of good condition and repair, including the parking lot as identified on the attached Exhibit B. All repairs, replacements, maintenance, and restorations made by Oscar Cross shall be made in a good and workmanlike manner, and Oscar Cross shall use materials at least equal in quality to the replaced materials when new. Oscar Cross shall at all times maintain the Assigned Premises. During the term of this Agreement, the City shall maintain the green space surrounding the Assigned Premises. 8. Improvements. Oscar Cross may make, or cause to be made, to the Assigned Premises, such future improvements as may be necessary or appropriate in connection with the carrying on and efficient operation of Oscar Cross's use and occupancy of the Assigned Premises, subject to all applicable building codes and the reasonable approval of the Engineering/Public Works Director or his designee. As part of the commencement of any construction at or upon the Assigned Premises, Oscar Cross shall first supply written notice to the Engineering/Public Works Director or his designee describing the nature and extent of the specific improvements to be undertaken. 9. Sponsorships. Oscar Cross may sell sponsorships to individual organizations and/or private companies, and erect sponsor's signs in the Assigned Premises, subject to the prior written approval of the Engineering/Public Works Director, or his designee, as to the size and location of the sign in the Assigned Premises. Installation of any exterior signage shall require approval through the City's sign ordinance. 10. Utilities. Oscar Cross shall be responsible for the cost of all utilities relative to the Assigned Premises including specifically the utility bill from Paducah Power relating to the lighting of the appurtenant parking lot. if. Insurance. City shall maintain insurance coverage on the property, including the buildings and improvements thereon. Oscar Cross releases and relieves the City and waives its entire right of recovery against the City for loss or damage arising out of or incident to the perils that occur in, on, or about the property and improvements, whether caused by the negligence of the City, its agents, employees, or otherwise. Oscar Cross shall obtain from its insurer or insurers provisions permitting waiver of any claim against the City for loss or damage within the scope of the above-specified insurance. Oscar Cross shall maintain comprehensive general liability coverage covering the Assigned Premises and all related equipment and inventory under which the City shall be held harmless and named as a loss payee for all persons participating in activities within and upon the property Coverage shall be in accordance with City's present coverage parameters, and any modifications which City shall make in the future. 12. Indemnity. Oscar Cross hereby releases and discharges the City and shall fully protect, indemnify, and keep and save the City harmless from any and all claims, demands, and causes of action, and from any and all costs, charges, expense, penalties, and damages relating thereto, which were incurred by any act or omission of Oscar Cross, or any of Oscar Cross's representatives, assignees, agents, employees, licensees, invitees, and any other person or persons occupying the property assigned to Oscar Cross, provided, however, that such loss or damage was not caused by City. 13. Liens. Oscar Cross shall keep the Assigned Premises free from any and all liens arising out of any work performed, materials furnished, or obligations incurred by Oscar Cross during the term of this Agreement or any extension or renewal thereof. ' 14. Surrender and Waste. Oscar Cross agrees that upon expiration of this Agreement or earlier termination thereof, it shall surrender the Assigned Premises to the City in as good or better condition as at the time of execution of this Agreement, ordinary wear and tear excepted. All trade fixtures, furniture, furnishings, and signs installed on the Assigned Premises by Oscar Cross and paid for by Oscar Cross shall remain the property of Oscar Cross and may be removed upon the expiration of the Term, assuming the same can be removed without materially damaging the Assigned Premises. 15. Termination. This Agreement shall terminate automatically upon the occurrence of any one or more of the following events ("events of default"): (a) Failure or refusal of Oscar Cross to pay or cause to be paid any rental payments within ten days following the due date; (b) Failure by Oscar Cross to perform any agreement, covenant, condition, obligation, and/or undertraining herein contained or to observe or comply with any of the terms, provisions, and conditions of this Agreement, or any other agreement executed by Oscar Cross with the City; (c) Proceedings in bankruptcy by or against Oscar Cross, or for reorganization of Oscar Cross's debts, or for the readjustment of any of its respective debts, under any other laws, whether state or federal, for the relief of debtors, now or hereafter existing, be commenced by it or commenced against it; (d) The insolvency, assignment for the benefit of creditors, adjudication as a bankrupt or the appointment of a receiver for substantially all of either Oscar Cross's property and/or Oscar Cross's interest in this Agreement, except that should an involuntary bankruptcy proceeding be filed against Oscar Cross, Oscar Cross shall have ninety (90) days to have such proceeding terminated, provided that Oscar Cross has otherwise complied with its obligations herein; (e) The issuance of execution against either Oscar Cross's interest in this Agreement or any legal process which by operation of law would cause Oscar Cross's interest in this Agreement to pass to any persons other than Oscar Cross; or (f) Oscar Cross abandons the Assigned Premises. Upon termination of this Agreement, either in lapse pursuant to the terms of the same, or in the event of default as defined herein, after written notice of default sent by City to Oscar Cross, the City may immediately, or at any time thereafter, reenter the Assigned Premises without notice or demand, and remove all persons and things therefrom with or without legal process and without prejudice to any of City's other legal rights, using such force as may be necessary or proper for the purpose. If upon reentry there remains any abandoned property of Oscar Cross or any other persons upon the Assigned Premises, the City may take possession of such property and sell it at public or private sale with notice to Oscar Cross, and this right to take and sell shall be a prior lien and claim against the property; or the City may, without obligation to do so, take possession of such property and hold it for the owners thereof or may place the same in a public garage or warehouse, all at the expense and risk of the owners thereof, and Oscar Cross shall reimburse the city for any expense incurred by the City in connection with such removal or storage. If the City elects to take possession of the property and sell it, the proceeds of such sale shall be applied first to the cost of the sale, second to the payment of the charges for storage, if any, and third to the payment of any other amounts which may then be due from Oscar Cross to the City, and the balance, if any, shall be paid to Oscar Cross. Notwithstanding any such reentry, upon default by Oscar Cross or a termination of this Agreement occasioned by reason thereof, the rentals due hereunder for the remainder of the then - current term for the Assigned Premises, and such other charges and/or obligations if any as may otherwise be payable hereunder, shall be immediately due and payable. The City shall have a lien on all personal property brought upon the Assigned Premises to the extent of Oscar Cross's liability to the City hereunder. In the event of default, the City shall be entitled to collect from Oscar Cross any and all costs and expenses incurred by City in the enforcement of or collection upon this Agreement, including attorneys' fees. 16. Holding Over. If Oscar Cross shall, with the consent of the City hold over after the expiration or sooner termination of any term of this Agreement, the resulting tenancy shall, unless mutually agreed, be for an indefinite period of time on a month-to-month basis. During such month-to-month tenancy, Oscar Cross shall pay to City the last rate of rental as agreed upon, and shall be bound by all of the provisions of this Agreement. Such holding over period may be terminated by either party upon thirty (30) days written notice. 17. Damage to Assigned Premises. In the event that any portion of the Assigned Premises shall be partially or totally destroyed by fire or the elements, or from any cause whatsoever, such shall not affect the continued operation of this Agreement, and this Agreement shall remain in full force and effect in accordance with the terms and provisions hereof, provided, however, that the Assigned Premises subject to the destruction are restored with insurance proceeds, which restoration shall be at the City's discretion. In the event that the City elects not to restore the Assigned Premises, this Agreement shall terminate. 18. No Conveyance. Nothing in this Agreement shall be construed as conveying any estate or interest in the Assigned Premises, or in any of the property described in Exhibit A to this Agreement, from the City to Oscar Cross, nor does this Agreement surrender absolute control over and possession of the Assigned Premises to Oscar Cross. The City, by this Agreement, conveys, and Oscar Cross, by this Agreement, receives only such authority as is set forth in this Agreement, and that may be necessary and appropriate to use the Assigned Premises in a manner that is consistent with the operations specified herein. Oscar Cross acknowledges that the property, including the Assigned Premises, is subject to the possibility of reversion back to the United States without compensation being paid to Oscar Cross should there be a material breach of noncompliance by the City or Oscar Cross for not adhering to the deed covenants, restrictions, and agreements set forth in Exhibit A. 19. Condemnation. In the event of any governmental condemnation of any part of the Assigned Premises, this Agreement shall continue in full force and effect according to the terms and provisions herein. Any compensation paid for the condemnation shall be deemed the property of the City, except to the extent such proceeds represent a payment for property owned by Oscar Cross, which shall be paid to Oscar Cross. 20. Laws and Regulations. Oscar Cross is aware of and agrees that it will use the Assigned Premises so as to conform with deeded environmental and usage controls and not violate any laws, regulations, and/or requirements of the United States of America and/or the Commonwealth of Kentucky and/or any ordinance, rule, or regulation of the City, now or hereafter made, relating to the use of the Assigned Premises. 21. Waiver. Failure of either party to complain of any act or omission on the part of the other party, no matter how long same may continue, shall not be deemed to be a waiver by said party of any of said party's rights hereunder. No waiver by either party at any time, expressed or implied, of any breach or provision of this Agreement shall be deemed a waiver of breach of any other provision of this Agreement or a consent to any subsequent breach of the same or any other provision. If any action by either party shall require the consent and approval of the other party, the other party's consent to approval of such action on any one occasion shall not be deemed to be a consent to or approval of said action on any subsequent occasion. Any and all rights and remedies which either party may have under this agreement, upon any breach, shall be distinct, separate, and cumulative and shall not be deemed inconsistent with each other; and no one of them ,whether exercised by said party or not, shall be deemed to be an exclusion of any other. 22. Inspection of the Assigned Premises. The City, or its appointed employees or agents, shall have the right to come upon the Assigned Premises for just cause without notice and at reasonable times to examine and inspect the Assigned Premises for purposes of insuring Oscar Cross's compliance with the terms and provisions of this Agreement. 23. Non-discrimination. The City and Oscar Cross agree to comply with all Federal laws relating to nondiscrimination in connection with any use, operation, program, or activity on nor related to the previously described property, including, but not limited to: All requirements imposed by or pursuant to the non-discrimination regulations of the U.S. Department of the Interior (43 C.F. R. Part 17); Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d-1), which prohibits discrimination on the basis of race, color, or national origin; The Age Discrimination Act of 1975, as amended (42 U.S.C. § 6101 et seq.), which prohibits discrimination on the basis of age; Section 504 of the Rehabilitation Act of 1973, as amended (29 U.S.C. § 794), which prohibits discrimination on the basis of handicap; 8 The Architectural Barriers Act of 1968, as amended (42 U.S.C. 4151), which requires facilities located on the property to be accessible to the physically handicapped; and The Americans with Disabilities Act of 1990 (42 U.S.C. 12181), which requires that no otherwise qualified handicapped individual shall, solely by reason of his or her handicap, be excluded from the participation in, be denied benefits of, or be subject to discrimination under any program or activity receiving Federal financial assistance. Executive Order 13672, which prohibits discrimination on the basis of sex, sexual orientation, or gender identity. 24. Acknowledgment. This Agreement and the obligations of the parties hereto are subject to the terms and conditions set forth in the Deed from the United States of America to the City of Paducah, dated February 28, 2012, and recorded at McCracken County Clerk's Office at Book 1229 Page 247, attached hereto as Exhibit A, and the current Program of Utilization which governs the use of the Assigned Premises. Violations of said terms and conditions may be grounds for reversion to the United States of America, at its discretion and termination of this Agreement, in the event of a reversion as described in this paragraph, personal and real property improvements associated with the Assigned Premises and owned by Oscar Cross may be subject to seizure, without compensation, by the United States. 25. Notices. All notices shall be in writing and sent (unless otherwise provided herein) via first class mail, postage prepaid, or personally delivered. Any marked notice shall be deemed to be sent on the day deposited in the mail. Any notice shall be sent to the following addresses: CITY: City of Paducah Engineering/Public Works Director P O Box 2267 Paducah, KY 42002-2267 OSCAR CROSS: Oscar Cross Boys & Girls Club of Paducah, Inc. P O Box 203 Paducah, KY 42002-0203 26. Entire Agreement. This Agreement embodies the entire agreement between the parties with respect to the assignment and use of the Assigned Premises. There are no representations, terms, conditions, covenants, or agreements between the parties relating thereto which are not contained herein. All previous agreements executed between the parties shall be deemed novated upon the effective date of this Agreement. This Agreement shall completely and fully supersede all other prior agreements, both written and oral, between the parties pertaining of the Assigned Premises. This Agreement shall be deemed drafted by both parties, and no ambiguity in the construction of this Agreement shall be resolved against either party by reason of the draftsmanship of this Agreement. 27. Captions. The article and paragraph headings and captions contained hereunder are included for convenience only and shall not be considered a part hereof or affect in any manner the construction or interpretation of this Agreement. 28. Severability. In the event any provisions of this Agreement shall be deemed null and void or unenforceable by any court of competent jurisdiction, such holding shall not invalidate or render unenforceable any of the remaining provisions hereof. 29. Assignment and Subletting. Oscar Cross shall not assign this agreement or any interest herein, nor let or sublet the said premises or any part thereof or any right or privilege appurtenant thereto, nor permit the occupancy or use of any part thereof by another person. Said let or underlet shall be grounds for termination of this Agreement by the City or possible reversion by the United States. 30. Successors and Assigns. The covenants, terms and conditions and obligations set fort hand contained in this Agreement shall be binding upon and inure to the benefit of the City and Oscar Cross and their respective heirs, successors, and assigns. 31. Legal Action. In the event of any legal enforcement of this agreement, Oscar Cross does hereby subject itself to the jurisdiction of the McCracken County Courts. OSCAR CROSS DOES HEREBY WAIVE TRIAL BY JURY. 32. Charitable Purpose. Oscar Cross acknowledges that its use of the Assigned Premises is for a charitable and public purpose, operating for the public benefit on a nondiscriminatory basis and shall manage the Assigned Premises accordingly. 33. Effective Date. The effective date of this agreement shall be on the date this agreement has been executed by all parties hereto. Oscar Cross shall be entitled to possession of the Assigned Premises on the effective date of this Agreement. IN WITNESS WHEREOF, the parties hereto have signed this Agreement as of the day and date first written above. CITY OF PADUCAH, KENTUCKY LIM Brandi Harless, Mayor State of KENTUCKY ) County of MCCRACKEN ) OSCAR CROSS BOYS & GIRLS CLUB OF PADUCAH, INC. In Title: Subscribed, sworn, and acknowledged before me on this day of , 2018 by Brandi Harless, Mayor of the City of Paducah, Kentucky, on behalf of said entity. My commission expires Notary Public, State at Large State of KENTUCKY ) County of MCCRACKEN ) Subscribed, sworn, and acknowledged before me on this day of , 2018 by of Oscar Cross Boys & Girls Club of Paducah, Inc., on behalf of said entity. My commission expires Notary Public, State at Large 10