2010R20-Schertz Chamber Lease/Operating AgreementRESOLUTION NO. 10-R-20
A RESOLUTION BY THE CITY COUNCIL OF THE CITY OF
SCHERTZ, TEXAS AUTHORIZING AN OPERATING AGREEMENT
AND A COMMERCIAL LEASE AGREEMENT WITH THE SCHERTZ
CHAMBER OF COMMERCE, AND OTHER MATTERS IN
CONNECTION THEREWITH
WHEREAS, the City staff of the City of Schertz (the "City") has recommended that the
City enter into an agreement concerning basic operations (the "Operating Agreement") and a
Commercial Lease Agreement for the Kramer House with the Schertz Chamber of Commerce;
and
WHEREAS, the City Council has determined that it is in the best interest of the City to
contract with the Schertz Chamber of Commerce pursuant to the Operating Agreement and the
Commercial Lease Agreement attached hereto as Exhibit A (together, the "Agreements"); and
WHEREAS, the Schertz Chamber of Commerce has approved the Agreements.
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS
THAT:
Section 1. The City Council hereby authorizes the City Manager to execute and
deliver the Agreements with the Schertz Chamber of Commerce in substantially the forms set
forth on Exhibit A.
Section 2. The recitals contained in the preamble hereof are hereby found to be true,
and such recitals are hereby made a part of this Resolution for all purposes and are adopted as a
part of the judgment and findings of the City Council.
Section 3. All resolutions, or parts thereof, which are in conflict or inconsistent with
any provision of this Resolution are hereby repealed to the extent of such conflict, and the
provisions of this Resolution shall be and remain controlling as to the matters resolved herein.
Section 4. This Resolution shall be construed and enforced in accordance with the
laws of the State of Texas and the United States of America.
Section 5. If any provision of this Resolution or the application thereof to any person
or circumstance shall be held to be invalid, the remainder of this Resolution and the application
of such provision to other persons and circumstances shall nevertheless be valid, and the City
Council hereby declares that this Resolution would have been enacted without such invalid
provision.
Section 6. It is officially found, determined, and declared that the meeting at which
this Resolution is adopted was open to the public and public notice of the time, place, and subject
matter of the public business to be considered at such meeting, including this Resolution, was
given, all as required by Chapter 551, Texas Government Code, as amended.
Resol 10-R-20.doc
Section 7. This Resolution shall be in force and effect from and after its final
passage, and it is so resolved.
PASSED AND ADOPTED, this 27th day of April, 2010.
CITY OF SC ERTZ ERAS
~~~~
Mayor
ATTEST:
~ G~
~i y Secretary
(CITY SEAL)
Resol 10-R-20.doc
EXHIBIT A
OPERATING AGREEMENT AND COMMERCIAL LEASE AGREEMENT
Resol 10-R-20.doc A-1
AGREEMENT
This Agreement made and entered into as of this 1st day of October, 2009 (this
"Agreement") is between the City of Schertz, Texas, a political subdivision of the State of Texas
(the "City"), and the Schertz Chamber of Commerce, a Texas non-profit corporation (the
"Chamber").
RECITALS
WHEREAS, future economic growth and development within the City are key goals of
both the City and the Chamber;
WHEREAS, the City previously devoted a significant amount of City staff time to events
and programs promoting economic development and the positive image of the City;
WHEREAS, the Chamber has taken responsibility for such events and has removed this
burden from City staff;
WHEREAS, in order to effectively coordinate such events and programs in the near
future, the Chamber needs continual fmancial support from the City;
WHEREAS, the Chamber anticipates that such funding will only be necessary for
approximately five (5) years, providing sufficient time for the Chamber to grow and increase its
sources of outside funds; and
WHEREAS, the City and the Chamber desire to enter into an arrangement to best utilize
available resources to promote the City.
AGREEMENT
For and in consideration of the mutual promises, covenants, benefits, and obligations
hereafter set forth, the City and the Chamber hereby agree and contract as follows:
ARTICLE I
RESPONSIBILITIES OF THE CHAMBER
1.01 Functions and Projects. The Chamber will exclusively coordinate certain
economic development and community development functions previously staffed and presented
by the City, including, but not limited to, operating the visitor's center. The Chamber will
partner with the City to accomplish certain other projects, including, but not limited to,
Relocation Packets, a City Business Directory, a City Visitors' Guide, aCity/area map, and a
Chamber Coin.
1.02 Visitor's Center. Pursuant to a separate Commercial Lease Agreement effective
October 1, 2009, the Chamber will operate the Kramer House as a Visitors' Center for the City.
This Visitors' Center will be used to promote and enhance tourism and business development in
the City.
soa9~sois
1.03 Request for Financial Support. The Chamber will, at the beginning of the City's
annual budgeting process for the fiscal year beginning October 1, 2010, provide the City a
proposed budget, detailing the anticipated costs for that fiscal year and breaking out the amount
and purposes of funding requested from the City. The Chamber will provide such request
annually to a representative designated by the City Manager (the "City Representative"), until
the expiration of this Agreement.
1.04 Reports to Citv Council. The Chamber will provide a written report to the City
Council on the date this Agreement is first executed and thereafter quarterly during the term of
this Agreement, commencing July 1, 2010. This report will detail the actions of the Chamber to
date, as well as detail all City funds expended.
ARTICLE II
RESPONSIBILITIES OF THE CITY
2.01 City Re rp esentative. The City Manager will designate an employee of the City to
act as the City Representative. The City Representative will act as liaison between the City and
the Chamber in all matters relating to this Agreement. The City Representative will be
responsible for recommending approval, denial, or modification of the annual budget request of
the Chamber and approving, denying, or modifying the budget and staffing arrangements for
particular activities covered by this Agreement.
2.02 City Functions. The City will partner with the Chamber to accomplish certain
projects, including, but not limited to, Relocation Packets, a City Business Directory, a City
Visitors' Guide, aCity/area map, and a Chamber Coin.
2.03 Financial Support. The City will provide funding to the Chamber for the
remainder of fiscal year 2010 as described on Exhibit A. Future funding shall be determined in
the course of the City's annual budgeting process, as described in Section 1.03. Funding by the
City shall be made from legally available City funds.
ARTICLE III
GENERAL AND MISCELLANEOUS PROVISIONS
3.01 Term. The initial term of this Agreement shall be through September 30, 2010.
This Agreement shall be extended thereafter for successive one (1) year periods unless either
party notifies the other in writing not later than thirty (30) days prior to the end of the then
current term of this Agreement that it does not want to extend the term hereof. This Agreement,
and the parties' obligations hereunder, shall terminate at the end of the then-current term if either
party gives such notice. This Agreement may be modified by the City and Chamber to address
agreed projects for the ensuing fiscal year. In any case, this Agreement shall terminate on
September 30, 2010.
3.02 Regulatory Requirements. This Agreement and the obligations of the parties
hereunder are subject to all rules, regulations, and laws that may be applicable by the United
States, the State of Texas, or any regulatory agency having jurisdiction as to the matter in
question.
50297801.3 2
3.03 Implied Waiver. The failure of either parry hereto to insist, in any one or more
instances, upon performance of any the terms, covenants, or conditions of this Agreement shall
not be construed as a waiver or relinquishment of the future performance of any such term,
covenant or condition by the other party hereto, but the obligation of such ogler parry with
respect to such future performance shall continue in full force and effect.
3.04 Abprovals or Consents. Whenever this Agreement requires or permits approvals
or consents to be hereafter given by any party hereto, such parties agree that such approval or
consent shall not be unreasonably withheld. Such approval or consent shall be given in writing
and shall be effective without regazd to whether given before the time required herein.
3.05 Addresses and Notices. Unless otherwise provided in this Agreement, any notice,
communication, request, replay or advice (herein severally and collectively for convenience
called "notice") herein provided or permitted to be given, made or accepted by either party to the
other must be in writing and may be given or be served by depositing the same in the United
States Mail, postpaid and registered or certified and addressed to the parry to be notified, with
return receipt requested, or by delivering the same to an officer of such part, or by prepaid
telegram or facsimile, when appropriate, addressed to the part), to be notified. Notice deposited
in the mail in the manner herein above described shall conclusively deemed to be effective,
unless otherwise stated in this Agreement, from and after the expiration of three (3) days after it
is so deposited. Notice given in any other manner shall be effective only if and when received
by the party to be notified. For the purposes of notice, the addresses of the parties shall, until
change as hereinafter provided, be as shown below. The parties shall have their right to specify
as its address any other address in the State of Texas by at least fifteen (15) days written notice to
the other parry.
If to the City to: City of Schertz, Texas
1400 Schertz Pazkway
Schertz, Texas 78154
Attention: City Manager
If to the Chamber to: Schertz Chamber of Commerce
1730 Schertz Pazkway
P.O. Box 564
Schertz, TX 78154
Attention: President or Chair of the Boazd
3.06 Severability. The provisions of this Agreement are severable, and if any word,
phrase, clause, sentence, paragraph, section or other part of this Agreement or the application
thereof to any person or circumstance shall ever be held by any court of competent jurisdiction to
be invalid or unconstitutional for any reason, the remainder of this Agreement and the
application of such word, phrase, clause, sentence, paragraph, section or other part of this
Agreement to the other persons or circumstances shall not be affected thereby.
3.07 Sole. Agreements. This Agreement and the Commercial Lease Agreement
relating to the Kramer House constitute the entire agreement between the parties relative to the
subject matter hereof. There have been and are no agreements, covenants, representations, or
50297801.3 3
warranties between the parties as to the subject matter hereof other than those expressly stated or
provided for herein.
3.08 Cooperation. Each parry hereby agrees that it will take all actions and execute all
documents necessary to fully carry out the purposes and intent of this Agreement.
50297801.3 4'
IN WITNESS WHEREOF, the parties have executed the Agreement in multiple copies, each
of which shall be deemed an original as of the date and year first written above.
CITY OF SCHERTZ
By:
Don Taylor
City Manager
Chair of the Board
50297801.3 S-1
Exhibit A
Requested Funding for October 1, 2009 through September 30, 2010
Description
Rent
Civic Center RentaUMonthly Meeting
Salary Administrative Assistant at
$12/hour for 2080 Hours
Payroll Tax Administrative Assistant
Presidential Salary Support
Directory Support
Maps
TOTAL
Amount
$7,800
$3,000
$27,360
$1,909
$5,000
$12,000
$1,159
$58,228
5029780].3 A-1
COMIVVI[ERCTAi, LEASE AGREEMENT
FOR GOOD AND VALUABLE CONSIDERATION, the receipt and sufficiency of
which aze hereby acknowledged and confessed, the Landlord named below leases to the Tenant
named below, and Tenant leases from Landlord, the Premises described below pursuant to the
terms of this Commercial Lease Agreement (this "Lease") entered into effective as of the
Effective Date specified below.
A. Basic terms of the Lease-
1. Effective Date: October 1, 2009
2. Landlord: CITY OF SCHERTZ, TEXAS
3. Landlord's Contact
Information: 1400 Schertz Parkway
Schertz ,Texas 78154
Attention: City Manager
Phone: (210) 619-1020
Facsimile: (210) 619-1050
Email: detaylor@schertz.com
4. Tenant: SCHERTZ CHAlViBER OF COMI~~RCE
5. Tenant's Contact
Information: 1730 Schertz Pazkway
Schertz, Texas 78154
Attention: President/Chair of the Board
Phone: (210) 566-9000
Facsimile: (210) --
Email: President@schertzchamber.org
6. Premises: The Kramer House -located at 1730 Schertz
Parkway, and more particulazly described on
Exhibit A
7. Base Rent: Six Hundred Fifty Dollazs and No/100 ($650.00)
per month payable in quarterly installments for the
Kramer House
8. Commencement Date: October 1, 2009
9. Termination Date: September 30, 2014, as may be extended pursuant
to Section H(26) of this Lease or by written
agreement of the Landlord and Tenant
10. Security Deposit: $0.00
50297783.3 1
11. Use: Business headquarters and Visitors' Center
12. Insurance: Amount of liability insurance to be maintained by
Tenant:
Death/bodily injury: One Million and No/100
Dollars ($1,000,000.00)
Property: Two Hundred Fifty Thousand
and No/100 Dollars
($250,000.00)
B. Definitions-
1. "Rent" means Base Rent, plus any other amounts of money due Landlord by
Tenant under the terms of this Lease.
2. "Essential Services" means utility connections reasonably necessary for
occupancy of the Premises for the Use.
C. Tenant agrees to-
1. Lease the Premises for the entire term of this Lease beginning on the
Commencement Date and ending on the Termination Date.
2. Accept the Premises in their present condition "AS IS".
3. Pay quarterly, in advance, on the first day of each January, April, July, and
October, the Base Rent to Landlord at Landlord's address; provided, the Base Rent due on
October 1, 2009 and January 1, 2010 has been paid, and the Base Rent due on April 1, 2010,
totaling $1,950.00, shall be due and payable on the date that this Lease is signed by Landlord and
Tenant. The next quarterly payment of Base Rent shall be due and payable on July 1, 2010.
4. Pay, as Additional Rent, all other amounts due under this Lease, when due and
payable.
5. Pay a late charge of five percent (5%) of any Rent not received by Landlord by
the tenth day after it is due, and, so long as Rent is paid within this timeframe, such payment
shall not be a default under this Lease.
6. Allow Landlord to enter the Premises to perform Landlord's obligations, inspect
the Premises, and show the Premises to prospective purchasers or tenants, at reasonable times
and upon reasonable notice.
7. Repair, replace, and maintain any part of the Premises that Landlord is not
obligated to repair, replace, or maintain, normal wear excepted.
8. Repair any damage to the Premises caused by Tenant.
50297783.3 2
9. Submit in writing to Landlord any request for repairs, replacement, and
maintenance that are the obligations of Landlord.
10. Maintain public liability insurance for the Premises and the conduct of Tenant's
business, naming Landlord as an additional insured, in the amounts stated in Section A(12) of
this Lease.
11. Deliver certificates of insurance to Landlord when requested.
12. Indemnify, defend, and hold Landlord harmless from any loss, attorney's fees,
court and other costs, or claims arising out of Tenant's use of the Premises, except to the extent
caused by Landlord or Landlord's agents, employees, invitees, licensees, or visitors.
13. Vacate the Premises on termination of this Lease.
14. Within fifteen (15) business days after Landlord's written request, execute an
estoppel certificate that states the Commencement Date and Termination Date of this Lease,
identifies any amendments to this Lease, describes any rights to extend the Term or purchase
rights, lists defaults by Landlord, and provides any other information reasonably requested by
Landlord.
D. Tenant agrees not to-
1. Use the Premises for any purpose other than stated in this Lease.
2. Create a nuisance or commit waste on the Premises.
3. Use the Premises in any way that is extrahazardous and would increase
Landlord's insurance premiums.
4. Alter the Premises, except for painting, flooring, and maintenance-related
alterations, without Landlord's consent.
5. Allow a lien to be placed on the Premises.
6. Use the roof on the Premises, except for locating the HVAC serving the Premises
in the same or similar manner as it is currently located.
E. Landlord agrees to-
t. Lease to Tenant the Premises for the entire term beginning on the Commencement
Date and ending on the Termination Date.
2. Provide the following services to Tenant: landscaping maintenance, utilities,
routine facility maintenance, janitorial service, telephone, and Internet.
50297783.3 3
F. Landlord agrees not to-
Interfere with Tenant's possession of the Premises as long as Tenant is not in default, and
further provided that Tenant is not in default, Tenant shall have the peaceful, quiet, and
undisturbed use and possession of the Premises and all rights and privileges pertaining thereto,
subject to the terms, conditions, and provisions of this Lease.
G. Assignment
This Lease is not assignable and is non-transferable by Tenant.
H. Landlord and Tenant agree to the following-
1. Alterations. Any physical additions or improvements to the Premises made by
Tenant will become the property of the Landlord.
2. Release of Claims/Subrogation. Landlord and Tenant release each other from any
claim, by subrogation or otherwise, for any damage to the Premises by reason of fire or the
elements, regardless of cause, including negligence of Landlord or Tenant. This release applies
only to the extent that it is permitted by law, the damage is covered by insurance proceeds, and
the release does not adversely affect any insurance coverage.
3. Notice to Insurance Companies. Landlord and Tenant will notify the issuing
insurance companies of the release set forth in the preceding paragraph and will have the
insurance policies endorsed, if necessary, to prevent invalidation of the insurance coverage.
4. Casualty/Total or Partial Destruction.
a. If the Premises are damaged by casualty and Landlord elects to restore the
Premises, Landlord will, at its expense, restore the Premises to
substantially the same condition that existed before the casualty. If
Landlord chooses to restore, Landlord will notify Tenant in writing of the
estimated time to restore and give Tenant an option to terminate this Lease
by notifying Landlord within ten (10) business days. If Tenant does not
terminate this Lease, the Lease will continue and Landlord will restore the
Premises. If Landlord fails to complete restoration within ninety (90) days
from the date of written notification by Landlord to Tenant of Landlord's
election to repair the casualty, Tenant may terminate this Lease by written
notice to Landlord.
b. If Landlord elects not to restore the Premises, this Lease will terminate.
5. CondemnationlSubstantial or Partial Taking.
a. If the Premises cannot be used for the purposes contemplated by this
Lease because of condemnation or purchase or deed in lieu of
condemnation, this Lease will terminate.
50297783.3 4
b. Whether or not any portion of the Premises is taken by condemnation or
purchase or deed in lieu of condemnation, Tenant may elect to terminate
this Lease if fifty percent (50%) or more of the Premises is taken.
a. If there is a condemnation or purchase in lieu of condemnation and this
Lease is not terminated, the Rent payable during the unexpired portion of
the Term will be adjusted as may be fair and reasonable.
d. Tenant will have no claim to the condemnation award or proceeds in lieu
of condemnation; however, Tenant may, to the extent permitted by
applicable law, pursue a separate claim against the condemning authority
or against the parry taking by purchase or deed in lieu of condemnation for
Tenant's moving expenses, inconvenience, business interruption,
depreciation, loss of leasehold estate, and/or similar loss in a proceeding
independent of Landlord's condemnation suit.
6. Default by LanddordlEvents. Defaults by Landlord are failing to comply with any
provision of this Lease within ten (10) days after written notice and failing to provide Essential
Services to Tenant within three (3) days after written notice.
7. Default by Landlord/Tenant's Remedies. Tenant's remedies for Landlord's
default are to sue for damages and/or equitable relief and, if Landlord does not provide an
Essential Service for thirty (30) days after written notice of default, Tenant may terminate this
Lease and be released from any further obligations hereunder.
8. Default by Tenant/Events. Defaults by Tenant are (a) failing to pay timely Rent,
(b) abandoning or vacating a substantial portion of the Premises, or (c) failing to comply within
ten (10) days after written notice with any provision of this Lease other than the defaults set forth
in (a) and (b) above.
9. Default by Tenant/Landlord's Remedies. Landlord's remedies for Tenant's
default are limited to the following: (a) enter and take possession of the Premises, after which
Landlord may relet the Premises on behalf of Tenant and receive the Rent directly by reason of
the releasing, at such time Tenant shall not have any further obligations under this Lease; (b)
enter the Premises and perform Tenant's obligations, resulting in Tenant being liable to Landlord
for the cost incurred by Landlord to perform Tenant's obligations; and (c) terminate this Lease
by written notice to Tenant, thus releasing Tenant from any further obligations under this Lease.
10. Default/Waiver/Mitigation. It is not a waiver of default if the nondefaulting party
fails to declare immediately a default or delays in taking any action. Pursuit of any remedies set
forth in this Lease does not preclude pursuit of other remedies in this Lease. Landlord and
Tenant have a duty to mitigate damages.
11. Holdover. If Tenant does not vacate the Premises following termination of this
Lease, Tenant will become a tenant from month-to-month at a Base Rent of $1,000 per month
and either party may terminate this Lease upon thirty (30) days written notice to the other parry.
50297783.3
12. Alternative Dispute Resolution. Landlord and Tenant agree to mediate in good
faith before filing a suit for damages.
13. Attorneys' Fees. If either party retains an attorney to enforce this Lease, the party
prevailing in litigation is entitled to recover reasonable attorneys' fees and court and other costs.
14. Venue and Applicable Law. Venue is in Guadalupe County, Texas, and this Lease
shall be construed and interpreted in accordance with the laws of the State of Texas.
15. Exhibits. The exhibits are incorporated herein as matters of contract as if set forth
fully herein.
16. Entire Agreement. This Lease is the entire agreement of the parties as to the
subject matter hereof, and there are no oral representations, warranties, agreements, or promises
pertaining to this Lease not incorporated in writing in this Lease.
17. Amendment of Lease. This Lease may be amended only by an instrument in
writing signed by Landlord and Tenant.
18. Limitation of Warranties. THERE ARE NO IMPLIED WARRANTIES OF
MERCHANTABILITY, OF FITNESS FOR A PARTICULAR PURPOSE, OR OF ANY
OTHER KIND ARISING OUT OF THIS LEASE, AND THERE ARE NO WARRANTIES
THAT EXTEND BEYOND THOSE EXPRESSLY STATED IN THIS LEASE.
19. Notices. Any notice required or permitted under this Lease must be in writing.
Any notice required by this Lease will be deemed to be delivered (whether actually received or
not) when deposited with the United States Postal Service, postage prepaid, certified mail, return
receipt requested, and addressed to the intended recipient at the address(es) shown in this Lease,
which addresses may be changed from time to time. Notice may also be given by regular mail,
personal delivery, courier delivery, facsimile transmission, or other commercially reasonable
means and will be effective when actually received. Any address for notice may be changed by
written notice delivered as provided herein.
20. Abandoned Property. Landlord may retain, destroy, or dispose of any property of
Tenant or other person left on the Premises at the end of the term of this Lease, including any
renewals hereof.
21. Title. Landlord hereby represents and warrants that (i) it has good and
indefeasible fee simple title to the Premises, (ii) it has the full right and authority to make this
Lease, and (iii) the Premises are free and clear of all contracts, agreements, encumbrances, or
defects in title of any nature whatsoever, other than the matters created by or with the consent of
Tenant, that would restrict or prevent the use or enjoyment by Tenant of the Premises or the
rights or privileges granted under this Lease.
22. Headings. The descriptive headings of the paragraphs contained in this Lease are
inserted for convenience only and shall not control, affect, limit, expand, or modify the meaning
or construction of any of the provisions hereof.
50297783.3 6
23. Counterpaf-ts. The Lease may be executed in multiple counterparts, and such
counterparts, when taken together, shall have the full force and effect of an original, fully
executed instrument.
24. Invalidity. If one or more of the provisions hereof shall for any reason be held to
be invalid, illegal, or unenforceable in any respect under applicable law, such invalidity,
illegality, or unenforceability shall not affect any other provisions hereof, and this Lease shall be
construed as if such invalid, illegal, or unenforceable provision had never been contained herein.
25. Binding Effect. This Lease shall apply to and be binding on the heirs, successors,
executors, administrators, and assigns of the Landlord and Tenant.
26. Extensions. Tenant shall have the option to extend this Lease, under the terms
herein, upon written notice to Landlord given at least forty-five (45) days prior to the then
applicable Termination Date, for one or more additional terms. Each additional term shall be
twelve (12) months in duration. In no event shall the term of this Lease exceed five (5) years
without the express written consent of the Landlord.
[Signatures on the Following Page J
50297783.3 7
This Commercial Lease Agreement is executed to be effective as of the Effective Date.
LANDLORD:
CITY OF SCHERTZ, TEXAS,
a Texas home-rule municipality
/~
By: DON E. TAYLO
City Manager
TENANT:
CHAMBER OF COMMERCE
By
Chair of the Board
50297783.3 S-1
FXRTRTT uA"
Leal Description of the Property
~ To be attached J
502977A3.3 Exhibit "!~"