HomeMy WebLinkAboutC2007-423 - 12/5/2007 - NALEASEHOLD TERMINATION AGREEMENT
STATE of TEXAS ~
COUNTY of NLlEES
This leasehold termination and buyout agreement {"Agreement"} is made
and entered into by and between the City of Corpus Christi {"City"}, a Texas
harrre-rule municipal corporation, acting through its City lUlanager or his designee
{"City llanaer"}and Semtech Corpus Christi Corporation {"Lessee"}, a Texas
corporation, on the terms and conditions set forth ire this Agreement.
I~IIHEREAS, Lessee desires to prematurely terminate 'rts continued leae-
hold occupancy of City property located at the Corpus Christi International Air
port, being a portion of land out of Block Twenty-three ~~~}, ~. C. Russell Farm
Blocks {"Property"}, such occupancy granted under a prior agreement of sub-
lease, effective January ~ , ~ ~ ,and authorized by the City's City Council under
Ordinance Igo, 0~~2 {"sublease"};
INHEREA, in order to induce City to accept Lessee's early termination
offer to terminate its Sublease, Lessee agrees to the performance of certain
abiigations setforth in this Agreement; and
1HEREAS, the porkies agree that, upon Lessee's faithful performance
underthi Agreement and City's acceptance of such performance, such accep-
tance not to be unreasonably withheld, the Sublease between the parties will be
terminated.
Section ~. Projeot o~ligationa,
~A} llvithin ~ days of the execution of this Agreement, Lessee shall complete
the demolition of all buildings, structures} and improvements located on the
property, including but not limited to driveways and sidewalks {"lrnprovement"},
to a condition acceptable to the City, such acceptance not to be unreasonably
withheld; the abatement, by rerr~oval, of all contaminated materials and soils to
the extent required by stete law; and the restoration of all soils and grounds to a
condition acre t~bfe to ~~e Cit such acre Lance not to be unreasonabl
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withheld {collectively referred to as the "project"~.
{B} Proper completion of the Project includes the followin
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~~} Demolition and disposal of all buildings, structures, materials, fixtures,
and equipment located at the Property.
1~~~51U7
emtech corpus ~hri~ti ~rp•
~~~ Excavation of all ~n~provements to a depth of sip feet ~~'} below ground
level. All excavations must be backfilled with fill materials approved by
the pity Manager. The fill materials must be laid in layers not to ex-
ceed six {}inches. Each layer must be compacted to 5°l0 of stan-
dard proctor density, in accordance with the American Society for
Testing and Materials {ASTMS standards set out in ASTM DG9~, or its
current equivalent. Each layer must be tested far compliance with
ATM D8 and certified as such by an independent geotechnical lab.
{~ Leveiir~g and grading the remaining layered ground to prevent the
accumulation of standing water and to permit the Property to properly
drain. once graded, the ground must be cleared of a!l debris and
seeded with materials approved by the pity Manager to allow far future
mowing or for future farm use of the Property.
~4} Abatement and removal of ail asbestos contained in the lrr~prove-
ment, including, but not limited to, approximately ~O,ooO square feet
of floortile and approxir~ately 400 linear feet of back air duct joint
compound. Asbestos abatement must be performed and completed in
accordance v~rith ail federal and state laws, rules, and regulations.
~~} Remediation by removal of soils containing total petroleum
hydrocarbons ~"TP~I"} above state action levels observed in a ~-foot by 0-foot
area located adjacent to the transformers on the Property. Remediation must be
conducted in accordance with all federal and state laws, rules, and regulations,
{~} Submittal of a closure report to the Texas commission on
Environmental duality {"T~EQ"} documenting the actions taken and justification
for no further action. After ter"r~ination of the leasehold, Lessee shall continue to
perform all necessary tanks, including additional removal work if required by
TES, to obtain a "no further action" letker indicating satisfactory approval of the
T~EC~ that the completed remediation work on the Property meets state
requirements.
{} In lieu of the remediatian work and report submittal required to be performed
by Lessee under subsections ~B}~~} and ~~}{~~ only of this Section 1 of the
Agreement, Lessee may, within ten ~~ ~}days of execution of this Agreement,
notify the pity in writing that Lessee shall agree, in consideration of the pity
completing the work instead, to full financial liability forthe performance of all
work detailed in subsection ~B}{~~ and agree to reimburse the ityfor all
reasonable expenses, costs, and fees incurred by the pity to separately contract
to have the work performed on behalf of Lessee as required under this
Agreement.
cC Termination Agent 1 ~ -2fi-Q7 Final.doc Page 2 of 9
~1 } To avail itself of the benefit of this subsection, Lessee rust have
tendered all payments required under Section ~ of this Agreement,
within the time stated for the payments, by the time of receipt of
written notice to the pity.
~2} 1lalid notice must be provided in accordance with the notice provisions
of Section G of this Areer~ent.
{~~ Payment for completed Project work must be made in accordance
v~rith the provisions of Section ~ of this Agreer~ent. If the pity has not
completed the wark by the date the leasehold is terminated, Lessee's obligation
to make such payments steal! extend beyond the leasehold termination date.
Sect~vn ~. lease buyout Payments.
{A} Upon the execution of this Agreement, Lessee shall pay to the fit the sum
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of ~~5,000. This payment will be accepted by the pity, as settlement of all ast
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and future base rental and land rental amounts due under the Sublease, onl
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upon Lessee s full and complete performance of the terms of this Agreement,
~B} Upon the execution of this Agreement, Lessee shall pay to the pity the sum
of ,bo8.~~. This payment will be accepted by the pity, as settlerr~errt of all
past end future base and land rental consumer Price Index {"API"} adjustments
due underthe Sublease, only upon Lessee's foil and complete performance of
the terms of this Agreement,
{C} In the event that Lessee faits to reader the payments required under sub-
section {A}and {B} of this Section ~ of the Agreement or fails to cor~plete the
Project within o days as stated in this Agreement, all base and land rental
payments and all API adjustments due underth Sublease continue infullforce
and efrect until all performances and payments required under the provisions of
thisAreementhave been satisfied and the Project, at the Property, has been
accepted by the pity.
~D} In the event that Lessee requests the pity to separately contract for the
Project services at the Property under subsections {~}{} and {~~{~} of Section 1
of this Agreement, Lessee shall tenderpaymentto reimburse the ~ityforall
Project services within 1 o days of receipt of pity's ~rritten notice,to Lessee that
the Project services of subsection {B~~~} have been com feted to the satisfaction
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of the pity. The current estimate for the performance of Project services detailed
under subsection {B}{b~ of Section 1 of this Agreement is approximately ~ 5,o0g,
Lessee understands that ~b,OD~ is only n estimate; pity makes no representa~
Lions, warranties, orguarantees as to the final actual costto renrediate the
Property,
7ermir~atiar~ Agent 1 ~-2fi-4~ ~i~al.doe Page 3 of 9
{~} Any payments required under this Agreementmust be made to the i in
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the term of cash, cashier's cf~eck, or v~rire transfer.
sec#ivn ubcontr~cting.
~A} Any agent, representative, employee, or subcontractor of Lessee that is
contracted or assigned to perform services under this Agreement shall be
competent, capable, qualified, and shall be duly licensed or certified to perrorm
the services, if licenure or certification is required by the state of Texas for
performance of any portion of tbisAgreement.
{~} In r~o event shall the pity be liable for any contracts or subcontracts made or
entered into by Lessee v~rith any other person, partnership, association, arm,
corporation: or governmental entity.
section 4. Bonding and ~nuranoe.
Lessee shall observe sound business practices v~rith respect to providin such
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bonding and insurance as could provide adequate coverage far theork to b
performed under this Agreement; provided, ho~rever, that the foregoing provision
of this section shall in no ~vay be construed or deemed to limit or diminish the
insurance requirements set forth in the sublease Frith v~rhich Lessee must com l
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and ma~ntarn ~n force at all Mmes.
section 5. Indemnification,
{A) Lessee covenants and agrees that it will indemnify and hold
the City, its officers, officials, employees, representatives, and
agents (collectively, herein referred to as "Indemnitees"}
harmless of, from, and against all claims, demands, actions,
damages, losses, cosfs, Liabilities, expenses, and judgments
recovered from or asserted against the City on account of injury
or damage to persons or property (including, without limitation
on the foregoing, workers' compensation) to the extent any such
damage or injury may arise out of, or be caused by, the City
entering upon the Property to perform the Project, but not if
such damage or injury results from the negligence or wilful
misconduct of lndemnitees.
(B) These #erms of indemnification are effective upon the da#e
of execution of this Agreement.
(C} The Lessee covenants and agrees that, in case the City is
made a party to any litigation agains# the Lessee or in any
cC Termination Agmt'I1-26-07 Fi~nal.doc Page 4 ~f 9
litigation commenced by any party other than the Lessee re-
-ating to this Agreement and the Project confemplated under this
Agreement, the Lessee shall, upon receipt of reasonable notice
and at its own expense, investigate all claims and demands,
attend to their settlement or other disposition, defend the City in
al! actions based (hereon with legal counsel satisfactory to the
City Attorney, and pay all reasonable charges of attorneys and
all other costs and expenses of any kind whatsoever arising
from any said claims, demands, ac#ions, damages, losses,
costs, liabilities, expenses, or judgments.
Section G. Notice.
~A} All notices, demands, requests, or replies provided for or permitted under
this Agreement, by either party must be in writing and rust be delivered by one
of the following methods; ~~ } by personal delivery; ~~} by deposit with the Ur~lted
states Postal Service as certified or registered mail, return receipt requested,
postage prepaid; ~} by prepaid #elegram; ~4} by deposit with an overnight
express delivery service, for which service has been prepaid; or ~~~ by fax
transmission.
~~} Notice deposited with the United States Postal Service in the manner
described above will be deemed effective two ~~} business days after deposit
with the Uni#ed States Pos#al service. Notice by telegram or overnight express
delivery service will b deemed effective .one ~~ ~ business day after trann~issian
to the telegraph company or overnightexpress carrier. Notice by fax transmis-
sion will be deemed effective upon transmission, wi#h proof of confirmed delivery,
~} All such communications must only be made to the following.
if to the i
pity of ~or~us Christi
Attn: pity Manager
P. ~. Pox 977
corpus Christi, T~ 784B-g21~
~~~ } X89-2S-g 1 ~ ~ x~ ~9~ ~fFce
~G ~ } X80-0~~ Fa~c
if to the Lessee;
Seri#ech corpus Christi corp.
Attn: Todd Berman
2g0 Flynn Road
Camarillo, ~A 90 ~ -S~gO
~80~ 48D-004 office
~80~ 450-040 Fax
copy to emtech Leg a!
HOa-480-~ 1 ~ Fax
CC Termination Agmt 11-25-~7 Final.~oc Page ~ of 9
{D~ Either party r+nay grange the address to which notice is sent b u
y s~rrg a
method set out in subsection {A} of this section. Lessee shah noti the
f C~tyofan
address change ~rithin 10 days of the than e,
sec#ion 7. Compliance Frith Lavers.
Lessee shall, at all times, comply with all federal, state and Iocal laws r l
. , u es, and
regulations and with the orders and decrgies of an court adr~inistrative bod
Y ~ }~, or
tribunal related to the activities and performances of the Leegi under this
Agreement. Upon request by the City, Lessee shall furnish satisfacto r
. ry p oof of
its cornpl~ance wrth this section of the Agreement.
ect~on S. Amendments.
Any amendment or revision to the terms of this A regiment must be in writin
g and
executed by both parties to this Agreement. Modifications which do not char e
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the essential scope and purpose of this Agreement ma be a roved on b h
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of the City by the City Manager.
eotior~ 9. 1I1~aiver.
{A} The failure of either party to complain of n act oromission on the art of
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the ether party, rro matter how long the same nay continue, will not be deemed a
waiver by said party of any of its rights under this A regiment.
{~} ~Io waiver of any covenant or condition or of the breach of an covenantor
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cond~t~on of this Agreement by gi~ther party at any time, ex ress or im lied will bgi
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taken to constitute a waiver of any subsequent breach of the covenantor condi-
tion nor will justify or authorize the nonobservance on an other occasion of the
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same or any other covenant or condition of this Agreemgirr#.
~C~ if any action by Lessee requires the consent or a royal of the Cit on one
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occasion, any consent or approval given on said occasion will not be dgierned a
consent or approval of the same or any other action at an other occasion.
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{~} Any waiver or indulgence of Lessee's default of an revision of this
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Agreement will net be considered an estoppel against the fit , It i ex ressl
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understood Chet if, at any t~rn~, Lessee ~s ~n default of an of the conditions or
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provisions ~n this Agreement, the failure on the part of tl~e City to prom tl avail
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itself of any rights and remedies which the City may have will not be considered a
waiver on the part of the City, but tl~e City rrray at any time avail itself of said
rights or remedies, or the City may elect to terminate this A regiment on account
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of said default, following subm~ss~on of a written default native to Lessee,
{~} The rights and remedies in this section are cumulative and are in addition to
any other rights and remedies provided by law or in equity.
CC Termination Agmt 1 ~-~fi~07 Final.doc Page 6 ~f 9
section ~ D. everability.
~A} If, far any reason, any section, paragraph, subdivision, clause, provision,
phrase, orv~ord of thisAgreen~ent orthe application hereof to any person or
circumstance is, to any extent, held illegal, invalid, or unenforceable under
present orfuture la~nr ar by a final judgment of a court of competent jurisdiction,
then the remainder of this Agreement, or the application of said term or provision
to persons ar circumstances otherthan thane as to ~vhich it i held illegal, invalid,
or unenforceable, utirill not be affected thereby, far it is the definite intent of the
parties to this Agreement that every section, paragraph, subdivision, clause,
provision, phrase, ar vuord hereof be given full farce and effect for its purpose.
~B~ Ta the extent that any clause or provision i held illegal, invalid, ar un-
enforceable under present or future laver effective during the term of this
Agreement, then the remainder of this Agreement is not affected thereby, and in
lieu of each such illegal, invalid, or unenforceable clause yr provision, a clause or
provision, as sir~ilar in terms to such 'rllegal, invalid} or unenforceable clause or
provision as may be possible and be legal, valid, and enforceable, gill be added
to this Agreement automatically.
section ~~, Au#harity.
~A} Lessee assures and guarantees the pity that the Lessee possesses the
legal authority to enter into this Agreement and to perform tie services the
Lessee has obligated itself to perform under this Agreer~ent,
~B} The person ar persar~ signing and executing this Agreement ors behalf of
the Lessee, or representing themselves as signing and executing this Agreement
on behalf of the Lessee, do hereby uvarrant ar~d guarantee that he, she, or they
have been duly authorized by the Lessee to execute this Agreement an behalf of
the Lessee and to validly and legally bind the Lessee to ail terms, performances,
and provisions stated rn this Agreement.
ect'ron ~ ~. Applicable Law.
ThisAgreement i to be construed under and in accordance v~ith the lags of the
state of Texas, and all obligations of the parties created under this Agreer~ent
are performable in Nueces bounty, Texas,
ectian ~ 3, effective Date.
This Agreement is effective upon execution by the pity,
section ~4. Effect of or~pletion of Project.
CC Termination Agra ~1-2fi-07 Firtal.doc Fags T of 9
The parties rr~utualiy agree that the successful corrtpletion of the Project by
Lessee and acceptance of same by the pity, such acceptance net tv be
unreasonably withheld, and the payment of all monies due by the Lessee to the
pity underthis Agreement, will terminatethe provisions ofthe Sublease and
render them null and void, and Lessee and its affiliated companies, partners}
officers, directors, agents, employees, guarantors, successors, and assigns will
be fully released and dic#~arged from and againstany and all future claims,
derr~ands, damages, causes of action, obligations and liabilities of any nature
arising under or any way relating to the Sublease. Furtherr~ore, upon issuance
of a "no further action" letter by T~EQ under Section 'I ~S}~} or upon making the
final reimbursement payment under Section ~ ~}, Lessee and its affiliated
companies, partners} officers, directors, agents, er~ployees, guarantors,
successors, and assigns will be fully released and discharged from and against
any ar~d all future claims, demands, damages, causes o~ action, obligations and
liabilities of any nature arising under or any way relating to this Agreement.
ecti~n 1. entire Agreement.
This Agreement consti#utes the entire agreement between the parties as to the
performances required end con#ain ail ofthe terms and conditions agreed upon
by both parties. excluding the sublease between the parties that will remain in
effect anti! termination as provided in Section ~4, no other agreements, oral or
otherwise, regarding the subject }natter of thisAgreementshall be deemed to
exist or to bind the parties unless the same be in v~rriting, dated subsequent to the
date hereof, and duly executed by the parties.
{EXECUTIQN PAGE FOLLOWS)
Temn'rnation Agmt ~ 1-~~-~7 Finai.doc Page 8 of
Executed in dup~i~ate ariginals this ~ day of , ~0~7,
~T'TEST;
Armando Chapa
City Secretary ,
as to #~;
Arai nt ~~y Attu
~~r ity Attot~~y
GX1~C C~~
EIVITECH CORPUS CHRIT~ Co~iPORATIOhI ; Corporate headquarters
Camar~Ilo a~ifornia
~-f.~.
CITY ~~ oRPU CHRISTI
eo a ~. Noe
City Manager
Signatu~Podd German Signature - Emeka Chukwu
1 d~~ ~r rr-n4~~
Printed Name -Todd Berman
(I z~s IG
Date
Date
AfCNI~,EDMENT
STATE OF §
COUNTY OF U §
KN~11~AL~. ~YTHESE PRESENTS;
i ~
This instrument eras ac~Cnovuiedg~ed befor , me on the day of
2007 b o~ - a
y
the ~„ of Semteh ~or~us Christi ~orporatior~}
a Tex corporation, on behalf of the cor~ortian,
i
i
~ N~T~~Y PI.1~L1 State of
~~
''-~ • ,~
~~
~~~~r
Printed Name ~ Emeka Chuk~ru
T
CC ~`err~in~ti~n Agmt ~ ~-2~-07 Final.do~ Page 9 of ~
ALIF~RI~IA ALL-PURR~E AKN~INLED~I~ENT
State of California
County of
~n • ~ before me, ~~ ~ ~ ,
Date Name and Titfe of ofd r {e.g., °Jane Dne, Notary Public")
ersonall a eared
P Y pp ,
Names} of fgner~s}
^ personally known to me
~ ~~r°°a
i ~~~p '~'
~~ -
M!~ Co+rlre. Expk~ ~
proved to me on the basis of satin#actory evidence
to be the person whose nom ~ isla~e~ubscribed
to the within instrur~ent and ac nowiedged to me that
hel executed the same in hi
authorized capacity,~and that by hi
signature" on the instrument the person, or the
entity upon behalf of which the pero~ acted,
executed the instrurr~ent.
IIIIITN~S rr~y hand and official seal.
Pace I~atary Seal Above
ignitors of Rotary Public
~~~1~
Though the information below is not required by taw,lt may prove valtJabte to persons relying on the document
ana~ coula~ prevent fraudulent removal arrd reat~tachmentr of this form to anot#~er documenf
Description ~f Attached Docu
Title or Type of Docur~ent:
nt
Document Date:
Number of Pages:
~,
Signer(s) Other Than Named Above:
apacit~~ies~ Claimed by Signers ~
Signer's Name: _~.~ ~
^ Individual
Corporate officer -- Title~s~~_~, _+~~ ,~
^ Penner - ^ Limited ^ General - : ~ -
^ Attorney in Fact Top of thumb here
^ Trustee
^ Guardian or Conservator
^ ether:
i ner Is Repre anti
r
Signer's Name:
Individual
corporate officer - Title~s~;
Partner ~- ^ Limited ^ General
^ Attorney in Fait
^ Trustee
^ Guardian or Conservator
^ ether;
Signer Is Representing:
...
Top of thumb here
~ ~D04 National Notary Association • 9354 De Soto Ave., P.O. Box 2402 • Chatsworth, CA t}i313-2402 Item Na. 5987 Reorder. Call doll-Free 1-8D0-876-6827