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Home My WebLink AboutAgenda Packet City Council - 10/12/2010-�;;��.; ,..: < ,. - ,:...: �r- ......:, �-: 11:45 A.M. - Proclamation declaring October 15 -17, 2010 as the "50th Annual Texas Jazz Festival" Proclamation declaring the week of October 17 - 23, 2010 as "National Save for Retirement Week" Proclamation declaring the month of October 2010 as "National Domestic Violence Awareness Month" Certificate of Commendation presented to Dr. Arturo Almendarez, 2010 Superintendent of the Year "At Your Service" Award, City Employee Recognition AGENDA CITY OF CORPUS CHRISTI REGULAR COUNCIL MEETING CITY HALL - COUNCIL CHAMBERS 1201 LEOPARD ST. CORPUS CHRISTI, TEXAS 78401 OCTOBER 12, 2010 12:00 P.M. PUBLIC NOTICE - THE USE OF CELLULAR PHONES AND SOUND ACTIVATED PAGERS ARE PROHIBITED IN THE CITY COUNCIL CHAMBERS DURING MEETINGS OF THE CITY COUNCIL. Members of the audience will be provided an opportunity to address the Council at approximately 4:00 p.m., or the end of the Council Meeting, whichever is earlier. Please speak into the microphone located at the podium and state your name and address. Your presentation will be limited to three minutes. If you have a petition or other information pertaining to your subject, please present it to the City Secretary. Si Usted desea dirigirse al Concilio y tree que su ingles es limitado, habra un interprete ingles- espanol en todas las juntas del Concilio para ayudarle. Persons with disabilities who plan to attend this meeting and who may need auxiliary aids or services are requested to contact the City Secretary's office (at 361 - 826 -3105) at least 48 hours in advance so that appropriate arrangements can be made. A. Mayor Joe Adame to call the meeting to order. B. Invocation to be given by Pastor Kevin Jennings, Mt. Olive Lutheran Church. C. Pledge of Allegiance to the Hag of the United States. D. City Secretary Armando Chapa to call the roll of the required Charter Officers. Mayor Joe Adame Mayor Pro Tem Brent Chesney Council Members: Chris N. Adler City Manager Angel R. Escobar Larry Elizondo, Sr. City Attorney Carlos Valdez Kevin Kieschnick City Secretary Armando Chapa Priscilla Leal John Marez Nelda Martinez Mark Scott Agenda Regular Council Meeting October 12, 2010 Page 2 CITY COUNCIL PRIORITY ISSUES (Refer to legend at the end of the agenda summary) E. MINUTES: 1. Approval of Regular Meeting of September 28, 2010. (Attachment # 1) F. BOARDS & COMMITTEE APPOINTMENTS: (Attachment # 2) 2. * Ethics Commission * Park and Recreation Advisory Committee G. EXPLANATION OF COUNCIL ACTION: For administrative convenience, certain of the agenda items are listed as motions, resolutions, or ordinances. If deemed appropriate, the City Council will use a different method of adoption from the one listed; may finally pass an ordinance by adopting it as an emergency measure rather than a two reading ordinance; or may modify the action specified. A motion to reconsider may be made at this meeting of a vote at the last regular, or a subsequent special meeting; such agendas are incorporated herein for reconsideration and action on any reconsidered item. H. CONSENT AGENDA Notice to the Public The following items are of a routine or administrative nature. The Council has been furnished with background and support material on each item, and /or it has been discussed at a previous meeting. All items will be acted upon by one vote without being discussed separately unless requested by a Council Member or a citizen, in which event the item or items will immediately be withdrawn for individual consideration in its normal sequence after the items not requiring separate discussion have been acted upon. The remaining items will be adopted by one vote. CONSENT MOTIONS, RESOLUTIONS, ORDINANCES AND ORDINANCES FROM PREVIOUS MEETINGS: At this point the Council will vote on all motions, resolutions and ordinances not removed for individual consideration.) 3. Motion approving the purchase of a 4- channel 800MHZ EDACS radio system and antenna for the City of Portland to enhance signal penetration for all their Public Safety personnel and provide interoperable communications, from Dailey & Wells Communications, of San Antonio, Texas based on sole source for a total expenditure of $388,500. Funds are available through Agenda Regular Council Meeting October 12, 2010 Page 3 CITY COUNCIL PRIORITY ISSUES {Refer to legend at the end of the agenda summary) the Public Safety lnteroperable Communications Grant which includes a 20% cash match from the City of Portland. (Attachment # 3) 4. Resolution authorizing the submission of a grant application in the amount of $99,975 to the State of Texas, Office of the Governor, Criminal Justice Division for funding available to address gang issues, funds to be used for overtime and fringe benefits in the Police Department, and authorizing the City Manager or his designee to apply for, accept, reject, alter or terminate the grant. (Attachment # 4) 5. a. Resolution authorizing the City Manager or his designee to accept a grant of $25,000 from the Coastal Bend Council of Governments and to execute an Interlocal Agreement to provide recycling and anti -litter education. (Attachment # 5) b. Ordinance appropriating a grant of $25,000 from the Coastal Bend Council of Governments in the No. 1051 Solid Waste Grants Fund to provide recycling and anti -litter education. (Attachment # 5) 6. Resolution authorizing the City Manager or his designee to execute an Interlocal Cooperation Agreement with Texas A &M University — Corpus Christi in the amount of $14,634 for the Brownfields GIS Data Project which is funded by U.S. Environmental Protection Agency Grants. (Attachment # 6) 7. 8. a. Motion authorizing the City Manager or his designee to execute a subcontract with Communities in Schools, Corpus Christi, Inc., in the amount of $75,000 to provide services for youth ages 10 to 17 in the 78415 Zip Code. (Attachment # 7) b. Motion authorizing the City Manager or his designee to execute a subcontract with SERCO of Texas in the amount of $100,000 to provide services for youth ages 10 to 17 in the 78415 Zip Code. (Attachment # 7) a. Resolution authorizing the City Manager or his designee to accept a grant of $22,500 from the Texas Department of State Health Services to provide laboratory services for the ��a er) Agenda Regular Council Meeting October 12, 2010 Page 4 CITY COUNCIL PRIORITY ISSUES (Refer to legend at the end of the agenda summary) analysis of bay water samples and to execute all related documents; and ratifying acceptance of the grant agreement to begin September 1, 2010. (Attachment # 8) b. Ordinance appropriating a grant of $22,500 from the Texas Department of State Health Services in the No. 1066 Health Grants Fund to provide laboratory services for the analysis of bay water samples. (Attachment # 8) 9. Motion authorizing the City Manager or his designee to execute Amendment No. 2 to the Contract for Professional Services with B. Harman Engineering, LLC of Corpus Christi, Texas in the amount of $71,701 for a total restated fee of $393,334 for the Oso Water Reclamation Plant Process Improvements, Belt Filter Press Building Replacement project. (Attachment # 9) 10. Motion authorizing the City Manager or his designee to execute a construction contract with Bridges Specialties, Inc. of Sandia, Texas in the amount of $158,776.88 for Corban Townhomes Looping Water Main Improvements for the Base Bid. (Water CIP) (Attachment # 10) 11. Motion authorizing the City Manager or his designee to execute a Real Estate Sales Contract with Gregory H. Smith, et al. for the acquisition of Parcels 1 and 1 -TCE in the total amount of $331,112 for acquisition of fee simple property rights to 7.10 acres of land for drainage purposes, 3.707 acres for Temporary Construction Easement, new cattle fencing and other minor improvements, including $3,000 for closing costs, all necessary for the Flour Bluff Drive, Phase 1, S.P.LD. to Graham Road Street Improvements, Project #6498, and for other municipal purposes. (BOND ISSUE 2008) (Attachment # 11) 12. Second Reading Ordinance - Amending the Code of Ordinances, Chapter 36, regarding fees established by golf course operators under lease with the City for operation of City golf courses; providing for penalties; and providing for publication. (First Reading — 09/28/10) (Attachment # 12) 13. Second Reading Ordinance — Authorizing the City Manager, or his designee, to execute a thirty -year lease with Corpus Christi Developments 1, LLC, with two ten -year options to renew, for approximately 356,320 square feet fronting West Glasson Road (Industrial Park) to construct a distribution facility and related Agenda Regular Council Meeting October 12, 2010 Page 5 CITY COUNCIL PRIORITY ISSUES (Refer to legend at the end of the agenda summary) improvements, in consideration of Corpus Christi Developments 1, LLC, paying $.09 cents per square foot for unimproved land including an adjustment of 3% every five years as set out in the lease. (First Reading — 09/14/10) (Attachment # 13) L EXECUTIVE SESSION: PUBLIC NOTICE is given that the City Council may elect to go into executive session at any time during the meeting in order to discuss any matters listed on the agenda, when authorized by the provisions of the Open Meeting Act, Chapter 551 of the Texas Government Code, and that the City Council specifically expects to go into executive session on the following matters. In the event the Council elects to go into executive session regarding an agenda item, the section or sections of the Open Meetings Act authorizing the executive session will be publicly announced by the presiding office. 14. Executive Session under Texas Government Code Section 551.071 regarding the City of Corpus Christi, Texas vs. Friends of the Coliseum, Cause No. 10- 60455 -4, in the County Court at Law Number 4, Nueces County, with possible discussion and action in open session. 15. Executive session under Texas Government Code Section 551.071 regarding fire collective bargaining negotiations, with possible discussion and action in open session. 16. Executive session under Texas Government Code Section 551.071 regarding police collective bargaining negotiations, with possible discussion and action in open session. J. PUBLIC HEARINGS: (NONE) K. REGULAR AGENDA CONSIDERATION OF MOTIONS, RESOLUTIONS, AND ORDINANCES: 17. Motion authorizing the City Manager or his designee to execute a service agreement with the Corpus Christi Regional Economic Development Corporation (CCREDC) whereby CCREDC will manage the City's economic development program for an annual fee of $125,000. The term of the agreement is August 1, 2010 through July 31, 2011. (Attachment # 17) Agenda Regular Council Meeting October 12, 2010 Page 6 CITY COUNCIL PRIORITY ISSUES (Refer to legend at the end of the agenda summary) 18. Ordinance appropriating $180,496 from anticipated revenues in the No. 1020 General Fund, changing the FY 2010 -2011 Operating Budget adopted by Ordinance No. 028683 by increasing revenues and expenditures by $180,496 each in the General Fund No. 1020 for additional personnel, a new wrecker, and operational costs to hold six more auctions in FY 2011. (Attachment # 18) 19. Motion approving the 2010 Property Tax Levy of $79,413,745.40 based on the adopted property tax rate of $0.582269 per $100 valuation, in accordance with Section 26.09(e) of the Texas Property Tax Code. (Attachment # 19) 20. 21. a. Motion authorizing the City Manager or his designee to execute a construction contract with Frisco Construction Services, Inc. of Frisco, Texas in an amount of $2,714,958.50 for the Cefe Valenzuela Landfill Sector 1A Liner and Leachate Collection System. (Attachment # 20) b. Motion authorizing the City Manager or his designee to execute a contract for engineering materials testing services with Kleinfelder, Inc. of Corpus Christi, Texas, in the amount of $324,475 for construction of Cefe F. Valenzuela Landfill Sector 1A Liner & Leachate Collection System. (Attachment # 20) a. Motion authorizing the City Manager or his designee to execute a Contract for Professional Services with Urban Engineering, Inc. of Corpus Christi, Texas in the amount of $463,200 for design, bidding, and construction phase services and additional services for the Oso Effluent Re -Use Distribution System Phase 1 Project. (Wastewater CIP FY 2010) (Attachment # 21) b. Motion authorizing the City Manager or his designee to execute a Contract for Professional Services with Urban Engineering, Inc. of Corpus Christi, Texas in the amount of $253,000 for the Water Re -Use Master Plan (City Wide) Project. (Wastewater CIP FY 2010) (Attachment # 21) Agenda Regular Council Meeting October 12, 2010 Page 7 CITY COUNCIL PRIORITY ISSUES (Refer to legend at the end of the agenda summary) 22. Motion to consider a request for an additional 180 -day extension of a Special Permit, to April 14, 2011, to allow for a pet groom and boarding business, small dog and cat rescue shelter, and dog service and therapy/training facility, on property located at the southwest corner of Gadwell Street and Laguna Shores Road, in Case No. 0309 -01, Ross and Judith Sisson. (Attachment # 22) L. PRESENTATIONS: Public comment will not be solicited on Presentation items. 23. City's Americans with Disabilities Act (ADA) Title II Transition Plan and Non - Discrimination Ordinance FY 2009 -2010 Annual Update (Attachment # 23) M. PUBLIC COMMENT FROM THE AUDIENCE ON MATTERS NOT SCHEDULED ON THE AGENDA WILL BE HEARD AT APPROXIMATELY 4:00 P.M., OR AT THE END OF THE COUNCIL MEETING, WHICHEVER IS EARLIER. PLEASE LIMIT PRESENTATIONS TO THREE MINUTES. IF YOU PLAN TO ADDRESS THE COUNCIL DURING THIS TIME PERIOD, PLEASE SIGN THE FORM AT THE REAR OF THE COUNCIL CHAMBER, GIVING YOUR NAME, ADDRESS AND TOPIC. (A recording is made of the meeting; therefore, please speak into the microphone located at the podium and state your name and address. If you have a petition or other information pertaining to your subject, please present it to the City Secretary.) PLEASE BE ADVISED THAT THE OPEN MEETINGS ACT PROHIBITS THE CITY COUNCIL FROM RESPONDING AND DISCUSSING YOUR COMMENTS AT LENGTH. THE LAW ONLY AUTHORIZES THEM TO DO THE FOLLOWING: 1. MAKE A STATEMENT OF FACTUAL INFORMATION. 2. RECITE AN EXISTING POLICY IN RESPONSE TO THE INQUIRY. 3. ADVISE THE CITIZEN THAT THIS SUBJECT WILL BE PLACED ON AN AGENDA AT A LATER DATE. PER CITY COUNCIL POLICY, NO COUNCIL MEMBER, STAFF PERSON, OR MEMBERS OF THE AUDIENCE SHALL BERATE, EMBARRASS, ACCUSE, OR SHOW ANY PERSONAL DISRESPECT FOR ANY MEMBER OF THE STAFF, COUNCIL MEMBERS, OR THE PUBLIC AT ANY COUNCIL MEETING. THIS POLICY IS NOT MEANT TO RESTRAIN A CITIZEN'S FIRST AMENDMENT RIGHTS. Agenda Regular Council Meeting October 12, 2010 Page 8 CITY COUNCIL PRIORITY ISSUES (Defer to legend at the end of the agenda summary) N. CITY MANAGER'S COMMENTS: (NONE) O. ADJOURNMENT: POSTING STATEMENT: This agenda was posted on the City's official bulletin board at the front entrance to City Hall, 1201 Leopard Street, at x 115— p.m., on October 7, 2010. Armando Chapa City Secretary NOTE: The City Council Agenda can be found on the City's Home Page at www.cctexas.com on the Thursday before regularly scheduled council meetings. If technical problems occur, the agenda will be uploaded on the Internet by the Friday. Symbols used to highlight action items that implement council goals are on attached sheet. SUPPLEMENTAL AGENDA REGULAR COUNCIL MEETING CITY OF CORPUS CHRISTI, TEXAS CITY HALL -COUNCIL CHAMBERS 1201 LEOPARD ST. OCTOBER 12, 2010 12:00 P.M. PUBLIC NOTICE is hereby given pursuant to Texas Open Meetings Act of the following addition to the agenda of the City Council to be considered at the above meeting: K. REGULAR AGENDA 22.1 Motion approving a service agreement with BFI Waste Services of Texas, LP, of Corpus Christi, Texas for the Collection, Processing, and Marketing of Residential Recyclable Commodities, based on best value, in accordance with Request for Proposal No. B1-0168-10. The term of the contract shall be for ten (10) years with options to extend the agreement for up to three additional five-year periods. 22.2 Motion authorizing the City Manager or his designee to execute an agreement with RecycleRewards, Inc. to offer an incentive based recycling program to City residents for a term of five years, subject to execution of the agreement by RecycleRewards, Inc. POSTING STATEMENT: This supplemental agenda was posted on the City's official bulletin board at the front entrance to City Hall, 1201 Leopard Street, at '~ 0~2~ a.m 1 p.m., October 8, 2010. Armando Chapa City Secretary City Council Goals 2010 -2011 lin Bayfront and Downtown Initiatives Complete Utility Master Plans Conservation and Recycling Education Plan Comprehensive Economic Development Approach Street Improvement Plan Development Process Improvement Mary Rhodes Pipeline Phase II Water Plan Safe and Healthy Community Initiatives (Gang, Graffiti, and Physical Health Emphasis) Support Continued Military Presence 1 MINUTES CITY OF CORPUS CHRISTI, TEXAS Regular Council Meeting September 28, 2010 - 12:00 p.m. PRESENT Mayor Joe Adame Mayor Pro Tem Brent Chesney Council Members: City Staff: Chris Adler City Manager Angel R. Escobar Larry Elizondo, Sr. City Attorney Carlos Valdez Kevin Kieschnick City Secretary Armando Chapa Priscilla Leal John Marez Nelda Martinez Mark Scott* *Arrived at 12:35 p.m. Mayor Adame called the meeting to order in the Council Chambers of City Hall. The invocation was delivered by Deacon Michael Mantz with the Diocese of Corpus Christi and the Pledge of Allegiance to the United States flag was led by Council Member Kieschnick. City Secretary Chapa called the roll and verified that the necessary quorum of the Council and the required charter officers were present to conduct the meeting. Mayor Adame called for approval of the minutes of the regular Council meeting of September 21, 2010. A motion was made and passed to approve the minutes as presented. ******* ***** • Mayor Adame referred to Item 2 and the following board appointment was made: Corpus Christi Convention and Visitors Bureau Terence F. Klinger (Appointed) * * * * * * * * * * * * Mayor Adame called for consideration of the consent agenda (Items 3 - 7). There were no comments from the public. Council Member Leal requested that Item 4 be pulled for individual consideration. City Secretary Chapa polled the Council for their votes as follows: 3. MOTION NO. 2010 -226 Motion approving a supply agreement with the VWR International, of Suwanee, Georgia for laboratory chemicals and supplies in accordance with Bid Invitation No. BI- 0178 -10, based on most advantageous bid, for estimated annual expenditure of $77,229.88. The term of the contract is for twelve months with options to extend for up to two additional twelve -month periods, subject to the approval of the contractor and the City Manager, or his designee. The laboratory chemicals and supplies will be used by the Water Laboratory. Funding is budgeted and available in the Water Fund for FY 2010 -2011. Minutes — Regular Council Meeting September 28, 2010 — Page 2 The foregoing motion was passed and approved with the following vote: Adame, Adler, Chesney, Elizondo, Kieschnick, Leal, Marez, and Martinez, voting "Aye "; Scott was absent. 5. MOTION NO. 2010 -228 Motion authorizing the City Manager or his designee to execute Amendment No. 3 to the Construction Materials Testing Agreement with Kleinfelder of Corpus Christi, Texas in the amount of $19,986.42 for a total restated fee of $67,961.42 for ADA Accessible Ramps along Staples Street from Leopard Street to Six Points. (Bond 2004) The foregoing motion was passed and approved with the following vote: Adame, Adler, Chesney, Elizondo, Kieschnick, Leal, Marez, and Martinez, voting "Aye "; Scott was absent. 6. MOTION NO. 2010 -229 Motion authorizing the City Manager or his designee to execute a construction contract with Alcorn Commercial Construction of Corpus Christi, Texas in the amount of $119,109.40 for Garcia Arts Education Center Parking Lot Improvements for the "Buy America" Option 1, Total Base Bid plus Additive Alternate No. 2 and No. 3. (CDBG -R) The foregoing motion was passed and approved with the following vote: Adame, Adler, Chesney, Elizondo, Kieschnick, Leal, Marez, and Martinez, voting "Aye "; Scott was absent. 7. ORDINANCE NO. 028792 Amending Chapter 14 "Development Services," Article XIII, "Development Service Fees ", Division 4, "Platting Ordinance Fees ", Section 14 -1341, Platting ordinance fees ", and Chapter 55, "Utilities ", Article V, "Taps and Connections ", Section 55 -70, "Adoption of rules, regulations and water and gas fees ", and Section 55 -71, "Sewer tapping fees ", of the Code of Ordinances, City of Corpus Christi, to increase or establish fees related to Platting Fees and Tap Fees. (First Reading — 09/21/10) The foregoing ordinance was passed and approved on its second reading with the following vote: Adame, Adler, Chesney, Elizondo, Kieschnick, Leal, Marez, and Martinez, voting "Aye "; Scott was absent. Mayor Adame opened discussion on Item 4 regarding the Mansheim & Helen -- Gabriel to Kostoryz and Sunnybrook to Gollihar project. Council Member Leal thanked staff and the Council for their support of this project on behalf of District 3 and the residents of the Mansheim /Sunnybrook area. City Secretary Chapa polled the Council for their votes as follows: 4. MOTION NO. 2010 -227 Motion authorizing the City Manager or his designee to execute an Agreement for Construction Materials Testing and Engineering Services with Rock Engineering and Testing Laboratory, Inc. of Corpus Christi, Texas, in the amount of $74,747 for Mansheim & Helen — Gabriel to Kostoryz and Sunnybrook to Gollihar (Bond 2008). The foregoing motion was passed and approved with the following vote: Adame, Adler, Chesney, Elizondo, Leal, Marez, and Martinez, voting "Aye "; Kieschnick and Scott were absent. -2- Minutes — Regular Council Meeting September 28, 2010 — Page 3 Mayor Adame opened discussion on Item 9 regarding the Till Creek Drainage Basin Improvements, Phase 3. Director of Engineering Pete Anaya referred to a powerpoint presentation including the background; project scope; schedule; and project costs. Council Member Leal asked whether this project would alleviate flooding in the area. Mr. Anaya explained that this project is an environmental project rather than a major drainage project. Mr. Anaya added that the project will take care of the nuisance water in the area. There were no comments from the audience. City Secretary Chapa polled the Council for their votes as follows: 9. MOTION NO. 2010-230 Motion authorizing the City Manager or his designee to execute a construction contract with Garrett Construction of Ingleside, Texas in the amount of $414,327.45 for Till Creek Drainage Basin Improvements, Phase 3, Base Bid Parts A & C. The foregoing motion was passed and approved with the following vote: Adame, Adler, Chesney, Elizondo, Kieschnick, Leal, and Martinez, voting "Aye "; Marez and Scott were absent. (Note: Mr. Chesney was originally absent for the vote on this item and there was a consensus of the Council to allow his vote of "Aye ") Mayor Adame opened discussion on Item 8.1 regarding the issue of public access on the Padre Island National Seashore. Director of Intergovernmental Relations Rudy Garza explained that this item is a resolution to provide comments to the Padre Island National Seashore regarding an environmental assessment relating to the speed limits along that beach. Mr. Garza added that there has been an ongoing dispute between local fisherman and the National Park Service (NPS) regarding rules implemented during the turtle nesting season on the south part of the beach. Mr. Garza stated that the mediation called for an environmental assessment to determine what would be appropriate for the area. Mr. Garza reported that when the Texas General Land Office (GLO) was engaged in the issue regarding the Texas Open Beaches Act, Council Member Kieschnick requested that a resolution be drafted to include input from the City. Mr. Garza provided a brief overview of the alternatives presented and stated that the resolution supports the GLO comments in keeping the spirit of the beach as a natural park and supports the alternatives that are least restrictive. Council Member Kieschnick stated that statistics show that the speed limit is not a factor on the beach and reducing the speed impacts tourism. Council Member Kieschnick said that the Citizens for Access and Conservation (CAC) has added an Option 5 that includes the concerns the NPS has for protecting wildlife and places a reduced speed around those areas to address safety issues. Council Member Kieschnick made a motion to amend the resolution to support Option 5. The motion was seconded by Ms. Leal. The foregoing motion was passed and approved with the following vote: Adame, Adler, Chesney, Elizondo, Kieschnick, Leal, Marez, and Martinez, voting "Aye "; Scott was absent. There were no comments from the audience. City Secretary Chapa polled the Council for their votes as follows: Minutes — Regular Council Meeting September 28, 2010 — Page 4 8.1. RESOLUTION NO. 028791 Resolution urging the Padre Island National Seashore to preserve public access to the seashore's South Beach by not adopting unreasonable restrictions on vehiculartraffic south of mile marker 2.5 through its Beach Vehicle Environmental Assessment Process. The foregoing resolution was passed and approved as amended with the following vote: Adame, Adler, Chesney, Elizondo, Kieschnick, Leal, Marez, and Martinez, voting "Aye "; Scott was absent. MayorAdame opened discussion on Item 10 regarding the collection of delinquent Municipal Court fines and court costs. Presiding Judge of Municipal Court Margie Flores referred to a powerpoint presentation including the reason a citation amount is not automatically created; when money is owed to city; the most common non -case scenarios; cases for collections; the distribution of payments; court collection efforts; and the goals of the new contract. The following topics pertaining to this item were discussed: the collection rate; the additional services offered at no cost by the firm; and the annual collection analysis. Mayor Adame called for comments from the audience. Alicia Pulido spoke regarding the costs associated with a ticket received for a red light camera violation and the appeal process. City Secretary Chapa poled the Council for their votes as follows: 10. MOTION NO. 2010-231 Motion to authorize the City Manager or his designee to execute a contract for the collection of delinquent Municipal Court fines and court costs with the law firm of Linebarger, Goggan, Blair, & Sampson, LLP for a fee of 30% of amount collected on delinquent accounts turned over to law firm, with collection fee to be paid by defendant. The foregoing motion was passed and approved with the following vote: Adame, Adler, Chesney, Elizondo, Kieschnick, Leal, Marez, Martinez, and Scott, voting "Aye ". MayorAdame opened discussion on Item 11 regarding the zoning ordinance to screen trash areas for businesses or multi - family purposes. Assistant City Manager Johnny Perales explained that this item is an ordinance extending the moratorium on the dumpster screening that is due to expire. Mr. Perafes stated that staff is requesting additional time to present the new language to replace the current ordinance. Mr. Perales added that the language will be presented to the Planning Commission for recommendation and will be brought to the Council for final action within the next 60 days. In response to Council Member Kieschnick, Mr. Perales stated that the proposed language focuses on the screening concept as opposed to the mechanics. The following topics pertaining to this item were discussed: discussion with interested parties; whether the interested parties are in support of the language proposed; the expense to property owners to comply with the ordinance; if staff has reviewed ordinance language from other cities; adding additional code enforcement officers that are self funded; and enforcement of ordinances. Minutes — Regular Council Meeting September 28, 2010 — Page 5 Mayor Adame called for comments from the audience. Carrie Robertson, 4401 N. Gulfbreeze Boulevard, provided pictures of businesses at North Beach that have enclosed their dumpsters and businesses that have not enclosed their dumpsters. Ms. Robertson encouraged the Council to insist on dumpster enclosures in the City and especially in tourist areas like North Beach. David Loeb, 522 Hancock, disagreed with the previous statements and stated that the pictures Ms. Robertson provided of businesses that had not enclosed their dumpsters have violated a series of code enforcement violations. Mr. Loeb also spoke regarding the increased cost to businesses to screen each dumpster. Mr. Loeb encouraged the Council to focus on the code enforcement violations for overflowing dumpster. Mike Staff, 3122 Leopard, stated that he agreed with both speakers. Mr. Staff added that he did not know if enclosures would solve the trash situation and challenged citizens to do better to show pride and beautify the City. Council Member Kieschnick requested that staff place a future item on the agenda to discuss an option for additional code enforcement officers that are funded through enforcement of the ordinances. City Secretary Chapa polled the Council for their votes as follows: 11. ORDINANCE NO. 028793 Ordinance imposing a temporary 60 -day moratorium on the requirement in Section 27- 3.07.01 of the Zoning Ordinance of the City of Corpus Christi, Texas to screen trash areas on any lot used for business or multi - family purposes from street, public, and neighboring views; providing for publication, providing an effective date. An emergency was declared, and the foregoing ordinance was passed and approved with the following vote: Adame, Adler, Chesney, Elizondo, Kieschnick, Leal, Marez, Martinez, and Scott, voting "Aye ". Mayor Adame opened discussion on Item 12 regarding the golf course management operations. Director of Intergovernmental Relations Rudy Garza introduced the presentation team including Assistant City Attorney Lisa Aguilar, Interim Director of Finance Constance Sanchez, Director of Parks and Recreation Michael Morris, Assistant City Manager Margie Rose, and Dan Pedrotti with Foresight Corpus Christi Golf L.L.C. Mr. Garza referred to a powerpoint presentation including the reasons for undertaking process; goals; the National Golf Foundation (NFG) analysis of golf course operations in 2005; the Texas A & M University — Corpus Christi (TAMUCC) analysis of golf course operations; the financial and operational analysis; the key components of the request for proposal (RFP); RFP evaluation criteria; the RFP responses and evaluation process; information on Foresight Golf; the contract provisions; and the impact to the golf fund. The following topics pertaining to this item were discussed: capital improvements funded through the CIP and existing $1.50 surcharge; considerations for the South Texas Lighthouse for the Blind to continue maintaining the concessions; the City Charter provision that requires that leases over five (5) years do not take affect until after 60 days; the performa; the fee structure; the impact to current golf course employees and the reduction in force (RIF) policy; whether there has been increased revenues with the closure of Kings Crossing and Pharaoh golf courses; and if the City is expecting to purchase an additional golf course in the future. Mayor Adame called for comments from the audience. Alana Manrow, South Texas Lighthouse for the Blind, stated that the South Texas Lighthouse for the Blind has been operating the concessions at the golf courses and has provided employment opportunities for seven (7) individuals. Ms. Manrow added that she hopes that the South Texas Lighthouse for the Blind will still be provided those opportunities for the people that need them the most. -5- Minutes — Regular Council Meeting September 28, 2010 — Page 6 City Secretary Chapa announced that staff is requesting that an amendment be made to Item 12.a. to include the language "and associated equipment ". Mr. Scott made a motion to amend Item 12.a. The motion was seconded by Mr. Kieschnick. The foregoing motion was passed and approved with the following vote: Adame, Adler, Chesney, Elizondo, Kieschnick, Leal, Marez, Martinez, and Scott, voting "Aye ". City Secretary Chapa polled the Council for their votes as follows: 12.a. FIRST READING ORDINANCE Authorizing the City Manager or his designee to execute a ten (10) year lease with Foresight Corpus Christi Golf, LLC with options to renew for an additional ten (10) year term, and then an additional five (5) year term, for the use of Gabe Lozano, Sr. Golf Course and Oso Beach Golf Course, and associated equipment, for annual rental payments of one -half of net cash flow from operations; providing for publication. The foregoing ordinance was passed and approved as amended on its first reading with the following vote: Adame, Adler, Chesney, Elizondo, Kieschnick, Leal, Marez, Martinez, and Scott, voting "Aye ". 12.b. MOTION NO. 2010 -232 Motion to authorize the City Manager or his designee to execute a short -term monthly management agreement with Foresight Corpus Christi Golf, LLC to manage the Oso Beach Golf Course and the Gabe Lozano, Sr. Golf Course, for a monthly management fee of $12,000 for up to six months. The foregoing motion was passed and approved with the following vote: Adame, Adler, Chesney, Elizondo, Kieschnick, Leal, Marez, Martinez, and Scott, voting "Aye ". 12.c. FIRST READING ORDINANCE Amending the Code of Ordinances, City of Corpus Christi, Chapter 36, regarding fees established by golf course operators under lease with the City for operation of City golf courses; providing for penalties; and providing for publication. The foregoing ordinance was passed and approved on its first reading with the following vote: Adame, Adler, Chesney, Elizondo, Kieschnick, Leal, Marez, Martinez, and Scott, voting "Aye ". Mayor Adame opened discussion on Item 8 regarding the flooding events of September 20th and 21st and updates on the City response actions. The presentation team included Director of Engineering Services Pete Anaya; Fire Chief Richard Hooks; and Director of Human Relations Leon Bazan. Mr. Anaya provided background information on the rainfall; stream information; the major affected areas of the City; and the impact to the City facilities and infrastructure. Fire Chief Hooks reported on the emergency responses, evacuation assistance; the actions taken by the City; and the goal to addressing immediate needs. Mr. Bazan addressed the volunteer organizations active in the disaster; responses from the City departments and the local community; and the ongoing efforts. Marg Paton, Red Cross; Linda McKamie, Catholic Charities; Sylvia De La Cerda, Food Bank of Corpus Christi; and Quentin Masters, on behalf of the Salvation Army, provided information on each agencies contributions to the flooding events and recognized the efforts of local businesses and agencies for their assistance. -6- Minutes — Regular Council Meeting September 28, 2010 -- Page 7 Mayor Adame called for comments from the audience. Mike Soliz, 1321 Calle San Lucas, spoke regarding the general permit for construction given to H & G Contractors to improve the Las Colonias Drainage problems and whether there is a plan to make sure the flooding in this area never happens again. Mr. Anaya stated that H & G Contractors has gone out of business and the City is working with the bonding company to restart the project. Priscilla Plazola asked why builders were allowed to build in a low lying area and why the City allowed residents first time home buyers assistance. Ms. Plazola stated that she expected to receive answers to her questions at today's meeting. Assistant City Manager Perales explained that all developments in the City have to refer to the FEMA flood maps and only a small portion of the subdivision is within the 100 -year flood plain. Mr. Perales added that the flooding was much higher than the FEMA prediction for a 100-year flood and the flood elevations during this event were between the 100 to 500 -year flood elevations. Susie Luna Saldana thanked all the organizations that assisted the Las Colonias neighborhood and stated that the community needs solutions today. Manuel Plazola asked who was going to take responsibility for the overflow of the sanitary sewer water in the subdivision and whether the City is going to test the ground soil. Mr. Plazola stated that the drainage for the area has never been fixed. In response to MayorAdame, City Manager Escobar stated that arrangements will be made to address the environmental issues. Marco Gambo, owner of 1302 Saratoga, spoke regarding the City terminating the contract to purchase his property adjacent to the Las Colonias subdivision. Roslyn Dirden stated that her mother lost everything in the flooding and proposed that the City buy out the properties in the area. Ernest Sanchez, 1238 Calle San Carlos, suggested that the City buy out each home for $100,000 and turn that subdivision into a drainage lake. George Lugo said he was a first -time homebuyer and had built his dream home. Mr. Lugo added that he doesn't want to live there anymore and requested that the City buy out the property. Ana Lisa Ocejo, 1313 Calle San Miguel, asked who would take responsibility for the sewage and asked the City to buy out the resident's homes. Simon J. Hernandez stated that the City identified the drainage problem years ago and has neglected to correct the issue. Mr. Hernandez said he wants a solution from the City now. Lucy Rubio, 1713 Citation, stated that she also has drainage problem in the Saratoga Downs subdivision and asked the Council to direct staff to address this issue. Ricardo Resendez spoke regarding the Tierra Grande subdivision and the assistance needed for that area. Lucia Lopez, 1310 Calle San Carlos, stated that she lost everything in the flood and asked the Council to get the residents out of there. Ms. Lopez thanked everyone that has helped the residents. Petra Medina, 1333 Calle San Carlos, stated that if the City buy outs the residents, her property is worth more than $100,000. Zumar Carcomo, 5702 Escondito Drive, spoke regarding the constant flooding in the area and stated that the Council should do something to assist the neighborhood. Joshua George thanked the agencies that assisted the neighborhood and asked the Council to continue to keep the community informed. Wayne Hayes spoke regarding the ongoing problems with wastewater. Carolyn Moon, 4902 Calvin, spoke regarding the drainage on McArdle Road and urged the City to continue maintenance of storm drains. Abel Alonzo, 1701 Thames, stated that the Council is very sincere about finding a solution for this problem and challenged all elected officials to develop a drainage district. Alicia Pulido thanked Council Member Martinez for her assistance and spoke regarding the problems her daughter faced during the flooding events. Melanie Salazar, 1237 Calle San Miguel, stated that the neighborhood is not looking for a solution to the problems and only want to be bought out. The following topics pertaining to this item were discussed: the location of the Margaret Kelly ditch; the study from 2007 that identifies an unfunded $17.5 million project south of Saratoga to construct a parallel drainage channel to La Voila Creek in the long range CIP; whether construction work performed in the Las Colonias area will avoid future flooding; regional detention facilities; the -7- Minutes — Regular Council Meeting September 28, 2010 — Page 8 Nueces County Drainage District; the short term work that can be done by the City prior to staff developing a program for the area; the status of the declaration of disaster; and whether residents are eligible for federal assistance from FEMA. Mr. Chesney requested a presentation from staff regarding the drainage in the Las Colonias subdivision and to develop a plan to look at long term options. Mr. Anaya stated that staff will develop a program in the next 60 days to address this issue. Council Member Marez asked for a representative from the U.S. Army Corps of Engineers to attend the next meeting to provide information regarding the drainage in the area. Council Member Leal stated that the developer should never have been approved to develop this area and that the City needs to correct this problem for the safety of the citizens. Ms. Leal made a motion to buyout the household residents who physically and mentally suffered from this flooding and declare this area to be uninhabitable. The motion failed for lack of second. Mayor Adame stated that realistically a solution can not come immediately and that the Council has asked the Engineering Department to come up with alternative ways that water can be retained and released properly. Mr. Marez requested staff, along with Council Member Leal, hold an informal neighborhood meeting within the next two weeks on behalf of the Council to respond to the community. Mr. Chesney asked that the meeting be posted to comply with the Open Meetings Act. Mayor Adame called for 5-minute break. * * * * * * * * * * * * * Mayor Adame called for petitions from the audience. Wayne Hayes spoke regarding the selection for the new City Manager and the Padre Island National Seashore. * * * * * * * * * * * * * MayorAdame opened discussion on Item 13 regarding discussion and consideration of the executive search firms and selection process for the new City Manager. Director of Human Resources Cynthia Garcia and Assistant Director of Human Resources Joan McKaughan were available to respond to questions. Council Member Scott spoke in support of Slavin Management Consultants and their involvement in searches outside of Texas. Council Member Martinez supported Slavin Management Consultants for their extensiveness and experience. Council Member Kieschnick stated that he liked Slavin's guarantee, low recidivism rate and that they search nationwide. Council Member Elizondo stated that Slavin has the capabilities of attracting leadership from across the country. Mr. Elizondo asked when would be the appropriate time to discuss the salary. MayorAdame said he will interface with the selected company, develop a timeline for Council interviews, receive feedback from the interviews; develop a profile; and involve staff and the citizens in the process. Council Member Marez stated that he would support a company with diversity that has assisted many clients of all sizes. Council Member Leal stated that the City Manager position has already been budgeted and the salary should be determined on what is budgeted. Council Member Adler stated that to find the right person, the City should pay for the right person. Ms. Adler added that she would support any of the firms with the Mayor leading the process. Mr. Scott made a motion to select Slavin Management Consultants. The motion was seconded by Mr. Kieschnick. City Secretary Chapa polled the Council for their votes as follows: Minutes — Regular Council Meeting September 28, 2010 — Page 9 13. MOTION NO. 2010 -233 Motion approving an agreement with Slavin Management Consultants to provide professional services for the recruitment of City Manager candidates for consideration by the City for a fee of $14,720 and reasonable and customary expenses. The foregoing motion was passed and approved with the following vote: Adame, Adler, Chesney, Elizondo, Kieschnick, Leal, Marez, Martinez, and Scott, voting "Aye ". * * * * * * * * * * * * * MayorAdame referred to Item 14 regarding the status update on the Mary Rhodes Phase 2 Pipeline. Director of Engineering Services Pete Anaya introduced the presentation team including Director of Water Gus Gonzalez; Assistant Director of Engineering Dan Biles; Ron Guzman and Annie Carroll with Freese and Nichols; and Carl Crull with HDR Engineer. Mr. Guzman referred to a powerpoint presentation including a background; project scope elements; project status; schedule; estimated construction cost; and communication with stakeholders. The following topics pertaining to this item were discussed: the two options for the Mary Rhodes Phase 2 Pipeline alignment northern and southern routes; the difference in length and cost between the northern and southern routes; the reason for suggesting the southern route; easement considerations with the southern route; lifecycle costs with selecting the southern route; the environmental impacts with the northern route; impact to the rate payers; the reason for eliminating Site 3 for the Colorado River Intake Station; the anticipated total estimated project cost; the difference between the original anticipated costs and the current anticipated costs; options to achieve lower costs for the project; the number of miles for the Mary Rhodes Pipeline Phase 1; the intake pump station; associated maintenance and lifecycle costs; and the cost for a desalination plant. MayorAdame referred to lteml 5 regarding the status update on the Broadway Wastewater Treatment Plant. Director of Engineering Pete Anaya introduced the presentation team including Director of Wastewater Operations Foster Crowell; Dan Leyendecker with LNV Engineering; Rene Aguilar and William Causey with Carollo Engineering; and Assistant Director of Engineering Dan Biles. Mr. Causey referred to a powerpoint presentation including the team members; public involvement; milestones up to date; schedule status; ongoing Phase 1 construction; modifications to site access; construction of the aeration basins, secondary clarifiers, aerated sludge basins and sludge dewatering building; contractor behind schedule; future milestone dates; and the construction budget status. The following topics pertaining to this item were discussed: the original savings for the treatment plant; plans for the old facility once construction is completed and how other cities around the country handle this process. * * * * * * * * * * * * * There being no further business to come before the Council, MayorAdame adjourned the Council meeting at 5:34 p.m. on September 28, 2010. * * * * * * * * * * * * * 2 a. ETHICS COMMISSION -- Three vacancies with terms to 10 -1 -13. (Appointment requires 213 vote (6) of full Council) DUTIES: In addition to having jurisdiction of complaints involving any "city official ", the duties of this commission are to prepare and publish pamphlets and other materials explaining the duties of individuals subject to the code of ethics; review all statements and reports filed with the city; annually review the code of ethics and make appropriate recommendations to the city council; review all public opinions related to the code of ethics that are issued by the city attorney; prepare and disseminate a report listing all campaign contributions and expenditures for each candidate within 30 days following the deadline for filing the last campaign finance reports for each city council election. The commission shall have such meetings as may be necessary to fulfill its responsibilities. The chairperson or any three (3) members may call a meeting provided that reasonable notice is given to each member. The commission shall meet at least once a year. The date of the annual meeting shall be in September. The commission shall comply with the Texas Open Meetings Act. COMPOSITION: Nine members appointed by a two- thirds vote of the full council. Nominations are to be solicited from a wide variety of professional and community organizations in the city, but interested individuals may also submit their names for consideration. No holding over is permitted except as expressly provided in the code of ethics. The commission shall elect a chairperson and a vice- chairperson. ORIGINAL MEMBERS TERM APPTD. DATE Linda Figueroa 10 -01 -12 05 -10 -05 Melvin Bohannon 10 -01 -12 10 -13 -09 William Strawn 10 -01 -11 06 -09 -09 Haysam D. Dawod 10 -01 -11 07 -20 -10 *Laura Hebert 10 -01 -10 11 -13 -07 Jennifer Dragoo 10 -01 -12 10 -13 -09 *****Rick Marcantonio 10 -01 -10 12 -14 -04 *****Robert N. Corrigan. 10 -01 -10 10 -14 -03 James Richard Cramer, Chair 10 -01 -11 10 -14 -03 Legend: *Seeking reappointment **Not seeking reappointment ***Resigned ****Exceeded number of absences allowed by ordinance *****Has met six -year service limitation ATTENDANCE RECORD OF MEMBER SEEKING REAPPOINTMENT NO. OF MTGS. NO. % OF ATTENDANCE NAME THIS TERM PRESENT LAST TERM YEAR Laura Hebert (Note: No regular meetings were held during this term year.) OTHER INDIVIDUALS EXPRESSING INTEREST Kristin Aldrighetti Ken Bung Aaron Castro Mike Gazey Currently Attending College. Received BBA in Marketing from The University of Texas at San Antonio and MS in Secondary Education from Texas A &M University - Corpus Christi. Activities include: Co- Sponsor for Future Business Professionals of America and Sponsor for Helping Hands Youth Community Service Organization. Recipient of CPS Volunteer Award. (10 -5 -09) Retired, Assistant Chief of Police. Retired United States Navy. Received AA from Del Mar College. Attended Numerous Training Sessions Related to Law Enforcement. (10 -5 -10) Photo Journalist, KZTV 10. Currently Student at Texas A &M University - Corpus Christi. Served on Food Advisory Committee in High School. Activities include: Politics. Recipient of Employee of the Month at Action Ten News. (5- 11 -09) Preparation Chef, OMNI Hotels. Received degree in Architecture from University of Arkansas and a degree in General Business from Texas A &M University - Corpus Christi. Activities include: Habitat for Humanity. (4 -22- 09) Jack Gordy Retired military. High school graduate plus one year at Del Mar College. (4- 13 -09) Coretta Graham, Esq. Self- Employed, Attorney — Graham Legal Services. Received BA from Douglass College, Rutgers University at New Brunswick, New Jersey and J.D. from TSU Thurgood Marshall School of Law at Houston, Texas. Activities include: State Bar of Texas Diversity Committee, Coastal Bend Women Lawyers, Leadership Corpus Christi, Kiwanis, Corpus Christi Bar Association, NAACP, and Black Chamber of Commerce. Currently Serves on the CCCIC/Loan Review Committee. (4- 24 -09) Harry Hallows President, Hallows Realty Advisors. Retired Certified Property Manager. Real Estate Broker. Received a Degree in Behavioral Management Science from the University of Houston. Former Teaching Assistant and Senior Lending Officer. (8- 26 -10) William Paul Hunt Retired, Environmental Engineer. Received a Bachelors Degree in Meteorology from Texas A &M University - ColIege Station. Formerly Served on the Corpus Christi Regional Air Shed Committee. Activities include: Tutoring. (6 -4 -09) Jacey Jetton Manager, Galaxy Glow Mini Golf, LLC. Received Associates of Business from Northwood University at Cedar Hill, Texas. Served in the Hawaii Army National Guard. (5- 18 -09) William M. Kramer, Jr. Agent, Kramer Insurance Agency. Received Bachelor in Political Science from Texas A &M University- Corpus Christi. (5- 28 -09) Peter G. Melee Ronald J. Moore Joel S. Mumphord Gerard Navarro, Jr. Transportation Supervisor, Regional Transportation Authority. Received an Associate Degree in Social Work/Liberal Arts and Bachelor's Degree in Business Administration/Management. Activities include: Westside Business Association and Foster Parent. (3 -2 -09) Plant Manager, Coastal Bend Surgery Center. Owner of Coastal Mediations. Received Associates Degree in Paralegal Studies and Mediation Certification from the South Texas College of Law. Activities include: Dispute Resolution Center, Better Business Bureau Mediation Program, Texas Sandfest and Adopt -A- Beach. (10 -6 -09) Retired, Encycle, Inc. Served in Law Enforcement. Activities include: Host of T.V. Show, Community Action Agency, Molina Neighborhood Day Care, HIALCO President. (5- 21 -09) Substitute Teacher, Corpus Christi Independent School District. Currently attending Texas A &M- Corpus Christi. (5- 14 -09) Keith Parker Senior Mechanical Engineer, Bath Engineering/Noresco. Received BS in Mechanical Engineering. Activities include: ASHRAE and AEE. Currently serves on the CCCIC/Loan Review Committee. (4- 23 -09) Guadalupe V. Salinas Administrative Assistant, Pathfinder Energy /Smith International. (8- 24 -09) Abel A. Sanchez Retired, United States Postal Worker. Attended Del Mar College. Activities include: Youth Football Coach. (4 -16- 09) Michael 0. San Miguel Received BS from University of Texas -San Antonio. Formerly Served on Small Business Advisory Board. Participated in City of Corpus Christi Citizen University (2007). Activities include: CompTIA and Pearson. (10 -6- 09) Stefany Tegeler Schade Self - Employed/Owner, TorOso Financial Group, LLP. Received Bachelor's and Master's in Accounting from Texas A &M University - Corpus Christi. Activities include: National Association of Professional Women and Texas Society of Certified Public Accountants. (5- 28 -09) Sean M. Thorson Sr. Mortgage Banker, Envoy Mortgage. Attended Brigham Young University, University of Texas, and School of Mortgage Lending at Washington State. Previously involved with Pacific Coast Mortgage Dreams, Coaching Girls Youth Soccer Team, and Sno -King Youth Club. (6- 2-09) Ernesto M. Trevino, Jr. Retired, United States Postal Service. Received AA from Del Mar College. Served in the United States Air Force. Activities include: Volunteer at USS Lexington. Recipient Good Conduct Medal, United States Air Force. (12- 26 -08) Arthur J. Valdez SAH Agent /Senior Appraiser, Department of Veterans Affairs. Attended Saint Mary's University and San Antonio College in San Antonio, Texas. Activities include: Knights of Columbus, Church Activities, and LULAC. (1- 30-09) Larry L. White Process Engineer, DuPont. Received BS and MS from Louisiana Tech and MS from Memphis State. Activities include: American Institute of Chemical Engineers, Corpus Christi Bucarader, and Water's Edge Pipe and Drum Band. (6 -5 -09) Felix Zavala, Jr. Pastor, El Shaddai Church. Activities include: Prayer Meetings. (8-10-09) b. PARK AND RECREATION ADVISORY COMMIE 1 E — Four (4) vacancies with terms to 8- 23 -12. DUTIES: To provide advice on City parks and buildings therein, public outdoor recreation areas and centers and other grounds under its purview by the City Manager. COMPOSITION: Eleven (11) members appointed by the City Council, who are residents of the City and serve without compensation for a two -year term beginning August 23, or until their successor is appointed. The Board elects its Chairman. ORIGINAL MEMBERS TERM APPTD. DATE Art Norman 8 -23 -11 11 -10 -09 *Rene Richard Gutierrez, Chair 8 -23 -10 10 -17 -06 *Huxley Smith 8 -23 -10 5 -26 -09 *Ron Woods 8 -23 -10 6 -17 -08 Lisa Ann Torres, Vice Chair 8 -23 -11 6 -17 -08 Dorian E. Ramirez 8 -23 -12 4 -27 -10 Rita Sonia Herrera - Padron 8 -23 -11 5 -26 -09 Dr. Jinsun Kim 8 -23 -11 3 -11 -08 Sylvia Samaniego 8 -23 -11 12 -18 -07 * *Carrie Robertson 8 -23 -10 8 -12 -08 Carlos Haney 8 -23 -11 2 -24 -09 (The Park and Recreation Advisory Committee is recommending the reappointments of Rene Richard Gutierrez, Huxley Smith and Ron Woods. The Committee is also recommending the new appointment of Rick Barrera.) ATTENDANCE RECORD OF MEMBERS SEEKING REAPPOINTMENT NO. OF MTGS. NO. % OF ATTENDANCE NAME THIS TERM PRESENT LAST TERM YEAR Rene Richard Gutierrez 12 12 100% Huxley Smith 12 11 92% Ron Woods 12 11 92% Legend: *Seeking reappointment * *Not seeking reappointment ***Resigned ****Exceeded number of absences allowed by ordinance *****Has met six -year service limitation OTHER INDIVIDUALS EXPRESSING INTEREST Richard Avila Rick Barrera Rodney Buckwalter Retired. Part -Time Adjunct Professor Texas A &M University - Corpus Christi. Received BS and Masters Degree from Pan American University. Certified Athletic Administrator and Certified Masters Athletic Administrator. Activities include: UIL State Executive Committee and Texas Association of Sports Officials. (4- 26-10) General Manager, HomeField Outdoor Living. Currently Attending Corpus Christi Theological Seminary. Associate Pastor. Activities include: Social Media Club of Corpus Christi and Corpus Christi Metro Ministries. (8- 21 -09) Manager, Training & Quality, First Data Corporation. Received A.A. from Del Mar College, B.A. and M.S. from Texas A & M University — Corpus Christi. Activities include: Management Development Advisory Committee — Del Mar College, American Society for Training and Development, Patriot's Band and Honor Guard of America. (6 -5 -09) Angelica Carmona Salon Manager, Planet Sol Hair Salon. Attended Texas &M University - Corpus Christi. Activities include: Corpus Christi Pregnancy Center, Mission 911, and City Church Corpus Christi. Graduate of Leadership Corpus Christi Class 37. (6 -5 -09) Samantha Chase Special Education Instructional Paraprofessional II, Corpus Christi Independent School District. Received a Master's Degree in Education. Activities include: Kappa Delta Pi, Golden Key International Honor Society, International Reading Association and Student Reading Council. (11 -18 09) Ralph Chavez Bakery Supervisor, Corpus Christi Independent School District. Activities include: Carroll Tiger Band, Musician, Golfer and Outdoorsman. (4- 15 -10) Elenita Collins Retired. Graduated from Southern Methodist University. Activities include: Volunteers and Serves on the Board of Governors at the Art Museum of South Texas. (4- 28 -09) Bob Copes Michael Creacy Sole Proprietor, Copes Communications Consulting. Received a Bachelor of Science Degree in Chemical Engineering. Recipient of 2006 ARC Awards Silver Winner, League of American Communication Professionals 2007 Vision Platinum Award and 2008 ARC Awards Bronze Winner. (12- 14 -09) Supervisor/Branch Chief, Corpus Christi Army Depot. Received an ASS in Electrical/Electronics Technology from Del Mar College and a Degree in Business Management from University of Incarnate Word. Activities include: Federal Managers Association and American Heart Association CRP Lifesaver and AED Instructor. Recipient of Boy Scouts of America District Award of Merit and Achievement medal for Civilian Service, Special Act or Service Award. (5 -7 -10) Elisha R. Dickerson III Chairman, Tropical Isles Investment Club. Currently attends Texas A &M- Corpus Christi. Activities include: National Youth Crime Watch of America Member and The Rising Scholar — Texas A &M- Corpus Christi. Past Vice - President of South Texas Hispanic Baptist Youth Encampment. (5 -5 -09) Brian Thomas Doggett Managing Member, Island Aquatics, LLC. Attended Virginia Commonwealth University. Activities include: President- Independent pool and Spa Service Association. (6- 17 -09) Becky Flores Dana Fowlks Shannon Gabriel Realtor, USA Freedom Realtors. Received Associate Degree in Computer Programming. Licensed Realtor and Loan Officer. (1- 19 -09) Product consultant, TriZetto Group. Received a Bachelor's Degree in Science Information Systems from the University of Phoenix. Activities include: CC Pride Day. (1- 20 -10) Marketing Manager, Outback Steakhouse. Attending Del Mar College. Activities include: Beach CIean Ups, American Cancer Society -Relay for Life, Corpus Christi Chamber of Commerce and Corpus Christi of Commerce Ambassador Program. (8- 14 -09) Raymundo G. Garcia Mike Garey Anthony Gavlik Meredith N. Grant Daniel Grimsbo Harry Hallows Mary Catherine Handy Retired, United States Postal Service. Received Associates Degree in Science from Del Mar College. Activities include: Pan American Golf Association and Teach Driver's Safety Courses for the AARP. (11 -9 -09) Preparation Chef, OMNI Hotels. Received degree in Architecture from University of Arkansas and a degree in General Business from Texas A &M University - Corpus Christi. Activities include: Habitat for Humanity. (4 -22- 09) EIT, Naismith Engineering. Received Bachelor of Science in Civil Engineering from Texas A& M University - Kingsville. Activities include: American Society of Civil Engineers and Texas Society of Professional Engineers. (4- 15 -09) Homemaker. Received B.A. in English from Texas A &M University - Corpus Christi. Certified Interior Decorator. Activities include: Junior League of Corpus Christi, Art Museum of South Texas, and Beautify Corpus Christi Association. (10- 14 -08) Utility Energy Manager Supervisor, Department of the Navy. Received Bachelor of Science of Civil Engineering from The Citadel, Master of Science Business Organizational Management from University of La Verne and master of Urban Planning from University of Illinois. Licensed Professional Engineer and Certified Planner. Activities include: Society of American Military Engineers, Habitat for Humanity, Red Cross Bash, Food Bank and Air Shows. (3- 10-10) President, Hallows Realty Advisors. Retired Certified Property Manager. Real Estate Broker. Received a Degree in Behavioral Management Science from the University of Houston. Former Teaching Assistant and Senior Lending Officer. (8- 26 -10) Assistant Branch Sales Manager, IBC Bank. Attended College. Activities include: Corpus Christi Chamber of Commerce, March of Dimes, Buc Days, and Junior Achievement. (2 -9 -09) -21- Austin Harbin Keron E. Hasley Dennis Havel Kevin Horrigan Aaron Hoss Danny Kollaja Jerry Lipstreu Table Tender, Carino's Italian. Attending Del Mar College. Recipient of the national Young Leaders Award and the Eucharistic Cross Bearer Award. (3- 22 -10) Assistant Cashier, IBC Bank. Attended Del Mar College. Activities include: United Way Allocations Committee. (4- 17 -09) Maintenance Superintendent, Valero Refinery. Received Associates Degree from Wharton Jr. College. Activities include: Baseball Coach for Oso Pony League, Director of Pony Baseball League. Served on Oso Pony Board, United Way Golf Commission and American Cancer Golf Commission. (6 -8 -09) Marketing Manager, South Texas Lighthouse for the Blind. Attended Darden School of Business, University of Virginia. Activities include: Volunteer at Lighthouse for the Blind. Recipient of the Milton J. Samuelson Award for 2009. (1- 21 -09) Advanced Metal Finishing Facility Work Leader, Corpus Christi Army Depot. United States Army Veteran. Activities include: Head Elder of Local Church. (7 -13- 10) Self - Employed, Lanky the Clown and Administrator, St. Philip the Apostle Catholic Church. Received a Bachelors Degree from Corpus Christi State University. Activities include: Big Brothers/Big Sisters, American Red Cross, American Heart Association, Corpus Christi State School, Clowns of America International, Inc. and Driscoll Children's Hospital. Recipient of Volunteer of the Year, 1985. (4- 22 -10) Area Manager, Kleinfelder. Received B.A. from University of Texas at Austin. Activities include: West Corpus Christi Rotary and Port Aransas Boatmen. (4 -30- 09) Lydia Lorenzi Rudy Martinez Ron Maxwell Victor Menard Armando Mendez Jordan Michael Formerly Transition Specialist, San Antonio Independent School District, Alamo Achievement Center, San Antonio, Texas. Received BA from Our Lady of the Lake College and MA from Our Lady of the Lake University. Recipient of San Antonio Independent School District Teacher of the Year and Texas Governors Award for Volunteer Service. (4- 28 -09) Community Relations Director, Nurses on Wheels, Inc. Activities include: American Cancer Society, Downtown Relay for Life 2011, ACSS Texas Region, Heart Walk, and Dancing through Downtown Diabetes Walk. (9- 13 -10) Self - Employed, Landscape Contractor, Master Gardner. Received BS in Plant and Soil Science from Texas A &I University at Kingsville. (4- 30 -10) Taxpayer Liaison Officer, Nueces County Appraisal District. Retired, United States Navy, Master Chief Air Traffic Controller and Viet Nam Veteran. Activities include: Former Water Shore Advisory Committee Member — Vice Chair, AARP, Mayor's Fourth of July Committee, Boys and Girls Club of Corpus Christi, Habitat for Humanity, Neighborhood Visions and Flint Hills Community Action Council. Recipient of the "Positive Place Award ". (11- 6 -09)) General Clerk III, L -3 Communications and Equipment Specialist, Corpus Christi Army Depot. Received SBA in Business Administration from Texas A &M University- Corpus Christi. Activities include: Bay Area Fellowship Member and Sigma Phi Epsilon Alumni Association of Corpus Christi. Recipient of Senior Marshall Sigma Phi Epsilon Award, Leadership Award Sigma Phi Epsilon and Omicron Delta Epsilon Economics Honor Society. (5 -7- 10) Convention Service Manager, Omni Hotels. Received Bachelor's Degree in Recreation, Park and Tourism Sciences from Texas A &M University - College Station. Activities include: Junior League of Corpus Christi. (6 -12- 09) Keith Parker Monica Pena -Moore James M. Richardson Abel A. Sanchez Andrew G. Smith Senior Mechanical Engineer, Bath EngineeringlNoresco. Received BS in Mechanical Engineering. Activities include: ASHRAE and AEE. Serves on the CCCIC /Loan Review Committee. (4- 23 -09) Director of Special Events, Corpus Christi Chamber of Commerce. Activities include: Cub Master, Wednesday Morning Group, National Multiple Sclerosis Society, and American Cancer Society -Relay for Life. (12 -1 -08) Vice - President, Tac Med, Inc. Attended College. (2 -9 -10) Retired, United States Postal Worker. Attended Del Mar College. Activities include: Youth Football Coach. (4 -16- 09) Business Consultant, Education Service Center Region 2. Received BBA in Accounting from University of Texas at Austin and Master of Public Administration from Texas A &M University - Corpus Christi. Activities include: Texas Association of School Business Officials, Church and Sailing. (2 -5 -10) Scot Taylor Store Manager, Factory Builder Stores. Activities include: Builder Association of Corpus Christi. (8- 11 -09) Jesus M. Trevino Currently attends College. (8- 26 -09) Timothy Weitzel Manager, Retail Store. Attending Del Mar College Activities include: Webmaster, Corpus Christi Commodores Barbershop Chorus and National Piano Guild Member. (11 -5 -08) Felix Zavala, Jr. Pastor, El Shaddai Church. Activities include: Prayer Meetings. (8- 10 -09) CITY COUNCIL AGENDA MEMORANDUM City Council Action Date: 10/12/2010 AGENDA ITEM: Motion approving the purchase of a 4 channel 800MHZ EDACS radio system and antenna for the City of Portland to enhance signal penetration for all their Public Safety personnel and provide interoperable communications, from Dailey & Wells Communications, San Antonio, Texas based on sole source for a total expenditure of $388,500. Funds are available through the Public Safety Interoperable Communications Grant which includes a 20% cash match from the City of Portland. ISSUE: Purchase of equipment must be approved by City Council if over $50,000. BACKGROUND INFORMATION: The City of Corpus Christi serves as the lead agency for the Public Safety Interoperability Grant. The City of Portland Police department (PPD) currently utilizes the 800 MHZ Radio System operated by the City of Corpus Christi, Nueces County and the Regional Transportation Authority. The City of Portland is located under the normal radiation pattern of the 800 Mhz radio system, but the antenna height/city location relationship does not provide the radio signal penetration that is normally desired by Public Safety personnel. The City of Portland will implement their own EDACS trunked Radio System within their city limits so signal penetration will be enhanced to provide for improved officer safety. The Portland Fire Department will also use the new system and will greatly benefit from the higher signals levels it will provide inside of buildings. The trunking repeaters making up this 4 channel system will be software upgradable to Project 25 trunking operation. Upon mandatory statewide system Project 25 upgrade by 2016, no additional hardware will be required for this upgrade to Project 25 compliance. The City of Portland is located in San Patricio County and also desires that the new Radio System be connected to the broad interoperable system now in place. All Public Safety responders would be able to communicate seamlessly with 800 MHZ radio users in Nueces, San Patricio, Kleberg and Aransas Counties. FUNDING: The grant provides 80% of the funding with the City of Portland providing a 20% cash match. REQUIRED COUNCIL ACTION: Approval of purchase. PREVIOUS COUNCIL ACTION: Acceptance and appropriation of the grant on 07/08/2008. CONCLUSION AND RECOMMENDATION: Staff recommends approval of purchase. D. Troy Riggs Chief of Police TroyR @cctexas.com 886 -2604 Attachments; Quote from Dailey Wells 0 E 'N O CJ . 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ISSUE: Funds are available from the State of Texas for gang interdiction. BACKGROUND: The Corpus Christi Police Department in conjunction with the Corpus Christi Crime Stoppers Association will continue the Save Our Streets campaign to set a monetary award for anonymous tips that lead to the arrest of any known gang member in possession of a firearm. The information gathered from callers would quickly be relayed to designated Gang Units or field units for follow-up investigation. Anonymous callers are guaranteed a cash reward for information leading to the arrest of any gang member in illegal possession of a handgun or leading to the arrest of any gang member in illegal possession of an assault-style rifle. REQUIRED COUNCIL ACTION: Approval to submit the grant application. FUNDING: The State is asked to provide $99,975 for sworn officer overtime salary and fringe benefits with no cash match required. The grant period runs from October 1, 2010 -- September 30, 2011. Funding from the grant will pay for an aggressive interdiction campaign entitled S.Q.S. (Save Our Streets) to include television, radio, newspaper ads and billboards. There is no City match required; however the Crime Stoppers reward monies will be provided by the Law Enforcement Trust Fund. CONCLUSION AND RECOMMENDATION: Staff recommends passing the resolution. D. Troy Riggs Chief of Police trovr@cciexas.com 886 -2603 RESOLUTION AUTHORIZING THE SUBMISSION OF A GRANT APPLICATION IN THE AMOUNT OF $99,975 TO THE STATE OF TEXAS, OFFICE OF THE ___..GOVERNOR,.._..CRIMINAL __..JUSTICE . DIVISION FOR ..FUNDING AVAILABLE TO ADDRESS GANG ISSUES, FUNDS TO BE USED FOR OVERTIME AND FRINGE BENEFITS IN THE POLICE DEPARTMENT, AND AUTHORIZING THE CITY MANAGER OR THE CITY MANAGER'S DESIGNEE TO APPLY FOR, ACCEPT, REJECT, ALTER OR TERMINATE THE GRANT. THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF CORPUS CHRISTI, TEXAS: SECTION 1. The City Manager, or the City Manager's designee, is authorized to submit a grant application to the State of Texas, Office of the Governor, Criminal Justice Division in the amount of $99,975 for funding available to address gang issues, funds to be used for overtime and fringe benefits in the Police Department. SECTION 2. The City Manager, or the City Manager's designee, may apply for, accept, reject, agree to alter the terms and conditions, or terminate the grant, if the grant is awarded to the City. SECTION 3. In the event of the loss or misuse of the State of Texas, Office of the Governor, Criminal Justice Division funds, the City of Corpus Christi assures that the funds will be returned to the Criminal Justice Division in full. ATTEST: THE CITY OF CORPUS CHRISTI Armando Chapa City Secretary APPROVED: September 15, 2010 By: T. Trisha Dang Assistant City Attorney For City Attorney Joe Adame Mayor Corpus Christi, Texas _... of , 2010 The above resolution was passed by the following vote: Joe Adame Chris N. Adler Brent Chesney Larry Elizondo, Sr. Kevin Kieschnick Priscilla Leal John E. Marez Nelda Martinez Mark Scott 5 CITY COUNCIL AGENDA MEMORANDUM City Council Action Date: October 12, 2010 AGENDA ITEM: A) A resolution authorizing the City Manager or his designee to accept a grant of $25,000 from the Coastal Bend Council of Governments and to execute an interlocal agreement to provide recycling and anti - litter education. B) An ordinance appropriating a grant of $25,000 from the Coastal Bend Council of Governments in the No. 1051 Solid Waste Grants Fund to provide recycling and anti - litter education; and declaring an emergency. ISSUE: The Coastal Bend Council of Governments' Regional Solid Waste Grant application process requires approval of an acceptance resolution by the City Council. The grant must be accepted and the funds appropriated prior to spending grant proceeds. REQUIRED COUNCIL ACTION: Approval of resolution and ordinance as submitted. PREVIOUS COUNCIL ACTION: July 20, 2010, City Council authorization to submit grant application. CONCLUSION AND RECOMMENDATION: Approval of resolution and ordinance to appropriate funding as submitted. Lawrence Mikolajczyk, Director of Solid Waste Operations (361) 826 -1972 Lawm @cctexas.com BACKGROUND INFORMATION The Texas Commission on Environmental Quality (TCEQ) Grants are administered Iocally through the Coastal Bend Council of Governments (CBCOG). The purpose of the grant program is to provide funding for eligible local and regional municipal solid waste projects in support of the adopted regional solid waste managements plan for the CBCOG region. In Fiscal Year (FY) 2002 -2003, Solid Waste Services received a total of $125,000 for the following: $45,000 for (Household Hazardous Waste Disposal costs, $55,000 for a Brush Loader, $10,000 for a Recycling Media/Outreach Program, $10,000 for a Household Hazardous Waste Media/Outreach Program, and $5,000 to publicize and increase participation in Stop Trashing Corpus Christi Community Clean -up events. In FY 2003 -2004, Solid Waste Services received a total of $56,932 for the following: $46,932 for Solid Waste Local Enforcement, and $10,000 for Litter and Illegal Dumping Cleanup programs. In FY 2004 -05, Solid Waste Services received a total of $38,619 for the following: $26,619 for Solid Waste Local Enforcement, $2,000 for Education and Training, and $10,000 for Litter and Illegal Dumping Cleanup Programs. In FY 2005 -06, Solid Waste Services received a total of $44,880 for the following: $10,000 for a Community Media Outreach campaign for the City's Anti -Litter Ordinance, $10,380 for a third year of funding for an Assistant Compliance Officer, $4,500 for the disposal of scrap tires collected during the City's Neighborhood Initiative Program, and $20,000 to purchase new collection units for the used oil and HEW storage modules for the new Collection/Transfer Station at the J.C. Elliott Landfill. In FY 2006 -2007, Solid Waste Services received a total of $15,000 for recycling and anti -litter education. In FY 2007 -2008, Solid Waste Services received a total $31,120 for the following: $25,000 for recycling and anti -litter education, and $6,120 for household hazardous waste education materials and guides. In FY 2008 -09, Solid Waste Services received a total of $31,000 to provide recycling and anti -litter education. The contract was amended by adding $2,140 to supplement the purchase of three recycling containers for the marina, for a total amount of $33,140. In FY 2009 -10, Solid Waste Operations received $35,000 for the following: $15,000 for recycling billboard campaign, $13,000 for mesh bags to help reduce beach litter, $4,000 for pine seedlings used in the Christmas tree recycling efforts, and $3,000 for recycling and anti -litter outreach giveaway items. A RESOLUTION AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO ACCEPT A GRANT OF $25,000 FROM THE COASTAL BEND COUNCIL OF GOVERNMENTS AND TO EXECUTE AN INTERLOCAL AGREEMENT TO PROVIDE RECYCLING AND ANTI- LITTER EDUCATION. BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF CORPUS CHRISTI, TEXAS, THAT: SECTION 1. The City Manager or his designee is authorized to accept a grant of $25,000 from the Coastal Bend Council of Governments and to execute an interlocal cooperation agreement to provide recycling and anti -litter education. ATTEST: CITY OF CORPUS CHRISTI Armando Chapa City Secretary APPROVED: September 27, 2010 fl Elizdth R. Hundley Ass ant City Attorney for the City Attorney EHres27B —45— Joe Adame Mayor Corpus Christi, Texas day of , 2010 The above resolution was passed by the following vote: Joe Adame Chris N. Adler Brent Chesney Larry Elizondo, Sr. Kevin Kieschnick Priscilla G. Leal John E. Marez Nelda Martinez Mark Scott EHres278 _4.6_ AN ORDINANCE APPROPRIATING A GRANT OF $25,000 FROM THE COASTAL BEND COUNCIL OF GOVERNMENTS IN THE NO. 1051 SOLID WASTE GRANTS FUND TO PROVIDE RECYCLING AND ANTI- LITTER EDUCATION; AND DECLARING AN EMERGENCY. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF CORPUS CHRISTI, TEXAS, THAT: SECTION 1. Grant funding in the amount of $25,000 from the Coastal Bend Council of Governments is appropriated in the No. 1051 Solid Waste Grants Fund to provide recycling and anti - litter education. SECTION 2. Upon the written request of the Mayor or five Council members, copy attached, the City Council: (1) finds and declares an emergency due to the need for immediate action necessary for the efficient and effective administration of City affairs, and (2) suspends the Charter rule that requires consideration of and voting upon ordinances at two regular meetings so that this ordinance is passed and takes effect upon first reading as an emergency measure on this the day of , 2010. ATTEST: CITY OF CORPUS CHRISTI Armando Chapa City Secretary APPROVED: September 27, 2010 r1 49 i_tf Eliz.� th R. Hundley Assi ant City Attorney for the City Attorney EHord31B Joe Adame Mayor -47- Corpus Christi, Texas day of , 2010 TO THE MEMBERS OF THE CITY COUNCIL Corpus Christi, Texas For the reasons set forth in the emergency clause of the foregoing ordinance an emergency exists requiring suspension of the Charter rule as to consideration and voting upon ordinances at two regular meetings: I /we, therefore, request that you suspend said Charter rule and pass this ordinance finally on the date it is introduced, or at the present meeting of the City Council. Respectfully, Respectfully, Council Members Joe Adame Mayor The above ordinance was passed by the following vote: Joe Adame Chris N. Adler Brent Chesney Larry Elizondo, Sr. Kevin Kieschnick Priscilla G. Leal John E. Marez Nelda Martinez Mark Scott EHou 318 -48- CITY COUNCIL AGENDA MEMORANDUM City Council Action Date: 10/1212010 AGENDA ITEM: A resolution authorizing the City Manager or his designee to execute an interlocal cooperation agreement with Texas A &M University - Corpus Christi in the amount of $14,634.00 for the Brownfields GIS Data Project which is funded by U.S. Environmental Protection Agency Grants. ISSUE: The Environmental Protection Agency (EPA) selected the City of Corpus Christi to receive two federal stimulus fund grants for a three year community -wide Brownfields Assessment Program. The City Manager or designee has developed and executed all documents required by the EPA and an ordinance appropriating the funds will allow the Brownfields Assessment Program to establish the fmancial fund to bill award expenses. The resolution allowing execution of an interlocal cooperation agreement with Texas A &M Corpus Christi to provide GIS data will fulfill the City's obligation to provide community involvement in the form of academic participation. REQUIRED COUNCIL ACTION: Approval of a resolution authorizing the City Manager or his designee to execute an interlocal cooperation agreement with Texas A &M University - Corpus Christi in the amount of $14,634.00 for the Brownfields GIS Data Project which is funded by U.S. Environmental Protection Agency Grants. PREVIOUS COUNCIL ACTION: November 11, 2008, in resolution 027937, City Council authorized the City Manager or designee to submit a grant totaling $400,000 to the EPA to be used for the development and implementation of a three year community -wide Brownfields Assessment Program. On June 25, 2009, in resolution 028221, City Council authorized the City Manager to accept $400,000 in grant funds from EPA to be used for the development and implementation of a three year community -wide Brownfields assessment program. On October 20,2009 Council authorize an ordinance appropriating the $400,000 grant funds from EPA in No. 1071 Community Enrichment Fund to be used for the development and implementation of a three year community -wide Brownfields Assessment Program. _51_ CONCLUSION AND RECOMMENDATION: Staff recommends the approval of the resolution as presented. Peggyt. umner, CHMM, CFM Director, Environmental Services PeggyS @cctexas.com 361 -826 -1868 Attachments Resolution requesting authorization by the City Manager or his designee to execute an interlocal cooperation agreement with Texas A &M University - Corpus Christi in the amount of $14,634.00 for the Brownfields GIS Data Project which is funded by U.S. Environmental Protection Agency Grants. Contract for Interlocal Cooperation Agreement between Texas A &M — Corpus Christi and the City of Corpus Christi BACKGROUND INFORMATION The City of Corpus Christi Environmental Services Office applied for an Environmental Protection Agency (EPA) Brownfields Assessment Grant on November 14, 2008 to establish a community -wide program for identifying and assessing properties which could be redeveloped or reused as productive resources while gaining economic, environmental, health and social benefits. The City of Corpus Christi was one of two locations in Texas to be selected to receive funding through American Recovery and Reinvestment Act (ARRA) of 2009 for brownfields activity. Included in the City's proposal to EPA was a commitment to engage the community through outreach and education efforts and to encourage community involvement with all stakeholder groups, including academia. Also included in the proposal was a commitment to be economically beneficial the local community. We invited Texas A &M University — Corpus Christi and Del Mar College to collaborate on a GIS data gathering project which would include both undergraduate and graduate students as well as staff. The partnership fulfills our obligation to not only commit grant funds locally but to involve academia, thus providing a learning opportunity to member of the community. RESOLUTION AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO EXECUTE AN INTERLOCAL COOPERATION AGREEMENT WITH TEXAS A &M UNIVERSITY- CORPUS CHRISTI IN THE AMOUNT OF $14,634.00 FOR THE BROWNFIELDS GIS DATA PROJECT WHICH IS FUNDED BY U.S. ENVIRONMENTAL PROTECTION AGENCY GRANTS BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF CORPUS CHRISTI: SECTION 1. The City Manager or his designee is authorized to execute an Interlocal Cooperation Agreement with Texas A &M University — Corpus Christi in the amount of $14,634.00 for the Brownfields GIS Data Project which is funded by U.S. Environmental Protection Agency Grants. A copy of the agreement is on file in the Office of the City Secretary. SECTION 2. The City Manager or his designee is authorized to make editorial and non - substantive modifications and execute amendments to the Interlocal cooperation agreement without further approval of the City Council that do not require the appropriation of additional funds or exceed the City Manager's authority to amend contracts, including, but not limited to, time extensions, modifications to schedule and modifications to scope of work or services. SECTION 3. This Resolution shall become effective immediately upon its passage. ATTEST: CITY OF CORPUS CHRISTI Armando Chapa, City Secretary Joe Adame, Mayor Approved this September 23, 2010 Lisa Aguilia , Assistant City Attorney for the City Attorney Corpus Christi, Texas of , 2010 The above resolution was passed by the following vote: Joe Adame Chris N. Adler Brent Chesney Larry Elizondo, Sr. Kevin Kieschnick Priscilla G. Leal John E. Marez Nelda Martinez Mark Scott INTERLOCAL COOPERATION AGREEMENT BETWEEN TEXAS A & M UNIVERSITY -- CORPUS CHRISTI AND THE CITY OF CORPUS CHRISTI WHEREAS, Texas A & M University -- Corpus Christi ( "TAMUCC ") and the City of Corpus Christi ( "City ") are authorized by Chapter 791 of the Texas Government Code to enter into an interlocal cooperation contract; WHEREAS, the technical support contemplated by this agreement is of mutual interest and benefit to TAMUCC and City; it will further the instructional and research objectives of TAMUCC, in a manner consistent with its status as an agency of the State of Texas; and it will help the City accomplish its objectives; NOW, THEREFORE, the parties hereto agree as follows: 1. GRANT SUBCONTRACT. a. Both the City and TAMUCC acknowledge that this agreement is a subcontract to the City's Cooperative Agreements from U.S. Environmental Protection Agency (EPA Assistance 1D No. 2B- 96699101 -0 and EPA Assistance ID No. 2B- 96698801 -0), hereinafter "Grants ", and that terms and conditions of the Grants control the administration and execution of this contract. b. The Grants are incorporated into this agreement by reference and are available on request. c. In the event any provision of this agreement conflicts with the terms of the Grants, the terms of the Grants control the administration and execution of this agreement. d. TAMUCC agrees to comply with all requirements imposed by EPA that are applicable to subcontractors. e. TAMUCC shall be responsible for the professional quality, technical accuracy, timely completion and the coordination of all services and other work furnished by TAMUCC under this agreement. TAMUCC must perform the work in conformity with the standards and guidance documents provided by EPA. f. The City and EPA may withhold reimbursement for costs of non - conforming work. 2. SCOPE OF WORK. TAMUCC agrees to use its best efforts to execute the Scope Work, which is attached to this agreement as Attachment A. Page 1 of 9 Contract final 3. PRINCIPAL INVESTIGATOR. The program will be supervised by TAMUCC Visiting Assistant Professor Richard Smith. If, for any reason Mr. Smith is unable to continue to serve as Principal Investigator, and a successor acceptable to both TAMUCC and the City is not available, this agreement shall be terminated as provided in Paragraph 7. 4. PERIOD OF PERFORMANCE. The services shall be performed from date of September 1, 2010 through August 31, 2011, S. PRICE AND PAYMENT. This agreement is funded exclusively from the funds made available to the City by the Grants. The City's obligation is limited by the provisions of the Grants. The City is not liable to make payments to TAMUCC if funding is not available to the City through the Grants. Reimbursements to TAMUCC may not exceed Fourteen Thousand Six Hundred Thirty -Four Dollars ($14,634.00) for expenses authorized under this Interlocal Agreement and under the Grants. a. Invoices for reimbursement shall be submitted, not more frequently than monthly, to the following address: City of Corpus Christi Attn: Sharon Bailey Lewis Environmental Programs Specialist Environmental Services P.O. Box 9277 Corpus Christi, TX., 78469 -9277 A copy of the invoice may be also emailed to SharonL @cctexas.com 6. DELIVERABLES. The deliverables required under this agreement are specified in the Scope of Work (Attachment A). 7. SUBCONTRACTS. TAMUCC shall forward any proposed subcontracts providing for the performance of services under this agreement to the City prior to execution of the subcontract. TAMUCC plans to subcontract with Del Mar College to perform some of the services under this Agreement. The City's failure to question a subcontract nor its subsequent withdrawal of any questions raised regarding a subcontract may not in any way imply the City's approval of the subcontract's purpose or method of procurement of the subcontract. Further, the terms of this provision do not in any way restrict the City's rights under this agreement to subsequently refuse reimbursement for expenses incurred pursuant to the subcontract. 8.. TERMINATION. Performance under this agreement may be terminated by the City upon sixty days written notice. Performance may be terminated by TAMUCC, if circumstances beyond its control preclude continuation of the program. Upon termination, TAMUCC will be reimbursed as specified in Paragraph 4 of all costs and non - cancelable commitments incurred in the performance of the program, that are Page 2 of 9 Contract final reimbursable under the Grants. However, reimbursement may not to exceed the total estimated cost specified in Paragraph 4. 9. INTELLECTUAL PROPERTY. a. Royalties and Patent Fees. TAMUCC shall pay all license fees and royalties and assume ail costs incident to the use or possession in the performance of the Work or the incorporation in the work of any intellectual property. b. Disclosure of Intellectual Property Produced during the Work. TAMUCC shall promptly notify the City of all intellectual property that TAMUCC or TAMUCC's employees, subcontractors, or subcontractor's employees may produce, either solely or jointly with others, during the course of the Work. In addition, TAMUCC shall promptly notify the City of all intellectual property to which TAMUCC may acquire rights in connection with the performance of the work. Any notification under this paragraph shall contain sufficient technical detail to convey a clear understanding of the intellectual property, and shall identify any publication, sale, public use, or impending publication. Promptly upon request, TAMUCC shall supply additional information as the City may request. c. Failure to Protect Intellectual Property. If TAMUCC fails to protect any intellectual property rights produced in the course of performing the work, the City shall have full authority to protect, assume and retain all intellectual property rights in any and all intellectual property. d. Non - interference with Intellectual Property Rights of City. TAMUCC agrees that TAMUCC, its agents, and its employees shall not in any manner use, sell, distribute, disclose or otherwise communicate any portion of intellectual property owned by or licensed to the City, except in the course of performing the work, unless TAMUCC has independent intellectual property rights to the intellectual property. e. Grant of License. With respect to any intellectual property as is (i) incorporated in the work (other than intellectual property for which the City already possesses equal or greater intellectual property rights by virtue of this agreement or otherwise) or (ir) produced by TAMUCC or TAMUCC's employees, subcontractors, or subcontractor's employees during the course of performing the work TAMUCC hereby grants to the City (0 a nonexclusive, perpetual, irrevocable, enterprise wide license to reproduce, publish, or otherwise use the intellectual property and associated use documentation, and (fi) a nonexclusive, perpetual, irrevocable, enterprise -wide license to authorize others to reproduce, publish, or otherwise use intellectual property for the City's purposes. f. Modification; Derivative Works. The City shall have the right, at their own discretion, to independently modify any intellectual property to which license is granted for the City's own purposes and use, through the services of its own employees or independent contractors. The City shall own all intellectual Page 3 of 9 Contract final property rights to the modifications. TAMUCC shall not incorporate any modifications into its intellectual property for distribution to third parties unless it first obtains a license from the City. g. Compliance with Applicable Laws and Regulations. TAMUCC shall comply with all laws and regulations relating to intellectual property_ h. Warranties Relating to Intellectual Property Rights. TAMUCC represents and warrants to the City that TAMUCC will not infringe any intellectual property right of any third party. TAMUCC further represents and warrants to the City that in the course of performing the work it will not use or possess any intellectual property owned by a third party without paying any required royalty or patent fees. TAMUCC warrants that it has full title in and ownership of the intellectual property and any enhancements, updates or other modifications, or that it has full power and authority to grant all licenses granted in this agreement, and that the license use by the City will in no way constitute an infringement or other violation of any intellectual property right of any third party. TAMUCC warrants that it shall have, throughout any applicable license term under this agreement, free and clear title to, or the right to possess, use sell, transfer, assign, license, or sublicense products that are licensed or provided to the City by TAMUCC. Except as permitted in this agreement and the Grants, TAMUCC shall not create or permit the creation of any lien, encumbrance, or security interest in the work or any part thereof, or any product licensed or provided to the City for which title has not yet passed to the City, without the prior written consent of the City. TAMUCC represents and warrants to the City that neither it nor any other company or individual performing the work is under any obligation to assign or give to any third party any intellectual property rights granted or assigned to the City, or reserved by the City, under this agreement and the Grants. 10. RELEASE OF INFORMATION. TAMUCC shall acknowledge the City, the TAMUCC investigator, the nature of the program, and the dollar value of the agreement in TAMUCC records and reports. Any reports and other documents completed as part of this agreement, other than documents prepared exclusively for internal organizational use by TAMUCC, shall carry the following notations on the front cover or title page: "PREPARED IN COOPERATION WITH THE CITY OF CORPUS CHRISTI" 11. NOTICES. All notices to parties under this Agreement shall be in writing and sent to the names and address stated below. Either party to the Agreement may change the name and address by notice to the other in accordance herewith, and any change shall take effect immediately upon receipt of the notice. TAMUCC Page 4 of 9 Contract final Grants /Contracts Administrator Office of Research & Scholarly Activity 6300 Ocean Drive, NRC 2011 Corpus Christi, Texas 78412 -5843 Phone: 825 -2186 Email: Research.ofFceC7a.tamucc.edu CITY City of Corpus Christi Attn: Sharon Bailey Lewis, Environmental Programs Specialist P.O. Box 9277 Corpus Christi, TX., 78469 Telephone: (361) 826 -4066 Fax: (361) 826 -4681 12. LIABILITY. It is understood that the City shall not be liable for any claims against TAMUCC, its employees, or third persons, other than theCity's employees, for damage resulting from or arising out of the activities of TAMUCC personnel under this Agreement, and TAMUCC agrees, to the extent permitted by Section 49, Article III of the Constitution of the State of Texas, to hold theCity harmless from any and all claims. It is also understood that TAMUCC shall not be held liable for any claims against theCity's employees, of damage resulting from or arising out of activities of the City, its employees, or third persons, other than TAMUCC employees, and the City agrees, to the extent permitted by Section 49, Article III of the Constitution of the State of Texas, to hold TAMUCC harmless from any and all claims. 13 INDEPENDENT CONTRACTOR. For the purposes of the agreement and all services to be provided under this agreement, the parties shall be, and shall be deemed to be, independent contractors and not agents or employees of the other party. Neither party shall have authority to make any statements, representations or commitments of any kind, or to take any action which shall be binding on the other party, except as may be explicitly provided for in this agreement or authorized in writing. 14. AMENDMENTS AUTHORIZED. a. The representatives who were authorized to sign this agreement are authorized to execute minor amendments to this agreement, such as changes in deadlines and minor changes in the scope of work. b. Any amendments to this agreement resulting from amendments to the Grants that increase the scope of work under this agreement due to the City's award of additional funding as a result of the Scope of Work prepared by TAMUCC under this agreement must be authorized by the City Council and the funds appropriated before an amendment to this agreement is executed. Page 5 of 9 Contract final c. Any amendments to this agreement increasing or decreasing the amount the City is obligated to pay TAMUCC by more than $25,000 must be authorized by the City Council before an amendment to this agreement is executed. 15. SEVERABILITY. If any of the provisions of the agreement in the application thereof to any person or circumstance, is rendered or declared illegal for any reason, or shall be invalid or unenforceable, the remainder of the agreement and the application of the provision to other persons or circumstances shall not be affected thereby, but shall be enforced to the greatest extent by applicable law. The City and TAMUCC agree that this agreement shall be reformed to replace the stricken provision or part thereof with a valid and enforceable provision that comes as close as possible to expressing the intention of the stricken provision. 16. DISPUTE RESOLUTION PROCESS. a. To the extent applicable, the dispute resolution procedures provided in Chapter 2260 of the Texas Government Code will be used to resolve contract claims under this contract. b. If the Chapter 2260 procedures are utilized both parties agree that the City may intervene in the proceedings as an interested party. c. The Director of Purchasing, TAMUCC, is designated as the officer designated under §2260.052, Texas Government Code, to examine claims and counterclaims, negotiate, and resolve any claims on behalf of TAMUCC. 17. VENUE. TAMUCC acknowledges and agrees that because this agreement has been executed, and will be administered in Nueces County, Texas, the agreement is to be performed in Nueces County. TAMUCC acknowledges and agrees that any permissible cause of action involving this agreement will arise solely in Nueces County. If a legal action related to this claim is permissible and there are two (2) or more counties of proper venue under the rules of mandatory, general, or permissive venue, and one of the counties is Nueces County, TAMUCC agrees to venue in Nueces County. This provision does not waive the City's sovereign immunity. 18. MISCELLANEOUS. This agreement constitutes the entire agreement between the parties relative to the subject matter, and may only be modified or amended by a written agreement signed by both parties. It shall be construed in accordance with the laws of the State of Texas. 19. AUTHORIZATION OF GOVERNING BODIES. The individuals executing this agreement certify that this interlocal agreement has been authorized by the Governing Body for their, as required by Section 791, Texas Government Code. IN WITNESS WHEREOF, the parties have caused this agreement to be executed by their authorized representative. Page 6 of 9 Contract final TEXAS A & M UNIVERSITY -- CORPUS CHRISTI By: Name: ;c.�+ Title: Date:. /0 CITY OF CORPUS CHRISTI ATTEST By: Armando Chapa `Angel R. Escobar City Secretary City Manager APPROVED AS TO FORM: This .3'5 day of Assistant gityi Attorney For City Attorney Contract final , 2010 Date: Page7of9 —6 2— ATTACHMENT A City of Corpus Christi Brownfields GIS Project Statement of Work Introduction Through an agreement with the City of Corpus Christi, Del Mar College (DMC) and the Conrad Blucher Institute for Surveying and Science (CBI) at Texas A &M University — Corpus Christi, CBI and DMC will create a Brownfields geographic information system (GIS) containing spatial and non - spatial information about Brownfields sites in the City of Corpus Christi. A primary goal of this project is to improve the management of Brownfields sites through the creation of a publicly accessible inteanet portal for searching, viewing, analyzing, and downloading information, and also the creation of a secure internal intranet portal for managing the information stored in the Brownfields GIS. It will be the job of these agencies to participate in planning meetings, data search and compilation plan development, field research and development of Brownfields GIS portals. Task 1 — Participate in planning meetin>s and develop a data search and compilation plan: The City of Corpus Christi will designate a representative tasked with: a) providing data requirements to TAMUCC and DMC for the purpose of database schema construction and field data collection requirements and b) responding to questions put forth by TAMUCC and DMC for the purpose of clarifying and completing data compilation. Agencies will be responsible for participating in planning meetings which will be integral to developing a specific data search and compilation plan. The data search and compilation plan will be developed in collaboration with the City of Corpus Christi, CBI and DMC. Deliverables: • City of Corpus Christi designated representative tasked. • Database schema. • Data search and compilation plan. Task 2 — Carry out data search and compilation plan: The agencies will be responsible for delivering identified datasets for use in the Brownfields GIS. Data searches should be focused on, but not limited to: environmental, physical, chemical and cultural datasets such as wetlands, rookeries, remediation wells, historic sites and roads. Agencies will also submit a data discovery report summarizing data findings, shortcomings /gaps in datasets and other pertinent information. To contain the scope of this project, research intensive datasets taking an inordinate amount of time to compile may be postponed to future work agreements or completed during this agreement with the addition of personnel through additional funding. Deliverables: Page 8 of 9 Contract final • Datasets • Metadata for identified datasets • Discovery reports Task 3 — Develop Brownfields GIS online portals: CBI and DMC will develop both internal and external Brownfields GIS portals for public consumption and private management scenarios. These portals will assist in viewing, analyzing, and downloading pertinent Brownfields GIS datasets collected during this project. CBI and DMC will work in conjunction with the City of Corpus Christi to ensure that the Brownfields GIS and online portals can be successfully integrated with the City's GIS systems if so requested. Deliverables: A. Internal and external Brownfields GIS portals B. ArcGIS Server web application (web site) or similar format, and geodatabase (database of collected data.) C. TAMUCC will provide three levels of documentation: 1) Metadata of data collected - Each dataset that TAMUCC produces will be accompanied with FGDC compliant metadata, or, at a minimum (if complete metadata is not possible), meet the Dublin Core Metadata recommendation. This metadata covers such information as: date collected, person collecting, abstract, purpose, keywords, spatial information, attribute information, modification to the data. 2) User documentation: Documentation on how to maintain the website and data from an authorized user's point of view will be provided. Such topics covered will be: navigating the website, adding a new record, modifying an existing record, and deleting a record. Additionally, it will provide documentation on other general concepts required to use the software. 3) IT /GIS documentation: This is the technical documentation for the IT /GIS personnel. It will cover the data/database schema, website configuration information, and maintenance documents. Page 9 of 9 Contract final CITY COUNCIL AGENDA MEMORANDUM City Council Action Date: October 12, 2010 AGENDA ITEM: A. Motion authorizing the City Manager, or his designee, to execute a subcontract with Communities In Schools, Corpus Christi, Inc. in the amount of $75,000.00 to provide services for youth ages 10 to 17 in the 78415 Zip Code. B. Motion authorizing the City Manager, or his designee, to execute a subcontract with SERCO of Texas in the amount of $100,000.00 to provide services for youth ages 10 to 17 in the 78415 Zip Code. ISSUE: The Texas Department of Family and Protective Services (DFPS) is continuing to fund the Community Youth Development (CYD) Program in various cities throughout the State. The City of Corpus Christi has been allocated $503,500 in program funds for Fiscal Year 2010 — 2011, Contract Period September 1, 2010 through August 31, 2011, to be used in the 78415 Zip Code area. REQUIRED COUNCIL ACTION: Contracts in excess of $50,000 require Council approval. PREVIOUS COUNCIL ACTION: On August 31, 2010 Council approved a resolution for the City Manager or his designee to submit a grant application in the amount of $503,500. On September 22, 2009 Council approved a motion to execute a contract with the Texas Department of Family and Protective Services and also approved an ordinance to appropriate the money. CONCLUSION AND RECOMMENDATION: Committee, DFPS and Parks and Recreation Programs as presented for Fiscal Year 2010 — August 31, 2011. Attachments: Background Information The Community Youth Development Steering recommend approval of the $175,000 for the CYD 2011, Contract Period September 1, 2010 through Mich -el Morris, Direct +r Parks and Recreation MichaelMo @cctexas.com (361) 826 -3464 BACKGROUND INFORMATION In 1995, DPRS developed a program to fund local grass roots efforts in the highest juvenile crime areas of the state by ZIP Code. Currently fifteen zip codes in 14 cities are designated as CYD service areas. The program sought to create activities that were not currently available within the local 78415 Zip Code area. These activities were made available to youth ages 5 -17. Eligible activities must fall within the following categories: mentoring, activities, employment, education, and/or youth leadership. In order to meet DPRS (now called Texas Department of Family and Protective Services — DFPS) guidelines, a mentoring, youth leadership development and a youth advisory committee components must be part of the overall 78415 CYD Program's Plan of Operation. On May 27, 1997, the City Council approved a transfer agreement with the Workforce Development Corporation pertaining to the 78415 Community Youth Development (CYD) Contract with the Texas Department of Protective and Regulatory Services (DPRS) for the CYD Program, and executed a contract with DPRS. The City Council also passed a resolution ( #022938) establishing the CYD Steering Committee. Since then, the City has served as the Fiscal Agent for the program and entered into subcontracts with many community agencies for CYD service. Since its inception, the CYD Program has served the 78415 Zip Code through a number of service providers. These providers would include Boys & Girls Club, Communities In Schools, Corpus Christi Housing Authority, Corpus Christi Independent School District, Corpus Christi Public Library, Corpus Christi. Teen Court, Paisano Girl Scout Council, Planned Parenthood, Park & Recreation Department, SERCO of Texas, Youth Odyssey, YMCA, and YWCA. For grant year 2011, the CYD Collaborative Committee approved funding for nine programs. The two largest awards were SERCO of Texas and Communities In Schools which require Council approval. SERCO will be providing job skills and career development programs at six school sites and Communities in Schools will offer Case Management Services and after school activities at 2 school sites throughout the 78415 target area. The other seven awards included: Boys & Girls Club ($50,000), Corpus Christi All -Star Gym ($35,000), Corpus Christi Housing Authority ($10,000), Corpus Christi Parks & Recreation Dept. ($20,000), YMCA of the Coastal Bend ($25,000), Youth Odyssey ($30,000), and YWCA of Corpus Christi ($35,000). The balance of the grant is utilized by the City for the administration of the CYD contract including coordinating the CYD review committee meetings, conducting a Strengths and Needs Assessment, oversight of the subcontractor's programs, meeting the reporting requirements for DFPS and financial management of the grant funds. Community Youth Development Program FY 2011 Subcontractor Plan of Operation Fiscal Agent/Primary Contractor: City of Corpus Christi Subcontractor Name: Communities In Schools, Corpus Total CYD Funding Amount: $75,000 Christi Inc. Program Name: Communities In Schools x.".X1;ifl`'�- ..a..w` -r G_t- s.,' 1. . ° „..,w'`s "•... n'.�#' .' wtig- Name: Title: Veronica R. Trevino E -mail: Phone Number: Executive Director cisvrt(a?davlin.net 361 - 696 -4058 Address: 650 Osage, Corpus Christi, Texas 78405 Contract Period: From: 9/1/2010 To: 8/31/2011 (Inclusive Dates of Service): Same as contract period Yes: ® No: ❑ If not, From: To: Funding Priority(ies): #1 Academic Support, #2 Life Skills and #3 Recreational Services All addresses (locations) where services will be provided, (please use full address): 1. South Park Middle School: 3001 McArdle, Corpus Christi, TX 78411 2. Lexington Elementary until Gloria Hicks Elementary (opens September 2010):3602 McArdfe, Corpus Christi, TX 78411 3. N/A 4. N/A Z7MIla-3 7n _ dui.. 3YJ ��..Efi.?iai..,r : "Xxt7gx � °2_r-: T'�_'L i .. "`y«:�� 6au Output #1: Output #3: Average number of unduplicated youth served monthly* : 137 Average number of unduplicated adults served monthly *: 0 Output #2: Output #4: Number of unduplicated youth served during the fiscal year * *: 347 Number of unduplicated adults served during the fiscal year * *: 0 Calculate the cost of the overall program per youth (Cost per = $Contract amount /# youth served annually.): $216.14 Please fill in the following chart to explain how you will reach your target outputs during the fiscal year. If clients will be served only in individual or group services, add the Annual Outputs for troth services and enter the sum above. On the other hand, if clients will be served by BOTH individual AND group services, the annual outputs should be identical and that number should be entered above. Be sure to include all services that will be provided. Copy and paste multiple rows as needed. Community Youth Development Program FY 2011 Subcontractor Plan of Operation .`4.,- i %.- " l z4 - s ......ni,x i; a �-- - � F — ti`y n�.Gu- .� r7: v � iiiks `" ,74:27-'02141 �°�. 'II"- i0- �y, �e' 4 Fiscal Agent/Primary Contractor: City of Corpus Christi Subcontractor Name: SERCO of Texas Total CYD Funding Amount: $100,000 Program Name: SERCO Career Program �� r '$� .��e Name: - .�,,- ef. Title: ' E : =,_s � x -, e..s- % ar „..cr.,.�.� 4,!�r�° -mail: . Phone Number: Nancy Bonilla Special Projects Manager Nancy bon illaacoastalworksource.com 361- 903 -7893 Address: 555 N. Carancahua, Ste 900, Corpus Christi, Texas 78401 Contract Period: From: 09/01/2010 (Inclusive Dates of Service): Same period To: 08/31/2011 as contract To: Funding Priority(ies): # 2 Life Skills, #3 Recreational Programs, and #4 Job Skills Yes: A No: • If not, From: All addresses (locations) where services will be provided, (please use full address): 1. Carroll High School, 5301 Weber, Corpus Christi, TX 78411 2. Moody High School, 1818 Trojan Dr., Corpus Christi, TX 78416 4. South Park Middle School, 3001 McArdle Rd., Corpus Christi, TX 78415 5. Baker Middle School, 3445 Pecan St., Corpus Christi, TX 78411 6. Tom Browne Middle School, 4301 Schanen Blvd., Corpus Christi, TX 78413 7. Central Park Elementary School, 3602 McArdle, Corpus Christi, TX 78415 8. Lexington Elementary School, 2901 McArdle, Corpus Christi, TX 78415 9. John Paul 11 High School, 3036 Saratoga, Corpus Christi, TX 78415 10. Bishop Garriga Middle School, 3114 Saratoga, Corpus Christi, TX 78415 116114' E. ' Output #1: Average number of unduplicated youth served monthly* : 167 Output #2: Number of unduplicated youth served during the fiscal year * *: 839 Output #3: Average number of unduplicated adults served monthly *: Output #4: Number of unduplicated adults served during the fiscal year *": 0 0 Calculate the cost of the overall program per youth (Cost per = $Contract amount /# youth served annually.): $119.19 Please fill in the following chart to explain how you will reach your target outputs during the fiscal year. If clients will be served only in individual or group services, add the Annual Outputs for both services and enter the sum above. On the other hand, if clients will be served by BOTH individual AND group services, the annual outputs should be identical and that number should be entered above. Be sure to include all services that will be provided. Copy and paste multiple rows as needed. 6 AGENDA MEMORANDUM City Council Action Date: October 19, 2010 AGENDA ITEM: Item A: RESOLUTION AUTHORIZING THE CITY MANAGER OR DESIGNEE TO ACCEPT A GRANT OF $22,500 FROM THE TEXAS DEPARTMENT OF STATE HEALTH SERVICES TO PROVIDE LABORATORY SERVICES FOR THE ANALYSIS OF BAY WATER SAMPLES AND TO EXECUTE ALL RELATED DOCUMENTS; AND RATIFYING ACCEPTANCE OF THE GRANT AGREEMENT TO BEGIN SEPTEMBER 1, 2010. Item B: ORDINANCE APPROPRIATING A GRANT OF $22,500 FROM THE TEXAS DEPARTMENT OF STATE HEALTH SERVICES IN THE NO. 1066 HEALTH GRANTS FUND TO PROVIDE LABORATORY SERVICES FOR THE ANALYSIS OF BAY WATER SAMPLES; AND DECLARING AN EMERGENCY. ISSUE: The Department of State Health Services (DSHS) has awarded a grant in the amount of $22,500 to provide funding for laboratory services for the analysis of bay water samples. The contract provides the Health District with financial assistance for expenses to support the analysis of marine water for the Seafood Safety Division of DSHS. The contract period is from September 1, 2010 through August 31, 2011 REQUIRED COUNCIL ACTION: Acceptance of the grant and appropriation of funds. PREVIOUS COUNCIL ACTION: Council approved funding FY09 -10. FUNDING: There is no match funding. CONCLUSION AND RECOMMENDATION: Staff recommends approval of the resolution and ordinance as presented. Annette Rodriguez, Director of Public Health 361 826- /205xas.com BACKGROUND INFORMATION The laboratory at the Corpus Christi - Nueces County Public Health District ( "CCNCPHD ") is certified by the Food and Drug Administration to perform analysis of marine water for the Seafood Safety Division of the DSHS. These analysis are performed on marine samples procured by personnel employed by the Seafood Safety Division from areas of active shellfish, primarily oyster, harvesting for commercial sales. The results of the laboratory analysis indicate whether or not levels of bacteria in the water from which the oysters are harvested are within the limits of safety for human consumption. For performing the analysis, the CCNCPHD laboratory will be paid $25.00 per sample under an annual contract that cannot exceed $22,500 in reimbursement. No matching funds are required A RESOLUTION AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO ACCEPT A GRANT OF $22,500 FROM THE TEXAS DEPARTMENT OF STATE HEALTH SERVICES TO PROVIDE LABORATORY SERVICES FOR THE ANALYSIS OF BAY WATER SAMPLES AND TO EXECUTE ALL RELATED DOCUMENTS; AND RATIFYING ACCEPTANCE OF THE GRANT AGREEMENT TO BEGIN SEPTEMBER 1, 2010. BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF CORPUS CHRISTI, TEXAS, THAT: SECTION 1. The City Manager or his designee is authorized to accept a grant of $22,500 from the Texas Department of State Health Services to provide laboratory services for the analysis of bay water samples and to execute all related documents. Furthermore, the City Council ratifies acceptance of the grant agreement to begin September 1, 2010. ATTEST: Armando Chapa City Secretary APPROVED: September 10, 2010 Eliza, th R. Handley Assi ant City Attorney for the City Attorney EHres277 --75 -- CITY OF CORPUS CHRISTI Joe Adame Mayor Corpus Christi, Texas day of , 2010 The above resolution was passed by the following vote: Joe Adame Chris N. Adler Brent Chesney Larry Elizondo, Sr. Kevin Kieschnick Priscilla G. Leal John E. Marez Nelda Martinez Mark Scott EHres277 —76— AN ORDINANCE APPROPRIATING A GRANT OF $22,500 FROM THE TEXAS DEPARTMENT OF STATE HEALTH SERVICES IN THE NO. 1066 HEALTH GRANTS FUND TO PROVIDE LABORATORY SERVICES FOR THE ANALYSIS OF BAY WATER SAMPLES; AND DECLARING AN EMERGENCY. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF CORPUS CHRISTI, TEXAS, THAT: SECTION 1. Grant funding in the amount of $22,500 from the Texas Department of State Health Services is appropriated in the No. 1066 Health Grants Fund to provide laboratory services for the analysis of bay water samples. SECTION 2. Upon the written request of the Mayor or five Council members, copy attached, the City Council; (1) finds and declares an emergency due to the need for immediate action necessary for the efficient and effective administration of City affairs, and (2) suspends the Charter rule that requires consideration of and voting upon ordinances at two regular meetings so that this ordinance is passed and takes effect upon first reading as an emergency measure on this the day of , 2010. ATTEST: Armando Chapa City Secretary APPROVED: September 10, 2010 tl r Eliza% = h R. Hundley Assi ant City Attorney for the City Attorney EHord31 7 -77- CITY OF CORPUS CHRISTI Joe Adame Mayor Corpus Christi, Texas day of , 2010 TO THE MEMBERS OF THE CITY COUNCIL Corpus Christi, Texas For the reasons set forth in the emergency clause of the foregoing ordinance an emergency exists requiring suspension of the Charter rule as to consideration and voting upon ordinances at two regular meetings: l /we, therefore, request that you suspend said Charter rule and pass this ordinance finally on the date it is introduced, or at the present meeting of the City Council. Respectfully, Respectfully, Council Members Joe Adame Mayor The above ordinance was passed by the following vote: Joe Adame Chris N. Adler Brent Chesney Larry Elizondo, Sr. Kevin Kieschnick Priscilla G. Leal John E. Marez Nelda Martinez Mark Scott EHoord317 —78-- 9 AGENDA MEMORANDUM City Council Action Date: October 12, 2010 SUBJECT: Oso Water Reclamation Plant Process Improvements Belt Filter Press Building Replacement Project No. 7423 / CIP No. WW 12 -- AMENDMENT NO. 2 AGENDA ITEM: Motion authorizing the City Manager or his designee to execute Amendment No. 2 to the Contract for Professional Services with B. Harman Engineering, LLC of Corpus Christi, Texas in the amount of $71,701 for a total restated fee of $393,334 for the Oso Water Reclamation Plant Process Improvements, Belt Filter Press Building Replacement project. ISSUE: The existing Sludge Dewatering Building was constructed as part of the Oso Water Reclamation Plant (Oso WRP) expansion in 1981. Since that time, the sludge dewatering capacity required at the plant has increased and the current building needs to be replaced with a larger, more efficient facility. The two existing belt filter presses have become unreliable and even when working at their full capacity, it is difficult to maintain adequate 'rates of removal of sludge from the plant. A new Sludge Dewatering Building will be constructed with three belt filter presses and space for a fourth filter press which can be installed once the plant reaches its design capacity. This project was originally designed for three belt filter presses. However, the Texas Commission on Environmental Quality has proposed a new permitforthe Oso WRP which will require the removal of ammonia. Consequently, the treatment plant will be generating more sludge and four 2 -meter wide belt filter presses will be required to process The sludge. Amendment No. 2 to the design contract is needed to accommodate the increase in the project scope. FUNDING: Funding is available from the Wastewater Capital Improvement Budget FY 2010. RECOMMENDATION: Staff recommends approval of the motion as presented. Foster Crowell Director of Wastewater Services 361/826-1801 fosters@ cctexas . co m Pete Anaya, P.E. Director of Engineering Services 3611826 -3781 petean @cctexas.com Additional Support Material: Exhibit "A" Agenda Background Information Exhibit "B" Prior Project Actions Exhibit "C" Contract Summary Exhibit "D" Project Budget Exhibit "E" Location Map HA HOMEARachelieiGEN1Was [ewaferh7423 -0WRP Batt Filter Press Bidg\Amd. No_281nda Memo.doc AGENDA BACKGROUND INFORMATION SUBJECT: Oso Water Reclamation Plant Process Improvements Belt Filter Press Building Replacement Project No. 74231 CIP No. WW 12 - AMENDMENT NO. 2 PROJECT DESCRIPTION: The proposed project includes the construction of a new 5,000 square foot sludge dewatering building. It will be a 30 -foot tall concrete building with two 19' x 18' bays with steel roll up doors. The mechanical equipment will consist of three (3), two (2) meter belt filter presses with the capability to add a fourth in the future, sludge hoppers, polymer batch mixing system, polymer feed system, with all piping and appurtenances. The electrical work will consist of new power supply from feeder #2, motor control center, electrical lighting, controls, conduits and wiring of equipment. Additionally, the scope will include replacement of two (2) sludge pumps with motors and new piping for post - thickened sludge complete with new electrical controls and wiring. AMENDMENT NO. 2 DESCRIPTION: The consultant, B. Harman Engineering, LLC, will redesign the sludge processing building to accommodate the requirement to have four belt filter presses as opposed to three. This change in scope will require resizing the building, new architectural layouts, structural, electrical and mechanical design for the new building and for the pump station. The drawings for plant site utilities and pavement design will remain the same and will not require any modifications except for the area around the building. Site electrical design will change as the source of power may change because of added pump, belt filter press and winch. The total amount for Amendment No. 2 is $71,701.00. CONTRACT SUMMARY /FEE: A contract summary and fee is attached as Exhibit "C". FUTURE COUNCIL ACTION: Approval of a construction contract to complete the project is required. H: 4HOME1ReehellelGENlWastewater17423 -0WRP Belt Filter Press BIdglAmd. No. 21Agende Beekgraund.doe -82- EXHIBIT "A" Pagel oft PRIOR PROJECT ACTIONS SUBJECT: Oso Water Reclamation Plant Process Improvements Belt Filter Press Building Replacement Project No. 7423 / CTP No. WW 12 -- AMENDMENT NO. 2 PRIOR COUNCIL ACTION: 1. April 21, 2009 - Motion authorizing the City Manager, or his designee, to execute a Contract for Professional Services with B. Harman Engineering, LLC of Corpus Christi, Texas in the amount of $271,702 for the Oso Water Reclamation Plant Process Improvements, Belt Filter Press Building Replacement Project. (Motion No. 2009 -094) 2. December 15, 2009 - Ordinance approving the FY 2010 Capital Budget and Capital Improvement Planning Guide in the amount of $202,877,800. (Ordinance No. 028449) PRIOR ADMINISTRATIVE ACTION: 1. November 22, 2009 - Administrative approval of an Agreement for Geotechnical Engineering Testing Services with Arias & Associates Inc. of Corpus Christi, Texas, in the amount of $4,500 for Oso Water Reclamation Plant Process Improvements Belt Filter Press Building Replacement. 2. December 14, 2009 — Administrative approval of Amendment No. 1 to the Contract for Professional Services with B. Harman Engineering, LLC of Corpus Christi, Texas in the amount of $49,931 for a total restated fee of $321,633 for the Oso Water Reclamation Plant Process Improvements, Belt Filter Press Building Replacement Project for additional preliminary phase, design phase, topographic survey and hydro - excavation services to accommodate a change in scope of the design of the Belt Filter Press Building project, including a revised location of the building site and design of a new Sludge Pump Station and new odor control system for the Sludge Dewatering Building as well as additional scope modifications. Ha HOME4Rachelle4GENlWastewe1er47423 (7384) -OWRP Belt Filter Press BldglArdd Bo/Prior Project Actions,doc EXHIBIT "B" Page 1 of 1 CONTRACT SUMMARY SUBJECT: Oso Water Reclamation Plant Process Improvements Belt Filter Press Building Replacement Project No. 7423 / CIP No. WW 12 — AMENDMENT NO. 2 Amendment No. 2 proposes to redesign the sludge processing building to accommodate the requirement to have four belt filter presses as opposed to three. This change in scope will require resizing the building, new architectural layouts, structural, electrical and mechanical design for the new building and for the pump station. The drawings for plant site utilities and pavement design will remain the same and will not require any modifications except for the area around the building. Site electrical design will change as the source of power may change because of added pump, belt filter press and winch. 2. SCOPE OF SERVICES The A/E hereby agrees, at its own expense, to perform professional services necessary to review and prepare plans, specifications, and bid and contract documents. In addition, NE will provide monthly status updates (project progress or delays, gantt charts presented with monthly invoices) and provide contract administration services, as described in Exhibit "A" and "A-1", to complete the project. 3. SCHEDULE DAY DATE ACTIVITY Wednesday May 15, 2009 Begin Preliminary Phase Monday Sept 14, 2009 Begin Design Phase Friday December 4, 2009 Interim Submittal Friday December 18, 2009 City Review Friday December 3, 2010 Pre -Final Submittal Friday December 17, 2010 City Review Friday January 14, 2011 Final Submittal Monday (2) January 23 & January 30, 2011 Advertise for Bids Wednesday February 2, 2011 Pre -Bid Conference Wednesday February 9, 2011 Receive Bids Monday April 4, 2011 Begin Construction Weekday April 4, 2012 Construction Completion H: 4HOMEIRecheee4GEN4Westewater47423 -0WRP Belt Filter Press BIdg4Amd. N. 24Centrecl Summary.doc —84— EXHIBIT "C" Page 1 of 2 4. FEES The estimated cost of construction for Oso Water Reclamation Plant Process Improvements Belt Filter Press Building Replacement is $5,812,978. The basic services fee proposal for this project (including Amendment Nos. 1 and 2) is $337,240. Therefore, the percentage of basic engineering services cost to construction cost is 5.8 %. 1:11OME1 RecheiielGEN1Wastewater17423 -0WRP Best Filter Press BIdgVkmd. No, 21Contract Summary.doc _S5_ EXHIBIT "C" Page 2 of 2 ORIGINAL CONTRACT AMD. NO. 1 AMD. NO. 2 TOTAL BASIC SERVICES 1 Preliminary Phase $28,626.00 $1,100.00 $0.00 $29,726.00 2 Design Phase $171,787.00 $36,461.00 $71,701.00 $279,949.00 3 Bid Phase $5,210.00 $0.00 $0.00 $5,210.00 4 Construction Phase $22,355.00 $0.00 $0.00 $22,355.00 Subtotal Basic Services $227,978.00 $37,561.00 $71,701.00 $337,240.00 ADDITIONAL SERVICES 1 Permitting $10,340.00 $0.00 $0.00 $10,340.00 2 Start -Up $888.00 $0.00 $0.00 $888.00 3 Construction Observation $27,300.00 $0.00 $0.00 $27,300.00 4 Warranty Phase $2,316.00 $0.00 $0.00 $2,316.00 5 Survey for Equipment $2,880.00 $0.00 $0.00 $2,880.00 6 Topographic Survey $0.00 $7,950.00 $0.00 $7,950.00 7 Hydro - Excavation $0.00 $4,420.00 $0.00 $4,420.00 Subtotal Additional Services $43,724.00 $12,370.00 $0.00 $56,094.00 TOTAL AUTHORIZED FEE $271,702.00 $49,931.00, $71,701.00 $393,334.00 The estimated cost of construction for Oso Water Reclamation Plant Process Improvements Belt Filter Press Building Replacement is $5,812,978. The basic services fee proposal for this project (including Amendment Nos. 1 and 2) is $337,240. Therefore, the percentage of basic engineering services cost to construction cost is 5.8 %. 1:11OME1 RecheiielGEN1Wastewater17423 -0WRP Best Filter Press BIdgVkmd. No, 21Contract Summary.doc _S5_ EXHIBIT "C" Page 2 of 2 PROJECT BUDGET OSO WATER RECLAMATION PLANT PROCESS IMPROVEMENTS BELT FILTER PRESS BUILDING REPLACEMENT Project No. 7423 October 12, 2010 FUNDS AVAILABLE: Wastewater CIP FY 2010 Previous Years CIP FUNDS REQUIRED: Construction Estimate Contingencies Estimate Consultant Fees: Consultant - B. Harman Engineering, LLC Original Contract (Approved 4- 21 -09): $271,702.00 Amendment No. 1 (Approved 12- 14 -09): $49,931.00 Amendment No. 2 (This Contract): $71,701.00 Testing - (Geotechnical) - Arias & Associates Inc. Testing - (Construction Materials - TBD) $1,350,000.00 $271,700.00 TOTAL $1,621,700.00 Reimbursements: Contract Administration (Contract Preparation /Award /Admin) Engineering Services (Project MgtlConstr Mgt/Traffic Mgt) Construction Observation Services - included in Consultant Services Finance Issuance Misc. (Printing, Advertising, etc.) TOTAL Future CIP Funds to be Requested $5,812,978.00 $581,297.80 $393,334.00 $4,500.00 $87,195.00 $130,792.00 $203,454.00 $0.00 $72,662.00 $29,065.00 $7,315,277.80 $5,750,000.00 ESTIMATED PROJECT BUDGET BALANCE $56,422.20 EXHIBIT "V Page 1 of 1 \Mproject \councilexhibits \exh7423. dwg Oso Water Reclamation Plant Process Improvements, Belt Filter Press Building Replacement CITY COUNCIL EXHIBIT CITY OF CORPUS CHRISTI, TEXAS DEPARTMENT OF ENGINEERING SERVICES PAGE: loft DATE: 09/17/2010 ■ - ■ ■ ■ ■ ■ -87- 10 AGENDA MEMORANDUM Citv Council Action Date: October 12, 2010 SUBJECT :, Corban Townhomes Looping Water Main Improvements (Project No. E10032) AGENDA ITEM: Motion authorizing the City Manager, or his designee, to execute a construction contract with Bridges Specialties, Inc. of Sandia, Texas in the amount of $158,776.88 for Corban Townhomes Looping Water Main Improvements for the Base Bid. (Water CIP) ISSUE: The Corpus Christi Housing Authority is planning a low - income townhome project on a previously undeveloped tract of land and the redevelopment of the existing facilities adjacent to the property in future years. This property required surveying and platting. Platting requirements created the need to provide a public water distribution main along the Port Avenue frontage that will comply with current Water Department Standards. This project will provide for the construction of an 8 -inch water line that will serve the Corban Townhomes development. FUNDING: Funding is available from the Water Capital Improvement Budget FY 2010. RECOMMENDATION: Staff recommends approval of the motion as presented. Gustavo Gonzalez, P.E. Director of Water ' - rvices 361 -826 -1874 gustavogo©cctexas.com Additional Support Material: Exhibit "A" Background Information Exhibit "B" Prior Actions Exhibit "C" Bid Tabulation Exhibit "D" Project Budget Exhibit "E" Location Map Pete Anaya, P.E. Director of Engineering Services 361- 826 -3781 petean @cctexas.com H :1HON1Fi1Ke11yOSGENIWATERIWalor Symem1E10032- Corban Townhomes Looping Water Mein LnprovementslConatruction12 AGENDA MEMO.doc 91 AGENDA BACKGROUND INFORMATION SUBJECT: Corban Townhomes Looping Water Main Improvements (Project No. E10032) PROJECT DESCRIPTION: The project consists of approximately 1 ,700 feet of 8 -inch water line work including 1,150 feet of direct bury C900 PVC water line and 550 feet of directional (guided) boring using restrained joint C900 PVC pipe. The project also includes utility adjustment, excavation and backfilling, dewatering, concrete sidewalk, pavement repair, traffic control and miscellaneous items of work required to complete the project. CONTRACT TERMS: The project is estimated to require 60 calendar days, with completion anticipated in January 2011. BID INFORMATION: On September 8, 2010, the City received proposals from five (5) bidders (see Exhibit "C" Tabulation of Bids). The bids range from $158,776.88 to $256,207.00 for the Base Bid. The estimated cost of construction is $156,148.00 for the Base Bid. RECOMMENDATION: The City's consultant, Urban Engineering and City staff recommend a contract be awarded to Bridges Specialties, Inc. in the amount of $158,776.88 for Corban Townhomes Looping Water Main Improvements for the Base Bid. Bridges Specialties, Inc. has successfully completed several City projects including: 1. Water Lab Pre - engineered Storage Building -2004 (Project No. 8501) 2. Van Galan Ditch Phase 1 — Concrete Lined Channel Rehabilitation (Project No. 2211) PROJECT BACKGROUND: The Corpus Christi Housing Authority is planning a low- income townhome project on a previously undeveloped tract of land and the redevelopment of the existing facilities adjacent to the property in future years. As part of this process the property required surveying and platting in order the receive City services. Although the existing townhome project dates back several years, the property was never platted. Platting requirements created the need to provide a public water distribution main along the Port Avenue frontage to comply with current Water Department Standards despite the fact that the existing development was already served by City water. This requirement was not anticipated by the Housing Authority. In addition, the requirement that the water line be constructed and plat recorded prior to development of the new townhomes placed another unforeseen burden on the project due to the need to acquire time limited grants. The City's water distribution system has over 2,000 dead end water lines. In many instances, these dead end lines contribute to reduce water quality issues. Water line looping projects are identified and prioritized and will implement specific CIP improvement projects in a phased design and construction approach to determine dead end lines with the most severe water aging problem and then install additional pipe to reduce the dead ends and improve water quality to residents. HA HOME System1EI0032- Corban Townhomes Looping Waterlrfa9 2provements1Consttuctionl3 AGENDA BACKGROUND.don EXHIBIT "A" Pale 1 of 1 PRIOR PROJECT ACTIONS SUBJECT: Corban Townhomes Looping Water Main Improvements (Project No. E10032) PRIOR COUNCIL ACTION: 1. December 15. 2009- Ordinance approving the FY 2010 Capital Budget and Capital Improvement Planning Guide in the amount of $202,877,800. (Ordinance No. 028449) PRIOR ADMINISTRATIVE ACTION: 1. April 8. 2010 — Administrative approval of a Small Agreement for Architect/Engineer Consultant Services with Urban Engineering in the amount of $17,500 for Corban Townhomes Looping Water Main Improvements. H:1HO2ARICe11yO \GENIWATffit \Water Systcm1E10032- Corban Townhomes Looping Water Meta Improvements PRIOR ACrIONS4oc —93— EXHIBIT "B" Page 1 of 1 -94- i o 1 0 E 0 0 d 0 64 o N N} ri 1- 69 $164,936.00 $5,000.00 $10,000.00 $0.60 O 0 O 0 N 4s , 0 O r 6Q 00'0054$ 00'000'0IS 00'000'9$ $3,740.001 $581.50 $164,166.50 O O 1. 6 4, 0 (OD o 64 d d9 0 140 ti pi 64 oo O C] 0 69 8 o° 0 0 0 Q '- 6n- tor, 01 too rl r 69 1 $158,776.88 J aI Iuyes 117 Sandia, UNIT PRICE $29.00 $1,046.00 $654.00 $791.00 $678.00 $4,402.00 $4,284.00 $704.00 $80.21 $734.50 $8.00 as 00r000'OI.S oo'000'g$ r 11 to pp to 0 - co co J 'TOTAL BASE BID (Items A -1 through A -16) 0 10 • CO a- 'Traffic Control Allowance (MANDATORY ALLOWANCE) Unanticipated Utility Allowance (MANDATORY ALLOWANCE) Seeding and Fertilizing 'SWPPP Items Trench Safety N a c, gt 1(i (D a aaa -94- —95-r C� x cs a O W 2 R 0 O N O .L� r O C C O o E Th O V IC 0 E O _co C as a3 .c as U •8 'E v -12 c▪ i • Csi 1 m c4 C L �} Q I O i C i 4!•) • 64 F O O 0 O r 64 0 p Q in r es, 0 O 8 in (}) 0 �C c 429 $256,207.00 ■ Q 1 O O O 10 t $10,000.001 O O 64 1 00'005'£$ 0 0 te • O 0 u) to O 0 o r 69 p S ti r) to $4,oOo ooJ $2,326.00 $184,484.00 0 O 64 p0 o ° u°0, °q0 0 a TOTAL BASE BID (Items A -1 through A -16) UNIT LF EA EA EA EA LS EA EA IF EA SF J J V).J r r 7500 1 1163 Traffic Control Allowance (MANDATORY ALLOWANCE) Unanticipated Utility Allowance (MANDATORY ALLOWANCE) Seeding and Fertilizing SWPPP Items A -16 (Trench Safety N Q M 10 QQ Q —95-r C� x cs a O W 2 R 0 O N O .L� r O C C O o E Th O V IC 0 E O _co C as a3 .c as U •8 'E v -12 c▪ i • Csi 1 m c4 C L �} PROJECT BUDGET CORBAN TOWNHOMES LOOPING WATER MAIN IMPROVEMENTS Project No. E10032 October 12, 2010 FUNDS AVAILABLE: Water CIP $400,000.00 FUNDS REQUIRED: Construction (Bridges Specialties, Inc.) $158,766.88 Contingencies 15,876.69 Consultant Fees: Consultant,Urban Engineering $17,500.00 Estimated Testing $3,175.34 Reimbursements: Contract Administration (Contract Preparation /AwardIAdmin) $3,572.25 Engineering Services (Project Mgt/Constr Mgt/Traffic Mgt) 5,556.84 Construction Inspection 5,556.84 Finance Issuance 1,984.59 Misc. (Printing, Advertising, etc.) 793.83 TOTAL $212,783.26 FUNDS REMAINING $187,216.74 * Remaining funds will be used for other looping water line projects completed in -house using Water Department labor to economize on cost. -96- \Mproject \councilexhibits \exhEl 0032d wg PROJECT #E10032 LOCATION MAP NOT TO SCALE EXHIBIT "E" CORBAN TOWNHOMES LOOPING WATER MAIN IMPROVEMENTS CITY COUNCIL EXHIBIT CITY OF CORPUS CHRISTI, TEXAS DEPARTMENT OF ENGINEERING SERVICES PAGE: 1 of 1 DATE 10/12/2010 UMW OMNI MI. WWII 1=. INIIM 9! 11 CITY COUNCIL AGENDA MEMORANDUM Council Action Date: October 12, 2010 AGENDA ITEM: Motion authorizing the City Manager or his designee to execute a Real Estate Sales Contract with Gregory H. Smith, et al. for the acquisition of Parcels 1 and 1- TCE in the total amount of $331,112 for acquisition of fee simple property rights to 7.10 acres of land for drainage purposes, 3.707 acres for Temporary Construction Easement, new cattle fencing and other minor improvements, including $3,000 for closing costs, all necessary for the Flour Bluff Drive, Phase 1, S.P.I.D, to Graham Road Street Improvements, Project #6498, Bond 2008 and for other municipal purposes. ISSUE: On April 28, 2009, City Council approved a design contract for two phases of Flour Bluff Drive street improvements extending from South Padre Island Drive to Don Patricio Road. This Bond 2008 project requires the construction of a new offsite drainage outfall to help alleviate flooding problems in the Flour Bluff Drive /Compton Street area. The offsite drainage outfall will require the acquisition of fee simple rights to 7.10 acres of land from property owned by the Smith family. The outfall will begin at Flour Bluff Drive and extend in a northwesterly direction approximately 3,027 linear feet to the Cayo Del Oso. The outfall will be constructed within a 140 foot wide drainage right -of -way and will consist of 935 feet of 5'X8' reinforced concrete boxes beginning at Flour Bluff Drive. The closed box system will then will convert to an open drainage system and extend to the Cayo del Oso. City staff has negotiated with the landowners for the purchase of land and improvements in the total amount of $328,112. An additional amount of $3,000 estimated for closing costs will be needed. Expenditures for land acquisition which exceed $50,000 require City Council approval. FUNDING: 2008 Bond Fund, Streets: 550701 -3546- 00000 - 170536 Amount Requested: $331,112 RECOMMENDATION: Approval of the motion as presented. Pedro Anaya, P. E. Director of Engineering Services petean fa7cctexas.com 361- 826 -3781 Attachments: Exhibit A. Exhibit B. Exhibit C. Background Information Location Map Contract Summary Ii:IHOME\EUSEBIOGIGEN'Agenda ItemsTlour Bluff St. Imps. 6498. Smith\Agenda Memorandum.doc —101— BACKGROUND INFORMATION SUBJECT: Flour Bluff Drive Street Improvement Project, Phase 1, Project No. 6498 Acquisition of Parcel 1 and 1 TCE, Gregory H. Smith, el al PROJECT BACKGROUND: On Tuesday, November 4, 2008, the City of Corpus Christi held an election under Bond Issue 2008 to consider a number of ballot propositions to fund major capital improvements for the community. The Bond Issue 2008 package included $153 million in projects to be funded from ad valorem property taxes in Street, Public Health and Safety, Public Facilities, Parks and Recreation, and Bayfront Master Plan projects. The proposed projects target the City's most immediate needs to improve existing physical facilities, provide for growth, and protect the City's investment in its infrastructure. One of the Bond 2008 Street projects included the reconstruction of Flour Bluff Drive from South Padre Island Drive (SPID) southward to Don Patricio Road. This section of road will be constructed in two phases. Phase 1, which will extend from SPID to Graham Road, will require the construction of a new offsite drainage outfall to help alleviate flooding problems in this area. The drainage system will begin at Flour Bluff Drive and extend northwesterly within a 140 foot wide drainage right-of-way for approximately 3,027 linear feet to the Cayo Del Oso. The drainage system will consist of approximately 935 feet of underground 5'X8' reinforced concrete boxes beginning at Flour Bluff Drive and then transition to an open drainage channel ending at the Cayo del Oso. PARCEL DESCRIPTION: Parcel 1 and 1 -TCE are located perpendicular to Flour Bluff Drive approximately 1700 feet southwest of the SPID and Flour Bluff Drive intersection as shown on the attached Exhibit C. The fee simple taking contains 7.10 acres and the temporary construction easement contains 3.707 acres. The subject property, from which the taking is located, contains 34.68 acres and is currently zoned RE, Residential Estate District. PARCEL NEGOTIATIONS: American Appraisers, Inc. was contracted by the Smith family for valuation of the parcels. An appraisal report was submitted to the City in the amount of $317,899 for both parcels. The value was determined using a combination of residential use in the back acreage and commercial use along the front of the property. The subject property is currently kept in agricultural use with cattle ranching. A new cattle fence will be needed to separate the new drainage channel from the remainder of the property. The bid amount of $8,000 is being paid to the land owner to construct a new agricultural fence along the new property line. An additional amount of $2,213 was negotiated for other minor improvements and damages to the grazing area within the temporary construction easement area. The landowner has agreed to the total amount of $328,112 for the parcels and the improvements and has executed a Real Estate Sales Contract. The contract now requires the signature by the City Manager or his designee. At the request of the owner, the contract will be escrowed at San Jacinto Title Company — Padre Island. —102 — EXHIBIT A 1 of2 PRIOR COUNCIL ACTION: 1. November 13, 2008 — Ordinance canvassing returns and declaring results of the Special Election held on November 4, 2008 in the City of Corpus Christi for the adoption of seven bond propositions and approval of a proposition to restrict vehicular access to and on the portion of the Gulf of Mexico Beach seaward of the concrete portion of the Padre Island Seawall. (Ordinance No. 027939) 2. November 18, 2008 - Resolution expressing official intent to reimburse costs of the 2008 Bond Capital Improvements Projects in an amount not to exceed $152,645,000 for improvements to Streets, Fire Department Facilities, Police Department Facilities, Libraries, Museums, Parks and Recreation Facilities, and Bayfront Development. (Resolution No. 027950) 3. December 16, 2008 - Ordinance approving the FY 2009 Capital Budget and Capital Improvement Planning Guide in the amount of $163,391,300. (Ordinance No. 028006) 4. April 28, 2009 - Motion authorizing the City Manager or his designee to execute a Contract for Professional Services with Urban Engineering of Corpus Christi, Texas, in the amount of $1,256,500 for design, bid and construction phase services for Flour Bluff Drive (Bond Issue 2008): (Motion No. 2009 -117) ➢ Flour Bluff Drive, Phase 1 from South Padre Island Drive to Graham Road ➢ Flour Bluff Drive, Phase 2 from Graham Road to Don Patricio 5. August 18, 2009 - Motion authorizing the City Manager or his designee to execute Amendment No. 1 to the Contract for Professional Services with Urban Engineering of Corpus Christi, Texas, in the amount of $82,500 for a total restated fee of $1,339,000 for design of the revised offsite drainage improvements for Flour Bluff Drive, Phase 1 from South Padre Island Drive to Graham Road. (Bond Issue 2008): (Motion No. 2009 -230) FUTURE COUNCIL ACTION: 1. Authorize the acquisition of parcels whose cost exceeds $50,000 and, 2. Authorize the resolution for Eminent Domain proceedings, if needed, 3. Authorize the payment of any Special Commissioners Award for the condemnation of any parcels. —103— EXHIBIT A 2 of 2 File : \ Mproject \councilexh \exh6488Iand.dwg J�1 TEMPORARY CONSTRUCTION /� EASEMENT (3.707 AC) VICINITY MAP NOT TO SCALE EXHIBIT B FLOUR BLUFF DRIVE PHASE 1 SPID TO GRAHAM PARCEL 1, GREGORY H. SMITH, of al CITY COUNCIL EXHIBIT CITY OF CORPUS CHRISTI, TEXAS DEPARTMENT OF ENGINEERING SERVICES PAGE: 1 of 1 DATE: 8 -27 -2010 1 U4 REAL ESTATE CONTRACT SUMMARY Project No. 6498: Flour Bluff Drive, Phase 1, SPID to Graham Road Parcel No. 1, 1 TCE — Gregory H. Smith, et al This Real Estate Sales Contract is entered into by Gregory H. Smith, Brent H. Smith, Burton D. Smith, and Linda Morehead ( "collectively called SELLER ") and the City of Corpus Christi ( "BUYER ") subject to the following terms and conditions: 1. Real Property and Improvements: Fee simple, surface property rights to a tract of land containing 7.10 acres out of Lots 6 thru 10, Section 41, Flour Bluff & Encinal Farm & Garden Tracts as described by metes and bounds on the attached and incorporated "Exhibit A" and shown on the attached map and incorporated "Exhibit B ", together will all improvements situated on the property. Included is a Temporary Construction Easement containing 3.707 acres also shown on the attached "Exhibit B ". 2. Purchase Price - $328,112 in cash at closing. 3. Title Insurance: Seller to provide title insurance at Seller's expense. A title commitment for title insurance must be delivered to Buyer within 30 days after receipt of the Contract by San Jacinto Title Company, with the title insurance policy to be timely issued after Closing. 4. Warranty Deed and Closing Costs: After securing the title insurance commitment, Seller must execute a General Warranty Deed, drafted in accordance with the provisions of this Contract, that conveys indefeasible title to the Property to Buyer, and Buyer must make the cash payment. Buyer will pay all Closing Costs except costs to cure title, which must be paid by Seller. 5. Property Taxes: All taxes, if any, are to be paid by Seller, up to and including the year 2009. Taxes for 2010, if any, will be prorated between Buyer and Seller. 6. Earnest Money: Buyer agrees to deposit $1,000 Earnest Money at San Jacinto Title Company — Padre Island, which Seller may keep as liquidated damages should Buyer fail to consummate contract as specified, or Seller may seek to enforce specific performance of contract. 7. Restrictions on Title: Buyer accepts title subject to all outstanding restrictive covenants, use restrictions and zoning and regulatory ordinances. EXHIBIT C T OF 3 —105— 8. Time for Performance: This contract is to be closed on or before 90 days from the effective date of the contract. Seller acknowledges that Seller has read the agreement, and it is not binding until approved by the City Council of the City of Corpus Christi and signed by the City Manager within 30 days from the effective date of this contract. Seller's execution of this Contract means that Seller has read and understands that this Contract is not binding on Buyer until approved and accepted by (1) the City of Corpus Christi City Council and executed by the City Manager of the City of Corpus Christi, Texas, or designee and (2) City of Corpus Christi Bond Counsel. Buyer must execute this Contract within 21 days from the date of Seller's execution of this Contract or this Contract is void. 9. Survives Closing: The contract will survive the closing of the sale and delivery of the General Warranty Deed and other conveyance documents. 10. 60 -Day Inspection Period: Buyer shall have sixty days from the date of the contract to perform its due diligence studies on the property. Buyer can void the contract at its discretion if Buyer finds the property unacceptable in any form. 11. Broker's Commission: See item 17. 12. Possession: At closing, the property will be conveyed free of any rights of possession of any third parties, except for valid easements of record. Any possession prior to closing will necessitate a separate written lease agreement between the parties. 13. Seller's Representations and Warranties: Seller represents that it has absolute and unrestricted right, power, and authority to execute and deliver this contract along with the documents to be executed and delivered by Seller in connection with this contract. Seller has no knowledge of any pending litigation, condemnation, or assessment affecting the property. Seller has no knowledge that the property contains hazardous materials, underground tanks, or is not in full compliance with all Environmental laws. To the best of Seller's knowledge Seller has full and complete fee simple title to the property. No person, corporation or other entity has any right or option to the property. Seller has not received any notice from any governmental agency regarding the property's non - compliance with applicable laws, ordinances, regulations, statutes, rules and restrictions relating to the property. 14. Mineral Reservation: The sale of the property is without oil, gas, or mineral rights. 15. Essential: Time is of the essence in closing this transaction. 16. Effective Date: The effective date of this contract is the date in which the contract is fully signed and escrowed, together with the earnest money, with San Jacinto Title Company - Padre Island. EXHIBIT C 20F3 —1 0 6— 17. Addendum: This agreement is further subject to the terms and conditions of the Addendum attached and incorporated as "Exhibit C" which terms and conditions are as follows: A. Seller will be paid $8,000 to erect a new fence along new property line. A portion of this amount will be kept in escrow until the fence is completed and inspected to insure construction is built to specifications. B. Seller will receive all surplus soil excavated from the 7.10 acres acquired by the City. Surplus soil shall be piled at places convenient to the City and designated by the Seller on the Seller's retained land. C. A 30 -inch culvert pipe will be placed within the box section of the underground drainage system to allow the seller future drainage of their property. D. Use of the temporary construction easement will be completed within 12 months of commencement of construction on Seller's property. E. There are no brokers identified by Buyer or Seller, and if any claim for brokerage commissions is made, the Party whose actions form the basis of said claim shall indemnify, defend, and hold the other party wholly and completely harmless from any and all Toss, liability, and expenses relating to such claim. F. Seller may, but is not obligated to, cure Buyer's timely objections within 15 days Seller received the objections. If Seller fails to cure the objections, Buyer may terminate this contract by providing written notice to Seller within 5 days after the time by which Seller must cure the objections. 18. Counterparts: Multiple original copies of the contract may be executed and the original copies assembled together shall constitute one agreement. 1:11-IOMEIEUSEBIOGIGEN1Agenda Items\Flour Bluff St. Imps. 6498. SmithlExhibit C. Contract Summary.doc EXHIBIT C 3OF3 —107— 1I$PARDIENTOF12113E WflRJ G SRFtVW Popov and land Aim:Won Division Md. Na6491 Hoar aliff Drive. Ph .1 Real Estate Sales Contract THE STATE OF TEXAS § KNOW ALL BY THESE ?RESENTS COUNTY OFNUECES $ This Contract is entered into by the following owner(s) collectively called "Seller(s)", Gregory fL Smith, Bunt H. Smith, Burton D. Smith, and Linda Morehead 17746 Gienoak Corpus Christi, Texas 78418 and the C1ty of Corpus Christi, a Texas home rule municipal corporation, P.O. Box 9277, Corpus Christi, Nueces County, Texas 78469.9277 ("Bayer). 1. Property. Seller for the consideration and under the tens set out herein, agrees to convey to Buyer the surface estate only of the property described below together with all rigs privilepo and appurtenances pertaining to the property situated in Nueces County, Texas: A Tract of land containing 7.10 acres out of Lots 6 dun 10, Section 41, Flour Buff & Bncinai Farm & Garden Tracts as described by metes and bounds on the attached and incorporated "Exhibit A" and shown on the attached map and incorporated' Exhibit B ". 2. Purchase Price. S 328,112.00 cash. 3. Title insurance. The Seller must provide, at Buyer's expense, a title insu unce policy that guarantees good and indefeasible tide to the Property, without exceptions to title other than the standard printed exceptions and exceptions pamittedunderthis Contract, and thatwbolly insures and indemnifies Buyer against any dtle defects or adverse claims. A reliable title insurance company or title guaranty company ("Tide Company') must issue the title insurance policy. The title commitment for title insurance must be delivered to Buyerivithin 30 days after receipt of dale Contract by the Tina Company, with the title insurance policy to be timely issued after Closing. 4. Warranty Deed and Closing Cosh. After securing theetidle hvinnmee connmitment, Seller must execute a General Warranty Deed, drafted in aecoidance with the provisions of this Contract, that convoys indefeasible title to the Property to Buyer, and Buyer must make the cash payment. DuyerwIil pay all Closing Costs except costs to cure tide, which must be paid by Seller. 5. Property Taxes. Seller must pay all property taxes incuired on the Property up to and 1 —108— including 2009. All property taxes for the year 2010, if any due and payable or incurred for the year, will be prorated between the Buyer and the Seiler from January 1, 2010 to the date of Closing. The prorated t axes we only an estimate indicated byaTa c C eobtained by the Title Company and the Seller agrees to pay any shortages of property taxes should they occur during the following year. Seller will agree to execute a Tax Proration moment expressly stating this agreement. 6. Earnest Money. Buyer deposits Qpe Thousand Dollars and no cents (51.990.00) with the San Jacinto Title Company — Padre island (Dennis Brewer) as Earnest Money, which will be applied to the balance of the purchase price owing at Closing; Buyer will pay the balance of the purchase price owingatClosing. When the Title Company possesses the executed deed, any other necessary paperwork, and the balance ofthe cash payment, the Title Company will close and finalize the conveyance in accordance with its customary procedure. If Buyer fails to Close on this Contract as set out herein, for any reason other than title defects, Seller is entitled to the Earnest Money as liquidated damages for breach of this Contract. Sella may seek to enforce this Contract by an action for specific perf u' nance. If Seller falls to tender an executed deed conveying the Property in accordance with the tams of this Contract, Buyer may seek to enforce this Contract by an action for specific I 7. Restrictions on Title. Buyer accepts title to the Property subject to all recorded restrictive covenants and usorestrictions, ifany, and all applicable City znningregulatoryorr ances, if any. 8. Thee for Performance. This transaction will be Closed through the Title Company on or before 90 days from the oifective date ofthis Contract. Seller gives Buyer possession ofthe Property by executing the General Warranty Deed. Seller's execution of this Contrast means that Seller Ihas read and understands that this Contract is not binding on Buyer until approved and accepted by the City ofMorpus Chriad City Connell and executed by the City Manager of the City of Corpus Christi, Taw, or designee. Buyer must execute this Contract within 30 days from the data of Seller's execution of this Contract or this Contract is void. 9. Survives Closing. This Contract survives Closing of the sale of the Property and the delivery of the General Warranty Deed and other necessary documents by Seller to Buyer at Closin& and all germs and conditions remain in effect between Seller and Buyer. 10. 60-Day Inspection Period. Buyer shall have sixty (60) days (the "60.Diay Inspection Period') from the effective date ofthe canned hereof to notify Seller of Buyer's election, in Buyer's sole discretion, to cancel this Contract and receive *refund dare Earnest Money in the event that Buyer finds the Property to be unable for any reason. Buyer shall have reasonable access to the Property during all normal business hours and Seller agrees to cooperate with and assist Buyer in Buyer's inspection of the Property. Failure of Buyer to deliver to Seller, within the 60-Day Inspection Period, written notice of Buyer's determination thatthe Property is unacceptable and to terminate Ns Contract shall constitute an election by Buyer to proceed with this Contract and a waiver of Buyer's tight to teminate this Contract on this basis. 2 —109— a. Right of Entry. (1) During the 60-Day Inspection Period, and at Buyer's solo expense, Buyer or Buyees authorized agents shall have the right to enter upon the Property for purpores of making such land surveys, environmental site analysis, engineering studies, wetland studies, gait borings and soil analysis as Buyer may deem necessary. Buyer shall not cause or pmt image: or injury to the Property. Upon termination of this Contract, Buyer shall promptly restore the Property to the condition existing prior to any teats or studies conducted pursuant to this Contract, This obligation shall survive the termination of this Contract, notwithstanding anything to the contrary contained herein. Sailer shall make available fir Buyer's inspection and copying within ten (10) days from the date hereof all reports, studies and tests in Seller's possession with respect to the Property. (2) In connection with Buyer's inspections, studies, and assessments, Buyer must (i) employ only trained and qualified inspectors and assessors; (il) notify Seller, in advance, of when the inspectors or assessors will be on the Property; (m") abide by any reasonable entry ndes or requirements that Seller may require; (v) not intake withexisgng operations or occupants ofthe Property; and (v) restore the Property to its original condition if altered due to inspections, studies, or assemrnents that Buyer completes or causes to be completed. (3) Except for those matters that arise fiom the sole negligence of Seller or Seller's agents, Buyer is responsible for any claim, liability, encumbrance, cause of action, and expense resulting from Buyer's moons, studies, or assts, including any property damage or personal injury. To the extant permitted by law, Bayer, as permitted by Texas fan► will indemnify, hold harmless, and defend Seller and 8ell&s agents against any claim Involving a matter for which Buyer B responsible under this Section. b. Environmental Condition of Property. Definitions. "Ei vlronrnentall aw" shall mean any law relating to environmental conditions and industrial hygiene appllcable to the Property, including without limitation , the Resource Conservation and Recovery Act of 1976, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended by the Superfund Amendments and Reauthorizalion 1986, the Federal Water Pollution Control Act, iheClearAirAct, the Clear Water Act, the Toxic Substances Control Act, the Endangered Species Act, the Safe Drinking Water Act, the Texas Water Code, the Texas Solid Waste Disposal Act, and all similar applicable federal, state and local envlronrnental statutes, ordinances and the regulations, orders and decrees now or hereafter promulgated there der. 'Hazardous Materials" shall mean any pollutant, toxic substance, hazardous waste, hazardous material, hazardous substance, or oil as defined in any 13nvironmenta1 Law existing as of the date hereof. Environmental Audit. Buyer shall have the right to cause an independent environmental consultant chosen by Buyer, in Buyer's solediseretion, to inspect the Property, including but not limited to an Enviromontal Site Analysis ( ESA) Phase I and Phase II, to determine the 3 —110— Initials condition of the Property, the presence of any Hazardous Materials and any apparent violation Of any Environmental Law (the "Environmental Audit) and to deliver a report describing the fmdixtga and conclusions of the Environmental Audit. The cost and expense of the Environmental Audit shall be home by Buyer. If the Environmental Audit reveals, or at any time prior to closing Buyer otherwise becomes aware of the existence of any environmesntal condition or violation of any Environmental Law which Buyer is unwilling to accept or the Seller is w►willing to cure, Buyer shall have the right and option to cancel this Contract and receive a full return of the Earnest Money. 11. Broker Commission. SellesissesponsibIsfeepaynientsfalLinokedsfeesandeommissions See Exhibit C Addendum 12. Possession. At the Closing, the Property will be conveyed free of the rights of possession of any third parties in or to the Property except for valid easements, if any, filed of record and currently in force and of ect. Any possession by Buyer before closing or by Seller after closing that is not authorized by a separate written lease agreement is a landlord - tenant at sufferance relationship between the parties 13. Representations and Warranties. By Seller. In order to induce Buyer to enter into this Conhact, Seller makes the following representations and warranties all of which will be true and correct as of the date hereof and as of the date of closing: Authority; No Conflict. Scllerhes the absolute and =restricted right, power and authority to execute and deliver this Contract and the documents to be executed and delivered by Seller in connection with the closing of the transactions described in this Contract (such documents being collectively referred to heroin as "Seller's Closing Document') and to perform its obligations under this Contract and the Seller's Closing Documents Seller shall present to the Buyer and/or the Tide Company, if necessary, all reasonable evidence of such authority which may be requested by either of them. The execution and delivery of this Contract and Seller's Closing Documents, the consummation of the transactions described herein, and compliance with the terms of this Contract will not conflict with, or constitute a default under, any agreement to which Seller is a party or by which Seller or the Property is bound, or violate any regulation, law, court order, judgment, or decree applicable to Seller or the Property, except as otherwise expressly provided herein. No Litigation or Proceedings. Seller has no knowledge of any pending or threatened litigation, condemnation, or assessment affecting the Property. Bnvironnental Representations. Except as otherwise expressly provided herein, Seller has no knowledge that the Property contains Hazardous Materials (as defined in Section 113(b)), contains any underground storage tanks, or is not in fiJII compliance with all Environmental Laws (as defined in Section 10(b)). Title to Property. To the best of Seller's knowledge, Seller has full and complete fee simple title to the Property, subject only to the liens and encwnbrances, if any, disclosed on the Commitment or Survey to be furnished to Buyer hereunder. 4 —111— has No Options. No parson, corporat ion, or other entity has or, on the date of Clo ing, shall have any right or option to acquire the Property. Compliance. Seller has not received any notice from any governmental agency regarding the Seller's or the Property's non - compliance with applicable laws, ordinances, regulation, statutes, ntles and restrictions relating to the Property. 14. Mineral Reservation The sale of the Property is without minerals. Seller reserves unto itself all of its right, title and interest in and to the ail, gas and other minerals in, on, or under the Property. lfrequired by Buyer, Seller will execute a no- drilling agreement, prepared by Buyer, to ensure that Seller will not construct or operate a well on the Property while exercising its right to recover any subsurface oil, gas, or other minerals. 15. Essential. Time is of the essence in closing this transaction. 16. Effective Date. The effective date of this Real Estate Sales Contract is the date in which the Contract is signadAtar4hoDuyer. Is fully signed and escrowed, together with the Earnest Money, with San Jacinto Title Company - Padre island (the "Escrow Agent "). 17. Addendum. This agreement is further subject to the terms of the Addendum attached hereto arul incorporated herein for all purposes as "Exhibit C". 18. Counterparts: Multiple original copies ofthia contract may be executed, and the execution of this contract may be through the execution by the parties of separate counterparts. All of the original copies otitis contract together shall constitute one agreement, binding on sit of theparties hereto notwithstanding that theparifees hereto may or may not be signatories to the same counterpart. Each of the undersigned parties authorizes the assembly of one or more original copies ofthis contract, such that each suchoriginal copy ofthis contract shallconsist of (1) the body of this contract and (i) counterpart signature pages and aclmowlcdgtnent pages which collectively include all onto: sigma and a ackaowledgmeants of the parties hereto. Each such contract shall constitute one original of this contract. When the context requires, singular nouns and pronouns include the plural. Executed in triplicate, any of which constitutes an original. Exhibit A (Property Metes and Bounds Description), Exhibit B (Property Survey), and Exhibit C (Addendum) are attached and incorporated by reference. Sellers Gregory H. Smith Brent H. Smith Burton D. Smith Linda Morehead 5 —112— THE STATE OF TEXAS § COUNTY OF NUECES § regory H. Smith 1/ This instrument was acknowledged before me on t by Gregory H. Smith. [Seal] TIIE STATE OF TEXAS COUNTY OF NUECES Notary Public in and for the State of Texas § Brent H. Smith 2010 This instrument was acknowledged before me on , 2010 by Brent H. Smith. Notary Public in and for the State ofTexas [Seal] Gregory H. Smith THE STATE OF TEXAS § COUNTY OF NUBCES § This instrument was acknowledged before me on , 2010 by Gregory H. Smith. [Seal] Notary Public in and for the State of Texas a4t.41- JAk--- Brent II. Smith THE STATE OF TEXAS § COUN'T'Y OF NUPS § This instrument was acknowledged before me on ,2010 by Brent H. Smith. Notary Public in and for the State of Texas 6 —114— Burton D. Smith THE STATE OF TEXAS § COUNTY OF NUBCES This instrument was acknowledged before me on , 2010 by Burton D. Smith. [Seal] Notary Public in and for the State of Texas Linda Morehead THE STATE OF TEXAS § COUNTY OF NUECES § This ix tcmrt was acknowledged before me on , 2010 by Linda Morehead. [Seal] Notary Public in and for the State of Texas —115— Burton 1). Smith THE STATES OF TEXAS § COUNTY OF NUECES § This instrument was acknowledged before me on by Burton D. Smith. [Seal] Notary Public in and for the State of Texas 'Lek ( Linda Morehead ,2010 THE STATE OF TEXAS § COUNTY OF NUECES § This instrument was acknowledged before me on , 2010 by Linda Morehead. Notary Public in and for the State of Texas [Seal] Buyer CITY OF CORPUS CHRuSTm, TEXAS 'Angel IL Escobar, City Manager ATTEST: ARMANDO CHAPA, CITY SECRETARY THE STATE OF TEXAS § COUNTY OF NUECES § This instrument was acknowledged before me on 2010 by 'Angel R. Escobar as City Manager for the City of Corpus Christi, aTexas municipal corporation, on behalf of said corporation. Notary Public in and for the State of Texas Ill APPROVED AS TO LEGAL FORM THIS (/'i "" DAY OF Otilid. 2010. FOR THE CITY ATTORNEY v�� Attorney Assistant cnrAttorney HAHOMMROBSRUNGENConiredifi491.Ptoor aduNDriva5infth.doc 8 —117— YR111AN ENGINEERING • Job No. 41120.0000 Mock 24, 2010 Ra May 24 2010 aT'ATE01710LAM COIMIYOFNUE= • kr irod Mood coo olio 6deo 10, &idea 41,KyrBiuhriii BOW liiarad[i4dtsit , atkbisuoowdrdk- VodoaurA, Pen 41thre' 13 ,1tePlliewdrarihikis Coady, !kaki afdliieteflotog kaki hell9 • dNorthol r1bllot Caraamadr5 kahe rook cow otl of 30, Loodostrakettaftlileakr. a hap O&M* (; reoeadid In Vali 9 awl 319 MINI= Cooky,i'ex*teasr * �ae ora nig*hound opdeitad"C1$p n bassi Satoh 6Na' 0 !" nod 03lfiotrad4osoidioh Not olHu akiredSIkdi Ina boa 14141 •211eSaot0.31' het aad - NOS MearmaatSK 130 booktioalt woo, Wart,addetroce0F626136hit wiltiefilftehrrast '0410bgri.Na ' 2r3!'3rbide a&mak of 3,96U0 hut • Mom hook 2E •3Z'26 Wag; smith. aDMwet bleakly adPlorrWa thood,adtstaroea[7nJ9feet for ttio, pomof Begfooki rod kr the aid coma (se mmomeotedu Mad er .ct) disliked oriraf; ` heeB Iron Mem both 33,216 Wart, contkelog dui** aordnvost �°a' o[PleaIDbff Reed. a dank ofi3:Oq�ttaa Ns Tat% North 616I =17• Wirk wi9r tbs andosIt holiday Danis twat of Ierd, a dirmoi of 3m7.Z1 Mt kr ail west mar (co memtmooka as *wad or seO 'Able tarotofLoft Tbaaa, North 32'51'30" lbw, with the =knot bo aadary stills hut afloat oaken of 140.39 deatf br the north court Ow maoemmpWoo Lid or set) deft tract o Thom Beath 61'15'37"But,sid e,whewbeoad , eft& tractofl oad ,editionof199539Betforaaame(aa spa lewd ar at? adds teaat of lard; Uwe, loth 2i't1r 'weet,eodteat g wide doe awilwootbertkay Ma hoot eflru%,adlriaM 012922 fart berg caw (sommomookika Await orod) oftblr mot of Maim Seek 16'19'03" hart. oet id* th �b yd fefi Net *EMU dlraresof12132 foot kra wow Ow moaumosteloa Madores»dikhartofdui lhatae, Seale 61'lrs7" Era, eetskwlo5vdhthe mend bombe, eft* wan efirad, a disarm rd93539 foot to tag Not *[Bs rod oeata birS 7300 km (303,274272 mew Poet) etk I. Notion' G0odrtls8ea_yMosmreai1�130"Gloat CrerdMM- 17,1902,102172 Bed Comd000•1,3�64A2) andSO4 11r Womb Caot +dlaele- 17.131,37419402 dhsk..4374,953.641Rwas mod arcc ofpdafbr u barb edbomb & gawbtp bated on Tom hate Moe Cserdiema *km Ikeda 3roa(NAH03). aramus What ire oedatdtdlamemo,. saatkflra' i4y, la(Nad .l Maass ■tenwyar flolkooks • MAN 4a.,1 1.SAIAZAIt,RP. L.0. thew No. 4900 • CORPUS d411111.Ttt1CAS 70031 wmituebanonecom 11PE New 0145 —118— r1 EXHIBIT A 6,115 -1 1 9- Addendum 1. M part of the purchase price, Seller will be paid $8,000 to erect a new fence along the new property line upon completion ofthe Flour Bluff Drainage Inpmovement project. A sum of $5,000 will be held in escmw by San Jacinto Title Company -- Padre island until such time fence is erected. Once the fence is completed, a representative with the City of Campus Christi will inspect such fence, and if built to specifications, will prepare a letter to San Jacinto Title Company -. Padre Island requesting the release of the escrowed sum og $5,000 to Seller. Specifications offence will consist of a 5 strand barbed wire fencing on T -posts with round treated pine posts placed every 60 feet, 2. Seller will receive all surplus soil not used in the ant. The soil will be piled at places convadent tQ the City and designated by the Seller on the Seller's retailed land outside of the easement areas. The City may use the Seller's existing road to transportthe excess roll to locations specified by Seller. At the completion of construction, the City will restore this mad to the same or better condition as existed prior to construction. 3. A 30 -inch culvert pipe will be placed within the box section of the underground drainage system at a location agreed upon by Buyer and Seller to allow Seller to drain the surface of his property. 4. Initial construction of the easements will be completed within 12 months from the date of commencanent of construed= on the Seller's property. 5. There are no brokers identified in this Contract, and Buyer and Seller each represent that such Party's actions do not provide the basis for any claim for brokerage com- missions with respect to the Property. Should one or more claims for brokerage com- missions be made, the Party whose actions form the basis of each claim shall indemnity, defend, and hold the other Parties wholly and completely harmless from any and all loss, liability, andlor expenses relating to such claim. 6. Seller may, but is not obligated to, cure Buyer's timely objections within 15 days after Seller receives the objections. If Seller fails to cure the objections by the time required,. Buyer may terminate this contract by providing written notice to Seller within 5 days after the time by which Seller must cure the objections. If Buyer terminates, the earnest money will be refunded to Buyer. 7. Copies of signatures, when delivered by fax or other electronic means, are valid as original signatures. Sellers' Initials: Buyer's Initials: A -120— EXHIBIT c 4-4/3 12 Part C - 1st Reading: 9/28/10 2nd Reading: 10/12/10 CITY COUNCIL AGENDA MEMORANDUM City Council Action Date: September 28, 2010 AGENDA ITEM: A. Ordinance authorizing the City'Manager, or his designee, to execute a ten (10) year lease with Foresight Corpus Christi Golf, L.L.0 with options to renew for an additional ten (10) year term, and then and additional five (5) year term, for the use of Gabe Lozano, Sr. Golf Course and Oso Beach Golf Course for annual rental payments of one -half of net cash flow from operations; providing for severance; and providing for publication. B. Motion to authorize the City Manager or designee to execute a short term monthly management agreement with Foresight Corpus Christi Golf, L.L.C, to manage the Oso Beach Golf Course and the Gabe Lozano, Sr. Golf Course, for a monthly management fee of $12,000.00, for up to six months. C. Ordinance amending the Code of Ordinances, City of Corpus Christi, Chapter 36 regarding fees established by golf course operators under lease with the City for operation of City golf courses; providing for severance; and providing for publication. ISSUE: As directed by City Council, Staff is bringing forth the proposed ordinances for consideration to enter into a 10 year agreement with Foresight Corpus Christi Golf, L.L.0 for operation of the City of Corpus Christi municipal golf courses. See attached background information. REQUIRED COUNCIL ACTION: Approval of the attached ordinances and motion. PREVIOUS COUNCIL ACTION: None CONCLUSION AND RECOMMENDATION: Staff recommends approval of items A through C as proposed Rudy Garza, Director Intergovernmental Relations rudygan cctexas. co m (361) 826 -3082 Michael Morris, Directo Parks and Recreation Department michaelmo[a7cctexas.com (361) 826 -3461 Attachments: 1. Presentation : Golf Course Management Contract RFP Process & Key Contract Provisions 2. Lease Agreement 3. Management Agreement BACKGROUND INFORMATION Background and Previous Analysis During the mid year budget reduction discussion in January 2010, City Council members directed staff to evaluate and pursue opportunities to privatize management of city operations and functions that may result in a net savings and/or revenue gain for the City. In addition, in 2005 the National Golf Foundation (NGF) provided an analysis ofthe City of Corpus Christi's Golf Course Operations and state -of -golf in the Coastal Bend. The report suggested staff initiate improvements to the course and modify operations and fee structures to increase play and revenues. However, the preferred solution offered by NGF was to pursue a golf management contract or agreement to overcome the institutional nature of municipal golf course operations. A follow up analysis and report provided by students in the Texas A&M University at Corpus Christi (TAMUCC) Business Program indicated that while some of the suggestions offered by NGF had been implemented, significant improvements were still warranted with the City's golf course operations. The TAMUCC report suggested alternative management structures for golf course operations — including a private management company. Request for Proposal Process In response, the City issued a Request for Proposal (RFP) in March 2010 to identify a private company experienced in golf operations management to manage the City operated golf courses. The RFP required potential contractors to consider and provide a plan for: • Managing pro shop and maintenance operations at existing City owned golf facilities, as well as, future golf courses that may be developed or acquired • Transitioning current City Employees into their company • Operating food and beverage concession services • Sharing future revenues and /or establishing a management fee • Offering youth programs and accommodating agreements with local school districts for use of the facilities • Increasing revenues with the understanding that the City maintains the authority to approve any future fee increases and capital improvement projects. A team consisting of staff members from the Parks and Recreation Department, Finance Department and the City Manager's Office was put together to evaluate the responses to the RFP. The team evaluated responses based on the respondents (1) qualifications, (2) technical solutions, (3) financial considerations and (4) exceptions taken to the contract terms established in the RFP. The City received six (6) responses to the RFP. After an initial review and scoring of the responses, the evaluation committee deemed four (4) companies qualified to be considered for a management contract. The evaluation team made site visits to golf facilities operated in Texas by each of the four companies. During these site visits the evaluation team had an opportunity to interview management teams of each company and gain further insight of which company would be the best fit for Corpus Christi. Based on their initial response to the RFP and the evaluation team's site visit and discussion with their management team, Foresight Golf was selected as the top firm. Selected Company Background Foresight is a Texas based firm with primarily Texas based assets including the Bandit, Republic, Buckhom and Pecan Valley golf courses in Central Texas and Cypresswood Golf Course in the Houston area. In their proposal Foresight offered a revenue sharing based partnership where net revenues would be split 50 -50 with the City. In addition, the firm committed to finance (or absorb) any operating shortfalls alleviating the City of the potential of adding to a growing negative balance in the Golf Fund. Finally, recognizing the apprehension the local golf community may have about privatizing golf operations Foresight proposed to maintain the current green fee structure for a minimum twelve month period excluding consideration for sales tax requirements. Future Feedback from Community In effort to maintain a venue for public input in golf course operations, the Parks and Recreation Department through the Parks and Recreation Advisory Committee (PRAC) will create a Golf Operations Input Subcommittee. Along with the Director, the subcommittee will solicit and review comments from golfers regarding the operation of the golf course and serve as a conduit for information to the contractor. This new PRAC subcommittee will replace the function of the current ad hoc Greens Committee and will host periodic public meetings with the golf community. In addition, one of the performance standards for the contract includes conducting regular customer surveys to gauge golfer satisfaction. These surveys will be reviewed by the new PRAC subcommittee. Budget Considerations No budget modifications will be required as result of this agreement for Fiscal Year 2010- 2011 at this time. In January 2011, when six (6) months of actual revenues and expenditures for the Golf Fund, budget modification will be brought forth to City Council, if required. 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CO N N CO O N O j .N i 5 O o CO c ca o L a) tig H W Organizationa � � V o (� o cco � N to . j }' -' • O Cr 0 S i O O „, L v O a) G) '� O o N}'L() O F. s N E v -_ c W + N O 0 S .2 ♦.d L a) O �( L G a) V > i O co L 2 LE a) 0 a)3� co 41 O) a) i s a) S 4-, 713 2 N g) C 00 i 45 70 co a �+ {f} -0 > i RS 0 LLco u 0- •O •� c c U N O. � 0 . > N + O L_ O }, `~ s' RS t). c.9 O 'C gi 0 e L E t V s O s U H O 3 PROJECTED GOLF FUND BALANCE 2011 TO 2020 0 0 O O 0 0 0 oo oo 00 00 00 Lo Lo 0 Lo 0 2013 2014 Fiscal Year QUESTIONS? LEASE AGREEMENT THE STATE OF TEXAS KNOW ALL MEN BY THESE PRESENTS: . COUNTY OF NUECES 1 This Lease Agreement (referred to as this "Agreement" or this "lease ") is made and entered into by and between The City of Corpus Christi, a Texas home rule municipality (referred to as the "City" or as "City") and Foresight Corpus Christi Golf; L.L.C. ("Operator"), a Texas limited liability company and wholly owned subsidiary of Foresight Golf, L.L.C., a Texas limited liability company. Definitions. "Annual Review" means the process as described in Section 6.21 below. "Capital Fund" means the fund established through per round surcharge and City Capital improvement Program funding by the City to pay for mutually agreed upon improvements to the Leased Premises. "City" means the City of Corpus Christi, Texas. "City Manager" means the City Manager of Corpus Christi or designee. "Contract Administrator" means the Director of Parks and Recreation. ;"City Council" means the City Council of the City of Corpus Christi, Texas. "Effective Date" means the 61 $t day after the date of final City Council approval of this Agreement. "Extended Term" means the ten year extension period and the five year extension period authorized in accordance with Section 3.2. "Financial Reports" mean the following monthly reports prepared by Operator for Contract Administrator: i) monthly Sales Reports; (ii) monthly Tee Sheets with itemized play record; (iii) monthly Deposit Summary, Reconciliation and Cash Drawer Reports; (iv) monthly Concession Reports; (v) monthly Play Reports; (vi) monthly calculations of the Operations Reserve Fund; (vii) annual audited Balance Sheet, Statement of Profit and Loss and Changes in Financial Condition for the operations of the Golf Courses prepared in accordance with H :V. EG DIR\Lisal2010 Pat*\Foresigiit Lease Agreement (Execution Copy 2 09212010).docx 2 GAAP; (vii) all calculations of rent paid. Operator shall also provide to City such other financial reports as are reasonably available as requested by the Contract Administrator. "GAAP" means Generally Accepted Accounting Principles. "Gabe Lozano" means the Gabe Lozano Sr. Golf Course. "Golf Courses" means the Gabe Lozano Sr. Golf course and the Oso Beach Golf course. "Initial Tenn" means the ten year period beginning February 1, 2011. "Leased Premises" means the Golf Courses, and any real property improvements located at the Golf Courses, and personal property equipment identified in Exhibit A. "Lease Termination Fee" means the fee payable by City upon certain terminations of this Agreement as described in Section 3.3 below. "Net Cash Flow from Operations" means the dollar amount of gross revenues received by Operator from operations of the Golf Courses golf operations, including green fees and cart fees, Pro Shop sales and snack bar food and beverage sales, less (1) amounts collected for retail sales tax, federal retailer's excise tax, state, county or municipal tax on the sale of alcoholic beverages or future tax of like applications, (ii) the Operations Reserve Fund, and (iii) operating expenses of the Golf Courses. "Operating Expenses of the Golf Courses" shall mean (i) salaries, wages, overtime and benefits expenses and reasonable and continuing golf education for the employees employed at the Golf Courses; (ii) building and equipment maintenance, lease and replacement expenses incurred, including lease or finance payments for the golf cart fleet, office equipment, tools and equipment purchases in the ordinary course of business; (iii) customary memberships and dues expenses; (iv) insurance premiums paid; (v) costs of practice range balls, fertilizer, chemicals, employee uniforms, fuel, lubricants and other supplies purchased in the ordinary course of business; (vi) costs of inventory purchased for sale in the Pro Shops; (vii) utility charges incurred including electric and telephone services; (viii) accounting services for preparation of financial reports and financial statements; and (ix) such other operating expenses that have been approved by the City Manager in advance. "Operations Reserve Fund" means a fund not to exceed $100,000 which shall be established from the gross revenues from the Operator's operation of the Golf Courses. "Operator" means Foresight Corpus Christi L.L.C. H:ILEG- DlRlLisa12010 ParkWoresight Lease Agreement (Execution Copy 2 09212010).docx 3 "Oso Beach" means the Oso Beach Golf Course. "Performance Standards" mean the maintenance, and operating standards to be employed at the Golf Courses, listed on Exhibit B to this Agreement. "Possession Date" means February 1, 2011. "Rent" means one -half of the positive Net Cash Flow From Operations. "Request for Proposal" means the Request for Proposal for Golf Course Management Service (BI- 0060 -10), as amended. "Risk Manager" means the City Risk Manager. "Term" means the Initial Term or any Extended Term. "Trade Fixture" means personal property equipment owned by Operator or purchased solely with Operators funds installed on the Leased Premises for operation of the Golf Courses • during the Term. Section 1. Leased Premises: 1.1 For and in consideration of the conditions, covenants and agreements to be kept and performed by Operator, City does hereby lease and let unto Operator, and Operator does hereby lease from City all of that real and personal property equipment described on Exhibit A attached hereto and incorporated herein by reference located in Corpus Christi, Nueces County, Texas, (the "Leased Premises ") commonly known as The Oso Beach Golf Course ( "Oso Beach ") and The Gabe Lozano Sr. Golf Course ( "Gabe Lozano" and referred to together as the "Golf Courses"). 1.2 Revisions to Leased Premises: The parties may amend this Agreement to add or remove golf courses and golf course personal property equipment from the Leased Premises in accordance with the Request for Proposal. If City acquires additional golf course properties, then Operator shall have the prior right of first refusal to enter into a lease or management arrangement with City with respect to such additional golf course property. Section 2. Effective Date and Possession: This lease is subject to approval ofthe City Council ofthe City (the "Council ") and is not effective until the 61 Vc day after the date of final approval by the Council (the "Effective H: \LEG- DiR\Lisa\20 l o ParkWoresight Lease Agreement (Execution Copy 2 09212010).docx 4 Date "). The date of Operator's right of possession to the Leased Premises and responsibility for operations of the Golf Courses (the "Possession Date ") will be February 1, 2011. Section 3.. Term. of Lease. Termination: 3.1 Initial Term. This lease shall have an initial term of ten years commencing on February 1, 2011 and ending on January 31, 2021 ("Initial Term ") subject to extension for the Extension Term. 3.2 Extension Term. This lease may be extended upon written agreement of the Operator for an additional ten year term and then an additional five year term (each extension referred to as an "Extended Term ") upon written approval of City Manager. Operator shall notify the City Manager in writing at least one - hundred eighty (180) days before the end of the Initial Term or Extended Term if Operator elects not to renew this lease for the next Extended Term. 33 Termination for Default. The City may terminate this lease, in accordance with Section 15 below, following an event of default by Operator as described in Section 15 below, without any cost to City. 3.4 Termination Without Cause. Upon City Council approval and appropriation of funds to pay the Lease Termination Fee, the City may terminate this Agreement at any time without cause upon one hundred eight (180) days prior written notice to Operator and upon payment of the Lease Termination Fee to Operator. 3.4.1 If this lease is terminated without cause within the first twenty -four (24) months of the Initial Term, then the Lease Termination Fee shall be Two Hundred Eighty -Eight Thousand Dollars ($288,000.00). 3.4.2 If this lease is terminated without cause after the first twenty-four (24) months of the Initial Term, then the Lease Termination Fee shall be an amount equal to the lesser of: (a) the Rent accrued for the City for the twenty -four (24) month period immediately preceding the termination divided by two (2) to determine an average twelve (12) months of Rent, then multiplied by the number of years remaining within the then- current Term, with any partial year rounded up to the next full year, or (b) Five Hundred Thousand Dollars ($500,000.00). 3.5 Duties and Responsibilities Upon Termination. In addition to any other duties and obligations identified in this Agreement, Operator shall have the following duties and H :ILEG DIRILisa12010 Park\Foresight Lease Agreement (Execution Copy 2 09212010).docx 5 responsibilities at the termination of this lease, whether occurring by normal expiration or as otherwise herein provided:. 3.5.1 Operator shall yield up the Leased Premises including all equipment that constitute part of the Leased Premises to City in good and operable condition and repair, damage for ordinary wear and tear, fire or casualty excepted where Operator is not at fault. 3.5.2 Operator shall make available to City any Trade Fixtures upon payment ofmarket value for such Trade Fixtures. If City elects not to purchase Trade Fixtures, Operator may remove such Trade Fixtures from the Leased Premises provided Operator repairs any damage caused by such removal. 3.5.3 All Trade Fixtures or any other Operator -owned property which remain at the Leased Premises after the termination or expiration of the Agreement automatically becomes City property without the necessity of any further notice or legal action. 3.5.4 Upon termination of the Agreement, Operator shall, upon City Manager's written request, provide all or part of the services described in this Agreement on a month-to-month basis for a monthly management fee for term not to exceed six months. The monthly management fee shall be equal to Twelve Thousand Dollars ($12,000.00) adjusted by a percentage equal to the increase in the Consumer Price Index, All Urban Consumers, U.S. City Average, All Items, Not Seasonally Adjusted ( "CPI -U") as published by the United States Bureau of Labor Statistics, or such other index as may succeed the CPI -U for the Houston- Galveston - Brazoria Areas from year 2010 to the date of payment of the management fee. Section 4. Rental: 4.1 Calculation of Rent. Operator shall pay to City for the lease of the Leased Premises rent equal to one -half of the Net Cash Flow From Operations earned on the operations of the Golf Courses with Operator responsible for funding any negative cash flow each year. The term Net Cash Flow From Operations will mean the dollar amount of gross revenues received by Operator from operations of the Golf Courses golf operations, including green fees and cart fees, Pro Shop sales and snack bar food and beverage safes, less (I) amounts collected for retail sales tax, federal retailer's excise tax, state, county or municipal tax on the sale of alcoholic beverages or future tax of like applications, (ii) the Operations Reserve Fund (defined below), and (iii) operating expenses of the Golf Courses. H:V EG- DIR\Lisa\2010 Park\Foresight Lease Agreement (Execution Copy 2 09212010).docx 6 Operator shall calculate a Net Cash Flow From Operations for each separate golf course. City and Operator acknowledge that golf lesson fees collected by teaching professional for lessons given on their own time are retained by the teaching professional and are not included in gross revenues from golf operations. 4,2 Operating Expenses. "Operating Expenses of the Golf Courses" shall mean (i) salaries, wages, overtime and benefits expenses and reimbursed reasonable costs of travel and continuing education for the employees employed at the Golf Courses; (ii) building and equipment maintenance, lease and replacement expenses incurred, including lease or finance payments for the golf cart fleet, office equipment, tools and equipment purchases in the ordinary course of business; (iii) customary memberships and dues expenses; (iv) insurance premiums paid; (v) costs of practice range balls, fertilizer, chemicals, employee uniforms, fuel, lubricants and other supplies purchased in the ordinary course of business; (vi) costs of inventory purchased for sale in the Pro Shops; (vii) utility charges incurred including electric and telephone services; (viii) accounting services for preparation of financial reports and financial statements; and (ix) such other operating expenses that have been approved by the City Manager in advance. 4.3 Operations Reserve Fund. Operator shall establish and maintain during the Term an operations reserve fund in the amount up to One Hundred Thousand Dollars ($100,000.00), being up to Fifty Thousand Dollars ($50,000.00) for the benefit of each of the City and the Operator (the "Operations Reserve Fund "). Operator shall establish the Operations Reserve Fund out of the gross revenues of operations of the Golf Courses. Upon final termination of this lease and Operator's surrender of the Leased Premises, one-half of the then balance of the Operations Reserve Fund will be paid to City together with any final payment of Rent. 4.4 Schedule of Rent Payment. Starting on January 31, 2012, and continuing each subsequent January 31 of each year during the Term, Operator shall pay the Rent, to the extent of positive Net Cash Flow From Operations for the preceding calendar year, to City, in arrears. (The parties agree that the first January 31, 2012 payment shall actually include the Net Cash Flow From Operations over the period from the Possession Date through December 31, 2011.) Operator shall utilize the services of Certified Public Accountant to calculate the Net Cash Flow From Operation and provide City with such records no later than January 31 of each calendar year. Operator may prepay Rent at any time that Operator determines positive Net Cash Flow From Operations are available, which prepaid Rent shall be credited against the Rent next coming due under this Agreement. At the time of each payment of Rent to City, Operator shall distribute to itself or to an affiliated entity from the operations of the Golf Courses the remaining one -half of Net Cash Flow From Operations. H:1LEG- DIR\Lisal2010 ParlAPoresight Lease Agreement (Execution Copy 2 09212010).docx 7 Section 5. Use of Premises: Operator shall use the Leased Premises only for business purposes as municipal golf courses and for no other purpose without the prior written consent of City, Operator shall comply with all rules, regulations, ordinances, the City Charter and laws of public authorities applicable to its operations of the Golf Courses and its obligations in connection with the Leased Premises, Operator will not discriminate nor permit discrimination against any person or group of persons with regard to employment and the provision ofservices at, on, or in the Leased Premises, on the grounds of race, religion, national origin, marital status, sex, age disability, or in any manner prohibited by the laws of the United States or the State of Texas. The City hereby reserves the right to take action necessary to enforce this covenant. Section 6. Operation of Golf Courses: 6.1 Operating Hours. Operator shall operate the Golf Courses 365 days of the year with the minimum hours of operation as follows: (i) Oso Beach, 5601 South Alameda St,, Corpus Christi, Texas 78412 Monday through Sunday, 7:00 AM to 5 :30 PM (or sunset if earlier) with an eighteen (18) hole regulation course, fully stocked pro shop, practice putting, chipping greens and snack bar; and (ii) Gabe Lozano, 4401 Old Brownsville Rd, Corpus Christi, Texas 78405, Monday through Sunday, 7:00 AM to 7 :30 PM (or sunset if earlier, except with respect to the driving range) with an eighteen (18) hole regulation course, a nine (9) hole executive course, lighted driving range, practice putting green, fully stocked pro shop and snack bar. Operator shall operate the practice drivingrange (Gabe Lozano only) and insure the driving range is open daily during such hours or other hours approved by the City acting through the City Manager and posted on site at Gabe Lozano. In operation of the driving range, Operator will supply good quality range balls for use by the public at the driving range facility. Operator shall maintain the driving range, regular ball pick up, and daily cleaning of the facility. Operation of the Golf Courses and the driving range are subject to weather conditions, and as determined by Operator, the Golf Courses or driving range may be closed in response to certain weather conditions, but the Pro Shops shall remain open during such minimum hours. Operator shall make its operations manuals available for review by the City Manager at the offices of Operator's legal counsel in Corpus Christi. 6.2 Operations Activities. Operations of the Golf Courses includes the day to day golf course maintenance, golf course turf operations, irrigation maintenance, water pump maintenance, equipment maintenance, tree care, pro shop operations, golf professional services, driving range operations, golf cart operations, retail operations and supervision and/or operation of the food concessionaire. Performance standards including operations mission statement, customer satisfaction, maintenance of facilities, and maintenance of the H:tLEG- DIR\Lisal201O ParkWoresight Lease Agreement (Execution Copy 2 09212010).docx —147— Golf Courses turf conditions are attached as Exhibit B and incorporated herein by reference (the "Performance Standards "). 63 Green Fees Structure. 6.3.1 After the initial twelve (12) months of the Initial Term, Operator proposes to simplify the green fees structure previously established by the City for operations of the Golf Courses to more customary industry standards, and Operator's obligations under this Agreement are subject to and contingent upon the City Council amending the City Ordinance to exclude Operator or other private course operator from required fee schedule established by Ordinance at the time City Council approves this Agreement. 6.3.2 For the initial twelve (12) months of the Initial Term, Operator shall not increase the green fees for the Golf Courses that are set forth on Exhibit C and incorporated herein by reference and shall honor outstanding green fees loyalty program punch cards sold prior to the Possession Date or implement an equivalent program offered by Operator. 6.3.3 After the initial twelve (12) months of the Initial Term, Operator may simplify the green fees structure by eliminating certain categories and reducing certain green fees in establishing new promotional and loyalty programs and shall not be required to continue offering the existing punch card program. 6.3.4 After the initial twelve (12) months of the Initial Term, Operator shall set the green fees charged, provided that any increase in green fees is subject to approval of the City Manager. 6.3.5 In addition to the green fees, Operator shall collect on behalf of the City and remit to the City on a monthly basis the one dollar and fifty cents ($1.50) per round capital improvement surcharge imposed on the Golf Courses creating the capital improvement sinking fund for the Golf Courses (the "Capital Fund ") as further described in Section 8 of this lease. The green fees listed on Exhibit C under subheading A (Weekday Green Fees) and B (Weekend/Holiday Green Fees) include the dollar amount of the per round capital improvement surcharge in the amount of the stated fee. 6.3.6 Operator shall record all green fees collected in Operator's point of sale accounting system, and shall maintain at the Leased Premises books of account with H;1LEG- DIRLLisa12010 ParkWoresight Lease Agreement (Execution Copy 2 09212010).docx 9 respect to its management and operations of the Golf Courses in accordance with generally accepted accounting principles ("GAAP"). 6.3.7 Operator shall collect applicable sales taxes on the green fees (including the fees listed on Exhibit C) as required by State law. 6.4 Maintenance of Books and Records. All books and records shall be subject to review by the City Manager for compliance with GAAP. Operator shall maintain such books and records for a period of five (5) years following the expiration or sooner termination of this lease. 6.5 Audit. At City's option, City may cause, at any reasonable time, upon five (5) days prior written notice to Operator, a complete audit to be made of Operator's books of account with respect to its management and operations of the Golf Courses. Such audit may be made by a Certified Public Accountant or other qualified representative selected by City. If any Operator reports of Net Cash Flow From Operations provided to City or any payments of rent are questioned and determined to be in error and the Net Cash Flow From Operations reported and resulting rental paid are three percent (3%) or more below the actual rent due and owing based on actual Net Cash Flow Frain Operations for the period reported by such report, then the reasonable expenses of such audit shall be paid by Operator in addition to the deficiency in rental payment, which sums shall be promptly paid to City. If Operator elects to dispute any such City audit, Operator may engage an independent Certified Public Accountant or other qualified representative selected by Operator to a complete a second audit of Operator's books of account with respect to its management and operations of the Golf Courses. If Operator's audit determines there is no error or that the error in calculation of the Net Cash Flow From Operations reported and resulting rental paid is Less than three percent (3 %) below the actual rent due for the period reported by such report, then upon either parties' written request, City and Operator shall negotiate in good faith to resolve such discrepancy and the costs of the audits by mutual agreement. 6.6 Financial Reports and Budget. Operator shall collect appropriate data and prepare the following financial reports of operations of the Golf Courses to be submitted to City Contract Administrator (the "Financial Reports "): (i) monthly Sales Reports; (ii) monthly Tee Sheets with itemized play record; (iii) monthly Deposit Summary, Reconciliation and Cash Drawer Reports; (iv) monthly Concession Reports; (v) monthly Play Reports; (vi) monthly calculations of the Operations Reserve Fund; (vii) annual audited Balance Sheet, Statement of Profit and Loss and Changes in Financial Condition for the operations of the Golf Courses prepared in accordance with GAAP; (vii) all calculations of rent paid. Operator shall also provide to City such other financial reports as are reasonably available as requested by the Contract Administrator. Prior to the Possession Date, Operator shall develop a proposed H:ILEG- DIR\L,isa12010 Park\Poresight Lease Agreement (Execution Copy 2 09212010).docx 10 operating budget for the operations of the Golf Course to be included as part of Exhibit B. Set forth on as part of Exhibit B shall be Operator's initial proposed operating budget for the Golf Courses. 6.7 Starter Function. Operator shall maintain the course starter function primarily from the Pro Shop at each Golf Course. The course starter function is responsible for scheduling tee time reservations and admitting golfers to course play. Scheduling of tee times shall be handled in each Pro Shop through Operator's point of sale scheduling system and through online tee time reservation system, and Operator shall require all players to check in at the Pro Shop before play. The starter function shall include maintaining daily records and check receipts for green fees to insure that payment for play has been received. At such time as Operator determines the level of play requires additional player services, the tee time management and starter functions shall be a mobile function, coordinated with the Pro Shop, with a roaming starter moving from staging and first tee to practicing green and driving range, with courtesy announcements of foursome starts and players on deck. The Operator shall hire, train and supervise all members of Operator's Pro Shop team members to perform the course starter function. The mobile starter function shall not engage in cash handling activities. Operator shall determine the operating hours to accommodate play and maximize revenues. 6.8 Operator's team member staff shall be courteous, and provide satisfactory and efficient management of the Golf Courses for benefit of the general public. At each Golf Course, Operator shall provide a minimum ofthe following personnel: (i) one Golf Course Manager or Director of Golf Operations, (ii) a Teaching Professional or an Assistant Golf Professional to provide golfing lessons who may also serve and the Golf Course Manager or Director of Golf Operations, and (iii) a Golf Course Maintenance Superintendent. 6.9 Golf Course Manager or Director of Golf Operations. The Golf Course Manager or Director of Golf Operations shall meet the following minimum qualifications (i) advanced knowledge of golf course operations and management practices, with experience and knowledge of financial accounting of golf course operations, golf play management and marketing, golf course merchandise marketing, and golf practice facilities operations; (ii) a professional understanding of the rules and strategies of golf, (iii) a high degree of administrative and executive ability; (iv) excellent oral and written communication skills; and (v) knowledge of current federal, state and local laws and regulations affecting the management of golf course operations. 6.10 Teaching Professional or Assistant Golf Professional. The Teaching Professional or Assistant shall meet the following minimum qualifications (1) advanced professional knowledge of mechanics ofthe golf swing and golfteaching techniques, with an H :\LEG- DIR\Lisa\2010 Park\Foresight Lease Agreement (Execution Copy 2 09212010).doox 11 advanced knowledge of golf swing drills and alternate golf swing methods and practices; (ii) a professional understanding of the rules and strategies of golf; (iii) advanced knowledge of available golf equipment and accessories; (iv) excellent oral and written communication skills; (v) participation in continuing education, and (vi) maintain PGA certification or possess or equivalent knowledge and experience as PGA certified pro. 6.11 Golf Course Maintenance Superintendent. The Golf Course Maintenance Superintendent shall meet the follow minimum qualifications: (i) advanced knowledge of agronomy and turf grass management practices, with a working knowledge of golf facility construction principles, practices and methods and a thorough understanding of the rules and strategies of golf; (ii) a high degree of administrative and executive ability; (iii) excellent oral and written communication skills; (iv) knowledge of current federal, state and local laws and regulations affecting the management of golf course operations; (v) participation in continuing education; and (vi) current state certification or licensing as apesticide applicator. The Operator shall direct the Golf Course Maintenance Superintendent in the proper marking of the golf course for ground under repair, hazards, and out of bawds. 6.12 Staffing. Operator's staff operations and services shall include providing adequate staffing to provide goods and services as set forth in this lease and promoting goodwill with the golfing public by treating the public in a courteous manner and providing information, directions and review of customers concerns and issues. Operator shall provide a defibrillation machine and trained certified staff to use it. 6.13 Rules and Regulations. Operator shall enforce all rules, regulations, and policies governing use of the facilities. Rules and regulations may be proposed by the Operator, but are subject to approval by the City Manager, prior to implementation. The Operator shall likewise comply with City policies concerning violence in the workplace and controlled substance abuse. 6.14 Course Play Directors. Operator shall train and supervise volunteer course play directors, commonly referred to as course marshals, to provide marshaling services for the Golf Courses. Operator shall be responsible for managing the course marshals and providing a communication link between the marshals and Pro Shop starter function. The marshal's role is to promote compliance with golf course rules and regulations and efficient and timely play by the golfing public. Operator shall provide adequate service to maintain the speed of play on the Golf Courses with goals for pace of play and start times, for an average 18-hole game, established by Operator subject to approval by the City Manager. The Operator shall be responsible to ensure efficient and timely play. Operator shall act as the Rules Chairman for Corpus Christi Golf Course and shall make interpretations of U.S. G.A. rules for golf play. H:1LEG- DIR1Lisa12010 Park\Foresight Lease Agreement (Execution Copy 2 09212010).docx 12 6.15 Recognized Associations. City shall provide to Operator a list of City recognized golfmg clubs or associations. Operator shall provide support to such recognized clubs or associations utilizing the Golf Courses in the form of tournament services, league schedules, and space for meetings and bulletin board space for posting of such tournaments and league schedules at no charge, subject to availability of tee times. Such support shall not include prime time usage of the Golf Courses for tournaments or free green fees. Additionally, students from the local school districts shall be allowed to use the practice facilities of and/or play the Golf Courses for free or at a discounted rate (but not including free golf cart usage) on school days, so long as such students are accompanied by and supervised by a school golf team coach. Additionally, Operator shall work with local school districts to schedule golf tournaments at both facilities. U1L sanctioned tournaments will normally be scheduled during weekdays and shall be charged regular junior play rates. Use of the facilities for UIL or CCISD sponsored tournaments on weekends shall be limited to the Executive Nine Hole Course at Gabe Lozano or non -peak hours of play on the 18 hole courses. Operator may allow junior players playing with a paying adult to play free or at a discounted rate and allow junior participants in the "The First Tee" and "Kids on Course" programs to play at reduced junior rates. Also, Operator shall honor the previously existing golf course arrangements identified by the City Manager to Operator per written information describing such arrangements provided to Operator prior to the Effective Date, 6.16 Food and Beverage. Operator shall provide the food and alcohol service operations for the Golf Courses. Operator shall insure the snack bars are open daily during high use season and during off season with regular hours approved by the City Manager and posted on site at the Golf Courses. During the high use season, March through October, the snack bar minimum hours shall be 7:OOAM to 7 :OOPM, with the off- season hours determined by Operator subject to approval by the City Manager. Operator shall develop and establish a food and beverage theme and a menu of food items and beverages to be served in the snack bar facilities on the Leased Premises that are usual and customary for similar golf course operations and appropriate for the Golf Courses operating market. The snack bars shall be cleaned daily, with adequate trash and recycle receptacles available. Sales of beer, wine and mixed drinks at the clubhouses on the Leased Premises and on the Golf Course are permitted by the Concessionaire and Operator only. Operator is responsible for compliance with applicable laws and regulations with respect to the food and beverage service on the Leased Premises. 6.17 TABC Compliance. Operator shall comply with all permits issued under the Texas Alcoholic Beverage Code, the Texas Alcoholic Beverage Code, and rules and regulations issued by the Texas Alcoholic Beverage Commission regarding alcohol services and sales at the Leased Premises. Operator shall employ, train and supervise personnel with appropriate qualifications and experience appropriate for the duties to be performed with F1 LEG- D1R\Lisa12010 Park\Foresight Lease Agreement (Execution Copy 2 09212010).docx 13 regard to alcohol services and sales. All such personnel shall be employees, agents or independent contractors of Operator, and not of City. Operator may subcontract with third parties for the actual management of alcohol sales but Operator shall remain obligated to City for all subcontracted management services, and in the event this Agreement is terminated, such subcontracts are likewise terminated. Operator shall provide City with copy of all subcontracts for alcohol services and sales within thirty days of execution. Operator shall timely collect and pay all taxes imposed on alcohol sales. 6.18 Pro Shop Inventory and Operations. As of the Possession Date, Operator has assumed from City the existing inventory of golf merchandise and golf equipment located in the Pro Shops at each Golf Course based on the inventory valuation provided by City. During the Term in connection with Golf Course operations, Operator shall purchase and stock golf merchandise and golf equipment in the Pro Shops for sale to the public as determined by Operator. Operator shall insure the Pro Shop at each Golf Course is open daily with regular hours posted conspicuously and adequately on site at each Golf Course. Operator shall also provide golf equipment repair, rental of pull carts, golf carts and golf clubs for public use with the repair services and number of carts and clubs provided reasonable and customary in comparison with other public golf courses of similar size and use. 6.19 FinancingLeases. Operator shall be responsible for assignment of existing leases and negotiation of equipment leases or purchase money financing, including specifically without limitation negotiation of new golf cart leases or financing arrangements and repayment or renegotiation of existing golf cart leases of financing arrangements. The City currently has outstanding leases through Banc of America Leasing and Capital LLC for golf course equipment. Operator agrees to pursue assignment of the leases to Operator as the operator ofthe Golf Courses. 6.20 Transition of Golf Course Staff. Within twenty (20) days ofthe Effective Date, City shall conduct a meeting to inform the City employees who are directly employed in the operations of the Golf Courses ofthe lease arrangement and operations ofthe Golf Courses by the Operator under this lease. Said meeting shall include the City's Human Resources Department and the Operator's Human Resources Representative(s). At this meeting City employees shall be provided information including, but not limited to: 1. Operator's Personnel Policies 2. Operator's Job Descriptions 3. Operator's Salary Ranges per job description 4. Operator's Benefits Package 5. City's "Reduction In Force" (RIF) policy. City employees shall be given a deadline of fourteen (14) calendar days after such meeting H :ILEG- DIRILisa12010 Park\Foresight Lease Agreement (Execution Copy 2 09212010).docx 14 outlined above to determine whether they choose to become Operator employees or be subject to the City's Reduction in Force policy. Based on the voluntary decision of each such City employee, the City shall identify to Operator those City employees who are willing to terminate their employment with the City and begin employment with Operator for positions in operations of the Golf Courses (an "Identified Employee "). Operator shall offer employment to and employ each Identified Employee (who accepts such employment), with such employment to begin on the Possession Date, and pursuant to and in accordance with Operator's established employment criteria, compensation and benefits package through Operator's customary ninety (90) day probationary period. Operator shall provide health insurance benefits to each Identified Employee who accepts employment beginning on date of employee hire with Operator, with no delay period 6.21 Annual Review. Annually, representatives of Operator and the City Manager or City Manager's designee shall meet at the offices of the City or such other mutually acceptable location, to review the operations and performance of the Operator under this lease for the prior year (the "Annual Review "). Each Annual Review shall include a review of (i) the financial performance of the Golf Courses for the prior year as evidenced by the Financial Reports and other financial information either party may elect to submit for review; (ii) the operations of the Golf Courses including the Operating Expenses for calculation of Net Cash Flow From Operations, green fees, food and beverage operations, rules and regulations for the Golf Courses, goals for pace ofplay and start times, turf conditions on the Golf Courses, weather related or seasonal related effects on such turf conditions, and the Performance Standards; (iii) Operator's performance under the Performance Standards and review of customer satisfaction surveys from patrons of the Golf Courses; (iv) any proposed capital improvement projects, and (v) any other information deemed material to operation of the Golf Courses. Section 7. Care of Lease Premises: 7.1 Maintenance and Repairs. Operator shall maintain the Leased Premises in good clean condition. Operator shall be responsible for repairs and maintenance of the Leased Premises, with costs of such repairs and maintenance to be included as Operating Expenses of the Golf courses. Operator shall maintain the Golf Shop and driving range area in a clean, well -kept and orderly manner, ordinary wear and tear excepted, and shall provide such personnel, cleaning supplies, equipment, and consumable supplies as are necessary for this purpose. Operator shall cause public spaces to be vacuumed and cleaned daily. Windows and glass surfaces in the snack bars and all entry doors to be cleaned weekly during high season, March through October, and monthly or sooner as needed November through February. All other glass surfaces to be- cleaned monthly or sooner, if needed. Restrooms to be cleaned prior to business each morning. During high season, March through October, restrooms to H:ILEG- DIRILisa12010 Park\Foresight Lease Agreement (Execution Copy 2 09212010).docx 15 be cleaned and restocked in mid - afternoon. Carpet cleaning shall be completed a minimum . of twice yearly. Operator shall be responsible for the repair andmaintenance of light fixtures as needed. Operator shall be responsible for regular maintenance and cleaning, as well as repairs and replacement, of all equipment at Leased Premises, including but not limited to, restaurant equipment. Operator shall be responsible for annual exterior cleaning of building walls, doors and windows, and light fixtures. Operator may utilize the Operations Reserve Fund for Operating Expenses of the Golf Courses, including repairs and maintenance. 7.2 Advertising Signage on Leased Premises. Operator shall not install additional signs or other advertising devices on the Leased Premises without City's prior written approval. The expense of installation, operation or removal of all such signs shall be paid by Operator as an expense of operations of the Golf Courses. Operator shall comply with applicable City ordinances related to signage. 7.3 Maintenance Operations. Operator shall be responsible for the upkeep and maintenance ofthe greens, fairways, sand traps and all other playing areas ofthe golf courses in accordance with the schedule of maintenance and standards set forth in the Performance Standards that shall be performed on a regular basis to assure well maintained turf conditions and golf courses are available for play by the general public. Any changes to the maintenance provisions of the Performance Standards shall be subject to the approval of the Contract Administrator. 7.4 Utilities. City shall provide to Operator at no charge effluent City water for purposes of irrigating the Golf Courses. City shall provide to Operator such City utility services as have been provided to the operations of the GolfCourses as ofthe Effective Date, including potable water and sanitary sewer. However, if City ever begins to charge other City departments for potable water, sanitary sewer, or solid waste service, then Operator shall be similarly charged. Operator shall be charged for solid waste removal which is under contract with third party provider. Operator shall pay all such solid waste services and City and other non -City utility charges as Operating Expenses of the Golf Courses, including electricity, telephone, and security systems. Occupied public space in the clubhouse must be lighted and adequately heated appropriate to a public building. Included in the utility costs of operations shall be the cost of electricity to pump effluent water through the Golf Courses irrigation pumping system to irrigate the grounds of the Golf Courses 7.5 Naming of facilities on Leased Premises. Any naming of any facility on Leased Premises requires prior approval of the City Council. 7.6 Alterations or Improvements to Leased Premises. Operator shall not remove any improvements, nor make any alternations or additions to the building improvements located H:ILEG- DIRILisa\2010 Park\Foresight Lease Agreement (Execution Copy 2 09212010).docx 16 on the Leased Premises, nor perform any construction at the Leased Premises, without the prior written consent of the City Manager, and any such additions, changes and alterations made by Operator shall become and remain the property of City at the termination of this lease, except to the extent that the City Manager agrees otherwise in the above required written consent. Any additions, changes and alterations made by improvements or any construction at Leased Premises by Operator must be agreed to by the City and approved in advance in writing executed by the City Manager, and subject to Operator's compliance with bonding requirements of Chapter 2253, Texas Government Code, as may be amended, and subject to compliance with insurance requirements of Risk Manager. 7.7 Surrender of Leased Premises. Operator acknowledges and understands that the City's agreement to lease the Leased Premises to Operator is expressly conditioned on the understanding that the Leased Premises must be surrendered, upon the expiration, termination, or cancellation of the Term of this Lease, in as good a condition as received, reasonable use and wear and tear, acts of God, fire and flood damage or destruction where such damage in not Operator's fault. Section 8. Trade Fixtures and Capital Projects: 8.1 Installing Trade Fixtures. Operator shall be permitted to install Trade Fixtures on the Leased Premises, and all such Trade Fixtures owned by Operator and not permanently attached to the Leased Premises may be removed by Operator at the end of the Term, provided that any damage to the Leased Premises caused by such removal shall be repaired by and at the expense of Operator at or prior to the expiration of the Term. 8.2 Capital Improvements. Prior to the Possession Date, the parties shall develop an Exhibit to be substituted herein as Exhibit D. Set forth on Exhibit D shall be Operator's initial proposed capital improvement projects for the Golf Courses, including a description and budget for each such project. The City has and will continue to segregate and hold the Capital Fund and make such Capital Fund available to fund capital improvement projects at the Golf Courses including those described on Exhibit D and future identified projects upon such terms and conditions as the Operator and City Manger shall mutually agree. To the extent Operator identifies other capital improvement projects during the term of this lease that could benefit the operations of the Golf Courses, Operator may notify the Contract Administrator of any such project and provide a description and budget for such project. No later than the next Annual Review, Operator and the City Manager shall review such proposed capital project, the related expenditures required to complete the project and the capital expenditure responsibility, if any, of each party. To the extent mutually agreed by the parties an in accordance with such agreement, the City will fund capital improvement H:1LEG- DIR \Lisa12010 Park\Foresight Lease Agreement (Execution Copy 2 09212010).docx 17 projects out ofthe Capital Fund, and Operator may proceed with such capital improvement projects. Section 9. Insurance: 9.1 Insurance Coverage. During the Tenn, Operator shall maintain a policy or policies of insurance providing for the following insurance coverage: (i) broad commercial general liability insurance providing personal injury and property damage liability coverage with respect to the Leased Premises and the business conducted thereon, (ii) physical damage coverage for golf carts and course maintenance equipment, (iii) business automobile liability ---- owned, non -owned and rented, (iv) alcoholic beverage liability in the amount of one million dollars ($1,000,000.00) covering the event or time period when alcoholic beverages are to be served, (v) crime and fidelity coverage, (vi) worker's compensation and (vii) employer's liability all in accordance with the provisions described on Exhibit E attached hereto and incorporated by reference. Such insurance policy or policies shall name Operator as named insured and City as additional insured for auto and general liability coverage. For worker's compensation and employer's liability, Operator shall provide a waiver of subrogation in favor of the City. Prior to any addition or alteration to any building or real estate improvements located on the Leased Premises, Operator shall obtain prior clearance in writing, from the Risk Manager that the proposed addition or alteration will not necessitate a change or modification in the existing insurance coverage maintained by Operator or City. This clearance is in addition to the prior consent required by Section 7.6 of this lease. 9.2 Form of Policies. The foregoing policies of insurance shall be in form and written by insurers be issued by insurance companies reasonably acceptable to the Risk Manager for the City (the "Risk Manager ") which acceptance shall not be unreasonably withheld, and shall meet the requirements of Exhibit E. The Risk Manager shall be furnished two (2) copies of certificates of such insurance policies for the benefit of the City prior to the Possession Date. The certificate of insurance shall provide that the City shall have thirty (30) days advance written notice of cancellation, intent to not renew, material change, or termination of any coverage required in this lease. Upon written request ofthe City Manager, Operator shall provide copies of all required insurance policies to the Risk Manager. City and Operator acknowledge that over the Term it is probable that there will be changes in the insurance industry or the commercial real estate industry. Accordingly, City and Operator . agree that if, during the Term, if the amount of insurance customarily maintained for golf course businesses similar to those then conducted from the Leased Premises increases, then the Risk Manager retains the right at the Annual Review to modify the amount and types of insurance maintained by Operator, and to require increased coverage limits, as commercially reasonable and as necessary in the interest of public health, safety, or welfare, and to H :iLEG- DIRRLisa12010 ParkWoresight Lease Agreement (Execution Copy 2 092I21}IO).docx 18 decrease the required coverage, if so warranted. In the event of any necessary increase, City must provide Operator no Tess than sixty (60) days written notice to obtain the increased coverage prior to the effective date of the requirement. 9.3 City Insurance. During the Term, City shall secure and cause to be maintained in effect, as part of and included with the City's blanket coverage of City real property improvements, a policy or policies of property insurance covering the real property improvements and fixtures of the Leased Premises in the amounts and types identified on Exhibit F, subject to applicable deductibles. The City Risk Manager reserves the right to review and modify the amounts and types of insurance maintained by the City (but not terminate insurance), and provide Operator with updated Exhibit F. Section 10. Indemnification: In consideration of allowing Operator to occupy the Leased Premises, Operator ( "Indemnitor ") shall fully indemnify, defend, save and hold harmless the City, its officers, agents, representatives, and employees (collectively, "Indemnitees ") from and against any and all liability, loss, damages, claims, demands, suits, and causes of action of any nature whatsoever asserted against or recovered from City on account of injury or damage to person including, without limitation on the foregoing, premises defects, workers' compensation and death claims, or property loss or damage of any other kind whatsoever, to the extent any injury, damage, or loss may be incident to, arise out of, be caused by, or be in any way connected with, either proximately or remotely, wholly or in part: (1) Operator's performance under this Lease; (II) Operator's occupancy of the Leased Premises and any and all activities associated with the Operator's use of the Leased Premises under this Lease; (111) the violation by Operator, its officers, employees, agents, contractors, subcontractors or representatives of any law, rule, regulation, ordinance, or government order of any kind pertaining, directly or indirectly, to this Lease; (iv) the exercise of rights under this Lease; or (v) an act or omission on the part of Operator, its officers, employees, agents, contractors, subcontractors or representatives pertaining to this Lease, regardless of whether the injury, damage, loss, violation, exercise of rights, act, or omission is caused or is claimed to be caused by the contributing or concurrent negligence of Indemnitees, or any of them, but not if caused by the sole negligence of Indemnitees, H :ILEG- DIR\Lisa\2010 Park\Foresight Lease Agreement (Execution Copy 2 09212010).docx 19 or any of them, unmixed with the fault of any other person or entity, and including all expenses of litigation, court costs, and attorneys' fees, which arise, or are claimed to arise, out of or in connection with the asserted or recovered incident. Operator covenants and agrees that, if any of the lndemnitees is made a party to any litigation against Operator or in any litigation commenced by any party, other than Operator relating to this Lease, Operator shall, upon receipt of reasonable notice regarding commencement of litigation, at its own expense, investigate all claims and demands, attend to their settlement or other disposition, defend any of the indemnitees in all actions based thereon with legal counsel satisfactory to the City Attorney, and pay all charges of attorneys and all other costs and expenses of any kind whatsoever arising from any the liability, injury, damage, loss, demand, claim, or action. Section 11. Assignment and Subleasing: 11.1 Assignment by Operator. Neither party may assign this Agreement without the prior written approval of the other party. City Council approval is required for the assignment of the lease by Operator. Any such approved assignment shall not relieve Operator or Operator's authorized assignees from liability under this lease. 11.2 Subleases. Operator shall not sublease all or any part of the Leased Premises without prior written approval of the City Manager. 11.3 Mortgages. Operator shall not mortgage, encumber or pledge the leasehold interest under this lease without prior written approval ofthe City Manager. Operator may not incur debts or obligations on the credit of the City. 11A Approvals by City. The approval by City or the City Manager of any ofthe acts specified in this section shall not be unreasonably withheld and shall not relieve Operator or Operator's authorized assignee, transferee or subtenant from liability under this Lease. Section 12. Repairs and Operator improvements: 12.1 Repairs in Ordinary Course. As mentioned in Section 7, Operator shall be responsible for repairs and maintenance of the Leased Premises, with costs of such repairs to be included as Operating Expenses of the Golf Courses. However, subject to appropriation H:1LEG- DIR1Lisai2010 Part€ Foresight Lease Agreement (Execution Copy 2 092I2010).docx 20 of funds, in the case of ordinary wear and tear to improvements, City may choose to make general repairs and replacement, at its expense, any damage to the buildings and other real property improvements and fixtures (other than those caused by the Operator, agent or employee). 12.2 Operator Caused Repairs. All costs of repairs and replacements with respect to the buildings attributable to the negligence of Operator, his agents or employees shall be borne by Operator and not included as Operating Expenses of the Golf Courses for purposes of calculating the Net Cash Flow From Operations Capital improvements or additions to buildings by Operator must be approved in advance by the City Manager, and subject to Operator's compliance with bonding requirements of Chapter 2253, Texas Government Code, as may be amended, and subject to compliance with insurance requirements of Risk Manager. Ownership thereof shall revert to the City upon termination of this lease. Section 13. Destruction of Leased Premises: 13.1 Casualty Losses. If a building or other improvements of Leased Premises are damaged by fire, windstorm, flooding, hurricane, or other casualty during the Term, Operator shall give prompt notice thereof to City, and unless Operator elects to terminate this lease in such notice as a result of such casualty loss, City may reconstruct and repair the Leased Premises to at least substantially the same condition as existed prior to such casualty with reasonable due diligence, subject to appropriation of funds for such purpose by the City Council or receipt of applicable insurance payments. City shall use, and Operator shall provide, consulting services to City in connection with any such reconstruction and repair to the Leased Premises. Operator shall be relieved of the obligation to pay rent during the period Leased Premises are not in use by Operator due to such destruction of Leased Premises. 132 No Repairs. In the event City elects not to complete such reconstruction and repair of such damage caused by casualty described in Section 13.1, or fails to complete the reconstruction and repair with reasonable due diligence, either party shall have the right to terminate this lease pursuant to this section. If City has received insurance proceeds for the full and replacement value of the building or other improvement for reconstruction and repair of such damage caused by such a casualty and elects not to complete such reconstruction and repair, then a termination as a result of City's election or failure to reconstruct or repair shall be deemed a termination without cause by the City as described in Section 3.4. Also, any such termination shall be effective as of the date upon which such damage or destruction H:\LEG- DIR\Lisa12010 ParklForesight Lease Agreement (Execution Copy 2 09212{11 0).docx 21 occurred if business has not been conducted in the damaged improvement on the Leased Premises after such date. Section 14. Total or Partial Condemnation: 14.1 Termination Upon Condemnation. In the event the Leased Premises shall be taken by condemnation or the right of eminent domain or conveyed by City under threat of condemnation, then this lease shall terminate as of the date of such taking or conveyance and the rent shall be apportioned and determined as of the date of such termination. 142 Partial Condemnation. If a portion of the Leased Premises shall be taken by condemnation or right of eminent domain or conveyed by City under the threat of condemnation so as to render the balance of the Leased Premises unsuitable for the use of Operator, either party to this lease shall be entitled to terminate this lease by giving written notice of such election within thirty (30) days after Operator has been deprived of possession. If this lease is so terminated, then the rent shall be apportioned and determined as of the date of such termination. 14.3 Condemnation Awards. If any part of the Leased Premises is so taken or condemned, City shall be entitled to receive and retain all sums awarded for the taking of all or any portion of the Leased Premises by condemnation or right of eminent domain or conveyance by City under threat of condemnation, and Operator shall not be entitled to share in such award. Operator shall be entitled to receive and retain, and City shall not be entitled to, any portion of the award made to Operator by court of competent jurisdiction for loss of Operator's leasehold improvements whose costs were not shared by the City. Section 15. Operator or City Default: 15.1 Operator Default. Any of the following events shall be an event of default by Operator under this lease: (i) if Operator shall fail to pay any installment of the Rent or other sum of money due under this lease when due; (ii) if Operator shall abandon or vacate the Leased Premises; (iii) if Operator shall fail to comply with any term, provision, obligation or covenant of this lease (and shall not cure or correct such failure within fourteen (14) days after written notice of such failure from City to Operator); or (iv) if any proceedings shall be commenced to declare Operator a bankrupt or an insolvent, reduce or modify its debts or obligations or to delay the payment thereof, or if any assignment of its property be made for the benefit of creditors, or if a receiver or trustee be appointed for it or its property or business, then, to the extent permitted by applicable law, City may treat the occurrence of any one or more of the foregoing events as an event of default by Operator. H:\LEG- DIR\Lisat2010 ParktForesight Lease Agreement (Execution Copy 2 09212010).docx -161- 22 15.2 Termination Upon Default. If any event of default by Operator shall have occurred, City shall have the right, without further notice or demand of any kind to Operator or any other party, to terminate this lease and repossess the Leased Premises and shall be entitled to recover as damages a sum of money equal to the total of(i) the reasonable cost of recovering the Leased Premises, and (ii) the unpaid Rent and other sums due at the rate herein provided, and to pursue any other rights or remedies provided herein or at law or in equity. 15.3 City Default. In the event City defaults under any provision of this lease, Operator agrees to give City written notice of such default and thirty (30) days to cure such default prior to pursuing remedies against City. However, non- appropriation of funds for any purpose shall not be deemed to be an event of City default with respect to any payment or expenditure obligation of the City. If any event of default by City shall have occurred and not been cured in such time frame, Operator shall have the right, without further notice or demand of any kind to City or any other party, to terminate this lease. Upon such a termination due to City's default, Operator shall be entitled to pursue any other rights or remedies provided herein or at law or in equity. Section 16. Force Majeure: Neither City or Operator shall be liable for delays or failures in performance due to an event of force majeure that is beyond such party's reasonable control including, without limitation, any delays or failures in performance caused by strikes, lock outs, fires, acts of God or the public enemy, common carrier, severe inclement weather, riots or interference by civil or military authorities. The delays or failures to perform extend the period of performance until these exigencies have been removed. The Operator shall inform the City in writing of an event of force majeure within five (5) business days or otherwise waive this right as a defense. Section 17. Relationship of Parties: This Lease establishes a landlord/tenant relationship, and no other relationship. This Lease must be construed conclusively in favor of that relationship. In performing this Lease, both the City and Operator shall act in an individual capacity as independent contractors, and not as agents, representatives, employees, employers, partners, or associates ofone another. The employees or agents of either party may not be, nor be construed to be, the employees or agents of the other party for any purpose, Section 18. Mechanic's Lien: H:1LEG- DIR\Lisa12010 Park\Foresigbt Lease Agreement (Execution Copy 2 09212010).docx 23 Operator shall not permit any mechanic's, materialman's or similar liens to remain upon the Leased Premises for labor or material furnished to Operator or claimed to have been furnished to Operator in connection with work of any character performed or claimed to have been performed on the Leased Premises or at the direction oforwith the consent of Operator. Section 19. City's Right of Access to and Use of the Leased Premises for Utility or Other Construction Work: Operator acknowledges that there are City utility lines located on or under the Leased Premises. City reserves the right to excavate at the Leased Premises as necessary to repair, replace or maintain such utility lines. Additionally, Operator acknowledges that City may occasionally undertake additional utility or other construction projects which may require City or its contractor to have access to, on, in, above, across, through or under the Leased Premises. City reserves the right to access and construct upon the Leased Premises for City utility or construction project when deemed necessary by the City Manager. In connection with any such access, excavation or construction, City and Operator will cooperate in good faith in planning the timing, location and extent of such activities so as to minimize, to the extent reasonably possible, the adverse effect of such activities on the operations of the Golf Courses. City is not responsible to Operator for any damages or loss of revenues which may occur during City construction or utility work on Leased Premises. Section 20. Miscellaneous: 20.1 Utility Charges. All utilities serving the Leased Premises shall be paid by Operator prior to delinquency. 20.2 Successors. All rights and liabilities herein given or imposed upon the respective parties shall extend to and bind the respective successors and assigns of such parties. 20.3 Right of Inspection by City. City, acting through any authorized employee of the City, shall have the right to enter upon the Leased Premises at all reasonable hours for the purpose of inspecting the Leased Premises. Such entrance by City shall never be deemed or held to be an ejection or disposition of Operator, and City shall incur no liability by reason thereof. Operator shall provide the Contract Administrator with keys to the Leased Premises, and a current list of names and phone numbers, for use by the Contract Administrator, in the event of an emergency at the Leased Premises. The Contract Administrator or his authorized designee has the right to enter the Leased Premises during the regular hours of normal operation or at any time in the event of an emergency. H :1LEG- DtR1Lisa2010 ParkWoresight Lease Agreement (Execution Copy 2 09212010).docx -163- 24 20.4 Publication Costs. Operator shall pay for the cost of publishing the lease description and related ordinance, as required by the City's Charter, in the legal section of the local newspaper. 20.5 Construction of Lease and Venue. In the event any provision of this lease shall be held to be invalid or unenforceable, such holding shall not be deemed to affect the validity and enforceability of the remainder of this lease, or of the same provision as applied to other persons or circumstances. This lease shall be construed with the express intention of the parties to it that it shall be valid and enforceable in every respect to the extent permitted by law. By agreement of the parties, any ambiguities in the Lease shall not be construed against the drafter. This Lease is only for the benefit of the City, the Indemnitees and Operator, and no third party has any rights or claims under this Lease or against the City. This lease shall be interpreted according to the Texas laws which govern the interpretation of contracts, and venue lies in Nueces County, Texas, where this lease was entered into and shall be performed. 20.6 Notice and Contract Administrator. Any notice, request, demand, or other communication which, under the terms of this lease or under any statute or other law, must or may be given or made by the parties to this lease, shall be in writing, shall be directed to the contract administrator designated below on behalf of the City, and to the Chief Operating Officer on behalf of the Operator. Such notices shall be sent by hand delivery, established overnight courier service or United States mail, registered or certified mail, postage prepaid, return receipt requested, to the following address of the party to receive notice or such other addresses as may hereafter be designated in writing from time to time by the parties hereto in the manner provided in this paragraph. Any such notice shall be deemed received when actually received as evidenced by written receipt or three days after deposit with the United States mail in accordance with this paragraph. The contract administrator for the City shall be the City Director of Parks and Recreation. The contract administrator for the Operator shall be the Operator's Chief Operating Officer, and Operator reserves the right by written notice to the City to designate Operator's Regional Manager as the contract administrator. Notice to the City shall be sent to: City of Corpus Christi Attn: Director of Parks and Recreation 120I Leopard Street Corpus Christi, Texas 78401 With copy to: City of Corpus Christi Attn: City Attorney 1201 Leopard Street H:1LEG- DIR\Lisa12010 Park\Foresight Lease Agreement (Execution Copy 2 09212010).docx 25 Corpus Christi, Texas, 78401. With copy to: City of Corpus Christi Attn: City Manager 1201 Leopard Street Corpus Christi, Texas, 78401. Notice to the Operator shall be sent to: Foresight Corpus Christi Golf, L.L.C. Attn: Chief Operating Officer 512 E. Blanco Road, Suite 100 Boerne, Texas 78006 20.7 Waiver. No provision of this Agreement may be waived orally. The waiver by either party to this lease of any breach of or default under any provision of this lease shall not be deemed to be a waiver of such provision or of any rights as to any subsequent breach or default thereof. The subsequent acceptance of any rental or sums hereunder by City from Operator shall not be deemed to be a waiver of any preceding breach by Operator of any provision of this lease (other than the failure of Operator to pay the particular rental or sum so accepted). The partial performance of any of City's covenants shall not be deemed to be a waiver of any preceding breach or default by City of any provision of this lease. No provision of this lease shall be deemed to have been waived by any party hereto unless such waiver is in writing and signed by the party charged with such waiver. 20.8 Amendments. No subsequent alteration, amendment, change, deletion, or addition to this lease shall be binding upon City or Operator unless in writing and signed by both City and Operator. 20.9 Compliance with laws. Operator must comply with all applicable laws, regulations, and ordinances of the City, State and Federal governments. 20.10 Contract documents. The fully executed Lease Agreement, the Request for Proposal for Golf Course Management Service (131. 0060 -10) (the "Request for Proposal "), as amended, and the Operator's proposal shall constitute the contract documents and are incorporated herein by reference. In case of a conflict in any of the terms of the contract documents, first precedence shall be given to the fully executed Lease Agreement; second precedence shall be given to the Request for Proposal, and third precedence shall be given to the Operator's proposal. H :\LEG- DIR\Lisa\2010 Park\i oresight Lease Agreement (Execution Copy 2 09212010).docx -165- 26 20.11 Fiscal Funding. City's payment obligations under this Lease are subject to City's annual budget process. Notwithstanding anything to the contrary herein, The City's obligation to make any payment or expenditure under this Agreement is expressly contingent upon the availability of City funding for each payment item and obligation of the City contained herein. Operator shall have no right of action against the City as regards this Agreement, in the event that the City is unable to fulfill its payment obligations under this Agreement as a result of the lack of sufficient funding. Section 21. Acknowledgement: The parties expressly agree that they have each independently read and understood this lease. By Operator's execution of this lease, Operator acknowledges and understands that this lease is not binding on the City until properly authorized by the Council and executed by the City Manager or by his designee. SIGNATURE DATE: , 2010, but effective as of the Effective Date and Possession Date as described above. OPERATOR FORESIGHT CORPUS CHRISTI GOLF, L.L.C., By: Danie A. Pedrotti, Jr. President THE STATE OF TEXAS § COUNTY OF NUECES § This instrument was acknowledged before me on % em lei' A3 , 2010, by Daniel A. Pedrotti, Jr. as President of Foresight Corpus Christi Golf, L.L.C., on behalf of such company. - Notary Pub lic, State of Texas H.ILEG- DIR1Lisa12010 Park\Foresight Lease Agreement (Execution Copy 2 09212010).dacx 166— CITY OF CORPUS CHRISTI ATTEST: By: By: 27 Armando Chapa Angel R. Escobar City Secretary City Manager THE STATE OF TEXAS § COUNTY OF NUECES § This instrument was acknowledged before the on the day of , 2010, by Angel R. Escobar, City Manager, for the City Of Corpus Christi, a Texas municipal corporation, on behalf of the corporation. Notary Public, State Of Texas APPROVED AS TO FORM: This day of September, 2010. BY: Lisa Agui.l: sistant City Attorney For the Ct Attorney H :\LED- DIR\Lisa\2010 Park\Foresight Lease Agreement (Execution Copy 2 092 120 10).docx —1 6 7— 28 Exhibit A Description of Leased Premises Oso Beach Golf Course, 5601 South Alameda Street, Corpus Christi, Texas 78412, with description of 150.10 acres out of portion of Sections 14,16 and 17, Flour Bluff & Encinal Farm & Garden Tracts, as recorded in Nueces County Property Records, Volume No. 284, Pages 85- 88, and Volume No. 299, Pages 75 -79. Gabe Lozano Sr. Golf Course, 4401 Old Brownsville Road, Corpus Christi, Texas, 78405, as described in Nueces County Map Records Volume 26 Page 93, with legal description of Cliff Maus Tracts A and B, further described as being a 222.34 acre tract out of Block 18, J.C. Russell Farm Blocks and out of Lots 1,2,3, and 4, Gugenheim and Cohn Farm Lots, Corpus Christi, Nueces County, Texas. O =OSO GOLF COURSE =GABE LOZANO GOLF COURSE LAND BUILDINGS Club House Metal Buildings Terminal Buildings Golf Cart Charging Facility O Steel Budding — Golf Carts O Roof repairs O Oso Maintenance Building O Oso Restroom Improvements Restroom Improvements Lozano GC Clubhouse Roof Replace O Oso GC Clubhouse Re -roof O Garage and Storage Building O Club House and Pro Shop O Reroof Pro's House and Po Shop Adjustment for rounding IMPROVEMENTS Irrigation System H:\LEGDIR\Lisa12010 Park\Foresight Lease Agreement (Execution Copy 2 09212010).docx 29 Landscaping Fence Parking Lot Driving Range Lighting Improv. Other Than Bldgs. Architectural/Engineering Golf course fairway renovation Cart path improvements O Cart path improvements O Irrigation System Airconditioning Unit 92 -93 :Cart path improvements Old Brownsville outfall Fencing (96 -97) Septic System Gabe Lozano Cathodic Protection O Cathodic Protection O Cart path service road improve. FY99 -O0 Gabe Lozano Electrical Upgrade O 1956 -66 Unidentified improvements .O Parking Lot O Outside Water Pump Facility _O Installation of Fence O Chainlink Fence O Trees (185) O Ixora Shrubs (25) O Plants (48) O Various Trees (36) O Oleanders (80 +$6.35 undetermined) O Various Tees O Oleanders (20) O Various Trees, bushes and plants O Installation of Sanitary Sewer Lateral Line O Palm Trees (45) O Various Trees, bushes and plants O Pump System for Irrigation System O 1 -3 Post Fuse Disconnect Switch for Inside Use O Sprinkler System O Sprinkler System- Architectural Services O Sprinkler System -CPL Installation and Secondary O Replacement of Water Line Servicing Club House & Irrig Syst O Flags and Flag Poles O Cart Paths O San Trap Improvements -Lord and Applegate H:tLEG- DIR\Lisa12010 Park".Foresight Lease Agreement (Execution Copy 2 09212010).docx 30 O Aerial Photography- Espey, Huston and Associates O Landscape Architectural Planning -- Bechtoki Hoffpaur Golf Course Irrigation Improvements Proj #3266 O Golf Course Irrigation Improvements Proj #3266 Adjustment for rounding MACHINERY & EQUIPMENT Office Furniture & Equipment Sprinkler Equipment Fuel Storage Tanks Golf Bali Retriever Ball Washers Master Ball Washes Goff Ball Washer Greens Aerator 91 -92: Used 7ft. concrete pathpaver Energy Management System O Energy Management System Osborne trailer O Odessa Pump Gould 10- vertical turbine 100 O Odessa Pump Gould 7- vertical turbine 100 FY98 -99 Tee Time Management System O FY98 -99 Tee Time Management System FY00 -01 Network Catalyst O FY00 -01 Network Catalyst O Office Furniture O Spreaders, Sprayers & Sprinklers O Shop Equipment O Water Coolers (4) t O Aerifiers (2) 0 Greensaire Aerifier - Watson Distr O 515 Gallon Steel Tank - Freemens Station Mat O Water Cooler -Ajax Supply O Electric Water Cooler - Southern Plumbing O Electric Water Cooler -WESCO Cr Electronic Cash Register - Patterson, Inc. O 3 Electric Water Coolers +Freight - Graybar Electric O (2) 12,000 BTU Air Conditioners- Coolidge - Locher O Equip & Labor for Gas Pump —CC Pump Service O 60" Rotary Mower -Turf & Irrigation O Install New 550 Gallon Tank -CC Pump O Electric Drinking Fountain O Electric Water Cooler Stnd Plmb H:ILEG- DIR\Lisa12O10 Park\Foresight Lease Agreement (Execution Copy 2 09212010).docx 31 O 2 Ryan Vertical Mowers - Watson Q Electronic Cash Register - Braswell Q .5 Gallon Water Cooler-Ajax Supply O 12,000 lb Trailer -Made in House 4 100 Galion Sprayer -($500 retained for handgun)- Goldwaites Zimmerer Kubota Tractor f.3430HST -F 29HP Turf Tiger SN- A6501193 (Vehicle wlflat bed) C3 29HP Turf Tiger SN A6501193 (Vehicle wlflat bed) 55 Golf Carts — FY08 — Ez Go O 55 Golf Carts -- FY08 — Ez Go 15 Golf Carts — FY08 — Ez Go O 15 Golf Carts — FY08 —EzGo Green Terra Spike G6/63" 0953TC 997 Z-Trak (mowers) SN — DM997SCO23576 O 0953TC 997 Z -Trak (mowers) SN — DM997SCO23579 Green Mower, SN- TC250BG020032 Fairway Mower, SN-TC3225C040405 Trim and Surronds Mower SN-TC2653T020151 Utility Tractor 4WD SN- PY5203U006953 O Green Mower SN-TC250BG020034 a Fairway Mower SN- TC3225C040400 O Trim and Surronds Mower SN- TC2653T020074 1600 Turbo Series 11 Comm. Wide (mower) SN-TC1600T060770 1400TC ProGator 2020A; cargo loader/haul SN-TC2020AT020525 H0300 Sprayer; chemical loader trk; SN-TC300GX020037 Ultra greens roller. Turf smoother SN T2586 410 2 valve man htd w /pp SN- 41027408 ITT Flowtronex model 11 CLC -6; 850 GPM at 273 PSI H:ILEG- DIR\Lisa1201O ParkWoresight Lease Agreement (Execution Copy 2 0g212010).docx —171— Exhibit B Performance Standards Maintenance Standards: 32 These maintenance standards shall serve as a guideline for maintenance of the golf courses. Each item identified, quantified and or qualified herein, is based upon our maintenance standards in place at our other Texas golf courses. GREENS Mow a minimum of six times per week during the active growing season. In the winter, mow as needed to manage limited growth. Putting speed to be maintained at a reading, which will provide a fair and consistent putting surface for all golfers. r Mowing heights in general to be bench set between 0.125" and 0.145". Heights may be temporarily adjusted during the aerification • healing process and over - seeding process. wi Light verticufting and/or grooming will be performed as required to reduce grain and manage thatch buildup on greens. • Light and frequent topdressings will be applied to smooth the putting surface and control thatch buildup. re Fertilization and other chemical applications will be employed to maintain healthy turf. ✓ Pin placements will be rotated daily throughout the active growing season. w Aerification will be performed at least once per year and will be timed to gain maximum agronomic benefits. H:1LEG- DIR \Lisa12010 Paric\Foresight Lease Agreement (Execution Copy 2 09212010).docx 33 VA Irrigation program will consist of deep and infrequent watering with supplemental hand watering when necessary. COLLARS m Mow three times per week during the active growing season. it Mowing height 0.4" to 0.75 ". APPROACHES Is Mow three times per week during the active growing season. IR Mowing height 0.4" to 0.75 ". Aerification will be performed once per year. • Spiking will be performed as needed ▪ Irrigation program will be similar to greens. m Topdressings will be applied as needed throughout the season. Fertilization and other chemical applications will be similar to greens. TEES II Mow three times per week during the active growing season. im Mowing height 0.4" to 0.75" Aerification will be performed at least once per year. ik Tee markers will be rotated daily throughout the active growing season. H:1LEG- DIR1Lisa12010 Parkforesight Lease Agreement (Execution Copy 2 09212010).docx 3 4 ▪ Topdressings and divot filling will be applied as needed throughout the season. • Light vertical mowing will be performed throughout the season. O Fertilization and other chemical applications will be employed to maintain healthy turf. ▪ Irrigation program will consist of deep and infrequent watering with supplemental hand watering when necessary. FAIRWAYS • Mow a minimum of three times per week during the active growing season. ✓ Mowing height 0.4" to 0.75" ✓ Fertilization and other chemical applications will be employed to maintain healthy turf. to Irrigation program will consist of deep and infrequent watering with supplemental hand watering when necessary. CART PATHS 0 Concrete paths will be edged regularly to provide a defined edge and clean appearance. Gravel paths will be graded when needed. ROUGH Mow two times per week during the active growing season. im Mowing height at 1" to 1.5" E:\LEG- DIR\Lisa12010 Park\Foresight Lease Agreement (Execution Copy 2 49212014docx 35 t Fertilization applications will be employed to maintain healthy turf. it Irrigation will be performed to ensure an adequate supply of moisture for turfgrass growth. E Signage, paint lines, and other barriers will be used where necessary to control cart traffic. ▪ Aerification and or spiking will be performed as needed during the active growing season. BUNKERS la Raked daily ✓ Depth of sand will be checked and maintained on a regular basis. ✓ Depths: Maintain adequate and appropriate levels of sand in the sand bunkers. • Weeds and rocks will be removed as needed on a daily basis. Tree root removal provided as needed. • Bunker edges will be mowed weekly. • Bunker edges will be edged as needed to maintain a clean bunker line. E Bunker rakes will be placed inside the bunkers in an accessible location. They will be checked on a regular basis and maintained in good condition. PRACTICE AREAS, r Driving Range fairway will be mowed two to three times per week during the active growing season. H:\LEG- D1RELisa12010 Park\Foresight Lease Agreement (Execution Copy 2 09212010).docx -175- 36 am Driving Range tee will be mowed three times per week during the active growing season at fairway height. • Maintenance of worn areas on the practice tee will be perforrned weekly to repair areas in use the previous week. • Driving Range tee set -up will be moved daily. 0 Chipping and Putting areas will be maintained similar to golf course. Fertilization and other chemical applications will be employed to maintain healthy turf. if irrigation program will consist of deep and infrequent watering with supplemental hand watering when necessary. GENERAL DUTIES ▪ Entry Road will be maintained and policed regularly for trash. O Parking Lot will be maintained and checked regularly for debris and trash. to Landscaping shall be weeded and kept in good repair 1M Staging areas for golf will be blown off as needed to maintain a good appearance. le Bathrooms on the golf course will be cleaned every day. Financial Performance Standards: The Director of Parks and Recreation and Operator will set out financial performance goals and objectives prior to the Possession Date for the initial year of the Agreement, and at each Annual Review thereafter. These standards will be based in part on the performance over the prior twelve (12) month period and in part based on the plans, including the marketing plans such as direct mail advertising and other advertising techniques, outreach projects such as establishing golf leagues, and other special projects at the Leased Premises such as increased tee areas, enlarged greens or improved drainage, for the coming twelve (12) months. The basis for comparison will be the budget for the Operating Expenses of the Golf Courses for the twelve (12) month period ending with the Annual Review and the budget for the coming twelve (12) months. As stated in Section H :.LEG- DIRILisa12010 Park\Foresight Lease Agreement (Execution Copy 2 09212010).docx 37 6.6, prior to Possession Date, Operator shall develop and prepare a proposed operating budget for operations of the Golf Courses for the initial twelve (12) month period following the Possession Date, which budget will be attached as part of this Exhibit B. At each Annual Review, Operator will propose and explain such a proposed budget for the coming twelve (12) months, and the Director of Parks and Recreation will collaborate with Operator in establishing the final budget for the coming twelve (12) months. Customer Satisfaction Standards: Customer satisfaction will be assessed at least annually at the Annual Review. Operator will employ customer satisfaction assessment tools with respect to the operations of the Golf Courses such as written customer surveys obtained during or immediately follow play on the Golf Courses, electronic customer surveys with incentives to complete and return the survey and verbal customer surveys conducted by Operator team members immediately following play on the Golf Courses. The assessment tools may vary through the Term as the relationship between Operator, City and the golf constituency matures. All parties to this Agreement agree that customer satisfaction is paramount to the operations of the Golf Courses as provided for in this lease. It is further agreed that customer satisfaction is a dynamic and challenging factor to assess precisely and consistently. Therefore, the Director of Parks and Recreation and Operator will review at each Annual Review the assessment tools and other techniques employed by Operator throughout the Term of this Agreement. The results of the customer satisfaction assessments will be documented and to the extent agreed by Operator and the Director of Parks and Recreation the operations of the Golf Courses will be adjusted to optimize customer satisfaction. H:ILEG- DIR \Lisa12010 Park\Foresight Lease Agreement (Execution Copy 2 092120 t0).docx —177— Exhibit C Schedule of Green Fees* A. Weekday Green Fees 18 holes 18 holes mid - afternoon (after 10:00 a.m.) Twilight (starts after 1:00 p.m.) 18 holes Senior (over age 60) 18 holes Junior (age 18 and under) Executive 9 Executive 18 (twice around Executive 9) Executive 9 Junior (age 18 and under) Executive 18 Junior (age 18 and under) Marshal (Off peak) B. Weekend /Holiday Green Fees 18 holes 18 holes mid - afternoon (after 10:00 a.m.) Twilight (starts after 1:00 p.m.) 18 holes Junior (age 18 and under) C. Discount monthly punch cards for Weekday Golf (12 green fees for price of 10 green fees — residents only) 18 holes Twilight (starts after 1 :00 p.m.) 18 holes Senior (over age 60) D. Junior Monthly Card — (residents only) Weekdays all day (weekends after 10:00 a.m.) Regular Monthly Card — (residents only) Weekdays all day (weekends after 10:00 a.m.) Senior Monthly Card — (residents only) Weekdays all day (weekends after 10:00 a.m.) E. Golf cart rental rates Non-Player Cart 9 holes Half Cart 18 holes (Half Cart) 18 holes (full cart) Marshal (Off Peak) F. Range balls — small Range balls — large Range balls — Jumbo 1::ILEG DIR\Lisa12010 Park\Foresight Lease Agreement (Execution Copy 2 09212010).docx 38 $ 17.25 $ 14.25 $ . 11.25 $ 12.50 $ 8.00 $ 8.75 $ 12.75 $ 5.00 $ 6.00 $ 1.00 $ 19.75 $ 16.75 $ 13.75 $ 8.00 $ 172.50 $ 112.50 $ 125.00 $ 65.00 $ 140.00 $ 15.75 $ 8.50 $ 12.00 $ 22.75 $ 1.00 $ 4.00 $ 6.25 $ 8.50 39 Range balls — Marshal $ 1.00 G. Pull cart rentals — 9 holes $ 1.50 Pull cart rentals —18 holes $ 3.00 H. Golf set rentals — 9 holes $ 6.50 Golf set rentals —18 holes $ 1 0.00 Youth golf camps $ 50.00 J. Identification card for advance tee time access $ 5.00 K. Golf Promotional Programs The Park and Recreation Department is authorized to conduct golf marketing promotions, at various times during the year, at both municipal courses. Cost recovery will not exceed 40% of the cost of youth programs, with regard to the golf marketing promotions, other than as applied to the Latchkey program L. Golf Items A and B (Green fees) include a $1.50 Capital Projects Surcharge (surcharge) for 18 holes ("18 Hole," Mid- afternoon, Twilight, and Executive 18) and a $1.00 surcharge for Juniors and Seniors. A surcharge of $.75 is included for non - Juniors for 9 holes on the Executive course and $.50 for Juniors. Golf Item C includes a $15.00 surcharge for the regulation 18 and Twilight, a $10.00 surcharge for seniors, a $7.50 surcharge for the Executive 9, and a $15.00 surcharge for the Executive 19. Golf Item D includes a $10.00 surcharge. Golf Items C and D are available to golfers living in Corpus Christi city limits with driver's license verification. Golf Items E, F, G, H, and J include all applicable sales taxes. *Operator shall also collect applicable sales taxes on the fees listed in this Exhibit C. }I:1LEG -D1R\ isa12010 Park\Foresight Lease Agreement (Execution Copy 2 09212010).docx 40 Exhibit D Capital Improvement Projects Annually, the City of Corpus Christi adopts a Capital Budget and Capital Improvements Planning Guide. The purpose of the Capital Improvement Program (CIP) is to identify, prioritize, and construct projects that are needed to enhance or maintain the quality of life expected by the citizens of Corpus Christi. Project priorities and project funding are constantly monitored throughout the fiscal year to ensure there is adequate funding for critical projects and all voter - approved projects are completed in a timely manner. As stated in Section 8.2, prior to Possession Date, the parties shall agree to a replacement Exhibit D which identifies the initial proposed capital improvement programs for the Golf Courses, including a description and budget for each such project. H:1LEG -DIRIx isa12010 Park\Foresiglit Lease Agreement (Execution Copy 2 09212410).docx 41 ATTACHMENT INSURANCE REQUIREMENTS L GOLF COURSE OPERATOR'S LIABILITY INSURANCE Golf Course Operator shall not commence work under this agreement until all insurance required herein has been obtained and approved by the City's Risk Manager or designee. Golf Course Operator must not allow any subcontractor to commence work until all similar insurance required of the subcontractor has been so obtained. B. Golf Course Operator shall furnish to the Risk Manager or designee two (2) copies of Certificates of Insurance, showing the following minimum coverage by an insurance company(s) acceptable to the Risk Manager or designee. The City must be named as an additional insured for the General Liability policy, and a blanket waiver of subrogation in favor of the City is required on all applicable policies. TYPE OF INSURANCE MINIMUM INSURANCE COVERAGE 30 day written notice of cancellation, non- renewal, material change or termination required on all certificates and policies Bodily injury and Property Damage Per occurrence / aggregate BROAD COMMERCIAL GENERAL LIABILITY including: 1. Broad Form 2. Premises - Operations 3. Products! Completed Operations 4. Contractual Liability 6. Broad Form Property Damage 6. Independent Contractors • 7. Herbicide, Pesticide & Fertilizer application & storage including pool chemical coverage 8.. Removal of employee vs. employee exclusion $1,000,000 COMBINED SINGLE LIMIT BUSINESS AUTOMOBILE LIABILITY -- OWNED, NON - OWNED or RENTED . $500,000 COMBINED SINGLE LIMIT GOLF COURSE PROPERTY COVERAGE to include: 1, Tee to green coverage 2. Club Maintenance equipment and Golf Carts If applicable ACTUAL CASH VALUE Property Insurance Golf Course Operator will be responsible for any and all damage to equipment used regardless if owned, rented, leased or borrowed . If applicable _ H:ILEG- DIRR1Lisa12010 Park \Forese fight Lease Agreement (Execution Copy 2 092I2010).doex -181- CRIME AND FIDELITY COVERAGE WORKERS' COMPENSATION to include Alternate Employer endorsement EMPLOYERS' LIABILITY 42 $25,000 WHICH COMPLIES WITH THE TEXAS WORKERS' COMPENSATION ACT AND SECTION II OF THIS EXHIBIT $100,000/ $500,000/ $100,000 In the event of accidents of any kind, Gaif Course Operator shall furnish the Risk Manager with copies of all reports of such accidents within ten (1 0) days of the accident. II. ADDITIONAL REQUIREMENTS A. Golf Course Operator must obtain workers' compensation coverage through a licensed insurance company in accordance with Texas law. The contract for • coverage must be written on a policy and with endorsements approved by the Texas Department of Insurance. The coverage provided must be in amounts sufficient to assure that all workers' compensation obligations incurred will be promptly met. Golf Course Operator's financial integrity is of interest to the City; therefore, subject to Golf Course Operators right to maintain reasonable deductibles in such amounts as are approved by the City, Goff Course Operator shall obtain and maintain in full force and effect for the duration of this Contract, and any extension hereof, at Golf Course Operator's sole expense, insurance coverage written on an occurrence basis, by companies authorized and admitted to do business in the State of Texas and with an A.M. Best's rating of no Tess than A- (VII). C. The City shall be entitled, upon request and without expense, to receive copies of the policies, declarations page and all endorsements thereto as they apply to the limits required by the City, and may require the deletion, revision, or modification of particular policy terms, conditions, limitations or exclusions (except where policy provisions are established by law or regulation binding upon either of the parties hereto or the underwriter of any such policies). Golf Course Operator shall be required to comply with any such requests and shall submit a copy of the replacement certificate of insurance to City at the address provided below within 10 days of the requested change. Golf Course Operator shall pay any costs incurred resulting from said changes. All notices under this Article shall be given to City at the following address: City of Corpus Christi Attn: Risk Management H:i LEG- DIRiLisa12010 ParklForesight Lease Agreement (Execution Copy 2 09212010).docx —1 8 2— 43 P.O. Box 9277 Corpus Christi, TX 78469 -9277 (361) 826 -4555- Fax # D. Golf Course Operator agrees that with respect to the above required insurance, all insurance policies are to contain or be endorsed to contain the following required provisions: • Name the City and its officers, officials, employees, volunteers, and elected representatives as additional insured by endorsement, as respects operations and activities of, or on behalf of, the named insured performed under contract with the City, with the exception of the workers' compensation and professional liability polices; • Provide for an endorsement that the "other insurance" clause shall not apply to the City of Corpus Christi where the City is an additional insured shown on the policy; • Workers' compensation and employers' liability policies will provide a waiver of subrogation in favor of the City; and • Provide thirty (30) calendar days advance written notice directly to City of any suspension, cancellation, non - renewal or material change in coverage, and not less than ten (10) calendar days advance written notice for nonpayment of premium. E. Within five (5) calendar days of a suspension, cancellation, or non - renewal of coverage, Goff Course Operator shall provide a replacement Certificate of Insurance and applicable endorsements to City. City shall have the option to suspend Golf Course Operator's performance should there be a lapse in coverage at any time during this contract. Failure to provide and to maintain the required insurance shall constitute a material breach of this contract. F. In addition to any other remedies the City may have upon Golf Course Operator's failure to provide and maintain any insurance or policy endorsements to the extent and within the time herein required, the City shall have the right to order Golf Course Operator to stop work hereunder, and/or withhold any payment(s) which become due to Golf Course Operator hereunder until Golf Course Operator demonstrates compliance with the requirements hereof. G. Nothing herein contained shall be construed as limiting in any way the extent to which Successful Bidder may be held responsible for payments of damages to persons or property resulting from Golf Course Operator's or its subcontractors' performance of the work covered under this agreement. H. It is agreed that Golf Course Operator's insurance shall be deemed primary and H:1LEG- DIR\Lisa12010 ParkWoresight Lease Agreement (Execution Copy 2 09212010).docx -183- 44 non- contributory with respect to any insurance or self insurance carried by the City of Corpus Christi for liability arising out of operations under this contract. It is understood and agreed that the insurance required is in addition to and separate from any other obligation contained in this contract. 2010 Goff Course Lease Agreement Insurance requirements 0 -21 -10 ep Risk Mgmt. H:ILEG- DIR\Lisal2010 ParkWoresight Lease Agreement (Execution Copy 2 09212010).docx -184- 45 Exhibit F City provided insurance H:tLEG- D1R\Lisat2010 ParkEoresight Lease Agreement (Execution Copy 2 09212010).docx °; ;::�1 °- -.•'� Gi N ;i!!!Fi;r >'IE.i� i6[FI ' t = :t�ti iTr .',:- r� —: a. r•• ��QQ 4) r r l0' 0) r r co 0) r T� CO 0') r co co e— O) 0) CO 0) CA C) ^:" r r r CO 0) r i. SD C) r Li) Q) 0) r Q) N O) r 1` CO 0) r 2CCy o6 0) r ,tr. Fi' � r?1, ? ": ?,-}: ��r :mod" ? ?i1Lilli:k' "''r pO C 4 O co �y iV co N O Q O d• sr C7 O O_ � C' s••• 6 N ,. _ .- ��y -Yi ,mot, .i, ';,• -t2Z '°. N•_s'j -;1 ttt--- ,rt,, -.,t N-. j sy1 f y f''r _3 �.s!A �M ..t -4S.{ ''sr5 if!;. { i� {q-1 I'y I'• F'' a�qq {{ sria Eer ... -3t_t n. �fI_ '1A =x It W ��w1f,:YSi _ r ^'F'i 5au it F _ ,t ! ' . !.!.::; c5: #;. 5' i •..• : • t ;c1; °r;g's s rAIMUI 4 fL i a t>>*_i ilr��.�.{ it+ '.i:,f -... ! y. a. Tr],; F,. 'ri!.4i� =iili• ,� 1:; . z,f_ . '".E�'�c'I.� Vii, ;P „! 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G. r� -s:�:- .i?:,�a`ti•: Rigegftt Wood/Shingle 1 Nagnire �r.°- t't 0, �+f: =U 2 ITil i Oso Golf Course Clubhouse Masonry Metal/Cover Oso Golf Course r Maintenance Shop j r�3 ° .- ais -c Fir`• -� - 31;"i;- isi- ,i4•:tc �x:r'; s' ut N G) 0 CO Concrete Metal Deck Metal Deck Lozano Warehouse Bldg A Metal Metal Deck Lozano Warehouse Bldg B Metal _Metal Deck Frame Ci.) Frame al 1J- Masonry Masonry Masonry Oso Golf Course Restroom Oso Irri ation Pump Oso Maintenance Shop " c''�ESnf5.• _ Barn Lozano Cart Ba Lozano Golf Course Clubhouse Wno irrigation Pump Lozano Irrigation Pump Lozano Public Restrooms Lozano Public Restrooms Pks & Rec Pks &Rec Pks & Rec Pks & Rec Pks & Rec :, - xri r^+I rw .dH' fitif •,r. '.?e:iii %rte ^f "'iii:;_ w. wad. ,-e fe l - ":I11 i,. •Y �EES`t, LS oEf riG Pks & Rec rPks & Rec Pks &Rec Pks & Rec Pks & Rec Pks & Rec Pks & Rec 5601 S Alameda 78412 5601 S Alameda 78412 ir,r_:eFli 1=111 tiCues:si;�R•f i' - ::�• 78405 D 1 1 J 5601 S Alameda 5601 S Alameda 5801 S Alameda ., i .u'iarV ii. •' _ 4401 OId Brownsville Rd 4401 Old Brownsville Rd 4404 Old Brownsville Rd 4401 Old Brownsville Rd 4401 OId Brownsville Rd 14.401 OId Brownsville Rd 4401 Old Brownsville Rd 1 8 p, Liii ..-..E.,4?. ...,,!_:. 00 o) 1.0 cr) .r.- a) CN1 CF. ) = a) 0. co, CD r-- cr) a) ORDINANCE AUTHORIZING THE CITY MANAGER, OR HIS DESIGNEE, TO EXECUTE A TEN (10) YEAR LEASE WITH FORESIGHT CORPUS CHRISTI GOLF, L.L.C. WITH OPTIONS TO RENEW AN ADDITIONAL TEN (10) YEAR TERM, AND THEN AN ADDITIONAL FIVE (5) YEAR TERM, FOR THE USE OF GABE LOZANO SR. GOLF COURSE, OSO BEACH GOLF COURSE, AND ASSOCIATED EQUIPMENT, FOR ANNUAL RENTAL PAYMENTS OF ONE - HALF OF NET CASH FLOW FROM OPERATIONS; PROVIDING FOR SEVERANCE; AND PROVIDING FOR PUBLICATION. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF CORPUS CHRISTI, TEXAS: SECTION 1. The City Manager, or his designee, is authorized to execute a ten (10) year lease with Foresight Corpus Christi Golf, L.L.C. with options to renew for an additional ten (10) year term, and then an additional five (5) year term, for the use of Gabe Lozano, Sr. Golf Course, Oso Beach Golf Course, and associated equipment, in consideration of annual rental payments of one -half of net cash flow from operations. A copy of the contract shall be filed with the City Secretary. SECTION 2. if, for any reason, any section, paragraph, subdivision, clause, phrase, word, or provision of this ordinance shall be held invalid or unconstitutional by final judgment of a court of competent jurisdiction, it shall not affect any other section, paragraph, subdivision, clause, phrase, word or provision of this ordinance, for it is the definite intent of the City Council that every section, paragraph, subdivision, phrase, word and provision hereof shall be given full force and effect for its purpose. SECTION 3. Publication shall be made in the official publication of the City of Corpus Christi as required by the City Charter of the City of Corpus Christi. This contract takes effect on the 61st day following City Council approval. H:1LEG- DIRILisa12010 Ordinance110 year golf course leasev2.doc —187— That the foregoing ord'n ce was re for the first time and passed to its second reading on this the -<I day of , 2010, by the following vote: A i Joe Adame Chris N. Adler Brent Chesney Larry Elizondo, Sr. Kevin Kieschnick Priscilla G. Leal John E. Marez Nelda Martinez Mark Scott That the foregoing ordinance was read for the second time and passed finally on this the day of , 2010, by the following vote: Joe Adame Priscilla G. Leal Chris N. Adler John E. Marez Brent Chesney Nelda Martinez Larry Elizondo, Sr. Mark Scott Kevin Kieschnick PASSED AND APPROVED, this the day of , 2010. ATTEST: Armando Chapa City Secretary APPROVED as to form: By: Lisa Aguila:ssistant City Attorney for the City Attorney Joe Adame Mayor 1 AN ORDINANCE AMENDING THE CODE OF ORDINANCES, CITY OF CORPUS CHRISTI, CHAPTER 36 REGARDING FEES ESTABLISHED BY GOLF COURSE OPERATORS UNDER LEASE WITH THE CITY FOR OPERATION OF CITY GOLF COURSES; PROVIDING FOR PENALTIES; PROVIDING FOR SEVERANCE; AND PROVIDING FOR PUBLICATION. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF CORPUS CHRISTI, TEXAS: SECTION 1. That City Code of Ordinances, Chapter 36, Parks Recreation Cultural and Leisure Time Activities, Article I, Section 36 -7 is amended to read as follows: "Sec. 36 -7. Recreation fees and charges. The parks and recreation director shall prepare a list of recreation fees and charges for the public use of tennis courts, swimming pools, recreation centers, athletic fields and other city -owned facilities. Fees for the use of athletic fields shall be charged relative to participation in city - sponsored league play. This schedule of fees and charges shall be submitted to the city manager for approval, and be reviewed on an annual basis. Such charges shall bear a reasonable relation to current rates charged for similar commercial facilities so as to neither be excessive or grossly deficient by comparison; provided, however, all such fees, but not including adult softball league fees and charges for athletic fields, shall not increase annually by more than twenty -five (25) per cent and fees for organized youth activities shall not exceed a level which would recover forty (40) per cent of the estimated total cost, nor shall new fees be created, without city council's approval by motion or resolution. The approved schedule shall be filed with the city secretary and copies shall be provided to the city council. Specific fees, however, may be adjusted at any time, and the parks and recreation director shall have the authority to negotiate special fees for special situations. This section is not applicable to golf course fees established by golf course operators under lease with the City for operation of the City golf courses. (Ord. No. 20377, § 1, 7 -12 -1988; Ord. No. 22305, § 2, 7 -25 -1995) SECTION 2. If for any reason any section, paragraph, subdivision, clause, phrase, word or provision of this ordinance shall be held invalid or unconstitutional by final judgment of a court of competent jurisdiction, it shall not affect any other section, paragraph, subdivision, clause, phrase, word, or provision of this ordinance, for it is the definite intent of this City Council that every section, paragraph, subdivision, clause, phrase, word or provision of this ordinance be given full force and effect for its purpose. SECTION 3. Publication shall be made in the official publication of the City of Corpus Christi as required by the City Charter of-the City of Corpus Christi. Chapter 36 —189— That the foregoing ordina ce was read for the fi st time and passed to its second oC reading on this the day of , 2010, by the following vote: Joe Adame Chris N. Adler Brent Chesney Larry Elizondo, Sr. Kevin Kieschnick Priscilla G. Leal John E. Marez Nelda Martinez Mark Scott That the foregoing ordinance was read for the second time and passed finally on this the day of Joe Adame , 2010, by the following vote: Priscilla G. Leal Chris N. Adler John E. Marez Brent Chesney Nelda Martinez Larry Elizondo, Sr. Mark Scott Kevin Kieschnick PASSED AND APPROVED, this the day of , 2010. ATTEST: Armando Chapa Joe Adame City Secretary Mayor APPROVED as to form: By: , r,r Lisa Aguila ssistant City Attorney for the City Attorney 13 1st Reading: 9/14/10 2nd Reading: 10/12/10 CITY COUNCIL AGENDA MEMORANDUM City Council Action Date: 09/14/2010 AGENDA ITEM: An ordinance authorizing the City Manager, or his designee, to execute a thirty -year lease with Corpus Christi Developments 1, L.L.C., doing business as Corpus Christi FXG, L.L.C. (Lessee) with two ten -year options to renew, for approximately 356,320 square feet fronting Pinson Drive (Industrial Park) to construct a distribution facility and related improvements in consideration of Lessee paying $.09 cents per square foot for unimproved land including an adjustment of up to 3% every five years as set out in the lease (Exhibit B). ISSUE: The Corpus Christi International Airport has reached an agreement with Corpus Christi Developments 1, L.L.C., doing business as Corpus Christi FXG, L.L.C. for a land lease on the airport to develop a ground package distribution center designed and developed for FedEx Ground. Preliminary plans call for the development of a distribution facility of approximately 46,000 square feet of building space expandable up to approximately 70,000 square feet. Corpus Christi FXG, L.L.C. is developing the facility on behalf of FedEx Ground and will enter into a lease with FedEx for the facility. REQUIRED COUNCIL ACTION: Approve as presented PREVIOUS COUNCIL ACTION: N/A CONCLUSION AND RECOMMENDATION: In the meeting of May 19, 2010 the Airport Board recommended approval of the Business Terms & Conditions of the proposed development. Attachments Exhibit A - Letter of Terms (LOT) Exhibit B - Ground Lease Exhibit C - Site Plan Exhibit C1 - Elevations _193- Fred Segundo, A.A.E Director of Aviation freds @cctexas.com 361.289.0171 x1216 BACKGROUND INFORMATION The Corpus Christi International Airport has reached an agreement with Corpus Christi Developments 1, L.L.C., doing business as Corpus Christi FXG, L.L.C. for a land lease on the airport to develop a package distribution center designed and developed for FedEx Ground. Preliminary plans call for the development of a distribution facility of approximately 46,000 square feet of building space expandable up to approximately 70,000 square feet. The partnership is developing the facility on behalf of FedEx Ground and will enter into a lease with FedEx for the facility which will encompass approximately 8.18 acre tracts of land. The airport will cooperate with Corpus Christi FXG, L.L.C. in final design and permitting of the development and Corpus Christi FXG, L.L.C. will manage and control all of the development activity directly. The primary infrastructure is already in place which will help expedite the construction timeframe. The project is anticipated to be completed on or before September 1, 2011. In addition to the construction jobs which will be generated by this development, there will be approximately 7 -10 staff working in the facility and it will support approximately 17 -22 additional headcount for related contractors to support the distribution function. The airport location was selected over other sites in the region because of its central location and unconstrained access. It is anticipated that the proposed expansion of the facility to 70,000 sq ft, when required, will increase the number of permanent staff and additional contractors in the future. The construction and development of the FedEx Ground Handling facility will be the first project in the Airport's Industrial Business Center (IBC) that was completed in 2005 and the first major private development on airport since 1999. FISCHER & COMPANY. July 22, 2010 Enrique Castillo Assistant Director of Aviation Corpus Christi International Airport 1000 International Drive Corpus Christi, Texas 78406 STRATEGIC CORPORATE REAL ESTATE SOLUTIONS CONSi1LTINC, • LIPLOKEt2AGE • 7 (FINOWCY enriquec@cctexas.com RE: Letter of Terms to Lease (On Airport Land Site) Approximately 8.18 acres located at the Corpus Christi International Airport Dear Mr. Castillo: Fischer & Company intends to enter into negotiations for the ground Iease of the captioned Property based upon the following terms. Please s'an this Letter oflntent and submit to my attention o later than Thursday — July 29, 20I0, LANDLORD TENANT/DEVELOPER LEASE TERM LEASE TERM OPTIONS LEASE RATE LEASE RATE CONCESSION REAL ESTATE TAXES ESCROW FUNDS PROPERTY • Corpus Christi International Airport > Fischer & Company and/or Assigns • Initial Term of Thirty (30) Years • Two (2) extension options. Option term shall be ten (10) years each at Fair Market Value Rent. ➢ Commencing upon delivery of Certificate of Occupancy, the rate for the initial five (5) years will be $.09 per square foot of leased land. Every five (5) Years the property shall be adjusted to fair market value /appraisal in which the property is subject to a rent increase, but such increase shall be capped at a maximum of three percent (3 %) total increase (over the rent for the previous five years) for each five (5) year period. The City and Airport reserves the right to adjust the land rental rate in accordance with the adopted City Policy or FAA requirements but the rent shall be subject to the cap provision as stated above. > The City shall waive the Ground lease rent due to the City for the period from execution of the Long Term Ground Lease (estimated to be no later than Aumist 16, 2010) until the date of receipt of the certificate of occupancy or July 31, 2011, whichever is earlier. No property taxes will be assessed for the Land & Building, unless the law is changed and real estate taxes are extended to Airport property. D The Developer shall submit an earnest money deposit with a mutually acceptable Title Company equal to $15,000.00. Such deposit shall be refundable and this proposed transaction is contingent upon Developer executing a Lease with FedEx Ground Package Systems for the planned build to suit and Developer's receipt of permits and the Airport's approval of plans & specifications for this project and consent to the Sublease between Developer as Tenant and FedEx Ground as Sub- Tenant. > Approximately 8.18 acres of land that is located on Pinson & Business Centre Drive (See attached Exhibit A for building and site plan) (hereinafter the "Property") -145- FISCHER & COMPANY. STRATEGIC CORPORATE REAL ESTATE SOLUTIONS CON5UI.T IIvca • WROKERAC, • TECHNOLoc,y PLATTING > Tenant is required to deliver a platted parcel and shall be responsible for all such costs and expenses, including without limitation, engineering and surveying fees, attorney fees, and filing fees, incurred in such platting process. The City ,shall waive up to $15,000 of applicable City permits and platting costs and fees for this project. EXAMINATION PERIOD > One Hundred & twenty (120) days to complete site investigation. Consultants shall have the right to enter the Property for the sole purpose of conducting additional tests, surveys, environmental studies, investigations and analysis of the proposed site. Developer /Tenant shall indemnify Landlord and return the Property to substantially the same pre -test condition. EXTENSION ➢ Tenant may extend the Examination Period for up to one (1) sixty (60) day period. If the extension is exercised, an additional Five Thousand dollars ($5,000.00) shall be placed into Escrow, and said $5,000.00 shall become non - refundable. CLOSING ➢ The City will negotiate in good faith and enter into a Ground Lease with Tenant no Iaer than Auppst 1G, 21110 that will detail the final terms of the development of the site. Tenant will be responsible for all hard & soft costs associated with such development and shall be responsible for maintenance of such facility and the Property upon completion. CLOSING EXPENSES DEVELOPMENT ASSISTANCE Contingency: The Ground Lease execution shall be subject to the execution of the Lease execution between the Tenant as Developer and FedEx Ground as Sub- Tenant, but not before the governing municipality of the Property issues its approval of the site plan, issues the permits and approves the platting as required for the proposed project. D Landlord shall pay for the preparation of the Deed and costs to release any liens on the Property. Tenant shall pay for recording the Deed and the title premium for any title insurance policy. All state and local realty transfer taxes shall be the Landlord's responsibility. The City shall provide a Fifty Thousand dollar ($50,000.00) incentive in the form of a reimbursement to the Tenant/Developer for infrastructure costs to develop this project. Payment of such incentive to Tenant/Developer shall be within thirty (30) days after the City's receipt of copies of invoices for any such work as it pertains to site work, foundation, and/or underground utilities and infrastructure. CONFIDENTIALITY ➢ Landlord and Tenant acknowledge that the terms and conditions and details of the ensuing negotiations will remain confidential between the parties. FISCHER & COMPANY STRATEGIC CORPORATE REAL ESTATE SOLUTIONS CONSULT-NA:, • DROKERAcU • TECHNOLOGY GROUND LEASE DOCUMENT Landlord shall provide the Ground Lease Document within ten (10) business days of submission of this Letter of Terms. DISCLAIMER > This Letter of Terms constitutes an expression of interest only, which terms are subject to the approval of the senior management of Tenant. Regards, Fischer & Company Dale R. Clemments Senior Vice President Landlord: Corpus Christi International Airport Agreed to and accepted this By: day of 2010. Title: (--1-) I R-C - 14- u I FEZ .J -86 L- 1.' �EVELOPME► i -661.- 2 °E co V N to i to D ilc 0 2 ail -00Z- uJ 7:1 Li. 1 • 1 0 id= 1 7.1 • -LOZ- 1(J i LUO11E.:11_1 914_1 AN ORDINANCE AUTHORIZING THE CITY MANAGER, OR HIS DESIGNEE, TO EXECUTE A THIRTY -YEAR LEASE WITH CORPUS CHRISTI DEVELOPMENTS 1, L.L.C., DOING BUSINESS AS CORPUS CHRISTI FXG, L.L.C. ( "LESSEE "), WITH TWO TEN -YEAR OPTIONS TO RENEW, FOR APPROXIMATELY 356,320 SQUARE FEET FRONTING PINSON DRIVE (INDUSTRIAL PARK) TO CONSTRUCT A DISTRIBUTION FACILITY AND RELATED IMPROVEMENTS IN CONSIDERATION OF LESSEE PAYING $.09 CENTS PER SQUARE FOOT FOR UNIMPROVED LAND INCLUDING AN ADJUSTMENT OF UP TO 3% EVERY FIVE YEARS AS SET OUT IN THE LEASE. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF CORPUS CHRISTI, TEXAS, THAT: SECTION 1. The City Manager, or his designee, is authorized to execute a thirty -year lease with Corpus Christi Developments 1, L.L.C., doing business as Corpus Christi FXG, L.L.C. ( "Lessee "), with two ten -year options to renew, for approximately 356,320 square feet fronting Pinson Drive (Industrial Park) to construct a distribution facility and related improvements in consideration of Lessee paying $.09 cents per square foot for unimproved land including an adjustment of up to 3% every five years as set out in the lease. A copy of the lease is attached to this ordinance as Exhibit A and will be placed on file with the City Secretary's Office. SECTION 2. Publication of this ordinance will be made in the legal section of the official publication of the City of Corpus Christi as required by the City Charter of the City of Corpus Christi, Texas. Pursuant to City Charter, Article IX, Section 3(a), the publication expenses shall be paid by the Lessee. SECTION 3. If, for any reason, any word, phrase, clause, paragraph, subdivision, or section of this ordinance is held invalid or unconstitutional by final judgment of a court of competent jurisdiction, it does not affect any other word, phrase, clause, paragraph, subdivision, or section, for it is the definite intent of the City Council that every word, phrase, clause, paragraph, subdivision, or section of this ordinance be given full force and effect for its purpose. EHord311 revd22 —203— The foregoin rdinance was read fo the first time and passed to its second reading on this the /day of � , 2010, by the following vote: Joe Adame Chris N. Adler Brent Chesney Larry Elizondo, Sr. Kevin Kieschnick Priscilla G. Leal John E. Marez Nelda Martinez Mark Scott £V !I 4 C. The foregoing ordinance was read for the second time and passed to its final reading on this the day of , 2010, by the following vote: Joe Adame Priscilla G. Leal Chris N. Adler John E. Marez Brent Chesney Nelda Martinez Larry Elizondo, Sr, Mark Scott Kevin Kieschnick PASSED AND APPROVED this day of , 2010. ATTEST: Armando Chapa City Secretary APPROVED as to form: September 3, 2010 tl Elizatth R. Hundley Assi ant City Attorney for the City Attorney EHord311 revd22 -204- Joe Adame Mayor Ground Lease At Corpus Christi International Airport Between City of Corpus Christi And Corpus Christi FXG, L.L.C. GROUND LEASE This ground lease (the "Lease ") is made effective on the latter of the dates on which the parties did execute this Lease, by and between the City of Corpus Christi as lessor ( "City ") and Corpus Christi Developments 1, L.L.C., doing business as Corpus Christi FXG, L.L.C., as lessee ( "Developer "). WITNESSETH: WHEREAS, the City owns the Corpus Christi International Airport ( "Airport"), located in Nueces County, State of Texas; WHEREAS, the Airport is managed by the Director of Aviation ( "Aviation Director"); WHEREAS, Developer is organized and existing under the laws of the State of Missouri and is authorized to transact business in the State of Texas; WHEREAS, the parties hereto wish to enter into this Lease for land on which Developer shall construct a distribution facility and related improvements, including vehicle parking areas, for the purpose of operating a package collection and distribution business ( "Project ") to be leased and operated by FedEx Ground Package System, Inc. (the "Sublessee "); NOW THEREFORE, in consideration of the mutual covenants contained herein, the Parties agree as follows: AGREEMENT: 1. Premises: City hereby leases to the Developer the land located and more particularly described in the attached and incorporated Exhibit A ( "Premises "). The Premises includes approximately three hundred fifty six thousand three hundred twenty (356,320) square feet of land, together with any existing easements. 2. Term: This Lease shall be for a base term of thirty (30) years commencing on the sixty -first (61st) day following final approval by the City's City Council. Rent will be abated for the period beginning on the commencement date until the date of beneficial occupancy as determined by the issuance of a certificate of occupancy by the City ( "Certificate of Occupancy ") or September 1, 2011, whichever is earlier. 3. Option: Developer will be granted two (2) ten (10) year options on the Premises at the then fair market rental rate subject to approval of the Federal Aviation Administration ( "FAA ") and other terms as set out hereinafter. 4. Contingency: This Lease shall be subject to cancellation if the Developer and Sublessee do not execute a build to suit sublease agreement on or before October 1, 2010, 5. Improvements: Developer shall provide the City with "as built" drawings of all new construction ( "Improvements ") to assist in future rent calculations. 6. Incentives: Upon the issuance of a Certificate of Occupancy for the Project, the Developer will be granted by the City a payment of Fifty Thousand Dollars ($50,000) as an economic development incentive, to offset the costs of developing the Premises and completing the Project at the Airport. The $50,000 payment shall be paid within thirty days after the receipt of the Certificate of Occupancy. 7. Rent: Rent is due and payable on the first day of each calendar month of the Lease Term. Rent will be assessed for the gross square footage of the Premises and paid on an annual basis to the Airport at the address shown in Section 30 of this Lease. The rent for the period from the effective date of this Lease until September 1, 2011, or the date of beneficial occupancy, whichever is earlier, will be zero dollars ($0.00). For the period from September 1, 2011 or the date of beneficial occupancy, whichever is earlier, until August 31, 2016, the rent will be nine cents ($0.09) per square foot per annum. Effective on and after September 1, 2016, rent will be adjusted every five (5) years based on a fair market appraisal with a cap of a 3% increase over the preceding five (5) year period. The City reserves the right to adjust the rent in accordance with its adopted policy for the Airport or FAA requirements subject to the 3% cap. For purposes of determining the fair market value by appraisal, the Airport will submit the names of three (3) appraisers that may be considered and the parties will jointly select one to perform the appraisal. The recommendations of the selected appraiser will be final. 8. Agent: The City Manager appoints the Director of Aviation or his designee ( "Aviation Director ") as agent to receive all rent, notices and reports under this Lease. 9. Use of Premises: Developer shall use the Premises for the purposes to develop, construct, and operate the Project stated above and for no other purpose without the express prior written consent of Aviation Director. The Improvements on the Premises shall be used as a sort and distribution warehouse. 10. Parking: The Premises may be used for parking the facility's business - related automobiles, trucks, vans, trailers and similar vehicles without the payment of any additional fees to City; provided, however, that Developer shall comply fully with all of Airport's rules and regulations for parking and vehicle usage at the Premises and shall require the Sublessee and all other sublessees to do so. 11. Signs: Developer may install City ordinance compliant signs or other corporate identification of the business on the Premises at its sole cost; provided, however, that the Developer has obtained Aviation Director's prior written consent as to the size, type, design and location of these signs or other corporate identification, which consent shall not be unreasonably withheld or delayed. 12. Right to Amend: If the FAA or its successor agency requires modifications or changes in this Lease as a condition precedent to granting funds for Airport improvements, Developer agrees to consent to the amendments, modifications, or changes of this Lease as may be reasonably required to obtain the funds; provided, however, Developer will not be required to pay increased rent or change the use of the Premises or accept a relocation or reduction in size of the Premises until Developer and Airport have fully executed an amendment to this Lease that is mutually satisfactory to all parties for any terms or conditions of this Lease affected by said actions. 13. Subordination to U.S.A./FAA Requirements: This Lease is subordinate to the provisions of any existing or future agreement between the City, acting through the Airport, and the United States of America relating to the operation or maintenance of the Airport, where the execution of said agreement(s) is required as a condition to the expenditure of federal funds for the development of the Airport. If the effect of said agreement(s) with the United States, either under this Section 13 or under Section 12 above, is to remove any or all of the Premises from the control of Airport or to substantially destroy the commercial value of the Premises, then Airport must, at Airport's expense, provide Developer, at no cost to Developer or its Sublessee, with land and facilities substantially similar to the Premises and the Improvements constructed by Developer on the Premises for the remainder of the Lease term, as it may have been extended from time to time. —207— 3 14. Development of Improvements: All plans and specifications for Developer's Improvements and all renovations, remodeling, refurbishing and construction upon the Premises must meet all City fire, building and other applicable City, state and federal regulations and code requirements, including obtaining required building permits. Upon final completion and acceptance of the Improvements by Developer, Developer must provide two sets of Mylar as -built plans and one electronic copy of the record documents to Aviation Director, who will keep one set of plans on file at the Aviation Director's office in the terminal and provide the other set to the City Secretary for incorporation into this Lease as a supplement to Exhibit A. The supplemented Exhibit A becomes effective upon filing with the City Secretary and subsequent attachment to this Lease. Developer must keep said as -built documents current by providing two sets of Mylar "as- built" plans and one electronic copy of all record documents showing any alteration in excess of $15,000 to the Premises during the term of this Lease to Aviation Director, which plans are to be attached to this Lease as a supplement in the same manner as provided for the original plans and specifications. No substantial changes or alterations shall be made to said plans or specifications after initial approval by Aviation Director without further written approval by Aviation Director. The Developer will be responsible for arranging and paying for, at its sole cost, all utility connections to the Premises. Utility usage will be billed directly to the Developer and paid for by the Developer unless and until Developer has delegated the responsibility for utility payments to Sublessee. The Airport has reviewed and approves the Developer's submitted preliminary plans for development and construction of the Improvements on the Premises. Said preliminary plans are subject to final submission and permit review by the City. It is the intent of the Airport not to require additional improvements other than those represented in the February 12, 2010, alternative site plans. Said plans remain subject to final review by the City in the standard permitting process. The Developer will coordinate design and construction of the Improvements with the Airport and Aviation Director. City. Developer will be required to adhere to all landscaping requirements as required by the Developer shall be responsible for causing the Premises to be maintained and kept in good order and condition during construction and upon completion of the Improvements in accordance with commercially reasonable standards at no cost to the City. Because the Premises are located on Airport property, no property taxes will be assessed against the Premises unless the law is changed and real estate taxes are extended tithe Premises. Notwithstanding the foregoing, the Developer shall be responsible for the payment of any and all taxes assessed against the Improvements. During development, Developer will coordinate all construction traffic with the Airport so as to not inhibit regular Airport traffic and to keep roadways safe and clean. The Airport has no objection to the use of double trailer arrangements on Airport property subject to the requirements of the U.S. A. and the Texas Department of Transportation. The Airport will cooperate with the Developer for any roadway or access improvements required to enhance traffic to the Premises. Any costs of modifications will be the sole responsibility of the Developer. —208— 4 The Developer will enter into a construction contract with a reputable contractor and the Airport reserves the right to approve the contractor, which approval shall not be unreasonably withheld, conditioned or delayed. All construction parking and staging will occur on the Premises unless agreed to by the Airport in writing. Developer, at its sole expense, shall obtain all licenses and permits required prior to performing any maintenance, repairs, construction on, or use of the Premises. The costs of developing all plans and specifications as provided herein and the construction of improvements and facilities upon the Premises shall be paid solely by the Developer, without any cost or expense to City whatsoever. The City will waive up to Fifteen Thousand Dollars ($15,000) of applicable City permit fees for the Premises subject to final approval of the Lease by the City Council. The Airport will cooperate with the Developer to obtain alternative financing for any aspects of the development. Upon termination of this Lease, ownership of the Improvements constructed by Developer on the Premises shall revert to the City, free and clear of all liens, claims and other encumbrances or adverse interest in the Premises or the Improvements thereon. During the construction of the Improvements, the Aviation Director may, after providing reasonable notice to Developer, enter upon the Premises during the Airport's normal business hours and make inspections as may be necessary to ensure that the construction of the Improvements is performed in accordance with the requirements of this Lease. During this Lease, Developer shall, subject to the other terms and conditions of this Lease, have the continuing right to remodel, renovate and refurbish the Premises and Improvements, or any part thereof, and to build and construct new additions and Improvements thereon and thereto; provided, however, that changes costing more than one hundred thousand dollars ($100,000) shall require the prior written consent of Aviation Director, whose consent to the modifications will not be unreasonably withheld, conditioned or delayed. The City will promptly approve in writing all plans and design related change orders through completion of the Project. The Airport will pursue, in conjunction with the Developer, any and all available grant funding which might be available for authorized use to construct the Improvements on the Premises under the Project; and all grant funds received will be credited in full to the Developer. Developer shall not allow a lien to attach to the Premises or Developer's leasehold interest without the prior written approval of City Manager. Notwithstanding City Manager's approval, the City's fee simple interest in the surface estate burdened by Developer's leasehold estate must be exempt from said lien. Any lien of a lender shall contain the following language, or such other similar language as may be approved by City Attorney: "Lender agrees that the lien created by this instrument is effective only as to Developer's leasehold estate created by the Lease, dated , 2010, executed by the City of Corpus Christi, as City, and Corpus Christi Development 1, L.L.C.,, doing business as Corpus Christi FXG, L.L.C., as Developer, and does not affect City's interest, being the fee simple estate burdened by Developer's leasehold estate." In the event of any foreclosure by any lender, financing agency, or guarantor of its lien or liens on the Improvements constructed by Developer located on the Premises, said lender, financing agency, or guarantor succeeds hereunder to all rights, privileges, and duties of Developer, including without limitation paying rent, as if said lender, financing agency, or guarantor was originally named Developer herein, and said lender, financing agency, or guarantor will have a reasonable time after the date of foreclosure [not less than three hundred sixty (360) days] to —209— 5 sublease any available Improvements to those parties that are pre - approved by Aviation Director in writing. Developer covenants that all construction, including all workmanship and materials, will be of first -class quality. As used herein, the term '"first -class quality" means of the same quality as materials used to construct other buildings used for the same or similar purposes already constructed on the Airport property. After completing construction of Improvements on the Premises, Developer must certify to Aviation Director that the improvements were completed according to the approved plans and specifications and that Developer has complied with all applicable federal, state, and local laws, rules, ordinances, and regulations. Prior to Developer's delivery of possession to the Sublessee, a copy of the Certificate of Occupancy must be provided to the Aviation Director. Developer must include in all construction contracts entered into a provision requiring the contractor, or in the alternative, Developer, to indemnify, hold harmless, defend and insure City, including its officers, agents, and employees, against the risk of legal liability for death, injury or damage to persons or property, direct or consequential, arising or alleged to arise out of, or in connection with, the performance of any or all of the construction work, whether the claims and demands made are just or unjust, unless same are caused by the gross negligence or willful act of City, its officers, agents, or employees. Developer must furnish or, in the alternative, require the contractor to furnish, insurance as required in Section 29 herein. 15. Repair and Maintenance: Developer, at its own expense, shall make, or cause to be made, any and all repairs and replacements necessary to keep the Premises and Improvements in a first -class condition and in safe repair and shall make any and all repairs and replacements necessary to remedy defects of a structural nature. Developer shall provide janitorial service and maintenance to keep the interior and exterior of the Premises and Improvements in a clean, attractive and sanitary condition at all times. The landscaping must be well- maintained and kept in a neat and tidy condition. Developer shall repair any and all damage caused to real and personal property of City occurring on the Premises, including damage caused to the Improvements, or elsewhere on the Airport property as a result of the willful or negligent acts or omissions of Developer its officers, employees, contractors or agents. 16. Security: Developer its officers, employees, agents, contractors, and invitees must comply with all federal and local security regulations adopted by City pursuant to 14 CFR Part 107, as the same may be amended. Developer covenants to indemnify and hold harmless City, its officers and employees from any charges, fines, or penalties that may be assessed or levied by the FAA or Transportation Security Administration by reason of the negligent or intentional failure of Developer its officers, employees, agents, contractors, or invitees to comply with security regulations, regardless of whether the fine, charge or penalty is levied against the City or the Developer. 17. CFR Part 77 Requirements: Developer covenants to comply with the notification and review requirements set out in Part 77 of the Federal Aviation Regulations [14 CFR Part 77], as amended, if Developer plans to construct or modify any structure, antenna, or building located on the Premises or to be constructed as an Improvement. 18. Control of Structures: Developer shall not erect nor permit the erection of any structure, antenna, or building, nor permit the growth of any tree on the Premises, which has its highest point above a mean sea level elevation established by FAA and Airport as a height limitation on said structure, antenna, building, or object. Airport may enter the Premises and -210- 6 remove the encroaching structure, antenna, building, or object at Developer's expense plus an administrative charge of 15 %. 19, Aerial Approaches: Aviation Director may take any action necessary to protect the Airport's aerial approaches against obstruction, including the right to prevent Developer from erecting or permitting to be erected any building or structure on or adjacent to the Airport which, in Aviation Director's opinion, would limit the usefulness of the Airport or constitute a hazard to aircraft. 20. Hazardous Substances: Developer shall comply, and shall require any sublessee to comply, with all environmental laws, rules, regulations, orders and permits applicable to the use of the Premises and Improvements including, but not limited to, required National Pollutant Discharge Elimination System Permits and all applicable laws relating to the use, storage, generation, treatment, transportation, or disposal of hazardous or regulated substances. Except for the hazardous substances governed by and transported in full compliance with the transportation laws of the state or federal government, Developer must not knowingly use, store, generate, treat, transport, or dispose of any hazardous or regulated substances or waste on or near the Premises without Aviation Director's prior written approval and without first obtaining all required permits and approvals from all authorities having jurisdiction over the operations conducted on the Premises. If Developer determines that a threat to the environment including, but not limited to, a release, discharge, spill or deposit of a hazardous or regulated substance, has occurred or is occurring which affects or threatens to affect the Premises or the persons, structures, equipment, or other property thereon, Developer must notify immediately by oral report in person or by telephone, to be promptly confirmed in writing, to the Aviation Director as required by law or regulation. Developer shall require any Sublessee to cooperate fully with the Aviation Director in promptly responding to, reporting, and remedying a threat to the environment, including, without limitation, a release or threat of release of hazardous or regulated substance into the drainage systems, soils, ground water, waters, or atmosphere, in accordance with applicable law or as authorized or approved by any federal, state, or local agency having authority over environmental matters. Developer shall keep a readily accessible file of Materials Safety Data Sheets ( "MSDS ") for each hazardous substance on the Premises or transported, in accordance with federal and state transportation laws, which file must be posted and immediately available to any Airport employee who responds to a report of a discharge of a hazardous substance on the Premises. Developer will require any operator of the facilities on the Premises to use best efforts to determine which hazardous substance was accidentally discharged and have that MSDS sheet available for the first responders to the Premises. Developer will cause prompt remediation and the payment of all costs associated with any action or inaction of Developer that directly or indirectly prevents the City, acting through the Airport, from materially conforming to all then applicable environmental laws, rules, regulations, orders, or permits relating to the Premises. The rights and obligations set forth in this section shall survive the earlier expiration or termination of this Lease. 21. Nondiscrimination /Affirmative Action: A. Nondiscrimination — General- Developer for itself, and as a requirement for any sublessee, their personal representatives, successors in interest, and assigns, as a part of the consideration hereof covenants that: (1) no person on the grounds of race, creed, color, religion, sex, age, national origin, handicap, or political belief or affiliation will be excluded from participation in, denied the benefits of or otherwise be subjected to discrimination in the use of the —211— 7 Premises; (2) in the construction of any improvements on, over, or under the Premises and the furnishing of services thereon, no person on the grounds of race, color, religion, sex, age, national origin, handicap, or political belief or affiliation will be excluded from participation in, denied the benefits of, or otherwise be subject to discrimination; (3) Developer will cause to the best of its ability the Premises and Improvements to be in compliance with all other requirements imposed by or pursuant to 14 CFI( Part 152, Subpart E Non Discrimination in Aid Program and Title VI of the Civil Rights Act of 1964 and 49 CFR, Subtitle A, Part 21, Nondiscrimination in Federally Assisted Programs of the Department of Transportation, and as said Title and Regulations may be amended, and with other applicable state or federal laws or regulations, as amended. B. Nondiscrimination - Business Owner - This Lease is subject to the requirements of the U.S. Department of Transportation's regulations, 49 CFR Part 23. Developer for itself, and as a requirement for any sublessee, agrees that it will not discriminate against any business owner because of the owner's race, color, national origin, or sex in connection with the award of performance or any concession agreement, management contract or subcontract, purchase or lease agreement, or other agreement covered by 49 CFR Part 23. C. Remedy for Breach - If the Developer is found by a final verdict of a court of competent jurisdiction to have deliberately breached a non - discrimination covenant, or to have permitted any sublessee to deliberately breach a non - discrimination covenant, the City may immediately enforce the remedies directed by the Court's decision, which may include the City's right to reenter the Premises, retake possession thereof and terminate the Lease. This provision is not effective until the procedures of Title 49, Code of Federal Regulations, Part 21 are completed, including exercise of any rights to appeal. D. Affirmative Action - Developer shall cause to be implemented an affirmative action program as required by 14 CFR Part 152, Subpart E, to provide (i) that no person on the grounds of race, creed, color, religion, sex, age, national origin, handicap, or political belief or affiliation is excluded from participating in any employment activities covered in 14 CFR Part 152, Subpart E; (ii) that no person will be excluded on these grounds from participating in or receiving the services or benefits of any program or activity covered by that subpart; (iii) that third parties otherwise retained by Developer shall provide similar assurances to Developer to undertake affirmative action programs and to require assurances from their sub - organizations, as required by 14 CFR Part 152, Subpart E. Developer ,at no expense to the City, shall comply with any applicable requirements of the Americans with Disabilities (ADA) as it may be amended, with respect to the Premises and its Improvements. 22. Compliance with Laws: A. General - Developer covenants to promptly observe, comply with and execute, and shall cause any sublessee to promptly observe, comply with and execute, the provisions of any and all present and future governmental laws, ordinances, rules, regulations, requirements, orders and directions applicable to the use and occupancy of the Premises. A material breach of this covenant, which is not remedied within any permitted cure period, may be cause for City's exercising its rights under Section 23 of the Lease. During any period of Developer's good faith challenge to any such laws, ordinances, rules, regulations, requirements, orders and directions in a court of competent jurisdiction, Developer's inaction shall not be deemed a breach of this Lease. B. Federal - Developer shall comply and shall require any sublessee to comply with all applicable federal laws, rules, and regulations, including without limitation the Drug Free Workplace Act, the Violence in the Workplace Act, the Americans with Disabilities Act, and any other acts that the U.S. Congress passes that apply to the uses and operations at the Premises. —212— 8 C. Disadvantaged Business Enterprises ( "DBE ") - Developer acknowledges that the provisions of 49 CFR, Part 23, Disadvantaged Business Enterprises (DBE), as said regulations may be amended, and such other similar regulations as may be enacted, may be applicable to the activities of Developer and any sublessee under the terms of this Lease, unless exempted by said regulations, and Developer hereby agrees to comply with the FM and the U.S. Department of Transportation in reference thereto. Developer understands and agrees to the following assurances: It is City's policy that DBEs have the maximum practicable opportunity to be awarded contracts. Developer agrees to use good faith efforts to promote this policy through its Lease of the Premises. Additionally, Developer, as an equal opportunity employer, agrees to use good faith efforts to provide maximum opportunity for the consideration and use of DBEs in the contracting, subcontracting and purchasing activities associated with this Lease and to abide by all applicable provisions of the Airport's approved, and it's approved updates to, the DBE Program and this Lease. Developer agrees and shall require any sublessee to agree that no person will be excluded from participation in, denied the benefits of, or otherwise be discriminated against in connection with the award and performance of any contract because of race, color, religion, national origin, sex, age, handicap, or politi alhb elief or affiliation, and as more specifically " provided in Section 21 hereof. See Exhibit BWd ed hereto and incorporated herein setting out Developer's program in support of the Airport's DBE progran .prior4D -th �1-cr9Car trur—iian. D. State - Developer shall comply with all applicable laws, rules, and regulations of the State of Texas. E. Local - Developer shall comply with all applicable City ordinances, and rules and regulations promulgated by Aviation Director. 23. Termination: A. Termination By Developer - Without limiting any other rights and remedies to which Developer may be entitled by common law, statutory law, or as elsewhere provided in this Lease, this Lease may be terminated by Developer at any time after the happening, and during the existence, of one or more of the following events: 1. The City's permanent abandonment of the Premises at the Airport; 2. The lawful assumption by the United States Government, or any authorized agency thereof, of the operation, control, or use of the Airport, or any substantial part or parts thereof, that substantially restricts any sublessee from operating for at least 150 days; 3. The issuance by any court of competent jurisdiction of an injunction that prevents or restrains the use of the Airport or the Premises that continues for at least 150 days; or 4. The default by the City in the performance of any covenant or obligation on the part of the City to be performed, and the failure of the City to remedy the default for 60 days after receipt from Developer of written notice to remedy the same. B. Termination by City - Without limiting any other rights and remedies to which City may be entitled at common law, statutory law, or as elsewhere provided in this Lease, this Lease may be terminated by the City if Developer: 1. Is in arrears in paying the rent, fees, or other charges due under this Lease for ten (10) business days ( "business" days are Monday through Friday inclusive) after written notice, or such other time as may be provided herein (provided City has given written notice of such arrearages to Sublessee and has provided Sublessee with at least ten (10) business days to pay or cause to be paid those arrearages); —2 1 3— 9 2. Makes a general assignment for the benefit of creditors; 3. Abandons the Premises [ "abandon" shall mean failing to operate a business in the Improvements to the Premises for a period in excess on one (1) year]; 4. Otherwise defaults in the performance of any of other material covenant of this Lease and continues the default for thirty (30) days, or such other time as may be provided herein, after receipt of written notice from Aviation Director of the default. If the default cannot reasonably be cured within said 30 days or within any other time as set out in the notice of default, Developer shall be deemed to have cured the default if it commences the remedy process within the applicable period and thereafter diligently prosecutes the same to completion. C. City's Right to Entry Upon. Termination - If City terminates this Lease or if Developer abandons the Premises, the City may enter upon the Premises. In the event of termination by the City, the Aviation Director may enter onto the Premises to remove any and all persons or property from the Premises and place any property in storage for the account of and at the expense of Developer. All property on the Premises is hereby subjected to a contractual landlord's lien to secure payment of delinquent rent and other sums due and unpaid under this Lease, any and all exemption laws are hereby expressly waived in favor of said landlord's lien; and it is agreed that said landlord's lien is not a waiver of any statutory or other lien given or which may be given to City but is in addition thereto. In the case of default, if Developer fails to remove any of its property on the Premises within thirty (30) days following the written notice of default, Aviation Director may sell the property found on the Premises at a public or private sale with proceeds of the sale applied first to the cost of the sale, then to the cost of storage of the property, if any, and then to the indebtedness of Developer, with the surplus, if any, to be mailed to Developer at the address herein designated. Developer further agrees to hold harmless and indemnify City, including its officers, agents, and employees, against, from any loss or damage or claim arising out of City's action in collecting monies owed to it under this paragraph, except for any loss, damage, or claim caused by the gross negligence or willful misconduct of City or its employees. D. Notice of Termination - If an event of material default occurs, and after due written notice identifying the default the defaulting party has failed to cure or failed to commence to cure, the complaining party may at any time after the expiration of any such cure period terminate this Lease by providing written notice of termination to the defaulting party. The Lease will be terminated on the date specified in the notice but not sooner than thirty (30) business days after the postmarked date of the notice. Rental payments are payable only to the date of termination. This subsection is subject to the requirements set out in subsection C of this section. E. Partial Destruction - If the Premises or Developer's Improvements are partially damaged due to acts of God or other acts outside the control of the Developer or City, to the extent that Sublessee cannot use the Premises for its intended use, then, at Developers option, this Lease may be terminated or instead may be suspended until the damage is repaired. If the Lease is suspended, Developer and City will mutually agree on a time period for Developer to repair the damages to the Premises or Improvements. If the Lease is terminated, as provided for herein, the rent will be abated from the date of the casualty; provided, however, that Developer must use its insurance proceeds to either replace the Improvements or remove all trace of the Improvements and return the Premises to a state of raw land. All remaining insurance proceeds will be paid to Developer. The City Manager of the City is the sole judge of the extent of damage to the Airport. —214— 10 F. Notice to Sublessee - Notwithstanding anything herein to the contrary, if Developer is in default of any term, provision, covenant or condition of this Lease, City shall give written notice to Sublessee at the address set forth in Section 30; and Sublessee shall have a time to cure the default, or cause the default to be cured, equal to the time provided to Developer under this Lease. The time for Sublessee's opportunity to cure shall be computed from the day it actually received notice from the City of Developer's default. If the City is in default of any term, provision, covenant or condition of this Lease, Developer shall give written notice to Sublessee at the address set forth in Section 30. 24. Property Rights upon Expiration or Termination: A. Removal of Equipment - Upon the expiration or earlier termination of this Lease, City shall, by written notice to any sublessee, permit the sublessee to remove all removable furniture, fixtures and equipment installed by the sublessee so long as it removes same within the time period set forth in the notice, but in no event less than thirty (30) calendar days after termination or expiration of the Lease. The City may require any damage to the Premises caused by any sublessee's removal of its property to be repaired at the Developer's expense within fifteen (15) business days after termination or expiration of the Lease Such repairs must be made to the reasonable satisfaction of Aviation Director. Any fuel storage facilities installed must be removed prior to vacating the Premises, regardless of circumstances. Notwithstanding the foregoing, if any sublessee fails to remove its removable furniture, fixtures and equipment within thirty (30) days after the date determined in the notice, then Aviation Director may, at its option, take title to the said personality and sell store or salvage the same, as permitted by law. Any net expense Aviation Director incurs on behalf of City in disposing of the any sublessee's personal property shall be billed to that sublessee directly by the Aviation Director. The Aviation Director will provide any sublessee with a written itemized breakdown of the costs recaptured, if any, by the sale, storage or salvage of the property, and the balance due, which is expected to be paid by the sublessee upon receipt of said itemized breakdown. B. New Lease - Do Not Remove Equipment - If City and Developer negotiate a new Lease after the expiration of this Lease, there shall be no requirement to remove its furniture, fixtures and equipment from the Premises. C. Improvements Revert to City - Except for the right of any sublessee to remove personal property (subject to Sections 23 and 24) at the expiration of the Lease, all permanent Improvements placed or constructed on the Premises by Developer revert to City. D. Holdover - Any holding over by Developer of the Premises after the expiration or other earlier termination of this Lease shall be on a month -to -month tenancy at sufferance, at the then current monthly rent and subject to surrender upon thirty (30) days' prior written notice. Failure to timely surrender the Premises following such written notice subjects Developer to a monthly holdover fee of the then current monthly rent for each month of delay. 25. Re- delivery of Premises: Upon the expiration or earlier termination of this Lease, Developer shall deliver the Premises to City peaceably, quietly and in as good condition as the same now are or may be hereafter improved by Developer or City, normal use and wear thereof excepted. In addition to a landlord's lien provided by the law of the State of Texas, the City has a contractual lien on all property of Developer on the Premises as security for nonpayment of rent. 26. Developer's Maintenance Obligations: A. Premises - Developer shall maintain the Premises and Improvements in good appearance and repair and in a safe condition at its expense. Developer shall maintain, repair, replace, paint, or otherwise finish all leasehold Improvements on the Premises (including, without —215— 11 limitation, walls, partitions, floors, ceilings, windows, doors, and glass, and all furnishings, fixtures, and equipment therein). All of the maintenance, repairs, finishing and replacements must be of quality at least equal to the original in materials and workmanship, Developer shall, as much as practicable, ensure that the Premises are maintained free of foreign object debris. B. Quality of Maintenance - It is the intent of Aviation Director and Developer that the Improvements will be maintained in a manner that shall keep the Improvements intact, in good repair, and in a condition so that said Improvements will be usable at the end of the Lease. Developer must comply with the maintenance obligations and with all- applicable governmental laws, rules, or regulations. Aviation Director is the sole judge of the quality of Developer's maintenance, which must be reasonable and consistent with other properties. Aviation Director may at any time, during City's normal business hours, upon prior notice unless an emergency exists, enter upon the Premises to determine if the maintenance requirements of this Lease are being complied with. Aviation Director must notify Developer in writing of any default. If the required maintenance in Aviation Director's notice to Developer is not commenced within fifteen (15) business days after receipt of such written notice, or is not diligently prosecuted to completion, Aviation Director may enter upon the Premises and perform the subject maintenance, and Developer agrees to reimburse the Airport for its cost plus a fifteen percent (15 %) administrative fee within thirty (30) days after Aviation Director's written demand therefore, together with copies of all paid receipts for such repairs and maintenance. C. Correct Hazards - Developer must immediately correct or cause to be corrected any hazardous or potentially hazardous condition on the Premises upon knowledge thereof, or after receipt of notice from Aviation Director. At Aviation Director's reasonable discretion, the operations in the Premises, or affected portion of the Premises, may be restrained or stopped until the hazardous or potentially hazardous condition is removed or corrected. 27. City's Obligations: A. To operate the Corpus Christi International Airport as a public airport during the Lease term, subject to the assurances given by City to the United States Government. B. To make water, gas and wastewater service available to the Premises property line on the same basis as it is made available to all businesses operating at the Airport. Developer must pay in full all utility usage charges for water, gas, wastewater, electricity and other utilities supplied to the Premises during the Lease term as the charges become due and payable. 28. Indemnification: A. General - Developer must indemnify, hold harmless, defend and insure the City, its officers, agents, and employees from and against any and all claims and causes of action, administrative proceedings, judgments, penalties, fines, damages, losses, demands, liabilities, or expenses whatsoever (including reasonable attorney's fees and costs of litigation, mediation and /or administrative proceedings) which may be brought, alleged, or imposed against the City, its officers, agents, or employees arising directly or indirectly from or in any way connected with (i) any property damaged or loss, personal injury, including death, or adverse effect on the environment arising out of Developer's action or inaction with regard to the operations of Developer hereunder, including the use or occupancy of the Premises, or in providing access to secured areas of the Airport as set out herein, excepting only that liability as may result from the gross negligence or the willful misconduct of the City, including its officers, agents, and employees; (ii) the failure of Developer, its officers, agents or employees, to comply with the terms and -216- 12 conditions of this Lease, or to comply with any applicable federal, state, or local laws, rules, regulations, or orders including, but not limited to, any and all applicable federal, state, or local environmental laws, rules, regulations, or orders; or (iii) release of any hazardous or regulated substances or waste onto, into, or from the Premises or other Airport property, connected in any way with the operations or the action or inaction of the Developer its officers, agents or employees, regardless of whether the act, omission, event, or circumstance constituted a violation of applicable law at the time of the occurrence. The rights and obligations set forth in this paragraph shall survive the expiration or earlier termination of this Lease. B. Special Claims - Developer agrees to defend, at its own cost, and to protect, indemnify, and otherwise hold harmless, the City, including its officers, agents, and employees (including but not restricted to the posting of bond and release of attachment) from and against any and all claims in any way arising out of or in connection with the construction, repair, or maintenance work undertaken hereunder by, through or on behalf of Developer, including but not restricted to attachments, liens or levies, and whether or not the claim is meritorious, made, failed or asserted by any party other than Developer or Sublessee against the City, including its officers, agents, and employees or the Premises or improvements thereon or part thereof, or monies owing to the Airport. C. Notice - Notwithstanding the above identifications, Developer must give Aviation Director notice of any matter covered hereby and forward to Aviation Director copies of every demand, notice, summons, or other process received in any claim or legal proceeding covered hereby within ten (10) working days of Developer's receipt of said notice, demand, summons, or other process. D. intentionally omitted. 29. Insurance: Developer must provide insurance in the amounts and types of coverages required by the City's Risk Manager ( "Risk Manager "), a copy of which is attached and incorporated as Exhibit C. Developer must cause certificate(s) of insurance to be provided to the Aviation Director and Risk Manager thirty (30) days prior to the annual anniversary date of the effective date of the Lease, which shows the level and type of insurance. The issuer of the certificate of insurance must provide Aviation Director thirty (30) days written notice, by certified mail, prior to cancellation, non - renewal, or material change in the insurance policy(ies). Risk Manager will annually assess the level and types of insurance required by the Lease. Risk Manager can reasonably increase or decrease the level or types of insurance by giving Developer notice no Tess than sixty (60) days prior to the annual anniversary date of the effective date of the Lease. Developer shall have thirty (30) days to procure the changed insurance and provide written proof of insurance to Aviation Director. All insurance required by this Lease must be primary insurance and not in excess of or contributing with other insurance which Developer may carry. All policies must name City as an additional insured. The applicable insurance policies required by this Lease must apply separately to City as if separate policies had been issued to Developer and City. The amounts of all required insurance policies must not be deemed a limitation of Developer's covenant to indemnify City and, if Developer or City becomes liable in an amount in excess of the amount(s) of said policies, then Developer must indemnify City from the whole —217— 13 thereof, except in the event of grossly negligent or willful misconduct on the part of City, its officers, or employees. 30. Notice: Notices are sufficient if in writing and sent by certified mail, return receipt requested, postage prepaid, or by overnight delivery service with proof of delivery, or by facsimile followed by written notice confirmed by mail or other delivery service, as addressed below: If to City: Director of Aviation Corpus Christi International Airport 1000 International Drive Corpus Christi, Texas 78406 Office: (361) 289 -0171 Fax: (361) 289 -1251 If to Developer: Corpus Christi Developments 1, L.L.C. doing business as Corpus Christi FXG, L.L.C. 4520 Madison, Suite 100 Kansas City, Missouri 64111 Office: (816) 389 -5700 Fax: (816) 389 -5701. Anv notice required to be given to Sublessee: FedEx Ground Package System, Inc. 1000 FedEx Drive Moon Township, PA 15108 Attention: Real Estate Department — Facility #784 Office: (412) 269 -1000 Fax: (412) 859 -2655 Or to any other address that may be designated in writing from time to time by the parties. 31. GENERAL PROVISIONS: A. Mineral Rights - City expressly reserves all water, gas, oil and mineral rights in and under the soil beneath the Premises in which it holds an interest, but testing for and/or removal of any such City -owned gas, oil, or minerals shall be done in a manner so as not to disturb the Premises or disrupt the operation of the business being conducted thereon. B. No Waiver of Forfeiture - Any failure or neglect of City or Developer at any time to declare a forfeiture of this Lease for any breach or default whatsoever hereunder does not waive City's or Developers right thereafter to declare a forfeiture for like or other or succeeding breach or default. C. Force Majeure - Neither City nor Developer will be deemed to be in breach of this Lease if either is prevented from performing any of its obligations hereunder by reason of force majeure. uForce Majeure" for the purposes of this Lease means any prevention, delay, or stoppage due to strikes, lockouts, labor disputes, acts of God, including inclement weather and /or periods of rain or snow, inability to obtain labor or materials, or reasonable substitutes therefore, governmental restrictions or requirements, governmental regulations, governmental controls, inability to timely obtain governmental approvals, enemy or hostile governmental action, civil commotion, fire or other casualty, and other causes beyond the reasonable control of the party obligated to perform. All of the foregoing events excuse the performance by either party for a —218— 14 period equal to any prevention, delay, or stoppage, including the obligations imposed with regard to commencement or payment of rental and other charges to be paid by Developer pursuant to this Lease and the obligation of City to deliver the Premises. D. Quiet Enjoyment - City covenants that it has the authority to execute this Lease, that at commencement of the Lease, City has good title to the Premises and that throughout the term hereof, Developer will have peaceful and uninterrupted possession of the Premises subject to Developer's payment of rent and other charges and to its performance of the covenants of this Lease. City agrees to remedy any violation of quiet enjoyment caused by City or one of the other tenants and to honor Developer's tenancy for the term of the Lease. E. Rules and Regulations - Aviation Director may adopt and enforce reasonable rules and regulations to be uniformly applied to similar uses and users of similar space, which Developer agrees to observe and obey with respect to the use of the Premises and the health, safety and welfare of those using the Premises. F. Venue - Venue of any action brought under this Lease lies in Nueces County, Texas, exclusively, where the Lease was executed and will be performed. G. Successors and Assigns - Subject to the limitations upon assignment and transfer herein contained, this Lease binds and inures to the benefit of the parties hereto, and their respective successors and assigns. H. No Third Party Benefit - No provision of this Lease creates a third party claim against the City or the Developer beyond that which may legally exist in the absence of any such provision. I. Taxes and Licenses - Developer must cause to be paid any and all taxes of whatever character, including ad valorem and intangible taxes, that may be levied or charged upon the Premises, leasehold Improvements, or operations hereunder and upon Developer's rights to use the Premises, whether the taxes are assessed against Developer or City, prior to the past due date. Developer shall cause to be paid any and all sales taxes arising in connection with the occupancy or use of the Premises whether the taxes are assessed against the Developer, any sublessee or City. Developer must obtain and pay for all licenses or permits necessary or required by law for the construction of Improvements and must require any sublessee to obtain and pay for all licenses and permits necessary or required by law for the installation of equipment and furnishings and any other licenses necessary for the conduct of its operations hereunder. If Developer wishes to contest any tax or charge, that contest will not be a default under the Lease so long as Developer diligently prosecutes the contest to conclusion and promptly pays whatever tax is ultimately owed. Further, Developer shall cause any taxes not being contested to be paid prior to the past due date. J. Trash and Refuse - Developer must arrange for the collection and lawful disposal of all trash and other refuse resulting from operations on the Premises; must provide and use suitable sealed fireproof receptacles approved by Aviation Director for all trash and other refuse generated by the use of the Premises; must prohibit piling of boxes, barrels or other similar items in or within view from a public area; must comply with all applicable laws and regulations relative to trash disposal; and must pay or cause to be paid the costs associated with trash removal and disposal. K. Terms Binding an Successors and Assigns - All of the terms, covenants and agreements herein contained shall be binding upon and shall inure to the benefit of the heirs, successors and assigns of Developer and City. —219— 15 L. Estoppel - Both parties agree that, at any time and from time to time at reasonable intervals, within fifteen (15) business days after written request by the other party, said receiving party will execute, acknowledge and deliver to the party designated by the requesting party, a certificate in a form as may from time to time be provided, certifying to the extent true and correct the following, as well as any other provision reasonably requested by the other party: (a) that Developer's Sublessee has entered into occupancy of the Premises and the date of said entry if requested; (b) that this Lease is in full force and effect, and has not been assigned, modified, supplemented or amended in any way (or if there has been any assignment, modification, supplement or amendment, identifying the same); (c) that this Lease represents the entire agreement between City and Developer as to the subject matter hereof (or if there has been any assignment, modification, supplement or amendment, identifying the same); (d) the date of commencement and expiration of the term; (e) that all conditions under this Lease to be performed by City, if any, have been satisfied (and if not, what conditions remain unperformed); (f) that, to the knowledge of the signor of said writing, no default exists in the performance or observance of any covenant or condition in this Lease and there are no then - existing defense or offsets against the enforcement of this Lease by City or, instead, specifying each default, defense or offset of which the signor may have knowledge; and (g) the amount of rent or other charges, if any, that has been paid in advance and the amount of security, if any, that has been deposited with City. M. Leasehold Mortgage - As used herein, "Leasehold Mortgage" means the mortgage or deed of trust covering Developer's Leasehold interest in this Lease given by Developer to leasehold mortgagee to secure repayment of funds advanced or to be advanced by a leasehold mortgagee to Developer to construct facilities on the Premises (the "Project "). As used herein, "Leasehold Mortgagee" means the mortgagee or beneficiary under the Leasehold Mortgage. As used herein, mortgage means any mortgage, deed of trust or other indenture consisting of a lien on Developer's leasehold interest created hereunder, together with a promissory note or obligation or bond which it secures. Subject to the conditions set forth herein, Developer may mortgage its leasehold interest created hereunder, solely for the purpose of (1) obtaining financing to construct the Project, including any additional construction or alteration thereof, made subsequent to the initial construction, (2) refinancing said construction mortgage, and (3) providing financing in connection with the assignment or transfer by Developer of its interest in this Lease and its leasehold interest created hereunder; provided, however, that with respect to the financing described in clauses (2) and (3) above, the principal amount of any mortgage must not be greater than the original principal amount of the mortgage obtained to construct the Project, including any additional construction or alteration thereof, made subsequent to the initial construction, and as provided: 1. Said mortgage in no way affects or diminishes City's interest in the Premises, or its rights under this Lease, nor relieves Developer of any of its obligations hereunder; 2. Under no circumstances is City's leasehold interest in the Premises subordinate to said mortgage; 3. Said mortgage covers no interests in any real property other than Developers leasehold interest in the Premises hereunder; and 4. The making of said mortgage by Developer will not be deemed to constitute an assignment or transfer of this Lease, nor will any mortgagee be deemed an assignee or transferee of this Lease. 5. Rights of Leasehold Mortgagees: a. No Leasehold Mortgage is binding upon City in the enforcement of —220— 16 its rights and remedies under this Lease unless and until a copy thereof has been delivered to Aviation Director; b. City Manager agrees to execute an estoppel certificate and any other similar documentation as may reasonably be required by Leasehold Mortgagee so as to certify to the status of this Lease and to the performance of Developer hereunder as of the date of said certification; c. Developer shall furnish Aviation Director a written notice setting forth the name and address of any Leasehold Mortgagee; and d. If a Leasehold Mortgagee or purchaser at foreclosure of the mortgage acquires Developer's leasehold interest in the Premises by virtue of the default of Developer under the mortgage or otherwise, this Lease will continue in full force and effect so long as Leasehold Mortgagee or purchaser at foreclosure is not in default hereunder, including the obligation to timely pay rent. For the period of time during which Leasehold Mortgagee or any purchaser at foreclosure of a mortgage holds Developer's leasehold interest in the Premises, Leasehold Mortgagee or said purchaser becomes liable and fully bound by the provisions of this Lease. 6. With respect to any Leasehold Mortgagee of the Premises, City agrees that the following apply: a. If requested by a Leasehold Mortgagee, who is duly registered in writing with Aviation Director, any notice from City affecting the Premises must be simultaneously delivered to Developer and said Leasehold Mortgagee at its registered address, and if so registered, no notice of default or termination of this Lease affecting the Premises given by City shall be deemed legally effective until and unless like notice has been given by Aviation Director to said Leasehold Mortgagee; b. Any Leasehold Mortgagee entitled to said notice shall have any and all rights of Developer with respect to the curing of any default hereunder by Developer; and c. City will not enter into any material modification of this Lease affecting the Premises without the prior written consent thereto of each Leasehold Mortgagee entitled to notice as provided in this Section 31. The foregoing does not apply nor may it be construed to apply to any right City may have to terminate this Lease pursuant to its terms. Developer must provide any Leasehold Mortgagee with notice of any proposed modification. 7. If City elects to terminate this Lease for any material default by Developer with respect to the Premises, the Leasehold Mortgagee that has become entitled to notice as provided in this section has not only any and all rights of Developer with respect to the curing of any default, but also the right to postpone and extend the specified termination date of the Lease ( "Leasehold Mortgagee's Right to Postpone "), contained in any notice of termination by City to Developer ( "Termination Notice "), for a maximum of ninety (90) days, subject to the following conditions: a. Leasehold Mortgagee must give Aviation Director written notice of the exercise of Leasehold Mortgagee's Right to Postpone at least ten (10) days prior to the date of termination specified by Aviation Director in the Termination Notice and simultaneously pay to City all amounts required to cure all defaults then existing (as of the date of the exercise of Leasehold Mortgagee's Right to Postpone) which may be cured by the payment of a sum of money. —221— 17 b. If Leasehold Mortgagee's Right to Postpone is exercised, Leasehold Mortgagee must pay any sums and charges which may be due and owing by Developer and promptly undertake to cure, diligently prosecute, and as soon as reasonably possible, complete the cure of all defaults of Developer with respect to the Premises which are susceptible to being cured by Leasehold Mortgagee, Leasehold Mortgagee's exercise of its Right to Postpone may extend the date for the termination of this Lease specified in the Termination Notice for a maximum of six (6) months. c. If, before the date specified for the termination of this Lease as extended by a Leasehold Mortgagee's exercise of its Right to Postpone, Leasehold Mortgagee has performed and observed all of Developer's covenants and conditions under the Lease with respect to the Premises and no further defaults with respect to the Premises have occurred which have not been timely cured, then all defaults under this Lease, with respect to the Premises, will be deemed to have been cured and City's Termination Notice will be deemed to have been withdrawn. d. Nothing herein may be deemed to impose any obligation on City's part to deliver physical possession of the Premises to a Leasehold Mortgagee. e. If more than one Leasehold Mortgagee seeks to exercise any of the rights provided for in this Section 31, the most senior lien holder is entitled, as against the others, to exercise said rights. Should a dispute arise among Leasehold Mortgagees regarding the priority of lien, Leasehold Mortgagees must provide evidence substantiating the correct priority of the competing liens to the satisfaction of the City Attorney prior to taking any action with respect to exercising said Iienholder rights. N. Intentionally Omitted. O. Radio Antenna - Subject to Aviation Director's prior written approval as to height and location, which will not be unreasonably withheld, conditioned or delayed, Developer may furnish and install, at its own expense, a radio antenna either adjacent to the Improvements or on the roof of the Improvements on the Premises subject to (a) any and all federal, state and local laws, ordinances, statutes, rules, regulations and orders applicable thereto; (b) Developer's obtaining any and all building and other permits, licenses and other approvals with respect thereto; (c) the antenna and building both must be structurally sound and not adversely affect the soundness of, or the condition of, the roof and /or other parts of the building; and (d) any and all costs of maintaining and operating the same must be paid entirely by Developer. Upon the expiration or earlier termination of this Lease, Developer shall cause the removal of the antenna(s) and the restoration of any damage to the Improvements and Premises caused by the installation and/or removal thereof. Developer shall be responsible for all costs for the repair and maintenance of said installation of the antenna. P. Intentionally Omitted. Q. Intentionally Omitted. R. Delegation — Any obligations of the Developer required by this Lease may be delegated to any sublessee by the terms of the sublease between the parties, provided that such delegation shall not relieve Developer of its liability and responsibilities under this Lease. —222— 18 EXECUTED IN DUPLICATE ORIGINALS this day of September, 2010, by the authorized representative of the parties. Attest: Armando Chapa City Secretary '441 ved a7 to legal fo Elizab,. • R. Hundley Assistant City Attorney for the City Attorney 9 City of Corpus Christi `Angel R. Escobar City Manager 2010 Developer: C'rpu- hri =} evelo merits 1, L.L.C., doing business as Corpus Christi FXG L.L.C. By: Name: Kevin R. Jones Title: Managing Member Date: September 2, 2010 ACKNOWLEDGMENT STATE OF MISSOURI § COUNTY OF JACKSON § KNOW ALL BY THESE PRESENTS: This instrument was acknowledged before me on September 2, 2010, by Kevin R. Jones, an authorized represergatafi Corpus Christi Developments 1, L.L.C., doing business as Corpus Christi FXG, L.L.C., a Texas Iimitia liability company, on behalf of the company. nog ti Ha* samba uswesuwv Aionoa vow mews isois ins A vw anvil ARON WHOM MUM No =ry Pu. ic, State of Missouri —223— 19 LNY IN CE 1N9ffi 0DS i CONSULTANTS 901 Noviger os, idles 300 Corpus ctWtM1, TOWS 71408 Moms (391)103.1994 Face (301) 883.195 Field note dei dipfion for as lib acre tract of land out of Block 23, Z C. Russell Farm Blocks, a sub- division of Nuecee County, Taxes, recorded in Volume 3, Page 53, Map Records, Nuec cs County, Texas Map Records, pfd 8.11 acre tract of land being more particularly described by metes and bounds as Mows: Begiasing eta 5/0 inch iron rod set in the Northeast right of way line of Pinson Drive, for the most Westerly and beginning come of the tract herein deacrihed, from whence the intersection of the Northeast right of way lime of said Pinson Drive and .the Southwest right of way line of State Highway 44, bears North 3747%37" West, a distance of 703.39 feet; Thence North 45°18' -15" Bast, within said Block 23, 3. C. Russell Ferro Blocks, at approximately 515.55 feet pass the center of a pipeline running Bast -West in ail, a distance of 517.77 feet to a 5/8 inch iron rod sex for the Northwest corner of the tract herein described; Thence Saath 19°- 89' -43" Ent, at eppro dznetely 17.41 feat pass the center *fa pipeline in all a distance of 15.83 feet to a 318 inch iron rod set for a coiner of the tract herein described; Thence South 44°-41'45" East, a distance of 3993.51 feet to a 5/8 inch iron rod Bet for a corner of the tract herein described; Thence South 18°-49' -50" East, atif l within said Block 23.3. C. Russell Farm Blocks, a distance of 163.72 feat to it S/8 inch iron rod found in the adopted north tight of way line of Business Centre Boulevard, for the most Easterly corner of the tract herein described; Thence in a Wertely and Sly direction with said adopted North and Northwest ' of afraid Business Centre > way line Boulevard, and with the arc ofs circular curve to the Ie;fl; whose Cleland AaSle is .43°-0P-52; whose Radian 111330.00 feet„ Chord Bearing N 67°-07'-49" E, an Arc Mimes of 247.14 feet tot a 5 / 8 inch iron rod S o u n d f o r t h e P.T. of said curve and fora artier of the tract herein desaibed; Thence South 4546'43" West, with the adopted Nortiuweat right of way line of acid Business Centre Boulevard, a distance of 319.92 fret to a 5/8 inch iron rod Sand for the Point of Curve of a circulu curve in the Northeast right ofway line of said Pinson Drive and for a corner of the paint herein described; PAGE Thence in a Westerly and Northwesterly direction, with the arc of said circular curve, whose Central Angle is 19°-41 =22" whose Radins is 15.00 feet, a Chord Bearing N 19°32' -26" W, an Arc Distance of 23.41 fleet to a S/8 inch iron rod found fbr the Point of Tangency of said curve and t r a corner of the tract hemma described; Thence North 44 °- 41' -45" West, with the Northeast right of way line of said Pinson Drive, a distance of 546,32 Ord to the Point of Beginning Containing more or less 5,15 acres ofland. Basis for Bearings Texas State Plane, Zone 4205, Tawas South Zone (NAD43). State of Terse County oiNaeces 1, Monocle Oliveira a Registered Professional Land Surveyor, of LNV Inc, do hereby ceatify that the foregoing Pldd Note Description was prepared from information ofrrcord and from a survey made on the ground under my direction, and that this description conforms to the aurrrent Teams Surveyor's Association Standards and Specifications fix a Category 1 -A, Land Tide Survey. This the 29 day of /*dal 2010. Horatio Oliveira State of Texas Lic eec No. 1415 PAGE 2 misumarairmmeaumas 1. LLIESEILILIABILITEINSUJIMCE A. The Lessee must not commence work under this agreement until he/she has obtained all insurance required herein and such insurance has been approved by the City Manager, or designee, ("City Manageaa'). Nor may theLeasee slloweny subcontractor to commence work until all similarinauranc required of the subcontractor has been so obtained. Each subcontractor must obtain equivalent insurance as that required of Lessee. B. The Lessee must furnish to the City's Risk Manager 2 copies of Certificates of Insurance, with the City named as an additional insured for all liability policies, and a blanket waiver of subrogation on all applicable policies showing the following minimum coverage by an insurance company(s) acceptable to the City's Risk Manager. TYPE OF INSURANicE MINIMUM INSURANCE COVERAGE 30-Day Notice of Caaedrpton xequtraul on all certificates Bodily Injury and Property Damage Cno ntercW General Liability baud's* 1. Commercial Form 2. Premises • Operations 3. Products/ Compl ted'Operations Hazard 4. Contractual lemma* 3. Broad Fora Property Damage 6. Independent Contractors 7. Personal haury $ 1,000,000 COMBINED SINGLE LIMIT AUTOMOBILE LJAe1LITY• -OWNED NON -OWNED OR RENTED $1,000,000 COMBINED SINGLE LIMIT WORKERS' COMPENSATION EMPLOYERS' LIABILITY WHICH COMPLIES WITH THE TEXAS WORKERS' COMPENSATION ACT AND PARAGRAPH II OF THIS EXHIBIT 5100,000 BUILDERS RISK L All Risk Fonn Equal to total coat of construction, must be carried until construction Is completed and accepted by Lessee. to the event of future construction, this requirement will apply in the same manner to the Mel cost of construction. PROPERTY and CAUSUALTY INSURANCE Against loss or damage to improvements due to fire, ilghtning and all other perils Included in standard extended coverage policies Including vandalism and malicious mischief $ NO LESS THAN 90% OF REPLACEMENT VALUE, requirement begins upon completion and acceptance of construction by Lessee. C. In the event of accidents of any kind, the Lessee must furnish the Risk Manager with copies of all reports of such accidents at the same time that the reports are forwarded to any other interested patties. MDCJAIrbomn Express Inn, req. 94-99 ep RiskMgrnt. n A. The Lessee must obtain workers' compensation coverage through a licensed insurance company or through self - insurance obtained in accordance with Texan law. If such coverage is obtained through alkalised company, the contract for coverage must be written on apollcy and endorsements approved by the Texas Department of Insurance. If such covctage is provided through self insurance, then within 10 calendar days after the date the Contract Administrator requests that the Lessee sign the contract dacumcnts, the Louse must provide the Risk Manager with a copy of its certificate of authority to self-insure its workers' compensation coverage, as well as a letter signed by the Lessee stating that the certificate of authority to self insure remains in effect and is not subject to any revocation proceeding then pending before the Texas Workers' Compensation Commission. Further, if at any time before final acceptance of the Work by the Lessee, such certificate of authority to self-insure is revoked or is made the subject of any proceeding which could result in revocation of the certificate, then the Lessee must immediately provide written notice of such facts to the City Manager, by certified mail, return receipt requested directed to City of Corpus Christi, Aviation Department, P.O. Sox 9277, Corpus Christi, TX 711469- 9277 ► Attention: Contract Administrator. Whether workers' compensation coverage is provided through a licensed insurance company or though self-insurance, the coverage provided must be in an amount sufficient to assure that all workers' compensation obligations incurred by the Lessee will be promptly met. 5. Certificate of Insurance: C. * The City of Corpus Christi must be named as an additional hawed on the liability coverage, except for the Workers' Compensation coverage and a blanket waiver of subrogation on all applicable policies. • If your insurance company uses the standard ACORD form, the cancellation clause (bottom right) must he amended by adding the wording "changed ar" between "be" and "canceled", and deleting the wards, "endeavor to", and deleting the wording after "left". • The name of*. project must be listed under "Description of Operations" * At a minimum, a 30-day written notice of change or cancellation is required. if the Certificate of Insurance on its face does not show on its face the existence of the coverage required by items 1.B (1) -(8), an authorized representative ofthe insurance company must include a letter specifically stating whether items 1.H. (l) -($) are included or excluded. 1II. A completed Disclosure of Interest must be submitted with your proposal. 14 NO ATTACHMENT FOR THIS ITEM 15 NO ATTACHMENT FOR THIS ITEM 16 NO ATTACHMENT FOR THIS ITEM 17 CITY COUNCIL AGENDA MEMORANDUM City Council Action Date: October 12, 2010 AGENDA ITEM: Motion authorizing the City Manager or his designee to execute a service agreement with the Corpus Christi Regional Economic Development Corporation (CCREDC) whereby CCREDC will manage the City's economic development program for annual fee of $125,000. The term of the agreement is August 1, 2010 through July 31, 2011. ISSUE: During the FY 10 -11 budget process, Council approved the consolidation of the City's Economic Development Department and the CCREDC. CCREDC will assume the Economic Development Manager position and related City economic development functions for the duration of this contract. REQUIRED COUNCIL ACTION: Passage of motion to authorize the execution of this agreement. PREVIOUS COUNCIL ACTION: None CONCLUSION AND RECOMMENDATION: Staff recommends authorization to execute the agreement. Oscar Martinez, ACM oscarm @cctexas.com 826 -3189 BACKGROUND INFORMATION During the FY 10 -11 budget presentation, City Council voted to consolidate the City's Economic Development Department with the Corpus Christi Regional Economic Development Corporation (CCREDC). The term of this agreement is August 1, 2010 to July 31, 2011, for the annual payment of $125,000. In this agreement, the CCREDC agrees to provide professional services to manage the City's economic development program, including performing the functions previously performed by the City's Economic Development Department. This agreement supplements, but is separate and distinct from, the Consulting Services Agreement last executed on August 31, 2010 in the amount of $575,000. The following is an outline of the agreement: ➢ The City will provide an office for the use of the CCREDC's employees at City Hall; the office will be staffed as needed. ➢ CCREDC shall furnish to the City Manager a detailed written performance report of its economic development services and activities performed under this agreement. ➢ As a result of this agreement, the City will conduct a reduction in force (RIF) and eliminate the City's Economic Development Manager position; as a condition of this agreement, the CCREDC will offer the City's current Economic Development Manager employment with CCREDC. ➢ CCREDC shall reimburse the City for all salary, compensation, and benefits paid by the City to or on behalf of the City's current Economic Development Manager subsequent to August 1, 2010. ➢ CCREDC will liaison directly with the City Manager on economic development proposals. ➢ CCREDC will counsel prospective economic development applicants, receive applications, and review applications to determine if the applicant qualifies for incentives and the level of benefit. ➢ CCREDC will initiate Enterprise Zone applications with the State of Texas. ➢ CCREDC will conduct or contract for any required economic studies or other investigations and will be responsible for the first $1,000 of any study completed. ➢ CCREDC will develop programs to assist new and existing small and start-up companies in the creation of jobs. ➢ CCREDC will review the City's economic development policies and incentives on an annual basis and recommend any necessary modifications. ➢ CCREDC will prepare detailed outline of recommended deal structure and terms of any necessary agreement. ➢ CCREDC will conduct performance audits and compliance testing annually on all current economic development agreements, certify compliance with agreement, certify eligibility for periodic payments, and report findings to the City. ➢ CCREDC will prepare draft agenda items using standard City formats. ➢ CCREDC will deliver quarterly written updates on economic development activities to the City Manager and make summary presentations to the City Council. ➢ CCREDC will maintain the City's economic development website. ➢ CCREDC will assist the City with special projects that are not related to the creation or retention of primary jobs, development of small businesses within the City, but have the potential to generate significant positive economic and/or fiscal impacts, including, but not limited to, tourism amenities or attractions, resort development, and destination retail development. ➢ CCREDC will provide support for City created corporations and political economic development entities, such as Type A Board and the boards of the City's tax reinvestment zones. ➢ CCREDC will assist or manage special economic related projects as directed by the City Manager. The CCREDC will be responsible for the administration of the following City economic incentive policies as outlined in Exhibit A of the Agreement: ➢ Tax Abatement ➢ Chapter 380 Agreement ➢ Tax Increment Financing ➢ Industrial District ➢ Business & Job Development Corporation (Type A); only as it relates to ED ➢ Freeport Exemptions ➢ Large Retail /Mixed Use Development & Redevelopment ➢ Renewal Community or other federally designated program ➢ Small Business Disabled Access Credit ➢ Small Business Support Guidelines ➢ Will assist with other State and Federal programs as applicable SERVICE AGREEMENT THE STATE OF TEXAS KNOW ALL BY THESE PRESENTS COUNTY OF NUECES This Service Agreement ( "Agreement ") is executed by and between the City of Corpus Christi, Texas, a municipal corporation ( "City ") and the Corpus Christi Regional Economic Development Corporation, a Texas nonprofit corporation organized for the purpose of promoting economic development of the Corpus Christi area ( "CCREDC "). 1. Description of Services. CCREDC agrees t� provide professional services to manage the City's economic development program, including performing the functions previously performed by the City's Economic Development Department. (a) The functions of the City's Economic Development Department, as described in the City's Incentive Policies 2009 -2011, are enumerated in Exhibit A, which is attached to and incorporated into this Agreement. Exhibit A designates which functions must be performed by CCREDC under this Agreement to the satisfaction of the City, and those reserved to City Departments. (b) Exhibit B, which is attached to and incorporated into this Agreement, describes the roles of CCREDC and various City departments for those functions that are to be performed in whole or in part by CCREDC. (c) The City will provide an office for the use of CCREDC's employees at City Hall. The office will be equipped with furniture, a telephone, computer, utilities, and access to the City's GroupWise email system. (d) CCREDC will staff the office as needed. The City Manager will determine when staffing is needed. 2. Records. CCREDC agrees to record the revenues received from the City for economic development services as a portion of its general revenues on its books of account. CCREDC agrees to record all of its revenues and expenditures in financial statements prepared in accordance with generally accepted accounting principles, which financial statements shall be made available to the City Manager or designee upon request. 3. Reports. Quarterly on dates designated by the City Manager, CCREDC shall furnish to the City Manager a detailed written performance report of its economic development services and activities performed under this Agreement that reflects overall activity, meetings, contacts, and other activities conducted by CCREDC, such reports are to include such data as may be reasonably required by the City. Any communications or contacts which are of a confidential nature shall be limited to a general description only. The City Manager will schedule and approve presentations by the CCREDC to the City Council. Page 1 of 5 CCREDC CONSULTING SERVICES AGREEMENT 10012010 —246— 4. Compensation. The City agrees that for the economic development services performed by CCREDC, the City shall pay to CCREDC the sum of $125,000 for the initial one -year period covered by this Agreement, and thereafter that amount set by the City in its annual budget each year for compensation under this Agreement. The fees and expenses due for economic development services under this Agreement shall be payable on a quarterly basis, at the start of each quarter. 5. Pre - payment Review. Prior to issuing any payment, City reserves the right to request and receive sufficient information from CCREDC to ensure that CCREDC meets the requirements of this Agreement. General Provisions 6. Supplemental Agreement. This Agreement supplements, but is separate and distinct from, the Consulting Services Agreement between the parties, last executed on August 22, 2008, and the Memorandum of Understanding, dated December 13, 2005. Nothing in this Agreement, the Consulting Services Agreement, or Memorandum of Understanding prevents the City from assuming responsibility for the administration of its economic development functions. 7. Contracts. The City and CCREDC agree that in no event shall the City be liable for any contracts made by CCREDC with any person, firm, corporation, association or governmental body. 8. Non - liability. The City and CCREDC agree that in no event shall the City be liable for any damages, injuries, or losses charged to or adjudged against CCREDC arising from its operations, or the use or maintenance of its facilities. 9. Annual Appropriations. The parties mutually agree and understand that funding under this Agreement is subject to annual appropriations by the City Council and that each fiscal year's funding must be included in the budget for that year and is not effective until so approved by the City Council. 10. City Corporations. Nothing is this agreement infringes on the duties and obligations of any corporation or political entity created or managed by the City, or the City Council's oversight role or responsibilities for the corporations or political entities that may be involved in economic development related activities. 11. Term. The term of this Agreement shall commence as of August 1, 2010, and it shall continue until July 31, 2011, subject to earlier termination as provided herein, and subject to renewal automatically on an annual basis, unless either party terminates its participation by giving written notice to the other party at least thirty days before the end of each annual term. 12. Termination. Either party may terminate this Agreement at any time for any reason by giving thirty days prior written notice to the other party. Upon early termination by either party, the City is no longer obligated to compensate CCREDC or make any additional quarterly payments to CCREDC. CCREDC will refund the portion Page2of5 CCREDC CONSULTING SERVICES AGREEMENT 10012010 —247— of any advance quarterly payment received from the City related to services after the effective date of the termination of this Agreement. 13. Change of Name. CCREDC specifically reserves the right to change its name as a corporate entity and do business under one or more assumed names in compliance with the laws of the State of Texas. No such change of name or use of additional names shall be deemed a modification of this Agreement. CCREDC shall promptly notify City of any such change of name. 14. Employees. (a) As a result of this Agreement, the City will conduct a reduction in force ( "RIF") and eliminate the City's Economic Development Manager position, and the incumbent in that position will be afforded the individual's rights under the City's RIF policies. (b) CCREDC as a condition of this Agreement, will offer the City's current Economic Development Manager employment with CCREDC, at a salary comparable to the salary currently being provided by the City and at the current benefit package currently being offered to all CCREDC employees. Furthermore, CCREDC will not, prior to the first anniversary of this Agreement, re- assign the City's former Economic Development Manager, without the prior consent of City. (c) CCREDC has complete and absolute discretion and authority with respect to the functions, qualifications, other terms and conditions relating to its employees. (d) CCREDC shall reimburse the City for all salary, compensation, and benefits paid by the City to or on behalf of the City's current Economic Development Manager subsequent to August 1, 2010, including, but limited to, salary, contributions to the Texas Municipal Retirement System, basic life insurance, and long term disability insurance. 15. Equal Opportunity Employer. CCREDC agrees to abide by the equal opportunity requirements of the City for CCREDC's employees and shall: (a) Treat all applicants and employees without discrimination as to race, color, religion, sex, national origin or disability; and (b) Identify itself as an "equal opportunity employer" in all help- wanted advertising or requests. 16. City Economic Development Liaison. CCREDC will liaison directly with the City Manager on economic development proposals. The City Manager will designate an official to serve as the liaison between the CCREDC and the City staff on process and procedural issues, including, but not limited to preparation of various agendas, agenda items, and public notices. Page 3 of 5 CCREDC CONSULTING SERVICES AGREEMENT 10012010 —248— 17. Notices. All notices, requests, or other communications related to this Agreement shall be made in writing and may be given by: (a) Depositing same in the United States Mail, postage prepaid, certified, return receipt requested, addressed as set forth in this paragraph; or (b) Delivering the same to the party to be notified. Notice given in accordance with (a) hereof shall be effective upon deposit in the United States mail. The notice addresses of the pasties shall, until changed as provided herein, be as follows: City: City of Corpus Christi, Texas 1201 Leopard Street P.O. Box 9277 Corpus Christi, Texas 78469 Attn: City Manager CCREDC: Corpus Christi Regional Economic Development Corporation 800 N. Shoreline Blvd. Suite 1300 S Corpus Christi, Texas 78401 Attn: President 18. Severability. If for any reason any section, paragraph, subdivision, clause, phrase, word or provision of this Agreement shall be held invalid or unconstitutional by final judgment of a court of competent jurisdiction, it shall not affect any other section, paragraph, subdivision, clause, phrase, word or provision of this Agreement, for it is the definite intent of the parties that every section, paragraph, subdivision, clause, phrase, word or provision hereof be given full force and effect for its purpose. 19. Lawful Service. The parties mutually agree that the services provided under this Agreement are lawfully authorized services which the City is purchasing from CCREDC. 20. Modifications and Counterparts. This Agreement may not be assigned by CCREDC without prior written approval of City. No amendments, modifications or other changes to this Agreement shall be valid or effective absent the written agreement of the parties. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which shall constitute but one and the same instrument. EXECUTED on the dates indicated below, but effective as of the 1st day of August, 2010. Page 4 of 5 CCREDC CONSULTING SERVICES AGREEMENT 10012010 —249— CORPUS CHRISTI REGIONAL ECONOMIC DEVELOPMENT CORPORATION By: Roland C. Mower President and CEO CITY OF CORPUS CHRISTI, TEXAS By: 'Angel R. Escobar City Manager ATTEST: By: Armando Chapa City Secretary APPROVED AS TO LEGAL FORM: Date: I Date: /5? � This / day of Ql- 74�e'' , 2010. By: R. Ja eini Fir Assistant City Attorney For City Attorney Page 5 of 5 CCREDC CONSULTING SERVICES AGREEMENT 10012010 —250— EXHIBIT A RESPONSIBILITY FOR ADMINISTRATION OF THE CITY'S ADOPTED ECONOMIC "INCENTIVE POLICIES 2009 - 2011" INCENTIVE PARTY RESPONSIBLE FOR PROCESSING APPLICATION AND ASSISTING APPLICANT Tax Abatement CCREDC Chapter 380 Agreement CCREDC' Tax Increment Financing CCREDC Public Improvement District City - Development Services Industrial District CCREDC Business & Job Development Corporation (Type A) CCREDC, except as related to the affordable housing program, ABC Arena, baseball stadium, and seawall. Freeport Exemptions State of Texas /w assistance from CCREDC Fast Track Permitting Process City - Development Services Large Retail /Mixed Use Development & Redevelopment CCREDC Renewal Community CCREDC Development Fee Reduction/Waiver City - Development Services Community Air Service Development Initiative City - Airport High Speed Connection City -- MIS Waiver of Tap Fees for Water and Wastewater City - Development Services Small Business Disabled Access Credit CCREDC Natural Gas Home Builder Rebate Program City -- Gas Municipal Management Districts City - Development Services A -- 1 CCREDC CONSULTING SERVICES AGREEMENT 10012010 -251- INCENTIVE PARTY RESPONSIBLE FOR PROCESSING APPLICATION AND ASSISTING APPLICANT Municipal Development Districts City -- Development Services Municipal Utility Districts City — Development Services Municipal Setting Designations City -- Development Services Neighborhood Empowerment Zone City — Development Services Texas Leverage Fund State of Texas /w assistance from CCREDC North American Free Trade Agreement (NAFTA) IZ CCREDC Emerging Technology Fund State of Texas /w assistance from CCREDC Skills Development Fund State of Texas /w assistance from CCREDC Economic Development Refund State of Texas /w assistance from CCREDC Industrial Revenue Bond Program State of Texas Iw assistance from CCREDC Section 108 Loan Guarantee Program City — Neighborhood Services Enterprise Zones CCREDC Texas Enterprise Fund Program State of Texas Iw assistance from CCREDC Texas Industry Development Loan Program State of Texas /w assistance from CCREDC Texas Preservation Trust Fund Grant Program City — Development Services Brownfields Economic Development Initiative City — Environmental Services Economic Development Initiative State of Texas /w assistance from CCREDC A 2 CCREDC CONSULTING SERVICES AGREEMENT 10012010 —252— INCENTIVE PARTY RESPONSIBLE FOR PROCESSING APPLICATION AND ASSISTING APPLICANT Economic Development Administration U.S. Economic Development Administration /w assistance from CCREDC Federal Historic Preservation Tax Incentives Program City — Development Services New Markets Tax Credit Program State of Texas /w assistance from CCREDC Small Business Support Guidelines CCREDC Notes: 1 CCREDC needs to confer with and obtain approval from the City Manager or designee on the availability of any potential City funding or staff support being proposed before an offer is made to the applicant since there are no funds dedicated to 380 agreements in the City's budget. 2 If the Renewal Community program is not reauthorized, but a replacement program is adopted, the CCREDC shall be responsible for processing applications for the replacement program. A - -3 CCREDC CONSULTING SERVICES AGREEMENT 10012010 —253— EXHIBIT B ECONOMIC DEVELOPMENT PROGRAM OR ACTIVITY ROLES 1. CCREDC role: a. Counsel prospective economic development applicants on available Federal, State, and local economic development programs. b. Receive economic development applications. c. initiate Enterprise Zone nominations with State of Texas. d. Review applications to determine if applicant qualifies and the level of benefit the applicant qualifies for. (1) Check to ensure the appropriate legal entity has submitted application. (2) If corporation or partnership, determine if entity is authorized to conduct business in Texas. (3) Verify authority of individual who will execute agreement for the entity with the City or appropriate City corporation. (4) Verify information stated in application. (5) Conduct preliminary credit checks on all applications, and thorough background checks, when directed by the City Manager or designee. (6) Prepare a detailed project summary for proposals /applications, including information on the company, industry, markets, and products. Each summary must document job creation and capital investment numbers for inclusion in the proposed agreement. e. Conduct or contract for any required economic studies or other investigations, including any necessary economic and fiscal impact analysis of the projects, independent analysis of the company's financial strength relative to industry standards, and prepare reports necessary for determination of a project's or company's eligibility for economic development assistance or continuation of assistance. The City Manager will determine if a more extensive economic study or investigation is needed for special projects that may have significant community impact. CCREDC will be responsible for the first $1,000 of any study completed. The City Manager and CCREDC will jointly determine whether any remaining costs must be borne entirely by the applicant, CCREDC, or City or what portion of the costs over $1,000 each entity may need to bear. f. Develop programs to assist new and existing small and start -up companies in the creation of meaningful, wealth producing jobs. B -- 1 CCREDC CONSULTING SERVICES AGREEMENT 10012010 —254— g. Review the City's economic development policies and incentives on an annual basis and recommend any necessary additions, deletions, or modifications to the City Council prior to the City's budget preparation cycle. h. Prepare detailed outline of recommended deal structure and terms of any necessary agreement. (1) Term of agreement. (2) Required investment, and deadlines for making investment. (3) Required number of jobs to be created, and deadlines for creation of jobs. (4) Required number of jobs to be retained, and time lines for retained jobs. (5) Incentives for exceeding minimum requirements. (6) Penalties for failure to meet minimum requirements. i. Conduct performance audits and compliance testing annually on all current economic development agreements, certify compliance with agreement, certify eligibility for periodic payments, and report findings to the City of Corpus Christi and any appropriate City created corporations or political entities, such as the Type A Corporation. (1) This requirement includes, but is not limited to: (a) Type A Corporation grants. (b) Tax abatement agreements. (c) Chapter 380 agreements. (d) Enterprise Zone projects awarded by State of Texas, including preparation of required reports to the State. (e) Renewal Community projects, includes preparation of required reports to the State of Texas. (2) This requirement does not include affordable housing agreements, which will be audited by Neighborhood Services, j. Prepare draft agenda items using standard City formats. k. Deliver quarterly written updates on economic development activities to City Manager, and make summary presentations to the City Council. Presentations B -- 2 CCREDC CONSULTING SERVICES AGREEMENT 10012010 —255— must be submitted to the City Manager for review prior to the scheduled City Council meetings. L In coordination with the City's MIS Department, maintain City's Economic Development website, including a review of content on at least an annual basis. m. Assist the City of Corpus Christi with special projects that are not related to the creation or retention of primary jobs, development of small businesses within the City, but have the potential to generate significant positive economic and/or fiscal impacts, including, but not limited to, tourism amenities or attractions, resort development, and destination retail development. n. Provide support for City created corporations and political economic development entities, such as the Type A Board and the boards of the City's tax reinvestment zones, including preparation of items proposed for adoption by the various boards. o. Assist City Attorney in development of model agreements and term sheets for use by the City of Corpus Christi and City created economic development corporations and political entities. p. Assist or manage special economic related projects when directed by the City Manager. 2. City Responsibility: a. Draft agreement w/ applicant. b. Draft service agreement between City and City corporation or City and CCREDC for administration of agreement with applicant. c. Draft resolutions authorizing agreements. d. Maintaining official files related to agreements in which the City or City corporation is a party. e. Schedule approval of agreements on City Council or City corporation agendas. f. Make periodic payment under applicable agreements. 3. Responsible City Staff: a. City Attorney: (1) Draft agreements and resolutions. B - -3 CCREDC CONSULTING SERVICES AGREEMENT 10012010 —256— b. City Secretary: (1) Maintain original agreements in which the City or a City corporation is a party. (2) Maintain minutes of City corporations. c. Finance: (1) Maintain financial records, and issue appropriate payments under agreement. d. Economic Development Liaison: (1) Schedule meetings of City corporations, and prepare agendas and public notices. (2) Schedule items for action of City Council. (3) Prepare final agenda items. B - -4 CCREDC CONSULTING SERVICES AGREEMENT 10012010 —257— MOTION - Motion authorizing the City Manager or his designee to execute a service agreement with the Corpus Christi Regional Economic Development Corporation (CCREDC) whereby CCREDC will manage the City's economic development program for annual fee of $125,000. The term of the agreement is August 1, 2010 through July 31, 2011. ATTEST: Armando Chapa Joe Adame City Secretary Mayor, City of Corpus Christi CCREDC CONSULTING SERVICES AGREEMENT 10012010 —258— 18 CITY COUNCIL _ AGENDA MEMORANDUM City Council Action Date: 10112/2010 AGENDA ITEM: Ordinance appropriating $180,496 from anticipated revenues in the No.1020 General Fund, changing the FY 2010 -2011 Operating Budget adopted by Ordinance No. 028683 by increasing revenues and expenditures by $180,496 each in the General Fund No. 1020 for additional personnel, a new wrecker, and operational costs to hold six more auctions in FY2011; and declaring an emergency. ISSUE: In 2009,15.9% of drivers involved in crashes failed to provide proof of financial responsibility. BACKGROUND INFORMATION: The Police Department can step up enforcement regarding no insurance violators at crash sites by towing these vehicles to the existing vehicle impound lot with a start date of January 1, 2011. This will entail: 1. Having monthly auctions to offset the increase in vehicles towed to the lot. 2. .Hiring two additional employees to handle the paperwork involved with sit more auctions. 3. Purchase of a new wrecker to move vehicles around to the auction lot. 4. Operational costs for six more auctions. Salaries and Benefits FY 2011 Two (2)Vehicie Impound Control Officer salaries, retirement, insurance (15 pp) $ 43,148 Operational costs $ 510,000 Office Supplies: $950.00 for 6 months/3 auctions= $316.67 X 6 auctions $ 1,900 Postage: certified mail $5.54 X 1019 units sold in FY1012 $ 2,823 Advertising costs: $500.00 (apprx.) per auction $ 3,000 Fuel costs: 150 gallons per auction @ $2.65 per_gallon $ 2,385 Payments to wrecker companies for 477 more tows @ $120 per tow $ 57,240 New wrecker $ 70,000 Total r.� $ 180,496 Revenues Will also increase with the increased tows and twice as many auctions. 953 drivers or 79 vehicles per month subject to tow. Prorated for FY 2011 = 477 vehicles 1. Collect towing and storage fees: a. Storage —6 days x $20 /day plus $20 in fees = $140 per vehicle = $66,780 b. Towing - $120 per vehicle (average) = $57,240 2. Additional Auction revenue estimate = 170 cars x 6 auctions x $500 per car = $510,000 REQUIRED COUNCIL ACTION: Authorization is requested to appropriate $180,496 in the Police Department Vehicle Impound FY 2011 budget in order to begin implementation. CONCLUSION AND RECOMMENDATION: Staff recommends appropriation. —261— . Troy Riggs Chief of Police Troyr�a7cctexas.com 886 -2603 FY 11 Expense FY 11 Revenue Add 6 auctions, add 2civilians, operational expenses, equipment $ 180,496 $ 510,000 Impound vehicles involved in crashes with no insurance : storage $ 66,780 impound vehicles involved in crashes with no insurance : towing $ 57,240 Total $ 180,496 $ 576,780 Net FY 2011 $ 396,284 REQUIRED COUNCIL ACTION: Authorization is requested to appropriate $180,496 in the Police Department Vehicle Impound FY 2011 budget in order to begin implementation. CONCLUSION AND RECOMMENDATION: Staff recommends appropriation. —261— . Troy Riggs Chief of Police Troyr�a7cctexas.com 886 -2603 ORDINANCE APPROPRIATING $180,496 FROM ANTICIPATED REVENUES IN THE NO. 1020 GENERAL FUND, CHANGING THE FY 2010 -2011 OPERATING BUDGET ADOPTED BY ORDINANCE NO. 028683 BY INCREASING REVENUES AND EXPENDITURES BY $180,496 EACH IN THE GENERAL FUND NO. 1020 FOR ADDITIONAL PERSONNEL, A NEW WRECKER, AND OPERATIONAL COSTS TO HOLD SIX MORE AUCTIONS IN FY 2011; AND DECLARING AN EMERGENCY. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF CORPUS CHRISTI, TEXAS: SECTION 1. That $180,496 is appropriated from anticipated revenues in the No. 1020 General Fund, changing the FY 2010 -2011 Operating Budget adopted by Ordinance No. 028683 by increasing revenues and expenditures by $180,496 each in the General Fund No. 1020 for additional personnel, a new wrecker, and operational costs to hold six more auctions in FY 2011. SECTION 2. That upon written request of the Mayor or five Council Members, the City Council (1) finds and declares an emergency due to the need for immediate action for the efficient and effective administration of City affairs; and, (2) suspends that Charter rule which requires an •ordinance to be considered and voted upon at two regular meetings, so that this ordinance is passed and takes effect as an emergency measure upon its first reading on this the of October, 2010. ATTEST: THE CITY OF CORPUS CHRISTI Armando Chapa, City Secretary Joe Adame, Mayor Approved as to form: October 4, 2010 T. isha Dang Assistant City Attorney For City Attorney TO THE MEMBERS OF THE CITY COUNCIL Corpus Christi, Texas For the reasons set forth in the emergency clause of the attached ordinance, an emergency exists requiring suspension of that Charter rule which requires an ordinance to be considered and voted upon at two regular meetings. Therefore, I /we request that you suspend said Charter rule and finally pass this ordinance on the date of its introduction, or at the present meeting of the City Council. Respectfully, Respectfully, Council Members Joe Adame Mayor, City of Corpus Christi The above ordinance was passed by the following vote: Joe Adame Chris N. Adler Brent Chesney Larry Elizondo, Sr. Kevin Kieschnick Priscilla G. Leal John E. Marez Nelda Martinez Mark Scott 19 CITY COUNCIL AGENDA MEMORANDUM City Council Action Date: October 12, 2010 AGENDA ITEM: Motion approving the 2010 Property Tax Levy of $79,413,745.40 based on the adopted property tax rate of $0.582269 per $100 valuation, in accordance with Section 26.09 (e) of the Texas Property Tax Code. ISSUE: Section 26.09(e) of the Texas Property Tax Code requires the assessor to submit the unit's tax levyto the governing body for formal approval. REQUIRED COUNCIL ACTION: Approval of motion approving the 2010 property tax levy as submitted. PREVIOUS COUNCIL ACTION: July 27, 2010 --- City Council adopted the City budget for fiscal year 2010 -2011 based on the proposed property tax rate of $0.582269 per $100 valuation. August 31, 2010 — City Council adopted an ordinance setting a property tax rate of $0.582269 per $100 valuation. August 31, 2010 - City Council approved an ordinance amending the FY 2010 -2011 operating budget adopted by Ordinance 028683 by increasing the estimated revenues for ad valorem taxes in Fund 1020 General Fund by $409,138 and decreasing the estimated revenues for ad valorem taxes in Fund 2010 Debt Service Fund by $1,468,468. CONCLUSION AND RECOMMENDATION: Staff recommends that the City Council approve the 2010 property tax levy of $79,413,745.40. Attachments: Background information Certification of Tax Levy for Tax Year 2010 Constance P. Sanchez Interim Director of Financial Services constancep @cctexas.com (361) 826 -3227 BACKGROUND INFORMATION The Texas Property Tax Code establishes rules for approval of the property tax levy. Section 26.09(e) of the Code requires the tax assessor to submit the unit's tax levy to the governing body for approval. The tax levy is the amount of current property taxes to be collected for FY2010 -2011, which is derived by applying the adopted property tax rate to the certified appraisal roll. The property tax levy for 2010 based upon a property tax rate of $0.582269 per $100 valuation and a taxable value of $13,906,891,507 is as follows: Tax Levy Component $53,559,750.33 Supporting the City's maintenance and operations 27,415,767.78 Supporting the City's debt service $80,975,518.11 101,361.10 Add: Net Late Rendition Penalty— Personal Property Accounts (1,663,133.81) Less: Over- 65/Disabled Homestead Frozen Levy Loss $79,413,745.40 2010 Ad Valorem Tax Levy The 2010 tax levy reflects a decrease of $640,327.60 over the 2009 tax levy of $80,054,073. FY2010 -2011 reflects the effect of the sixth year of implementation of the over -65 /disabled homestead tax freeze. The loss of tax levy due to the tax freeze is $1,663,133.81 which compares to a loss of$1,740,803 reported in FY 2009 -2010; $1,500,522 reported inFY2008 -2009; $1,210,235 reported in FY2007 -2008; a loss of $650,651 reported in FY2006 -2007; and a loss of $396,701 reported in FY2005 -2006. Also applicable to the levy is additional revenue for a late rendition penalty on personal property accounts. The ChiefAppraiser may impose a penalty on a person who fails to timely file the required rendition statement or property report on all tangible personal property used for production of income that the person owns or manages and controls as a fiduciary. The tax assessor shall then add the amount of the penalty to the amount of tax imposed on the property and include that amount on the individual's tax bill. In the FY2010 -2011 budget adopted by the City Council on July 27, 2010 and amended on August 31, 2010, the total property tax levy allocated to maintenance and operations (M &O) and to debt service (I &S) (taking into account the late rendition penalty and the levy loss due to the tax freeze) was $79,293,003, or $52,446,882 and $26,846,120 respectively. This was based on the net appraised property values certified by the Nueces County Appraisal District of $13,900,137,536 — made up of 100% of the values ofthe properties not under protest and 85% of the values of the properties under protest. The total taxable values certified by the Nueces County Tax Office of $13,906,891,507 include 100% of the values of the properties not under protest and 100% (versus 85 %) of the properties under protest. This accounts for the $6,753,971 increase in assessed values certified by the Nueces County Tax Office. The property tax levy is then reduced by estimated delinquent collections (4.0 %) and the City's portion of the estimated Reinvestment Zone No. 2 levy to arrive at the adopted FY 2010 -2011 current property tax budget of $74,668,734 — $49,388,246 for General Fund and $25,280,488 for Debt Service Fund. Nueces County Courthouse 901 Leopard, Suite 301 Corpus Christi, `2X 78401 -3684 Ramiro 'Ronnie" Canates Assessor and Collector Of Taxes Voice: (361) 888 -0307 Tax; (361) 888 -0218 ron.nie.canades @co.nueces taus CERTIFICATION OF TAX LEVY FOR THE TAX YEAR 2010 CITY OF CORPUS CHRISTI Total Appraised Value @ 100% of Market Value Less: Partial Exemptions Ag -Use account value loss and abatements Total Net Appraised Value Assessment Ratio Total Taxable Value 2010 Adopted Tax Rate 2010 Ad Valorem Tax Levy Less: Over-65/Disabled Homestead Frozen Levy Loss Plus: Late Rendition Penalty - Personal Property Accounts Less: 5% of Late Rendition Penalty to the Appraisal District Plus: Late Ag Penalty 2010 Total Ad Valorem Tax Levy $ 17,369,202,882 $ 3,462,311,375 $13,906,891,507 I00% $13,906,891,507 .582269 /$100 $ 80,975,518.11 $ 1,663,133.81 $ 106,695.90 $ 5,334.80 $ 79,413,745.40 Submission of the Tax Levy for 2010 for approval by the City of Corpus in accordance with Section 26.09(e) of the Texas Property Tax Code. Council Ramiro R. Can es, C.TA Nueces County Tax Assessor - Collector SWORN AND SUBSCRIBED TO before me at Corpus Christi, Texas this September, A.D., 2010. THE STATE OF TEXAS COUNTY OF NUECES SUZAN COX Notary Pubtic State of Tp. My Commission Expires October 27, 201 1 day of Notary Publ State of Tex The Tax Levy is hereby approved by the City of Corpus Christi City Council on this day of A.D., 2010. ATTEST: City Secretary, City of Carpus Christi —277— Mayor, City of Corpus Chrsiti cu E L) ID • U c D O O 0- 0- E U V) D 0- '5 U o 0 0 a. O z L Ecu O O oaa) a o c V . 00 N 1- > 0 U U O N •O O - U O Q QN -0 I� NO 7) c = O N Q-0 i' go, O zuoc ,-1 C � szu ca �O IO >% cn co O co szu szu 0 '-, ) O -, O -1-) -1-) -0 a � 2 0E $ 05 ro O - — cn 2 .0 = •N > an 0 •v U •O �•v O >. .0 0= Z% 4—) CC5 D 0 > U U ca O E 0 a c o 0 Q'' tU 7:3 mC y_ u u Q tn Q / 0 ro�� Z c o 0 Q'' tU 7:3 mC y_ u u Q tn Q / 0 ro�� Z Qu E 71-3 O o el CL • = C V V 0 O > 0 U (n - U L > i-1 > ,--1 a) O N O >%_c co v) O ca O (n 1"1 U CO (n ca c O •— U _c co 2 O � � -o -U co O E O�•v ra 2a) ECU g_c 47, -1-'= 0 0_.v) 1-1 .- I)) • • Require 2 additional personnel 4--) N L U O au c o gL (� o > o 0 c 0 a� co F21 Q) L cu z� • • Other operational expenses • Program wi c o 0 Q'' tU 7:3 mC y_ u u Q tn Q / 0 ro�� Z 20 AGENDA MEMORANDUM DATE: October 12, 2010 SUBJECT: Cefe Valenzuela Disposal Cell 1A - Project No. 5276 AGENDA ITEM: a. Motion authorizing the City Manager, or his designee, to execute a construction contract with Frisco Construction Services, Inc., of Frisco, Texas in an amount of $2,714,958.50 for the Cefe Valenzuela Landfill Sector 1A Liner and Leachate Collection System. b. Motion authorizing the City Manager, or his designee, to execute a contract for engineering materials testing services with Kleinfelder, Inc, of Corpus Christi, Texas, in the amount of $324,475.00 for construction of Cefe F. Valenzuela Landfill Sector 1A Liner & Leachate Collection System. ISSUE: It is necessary to proceed with the construction of the next disposal cell so it will be available to receive waste. FUNDING: Funds are available from the Sanitary Landfill 2008 CIP Fund. RECOMMENDATION:, Staff recommends approval of the motion as presented. Pete Anaya, P.E. Director - Engineering Services 826 -3781 petean@cctexas.com Lawrence Mikolajczyk Director of Solid Waste Services 826 -1972 lawm(a7cctexas.com Additional Support Material: Exhibit "A" Background Information Exhibit "A -1" Prior Actions Exhibit "B -1" Bid Tabulation Exhibit "B -2" Consultant Award Recommendation Exhibit "B -3" Materials Lab Contract Summary Exhibit "C" Budget Exhibit "D" Location Map H:I HOMEIKEVINSIGENILANDFILLIVa lenzuelaCel111Cefl1 AWwdConstrMemo.doc -281- ADDITIONAL INFORMATION SUBJECT: Cefe Valenzuela Disposal Sector IA — Project No. 5276 PROJECT DESCRIPTION: The project provides for the finish excavation of Disposal Cell 1A, subgrade preparation, installation of a compacted clay liner, 60,000 -sy of geosynthetic liner, leachate and conveyance system, groundwater collection under drain, pumps and required power distribution lines, installation of leachate collection system, dewatering controls, construction of required drainage control structures, extension of asphalt perimeter access road and other related drainage controls and structures for Drainage Chute 1. BACKGROUND: The current disposal cell (Sector 4B) is estimated to reach the end of its volume capacity during February/March of 2012 depending on the rate of disposal, compaction and amount of daily cover. It is necessary to proceed with construction of Disposal Cell IA to ensure it will be available when needed. BID INFORMATION: The project was bid as a base bid. The contract provides for the project to be completed in 250 calendar days after the notice to proceed. Liquidated damages are set at $1,000.00 per day. A total of six (6) proposals were received and opened on September 8, 2010, with proposals ranging from $2,714,958.50 to $4,384,966.35 See Exhibit B -1 (Bid Tabulation). The Consultant's opinion of probable costs was $4,123,000.00. The cost estimate included $458,000.00 for contingency (12 %) and profit (5 %). The pre - excavation survey was completed during advertising for bids, and it was determined the estimate contained an additional $100,000 for excavation that would not be necessary. The cost estimate was not adjusted at that time. The actual cost estimate by the Consultant would have been $3,565,000 if those costs are removed, Frisco Construction Services, Inc. of Frisco, Texas submitted the low bid. The three low bids were submitted as follows: BID RECOMMENDATION: After reviewing the company's capabilities, the City's consultant Chiang, Patel & Yerby, Inc., and City staff recommend that the contract be awarded to Frisco Construction Services in the total amount of $2,714,958.50. H: 1HOMEIKEVINSIGENILANDFILL1 Val enzuelaCe1111CeIi1AlAwdConstrBkgExhA ,doc —282— Exhibit "A" Page 1 of 2 Frisco Construction Longhorn Excavators L.D. Kemp Excavating $3,138,921.00 Base Bid $2,714,958.50 $2,925,496.95 BID RECOMMENDATION: After reviewing the company's capabilities, the City's consultant Chiang, Patel & Yerby, Inc., and City staff recommend that the contract be awarded to Frisco Construction Services in the total amount of $2,714,958.50. H: 1HOMEIKEVINSIGENILANDFILL1 Val enzuelaCe1111CeIi1AlAwdConstrBkgExhA ,doc —282— Exhibit "A" Page 1 of 2 The Consultant and City received and evaluated submittals from the two low bidders as required by City Special Provisions A28, A29 and A30. That information requires the bidders to provide the following information: • their ability to complete the project; • whether any liens have been filed against the bidder; • why any unreleased lien has not been paid; • the existence of any unpaid claims; • construction references; • their financial statement; • qualifications of the proposed project superintendent and foremen demonstrating five (5) years of recent projects experience of similar size and complexity; • their list of major components being incorporated into the project; • list of the products being supplied; • the value of each major component; • schedule of anticipated monthly payment requests; • the list of MBE firms that will participate in the project; • the list of subcontractors; • list of their current projects and their contractual value; and • the preliminary progress schedule showing the relationships between major components of work. CONTRACT TERMS: The contract specifies that the project will be completed in 250 calendar days. Completion is anticipated during June of 2011. ENGINEERING MATERIALS INSPECTION, TESTING AND LABORATORY SERVICES: A summary of the materials testing contract is attached. The contract provides for the required soils and laboratory testing as well as preparation of TCEQ required reports in format acceptable to TCEQ. The required reports must be prepared by a profession engineer, signed and sealed for delivery to TCEQ before the Sector can accept wastes. The Engineer must field witness of the liner installation, welding the liner, and tests of the liner including analysis necessary for report preparations including the: • Synthetic Liner Evaluation Report; • Geomembrane Liner Evaluation Report; and • Ballast Evaluation Report. FUTURE COUNCIL ACTION: • Award of any necessary change orders; and • Design and construction of future disposal cells. FUNDING: Funding is available from the Sanitary Landfill CIP Fund. H: 1H0ME\ KEVINS\ GENILANDFILLIValenzuelaCe111 1Cell1 A`AwdConstrBkgExhA.doc -283- Exhibit "A" Page 2 of 2 PRIOR ACTIONS The major prior actions relating to Cefe Valenzuela Landfill Sector 1A were: PRIOR COUNCIL ACTIONS: December 15, 2009 — Ordinance adopting the FY2009 -2010 Capital Improvement Budget and Capital Improvement Plan (Ordinance No. 028449). June 16, 2009 - Motion authorizing the City Manager, or his designee, to execute Amendment No. 9 to an engineering services contract with Chiang, Patel & Yerby, Inc. of Dallas, Texas in the amount of $344,000.00 for a restated not to exceed fee of $750,650.00 Cells 1 at Cefe Valenzuela Landfill for design, bid and construction phase services and post construction phase services (M2009 -169). (The $344,000 fee includes $149,000 of additional services.) PRIOR ADMINISTRATIVE ACTIONS: January 22, 2010 - Administrative award of Amendment No. 12 for engineering services to Chiang, Patel & Yerby, Inc. of Dallas Texas in the amount of $31,980.00 for a restated not to exceed fee of $827,882.00 for additional design considerations required by the TCEQ permitted location of Drainage Chute No. 1 as related to the Equipment Maintenance Facitly adequacy of drainage conveyance facilities for design flow and head associated with Sector 1A 4B at Cefe Valenzuela Landfill. January 28, 2010 - Administrative award of Amendment No. 13 for engineering services to Chiang, Patel & Yerby, Inc. of Dallas Texas in the amount of $19,120.00 for a restated not to exceed fee of $847,002.00 for the design and incorporation of the extension of overhead and underground power Cell 1A, sumps 1 and 2 areas and control system for the underground evaporation system into the plans, bid and contract documents for the Sector 1A project at Cefe Valenzuela Landfill. 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YALENNUELA LANDFILL SECTOR IA LINERS LEM SYSTEM Description Mobilisation and DemobilWyon. Complete In PIace Ls. Complete Eeeangen or Sector 1A Complete and In Snllgrade preparation of Seder IA. Complete and m Cempaded Cray Liver asallatlon atsealer 1ft C. -... Mond • co ..rC . Harding, spreading and placement P protective sot coyer In Soarer 1A Complete and a pate per C1•. PP MA Smooth HOPEGeomembrane liner installation In Sector 1A Complete end In place per Sy. .s IE _ 120,1E111 is 1a pp Ti § d l g4sye � Wn 1' _ It q s 01 / I aPPUhnsnses. ComP4eto 5Ma Plaoc tx r$ $ 9 I: t 3IiEll iiiInoHiiJi'I 41 a l8,g ci Ill ssI e 4 1 „I I t li G $ sAi.alsigi31 _ it"il's r S 6 g i o -h';9 g gti r f fatly a Mane f rare mreer agle4lendmt stub ups, connections A moulding IS related appurtenances. Complete and In algae Laurlwie and Groundwater Pump whit iusteSadon, hooifnp and start-up. Complete as es i % .� eill fil Ell g ALMA! $ ! bI yam+ S� i ki T1 �a I € l rnporeoon Sea, come zwrrynap outlet as par design drawigs. Complete sod In place per Lb Srormrratar roman prevention Flan, Complete and in Plane pe1 Ls. . ... .. • VII it g y ;IS g na. I a.11 wore may 5911 no pieces mom density cannot in a- lneh compacted lifts to bring the existing grade up to tf[ sebarade elevation. . . e 6. e w w r, .. ,. » e ti » e w w a w 8s a -285- a- ^.S aff is 55 (Mb September 21, 2010 Partners for a Better Quality of Life Mr. Kevin Stowers Assistant Director of Engineering Services City of Corpus Christi 1201 Leopard Street Corpus Christi, Texas 78401 Re: Project No: 5276 Cefe F. Valenzuela Landfill Sector 1A Liner and Leachate Collection System Bid Evaluation Dear Mr. Stowers, I have reviewed the bids and documentation provided by Frisco Construction Services and Longhorn Excavators, Inc. for conformance with the Contract Documents and specifically Section A — Special Provisions; Sections A -28, A -29 and A -30. This information is attached for reference. Frisco Construction Services (FCS) is the low bidder, with a bid of $2,714,958.50. FCS has provided information required by Section A -28, meeting the requirements of the Contract Documents. FCS appears to be financially solvent, and has recently completed a landfill related construction project. I have personally called a selection of the references provided within the documentation and have received satisfactory responses. FCS provided documentation in regards to Section A -29. The experience record of the proposed superintendent, Billy King, meets the required five (5) years of recent experience on projects of similar scope and complexity. If Mr. King is present on -site at all times work is being performed, FCS has met the requirements of this section. Additionally, the proposed project manager also has over five (5) years of experience with similar projects, both in scope and complexity. Although not a requirement of the Contract Documents, FCS as an entity does not have 5 years experience, as it is a relatively new firm. FCS corporate experience is also attached for reference. FCS provided documentation in regards to Section A -30. All information required by this section has been submitted and is satisfactory. Should the proposed subcontractors change, the City should be notified and must approve any and all changes. Page 1 of 2 —286— Exhibit B -2 Page 1 of 2 1820 Regal Row, Suite 200 Dallas, Texas 75235 214.638.0500 • 214.638.3723 fax www.cpyi.com Mr. Kevin Stowers 9121/2010 Longhorn Excavators, Inc. (LEI) is the second lowest bidder, with a bid of $2,925,496,95. LEI has provided the information required by Section A -28. LEI provided documentation in regards to Section A -29. The experience record of the proposed project manager /superintendent, Richard Parker, meets the required five (5) years of recent experience on projects of similar scope and complexity. From the information provided, it is unclear whether the second proposed project manager /superintendent has over five (5) years of experience with similar projects. The requirements of Section A -29 only stipulate that the superintendent must have said experience, and if Mr. Parker is on -site at all times work is being .performed, LEI has met the requirements of this section. LEI provided documentation in regards to Section A -30. All information required by this section has been submitted and is satisfactory. Should the proposed subcontractors change, the City should be notified and must approve any and all changes. Having reviewed the information provided by both Frisco Construction Services and Longhorn Excavators, Inc. I can find no reason not to award the Contract for construction of Sector 9A of the Cefe F. Valenzuela Landfill to Frisco Construction Services. Should you have any questions or require further detail, please to not hesitate to contact me at (214) 589 -6903 or by email at fpugslev(ccpvi.com. Sincerely, CP &Y, Inc. Frank E. Pugsley, E Project Manager l Cc: Lawrence Mikolajczyk File Attachments: FCS Documentation LEI Documentation Bid Tabulation Pa,pf 2 Exhibit B -2 Page 2 of 2 Partners fora Better Quality of Life C AGREEMENT for Construction Materials Engineering Laboratory's Inspection and Materials Testing Services This AGREEMENT is between the City of Corpus Christi, Texas, a Texas home -rule municipal corporation, "CITY ", acting through its duly authorized City Manager or designee ( "City Engineer "), and Kleinfelder, a Texas corporation or partnership, "LAB ", acting through its duly authorized representative who is (Name) (Title), which agree as follows: 1. DECLARATIONS "CITY" desires to engage "LAB" to provide services in connection with City's project, described as follows: Cefe Valnezuela Landfill Sector IA Construction Materials Testing, Inspection, Laboratory, QA/QC, SLERIGLERIBER Documentation (Proiect No. 5276) "PROJECT ". 2. SCOPE OF WORK "LAB" shall provide services to the PROJECT in accordance with the accompanying Scope of Services and Fee Schedule attached as "Exhibit A" and the Terms and Conditions to AGREEMENT attached as "Exhibit B ". 3. FEE The "CITY" agrees to pay the "LAB" for services provided in accordance with Exhibit "A ", Scope of Services and Fee Schedule under this AGREEMENT, a total fee not to exceed $324,475.00 (in figures), (Three Hundred Twenty Four Thousand Four Hundred Seventy Five and nolxx dollars (in words). 4. CITY'S DISCLOSURE OF HAZARDOUS & TOXIC MATERIALS AND CONDITIONS AT THE PROJECT SITE. To the best of the City's knowledge, based upon currently available information, the only hazardous or toxic materials, as defined by the laws and regulations of the Federal government, the state, and city which exist at the PROJECT SITE are as follows: None "CITY" acknowledges and confirms that "LAB" is relying upon the above warranty in undertaking to perform the services described in this AGREEM ENT. CITY OF CORPUS CHRISTI LAB: By: _By: Johnny Perales, P.E. (Date) (SIGNATURE) Assistant City Manager ATTEST: Armando Chapa, City Secretary (Date) APPROVED AS TO FORM: Legal Department (Date) 550920 -3365- 00000 - 140192 —288— (Date) 5002 Ambassador Row (Address) Corpus Christi, TX 78469 (City /State /Zip) 361 -854 -4774 Fax: 361- 854 -4924 (PhonelFax No.) Exhibit B =3 Page 1 of 7 Page 1 of 1 KLEINFELDER Bright People. Right Solutions. August 31, 2010 Mr. Kevin Stowers Engineering Department City of Corpus Christi P.O. Box 9277 Corpus Christi, Texas 78469 -9277 Reference: Cefe F, Valenzuela Landfill Sector 1 A City Project #5276 Corpus Christi, Texas Proposal No. CTS10P189 Dear Mr, Stowers: Kleinfelder is pleased to submit this proposal for construction materials testing s ervices for the new Sector 1A located at the Cefe F. Valenzuela Landfill in Corpus Christi, Texas. The purpose of this proposal is to establish our scope of work for the project, associated unit fees for our services and the terms and conditions of this agreement. We have prepared this proposal based on a brief review of the following: • Project plans and specifications from Chiang, Patel & Yerby dated July 19, 2010. This proposal is based on our general understanding of the project plans, specifications. At this time, we estimate a budget of $324,475 for Sector 1A to be billed on a time -and- materials basis. We have attached a Proposed Fee Schedule / Estimate indicating our budget breakdown and unit costs. For budgeting purposes, we have assumed a percentage of our hours will be billed at our overtime rate. However, the actual quantities and overtime hours incurred will depend on the actual 'scheduling of our activities by the contractor. Our estimate does not include costs of re- inspections, contractor delays, stand -by time or site visits that are cancelled upon arrival. Additional site visits due to failed tests and costs for retests or for contractor convenience are not included within the estimate. CTS10P189 August 31, 2010 Copyright 2010 Kleinfelder Version 1 All rights reserved. Exhibit B -3 KLEINFELDER 5002 Ambassador Row, Corpus Christi, TX 78758 p j 361.$54,4774 ri 361.85 .4 e 2 of 7 —289— K A/PELCER ,,,v,,..PmhrAmee6ionsieluvou Workscope Description — Fee Estimate Cefe F. Valenzuela Landfill — Sector 'IA SLERIGLERIBER Corpus Christi, Texas General: The City of Corpus Christi proposes to begin construction of the liner system for Sector IA of the Cefe F. Valenzuela Landfill. It is our understanding that the liner system for this sector will contain a two -foot clay liner, 60 -mil HDPE geomembrane, and a leachate collection system consisting of a chimney drain, with 24 inches of protective cover. The side slopes will have a drainage Geocomposite layer and 24 inches of protective cover. In accordance with Texas Commission on Environmental Quality (TCEQ) 'regulations and guidelines, certain tests and inspections must be made during the liner construction to verify the quality of liner construction and to allow the project engineer to complete the required documentation. The work described herein is our estimate of the number of tests and personnel time required to complete the quality control testing and SLER /GLER documentation. Since ballast will be required in some areas with the two feet clay liner, BER documentation will also be included for the waste used as ballast. The composite system will be constructed as follows: Bottom Side Slopes 2 feet Clay Liner 2 feet Clay Liner 60 -mil HDPE Geomembrane 60 -mil HDPE Geomembrane Chimney drain Drainage Geocomposite 24 inches — Protective Cover 24 inches — Protective Cover Leachate Drainage Trenches and Sumps with Gravel Field Services: Kleinfelder will provide a soils technician on a full -time basis during construction of the clay liner. The field technician will conduct all field tests including moisture - density tests of the compacted clay liner and will sample the compacted clay for classification and permeability testing. The technician will maintain documentation of all test locations and results, and will make observations of the material processing and compaction operations. He will coordinate the testing with the construction operations and will report all tests results and observations to the project geotechnical engineer. The project geotechnical engineer will also make periodic visits to the job site to view the construction operations and general progress of work, and will observe the material processing, compaction and testing of the clay liner as required by TCEQ. Upon completion of the clay liner construction and acceptance of the SLER by the TCEQ, construction of the 60 -mil HDPE geomembrane liner will follow. Kleinfelder will provide a technician specialist during the geomembrane construction to observe all phases of the geomembrane construction from delivery and verification of membrane thickness to the observation and documentation of the field seaming process and pressure testing. The field technician will also view the Contractor's general installation practices in relation to his QC /QA documentation and will secure all field test specimens, which must be tested destructively in the laboratory. The field technician will CTS10PI89 Copyright 2010 Kleinfelder Ali rights reserved. —290— August 31, 2010 x°hrit B -3 Page 3 of 7 Proposal far Construction Materials Observation & Testing Services l :;INNPELGER Cefe F. Valenzuela Landfill Sector IA -- City Protect No. 5276 also observe the leachate collection system, protective cover and ballast installation. The leachate collection system will include 1-foot drainage layer and chimney drain. The field technician will report his observations and test results to the project geotechnical engineer. Photographs will be taken to document each' phase of geomembrane installation as well as the clay liner construction. Laboratory Testing During Construction: The frequency of sampling and testing of the clay liner has been determined from the proposed construction and TCEQ requirements for Sector 1A . These testing quantities are summarized below: Sector IA Tests 2 feet Clay Field Densities (ASTM D 2922 -91) 525 Sieve Analysis (ASTM D 1140 -92) 50 Atterberg Limits (ASTM D 4318 -93) 50 Permeability (EM -110- 21906, Appendix VII) 50 Moisture- Density Curve (ASTM D 1557 -91) 4 The tests quantities are based on about 1,022,040 square feet of clay liner for the sector, the anticipated construction sequencing and do not include any contingency for testing above the minimum. With full -time technician services we anticipate that we will take more moisture- density tests than stated above, as this is a very important consideration in obtaining the proper permeability. The other test frequencies should remain approximately the same unless reconstruction or additional sections require additional testing. Permeability tests will be conducted using the falling -head procedure in flexible -wall permeameters in accordance with test method EM- 1110 -2 -1906, Appendix V11. The actual permeability test specimens will be taken as undisturbed samples from the compacted clay liner along with sufficient soil for classification testing. The field seams of the 60 -mil HDPE liner will be examined by several field test methods and in addition by destructive testing of specimens cut from the field seams at maximum intervals of 500 feet. These field -cut specimens will be shipped to the laboratory where "peel and shear" tests will be conducted. Based on our preliminary estimate of the total job seam length, we have estimated that about 90 tests may be required for the sector. This number will vary depending upon the Contractor's specific layout of the seams and the number of retest required. The number of conformance tests required for HDPE Geomembrane, Geotextile and Geocomposite are estimated and could vary depending upon the number of resin batches. A summary of the quantity of conformance test is provided below: Conformance Tests Sector IA Geomembrane 20 Geotextile 8 Geocomposite with Transmissivity 8 CTS10P189 Copyright 2010 Kleinfelder Alf rights reserved. —291— Ausust31, 2010 VeritcEihibit B -3 Page 4 of 7 Proposal for Construction Materials Observation & Testing Services Cefe F. Valenzuela Landfill Sector .1A -- CO Project No. 5276 Engineering Supervision and SLERIGLERIBER: Kleinfelder's management and engineering staff will supervise the field services, view construction procedures, interface with City staff, supervise all laboratory testing and complete the documentation and liner evaluation reports. Mr. Don R. Rokohl, P.E. will be the Project Engineer. Mr, Jerry Upstreu, S.E.T., Area Manager, will provide day -to -day coordination with our field technician. Mr. Rokohl will be available daily as needed to view general construction operations and witness our field testing services. We will also maintain an on -going file of the test results and other documentation which will form part of the SLER /GLER documents. We understand all surveying required for vertical and horizontal control of construction and all test locations will be provided by a third party. The third party will also furnish tabulations of survey data for thickness verification of the clay liner, leachate drainage layer, protective cover, waste as ballast and leachate pipe. The SLER document will be completed and submitted in triplicate to the TCEQ as soon as possible following completion of the clay liner construction and all laboratory verification testing. The geomembrane construction should not begin until TCEQ provides acceptance of the SLER. Then upon completion of the geomembrane construction and all other parts of the composite liner system and all related testing and inspection of the system are completed the GLER document will be prepared and submitted in triplicate to the TCEQ. Upon completion of the waste as ballast construction, a BER document will then be prepared and submitted in triplicate to the TCEQ. COMPENSATION The fees for this project will be billed monthly on a time - and - materials basis subject to the attached Basis of Charges. This estimate is based on review of the plans and specifications and therefore will be heavily influenced by constraints outside the control of Kleinfelder including, but not limited to the contractor's actual schedule, project sequencing and inclement weather. Additional services, such as services provided beyond the quantities proposed, or other services not anticipated at this time, may be required. If requested, these additional services would be treated as extra, and billed in accordance with the unit rates and Basis of Charges identified. SCHEDULING AND COMMUNICATIONS We require that our dispatch office (381- 854 -4774) be contacted at least 24 hours in advance of any necessary tests and observations. In order for us to accomplish our work scope, we will require one set of the approved project plans and specifications prior to the start of our services. In addition, an onsite pre - construction meeting with all involved parties is also requested. K;;IAIP c'L,OEpe AUTHORIZATION You may authorize this work scope by issuing a City of Corpus Christi contract. CTS10P189 Copyright 2010 Klelnfelder All rights reserved. —292— Au ust 31, 2010 Ver l� hibit B -3 Page5of7 Proposal for Construction Materials Observation & Testing Services Cefe P. Valenzuela Landfill Sector 14 — City Project No. 5276 °,. LIMITATIONS Our work will be performed in a manner consistent with that level of care and skill ordinarily exercised by other members of Kleinfelder's profession practicing in the same locality, under similar conditions and at the date the services are provided. Our conclusions, opinions and recommendations will be based on a limited number of observations and data. It is possible that conditions could vary between or beyond the data evaluated. Kleinfelder makes no guarantee or warranty, express or implied, regarding the services, communication (oral or written), report, opinion, or instrument of service provided. Even with diligent monitoring, construction defects may occur. In all cases the contractor is solely responsible for the direction and quality of the work, adherence to plans and specifications, and repair of defects. Kleinfelder offers various levels of investigative and engineering services to suit the varying needs of different clients. Although risk can never be eliminated, more detailed and extensive studies will yield more information, which may help understand and manage the level of risk involved. Since detailed study and analysis involves greater expense, our clients participate in determining levels of service that provide adequate information for their purposes at acceptable levels of risk. More extensive studies, including destructive studies or field tests, should be performed to reduce these uncertainties. Should additional information become available; we must be consulted to review the effect of the information on our conclusions. This proposal is valid for a period of 45 days. This proposal was prepared specifically for the client and its designated representatives and may not be provided to others without Kleinfelder's expressed permission. Again, we appreciate the opportunity to provide this proposal for Sector 1A, and we look forward to working with you to make this project a success. Please call (361) 854 -4774 if you have any questions or comments. We sincerely appreciate the opportunity to be of service and look forward to working with you on this project. Sincerely, KLEINFELDER CENTRAL INC. 1)._. 12— ag Jerry Lipstreu, S.E.T. Don R. Rokohl, P.E. Project Manager Senior Geotechnical Engineer CTS10P189 Copyright 2010 Klelnfelder All rights reserved. —293— Au st 31,2010 v reEtc hjbit B-3 Page 6 of 7 Cefe Valenzuela Landfill Sector 7A Unit Prices and Fee Estimate Description A. Field Services Soil Services O.T. Contingency Geomembrane Services O.T. Contingency Sal Services (Protective Cover) O.T. Contingency Soil Services (BER) Nuclear Gauge Charges Vehicle Charge 13. Laboratory Testing KLEINP L,DA -N Estimated Estimated Quantities Unit Rate Total 560 hr 280 hr 600 hr 400 hr 200 hr 40 hr 220 hr 70 days 247 Trips 49.00 73.50 55.00 82.50 49.00 73.50 49.00 88.00 37.00 Atterberg Limits 55 ea 79.00 #200 Sieve Tests 55 ea 78.00 Calcium Carbonate Content 1 ea 525.00 Water Tests 1 ea 250.00 Sieve Analysis (Drainage) 3 ea 78.00 Permeability Tests (Sand /Gravel) 2 ea 168.00 Permeability Tests (Clay) 50 ea 342.00 Moisture- Density Curves 5 ea 249.00 Flexible membrane testing to include: Destructive membrane seam tests, conformance testing of geomembrane, geotextile and Geocomposite Outside testing cost charged at cost plus 20% Estimated cost C. Engineering and Preparation of SLERJGLER /BER Senior Professional (Project Engineer) Graphic Design (Drafting) Project Manager Project Administration 27,440.00 20,580.00 33,000.00 33,000.00 9,800.00 2,940.00 10,780.00 6,160.00 9,139.00 4,345.00 4,290.00 525.00 250.00 234.00 336.00 17,100.00 1 ,245.00 20,000.00 450 hr 144.00 64,800.00 285 hr 74.00 21,090.00 108 hr 166.00 17,928.00 270 hr 56.00 15,120.00 Estimated Total: $324,475.00 CTS1 OP189 August 31,2 010 Copyright 2010 Kleinfelder Ve slExhibit B -3 All rights reserved. Page 7 of 7 —294— CEFE VALENZUELA LANDFILL SECTION 1A LINER & LEACHATE COLLECTION SYSTEM (PROJECT NO. 5276) PROJECT BUDGET October 12, 2010 FUNDS AVAILABLE: ESTIMATED BUDGET Sanitary Landfill 2008 CIP Fund (CIP # PH 13) $ 3,721,833.50 Total $ 3,721,833.50 FUNDS REQUIRED: Construction Cost (Frisco Construction Services, Inc.) $ 2,714,958,50 Construction Contingencies 210,000.00 A/E Consultants (Chiang Pater Yerby) (Basic Services = 9.1% of Construction) 395,100.00 Material Inspection Testing & Laboratory Services (Kleinfelder) 324,475.00 Engineering Reimbursements 54,300.00 Finance Reimbursements 13,000.00 Incidental Expenses (Printing, Advertising, etc.) 10,000.00 Total $ 3,721,833.50 EXHIBIT "C" Page 1 of 1 \ Mpro ject\ councilexhibits \exh5276b. dwg CEFE F. VALENZUELA MUNICIPAL LANDFILL Sm11E11TA1tON POND 1 CAS MOSTIO 1 POSE MP.) N 2W0 PROJECT #5276 SITE LOCATION MAP NOT TO SCALE EXHIBIT "D" CEFE VALENZUELA DISPOSAL CELL IA CITY COUNCIL EXHIBIT CITY OF CORPUS CHRIS77, TEXAS DEPARTMENT OF ENGINEERING SERVICES PAGE: 1 of 1 DATE 10/12/2010 -296 -- 21 AGENDA MEMORANDUM • DATE: October 12, 2010 SUBJECT: Oso Effluent Re -Use Distribution System Phase 1 (Project A) (Project No. E10135) CIP No: WW 32 Water Re -Use Master Plan - City Wide (Project B) (Project No. E09010) CIP No: WW 32 AGENDA ITEM: A. Motion authorizing the City Manager, or his designee, to execute a Contract for Professional Services with Urban Engineering, Inc. of Corpus Christi, Texas in the amount of $463,200 for design, bidding, and construction phase services and additional services for the Oso Effluent Re -Use Distribution System Phase 1 Project. (Wastewater CIP FY 2010) B. Motion authorizing the City Manager, or his designee, to execute a Contract for Professional Services with Urban Engineering, Inc. of Corpus Christi, Texas in the amount of $253,000 for the Water Re -Use Master Plan (City Wide) Project. (Wastewater CIP FY 2010) ISSUE: The proposed contract is divided into two projects, Project A and Project B. Project A will provide for the design of Line A which will deliver effluent water to the Corpus Christi Country Club and the King's Crossing Country Club golf courses and Bill Witt Park. This project is part of a multi - phased project to provide effluent re -use water in the Oso Water Reclamation Plant service area. Project B is to develop a Master Plan for the effluent re -use distribution systems throughout the City. Urban Engineering was initially selected for this project through Request for Qualifications (RFQ) No. 2010 -01 Professional Services for Department of Engineering Services Projects. FUNDING: Funding is available from the Wastewater Capital Improvement Budget FY 2010. RECOMMENDATION: Staff recommends approval of the Motions as presented. Foster Crowell Director of Wastewater Services 361 -857 -1801 fosterc @cctexas.com Additional Support Material: Exhibit "A" Background Information Exhibit "B" Prior Project Actions Exhibit "C" Contract Summary Exhibit °D" Project Budget Exhibit "E" Location Map Pete Anaya, P. E. Director of Engineering Services 361 -826 -3781 petean @cctexas.com H. HOME 11CellyO \GENIWASTEWATER4EO9o10 & E10135- Water Re-Use Master Pen & Oso Effluent Re -Use Distribution SystemlLarge AE13 AGENDA MEMO.doc -299- BACKGROUND INFORMATION SUBJECT: Oso Effluent Re -Use Distribution System Phase 1 (Project A) (Project No. E10135) CIP No: WW 32 Water Re -Use Master Plan - City Wide (Project B) (Project No. E09010) CIP No: WW 32 PROJECT DESCRIPTION: Project A: The proposed project will provide for the design of the first of two phases recommended in the Design Memorandum. The proposed scope of this project (Phase 1) is for the design of Line A. Line A will enable the City to deliver effluent water to the Corpus Christi Country Club and Kings Crossing Country Club golf courses and Bill Witt Park. The effluent diversion station, currently under construction, will deliver effluent to future users including: Texas A & M - Corpus Christi, Corpus Christi Country Club, King's Crossing Country Club, Pharaoh Valley Golf Course, Bill Witt Park, the future Oso Conservation Interpretive Park and Hans Sutter Park. The Oso Beach Municipal Golf Course is already using effluent from the Oso Water Reclamation Plant and has its own pumping station and force main. As the demand for effluent water increases, additional lines will be constructed in the City to accommodate demand. Phase 2, not included in this contract, will connect the South Guth Ball Fields at Paul Jones and the Oso Conservation Interpretive Park. Phase 2 may also include an effluent water tower at Bill Witt Park if additional users connect and need more pressure. Project B: The proposed scope of this project is to develop a Master Plan for the effluent re -use distribution systems throughout the City. The Consultant will complete the following tasks to prepare the Master Plan: ➢ meet with City Staff to identify project goals, timetables and relevant issues and to determine the boundary of the study area, ➢ prepare an inventory map showing existing facilities, ➢ indentify potential users for effluent re -use and research effluent systems used in other cities, ➢ determine which wastewater plants can most effectively serve the end users, ➢ review existing plant design conditions, ➢ indentify potential routes to connect the wastewater treatment plants with the end users, ➢ evaluate potential routes based on cost and constructability and determine an estimate of probable capital and annual operation and maintenance costs, ➢ evaluate a looped effluent re -use distribution system connecting identified potential users to the wastewater treatment plants, ➢ determine permitting requirements, ➢ develop a rate model for charging customers based on the cost to treat and distribute effluent, ➢ develop a sample user plan for users to submit to the City , ➢ meet with City staff to review preliminary issues and preliminary report as needed, ➢ prepare a project time schedule for the recommended plan, ➢ incorporate public input from Planning Commission and City Council Presentations in EXHIBIT "A" Page 1 of 3 H:IHOMEWeIly01GENSWASTEWATER E09010 & E10135- Water Re-Use Master Plan & Oso Effluent Re-Use Distribution Syster1 Large A93 AGENDA BACKGROUND -doe -300- addition to feedback from the City's website. CONTRACT DESCRIPTION: Proiect A: The consultant, Urban Engineering, will provide professional services for the coordination with City staff for design, bidding and construction phase services and additional services described further below: The preliminary phase is complete and not included in this contract. The design phase will implement the Design Memorandum and preliminary phase recommendations and prepare the construction plans and specifications, final cost estimates, and permit applications. Bid phase services will include coordinating and participating in the pre -bid meeting, addendums, bid opening and award recommendations. Construction phase services include construction administrative support with periodic site reviews, meetings, contractor and testing submittal reviews, general correspondence, and participation in the final inspection /warranty period. Additional services include permit preparation, right -of- way /easement acquisition survey and topographic survey, subsurface utility investigation, pubic meeting, construction observation services and warranty phase. Project B: The consultant, Urban Engineering, will provide professional services for the coordination with City staff for preliminary (study) phase services. It is the intent of the preliminary phase to provide a study and report of project scope with economic and technical evaluation of alternatives, and upon approval of basic concepts and principals, proceed with developing the Master Plan maps and design documents including a sample user plan and rate model. CONSULTANT SELECTION: RFQ No. 2010 -01 Professional Services for Department of Engineering Services Projects was distributed to 183 firms (75 local and 108 non - local) on February 16, 2010 and posted on the City of Corpus Christi's website. Eight (8) firms responded to the request with qualifications for the Water Reuse Master Plan (Line A) / Effluent Pump Station Project. The responding firms were: • Coym, Rehmet & Gutierrez • Goldston Engineering, A CH2M Hill Company • HDR Engineering • LNV Engineering • Naismith Engineering • R. H. Shackelford, Inc. • Urban Engineering • Weston Solutions The firms' qualifications were reviewed by the Selection Committee composed of the following: • Pete Anaya, P.E., Director of Engineering Services • Foster Crowell, Director of Wastewater Services • Chip Baish, P. E., Wastewater Department • Jay Reining, First Assistant City Attorney EXHIBIT "A" Page 2 of 3 H: hHOMEIKe1tyONGEMWASTEWATER \E09010 & E10135- Water Re-Use Master Plan & Oso Effluent Re-Use Distribution SystemlLarge AEG AGENDA BACKGROUND.doc —301— All 8 firms were deemed competent and able to complete the project; however, as a result of the submittal reviews, the team of Urban Engineering was selected as the most highly qualified team. The major factors contributing to the recommendation of the RFQ Panel were as follows: 1. the ability to demonstrate and present a wide knowledge of applicable project fundamentals; 2. the team's previous experience on similar projects; demonstrated that they have completed similar projects on time and within budget; and they understand the project's requirements; and 3. the recommended team is well balanced to address the project requirements, possesses good team compatibility, and substantial expertise. CONTRACT SUMMARY /FEE: A contract summary and fee is attached as Exhibit "C ". FUTURE COUNCIL ACTION: Approval of a construction contract to complete Project A is required. PROJECT BACKGROUND: The Oso Effluent Re -Use Distribution System project is part of a multi- phased project to provide effluent re -use water in the Oso Water Reclamation Plant (WRP) service area. Effluent from the Oso WRP is currently pumped to the Oso Beach Municipal Golf Course facility for irrigation. The existing pumping facilities, however, do not have capacity to serve any additional irrigation needs. The project was initiated by interest and coordination to supply effluent re -use for irrigation at the Corpus Christi Country Club and King's Crossing Country Club golf courses. Urban Engineering looked at a route and produced construction plans for a force main to the Corpus Christi Country Club and King's Crossing Country Club golf courses in 2003. The existing construction plans from 2003 were used as much as possible for one of the route alternatives. However, over the past seven years during a rapid period of growth on the city's south side, developments have popped up requiring modifications to the original route. Several projects are now complete or underway that constructs sections of the new distribution system. This includes Bond Issue 2004 Cimarron Boulevard and Wooldridge Road Reconstruction projects and the current Bond Issue 2008 Yorktown Boulevard Reconstruction project. Future projects will be required to complete the design for the effluent water distribution system. EXHIBIT "A" Page 3 of 3 H: HOME XellyOIGENIWASTEWATERIE09010 & Elel35. Water Re-Use Master Plan & Oso Effluent Re-Use DisMbulion System\Larpe AE13 AGENDA BACKGROUND.dac -302- PRIOR PROJECT ACTIONS SUBJECT: Oso Effluent Re -Use Distribution System Phase 1 (Project A) (Project No. E10135) CIP No: WW 32 Water Re -Use Master Plan — City Wide (Project B) (Project No. E09010) CIP No: WW 32 PRIOR COUNCIL ACTION: 1. August 19. 2003 — A. Ordinance appropriating $122,222.85 from the unappropriated interest earnings and $30,157 from unappropriated miscellaneous revenues from Wastewater CIP Fund 3430; and appropriating in Wastewater CIP Fund 3430; appropriating $46,400.15 from the unappropriated interest earnings from Wastewater 2002 CIP Fund 4244; and appropriating in Wastewater 2002 CIP fund 4244 for the Oso Water Reclamation Plant Effluent Re -Use Pump Station; amending capital budget adopted by Ordinance No. 025144 by increasing appropriations by $198,780; and declaring an emergency. (Ordinance No. 025408) B. Motion authorizing the City Manager, or his designee, to execute Amendment No. 1 to the Engineering Services Contract with Urban Engineering in the amount of $198,780, for a total re- stated fee of $222,630, for the Oso Water Reclamation Plant Effluent Re -Use Pump Station. (Motion No. 2003 -272) 2. December 15. 2009 — Ordinance approving the FY 2010 Capital Budget and Capital Improvements Planning Guide in the amount of $202,877,800. (Ordinance No. 028449) PRIOR ADMINISTRATIVE ACTION: 1. Mav 15. 2002 — Administrative Approval of an Agreement for Architect/Engineer Consultant Services with Urban Engineering in the amount of $23,850 for the Oso Water Reclamation Plant Effluent Re -Use Pump Station Project. 2. April 22. 2005 — Administrative Approval of Amendment No. 2 to the Engineering Services Contract with Urban Engineering in the amount of $9,925 for the Oso Water Reclamation Plant Effluent Re -Use Pump Station Project. 3. December 14. 2009 — Administrative Approval of Amendment No. 3 to the Engineering Services Contract with Urban Engineering in the amount of $42,155 for the Oso Water Reclamation Plant Effluent Re -Use Pump Station Project. 4. January 28. 2010 — Administrative Approval of Amendment No. 4 to the Engineering Services Contract with Urban Engineering in the amount of $34,605 for the Oso Water Reclamation Plant Effluent Re -Use Pump Station Project. H:I HOME \Ke11yO \GENIWASTEWATBRRE09O10 & E10135- Water R•Use Master Plan & Oso Effluent Re-Use Distribution Sys-026L rge AE14 PRIOR ACTIONS.doc —303— EXHIBIT "B" Page 1 of 2 5. February 16, 2010 - Distribution of Request for Qualifications (RFQ) No. 2010 -01 Professional Services for Department of Engineering Services Projects to 183 engineering firms (75 local and 108 non-local). 6. February 26. 2010 - Addendum No. 1 to the Request for Qualifications (RFQ) No. 2010 -01 Professional Services for Department of Engineering Services Projects to 183 engineering firms (75 local and 108 non - local). 7. April 9, 2010 - Administrative Approval of Amendment No. 5 to the Engineering Services Contract with Urban Engineering in the amount of $13,780 for the Oso Water Reclamation Plant Effluent Re -Use Pump Station Project. HMIOMEIKefyO4GENIWASTE WATER\E09010 & 0135- Water Re-Use Master Plan & Oso Effluent Re-Use Distribution Systetn\Large AEW PRIOR ACTIONS.doc -304- EXHIBIT "B" Page 2 of 2 CONTRACT SUMMARY SUBJECT: Oso Effluent Re -Use Distribution System Phase 1 (Project A) (Project No. E10135) CIP No: WW 32 Water Re -Use Master Plan — City Wide (Project B) (Project No. E09010) CIP No: WW 32 1. SCOPE OF PROJECT Oso Effluent Re -Use Distribution System Phase 1 (Project No. E10135) (Project A) This project will provide for the design of the first of two phases recommended in the Design Memorandum. The first phase will connect the Oso Effluent Re -use Pump Station with the Corpus Christi Country Club and King's Crossing Country Club and the connection of the existing Bill Witt Park irrigation pumps to the existing effluent distribution line in Yorktown Boulevard. Water Re -Use Master Plan — City Wide ( Project No E09010) (Project B) This project is to develop a Master Plan for the effluent re -use distribution systems throughout the City. The Consultant will provide a study and report of project scope with economic and technical evaluation of alternatives, and upon approval, proceed with developing the Master Plan Document. 2. SCOPE OF SERVICES The NE hereby agrees, at its own expense, to perform design services necessary to review and prepare plans, specifications, and bid and contract documents. In addition, NE will provide monthly status updates (project progress or delays, gantt charts presented with monthly invoices) and provide contract administration services to complete the Project. Work will not begin on Additional Services until requested by the AIE (provide breakdown of costs, schedules), and written authorization is provided by the Director of Engineering Services. 3. PROJECT SCHEDULE PROPOSED PROJECT SCHEDULE (Project A) ACTIVITY SCHEDULE Begin Design Phase Submit 60% Review Set 4 months after authorization to begin City Review 2 weeks Submit Pre -Final Review Set 2 months after receiving City review comments City Review 2 weeks Submit Final Review Set 4 weeks after receiving City review comments City Review 2 weeks Submit Plans & Specs for Bidding 2 weeks after receiving City review comments Advertise for Bids 1 week later Pre -Bid Conference 1 week later Receive Bids 1 week later Begin Construction 1 month after receiving bids Construction Completion 6 months after beginning construction EXHIBIT "C" +r�� Page 1 of 3 H: IHOME1KeIIyO1GENIWASTEWATER4E09010 & E10135- Water Re-Use Master Plan A�b uent Re -Use Olstdbulion SystemlLarge AEL5 CONTRACT SUMMARY.doc PROPOSED PROJECT SCHEDULE (Project B) ACTIVITY SCHEDULE Begin Preliminary Report Total Contract Submit Prelim. Conceptual Plan to Staff 2 months after authorization to bejin City Review 2 weeks Present / Receive Public input 6 weeks Submit Conceptual Plan for Approval 4 weeks after receiving City / public comments City Review 2 weeks Present / Receive Public Input 6 weeks Submit Prelim. MP Maps & Docs. 3 months after receiving City / public comments City Review 2 weeks Submit Final MP Maps & Docs. 4 weeks after receiving City review comments 4. FEES SUMMARY OF FEES (Project A) Basic Services Fees Preliminary Report (COMPLETE) Proposed Contract Total Contract 1. Preliminary Phase (COMPLETE) $34,605 $0 $34,605 2. Design Phase $0 $215,000 $215,000 3. Bid Phase $0 $14,000 $14,000 4. Construction Phase $0 $27,400 $27,400 Subtotal Basic Services Fees $34,605 $256,400 291,005 Additional Services Fees (Allowance) 1. Permit Preparation (TxDOT) $0 $25,000 $25,000 2. Topographic Survey $0 $42,000 $42,000 3. ROW / Easement Acquisition Survey $0 $12,000 $12,000 3. Subsurface Utility Engineering Report $0 $70,000 $70,000 5. Public Meeting $0 $6,000 $6,000 6. Construction Observation Services (NOT AUTHORIZED) $0 $46,800 $46,800 7. Warranty Phase $0 $5,000 $5,000 Sub -Total Additional Services Fees $0 $206,800 $206,800 Total Fee $34,605 $463,200 $497,805 The estimated construction cost for Oso Effluent Re -Use Distribution System Phase 1 is $3,640,000. The total basic services fee proposal for this project is $291,005. Therefore, the percentage of design cost to construction cost is 7.9 %. EXHIBIT "C" _(� _ Page 2 of 3 H:IHOMEIKe&IyO GEMWASTEWATER 1!08010 & E10135- Water Re-Use Master Pian S'CIQa §Rluent Re-Use Dislrieetion SysiemlLarge AE15 CONTRACT $UMMARY.doc SUMMARY OF FEES (Project B) Fee for Basic Services Totals Conceptual Plan 1. Inventory Analysis & Mapping $19,000 2. Public Input $8,000 3. Report $40,000 Master Plan 4. Route Study $59,000 . 5. Hydraulic Modeling $25,000 6. Develop Rate Model $42,000 7. Develop Sample User Plan $5,000 8. Mapping $45,000 . 9. Public Input $10,000 Total Authorized Fee $253,000 EXHIBIT "C" _ Page3of3 H:U10ME itellyOIGENIWA5TEWATER1E09010 & E10135- Water Re -Use Master Plan _ &') I Zffluent Re -Use Distribution Systemllarge AE\5 CONTRACT SUMMARY.dae PROJECT BUDGET OSO EFFLUENT RE -USE DISTRIBUTION SYSTEM PHASE 1 (Project A) WATER RE -USE MASTER PLAN - CITY WIDE (Project B) Project Nos. E10135 & E09010 October 12, 2010 FUNDS AVAILABLE: Wastewater CIP (WW 32) $5,500,000.00 FUNDS REQUIRED: Estimated Construction - Project A (Contractor TBD) $3,640,000.00 Contingencies 364,000.00 Consultant Fees: Consultant - Preliminary Phase for Project A (Urban Engineering) 34,605.00 Consultant - Project A (Urban Engineering) 463,200.00 Consultant - Project B (Urban Engineering) 253,000.00 Estimated Testing (Geotech & Construction Materials) 72,800.00 Reimbursements: Contract Adminstration (Contract Preparation /Award /Admin) 81,900.00 Engineering Services (Project Mgt/Constr MgtlTraffic Mgt) 127,400.00 Construction Observation Services (Included in Consultant Contract) 0.00 Finance Issuance 45,500.00 Misc. (Printing, Advertising, etc.) 18,200.00 TOTAL $5,1 00,605.00 FUNDS REMAINING: $399,395.00 EXHIBIT "D" Page 1 of 1 \Mproject\councilexhibifs\exhE10135b.dwg OSO EFFLUENT RE-USE DISTRIBUTION SYSTEM PHASE 1 800 CITY COUNCIL EXHIBIT CITY OF CORPUS CHRISTI, TEXAS DEPARTMENT OF ENGINEERING SERVICES PAGE: I of 2 DATE: 09/21/2010 \Mproject \councilexhibits \exhE0901 O. dwg PROJECT #E09010 LOCATION MAP NOT TO SCALE EXHIBIT "E" WATER RE -USE MASTER PLAN (CITY WIDE) CITY COUNCIL EXHIBIT CITY OF CORPUS CHRISTI, TEXAS DEPARTMENT OF ENGINEERING SERVICES PAGE: 2 of 2 DATE: 09/21/2010 • -0 c ra ,-1 w N ra s a E w +a 0 v) c 0 8+73 z c ,,, +a 0 o w °' 0 0 m cz 6 2 ce w a-+ N c M CU ur 4- fX 4 W w O ra 0 0 (Project Nos. E10135 & E09010) c 0 V c m 0 U 0 0 N Oc 0 E u CU o 0 V u CU O O O O 0_ 0.. 0.. • E 0 E 0 2 0 0 O c 0 V 0 V E O 0 V E V O CU O CO Al 0 1) O i 0 W 0 w O L C ,O 0 0 w u O V ._ 0 s ca V ii V u 0 X C O O X N cb 0 0 E U 0 73 V_ O Q 7 C O C O 7) C V 0 C O O O u i V W Q v. u) co c C E E 0 O v o V C p 3 CL >. 1-+ - Q N a) U W a) ▪ 0) • N l0 > N LD s N 0) U 1- (1) v CO i N i Q) -C te a-' c co co 0 c,/'f E c a) C 0 E CB (0 (/? LA 0 4 i +a v +-+ 3 Q Z 0 c S Q o 0 O ca Q c CL 0 U 3 �' 3 - ai a (i3 v 0.- CO > 0) - > 0) - > 0 V .., >- v U f:C Cll U CC = U �' w - c a nom) ' vi 0 m i) E_+ 51) 3' (/ (/) CO 0 O 0 D O 0 U1 0 Lf D O 0 0 00 00 r1 Cr) N 01 0 01 N N Cr 0 0 0 0 0 •t 00 N' lD L u1 O tO N N .;t 0 O 0 D O 0 U1 0 to 0 0 LD LO m M •Based on estimated construction cost of $3,640,000.00 O 0 O 0 O O O O; O 0 0 0 0 O 0 0 0 0 0 ' 0 0 00 0 00 0 00' 0 01 0© 0 Ol Lf) N O' r-I d- Ln N d- d- rl (II .,. — 2 CL L 0?i Q.) N col O a) > cm = 0 cc cn Q 4 c/' O 0 - 4-1 L Q C . 0 0 L1- —+ W W �- ° N s_ V, N ,� ©; n 5' = '' 0 V r 1 N (`n 2 d- Lf) LD rn H O a 0 22 CITY COUNCIL AGENDA MEMORANDUM AGENDA ITEM: Motion to consider a request for an additional 180 day extension of a Special Permit, to April 14, 2011, to allow for a pet groom and boarding business, small dog and cat rescue shelter, and dog service and therapy /training facility, on property located at the southwest corner of Gadwell Street and Laguna Shores Road, in Case No. 0309 -01, Ross and Judith Sisson. ISSUE: The applicant, Judith Sisson, is requesting an additional 180 day time extension of their approved Special Permit to operate a small animal rescue center. Per Mrs. Sisson, due to inclement weather and flooding onsite, she has not been able to perform the construction required onsite to comply with the approved Special Permit; for this reason Mrs. Sisson is requesting additional time to come into compliance. RECOMMENDATION: Staff recommends Denial of Special Permit Extension. REQUIRED COUNCIL ACTION: Approval of Staffs Recommendation to deny the time extension of the Special Permit. Attachments: Exhibit A Exhibit B Exhibit C Exhibit D Exhibit E — ! uan -erales, Jr., P.E. Assistant City Manager Engineering & Development Services JohnnyP @cctexas.com (361) 826 -3828 — Background Information — Applicant's Letter Requesting a Time Extension on the Special Permit — Aral & Zoning Maps — Animal Control Report Approved 2009 Special Permit Ordinance & Site Plan H:1PLN- DJRISHAREDI1. PLANNING COMMISSION12010 CC\SISSON- COASTAL BEND SMALL BREED RESCLJE10309.01 AGENDA MEMO SISSON SP EXTENSION OCTOBER 12, 2D10.DOC -319- AGENDA MEMORANDUM ADDITIONAL BACKGROUND INFORMATION BACKGROUND: January 12, 2004 Letter from Animas Care Manager Cherie Stuntz to Ms. Sisson indicating Small Breed Rescue is in violation of maximum number of animals permitted onsite. Ms. Sisson is permitted to keep 14 animals and yet possesses 100 at the time the letter is sent. Ms. Sisson is given 5 days to respond. February 12, 2004 Response received from Ms. Sisson, citing improvements and a reduction of the number of animals by 40. March 1, 2004 A/C Inspects Coastal Bend Small Breed Rescue giving instructions to make repairs and installs proper shelter for animals, conduct proper cleaning and sanitation. Pictures taken March 8, 2004 Citations issued for violations of Animal Care and Waste disposal. March 11, 2004 Ms. Sisson writes letter cites mistreatment by Animal Care Services. March 11, 2004 Animal Care meets with the Health Department and Code Enforcement standards. April 6, 2004 Animal Care issues additional citations for same violations. April 6, 2004 Mr. Sisson cites unfairness by Animal Care Services. May 26, 2004, the City of Corpus Christi granted the applicant a Special Permit for the operation of a kennel /animal rescue facility (Ordinance No. 025773; SP04 -01). December 28, 2004, the City's Animal Care Services Department performed an inspection and it was determined that the animal shelter failed to meet the minimum standards set by the State of Texas. The City determined that that shelter was not up to standards and prevented the shelter from receiving any more animals, but allowed the shelter to continue adopting out the animals to good homes while the shelter attempted to bring the facility up to standards. An inspection was planned for the facility within 60 -90 days. March 27, 2006, Animal Care Services conducts an inspection pursuant to Rule 11 Agreement issued in County Court at Law Number Two. The inspection was unsatisfactory citing numerous violations. September 6, 2006, the Applicant received a Nueces County Court Order ordering the Applicant's property to be inspected by the City's Animal Care Services Department to determine whether the property met the standards and code requirements of the City's Animal Care Services Department. Upon meeting the requirements of the code, animals that were previously confiscated by the City EXHIBIT A PAGE 1 OF 3 H :IPLN- DIR\SHAREDI1. PLANNING COMMISSION12010 CC\SISSON- COASTAL BEND SMALL BREED RESCUE10309 -01 COUNCIL AGENDA MEMO BACKGROUND INFORMATION OCTOBER 12, 2010.DOC -320- and placed in the care of PALS animal shelter would be returned. On September 7, 2006, the City once again inspected the property and issued an unsatisfactory rating for the shelter and the shelter did not meet the standards and applicable codes. On March 7, 2007, both parties appeared before the Nueces County Court for a hearing related to the case and, having reached an agreement, the case was dismissed by the court. On January 15, 2009 the applicant met with the City of Corpus Christi to discuss the non - compliant issues associated with the subject property. The applicant was informed that the special permit for the operation of a kennel /animal rescue facility had expired and therefore the applicant is not in compliance with the City's requirements. The Applicant was given 45 days from the time of inspection by Animal Control to complete the re- zoning application process. The Deadline date was set for March 9, 2009. On April 14, 2009 the City Council recommended denial of the applicant's request to rezone the property to an "1 -2" Light Industrial District. The City Council recommended approval of a Special Permit in lieu of the rezoning request, subject to a site plan for a pet groom/boarding business, small dog and cat rescue shelter, and dog service and therapy/training facility, along with 10 conditions. On March 15, 2010, the applicants requested a time extension to their approved Special Permit through the Development Services Department. On April, 13, 2010, City Council issued a 180 day time extension on the Special Permit. Development Services Staff and Animal Care Services have visited the site on several occasions since the issuance of the 180 day time extension. The last visit occurred on September 14, 2010. The staff accounts mention several issues involving: Drainage problems, stagnant water in dog enclosures, lack of dry food and fresh water, overcrowding, and potential vector issues arising. The Special Permit extension granted by City Council on April 13, 2010, will expire on Sunday, October 10, 2010. Staff will not act on the expiration of the Special Permit, pending Council's consideration of the extension request on October 12, 2010. 7 -15 -10 INSPECTION REPORT: Planning Division Findings: + No work done over the last year to construct new concrete slabs due to flooding onsite. ❖ Driveway buildup of roofing material not an acceptable material for construction. ❖ Since the site falls within a flood zone with no drainage onsite or for the surrounding area, proposed septic system use by the applicant onsite and is not recommended and is not conducive to the health and safety of the animals onsite. ❖ Abandoned vehicles, appliances, and bulk trash onsite contribute to potential vertebrate and invertebrate vector -borne diseases. City Animal Control Department Findings: ❖ Some kennels consist of cracked and unsealed concrete slabs with inadequate slopes to EXHIBIT A PAGE2OF3 H;IPLN-DIRISHAREDI1. PLANNING C0MMISSION12010 CCISISSON- COASTAL BEND SMALL BREED RESCUE10308.01 COUNCIL AGENDA MEMO BACKGROUND INFORMATION OCTOBER 12, 2010.DOC —321— prevent pooling of urine and feces, plywood floors in some kennels also trap eliminations and create a health hazard to the animals housed within the kennels. • Dirt and sand is being used as flooring for some of the kennels onsite, making sanitation impossible. • Some kennels rusted and need repair, temporary kennels need replacement. ❖ No shelter for horses onsite and insufficient overhead shelter for kenneled animals during periods of high heat, clean water was not available to horses and chickens. ❖ Insufficient drainage onsite to efficiently clean kennels and direct wastewater into an approved wastewater system, septic tank is not present onsite and is not recommended. ❖ High weeds onsite contribute to potential reptile and vermin health threats. 9 -14 -10 INSPECTION REPORT: Planning Division Findings: • No work done to construct new concrete slabs due to current flooding onsite. • Driveway buildup flooded. • Since the site falls within a flood zone with no drainage onsite or for the surrounding area, portions of proposed septic system installed, inoperative, and is not conducive to the health and safety of the animals onsite. • Abandoned vehicles, appliances, and bulk trash onsite contribute to potential vertebrate and invertebrate vector -borne diseases. City Animal Control Department Findings: ❖ Some kennels still consist of cracked and unsealed concrete slabs with inadequate slopes to prevent pooling of urine and feces. ❖ Dirt and sand is still being used as flooring for some of the kennels onsite. • Some kennels rusted and need repair, temporary kennels need replacement. • No shelter for horses onsite and insufficient overhead shelter for kenneled animals during periods of high heat, clean water was not available to horses and chickens. • Insufficient drainage onsite to efficiently clean kennels and direct wastewater into an approved wastewater system, septic tank is not present onsite and is not recommended. CONCLUSION: Staff recommends Denial of Special Permit Extension. Following the updated inspection report, Development Service and Animal Control Staff conclude the Applicant has failed to improve the site and correct the conditions that have led to the multiple violations and increased health hazards to the animals over the last two years under the approved Special Permit. Staff understands that the site itself has limitations imposed by the lack of drainage, and it is partially due to the physical conditions onsite that Staff has determined that the property is not conducive to the health of the animals and the use of the property as an animal rescue facility. Staff recommends denial of the applicant's request for an extension of the Special Permit. EXHIBIT A PAGE3OF3 H:IPLN- DIRSSHAREDII. PLANNING COMMISSION42010 CCISISSON- COASTAL BEND SMALL BREED RESCUE40309 -01 COUNCIL AGENDA MEMO BACKGROUND INFORMATION OCTOBER 12, 2010.000 -322- Coastal Bend Small Breed Rescue Judi Sisson Executive Director Ross Sisson Treasurer Tony Hartwell Public Relations Dir. Jul -- ,ZB ce.6e 2512 Laguna Shores Road Corpus Christi, TX 78418 361- 939 -9462 361 -816 -2693 Email: iudisisson@wahoo.com www. coastalbendrescue. petf finder. corn City of Corpus Christi Developmental Services - Planning Division 2406 Leopard Street Corpus Christi, TX In regards to: Extension of Special Permit To Whom It May Concern: September 7, 2010 Please be informed that the Coastal Bend Small Breed Rescue is requesting an extension of the Special Permit for Case 0309 -01, which was issued on April 14, 2009. The Coastal Bend Small Breed Rescue is under contract for construction project. The project consists of the concrete pad and kennel runs, in order to house the animals in our care properly. The septic contractor has been very busy and could not get to our job until now. We have obtained all the materials and they are sitting on site waiting for the weather to improve. We have all the permits and surveys for the septic system. The construction will begin on September 11, 2010 for the septic system and the concrete will follow right behind. We do not want to risk loosing the permit, Section 25 -5 A request to extend the time for which a special permit is valid must be submitted in writing to the Department of Planning prior to the expiration of the special permit. The fee for processing such request is published in the Development Services fee schedule, which is adopted under Chapter 14, Code of Ordinances. (Ordinance 23016, 07/29/97) (Ordinance 25454, 08/26/03) Please accept our request for the extension as the weather has presented some extenuating circumstances and we are going as quickly as we can under these constraints. Enclosed is a check for the $50.00 processing fee. Thanking you in advance. Respectful , yours Judith $'son Executive Director/President A DOG IS FOR LIFE — NOT JUST FOR CHRISTMAS SAVE A LIFE -- ADOPT A PET —323— 0249/2089 Prepared By: SRR Departmenr of Development Servlees APPLICANT'S REQUEST: SPECIAL PERMIT EXTENSION Refer to Map 2a & 2b for Neighborhood Existing Land Use. Also available at www.octexas.com J 1I WATER 02/23/2009 Prep rad By: SR,14 . epermmeet of DeY.elopilierIt Services CASE # 0309 -01 APPLICANT'S REQUEST: SPECIAL PERMIT EXTENSION m Estate Residential - ER Light industrial - Li Low Density Res. - LDR TrA Heavy Industrial - Hi En Med Density Res. - MDR Public Semi- Public - PSP III High Density Res. - HDR 11111 Park Mobile Home - MH Drainage Corridor • DC Vacant - VAC EgE Conservation/Preservation • CP Professional Office • PO 0 Water - Commercial - COM Map Scale, 1.2,400 2.b. SITE- EXISTING LAND USE r,+1J_J;(--7,r Frl)J� 13T1i CASE # 0309 -01 3.b. SITE- FUTURE LAND USE 1M Agricultural/Rural - AR ® Tourist - TOR Estate Residential - ER MEI Low Density Res. - LDR Med Density Res. - MDR NI High Density Res. - HDR Mobile Home • MH Vacant - VAC Professional Office - PO au S Commercial • COM UZI UZI Transportation Plan &lsa'ng Proposed Arterials •••-a. Collectors eszosam Expressways mama $$ Parkway +44-E+ Railroad Research /Business Park • RBP Light Industrial - LI Heavy industrial - Hi Public Semi- Public • PSP Park Drainage Corridor - DC Dredge Placement - DP Water CIE Conservation /Preservation - CP Map Scale: 1:2,400 • CASE # 0309 -01 APPLICANT'S REQUEST; SPECIAL PERMIT EXTENSION r Subject Property Refer to Map 2 for Neighborhood Existing Land Use. Also available at www.cctexas.com 4. SITE- 2007 AERIAL 9 City of Corpus Christi Corpus Christi Animal Care Service Center 2626 Holly Corpus Christi, Texas 78415 361426 -4630 Fax: 361 -826 -4611 Mrs. Judith Sisson Executive Director Coastal Bend Small Breed Rescue 2502 — 2512 Laguna Shores Corpus Christi, Texas 78418 September 14, 2010 Animal Control and Development Services Inspection Findings Coastal Bend Small Breed Rescue Facility on site visit April 2, 2010 April 24, 2009, July 15, 2010 and on site visit September 14,2010 Ordinance Conditions and On Site Notes & Comments Mrs. Sisson on September 14, 2010 at 10:00 am, ACO I Kennel Supervisor Janet Schenzel along with Development Services Planning Technician Wes Vardeman arrived at Coastal Bend Small Breed Rescue to conduct a joint inspection. Below is an outline of the current findings. We have also included in this report the findings from the previous inspection conducted April 24, 2009 at 10:30 a.m., April 2, 2010 at 10:00a.m., July 15, 2010 at 10:00a.m, and September 14, 2010 at 10:00a.m.. You may contact Animal Care Services and or the office of Development Services if you have any questions. The Special Permit Extension Expiration date is Sunday, October 10, 2010. The next on site progress evaluation shall be conducted on or about the 90th day. It is tentatively scheduled for Monday, October 4, 2010. Our divisions will contact you in advance to coordinate a meeting date and time. The Ordinance Observations Abatement Re . uirements Section 2 A. Uses April 24, 2009 April 24, 2009 The only use authorized by this Special Permit other than those uses permitted by right in a "B- 2" Bayfront Business District is a pet groom /boarding business, Not currently being utilized as a Therapy/ Training Facility. Not currently in compliance with Animal Control Regulations as a shelter. April 2, 2010,,,,,, Must come into compliance with Animal Control Regulations. Animal Control Ordinance. (See attachment #1) Animal Control / Devel. Services Recommendation April 2, 2010 small dog and cat rescue shelter and dog service and therapy/ training facility. All activities must be conducted in accordance with the City of Corpus Christi Animal Control Regulations, Not currently being utilized as a Therapy/ Training Facility. Not currently in compliance with Animal Control Regulations as a shelter. July 15, 2010 Not currently being utilized as a Therapy/ Training Facility. Not currently in compliance with Animal Control Regulations as a shelter. September 14, 2010 Not currently being utilized as a Therapy/ Training Facility. Not currently in compliance with . Animal Control Regulations as a shelter. Must come into compliance with Animal Control Regulations. Animal Control Ordinance. July 15, 2010 Must come into compliance with Animal Control Regulations. Animal Control Ordinance September 14, 2010 Must come into compliance with Animal Control Regulations. Animal Control Ordinance Section 2 B. Animals The pet groom/ boarding business, small dog and cat rescue shelter and dog service and therapy/ training facility shall be limited to no more than 103 (8 rabbits, 18 cats, 50 dogs, 27 chickens or 3 turkeys or a combination thereof). April 24, 2009 The total number of animals are in excess of the 103 agreed upon in the Ordinance / Special Permit. April 2, 2010 The total number of animals was 78, which was in the limit of 103. July 15,2010 The total number of animals is an approximation. Dogs, cats, guinea hen, and horses were the unchanged. Chickens were running loose and could not get an accurate count on them. Facility is still within the limit of 103. September 14, 2010 The total number of animals is an approximation. I did not see any rabbi @r turkeys April 24, 2009 Must reduce number of animals kept. Animal Control / Devel. Services Recommendation April 2, 2010 Within allowed number of permissible animals. July 15, 2010 Facility within the allowed number of permissible animals. September 14,2010 Facility within the allowed number of permissible animals. on this visit. Cats and chickens were running loose. I counted 36 dogs. Section 2 C. Prohibited Animals Large animals, including but not limited to cattle, emus, llamas and swine. April 24, 2009 Two horses are present on the Shelter property. April 2, 2010 Two horses are present on the Shelter property. July 15, 2010 Two horses are present on the Shelter property. September 14, 2010 Two horses are present on the Shelter property 33-9 April 24,2009 Recommendation is for Coastal Bend Small Breed Rescue to construct a fence to divide the Shelter property from Mrs. Sisson's residential property. Mrs. Sisson will confine her personal horses on her personal property. Animal Control Recommendation April 2, 2010 Recommendation is for Coastal Bend Small Breed Rescue to construct a fence to divide the Shelter property from Mrs. Sisson's residential property. Mrs. Sisson will confine her personal horses on her personal property. Animal Control Recommendation July 15, 2010 Recommendation is for Coastal Bend Small Breed Rescue to construct a fence to divide the Shelter property from Mrs. Sisson's residential property. Mrs. Sisson will confine her personal horses on her personal property. Animal Control Recommendation September 14,2010 Recommendation is for Coastal Bend Small Breed Rescue to construct a fence to divide the Shelter property from Mrs. Sisson's residential property. Mrs. Sisson will confine her personal horses on her personal property. Animal Control Recommendation Section 2 D. Slaughtering The slaughtering of animals on the property is prohibited. April 24, 2009 No slaughtering of animals observed. April 2, 2010 No slaughtering of animals observed. July 15, 2010 No slaughtering of animals observed. September 14, 2010 No slaughtering of animals observed. April 24, 2009 Protocol must continue to be maintained Animal Control / Devel. Services Reccomendation April 2, 2010 Protocol must continue to be maintained Animal Control / Devel. Services Reccomendation July 15, 2010 Protocol must continue to be maintained September 14, 2010 Protocol must continue to be maintained Animal Control / Devel. Services Reccomendation Section 2 E. Animal Waste In accordance with Chapter 6, Article VI, Section 6 -158 of the City Code of Ordinances, all animal waste must be collected on a daily basis and stored in a rat -proof and fly -tight container until the waste is properly disposed. April 24, 2009 Animal Waste is deposited into waste can with liner. The liner is tied closed after use and deposited into trash receptacle. Trash is collected twice weekly. April 2, 2010 Animal Waste is deposited into waste can with liner. The liner is tied closed after use and deposited into trash receptacle. Trash is collected twice weekly. 31 April 24, 2009 Protocol must continue to be maintained under Sec. 6 -158. Animal Control / Devel. Services Recommendation April 2, 2010 Protocol must continue to be maintained under Sec. 6 -158. Animal Control / Devel. Services Recommendation Observed during this inspection was a 500 gallon septic tank to be utilized in the planning for handling animal waste from the planned kennel area. July 15,2010 Animal Waste is deposited into waste can with liner. The liner is tied closed after use and deposited into trash receptacle. Trash is collected twice weekly. Observed during this inspection was a 500 gallon septic tank. Was informed that this tank was the wrong tank, all the plumbing part ordered were wrong and that the right tank and parts had been ordered. This tank and original parts will be sent back. September 14,2010 Animal Waste is deposited into waste can with liner. The liner is tied closed after use and deposited into trash receptacle. Trash is collected twice weekly. The original 500 gallon septic tank that was on site has been removed and they were awaiting the arrival of the new tank. Coastal Bend Small Breed Rescue is recommended to contact the City Health Department for requirements prior to installation of a septic system. July 15, 2010 Protocol must continue to be maintained under Sec. 6 -158. September 14. 2010 Protocol must continue to be maintained under Sec. 6 -158. Animal Control / Devel. Services Recommendation Coastal Bend Small Breed Rescue is recommended to contact the City Health Department for requirements prior to installation of a septic system. Section 2 F. Feed Storage In accordance with Chapter 6, Article VI, April 24, 2009 Animal feed is stored inside shoe3hiilding in April 24, 2009 Protocol must continue to be maintained under Sec. Section 6 -159 of the City Code of Ordinances, the storage of feed must be kept in rat proof, fly tight building, box, container or receptacle. sealed bags. Bags are stored on pallets keeping them off the ground. The building has closed windows and doors. Building has heat, A/C unit and fans. April 2, 2010 Animal feed is stored inside shop building in sealed bags. Bags are stored on pallets keeping them off the ground. The building has closed windows and doors. Building has heat, A/C unit and fans. July 15, 2010 Animal feed is stored inside shop building in sealed bags. Bags are stored on pallets keeping them off the ground. The building has closed windows and doors. Building has heat, A/C unit and fans. September 14, 2010 Animal feed is stored inside shop building in sealed bags. Bags are stored on pallets keeping them off the ground. The building has closed windows and doors. Building has heat, A/C unit and fans. 6 -159. Animal Control / Devel. Services Recommendation April 2, 2010 Protocol must continue to be maintained under Sec. 6 -159. Animal Control / Devel. Services Recommendation July 15,2010 Protocol must continue to be maintained under Sec. 6 -159. September 14, 2010 Protocol must continue to be maintained under Sec. 6 -159. Animal Control / Devel. Services Recommendation Section 2 G. Ponding Animal pens should be graded or covered so as to eliminate standing water in the pens. April 24, 2009 Current animal pens and stalls have cracked and broken slabs. Current design does oft provide April 24, 2009 Recommended the removal of several existing concrete "former residential housing" slabs instead of leaving and proper drainage through sloping or grading. All pens do not have drainage into septic system. April 2, 2010 Current animal pens and stalls have cracked and broken slabs. Current design does not provide proper drainage through sloping or grading. All pens do not have drainage into septic system. July 15,2010 Current animal pens and stalls have cracked and broken slabs. Current design does not provide proper drainage through sloping or grading. All pens do not have drainage into septic system. September 14,2010 Current animal pens and stalls have cracked and broken slabs. 34 Current "topping" or "over laying" the proposed larger and properly drained slab proposed for the new facility. The new slab shall be designed in such a manner as to prevent the ponding within animal pens and stalls as referenced in Zoning Ordinance 028113. Also (See attachment #1) Animal Control / Devel. Services Recommendation April 2, 2010 Recommended the removal of several existing concrete "former residential housing" slabs instead of leaving and "topping" or "over laying" the proposed larger and properly drained slab proposed for the new facility. The new slab shall be designed in such a mariner as to prevent the ponding within animal pens and stalls as referenced in Zoning Ordinance 028113. Also (See attachment #1) Animal Control / Devel. Services Recommendation July 15,2010 Recommended the removal of several existing concrete "former residential housing" slabs instead of leaving and "topping" or "over laying" the proposed larger and properly drained slab proposed for the new facility. The new slab shall be designed in such a mariner as to prevent the ponding within animal pens and stalls as referenced in Zoning Ordinance 028113. September 14, 2010 Recommended the removal of several existing concrete "former residential housing" design does not provide proper drainage through sloping or grading. All pens do not have drainage into septic system. During this site visit, it did rain. This situation gave us the opportunity to see how much water pools on the current slabs, and that the dogs, food, and bedding gets wet. The only dry area for the dogs is on top of the dog houses, where many of them were standing. slabs instead of leaving and "topping" or "over laying" the proposed larger and properly drained slab proposed for the new facility. The new slab shall be designed in such a manner as to prevent the ponding within animal pens and stalls as referenced in Zoning Ordinance 028113. Section 2 H. Maintenance The property shall be kept in a neat appearance at all times. April 24, 2009 Accumulation of debris, miscellaneous materials, permanent and temporary structures, vehicles without current state inspection and registration were observed. April 2, 2010 Accumulation of debris, miscellaneous materials, permanent and temporary structures, vehicles without current state inspection and registration were observed. —335— April 24, 2009 Recommend removal of miscellaneous debris and vehicles in and around the Sisson's property as well as recommend the replacement or repair of the structures previously mentioned. The concern was with compliance of Condition (H) as stated in Zoning Ordinance 028113. Also (See attachment #1) Animal Control / Devel. Services Recommendation April 2, 2010 Recommend removal of miscellaneous debris and vehicles in and around the Sisson's property as well as recommend the replacement or repair of the structures previously mentioned. The concern was with compliance of Condition (H) as stated in Zoning Ordinance 028113. Also (See attachment #1) July 15, 2010 Accumulation of debris, miscellaneous materials, permanent and temporary structures. Mowing was done on the front of the facility, but not in the back. September 14, 2010 Accumulation of debris, miscellaneous materials, permanent and temporary structures. Mowing was done on the front of the facility and some additional mowing was done in the back. With the Tight rain that occurred today, there was standing water and the driveway was impassable. This observation is not for the health of the animals, but conductive to mosquitoes and disease. Animal Control / Devel. Services Recommendation July 15, 2010 Recommend removal of miscellaneous debris and vehicles in and around the Sisson's property as well as recommend the replacement or repair of the structures previously mentioned. The concern was with compliance of Condition (H) as stated in Zoning Ordinance 028113. September 14, 2010 Recommend removal of miscellaneous debris and vehicles in and around the Sisson's property as well as recommend the replacement or repair of the structures previously mentioned. The concern was with compliance of Condition (H) as stated in Zoning Ordinance 028113. Secton 2 I. Platting Platting of lot 23 is required prior to the construction of any new building on the lot. April 24, 2009 Platting of lot 23 is required prior to the construction of any new building on the lot. There are existing water, waste water and gas lines. April 2, 2010 Platting of lot 23 is required prior to the construction of any new building on the lot. There are existing giber, waste Recommend the removal and/or capping of any obsolete or abandoned water, waste water, or gas lines that will not be used by the proposed new facility. Devel./ Svc. Recommendation April 2. 2010 Recommend the removal and/or capping of any obsolete or abandoned water, waste water, or gas lines that will not be used by the proposed new facility. water and gas lines. July 15, 2010 Platting of lot 23 is required prior to the construction of any new building on the lot. There are existing water, waste water and gas lines. September 14, 2010 Platting of lot 23 is required prior to the construction of any new building on the lot. There are existing water, waste water and gas lines. Devel./ Svc. Recommendation July 15, 2010 Recommend the removal and/or capping of any obsolete or abandoned water, waste water, or gas lines that will not be used by the proposed new facility. September 14,2010 Recommend the removal and /or capping of any obsolete or abandoned water, waste water, or gas Tines that will not be used by the proposed new facility. Devel./ Svc. Recommendation Section 2 J. Time Limit The Special Permit shall be deemed to have expired within one (1) year from the date of this ordinance unless the property is being used as outlined in Condition A and in compliance with all other conditions. April 24, 2009 Inspection documents and photographs on Inspection date, April 24, 2009 identify the physical conditions at the time of adoption for Zoning Ordinance 028113, effective date, April 14, 2009 April 2. 2010 Inspection documents and photographs on Inspection date, April 2, 2010 identify the physical conditions at the time prior to the April 14th deadline. July 15, 2010 Inspection documents and photographs .iyEection April 24,2009 The Special Condition shall be deemed to have expired within one (1) year from the date of this ordinance unless the property is being used as outlined in condition (A) and in compliance with all other conditions by April 14, 2010. Animal Control / Devel. Services Recommedation April 2, 2010 The Special Condition shall expire on April 14, 2010 which is one (1) year from the date of ordinance. At this time the property is not in compliance with conditions XCXCXC. Animal Control / Devel. Services Recommedation July 15,2010 The Special Condition shall expire on April 14, 2010 Attachment #1 (Applicable Animal Control Ordinance Sections) Sec. 6 -9. Compliance with chapter not relief from compliance with federal, state, and city laws, rules, and regulations. Sec. 6 -10. Inspection of animals and premises. Sec. 6 -11. Abatement of conditions not complying with chapter. Sec. 6 -12. Application omissions or falsifications. Sec. 6 -26. Application requirements. Sec. 6 -51. General provisions. Sec. 6 -52. Application. Sec. 6 -53. Term. Sec. 6 -54. Fees. Sec. 6 -56. Pertaining to kennels and stables. Sec. 6 -101. Restraint. Sec. 6 -102. Spaying /neutering required of cats. Sec. 6 -126. Rabies Vaccination. Sec. 6 -151. Humane animal care and keeping. Sec. 6 -154. Keeping of any livestock or fowl. Sec. 6 -158. Animal waste Sec. 6 -159. Storage of food; control of rats. Janet Schenzel ACO I Kennel Supervisor Wes Vardeman Development Services Planning Technician CC: Kelil F. Copeland Margie Rose Faryce Goode -Macon Annissa Garrett —338— date, July 15, 2010 identify which is one (1) year from the physical conditions at the the date of ordinance. At this time prior to the April 14, time the property is not in 2009 deadline. compliance with conditions XCXCXC. September 14, 2010 September 14, 2010 The Special Condition shall Inspection documents and expire on April 14, 2010 photographs on Inspection which is one (1) year from date, September 14, 2010 the date of ordinance. At this identify the physical time the property is not in conditions at the time prior compliance with conditions to the April 14, 2009 and the XCXCXC. October 10, 2010 deadline of the current extension. Attachment #1 (Applicable Animal Control Ordinance Sections) Sec. 6 -9. Compliance with chapter not relief from compliance with federal, state, and city laws, rules, and regulations. Sec. 6 -10. Inspection of animals and premises. Sec. 6 -11. Abatement of conditions not complying with chapter. Sec. 6 -12. Application omissions or falsifications. Sec. 6 -26. Application requirements. Sec. 6 -51. General provisions. Sec. 6 -52. Application. Sec. 6 -53. Term. Sec. 6 -54. Fees. Sec. 6 -56. Pertaining to kennels and stables. Sec. 6 -101. Restraint. Sec. 6 -102. Spaying /neutering required of cats. Sec. 6 -126. Rabies Vaccination. Sec. 6 -151. Humane animal care and keeping. Sec. 6 -154. Keeping of any livestock or fowl. Sec. 6 -158. Animal waste Sec. 6 -159. Storage of food; control of rats. Janet Schenzel ACO I Kennel Supervisor Wes Vardeman Development Services Planning Technician CC: Kelil F. Copeland Margie Rose Faryce Goode -Macon Annissa Garrett —338— AN ORDINANCE 028113 Page 1 of 4 APR .• l[ f . AMENDING THE ZONING ORDINANCE, UPON APPLICATION. BY ROSS W. AND JUDITH A. SISSON, BY CHANGING THE ZONING MAP IN REFERENCE TO 1.4 ACRES OUT OF LOT 23, SECTION 54, FLOUR BLUFF AND ENCINAL FARM AND GARDEN TRACTS, \,A'LD GADWELL ADDITION, BLOCK 1, LOT 2, FROM "B -2" BAYFRONT... BUSINESS DISTRICT TO "B-2/SP" BAYFRONT BUSINESS DISTRICT WITH . A .-SPECIAL PERMIT TO ALLOW FOR A PET GROOM /BOARDING BUSINESS, SMALL DOG AND CAT RESCUE SHELTER AND DOG SERVICE AND THERAPYITRAINING FACILITY, SUBJECT TO A SITE PLAN AND TEN (10) CONDITIONS; AMENDING THE COMPREHENSIVE PLAN TO ACCOUNT FOR ANY DEVIATIONS FROM THE EXISTING COMPREHENSIVE PLAN; PROVIDING A REPEALER CLAUSE; PROVIDING A PENALTY; PROVIDING FOR PUBLICATION; AND DECLARING AN EMERGENCY. WHEREAS, the Planning Commission has forwarded to the City Council its reports and recommendations concerning the application of Ross w. and Judith A. Sisson, for amendment to the City of Corpus Christi Zoning Ordinance and Zoning Map; WHEREAS, with proper notice to the public, public hearings were held on Wednesday: March 4, 2009, during a meeting of the Planning Commission, and on Tuesday, April 14, 2009, during a meeting of the City Council, in the Council Chambers, at City Hall, in the City of Corpus Christi, during which all interested persons were allowed to appear and be heard; and WHEREAS, the City Council has determined that this amendment would best serve public health, necessity, and convenience and the general welfare of the City of Corpus Christi and its citizens. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF CORPUS CHRISTI, TEXAS: SECTION 1. That the Zoning Ordinance of the City of Corpus Christi, Texas, is amended by changing the zoning on 1.4 acres out of Lot 23, Section 54, Flour Bluff and Encinal Farm and Garden Tracts, and Gadwell Addition, Block 1, Lot 2, located on the southwest corner of Gadwell Street and Laguna Shores Road, from "B -2" Bayfront Business District to "B -2 /SP" Bayfront Business District with a Special Permit to allow for a pet groom /boarding business, small dog and cat rescue shelter and dog service and therapy /training facility, subject to a site plan, attached, and ten (10) conditions. (Zoning Map 035029; 113 -05) (Exhibit A) (Site Plan attached as Exhibit B) SECTION 2. That the Special Permit granted in Section 1 of this ordinance is subject to the following ten (10) conditions: A. Uses: The only use authorized by this Special Permit other than those uses . permitted .by. -rigbt.in..a. ".B -2" Bayfro.nt.Busines& Disfrict is a pet groom /boarding .,n81 13 H 1LEG- DIR15haredlLEGAL- DEV.SVCS %200c1 Agenda +4- 1410$lSIrgrlg0309 -0 1- Sisson E -2- special permit dm Page 2 of 4 business, small dog and cat rescue shelter and dog service and therapyltraining facility. All activities must be conducted in accordance with the City of Corpus Christi Animal Control Regulations. B. Animals: The pet groom /boarding business, small dog and cat rescue shelter and dog service and therapyltraining facility shall be limited to no more than 103 (8 rabbits, 18 cats, 50 dogs, 27 chickens or 3 turkeys or a combination thereof). C. Prohibited Animals: Large animals, including but not limited to cattle, emus, llamas and swine. D. Slaughtering: The slaughtering of animals on the property is prohibited. E. Animal Waste: In accordance with Chapter 6, Article VI, Section 6 -158 of the City Code of Ordinances, all animal waste must be collected on a daily basis and stored in a rat -proof and fly tight container until the waste is properly disposed. F. Feed Storage: In accordance with Chapter 6, Article VI, Section 6 -159 of the City Code of Ordinances, the storage of feed must be kept in a rat- proof, fly -tight building, box, container or receptacle. G. Ponding: Animal pens should be graded or covered so as to eliminate standing water in the pens. H. Maintenance: The property shall be kept in a neat appearance at all times. 1. Platting: Platting of lot 23 is required prior to the construction of any new building on the lot. J. Time Limit: The Special Permit shall be deemed to have expired within one (1) year from the date of this ordinance unless the property is being used as outlined in Condition A and in compliance with all other conditions. SECTION 3. That the official Zoning Map of the City of Corpus Christi, Texas, is amended to reflect the amendment to the Zoning Ordinance made by Section 1 of this ordinance. SECTION 4. That the Zoning Ordinance and Zoning Map of the City of Corpus Christi, Texas, approved on the 27th day of August, 1937, as amended from time to time, except as changed by this ordinance and any other ordinances adopted on this date, remain in full force and effect. SECTION 5. That to the extent that this amendment to the Zoning Ordinance represents a deviation from the Comprehensive Plan, the Comprehensive Plan is amended to conform to the Zoning Ordinance, as amended by this ordinance. SECTION 6. That all ordinances or parts of ordinances in conflict with this ordinance are hereby expressly repealed. f- I. 1LE- G- C11R1ShriredlLEGAL- DEV.SVCS1200r Flnende14- 141oRD-zp4ir190309-01 issor B2-special perniiLdnc Page 3 of 4 SECTION 7. A violation of this ordinance or requirements implemented under this ordinance constitutes an offense punishable under Section 35 -3 of the Zoning Ordinance of the City of Corpus Christi. SECTION 8. That publication shall be made in the official publication of the City of Corpus Christi as required by the City Charter of the City of Corpus Christi. SECTION 9. That upon written request of the Mayor or five Council members, copy attached, the City Council finds and declares an emergency due to the need for immediate action necessary for the efficient and effective administration of City affairs and suspends the Charter rule as to consideration and voting upon ordinances at two .regular meetings so that this ordinance is passed upon first reading as an emergency measure on this 14th day of April, 2009. ATTEST: CITY OF CORPUS CHRISTI Armando Chapa City Secretary APPROVED: April 6, 2009 eborah Walther Brow Assistant City Attorney For City Attorney Henry arrett Mayor, City of C rpus Christi I-! 1LEG- DIR\Shzrec! LEGAL -DEV SVCS12OOG Aciend04-14i0RD o ipg_3:?.- C':- Sissurn B-;-special perniL .doc Page 4 of 4 Corpus Christi, Texas day of � , 2009 TO THE MEMBERS OF THE CITY COUNCIL Corpus Christi, Texas For the reasons set forth in the emergency clause of the foregoing ordinance, an emergency exists requiring suspension of the Charter rule as to consideration and voting upon ordinances at two regular meetings. Uwe, therefore, request that you suspend said Charter rule and pass this ordinance finally on the date it is introduced, or at the present meeting of the City Council. Respectfully, Respectfully, H - n '' Garre Mayor, City Council Members The above ordinance was passed by the following vote: Henry Garrett Melody Cooper Larry Elizondo, Sr. Mike Hummel! Bill Kelly Priscilla G. Leal John E. Marez Nelda Martinez Michael McCufchon 41%Off 0281.1.3 f Corpus Christi \LE i.L JIFFS hered1LEGAL- OEV.SVCS22G;} Aoends‘4- 141ORD -z iag}"{3_`t .)i- Sissor, E- 2- special permit dor FLOUR BLUFF=SCNDOL TR -EX 1 EGd £ FLAG SUNS 'F J RN ,/A 1 B -2 & F1SNJNG CL L•UR ELU1= 21F TO: "132 "1 SP 13 ADR c¢PLACE 1.AGA rgariGG9 Prep embe rrR D feimreaiofDeveropmenf&Mos CASE # 0309-Of EXHIBIT A: STAFF AND PLANNING COMMISSION RECOMMENDATION FROM: "B -2" TO: "B -2" ! SP ORDINANCE NO.: -343- z5o& LA ,A1 LOT Li EM C t A L TRACT*, Nit Roo tit le o 145 can.., Pon VP 13d 11Jw 14 G thdA *Kaam& mai.P ?Lou g SWFF 4 EM Mil 6,4APEJU ECTgo*J ' 111. ituSai.J O X19 Phrl to 1 0 7 ti a g144 tie" t4:. s b. A 1°5(0.0 k _ .�. Ow- (04 rePeiV- - 344 -�'' Ey ;Mir �vL I LF URI • - ,G� �- U y ' G4' O/" ' (z-,i FINAL PLAT GADWELL ADDITION BLOCK 1 r LOT 2r CORPUS CHR!S1 NUECES COUNTVo TEXAS. W 0 w b Ploy* WWII_ MEWL Ti O' QRA1NAGE CASEM.Ar 1*' P. Dt'iu 'w )V 79Vi 'E ,9T. Da. LACLWA 191 09 D v. N4 !..00ATION MAP Lot 3 t/i I. 34 •Pj. i; MTN: FOURDATIOR FLOOR MEVATTON OF ANY MAP Ci7RSTRUC2'XON W IS A M W.IMUM OP 12 FS4T A80VN SSA 1/0 L, A. P67 41.4 a zt NOTE' AVERAGE ELEVATION OF LOT 4.5 FEET ABOVE MEAN -BEA LEVEL... for 2 I Mu 1 /r' j L.�, :; i_.. 0 S( S,� w KB i KWCo/ner, 1a/ 24 • /9 2321 20 Sic.S4, F.R11.gi TJ£ (: LSii G i - R. a , • `,, W,e. Y .597..ehow9%OD' AGUNA SHORES ROAD o 1 a +r GRAPHIC SCALE FEET STATE DP TEXAS: COUNTY OF NUECES: This final plat July private Mater supply and or to {nstcllatian. STATE OP TEXAS; COUNTY D1`- HUBCES: This fine) plat of the herein described property npprovod by the Director, Department of Ungi.nvcriny GADWELL STREET LEG Being a creel more or loss, Flour Bluff i sedum/bed Page ISO of t Texas. Plat c Carden Tracts 41 -43 of the STATE OP TED COUNTY OF NUE Public Survey plot is true knowledge end from s survey 1974. Apr 1 ''%1 STATE OF TEXA COUNTY OP NUS certify that embraced with BLOCK1,1.01 Texas; that I subdivided is on said £orog use forever; hereon are do installation, utilities; th purposes of d This the 21st STATE DP TEXA COUNTY DP NUE authority, on Troy AiphiI% - name is•subsc: writing, and the same for therein supra This the 21st .—.E Notary P of CADWELL ADDITIOT9, EILOCK I t LOT E, approved by the Corpus Christi ?UBCCE Coemty Ti souorage system shall be approved by the Corpus Christi- Nuuces County Health Departm: Dated the 0.1W dny of by , 1976. , , public oatt iinsor, Corpus C1 T Mucus County. Tunes. Phi sl er_4 e�,v'.l'.n n.,e�. L� ,�,... r r.n.� ..- . -i..- ., � rs.� .:.r• —..r n+.— —345— ` 4.75472 cars '2a;, '! , Legal Description: Being F portion of Lot No. 23 in Section No. 54 of the Flour Bluff and Ercinal. Farm and Garden Tracts, as shown by the map or plat thereof recorded in Volume "A ", Pages 41 to 43, both inclusive, of the Map Records, Nueces County, 'Texas, to which reference is her made for all pertinent purposes, said tract being more Particularly described by mete and bounds as follows, BEGINNING at the point of intersection of the Northwest boundary line of that certain tract of land conveyed by Wesley Ray Duncan et ux to L. F. Brothers by Deed dated May 21, 1937, recorded in Volume: 231, Page 132, of the Deed Record:., of Nueces County, Texas, and the Northeast boundary line of Lot No. 23 for the Northeast corner of this tract:, said corner bearing North 29 deg. East a distance .of 1320 feet and South 61 deg. East a distance of 3748 feet from the Southwest corner of said Section No. 54 of the Flour Bluff and Encinal Farm and Garden Tracts; Ho/ P .& THENCE, North 61 deg. Wiest along the aforenrentiod Northeast boundary line of Lot No. 23, a distance of 448 feet .to e 5/8° iron rod in the same, being the Northwest corner of the aforementioned Lot No 23, for the Northwest corner of this tract; THENCE,, South 29 deg. West along the Northwest boundary line of Lot No. 23, Pass a 5/8" iron rod at 39', in all a distance. of 136 feet to a 5/8" iron rod in the same, for the Southwest corner of this tract; the same being the Northwest corner of a tract of land in the name of Jaynes M. Alphin et ux; THENCE, South 61 deg. East along a line that is parallel to the. Northeast boundary lineof the tract herein described, the same being the Northeast boundary line of said James M. ALPhi.rr et. ux Tract, a distance of 44ffeet to a 5/8" iron rod in the Northwest boundary line of that certain tract of lard conveyed by Wesley Ray Duncan et ux to L. F. Brothers by Deed dated May 21, 1937, recorded in Volume 231, Page 132, of the Deed Records of Nuoces County, Texas, for the Southeast corner of this tract; Thence, North 29 deg. East along the Northwest boundary line of the said L. F. Brothers Tract, as aforementioned, pass a 5/8° iron rod at. 97' in all a distance of 13 feet to a 5/8" a ors rod for the Place of Beginning. c 3 O e, -346- Aleflo /36,o' Pen LW Or' Setei ki t La el 2502 LA c.U14A *Home* RoAP igai LOT z5 Mout &LANs p 4 • EuCI>4aa AMD 0,4RPEM TRACT00 `' Ec loa.1 04 • rthe: Roo sr* q o w. 14401.1 OR Pry .25 IL a -. 1§v 1w 0 ity Polio DP ti eC 6 / 4:7 ,awl. Oc.1bJl VOL, g 1 ! FN. 4E4 -347 G✓ EXp.r fi7 P.P19t119 IStp t:. ACRES 1 PEGG S PLAC & FISHING CL SUBJECT PROPERTY B -2 w1SP (04113!201f) 02/2312009 Prepared By: SRR Department of Development Sewlces CASE # 0309 -01 APPLICANT'S REQUEST: SPECIAL PERMIT EXTENSION ZONING MAP Subject Property EXHIBIT A Approval of the Special Permit Extension ORDINANCE: 23 RELATED TO ITEM 22.1 GiTY DOUNC~L AGENDA MEMQRANDUM City Council Ac#ian Date: AGENDA ITEM: RECOMMENaATION: Matson approving a service agreement with 8FI Waste Services of Texas, LP, Carpus Christi, Texas for the Collection, Processing and Marketing of Residential Recyclable Commodities, based on best value, in accordance with Request for Proposal No. BI-0168-10. The term of the contrac# shall be for ten {10) years with options to extend the agrearnent for up to three additional five year periods. ' ISSUE: The Citywiil implement a citywide single stream recycling program in Januaryof 2011. This service will .provide a faality where the recycling commodities will be collected, sorted, bundled and marketed to be recycled into usable products. REQUIRED COUNGIE. ACTION: Approval of the motion. CONCLUSION AND RECOMMENDATION: Staff recommends award ofthe contract as submitted. 5 MI ael arrera Assistant Director of Financial Services mikebQcctexas.cam 361-826-31.69 BACKGROUND INFORMATION Background The City currently collects recycling materials in 18 gallon bin(s). Materials are sorted by City personnel at curbside which is a labor intensive process. The program through the years has dwindled to a minimal participation rate by City residents. In 2009, approximately 3000 tons of recycling materials were processed under the current program. This amount represents a mere 2.13°/a diversion rate of residential solid waste stream. During the 2010-2011 budget process, City Council gave approval to implement an enhanced single stream recycling collection program. The .Single stream recycling collection program allows residents to comingle recyclable materials as well as providing residents with a larger 95 gallon container. The enhanced program will be serviced by the City's automated collection trucks which eliminates the need forthe labor intensive process of curbside sorting. The program is scheduled to commence in January of 2091. The City provided containerwill be collected once everyotherweek and the recycled material collected will be dropped off for processing at BFI Waste Services of Texas', LP (13F1} local recycling facility located at 4414 Agnes Street. . Request for Proposal Process The City issued a Request for Proposal (RFP} in June of 2010. The RI=P solicited proposals from qualified companies capable of handling a minimum of 45 tons of recycling materials perday. Four proposals were received, each of which provided various solutions to meet the City's recycling services needs. One proposal received included the use of City property as a drop off center where 115 cubic yard trailers would be provided for the collection of the recycled materials. The trai[ars would be transporked to the contractor's recycling facility in Travis County. This proposal was deemed as a non-viable solution due to the requirements to provide a City facility to store the trailers, requirements of City farces to service the trailers and the costs associated with the proposal. Qf the three remaining proposals, two proposed to operate a recycling facility in Corpus Christi and the third proposed to transport the materials from a loco! collection facility to San Antonio, Texas. Ali three a# these proposals were deemed as viable solutions to the Ciiy needs and therefore were scored and evaluated. The proposals were evaluated on their complete responsiveness to the RFP, conformance to technical, legal and business requirements, experience and qualifications and cost of service. The attached matrix reflects the scores associated with the evaluation of the proposals. Various cost models were received which considered the costto process the ma#erials and a perc®ntage revenue share to the City of the marketed selling price of the recycled materials. For evaluation purposes, the City estimated a monthly volume of 700 tons per month and an average mixed selling price of recycled materials of $107.96 per ton. Based on these parameters, staff has selected BFI as the hest value for the City's recycling services. BACKGROUND INFORMA71ON continued} Agreement BFi will need to expand their local recycling facility located on Agnes Street and will need approximately fourto six months to complete the construction. However, they have agreed to collect and transport the City's recycled materials to an alternate processing facility beginning in January of 2011, at no cost to the City.- Once their expanded facility is operational and able to handle tl~e City recycled materials, they will charge the City $BO per ton #o process the recycled material and share 60% of the seising price of each ton sold. Based on the above parameters of 700 tons per month and an average mixed sale price of $107.9fi per ton, the City will net a return of $40,118.40 annually,. The actual revenue the Ci#y receives will be based an the actual amount of tons processed on any given month and the actual sales price of mixed recycled commodities. CommunJty Value The contractor will continue to service the City's recycling drop off centers located throughout the City. These centers pravJde an additional service far the residents #hat may miss their recycling pick-up day, as well as providing an outlet for apartment residents who choose to recycle. They have also agreed to support the City's public education program by donating $1 per ton to the City for each ton processed at their facility. They will schedule educational and operation tours of their facility to help promote the recycling program. CITY OF CARPUS CHRfSTf PURCHASING DIVISION BUYFR -Michael Barrera Request for Proposal No.:BI-016$-10 Collec#ion and Processing of Recycled Materials BFf Waste Services Greenstar MiD- Dolphin of Texas, LP America, i-t.C Recycling, Maximutrr Corpus Christi, San Antonio, Carpus Christi, Evaluation Criteria Score Texas Texas Texas Exceptions 5 0.00 5.00 aA0 Technical Solution 25 21.00 22.00 22.00 Qualifications 45 45.00 45.00 33.00 CostlRevenue Share 25 25.00 10.00 5.00 7ataf Score 100 ~ 91.00 ~ 82.00 ~ 65.00 (1 } Annual Revenue Annual Cost $40,118.40 $61,404.00 $689,336.00 (1] Annual revenue share and costs shown are based an a volume of 700 tons of recycled materials processed per month and a market price of $1fl7.96 of mixed recycled materials sold, COLLECTION, PROCESSING AND MARKETING RESIDENTIAL RECYCLABLE COMMODITIES CONTRACT Service Agreement No. SA THIS Collection 1'rocessin and Marketin Residential Rec cIable Commodities CONTRACT (this "Agree~rrent") is entered into by and between BFI Waste Services of Texas, LF, a Delaware limited partnership ("Contractor"), and the City of Corpus Christi, a Texas home-rule municipal corporation (the "City") effective for alI purposes upon execution by the City Manager (the "Effective Date"). WHEREAS Contractor has proposed to provide Collection, Processing and Marketin Residentia[ Rec clab[e Commodities in response to the Request for Froposal No. B1-0168-10 (the "RFP") pursuant to Contractor's response to the RFF, dated as of duly 9, 20].0 ("Contractor's Response"), both of which are attached as Exhibit A; and WHEREAS the City has determined Contractor to be the best responsible bidder. NOW, THEREFORE, Contractor and City enter into this Agreement and agree as follows: 1. Services. (a) General Description. Contaractor will perform the Collection, Processing and Marketing of Residential Recyclable Camrnodifies in accordance to the RFP, Contractor's Response and this Agreement. If this Agreerent conflicts with the RFP or Contractor's Response, the provisions of this Agreement shall take precedence, then the Rb'P, and then Contractor's response.' Capitalized tertus used in this Agreement anal not otherwise defined shall have the meanings set forth in the RFP. (b) Hazardous Waste. Contractor shall have no obligation to collect Hazardous Waste (defned below). Title to and liability for any Hazardous Waste shall at no time pass to Contractor. For purposes of this Agreement, "Hazardous Waste" means waste defined as, or of a character or in sufficient quantity to be defined as, a "Hazardous Waste" by the Resource Conservation and Recovery Act, as amended, or any state or local laws or regulations with respect thereto, ar a "toxic substance" as defined in ~e Toxic Substance Control Act, as amended, or any regulations with respect thereto, or any reportable quantity of a "hazardous substance" as defined by the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, or any regulations with respect thereto and including fiiture amendments thereto. (c) Contractor's Designated_Facility. During the Term (defined below), the Ci#y will deliver or cause to be delivered by the city ar other contracted service provider all Recyclables generated under the City's control to Contractor's designated facility or facilities (each, a "Designated pacility"). Any such Designated PHX12357646.4/11379.494 Facility to be within the Corpus Christi City limits boundaries. The City also agrees that it shall use best efforts to support the construction review and permitting process for the Designated Facility. (d) Trailers. Contractor will maintain the City's trailers identif ed on Exhibit B in accordance with Section 3.18 of the RFP. 2. Term. This initial term of this Agreement is for 10 years (the "Initial Term"}. The start date of the Initial Term shall be calculated from the first day of operation of Contractor's new Single Stream processing line. There will be a minimum of tl:ueee renewal terms of five years each (each, a "Renewal Tenn", and collectively with the Initial Term, the "Term"). Both parties must agree on the option to renew at the appropriate time which sha11 be no later than {b) six rnanths prior to the end of the Initial Term or the Renewal Term, as applicable. 3. Fees. The prices shall be as set forth in Contractor's response except that the following shall apply: (a) CPI Increase. The fees which may be charged by the Contractor for the second and subsequent years of the Term shall be adjusted upward to reflect changes in the cost of operations, as reflected by fluctuations in the Consumer Price Index for All Urban Consumers (Water and Sewer and Trash Collection Services index) as published by the U.S. Department of Labor (the "CPI -Trash") as of the last month of the first year of the Term and every twelve (12) months thereafter (the "Rate Modification Date"}, the fees shall be increased the ensuing twelve-month period in a percentage amount equal to one-hundred percent (100°/9) of the net percentage change of CPI -Trash. Ali percentage changes are to be computed as the twelve (12) month average, year aver year difference between the CPI --Trash values as of the month of April, communicated to the City by June 15~~ and effective Augr~st 1S`. Annually modified rates shall not~be lower than preceding year's rates. As soon as possible before a Rate Modification Date, Contractor shall send to the City a comparative statement setting out for; (i) the twelve (12) month average CPI-Trash values as of the month of April from the current and previous year; {ii) the net percentage change of CPi-Trash; (iii} the composite percentage change equal to one-hundred percent (100%) of the net percentage in the CPI-Trash; and (iv) the increase in the fees which maybe charged by the Contractor. (b} Pass-Throw lei Costs. In addition to the rate increase described in Section 3(a), Contractor may petition the City or City may petition the Contractor, in writing, at any time(s) after the Effective Date far other rate adjustments for the reasons set forth below and Contractor or the City, as the case may be, shall provide the other party with any pertinent supporting data that is the basis for its petition: PHXl2357648.411 [379.994 (i) increase in Contractor's costs of compliance with laws, regulations or requirements of federal, State or local regulatory authorities enacted or becoming effective after the date of execution of this Agreement; or (ii) A greater than 2.0% annual growth yin the number of individual calIectians due to annexation or other factors. (c) Review of Fees Durin the Initial Term. On the fifth anniversary of the Effective Date of this Agreement, the City and Contractor shall review all of the fees charged and rebates paid by Cozztractor during the first five years of the Izvitial Term of the Agreement, and consider if such fees andlor rebates should be adjusted based upon the reasonable opinion of the parties. (d) Floor and Ceilin on Rebates. The parties agree that .notwithstanding anything in the contrary in Contractor's Response, the rebates passed through. to the City for Recyclables shall be calculated using a floor commodity sale value of $85.U0 per tan (the "Floor") and a commodity sale ceiling value of $115.00 per tan (the "Ceiling"), sa that Contractor shall be obligated to calculate and pay rebates to the City for sold Recyclables with a minimum value of the Floor and a maxunum value of the Ceiling, and shall have no obligation to pay rebates for Recyclables above $115.00 per ton. The Floor and Ceiling amounts set forth in this Section 3(d) shall be adjusted annually equivalent to the whole dollar changes in the CPI-Trash adjustments to the processing fees made pursuant to Section 3(a). (e) Exception to Fees, aid Rebates. Notwithstanding anything in this Agreement, the RFP or Contractor's Proposal to the contrary, far the period of January 1, 2011 through the date that Contractor begins operating the Designated Facility (the "Interim Period"), Contractor shall not assess fees nor pay any rebates to the City. During the Interim. Period, the City shall direct all of its Single Source Recyclables to Contractor's identified location, and Contractor sha11 manage the processing of such Single Source Recyclables at no post (with na rebate) to the City, 4. Contract Administrator. The Contract Administrator designated by the City is responsible for approval of all phases of performance and operations under this Agreement including deductions for non-performance and authorizations for payment. AlI of Contractor's notices or communications regarding this Agreement must be directed to the Contract Administrator, who is the Director of Solid Waste Operations. 5. Inde endent Contract©r. Contractor will perform the services hereunder as an independent contractor and will furnish such services in its own manner and method, and under no circumstances ar conditions may any agent, servant, or employee of Contractor be considered as an employee of the City. 6. Insurance. During the Term of this Agreement, Contractor must obtain and maintain the required insurance coverages as shown on the attached Exhibit C. Before activities can begin under this Agreement, Contractor`s insurance company(ies) PHX12357648.4/11379.994 must deliver a Certificate of Insurance, as proof of the required insurance coverages to the Contract Administrator. Additionally, the Certif sate must state that the Contract Administrator will be given at least 30 days notice of cancellation, material change in the coverages, or intent not to renew any of the policies by certified mail. The City must be named as an additional insured. The City Attorney must be given copies of alI insurance policies within 15 days of the City Manager's written request. Insurance requirements are attached and incorporated as Exhibit C, and may be revised annually by the City Manager upon 30 days written notice to Contractor; provided, however, that the City acknowledges that Contractor is not a subscriber to workers' compensation in Texas, and that in lieu of providing workers' compensation, Contractor provides coverage consistent with statutory benefits outlined in the Texas Workers' Compensation Act {Section 401} or such other benefit plan for work-related injtmes allowed by the Texas Labor Code, 5. Assl~mellt. No assignment of this Agreement or any right or interest therein by Contractor is effective unless the City first gives its written consent to such assignment. The performance of this Agreement by Contractor is of the essence of this Agreement anal the City's right to withhold consent to loch assignment is within the sole discretion of the, City on any ground whatsoever, 7. Fiscal Year. AlI parties recognize that the continuation of any contract after the close of any fiscal year of the City, which f scaI year ends on July 31 annually, is subject to appropriations al~d budget approval providing far such contract item as an expenditure in that budget. The City does not represent that the budget item will be actually adapted, that determination is within the sole discretion of the City Council at 'the time of adoption of each budget. If the City fails to appropriate funds to pay Contractor pursuant to the terms of this Agreement, then. this Agreement shall automatically terminate when the appropriated funds are no longer available. 8. giver. No waiver of any breach of any term or condition of this Agreement, or Contractor's Response waives any subsequent breach of the same. 9. Compliance with Iaws. This Agreement is subject to all federal laws and laws of the state of Texas. All duties of the parties will be perforled in the City of Corpus Christi, Texas. The applicable law for any legal disputes arising out of this Agreement is the law of Texas and such form and venue for such disputes is the appropriate district, county, or justice court in alld for Nueces County, Texas. 1.0. Subcontractors. Contractor may use subcontractors in connection with the work pelformed under this Agreement. In using subcontractors, Contractor is responsible for all their acts and omissions to the same extent as if the subcontractor and its employees were employees of Contractor. All requirements set forth as part of this Agreement are applicable to all subcontractors and their employees to floe same extent as if the Contractor and its employees had performed the services. I1. Amendments.'Tilis Agreement may be amended only by written agreement signed by duly authorized representatives of the parties hereto. PH7~(12357648.4/11379.994 12. Termination. The City Manager may terminate this Agreerent far Contractor's failure to perform, the services specified in the RFP. Failure to keep all insurance policies irx force far the entire term of this Agreement is grounds for #ernlination. The Contract Administrator must give Contractor at least five business day`s written Notice of the breach and set out a reasonable opportunity to cure. If the Contractor has not cured within the specified cure period, the City Manager may terminate this Agreement immediately thereafter. Notwithstanding anything in the contrary in the RFP, the City Manager shall not have the right to terminate this Agreement without cause or in any other ma€ua.er except asset forth in this Section 12. 13. Taxes. Contractor covenants to pay payroll taxes, Medicare taxes, FICA taxes, unemployment taxes, and all other related taxes according to Circular E Employer's Tax Guide, publication 15, as it may be amended (collectively, "Taxes"). Contractor must verify the foregoing to the City within 30 days after City Manager's written request therefor, which request must be based on the City's good faith belief that Contractor has failed to pay Taxes in accordance with the law. Failure to pay Taxes or verify proof of payment (or extensions thereto} to the City is grounds for the City Manager to terminate this Agreement upon 30 -days prior notice to Contractor if Contractor fails to cure the breach during such 30-day period. 14. Drug policy and Worknlace Violence. Contractor must adopt a Drug Free Workplace and drug testing policy that substantially conforms to the City's policy, which is a "Zero Tolerance" policy that eliminates drugs in the workplace. Contractor must also adhere to a workplace violence policy. 15. Notices.. Notices may be given by fax; hand delivery, ar certified mail, postage prepaid, and is deemed received on the day faxed or hand delivered ar on the third day a#ler deposit if sent certified mail. Notice shall be sent as follows: IF TO GiTY: City of Corpus Christi Attention: Director of Solid Waste Address: 1201 Leopard City, State, Zip: Carpus Christi, Texas 78401 FAX No,: (3fi1} 857-1906 IF TO CONTRACTOR: Contractor Name: BFI Vt~aste Services of Texas, LP Contaot Person: General Manager Address: 4414 Agnes City, State, Zip: Corpus Christi, Texas 78405 FAX No„ 361-883-2729 16. Month to Month Extension. If the City has not completed the solicitation process and awarded a new Collection1Processing and Marketin8 Residential Recyclable PHx12357648.4111379.994 Commodities contract neon the expiration of this Agreement, then Contractor must continue to provide services under this Agreement, at its current fee, on a month to month basis until a new contract is awarded by Council or for six months, whichever comes first. Both parties shall negotiate in good faith if additional extension of Contractor's services is necessary beyond six months, This.Agreement automatically expires on the effective date of a new contract; the Contract Administrator will provide written notice of the effective date of the new contract to Contractor. 1fi. Indemnity. Contractor shall H4I.D HARIVII..ESS and UNCQNDITIflNALLY INDEMNIFY, PROTECT aad DEFEND the City, its elected officials, employees, officers, directors, volunteers and representatives of the City, individually or collectively, from and against any and all third party claims, demands, actions, liabilities, liens, losses, damages, costs and expenses, of every kind and character whatsoever, including without limitation by enumeration the amount of any judgment, penalty, interest, court costs and reasonable legal fees incurred in connection with the same, or the defense thereof, for or in. connection with loss of life or personal injury (including employees of Contractor and of the City) damage to property (other than the Work itself and including properly of Contractor and of the City), _ e exte caused by the negligent acts or omissions af, or incident to or in connection with or resulting from the negligent acts or omissions of, Contractor, its agents, servants, and employees, or its subcontractors and their agents, servants, and employees, in connection with the Work to be performed, services to be rendered, ar materials to be furnished, under this Agreement. Notwithstanding anything to the contrary included herein, in no event shall the Contractor be liable for claims arising out of accidents resulting from the sole negligence of the City, all without however, waiving any governmental immunity available to the City under Texas Law and without waiving any defenses of the parties under Texas Law. In addition to the above, Contractor shall HULD HARMLESS and UNCQNDITfONALLY INDEMNIFY, PROTECT and DEFEND the City, its elected officials, employees, officers, directors, volunteers and representatives of the City, individually or collectively, from and against any and all third party claims, demands, actions, liabilities, liens, losses, damages, costs and expenses, of every land and character whatsoever, including without limitation by enumeration the amount of any PE1X12357G4s.411 Y379.994 judgment, penalty, interest, court costa and reasonable legal fees incurred in connection with the same, or the defense thereof, for or ut connection with loss of life or personal injury (including employees of Contractor and of the City) damage to property (other than the Work itself and including property of Contractor and of the City), ut only to ~t~t__cauaed by the intentional or deliberate misconduct, grossly negligent, willful acts or omissions of, Contractor, its agents, servants, and employees, or its subcontractors and their agents, servants, and employees, or in connection with the Wark to be performed, services to be rendered, or materials to be furnished, under this Agreement, including but not , limited to violations of any statute, regulation, ordinance or provision of this Agreement., Notwithstandin~_anythi_nQ to e co in uded herein in no even shall t e o ' for claims ar's' o t of ac ' enta the so a of the i all v r wa' ' an o uni waivi n of t e arties.under Texas Law. 18. Force_ Maleare. Neither City or Contractor shall be liable for decays or failures in performance due to atz event of force rnajeure that is beyond such party's reasonable control ,including, without limitation, any delays or failures in performance caused by strikes, lock outs, fires, acts of God or the public enemy, common carrier, severe inclement weather, riots or interference by civil or military au#horities. The delays ar failures to perform extend the period of performance until these exigencies have been removed. A parry who is unable to perform due to a force majeure event shall inform the other party in writing of an event of force majeure witb;in ten (10) business days or otherwise waive this right as a defense. 19. Contract Dclays. In the event of Force Majeure, City and Contractor will use their best efforst to re-establish services within a reasonable time as mutually agreed upon by bath parties. Z0. Damaae to Pavement, Contractor shall not be responsible for any damages to pavement or other driving surfaces resulting from Contractor's providing services [signatures on following page] PHJU235764B.4/i 1379.994 SIGNED this ~ day of .2010 , Contxactar: BPI Waste Services of Texas, LP _ ~ ~ Name: ,~Sa.a,r~ ~~es Title: ,~~ar T~~•a-s ~-rc~P,~s~o~-~v>- ATTEST: CITY OF CORPUS CHRISTI Michael Barrera Ass~i~stra~nt Director of Financial Services APPROVED THIS~DAY OF 6~V 2010. Carlos Valdez, CITY ATTORNEY By: (/~ Verauica Ocanas, Assistant City Attorney Exhibit A: Request for Froposal # Bid Invitation Na. BI-Oib8-i0 and Contractor's Respoaase to RFP Exhibit B: City's Trailers Exhibit C: Insurance Requirements. . i I I PHX12357648~4111379.994 RELATED TO ITEM 22.2 CfTY COf,~NCfL . AGENDA MEMORANDUM City Connell Actton Date: October 12,,2490 AGENDA ITEM: Motion authorizing the City Manager or his designee to execute an agreement with RecyeleRewards, Inc. to offer an incentive based recycling progra~ to City residents fortem~ of five years, subject to execution of the agreement by RecycleRewards, Inc. ISSUE: To enter agreemen# with F2ecycieRewards to offer residents an incentive based recycling program that encourages residents to recycle by offering them reward points that maybe redeemed at local participating merchants. REQUIRED GOUNCIL ACTION: Approval of motion as submitted. PREVIOUS COUNCIL ACTION: Approved motion February 16, 2010 to implement once perweek garbaga caitection, enhanced recyciing with collection every two weeks, and residential recycling initiative program, effec#ive in January 2Q11. On July 20, 2010, passed and approved the FY 2p11 City of Corpus Christi Budget, and funding for the Svlid Waste Operations enhanced recycling program to be effective in January 2011. CONCLUSION AND RECOAAMENDATION: Approval of motion as submitted. t L wrence Milcolajc , Director of Solid Wane Operations 361-826-'1972 LawMQcctexas.com BACKGROUN€} INFORMATION The FY 20b9-10 Adopted Budget included implementation of an enhances. recycling program, coupled with a change to once per week garbage collection, beginning in May 2010. Faced with a pro,~ected budget deficit, in February 2410 the City Council directed staff to delay the program implementation until January 2411. The prograan requires a significant commitment of City and private resources to collect, sort, and market a substantially greater volume of recycled items. The success and sustainability of the enhanced recycling program is dependent on increasing the level of residential recycling. A strong emphasis will be placed an education and outreach to help create a cultural change to a community that is more aware ofrecycling and sustainable living practices. RecycleRewards, inc. is a marketing and rewards company, that encourages ~nsumers to recycle by offering reward points that may be redeemed by participating merchants. Solid Waste Department customers will be encawraged to establish RecycleRewards accounts, and participate in the recycling incentive program. The recycling carts will Dave a radio frequency identification {RFID) tags, and each recycling truck will be equipped with a RF1D antenna, reader and data unit. As recycling is collected, the cart data wi11 be recorded for each route. As the contents of the truck are delivered to the material recycling facility (N1Rk'}, the weight of the recycling, by route, will be recorded. Daily, the participation and weight data wi11 be transferred to RecycleBank, and participating customers will earn reward points based an their share of pounds recycled. Those enrolled in the RecyeleRewards program may access their account information via Internet or telephone. The reward pain#s may be redeemed far discount coupo~zs from participating merchants, which will be mailed to the customers' addresses. Staff recommends entering into the agreement to pxovide additional assurance that the enhanced recycling program will be accepted by the cammurnity. CONT1tACT SUNIlVJARY: T7ae term of the agreement is 5 years. A serrrice charge of sixty-two cents ($.62} per month per customer participating in the Incentive Recycling Program shalt be paid to ReeycleRewards. RecycleRewards will establish agreements with local vendors to provide marketing and discounts, provide technical support oz~ the data management systems, provide container management reports, provide incentive program mtanagcmerrt and services to residential and other customers, design marketing ar<d education materials, provide outreach services, procure and maintain truck identification equipment hardware and software installed on Solid Waste collection fleet. The City will be responsible for the initial mailing to all customers, daily reporting of data collected, coordinating customer serrTice issues, Testing program equipment, reporting problems, and dispatching spare equipment to replace no-working units. AGREEMENT ,~ THIS AGREEMENT ("Agreement") is made as of'the date executed by the last signatory (the "Effective Date"), by and between, RecycleRewards, Inc., a Delaware Corporation having its principal office located at 9S Morton Street, 7~ Floor, New York, NY 1001Q~ ("RecycleRewards"), and the City of Corpus Christi, ahome-rule municipal corporation in the State of Tea~as, having its principal executive office located at 12Q1 Leoliard Street, Corpus Christi, Texas 784Q1-2825 {"1Vluniclpalrry"). RecycleRewards and the Municipality may be hereinafter referred to individually as a "Party" and collectively as the "Parties." RECITALS: WHEREAS, RecycleRewards is a marketing and rewards company that encourages consumers to recycle by offering thorn reward points that can be redeemed at participating merchants; and . WHEREAS, RecycleRewards desires #o have Municipality p rovide RscycleRewards' incentive based recycling program (the "Inncentvve Recycling Program"} to Municipality's residents ("Residents"} in the Territory (as defined in Section 6 below) on the terms and conditions set forth herein; and WHEREAS, Municipality would like to offer Residents the Incentive Recycling Program and has represented to RecycleRewards that it has, and that during the Term (as defined in Section 2 below} hereof it will have, the resources to perform all of its obligations hereunder. NOW, THEREFORE, in consideration of the mutual provisions contained herein and intending to be legally bound hereby, the parties hereto agree as follows: 1. Services and Assets. A. Services. RecycleRewards agrees to provide Municipality with the Incentive Recycling Program services described in Exhibit A attached hereto and incorporated herein by reference (the "Services") from the Effective Date through the end of the Term. B, Assets, RecycleRewards further agrees to provide Municipality with RFID Tags {"Tags"} to the extent necessary and other equipment as described in Exhibit B attached hereto and incorporated herein by reference (collectively, the "Assets"). In the event that the cart manufacturer does not utilize its own technology which is approved by RecycleRewards, the Tags shall either be provided to the cart manufacturer or retroftted in the field pursuant to the terms and conditions of Section 8 hereof, The carts will be purchased by Municipality from a vendor (provided that the carts meet RecycleRewards' specifcations which includes Cart vendor providing RecycleRewards an electronic list of RFID numbers and associated serial numbers imprinted on the cart) {"Carts"}. Municipality shall provide, at least thirty (30} days .prior written notice of any and all requests for Assets. All Assets shall be used by Municipality during the Term solely in connection with the Incentive Recycling Program, RecycleRewards shall deliver the initial Assets to be delivered by it to Municipality at the delivery. location(s) and pursuant to the schedule set forth on Exhibit B. Municipality shall ensure that the Tags are at all times free of liens and encumbrances arising from any debts or actions of Municipality, and shall use commercially reasonable efforts to ensure that all Tags are used in accordance with all applicable laws in the manner in which they are intended to be used and in accordance with all instructions ~ and warning Iabels. Tf, in its sole discretion, RecycleRewards chooses to finance the cost of the Asse#s, Municipality may be required to execute a waiver agreement in a form substantially similar to that which is included in Exhibit B under the heading "Waiver p'orm." Municipality shall be responsible far ensuring that the serial number with corresponding RFID tag number of each Tag placed on a Cart and the corresponding Resident address to which the Cart is delivered is provided to RecycleRewards electronically in the agreed upon format as set forth in Exhibit C (initially and each subsequent occasion on which. the Cart is moved). In the event that all of the Tags are provided by the Cart manufacturer, the Tags do not form a part of RecyleRewards's Assets and all provisions in this Agreement between the Parties pertaining to RecycieRewards's or Municipality's obligations regarding collection of the Tags, disposition of the Tags, application of intellectual property rights in the Tags, etc., are accordingly modiljed and waived, unless otherwise explicitly applicable. . C. Disposition of Assets. ~nle~s otherwise agreed to in writing by the parties, inTanediately following termination of this Agreement for any reason, RecycleRewards shall have the right to pick up (at its own cost and expense) from the Municipality andlor its Residents all of the Assets, free and clear of all liens, claims and encumbrances and in the same condition as they were provided by RecycleRewards to Municipality, ordinary wear and tear excepted. In furtherance of the foregoing, Municipality shall, upon termination of this Agreement, provide RecycleRewards with access to Municipality property for the purpose of retrieving the Assets and shall allow RecycleRewards to assemble all of the Assets at the location specified in Exxfiiibit BB pending pick-up by RecycleRewards, such pick-up to occur not later than 60 days from the termination date. In the event of any damage beyond reasonable wear and tear, lass, or unreturned Assets, Municipality is responsible to RecycleRewards for the replacement casts of any and all lost, stolen, daz~a.aged ar unreturr~ed Assets. 2. Term. The Term of this Agreement shall commence on the Effective Date and shall continue for five (5) years and five {5) months unless sooner terminated pursuant to the other provisions of this Agreement, by operation of law, or otherwise. The Term may be extended by mutual written agreemen# of the Parties. 3. Best $usiness Practices. During the Term, Municipality shall use its best business practices to implement and actively promote the Incentive Recycling Program to its Residents within the Territory. 1~ or this purpose "best business practices" shall include, but not be limited to: utilizing the Assets and Services in accordance with the terms and conditions of this Agreement, and complying with all federal, and state and local laws, rules and regulations, including without limitation all privacy Laws. . ~#. 1VYunici all Obli ations. Municipality agrees, throughout the Term of this Agreement, to comply with, fulfill and operate the Incentive Recycling Program in accordance with all of the terms and conditions of this Agreement, including without limitation the Service Standards described in Exhibit C attached hereto and incorporated herein by reference (the -2- "Service Standards"} and the Scope of Supply Standards described in Exh__i_bit D attached hereto and incorporated herein by reference (the "Scope of Supply"). 5. Fees. A. Service Charge. A service charge of sixty two cents {$.62} per month per household participating in the Incentive Recycling Program shall be charged, A discount of one cent (.O1} per month per household participating in the Incentive Recycling Program shall be given far every additional eight thousand (8,000} households added by Municipality a:~er the first eighty thousand (80,000} household are added to the Incentive Recycling Program, For purposes of this Section 5 participating in the Incentive Recycling Program shall mean any Resident that is provided a Cart containing a Tag and having access to the Incentive Recycling Program at any time during the applicable month. B. Adjustment of Charges. The monthly _ service charge payable by Municipality shall net be adjusted during the Term except as provided in this Section 5(B) and Section 5(A} above. During the Term, upon each anniversary of the dato of Effective Date, the monthly service charge shall be increased by one hundred percent (100%} of the percentage increase in the Annual Consumer Price Index, All Items, for urban wage earners and clerical workers for the South Urban area ("CPI Adjustment"), as published by the U.S. Government's Bureau of Lobar Statistics. C. Pr~ram Launch DatelPayment of Fees, The "Program Launch Date" shall be determined as the date upon which the Carts with the required technology (whether Tags or otherwise} have been delivered tb Residents and Municipality has commenced its collection routes. The first Fayment of monthly fees shall be made prior to or on the fifteenth (15th) day of the month following the month in which the Program Launch Date occurred payable on the number of residential customers who are provided a Cart as of any date during the month of the Program Launch Date. Payment of all monthly fees far all subsequent months during the Term shall be made by Municipality prier to ar an the fifteenth (I Sth) day following the end of each month payable on the number of residential customers who are provided a Cart as of any date during the prior month and the number of residential customers who have continued to maintain a Cart that was provided in a previous month during the Term of dais Agreement. RecycleRewards shall provide Municipality reasonable support documentation evidencing residential customers who have been provided with a Cart as of the date designated by RecycleRewards during the prior month, Overdue amounts shall bear interest at the rate of 1.5% per month, compounded monthly, or the maximum legal rate, if less. In addition, in the event RecycleRewards pursues collections of any overdue amiaunts that remain unpaid for 90 days or more, Municipality shall reimburse RecycleRewards for all necessary collection costs (including reasonable attorneys' fees} incurred. 6. Territory; Resident Conversion. The Territory shall be the City of Corpus Christi in Nueces County, Texas. Municipality will provide the, mailing addresses of the Residents as per the agreed upon format in Section 1B electronically to RecycleRewards not later than October 15, 2010, prior to Cart technology installation. -3- .~ 7. CanfedentiaGty; Itiellts in Data. A. Each Party shall keep confidential and not disclose to any third party and will not use, except for the purposes of this Agreement, alI business, financial, technical, customer, pricing and other praprie#ary information, and data (including customer data) that it receives or has received from the other Party ("Proprietary Information"}. P'or any information to be deemed "Proprietary Information," the same must be in written form and appropriately identified and marked "PROPRIETARY" at the time of disclosure to the receiving party or, alternatively, if the information is disclosed orally, the same must be summarized in writing, marked "PROPRIETARY" by the disclosing party, and be provided to the non-disclosing party within ten (i0) days after such disclosure. The disclosing party must identify and mark all pages, sheets, maps, and other i~'ormatian pertaining to this Agreerrient that the disclosing party considers as "Proprietary Information." All marked information provided by RecycleRewards to the City will be treated by the City as information that may be excepted from required public disclosure under the Texas Public Information Act ('T'exas Government Cade, Chapter 552). If the City receives a request far the information marked accordingly and supplied by RecycleRewards, the request and information will be forwarded to the Office of the Texas Attorney General for a determination as to its public availability under the Act. The City will withhold the information from the requester until the Attorney General's decision is received. The City will only release the information if directed to do sa by the Attorney ~GeneraE or as otherwise required by law. Notwithstanding the foregoing, all data that is gathered and stored by RecycleRewards about Residents is subject to the RecycleRewards Privacy Policy and all applicable state and federal laws and, as such, no such data regarding recycling ar online activities of Residents need to be specifically marked as "Proprietary" to be considered "Proprietary Information". Municipality hereby expressly acknowledges the RecycleRewards Privacy Policy prior to deploying the Incentive Recycling Program to any Resident, B. The obligation set forth in Section 7.A does not apply to any materials or information of the types specified above to the extent that a Party can document that such materials or information: (i) are known to the Party prior to the receipt of such materials ar information from the other Party; (ii) are in the public domain other than as a result of a breach of this Agreement; (iii) were furnished to a third party by the disclosing party with no restriction on disclosure; or (iv) information which the receiving Party developed independently of any disclosures of such information by the disclosing Party. C. Each party will own all right, title, and interest, including any copyrights ar other intellectual property rights, in and to any data or information that it collects, compiles or' creates regarding Residents. As between the parties, the owner of such tights will have the right to use as it wishes any such information, subject to applicable law and its own privacy policy, with no duty.to give the other party notice, gain the other party's consent, account to the other party or share royalties with the other party. Notwithstanding the foregoing, RecycleR.ewards acknowledges that Resident information provided to RecycleRewards by the City or obtained through the services provided under this Agreement is also governed by the provisions of the Texas Utilities Code, Chapter 1$2. -a- S. Re eleRewards IP. A. Grant of License. Municipality acknowledges that RecycleRewards owns certain valuable intellectual property used in connection with, relating to, and/or derived from the Incentive Recycling Program. Such intellectual property includes without Iimitation all of RecycleRewards' sales, mazketing, infoxmationaI and other materials relating to the Program and all copyrights therein, all Resident, and other data derived from operation of the Incentive Recycling Program, all RecycleRewards know-how, trade secrets, and technology (including the RFID technology and account information used in the Tags} relating to the Program listed on Exhibit F, including without limitation as may be disclosed in RecycleRewards' patent applications or patents and those RecycleRewards trademarks, service marks ar~d logos listed and/or depicted on said Exhibit F (said trademarks, service mazks and logos and the goodwill associated therewith are referred to collectively herein as the "N.larks"). The foregoing is collectively referred to herein as the "RecycleRewards IP." Subject to the terms and conditions of this Agreement, RecycleRewards hereby grants to Municipality a limited, nonexclusive, nontransferable license during the Term to use the RecycleRewards lP, including as incorporated in the Tags, within the Territory solely in connection with the promotion and implementation of the Incentive Recycling Program. RecycleRewards shall also grant Municipality certain limited rights in Resident data, as set forth in Section A.3 of Exhibit A. The parties acknowledge and agree that Exhibit F may from time to time be amended as agreed in writing by the parties, and thereafter said Exhibit F shall be deemed to include all RecycleRewards IP then listed and/or depicted thereon. Municipality shalt have no right to sublicense any of the RecycleRewards IP. Notwithstanding the foregoing, RecycleRewards acknowledges that Resident information provided to RecycleRewards by the City or obtained through the services provided under this Agreement is also governed by the provisions of the Texas Utilities~Code, Chapter l 82. B. Ownership of Reeycle_Rewards .IP. Municipality acknowledges that RecycleRewards is the sole owner of the RecycleRewards IP, including as incorporated in the Tags, and Municipality agrees that it will do nothing inconsistent with such ownership. Municipality further agrees that nothing in this Agreement shall give Municipality any right, title or interest in the RecycleRewards IP or the Tags other than the right to use them in accordance with this Agreement, and that all use of the RecycleRewards IP and Tags by Municipality and all goodwill associated therewith shall inure to the benefit of RecycleRewards. Municipality agrees that it will not at any time during the term of this Agreement or after its termination (i) register or use any mark or other term confusingly similar to the Marks, oz {ii) challenge the title of RecycleRewaxds to any of the RecycleRewards ~. IP. Notwithstanding the foregoing, RecycleRewards acknowledges that Resident infonnation provided to RecycleRewards by the City ~ or obtained through the services provided under this Agreement is also governed by the provisions of the Texas Utilities Code, Chapter 182. C. Quality Standards. Municipality agrees that the nature and duality of all services rendered by Municipality in connection with the Marks; all services provided and goods sold by Municipality under the Marks; and al! related advertising, promotional and other related uses of the Marks by Municipality (together, the "Uses") shall conform to quality standards set by and under the control of RecycleRewards. -5- D. Quality ~ Maintez3.ance, Municipality agrees to cooperate with RecycleRewards in facilitating RecycleRewards' control of the nature and quality of Municipality's Uses, and further agrees that RecycleRewards shall have the right to request, review, and mutually approve or disapprove copies ar samples of all written materials and demonstrations of all other Uses, at any time, and shall be entitled to require that Municipality modify any of the Uses to conform to RecycleRewards' quality standards. E. Fozzn of Use. Municipality agrees . that it will not use the Ree}~cleRewards IP or the Tags for any purpose whatsoever, other than as contemplated herein in connection with the Incentive Recycling Program. Municipality further agrees to use the Marks only in the farm and rr~at~taer and with appropriate legends as prescribed from time to time by RecycleRewards in accordance with customary trademark practices, and not to use any other trademark or service mark in combination with the Marks without prior written approval of RecycleRewards. F. infringement Proceedings. Municipality agrees to notify RecycleRewards of any unauthorized use by others of the RecycleRewards IP, including without limitation the Tags, as soon as such use comes to Municipality's attention. Municipality shall also forward any evidence it obtains of any unauthorized use to RecycleRewards unless prohibited by law or the limitations of an ongoing criminal investigation. RecycleRewards shall have the sale right and discretion (but not the obligation) to bring infringement or unfair competition proceedings involving the RecycleRewards IP. Municipality agrees to assist RecycleRewards with alI such proceedings upon request by RecycleRewards. G. Na Modifiication. Municipality agrees and acknowledges that, except as expressly permitted herein, it has no right to, and that it will not (and will not permit any third party to) (i}use, modify, copy, or otherwise reproduce the RecycleRewards IP ~in whole or in part, (ii} reverse engineer, decampile, disassemble, or otherwise attempt to derive the source code form or structure of the RecycleRewards IP or the Tags, {iii} distribute, sublicense, assign, timeshare, sell; rent, lease, grant a security interest in, or otherwise transfer the RecycleRewards IP or the Tags or Municipality's rights hereunder, or (iv) remove any RecycieRewards proprietary notices embedded in or placed on the Assets or any Incentive Recycling Program materials, except as expressly provided herein. Any attempted distribution, sublicense, assignment, timesharing, sale, renting, lease, ox other transfer the RecycleRewards lP or any of Municipality's rights hereunder in breach of the terms of this Agreement shall be null and void and shall be deemed a material breach by Municipality hereunder, Municipality will limit access to the RecycleR.ewards IP to its employees who require such access in connection with the permitted use hereunder and who have agreed in writing to observe Municipality's obligations hereunder. Similarly, RecycleRewards will limit access to the Municipality's resident information, including monthly usage and derived figures and data, to its employees who require such access in connection with the permitted use hereunder. H. Return of Technology. Immediately fallowing termination of this Agreement for any reason, Municipality shall notify RecycleRewards if it has any Tags (as referenced in Exhibit B) provided by RecycleRewards in its possession and shall make arrangements for destruction of such Tags or pick up of such Tags by RecycleRewards. If the -b- Tags have been supplied by RecycleRewards and not the Cart manufacturer, Municipality shall also have the option to purchase Tags for the price of $1.00 per Tag instead of destruction or pickup. 9. RecyeIeRewards Indemnification . RecycleRewards shall defend any action, suit, or proceeding brought against Municipality alleging that the Recyclelt.ewards IP infrrnges any United States patent, trademark or copyright, and RecycleRewards shall indemnify and hold Municipality, its officers, directors and employees, harmless against damages finally awarded against Municipality, costs, expenses, and losses {including, without limitation, court costs and reasonable attorneys' fees and expenses) in connection with any such action, .suit or proceeding; provided, that {i} Municipality notifies RecycleRewards. promptly in writing of the- claim in question, (ii} RecycleRewards is provided the opportunity to share in control of the defense of the action and all related settlement negotiations, and (iii) Municipality provides RecycleRewards with all commercially reasonable assistance, information and authority to perform the above at RecycleRewards' expense. In the event that Municipality's use of the RecycleRewards IP is enjoined by a court of eom~petent authority, RecycleRewards shall, at its sole option and at its expense, either (I) procure for Municipality the right to continue using of the RecycleRewards XP, or {II) modify the RecycleRewards IP to avoid infringement without material impairment of their functionality, If neither of the foregoiug remedies can be obtained upon ~ commercially reasonable terms, this Agreement shall terminate, Municipality shall return the Assets to RecycleRewards, and RecycleRewards shall refund to Municipality any prepaid rental or service fees. The foregoing indemnity shall not apply to the extent the alleged infringement is attributable to the combination ~of the RecycleRewards IP with products or services not provided or approved by RecycleRewards, or to the extent the RecycleRewards IP is modified or altered by any person other than RecycleRewards or its agents, ar if the RecycleRewards IF is Used outside the scope of this Agreement (any such combination, modification, alteration, or use is collectively referred to herein as a "Municipality Modification"). THIS SECTION STATES RECYCLEREWARDS' SOLE LIABILITY HEREUNDER WITH RESPECT TO INFRINGEMENT OF ANY INTELLECTUAL FROPERT'Y AND PROPRIETARY RIGHTS. 10. Municipality tndemnification. To the extent allowed under Texas law, Municipality agrees to, and hereby does, indemnify, defend and hold RecycleRewards its officers, directors, managers, employees, members, and assigns, harmless from and against any and all losses, claims, damages, costs, . _~_ ~ e charges, earpenses, liabilities, suits, demands, praceedi~ngs and actions, including reasonable attorneys fees and cast of defense, ari sing out of or relating to: (i) Municipality's ruse of any of the Assets or Services; (ii} any act or omission of Municipality in connection with. the Incentive Recycling Program; (iii) a Municipality Modification; or (iv} any breach or violation or any alleged breach or violation of any federal, state or local laws, rules or regulations by Mr~nicipality related to this Agreement. RecycleRewards shall promptly notify Municipality when it learns of any such claim. Municipality shall be entitled to control the defense of any such claim. RecycleRewards may engage counsel of its own to join the defense at RecycleRewards' cost. 11. Limited 'VV'arranty .and Disclaimer of All Uther Warran#ies. REGYCLEREWARDS WARRANTS THAT IT SHALL PROVIDE THE INCENTIVE RECYCLING PROGRAM AS DESCRIBED HEREIN. ALL RIGHTS, GOODS, AND SERVICES PROVIDED ~ BY RECYCLEREWARDS HEREUNDER ARE PROVIDED "AS IS." EXCEPT AS EXPRESSLY PROVIDED HEREIN, THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, REGARDING OR RELATING TO THE 1NCENTNE RECYCLING PROGRAM, THE ASSETS OR THE RECYCLEREWARDS IP OR TO -ANY OTHER MATERIALS, GOODS OR SERVICES FURNISHED TO MUNICIPALITY HEREUNDER OR IN CONNECTION HEREWITH. RECYCLEREWARDS SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION THOSE OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT, INCLUDING BUT NOT LIMITED TO STATEMENTS REGARDING CAPACITY, SUITABILITY FOR USE OR PERFORMANCE OF THE INCENTIVE RECYCLING PROGRAM, WHETHER MADE BY RECYCLEREWARDS REPRESENTATIVES OR OTHERWISE, WHICH IS NOT CONTAINED IN THIS AGREEMENT, SHALL BE DEEMED TO BE A WARRANTY BY RECYCLEREWARDS FOR ANY PURPOSE OR GIVE RISE TO ANY LIABILITY OF RECYCLEREWARDS WHATSOEVER. MUNICIPALITY HEREBY ASSUMES ALL RESPONSIBILITY FOR THE SELECTION OF THE INCENTNE RECYCLING PROGRAM AS APPROPRIATE TO ACHIEVE THE RESULTS INTENDED BY MUNICIPALITY. 1Z. Limi#atian of Remedies and Liabilities. MUNICIPALITY'S SALE REMEDY AND RECYCLEREWARDS' SOLE OBLIGATION WITH RESPECT TO ANY CLAIMS, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE AND PRODUCT LIABILITY) OR OTHERWISE, ARISING OUT OF, CONNECTED WITH, OR RESULTING FROM THIS AGREEMENT SHALL BE GOVERNED BY THIS AGREEMENT, AND ~ IN ALL CASES MUNICIPALITY'S REMEDY SHALL BE LIMITED TO MONEY DAMAGES NOT EXCEEDING THE UNAMORTIZED PORTION, IF ANY, OF SERVICE -FEES PAID TO RECYCLEREWARDS PRIOR TO THE DATE OF SUCH CLAIM. WITHOUT LIMITING THE FOREGOING, IT TS EXPRESSLY AGREED THAT IN NO EVENT SHALL RECYCLEREWARDS OR ITS SUPPLIERS OR ANYONE ELSE WHO HAS BEEN INVOLVED IN THE PERFORMANCE OF THIS AGREEMENT ON BEHALF OF RECYCLEREWAItDS, INCLUDING ITS EMPLOYEES, AGENTS, REPRESENTATIVES, -8- SHAREHOLDERS, DIRECTORS, OR SUBCONTRACTORS, BE LIABLE FOR ANY (I) INDIRECT, INCIDENTAL, SPECIAL, RELIANCE, EXEMPLARY, COVER OR CONSEQUENTL4L DAMAGES, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR REVENUE, LOST BUSINESS OPPORTUNITIES, LOST SAVINGS, LOST DATA, LOSSES CAUSED BY DELAY' OR THE DOWNTIME OF COMPUTERS OR SERVERS, OR LOSSES FROM INTERRUPTION, TERMINATION, OR FAILED OPERATION OF THE INTERNET OR THIRD-PARTY TELECOMMUNICATION SERVICES, EVEN 1F RECYCLEREWARDS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, (iI) CLAIMS AGAINST MUNICIPALITY BY ANY THIRD PARTY EXCEPT AS PROVIDED IN SECTION 9 ABOVE, OR (III) DAMAGES, INCLUDING PRODUCT LIABILITY DAMAGES, CAUSED BY ANY NON-RECYCLEREWARDS PRODUCT. THE FOREGOING LIMITATIONS SHALL NOT APPLY TO RECYCLEREWARDS' DUTY OF INDEMNIFICATION UNDER SECTION 9 ABOVE. 13. Insurance. During the Term, pursuant to the .terms of the Municipality's self insurance program, Municipality shall maintain insurance coverage. During the Term, RecycleRewards shall procure and maintain at its own expense and far its own and Municipality's benefit the insurance coverage described on attached Exhibit E. RecycleRewards shall produce evidence of the Insurance described in Exhibit E no later #han September 1, 2014, 14. Expenses; Disbursements. Except as otherwise expressly provided herein, both parties agree to pay all of its own expenses incurred and all disbursements made as a result of complying with the terms and conditions of and performing its obligations under this Agreement. 15. Farce Ma'eure. Any delay or inability of either party in complying with the terms hereof arising from unforeseeable causes or events beyond its control, including, without limitation, Municipality's failure to supply necessary information or assistance, acts of God, acts of public enemy, acts of the government in either sovereign or contractual capacity, terrorism, fires, floods, Internet failure or acts of a third party, shall excuse any resulting or related delay or failure in the performance by either party . In such event, the date of performance shall be extended for a reasonable period of time following the resolution of the cause of such delay or failure, 16. Termination. In addition to other express termination provisions in this Agreement, this Agreement may be terminated as follows: A. At any time by mutual written agreement of the parties. B: By RecycleRewards, immediately upon notice to Municipality, in the event Municipality violates Sections 7 or $ hereof. C. By either Party in the event (i) of a breach of this Agreement by the other Party (the "Breaching Party") that is not cured within ten (l 0} days for failure to pay fees, or thirty (30) days for other breaches, after delivery of notice of such breach to the Breaching Party, or (ii) that the othex Party ceases doing business, is the subject of a voluntary bankuptcy, insolvency or similar proceeding, is the subject of an involuntary state or federal bankruptcy, insolvency, or similar proceeding that is not dismissed within sixty (b0} days of -9- filing, mattes an assignment for the benefit of creditors, becomes unable to pay its debts when due, or enters into an agreement with its creditors providing t'or the extension or composition of debt. Nothing contained herein shall prevent or otherwise limit a Party from obtaining injunctive or other equitable relief pursuant to Section 18 hereof. D. in the event that RecyaieRewards elects to finance the cost of the Assets pursuant to Section 1.B herein and the lender exercises its right to seize the Assets for any reason Municipality reserves the right to immediately terminate this Agreement without any cure period. E. By operation of Texas law, in the event that Municipality does not include payment of dais contractual Agreement in any annual budget. Both parties recognize that the continuation of any contract after the close of any fiscal year of the City, which fiscal year ends on duly 31 annually, is subject to future appropriations and budget approval providing' for such contract item as an expenditure in that budge#. The City does not represent that the budget item will. be actually adopted, that determination being within the sole discretion of the City Council at the time of adoption of each annual budget. F. .Termination shall be without prejudice to any rights and obligations of the Parties that have vested prior to the effective date of termination. 17, Effect of Termmination. Upon termination of this Agreement: A. Municipality's rights, licenses, and privileges granted under this Agreement shall automatically terminate, B. Municipality shall promptly pay to RecycleRewards any amounts accrued and/or due and owing hereunder. C. Unless Municipality elects to purchase the Tags far $1.04 per Tag Municipality shall immediately cease using and shall. return all Tags (in accordance with Section 8H), RecycleRewards 1P and RecycleRewards Proprietary Information in its possession and all tangible embodiments thereof. D. Sections 1B, 7, 8B, 9 through 12, 14, 17, 24, and 28 hereof and all provisions herein relating to the confidentiality of customer data will survive termination of this Agreement. 18.. 1Cniunetve Relief. Municipality understands and agrees that RecycleRewards shall suffer irreparable harm in the event that of a breach by Municipality of any obligations under this Agreement and that monetary damages shall be inadequate to compensate RecycleRewards for such breach. Accordingly, Municipality agrees that, in the event of a breach or threatened breach of any of the provisions of this Agreement, in addition to and not in limitation of any other tights, remedies or damages available at Iaw or in equity, RecycleRewards may seek to obtain a temporary restraining order, preliminary injunction and permanent injunction in order to prevent or restrain any such breach. Municipality shall be similarly afforded under this Agreement the same privilege to seek injunctive relief in the event of a breach by RecycleRewards. -10- 19. ~ Au#horr .Each Party hereby represents and ~cvarrants to the other that it has full power and authority to enter into this Agreement, and that this Agreement has been duly authorized, executed and delivered by, and constitutes a valid, binding and legally enforceable agreement of, such Party. 20. No#ices. All notices, requests, waivers, demands or other comxrzunication required hereunder shall be in writing and shall be deemed to have been duly given if delivered by postage prepaid certified or registered air mail, return receipt requested, or sent by telefax and addressed to the proper parley as follows: If to RecycleRewards, RECYCI.EREWAR.DS, INC. 9S Morton Stxeet, 7a' Floor New York, NY 10014 {212} 659-9900 If sent by telefax #o: (212}-504-283 S If to the Municipality, City of Corpus Christi Attn: Director, Solid Waste Operations 2525 Hygeia St. Corpus Christi, TX 78415 (361) 826-1972 (361} 826-1965 (Alternate} If sent by telefax ta: {3d1} 8261971 or such other address as -shall be specified from time to time in wzating by the Party enfiitled to receive such notices. Any notice sent by telefax shall be deemed to have been given on the date the fax was dispatched, with proof of a valid transmission, or in case of certified or registered mail, return receipt requested, upon the date appearing on the postal receipt of certification or. registration witnessing the receipfi of the notice. 21. No Joint Venture. Nothing contained herein shall be construed to plane the Parties in -the relationship of partners or ,point venturers or principal and agent or employer and employee, and no Party shall have the power to obligate or bind the other Party in any manner whatsoever. 22. Successors and Assisas. IVfunicipality may not assign, sublicense or delegate any of its rights or duties under this Agreement without prior written notice tv and consent of RecycleRewards (such consent not to be unreasonably withheld, conditioned or delayed) and to -11- any secured party of same, if a Waiver Farm (Exhibit B) has been executed. Similarly, RecycleRewards may not assign, sublicense or delegate any of its rights or duties under this Agreement without prior written notice to and consent of the Municipality, such consent not to be unreasonably withheld, conditioned or delayed, except far in the case of a sale of mare than fifty percent (50%) of the stock or all or substantially all of the assets of RecycleRewards, in which case no consent will be needed. This Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective successors and permitted assigns. 23. Waiver and Modification. The waiver of a breach of any of the terms hereof or of any default hereunder shall not be deemed a waiver of any subsequent breach or default, whether of the same or similar nature, and shall not in any way affect the other terms hereof. No waiver, change, alteration, modification or addition to this Agreement shall be effective unless in writing and properly executed by both Parties. Notwithstanding the foregoing, either Party may change the address set out in section 20~ by properly informing the other Party, without the necessity of a formally amending this Agreement. 24. Governing Law. This Agreement and any disputes relating to this Agreement shall be construed under the laws of the State'of Texas, without regard to Texas conflicts of laws principles. For purposes of any legal action or proceeding arising out of this Agreement, RecycleRewards submits and consents to the non-exclusive jurisdiction of the federal and state courts in Texas, 25. Entire ,Agreement. 'This Agreement constitutes the entire agreement and understanding between the Parties with respect to the subject rr-atter hereof and terminates and supersedes any prior agreement or understanding, oral or written, between the Parties with respect thereto, The Parties acknowledge and agree that neither of them has made any representation .with respect to the subject matter of the Agreement or any representations inducing its execution and delivery except those specifically set forth, Each of the Parties acknowledges that such party has relied an its awn judgment in entering into the Agreement. 2G. Headings. The headings in this Agreement are far convenience only and are' in no way intended to describe, interpret, define, or limit the scope, extent, or intent of this Agreement or any of its provisions. 27: Rights and Remedies Cumulative. The xights and remedies provided by this Agreement are cumulative and the use of any right or remedy by either Party shall not preclude or waive the right to use any ar all other remedies, Said rights and remedies are given in addition to any other rights the Parties may have by law, statute, relevance ar otherwise. 28, Severalfility. Should any paragraph or portion thereof of this Agreement be found invalid or unenforceable by any court of competent jurisdiction, it is the intent of the Parties that the validity of the remaining paragraphs of the Agreement shall not be effected thereby. 29. Counteruarts. This Agreement and any amendments hereto may be executed in several counterparts, and all of such executed documents sha11 constitute one agreement binding on all the Parties hereto. .12. IN WITNESS WHEREOF, the Parties hereto have executed this Agreement in duplicate t© be effective as of the date executed by the last signatory, RECYCLEREWARDS, INC. By: Title: ~or~ Date: S'. q, rc) CITY OF CORPUS CHRISTI By: `Angel R. Escobar City Manager Date: Attest: I3y: - Armando Chapa City Secretary Date: Approved as to form: This , day of , 2010 Assistat4t'City Attorney for the City Attorney -}.3- EXHIBIT A 1itECYCLEREWAiitDS SERVICES A. OPERATIONS 1. Im lenientation technical trainin and su ort RecycleRewards will execute a "kick-off meeting" on or about October 1, 210 and assign a Project Manager to Municipality. A custom project plan will be developed within fourteen (1 ~#} days of the kick-off meeting and weekly meetings will beheld with Municipality to ensure project plan compliance. Technical training and support for the identification and data management systems including the wireless data ixansfex system, 2. Re an rting Container management and performance reports Such reports shall include resident-by-resident and route-by-xaute information regarding participation rates, and tannage collected. These reports will be provided monthly by the RecycleRewards Account Manager. The Account Manager will pro~cride monthly meetings to xeview program performance, metrics etc. Subject to any conflicting provision of the Texas Utility Code, all such resident data is owned by RecycleRewards and is provided to Municipality under a limited, non-exclusive and non-transferable license during the Term. Subject to Texas law, Municipality shall keep all such data strictly confidential and~shall use it for internal purposes only. Municipality shall not be entitled to receive any other resident or other data derived by RecycleRewards from the Incentive Recycling Program. 3. Incentive Mana ement and Resident Services Resident and vendor reward fulfillment services and management, including RecycleRewards' Internet, phone and mail systems. 4. Education and Conununi Outreach Services • Web based material and infonnation on recycling and sustainability Asset Maintenance • RecycleRewards will provide routine maintenance for serviceable Assets including repaix of truck systems and regular software updates as needed, RecycleRewards will train Municipality maintenance stafl'to support maintenance if 1Vlunicipality so desires. Additionally, RecycleRewards and Municipality will -14- allow mutually agreed upon service providers to perform maintenance services far Assets. B. MARKETING 1. Local/R.egional Vendor Set-rzp and Relations • RecycIeRewards will consult with Municipality to determine potential vendors, however RecycleRewaxds will be responsible in its discretion for calling on and setting-up all locallregional vendors in the Incentive Recycling Program. ~ ReeycleRewards will contact and explain reward/redemption program to Vendors and will prepare and execute the required Vendor agreement. • RecycleRewards will organize and develop Vendor Reward parameters and will work with Vendors on all approvals. • RecycleRewards will work with Municipality to add Municipal messaging, alerts and news to the appropriate Resident users. 2. National Vendor RecycleRewards will utilize existing relations with National Vendors and use reasonable efforts to expand their reward offerings to Ilse Territory. 3. Market Research Informs#ion • RecycleRewards will be responsible for preparing, delivering and reviewing with Municipality and Vendors all applicable market research material. 4. Marketing Material • RecycleRewards will be responsible for designing all marketing material that will be used by Municipality for any type of media advertising, mailers or general distribution. Municipality will be responsible for mailing costs associated with the Welcome Kit only (not to exceed $1.00 per household). • RecycleRewards will provide Municipality with approved artwarlc and copy far it to use in its marketing raterial to Residents and far the marketing of the Incentive Recycling Program. RecycleRewards reserves final approval on all advertising and other materials an which the RecycleRewards Warne, Iogo or approved artwork is used. • Municipality may eonsta.lt with RecycleRewards on specific marketing programs or community outreach ideas associated with the RecycleRewards Program, but RecycleRewards reserves the right of final approval on any marketing campaign. -15- EKHIBTT B ASSETS A, DESCRIPTION OF ASSETS 1. Tags, containing proprietary RecycleRewatds. technology and acoount information, that are affixed to Carts (the "Tags"}, if supplied by RecycleRewards and not Cart manufacturer 2: Electronic Weighing Delivery System (EWDS} truck technology to read, record and transmit collection data. This system does not include scales. B. DELI'ITERY LDCATIONS City of Corpus Christi Public Works 2525 Hygeia Circle, Corpus Christi Texas 78415 C. DELIVERY SCIIIi~DiJi,E RecycleRewards shall be responsible for delivery of the Tags to the Cart manufacturer an or about October 15, 2Q 1 Q in the event that the Cart manufacturer does not utilize its own technology in lieu of the Tags. Truck equipment retrofit will be complete thirty (3Q} days prior to the Program Launch Date. D. INVENTORY LIST RecyelaBank will procure and maintain on-board identification equipment systems to be installed on the below outlined rear-load and Automated Side Load (ASL) recycling collection vehicles. System hardware includes the radio frequency identification (RFID) onboard antenna and reader as well as the data storage and transfer unit to be installed on recycling collection vehicles. Software for the identification and data management systems includes the wireless data transfer system. The truck equipment will be oust on the following trucks; E. FORM OF WAIVER RECYCLEREWARDS, INC., ("RecycIeRewards") and the City of Garpus Christi, Texas, ("Municipality") entered in#o a dated as of ___ , -2- ~ S ("Agreement°') for the placement of certain Equipment, as defined below, at (the "Location"). (" "} has entered info a Master Loan and Security Agreement No. with RecycleRewards dated as of , (the "Security Agreement") covering the equipment described in the Security Agreement and any .additions, accessions or replacements thereto (the "Collateral"). Municipality and RecycleBar-lc now desire to enter into this Waiver Agreement ("Waiver") as of . NOW, 'THEREFORE, notwithstanding anything to the contrary contained in this Waiver, RecycleBank, Municipality and agree as follows: 1. Municipality shall have no right of bailment and Municipality shall not hold any or all of the Collateral in bailment. 2. The Collateral shall be considered to be personal property and shall not be considered part of any real property regardless of whether or by what means it is or may become attached or affixed to any real er other personal property. 3. Municipality has no, and will not claim any, interest in the Collateral. 4. Upon (_) days prior written notice to Municipality, Municipality will collect and xound up, or otherwise cooperate with RecycieBank and ~ to cause any third party subcontractor employed by Municipality or ReeycleBank or finance company to collect and round up all the Collateral and permit to enter the Location for the purpose of removing the Collateral, provided that indemnifies Municipality and holds it harmless from and against any other person, corporation or entity claiming to have any interest in the Collateral. Municipality agrees to such removal of the Collateral. If , in removing any of the Collateral damages any improvements of Municipality at the Location, will cause the same to be repaired at 's expense. 5. Municipality shall not rennove any of the Collateral without 's prior written consent. Municipality shall notify within 10 days of any termination or expiration of the Agreement and permit ~ to remove the Collateral as described in Section 4 above if so requests. 6. All notices hereunder shall be sent by reliable, overnight messenger, with proof of delivery. The terms of this Waiver shall be binding on the heirs, successors and assigns of each party. RecycleBanlc may not assign the Agreement without 's and Municipality's prior written consent. Municipality may assign the Agreement with prior written notice to 7. Municipality and RecycleBank shall not amend the Agreement without prior written notice to -3- _ ~ i i ' i 8. This Waiver may only be modified by a writing signed by an authorized representative of each party. ~. This Waiver may be executed in counterparts all of which together shall constitute the original. 10. In the event of any conflict between the terms of this Waiver and the Agreement, the terms of this 'Waiver shall prevail. l~i. This Waiver shall be deemed to have been made under and shall be governed by the laws of the Sta#e of New York in all respects, including matters of construction, validity and performance. -4- . ~ EXHIBIT C MUNICIPALITY SERVICE STANDARDS 1. Data Transfer ' ~. Municipality or its agent must run a daily diagnostic test on all Program equipment, pre and post trip, and forward issues to RecycleRewards via a-mail daily. Municipality or its agent must report all equiprrtent problems (truck, data readers, scanners, etc.} to RecycleRewards via a-mail at the end of each working day (immediately} and must dispatch spare equipment to finish remaining route. 2. Training Municipality ar its agent will provide all equipment and facilities necessary far all employees to be properly trained in the use of Incentive Based Recycling equipment. All drivers/lielpers will be trained on the incentive based recycling equipment. Municipality will support RecycleRewards' prevision of quarterly training updates and re-training, as needed. 3. Missed Pick U s ~ In the event that RecycleRewards provides "manual points" tip Residents to malce up for recycling that is not recorded due to any operational or maintenance issue not in the control of RecycleRewards, and such manual points exceed 10°1° of the total points issued in any month, RecycleRewards and Municipality will agree to meet anal resolve operational ar maintenance issues. If after sixty {60) days manual points continue to exceed 10%, RecycieRewards will charge Municipality .02 cents far each point issued "manually" duxing that month, At no point will manual point charges exceed $7,000 per month, or $84,000 per calendar year, Such charge will appear on the next invoice to Municipality. 4. Resident Address List Format • To be provided in a Microsoft excel spreadsheet or other compatible format no later than October 15, 2010. Sezch list, once supplied by Municipality to RecycleRewards, forms an integral part of this Agreement, the content of which is incorporated into this Agreement by reference as if fully set out in its entirety at the time of execution of this Agreement by the parties. The parties agree that resident utility account information is subject to disclosure and use in accordance ' 4 E SCOPE DF SUPPLY STANDARDS 1. Material Processing ~, • Municipality or its agent will deliver ail recycling material that results frorn the Incentive Recycling Program to the program's designated MRF, Tlcis will be a full "single stream" commodity acceptance MRF that will provide processing are a commercially reasonable and competitive basis. 2. Cart. Purchase and Delivery • The Carts will be properly decaIed and fitted with the necessary RFID customer identification tags to specifications to be provided by RecycleRewards. . * Municipality (ar its "agent) is responsible for communicating all new and terminated RecycleRewards residents to RecycleRewards Customer Service Department an a monthly basis in the format provided herein. 3, Customer Service Requirements Municipality (or its agent) is responsible for providing a procedure, to RecycleRewards' reasonable satisfaction, for promptly and caurteausly handling custarner calls relating to Incentive Based Recycling, including those specif c to the redemption and rewards program. This will include the seamless transferring of customer calls to RecycleRewards' Customer Service department. Municipality (or its agent) will cooperate with RecycleRewards, as reasonably requested by RecycleRewards, in connection with providing custarners with a copy of RecycleRewards' "Customer Terms and Conditions." 4. Subcontxacting • Municipality {or its agent) cannot subcontract any RecycleRewards work without prior written notice to and consent of RecycleRewards {such consent not to be unreasonabEy withheld; conditioned or delayed) and to any secured party of same, if a Waiver Form (Exhibit B) has been executed. S. Material Processing • Municipality (or its agent) will deliver all recycling material that results from the incentive Recycling Program to the prograrn designated MRF in the Territory or, in the absence of a Licensed facility, Municipality will negotiate and- secure an agreement with a designated local MRF in the Territory. In i "'' EXHIBIT F RECYCLEREWARDS IP A: MARKS 1. Trademark Serial No. 781509,350 2. Trademark Serial No. 781509,329 B. OTHFR)1P ~ ~~} 1. Patent App. Na. 111345,867 -Method and System of Improving Recycling through the Use of b`inancial Incentives 2. Provisional Patent App. Na 601825,383 -Method and Systenrx for Managing an Entity 3. Provisional Patent App. No 641$92.650 -Method and System of a recycling system comprising a plurality of sub-systems 4. Provisional Patent App. No 60/892,849 -Method of recycling comprising picking up carts, disposing recyclable goods at a recycling center, validating data regarding recyclable goods, importing data into management software, generating reports, and pzaviding e-commerce rewards 5, Provisional Patent App. No 601892,852 -Embodiments of the present invention generally relate to recycling system and method thereof In one embodiment, the cart is provided with RFID, such that information regarding the cart (e.g., address, ownership, condition, etc.) can be retrieved. The RIw'ID nay be any Rl~ID device suitable for embodiments of the present invention 6. RecycleBank Envirostrong Software -This application Converts residential recycling activity {pounds and participation) into reward credits. It is a web- based application that manages each residential account, allows residential users to access their account, redeem rewards, and interact with RecycleRewards tJustorr~er Service Department 7. Provisional Patent App. No 60!954,851- Multi-family dwellings generally have central facilities where residents bring their recyclables to a common collection bin. In accordance with one embodiment of the present invention, a recycling kiosk provides alocation-based rewards model where participants share a common collection container 23 CITY COUNCIL AGENDA MEMORANDUM PRESENTATION AGENDA ITEM: Presentation by the Human Relations Department on the City's ADA Title II Transition Plan and Non - Discrimination Ordinance.. STAFF PRESENTER(S): Name Title /Position 1. Leon Bazar Director 2. Department Human Relations ISSUE: The City Council is to receive annual updates regarding the efforts made under the City's ADA Title. II Transition Plan and Non - Discrimination Ordinance BACKGROUND: Please see attached REQUIRED COUNCIL ACTION: None at this time. Additional Background XX Exhibits ❑ Leon Bazar Director of Human Relations Ieonb @cctexas.com (361) 826 -3196 BACKGROUND INFORMATION Annual Update of ADA (Americans with Disabilities) Title II Transition Plan and Non - Discrimination Ordinance "ADA Accessibility and Compliance And Employment, Fair Housing, and Public Accommodation Discrimination" The Human Relations Department is the department responsible for administration of the City of Corpus Christi's compliance with the Title lI ADA Transition Plan and the Non - Discrimination Ordinance. Additionally, the department is a contracted FEPA (Fair Employment practices Agency) of the EEOC (Equal Employment Opportunity Commission) and a contracted FHAP (Fair Housing Administration Program) of HUD's Fair Housing Division. The department also has a MOU with the Department of Justice Office of Special Counsel. The Department accepts and investigates complaints of discrimination and/or non - compliance in the areas of employment, fair housing, public accommodation, and ADA accessibility. The protected basis of discrimination include Race, Color, National Origin, Sex, Religion, Disability, Age, Equal Pay, and Retaliation. The enforcement authority granted to the department comes from the Civil Rights Act of 1964, as amended; Americans with Disabilities Act (ADA); Fair Housing Amendments Act of 1988; Immigration Reform and Control Act of 1986; City of Corpus Christi ADA Title IT Comprehensive Evaluation and Transition Plan; and the City of Corpus Christi Non - Discrimination Ordinance. Aside from some very minor differences, the charge /complaint management process will include requests for information/documentation; witness interviews and site visits; mediation and settlement conferences; and subpoena and lawsuit filings (if necessary). The City of Corpus Christi's Title H ADA Transition Plan consists of accessibility improvement projects for cross - disabilities through the removal of barriers. The components designated in the transition Plan include six and are: Public Facilities, Services /Activities/Programs, Public Curb Ramps, Site Development, Intergovernmental Agencies/Public Businesses, and Outreach and Training. Public facilities significant projects in FY 09 -10 included the Broadmoor Senior Center, Health Department ADA improvements, Little Miss Kickball ADA improvements, and Greenwood Softball Complex — phase 1, II, and IV. Future facility projects to be improved include HEB and Kruse Tennis Courts, Heritage Park Cultural Center, and Parks Operation Maintenance Facility. Key Services /Activities/Programs included: • ADA Trash Pick -up program currently services approximately 320 citizens with disabilities and in FY 09 -10, 46 new clients were added to this program. -352- • Parks & Rec Summer Programs are inclusive and include Captioned Movies, Latch Key programs, swim lessons, etc, for all. • ADA Parking Monitor is a program beginning its 6th year and currently has a volunteer force of 12 to 15 citizens that average 60 citations issued per month for vehicles illegallyparked in ADA designated parking spaces. • Browsaloud software added to City's web page to allow better access for persons with visual impairments. • Beach accessibility enhanced thru addition of mobi -mat and mobi beach wheelchair. • Human Relations Staff responded to 72 citizen Accessibility Grievances and 218 requests for Technical Assistance. Public curb ramps improvements to remove physical/architectural barrier are prioritized in the Transition Plan and reflect a priority of : 1. State and local government offices and facilities 2. Transportation 3. Places of public accommodation 4. Employers 5. Walkways serving other areas Public curb ramps construction may also occur under the following circumstances that include the (1) completion of corners of an intersection where only some ramps have been constructed, and (2) request by a citizen for any area where there is a demonstrated need. The Committee For Persons With Disabilities(CFPWD) assists the City in reviewing and recommending curb ramp locations. CFPWD recommended 13 of 25 projects on ADA Improvements Bond 2008 — Groups 1 and 2 (e.g., South Texas Lighthouse For The Blind sidewalk and ramps, Trinity Towers curb ramp, Texas Trail sidewalk and ramps, etc.) Public curb ramp significant projects in FY 09 -10 that addressed and/or included curb ramp improvements (completed or under construction) included Everhart Road (phase 1), Bayfront Development Project, Staples Street (Leopard to 5 Points), Greenwood Drive, North Port Avenue, and Tarlton Avenue. Public curb ramps improvements and accessibility within the City were also assisted by efforts of our key partners. These efforts included TxDOT curb ramp project along 1H37, Leopard, and other areas nearby that will result in 500+ new curb ramps and RTA's stimulus project of installing 300+ landing pads and ADA ramps. Many of these will include curb ramps to the related bus stop and landing pad. Additionally, Stripes Stores and Valero Stores have committed to reviewing their business locations and insuring accessibility thru ADA parking and ramps at their respective locations. Combined City, RTA, and TxDOT efforts will result in 1200+ ADA compliant curb ramps in the City — approximately $7.5 million spent on ADA compliance within this reporting period. Partner monthly meetings of City (Engineering Services, Traffic Engineering, Human Relations, Development Services), RTA, TxDOT, and MPO have led to more coordinated efforts relative to accessibility within the City. Site Development relates to the efforts of Development Services to ensure that access in new subdivision/commercial development projects that reflects accessible ramps and that these new construction and alteration projects also meet all physical accessibility requirements. The Human —353— Relations Department and the CFPWD are advised on major development projects and provided an opportunity for input relative to ADA accessibility on a monthly basis. Outreach and training efforts included City Supervisor /employee and community training on diversity awareness, sensitivity training, and People First language training. In FY 09 -10,17 sessions were presented by the Human Relations department staff; partnering with DARS (Department of Assistive & Rehabilitative Services) and TRAN (Texas Rehabilitative Action Network, in sponsoring Disability Employment Awareness Month Conference and the Walk `N Roll celebration recognizing the 20th anniversary of the signing of the ADA; developed, with the CFPWD, ADA criteria for the ADA Accessible Business Recognition Awards; assisted the General Land Office in utilization of the mobi -mat at the dedication of the Veterans Cemetery site; and assisted Central Library in insuring additional ADA parking for 100th Anniversary Celebration. ADA future project/activities include completion of the Miracle league Baseball Field which is a joint project of Parks & Recreation and Local Rotary Clubs; development of a local ordinance reference curb ramps requirements; training of Development Services and Engineering staff on the Texas Accessibility Standards; initiation of CFPWD ADA Accessible Business Awards program; enhancement of the ADA Parking Monitors program; National Parks Service ADA complaints resolution; city facilities ADA accessibility re- evaluation; Transition Plan evaluation and revision; and ADA Master Plan community "roll- out ". Employment Discrimination resolution under our EEOC contract resulted in the department completing 104 closures by September 31, 2010 — this was an increase of 20 closures over 2009 year end. In these closures, 18.2% resulted in settlements (monetary, job reinstatements, positive references, employee training, etc.) with $222,546 in monetary settlements. 31.8% resulted in "no cause" findings. Retaliation (36.8 %) and Sex (34.2 %) are the major allegations of discrimination. 112 charges referred to EEOC because of jurisdictional basis (age, governmental/educational entity, outside of city limits) and three of these already resolved in Federal Courts with settlements of $265,750. A 26% increase in EEOC charge filings is being experienced locally and nationally. Fair Housing Discrimination under our HUD contract (ending June 30th) resulted in 45 complaints closed for credit — an increase of 12 over 2009. Of these closures, 42% (19 of 45) were resolved with conciliation remedies that included rent deposits returned, repairs made, relocations expenses paid, utility payments retumed/adjusted, etc.. 57.7% were "no cause" determinations after investigation. Handicap (32 %) and Familial Status (24 %) are the major basis of Fair Housing complaints. One major Fair Housing case resolved (voluntarily) with a multi - family operation reflects a multi- year compliance plan valued at $250,000 that includes accessible sidewalks to mail center, laundry center, and trash bins plus ADA parking and curb ramps. This case will be highlighted in HUD's 2010 -2011 Annual Report. John Trasvina, HUD Assistant Secretary for Fair Housing and Equal Opportunity issued a letter of recognition (August 11, 2010) to the department that cited "HUD's partnership with CCHRO (Corpus Christi Human Relations Office) has been consistently positive (since 2004) ... has investigated, conciliated, and litigated 161 complaints of housing discrimination that arose in Corpus Christi ... secured various forms of relief for victims of housing discrimination including over $600,000 in monetary compensation ... has secured affirmative and public interest relief, as well as reasonable accommodations and reasonable modifications for people with disabilities... ". —354— Public Accommodation Discrimination in FY 2009 -2010 reflected that Race (30 %) and Disability (30 %) are the major basis for these complaints. Two of 15 were resolved during this reporting period and 4 investigations are in progress. We had 5 failure to cooperate (file complaint and never return for investigation), 3 were lack of jurisdiction and referred to other appropriate agencies, and 1 complaint was withdrawn. A sample of these public accommodation complaints involved a male with hearing and speech impairments who was denied the use of and banned from public transportation services by the area Security Officer. The Officer assumed that because the individual did not respond when spoken to that he was being uncooperative and argumentative. The investigation revealed that the Security officer was not aware of this individual's disabilities and was confusing him with his brother as well. The ban was lifted for him. Our department staff consists of: • 1 Director and City -wide ADA Coordinator • 1 ADA Investigator and Public Accommodations Compliance Officer • 1 Fair Housing Compliance Officer • 2 EEOC Intake and Investigative Compliance Officers • 1 Management Aide and ADA Trash Pick -up Program Coordinator We are assisted in many of our program efforts by our Human Relations Commission and the Committee For Persons With Disabilities. Additionally, City departments , including Solid Waste, Engineering Services, Development Services, and Neighborhood Services provide tremendous aid and support to our efforts. —355— la4� O CJ -4! CP A � • *Po .1.4! Isme CI tIJ 1tt Att PitZ z z o • - ci) 0 pr$0 z rz rl o5 w u u •� .�` u au 5 u •'� — ›pl„Di o g rel tit .g g .21 O g O E-1 rj gi 4A A 4 z ckz FY 2009 -2010 1-1 elbft cu pc) 0 u 0 -LSE- A to 0 mfg E 4) _ - 0 o E O .- t� L U O c o v rr c a) tt. 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