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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 ~0~9,~53 ord. ~~SZ~7 ~71~7109 oo,~o~ Page ~ of ~ ~ INDEXED 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 Page 2 of ~ ~ 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, Page 3 of ~ ~ 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. Page 4 of ~ ~ TCE~ Air Monitoring lease 55 ~5182~~~.do~ 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 Page ~ of ~ 2 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. Page of 1 Tc~Q Air Manitorir~g ~e~~e ~~ O~~S~~~~.do~ ~~} 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 Page ~ of ~ ~ TCEQ Air Monitoring Lease ~5 ~5~ 8~~4~.doc 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 Page 8 of ~ ~ 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 Page 9 of ~ 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. Page ~~ of ~~ 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