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HomeMy WebLinkAboutResolution - 2006-R0566 - Interlocal License Agreement - TCEQ - 1400 Mac Davis Lane - 11/21/2006Resolution No. 2006-RO566 November 21, 2006 Item No. 5.4 RESOLUTION IBE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the Mayor of the City of Lubbock BE and is hereby authorized and directed to execute for and on behalf of the City of Lubbock, an Interlocal License Agreement by and between the City of Lubbock and the Texas Commission on Environmental Quality, for occupation of lands of the City located in the vicinity of 1400 Mac Davis Lane, Lubbock, Texas, to conduct air monitoring activities. Said Interlocal License Agreement is attached hereto and incorporated in this Resolution as if fully set forth herein and shall be included in the minutes of the Council. Passed by the City Council this 21st day of November 2006. �.Ir►.rr � • li A. MILLER,i ATTEST: Rebebca Garza, City Secretary APPROVED AS TO CONTENT: Dan Dennison , Director of Environmental Compliance APPROVED AS TO FORM: Richard K. Casner, First Assns Attorney as/ccdocs/TCEQ.res August 19, 2005 Resolution No. 2006—R0566 INTERLOCAL LICENSE AGREEMENT THIS Interlocal License Agreement (the "Agreement") is entered into on this 21st day of November , 2006, by and between the CITY OF LUBBOCK, TEXAS, a Texas Home Rule Municipal Corporation (the "City"), and the TEXAS COMMISSION ON ENVIRONMENTAL QUALITY, an agency of the State of Texas ("TCEQ"), acting by and through their respective and duly authorized officers and officials. WHEREAS, TCEQ is an agency of the State of Texas possessing environmental regulatory jurisdiction over lands located in the State of Texas; WHEREAS, as a part of such regulatory jurisdiction, the TCEQ is required to perform air monitoring activities in and around the area of the City of Lubbock; WHEREAS, the City owns certain property (the "Lands"), located in the City of Lubbock, and being described on Exhibit "A" attached hereto, that the TCEQ desires to utilize in connection with its air monitoring activities; WHEREAS, the monitoring of air upon the Lands by the TCEQ will benefit the City in its environmental control and monitoring activities, and therefore serve a public purpose; WHEREAS, for the benefit of the City and the public purpose rendered thereby, the TCEQ and the City now desire to enter into this Agreement, ARTICLE I License Section 1.01. License. In consideration of the mutual covenants and agreements of this Agreement, the public purpose to be achieved through the TCEQ's activities hereunder, and of other good and valuable consideration, the City hereby grants upon the terms and conditions set forth in this Agreement, a license on and over the Lands to the TCEQ, for the sole and exclusive purpose of Texas Commission on Environmental Quality Page 1 of 12 constructing, maintaining and operating the subject air monitoring equipment described in Exhibit "B" attached hereto (the "Air Monitor"). Any other use of the Lands is expressly prohibited. Section 1.02. Term. The terra of this license is five (5) years beginning on the date first above written, and ending on the fifth anniversary of such date (the "Primary Term"), unless terminated sooner as provided in this Agreement. For the consideration herein expressed, the TCEQ is hereby additionally granted an option to extend the term of this Agreement, upon identical terms and conditions of this Agreement, for one (1), and only one (1), additional successive five (5) year option period (the "Option Period"). The TCEQ, in the event it desires to exercise this option, shall provide written notice to the City, as provided herein, on or before ninety (90) days prior to the expiration of the Primary Term. This Agreement shall terminate without further notice when the Primary Term or Option Period, if exercised as described above, expires, at which time the TCEQ shall immediately vacate the Lands. Any holding over by the TCEQ after that term expires, except as provided otherwise in this Agreement, shall not constitute a renewal of this Agreement, or provide the TCEQ any rights whatsoever under this Agreement and/or to the Lands. ARTICLE II Improvements Section 2.01. Fencing. Notwithstanding anything to the contrary herein, prior to or concurrent with the placing or location of any equipment associated with the Air Monitor upon the Lands, the TCEQ shall construct fencing surrounding the boundaries of the Lands of sufficient height and design to exclude unauthorized persons from entering the Lands. Section 2.02. Approval of Construction. No construction of any kind or type, including without limitation construction relating to the fencing activities described in Section 2.01, above, shall be commenced unless plans and the proposed location of such construction have received the Texas Conunission on Environmental Quality Page 2 of 12 approval of the City. All construction activities shall be conducted and completed in compliance with all applicable permits, ordinances, regulations and statutes now or hereafter existing, regardless of whether the TCEQ, in the absence of this Agreement, would be subject to same. The City shall have the right at all times to observe any and all activities described in this Article 11, Section 2.03. Removal of Improvements. Any and all improvements constructed, placed, located and/or maintained on any part of the Lands by TCEQ pursuant to the rights granted herein shall by owned by the TCEQ at all times. Upon termination of this Agreement, the TCEQ shall remove all property located upon the Lands and restore the surface of the Lands to the condition as near as practicable to that which existed prior to its occupation by the TCEQ. Any and all of such property not removed by the TCEQ on or before ten (10) days after the termination of this Agreement shall, at the option of the City, either (i) become property of the City; or (ii) be removed and disposed of by the City at the TCEQ's sole cost and expense. In the event the City shall elect to remove such property, the City shall owe no duty to protect such property, and shall in no event be liable to the TCEQ for loss, damage or destruction of same. In such event, the City may dispose of any such property in any manner it desires in its sole discretion and retain any proceeds received therefore. ARTICLE III Operations of TCEQ Section 3.01. Security. The TCEQ shall take any and all actions necessary to prevent the entry of unauthorized persons in, on and/or over the Lands. Such actions shall include, but are not limited to, the fencing of the Lands sufficient to exclude the entry of unauthorized persons. Section 3.02. Utilities. The TCEQ shall be responsible for providing, furnishing and connecting all utilities needed by it to the Lands and shall bear any and all expenses of any kind or Texas Commission on Environmental Quality Page 3 of 12 nature for the providing of same to the Lands. Such utilities shall include, without limitation, water, telephone, electricity, gas, sewage disposal and rubbish removal. Section 3.03. 'Prohibition of Encumbrance. The TCEQ shall not encumber any interest in the license granted herein, the Lands and/or this Agreement, in any way, manner of form. Further, the TCEQ shall not cause or permit any mechanic's liens or any other liens to be filed against the license granted herein, the Lands, the improvements described herein, and/or this Agreement by reason of any work, labor, services or materials supplied and/or performed or claimed to have been supplied and/or performed to, by or for the TCEQ or any contractor or subcontractors of TCEQ. Section 3.04. Right of Entry. The City expressly reserves the right of entry, in, on, over and/or across the Lands. Notwithstanding this right of entry, the City will make good faith efforts to notify the TCEQ of its desire to enter the Lands prior to entry thereof. The TCEQ shall provide keys, combinations and any other matter or information necessary for the City to gain access to the Lands. ARTICLE IV Maintenance and Repair Section 4.01. Maintenance and Duty to Repair. At all times during the term of this Agreement, the TCEQ shall keep and maintain, or cause to be kept and maintained, all buildings and improvements erected and/or located on the Lands, and the landscaping, including, without limitation lawns, grasses, flowers, and flower beds, shrubs and trees, in a good state of appearance and repair, as determined by the City, at the TCEQ's sole expense. Section 4.02. Damage or Destruction. If any improvement located on the Lands is damaged or destroyed by fire, vandalism or any other casualty, regardless of the extent of the damage or destruction, the TCEQ must, within thirty (30) days from the date of the damage or Texas Commission on Environmental Quality Page 4 of 12 destruction, complete repair, reconstruction or replacement of the damaged or destroyed improvement to the original condition of such improvement. ARTICLE V Insurance /Indemnity Section 5.01. Indemnity and Release. The TCEQ acknowledges that it is not an agent, servant or employee of the City and that it is responsible, to the extent provided by law, for its own acts and deeds and for those of its agents, servants or employees during the term of this Agreement. The law permitting, TCEQ will indemnify the City for tort claims arising from the negligent acts or omissions related to its performance under this Agreement, provided the legislature appropriates funds to satisfy such claims. However, as restricted by the Texas Constitution, any provision in this Agreement creating a debt against the State of Texas is void ab initio. Further, in no way does the foregoing declaration waive the State's sovereign immunity. THE CITY, AND ITS RESPECTIVE OFFICERS, EMPLOYEES, ELECTED OFFICIALS AND AGENTS, SHALL NOT BE LIABLE, AND THE TCEQ HEREBY RELEASES THE CITY, AND ITS RESPECTIVE OFFICERS, EMPLOYEES, ELECTED OFFICIALS AND AGENTS, FOR, FROM AND/OR AGAINST ANY AND ALL LOSSES, DAMAGES, CLAIMS OR LIABILITIES TO THE TCEQ, ON ANY THEORY OF LEGAL LIABILITY, INCLUDING, BUT NOT LIMITED TO THE NEGLIGENCE, OF ANY TYPE OR DEGREE, OR FAULT, OF THE CITY, RELATED DIRECTLY OR INDIRECTLY, IN ANY WAY, MANNER OR FORM, TO THE ACTIVITIES CONTEMPLATED HEREUNDER, THE TCEQ'S OCCUPATION OF THE LANDS OR OTHER CITY OWNED LANDS, OR THE OMISSION OF THE ACTIVITIES CONTEMPLATED HEREUNDER. The indemnity and release provided herein shall survive the termination of this Agreement. Texas Commission on Environmental Quality Page 5 of 12 Section 5.02. Insurance. The TCEQ shall ensure that any contractors or other third parties that perform, in any way or manner, the activities, or any part thereof, contemplated hereunder, or occupy the Lands pursuant to the rights granted herein ("Contractors") shall procure and carry, at their cost and expense through the life of this Agreement insurance protection as hereinafter specified, in form and substance satisfactory to the City, carried with an insurance company authorized to transact business in the State of Texas, covering all foreseeable aspects and operations in connection with this Agreement, including, but not limited to, all aspects, operations and/or occurrences to which the TCEQ has indemnified the City, as provided in Section 5.01 hereof. A Certificate of Insurance specifying each and all coverages shall be submitted to the City prior to the execution of this Agreement. The TCEQ and Contractors shall provide to the City proof of the below described insurance on or before fourteen (14) days prior to the expiration date of each expiring policy, and cause each required policy to require the insurer to (i) give notice to the City, as specified herein, of termination of any such policy sixty (60) days before such termination is to be effective; and (ii) contain a waiver of any and all of the insurer's rights to subrogation that any such insurer or insurers may acquire by virtue of payment of any loss under such insurance. A. Comprehensive General Liability Insurance. The TCEQ's Contractors shall have comprehensive general liability insurance, with limits of $500,000.00 combined single limit in the aggregate and per occurrence. The City shall be named as a primary additional insured in such policy. E. Worker's Compensation Insurance. TCEQ's Contractors shall elect to obtain worker's compensation coverage pursuant to Section 406.002 of the Texas Labor Code. Further, TCEQ and Contractors shall maintain said coverage throughout the term of this Agreement and shall comply with all provisions of Title 5 of the Texas Labor Code to ensure that TCEQ and Contractors maintain said coverage. Any termination of worker's compensation insurance coverage by TCEQ and Contractors, or any cancellation or nonrenewal of worker's compensation insurance coverage for TCEQ and Contractors shall be a material breach of this Agreement. It is expressly agreed and understood that the TCEQ may self insure in lieu of obtaining the insurance required above. Texas Commission on Environmental Quality Page 6 of 12 ARTICLE VI Warranties, Covenants and Representations of the TCEQ Section 6.01. Authorization. The TCEQ represents and warrants to City it (i) possesses all requisite power and authority to execute, deliver and perform this Agreement in accordance with all terms hereof; (ii) has taken all actions and formalities necessary to authorize TCEQ to execute, deliver, and perform the Agreement; and (iii) the party executing for and on behalf of the TCEQ has been duly authorized to act in such behalf for the TCEQ. ARTICLE VII Events of Default and Remedies Section 7.01. Default A. Default of the TCEQ. An Event of Default (herein so called) of the TCEQ shall exist if any one or more of the following events shall occur: 1. Any representation or warranty made by the TCEQ in this Agreement shall prove to be untrue or inaccurate in any material respect as of the date on which such representation or warranty is made; 2. The TCEQ shall default, in any way, manner or form, in the performance of any of the covenants, provisions and/or terms of this Agreement. B. Default of City. An Event of Default (herein so called) of the City shall exist if.. City shall default in the performance of any of the covenants, provisions and/or terms of this Agreement. Section 7.02. Remedies upon Event of Default. A. Remedies of City. If an Event of Default of the TCEQ shall have occurred and be continuing after twenty (20) days notice of such default is delivered to the TCEQ, then the City, at its option may (i) declare this Agreement, and all rights and Texas Commission on Environmental Quality Page 7 of 12 interests created by it, terminated; (ii) assert an action for any and all damages available to the City under this Agreement and/or pursuant to law or equity; and (iii) pursue and enforce any rights of the City as provided by law, equity, contract or otherwise. In the event the City elects to terminate this Agreement as provided herein, this Agreement shall cease as if the day of the City's election to terminate was the day originally fixed in this Agreement for its expiration. The remedies provided to the City by law, equity, contract or otherwise are cumulative, to the extent permitted by law. The exercise by the City of the remedies provided herein shall not constitute an election of remedies, and the City, irrespective of its exercise of remedies as provided herein, or a portion thereof, shall be entitled to exercise, concurrently or otherwise, any and all remedies available to it by law, equity, contract or otherwise. B. Remedies of TCEQ. If an Event of Default of City shall have occurred and be continuing after twenty (20) days notice of such default is delivered to the City, then TCEQ may, as its sole and exclusive remedy, either (i) enforce specific performance of this Agreement; or (ii) terminate this Agreement. In the event TCEQ elects to terminate this Agreement as provided herein, this Agreement shall cease as if the day of the TCEQ's election to terminate was the day originally fixed in this Agreement for its expiration. ARTICLE VIII Miscellaneous Section 8.01. No Waiver. No failure to exercise, and no delay in the exercise on the part of the City or TCEQ of any right hereunder shall operate as a waiver thereof, nor shall any single or Texas Commission on Environmental Quality Page 8 of 12 partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right. The rights of the City hereunder shall be in addition to all other rights provided by law. Section 5.02. Notice. Any notice required or permitted to be given herein must be given in writing and must be personally delivered, delivered by telephone facsimile, or mailed by prepaid certified or registered mail to the party to whom such notice or communication is directed at the address of such party as follows: City: Environmental Compliance Manager P.O. Box 2000 Lubbock, Texas 79457 Telephone: (806) 775-2880 Fax: (806) 775-2051 TCEQ: r TCEQ ✓.ir r5 / r �. Telephone: -47Z - Z 55 - 1714- Fax: 71rFax: s i 2 - Z35 - // d5' Any such notice or other communication shall deemed to have been given (whether actually received or not) on the date it is personally delivered or delivered by telephonic facsimile, or, if mailed, on the third day after it is mailed as aforesaid. Any party may change its address for purposes of this Agreement by giving notice of such change to all other parties pursuant to this Section 8.02. Section 8.03. Assignment/Sublet. This license is personal to TCEQ. The TCEQ shall not assign or sublet this license. Any attempt to assign or sublet this license shall terminate the license granted herein. Section 8.04. Com. Unless otherwise provided herein or required by law and/or local ordinance, charter or code, any action required or permitted to be taken by "the City", shall be taken by the City Manager of the City of Lubbock or any party designated by him or her. Section 8.05. Relationship to Parties. The relationship between the City and the TCEQ, as per the relationship created by this Agreement, is at all times solely that of licensor and licensee, and may not be deemed, in any event, a partnership, joint venture or joint enterprise. Texas Commission on Environmental Quality Page 9 of 12 Section 8.06. Compliance with Applicable Law. The TCEQ shall comply with all federal, state and local rules, regulations, statutes, laws and ordinances governing or relating to, in any way, manner or form, the occupation of the Lands, and/or any other aspect of the activities described in or contemplated by this Agreement, regardless of whether the TCEQ, in absence of this Agreement, would be subject to same. Section 8.07. Time of the Essence. Time is of the essence of this Agreement. Section 8.08. Texas Law/Venue. This Agreement is to be construed under Texas law and applicable federal law, without regard to conflict of law rules that would direct application of the laws of any other jurisdiction, and all obligations of the parties created by this Agreement are performable in Lubbock County, Texas. Venue for any action brought pursuant to this Agreement, or any activity contemplated hereby, shall lie exclusively in Lubbock County, Texas. Section 8.09. Partial Invalidity. Except as otherwise provided herein, if any one or more of the provisions contained in this Agreement are for any reason held to be invalid, illegal, or unenforceable in any respect, the invalidity, illegality, or unenforceability will not affect any other provision of this Agreement, which shall be construed as if it had not included the invalid, illegal or unenforceable provision. Section 8.10. Agreements Superseded. This Agreement constitutes the parties' sole agreement and supersedes any prior understandings or written or oral agreements between the parties with respect to the subject matter hereof Section 8.11. Amendment. No amendment, modification, or alteration of this Agreement is binding, unless in writing, dated subsequent to the date of this Agreement, and duly executed by the parties. Section 8.12. Exhibits. The Exhibits which are referenced in, and attached to this Agreement, are incorporated in and made a part of this Agreement for all purposes. Texas Commission on Environmental Quality Page 10 of 12 Section 8.13. Cautions. Section captions are for convenience only and shall in no way affect the interpretation of this Agreement. Section 8.14. License Agreement. The intent of this Agreement is to grant a license to the TCEQ to utilize the Lands solely for the purposes described herein. This Agreement shall not be construed, in any way, manner or form, as a lease of the Lands or as conveying to the TCEQ any interest in the real property comprising the Lands. Section 8.15. Interlocal Agreement. Each party to the performance of the governmental functions or services under this Agreement shall make those payments, if any, from current revenues available to the paying party. Texas Commission on Environmental Quality Page 11 of 12 EXECUTED and effective as of the date above first written. CITY OF LUBBOCK, TEXAS DAVID A. MYLLER, MAYOR ATTEST: Rebecca Garza, City Secretary APPROVED AS TO CONTENT: Dan Dennison Director of Environmental Compliance APPROVED AS TO FORM: Z-- �- - Richard K. Casner First Assistant City Attorney mllRichardlTCEQ.Licesne Agreement.rdln.accpt May 2, 2006 TEXAS COMMISSION ON ENVIRONMENTAL QUALITY By: Name: { ` c v e P . Title: �rv�s�or� rr�ct�r Texas Commission on Environmental Quality Page 12 of 12 EXHIBIT A Resolution No. 2006-RO566 INTERLOCAL LICENSE AGREEMENT T -N- 4TH ST US 82 MARSHA SHARP FRWY D TOWER TOWER PROPOSED Q Q TCEQ AIR 0 D QUALITY MONITOR SITE 20'x 20' DPS PARKING DEPARTMENT LOT OF PUBLIC PARKING LOT t a N SAFETY ralCENTER PHYSICAL PLANT MAC DAVIS LN ` CIVIC CENTER CIVIC CENTER PARKING LOT PARKING LOT 0 50 100 150 200 250 Feet EXHIBIT B Resolution No_ 2006-R0566 INTERLOCAL LICENSE AGREEMENT Air Monitoring Equipment to be Located on Lands of the City in the Vicinity of 1400 Mac Davis Lane. 2 to 3 — Sequential Particulate Matter Samplers 1 to 2 -- Continuous Particulate Matter Samplers wlAir Conditioned Shelter — Weather Boom Accessory and replacement equipment