Loading...
HomeMy WebLinkAbout028227 ORD - 07/07/2009AN ORDINANCE AUTHORIZING CITY MANAGER, OR DESIGNEE, TO EXECUTE A FIVE YEAR LEASE AGREEMENT, WITH A FIVE YEAR RENEWAL OPTION, AT THE CITY MANAGER'S, OR DESIGNEE'S, DISCRETION, WITH THE TEXAS COMMISSION ON ENVIRONMENTAL QUALITY FOR TWO AIR MONITORING STATION SITES AT OAK PARK PARK AND BAYVIEW (H.J. WILLIAMS) PARK; PROVIDING FOR SEVERANCE; AND PROVIDING FOR PUBLICATION. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF CORPUS CHRISTI, TEXAS, THAT: SECTION 1. The City Manager, or designee, is authorized to execute a five year Lease Agreement, with a five year renewal option, at the discretion of City Manager, or designee, with the Texas Commission on Environmental Quality for two air monitoring station sites at Oak Park Park and Bayview (H.J. Williams) Park. The Lease Agreement is attached as Exhibit A and a copy is on file with the City Secretary. SECTION 2. Under Article IX, Section 3 of the City Charter, the Lease Agreement begins on the 61St day after City Council adoption of this ordinance on second and final reading and will have a term of five (5) years, with an option to renew for an additional five (5) year period; and the second and final reading of this ordinance is at least twenty eight (28) days after the first reading. Each reading was done at a regular meeting of the City Council. SECTION 3. If for any reason any section, paragraph, subdivision, clause, phrase, word or provision of this ordinance is held invalid or unconstitutional by final judgment of a court of competent jurisdiction, it shall not affect any other section, paragraph, subdivision, clause, phrase, word, or provision of this ordinance, for it is the definite intent of this City Council that every section, paragraph, subdivision, clause, phrase, word or provision of this ordinance be given full force and effect for its purpose. SECTION 4. Publication shall be made in the official publication of the City of Corpus Christi as required by the City Charter of the City of Corpus Christi. 028227 TCEQ Air Monitoring Lease ORDINANCE That the foregoing ordifince was read for the first time and passed to its second reading on this the day of 9tA& , 2009, by the following vote: Joe Adame Chris N. Adler Brent Chesney Larry Elizondo, Sr. Kevin Kieschnick Priscilla G. Leal John E. Marez Nelda Martinez Mark Scott That the,oregoing ordinance was read for the second time and passed finally on this the ' day of *, 2„ , 2009, by the following vote: J Joe Adame Chris N. Adler Brent Chesney Larry Elizondo, Sr. Kevin Kieschnick Priscilla G. Leal John E. Marez Nelda Martinez Mark Scott PASSED AND APPROVED, this the *clay of ATTEST: Armando Chapa City Secretary APPROVED: 26th day of May, 2009: R. y,Reinin First Assistant City Attorney For City Attorney TCEQ Air Monitoring Lease 5+5 Ordinance 05182009 Joe A211 Mayor 02828 , 2009. 2 LEASE BETWEEN THE CITY OF CORPUS CHRISTI AND THE TEXAS COMMISSION ON ENVIRONMENTAL QUALITY STATE OF TEXAS § COUNTY OF NUECES § KNOW ALL BY THESE PRESENTS This lease is entered into by and between the City of Corpus Christi, a Texas home rule municipal corporation, acting through its duly authorized City Manager, or the City Manager's designee, and the Texas Commission on Environmental Quality, acting through its duly authorized agent, Matthew R. Baker, P.E., Monitoring Operations Division. Section 1. Definitions. For the purposes of this Lease: Abandoned means that the Leased Premises become vacant or deserted for a continuous period of (30) thirty days. City means the City of Corpus Christi, Nueces County, Texas, a home rule municipal corporation. City Manager means the City's City Manager or the City Manager's designee. City Council means the City Council of the City of Corpus Christi. Department means the City's Park and Recreation Department. Director means the City's Director of Park and Recreation or the Director of Park and Recreation's designee. Lease means this document, including all attachments and exhibits that are incorporated by reference into this document. Leased Premises means that portion of Oakpark Park and Bayview (H.J. Williams) Park found in Exhibits "A" and "B". Lessee means the Texas Commission on Environmental Quality (TCEQ) or assignee. Risk Manager means the City's Director of Risk Management or the Director of Risk Management's designee. Sign means any signs, advertisements, notices, or other lettering that are exhibited, inscribed, painted, erected, or affixed on or about the Premises, or any part of the Premises. TCEQ Air Monitoring Lease 5+5 05182009 Page 1 of 12 Exhibit A Section 2. Purpose. The purpose of this Lease, between the City and Lessee, is to enable Lessee to install and maintain a continuous air monitoring station. Lessee may not operate the Premises for any other purpose without the Director's prior written approval. Section 3. Leased Premises. The Leased Premises are certain real property, generally described as an area of land on Oakpark Park and on Bayview (H. J. Williams) Park and more specifically described on the attached and incorporated Exhibits "A" and "B". Section 4. Use of Leased Premises Subject to Lease. The Lessee's use of the Leased Premises is subject to the terms and conditions in this lease. This lease is made in consideration of the mutual promises and covenants contained in this lease. Section 5. Limitation of Leasehold. City does not warrant its title to the Leased Premises. This Lease and the rights and privileges granted Lessee in and to the Leased Premises are subject to all covenants, conditions, restrictions, and exceptions of record or apparent. Nothing contained in this Lease may be construed to imply the conveyance to Lessee of rights in the Leased Premises that exceed those owned by City. Section 6. Term. The City leases the Premises, subject to all terms and conditions of this Lease, to the Lessee for a period of five (5) years, unless sooner terminated under another section of this lease. This Lease begins on the 61st day after final approval by the City Council. Section 7. Option to Renew. The Lessee has the option to renew this lease for five (5) years on the same terms and conditions as set out in this lease. Lessee must exercise this option by giving the City notice at least thirty (30) days prior to the last day of the term of the lease. Section 8. Abandonment of Leased Premises. If the Lessee abandons the Leased Premises this Lease terminates automatically and City Manager may take immediate possession of the Leased Premises. Section 9. Cessation of Use. a. If Lessee for any reason ceases to use the Leased Premises for the purposes specified in Section 2, Lessee has the right to terminate this Lease by written notice to the City Manager. b. The written notice of termination must be given at least three (3) months prior to the effective date of termination. c. If the cessation of use occurs and continues for one (1) year or longer, and Lessee does not exercise the right to terminate this Lease, then the City may terminate this Page 2 of 12 TCEQ Air Monitoring Lease 5+5 05182009 Lease by giving Lessee at least thirty (30) days notice prior to the effective termination date. d. During any cessation of use, Lessee must maintain and regulate the use and occupancy of the Leased Premises at Lessee's expense as specified in this Lease. Upon termination or expiration of the Lease, the Lessee must remove the improvements from the Leased Premises. Section 10. Surrender. Subject to the holdover provisions in this Lease, Lessee acknowledges and understands that the City's agreement to lease the Premises to Lessee is expressly conditioned on the understanding that the Premises must be surrendered, upon the expiration, termination, or cancellation of this Lease, in as good a condition as received, reasonable use and wear, acts of God, fire and flood damage, or destruction where Lessee is without fault, excepted. Section 11. Consideration. a. For and in consideration of the rights and privileges granted in this lease, Lessee agrees to allow the City full access, via the Lessee's web page, to the monitoring information gathered by Lessee from the air monitoring station situated at the Leased Premises during the entire term of this Lease. Section 12. Alterations. a. Lessee may not make any alterations, additions, or improvements to, in, on, or about the Premises, without the prior consent of the Director. b. Prior to making any alterations, additions, or improvements to, in, on, or about the Premises, Lessee must submit the plans and specifications for the alterations, additions, or improvements to the Director for review. c. If the Director consents to the alterations, additions, or improvements, the Lessee shall obtain all required permits for the construction and the construction is subject to inspection by the Director, City's Building Official, Director of Engineering Services, and their designated representatives. Section 13. Assignment and Subleasing. a. Lessee may not assign or encumber this lease, without the prior written consent of the City Manager. Any assignment or sublease must be approved in advance by the City Manager. b. Upon approval of the assignment, Lessee may request the City to release Lessee from any further liability under the Lease. City will grant the release if the assignee covenants to assume all obligations and duties of Lessee of this Lease. c. Any attempted assignment or sublet without the prior written consent of the City Manager renders this Lease void. Page 3 of 12 TCEQ Air Monitoring Lease 5+5 05182009 d. An assignment of the Lease under the same terms and conditions is not an amendment of the Lease. e. Each provision, term, covenant, obligation, and condition required to be performed by Lessee must be binding upon any assignee, and is partial consideration for City's consent to the assignment. f. Any failure of assignee to strictly comply with each provision, term, covenant, obligation, and condition in this lease may render this Lease null and void. Section 14. Signs. a. Lessee may not exhibit, inscribe, paint, erect, or affix any Sign at, on, or about the Premises, or any part of this Lease, without the Director's prior written approval. b. The City may require Lessee to remove, repaint, or repair any Signs allowed. If Lessee does not remove, repaint, or repair the Signs within ten (30) days of Director's written demand, City may do or cause the work to be done, and Lessee shall pay the City's costs within thirty (30) days of receipt of the Director's invoice. If payment is not timely made, the City may terminate this Lease upon ten (10) days written notice to Lessee. Alternatively, the City may elect to terminate this Lease after ten (10) days written notice to Lessee. Section 15. Laws Affecting Operation of Premises and Performance. Lessee shall comply with all Federal, State, and local laws, ordinances, rules, and regulations applicable to Lessee's operation of the Premises and Lessee's performance under this Lease. This Lease is also subject to applicable provisions of the City Charter. Section 16. Nondiscrimination. Lessee covenants and agrees that Lessee will not discriminate nor permit discrimination against any person or group of persons, with regard to employment and the provision of services at, on, or in the Premises, on the grounds of race, religion, national origin, marital status, sex, age, disability, or in any manner prohibited by the laws of the United States or the State of Texas. The City hereby reserves the right to take the action as the United States may direct to enforce this covenant. Section 17. Drug Policy. Lessee must adopt a Drug Free Workplace and drug testing policy that substantially conforms to the City's policy. Section 18. Violence Policy. Lessee must adopt a Violence in the Workplace and related hiring policy that substantially conforms to the City's policy. Page 4 of 12 TCEQ Air Monitoring Lease 5+5 05182009 Section 19. Maintenance. Lessee shall maintain the Leased Premises and all improvements in good and safe condition during the Lease term. Section 20. Furniture, Fixtures, and Equipment. All personal property and trade fixtures furnished by or on behalf of Lessee remain the property of the Lessee, unless the personal property and trade fixtures are specifically donated to the City during the term of this Lease or any Holdover Period. Section 21. Utilities. Lessee shall pay for all utilities related to usage of Premises. Failure to pay any utility bill(s) prior to the due date constitutes grounds for termination of this Lease. Section 22. City Use. The City retains the right to use or cross the Premises with utility lines and easements. City may exercise these rights without compensation to Lessee for damages to the Premises from installing, maintaining, repairing, or removing the utility lines and easements. City must use reasonable judgment in locating the utility lines and easements to minimize damage to the Premises. Section 23. Indemnity. To the extent authorized by law, and in consideration of allowing Lessee to use the Premises, Lessee ("Indemnitor") covenants to fully indemnify, save and hold harmless the City, its officers, agents, representatives, and employees (collectively, "Indemnitees") from and against any and all liability, loss, damages, claims, demands, suits, and causes of action of any nature whatsoever asserted against or recovered from City on account of injury or damage to person including, without limitation on the foregoing, premises defects, workers' compensation and death claims, or property loss or damage of any other kind whatsoever, to the extent any injury, damage, or loss may be incident to, arise out of, be caused by, or be in any way connected with, either proximately or remotely, wholly or in part: (1) Lessee's performance under this Lease; (2) Lessee's use of the Premises and any and all activities associated with the Lessee's use of the Premises under this Lease; (3) the violation by Lessee, its officers, employees, agents, or representatives or by Indemnitees, or any of them, of any law, rule, regulation, ordinance, or government order of any kind pertaining, directly or indirectly, to this Lease; (4) the exercise of rights under this Lease; or (5) an act or omission on the part of Lessee, its officers, employees, agents, or representatives or of Indemnitees, or any of them, pertaining to this Lease, regardless of whether the injury, damage, loss, violation, exercise of rights, act, or omission is caused Page 5 of 12 TCEQ Air Monitoring Lease 5+5 05182009 or is claimed to be caused by the contributing or concurrent negligence of Indemnitees, or any of them, but not if caused by the sole negligence of Indemnitees, or any of them, unmixed with the fault of any other person or entity, and including all expenses of litigation, court costs, and attorneys' fees, which arise, or are claimed to arise, out of or in connection with the asserted or recovered incident. Lessee covenants and agrees that, if City is made a party to any litigation against Lessee or in any litigation commenced by any party, other than Lessee relating to this Lease, Lessee shall, upon receipt of reasonable notice regarding commencement of litigation, at its own expense, investigate all claims and demands, attend to their settlement or other disposition, defend City in all actions based thereon with legal counsel satisfactory to the City Attorney, and pay all charges of attorneys and all other costs and expenses of any kind whatsoever arising from any the liability, injury, damage, loss, demand, claim, or action. Section 24. Insurance. a. Lessee shall secure and maintain at Lessee's expense, during the term of this Lease, insurance of the type and with the amount of coverage shown on the attached Exhibit C, which is incorporated in this Lease by reference. Lessee shall use an insurance company or companies acceptable to the Risk Manager. Failure to maintain the insurance during the term of this Lease, at the limits and requirements shown on Exhibit A, constitutes grounds for termination of this Lease. b. The Certificate of Insurance must be sent to the Risk Manager prior to occupancy of and operations at the Premises. The Certificate of Insurance must provide that the City will have thirty (30) days advance written notice of cancellation, intent to not renew, material change, or termination of any coverage required in this Lease. c. Lessee shall provide, during the term of this Lease, copies of all insurance policies to the Risk Manager upon written request by the City Manager. d. The Risk Manager retains the right to annually review the amount and types of insurance maintained by Lessee, to require increased coverage limits, if necessary in the interest of public health, safety, or welfare, and to decrease coverage, if so warranted. In the event of any necessary increase, Lessee must receive thirty (30) days written notice prior to the effective date of the requirement to obtain increased coverage. Section 25. Default. Any of the following events constitute default under this Lease: (1) Failure to pay utilities before the due date. Page 6 of 12 TCEQ Air Monitoring Lease 5+5 05182009 (2) Failure to perform scheduled maintenance. (3) Abandonment of the Premises. (4) Failure to maintain any insurance coverages required in this lease. (5) Failure to timely pay City's invoice for the removal, repainting, or repair of any Signs at the Premises. (6) Failure to keep, perform, and observe any other promises, covenants and conditions contained in this Lease. Section 26. City's Remedies on Lessee's Default. a. Upon the occurrence of any event of default, the City may, at its option, in addition to any other remedy or right given under this Lease or by law: (1) Give notice to Lessee that this Lease terminates upon the date specified in the notice, which date will be no earlier than five (5) days after the giving of the notice. (2) Immediately or at any time after the occurrence of the event of default and without notice or demand, or upon the date specified in a notice, if given, or in any notice issued under law, enter upon the Premises or any part of this Premises in the name of the whole and, upon the entry, this Lease terminates. b. In the event of default by Lessee under Section [26], the City has the option to pursue any one or more of the remedies provided in this lease or afforded the City by law, without further notice or demand and without prejudice to any other remedy: (1) The City may enter into and upon the Premises and retake possession, by legal proceedings or otherwise, expel Lessee and anyone claiming through or under Lessee, remove Lessee's or a claimant's goods and effects, forcibly, if necessary, and store the goods in the name and at the expense of Lessee. (2) After retaking possession as set out in paragraph 1 of this section, or upon abandonment of the premises by Lessee, the City may at the City's option relet the premises or any part of the premises, in the name of the City or otherwise, for a term or terms that may be less than or exceed the period that would otherwise constitute the balance of the term of this lease. The term of such reletting by the City is evidence of the fair rental value of the premises for the balance of the term and the Lessee shall be liable to the City for the amount by which the rent and other charges due under this lease for the balance of its term exceeds the fair rental value of the premises for that period. Section 27. Enforcement Costs. In the event any legal action or proceeding is under taken by the City to repossess the Premises, collect the lease payment(s) due under this Lease, collect for any damages to the Premises, or to in any other way enforce the Page 7 of 12 TCEQ Air Monitoring Lease 5+5 05182009 provisions of this Lease, Lessee agrees to pay all court costs and expenses and the sum as a court of competent jurisdiction may adjudge reasonable as attorney's fees in the action or proceeding, or in the event of an appeal as allowed by an appellate court, if a judgment is rendered in favor of the City. Section 28. Modifications. No changes or modifications to this Lease may be made, nor any provisions waived, unless the change or modification is made in writing and signed by persons authorized to sign agreements on behalf of each party. Section 29. Contact Person/Lease Administrator. For this Lease, the City's contact person and lease administrator is the Director. Section 30. Notice. a. All notices, demands, requests, or replies provided for or permitted under this Lease by either party must be in writing and must be delivered by one of the following methods: (i) by personal delivery; (ii) by deposit with the United States Postal Service as certified or registered mail, return receipt requested, postage prepaid; (iii) by prepaid telegram; (iv) by deposit with an overnight express delivery service, for which service has been prepaid; or (v) by fax transmission. b. Notice deposited with the United States Postal Service in the manner described above will be deemed effective two (2) business days after deposit with the United States Postal Service. Notice by telegram or overnight express delivery service will be deemed effective one (1) business day after transmission to the telegraph company or overnight express carrier. Notice by fax transmission will be deemed effective upon transmission with proof of delivery. c. All the communications must only be made to the following: IF TO CITY: IF TO LESSEE: City of Corpus Christi TCEQ Attn: Director of Park and Recreation P.O. Box 13087 P. O. Box 9277 Austin, Texas Corpus Christi, Texas 78469-9277 78711-3087 d. Either party may change the address to which notice is sent by using a method set out in subsection c of this section. Lessee shall notify the City of an address change within ten (10) days after the address is changed. Section 31. Force Majeure. No party to this Lease shall be liable for delays or failures in performance due to any cause beyond their control including, without limitation, any delays or failures in performance caused by strikes, lock outs, fires, acts of God or the public enemy, common carrier, severe inclement weather, riots or interference by civil or military authorities. The delays or failures to perform extend the period of performance until these exigencies have been removed. The Lessee shall inform the City in writing Page 8 of 12 TCEQ Air Monitoring Lease 5+5 05182009 of proof of the force majeure within three (3) business days or otherwise waive this right as a defense. Section 32. Relationship of Parties. This Lease establishes a landlord/tenant relationship, and no other relationship. This Lease must be construed conclusively in favor of that relationship. In performing this Lease, both the City and Lessee will act in an individual capacity and not as agents, representatives, employees, employers, partners, joint -venturers, or associates of one another. The employees or agents of either party may not be, nor be construed to be, the employees or agents of the other party for any purpose. Section 33. Not for Benefit of Third Parties. This Lease is only for the benefit of the City and Lessee, and no third party has any rights or claims under this Lease or against the City. Section 34. Publication Costs. Lessee shall pay for the cost of publishing the Lease description and related ordinance, as required by the City's Charter, in the legal section of the local newspaper. Section 35. Interpretation. This Lease will be interpreted according to the Texas laws which govern the interpretation of contracts. Venue lies in Nueces County, Texas, where this Lease was entered into and will be performed. Section 36. Survival of Terms. Termination or expiration of this Lease for any reason does not release either party from any liabilities or obligations under this Lease that (a) the parties have expressly agreed survive any the termination or expiration; (b) remain to be performed; or (c) by their nature would be intended to be applicable following any the termination or expiration of this Lease. Section 37. Captions. The captions utilized in this Lease are for convenience only and do not in any way limit or amplify the terms or provisions of this Lease. Section 38. Severability. a. If, for any reason, any section, paragraph, subdivision, clause, provision, phrase, or word of this Lease or the application of this Lease to any person or circumstance is, to any extent, held illegal, invalid, or unenforceable under present or future law or by a final judgment of a court of competent jurisdiction, then the remainder of this Lease, or the application of the term or provision to persons or circumstances other than those as to which it is held illegal, invalid, or unenforceable, will not be affected by the law or judgment, for it is the definite intent of the parties to this Lease that every section, paragraph, subdivision, clause, provision, phrase, or word of this Lease be given full force and effect for its purpose. b. To the extent that any clause or provision is held illegal, invalid, or unenforceable under present or future law effective during the term of this Lease, then the remainder of this Lease is not affected the law, and in lieu of any illegal, invalid, or unenforceable clause or provision, a clause or provision, as similar in terms to the illegal, invalid, or Page 9 of 12 TCEQ Air Monitoring Lease 5+5 05182009 unenforceable clause or provision as may be possible and be legal, valid, and enforceable, will be added to this Lease automatically. Section 39. Venue. Venue lies in Nueces County, Texas, where this lease was entered into and will be performed. Section 40. Entirety Clause. This Lease and the attachments and exhibits incorporated into this Lease constitute the entire agreement between the City and Lessee for the purpose granted. All other agreements, promises, representations, and understandings, oral or otherwise, with reference to the subject matter of this Lease, unless contained in this Lease are expressly revoked, as the parties intend to provide for a complete understanding within the provisions of this Lease and its exhibits of the terms, conditions, promises, and covenants relating to Lessee's operations and the Premises to be used in the operations. Section 41. Binding Lease. It is further mutually understood and agreed that the covenants and agreements contained in the Lease, to be performed by the respective parties, are binding on the parties, and their respective successors and assigns. Section 42. Acknowledgment. Each party expressly agrees that it has independently read and understood this Lease. By Lessee's execution of this Lease, Lessee acknowledges and understands that this Lease is not binding on the City until properly authorized by the Council and executed by the City Manager or by his designee. Section 43. Effective Date. This Lease is effective on EXECUTED IN DUPLICATE, each of which shall be considered an original, on the day of July, 2009. Page 10 of 12 TCEQ Air Monitoring Lease 5+5 05182009 LESSEE: TEXAS COMMISSION ON ENVIRONMENTAL QUALITY By: Matthew R. Baker, P.E. Monitoring Operations Division STATE OF TEXAS § COUNTY OF NUECES § This instrument was acknowledged before me on June, 2009, by Matthew R. Baker, P.E., Monitoring Operations Division, on behalf of the Texas Commission on Environmental Quality. Notary Public, State of Texas Page 11 of 12 TCEQ Air Monitoring Lease 5+5 05182009 ATTEST: CITY OF CORPUS CHRISTI Armando Chapa 'Angel R. Escobar City Secretary City Manager APPROVED AS TO LEGAL FORM: This day of July, 2009. R. Jay Reining First Assistant City Attorney For City Attorney STATE OF TEXAS COUNTY OF NUECES This instrument was acknowledged before me on July , 2009, by 'Angel R. Escobar, City Manager, City of Corpus Christi, a Texas home rule municipal corporation, on behalf of the corporation. Notary Public, State of Texas Page 12 of 12 TCEQ Air Monitoring Lease 5+5 05182009 LEASE BETWEEN THE CITY OF CORPUS CHRISTI AND THE TEXAS COMMISSION ON ENVIRONMENTAL QUALITY STATE OF TEXAS KNOW ALL BY THESE PRESENTS COUNTY OF NUECES This lease is entered into by and between the City of Corpus Christi, a Texas home rule municipal corporation, acting through its duly authorized City Manager, or the City Manager's designee, and the Texas Commission on Environmental Quality, acting through its duly authorized agent, Matthew R. Baker, P.E., Monitoring Operations Division. Section 1. Definitions. For the purposes of this Lease: Abandoned means that the Leased Premises become vacant or deserted for a continuous period of (30) thirty days. City means the City of Corpus Christi, Nueces County, Texas, a home rule municipal corporation. City Manager means the City's City Manager or the City Manager's designee. City Council means the City Council of the City of Corpus Christi. Department means the City's Park and Recreation Department. Director means the City's Director of Park and Recreation or the Director of Park and Recreation's designee. Lease means this document, including all attachments and exhibits that are incorporated by reference into this document. Leased Premises means that portion of Oakpark Park and Bayview (H.J. Williams) Park found in Exhibits "A" and "B". Lessee means the Texas Commission on Environmental Quality (TCEQ) or assignee. Risk Manager means the City's Director of Risk Management or the Director of Risk Management's designee. Sign means any signs, advertisements, notices, or other lettering that are exhibited, inscribed, painted, erected, or affixed on or about the Premises, or any part of the Premises. TCEQ Air Monitoring Lease 54-5 05182009 Page 1 of 12 Exhibit A Section 2. Purpose. The purpose of this Lease, between the City and Lessee, is to enable Lessee to install and maintain a continuous air monitoring station. Lessee may not operate the Premises for any other purpose without the Director's prior written approval. Section 3. Leased Premises. The Leased Premises are certain real property, generally described as an area of land on Oakpark Park and on Bayview (H. J. Williams) Park and more specifically described on the attached and incorporated Exhibits "A" and "B". Section 4. Use of Leased Premises Subject to Lease. The Lessee's use of the Leased Premises is subject to the terms and conditions in this lease. This lease is made in consideration of the mutual promises and covenants contained in this lease. Section 5. Limitation of Leasehold. City does not warrant its title to the Leased Premises. This Lease and the rights and privileges granted Lessee in and to the Leased Premises are subject to all covenants, conditions, restrictions, and exceptions of record or apparent. Nothing contained in this Lease may be construed to imply the conveyance to Lessee of rights in the Leased Premises that exceed those owned by City. Section 6. Term. The City leases the Premises, subject to all terms and conditions of this Lease, to the Lessee for a period of five (5) years, unless sooner terminated under another section of this lease. This Lease begins on the 61st day after final approval by the City Council. Section 7. Option to Renew. The Lessee has the option to renew this lease for five (5) years on the same terms and conditions as set out in this lease. Lessee must exercise this option by giving the City notice at least thirty (30) days prior to the last day of the term of the lease. Section 8. Abandonment of Leased Premises. If the Lessee abandons the Leased Premises this Lease terminates automatically and City Manager may take immediate possession of the Leased Premises. Section 9. Cessation of Use. a. If Lessee for any reason ceases to use the Leased Premises for the purposes specified in Section 2, Lessee has the right to terminate this Lease by written notice to the City Manager. b. The written notice of termination must be given at least three (3) months prior to the effective date of termination. c. If the cessation of use occurs and continues for one (1) year or longer,•and Lessee does not exercise the right to terminate this Lease, then the City may terminate this Page 2 of 12 TCEQ Air Monitoring Lease 5+5 05182009 Lease by giving Lessee at least thirty (30) days notice prior to the effective termination date. d. During any cessation of use, Lessee must maintain and regulate the use and occupancy of the Leased Premises at Lessee's expense as specified in this Lease. Upon termination or expiration of the Lease, the Lessee must remove the improvements from the Leased Premises. Section 10. Surrender. Subject to the holdover provisions in this Lease, Lessee acknowledges and understands that the City's agreement to lease the Premises to Lessee is expressly conditioned on the understanding that the Premises must be surrendered, upon the expiration, termination, or cancellation of this Lease, in as good a condition as received, reasonable use and wear, acts of God, fire and flood damage, or destruction where Lessee is without fault, excepted. Section 11. Consideration. a. For and in consideration of the rights and privileges granted in this lease, Lessee agrees to allow the City full access, via the Lessee's web page, to the monitoring information gathered by Lessee from the air monitoring station situated at the Leased Premises during the entire term of this Lease. Section 12. Alterations. a. Lessee may not make any alterations, additions, or improvements to, in, on, or about the Premises, without the prior consent of the Director. b. Prior to making any alterations, additions, or improvements to, in, on, or about the Premises, Lessee must submit the plans and specifications for the alterations, additions, or improvements to the Director for review. c. If the Director consents to the alterations, additions, or improvements, the Lessee shall obtain all required permits for the construction and the construction is subject to inspection by the Director, City's Building Official, Director of Engineering Services, and their designated representatives. Section 13. Assignment and Subleasing. a. Lessee may not assign or encumber this lease, without the prior written consent of the City Manager. Any assignment or sublease must be approved in advance by the City Manager. b. Upon approval of the assignment, Lessee may request the City to release Lessee from any further liability under the Lease. City will grant the release if the assignee covenants to assume all obligations and duties of Lessee of this Lease. c. Any attempted assignment or sublet without the prior written consent of the City Manager renders this Lease void. Page 3 of 12 TCEQ Air Monitoring Lease 5+5 05182009 d. An assignment of the Lease under the same terms and conditions is not an amendment of the Lease. e. Each provision, term, covenant, obligation, and condition required to be performed by Lessee must be binding upon any assignee, and is partial consideration for City's consent to the assignment. f. Any failure of assignee to strictly comply with each provision, term, covenant, obligation, and condition in this lease may render this Lease null and void. Section 14. Signs. a. Lessee may not exhibit, inscribe, paint, erect, or affix any Sign at, on, or about the Premises, or any part of this Lease, without the Director's prior written approval. b. The City may require Lessee to remove, repaint, or repair any Signs allowed. If Lessee does not remove, repaint, or repair the Signs within ten (30) days of Director's written demand, City may do or cause the work to be done, and Lessee shall pay the City's costs within thirty (30) days of receipt of the Director's invoice. If payment is not timely made, the City may terminate this Lease upon ten (10) days written notice to Lessee. Alternatively, the City may elect to terminate this Lease after ten (10) days written notice to Lessee. Section 15. Laws Affecting Operation of Premises and Performance. Lessee shall comply with all Federal, State, and local laws, ordinances, rules, and regulations applicable to Lessee's operation of the Premises and Lessee's performance under this Lease. This Lease is also subject to applicable provisions of the City Charter. Section 16. Nondiscrimination. Lessee covenants and agrees that Lessee will not discriminate nor permit discrimination against any person or group of persons, with regard to employment and the provision of services at, on, or in the Premises, on the grounds of race, religion, national origin, marital status, sex, age, disability, or in any manner prohibited by the laws of the United States or the State of Texas. The City hereby reserves the right to take the action as the United States may direct to enforce this covenant. Section 17. Drug Policy. Lessee must adopt a Drug Free Workplace and drug testing policy that substantially conforms to the City's policy. Section 18. Violence Policy. Lessee must adopt a Violence in the Workplace and related hiring policy that substantially conforms to the City's policy. Page 4 of 12 TCEQ Air Monitoring Lease 5+5 05182009 Section 19. Maintenance. Lessee shall maintain the Leased Premises and all improvements in good and safe condition during the Lease term. Section 20. Furniture, Fixtures, and Equipment. All personal property and trade fixtures furnished by or on behalf of Lessee remain the property of the Lessee, unless the personal property and trade fixtures are specifically donated to the City during the term of this Lease or any Holdover Period. Section 21. Utilities. Lessee shall pay for all utilities related to usage of Premises. Failure to pay any utility bill(s) prior -to the due date constitutes grounds for termination of this Lease. Section 22. City Use. The City retains the right to use or cross the Premises with utility lines and easements. City may exercise these rights without compensation to Lessee for damages to the Premises from installing, maintaining, repairing, or removing the utility lines and easements. City must use reasonable judgment in locating the utility lines and easements to minimize damage to the Premises. Section 23. Indemnity. To the extent authorized by law, and in consideration of allowing Lessee to use the Premises, Lessee ("Indemnitor") covenants to fully indemnify, save and hold harmless the City, its officers, agents, representatives, and employees (collectively, "Indemnitees") from and against any and all liability, loss, damages, claims, demands, suits, and causes of action of any nature whatsoever asserted against or recovered from City on account of injury or damage to person including, without limitation on the foregoing, premises defects, workers' compensation and death claims, or property loss or damage of any other kind whatsoever, to the extent any injury, damage, or loss may be incident to, arise out of, be caused by, or be in any way connected with, either proximately or remotely, wholly or in part: (1) Lessee's performance under this Lease; (2) Lessee's use of the Premises and any and all activities associated with the Lessee's use of the Premises under this Lease; (3) the violation by Lessee, its officers, employees, agents, or representatives or by Indemnitees, or any of them, of any law, rule, regulation, ordinance, or government order of any kind pertaining, directly or indirectly, to this Lease; (4) the exercise of rights under this Lease; or (5) an act or omission on the part of Lessee, its officers, employees, agents, or representatives or of Indemnitees, or any of them, pertaining to this Lease, regardless of whether the injury, damage, loss, violation, exercise of rights, act, or omission is caused Page 5 of 12 TCEQ Air Monitoring Lease 5+5 05182009 or is claimed to be caused by the contributing or concurrent negligence of Indemnitees, or any of them, but not if caused by the sole negligence of Indemnitees, or any of them, unmixed with the fault of any other person or entity, and including all expenses of litigation, court costs, and attorneys' fees, which arise, or are claimed to arise, out of or in connection with the asserted or recovered incident. Lessee covenants and agrees that, if City is made a party to any litigation against Lessee or in any litigation commenced by any party, other than Lessee relating to this Lease, Lessee shall, upon receipt of reasonable notice regarding commencement of litigation, at its own expense, investigate all claims and demands, attend to their settlement or other disposition, defend City in all actions based thereon with legal counsel satisfactory to the City Attorney, and pay all charges of attorneys and all other costs and expenses of any kind whatsoever arising from any the liability, injury, damage, loss, demand, claim, or action. Section 24. Insurance. a. Lessee shall secure and maintain at Lessee's expense, during the term of this Lease, insurance of the type and with the amount of coverage shown on the attached Exhibit C, which is incorporated in this Lease by reference. Lessee shall use an insurance company or companies acceptable to the Risk Manager. Failure to maintain the insurance during the term of this Lease, at the limits and requirements shown on Exhibit A, constitutes grounds for termination of this Lease. b. The Certificate of Insurance must be sent to the Risk Manager prior to occupancy of and operations at the Premises. The Certificate of Insurance must provide that the City will have thirty (30) days advance written notice of cancellation, intent to not renew, material change, or termination of any coverage required in this Lease. c. Lessee shall provide, during the term of this Lease, copies of all insurance policies to the Risk Manager upon written request by the City Manager. d. The Risk Manager retains the right to annually review the amount and types of insurance maintained by Lessee, to require increased coverage limits, if necessary in the interest of public health, safety, or welfare, and to decrease coverage, if so warranted. In the event of any necessary increase, Lessee must receive thirty (30) days written notice prior to the effective date of the requirement to obtain increased coverage. Section 25. Default. Any of the following events constitute default under this Lease: (1) Failure to pay utilities before the due date. Page 6 of 12 TCEQ Air Monitoring Lease 5+5 05182009 (2) Failure to perform scheduled maintenance. (3) Abandonment of the Premises. (4) Failure to maintain any insurance coverages required in this lease. (5) Failure to timely pay City's invoice for the removal, repainting, or repair of any Signs at the Premises. (6) Failure to keep, perform, and observe any other promises, covenants and conditions contained in this Lease. Section 26. City's Remedies on Lessee's Default. a. Upon the occurrence of any event of default, the City may, at its option, in addition to any other remedy or right given under this Lease or by law: (1) Give notice to Lessee that this Lease terminates upon the date specified in the notice, which date will be no earlier than five (5) days after the giving of the notice. (2) Immediately or at any time after the occurrence of the event of default and without notice or demand, or upon the date specified in a notice, if given, or in any notice issued under law, enter upon the Premises or any part of this Premises in the name of the whole and, upon the entry, this Lease terminates. b. In the event of default by Lessee under Section [26], the City has the option to pursue any one or more of the remedies provided in this lease or afforded the City by law, without further notice or demand and without prejudice to any other remedy: (1) The City may enter into and upon the Premises and retake possession, by legal proceedings or otherwise, expel Lessee and anyone claiming through or under Lessee, remove Lessee's or a claimant's goods and effects, forcibly, if necessary, and store the goods in the name and at the expense of Lessee. (2) After retaking possession as set out in paragraph 1 of this section, or upon abandonment of the premises by Lessee, the City may at the City's option relet the premises or any part of the premises, in the name of the City or otherwise, for a term or terms that may be less than or exceed the period that would otherwise constitute the balance of the term of this lease. The term of such reletting by the City is evidence of the fair rental value of the premises for the balance of the term and the Lessee shall be liable to the City for the amount by which the rent and other charges due under this lease for the balance of its term exceeds the fair rental value of the premises for that period. Section 27. Enforcement Costs. In the event any legal action or proceeding is under taken by the City to repossess the Premises, collect the lease payment(s) due under this Lease, collect for any damages to the Premises, or to in any other way enforce the Page 7 of 12 TCEQ Air Monitoring Lease 5+5 05182009 provisions of this Lease, Lessee agrees to pay all court costs and expenses and the sum as a court of competent jurisdiction may adjudge reasonable as attorney's fees in the action or proceeding, or in the event of an appeal as allowed by an appellate court, if a judgment is rendered in favor of the City. Section 28. Modifications. No changes or modifications to this Lease may be made, nor any provisions waived, unless the change or modification is made in writing and signed by persons authorized to sign agreements on behalf of each party. Section 29. Contact Person/Lease Administrator. For this Lease, the City's contact person and lease administrator is the Director. Section 30. Notice. a. All notices, demands, requests, or replies provided for or permitted under this Lease by either party must be in writing and must be delivered by one of the following methods: (i) by personal delivery; (ii) by deposit with the United States Postal Service as certified or registered mail, return receipt requested, postage prepaid; (iii) by prepaid telegram; (iv) by deposit with an overnight express delivery service, for which service has been prepaid; or (v) by fax transmission. b. Notice deposited with the United States Postal Service in the manner described above will be deemed effective two (2) business days after deposit with the United States Postal Service. Notice by telegram or overnight express delivery service will be deemed effective one (1) business day after transmission to the telegraph company or overnight express carrier. Notice by fax transmission will be deemed effective upon transmission with proof of delivery. c. All the communications must only be made to the following: IF TO CITY: IF TO LESSEE: City of Corpus Christi TCEQ Attn: Director of Park and Recreation P.O. Box 13087 P. O. Box 9277 Austin, Texas Corpus Christi, Texas 78469-9277 78711-3087 d. Either party may change the address to which notice is sent by using a method set out in subsection c of this section. Lessee shall notify the City of an address change within ten (10) days after the address is changed. Section 31. Force Majeure. No party to this Lease shall be liable for delays or failures in performance due to any cause beyond their control including, without limitation, any delays or failures in performance caused by strikes, lock outs, fires, acts of God or the public enemy, common carrier, severe inclement weather, riots or interference by civil or military authorities. The delays or failures to perform extend the period of performance until these exigencies have been removed. The Lessee shall inform the City in writing Page 8 of 12 TCEQ Air Monitoring Lease 5+5 05182009 of proof of the force majeure within three (3) business days or otherwise waive this right as a defense. Section 32. Relationship of Parties. This Lease establishes a landlord/tenant relationship, and no other relationship. This Lease must be construed conclusively in favor of that relationship. In performing this Lease, both the City and Lessee will act in an individual capacity and not as agents, representatives, employees, employers, partners, joint -venturers, or associates of one another. The employees or agents of either party may not be, nor be construed to be, the employees or agents of the other party for any purpose. Section 33. Not for Benefit of Third Parties. This Lease is only for the benefit of the City and Lessee, and no third party has any rights or claims under this Lease or against the City. Section 34. Publication Costs. Lessee shall pay for the cost of publishing the Lease description and related ordinance, as required by the City's Charter, in the legal section of the local newspaper. Section 35. Interpretation. This Lease will be interpreted according to the Texas laws whichgovern the interpretation of contracts. Venue lies in Nueces County, Texas, where this Lease was entered into and will be performed. Section 36. Survival of Terms. Termination or expiration of this Lease for any reason does not release either party from any liabilities or obligations under this Lease that (a) the parties have expressly agreed survive any the termination or expiration; (b) remain to be performed; or (c) by their nature would be intended to be applicable following any the termination or expiration of this Lease. Section 37. Captions. The captions utilized in this Lease are for convenience only and do not in any way limit or amplify the terms or provisions of this Lease. Section 38. Severability. a. If, for any reason, any section, paragraph, subdivision, clause, provision, phrase, or word of this Lease or the application of this Lease to any person or circumstance is, to any extent, held illegal, invalid, or unenforceable under present or future law or by a final judgment of a court of competent jurisdiction, then the remainder of this Lease, or the application of the term or provision to persons or circumstances other than those as to which it is held illegal, invalid, or unenforceable, will not be affected by the law or judgment, for it is the definite intent of the parties to this Lease that every section, paragraph, subdivision, clause, provision, phrase, or word of this Lease be given full force and effect for its purpose. b. To the extent that any clause or provision is held illegal, invalid, or unenforceable under present or future law effective during the term of this Lease, then the remainder of this Lease is not affected the law, and in lieu of any illegal, invalid, or unenforceable clause or provision, a clause or provision, as similar in terms to the illegal, invalid, or Page 9 of 12 TCEQ Air Monitoring Lease 5+5 05182009 unenforceable clause or provision as may be possible and be legal, valid, and enforceable, will be added to this Lease automatically. Section 39. Venue. Venue lies in Nueces County, Texas, where this lease was entered into and will be performed. Section 40. Entirety Clause. This Lease and the attachments and exhibits incorporated into this Lease constitute the entire agreement between the City and Lessee for the purpose granted. All other agreements, promises, representations, and understandings, oral or otherwise, with reference to the subject matter of this Lease, unless contained in this Lease are expressly revoked, as the parties intend to provide for a complete understanding within the provisions of this Lease and its exhibits of the terms, conditions, promises, and covenants relating to Lessee's operations and the Premises to be used in the operations. Section 41. Binding Lease. It is further mutually understood and agreed that the covenants and agreements contained in the Lease, to be performed by the respective parties, are binding on the parties, and their respective successors and assigns. Section 42. Acknowledgment. Each party expressly agrees that it has independently read and understood this Lease. By Lessee's execution of this Lease, Lessee acknowledges and understands that this Lease is not binding on the City until properly authorized by the Council and executed by the City Manager or by his designee. Section 43. Effective Date. This Lease is effective on EXECUTED IN DUPLICATE, each of which shall be considered an original, on the day of July, 2009. Page 10 of 12 TCEQ Air Monitoring Lease 5+5 05182009 LESSEE: TEXAS COMMISSION ON ENVIRONMENTAL QUALITY By: Matthew R. Baker, P.E. Monitoring Operations Division STATE OF TEXAS COUNTY OF NUECES This instrument was acknowledged before me on June, 2009, by Matthew R. Baker, P.E., Monitoring Operations Division, on behalf of the Texas Commission on Environmental Quality. Notary Public, State of Texas Page 11 of 12 TCEQ Air Monitoring Lease 5+5 05182009 ATTEST: CITY OF CORPUS CHRISTI Armando Chapa 'Angel R. Escobar City Secretary City Manager APPROVED AS TO LEGAL FORM: This day of July, 2009. R. Jay Reining First Assistant City Attorney For City Attorney STATE OF TEXAS § COUNTY OF NUECES § This instrument was acknowledged before me on July , 2009, by 'Angel R. Escobar, City Manager, City of Corpus Christi, a Texas home rule municipal corporation, on behalf of the corporation. Notary Public, State of Texas Page 12 of 12 TCEQ Air Monitoring Lease 5+5 05182009 State of Texas County of Nueces PUBLISHER'S AFFIDAVIT } CITY OF CORPUS CHRISTI } Ad # 5906940 PO # Before me, the undersigned, a Notary Public, this day personally came JENNIFER HOBBS, who being first duly sworn, according to law, says that she is LEGAL SALES REPRESENTITIVE AND EMPLOYEE OF THE PUBLISHER, namely, the Corpus Christi Caller -Times, a daily newspaper published at Corpus Christi in said City and State, generally circulated in Aransas, Bee, Brooks, Duval, Jim Hogg, Jim Wells, Karnes, Kenedy, Kleberg, Live Oak, Nueces, Refugio, San Patricio, Victoria and Webb Counties, and that the publication of, NOTICE OF PASSAGE OF OR DINANCE ON FIRST which the annexed is a true copy, was inserted in the Corpus Christi Caller -Times on the 6/14/2009,6/14/2009. $ 146.59 1Time(s) On this%r"klay of is a true and an exact GWENN J. MEDINA MY COMMISSION EXPIRES August 2,2012 ertify that the attached document py made by publisher. Public, State of Texas 022221 L June 14, 2009 NOTICE OF PASSAGE OF OR- DINANCE ON FIRST READING Authorizing the City Manager or his de- signee to execute a five-year lease agreement with a five-year renewal op- tion, at the City Manager's or designee's discretion, with the Texas Com- mission .on Environmental Quality for two air monitoring station sites at Oakpark Park and Bayview (H. J. Williams) Park;. for and in consideration of the dghtsand privi- leges granted in this lease, Lessee agrees to allow the City full access, via the Lessee's web page, to the monitoring in- formation gathered by lessee from the air monitoring station situated at the Leased Preimises during the entire term of this lease; provid- ing for publication. /s/Armando Chapa City Secretary City of Corpus Christi State of Texas County of Nueces } } PUBLISHER'S AFFIDAVIT CITY OF CORPUS CHRISTI Ad # 5910289 PO # Before me, the undersigned, a Notary Public, this day personally came JENNIFER HOBBS, who being first duly sworn, according to law, says that she is LEGAL SALES REPRESENTITIVE AND EMPLOYEE OF THE PUBLISHER, namely, the Corpus Christi Caller -Times, a daily newspaper published at Corpus Christi in said City and State, generally circulated in Aransas, Bee, Brooks, Duval, Jim Hogg, Jim Wells, Karnes, Kenedy, Kleberg, Live Oak, Nueces, Refugio, San Patricio, Victoria and Webb Counties, and that the tfax- 7 publication of, NOTICE OF PASSAGE OF ORDINANCE NO. 0282211which the annexed is a true copy, was inserted in the Corpus Christi Caller -Times on the 7/12/2009,- $ 158.55 1Time(s) On this 9 r't day of is a true and an exac Si1jttO IsrLEG 1REPRESENTIVE t1`) certify that the attached document by publisher. Nitary Public, State of Texas GWENNJ.MEDINA MY COMMISSION EXPIRES s,',an? Auguat2, EOM CALLER -TIMES H July12, 2009 a 7E Legal Notices 1110 NOTICE OF PASSAGEOF ORDINANE NO. 028227 Authorizing the City Manager or his de- signee.to execute a five-year lease agreement with a five-year renewal op- tion, at the City Manager'sor designee's discretion, with the Texas Com- mission _.on Environmental Quality for two air monitoring station sites at Oakpark Park and Bayview (H. J. Williams) Park; for and in consideration of the rights and privi- leges granted in this lease, Lessee agrees to allow the City full access, ` via. the Lessee's web page, to the monitoring in- formation' gathered by lessee from the air monitoring station situated at 'the Leased Preimises during the entire term of this lease; provid- ing for publication. This ordinance was passed and approved on its second reading on July 7, 2009. /s/Armando Chapa City Secretary City of Corpus Christi