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HomeMy WebLinkAboutC2010-117 - 2/23/2010 - ApprovedTAMIJK Contract# MOOa0Z7 LEASE BETWEEN THE CITY DF CORPUS CHRISTI AND THE TEXAS A8M UNIVERSITY SYSTEM STATE DF TEXAS § § KNOW ALL 6Y THESE PRESENTS COUNTY DF NUECES § This Lease is entered into by and between the CITY DF CORPUS CHRISTI, a Texas home rule municipal corporation, acting through its duly authorized City Manager, or the City Manager's designee, and the 60ARD DF REGENTS DF THE TEXAS ABM UNIVERSITY SYSTEM {"TAMUS"}, an agency of the State of Texas, for the use and benefit of Texas A&M University -- Kingsville, acting through its duly authorized agent or designee. Section 'I. Definitions. Fvr the purposes of this Lease: Abandoned means that the teased Premises become vacan# ar 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 Water ^epartment. Director means the City's Director of Water Operations or the Director of Water Operation's designee. Lease means this document, including all attachments and exhibits that are incorporated by reference into this document. Leased Premises ar Premises means those portions of City's Holly Rvad Pumping Station described in Exhibits "A"and "B". Lessee means the Board of Regents of The Texas A&M University System, far the use and benefit of Texas A & M University -- Kingsville ~"TAMU-K"} or assignee. Risk Manager means the City`s ^irectvr of Risk Management or the ^irector of Risk Management's designee. Sign means any signs, advertisements, notices, yr other lettering that are exhibited, inscribed, painted, erected, or affixed on ar about the Premises, yr any part of the Premises. ~._, 2U14-117 Page 1 of 11 !~ ~ Ord. 42849 ~. 4~1~3J10 ~i TAMU5 nCC ~~V G~ TAMLJfC C~ntract# MOQ~02~ Section ~. Purpose. The purpose of this Lease, between the City and Lessee, is to enable Lessee to install and maintain an air quality monitoring station, known as CAMS 684, with a 1 Q meter tower at the City's Holly Road Pumping 5tativn with weatl'~er sensors far measurements of meteorological parameters, including wind speed, wind direction, temperature and relative humidity. Lessee may not operate the Premises far any ofher 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 Holly Road Pumping 5tativn, mere specifically described on the attached and incorporated Exhibits "A" and "B". Section 4. Use of Leased Premises Subject to Lease. Lessee's use of the Leased Premises is subject tv the terms and conditions in this Lease. This Lease is made in consideration of the mutual promises and covenants contained in this Lease. 5ectivn 5. Limitation of Leasehold. City does not warrant its title tv the Leased Premises. This Lease and the rights and privileges granted Lessee in and to the Leased Premises are subject tv all covenants, conditions, restrictions, and exceptions of record yr apparent. Nothing contained in this Lease may be construed tv imply the conveyance to Lessee of rights in the Leased Premises that exceed those owned by City. 5ectivn fi. Term. City leases the Premises, subject to all terms and conditions of this Lease, to Lessee beginning ^n , 2418, for a period of five ~5} years, unless sooner terminated under anvt r section of this Lease. Section ?. Abandonment of Leased Premises. If Lessee abandons the Leased Premises, this Lease terminates automatically and City Manager may take immediate possession of the Leased Premises. Section 8. 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 yr longer, and Lessee does not exercise the right to terminate this Lease, then City may terminate this Lease by giving Lessee at least thirty X34} days notice prier tv the effective termination date. D. ^uring 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, Lessee must remove the any improvements it has installed from the Leased Premises. Page 2 of 11 -, • ° .. ~340~-iA~$~6.5$~T~~R47 482CC95TQiQ .~;~`~::{;: ^l~I~~C:€.1I,I]C7Ci.'.':ir:N'I' ~•-~ TAMUK Contract# MOQOU27 Sec#ivn 9. 5urrendar. Subject to the holdover provisions in this Lease, Lessee acknowledges and understands that 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, ^r cancellation of this Lease, in as good a condition as received, reasonable use and wear, acts of God, fire and flood damage, yr destruction where Lessee is without fault, excepted. 5ectivn 10. Consideration. 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 11. Alterations. A. Lessee may not make any alterations, additions, or improvements to, in, on, ^r about the Premises, without the prior consent of the Director. B. Prior to making any alterations, additions, or improvements tv, in, on, or about the Premises, Lessee must submit the plans and specifications for the alterations, additions, or improvements to the Director far review. C. If the ^irector 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 Gfficial, Director of Engineering Services, or their designated representatives. 5ectivn 12. Assignment and Subleasing, A. Lessee may not assign ar encumber this Lease, without the prier written consent of the City Manager. Any assignment ar sublease must be approved in advance by the City Manager. B. Upon approval of the assignment, Lessee may request City to release Lessee from any further liability under the Lease. City will grant the release if the assignee covenants tv assume al! obligations and duties of Lessee of this Lease. C. Any attempted assignment or sublet without the prior written consent of the Gity Manager renders this Lease void. ^. 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 Wulf and void. -~ age o 1 ~~ _`;~ • - '. ~ 4dD9@$OO~AB'Sq~I6b~R7p~1~1~ 82CC957D14 '~ ~ . '..'~y Uf : f i~1:lL I)C]Ct,~1~1ENT 7AMUK Contract# MDDDDZ7 5ectivn 13. 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. City may require Lessee to remove, repaint, or repair any Signs allowed. If Lessee dues not remove, repaint, or repair the Signs within thirty {3p} days of Director's written demand, City may do or cause the work to be done, and Lessee shall pay City's costs within thirty {3D}days of receipt of the Director's invoice. If payment is not timely made, City may terminate this Lease upon ten {1 p} days written notice tv Lessee. Section 14. Laws Affecting Qperativn a# Premises and Performance, Lessee shall comply with a!I 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. 5ectivn 15. Nondiscrimina#ivn. Lessee covenants and agrees that Lessee will not discriminate nor permit discrimination agains# any person yr group of persons, with regard to employment and the provision of services at, vn, yr in the Premises, vn the grounds of race, religion, national origin, marital status, sex, age, disability, yr in any manner prohibited by the laws of the United States ar the State of Texas. City hereby reserves the right to take the action as the United States may direct to enforce this covenant. 5ectivn 1fi. Representations and Warranties. City warrants, represents, covenants, and agrees that it has received all necessary approvals to execute and deliver this Lease, and the individual executing this Lease ^n behalf of City has been duly authorized tv act for and bind City. To the extent allowed by the Constitution and the laws of the State of Texas, Lessee warrants, represents, covenants, and agrees that it has received all necessary approvals tv execute and deliver this Lease, and the individual executing this Lease on behalf of Lessee has been duly authorized to act for and bind Lessee. 5ectivn 17. ©rug Policy. Lessee must adept a Drug Free Workplace and drug testing policy that substantially conforms to the City's policy. 5ectivn 18. Violence Policy. Lessee must adapt a Violence in the Vllorkplace and related hiring policy that substantially conforms to the City's policy. 5ectivn 19. Maintenance, Lessee shall maintain the Leased Premises and all improvements in good and safe condition during the Lease term. 5ectivn 2Q, Furni#ure, Fixtures, and Equipment. All personal property and trade fixtures furnished by or ^n behalf of Lessee remain the property of Lessee, unless the personal property and trade fixtures are specifically donated to City during the term of this Lease ar any Holdover Period. ,~_~~ Page 4 of 11 ~• (}0300 A6548D6580T010-AD 82CC85TO1U .• • t 1; i ~~ic UfCrc '': 1:11. T)[)C:C1Zif~:itiT TAMUK Contract# MOODQ27 Section 21. Utilities. Lessee shall pay far all utilities related to its usage of the Premises. Failure to pay any utility bills} prior tv the due date, if such failure tv pay remains uncured after 1 Q days written notice and right tv cure, constitutes grounds far termination of this Lease. Section Z2. City Use. 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, yr removing the utility lines and easements. City must use reasonable judgment in locating the utility lines and easements to minimize damage tv the Premises. Section 23. Indemnity. To the extent authorized by the Constitution and the laws of the State of Texas, and in consideration of allowing Lessee to use the Premises, Lessee ~"Indemnitvr") covenants to fully indemnify, save and hold harmless Gity, its officers, agents, representatives, and employees (collectively, "Indemnitees"] from and against any and all liability, lass, damages, claims, demands, suits, and causes of action of any nature whatsoever asserted against or recovered from City an account of injury or damage to person including, without limitation on the foregoing, premises defects, workers' compensation and death claims, or property lass or damage of any other kind whatsoever, to the extent any injury, damage, or loss maybe incident to, arise out of, be caused by, or be in any way connected with, either proximately or remotely, wholly or in part: (?j Lessee's performance under this Lease; (2) Lessee's use of the Premises and any and all activities associated with Lessee's use of tine 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; yr (5j an act yr omission on the part of Lessee, its officers, employees, agents, or representatives ar of Indemnitees, yr any of them, pertaining fo this Lease, regardless of whether the injury, damage, less, violation, exercise of rights, act, or omission is causer! yr is claimed to be caused by the contributing or concurrent negligence of lndernnitees, or any ^f them, but not if caused by the sale 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. Tv the extent authorized by the Constitution and the laws of the State of Texas, Lessee covenants and agrees that, if City is made a party to any li#igation against Lessee yr in any litigation commenced by any party, ether than Lessee relating to this Lease, Lessee shall, upon receipt of reasonable notice regarding commencement of li#igafion, at its own expense, investigate al! claims and demands, attend to their settlement ar 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 anal expenses of any kind whatsoever arising from any liability, injury, damage, loss, demand, claim, or action, ~wr_ ,~~_~. ~ .._~,.~~.....~~:~ Page 5 of 11 .~ 3_ •~~' ,.oo4aaapq~,~ar~~~8q~r~~°r~~ CC95TD1D TAMUIC Contract# MDDD027 Section ~4. Insurance. City acknowledges that, because Lessee is an agency of the State of Texas, liability for the tortious conduct of the agents and employees of Lessee ^r for injuries caused by conditions of tangible state property is provided for solely by the provisions of the Texas Tort Claims Act {Texas Civil Practice and Remedies Cade, Chapters 101 and 104), and that Workers' Compensation Insurance coverage for employees of Lessee is provided by Lessee as mandated by the provisions of Chapter 502, Texas Labor Code. Lessee shall have the right, at its option, to {a} obtain liability insurance protecting Lessee and its employees and property insurance protecting Lessee's buildings and the contents, to the extent authorized by Section 51.966, Texas Edr~cafion Code, or other law, or {b} self-insure against any risk that may be incurred by Lessee as a result of its operations under this Agreement. Section 25. Default. The fallowing events, if uncured after 10 days written notice and right to cure, constitute default under this Lease: A. Failure to pay utilities before the due date. B. Failure to perform scheduled maintenance. C. Abandonment of the Premises. D. Failure to timely pay City's invoice for the removal, repainting, or repair of any Signs at the Premises. E. Failure tv keep, perform, and ^bserve any other promises, covenants and conditions contained in this Lease. Section 2B. City's Remedies on Lessee's Default. A. Upon the occurrence of any event of default, 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 n^ earlier than five {5} days after the giving of the notice. {2} Immediately yr 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, ^r in any notice issued under law, enter upon the Premises or any part of the Premises in the name of the whole and, upon the entry, this Lease terminates. B. In the event of default by Lessee under Section 25, City has the option to pursue any one ar more of the remedies provided in this (ease ar afforded City by law, without further notice or demand and without prejudice to any other remedy: ~,__. _,.-s~ ,- ~~-__~•..~..~: ~ Page 6 of 11 r.~~ '- OOD0031?piA.B546~55$Gl~'EQa¢ 482CC95T010 ~cr~ ~.: TAMUK Contract# MQQOQ27 ~~ }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 claimant's goods and effects, forcibly, if necessary, and store the goads in the name and at the expense of Lessee. {2} After retaking possession as set out in paragraph '1 of this section, ar upon abandonment of the Premises by Lessee, City may at City's option relet the Premises or any part of the Premises, in the name of City ar otherwise, for a term yr terms that may be less than ^r exceed the period that would otherwise constitute the balance of the term of this Lease. The term of such reletting by City is evidence of the fair rental value of the Premises for the balance of the term and the Lessee shall be liable to City far 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 2l. 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 an behalf of each party. Section 28. Contact PersonlLease Administrator. For this Lease, City's contact person and lease administrator is the Director. Section Z9. Notice. A. AI! notices, demands, requests, or replies provided for yr pemnitted under #his 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; Div} by deposit with an overnight express delivery service, for which service has been prepaid; ^r (v} by fax transmission. B. Notice deposited with the United States Pasta[ 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 yr overnight express delivery sen-ice wiEl 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 TD CITY: City of Corpus Christi Attn: Director of Water P. D. Sox 9277 Corpus Christi, Texas 78459-9277 Page 7 of 11 i ~~~, ~q~0~1~~¢AB~¢~65BDT010- ~C482CC85TD1 ~ L~ - ~t~ TAMlJK Contract# MOD~D27 IF TO LESSEE: Ralph Stephens Director, Procurement and General Services Texas A&M University -Kingsville Mail Stop Code 2'12 Kingsville, Texas 783fi3 with copy to: The Texas A&M University System Gffice of General Counsel Attn: System Real Estate 200 Technology Way, Suite 2079 College Station, Texas 77845-3424 d. Either party may change the address to which notice is sent by using a method set out in subsection c of this section. Each party shall notify the other party of an address change within ten (10} days after the address is changed. Section 30. Force Majeure. N^ party to this Lease shall be liable far delays or failures in performance due tv any cause beyond their control including, without limitation, any delays or failures in performance caused by strikes, Ivck outs, fires, acts of Gad or the public enemy, common carrier, severe inclement weather, riots ar interference by civil or military authorities. The delays or failures tv perform extend the period of performance until these exigencies have been removed. t_essee shall inform City in writing of proof of the force majeure within three [3} business days yr otherwise waive this right as a defense. Section 3'I. Relationship of Parties. This Lease establishes a landlordltenant relationship, and no other relationship, This Lease must be construed conclusively in favor of that relationship. In performing this Lease, both 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 32. Not for Benefit of Third Parties. This Lease is only for the benefit of City and Lessee, and no third party has any rights or claims under this Lease or against City, Section 33. Limitations. City is aware that there are constitutional and statutory limitations an the authority of Lessee ~a state agency} to enter into certain terms and conditions of this Lease, including, buf not limited to, those terms and conditions relating to liens on Lessee's property; disclaimers and limitations of warranties; disclaimers and limitations of liability for damages; waivers, disclaimers and limitations of legal rights, remedies, requirements and processes; limitations of periods tv bring legal action; granting control of litigation ar settlement to another party; liability for acts or omissions of third parties; payment of attorneys' fees; dispute resolution; indemnities; and ~'~' Page 8 of 11 ~QO(id340-A~5460F65BOTba~+AO 82CG95Tfl10 ~;~<:..:; : r'i 1 i~. I:11, i~:lC:i:~f1~tiT TAMUK Contract# MQ~0027 confidentiality collectively, the "Limitations"}, and terms and conditions related to the Limitations will not be binding vn Lessee except to the extent authorized by the laws and Constitution of the State of Texas. Neither the execution of this Lease by Lessee nor any other conduct, action, or inaction of any representative of Lessee relating to this Lease constitutes or is intended tv constitute a waiver of Lessee's yr the state's sovereign immunity to suit. Section 34. Publication Casts. 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 Ivcal newspaper. Section 35. Interpretation. This Lease will be interpreted according tv the Texas laws which govern the interpretation of contracts. Section 36. Survi--al of Terms. Termination ^r 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 the termination or expiration; (b} remain to be perfomled; ^r (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 ^r amplify the terms or provisions of this Lease. Section 38. Severabili#y. A. If, for any reason, any section, paragraph, subdivision, clause, provision, phrase, ^r 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 taw or by a final judgment of a court of competent jurisdiction, then the remainder of this Lease, ^r the application of the term or provision tv 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 ward of this Lease be given full force and efFect far its purpose. B. Tv 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, ar unenforceabte clause or provision, a clause or provision, as similar in terms to the illegal, invalid, or unenforceable clause or provision as may be possible and be legal, valid, and enforceable, will be added to this Lease automatically if agreed to by bath parties in writing. Section 39. Venue. Pursuant to Section 85.18, Texas Education Cvde, venue far any suit filed against Lessee shall be in the county in which the primary office of the chief executive vfi'icer of Lessee is located. Page 9 of 11 .r^ ~~ - - . `~~~: ~pp003(}a.,~g54$fD~58~}]~~@- DC482CC95T410 - f;l UI'l~li.I~~I.I}C]C[],~iF~:~iT TAMUIC Cantract#t M4a0027 Section 40. Entirety Clause. This Lease and the attachmen#s and exhibits incorporated into this Lease constitute the entire agreement between City and Lessee far the purpose granted. All other agreements, promises, representations, and understandings, oral yr otherwise, with reference to the subject matter of this Lease, unless contained in this Lease are expressly revoked, as the parties intend to provide far a complete understanding within the provisions of this Lease and its exhibits of the terms, conditions, promises, and covenants relating to Lessee's operations and the Premises to be used in the ^perations. Section 41. Binding Lease. It is further mutually understood and agreed that the covenants and agreements contained in the Lease, to be performed by the respective parties, are binding on the parties, and their respective successors and assigns. Section 42. Acknowledgment. Each party expressly agrees that it has independently read and understood this Lease. By Lessee's execution of this Lease, Lessee acknowledges and understands that this Lease is not binding on the City until properly authorized by the City Council and executed by the City Manager or by his designee. EXE~UTED IN T PLICATE, each of which shall be considered an original, on the ~_ day of , 2Q1 Q. LESSEE: BDARD DF REGENTS aF THE TE]CA5 A&M UNIVERSITY SYSTEM for the use and benefit of Texas A&M University - Kingsville a, Director, Procurerrfent & Gen. Svcs. Texas A&M University -Kingsville APPROVED AS TD FORM: ~ ~V GINA M. JOSEPH Assistant General Co el Gffice of General Counsel The Texas A&M University System ~~ Page 1 Q of 11 t~ "• ;'.',` ':^~~I~~UO'-i4~54B~6$Bbl{D ~182CC957a10 s `~ ' .';~ E:i , , : Ill, I]CJC [::11E~T =,° ..: _ c-.~ TAM U K Cantract# M[}p0027 ACItNOWLEDGMENT STATE ^F TEXAS § COUNTY OF KLEBERG § Q ; This instrument was acknvwled ed before me this da of I~ N~ I 9 ~ Y 2g1~, by Ralph Stephens, ^irectar, Procurement ~ General Services, Texas ABM University -Kingsville, vn behalf of the board of Regents of The Texas A$~M University System, an agency of the State of Texas. ~t,.aY ~~~ MARYt.C]U F. PENA * ~ * Rotary Pub1(c sra~e ^F runs ~ Commission t:xp. D6-t7 TD13 Rotary without Band ATTEST: Armando Chapa City Secretary Notary Pu ic, State of Texas LESSOR: CITY OF CORPUS CHRISTI ' el R. Escobar ity Manager ~ti APPROVED A5 TO LEGAL FORM: This ~ day of .~~ , 2D10. R. J ei ng Firs As 'taut City A ney Far City Attorney ~. o~uT~+oHi~~ sr ~o~Hri~... f ~~< SEpti~'AR1' STATE OF TEXAS § COUNTY OF NUECES § This instrumentwas acknowledged before me on ~~, 2~1a, by'Angel R. Escobar, City Manager, City of Corpus Christi, a Texas home rule municipal corporation, on behalf of the corporation. 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