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R2009-069 - 2009-04-27RESOLUTION NO. R2009-69 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PEARLAND, TEXAS, AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO ENTER INTO A LEASE AGREEMENT WITH THE PEARLAND CHAMBER OF COMMERCE. BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PEARLAND, TEXAS: Section 1. That certain Lease Agreement by and between the City of Pearland and the Pearland Chamber of Commerce, a copy of which is attached hereto as Exhibit "A" and made a part hereof for all purposes, is hereby authorized and approved. Section 2. That the City Manager or his designee is hereby authorized to execute and the City Secretary to attest a Lease Agreement with the Pearland Chamber of Commerce. PASSED, APPROVED and ADOPTED this the 27th day of April, A.D., 2009. ~~~'Yl~ TOM REID MAYOR ATTEST: Y GL ,T C C SE ETARY APPROVED AS TO FORM: ~~ ~.~ DARRIN M. COKER CITY ATTORNEY Exhibit "A" PEARLAND CHAMBER OF COMMERCE Resolution 2009-69 AND CITY OF PEARLAND DESTINATION MARKETING LEASE AGREEMENT This Lease Agreement ("Agreement") is made and entered into this 5th day of May, 2009, at Pearland, Brazoria County, Texas, by and between Pearland Chamber of Commerce, A Texas Non-Profit Corporation (hereinafter called "Landlord") and the City of Pearland, a Home Rule Municipal Corporation, for the purpose of Pearland's Destination Marketing (hereinafter called "Tenant"), Landlord and Tenant shall be collectively referred to as "Parties". Landlord hereby agrees to lease to Tenant and Tenant hereby agrees to lease from Landlord approximately 2,076 square feet of space for offices and a Destination Marketing Center, (hereinafter known as "Leased Premises" as more fully described on Exhibits "A" and "B"), under the following terms and conditions: 1. Leased Premises Landlord shall lease to Tenant the following described real property, known as the "Leased Premises," along with all improvements on said Leased Premises. Multiple-Tenant Property: Suites containing approximately 2,076 square feet of rentable area in The Commerce Center located at 6117 Broadway in Pearland, Brazoria County, Texas 77581; legally described as Garden Acres, Section 3, Lot A, Pearland, Brazoria County, Texas as seen on Exhibit "A.2" and "B.l"attached to this Agreement. "Property" means the building and/or complex 61 17 Broadway in which the Leased Premises are located, inclusive of any and all common areas, drives, parking areas, and walkways; and the Parties agree that the rentable area of the Leased Premises may not equal the actual or useable area within the leased premises and may include an allocation of common areas in the Property. 2. Term & Termination The term of this Agreement shall be ten (10) years commencing upon June 1, 2009, unless sooner terminated as provided in this Agreement ("Term"). Beginning June 1, 2017, Tenant and Landlord may negotiate for a period ("Negotiation Period"), not to exceed twelve months, for a renewal of this Agreement. During the Term of this Agreement, Tenant may terminate this Agreement without cause at anytime and for any reason by providing Landlord written notice of its intent to terminate on a date certain that is a minimum of one hundred and eighty (180) days after Landlord receives written notice of Tenant's intent to terminate this Agreement ("Termination Notice period"). In the event Tenant exercises its right to terminate this Agreement, all legal obligations under this Agreement, including, but not limited to, rent and capital improvement fund payments, shall and will immediately cease on the effective termination date. The Parties further agree that termination of this Agreement pursuant to the terms stated above shall not be considered a breach of this Agreement. 3. Renl Tenant agrees to pay, on or before the 30'h day of each month, the sum of THREE THOUSAND THREE HUNDRED TWENTY- ONE AND 60/100 DOLLARS ($3321.60) ("Rent"). The first Rent payment shall be due on June 30th, 2009. Rent shall be paid by mailing a check to the Pearland Chamber of Commerce at 61 17 Broadway, Pearland, Texas. The Parties agree Rent shall be paid monthly for the term of this Agreement or until such time that the Real Estate/Build-out note #3644 with Pearland State Bank on the Property located at 6117 Broadway, in Pearland, Brazoria County, Texas 77581; legally described as Garden Acres, Section 3, Lot A, Pearland, Brazoria County has been paid in full, whichever comes first. The Parties agree that, in no event and under no circumstances, shall Tenant be obligated to make Rent payments beyond the Term of this Agreement. 4. Capital Improvement Fund If the Property/Build-out note #3644 is paid in full before the end of the Term, then during the remainder of the Term, the Parties agree Tenant's obligation to pay Rent, as referenced in Section 3 above, shall immediately and forever cease. At that time, Tenant agrees to pay $1,000 per month ("Maintenance Fee") after the Property/Build-out note #3644 with Pearland State Bank on the Property located at 61 17 Broadway has been paid in full. Landlord agrees to set aside these funds in a separate account ("Capital Improvement Fund") and Landlord shall manage this fund. [t is the intent that these funds shall accumulate and be used for maintenance and/or improvements to Leased Premises, parking lot, public areas and the grounds and the Capital Improvement Fund shall never exceed a balance of TWENT FIVE THOUSAND and 00/100 DOLLARS ($25,000.00). Tenant may suggest potential improvements for funding in accordance with this Section, with final expenditure decisions to be made by Landlord after review of Tenant's recommendations. Upon termination of this agreement for any reason, all remaining funds in the Capital Improvement Fund shall be evenly divided between Landlord and Tenant. 5. Utilities Utility and related occupancy costs will be based on a square foot usage ratio. Tenant is responsible for 36% of these costs. Such costs will include water, electric, gas, extermination services, security costs, trash service, janitorial and landscaping services. Tenant shall not be responsible for paying any insurance costs associated with its use of the Leased Premises. 6. Cleaning and upkeep Landlord and Tenant agree to keep and maintain their respective areas in good condition and appearance, and further agree to keep their respective areas in a neat, clean and respectable condition at all times. Use of Lensed Premises The Parties agree that Tenant shall use the Leased Premises exclusively for conducting the City's business of Destination Marketing and for no other purpose. If at any time Tenant ceases to use the Leased Premises and any improvements thereon for such purpose, Landlord may terminate this Agreement by delivering written notice to Tenant at 3519 Liberty Drive, Pearland, Texas, and providing no less than thirty (30) days for Tenant to move -out of the Leased Premises. 8. Use of Common Areas Landlord will allow Tenant to use the BoardRoom, Conference Rooms, Bistro/Catering Kitchen and/or Patio, and all other Common Areas subject to availability. Landlord will allow Tenant to use the formal Boardroom for all meetings of Pearland's Destination Marketing Advisory Board during the Term of this Agreement. Tenant may also use the Board room for other meetings subject to availability. The Parties agree Landlord will determine availability of the Common Area and will be responsible for scheduling usage of these Common Areas by Tenant. Tenant has no authority to grant the use of any Common Areas by any other person or entity without receiving prior permission of the Landlord. The parking lot is common parking and can be used by visitors. Certain spaces will be reserved and marked for handicapped parking only. Landlord will designate specific parking areas to be used by Employees of Tenant. Employees of Tenant will not use the areas designated for visitors. 9. Limltat/ons of Tenant in Leased Premises Tenant will not assign or sublet this Agreement or the Leased Premise, in whole or in part, without the prior written consent of Landlord. Tenant shall not have the right to encumber the Leased Premises without the prior written consent of Landlord; provided however, this provision shall not prohibit Tenant from encumbering any of its personal property which can be removed from the Leased Premises without injury to the premises. Tenant shall not use, or permit use of, the Leased Premises in any manner that result in waste of the premises or constitutes a nuisance. 10. Aberatlons. Additiars. /naproventents and Fixtures Tenant shall not make any alterations, additions or improvements to the Leased Premises without the prior written consent of Landlord. Consent for non-structural alterations, additions or improvements shall not be unreasonably withheld by Landlord. All structural alterations, additions or improvements made by Tenant shall become the property of Landlord at the termination of this Agreement; however, Tenant shall promptly remove, if Landlord so selects, all alterations, additions or improvements and any other property placed in or on the Leased Premises by Tenant. Tenant shall repair any damage caused by such removal or reimburse Landlord for such reasonable costs upon proof that such costs were incurred and paid by Landlord. Tenant shall have the right at all times to erect or install furniture and fixtures in the Leased Premises. Tenant shall have the right to remove such items at the termination of this Agreement, and fixtures can be removed without structural damage to the Leased Premises. Prior to vacating the premises upon termination of this Agreement, Tenant must repair any damage caused by the removal of such fixtures or reimburse Landlord for such reasonable costs upon proof that such costs were incurred and paid by Landlord. 2 1. /nrlemnification and Insurance Landlord further agrees to indemnify and hold Tenant, its public officials, the Mayor, all Councilmembers, its staff, trustees, officers, agents, representatives, including the Pearland Convention and Visitors Bureau and its officers, agents and employees, and all other persons acting on behalf of Tenant, free and harmless from and against any and all claims, demands, suits, judgments, costs and expenses asserted by any and all person and/or entities, including, without limitation, any and all agents or employees of Tenant or Landlord, by reason of death or injury to persons, or loss or damage to property, resulting from any and all acts of the Tenant, the Landlord and/or any other person or entity, including any other tenant, including Tenant's negligent acts arising from or out of Tenant's operation or occupation of the Leased Premises hereunder, or sustained in or upon the Leased Premises, or as a result of anything claimed to be done or admitted to be done intentionally, negligently or by the gross negligence of Tenant hereunder. Landlord shall obtain and maintain continuously in effect at all times during the term hereof, at Landlord's sole expense, comprehensive general liability insurance in the amount of at least One Million ($1,000,000) per occurrence for bodily injury and property damage. This insurance shall be an occurrence-type policy written in comprehensive form and shall protect Landlord against liability which may accrue against Landlord by reason of Tenant's wrongful and/or negligent conduct incident to the use of the Leased Premises or resulting from any accident occurring on or about the Leased Premises. Landlord shall obtain and maintain continuously in effect at all times during the Term ,casualty insurance upon the Leased Premises and any and all improvements thereon in such amounts as to insure the timely repair andlor replacement thereof in the event of casualty. All insurance policies required herein shall be drawn in the name of Landlord and Tenant shall be named as an additional insured. Landlord shall furnish Tenant with certificates of insurance as evidence that all of the policies required herein are in full force and effect and provide the required coverage's and limits of insurance. The certificates shall provide that any company issuing an insurance policy shall provide not less than 30-days' advance notice in writing of cancellation, non-renewal or material change in the policy of insurance. In addition, the Landlord shall immediately provide written notice to the Tenant upon receipt of notice of cancellation of an insurance policy, or of a decision to terminate or alter any insurance policy. All certificates of insurance shall clearly state that all applicable requirements have been satisfied including certification that the policies are of the "occurrence" type. Certificates of insurance for Landlord shall be mailed in accordance with the notice provisions of this Agreement. The Landlord shall require its insurance carrier, with respect to all insurance policies, to waive all rights of subrogation against the Tenant and its public officials, the Mayor, all Councilmembers, its staff, its trustees, officers, agents and employees. The procuring of such policy of insurance shall not be construed to be a limitation upon Landlord's liability or as a full performance on its part of the indemnification provisions of this Agreement. Landlord's obligations are, notwithstanding said policy of insurance, for the full and total amount of any damage, injury, harm or loss caused by or attributable to Landlord's and/or Tenant's activities conducted on the Leased Premises. 12. Default. Abr~ndonmerrt of Lensed Premises In the event Tenant shall (1) abandon the premises or (2) Tenant or Landlord default in performance of any of the covenants and conditions required herein to be performed by either party and such default continues for a period of thirty (30) days, Landlord and/or Tenant shall have the right to terminate this Agreement ("Termination for Default"). Each party will give the other ninety (90) days written notice ("Default Notice Period") of its intention to terminate the Agreement pursuant to this Section, and will have such ninety (90) days within which to cure such default and thereby avoid termination. Failure of either Party to cure such default within the Default Notice Period shall result in the termination of this Agreement, immediately upon the expiration of the Default Notice Period. 13. Surrender of Premises; Abandoned Properly The Leased Premises and any permanent improvements and fixtures shall remain the property of Landlord and shall be restored to possession of Landlord in good condition (reasonable wear and tear, Acts of God, or casualties associated with civil disorders or military activities excepted). Tenant agrees to promptly and peacefully deliver possession of the Leased Premises and improvements to Landlord upon termination of this Agreement. All items of personal property, remaining in or on the Leased Premises after the expiration of thirty (30) days following the date of termination of this Agreement shall be deemed abandoned by Tenant and Landlord may dispose of or keep such personal property as desired, and without exposure or risk of liability 14. Notice Any notice send under this Agreement shall be written and mailed, or sent by or personally delivered to an officer of the receiving party at the following addresses: If to the Tenant: Bill Eisen- With a copy to: Darrin Coker - If to the Landlord: Carol R Artz- City Manager City of Pearland 3519 Liberty Drive Pearland, Texas 77581 City Attorney City of Pearland 3519 Liberty Drive Pearland, Texas 77581 President & CEO Pearland Chamber of Commerce 61 17 Broadway Pearland, Texas 77581 Each party may change its address by written notice in accordance with this Section, Any communication addressed and mailed in accordance with this Section shall be deemed to be given when so mailed, any notice so sent by rapid transmission shall be deemed to be given when receipt of such transmission is acknowledged, and any communication so delivered in person shall be deemed to be given when receipted for by, or actually received by, an authorized officer of the Tenant or the Landlord, as the case may be. 1 S. C/voice of Law; Venue This Agreement is a contract made under and shall, be construed in accordance with and governed by the laws of the United States of America and the State of Texas, and any actions concerning this Agreement shall be brought in the Texas State District Courts of Brazoria County. 16. Entire A,2reemen! This written agreement represents the final agreement between the parties and may not be contradicted by evidence of prior, contemporaneous, or subsequent oral agreements of the parties. There are no unwritten oral agreements between the parties. EXECUTED this 5`h day of May, 2009 PEARLAND CHAMBER OF COMMERCE Carol R. Artz, Presiden CEO CITY OF PEARLAND, TEXAS DESTINATION MARKETING Bill Eisen, City Manager TENANT 4 Commerce Center breakdown of office area EXHIBIT A.2 Description Office q SF Area Chamber CVB SBDC CAM Women's Restroom 112 163 163 Men's Restroom 113 71 71 Vestibule 114 59 59 Catering 111 165 165 Bistro 110 185 185 Exit Corridor 109 86 86 Training Center 108 321 321 Communications Division 107 188 188 Small Conference Office 106 186 186 Presidents & CEO Office 105 332 332 Conference /Event Room 104 1142 1142 Corridor 1 103 275 275 Corridor 2 118 150 150 Corridor 3 119 277 277 Corridor 4 120 165 165 24 HourLobby 100 229 229 Welcome Center 101 187 187 Marketing Center 102 297 297 Commerce Development 121 106 106 Special Events Division 122 105 105 Work Area 123 204 204 SBDC #1 124 113 113 SBDC #2 125 113 113 Destination Marketing Division #1 117 186 186 Destination Maretking Division #2 116 186 186 Utility Office 115 97 97 Storage Area 126 192 96 96 TOTALS 5780 827 765 547 3641 Percentage Break Down 100 14 13 9 63 Outside Porch Area Land /Detention /Parking Utility Costs 2280 1.04 Acres Specific Spau CAM °J~o Cam Area Office Total SBDC Space 259'0 3641 911 547 1458 Destination Marketing Space 360 3641 1311 765 2076 Chamber Space 399'0 3641 1419 827 2246 Totals 1009'0 3641 2139 Lease Breakdown by Chamber and Tenants EXIiIBIT B.1 COERCE CENTER