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Home My WebLink AboutR2009-036sAour documents\resolutions\09\airpon tceq license agreement.doc RESOLUTION NO. A RESOLUTION AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT BETWEEN THE CITY OF DENTON AND THE TEXAS COMMISSION ON ENVIRONMENTAL QUALITY (TCEQ) GRANTING A LICENSE TO THE TEXAS COMMISSION ON ENVIRONMENTAL QUALITY (TCEQ FOR AN AIR POLLUTION MONITORING STATION; AND DECLARING AN EFFECTIVE DATE. WHEREAS, the City Manager recommends that the City accept an Agreement with the Texas Commission on Environmental Quality ("TCEQ") on locating an Air Monitoring Station at the Denton Municipal Airport, and WHEREAS, the City Council deems the acceptance of this Agreement to be in the public interest; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY RESOLVES: SECTION 1. The City Manager or his designee is hereby authorized to execute an agreement between the City of Denton and the Texas Commission on Environmental Quality TCEQ) at the Denton Municipal Airport, which is attached to and made a part of this resolution for all purposes and to exercise all rights and duties of the City of Denton under the Agreement. SECTION 2. This resolution shall become effective immediately upon its passage and approval. G PASSED AND APPROVED this the day of 2009. l h MARK A~BURROYrHS, MAYOR ATTEST` JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: THE STATE OF TEXAS KNOW ALL MEN BY THESE PRESENTS COUNTY OF DENTON That the City of Denton, a municipal corporation in Denton County, Texas acting herein by and through its duly authorized City Manager, hereinafter called "City" and the Texas Commission on Environmental Quality (TCEQ, an agency of the State of Texas, acting herein by and through its duly authorized Regional Manager, hereinafter called "TCEQ or Licensee", hereby make and enter into the following agreement. 1. City hereby grants unto Licensee a revocable license and privilege to use and occupy a parcel of land, a part of Denton Municipal Airport in Denton, Denton County, Texas, as shown on the attached Exhibit "A" which is hereby incorporated herein by reference and made a part hereof. II. The term of this agreement shall be ten (10) years beginning December 1, 2009 and ending on November 30, 2019; provided however, that either the City or Licensee shall have the right to cancel this agreement by delivering written notice of such cancellation thirty (30) days before the effective date of such cancellation to the other party listed below: LICENSEE: Adam R. Campbell, Network Coordinator Texas Commission on Environmental Quality 12100 Park 35 Circle, Bldg. B MC-165 Austin, Texas 78753 CITY:George C. Campbell, City Manager City of Denton, Texas 215 East McKinney Denton, Texas 76201 III. Licensee recognizes that the City of Denton reserves the right to develop any and all land on the Airport. The City will not be held liable for the effects of current or future development which may cause the inaccuracy of the Air Pollution Monitoring Station. IV. Licensee agrees to use the said land only for an Air Pollution Monitoring Station. Licensee recognizes that said land is part of the Municipal Airport of the City of Denton and agrees that any improvements erected or installed and all activities conducted thereon shall be in 1 strict compliance with all regulations and requirements of the Federal Aviation Administration and all applicable federal, state and local laws, statutes, charters and ordinances. V. TCEQ acknowledges that it is not an agent, servant, or employee of the City, and that it is responsible to the extent provided by the Texas Tort Claims Act for its own acts and deeds and for those of its agents, servants, or employees during the term of this license. VI. Licensee agrees to pay the City as consideration for the use of said land the sum of One Dollar ($1.00) per year, the receipt and sufficiency of which is hereby acknowledged. S~ EXECUTED at Denton, Denton County, Texas, this the day of 2009 CITY OF DENTO TEXAS COMMISSION ON ENVIRONMENTAL QUALITY: bIN&GE"C. CAMPBELL CITY MANAGER ATTEST:ATTEST: JENNIFER VVALTERS, CITY SECRETARY CITY OF DENTON, TEXAS BY:0 AO-PE(BY: APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY CITY OF DENTON, TEXAS BY: 2 Exhibit "A" AIR MONITORING SITE AGREEMENT The City of Denton (hereafter the Licensor) hereby agrees to permit the Texas Commission on Environmental Quality (hereafter the Licensee or the TCEQ) to locate and operate a continuous air monitoring station on land owned by the Licensor located at 5581 Jim Cristal Rd, Denton, TX 76207 (the Property). In consideration for such permission, the TCEQ shall provide the Licensor full access, via the TCEQ web page, to the monitoring information gathered by TCEQ from the air monitoring station situated at the Property. The term of this Agreement is five years from the date this Agreement is executed, and is renewable for a five-year term thereafter, upon agreement by the TCEQ and the Licensor. 1.Equipment Site Location at the Property (the Site) At 5581 Jim Cristal Road Denton, TX 76207 located on the property of the Licensor. 2.Air Monitoring Equipment The proposed method of monitoring is with a continuous air monitoring system housed in a fiberglass trailer with metal roof plus auxiliary equipment outside the trailer, including a 10 meter weather tower. The station will require a ground space approximately 1600 square feet. The trailer will be environmentally controlled and will contain instrumentation, as deemed appropriate by the TCEQ as well as peripherals required for the proper operation of the instruments. 3.Provision for Utilities The TCEQ will arrange and pay for phone and electrical installation and service. 4.Occupation of the Station The station will normally be unmanned, except for routine maintenance visits by TCEQ staff, agents or contractors (per Section 5, infra) occurring approximately twice a week. 5.Right of Access The TCEQ, its employees, agents, and equipment service contractors will have the right of ingress and egress to the property, during regular working hours, at the direction of the Licensor's staff maintaining or in possession of the property, subject to the Licensor's property management policies and practices, and not inconsistent with the Licensor's primary use of the Property and other operations incident thereto. 6.Liability and Indemnity The TCEQ acknowledges that it is not an agent, servant, or employee of the Licensor, 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. In accordance with the Texas Tort Claims Act, Civ. Rem & Prac. Code Chapter 101 (Vernon's 2000), the TCEQ will indemnify the Licensor for tort claims arising from the negligent maintenance or operation of the equipment, 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 is void ab initio. Further, in no way does the foregoing declarations waive the State's sovereign immunity. 7.Restoration of Property The TCEQ shall make reasonable repairs and/or replace any property of the Licensor damaged by the TCEQ's operations conducted at the Site, to the extent funds are made available by the Texas Legislature for such purpose. Upon removal, and at the request of the Licensor, the TCEQ shall restore the Site to the condition it was in prior to the installation of the monitoring equipment, to the extent funds are made available by the Texas Legislature for such purpose. 8.Equipment to Remain the Property of the TCEQ All equipment installed at the Site to support TCEQ's air monitoring operations (whether or not said equipment constitutes a fixture under Texas Property Code) shall remain the property of the TCEQ. 9.Notice of Termination If the Licensor wishes to terminate this Agreement and reclaim possession and use of the Site, the Licensor shall give the TCEQ forty-five (45) days written notice of Termination. Under such circumstances, Licensor shall make a reasonable effort to assist TCEQ in locating an alternative Site in the general vicinity. The TCEQ may also terminate this Agreement upon thirty (30) days written notice to the Licensor. 10. Removal of Equipment Within sixty (60) days of receiving Notice of Termination of this Agreement, the TCEQ shall remove any equipment placed at the Site pursuant to this Agreement. 11. Sovereign Immunity The Licensor agrees that by entering this Agreement, TCEQ does not wave the State's sovereign immunity relating to suit, liability, and the payment of damages. The parties agree that all claims, suits, or obligations arising under or related to this Agreement are subject and limited to the availability of funds appropriated by the Texas legislature for that respective claim, suit, or obligation. 12. Severability The fact that a particular provision is held under any applicable law to be void or unenforceable in no way affects the validity of other provisions and the Agreement will continue to be binding on both parties. Any provision that is held to be void or unenforceable will be replaced with language that is as close as possible to the intent of the original provision. 13. Entire Agreement This Agreement constitutes the entire agreement of the parties as to the subject matter contained herein and may not be changed, modified, discharged, or extended except by written instrument duly executed on behalf of the parties. IN WITNESS WHEREOF, TCEQ and Licensor have signed this Agreement.` _ r v 1 r- Texas Commission on Environmental Quality City of Denton By: By:Signature) Sign ture)Matthew R. Baker, RE C02 6 J • qlV~GPrinted Name)Printed Name)Monitoring Operations Division Director Denton City Manager Title) Title)Z lD//DDate Signed)Date Signed)