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HomeMy WebLinkAbout130-03 RESOLUTIONRESOLUTION NO.130 03 A RESOLUTION APPROVING A LAND LEASE AGREEMENT WITH THE BOTANICAL GARDEN SOCIETY OF THE OZARKS FOR THE PURPOSE OF OPERATING A BOTANICAL GARDEN AT LAKE FAYETTEVILLE PARK. BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE, ARKANSAS: Section 1. That the City Council of the City of Fayetteville, Arkansas hereby approves a Land Lease Agreement with the Botanical Garden Society of the Ozarks for the purpose of operating a botanical garden at Lake Fayetteville Park. A copy of the Lease Agreement marked Exhibit "A" is attached hereto and made a part hereof. PASSED and APPROVED this 2nd day of September 2003. atd SONDRA SMITH, City Clerk APPROVED: By: FAYETTESLLE THE CITY OF FAYETTEVILLE, ARKANSAS TO: Mayor Coody and City Council THRU• Gary Dumas, Director of Operations FROM: Connie Edmonston, Parks & Recreation Director DATE: August 11, 2003 SUBJECT: Botanical Gardens of the Ozarks Lease Agreement Background On September 2, 1997; City Council approved a Land Lease Agreement with the Botanical Garden Society of the Ozarks, Inc. (BGSO), for the purpose of operating a botanical garden at Lake Fayetteville to serve Northwest Arkansas. The Portico Group of Seattle Washington developed a master plan of the gardens in 2000. With the completion of the Master Plan, several fund raising events are held each year to finance the project. Current Status Since BGSO has been established for five years and a master plan has been developed, the relationship through the lease agreement with the City needs to be redefined. The term of the lease is 25 years It may be renewable for three additional 25 year renewal terms upon the mutual agreement of the parties. Other items in the agreement further outlined responsibilities of the trails and parking lot in both fee and non -fee areas Any major changes in the master plan must be submitted to the Parks and Recreation Advisory Board (PRAB) for approval. The City is allowed three seats on the BGSO Board consisting of a PRAB member, Parks and Recreation staff representative, and a member appointed by the City Council. BGSO is required to submit an annual progress report and audit to the City. In consideration for this lease, BGSO will offer free general admission to the garden on Saturdays from 9 am until 11 am. BGSO will also develop a 3 to 5 year plan of action with stated goals and objectives. By accepting this Lease Agreement, the City of Fayetteville encourages BGSO to continue their goal of preserving and enhancing one of Fayetteville's natural open spaces. In addition, the acceptance of this Lease Agreement also provides the foundation for the BGSO to acquire funds and complete their Master Plan. By creating an additional destination for both residents and visitors to Fayetteville, a completed botanical garden will be an important factor in the growth of Fayetteville's local economy. Recommendation Parks and Recreation Staff and Parks and Recreation Advisory Board recommend approval of the land lease agreement with the BGSO. Please find PRAB August 4, 2003 meeting minutes documenting their approval. Attachments: Land Lease Agreement Lake Fayetteville Map PRAB August 4, 2003 Meeting Minutes BSGO Letter from President Blair Johanson WEST MOUNTAIN 72701 479-444-3471 FAX 479-521-7714 • • RESOLUTION NO. A RESOLUTION APPROVING A LAND LEASE AGREEMENT WITH THE BOTANICAL GARDEN SOCIETY OF THE OZARKS FOR THE PURPOSE OF OPERATING A BOTANICAL GARDEN AT LAKE FAYETTEVILLE PARK. BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE, ARKANSAS: Section 1. That the City Council of the City of Fayetteville, Arkat s hereby approves a Land Lease Agreement with the Botanical Gard o� etyf the Ozarks for the purpose of operating a botanical garden ate- n fi yaeville Park. A copy of the Lease Agreement marked Exhibit "; . Qed er to and made a part hereof. PASSED and APPROVED this 2nd day of AN COODY, Mayor • • PARKS AND RECREATION ADVISORY BOARD Meeting Minutes August 4, 2003 Opening: The regular meeting of the Parks and Recreation Advisory Board was called to order at 5:30 p.m: on August 4, 2003 in Room 326 of the City Administration Building located at 113 West Mountain Street, Fayetteville, Arkansas by Wade Colwell. Present: Parks and Recreation Advisory Board members Wade Colwell, Gail Eads, Bob Shoulders, Mike Hill, Craig Mauritson, Kristin Pawlik-Holmes, Jerry Bailey; City Staff Edmonston, Coles, Hatfield, Hesse, Ohman, Wright; and Audience. 2. Botanical Garden Society of the Ozarks, Inc. Lease Agreement: Legal staff has modified the original land lease agreement approved by PRAB on March 3, 2003. Carl Totemeier, Interim Director presented the contract changes. Changes include: • 25 years from and after the date of this agreement, subject to such being sooner terminated as provided in this agreement. This lease term shall be renewed for three (3) additional 25 year renewal terms upon the mutual agreement of the parties. This lease term may be renewed upon approval of the City of Fayetteville, Arkansas. Each renewal term will not be unreasonably denied by the City as long as the BGSO continues to operate a botanical garden on the City property identified with this lease. • BGSO will offer free general admission to the garden each Saturday morning from 9:OOam to 12:OOpm. • PROGRESS. BGSO will develop and open a botanical garden on the City property identified with this lease agreement. BGSO will offer botanical' garden programmatic and educational services as part of its mission. BGSO will establish an initial yearly attendance goal minimum for all BGSO garden services and programs of 5,000 people beginning with calendar year 2005. BGSO will develop a three to five year plan of action with stated goals and objectives. BGSO will continue to review, refine and renew these actions plans during the course of this lease. BGSO will prepare, publish and present an annual operations report to be submitted to the Fayetteville City Council. MOTION: Hill moved to approve a land lease agreement with the Botanical Garden Society as presented. Colwell seconded the motion. Upon roll call, the motion was approved 7-0-0. August 4, 2003 / 1 trl .1 vfe-e-c- el 15G 0 TO: • FROM: • ' BOTANICAL GARDEN SOCIETY OF THE OZARkS; INC. P.O. Box 3079 • Fayetteville, Arkansas 72702-3079 • 479-443-6638 •info@bgso.org Mayor Dan Coody and the Fayetteville City Council Botanical Garden Society of the Ozarks . ' DATE: August 6, 2003 SUBJECT: Phase IA of the Master Plan for the Botanical Garden Society of the Ozarks • The Botanical Garden of the Ozarks would like to request approval of the Revised Land'Lease Agreement between the City of Fayetteville and the Botanical Garden Society of the Ozarks, Inc. The extension of the land lease duration, three 25 year renewals will give BGSO donors an assurance of the long term future of the botanical garden. We believe these changes offer fair consideration for both parties. -Your support will be greatly appreciated as we move forward , with this magnificent project. Sincere! lt.lt �U(�rsTd�/� Blair Jo son President, BGSO, Inc. • • • • • £0/80/60 :04e0 0 0. 0 0 01 0 0 0. m a v 0 • • !S02•211011 110247 i ,.S.n0370.331h. • • • 13 effineuetej eye, -.- 11027112t 1040.00' • 0 0 0 0 0 z b O O Cat 0 0 FAYETTEVtLE THE CITY OF FAYETTEVILLE, ARKANSAS DEPARTMENTAL CORRESPONDENCE • TO: Connie Edmonston Parks and Recreation FROM: Sondra Smith City Clerk DATE: 09/04/03 SUBJECT: Botanical Garden Society of the Ozarks Lease Agreement Botanical Garden at Lake Fayetteville Park Attached is a signed copy of Resolution No 130-03. I am also returning one original signed copy of the Land Lease Agreement. The original lease agreement and resolution will be microfilmed and filed with the City Clerk. Thanks! Sondra Smith City Clerk cc: Nancy Smith, Internal Auditor NAME OF FILE: Resolution No. 130-03 w/agreement CROSS REFERENCE: Item # Date Document • 1 08/13/03 Staff Review Form w/attachments memo to Mayor/City Council minutes of 8/4/03 for PRAB memo to Mayor/City Council map map map 2 09/04/03 memo to Connie Edmonston NOTES: lo/j9 /04 11444./..9.44 / 1 STAFF RL EW FORM - NON-FINANCIAL OBLIITION XX AGENDA REQUEST For the Fayetteville City Council Meeting of: September 2, 2003 9/L/a-3 30 _03 FROM: Connie Edmonston Name Parks and Recreation Division Operations Department ACTION REQUIRED: A resolution approving the a land lease agreement with the Botanical Garden of the Ozarks, Inc., for the purpose of operating a botanical, garden at Lake Fayetteville Park. SUMMARY EXPLANATION: See attached memo. STAFF RECOMMENDATION: A aria, Date 8.-/17103 City Atto ey Date 8-/2 0� bepartme Director Date 1 Finance is Internal Servi es .Dir. Chie %'dministr. ive Officer Mayor �- (3'u3 Date x�j- V /it Date Da Received in Mayor's Office Cross Reference: Previous Ord/Res#: 7/73/03 Date Resolution 83-97 Orig. Contract Date: 2 -Sep -97 Orig. Contract Number• New Item: Yes • • LAND LEASE AGREEMENT THIS AGREEMENT made this 02A4 day of 4i4Jn. by and between the City of Fayetteville, a Municipal Corporation of the State of Arkansas, hereinafter ref..' led to as "the City", and the Botanical Garden Society of the Ozarks, Inc., an Arkansas Non -Profit Corporation, hereinafter referred to as "BGSO". WITNESSETH: WHEREAS, the parties desire to enter into an agreement regarding the operation and functioning of the Botanical Garden Society of the Ozarks which will serve the Northwest Arkansas community, and which will be built on land owned by the City of Fayetteville. WHEREAS, the BGSO's purpose is the establishment and operation of a botanical garden where diverse collections of plants will be displayed, utility d, and preserved for educational, environmental, recreational and scientific purposes, thereby promoting public awareness of the vital and unlimited roles that plants perform. NOW, THEREFORE, in consideration of the mutual covenants of the parties hereto the parties covenant and agree as follows: The City hereby designates for the establishment, construction, maintenance, and operation thereon of a botanical garden as aforesaid for the collection and display of plant materials and for such other purposes as are incident to the development and maintenance of a botanical garden and for no other purpose whatsoever, contiguous tracts of land in the City, described as follows: A part of the Northwest Quarter (NW1/4) of the Northeast Quarter (NE1/4), a part of the Southwest Quarter (SW 1/4) of the Northeast Quarter (NE 1/4), a part of the Southeast Quarter (SE 1/4) of the Northwest Quarter (NW 1/4), all in Section 24, Township 17 North, Range 30 West, Washington County, Arkansas, being all of that portion in said Section 24 as descnbed in a Warranty Deed Recorded in Book 402 at Page 313 of the records of the Circuit Clerk and Ex -Officio Recorder of Washington County, Arkansas, Less and except that portion of said parcel lying North of Lake Fayetteville waters and within the waters of Lake Fayetteville, said waters being more particularly described as that portion of said parcel Lying below an elevation of 1238 feet above mean sea level, said elevation being the top of the Lake Fayetteville spillway. The Northeast Quarter (NE 1/4) of the Northeast Quarter (NE 1/4) of Section 24, Township 17 North, Range 30 West, as described in a Warranty Deed Recorded in Book 400 at Page 328 of the records of the Circuit Clerk and Ex -Officio Recorder of Washington County, Arkansas and a part of the fractional Northwest Quarter (NW 1/4) of the Northwest Quarter (NW 1/4) of Section 19, Township 17 North, Range 29 West, Washington County, Arkansas, being particularly described as follows: Beginning at a point which is North 88° 22' 40" West 108.90 feet from the Southeast corner of NW 1/4 of the NW 1/4 of said Section 19, thence North 02° 21'13" East 1048.50 feet; thence 88°22'40" West 1242.78 feet; thence South 02°31'34" West 1048.55 feet to the South line of said 40 acre tract; thence along said South line South 88° 22' 40" East 1242.78 feet to the Point of Beginning, less and except that portion of said parcel lying North of Lake Fayetteville waters and within the waters of Lake Fayetteville, said waters being more particularly described as that portion of said parcel lying below an elevation of 1238 feet above mean sea level, said elevation being the top of the Lake Fayetteville spillway. 1.0. MAINTENANCE, PROMOTION, AND OPERATION OF THE GARDEN. The parties agree that the Society shall operate, maintain, and promote the Botanical Garden of the Ozarks for and on behalf of the City on the property wholly owned by the City and identified above and incorporated by reference herein as set forth in this agreement. • 2.0. LEASE TERM. The leaseterm shall commence on the date f this agreement and shall expire at midnight local time in the City of Fayetteville, Arkansas, on the date which is 25 years from and after the date of this agreement, subject to such being sooner terminated as provided in this agreement. This lease term shall be renewed for three (3) additional 25 year renewal terms upon the mutual agreement of the parties. This lease term may be renewed upon approval of the City of Fayetteville, Arkansas. Each renewal term will not be unreasonably denied by the City as long as the BGSO continues to operate a botanical garden on the City property identified with this lease. 2.1 REVIEW AND EVALUATION. The parties acknowledge that the Botanical Garden of the Ozarks is in its formative stages and that its development will be ongoing and changeable. IT IS FURTHER recognized that the roles, functions, and responsibilities of the respective parties will develop, grow, and/or change as well. For these reasons, the parties shall review and evaluate this agreement on a yearly basis to insure its appropriateness and applicability. The BGSO shall present an annual progress review to the Parks and Recreation Staff, Advisory Board and the City Council. 2.2. The Mayor or his designated representative and the BGSO shall meet as requested by any party to review the terms of this lease, to suggest and negotiate changes which may be appropriate. 3.0. TITLE TO BUILDINGS AND GROUNDS. The BGSO acknowledges without reservation that the City owns and shall hold title to the grounds and any future buildings constructed on the premises. 4.0. OPERATING POLICIES AND RESPONSIBILITIES. The BGSO shall provide to the Mayor or his designated representative its general operating policies for the Garden in written form. These operating policies shall ensure nondiscnminatory opportunities for all citizens. The Society agrees that its policies and operations shall be designed to preserve and maintain the integrity of all buildings, grounds and improvements existing on the premises, and shall consider the policies of Parks and Recreation regarding cultural and recreational facilities. 5.0. RULES AND REGULATONS OF BGSO. The BGSO may establish and enforce any reasonable rules and regulations regarding behavior of visitors to assure the well being of the plants and gardens, as well as the safety, comfort and quality of experience for visitors to the premises and shall provide copies of these rules and regulations to the Mayor or his designated representative. To the extent permitted by law, either the City or the BGSO may exclude objectionable uses, or abusive or offensive person(s) from all premises subject to this agreement. 6.0. OPERATION AND SUPERVISION OF THE BOTANICAL GARDENS OF THE OZARKS. The BGSO shall exercise sole operational and supervisory authority over all grounds, buildings and personnel of the Garden and over all such matters, including but not limited to, safety, insurance, planning, plant acquisitions, displays and gardens, and the purchase, exchange, or acquisition of additional items to be added to the collections, except as otherwise provided in this agreement. The BGSO at its expense will be responsible for all maintenance and security associated with the operation of the Botanical Garden, including equipment, parking lots, and other improvements. The BGSO may not sublet any portion of the property without the express written consent of the City Council. 7.0 TRAILS: The BGSO specifically acknowledges the right of the public to access trails in the non -fee area without charge. BGSO must obtain the approval of the Parks and Recreation Staff on the routing and design of all public trails through this land lease area. • 7.1 Construction of or enhancements to the primary public pedestrian and bicycle trails through the non -fee area to the west of the fee area (see attachment) must be approved by both the City of Fayetteville and the BGSO. Primary public trails located immediately adjacent to the fee area and all secondary trails related to BGSO programming will be designed, constructed, and maintained by the BGSO.(See attached maps identifying these areas) 7.2 Any enhancements or construction of any trails by the City within the non -fee area will be maintained by the City of Fayetteville. 7.3 The BGSO will construct and maintain a parking lot near the Visitor Education Center that allows free public parking with direct access to the primary public trails seven days a week. 7.4 The Society will be responsible for all educational, research and informational programs conducted on the premises and all printed material. 7.5 The parties agree that all employees and volunteers shall be employees or volunteers of the BGSO and shall not be considered to be City employees or volunteers for any purpose whatsoever. The BGSO shall have the sole authority for engaging, terminating, fixing compensation, supervising and otherwise directing all personnel, including sub -contractors, in conformance with applicable laws governing employees and volunteers at the Botanical Garden. 8.0 CONSTRUCTION, ALTERATIONS, IMPROVEMENTS AND MAINTENANCE. 8.1 The Final Master Plan must be approved by the City Council, and shall serve as the development guide to present and future construction, expansion, and improvements to the premises. The parties agree that the BGSO will submit to the Fayetteville Parks and Recreation Staff for review all plans for construction, future alterations, and improvements to be located on the premises including, but not limited to, gardens, greenhouses, entrances and parking, and for all other alterations to any facilities and grounds at the Garden which undertakings shall be subject to applicable City procedures, zoning ordinances, and design review. 8.2 Any major changes to the Master Plan shall be submitted to the Fayetteville Parks and Recreation Advisory Board for approval. 9.0 HOURS OF OPERATION. The BGSO shall establish the hours of operation for the Botanical Garden and shall consider the public interest in establishing such hours. The public parking lot will be open during daylight hours. 10.0 SIGNS. Lessee may place such signs as it may deem proper on the premises, so long as said signs are in compliance with Lessor's sign ordinances. 11.0 PROGRAM ACCESSIBILITY AND PROGRESS. 11.1 As consideration for this lease, BGSO will offer free general admission to the Garden each Saturday morning from 9:OOam to 12:OOpm. This waived fee provision only applies to general admissions and not to specialty areas, buildings or events that require a separate entry fee. In addition to the above stated consideration, BOSO will recognize the importance of its botanical educational role by making garden access arrangements with the Fayetteville School District for students and teachers. 11.2 Groups using any of the facilities of the Garden shall abide by all regulations as established by the City and the BGSO. • • 11.3 PROGRESS. BGSO will develop and open a botanical garden on the City property identified with this lease agreement. BGSO will offer botanical garden programmatic and educational services as part of its mission. BGSO will establish an initial yearly attendance goal minimum for all BGSO garden services and programs of 5,000 people beginning with calendar year 2005. BGSO will develop a three to five year plan of action with stated goals and objectives. BGSO will continue to review, refine and renew these actions plans during the course of this lease. BGSO will prepare, publish and present an annual operations report to be submitted to the Fayetteville City Council. 12.0 LAWS. The BGSO shall comply with all present and future laws, ordinances, and rules and regulations, pertaining to the City of Fayetteville including, but not limited to, the Americans with Disabilities Act and the Arkansas Freedom of Information Act. 13.0 RESOLUTION OF CONFLICT. In the event of disagreement regardmg operations procedures or scheduling, a committee consisting of four (4) members, one (1) appointed by the City, one (1) appomted by the City Parks 8s Recreation Advisory Board, and two (2) by the BGSO will be constituted to resolve the differences. If no resolution is reached within a reasonable period, then this committee shall refer the matter to the City Council, whose decision shall be binding to both parties. 14.0 INSURANCE. The BGSO agrees to obtain and maintain through the duration of the lease at its own expense, Commercial General Liability Insurance covering public liability, bodily injuries, death, products liability and property damage for damages and expenses arising out of the operation of the Garden prior to opening the Garden to the public. 15.0 DEFENSE AND INDEMNIFICATION. The BGSO agrees to defend, indemnify and hold the City, its officers employees agents and representatives harmless against all damages, expenses, loss or liability from any claim or suit arising or alleged to have risen from any act or omission of the BGSO, its officers, employees, agents or representatives by reason of the operation of the Garden under this agreement, including, but not limited to, damage to or destruction of property or injuries to or death of a person or persons. 16.0 SELECTION OF TRUSTEES. The BGSO agrees that the City Council will appoint one (1) member of the BGSO's Board of Directors. One member shall be a current member of the City's Parks and Recreation Advisory Board and one member must represent the Parks and Recreation Staff. The BGSO further agrees to supply the names of those persons elected to the Board of Directors to the City Clerk as public record. The Board of Directors shall faithfully and diligently exercise such authority as herein conferred in conformity with the provisions of this agreement. 16.1 The BGSO shall file a true and correct copy of its corporate charter, with amendments, if any, and an accurate and complete copy of its Bylaws and any amendments thereto, and a copy of the I.R.S. Letter of Determination of I.R.C. Sec. 501(c)(3) status with the City to be maintained as a public record. In the event of subsequent amendments to such charter or bylaws, true and correct copies of the same shall be timely filed with the City Clerk. 17.0 FUNDING SOURCES. 17.1 In order to achieve and continue the public purpose of this agreement, funding shall be provided or permitted but not limited to the following sources: A. The BG5O agrees to use its best efforts to secure gifts of cash, services, endowments, and plant materials for the purpose of fulfilling its obligations hereunder. Any funds raised for the Garden by the BGSO shall be used for the purpose of equipping and maintaining the Garden, for the improvement of real property, for the general maintenance of the Garden, or for any other purpose designated by the BGSO's Board of Directors. B. Generated revenulrom admission, gift shop, progro and service fees, and miscellaneous rental income. C. Gifts, grants, bequests and devises from private donors, expended in conformance with the terms of their receipt. D Earned income from investments. E. Bond funds as may be authorized. 18.0 FINANCIAL REPORTS. In accordance with the BGSO's Bylaws, the City shall receive a copy of the fmancial audit of the Garden's financial books and records every year. The report will be provided within ninety (90) days of each completed audit. In addition, the BGSO shall timely provide to the City the yearly operating budget of the BGSO. 19.0 RENT, FEES, CONCESSIONS AND TAXES. The BGSO shall have the right to set admission fees to the Garden as well as fees for optional services such as programs, space rental, etc. Fees shall be reasonable and in line with similar services available in the tourism market place. 19.1 The BGSO shall pay promptly all taxes and license fees of whatever nature applicable under municipal, state, and federal law. In addition, the parties agree that the BGSO shall indemnify and save the City harmless from and against any liens or similar liabilities claimed or changes against the BGSO pursuant to the BGSO's operation of the Garden. 20.0 REMEDIES FOR BREACH OR VIOLATIONS OR DISPUTES. 20.1 Termination of Agreement. The parties agree that if either party materially breaches or fails to perform its obligations under this agreement, the other party may give notice in writing of intent to terminate. If the breaching or non-performing party fails to commence and effect cure in good faith to the satisfaction of the other party within ninety (90) days of such notice or such longer period, if agreed in writing by the parties, the agreement shall be deemed terminated at the expiration of the ninety (90) days period or other agreed period. Any request of extension shall not be unreasonably withheld. 20.2. In the event the BGSO shall be adjudicated bankrupt or insolvent or take the benefit of any reorganization of composition proceedings or insolvency law, or make an assignment for the benefit of creditors, or if the BGSO's interest under this agreement shall be levied upon or attempted to be attached or sold under any process of law, or if a receiver shall be appointed for the BGSO, then and thereafter the City shall have the right and option to terminate this agreement irrespective of whether or not default exists hereunder, said determination to be effective immediately upon City's exercise of such option by giving written notice to the BGSO. 20.3 The parties agree that neither part shall be liable or responsible to the other for delays or impossibilities of performance caused by force majeure occurrences beyond the control of the parties including, but not limited to, civil disorder, fires, floods, or acts of God. BOTANICAL G ' ' EN SOCIETY OF T-kIE O INC. By: Blair Johanso esident ATTEST: BY: Name and title: CITY OF FAYETTEVILLE, ARKANSAS &d Coody, Mayor01 co 0 0) 0 cp 0 73 CD w a D- 0 D CDD n co 0. a5 ria 0)D 0 -4, esCDt (P0) Oa N0 SaJ Z 11: *it • 1