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HomeMy WebLinkAboutO-2009-3204 LPISD-lease space in new ITC building 7 '-~ REQUEST FOR CITY COUNCIL AGENDA ITEM Agenda Date Requested: December 12. 2009 Budl!et Requested By: "prr SIl~~S Source of Funds: Technology Fund Department: IT Account Number: 02360665194022 Report: Resolution: Ordinance: x Amount Budgeted: $21,600 Exhibits: Interlocal Agreement with LPISD Amount Requested: $21,600 Exhibits: Ordinance Budgeted Item: YES X NO Exhibits SUMMARY & RECOMMENDATION The school district has recently completed and started the move in phase of the new Information Technology Center on Spencer Highway. The building is a highly rated and efficient structure able to with stand hurricane force winds and has auxiliary power to continue operations during and after a disaster. After many years of discussions between parties, a collaboration and joint usage agreement between the City and ISO has finally been reached. The City will house its IT staff and systems in the new building alongside the District. The City will pay a lease of $18,000 a year paid monthly and 5% of the monthly utility costs. The partnership will assist both groups with information sharing, equipment usage and continuity of operations. This Interlocal agreement has been passed by the School District and signed by the Superintendent. I; (16 J&j Date ORDINANCE NO. 2009- 3:1.01 AN ORDINANCE APPROVING AND AUTHORIZING AN INTERLOCAL AGREEMENT BETWEEN THE CITY OF LA PORTE AND THE LA PORTE INDEPENDENT SCHOOL DISTRICT, AUTHORIZING THE CITY OF LA PORTE TO LEASE OFFICE SPACE AT 9832 SPENCER HIGHWAY, FOR A NETWORK OPERATING CENTER AND STORAGE SPACE; MAKING VARIOUS FINDINGS AND PROVISIONS RELATING TO THE SUBJECT; FINDING COMPLIANCE WITH THE OPEN MEETINGS LAW; AND PROVIDING AN EFFECTIVE DATE HEREOF. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF LA PORTE: Section 1. The City Council hereby approves and authorizes the contract, agreement, or other undertaking described in the title of this ordinance, a copy of which is on file in the office of the City Secretary. The Mayor is hereby authorized to execute such document and all related documents on behalf of the City of La Porte. The City Secretary is hereby authorized to attest to all such signatures and to affix the seal of the City to all such documents. Section 2. The City Council officially finds, determines, recites, and declares that a sufficient written notice of the date, hour, place and subject of this meeting of the City Council was posted at a place convenient to the public at the City Hall of the City for the time required by law preceding this meeting, as required by the Open Meetings Law, Chapter 551, Texas Government Code; and that this meeting has been open to the public as required by law at all times during which this ordinance and the subject matter thereof has been discussed, considered and formally acted upon. The City Council further ratifies, approves and confirms such written notice and the contents and posting thereof. Section 3. This Ordinance shall be effective from and after its passage and approval, and it is so ordered. PASSED AND APPROVED, this I,-/I/.-day of fJf{'GIJ1f(yfYr: 2009. By: ATTEST: ~ atHt<-!J,f"fd artha A. Gillett City Secretary ~r~ Assistant City Attorney CITY ~~ORTE Barry Mayor USE AGREEMENT This Use Agreement (the "Agreement") is entered into by and between the LA PORTE INDEPENDENT SCHOOL DISTRICT, a public independent school district and political subdivision of the State of Texas, ("LPISD" or "District") and the CITY OF LA PORTE, TEXAS, a municipality located in Harris County, Texas and political subdivision of the State of Texas ("City") with an effective date of January 1,2010 ("Effective Date"). WHEREAS, the District owns certain real property and improvements located at 9832 Spencer Highway, La Porte, Texas 77571 ("Property"); and WHEREAS, the building located on the Property contains approximately 18,725 square feet of space ("Building"); and WHEREAS, the District currently does not have the need to use all the Building for its purposes; and WHEREAS, the City seeks to use a certain portion of the Building for City purposes and the District desires to grant use of certain areas of the Building to the City under the terms and conditions set forth herein. NOW THEREFORE, for the mutual covenants and promises and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the District and City, agree to the following: TERMS AND CONDITIONS OF AGREEMENT Article 1: Covenants of the District 1.1 The District hereby grants permi~c; ~ square feet on the second floor (\f'''' Building with the PrefY': consists of 8T'-- ~ Netv- ("Slo. p Vl 0 ~~medl j 11~ ,~rbrfC~ 1.3 Tl ' / V' , Storage S1 ? ,1111 ~ mutually a. Ur y'. . Section 1.2 ' 1 u by or at the t upon earlier tl to the City to use a total of approximately 920 "Premises"), as depicted on the floor plan of the attached Exhibit "A". The Leased Premises ce space ("Office Space"), 200 square feet for ximately 120 square feet for storage space " work space, storage, and public purposes ~inafter defined. ~mises and furnish the Office Space and ler fixtures as the District and the City ,es to be used by the City as set forth in xtures, and personal property installed 1's property at the end of the Term or 1.4 The Building shall be available for use by the City during normal business hours of 8:00 am to 5:00 pm Monday through Friday. The City shall have access to the Building after the normal business hours and on weekends on a twenty-four hour basis for network failure. If the City requires HV AC services during hours other than the normal business hours, it must give the District at least twenty-four (24) hours advance notice and may be charged an additional fee for the additional HV AC usage. 1.5 The District shall make available electricity and water (collectively "Utilities") to serve the Building and the Premises. The District shall not be liable for periodic or extended outages of the Utilities or for the failure of any provider to make such Utilities available at any time. 1.6 The District shall provide one (1) building standard door sign outside of the Premises identifying the Premises as space being used by the City. Article 2: Covenants of City 2.1 The City shall use the Premises solely for the purposes set forth in Section 1.2 of this Agreement. The City shall comply with all applicable laws and regulations and ordinances in its operations in the Premises and on the Property. 2.2 The City, at its sole cost and expense, shall furnish any materials, supplies, and equipment, including servers, switches, and data systems, that it deems necessary or advisable to conduct its operations at the Premises ("City Equipment"). The City shall be solely responsible for setting up, taking down, and installation of any City Equipment. The City, at its sole cost and expense, also shall be responsible for installation of any telephone or other telecommunications systems required by the City ("City Communications Equipment"). Prior to installation of any City Communications Equipment or installation of any City Equipment that will be attached to the Premises or any part of the Property, the City shall submit plans for such installation and obtain written approval from the District for such installation. The District shall not be responsible or liable for the security of or any damage to or loss of any City Equipment stored at the Property or any City Communications Equipment installed at the Premises or the Property. 2.3 At the end of the Term or upon earlier termination of this Agreement, except for any fixture(s) installed at the Premises that become part of the Building, any equipment supplied by the City for its use shall remain the City's property at the end of the Term or upon earlier termination of this Agreement. Notwithstanding the foregoing, the District shall have the right to remove the City Equipment from said Premises and/or the Property at the sole expense of the City. 2.4 The City shall not use, occupy, or permit any other person or entity to use the Premises or any portion of the Property for any unlawful or hazardous purpose or any act constituting a public or private nuisance; or do or engage in any act or thing that may disturb the quiet enjoyment of any other person at or near the vicinity of the Property; or keep any substance or carry on any operation that might emit significantly offensive odors into other portions of the -2- Premises, the Property, or the adjacent properties; or do anything that would increase the insurance rate of the Premises or the Property or its contents. 2.5 City assumes full responsibility for the conduct of any director, officer, employee, representative, agent, guest, or invitee using or present at the Premises or the Property. Prior to any employee or volunteer of the City being present at the Premises or on the Property, the City shall conduct criminal background checks on all such employees and volunteers. City warrants that it shall not permit and shall restrain any employee, volunteer, representative, or agent of City who has been convicted of a felony or crime of moral turpitude from coming in contact with any District student and/or from providing services at the Premises or the Property. Upon the request of the District, the City shall provide documentary evidence of such background checks, subject to any confidentiality requirements imposed by applicable law. 2.6 At the end of the Term or upon the effective date of termination under Section 3.2, the City shall deliver the Premises to the District in substantially the same condition as on the Commencement Date, normal wear and tear excepted. Article 3: Term of Agreement 3.1 Term. This Agreement shall commence on January 1, 2010 ("Commencement Date") and expire on December 31, 2012 ("Expiration Date"). The period between the Commencement Date and the Expiration Date shall be referred to as the "Initial Term". At the expiration of the Initial Term, this Agreement automatically shall renew for successive one (1) year terms (each a "Renewal Term"). The Initial Term and any and all Renewal Terms shall be referred to herein as "Term." 3.2 Termination. In addition to the right of termination set forth in Article 8, the parties also may terminate this Agreement prior to the end of the Term as set forth in this Section 3.2. Either party shall have the right to terminate this Agreement at any time upon ninety (90) days written notice for any reason. The City has the right to terminate this Agreement at the end of any fiscal year if the City Council, despite its best efforts, fails to appropriate sufficient funds to pay the Usage Fee as set forth in Article 4. Termination under this Section 3.2 shall be without any penalties and without further obligations upon the part of either party, other than those stipulated herein related to the terms of this Agreement, including, but not limited to, those set forth in Section 4.4 through 4.6. Article 4: Usage Fee and Expenses 4.1 Usage Fee: For the use of the Premises, the City agrees to pay the District in good funds the sum of Eighteen Thousand and No/lOO Dollars ($18,000) per year, payable monthly ("Usage Fee or Usage Fees"). The City hereby agrees to pay such Usage Fees to the District at the District's address as provided herein for notices (or any other address that may be designated by the District in writing to the City) on or before the 15th day of the month. The District reserves the right to refuse entry to the Property by the City if the City has not paid the Usage Fee by the Usage Time scheduled for which such Usage Fee applies. -3- 4.2 Expenses. In addition to the Usage Fees, the City shall pay to the District its pro-rata share of the cost of any Utilities, which shall be five percent (5%) of the monthly cost to the District for Utilities and shall pay to the District the additional costs for the usage of Utilities other than during normal business hours ("Expenses"). 4.3 Interest: If the City fails to pay the Usage Fees or any Usage Fee within the time frame required under Section 4.1 or fails to pay any Expenses within thirty (30) days after submission of invoice by the District, the City shall owe to the District interest on all amounts not paid when due in the maximum amount permitted under Section 2251.025 of the Texas Government Code ("Interest"). If any portion of any Usage Fee payment, Expenses, or Interest is not paid as required or by the dates due under this Article 4, the amount of Usage Fee due for the next month or for any succeeding period shall be calculated first by crediting the amount paid by the City against any Interest due with the remainder of the amounts so paid being credited toward any Usage Fee(s) or Expenses then due and owing. If after making such credits, additional amounts are due by the City for Usage Fees, Expenses, or Interest not paid, interest shall continue to accrue until such time as the City pays all outstanding Usage Fees, Expenses, and Interest. 4.4 The City's obligation to pay any Usage Fees, Expenses, and Interest that are outstanding and have not been paid at the end of the Term or upon the earlier termination of this Agreement shall survive the expiration or earlier termination of this Agreement and late charges shall continue to accrue until such Usage Fees, Expenses, and late charges are paid. The District reserves the right to pursue any action or remedy available at law or in equity if the City fails to pay Usage Fees, Expenses, and/or Interest as required under this Agreement. 4.5 The City shall be liable for and shall reimburse the District for the costs of repairing any damage to the Premises, or Property, or any of the District's personal property located at, in, or near the Premises or Property caused by or resulting from the City or any of the City's officers, employees, guests, members, invitees, and/or agents' use of the Premises or presence on the Property. The City's obligations under this Section 4.5 shall survive expiration or earlier termination of this Agreement. 4.6 The District reserves the right to charge and the City agrees to pay any additional charges that may accrue due to the City's usage of the Premises, such as costs for the City's failure to perform its obligations under this Agreement including, but not limited to, the failure to leave the Premises in a clean condition at the end of the Term; damage to the Property or the District's property, equipment, or grounds; and the costs associated with checks returned for insufficient funds. Article 5: Use and Operation 5.1 The City shall not nor shall it permit any person, including without limitation, its officers, employees, guests, members, invitees, and/or agents, to: a) commit any violation of applicable present and future laws, ordinances, orders, rules and regulations regarding the use of the Premises and Property; -4- b) commit at the Premises or on the Property any nuisance or other act or thing against public policy; c) commit at the Premises or on the Property any act that disturbs the quiet enjoyment of any other persons occupying or utilizing the Property; d) bring onto the Premises or on the Property any weapons, alcoholic or intoxicating beverages, any illegal drugs, or any controlled substance, except as such controlled substance is prescribed by a physician; e) bring onto the Premises or on the Property any firearms, knives, or any other item that could be construed as a weapon; f) bring onto the Premises or on the Property any glass containers or receptacles, or any other item that potentially could cause harm or injure a person; g) bring onto the Premises or on the Property any pets or animals; and/or h) use the Premises for any illegal, improper, immoral, or objectionable purpose. 5.2 Except as otherwise expressly permitted under this Agreement and except upon advance written consent from the District after review and approval of plans for any improvements, additions, or alterations, the City shall not make any additions or alterations to the Premises or the improvements, fixtures, furnishings, and equipment owned by the District at the Property except. 5.3 The District and its agents and employees shall have access to the Premises to the extent deemed necessary by the District (a) for the performance of its obligations under this Agreement and for any and all purposes related thereto; (b) to investigate any suspected violations of the terms and conditions of this Agreement; or (c) otherwise in connection with the ownership of the Property. The City shall not interfere with the District's right of access. 5.4 The District reserves the right through its representatives to eject any person or persons who act in violation of the terms of this Agreement from the Premises or the Property and upon the exercise of this authority, THE CITY WAIVES ITS RIGHT AND CLAIM FOR RELIEF AND/OR DAMAGES AGAINST THE DISTRICT OR ANY OF ITS TRUSTEES, OFFICERS, EMPLOYEES, OR AGENTS. Article 6: Liability 6.1 DISCLAIMER OF LIABILITY; RELEASE. (a) NEITHER THE DISTRICT NOR ANY OF ITS TRUSTEES, OFFICERS, EMPLOYEES, AGENTS, SUCCESSORS, OR ASSIGNS (collectively and anyone of them shall be referred to herein as "DISTRICT PARTIES") SHALL BE LIABLE OR RESPONSIBLE FOR ANY CLAIMS, LOSSES, DEMANDS, SUITS, COSTS, AND EXPENSES, AND OTHER FORMS OF LIABILITY INCLUDING, BUT NOT LIMITED -5- TO, ATTORNEYS' FEES AND LITIGATION EXPENSES (EACH A "CLAIM") OR ANY INJURY TO ANY PERSON OR TO ANY PROPERTY (EACH A "LOSS") OF THE CITY, ITS OFFICERS, EMPLOYEES, AGENTS, MEMBERS, GUESTS, INVITEES, OR ANY THIRD PARTY, IN OR UPON THE PROPERTY OR PREMISES, RESULTING FROM ANY CAUSE WHATSOEVER INCLUDING, BUT NOT LIMITED TO, PERSONAL INJURY, THEFT, OR VANDALISM AND THE CITY RELEASES THE DISTRICT PARTIES FROM ANY LIABILITY FOR SUCH CLAIM OR LOSS. (b) EXCEPT AS OTHERWISE SET FORTH IN THIS AGREEMENT OR AS OTHEWISE PERMITTED BY LAW, NEITHER THE CITY NOR ANY OF ITS OFFICERS, EMPLOYEES, AGENTS, SUCCESSORS, OR ASSIGNS (collectively and anyone of them shall be referred to herein as "CITY PARTIES") SHALL BE LIABLE OR RESPONSIBLE FOR ANY CLAIMS, LOSSES, DEMANDS, SUITS, COSTS, AND EXPENSES, AND OTHER FORMS OF LIABILITY INCLUDING, BUT NOT LIMITED TO, ATTORNEYS' FEES AND LITIGATION EXPENSES (EACH A "CLAIM") OR ANY INJURY TO ANY PERSON OR TO ANY PROPERTY (EACH A "LOSS") OF THE DISTRICT PARTIES RESULTING FROM ANY CAUSE WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, PERSONAL INJURY, THEFT, OR VANDALISM TO THE EXTENT CAUSED SOLELY BY THE DISTRICT AND THE DISTRICT RELEASES THE CITY PARTIES FROM ANY LIABILITY FOR SUCH CLAIM OR LOSS. 6.2 Survival of the Disclaimer and Release. THE DISCLAIMER AND RELEASE OF LIABILITIES SET FORTH IN THIS ARTICLE 6 SHALL SURVIVE THE EXPIRATION OF THE TERM OR EARLIER TERMINATION OF THIS AGREEMENT. Article 7: Insurance 7.1 At all times during the Term of this Agreement, the City shall obtain and keep in force, at its sole cost and expense, (i) a comprehensive general liability insurance policy with a single limit of at least two million dollars ($2,000,000), including coverage for bodily injury or death, property damage, and personal injury liability; and (ii) an all-risk property insurance policy covering the District's property located within the Premises in accordance with the terms of this Agreement for the full replacement cost of such District property. 7.2 Prior to the City's use of the Premises and before the insurance policies required to be maintained under this Agreement shall expire, the City shall deliver to the District a certificate and copies of all endorsements evidencing the issuance of such insurance policies. Upon request by the District, the City shall provide a copy of the insurance policies required under Section 7.1 of this Agreement. The City's comprehensive general liability insurance policy and certificate and endorsements evidencing such insurance shall include the District as additional insured and require that the District be notified of the cancellation or expiration of the policy in advance. Further, both policies required of the City under this Section 7.1 shall (i) contain provisions by which the insurer agrees that neither policy shall be canceled or substantially changed except after thirty (30) days written notice to the District; and (ii) be issued by insurance companies reasonably satisfactory to the District and qualified to do business in the State of Texas. Any -6- liability insurance carried or to be carried by the City under this Agreement shall be primary and non-contributory over any insurance policy or self-insurance coverage maintained or carried by any of the additional insured. The City's failure to obtain or maintain the required insurance shall constitute a material breach of this Agreement and shall result in the City being required to immediately cease its use of the Premises. 7.4 Any and all insurance policies required of the City under this Agreement shall contain a waiver of subrogation of any right against the District or any insurance policy owned or held by either the District. Article 8: Default 8.1 If the either party fails to comply with any prOVlSlon in this Agreement, the non- breaching party shall give the breaching party written notice of the default. If within ten (10) business days after notice is given, the breaching has not cured the default, or in the other party's sole discretion and judgment has not made substantial efforts to cure the default, (which shall be fully cured no later than 20 business days after notice), the non-breaching party may terminate this Agreement immediately and seek the redress and remedies as set forth below. 8.2 In addition to the termination rights under Section 8.1, in the event of any such default or breach by the City and the failure to cure within the time frames required, the District may at any time thereafter, in its sole discretion, with or without notice or demand (except as otherwise stipulated and expressly provided for herein) terminate the City's right to use the Premises and shall remove City Equipment and/or City Communications Equipment by any lawful means, in which case this Agreement shall terminate and the City shall immediately cease its use of the Premises and entry to the Property and shall pay all amounts owed to the District under this Agreement up to the time of such termination, except that Interest shall continue to accrue as set forth in this Agreement until such time as all delinquent amounts are paid in full and in such event the District shall be entitled to recover from the City all damages incurred by the District by reason of the City's default, including collection costs and attorney's fees. 8.3 The City waives any claim to "possession" of the premises as that term is defined by law and agrees that since this is merely an agreement for the City's use of the Premises rather than a property right in the form of a lease, and the City waives necessity of, or entitlement to, a forcible detainer or other similar action to remove the City from the Premises. Article 9: Parking Area 9.1 The District reserves the right to change the entrances, exits, traffic lanes, and the boundaries and locations of parking area at the Property without notice to the City. 9.2 The District shall keep the motor vehicle parking areas in a neat, clean and orderly condition. 9.3 The City, for the use and benefit of the City, its employees, guests, and invitees, shall have the non-exclusive right in common with the District and the District's officers, employees, -7- guests, and invitees to use the parking area during the Term of this Agreement for ingress, egress, and motor vehicle parking. 9.4 In the use of the parking area, the City agrees to comply with such reasonable rules and regulations as the District may adopt from time to time for the orderly and proper operation of said parking area. Such rules may include, but shall not be limited to, the restricting of parking to a limited or designated area or areas. Article 10: Nature of Agreement and Relationship of the Parties 10.1 This Agreement provides the City only with the right and privilege to use the Premises in the manner set forth in this Agreement. Nothing herein is intended to grant to the City a leasehold or tenancy interest in the Premises. 10.2 Nothing contained in this Agreement shall be construed as constituting a joint venture or partnership between the District and the City or as creating the relationship of principal and agent. Nothing contained herein shall be construed as permitting the City to bind the District or serve as agent of the District with regard to the Premises, the Property, or any subject matter contained in this Agreement. Article 11: Miscellaneous Provisions 11.1 This Agreement represents the entire agreement and understanding between the parties as to the subject matter herein and supersedes all previous agreements or understandings between the parties, whether verbal or written. This Agreement may not be altered or amended except by written agreement signed by both parties. 11.2 This Agreement shall be governed interpreted by, and construed in accordance with the laws of the State of Texas without regard to its choice of law provisions. Exclusive venue for any dispute relating to this Agreement or the subject matter hereof shall be in a court of competent jurisdiction located in Harris County , Texas. 11.3 Nothing contained in or contemplated by this Agreement shall be construed to waive any immunities to which the District or the City may be entitled under any law. 11.4 This Agreement shall not be assignable by either party in whole or in part without the prior written consent of the other party. Notwithstanding the foregoing, the District shall have the right to assign this Agreement to any successor in interest obtaining title to the Property. 11.5 No waiver by either party of any default or breach by the other party of its obligations under this Agreement shall be construed to be a waiver or release of any subsequent default or breach under this Agreement. No failure or delay by either party in the exercise of any remedy provided for in this Agreement shall be construed a forfeiture or waiver thereof or of any other right or remedy available. -8- 11.6 Any provisions of this Agreement that shall prove invalid, void, or illegal shall be reformed to the fullest extent possible to comply with any legal restrictions or limitations and such invalidity or illegality of one or more provisions in no way affects, impairs, or invalidates any other provision hereof and such other provisions shall remain in full force and effect. 11.7 Notices. All notices and other communications required by the terms of this Agreement will be in writing and sent to the parties hereto at the addresses set forth below (and such addresses may be changed upon proper notice to such addresses). Unless otherwise agreed in writing by the receiving party, notice may be given by: (i) certified or registered mail, postage prepaid, return receipt requested; (ii) reputable overnight carrier, postage prepaid; (iii) facsimile (with confirmation of transmission by sender's facsimile machine); or (iv) personal delivery (with written receipt confirming such delivery). Notice will be deemed to have been given (i) two (2) business days after mailing as described in clauses (i) and (ii) of this Section 11.7; (ii) on the date of personal delivery; or (iii) on the date of transmission of a facsimile if on a business day during normal business hours (or, if not, the next succeeding business day). Unless otherwise agreed in writing by the receiving party, electronic mail does not constitute official notice under this Agreement. The addresses of the parties are: TO THE DISTRICT: La Porte Independent School District Attn: 1002 San Jacinto Street La Porte, Texas 77571 Telephone: 281-604-_ Facsimile: 281-604- Email: WITH COPY TO: Thompson & Horton LLP Attn: Maureen R.M. Singleton 711 Louisiana Street, Suite 2100 Houston, Texas 77002 Telephone: 713-554-6750 Facsimile: 713-583-7909 Email: MSingleton@thompsonhorton.com TO THE CITY: City of La Porte, Texas r L Attn: ---Lt1 t1,rJh Lt. G ; I k l-r .... - La Porte, Texas 0'),1 Telephone: 281- 4-'70- 5DIL7 Facsimile: J Email: ~ i II e l-/ m ~ {lJ.vpo(tc: -J ~ 'J 0 WITH COPY TO: -9- 11.8 The District and the City each represent that it has the authority to execute this Agreement and to perform its obligations under this Agreement. 11.9 This Agreement may be executed in two (2) or more counterparts, each of which shall be considered an original and binding upon the party executing the same, but both of which shall constitute one and the same agreement. 11.10 Exhibits. The following exhibits are attached hereto and incorporated herein for all purposes: Exhibit "A" Depiction of the Floor Plan of the Building and the Premises This Agreement is executed below on (2 -/4-01 Effective Date. and entered into as of the DEPENDENT SCHOOL DISTRICT 445220 -10-