HomeMy WebLinkAboutC2009-253 - 7/7/2009 - ApprovedLEASE B'~TWEEN
THE CITY ~F CORPUS CHRISTI AND
THE TEXAS COMMISSION ON ENVIRONMENTAL QUALITY
STATE 4F TEXAS §
COUNTY OF NUECES §
KNw ALL BY THEE PREENT
This lease i entered into brand between the CityofCorpus Christi, ~ Texas home rule
municipal corporation, acting through its duly authorized City Manager, or the City
Manager's designee, and the Texas Cor~~nision on Environmental C~uality, acting
through its duly authorized agent, Matthew R. Baker, H.E., Monitoring operations
Division.
ectior~ ~. Definitions. Far the purposes of this Lease:
A,~ar~~onea~ means that the Leased Premises become vacant or deserted for a
continuous period of ~~o}thirty days.
ray means the City of Corpus Christi, Nuece County, Texas, a home rule
municipal corporation.
i~yN~arragermean the City's City Manager or the City Manager's designee.
C~~y Co~ncf~ means the City Council of the City of Corpus Christi.
De~ar~en~ means the City's Hark and Recreation Department,
D~r~ec~ormeans the City's Director of Park and Recreation or the Director of Park
and Recreation's designee.
Loose means this document, including ail attachments and exhibits that are
incorporated by reference into this document.
Leased Premises means that portion of ~akpark Park and Bayview ~FI.J.
vVilfiams~ Park found in Exhibits "A" and `{B".
Lessee means the Texas Commission on Environmental duality ~TCEC} or
assignee.
fislc 1~arrae~means the City's Directorof Risk Management orthe Director of
Risk Management's designee.
sign means any signs, advertisements: notices, or other lettering that are
exhibited, inscribed, painted, erected, or affixed on ar about the Premises, or any
part of the Premises.
TCEQ
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Section ~. 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 . Leased Premises.
The Leased Premises are certain real property, generally described a an area of land
on aakpark Park and on Bayviev~r {H. ~. IlVilliams~ Park and r~ore specifically described
on the attached and incorporated Exhibits "A"and "B"
Section 4. Use ~~ Leased Premises Subject t~ 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 ~. Limitation ~~ Leasehold. City does not ~rarrant 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. Nathing contained in this Lease may be construed to imply the
conveyance to Lessee of rights in the Leased Premises that exceed thane awned by
City.
Section . Term. The City leases the Premises, subject to all terms and conditions of
this Lease, to the Lessee far a period of five {b~ years, unless sooner terminated under
another section ofthis lease, This Lease begins on the ~~~t day afterfinal approval by
the pity Council.
Section ~. option to Rene~r. The Lessee has the option to rene~r this lease for five
{b} years on the carne terms and conditions as set out in this lease. Lessee must
exercise this option by giving the City native at least thirty {3a}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 ~. Cessation ~~ Use.
a. if Lessee for any reason ceases to use the Leased Premises far the purposes
specified in Scotian 2, Lessee has the right to terminate this Lease by written notice to
the C'rty Manager.
b~ The written native of termination rust be given at least three {~~ months prior to the
effective date of termination.
c. if the cessation of use occurs and continues far one {~1} year or longer, and Lessee
does not exercise the right to terminate this Lease, then the City may terminate this
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TCEQ Air ManMtarin~ Lase ~5 05~ 8~009.dac
Lease by giving Lessee at least thirty X30}days notice prior to the effective termination
date.
d. During any cessation of use, Lessee must rr~aintain and regulate the use and
occupancy of the Leased Premises at Lessee's expense as specified in this Lease.
Upon termination yr expiration of the Lease, the Lessee must remove the improvements
from the Leased Premises.
eotian ~ ~. surrender. ub~ect to the holdover provisions in this Lease, Lessee
acknowledges and understands that the Dity'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 hod, fire and flood damage, or
destruction where Lessee is without fault, excepted.
section ~ ~ . anideration.
a~ For and in consideration of the rights and privileges granted in this lease, Lessee
agrees to allow the pity full access, via the Lessee's web page, to the monitoring
information gathered by Lessen from the air monitoring station situated at the Leased
Premises during the entire term of this Lease.
eotion 1 ~. Afteration.
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 Directorfor review.
c. If the Director consents to the alterations, additions, or improvements, the Lessee
shall obtain ali required permits far the construction and the construction is subject to
inspection by the Director, pity's Building ofhcial, Director of Engineering services, end
their designated representatives.
section ~ . Assignment and subleasing.
a. Lessee may not assign or encumber this lease, without the prior written consent of
the pity Manager, Any assignrr~ent or sublease must be approved in advance by the
pity IUlanager,
b. Upon approval of the assignment, Lessee may request the pity to release Lessee
from any further liability under the Lease. pity gill 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 prier written consent of the pity
Manager renders this Lease void,
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TCEQ Air Monitoring Lease 55 0~182oo9,doo
d. An assignment of the Lease under the sane terms and conditions is not an
amendment of the Lease.
e, Each provision, terra, covenant, obligation, and condition required to be performed
by Lessee must be binding upon any assignee, and is partial consideration far City's
consent to the assignment.
f. Any failure of assignee to strictly comply with each provision, terra, covenants
obligation, and condition in this lease may renderthi Lease null and void.
Section ~ 4. Signs.
a, Lessee may not exhibit, inscribe, paint, erect, or afl:ix 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 X30}days of Director's
v`rritten demand, City may do or cause the work to be done, and Lessee shall pay the
City's costs within thirty ~~}days of receipt of the Director's invoice. If payment i not
tirr~ely made, the City may terminate this Lease upon tan ~~ ~~ days written notice to
Lessee, Alternatively, the City may elect to terminate this Lease after ten ~~0}days
written notice to Lessee,
Section ~ 5. Laws Affecting operation of Premises and Performance. Lessen shall
comply ~uith all Federal, Sta#e, and local laws, ordinances, rules, and regulations
applicable to Lessee's operation of the Premises end Lessee's performance under this
Lease. This Lease is also subjectto applicable provisions ofthe City Charter.
Section ~ . Nondiscrimination. Lessee covenants and agrees that Lessee gill 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
rr~anner prohibited by the laws of the United States or the Mate of Texas. The City
hereby reserves the right to take the action s the United Mates may direct to enforce
this covenant.
Section ~ T. Drug Policy. Lessee must adopt a Drug Free vlJorkplace and drug testing
policy that substantially conforms to the City's policy.
Section ~ ~. Violence Policy. Lessee must adopt a 1liolence in the vvorkplace and
related hiring policy that substantially conforms to the City's policy.
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eoti~n ~ 9, ~Ilaintenance. Lessee shall r~aintain the Leased Premises and all
improvements in good and safe condition during the Lease terra,
ecti~n ~~. Furniture, fixtures, and ~quiprr~ent.
All personal property end trade fixtures furnished by or on behalf of Lessee remain the
property of the Lessee, unless the personal property end trade fixtures are specifically
donated to the pity during the terra of this Lease or any Holdover Period.
ecti~r~ 2~. Utilities.
Lessee shall pay for all utilities related to usage of Premises. i=ailure to pay any utility
bills} priorto the due date constitutes grounds fortermination of this Lease.
section 2~. pity Use. The pity retains the right to use or Dross the Premises with
utility lines and easements. pity may exercise these rights without compensation to
Lessee fordamages to the Premises from installing, maintaining, repairing, or removing
the utility lines end easements. pity must use reasonable judgment in locating the utility
lines and easements to minimize damage to the Premises,
Section 23. Indemnity. To the exten# authorized by Iaw, and in
consideration of allowing Lessee to use fhe Premises, Lessee
("Indemnitor"} covenants fo fully indemnify, save and hold harmless
the City, i#s 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 Ciiy on
account of injury or damage fo person including, wr`thout limr`tation on
the foregoing, premises defects, workers' compensation and death
claims, or properly loss or damage of any other kind whatsoever, fo
the extent any injury, damage, or loss maybe incident to, arise ou# of,
be caused by, or be in any way connected with, either proximately or
remotely, wholly or in part: (7) 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, ifs 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, fo this Lease; (4) the exercise of rights under
this Lease; or (5j 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 fhe injury,
damage, loss, violation, exercise of rights, act, or omission is caused
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YCEQ Air Monitorir~~ Le~s~ ~5 ~51820Q9.doc
or is claimed to be caused by the contributing or concurrent
negligence of lndemnifees, or any of them, but not if caused by the
sole negligence of lndemnitees, or any of them, unmixed with the fault
of any other person or enfity, and including all expenses of lifigaf~on,
couri~ costs, and attorneys' fees, which arise, or are clar'med to arise,
out of or in connection wifh 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 rela#ing to this Lease, Lessee shall, upon receipt of
reasonable notice regarding commencement of litigafion, at its own
expense, invesfigate all claims and demands, attend fo their
se#tlement or other disposition, defend City in all actions based
thereon with Legal counsel satisfactory to the City At#orney, and pay
al! 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.
ectlan ~4. Inaurance.
. Lessee shall secure and maintain at Lessee's expense, during the terra of this
Lease, insurance of the type and with the amount of coverage shown on the attached
E~chlbit , which is incorporated in this Lease by reference. Lessee shall use an
insurance company or companies acceptable to the Risk IVlanager. failure to maintain
the insurance during the terra of this Lease, at the limits and requirements shown on
Exhibit A, constitutes grounds for termination of this Lease.
b. The certificate of I nsu ranee must be sent to the Risk IUlanager prior to veto panty of
and operations at the Premises. The certificate of Insurance must provide that the pity
will have thirty ~~~ days advance written notice of cancellation, intent to not renew:
material change, or termination of are coverage required in this Lease.
c~ Lessee shall provide, during the terra of this Lease: copies of all insurance policies to
the Risk lVlanagr upon written request by the pity I~anager~
d. The Risk Manager retains the right to annually review the ar~ount 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 ar~y necessary increase, Lessee must receive thirty ~~g}
days written notice prior to the effective date of the requirement to obtain increased
coverage.
ectlon 2~. Default. Any of the following events constitute default under this Lease:
~~}Failure to pay utilities before the due date.
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~~} Failure to perform scheduled maintenance.
~} Abandonment of the Prerr~ises.
{4} Failure to maintain any insurance coverages required in this lease.
~~ l=allure to timely pay City's invoice forthe removal, repainting, or repair ofany
signs at the Premises,
~G} Failure to keep, perform, and observe any atherpror~ises, covenants and
conditions contained in this Lease,
evtion ~~. ity~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 } dive notice to Lessee that this Lease terminates upon the date specified in
the native, which date will be no earlier than five {5}days after the giving of the
native.
~2} Immediately or at any tirr~e after the occurrence of the event of default and
without notice ar demand, or upan the date specified in ~ notice, if given, or in
any native issued under law, eater upan the Premises or any part of this
Promises in the name of the whole and, upon the entry, this Lease terminates.
b. In the event of default by Lessee under section [~G], 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 native 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 ar a clairr»nt's goods and effects, forcibly, if
necessary, and store the goods in the name and at the expense of Lessee.
~}After retaking possession as set out in paragraph ~ of this evtian, or upan
abandonment of the premises by Lessee, the City ray at the City's optian relet
the premises or any part of the premises, in the Warne of the City or otherwise, for
a tern or terns that may be less than ar exceed the period that would otherwise
constitute the balance of the term of this lease. The term of such reletting by the
City is e~ridence of the fair rental value of the premises far the balance of the terra
and the Lessee shall be liable to the City far the arnaunt by which the rent and
other charges due under this lease fvrthe balance of its term exceeds the fair
rental value of the premises far that period.
eotion ~~. En~orve~ent hosts. In the event any legal action or proceeding is under
taken by the City to repossess the Premises, called the lease payments}due under
this Lease, collect for any damages to the Premises, or to in any other way enforce the
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proviians of this Lease, Lessee agrees to pay all court costs and expenses and the
sure as a court of competent jurisdiction may ad}ude reasonable as attorney's fees in
the avtian ar praceedin, ar in the event of an appeal as allowed by an appellate court,
if a judgment is rendered in favor of the City.
section 2~. I~odifcation, Na changes or madificatians to this Lease may be made,
nar any previsions waived, unless the change or r~odifivation is made in writing and
signed ~y persons authari~ed to sign agreements on behalf of each party
section ~~. contact PersonlLeae Administrator. Far this Lease, the City's contact
person and lease adrr~inistrator is the Uirectar.
section ~. Notice.
a. All natives, demands, requests, or replies provided far ar permitted under this Lease
by either party must be in writing and must be delivered by ene 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; viii} by prepaid
telegram; Div} by deposit with an overnight express delivery service, far which service
has been prepaid; ar ~v} by fax transmission.
b. Notice deposited with the United states Postal service in the manner described
shave will be deemed effective two ~~} business days after deposit with the United
states Pastel service. Notice by telegrarr~ ar overnight express delivery service will be
deemed effective one ~~~ business day aftertransrnission to the telegraph company ar
overnight express carrier. Native by fax transmission gill be deemed effective upon
transrr~ission with proof of delivery,
c. Ail the cor~munication must only be made to the following;
iF Ta CITY: IF Ta LEEE:
City of Carpus Christi TGE
Attn: Director of Park and Recreation P.O. Bax ~g87
P. ~, Box 9~~~ Austin, Texas
Corpus Christi, Texas 7~4~9~g~~1 78~~ ~ -08~
d. dither party may change the address to which notice is sent by using a method set
out ~n subsection c of this section. Lessee shall ratify the City of n address change
urrithin ten ~~ g}days after the address i changed.
section 31. Farce l~lajeure. Na party to this Lease shall be liable for delays orfailures
in perfarr~ance due to any cause beyond their control including, without limitation, any
delays or failures in performance caused by strikes, lock cuts, fires, acts of~od or the
public enemy, common carrier, severe inclement weather, riots or interference by civil ar
military authorities. The delays orfailures to perform extend the period of performance
until these exigencies have been removed ~ The Lessee shall inform the City in writing
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TC~Q Air Monitarir~g Lease 55 ~5~ 8~049.dac
of proof of the farce majeure within three ~3}business days ar otherwise waive this right
as a defense.
section ~. Relationship of Parties. This Luse establishes ~ landlardltenant
relatiar~hip, and no other relationship, This Lease must be construed conclusively in
favor of that relationship. In performing this Lease, bath the pity and Lessee will act in
an individual capacity and not as agents, representatives, employees, employers,
partners, faint-venturers: or associates of one another. The employees ar agents of
either party may not be, nor be construed to be, the employees or agents of the other
party for any purpase.
section 3~. Not for Benefit of Third Parties. This Lease is only far the bereft of the
pity and Lessee, and no third party has any rights or claims under this Lease or against
the pity.
section ~4. Publication hosts. Lessee shall pay far the cost of publishing the Lease
description and related ordinance, as required by the pity's charter, in the legal section
of the local newspaper.
section 3~. interpretation. This Lease gill be interpreted according to the Texas lags
which govern the interpretation of contracts. Venue lies in Nueces bounty, Texas,
where this Lease was entered into and will be performed.
section ~~. survival of Terms. Terminativr~ 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 #ermination ar expirations; fib} remain
to be performed; ar ~c} bytheir nature would be intended to be applicable fallowing any
the termination arexpiration ofthis Lease.
Bection ~T. captions. The captions utilized in this Lease are far convenience only
and da rat in anyway limit oramplifythe terms ar provisions of this Lease,
Bection ~~. everability.
a. If, for any reason, any section, paragraph, subdivision, clause, provision, phrase, ar
ward of this Lease orthe application of this Lease to any person or circumstance is, to
any extent, held illegal, invalid, or unenforceable under present arfuture law ar by a
final judgment of a court of competent jurisdiction, then the remainder of this Lease, ar
the application of the term or provision to persar~s or circumstances atherthan those as
to which it is held illegal, invalid, or unenforceable, uvill not be affected by the law or
judgment, for it i the definite intent of the parties to this Lease that every section,
paragraph, subdivision clause, provision, phrase, or ward of this Lease be given full
force and effect for its purpase,
b. Ta the extent that any clause ar provision is held illegal, invalid, or unenforceable
under present ar 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 ar provision, as similar in terms to the illegal, invalid, ar
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TCEQ Air Monitoring Lease 5~ 05182~~9,doc
unenforceable clause yr provision as maybe possible and be legal, valid, and
enforceable, will be added to this Lease autorrraticaliy.
section 3g. venue. Venue lips in Nueces County, Texas, where this lease was
entered into and will be perforr~ed.
section 4~. Entirety clause. This Lease and the ~ttachraents and exhibits
incorporated into this Lease constitute the entire agreement between the City and
Lessee for the purpose granted. All other agreer~ents, promises, representations, and
understandings, oral or otherwise, with reference to the subject ratter of this Lease,
unless contained in this Luse are expressly revolted, as the parties intend to provide
far 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 4~. 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 4~. 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 pity Manager or by his designee.
section 4~, Effective Date, This Lease is effective on
E~ UTED lIV DUPLICATE, each of which shall be considered an original, on the
day of July, 2o0g.
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TCEQ Air ~lonitorin~ Lease ~5 ~5~ 8~~~~,~oc
LEEE; TEA QI~I~ll~N ~N EN1~IR~NI~ENTAL QUALITY
~~f
lNtth~v~r R. B~k~r, P~E.
Monitoring Op~rativn ~iviion
STATE OF TEA
~~UNTY ~F NUE~ES
~ 209 b ho R.
n vtirled ed before me ~n J ,
This ~ntrur~ont era ~~k o g ~ ~~ Y
Baker, P.E., Monitoring Opor~tion Division, on behalf of the Texas omr~issi~n on
Environmental C~uality,
Notary Public, S to of Texas
~'~
EFFECTIVE DATE
,9 6 2Dbq
Page ~ ~ of ~~
TCE~ Air Manitorir~g Lease ~5 ~~~ 820~9.dec
ATTEST:
Armando Chapa
City Secretary
CITY aF ~~PU CHRISTI
R. Ecabar
ity lUlenager
~~
APPRa11ED A Ta LEGAL FORD: This • day of , ~a~.
~. J R fining
Fi sf Assistant fty Attarney
Far City Attorney
STATE OF TEXAS §
COUNTY OF NUECES §
,~
*^••^r~~ewr~.r.r
~~c~~r~~~ ~,~ .
This ir~trument gas aakna~vledged before mean ,~u1y , ~aa, by'Angel R.
Esaabar, City Manager, City of Carpus Christi, ~ Texas home rule ~nuniaipal
aarparatian, an behalf of the corporation.
~,,,,~~
~~ ~~ M~iIY ~IOUG~~TON
~~ ~= MY COMN~IS~O{~ E~P~~~S
~~•
s~epirrr~er~4,~41 Notary Publ ,State Te~ces
ljil
EFFECTIVE DATE
f u~i, 2boq
Pege ~ 2 of 1 ~
TEQ Air Monitoring Lease 5 05182~O~.d~c