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Agenda Packet City Council - 08/14/2012
Corpus Christi Meeting Agenda - Final City Council 1201 Leopard St Corpus Christi, TX 78401 CCtexas.com Tuesday, August 14, 2012 12:00 PM Council Chambers 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 cree 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 Reverend Greg Hackett, First United Methodist Church. C. Pledge of Allegiance to the Flag of the United States. D. City Secretary Armando Chapa to call the roll of the required Charter Officers. E. Proclamations / Commendations 1 12 -00588 Certificate of Commendations to Youth Participants in the "Ramp It Up!" Workforce Solutions of the Coastal Bend Summer Youth Project 2012 F. MINUTES: 2 12 -00590 Approval of Meeting Minutes - July 31, 2012. Attachments: Minutes - July 31, 2012.pdf G. BOARDS & COMMITTEE APPOINTMENTS: 3 12 -00589 Advisory Committee on Community Pride Coastal Bend Council of Governments Corpus Christi Page 1 Printed on 8/10/2012 City Council Meeting Agenda - Final August 14, 2012 Commission on Children and Youth Human Relations Commission Leadership Committee for Senior Services Park and Recreation Advisory Committee Attachments: Board Packet.pdf H. 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. I. CONSENT AGENDA: (ITEMS 4 - 6) NOTICE TO THE PUBLIC: The following items are consent motions, resolutions, and ordinances 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. 4 12 -00553 Rescinding purchase approval of a software interface to Starlims and approving purchase for Intergraph Corporation Motion rescinding the approval to purchase an interface for the Laboratory Information Management System (LIMS) and (Leads from STARLIMS Corporation of Hollywood, Florida and awarding the purchase of an interface for the Laboratory Information Management System (LIMS) and (Leads from Intergraph Corporation, Chicago, Illinois for a total expenditure of $73,625. Funds are available through the Coverdell Forensic Science Improvement Grant program and Municipal Information Systems. Attachments: Agenda memo - Intergraph interface CorpusChristiTX - SOW -Limsl nterfaceNEW 5 12 -00415 Agreement to use reclaimed water supply for irrigation of the Coastal Bend Texas State Veteran's Cemetery Resolution authorizing the City Manager, or designee, to execute an agreement with the State of Texas Veteran's Land Board to supply effluent to irrigate the Coastal Bend Texas State Veteran's Cemetery. Corpus Christi Page 2 Printed on 8/10/2012 City Council Meeting Agenda - Final August 14, 2012 Attachments: Memo - Veterans Cemetery Location Map - Texas Veterans Cemetery. pdf Resolution - Texas Veterans Cemetery.docx User Agreement - Texas Veterans Cemetery. pdf 6 12 -00480 Supplemental Agreement to determine responsibilities for the Billings & Clems parking lot improvements located on Park Road 22 Resolution authorizing the City Manager, or designee, to execute a Supplemental Agreement to the Master Multiple Use Agreement with the Texas Department of Transportation (TxDOT) for the Billings and Clems Parking Lot Improvements located within State right -of -way of Park Road 22 adjacent to the John F. Kennedy Memorial Causeway. Attachments: Memo - MUAw TXDOT Billings Clems Location map - MUAw TXDOT Billings & Clems.pdf Resolution - MUAw TXDOT Billings & Clems.docx Contract - MUAw DOT Billings & Clems.pdf J. EXECUTIVE SESSION: (ITEMS 7 - 9) 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. 7 12 -00564 Executive session under Section 551.071 of the Texas Government Code for consultation with attorneys regarding permitting issues related to the City's TCEQ- issued Texas Pollutant Discharge Elimination System (TPDES) Municipal Separate Storm Sewer System (MS4) Permit Renewal, with possible discussion and action related thereto in open session. 8 12 -00550 Executive session pursuant to Texas Government Code Section 551.071 to consult with attorneys regarding contemplated litigation related to the city wastewater treatment plants, with possible discussion and action in open session. 9 12 -00594 Executive session pursuant to Section 551.087 of the Texas Government Code to deliberate regarding confidential commercial or financial information received from Schlitterbahn Waterpark a business that the City Council seeks to have locate, stay or expand within the City and with which the City is conducting economic development negotiations with possible discussion and action in open session. Corpus Christi Page 3 Printed on 8/10/2012 City Council Meeting Agenda - Final August 14, 2012 K. PUBLIC HEARINGS: (ITEMS 10 - 11) 10 12 -00528 Change of zoning from single family to general commercial located at 6210 South Padre Island Drive Case No. 0612 -01: CCLEL Investments, Inc.: A change of zoning from the "RS -6" Single - Family 6 District to the "CG -2" General Commercial District, resulting in a change of future land use from medium density residential to commercial. The property to be rezoned is a 2.30 -acre portion out of Lot 6, Section 13, Flour Bluff and Encinal Farm and Garden Tracts, located on the north side of South Padre Island Drive (SH 358) and east of Prince Drive. Planning Commission and Staff Recommendation (June 20, 2012): Approval of the change of zoning from the "RS -6" Single - Family 6 District to the "CG -2" General Commercial District. ORDINANCE Ordinance amending the Unified Development Code ( "UDC ") upon application by CCLEL Investments, Inc., on behalf of Leer Properties, Inc. ( "Owner"), by changing the UDC Zoning Map in reference to a 2.30 -acre portion out of Lot 6, Section 13, Flour Bluff and Encinal Farm and Garden Tracts from the "RS -6" Single - Family 6 District to the "CG -2" General Commercial District; amending the Comprehensive Plan to account for any deviations from the existing Comprehensive Plan; providing a repealer clause; providing for penalties; providing for publication; and declaring an emergency. Attachments: (1) Agenda Memo, CCLEL Investmts FINAL for 8 -14 CC rev 5 PM (2) Aerial Overview Map (3) Zoning Report with attchmts (4) Ordinance w Exhibits A & B, CCLEL Invtmts, FINAL for 8 -14 11 12 -00574 Public Hearing on Fiscal Year 2013 Ad Valorem Tax rate Attachments: Public Hearing regarding Ad Valorem Tax Rate.doc L. REGULAR AGENDA: (ITEM 12) The following items are motions, resolutions and ordinances that will be considered and voted on individually. 12 12 -00571 Ordinance ordering a general election for election of Mayor and eight Council Members and consideration of bond propositions Ordinance ordering a general election to be held on November 6, 2012, Corpus Christi Page 4 Printed on 8/10/2012 City Council Meeting Agenda - Final August 14, 2012 in the City of Corpus Christi for the election of Mayor and eight Council Members, and on the questions of authorizing bond issuances of the City supported by ad valorem taxes; providing for procedures for holding such election; providing for notice of election and publication thereof; providing for establishment of branch early polling places; designating polling place locations; authorizing a joint election with Nueces County; and a Runoff Election, if one is necessary; enacting provisions incident and relating to the subject and purpose of this ordinance; and declaring an emergency. Attachments: Agenda Memo.docx Final Ordinance Calling Nov 2012 election M. FIRST READING ORDINANCES: (ITEMS 13 - 17) 13 12 -00565 First Reading Ordinance - Accepting and appropriating a federal grant to support joint City and County law enforcement efforts Ordinance authorizing the City Manager or designee to execute all documents necessary to accept a grant from the U. S. Department of Justice, Bureau of Justice Assistance, in the amount of $169,575 for the FY 12 Edward Byrne Memorial Justice Assistance Grant (JAG) Program Local Solicitation within the Police Department, 50% of the funds to be distributed to Nueces County under an established interlocal agreement and appropriating $169,575 in the No. 1061 Police Grants Fund. Attachments: Agenda memo -JAG appropriation Ordinance - FY 2012 Edward Byrne Memorial Justice Assistance Grant - police 14 12 -00541 First Reading Ordinance - Accepting and appropriating a state grant to prevent auto burglary and theft Ordinance authorizing the City Manager or designee to execute all documents necessary to accept a grant from the Texas Automobile Burglary and Theft Prevention Authority (ABTPA) in the amount of $392,474 to continue the motor vehicle theft enforcement grant within the Police Department for Year 12, with a City match of $478,212, in -kind match of $14,019 in the No. 1020 Police General Fund, and program income match of $8,541 in the NO. 1061 Police Grants Fund for a total project cost of $893,246; and appropriating the $392,474 grant in the No. 1061 Police Grants Fund continue the motor vehicle theft enforcement grant in the Police Department. Attachments: Agenda memo - ABTPA Ordinance - ABTPA Contract - ABTPA Corpus Christi Page 5 Printed on 8/10/2012 City Council Meeting Agenda - Final August 14, 2012 15 12 -00542 First Reading Ordinance - Accepting and appropriating a State grant to assist with operations for border security Ordinance authorizing the City Manager or designee to execute all documents necessary to accept a grant from the Texas Ranger Division of the Texas Department of Public Safety in the amount of $155,000 for the FY2012 Local Border Security Program within the Police Department and appropriating $155,000 in the No. 1061 Police Grants Fund.. Attachments: Agenda memo - Local Border Security Program Ordinance - Local Border Security Program Contract - Local Border Security Program 16 12 -00399 First Reading Ordinance - Utility easement closure to develop property located north of State Highway 44 Ordinance abandoning and vacating a 3,357.08- square -foot portion of a 5- foot -wide utility easement out of Lot 1A, Block 6, Airport Industrial Subdivision, and a 6,721.94- square -foot portion of a 10- foot -wide utility easement out of Lot 3, Block 4, Airport Industrial Subdivision; and requiring the owner, Weatherford U.S., L.P., to comply with the specified conditions. Attachments: Agenda Memo - Airport Industrial Final Ordinance with Exhibits A -C - Airport Industrial 17 12 -00558 First Reading Ordinance - Receipt and transfer of funds from the Sessions Bequest to the Friends of the Museum Ordinance authorizing the City Manager to execute all documents necessary to accept disbursements from mineral interests from the Estate of L. Lloyd Sessions; appropriating distribution in the No. 1069 Museum Trust Fund and authorizing the transfer to the Friends of the Museum of Science and History for the benefit of the Museum. Attachments: Agenda memo - Museum Lloyd Sessions Museum Ordinance for Mineral Interest N. FUTURE AGENDA ITEMS: (ITEMS 18 - 31) The following items are for Council's informational purposes only. No action will be taken and no public comment will be solicited. 18 12 -00452 Amendment to city /county health district agreement to combine two nurse practitioner positions into one position; and amending code of ordinances (Related items 18 - 19) Motion to approve the First Amendment to the Reformed Cooperative Corpus Christi Page 6 Printed on 8/10/2012 City Council Meeting Agenda - Final August 14, 2012 Agreement with Nueces County for operation of the Corpus Christi - Nueces County Public Health District in order to consolidate a nursing position under Pay Plan HTH and to authorize execution of the First Amendment by the City Manager. Attachments: Revised Agenda Motion Memo Ordinance - Health District Pay Plan Amdmt Agreement - Health District AgmtAmdmtl Certification of funds Motion 19 12 -00363 Ordinance amending the Code of Ordinances, Chapter 39, Article III Section 39 -303, Subsection (m), "Pay Plan HTH," to eliminate the Grade 58 position from the plan. Attachments: Agenda Memo - Sr Nurse Ordinance Ordinance - EHord360 Health District Pay Plan Amdmt Health District AgmtAmdmtl Att B -1 v02 20120416 Exhibit.pdf Health District AgmtAmdmtl vFinal 20120425.docx 20 12 -00495 Construction contract for parking, drainage, and ADA improvements to the Evelyn Price Park (Bond 2008 - Sports Field Improvements) Motion authorizing the City Manager, or designee, to execute a Construction Contract with Safenet, LLC. of Corpus Christi, Texas in the amount of $137,764.63 for the (Evelyn Price Park Improvements (Bond 2008 - Sports Field Improvements). Attachments: Memo - Evelyn Price Park Project Budget - Evelyn Price Park Location map - Evelyn Price Park Improvements.pdf 21 12 -00531 Type A Grant to fund interest buy down and grant program to assist small businesses Resolution approving a Small Business Incentives Agreement between the Corpus Christi Business and Job Development Corporation and Accion Texas, Inc. ( "Accion ") to provide grant amount up to $400,000 for the interest buy down and grant programs for small businesses and authorizing the City Manager, or designee, to execute a Project Support Agreement with the Corpus Christi Business and Job Development Corporation to administer the Accion Texas Small Business Incentives Agreement. Corpus Christi Page 7 Printed on 8/10/2012 City Council Meeting Agenda - Final August 14, 2012 Attachments: Agenda Memo - Accion RESOLUTION Accion Business Incentive Agreement 7 -6 -12 Accion Type AAgreement 2012 - 2013 Type A Business Support Agreement - Accion 7 -13 -12 22 12 -00532 Type A Grant to fund Del Mar College small business owner education program Resolution approving a Small Business Incentives Agreement between the Corpus Christi Business and Job Development Corporation and Del Mar College ( "Del Mar") to provide grant amount up to $120,000 for the FastTrac® Growth Venture program for small businesses and authorizing the City Manager, or designee, to execute a Project Support Agreement with the Corpus Christi Business and Job Development Corporation to administer the Del Mar FastTrac® Small Business Incentives Agreement. Attachments: Agenda Memo - Del Mar FastTrac 2013 RESOLUTION Del Mar Fastrac Business Incentive Agreement 7 -11 -12 Del Mar Fastrac Growth Venture Type AAgreement 2012 Type A Business Support Agreement - Del Mar FastTrac 07 13 12 23 12 -00533 Type A Grant to fund 95 interns through the Del Mar College internship program Resolution approving a Small Business Incentives Agreement between the Corpus Christi Business And Job Development Corporation and Del Mar College ( "Del Mar") to provide grant amount up to $173,223 for an intern program for small businesses and authorizing the City Manager, or designee, to execute a Project Support Agreement with the Corpus Christi Business And Job Development Corporation to administer the Del Mar College Intern Program Small Business Incentives Agreement. Attachments: Agenda Memo - Type A Delmar College Intern RESOLUTION Del Mar Intern Business Incentive Agreement 7 -6 -12 Del Mar College Intern Type AAgreement 2012 Type A Business Support Agreement - Del Mar Intern 24 12 -00534 Type A grant to fund a program that provides market research and technical assistance to small businesses Resolution approving a Small Business Incentives Agreement between the Corpus Christi Business and Job Development Corporation and the Corpus Christi Regional Economic Development Corporation ( "EDC ") to provide grant amount up to $96,000 to initiate an Economic Gardening Corpus Christi Page 8 Printed on 8/10/2012 City Council Meeting Agenda - Final August 14, 2012 program to help small businesses in Corpus Christi and authorizing the City Manager, or designee, to execute a Project Support Agreement with the Corpus Christi Business and Job Development Corporation to administer the EDC Small Business Incentives Agreement. Attachments: Agenda Memo - CCREDC Economic Gardening RESOLUTION Economic Gardening 7 -11 -12 CCREDC Type AAgreement 2012 Type A Business Support Agreement - CCREDC 07 13 12 25 12 -00535 Type A Grant to fund assistance for small businesses through workshops and counseling Resolution approving a Small Business Incentives Agreement between the Corpus Christi Business and Job Development Corporation and Service Corps of Retired Executives (SCORE) Chapter 221 to provide grant up to $50,000 to assist small businesses and authorizing the City Manager, or designee, to execute a Project Support Agreement with the Corpus Christi Business and Job Development Corporation to administer the SCORE Chapter 221 Small Business Incentives Agreement. Attachments: Agenda Memo - Type A SCORE RESOLUTION SCORE Business Incentive Agreement 7 -6 -12 SCORE Type A Small Business Development Agreement Type A Business Support Agreement - SCORE 26 12 -00536 Type A Grant to fund 105 interns through the TAMU -CC Internship Program Resolution approving a Small Business Incentives Agreement between the Corpus Christi Business And Job Development Corporation and Texas A &M University- Corpus Christi ( "TAMU -CC ") to provide grant amount up to $190,635 for an intern program for small businesses and authorizing the City Manager, or designee, to execute a Project Support Agreement with the Corpus Christi Business and Job Development Corporation to administer the TAMU -CC Intern Program Small Business Incentives Agreement. Attachments: Agenda memo - TXA &M Internship RESOLUTION TAMUCC Business Incentive Agreement 7 -11 -12 Texas A and M Intern Type AAgreement 2012 Type A Business Support Agreement - TAMU -CC Intern 27 12 -00587 Management agreement with Corpus Christi Museum Joint Venture Corpus Christi Page 9 Printed on 8/10/2012 City Council Meeting Agenda - Final August 14, 2012 Motion authorizing the City Manager or his designee to execute a twenty four month agreement with Corpus Christi Museum Joint Venture (CCMJV) to operate and manage the Corpus Christi Museum of Science and History (Museum). Attachments: Agenda Memo - Museum Management Agreement Contract - Museum Management Agreement Exhibit- Museum ManagementAaremeent Cash Flow Diagram 28 12 -00586 Collective bargaining agreement with the Corpus Christi Firefighters' Association for wages, benefits and working conditions Motion authorizing the City Manager to enter into a collective bargaining agreement with the Corpus Christi Firefighters' Association for wages, benefits and working conditions. Attachments: Agenda memo - Fire Fire Contract 29 12 -00567 Authorization for the Issuance of Utility System Revenue Bonds (Related items 29 - 30) 30 12 -00568 Motion authorizing the appointment of M. E. Allison, & Co., as Financial Advisor for one or more series of City of Corpus Christi, Texas Utility System Revenue Bonds, in an aggregate principal amount not to exceed $75,000,000. Attachments: Agenda memo - Utility Revenue Bonds, Augst 14, 2012 ExhibitA - Financial Advisor Fee Schedule.pdf Ordinance authorizing the issuance of one or more series of City of Corpus Christi, Texas Utility System Revenue Bonds, in an aggregate principal amount not to exceed $75,000,000, pursuant to the delegation provisions set forth herein; making provisions for the payment and security thereof of a parity with certain currently outstanding Utility System revenue obligations; stipulating the terms and conditions for the issuance of additional revenue bonds on a parity therewith; prescribing the forms, terms, conditions, and resolving other matters incident and related to the issuance, sale and delivery of each series of bonds; including the approval and distribution of one or more Official Statements pertaining thereto; authorizing the execution of one or more paying agent/registrar agreements, one or more escrow agreements, and one or more purchase contracts; complying with the requirements imposed by the letter of representations previously executed with the depository trust company; establishing the City's intention to reimburse itself from the proceeds of any such series of bonds for the prior lawful Corpus Christi Page 10 Printed on 8/10/2012 City Council Meeting Agenda - Final August 14, 2012 expenditure of funds to construct various City improvements; delegating the authority to the Mayor and certain members of the City staff to execute certain documents relating to the sale of each series of bonds; and providing an effective date. Attachments: Agenda memo - Utility Revenue Bonds Augst 14 2012 Ordinance.pdf FUTURE PUBLIC HEARINGS: (ITEM 31) 31 12 -00540 Change of zoning from farm rural district to general commercial at 14801 Northwest Blvd. Case No. 0612 -02: Calallen GP, LLC: A change of zoning from the "FR" Farm Rural District to the "CG -2" General Commercial District, resulting in a change of future land use from commercial and medium density residential uses to commercial uses. The property to be rezoned is described as being a 36.896 -acre tract of land out of Lot 4, Block 2, Nueces River Irrigation Park, located on the southeast corner of Northwest Boulevard (FM 624) and FM 1889. Planning Commission and Staff Recommendation (June 20, 2012):_ Denial of the applicant's request for the "CG -2" General Commercial District on 36.896 acres and, in lieu thereof, approval of the "CG -2" General Commercial District on Tract 1 (29.243 acres) and the "CN -1" Neighborhood Commercial District on Tract 2 (7.653 acres). ORDINANCE Ordinance amending the Unified Development Code ( "UDC ") upon application by Calallen GP, LLC, on behalf of Lois Lowman, Connie Diane Brown Polk Laing, Herman Bruce Lowman, NRIP, LLC, and Cloudcroft Land Ventures, Inc. ( "Owners "), by changing the UDC Zoning Map in reference to a 36.896 -acre tract of land out of Lot 4, Block 2, Nueces River Irrigation Park from the "FR" Farm Rural District to the "CG -2" General Commercial District on Tract 1 (29.243 acres) and the "CN -1" Neighborhood Commercial District on Tract 2 (7.653 acres); amending the Comprehensive Plan to account for any deviations from the existing Comprehensive Plan; providing a repealer clause; providing for penalties; providing for publication; and declaring an emergency. Attachments: Agenda Memo, Calallen CG, LLC, FINAL (7- 18 -12) Aerial Overview Map Report for CC Ordinance w Exhibits for CG -2 & CN -1, Calallen GP (7- 23 -12) O. UPDATES TO CITY COUNCIL: (ITEM 32) Corpus Christi Page 11 Printed on 8/10/2012 City Council Meeting Agenda - Final August 14, 2012 The following items are for Council's informational purposes only. No action will be taken and no public comment will be solicited. 32 12 -00560 Presentation on Packery Channel Quarterly Monitoring for 2011 -2012 Attachments: PACKERY CHANNEL MONITORING - PRESENTATION ITEM.docx Powerpoint Presentation - Packery Channel P. 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. 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. Q. CITY MANAGER'S COMMENTS: Update on City Operations R. ADJOURNMENT Corpus Christi Page 12 Printed on 8/10/2012 Corpus Christi Meeting Minutes - Draft City Council 1201 Leopard St Corpus Christi, TX 78401 CCtexas.com Tuesday, July 31, 2012 12:00 PM Council Chambers A. Call meeting to order. Mayor Adame called the meeting to order. B. Invocation. The invocation was delivered by Chaplain Lynn Blackler, CHRISTUS Spohn Health System. C. Pledge of Allegiance. The Pledge of Allegiance was led by Council Member Nelda Martinez. D. Roll Call City Secretary Chapa verified that the necessary quorum of the Council and the necessary Charter Officers City Manager Ron Olson, City Attorney Carlos Valdez and City Secretary Armando Chapa were present to conduct the meeting. Present: 9 - Mayor Joe Adame,Council Member Chris Adler,Council Member Kelley AIIen,Council Member Larry Elizondo,Council Member Priscilla LeabCouncil Member David Loeb,Council Member John Marez,Council Member Nelda Martinez, and Council Member Mark Scott E. Proclamations / Commendations Mayor Adame read and presented the Proclamation(s). 1 Proclamation declaring August 3 - 5, 2012 as "Go Local Corpus Christi Launch Weekend" This Proclamations was presented F. MINUTES: 2 Approval of Meeting Minutes - July 24, 2012. A motion was made by Council Member Martinez, seconded by Council Member Elizondo to approve the minutes as presented. G. BOARDS & COMMITTEE APPOINTMENTS: Corpus Christi Page 1 Printed on 8/7/2012 City Council Meeting Minutes - Draft July 31, 2012 3 Clean City Advisory Committee Corpus Christi Business and Job Development Corporation Corpus Christi Convention and Visitor's Bureau Corpus Christi Downtown Management District The individuals below were appointed /reappointed to the following City boards, commissions and committees: Clean City Advisory Committee: Reappointed - Rebecca Lyons (Educator), Scot Barker (Chamber), Brian Cornelius (Hauler), Paige Dinn (At Large), Joan Veith (At Large), and Kimberly Brumley (At Large); Realignment - Lori Galan- Garcia (Beautify CC); New Appointment - Carolyn Moon (At Large) Corpus Christi Business and Job Development Corporation: Reappointed - Robert Tamez; New Appointments - Debbie Lindsey -Opel and Bart Braselton Corpus Christi Convention and Visitors Bureau: Realignment - Bill Morgan (At Large) and Rakesh Patel (Hotel Industry); Reappointments - Ken Griffin (At Large), Mark Schaberg (Restaurant Industry), Tom Schmid (Attraction Industry); New Appointments - Jim Needham (At Large), Darcy Jones (At Large) and Toby Futrell (At Large); Advisory Member - Butch Pool Corpus Christi Downtown Management District: Reappointment - Raymond Gignac, Wayne Lundquist, Rachelle Graham, Tim Heuston and Chad Magill; New Appointments - Jonathan Richter and Con Browne Enactment No: I. CONSENT AGENDA: (ITEMS 4 - 15) Mayor Adame called for consideration of the Consent Agenda, Items 4 through 15. Item No. 8 was pulled for individual consideration. The remaining items were approved by one vote: 4 Purchase of the Source Water Contaminant Event Detection System on the Nueces River Motion authorizing the City Manager or his designee to execute documents to purchase the Source Water Contaminant Event Detection System for the Nueces River below Lake Corpus Christi from Hach Company in the amount of $243,429.59. The foregoing motion was passed and approved with the following vote: Aye: 8- Mayor Adame, Council Member Adler, Council Member Allen, Council Member Leal, Council Member Loeb, Council Member Marez, Council Member Martinez and Council Member Scott Absent: 1 - Council Member Elizondo Abstained: 0 Enactment No: M2012 -142 Corpus Christi Page 2 Printed on 8/7/2012 City Council Meeting Minutes - Draft July 31, 2012 5 Lease - Purchase and Purchase of Heavy Trucks Motion approving the lease- purchase of eleven (11) heavy trucks and the purchase of four (4) heavy trucks for the total amount of $1,523,536.00, of which $388,110.00 is required for the remainder of FY 2011 -2012 . The heavy trucks are awarded to the following companies for the following amounts in accordance with Bid Invitation No. BI- 0175 -12, based on lowest responsible bid. Funding for the purchase of the heavy trucks is available in the Capital Outlay Budget of the Fleet Maintenance Services Fund. Financing for the lease- purchase of the heavy trucks will be provided through the City's lease /purchase financing contractor. The foregoing motion was passed and approved with the following vote: Aye: 8- MayorAdame, Council Member Adler, Council Member Allen, Council Member Leal, Council Member Loeb, Council Member Marez, Council Member Martinez and Council Member Scott Absent: 1 - Council Member Elizondo Abstained: 0 Enactment No: M2012 -143 6 Supply agreement for unleaded gasoline and diesel purchased at commercial locations 7 Motion approving a supply agreement with Stripes LLC, Corpus Christi, Texas for standard gasoline and ultra -low sulfur diesel fuel in accordance with Bid Invitation No. BI- 0194 -12 based on only bid for an estimated annual expenditure of $4,435,881.68. The term of the agreement will be for twelve months with options to extend for up to two additional twelve -month periods, subject to the approval of the supplier and the City Manager, or designee. Funds have been budgeted by Maintenance Services and the Fire Department in FY 2011 -2012 and requested for FY 2012 -2013. The foregoing motion was passed and approved with the following vote: Aye: 8- MayorAdame, Council Member Adler, Council Member Allen, Council Member Leal, Council Member Loeb, Council Member Marez, Council Member Martinez and Council Member Scott Absent: 1 - Council Member Elizondo Abstained: 0 Enactment No: M2012 -144 Agreements for disbursement of council members annual salary Motion authorizing the City Manager or his designee to execute an Corpus Christi Page 3 Printed on 8/7/2012 City Council Meeting Minutes - Draft July 31, 2012 agreement with South Texas Council of Boy Scouts in the amount of $1,500,Tennis for Success in the amount of $500; and funds to be distributed to the following City projects: HEB Tennis Center in the amount of $2,000 and Parks, Arts, Leisure & Seniors (P.A.L.S.) - Linda le Park in the amount of $2,000, to receive the FY2011 -2012 council salary funds not receivable by Council Member John Marez in support of programs provided by their organizations in the City of Corpus Christi. The foregoing motion was passed and approved with the following vote: Aye: 7- MayorAdame, Council Member Adler, Council Member Allen, Council Member Leal, Council Member Loeb, Council Member Martinez and Council Member Scott Absent: 1 - Council Member Elizondo Abstained: 1 - Council Member Marez Enactment No: M2012 -145 8 Resolution authorizing Staffing for Adequate Fire and Emergency Response grant application Resolution authorizing the City Manager, or designee, to submit a grant application in the amount of $3,380,824 to the United States Department of Homeland Security - Staffing for Adequate Fire and Emergency Response (SAFER) Grants Program to hire 34 firefighters within the Fire Department and authorizing the City Manager, or designee, to apply for, accept, reject, alter or terminate the grant. The foregoing resolution was passed and approved with the following vote: Aye: 8- MayorAdame, Council Member Adler, Council Member Allen, Council Member Leal, Council Member Loeb, Council Member Marez, Council Member Martinez and Council Member Scott Absent: 1 - Council Member Elizondo Abstained: 0 Enactment No: 029566 9 Ordinance appropriating and transferring Raw Water Supply Development Fund balance to consolidate revenues into one fund Ordinance appropriating July 31, 2012 balance in the Raw Water Supply Development Fund, currently estimated to be $4,751,216, in the Fund 4010 Water Fund; transferring to Fund 4041 Raw Water Supply Development Fund. The foregoing ordinance was passed and approved on second reading with the following vote: Corpus Christi Page 4 Printed on 8/7/2012 City Council Meeting Minutes - Draft July 31, 2012 10 Aye: 8- MayorAdame, Council Member Adler, Council Member Allen, Council Member Leal, Council Member Loeb, Council Member Marez, Council Member Martinez and Council Member Scott Absent: 1 - Council Member Elizondo Abstained: 0 Enactment No: 029567 Second Reading Ordinances - Appropriating fund proceeds and correcting a prior appropriation (Related items 10 - 15) (First Reading 7/24/12) Appropriating $3,917.52 in Airport CIP interest earnings Ordinance appropriating $3,917.52 in AIRPORT CIP interest earnings in the funds as listed in Attachment 1, Section 1 for the City's match for future FAA Grant Projects; Changing the FY 2012 Capital Improvement Budget adopted by Ordinance No. 029135 to increase expenditures by $3,917.52. The foregoing ordinance was passed and approved on second reading with the following vote: Aye: 8- MayorAdame, Council Member Adler, Council Member Allen, Council Member Leal, Council Member Loeb, Council Member Marez, Council Member Martinez and Council Member Scott Absent: 1 - Council Member Elizondo Abstained: 0 Enactment No: 029568 11 Appropriating $164,518.87 in bond proceed interest earnings Ordinance appropriating $164,518.87 in BOND PROCEED interest earnings for Bayfront, Public Health and Safety, Fire, Police, Sanitary Landfill, Library, Convention Center, Parks, and Streets in the funds as listed in Attachment 1, Section 2 for the stated bond projects not yet complete, similar projects to be approved by City Council or the payment of debt service; Changing the FY 2012 Capital Improvement Budget adopted by Ordinance No. 029135to increase expenditures by $164,518.87. The foregoing ordinance was passed and approved on second reading with the following vote: Aye: 8- MayorAdame, Council Member Adler, Council Member Allen, Council Member Leal, Council Member Loeb, Council Member Marez, Council Member Martinez and Council Member Scott Absent: 1 - Council Member Elizondo Corpus Christi Page 5 Printed on 8/7/2012 City Council Meeting Minutes - Draft July 31, 2012 Abstained: 0 Enactment No: 029569 12 Appropriating $68,927.94 in utility revenue bond interest earnings Ordinance appropriating $68,927.94 in UTILITY REVENUE BOND interest earnings as listed in Attachment 1, Section 3 for the support of the City's approved Capital Improvement Program; Changing the FY 2012 Capital Improvement Budget adopted by Ordinance No. 029135 to increase expenditures by $68,927.94. The foregoing ordinance was passed and approved on second reading with the following vote: Aye: 8- MayorAdame, Council Member Adler, Council Member Allen, Council Member Leal, Council Member Loeb, Council Member Marez, Council Member Martinez and Council Member Scott Absent: 1 - Council Member Elizondo Abstained: 0 Enactment No: 029570 13 Appropriating $91,997.53 in specialty bond proceed interest earnings Ordinance appropriating $91,997.53 in SPECIALTY BOND PROCEED interest earnings, contributions for Buddy Lawrence house moving, downtown clean -up, and to aid construction, Texas Department of Transportation refund, Public Right of Way fees, reimbursement from the Regional Transportation Authority, Sales Tax Bonds for the Seawall and Arena, Packery Channel Bonds, and Generic Capital Improvement Funds as listed in Attachment 1, Section 4 for the stated bond projects not yet complete, the support of the City's approved Capital Improvement Program, specific military supported projects and as determined by the Type A Board; Changing the FY 2012 Capital Improvement Budget adopted by Ordinance No. 029135 to increase expenditures by $91,997.53. The foregoing ordinance was passed and approved on second reading with the following vote: Aye: 8- MayorAdame, Council Member Adler, Council Member Allen, Council Member Leal, Council Member Loeb, Council Member Marez, Council Member Martinez and Council Member Scott Absent: 1 - Council Member Elizondo Abstained: 0 Enactment No: 029571 14 Appropriating $166,826.76 in street assessments Corpus Christi Page 6 Printed on 8/7/2012 City Council Meeting Minutes - Draft July 31, 2012 Ordinance appropriating $166,826.76 in STREET ASSESSMENTS as listed in Attachment 1, Section 5 for the repayment of approved assessment projects; Changing the FY 2012 Capital Improvement Budget adopted by Ordinance No. 029135 to increase expenditures by $166,826.76. The foregoing ordinance was passed and approved on second reading with the following vote: Aye: 8- MayorAdame, Council Member Adler, Council Member Allen, Council Member Leal, Council Member Loeb, Council Member Marez, Council Member Martinez and Council Member Scott Absent: 1 - Council Member Elizondo Abstained: 0 Enactment No: 029572 15 Amending ordinances to revise amounts from FY2010 -11 Ordinance amending Ordinance No 029144 to reduce the amount appropriated of bond proceeds interest earnings and bond company settlement proceeds to $459,138.91; revising the amount of increase in FY 2010 -2011 Capital Improvement Budget expenditure to $459,138.91; amending Ordinance No. 029146 to reduce the amount appropriated of Specialty Bond Proceeds interest earnings to $32,929.58; revising the amount of increase in FY 2010 -2011 Capital Improvement Budget expenditures to $32,929.58. The foregoing ordinance was passed and approved on second reading with the following vote: Aye: 8- MayorAdame, Council Member Adler, Council Member Allen, Council Member Leal, Council Member Loeb, Council Member Marez, Council Member Martinez and Council Member Scott Absent: 1 - Council Member Elizondo Abstained: 0 Enactment No: 029573 J. EXECUTIVE SESSION: (ITEM 16) 16 Mayor Adame read Executive Session Item No. 16. The council went into executive session. The council returned from executive session. Executive session pursuant to Texas Government Code Section 551.071 to consult with attorneys on a matter regarding Senate Bill 3 (Texas Legislature 2007) regarding water rights permitting in which the duty of the attorneys representing the City under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas clearly conflicts with Chapter 551 of the Texas Government Code, with Corpus Christi Page 7 Printed on 8/7/2012 City Council Meeting Minutes - Draft July 31, 2012 possible discussion and action in open session. Mayor Adame announced that no action would be taken on the executive session. K. PUBLIC HEARINGS: (ITEM 17) Mayor Adame referred to Item No. 17, Public Hearing for the Proposed Bond Issue 2012. 17 Public Hearing for the Proposed Bond Issue 2012 Oscar Martinez, Assistant City Manager provided an overview of the following Proposed Bond Propositions: Proposition 1, Street Improvements for $55 million; Proposition 2, City Hall Improvements for $1.75 million; Proposition 3, Service Center Complex Improvements for $4.75 million; Proposition 4, Parks and Recreation Improvements for $16 million; Proposition 5, Museum and Library Improvements for $2.34 million; Proposition 6, Public Health Improvements for $0.82 million; Proposition 7, Public Safety Improvements for $0.70 million; Proposition 8, Economic Development Projects for $9.05 million; and Proposition 9, Destination Bayfront for $90 million. He added that citizen input was received, and reviewed and recommended by the Planning Commission. Mr. Martinez stated that the total bond package is approximately $150 million and the utility costs associated with the street costs is approximately $44 million. He added the utility costs will be paid by utility rate payers beginning in 2014, with an increase of 1.45% for water, and about a 5% increase for wastewater. A motion was made by Council Member Martinez, seconded by Council Member Adler to open the public hearing. The following citizens spoke about the bond program: Johnny French spoke about the sequence of holding elections every year, the maintenance projects, and eliminating Proposition No. 9; Gabrielle Hebert spoke in support of the safety projects and the JFK project; Marco Castillo spoke in support of public buildings and making sure voters understand the proposition language; Trey McCampbell, along with JJ Hart and Toby Futrell spoke about the Bond Program and made the following recommendations to the council: 1) remove Proposition 9, Destination Bayfront from the bond package, 2) consider a Special Election for Destination Bayfront, and 3) suggested the creation of a council subcommittee group to work with Destination Bayfront to set priorities and right sizing the park; and Abel Alonzo stated that the time is not right for Destination Bayfront and that council needs to concentrate on the needs of the community. A motion was made by Council Member Martinez, seconded by Council Member Marez to close the public hearing. In response to Mr. McCampbell's request, Council Member Scott recommended that Kelley Allen, Priscilla Leal, David Loeb, himself serve on the Council Committee, and City Manager Ron Olson to work with the Destination Bayfront representatives. Mayor Adame concurred with this recommendation. L. REGULAR AGENDA: (ITEMS 18 - 25) Bond 2012 Consideration Items (ITEM 18) Corpus Christi Page 8 Printed on 8/7/2012 City Council Meeting Minutes - Draft July 31, 2012 Mayor Adame referred to Item No. 18, Bond 2012. Oscar Martinez, Assistant City Manager stated that this item is for discussion and action of the Propositions and ballot language for the November 6, 2012 election. The council then discussed each proposition and voted on each one individually. Proposition 1, Streets. Council Member Loeb made a motion to remove JFK Causeway Area Improvements from Proposition 8 to Proposition 1, remove Propositions 8 and 9, and reduce TxDOT Participation and Signal Improvements & Street Lighting by $650,000 to fund JFK. The motion died for lack of second. Council Member Adler made a motion to remove JFK Causeway Area Improvements from Proposition 8 to Proposition 1, and reduce TxDOT Participation and Signal Improvements & Street Lighting by $650,000 to fund JFK, seconded by Council Member Martinez and passed with the following vote: Adame, Adler, Allen, Elizondo, Leal, Loeb, Marez, Martinez, and Scott voting "Aye ". Council Member Leal made a motion that since Yorktown has been removed pending funding, to replace with Ayers Street between Crosstown and Gollihar. The motion died for lack of second. Mr. Martinez stated that Yorktown is already included in Proposition 1. A motion was made by Council Member Martinez, seconded by Council Member Adler and passed to approve Proposition 1 as amended with the following vote: Adame, Adler, Allen, Elizondo, Leal, Loeb, Marez, Martinez, and Scott voting "Aye ". Proposition 2, City Hall Improvements. Council Member Scott made a motion to approve Proposition 2 as presented, seconded by Council Member Allen and passed with the following vote: Adame, Adler, Allen, Elizondo, Leal, Loeb, Marez, Martinez, and Scott voting "Aye ". Proposition 3, Service Center Complex Improvements. Council Member Scott made a motion to approve Proposition 3 as presented, seconded by Council Member Martintez and passed with the following vote: Adame, Adler, Allen, Elizondo, Leal, Loeb, Marez, Martinez, and Scott voting "Aye ". Proposition 4, Parks & Recreation. Council Member Martinez made a motion to approve Proposition 4 as presented, seconded by Council Member Marez and passed with the following vote: Adame, Adler, Allen, Elizondo, Leal, Loeb, Marez, Martinez and Scott, voting "Aye ". Proposition 5, Museum & Library Improvements. Council Member Marez made a motion to approve Proposition 5 as presented, seconded by Council Member Martinez and passed with the following vote: Adame, Adler, Allen, Elizondo, Leal, Loeb, Marez, Martinez and Scott, voting "Aye ". Proposition 6, Public Health Improvements. Council Member Elizondo made a motion to approve Proposition 6 as presented, seconded by Council Member Martinez and passed with the following vote: Adame, Adler, Allen, Elizondo, Leal, Loeb, Marez, Martinez and Scott, voting "Aye ". Proposition 7, Public Safety Improvements. Councl Member Martinez made a motion to approve Proposition 7 as presented, seconded by Council Member Scott and passed with the following vote: Adame, Adler, Allen, Elizondo, Leal, Corpus Christi Page 9 Printed on 8/7/2012 City Council Meeting Minutes - Draft July 31, 2012 18 Loeb, Marez, Martinez and Scott, voting "Aye ". Proposition 8, Economic Development Projects. Council Member Loeb made a motion to remove Destination Bayfront from Proposition 8, and add the next streets for improvements on the staff list in the amount of $12 million, seconded by Council Member Leal. The motion failed with the following vote: Adame, Adler, Allen, Elizondo, Martinez and Scott, voting "No "; Leal, Loeb and Marez, voting "Aye ". A motion was made by Council Member Martinez, seconded by Council Member Adler, to approve Proposition as amended with the removal of the JFK Improvements and passed with the following vote: Adame, Adler, Allen, Elizondo, Leal, Loeb, Marez, Martinez, and Scott voting "Aye ". Proposition 9, Destination Bayfront. Council Member Adler made a motion to remove Proposition 9 from the Bond Election, seconded by Council Member Elizondo and passed with the following vote: Adame, Adler, Allen, Elizondo, Leal, Marez, Martinez and Scott, voting "Aye "; Loeb voting, "No ". Discussion and possible action regarding proposition and ballot language for bond issuance in the following amounts for projects as follows: Proposition 1 with $55,000,000 for street projects; Proposition 2 with $ 1,750,000 for City Hall improvements; Proposition 3 with $4,750,000 for Service Center Complex improvements; Proposition 4 with $16,000,000 for Parks and Recreation improvements; Proposition 5 with $2,340,000 for Museum and Library improvements; Proposition 6 with $820,000 for Public Health improvements; Proposition 7 with $700,000 for Public Safety improvements; Proposition 8 with $9,050,000 for Economic Development projects and Proposition 9 with $60,000,000 for Destination Bayfront; and Resolution directing staff to prepare election ordinance with approved proposition and ballot language. The foregoing resolution was passed and approved with the following vote: Aye: 9- Mayor Adame, Council Member Adler, Council Member Allen, Council Member Elizondo, Council Member Leal, Council Member Loeb, Council Member Marez, Council Member Martinez and Council Member Scott Abstained: 0 Enactment No: 029574 19 Agreement renewing state and federal external legislative consultant contracts Motion authorizing the City Manager to execute renewal agreements for governmental relation services with Focused Advocacy for state governmental relations services and with Meyers & Associates for federal governmental relations services. The foregoing motion was passed and approved with the following vote: Corpus Christi Page 10 Printed on 8/7/2012 City Council Meeting Minutes - Draft July 31, 2012 Aye: 8- MayorAdame, Council Member Adler, Council Member Allen, Council Member Elizondo, Council Member Leal, Council Member Marez, Council Member Martinez and Council Member Scott Absent: 1 - Council Member Loeb Abstained: 0 Enactment No: M2012 -146 20 Motion setting the city council meeting date to adopt the Property Tax Rate and schedule public hearings (Related items 20 - 21) 21 Motion setting August 28, 2012 as the date of the adoption of the ad valorem tax rate of $0.570557 per $100 valuation. The foregoing motion was passed and approved with the following vote: Aye: 9- MayorAdame, Council Member Adler, Council Member Allen, Council Member Elizondo, Council Member Leal, Council Member Loeb, Council Member Marez, Council Member Martinez and Council Member Scott Abstained: 0 Enactment No: M2012 -147 Motion setting a public hearing on the ad valorem tax rate for August 14, 2012 and a second public hearing for August 21, 2012, during the regular City Council meeting beginning at 12:00 p.m. at City Hall, 1201 Leopard Street, Corpus Christi, Texas. The foregoing motion was passed and approved with the following vote: Aye: 9- MayorAdame, Council Member Adler, Council Member Allen, Council Member Elizondo, Council Member Leal, Council Member Loeb, Council Member Marez, Council Member Martinez and Council Member Scott Abstained: 0 Enactment No: M2012 -148 22 Ordinance authorizing the issuance of Airport Certificates of Obligation Ordinance authorizing the issuance of "City of Corpus Christi, Texas Combination Tax and Surplus Airport Revenue Certificates of Obligation, Series 2012 (AMT)" in an amount not to exceed $6,000,000 for the purpose of financing costs associated with making permanent public improvements to the City's Airport System; providing for the payment of said Certificates by the levy of an ad valorem tax upon all taxable property within the City and further securing said Certificates by a lien on and pledge of the pledged revenues of the Airport System; providing the terms and conditions of said Certificates and resolving other matters incident and relating to the issuance, payment, security, sale, and delivery of said Certificates, including the Corpus Christi Page 11 Printed on 8/7/2012 City Council Meeting Minutes - Draft July 31, 2012 approval and distribution of an Official Statement; authorizing the execution of a paying agent /registrar agreement and a purchase contract; complying with the requirements of the letter of representations with the depository trust company; delegating the authority to the Mayor and certain members of the City staff to execute certain documents relating to the sale of the Certificates; enacting other provisions incident and related to the subject and purpose of this ordinance; and providing an effective date. An emergency was declared and the foregoing ordinance was passed and approved with the following vote: Aye: 9- MayorAdame, Council Member Adler, Council Member Allen, Council Member Elizondo, Council Member Leal, Council Member Loeb, Council Member Marez, Council Member Martinez and Council Member Scott Abstained: 0 Enactment No: 029575 23 Resolution approving Texas South - International Alliance Memorandum of Understanding Resolution approving the Texas South - International Alliance Memorandum of Understanding between the cities of San Antonio, Brownsville, Edinburg, Laredo, San Marcos and Corpus Christi. The foregoing resolution was passed and approved with the following vote: Aye: 9- MayorAdame, Council Member Adler, Council Member Allen, Council Member Elizondo, Council Member Leal, Council Member Loeb, Council Member Marez, Council Member Martinez and Council Member Scott Abstained: 0 Enactment No: 029576 24 Professional services contract to study the need for new restrictions to protect aquatic life in Oso Bay Motion authorizing the City Manager, or designee, to execute a Contract for Professional Services contract with RPS Espey of Austin, Texas in the amount of $538,680.00 for the Oso Water Reclamation Plant Dissolved Oxygen Modeling for Oso Bay. The foregoing motion was passed and approved with the following vote: Aye: 9- MayorAdame, Council Member Adler, Council Member Allen, Council Member Elizondo, Council Member Leal, Council Member Loeb, Council Member Marez, Council Member Martinez and Council Member Scott Abstained: 0 Enactment No: M2012 -149 Corpus Christi Page 12 Printed on 8/7/2012 City Council Meeting Minutes - Draft July 31, 2012 25 Motion ratifying procurement of services for the removal of curbside debris Motion to ratify action to procure services from DRC Emergency Services for the removal of curbside debris on a cubic yard basis for an amount not to exceed $150,000.00. The foregoing motion was passed and approved with the following vote: Aye: 9- Mayor Adame, Council Member Adler, Council Member Allen, Council Member Elizondo, Council Member Leal, Council Member Loeb, Council Member Marez, Council Member Martinez and Council Member Scott Abstained: 0 Enactment No M2012 -150 M. FIRST READING ORDINANCES: (NONE) N. SPECIAL BUDGET CONSIDERATION ITEMS (ITEMS 26 - 34) PROPOSED CITY OF CORPUS CHRISTI FY 2012 -13 OPERATING BUDGET Mayor Adame referred to Item No., Proposed FY 2012 -2013 Operating Budget. Council Member Loeb made a remove his car allowance from his budget and distribute to the Street Maintenance Fund, seconded by Council Member Martinez and passed with the following vote: Adame, Adler, Allen, Elizondo, Leal, Loeb, Marez, Martinez, and Scott voting "Aye ". Council Member Scott made a motion to amend the budget by removing $250,000 from the Convention Center Maintenance Fund and add to the Convention Center Incentive Fund, seconded by Council Member Allen. Discussion followed. Mayor Adame deviated from the Council Agenda and moved to Public Comment scheduled for 4:00 pm. Q. Public Comment. Mayor Adame referred to the Public Comment scheduled for 4:00 pm. Abel Alonzo spoke in support of salary pay for city employees; Colin Sykes spoke in support of removing Proposition 9 from the ballot and spoke about improvements at McGee Beach including parking and pedestrian controls. Mayor Adame returned to Item No. 26. 26 Second Reading Ordinance - Adopting proposed FY 2012 -13 Operating Budget (First Reading 7/17/12) Ordinance adopting the City of Corpus Christi Budget for the ensuing Fiscal Year beginning August 1, 2012; to be filed with the County Clerk; appropriating monies as provided in the budget and providing for Corpus Christi Page 13 Printed on 8/7/2012 City Council Meeting Minutes - Draft July 31, 2012 severance. Mayor Adame returned to Item No. 26. Discussion continued on the motion made by Council Member Scott regarding the management contract. City Secretary Chapa read the motion made by Council Member Scott, and seconded by Council Member Allen: Motion to amend the budget by removing $250,000 from the Convention Center Maintenance Fund and add to the Convention Center Incentive Fund. The motion passed with the following vote: Adame, Adler, Allen, Elizondo, Leal, Marez, Martinez, and Scott voting "Aye "; Loeb voting "No ". Mayor Adame asked for comments from the audience. Abel Alonzo spoke in support of a salary increase for city employees: The foregoing ordinance was passed and approved on second reading as amended with the following vote: Aye: 8- Mayor Adame, Council Member Adler, Council Member Allen, Council Member Elizondo, Council Member Loeb, Council Member Marez, Council Member Martinez and Council Member Scott Nay: 1 - Council Member Leal Abstained: 0 Enactment No: 029577 27 Second Reading Ordinance - Ratifying increase in property tax revenues in 2012 -13 operating budget (First Reading 7/17/12) Ordinance to ratify increase of $1,880,999 in property tax revenues from last year's operating budget as reflected in the 2012 -2013 operating budget. The foregoing ordinance was passed and approved on second reading with the following vote: Aye: 8- Mayor Adame, Council Member Adler, Council Member Allen, Council Member Elizondo, Council Member Loeb, Council Member Marez, Council Member Martinez and Council Member Scott Nay: 1 - Council Member Leal Abstained: 0 Enactment No: 029578 PROPOSED FEE / RATE ADJUSTMENTS INCLUDED IN THE PROPOSED FY 2012 -13 OPERATING BUDGET Mayor Adame referred to Item Nos. 28 through 34. Dan Biles, Director of Engineering stated that in reference to Item No. 30, staff met with stakeholders regarding large events and parades and they are recommending a substitute ordinance. A motion was made by Council Member Loeb, seconded by Council Member Martinez to amend and replace with the new ordinance and passed. Corpus Christi Page 14 Printed on 8/7/2012 City Council Meeting Minutes - Draft July 31, 2012 28 Second Reading Ordinance - Fee increases for incentives to return Library items (First Reading 7/17/12) Ordinance amending Section 2 -79 "Fees" of the Code of Ordinances by defining lost item, referring accounts with a lost item to collection, modifying lost item fee processing, authorizing replacement library card fee, authorizing increase in overdue fees for audio /visual items; providing an effective date; providing for severance; and providing for publication. The foregoing ordinance was passed and approved on second reading with the following vote: Aye: 9- MayorAdame, Council Member Adler, Council Member Allen, Council Member Elizondo, Council Member Leal, Council Member Loeb, Council Member Marez, Council Member Martinez and Council Member Scott Abstained: 0 Enactment No: 029579 29 Second Reading Ordinance - Repealing the electronic processing fee for utility payments (First Reading 7/17/12) 30 Amending the Code of Ordinances, City of Corpus Christi, Chapter 17, Finance, by repealing Section 17 -3.1, regarding utility payments convenience fee; providing for severance; providing for publication; and providing for effective date of August 1, 2012. The foregoing ordinance was passed and approved on second reading with the following vote: Aye: 9- MayorAdame, Council Member Adler, Council Member Allen, Council Member Elizondo, Council Member Leal, Council Member Loeb, Council Member Marez, Council Member Martinez and Council Member Scott Abstained: 0 Enactment No: 029580 Second Reading Ordinance - Permit fee increases for traffic engineering application process (Related items 30 - 32) (First Reading 7/17/12) Fee increases for temporary street closures for neighborhood, small, large /special events and new fee for parades, walks, marches and sporting events Ordinance amending Section 49 -16 of the Code of Ordinances to revise and increase fees for temporary street closure permits, classify and add permit fees for parades, walks, marches, and sporting events, and provide authority for the traffic engineer to issue all temporary street closure permits; providing for severance; and providing for Corpus Christi Page 15 Printed on 8/7/2012 City Council Meeting Minutes - Draft July 31, 2012 publication. The foregoing ordinance was passed and approved on second reading as amended with the following vote: Aye: 9- MayorAdame, Council Member Adler, Council Member Allen, Council Member Elizondo, Council Member Leal, Council Member Loeb, Council Member Marez, Council Member Martinez and Council Member Scott Abstained: 0 Enactment No: 029581 31 Second Reading Ordinance - Fee increases for banner permits (First Reading 7/17/12) Ordinance amending Section 3- 3(2)(c) of the Code of Ordinances to increase the fee for a banner permit from $ 25.00 to $ 35.00; providing for severance; providing for publication. The foregoing ordinance was passed and approved on second reading with the following vote: Aye: 9- MayorAdame, Council Member Adler, Council Member Allen, Council Member Elizondo, Council Member Leal, Council Member Loeb, Council Member Marez, Council Member Martinez and Council Member Scott Abstained: 0 Enactment No: 029582 32 Second Reading Ordinance - Fee increases for Residential Traffic Management Program (First Reading 7/17/12) Ordinance amending Section 53 -88 of the Code of Ordinances to provide for an administrative fee of $ 100.00 to initiate a traffic calming study device process; providing for severance; and providing for publication. The foregoing ordinance was passed and approved on second reading with the following vote: Aye: 9- MayorAdame, Council Member Adler, Council Member Allen, Council Member Elizondo, Council Member Leal, Council Member Loeb, Council Member Marez, Council Member Martinez and Council Member Scott Abstained: 0 Enactment No: 029583 33 Second Reading Ordinance - Water rate and fee adjustments (First Reading 7/17/12) Ordinance amending the Code of Ordinances, City of Corpus Christi, Chapter 55, Utilities, regarding water rates and fees; providing for severance; providing an effective date; and providing for publication. Corpus Christi Page 16 Printed on 8/7/2012 City Council Meeting Minutes - Draft July 31, 2012 The foregoing ordinance was passed and approved on second reading with the following vote: Aye: 9- MayorAdame, Council Member Adler, Council Member Allen, Council Member Elizondo, Council Member Leal, Council Member Loeb, Council Member Marez, Council Member Martinez and Council Member Scott Abstained: 0 Enactment No: 029584 34 Resolution for adding recreational fees for FY 2012 -2013 Resolution adding new rental fees and recreational fees for fiscal year 2012 -2013; providing for publication; providing for effective date; and providing for severance. The foregoing resolution was passed and approved on second reading with the following vote: Aye: 9- MayorAdame, Council Member Adler, Council Member Allen, Council Member Elizondo, Council Member Leal, Council Member Loeb, Council Member Marez, Council Member Martinez and Council Member Scott Abstained: 0 Enactment No: 029585 0. FUTURE AGENDA ITEMS: (ITEMS 35 - 38) MayorAdame referred to the Future Agenda section, Items 35 through 38. Mayor Adame stated that these items are for informational purposes only and that no action would be taken at this time. City Manager Olson stated that staff would provide a presentation on Item No 38. 35 Rescinding purchase approval of a software interface to Starlims and approving purchase for Intergraph Corporation Motion rescinding the approval to purchase an interface for the Laboratory Information Management System (LIMS) and (Leads from STARLIMS Corporation of Hollywood, Florida and awarding the purchase of an interface for the Laboratory Information Management System (LIMS) and (Leads from Intergraph Corporation, Chicago, Illinois for a total expenditure of $73,625. Funds are available through the Coverdell Forensic Science Improvement Grant program and Municipal Information Systems. This Motion was recommended by staff to the Consent Agenda. 36 Agreement to use reclaimed water supply for irrigation of the Coastal Bend Texas State Veteran's Cemetery Resolution authorizing the City Manager, or designee, to execute an agreement with the State of Texas Veteran's Land Board to supply Corpus Christi Page 17 Printed on 8/7/2012 City Council Meeting Minutes - Draft July 31, 2012 effluent to irrigate the Coastal Bend Texas State Veteran's Cemetery. This Resolution was recommended by staff to the Consent Agenda. 37 Supplemental Agreement to determine responsibilities for the Billings & Clems parking lot improvements located on Park Road 22 Resolution authorizing the City Manager, or designee, to execute a Supplemental Agreement to the Master Multiple Use Agreement with the Texas Department of Transportation (TxDOT) for the Billings and Clems Parking Lot Improvements located within State right -of -way of Park Road 22 adjacent to the John F. Kennedy Memorial Causeway. This Resolution was recommended by staff to the Consent Agenda. FUTURE PUBLIC HEARING 38 Change of zoning from single family to general commercial located at 6210 South Padre Island Drive Case No. 0612 -01: CCLEL Investments, Inc.: A change of zoning from the "RS -6" Single - Family 6 District to the "CG -2" General Commercial District, resulting in a change of future land use from medium density residential to commercial. The property to be rezoned is a 2.30 -acre portion out of Lot 6, Section 13, Flour Bluff and Encinal Farm and Garden Tracts, located on the north side of South Padre Island Drive (SH 358) and east of Prince Drive. Planning Commission and Staff Recommendation (June 20, 2012): Approval of the change of zoning from the "RS -6" Single - Family 6 District to the "CG -2" General Commercial District. ORDINANCE Ordinance amending the Unified Development Code ( "UDC ") upon application by CCLEL Investments, Inc., on behalf of Leer Properties, Inc. ( "Owner"), by changing the UDC Zoning Map in reference to a 2.30 -acre portion out of Lot 6, Section 13, Flour Bluff and Encinal Farm and Garden Tracts from the "RS -6" Single - Family 6 District to the "CG -2" General Commercial District; amending the Comprehensive Plan to account for any deviations from the existing Comprehensive Plan; providing a repealer clause; providing for penalties; providing for publication; and declaring an emergency. This Emergency Ordinance was recommended by staff to Public Hearings. P. UPDATES TO CITY COUNCIL: (ITEM 39) 39 Proposed Public /Private Management Agreement for Corpus Christi Corpus Christi Page 18 Printed on 8/7/2012 City Council Meeting Minutes - Draft July 31, 2012 Museum of Science and History Mayor Adame referred to Item No. 39. Wes Pierson, Assistant City Manager provided an update on the Proposed Private Partnership for management of the Corpus Christi Museum of Science & History. Mr. Pierson stated that currently the Museum of Science & History has been operating under management and funding models that have proven unsustainable. He added that a solution to improve current performance is to transfer management of operations to Corpus Christi Museum Joint Venture (CCMJV) through a 24 month management agreement and move toward a long term lease management agreement. He added that the process included task force meetings, employee meetings, negotiating term, MOU converted to management agreement and museum director recruitment. Mr. Pierson discussed the timeline and the new governance and organizational structure. RECESS THE CITY COUNCIL MEETING: 40 Meeting of the Corpus Christi Housing and Finance Corporation (CCHFC) 1. Call meeting to order 2. Secretary Armando Chapa calls roll. 3. Approve minutes from Board meeting of February 28, 2012. 4. Treasurer's Report 5. Election of officers 6. Consider approval of an interim construction loan to CDG Housing Corpus Christi, Ltd. in connection with the development of The Villas at Woodbend. 7. Consider a resolution authorizing the General Manager to designate a person to act as his designee for executing documents of the CCHFC. 8. Public comment 9. Adjourn This Corporation Meeting was held RECONVENE THE CITY COUNCIL MEETING R. CITY MANAGER'S COMMENTS: Update on City Operations Corpus Christi Page 19 Printed on 8/7/2012 City Council Meeting Minutes - Draft July 31, 2012 City Manager Olson provided the following updates: 1) Animal Control is under renovations for the Kennel and offices to make the adoption of animals easier to the public, a new Veternarian has been hired and will begin employment next week; he added that in the last couple of months the Police Department has issued approximately 22,000 warning citations for traffic violations and other code violations and that beginning August 1, the Police Department would begin issuing citations; he added that the Marina reported an increase in visitors; and that the Parks & Recreations Department hosted the Texas Amateur Athletic Federation Games of Texas, which included 8,500 athletic participants in 12 different events and approximately 22,000 spectators. S. ADJOURNMENT There being no further business to come before the Council, Mayor Adame adjourned the meeting at 5:13 pm. Corpus Christi Page 20 Printed on 8/7/2012 a. ADVISORY COMMITTEE ON COMMUNITY PRIDE — Five (5) vacancies with terms to 8- 25-14. (Appointed by the Mayor with approval of the City Council.) DUTIES: To advise the Mayor and City Council on development and implementation of a comprehensive community pride campaign that will interrelate with the efforts and purpose of the Clean City Advisory Committee. COMPOSITION: The committee shall consist of eleven (11) members appointed by the Mayor with approval of the City Council to serve two -year terms. Of the initial members, six (6) members shall serve a two -year term and five (5) members shall serve a one -year term, as determined by a drawing to be conducted by the City Secretary's Office. Thereafter, all terms shall be two (2) years. The Director of Public Information and the Director of Neighborhood Services shall serve as ex- officio without vote. ORIGINAL MEMBERS TERM APPTD. DATE * *Stacy Richards 8 -25 -12 8 -25 -09 Stefany Tegeler Schade 8 -25 -13 12 -13 -11 * *Ryan Ridlehuber 8 -25 -12 8 -25 -09 Jason Haviland 8 -25 -13 12 -13 -11 *Oscar Carmona 8 -25 -12 5 -11 -10 Bob Copes 8 -25 -13 6 -19 -12 ** *Philip John Ramirez, A.I.A. 8 -25 -12 8 -25 -09 J. Kyle Davidson 8 -25 -13 8 -25 -09 *Tony Reyes 8 -25 -12 6 -28 -11 Elisa Macias 8 -25 -13 4 -27 -10 Christina Hernandez 8 -25 -13 6 -28 -11 Director of Public Information Ex- Officio, Nonvoting Director of Neighborhood Services Ex- Officio, Nonvoting Legend: * Seeking reappointment * *Not seeking reappointment ** *Resigned (Apptd. To another Board) ****Exceeded number of absences allowed by ordinance *****Has met six -year service limitation ATTENDANCE RECORD OF MEMBERS SEEKING REAPPOINTMENT NO. OF MTGS. NO. % OF ATTENDANCE NAME THIS TERM PRESENT LAST TERM YEAR Oscar Carmona 3 2(1 exc.) 67% Tony Reyes 3 3 100% INDIVIDUALS EXPRESSING INTEREST: Nicole Andrade Andi Baker Human Resource Manager, Texas State Aquarium. Received Associates Degree in Business Administration from Del Mar College and Bachelors in HR from Saint Leo University. Currently Pursing Masters Degree at Saint Leo University. Activities include: Corpus Christi Human Resource Management Association and Local American Society for Training and Development. (5/14/11) Realtor, Keller Williams Realty. Received BBA from University of North Texas. Activities include: Association of Realtors and Builders Association. (4/12/11) Jonathan Mike Barlow Parking Lot Attendant. Volunteers with Texas State Aquarium. (5/4/11) Sarah Lathrop Baugh Marjorie N. Boudreaux Alice Aparicio - Bussey Heather Butscher Luis F. Cabrera Chief Operating Officer, Dash Truck and Equipment Sales, Inc. Activities include: Cowboy Church Committee for Buc Days, Calallen Baptist Church, Junior League and Republican Party. (2/25/11) Director of Marketing & Communications, Goodwill Industries of South Texas. Received a BA in English from Texas A &M University — Corpus Christi. Activities include: American Marketing Association, Toastmasters International, and YWCA. (09/15/11) Realtor, Keller Williams Realty. Attended Del Mar College. Licensed Real Estate Agent over 25 years. Activities include: Keller Williams Cares, and Corpus Christi Citizens Police Alumni Association. (03/19/12) TTIPS (Tx. Title 1 Priority School) Social Worker, CCISD — Smith Elementary. Received a BS in Psychology from Texas A &M University - College Station, and a Masters in Social Work from University of Houston. Activities include: Raising Grandchildren Support Group, So. Tx. Social Work Society, CB Coordinated Community Response Coalition, CASA Community volunteer, and Spaulding for Children. (8/2/12) Human Resources Representative, Cintas Corporation. Received a BBA from Texas A &M- Corpus Christi. Professional with Human Resources certification. Activities include: Iglesia Maranatha volunteer, Corpus Christi Human Resource Management Association, and Young Business Professional of the Coastal Bend. (6/12/12) Yvonne Fernandez Frank E. Franklin Paul Gottemoller Bill J. Hoelscher Beth Kingsbury Kristina Leal Merchandising Executive for South Central Region, Macy's Department Store. Pursuing BBA and Management degree at Del Mar College, transferring to TAMU -CC. Activities include: Corpus Christi Hispanic Chamber of Commerce Embajador, Young Business Professionals of the Coastal Bend, and Alpha Beta Gamma. (07/31/12) Program Director, KRYS/KKTX/KMXR and K -99 DJ, Clear Channel Media + Entertainment. Received a BS in Agribusiness from Texas A &M University- Kingsville. Activities include: Corpus Christi Under 40, volunteers repeatedly with Driscoll Children's Hospital, American Cancer Society and MS Society -Lone Star Chapter events and walks for charity. (07/31/12) Political Science Instructor, Del Mar College. Holds a BA, MA, and PhD in Political Science. Serves as Del Mar's Political Science Program Coordinator. Activities include: Del Mar College Environmental Committee, volunteers with City's Parks, and Pride /Clean City clean -up or recycling events. (06/27/12) Executive Director, Coastal Bend AIDS Foundation. Received a BA in Psychology and an MS in Counseling from Corpus Christi State University (TAMUCC). He has worked with many non - profits over the years and is willing to give more time and service to the community. (11 /01 /11) Assistant Marketing Manager, HDR Engineering, Inc. Received BBA in Marketing from Texas A &M University - College Station and MBA from Texas A &M University- Corpus Christi. Activities Include: Nueces County A &M Club, Literacy Council, Lector Coordinator at St. Philip the Apostle and Leadership Corpus Christi. (1/7/11) Director of Operations, Corpus Christi Hispanic Chamber of Commerce. Holds a Bachelor's Degree in Human Relations and a minor in Business from the University of Oklahoma. Activities include: CCHCC - Mano -A -Mano Scholarship Selection Committee, and Mi Casa Es Su Casa Mixer, Big Brothers/Big Sisters mentor, CCHCC/Pride /Clean City Plastic Bag Meetings, Beach to Bay, Relay for Life, Susan G. Komen Breast Cancer Walk for the Cure, Art Walk, IWA Alumni Gala Committee, and Young Business Professionals. (8/3/12) Bryan Mayhood Ben Molina Evan Paret Sylvia Portales Belinda Rocha Matt Teifke, Jr. Jo Woolsey Director of Season Ticket Services, Corpus Christi Hooks Baseball Club. Graduated from Texas A &M University- Corpus Christi. Activities include: Heart Walk Committee. (1/5/11) General Manager, both Apex Engineers & Consultants and Pinnacle Roofing Systems. Activities include: Young Business Professionals, Habitat for Humanity, Corpus Christi "40 under 40" — 2011 recipient, former member Zoning Board of Adjustment. (3/7/12) Planning and Construction Department Student Worker, Texas A &M University- Corpus Christi. Pursuing a BS in Environmental Science, with minor in Business Administration from Texas A &M University- Corpus Christi. Activities include: Student Government Association, TAMUCC Environmental Advisory Council, Young Business Professionals, World Affairs Council of South Texas, Army ROTC Leadership Training, and Church of the Good Shepherd. (07/31/12) Retired. Formerly Senior Appraiser, Nueces County Tax Appraisal District. Attended Durhams Business School. Activities include: Hispanic Womens Network of Texas, and Volunteer at Senior Centers. Recipient of Ms. Congeniality in Ms. Coastal Bend Senior Pagent. (4/12/11) Director of Fund Development, Girl Scouts of Greater South Texas. (07/25/12) Realtor, Garron Dean & Associates Realtors. Currently 3rd year student at Texas A &M University — Corpus Christi, with History major, Social Work minor. Activities include: Big Brothers/Big Sisters of South Texas. (4/27/12) Self- Employed, Woolsey Legal Services. Attended Victoria Junior College. Previously worked in Legal field in Corpus Christi, now self - employed in Legal field. Activities include: Member of the Athenian Club. (7/31/12) b. COASTAL BEND COUNCIL OF GOVERNMENTS — One (1) vacancy with term to 4- 30 -13. DUTIES: Shall prepare and recommend to participating local governments, urban metropolitan, and rural area plans, looking to the present and future needs of the Region. Such plans may include recommendations for land use, traffic circulation, major streets and highways, general location of public works, the development of major educational facilities, and related problems of development. COMPOSITION: City shall appoint nine (9) members for two -years (but terms shall be at the complete discretion of the City Council), at least four (4) being elected officials. MEMBERS TERM Mayor Joe Adame 4 -30 -13 Council Member Larry Elizondo 4 -30 -13 Council Member John Marez 4 -30 -13 Council Member Mark Scott 4 -30 -13 Ron Olson, City Manager 4 -30 -13 ** *Rudy Garza, Assistant City Manager 4 -30 -13 Richie Quintero, Deputy Fire Chief 4 -30 -13 Oscar Martinez, Assistant City Manager 4 -30 -13 Bill Hennings 4 -30 -13 ALTERNATES Armando Chapa, City Secretary Pat Eldridge, Corpus Christi Police Department Margie Rose, Assistant City Manager Lawrence Mikolajczyk, Solid Waste Services Legend * * * - Resigned (City Manager Ron Olson is recommending the new appointment of Tom Tagliabue, Director of Intergovernmental Relations.) c. COMMISSION ON CHILDREN AND YOUTH — Two (2) vacancies with terms to 5 -01 -13 and 5 -01 -15 representing 1 — Education Rep., and 1 — At Large. DUTIES: To support a comprehensive system of services and advance policies to meet the needs of Corpus Christi's children, youth and their families. COMPOSITION: The commission shall consist of 14 members appointed by the City Council. One member shall be representative of each of the following fields: Health, Social Service, Religion, Legal, Law Enforcement, Education, Business, Youth Services, Sheriff's Office, and the District Attorney's Office. One member shall be a youth representative from 16 to 21 years of age at time of appointment. Each appointee shall have demonstrated interest in the welfare of children or youth through occupation or through association with community -based organizations. (On 10- 10 -95, Council approved the addition of a Police Officer to serve as an Advisory Member to be appointed by the Police Chief.) ORIGINAL MEMBERS TERMS APPTD. DATES Dr. Ridge Hammons (At Large), Chair 5 -01 -13 5 -11 -10 Roger Vasquez (Health) 5 -01 -15 5 -08 -12 ** *Liza N. Wisner (At Large), Vice -Chair 5 -01 -15 5 -05 -12 Michael D. Huddleston (Social Services) 5 -01 -14 1 -24 -12 Antonio Illas (Religion) 5 -01 -13 1 -24 -12 Danny Kollaja (Business) 5 -01 -14 3 -29 -11 Linda Hodge - Gambrill (Youth Services) 5 -01 -15 5 -08 -12 ** *Sally Ann Lewis (Education) 5 -01 -13 5 -11 -10 Delia Oliveira (At Large) 5 -01 -14 5 -11 -10 Isaac Valencia (Law Enforcement) 5 -01 -14 5 -13 -08 Fran Willms (Legal) 5 -01 -15 9 -25 -07 Denise Etheridge (Youth Rep.) 5 -01 -13 1 -24 -12 Clarissa Silva (D.A.'s Office) 5 -01 -15 7 -26 -11 Lt. Tara Rene Martin (Sheriff's Office) 5 -01 -13 10 -13 -09 Capt. Tim Wilson (Police Off.) Advisory 12 -06 -95 Legend: * Seeking reappointment * *Not seeking reappointment ***Resigned ****Exceeded number of absences allowed by ordinance *****Has met six -year service limitation INDIVIDUALS EXPRESSING INTEREST: Ron Antosko Financial Advisor, Bank of America — Merrill Lynch. Received MBA in International Trade and Series 7 License in securities. (At Large) (7/12/11) Heather Butscher Jennifer De La Mora TTIPS (Tx. Title 1 Priority School) Social Worker, CCISD — Smith Elementary. Received a BS in Psychology from Texas A &M University - College Station, and a Masters in Social Work from University of Houston. Activities include: Raising Grandchildren Support Group, So. Tx. Social Work Society, CB Coordinated Community Response Coalition, CASA Community volunteer, and Spaulding for Children. (Education) (Social Service) (8/2/12) Office Administrator, American Tire Distributors. Excellent event and family fundraiser organizer. Volunteers with school fundraisers, bake sales, etc. (At Large) (10/6/11) Jeff Fonseca Owner, Green Tree Lawn Care. Graduated Foy H. Moody High School. (At Large) (6/8/11) Jason M. McDonel Kesha Poncik Head Physical Education Coach, Luther Jones Elementary — CCISD. Former Juvenile Probation Officer, and P.E. Coach at the Nueces County Boot Camp. Received Bachelors in Education majoring in Kinesiology and Social Studies. Served 4 years in U.S. Marine Corps. (Education) (Youth Services) (12/15/11) Office Manager, Mike's Custom Upholstery and Interiors. Attending Del Mar College. Activities include: Hispanic Women's Network of Texas. (At Large) (6/6/11) d. HUMAN RELATIONS COMMISSION — One (1) vacancy with term to 6- 14 -14. (Appointed by the Mayor with approval of the City Council.) DUTIES: To study problems of group relationships within the City, and to devise and recommend to the Mayor and City Council ways and means of discouraging and combating prejudice, intolerance, and bigotry in all groups in their relations with one another; to discover all practices and policies calculated to create conflicts and tensions, and to recommend ways and means of eliminating any unfair or unjust discrimination by or against any person or group. Recommendations may be presented to the Mayor and City Council directly by the Committee or it may instruct the Human Relations Administrator to present them to the City Manager. COMPOSITION: Sixteen (16) members, fourteen (14) of whom shall be appointed by the Mayor with approval of the Council to study problems of group relationships within the City; one who shall represent the selling of dwellings, one who shall represent the renting of dwellings and one member of the staff of the Legal Aid Society to serve continuously, and three (3) shall not be more than 20 years of age at time of appointment serving one -year terms. Eleven (11) members shall serve three -year terms. The chair of the commission shall be designated by the Mayor. The Chairperson of the Committee for Persons with Disabilities serving as an ex- officio voting member. MEMBERS Ramiro H. Gamboa, Chairperson (6- 14 -12) Kathleen (Katy) Cooper Denise S. Villagran Abel Alonzo Edna Arredondo William "Mickey" Kramer, Jr. ***Robert Franklin Rev. Derrick Reaves Elias Valverde Margie Myers (Selling Dwellings) Toni Cole Davis (Rental Dwellings) Justin Cortez (Youth) Grace Roberson (Youth) Eleni Salazar (Youth) Carlos Vargas (Comm. Per. Dis. Chair) Carlos Aguinaga (Legal Aide Society) Legend: * Seeking reappointment * *Not seeking reappointment ***Resigned * ** *Exceeded number of absences allowed by ordinance *****Has met six -year service limitation TERMS 6 -14 -14 6 -14 -14 6 -14 -13 6 -14 -15 6 -14 -15 6 -14 -15 6 -14 -14 6 -14 -14 6 -14 -13 6 -14 -13 6 -14 -15 6 -14 -13 6 -14 -13 6 -14 -13 Ex- officio (Voting) Continuous ORIGINAL APPTD. DATES 1 -15 -08 2 -23 -10 6 -29 -10 2 -14 -12 8 -12 -08 6 -19 -12 8 -31 -10 7 -11 -06 6 -29 -10 7 -24 -07 7 -07 -09 6 -19 -12 6 -19 -12 6 -19 -12 (The Human Relations Commission is recommending the new appointment of Joel Mumphorci) OTHER INDIVIDUALS EXPRESSING INTEREST: Almira Flores Joel S. Mumphord Mary E. Wambach Radiology Technician, Christus Spohn Health Systems. Graduated from School of Radiology. Activities include: Coastal Bend Society of Radiology Technicians, World Affairs Council, So. Texas Institute of Arts, Women's Network of Texas, Community in Schools, Diabetes Walk, Relay for Life, former Sister City Committee. (12/22/11) Retired, Encycle, Inc. Served in Law Enforcement. Activities include: Host of T.V. Show, Community Action Agency, Molina Neighborhood Day Care, HIALCO President. (4/28/11) Executive Director, The Deaf and Hard of Hearing Center, Corpus Christi, TX. Received a BA in Psychology from New York University, N.Y.C., Attended Rochester Institute of Techonology, Rochester, NY. Previous activities include: Assn. of Indep. Living Centers in NY, Dutchess County N.Y. Human Rights Commission, National Council on Independent Living, Massachusetts Governor's Advisory Committee on Disability, MA Council on Human Service Providers, Maricopa County AZ Workforce Connections, City of Phoenix, E.O.D. /Compliance and Enforcement Div. — ADA Consultant, City of Phoenix, Youth Diversity Grant Review Team, County of San Diego, Long -Term Care/Mental Health Committee, United Way of Rhode Island, RI State Rehabilitation Commission, RI Developmental Disabilities Council /Cross Disability Network, Co- Founder: RI Voices for Equal Representation (RIVER). Previous colleague of TX. Dept. of Assistive & ehabilitative Services (DARS), Sorenson and PURPLE Communications, CSD, Z and other entities. (12/19/11) e. LEADERSHIP COMMITTEE FOR SENIOR SERVICES — Two (2) vacancies with terms to 2 -01 -13 and 2- 01 -14, each representing the category of Direct Service Agency. DUTIES: To assist the Senior Community Services division staff in the development of comprehensive senior citizens program plans; to advise the SCS division staff of the needs for services according to locally conceived priorities; to review and evaluate SCS operations; to increase recognition of volunteers and public awareness of the division by coordinating and planning special events; and to coordinate and plan fund raising activities to benefit SCS division goals. COMPOSITION: Fifteen (15) members representing the following categories: 2 - Senior center participants, 3 - Direct service agencies, and 10- Community representatives. Initially, eight (8) members shall be appointed for a term of one -year and seven (7) members shall be appointed to two -year terms. ORIGINAL MEMBERS TERM APPTD. DATE Dotson G. Lewis, Jr. (Community), Chair 2 -01 -13 4 -08 -08 Breanna Rye (Agency) 2 -01 -13 2 -14 -12 Henry Edward Savoy (Community) 2 -01 -13 2 -08 -11 * * *Maricela Rivera (Agency) 2 -01 -14 2 -14 -12 Patricia Byrd (Senior Ctr.) 2 -01 -13 7 -21 -09 Esperanza "Hope" Lopez (Senior Ctr.) 2 -01 -14 2 -23 -10 Vicki N. Garza (Community) 2 -01 -14 8 -26 -08 Willie R. Hardeman, Sr. (Community) 2 -01 -13 7 -26 -11 Billy Ray Sayles (Community) 2 -01 -13 7 -06 -10 Ida Alvarado Hobbs (Community) 2 -01 -14 7 -06 -10 Cindi Mutchler (Community) 2 -01 -14 2 -14 -12 Jose R. Villanueva (Community) 2 -01 -13 2 -08 -11 * ** *Gloria Gooding (Agency) 2 -01 -13 7 -06 -10 Kenneth Mutchler (Community) 2 -01 -14 2 -14 -12 Adelfa M. Martinez (Community) 2 -01 -14 2 -24 -09 Legend: * Seeking reappointment * *Not seeking reappointment ***Resigned ****Exceeded number of absences allowed by ordinance *****Has met six -year service limitation (The Leadership Committee for Senior Services recommends the realigning of Community At Large categories for both Billy Ray Sayles and Ida Hobbs to the category of Direct Service Agency. They also recommend the new appointment of Margaret Hawkins to Community At Large.) INDIVIDUALS EXPRESSING INTEREST: Ron Antosko Jonathan Barlow Margaret Hawkins Ida Alvarado Hobbs Anne F. Lee Billy Ray Sayles Financial Advisor, Bank of America — Merrill Lynch. Received MBA in International Trade and Series 7 License in securities. (Community) (7/12/11) Parking Lot Attendant. Volunteers with Texas State Aquarium. (Community) (5/4/11) Retired. Former Volunteer Coordinator for Senior Friends, Corpus Christi Medical Center. Holds a BS in Human Sciences and AAS Degree from Texas A &M University - Kingsville. Activities include: YWCA, Mid Morning Group, Rockport Coastal Bend Troop Support, and Patriot Guard Riders of South Texas. (Community) (4/24/12) Risk Manager/R.N., Corpus Christi Medical Center. Along with Leadership Committee for Senior Services, she also volunteers with Casa of the Coastal Bend. (Direct Service Agency) (8/6/12) Retired. Politically Active. Activities include: A.A.R.P., R.C. Sultanas Women's Organizations and Church Oriented Groups. (Community) (1/3/11) Employment Specialist, AARP Worksearch Foundation. Holds AAS, BA and MS degrees in Mental Health and Psychology. Along with Leadership Committee for Senior Services, other activities include: Advisory Member - Area Agency on Aging of the Coastal Bend, Certified Lay Speaker — United Methodist Church. (Direct Service Agency) (8/6/12) f PARK AND RECREATION ADVISORY COMMITTEE — Five (5) vacancies with terms to 8- 23 -14. 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 Lisa Ann Torres, Chair 8 -23 -13 6 -17 -08 Richard Avila 8 -23 -13 10 -10 -11 *****Rene Richard Gutierrez 8 -23 -12 10 -17 -06 *Huxley Smith 8 -23 -12 5 -26 -09 *Ron Woods 8 -23 -12 6 -17 -08 *Dorian E. Ramirez 8 -23 -12 4 -27 -10 Rita Sonia Herrera - Padron 8 -23 -13 5 -26 -09 Dr. Jinsun Kim 8 -23 -13 3 -11 -08 Sylvia Samaniego 8 -23 -13 12 -18 -07 *Rick Barrera 8 -23 -12 10 -12 -10 Carlos Haney, Vice -Chair 8 -23 -13 2 -24 -09 Legend: * Seeking reappointment * *Not seeking reappointment ***Resigned ****Exceeded number of absences allowed by ordinance *****Has met six -year service limitation (The Park and Recreation Advisory Committee recommends the reappointments of Huxley Smith, Ron Woods, Dorian Ramirez, and Rick Barrera. They also recommend the new appointment of Carlos H. Valdez, Sr.) ATTENDANCE RECORD OF MEMBERS SEEKING REAPPOINTMENT NO. OF MTGS. NO. % OF ATTENDANCE NAME THIS TERM PRESENT LAST TERM YEAR Huxley Smith 10 10 100% Ron Woods 10 8 80% Dorian E. Ramirez 10 10 100% Rick Barrera 10 9 90% OTHER INDIVIDUALS EXPRESSING INTEREST: Sarah Lathrop Baugh Bryan G. Hall Sal Hernandez Jason M. McDonel Anthony Mulheron Tanya C. Pulido Abel A. Sanchez Carlos H. Valdez, Sr. Chief Operating Officer, Dash Truck and Equipment Sales, Inc. Activities include: Cowboy Church Committee for Buc Days, Calallen Baptist Church, Junior League and Republican Party. (2/25/11) Showroom Manager, Janet Maxwell Business Interiors of Texas. Received a Bachelors of Business Administration with a focus on Management from Texas A &M University- Corpus Christi. Activities include: Delta Sigma Pi Fraternity, and volunteers at community events. (7/20/12) Administrative Assistant, Nueces County. Attends Del Mar College. Assists the Director of Human Services for Nueces County. Former Civil Service meeting /hearings coordinator for Nueces County. (6/20/12) Head Physical Education Coach, Luther Jones Elementary — CCISD. Former Juvenile Probation Officer, and P.E. Coach at the Nueces County Boot Camp. Received Bachelors in Education majoring in Kinesiology and Social Studies. Served 4 years in U.S. Marine Corps. (12/15/11) Quality Control Inspector, L3. Owner, AJM Tactical. Attends Liberty University Online. Activities include: Wounded Warrior. (5/2/11) Registered Nurse /Case Manager, CareStat Home Health Agency. Collaborates as a liaison with area physicians, clinics, fire department, and media for disabled and senior citizens. Created and maintains the CareState website with pertinent patient information. (6/18/12) Retired from U.S. Postal Service. Attended Del Mar College. Activities include: Volunteers at Veterans Center, Coastal Bend Council of Alcohol & Drugs, VA Outpatient Clinic and Golf Marshall at NAS -CC Golf Course. (4/12/11) Retired. Texas Master Gardener, Texas Master Naturalist. Activities include: Native Plant Society, El Paraiso Senior Housing and El Palacio Senior Housing Board Chairs, and Corpus Christi Camera Club. (6/19/12) AGENDA MEMORANDUM for the City Council Meeting of July 31, 2012 DATE: July 3, 2012 TO: Ronald L. Olson, City Manager FROM: Floyd Simpson, Chief of Police floyds(a cctexas.com 361- 886 -2603 Motion rescinding a software interface to Starlims and approving purchase of a software interface from Intergraph Corporation CAPTION: Motion rescinding the approval to purchase an interface for the Laboratory Information Management System (LIMS) and !Leads from STARLIMS Corporation of Hollywood, Florida and awarding the purchase of an interface for the Laboratory Information Management System (LIMS) and !Leads from Intergraph Corporation, Chicago, Illinois for a total expenditure of $73,625. Funds are available through the Coverdell Forensic Science Improvement Grant program and Municipal Information Systems. BACKGROUND AND FINDINGS: On March 27, 2012, via Motion No. M2012 -064, City Council approved an award for the purchase of a software interface with the Police Forensic Services' LIMS to Starlims Corporation. The recommendation in the agenda memorandum inadvertently named the awardee as Starlims Corporation, the manufacturer of the existing system, instead of Intergraph Corporation, which will be the company developing the required interface. The purpose of this agenda item is to correct the name of the awardee from Starlims Corporation to Intergraph Corporation. The Forensic Services Division of the Corpus Christi Police Department purchased the LIMS under the 2010 Coverdell Grant which provides for the collection, manipulation, storage and retrieval of information to determine how efficiently and effectively the laboratory is operating. This purchase will provide for the necessary interface between LIMS and !leads. Future support and maintenance costs will be requested in subsequent budget years. This is an expansion of a system already in use by the Health Department. Utilizing the same system allows for shared functional and technical resource support and reduces the costs associated with purchasing a new system ALTERNATIVES: None OTHER CONSIDERATIONS: None CONFORMITY TO CITY POLICY: Conforms to all city financial policies. EMERGENCY / NON - EMERGENCY: Non - emergency DEPARTMENTAL CLEARANCES: MIS Legal Grants FINANCIAL IMPACT: Fiscal Year: 2011- 2012 Project to Date Expenditures (CIP only) Current Year Future Years TOTALS Line Item Budget Encumbered / Expended Amount This item 73,625 13,975 87,600 BALANCE 73,625 13,975 87,600 Fund(s): General, Police Grants Fund Comments: RECOMMENDATION: Approval of the purchase. LIST OF SUPPORTING DOCUMENTS: iNTERG March 5, 2012 A City of Corpus Christi, Texas Mr. Philip Sepaugh Interim IT Program Coordinator 321 John Sartain Street Corpus Christi, TX 78401 Subject: LIMS Interface Dear Mr. Sepaugh: Intergraph Corporation Security, Government & Infrastructure P.O. Box 240000, Huntsville AL 35813 Phone: 256 - 730 -2000 http://publicsafety.intergraph.com Per Corpus Christi, Texas' request (hereafter "City "), Security, Govemment and Infrastructure a Division of Intergraph Corporation (hereafter "Intergraph ") is pleased to provide this Quote and below Statement of Work (SOW) to provide an interface to the Laboratory Information System (LIMS). Statement of Work Description Intergraph will create an import of incident attachments and supplemental information. Supplemental information may include a narrative, property items, vehicles, names, or charges. This interface is for evidence and should primarily be sending the narrative, attachments (forensics reports), property items, and vehicles (when they are evidence). Names and charges should already be associated with the incident from the officer's original report or supplemental report. This import would run on a scheduled basis and monitor a shared directory for .pdf files to be attached to an incident. These files will either be single files named with information identifying the incident they are associated with OR will be an .xml formatted file that contains incident and optional supplemental information along with a tag for the a .pdf file name. In the case of .xml files, a supplement to the identified incident will be created and the referenced pdf file will be attached to the new supplement. The LIMS vendor (STARLIMS) will not update the I /LEADS database directly. If adding attachments directly to the incident (without a supplement) then no data fields in the incident will be updated. If adding a supplement with or without an associated attachment, then only data fields in the supplement will be updated and only those fields that currently exist in the City I /LEAD system. Intergraph will create a web service that can be used by the LIMS vendor to create a property voucher and associated property records in I /LEADS. This web service would accept a NEW request from the LIMS system with xml formatted data that would identify the case and voucher information along with records for each piece of property on the voucher. The xml file must contain at least the I /LEADS minimum required data for creating a voucher and property records but could contain any appropriate data for creating a voucher and the associated property records as they exist in the version of I /LEADS installed at Corpus Christi. The web service will return to the LIMS system the property IDs for the requested pieces of property. Intergraph shall: 1) Provide single point of contact during project 2) Create an import of incident attachments and supplemental information as described above City shall: 1) Provide single point of contact during project 2) Confirm the installation of interface 3) Provide 24/7 VPN access (with login /password) Project Deliverables • Remote configuration and implementation • I /LEADS Web Service Interface — Property Records • I /LEADS Import Interface — Incidents and Supplemental information Assumptions • All services are remote • It is assumed that no additional fields will need to be added to I /LEADS to support this interface (with the possible exception of a LIMS ID for each piece of property). • The LIMS system will send I /LEADS picklist values for any field that uses picklist data entry and that all values sent will conform to I /LEADS data types and sizes Acceptance Criteria The interface shall be considered accepted with either written acceptance by the City, or within ten (10) calendar days following installation, whichever comes first. Schedule Scheduling of Intergraph training /services will occur: (i) upon receipt of this executed document, (ii) receipt of City's purchase order (if applicable), and (iii) City has no past due payments to Intergraph. Intergraph and the City will determine a mutually agreeable schedule for completion of the deliverables as described in this SOW. Price Pricing for this quote is in accordance with Intergraph quotation number CorpusChristi_LIMS Interface_$Q020112Ips1$.pdf which is provided as an attachment. This purchase is for project implementation services and custom interface software. Estimated first year maintenance has been included; actual maintenance will be quoted to City by Intergraph Maintenance Contracts upon shipment based on maintenance renewal date. Intergraph will update the City maintenance contract to reflect the new interfaces upon receipt of this signed document. Payment and Acceptance Terms Payment for this SOW will be due upon completion of the payment milestones set forth below. The terms of payment shall be net thirty (30) days from the date of invoice. An interest charge of two percent (2 %) per month (or the maximum amount allowed by law, whichever is less), prorated on the basis of a thirty (30) day month, will be assessed on delinquent payments. Page 2 of 22 Payment Milestone Upon execution of this SOW. Upon City's written acceptance that the services have been successfully completed.. Intergraph will submit the invoice(s) to: City of Corpus Christi, Texas Mr. Philip Sepaugh Interim IT Program Coordinator 321 John Sartain Street Corpus Christi, TX 78401 Please reference Attachment A -4 for Intergraph Remittance October 1, 2011. Please indicate your acceptance of this quote by your questions or require further information, please scott.pallack @intergraph.com. Payment Percentage i 50% 50% Instructions, which are updated and became effective signature on the following page. If you have any contact Scott Pallack at 954.415.7157 or Page 3 of 22 Approval Signatures By the signatures below, the City accepts the enclosed quote and agrees that the work to be performed is governed by the terms and conditions noted above and in Attachment A -1. Additionally, we agree that signatures by facsimile will be deemed to be an original signature and effective upon receipt by the other party. Authorized Intergraph Signature: i Name: Williams, Director, U.S. Sales Accounting Signatu =fit ;i Date: Authorized City Signature: Signature: City: Please check the appropriate box: A Purchase Order Will Not be issued. City signature above constitutes notice to Intergraph to proceed with this Statement of Work. A Purchase Order Will be issued and shall contain the following statement: This Purchase Order is issued in accordance with the Terms and Conditions contained in Intergraph's Statement of Work. This signed document, together with a Purchase Order, will be sent to the following address. For US Mail Delivery: For Shipping /Delivery including Overnight Services: Intergraph Corporation Attn: Doug Hawkins P.O. Box 240000 Huntsville, AL 35813 Intergraph Corporation Attn: Doug Hawkins 19 Interpro Road Madison, AL 35758 Page 4 of 22 Attachment A -1: Terms & Conditions Ownership in Data/Computer Software All computer software related deliverables (data, programs, or program enhancements) prepared under this SOW shall be the property of Intergraph and shall be licensed to the City pursuant to Intergraph's current End User Software License Agreement. Maintenance For any new purchases of Intergraph software described in this SOW, the City shall be responsible for placing the newly purchased software under maintenance following expiration of the applicable warranty period. If the software is not placed under maintenance, the cost of development and services required to migrate the current functionality to the new version will be added to all future system upgrades. Enhancements to this software are not provided under the maintenance agreement. For any software version upgrades described in this SOW, this upgraded software is provided at no cost to the City under the general terms of the Intergraph maintenance agreement. This maintenance agreement must be in effect and current before any scheduling or related work will occur. Warranty For any new software purchased as a part of this SOW, the following warranty applies. This warranty does not apply to software that is already covered under a paid maintenance agreement. Intergraph software is warranted to substantially conform to the user documentation, free from defects in material and workmanship for a period of thirty (30) days from installation. INTERGRAPH DISCLAIMS (TO THE EXTENT PERMITTED BY LAW) ALL WARRANTIES ON PRODUCTS FURNISHED HEREUNDER, EXCEPT THOSE SPECIFICALLY STATED ABOVE, INCLUDING ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE ABOVE WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, AND REPRESENTS THE FULL AND TOTAL OBLIGATION AND /OR LIABILITY OF INTERGRAPH. Disclaimer IN NO EVENT WILL INTERGRAPH BE LIABLE TO THE CITY FOR ANY INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES, ARISING OUT OF OR IN CONNECTION WITH ANY SERVICES OR DELIVERABLES PROVIDED UNDER THIS SOW, EVEN IF INTERGRAPH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. INTERGRAPH'S TOTAL LIABILITY FOR ANY AND ALL DAMAGES WHATSOEVER ARISING OUT OF OR IN ANY WAY RELATED TO THIS SOW FROM ANY CAUSE SHALL NOT EXCEED TWO TIMES THE VALUE OF THIS SOW. Infringement In the event of any proceeding against the City arising from allegations that the deliverables or services furnished by Intergraph infringes U.S. patent, copyright, trade secret, or other proprietary right of any third party, Intergraph will, if such allegation is not a result from modifications made by the City, defend or settle such proceeding, at Intergraph's expense, provided the City promptly notifies Intergraph in writing and grants Intergraph full authority to defend and settle such proceeding. Intergraph shall make such defense by counsel of its own choosing and the City shall cooperate with said counsel. Page 5 of 22 Force Majeure Neither party shall be deemed to be in default of any provision of this SOW or be liable for any delay, failure in performance, or interruption of service resulting from acts of war, acts of terrorism, acts of God, acts of civil or military authority, civil disturbance, or any other cause beyond its reasonable control. Taxes Prices are exclusive of all federal, state or local sales, use, property, gross receipts, value added or similar taxes based upon amounts payable to Intergraph pursuant to this SOW ( "Taxes "). Such Taxes, however do not include franchise taxes or taxes based on net income. The City agrees to pay Intergraph any applicable Taxes or provide Intergraph documentary evidence of an appropriate statutory exemption. Governing Law This SOW shall for all purposes be construed and enforced under and in accordance with the laws of the State of Texas. Place of Performance The City agrees to provide appropriate work place accommodations, computer equipment, software, and necessary access for Intergraph personnel. Insurance Intergraph will comply with insurance requirements set forth in Attachment A -2. Entire Agreement These terms and conditions, the Intergraph quotation, together with any attachments hereto, constitute the entire agreement between the parties with respect to the subject matter hereof; all prior agreements, representations, statements, negotiations, and undertakings are superseded hereby. Page 6 of 22 NT Attachment A -2: Insurance Requirements INSURANCE REQUIREMENTS INTERGRAPH'S LIABILITY INSURANCE Intergraph must not commence work under this agreement until all insurance required herein has been obtained and such insurance has been approved by the City. The Intergraph must not allow any subcontractor to commence work until all similar insurance required of the subcontractor has been obtained. Intergraph must fumish to the City's Risk Manager two (2) copies of Certificates of Insurance with applicable policy endorsements, showing the following minimum coverage by insurance company(s) acceptable to the City's Risk Manager. The City must be named as an additional insured for the General liability policy and a blanket waiver of subrogation is required on all applicable policies. TYPE OF INSURANCE MINIMUM INSURANCE COVERAGE 30 -Day written notice of cancellation is required on all certificates or by policy endorsement(s) COMMERCIAL GENERAL LIABILITY including: 1. Commercial Broad Form 2. Premises — Operations 3. Products/ Completed Operations 4. Contractual Liability 5. Independent Contractors 6. Personal Injury Bodily Injury and Property Damage $1,000,000 COMBINED SINGLE LIMIT Per occurrence /aggregate ELECTRONIC PROFESSIONAL LIABILITY including: $1,000,000 COMBINED SINGLE LIMIT per Coverage provided must cover officers, directors claim /aggregate employees and agents 1. ERRORS AND OMMISIONS In the event of accidents of any kind related to this agreement, Intergraph must furnish the Risk Manager with copies of all reports of such accidents within ten (10) days of accident. II. ADDITIONAL REQUIREMENTS A. Contractor's financial integrity is of interest to the City; therefore, subject to Contractors right to maintain reasonable deductibles. Contractor shall obtain and maintain in full force and effect for the duration of this Contract, and any extension hereof, at Contractor's sole expense, insurance coverage written on an occurrence or claims made basis, by companies authorized and admitted to do business in the State of Texas and with an A.M. Best's rating of no less than A -VII. B. Contractor agrees that with respect to the above required insurance, all will 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 professional liability policy; Page 7 of 22 • Provide notice directly to City of any suspension, cancellation, non - renewal or material change in coverage. Within thirty (30) calendar days of a suspension, cancellation, or non - renewal of coverage, Contractor shall provide a replacement Certificate of Insurance and applicable endorsements to City. City shall have the option to suspend Contractor'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 agreement. In addition to any other remedies the City may have upon Contractor'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 Contractor to stop work hereunder, and /or withhold any payment(s) which become due to Contractor hereunder until Contractor demonstrates compliance with the requirements hereof. Nothing herein contained shall be construed as limiting in any way the extent to which Contractor may be held responsible for payments of damages to persons or property resulting from Contractor's or its subcontractor's performance of the work covered under this agreement. It is agreed that Contractor's insurance shall be deemed primary and 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 agreement. It is understood and agreed that the insurance required is in addition to and separate from any other obligation contained in this agreement. Page 8 of 22 • A • Attachment A-3: Project Deliverable Sign Off Form PROJECT DELIVERABLE SIGN OFF FORM CUSTOMER NAME, ANYWHERE USA — PROJECT NAME Submission Date: Month/Day/Year j Sign-Off Target Date: ...„ Submitted By: Intergraph Contact Name I Submitted To Customer Contract #: Customer Contract Number : Customer/Project #: TYPE OF DELIVERABLE p SOW Tasks fl Payments DELIVERABLE DESCRIPTION THIS SECTION DESCRIBES THE DELIVERABLE Month/Day/year Customer Contact Name Intergraph Project Number n Plans/Designs E] Training DELIVERABLE INFORMATION SAMOUNT OF PYMT (If applicable} 0 With the deliverable described above complete, the Customer shall have five (5) working days to either sign-off that the deliverable has been met or state in writing to Intergraph the reason the deliverable has not been met_ Sign-off of the delivera ble shall be based solely upon the deliverable meeting the requirements stated in the Agreement between Intergraph and CUSTOMER NAME dated Month/Day/Year and shall be indicated by the Customer signing the Project Deliverable Sign-off Form, If the Customer does not provide such sign•off or rejection within the five day working period then the deliverable will be deemed to have been signed off. The signature below acknowledges that the deliverable described in the Agreement and listed above meets all of the appropriate criteria and supersedes all prior requirements for this item. Customer acknowledges completion of this payment milestone according to the Contract Payment Milestone Schedule and provides authorization to invoice this milestone. SIGNATURE Authorized Customer Representative Customer Contact Name Page 9 of 22 DATE Attachment A -4: Intergraph Corporation SGI Division Remittance Instructions Effective October 1, 2011 International U.S. Dollars Wire Transfer from Banks Outside of the United States: Pay To: SWIFT Code: ESSEUS33 Bank: SEB (Skandinaviska Enskilda Banken), New York, NY, USA Account Name: Intergraph Corporation SGI Division Account Number: 00007583 Intermediary Bank Information: SWIFT Code: IRVTUS3N Bank Name: Bank of New York Mellon, New York, NY Domestic Wire Transfer from U.S. Banks: ABA Number: 021000018 Bank Name: Bank of New York Mellon, New York, NY Favor Of: Bank: SEB (Skandinaviska Enskilda Banken), Account Number 890 043 9688 For further credit to: Intergraph Corporation SGI Division, Account Number 00007583 EFT Receipts via Automated Clearing House (ACH): Account Number: 1030429611 Company Name: Intergraph Corporation SGI Routing Number: 043000096 Beneficiary Bank name: PNC Bank N.A. Address: Pittsburgh, PA 15222 Phone #1 - 877 - 824 -5001, Opt 1 and Opt 3 Contact: Lockbox Group, Product Client Services Checks: Send your prepay check or remit payment upon receipt of invoice by regular US Mail to: Intergraph Corporation SGI Division 7104 Solution Center Chicago, IL 60677 -7001 If you have questions regarding the accompanying invoice or new remittance instructions, please call Cathy Simpson at 1- 256- 730 -8403 or Kim Johnson at 256- 730 -2130. INTERGRAPH CONTACT FOR ALL PAYMENT NOTICES: Cathy.Simpson @intergraph.com Security, Govemment, & Infrastructure 19 Interpro Road Madison, AL 35758 -0015 Phone: 256.730.2000 www.intergraph.com TIN: 63-0573222 Correspondence Only: PO Box 240000 Huntsville, AL 35813 Page 10 of 22 iNTERG Attachment A -5: End User License Agreement IMPORTANT —READ CAREFULLY: This End -User License Agreement for Intergraph Corporation ( "EULA ") is a legal agreement by and between "you" (either an individual or a single legal entity) and Intergraph Corporation d /b /a the Security, Government and Infrastructure division of Intergraph ( "Intergraph ") for the Intergraph software product(s) ( "SOFTWARE PRODUCT ") delivered with this EULA, which includes the computer software, object code copy, and all of the contents of the files, disk(s), CD- ROM(s) or other media with which this EULA is provided, including any templates, printed materials, and online or electronic documentation, all copies, and any modified versions, fixes, patches and Updates of the SOFTWARE PRODUCT, if any, licensed to you by Intergraph. Any software, including, without limitation, any modified versions, fixes, patches and /or Updates provided along with the SOFTWARE PRODUCT that is associated with a separate end -user license agreement is licensed to you under the terms of that license agreement. By installing, copying, downloading, accessing or otherwise using the SOFTWARE PRODUCT, you agree to be bound by the terms of this EULA, which shall take precedence over any other document and shall govern your use of the SOFTWARE PRODUCT, unless you have a signed license agreement with Intergraph that specifically addresses the licensing of the SOFTWARE PRODUCT, in which case the signed license agreement shall take precedence and shall govem your use of the SOFTWARE PRODUCT. You agree that this EULA is enforceable against you the same as any written, negotiated contract signed by you. If you do not agree to the terms of this EULA, you are not authorized to, and you shall not, download, install or use the SOFTWARE PRODUCT. 1. DEFINITIONS. As used in this EULA, the following terms are defined as follows and other capitalized terms set forth in this EULA shall have the meaning ascribed to them in this EULA: 1.1 "Primary License" means the license(s) of the SOFTWARE PRODUCT provided to you for general production use as authorized by this EULA. 1.2 "READ -ME file" means a computer text file that contains information a User may need to install or operate a SOFTWARE PRODUCT program. 1.3 "Supplementary License" means a license(s) of the SOFTWARE PRODUCT which is made available by Intergraph for select SOFTWARE PRODUCTS to augment Primary Licenses for special purposes. Each Supplementary License requires a Primary License and the term of the Supplementary License shall not exceed the term of the applicable Primary License. 1.4 "System" means any collection of your computers sharing a single licensing server or a set of redundant licensing services. 1.5 "Update" means any Upgrade, modified version, fix, patch and/or update of the SOFTWARE PRODUCT. 1.6 "Upgrade" means each new release of the SOFTWARE PRODUCT. Upgrades require a full installation and may be provided with a separate EULA. The EULA delivered with the Upgrade will supersede any EULA associated with prior releases of the SOFTWARE PRODUCT. 1.7 "User" means you or any individual authorized by you to use the SOFTWARE PRODUCT pursuant to the terms and conditions of this EULA. A User may also include your contractor who requires temporary use of the SOFTWARE PRODUCT to provide services on your behalf. 1.8 "XML Files" means the XML (Extensible Markup Language) files generated by the SOFTWARE PRODUCT, where applicable. 1.9 "XSL Stylesheets" means the XSL (Extensible Stylesheet Language) presentation of a class of XML Files which, when included with the SOFTWARE PRODUCT, describe how an instance of the class is transformed into an XML (Extensible Markup Language) document that uses the formatting vocabulary. 2. LICENSE GRANT. Provided you are not in breach of any term or condition of this EULA, Intergraph hereby grants you a limited, non - exclusive license to install and use the SOFTWARE PRODUCT, in object code form only, strictly for your internal use and strictly in accordance with this EULA. The license is non - transferable, except as specifically set forth in this EULA. You assume full responsibility for the selection of the SOFTWARE Page 11 of 22 PRODUCT to achieve your intended results, and for the installation, use and results obtained from the SOFTWARE PRODUCT. 2.1 Minimum Requirements. The SOFTWARE PRODUCT may require your System to comply with specific minimum software, hardware and /or Internet connection requirements. The specific minimum software, hardware and /or Internet connection requirements vary by SOFTWARE PRODUCT and per type of license and are available from Intergraph upon request. 2.2 License Type and Mode. SOFTWARE PRODUCTS are licensed as either Primary Licenses or Supplementary Licenses. There are six (6) types of Supplementary Licenses as described below. Depending on your license, a license may be used in either Concurrent -Use mode or Node - Locked mode. The license type and mode for the SOFTWARE PRODUCT you subscribed to or obtained will be designated (per the abbreviations set forth below) in the product description set forth on the proposal, quote or packaging provided with the SOFTWARE PRODUCT, and, if an electronic license manager tool is incorporated in the SOFTWARE PRODUCT, verified by the Intergraph license system. If not otherwise indicated, your license type and mode will be a Node - Locked Primary License. Each license of the SOFTWARE PRODUCT is subject to the terms of this EULA. 2.2.1 Concurrent -Use mode (CC) allows for the checking in and checking out of the total available licenses of the SOFTWARE PRODUCT for Users. At any point, you may run as many copies of the SOFTWARE PRODUCT as you have licenses. If the SOFTWARE PRODUCT is enabled to be run in a disconnected mode, as set forth in the READ -ME file, a User may check out a license from the System for mobile or home use, thus reducing the total number of licenses available in the license pool until the license is checked back in to the System. If the SOFTWARE PRODUCT is not enabled to be run in a disconnected mode, the mobile or home computer will require a Node - Locked License. If the anticipated number of Users of the SOFTWARE PRODUCT will exceed the number of applicable licenses, and in the absence of a license manager tool incorporated in the SOFTWARE PRODUCT, you must use a reasonable mechanism or process to assure that the number of persons using the SOFTWARE PRODUCT concurrently does not exceed the number of licenses. 2.2.2 Node - Locked mode (NL) allows a single copy of the SOFTWARE PRODUCT to be stored on hard disk and loaded for execution on a single designated workstation, or, for software designed for use on a handheld device, for execution on a single designated handheld device. 2.2.3 Supplementary Licenses are described below: (a) Backup License (BCK) is licensed solely for "cold standby" when manual switchover of the SOFTWARE PRODUCT to the Supplementary License is required in the event of failure of the Primary License. (b) Developer's License (DEV) is a license of a Web -based SOFTWARE PRODUCT that is delivered solely in connection with the Primary License of such SOFTWARE PRODUCT for the purposes of developing and testing your website built only with the SOFTWARE PRODUCT. Developer's Licenses shall not be used for production purposes (i.e. a fully deployed website). (c) Load Balancing License (LOB) is a license of a Web -based SOFTWARE PRODUCT solely for use as a second or successive license on a web cluster to balance the load with the Primary License. (d) Redundant License (RDT) is licensed solely for "hot standby" when automatic switchover of the SOFTWARE PRODUCT to the Supplementary License is required in the event of failure of the Primary License. (e) Test License (TST) is licensed solely for testing purposes. However, Intergraph also allows a Test License to be used to conduct no -cost training on test servers for a maximum of thirty (30) days per year. Page 12 of 22 iNTERG (f) Training License (TRN) is licensed solely for training purposes. 2.3 Updates. If the SOFTWARE PRODUCT is an Update to a previous version of the SOFTWARE PRODUCT, you must possess a valid license to such previous version in order to use the Update. The SOFTWARE PRODUCT and any previous version may not be used by or transferred to a third party. All Updates are provided to you on a license exchange basis and are subject to all of the terms and conditions of the EULA provided with the latest version of the SOFTWARE PRODUCT. By using an Update, you (i) agree to voluntarily terminate your right to use any previous version of the SOFTWARE PRODUCT, except to the extent that the previous version is required to transition to the Update; and (ii) acknowledge and agree that any obligation that Intergraph may have to support the previous version(s) of the SOFTWARE PRODUCT will end upon availability of the Update. If an Update is provided, you will take prompt action to install such Update as directed by Intergraph. If you fail to do so, you acknowledge that the SOFTWARE PRODUCT may not work correctly or that you will not be able to take advantage of all of the SOFTWARE PRODUCT's available features. In such event, Intergraph will not be liable for additional costs you incur as a result of your failure to install such Update. 3. RIGHTS AND LIMITATIONS. Please see specific exceptions and additional terms related to GeoMedia Viewer Software, Beta Software, Evaluation Software, and Educational Software set forth at the end of this EULA. 3.1 THE FOLLOWING ARE PERMITTED FOR YOUR LICENSE: 3.1.1 You may make one copy of the SOFTWARE PRODUCT media in machine readable or printed form and solely for backup purposes. Intergraph retains ownership of all User created copies. You may not transfer the rights to a backup copy unless you transfer all rights in the SOFTWARE PRODUCT and license as provided for in Section 3.1.2. 3.1.2 You may transfer the SOFTWARE PRODUCT and license within your company (intra- company transfer), subject to the Intergraph Security, Govemment & Infrastructure Software Transfer Policy ( "SG &I Software Transfer Policy ") and the terms of this EULA. The SG &I Software Transfer Policy is available from Intergraph upon request. If you transfer the SOFTWARE PRODUCT, you must at the same time either transfer all copies, modifications, or merged portions, in whatever form, to the same party, or you must destroy those not transferred. 3.1.3 For a SOFTWARE PRODUCT intended for use on Web -based systems: (a) You may run multiple Web applications with a single license. (b) You may distribute client side web page plug -ins (e.g. ActiveX controls, Java applets) to Users. (c) You may load this SOFTWARE PRODUCT on multiple machines within a hardware cluster that is acting as a single web server, provided you have obtained the applicable number of Load Balancing Licenses from Intergraph and the total number of map servers deployed do not exceed the quantity licensed. (d) You may only use the Developer's License for development and testing of your website. 3.1.4 Unless otherwise stated in the READ -ME file, you may only copy and distribute the Java script source files to support the SOFTWARE PRODUCT's output vector map type and your associated websites, and you may prepare derivative works solely for your internal use. 3.1.5 Unless otherwise stated in the READ -ME file, for SOFTWARE PRODUCTS which contain XSL Stylesheets for presenting XML Files, you may only use the XSL Stylesheets and derivative works thereof for the purpose of presenting XML Files and derivative works thereof (collectively, "XML Products ") for your enterprise. You may not distribute the XSL Stylesheets or XML Products on a stand -alone basis. XSL Stylesheets may not be used in the production of libelous, defamatory, fraudulent, lewd, obscene or pornographic material, or any material that infringes upon any third party intellectual property rights, or otherwise in any illegal manner. All XSL Stylesheets supplied with the SOFTWARE PRODUCT are and will remain the property of Intergraph. Page 13 of 22 Unless otherwise stated in the READ -ME file, for SOFTWARE PRODUCTS that are delivered with a public Application Programming Interface ( "API ") and/or configuration set -up, you may use the API and /or configuration set -up to customize and /or configure the SOFTWARE PRODUCT, but only to the extent permitted by the API and /or configuration set -up. You hereby agree to assign to Intergraph (without the need for any additional approval or documentation) any and all rights (if any) you have or obtain in any such customization and /or configuration. Intergraph does not make any representations or warranties with respect to such customization and /or configuration and to the maximum extent permitted by applicable law, Intergraph and its suppliers disclaim all warranties, either express or implied, relating to such customization and /or configuration, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, high risk use and non - infringement. Your use of such customization and /or configuration is solely at your own risk, and you hereby agree to indemnify and hold harmless Intergraph and its suppliers with respect to such customization and /or configuration. You shall not sell, rent, license, lease, lend or otherwise transfer any such customization and /or configuration, except pursuant to an intra- company transfer and per the terms and conditions of this EULA. 3.1.6 You are responsible, and bear the sole risk, for backing up all systems, software, applications, and data, as well as properly using the SOFTWARE PRODUCT. 3.1.7 At all times, you must keep, reproduce and include all copyright, patent, trademark and attribution notices on any copy, modification or portion of the SOFTWARE PRODUCT, including, without limitation, when installed, used, checked out, checked in and /or merged into another program. 3.2 THE FOLLOWING ARE PROHIBITED FOR YOUR LICENSE: 3.2.1 You may not sell, rent, license, lease, Tend or otherwise transfer the SOFTWARE PRODUCT, or any copy, modification, or merged portion thereof, to another company or entity (i.e. inter- company transfer) or person. Any such unauthorized transfer will result in automatic and immediate termination of the license. 3.2.2. You may not, and you may not authorize anyone else to, decompile, disassemble, or otherwise reverse engineer the SOFTWARE PRODUCT. 3.2.3. You may not, and you may not authorize anyone else to, work around any technical limitations in the SOFTWARE PRODUCT. 3.2.4 You may not, and you may not authorize anyone else to, publish the SOFTWARE PRODUCT for others to copy or use. 3.2.5 You may not, and you may not authorize anyone else to, use, copy, modify, license or transfer the SOFTWARE PRODUCT, or any copy, modification, or merged portion, in whole or in part, except as expressly provided for in this EULA. 3.2.6 You may not, and you may not authorize anyone else to, re -use the component parts of the SOFTWARE PRODUCT with a different software product from the one you are licensed to use or on different computers. The SOFTWARE PRODUCT is licensed as a single product. 3.2.7 You may not, and you may not authorize anyone else to, circumvent any license mechanism in the SOFTWARE PRODUCT or the licensing policy. 3.2.8 You may not, and you may not authorize or allow anyone else to, use or view the SOFTWARE PRODUCT for any purposes competitive with those of Intergraph. 3.2.9 You may not, and you may not authorize anyone else to, use the SOFTWARE PRODUCT except as expressly set forth in this EULA. 3.2.10 For desktop software that is Node- Locked: (a) You may not run the SOFTWARE PRODUCT for Web applications. (b) You may not allow the SOFTWARE PRODUCT to be used by multiple Users on a single workstation at the same time. Page 14 of 22 iNTERG 3.2.11 You may not, and you may not authorize or allow anyone else to, use the Developer's License for production purposes (i.e., a fully - deployed website). 3.2.12 You may not, and you may not authorize or allow anyone else to, publish to a third party any results of benchmark tests run on the SOFTWARE PRODUCT. The sample and demo data set(s) and related script(s) delivered with some SOFTWARE PRODUCTS (the "Sample Data ") are provided solely for the purpose of inbtructing the User on how to use the SOFTWARE PRODUCT with which the Sample Data are delivered. The Sample Data are licensed in conjunction with the SOFTWARE PRODUCT and are not to be redistributed, licensed, sold, transferred, used or otherwise dealt with in a production solution without Intergraph's prior written consent. 3.2.13 You may not, and you may not authorize anyone else to, use the SOFTWARE PRODUCT outside the country in which it is licensed without the prior written consent of Intergraph. 3.2.14 The SOFTWARE PRODUCT is not one hundred percent (100 %) fault - tolerant. The SOFTWARE PRODUCT is not designed or intended for use in any situation where failure or fault of any kind of the SOFTWARE PRODUCT could lead to death or serious bodily injury of any person, or to severe physical, property or environmental damage ( "High Risk Use "). You are not licensed to use the SOFTWARE PRODUCT in, or in conjunction with, any High Risk Use. High Risk Use is STRICTLY PROHIBITED. High Risk Use includes, for example, the following: operation of aircraft or other modes of human mass transportation, nuclear or chemical facilities, and Class III medical devices. You hereby agree not to use the SOFTWARE PRODUCT in, or in connection with, any High Risk Use. 3.3 Indemnification by You. You agree to hold harmless and indemnify Intergraph for any causes of action, claims, costs, expenses and /or damages resulting to Intergraph from a breach by you or any User of any of the limitations or prohibited actions set forth in this EULA. 4. TERM. This EULA is effective until terminated or until your software subscription expires without being renewed. You may terminate this EULA at any time by permanently destroying the SOFTWARE PRODUCT together with all copies, modifications and merged portions in any form. Intergraph may also immediately terminate this EULA if you fail to comply with the terms and conditions of this EULA, or if you fail to pay the appropriate license or subscription fee(s). You agree upon the earlier of the termination of this EULA or expiration of your software subscription to cease using and to permanently destroy the SOFTWARE PRODUCT (and any copies, modifications and merged portions of the SOFTWARE PRODUCT in any form, and all of the component parts of the SOFTWARE PRODUCT). 5. AUDIT. Intergraph shall have the right, during your normal business hours, to audit your use of the SOFTWARE PRODUCT and your compliance with the provisions of this EULA. Intergraph will provide you with thirty (30) days prior written notice of an audit. The right of audit shall be limited to twice per calendar year. Prior to the start of an audit, Intergraph's personnel will sign a reasonable non - disclosure agreement provided by you. During the audit, you shall allow Intergraph's personnel to be provided reasonable access to both your records and personnel. The cost of the audit shall be paid by Intergraph unless the results of the audit indicate that you have underpaid fees to Intergraph, in which case, you agree to promptly pay Intergraph such fees at the price previously agreed to for the SOFTWARE PRODUCT license or software subscription plus interest on such underpayments from the original due date at the lesser of two percent (2 %) per month or the highest rate allowed by applicable law, and you further agree to bear all costs associated with the audit. 6. INTELLECTUAL PROPERTY 6.1 Ownership 6.1.1 Software. ALL SOFTWARE PRODUCTS ARE PROPRIETARY PRODUCTS OF INTERGRAPH AND ADDITIONAL THIRD PARTIES, AND ARE PROTECTED BY COPYRIGHT LAWS AND INTERNATIONAL TREATIES. TITLE TO SOFTWARE PRODUCTS AND ALL COPIES, MODIFICATIONS AND MERGED PORTIONS OF A SOFTWARE PRODUCT SHALL AT ALL TIMES REMAIN WITH INTERGRAPH AND SUCH THIRD PARTIES. SOFTWARE PRODUCTS are licensed, not sold pursuant to this EULA. Intergraph and additional third parties retain all Page 15 of 22 right, title and interest in and to all SOFTWARE PRODUCTS, including, but not limited to, all Intellectual Property rights in and to each SOFTWARE PRODUCT. All rights not expressly granted to you by this EULA or other applicable third party software license agreement or terms and conditions are reserved by Intergraph and such third parties. 6.1.2 Intellectual Property. You acknowledge and agree that Intergraph and third party manufacturers, as applicable, own all rights in and to Intergraph's and the applicable third party manufacturer's trade names, and no right or license is granted to you pursuant to this EULA to use such trade names. You also acknowledge and agree that Intergraph and third party manufacturers, as applicable, own all right, title and interest in and to all intellectual property relating to and for the SOFTWARE PRODUCT, including, without limitation, patents, trademarks, copyrights, inventions (whether registerable or not), trade secrets, concepts, ideas, methods, techniques, formulae, algorithms, logic designs, screen displays, schematics, and source and object code computer programs (collectively, "Intellectual Property "). If you bring a patent claim against Intergraph or any third party manufacturer over patents you claim are being infringed by the SOFTWARE PRODUCT, your patent license from Intergraph and any applicable third party manufacturer(s) for the SOFTWARE PRODUCT automatically ends. 6.2 Intellectual Property Infringement. 6.2.1 Remedy by Intergraph. In the event the SOFTWARE PRODUCT is, in Intergraph's opinion, likely to or becomes the subject of a claim of infringement of any duly issued U.S. Intellectual Property or other proprietary rights of a third party, Intergraph may, at its sole option and expense (a) procure for you the right to continue using the SOFTWARE PRODUCT; (b) modify the SOFTWARE PRODUCT to make it non - infringing, but functionally the same; (c) replace the SOFTWARE PRODUCT with a SOFTWARE PRODUCT which is non - infringing, but functionally the same; or (d) provide a prorated refund to you of the actual amount you paid Intergraph for the SOFTWARE PRODUCT. 6.2.2 Indemnification by You. In the event any proceeding (suit, claim, or action) is based (in whole or in part) on modifications, enhancements or additions made by you or any person or entity on your behalf, or your use of the SOFTWARE PRODUCT in combination with other products not furnished by Intergraph, you agree to hold harmless and defend, at your sole cost and expense, all of Intergraph's right, title and interest in and to the SOFTWARE PRODUCT, as well as Intergraph's goodwill and reputation both in good faith and at a standard as if the claim is made against you. You shall reimburse Intergraph any defense expenses inclusive of reasonable attorneys' fees expended by Intergraph in defense of said claim, and pay any judgment rendered against Intergraph. You shall make such defense by counsel of your choosing and Intergraph shall reasonably cooperate with said counsel at your sole cost and expense. You shall have sole control of said defense, but you shall allow Intergraph to reasonably participate in its own defense and you shall reasonably cooperate with Intergraph with respect to the settlement of any claim. Notwithstanding the foregoing, Intergraph may at any time decide to take over any defense of Intergraph at Intergraph's cost and expense and you shall render full cooperation and assistance to transfer such defense to Intergraph and with respect to such defense. 6.3 DISCLAIMER OF INTELLECTUAL PROPERTY WARRANTIES AND LIMITATION OF LIABILITY. THE INTELLECTUAL PROPERTY LIMITED WARRANTIES SET FORTH IN THIS EULA ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, RELATED TO INTELLECTUAL PROPERTY INFRINGEMENT AND THESE INTELLECTUAL PROPERTY LIMITED WARRANTIES ALONG WITH THE STATED REMEDIES REPRESENT THE FULL AND TOTAL WARRANTY OBLIGATION AND LIABILITY OF INTERGRAPH WITH REGARD TO INTELLECTUAL PROPERTY INFRINGEMENT. THE INTELLECTUAL PROPERTY LIMITED WARRANTIES PROVIDE YOU WITH SPECIFIC LEGAL RIGHTS. YOU MAY HAVE OTHER RIGHTS, WHICH VARY FROM JURISDICTION TO JURISDICTION. IF ANY PART OF THIS DISCLAIMER OF EXPRESS OR IMPLIED WARRANTIES OR LIMITATION OF LIABILITY IS RULED INVALID, THEN INTERGRAPH DISCLAIMS EXPRESS OR IMPLIED Page 16 of 22 INTERG WARRANTIES AND LIMITS ITS LIABILITY TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW. IF A GREATER WARRANTY OR LIABILITY IS MANDATED PURSUANT TO THE LAW HELD APPLICABLE TO THIS AGREEMENT, THEN INTERGRAPH WARRANTS THE SOFTWARE PRODUCT AND PROVIDES LIABILITY TO THE MINIMUM EXTENT REQUIRED BY SAID LAW. 7. LIMITED WARRANTIES. 7.1 Intergraph warrants to you for a period of thirty (30) days from the date of shipment that the SOFTWARE PRODUCT delivery media will be free of defects in material and workmanship, provided the SOFTWARE PRODUCT is used under normal conditions and in strict accordance with the terms and conditions of this EULA. You agree to promptly notify Intergraph of any unauthorized use, repair or modification, or misuse of the SOFTWARE PRODUCT, as well as any suspected defect in the SOFTWARE PRODUCT delivery media. 7.2 Intergraph warrants that it has the right to grant you this license. 7.3 THE ABOVE LIMITED WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, AND REPRESENT THE FULL WARRANTY OBLIGATION OF INTERGRAPH. THE LIMITED WARRANTIES PROVIDE YOU WITH SPECIFIC LEGAL RIGHTS. YOU MAY HAVE OTHER RIGHTS, WHICH VARY FROM JURISDICTION TO JURISDICTION. IF THIS WARRANTY SECTION DOES NOT ADHERE TO LOCAL LAWS, THEN THE MINIMUM WARRANTY TERM PRESCRIBED BY THE LAWS OF YOUR JURISDICTION SHALL APPLY. 8. WARRANTY DISCLAIMERS. ALL WARRANTIES PROVIDED PURSUANT TO THIS EULA ARE VOID IF FAILURE OF A WARRANTED ITEM RESULTS DIRECTLY, OR INDIRECTLY, FROM AN UNAUTHORIZED USE OR MISUSE OF A WARRANTED ITEM, INCLUDING, WITHOUT LIMITATION, USE OF A WARRANTED ITEM UNDER ABNORMAL OPERATING CONDITIONS OR UNAUTHORIZED MODIFICATION OR REPAIR OF A WARRANTED ITEM OR FAILURE TO ROUTINELY MAINTAIN A WARRANTED ITEM. EXCEPT AS SPECIFICALLY SET FORTH IN THIS EULA, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, INTERGRAPH AND ITS SUPPLIERS DISCLAIM ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, RELATING TO THE SOFTWARE PRODUCT, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, HIGH RISK USE AND NON - INFRINGEMENT. INTERGRAPH DOES NOT WARRANT THAT ANY SOFTWARE PRODUCT WILL MEET YOUR REQUIREMENTS, AND UNDER NO CIRCUMSTANCES DOES INTERGRAPH WARRANT THAT ANY SOFTWARE PRODUCT WILL OPERATE UNINTERRUPTED OR ERROR FREE. THE SOFTWARE PRODUCT IS PROVIDED "AS IS" AND YOU BEAR THE SOLE RISK OF USING THE SOFTWARE PRODUCT. IF ANY PART OF THIS DISCLAIMER OF EXPRESS OR IMPLIED WARRANTIES IS RULED INVALID, THEN INTERGRAPH DISCLAIMS EXPRESS OR IMPLIED WARRANTIES TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW. IF A GREATER WARRANTY OR LIABILITY IS MANDATED PURSUANT TO THE LAW HELD APPLICABLE TO THIS AGREEMENT, THEN INTERGRAPH WARRANTS THE SOFTWARE PRODUCT AND PROVIDES LIABILITY TO THE MINIMUM EXTENT REQUIRED BY SAID LAW. 9. LIMITATION OF LIABILITY. YOU ASSUME FULL AND COMPLETE LIABILITY FOR YOUR USE OF THE SOFTWARE PRODUCT. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL INTERGRAPH OR ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF USE OR PRODUCTION, LOSS OF REVENUE OR PROFIT, LOSS OF DATA, LOSS OF BUSINESS INFORMATION, BUSINESS INTERRUPTION, CLAIMS OF THIRD PARTIES OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF THIS AGREEMENT AND /OR THE USE OF OR INABILITY TO USE THE SOFTWARE PRODUCT, EVEN IF INTERGRAPH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL INTERGRAPH BE LIABLE FOR ANY CLAIM, DAMAGES, OR OTHER LIABILITY ARISING OUT OF, OR IN CONNECTION WITH, THE DOWNLOADING, VIEWING, USE, DUPLICATION, DISTRIBUTION OR DISCLOSURE OF ANY SAMPLE DATA PROVIDED BY INTERGRAPH, INCLUDING, BUT NOT LIMITED TO, ANY CLAIM, LIABILITY OR DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR LOSS OR CORRUPTION OF DATA ARISING FROM, OUT OF OR IN CONNECTION WITH, THE SAMPLE DATA OR THE USE OR OTHER DEALINGS Page 17 of 22 WITH THE SAMPLE DATA. INTERGRAPH'S ENTIRE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS EULA SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU TO INTERGRAPH FOR THE SOFTWARE PRODUCT OR SOFTWARE SUBSCRIPTION AT ISSUE AT THE TIME THE INITIAL EVENT GIVING RISE TO THE CLAIM OCCURS. EXCEPT AS OTHERWISE PROVIDED BY APPLICABLE LAW, NO CLAIM, REGARDLESS OF FORM, ARISING OUT OF OR RELATING TO THIS EULA MAY BE BROUGHT BY YOU MORE THAN ONE (1) YEAR FOLLOWING THE INITIAL EVENT GIVING RISE TO THE CAUSE OF ACTION. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. IF ANY PART OF THIS SECTION IS HELD INVALID, THEN INTERGRAPH LIMITS ITS LIABILITY TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW. 9.1 In the event the SOFTWARE PRODUCT does not substantially comply with the limited warranties set forth in this EULA, Intergraph's entire liability and your exclusive remedy shall be, in Intergraph's sole and absolute discretion, either (i) the modification, repair or replacement of the SOFTWARE PRODUCT; or (ii) a prorated refund to you of the actual amount you paid Intergraph for the SOFTWARE PRODUCT for the period of time that the SOFTWARE PRODUCT did not substantially conform to the limited warranties set forth in this EULA. 9.2 Intergraph is acting on behalf of its suppliers for the sole purpose of disclaiming, excluding and/or limiting obligations, warranties and liability as provided in this EULA, but in no other respects and for no other purpose. 10. RESTRICTIONS. 10.1 United States Government Restricted Rights. If the SOFTWARE PRODUCT (including any Updates, documentation or technical data related to such SOFTWARE PRODUCT) is licensed, purchased, subscribed to or obtained, directly or indirectly, by or on behalf of a unit or agency of the United States Govemment, then this Section 10.1 also applies. 10.1.1 For civilian agencies: The SOFTWARE PRODUCT was developed at private expense and is "restricted computer software" submitted with restricted rights in accordance with the Federal Acquisition Regulations ( "FAR ") 52.227 -19 (a) through (d) (Commercial Computer Software — Restricted Rights). 10.1.2 For units of the Department of Defense: The SOFTWARE PRODUCT was developed at private expense and is "commercial computer software" submitted with restricted rights in accordance with the Defense Federal Acquisition Regulations ( "DFARS ") DFARS 227.7202 -3 (Rights in commercial computer software or commercial computer software documentation). 10.1.3 Notice: This SOFTWARE PRODUCT is "commercial computer software" as defined in DFARS 252.227 -7014 (Rights in Noncommercial Computer Software) and FAR 12.212 (Computer Software), which includes "technical data" as defined in DFARS 252.227 -7015 (Technical Data) and FAR 12.211 (Technical Data). All use, modification, reproduction, release, performance, display or disclosure of this "commercial computer software" shall be in strict accordance with the manufacturer's standard commercial license, which is attached to and incorporated into the governing Government contract. Intergraph and any applicable third party software manufacturer(s) are the manufacturer. This SOFTWARE PRODUCT is unpublished and all rights are reserved under the Copyright Laws of the United States. 10.2 Export Restrictions. This SOFTWARE PRODUCT, including any technical data related to this SOFTWARE PRODUCT, is subject to the export control laws and regulations of the United States. Diversion contrary to United States law is prohibited. This SOFTWARE PRODUCT, including any technical data related to this SOFTWARE PRODUCT and any derivatives of this SOFTWARE PRODUCT, shall not be exported or re- exported, directly or indirectly (including via remote access), under the following circumstances: 10.2.1 To Cuba, Iran, North Korea, Sudan, or Syria, or any national of these countries. 10.2.2 To any person or entity listed on any United States government denial list, including, but not limited to, the United States Department of Commerce Denied Persons, Entities, and Unverified Page 18 of 22 Lists (www.bs,doc : ov/ comlianceandenf orcemenliststoeck,htm), the United States Department of Treasury Specially Designated Nationals List ( .treas,gov /offices /enforcernent/gfac /), and the United States Department of State Debarred List (http, // .pmddtc. state .qov /complianceidebar.html). 10.2.3 To any entity if you know, or have reason to know, the end use is related to the design, development, production, or use of missiles, chemical, biological, or nuclear weapons, or other unsafeguarded or sensitive nuclear uses. 10.2.4 To any entity if you know, or have reason to know, that an illegal reshipment will take place. 11. If the SOFTWARE PRODUCT you received is identified on the media as being ITAR- controlled, this SOFTWARE PRODUCT has been determined to be a defense article subject to the U.S. International Traffic in Arms Regulations (ITAR). Export of this SOFTWARE PRODUCT from the United States must be covered by a license issued by the Directorate of Defense Trade Controls (DDTC) of the U.S. Department of State or by an ITAR license exemption. This SOFTWARE PRODUCT may not be resold, diverted, or transferred to any country or any end user, or used in any country or by any end user other than as authorized by the existing license or ITAR exemption. Subject to the terms of this EULA, this SOFTWARE PRODUCT may be used in other countries or by other end users if prior written approval of DDTC is obtained. 12. You agree to hold harmless and indemnify Intergraph for any causes of actions, claims, costs, expenses and /or damages resulting to Intergraph from a breach by you or any User of the export restrictions set forth in this EULA. Any questions regarding export or re- export of the SOFTWARE PRODUCT or concerning ITAR restrictions, if applicable, should be addressed to Intergraph's Export Compliance Department at 170 Graphics Drive, Madison, Alabama, United States 35758 or at exportcompliancet" .intrraph.corn. You agree to hold harmless and indemnify Intergraph for any causes of actions, claims, costs, expenses and /or damages resulting to Intergraph from a breach by you or any User of the export restrictions set forth in this EULA. Any questions regarding export or re -export of the SOFTWARE PRODUCT or concerning ITAR restrictions, if applicable, should be addressed to Intergraph's Export Compliance Department at 170 Graphics Drive, Madison, Alabama, United States 35758 or at exportcompliance +intergraph,com. 12.1 Territorial Use Restriction. Unless otherwise specifically permitted in writing by Intergraph, use of the SOFTWARE PRODUCT outside the country in which it is licensed is strictly prohibited. 12.2 Non - disclosure. You understand that Intergraph possesses information and data, including, without limitation, Intellectual Property, that was developed, created or discovered by Intergraph, or which has become known to or has been conveyed to Intergraph, which has commercial value in Intergraph's day - to -day business ( "Confidential Information "). Intergraph considers such Confidential Information to be proprietary and confidential. You agree to treat and maintain as proprietary and confidential Intergraph's Confidential Information and any information or data provided by Intergraph, in whatever form, as you would treat your own proprietary and confidential information and data, but in any event, no less than with reasonable care, and to comply with all license requirements, copyright, patent, trademark and trade secret laws as they may pertain to any of Intergraph's Confidential Information or other information or data provided by Intergraph. 13. GENERAL 13.1 Entire Agreement. You acknowledge that you have read this EULA, understand it and agree to be bound by its terms and conditions. You further agree that this EULA is the complete and exclusive statement of the agreement between you and Intergraph relating to the subject matter of this EULA and that this EULA supersedes any proposal or prior agreement, oral or written, and any other communications between you and Intergraph relating to the subject matter of this EULA. This EULA may be amended only by a written instrument signed by both you and Intergraph; provided however, certain Intergraph SOFTWARE PRODUCTS and Updates may be subject to additional terms and conditions contained in a EULA Addendum or separate EULA that is delivered with the applicable SOFTWARE PRODUCT or Update. Any reproduction of this EULA made by reliable means (for example, printed, photocopy or facsimile) will be deemed an original. Page 19 of 22 iNTERG 13.2 Severability. Whenever possible, each provision of this EULA shall be interpreted in such a manner as to be effective and valid under applicable law. However, if any provision of this EULA shall be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity without invalidating the remainder of such provision or the remaining provisions of this EULA. 13.3 Headings. The various headings in this EULA are inserted for convenience only and shall not affect the meaning or interpretation of this EULA or any section or provision of this EULA. 13.4 No Waiver. Any failure by either party to enforce performance of this EULA shall not constitute a waiver of, or affect said party's right to avail itself of, such remedies as it may have for any subsequent breach of the terms of this EULA. 13.5 Notices. Any notice or other communication ( "Notice ") required or permitted under this EULA shall be in writing and either delivered personally or sent by electronic mail, facsimile, overnight delivery, express mail, or certified or registered mail, postage prepaid, return receipt requested. A Notice delivered personally shall be deemed given only if acknowledged in writing by the person to whom it is given. A Notice sent by electronic mail or facsimile shall be deemed given when transmitted, provided that the sender obtains written confirmation from the recipient that the transmission was received. A Notice sent by overnight delivery or express mail shall be deemed given twenty-four (24) hours after having been sent. A Notice that is sent by certified mail or registered mail shall be deemed given forty -eight (48) hours after it is mailed. If any time period in this EULA commences upon the delivery of Notice to any one or more parties, the time period shall commence only when all of the required Notices have been deemed given. Intergraph's address for Notices is Intergraph Corporation, 170 Graphics Drive, Madison, Alabama 35758, Attn: Legal Department, 256- 730 -2333. 13.6 Assignment. Neither party shall have the right to assign any of its rights nor delegate any of its obligations under this EULA without the prior written consent of the other party, except that Intergraph may assign its rights and obligations under this EULA, without your approval, to (i) an entity which acquires all or substantially all of the assets of Intergraph or the Intergraph division providing a product or service subject to this EULA; (ii) an entity which acquires all or substantially all of the product or product line assets subject to this EULA; or (iii) any subsidiary, affiliate or successor in a merger or acquisition of Intergraph. Any attempt by you to sublicense, assign or transfer the license or the SOFTWARE PRODUCT, except as expressly provided in this EULA, is void and immediately terminates the license. 13.7 Other Intergraph software products. If you have or use other Intergraph software products, please read this EULA and all other terms and conditions carefully, as there may be differences in the terms and conditions. 13.8 Limited Relationship. The relationship between you and Intergraph is that of independent contractors and neither you nor your agents shall have any authority to bind Intergraph. 13.9 Governing Law; Venue and Jurisdiction. This EULA shall for all purposes be construed and enforced under and in accordance with the Laws of the State of Alabama and shall have been deemed to have been accepted in Madison, Alabama, United States. You and Intergraph agree that any legal action or proceeding arising, directly or indirectly, out of or relating to this EULA shall be instituted in the Circuit Court for Madison County, Alabama, United States or the United States District Court for the Northern District of Alabama, Northeastern Division. You and Intergraph agree to submit to the jurisdiction of and agree that venue is proper in these courts for any such legal action or proceedings. This EULA shall not be governed by the conflict of law rules of any jurisdiction or the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. 13.10 WAIVER OF JURY TRIAL. INTERGRAPH AND YOU EACH HEREBY WAIVE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT EITHER MAY HAVE TO A TRIAL BY JURY FOR ANY LEGAL PROCEEDING ARISING, DIRECTLY OR INDIRECTLY, OUT OF OR RELATING TO THIS EULA. BOTH INTERGRAPH AND YOU (I) CERTIFY THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER; AND (II) ACKNOWLEDGE THAT BOTH INTERGRAPH AND YOU HAVE BEEN Page 20 of 22 INDUCED TO ENTER INTO THIS EULA BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS WAIVER OF JURY TRIAL. 13.11 Injunctive Relief; Cumulative Remedies. You acknowledge and agree that a breach of this EULA by you could cause irreparable harm to Intergraph for which monetary damages may be difficult to ascertain or may be an inadequate remedy. You agree that Intergraph will have the right, in addition to its other rights and remedies, to seek and obtain injunctive relief for any breach of this EULA by you, and you expressly waive any objection that Intergraph has or may have an adequate remedy at law with respect to any such breach. The rights and remedies set forth in this EULA are cumulative and concurrent and may be pursued separately, successively or together. 13.12 Attorneys' Fees and Costs. In the event of any legal proceeding arising out of or relating to this EULA, the prevailing party in such action shall be entitled to an award of its reasonable attorneys' fees and costs for all such legal proceedings, including for trial and all levels of appeal. 13.13 Governing Language. The controlling language of this EULA is English. If you received a translation of this EULA into another language, it has been provided for your convenience only. 13.14 USE OUTSIDE THE UNITED STATES. If you are located outside the United States, then the provisions of this section shall also apply: (i) Les parties en presence confirment leur volonte que cette convention de meme que tous les documents y compris tout avis qui s'y rattachent, soient rediges en langue anglaise (Translation: "The parties confirm that this agreement and all related documentation is and will be in the English language. "); and (ii) You are responsible for complying with any local laws in your jurisdiction which might impact your right to import, export or use the SOFTWARE PRODUCT, and you represent that you have complied with any and all regulations or registration procedures required by applicable law to make this EULA fully enforceable. 13.15 Survival. The provisions of this EULA which require or contemplate performance after the expiration or termination of this EULA shall be enforceable notwithstanding said expiration or termination. 14. ADDITIONAL TERMS FOR SPECIFIC SOFTWARE PRODUCTS. 14.1 GeoMedia Software — Additional Terms. The software license specifically for GeoMedia Viewer permits copies to be stored on hard disk and loaded for execution on one or more workstations. The GeoMedia Viewer software may be freely copied, transferred and loaned both inside and outside your company. 14.2 Beta Software - Additional Terms. If the SOFTWARE PRODUCT you received with this EULA is pre - commercial release or beta software ( "Beta Software "), then the following additional terms apply. To the extent that any provision in this section is in conflict with any other terms or conditions in this EULA, this section shall supersede such other terms and conditions with respect to the Beta Software, but only to the extent necessary to resolve the conflict. You shall hold all information concerning Beta Software and your use and evaluation of such information and the Beta Software (collectively, "Beta Software Information ") in confidence and with the same degree of care you use to keep your own similar information confidential, but in no event shall you use less than a reasonable degree of care; and you shall not, without the prior written consent of Intergraph, disclose such Beta Software Information to any person or entity for any reason at any time; provided, however, it is understood that you may disclose any Beta Software Information to those of your representatives who actually need such information for the purpose of participating in the proposed evaluation and testing ( "Beta Testing ") of the Beta Software, on the condition that, prior to such disclosure, such representative has been made aware of the terms of this EULA. You shall not use any Beta Software Information for any reason or purpose other than as necessary for Beta Testing. You agree to make no other use of the Beta Software Information or to incorporate any Beta Software Information into any work or product. You acknowledge that the Beta Software is a pre - release, beta version, does not represent final product from Intergraph, and may contain bugs, errors and other problems that could cause system or other failures and data loss. THE BETA SOFTWARE IS PROVIDED TO YOU "AS -IS ", AND INTERGRAPH DISCLAIMS ALL WARRANTY AND LIABILITY OBLIGATIONS TO YOU OF ANY KIND. You may use the Beta Software only for evaluation and testing and not for general production use. You acknowledge that Intergraph has not promised or guaranteed to you that Beta Software or any portion thereof will be announced or made available to anyone in the future, Intergraph Page 21 of 22 1 has no express or implied obligation to you to announce or introduce the Beta Software and that Intergraph may not introduce a product similar to or compatible with the Beta Software. Accordingly, you acknowledge that any research or development that you perform regarding the Beta Software or any product associated with the Beta Software is done entirely at your own risk. During the term of this EULA, if requested by Intergraph, you will provide feedback to Intergraph regarding Beta Testing, including error or bug reports. Upon receipt of a later unreleased version of Beta Software or release by Intergraph of a publicly released commercial version of the SOFTWARE PRODUCT, you agree to return or permanently destroy all earlier Beta Software received from Intergraph. You agree that you will return or destroy all unreleased versions of the Beta Software within thirty (30) days of the completion of Beta Testing when such date is earlier than the date for Intergraph's first commercial shipment of the publicly released commercial software. 14.3 Evaluation Software - Additional Terms. If the SOFTWARE PRODUCT you have received with this EULA is provided specifically for evaluation purposes ( "Evaluation Software "), then the following section applies until such time that you purchase a license of the full retail version of the SOFTWARE PRODUCT. To the extent that any provision in this section is in conflict with any other term or condition in this EULA, this section shall supersede such other terms and conditions with respect to the Evaluation Software, but only to the extent necessary to resolve the conflict. You may use the Evaluation Software only for evaluation and testing and not for general production use. You acknowledge that the Evaluation Software may contain limited functionality and /or may function for a limited period of time. Intergraph is licensing the Evaluation Software on an "AS -IS" basis, solely for your evaluation to assist in your purchase decision. If the Evaluation Software is a timeout version, then the program will terminate operation after a designated period of time following installation (the "Time Out Date "). Upon such Time Out Date, the Evaluation Software license will cease operation and you will not be able to use the SOFTWARE PRODUCT, unless you purchase a license for a full retail version of the SOFTWARE PRODUCT. You acknowledge that such Evaluation Software shall cease operation upon the Time Out Date and accordingly, access to any files or output created with such Evaluation Software or any product associated with the Evaluation Software is done entirely at your own risk. 14.4 Educational Software Product — Additional Terms. If the SOFTWARE PRODUCT you have received with this EULA is Educational Software Product (where either an education price is paid for the SOFTWARE PRODUCT, or the SOFTWARE PRODUCT is received by virtue of your participation in an Intergraph program designed for educational or research institutions, or is received through an education grant from Intergraph), you are not entitled to use the SOFTWARE PRODUCT unless you qualify in your jurisdiction as an Educational End User. You may use the Educational Software Product only for educational and research purposes. Commercial and general production use of Educational Software Products is specifically prohibited. Additional terms and conditions, as well as the definition of an Educational End User, are detailed in Intergraph's Education Policy which is available from Intergraph upon request. Page 22 of 22 Price Quote for Corpus Christi, TX Valid through 03/28/2012 Laborato Information S stem Interface US$ 11-CorChrisTX4 US$ US$ hem Deseription y Functional Use Purpose I/LEADS Import Interface (Incident Attachments and Supplemental Info) (IPSRMSCUST-1) I/LEADS Web Service Interface (Property Records) (IPSRMSCUST-2) RMS Implementation Services Sub -Total Exclusive of Discount, Maintenance & Taxes One Time System Discount Grand Total Exclusive of Maintenance, Taxes 1 1 1 Unit Pri`ce Tcot Price _ _ _ 32,500 37,375 $ 11,750 $ 32,500 37,375 $ 11,750 81,625 for initial purchase only 1 8,000) $ 6,500 7,475 $ 13,975 Tax Exemption assumed 73,625 Notes: 1. Estimated first year software maintenance has been included in this quote. Actual maintenance price will be quoted by Intergraph Maintenance Contracts upon shipment based on maintenance renewal date. 2. Intergraph requires remote access to the customers' servers to complete the effort as quoted. 3. Sales tax is not included in this quote. Final sales tax billed will reflect the applicable tax rates at time of sale as required by law. CorpusChristi_LIMS Interface_SQ020112Ips1S Intergraph Confidential and Proprietary Information Page 1 of 1 13,975 AGENDA MEMORANDUM for the City Council Meeting of August 14, 2012 DATE: June 26, 2012 TO: Ronald L. Olson, City Manager FROM: Daniel Biles, P. E., Interim Director of Engineering Services danb @cctexas.com (361) 826 -3729 Foster Crowell, Director of Wastewater Services fosterc@cctexas.com (361) 826 -1801 Execute Agreement Coastal Bend Texas State Veteran's Cemetery Reclaimed Water Supply for Irrigation CAPTION: Resolution authorizing the City Manager, or designee, to execute an agreement with the State of Texas Veteran's Land Board to supply effluent to irrigate the Coastal Bend Texas State Veteran's Cemetery. PURPOSE: The purpose of this Agenda Item is to execute the agreement with the State of Texas Veteran's Land Board to supply effluent to irrigate the Coastal Bend Texas State Veteran's Cemetery. BACKGROUND AND FINDINGS: The Veteran's Land Board (VLB) in cooperation with the Texas General Land Office (GLO) owns, operates and maintains the Coastal Bend Texas State Veterans Cemetery located at the intersection of IH 37 and Fulton Corridor in Corpus Christi. The Cemetery has certain landscaped areas that the VLB desires to irrigate with reclaimed or effluent water supplied by the City of Corpus Christi. The reclaimed water will replace the VLB's potable water for landscape irrigation and will allow the City of Corpus Christi and the VLB to conserve potable water. The Agreement details the City's supply of reclaimed water to the VLB for landscape irrigation, and the VLB's receipt of the reclaimed water. The proposed Agreement supports the City's commitment made in a Memorandum of Agreement with the Veterans Land Board of the State of Texas (VLB Contract No. 09- 052 - 000 - 3409). C: \PROGRAM FILES \GRANICUS \LEGISTAR5 \ PACKET \993 CITY COUNCIL 8 14 2012 \0005 1 MEMO - VETERANS CEMETERY.DOCX The City has constructed the public infrastructure necessary for effluent delivery to the new Veteran's Cemetery site. ALTERNATIVES: • Execute the Agreement as recommended. • Do not execute the Agreement as recommended. CONFORMITY TO CITY POLICY: Agreement conforms to the City's Water Conservation Plan, which encourages increased usage of reclaimed water as appropriate and where feasible so as to preserve the City's fresh water supply. EMERGENCY / NON-EMERGENCY: Not applicable DEPARTMENTAL CLEARANCES: Wastewater Services FINANCIAL IMPACT: Not applicable Fiscal Year: 2011- 2012 Project to Date Expenditures (CIP only) Current Year Future Years TOTALS Line Item Budget $0.00 $0.00 $0.00 Encumbered / Expended Amount $0.00 $0.00 This item $0.00 $0.00 BALANCE Fund(s): Not applicable Comments: Not applicable. RECOMMENDATION: City staff recommends that the agreement be executed with the State of Texas Veteran's Land Board to supply effluent to irrigate the Coastal Bend Texas State Veteran's Cemetery. LIST OF SUPPORTING DOCUMENTS: Location Map Resolution Agreement C: \PROGRAM FILES \GRANICUS \LEGISTAR5 \ PACKET \993 CITY COUNCIL 8 14 2012 \0005 1 MEMO - VETERANS CEMETERY.DOCX File : \Mproject \councilexhibits \exh74296.dwg LECES F.M. 624 VE sh� Cq, 7/ Al- 3VUECTS B_Ay J\� PROJECT LOCATION o o Ir o ° LU � Y o Y G J � � U HWY 44 CORPUS CHRISTI RA AGNES L LOCATION MAP NOT TO SCALE CCIA McGLOIN RD. N� ALLISON WWTP r PROJECT # 7429 VICINITY MAP NOT TO SCALE COASTAL BEND TEXAS STATE VETERANS CEMETERY RECLAIMED WATER SUPPLY FOR IRRIGATION CITY COUNCIL EXHIBIT CITY OF CORPUS CHRISTI, TEXAS Ailid DEPARTMENT OF ENGINEERING SERVICES PAGE: 1 of 1 Resolution authorizing the City Manager, or designee, to execute an agreement with the State of Texas Veteran's Land Board to supply effluent to irrigate the Coastal Bend Texas State Veteran's Cemetery. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF CORPUS CHRISTI, TEXAS: SECTION 1. The City Manager, or designee, is authorized to execute an Effluent User Agreement with the State of Texas Veteran's Land Board to supply effluent for irrigation of the Coastal Bend Texas State Veteran's Cemetery. ATTEST: THE CITY OF CORPUS CHRISTI Armando Chapa City Secretary 0005_3_resolution - texas veterans cemetery Joe Adame Mayor Corpus Christi, Texas of , 2012 The above resolution was passed by the following vote: Joe Adame Chris N. Adler Kelley Allen Larry Elizondo, Sr. Priscilla G. Leal David Loeb John E. Marez Nelda Martinez Mark Scott 0005_3_resolution - texas veterans cemetery RECLAIMED WATER SUPPLY FOR IRRIGATION USER AGREEMENT Between City of Corpus Christi And Texas Veterans Land Board Effluent (Reclaimed Water) Supply for Irrigation User Agreement General Land Office/ Veteran's Land Board TABLE OF CONTENTS 1. RECITALS 4 2. DEFINITIONS 5 3. COMPLIANCE WITH APPLICABLE LAWS, RULES, AND REGULATIONS 6. 4. AREA OF USE 6. 5. BENEFICIAL USE STANDARD 6 6. MONITORING AND REPORTING 7 7. DELIVERY OF RECLAIMED WATER 7 8. RECEIPT AND APPLICATION OF RECLAIMED WATER 7 9. QUALITY OF RECLAIMED WATER 8 10. RECLAIMED WATER USE REQUIREMENTS 8 11. RECLAIMED WATER SUPERVISOR 9 12. ON -SITE FACILITY MODIFICATIONS 9 13. NOTIFICATION OF PUBLIC AND TO TCEQ 10 14. USE OF RECLAIMED WATER 10 15. PERMISSION TO ENTER 10 16. ENFORCEMENT 11 17. GENERAL CONDITIONS 11 18. TERM, TERMINATION, RIGHT TO TERMINATE 12 19. AUTHORITY TO SIGN 13 2 Effluent (Reclaimed Water) Supply for Irrigation User Agreement General Land Office/ Veteran's Land Board EXHIBITS Exhibit A. Application Areas Exhibit B. Reuse Water for Irrigation— Designation of Reclaimed Water Supervisor (1 sheet) Exhibit C. Special Reclaimed Water Use Requirements (1 sheet) Exhibit D. City of Corpus Christi Effluent Reuse Facilities Operation And Maintenance Plan, last revised October, 2011 (10 pages) Exhibit E. Agreed Order Amending Operational Procedures and Continuing an Advisory Council Pertaining to Special Condition 5.B., Certificate of Adjudication No. 21 -3214; Docket No. 2001 - 0230 -WR (11 pages) Exhibit F: Memorandum of Agreement Among the Veteran's Land Board . of the state of Texas and Nueces County and the City of Corpus Christi, VLB Contract No. 09 -052- 000 -3409 (MOA). Effluent (Reclaimed Water) Supply for Irrigation User Agreement General Land Office/ Veteran's Land Board RECLAIMED WATER SUPPLY FOR IRRIGATION USER AGREEMENT BETWEEN CITY OF CORPUS CHRISTI AND TEXAS VETERAN'S LAND BOARD STATE OF TEXAS COUNTY OF NUECES § THIS AGREEMENT made this day of , 20 , between the City of Corpus Christi (the CITY), a Texas Home -rule municipal corporation, organized and operating pursuant to its home rule charter, and TEXAS VETERANS LAND BOARD (VLB or USER), an agency of the STATE OF TEXAS. 1. RECITALS WHEREAS, VLB owns, operates and maintains the Coastal Bend Texas State Veterans Cemetery (Cemetery) located at the intersection of IH 37 and Fulton Corridor in the City of Corpus Christi with certain landscaped areas that VLB desires to irrigate with reclaimed water supplied by the CITY and the reclaimed water will replace VLB's potable water for landscape irrigation and will allow the CITY and the VLB to conserve potable water; and WHEREAS, the CITY's Water Conservation Plan encourages for increased usage of reclaimed water as appropriate and where feasible so as to preserve the CITY's fresh water supply; and WHEREAS, the CITY under the authority of State of Texas has established standards for the beneficial use of reclaimed water; and WHEREAS, the CITY agreed under the Memorandum of Agreement denominated GLO Contract No. 09- 052 - 000 -3409 that took effect on October 23, 2008 to provide Reclaimed Water to the VLB for irrigation purposes at a minimum of seventy (70) gallons per minute without charge to the VLB; and WHEREAS, the parties desire to enter into an Agreement to further detail the method and manner by which the City will supply reclaimed water to VLB for landscape irrigation and the requirements by which the VLB will receive and use the reclaimed water; and Effluent (Reclaimed Water) Supply for Irrigation User Agreement General Land Office/ Veteran's Land Board WHEREAS, the City is subject to that certain Agreed Order issued by the Texas Commission on Environmental Quality (TCEQ) Amending the Operational Procedures and Continuing an Advisory Council Pertaining to Special Condition 5.B., Certificate of Adjudication No. 21 -3214; Docket No. 2001 - 0230 -WR NOW, THEREFORE, FOR AND IN CONSIDERATION OF THE MUTUAL PROMISES HEREIN CONTAINED, THE PARTIES AGREE AS FOLLOWS: 2. DEFINITIONS Definition of Terms: As used in this Agreement, the following terms shall have the following meanings: A. "Agreed Order" means the Agreed Order amending the operational procedures and continuing an Advisory Council pertaining to Special Condition 5.B., Certificate of Adjudication No. 21 -3214; Docket No. 2001 - 0230-WR, to which the City and this Agreement are subject (Exhibit E) . B. "Cemetery" means the Coastal Bend Texas State Veterans Cemetery located in the City of Corpus Christi. C. "CITY" means the City of Corpus Christi, Texas, its City Manager or designee, its Director of Water, and its Director of Wastewater, all of which are authorized to act on behalf of the CITY under this Agreement . D. "Commission" means the Texas Commission on Environmental Quality (TCEQ). E. "GLO" means the Texas General Land Office. The GLO provide administrative support to the VLB, and employees of the VLB are considered employees of the GLO. F "MOA" means that certain Memorandum of Agreement denominated GLO Contract No. 09- 052 - 000 -3409 that took effect on October 23, 2008 (Exhibit "F "). E. "Potable Water" means water meeting the requirements of the Texas Department of Health for human consumption and other domestic uses. F "Reclaimed Water" means wastewater that is under the direct control of the treatment plant owner /operator which has been treated to a quality suitable for beneficial use. G. "TAC" means the Texas Administrative Code. H. "TDS" means Total Dissolved Solids. Effluent (Reclaimed Water) Supply for Irrigation User Agreement General Land Office/ Veteran's Land Board "TWDB" means the Texas Water Development Board. J. "Type Il Reclaimed Water" means wastewater appropriate for use in accordance with 30 TAC § 210.32. J. "USER" means the person or entity utilizing treated wastewater for agricultural, domestic, commercial or industrial purposes but does not originally treat the domestic wastewater. K. "VLB" means the Texas Veterans Land Board. L. "Wastewater" means water containing waste, including grey water, black water, or water contaminated by waste contact, including process - generated and contaminated rainfall runoff. Any other words or phrases relating to the use of Reclaimed Water herein, shall have the same definitions as those given under 30 TAC, Chapter 210 "Use of Reclaimed Water" (30 TAC, §210.3). 3. COMPLIANCE WITH APPLICABLE LAWS, RULES, AND REGULATIONS The CITY and the VLB agree to comply with any applicable law, rule, or regulation in carrying out their obligations under this Agreement. . VLB and CITY acknowledge and agree that any delivery or release of CITY's water, including any delivery of Reclaimed Water under this Agreement, affects the CITY's environmental flows, and affects the CITY's capacity to deliver and plan for delivery of water to meet the needs of the CITY's water customers and the CITY's other contractual obligations. 4. AREA OF USE VLB shall use Reclaimed Water supplied by the CITY on irrigated landscape located within a total of approximately fifty -four (54) acres which Site is more fully described in Exhibit "A" which is attached hereto and made a part of this Agreement for all purposes. 5. BENEFICIAL USE STANDARD The CITY intends to promote the beneficial use of Reclaimed Water and compliance with State rules (30TAC210) for the application of Reclaimed Water. The use of Reclaimed Water by the VLB shall meet the following minimum criteria: A. The VLB shall maintain sites with a vegetative cover in the condition required by the United States Department of Veterans Affairs. Effluent (Reclaimed Water) Supply for Irrigation User Agreement General Land Office/ Veteran's Land Board B. The City shall supply Reclaimed Water in accordance with the MOA (Exhibit "F ") under which the City agreed to provide Reclaimed Water to the VLB for irrigation purposes at a minimum of seventy (70) gallons per minute. C. VLB shall maintain soil, irrigation, and management practices to avoid ponding or runoff of Reclaimed Water. 6. MONITORING AND REPORTING The VLB and the CITY will conduct periodic monitoring for the purpose of ensuring that the beneficial use standards in Section 6 of this Agreement are being met at Reclaimed Water irrigated sites. The CITY will provide monitoring reports annually to VLB addressing any needed improvements to comply with the beneficial use standards listed in this Agreement. 7. DELIVERY OF RECLAIMED WATER A. The CITY shall deliver Reclaimed Water from an 8" force main which terminates at the VLB property line. The Reclaimed Water usage shall be metered using an ultrasound flow meter which is provided and installed by the City on the 16" force main. The location of the Reclaimed Water meter is shown on Exhibit "A ". B. If by reason of Force Majeure, the CITY shall be rendered unable wholly or in part to carry out its obligations under this Agreement to deliver Reclaimed Water, it shall not be required to deliver Reclaimed Water, and its failure to deliver Reclaimed Water in accordance with the terms and conditions of this Agreement, shall not be considered a breach of this Agreement. The term "Force Majeure" as used in this Agreement shall mean acts of God, unavoidable accident, strikes, lock -outs, or other industrial disturbances, acts of the public enemy, orders of any kind of the federal or state government, or any civil or military authority, insurrection, riots, epidemics, landslides, lightning, earthquakes, fires, hurricanes. storms, floods, washouts, droughts, power failures, arrests, restraint of government and people, civil disturbances, explosions, breakage or accidents to machinery, pipelines or canals, the partial or entire failure of the CITY Water System, or other causes, or by reason beyond the CITY'S control. 8. RECEIPT AND APPLICATION OF RECLAIMED WATER A. This Section shall become effective as soon as the CITY is able to deliver Reclaimed Water to the Site. Effluent (Reclaimed Water) Supply for Irrigation User Agreement General Land Office/ Veteran's Land Board B. VLB agrees to receive, accept and apply Reclaimed Water supplied by the CITY only for irrigation of VLB's landscaped areas identified in Section 4. VLB shall control and be responsible for the application of Reclaimed Water to the Site in accordance with the beneficial use standard in Section 5 of this Agreement, all applicable laws and regulations, including those in 30 TAC, Chapter 210, and THE CITY Rules and Regulations. C. The City of Corpus Christi's Water Conservation Ordinance shall apply unless a variance from those provisions is granted by the CITY. The use of Reclaimed Water will not be curtailed due to the imposition of drought management plans. D. VLB's agreements with a third party for the management of the Site shall not in any way relieve VLB of compliance with the terms of this Agreement. 9. QUALITY OF RECLAIMED WATER The City makes no guarantees as to the quality of Reclaimed Water delivered to VLB by the CITY. The City endeavors to deliver water of a quality satisfactory for irrigation of landscape areas with unrestricted public access in accordance with 30 TAC, Chapter 210. VLB understands and agrees that the quality of the Reclaimed Water, especially salinity or other constituents, is different from that of VLB's normal potable water supply and that a possibility exists that VLB's turf management practices may have to be altered and that some landscape species may eventually need to be replaced with more tolerant species. VLB UNDERSTANDS AND AGREES THAT THE CITY MAKES NO WARRANTIES AS TO THE QUALITY OF THE RECLAIMED WATER. IN ADDITION, ALL WARRANTIES WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTY FOR FITNESS FOR A PARTICULAR PURPOSE OR THE IMPLIED WARRANTY OF MERCHANTABILITY ARE HEREBY EXCLUDED. 10. RECLAIMED WATER USE REQUIREMENTS The use of Reclaimed Water is regulated by the Commission and CITY's Ordinance. Some of the requirements for use of Reclaimed Water are contained in attached Exhibit "C ". VLB shall fully inform itself of applicable requirements for the use of Reclaimed Water and abide by all laws and regulations governing Reclaimed Water use. The VLB shall implement a salinity mitigation program. The mitigation program shall include, but not be limited to, the following measures to eliminate or reduce foliar damage and soil salinity accumulation: A. Replacing or realigning irrigation to prevent spraying of foliage; Effluent (Reclaimed Water) Supply for Irrigation User Agreement General Land Office/ Veteran's Land Board B. Removal, fracturing, or penetration of caliche and /or clay underlying areas of salt accumulation; C. Possible rescheduling of irrigation to minimize foliar damage or salt accumulation; D. Top dressing with sand as needed; and E. Soil salinity monitoring and testing as needed to ensure that the beneficial use standards are being met. 11. RECLAIMED WATER SUPERVISOR A. VLB shall designate an individual as VLB's Reclaimed Water Supervisor. The Reclaimed Water Supervisor shall be VLB's coordinator and the direct contact person between the CITY and the VLB. The VLB agrees that the Reclaimed Water Supervisor shall be responsible for the proper operation of VLB's Reclaimed Water system, implementing the requirements of this Agreement relative to the on -site use of Reclaimed Water, monitoring of VLB's Reclaimed Water system for prevention of potential hazards, and coordination with the CITY and other regulatory agencies. The CITY will assist in the training of VLB's Reclaimed Water Supervisor as time and resources permit; however, it shall be the non - delegable responsibility of VLB to assure its Reclaimed Water Supervisor is trained in the use and handling of Reclaimed Water in accordance with all applicable rules, regulations and laws. B. VLB shall inform the CITY in writing of the name, position and daytime and nighttime telephone numbers of VLB's Reclaimed Water Supervisor and shall promptly inform the CITY in writing of any changes of designee and /or phone numbers during the term of this Agreement. 12. ON -SITE FACILITY MODIFICATIONS A. If modifications are necessary to VLB's on -site facilities to conform to applicable Reclaimed Water use requirements, VLB shall submit its plans and specifications for such modifications to the CITY through its Director, Wastewater Department. All modifications required in VLB's on -site facilities shall be the sole cost and responsibility of VLB. The CITY shall assist VLB in identifying the modifications and /or changes required in VLB's on -site facilities. It shall be VLB's responsibility to construct the modifications in accordance with the plans and specifications, and with applicable laws and regulations. B. The CITY shall install and maintain the following facilities on the VLB's Site: 9 Effluent (Reclaimed Water) Supply for Irrigation User Agreement General Land Office/ Veteran's Land Board 1 Reclaimed Water meter, as required to monitor the Reclaimed Water deliveries made to VLB. 2. VLB shall provide the CITY with any easements necessary for delivery of Reclaimed Water to VLB's premises at a mutually agreeable location. 13. NOTIFICATION OF PUBLIC AND TO TCEQ A. The VLB shall provide proper notification to VLB's employees and to the public that Reclaimed Water is being used on the Site in accordance with applicable laws and regulations. Prior to VLB's commencement of the use of Reclaimed Water under this Agreement, the CITY will notify the Executive Director of the Commission and obtain approval for such use in accordance with 30 TAC, Chapter 210 (30 TAC §210.4). B. Upon completion of all on -site modifications and changes to VLB's Reclaimed Water and potable water systems, VLB shall provide the CITY with as -built drawings of VLB's completed Reclaimed Water system and potable water system on VLB's Site. The drawings shall show at a minimum, the locations of all pipelines, controllers, valves, buildings, structures, property boundaries, and any other features important to the onsite use of Reclaimed Water. 14. USE OF RECLAIMED WATER A. The CITY will provide VLB with a minimum of seventy gallons (70) per minute of Type II Reclaimed Water or effluent without charge. For the purpose of this Section, "Reclaimed Water" includes all water delivered to VLB through the CITY's Reclaimed Water delivery system. B. If applicable, the CITY shall read the Reclaimed Water meter at least monthly consistent with the CITY's normal meter reading schedule. C. If applicable, the VLB and the CITY shall maintain records of the date and amount of Reclaimed Water delivered to VLB by the CITY and of all other records required by law to be kept for 5 years in accordance with the requirements of 30 TAC, Chapter 210 (30 TAC §210.36). 15. PERMISSION TO ENTER VLB hereby grants to the CITY and regulatory agencies, acting through their duly authorized employees, agents, or contractors, access at all reasonable times to enter the Site for the purpose of observing construction or modification of Reclaimed Water 10 Effluent (Reclaimed Water) Supply for Irrigation User Agreement General Land Office/ Veteran's Land Board facilities, for maintaining and repairing the CITY- installed facilities, for meter reading, and for observing and verifying that VLB is properly operating its Reclaimed Water facilities in accordance with the terms and conditions of this Agreement, the Ordinances, Rules and Regulations of the CITY and 30 TAC, Chapter 210. When entering VLB's premises, the CITY or the regulatory agencies shall not unreasonably interfere with VLB's operations and its use of the premises. 16. ENFORCEMENT If the CITY finds that the VLB is not meeting the Beneficial Use Standard in Section 7 of this Agreement, the CITY will notify the VLB in writing of its findings of noncompliance. VLB shall respond to the CITY with a Site Improvement Plan to include a schedule of time needed to address and resolve noncompliance issues. Unless otherwise approved by the CITY, User will have six (6) months from the date the CITY notifies User of noncompliance in written, to implement the Site Improvement Plan measures. 17. GENERAL CONDITIONS A. This Agreement shall be construed and interpreted in accordance with the laws of the State of Texas, and venue of any litigation hereunder shall be in a court of competent jurisdiction sitting in Nueces County, Texas. B. The MOA, this Agreement and the attachments hereto contain all the agreements of the parties with regard to this Agreement and cannot be enlarged, modified or changed in any respect except by written agreement between the parties. C. The unenforceability, invalidity or illegality of any provisions of this Agreement shall not render the other provisions unenforceable, invalid or illegal, but the parties shall negotiate as to the effect of said unenforceability, invalidity or illegality on the rights and obligations of the parties. D. The CITY and USER will each use their best efforts to fully cooperate with one another as may be necessary to diligently obtain and maintain in effect any required permits and all other approvals and records required by regulatory requirements that may be necessary for the CITY and USER to perform under, or take advantage of, the terms and conditions of this Agreement. E. The captions, titles and headings in this Agreement are merely for the convenience of the parties and shall neither limit nor amplify the provisions of the Agreement itself. F Notices to be given by either party to the other relative to this Agreement shall be in writing. Both parties agree that any such notice shall be 11 Effluent (Reclaimed Water) Supply for irrigation User Agreement General Land Office/ Veteran's Land Board effective when personally delivered or deposited, postage paid, in the U.S. Mail addressed by certified mail, return receipt request, as follows: CITY: City of Corpus Christi Attn: Assistant City Manager for Public Works Address: 1201 Leopard Street, City Hall Building Corpus Christi, TX 78401 City of Corpus Christi Attn: Director of Wastewater Operations Address: P.O. Box 9277 Corpus Christi, TX 78469 -9277 w /Copy to: City of Corpus Christi Attn: City Attorney Address: 1201 Leopard Street, City Hall Building Corpus Christi, TX 78401 VLB: Texas General Land Office 1700 N. Congress Avenue, Room 910 Austin, TX 78701 Attention: Legal Services Division G. This Agreement is for the sole and exclusive benefit of the parties hereto and shall not be construed to confer any rights upon any third party. Nothing herein shall be construed to confer standing upon any third party who did not otherwise have such standing. 18. TERM, TERMINATION, RIGHT TO TERMINATE The primary term of this Agreement is five (5) years from its date of execution by all the parties. Thereafter, unless noticed in writing, this Agreement shall be automatically renewed for five (5) year terms unless terminated in accordance with any other provision of this Agreement. 12 Effluent (Reclaimed Water) Supply for Irrigation User Agreement General Land Office/ Veteran's Land Board In addition, either party may terminate this Agreement without cause upon thirty (30) days written notice to the other party of its intent to do so. Termination of this Agreement does not relieve either party of its obligations under the MOA. 19. AUTHORITY TO SIGN The persons signing this Agreement represent that they are duly authorized to legally bind the party on whose behalf they sign. Effluent (Reclaimed Water) Supply for Irrigation User Agreement Genera/ Land Office/ Veteran's Land Board IN WITNESS WHEREOF, the CITY and VETERAN'S LAND BOARD have executed this Agreement as of the date and year first written above. CITY OF CORPUS CHRISTI Ron L. Olson City Manager ATTEST: Armando Chapa City Secretary GENERAL LAND OFFICE / VETERANS LAND BOARD Larry L. Laine, Chief Clerk/ Deputy Land Commissioner Date of execution: Kevin Warren, Deputy Commissioner Veterans Land Board, Veterans Homes and Cemeteries Program LEGAL AGC GC 14 Effluent (Reclaimed Water) Supply for Irrigation User Agreement General Land Office/ Veteran's Land Board EXHIBIT A APPLICATION AREAS (Site Plan of Premise Attached) Effluent (Reclaimed Water) Supply for Irrigation User Agreement General Land Office/ Veteran's Land Board EXHIBIT A MINK 110. 1 1 1 1 1 1 1 1 1 1 1 11 !I og 11 M 11 1 1 11 F • F M F • F F ■ F 1 la titil 11 I 1 1 1I 111111I VPF h h Ma li rp �i pp ell i 4 4 SAE a� 143* �! ; fi h ti PI Ail' 1 1111 I 1ii!�! !� ! i! 1! $ a vi MO* Na .p. NIKIIIMION VETERANS CEMETERY EFFLUENT LET STATION AND FORCE MAIN OVERALL SITE PLAN CITY OF CORPUS CH TEXAS WASTEWATER DEPARTMENT O.partm.nt of tnghw.Anp Sari... - HARMAN lNWNEEAING, uC 4V I41e.Odo&o Di. Calm WWI tx MIS fLL361.74-UU Po M1.2$ -ff1 1Mtf $Ie. 1.10174 Wite\I • M tp(Yp -xe . 6 MBE IFOM Wd - MAT. 1�LINE + 7 pp 56 00 r00 • 0 Y.P. link. p.,1 „11 vi1 p t zua N p 1 1 v ■ V Si 4•N SO 31. SIN, ++fa X11 �___ ME 1 pffM NY y. �1� II.p ` 1 1 ,f 1 1 1 1 i ■ s•r i l�11 , • 1 1 r.w 1 I I A 1 w svp V • • Ji a 1 pY S t 1 r to .' I C - A ZuC n 11W+ I N W f i a . I IT ,.M1p W64+00 , CHUN 9 �i �P ila 1. I1RM101110. MOM W. MR K i.01Plal YR . If •IIMP.Al1 9 ii IN —+ iii. r �.. tp 5 'N VETERANS CEMETERY EFFLUENT LIFT STATION AND FORCE AWN CITY OF Ph N L HARMAN INO1N�RN G.LC ••O lake aa1N oe, il O01°"' M Fax rmlKianan 1MiNP.FtOtA r , R IF" A H 1 CHRIS TEXAS FORCE MAIN PLAN AND PROFILE STA 56 +00 TO 64 +00 WASTEWATER Deportment of Engineering Serweer meal of n inee .a Nltl - -- r t a NOM ea IAN tivirool 111 ll IRg414a 44414 1 REES EPEE _ eacarrot If 4 AMMO ION M I VETERANS CEMETERY EFFLUENT LIFT STATION AND FORCE MAIN FORCE MAIN PLAN AND PROFILE STA 64 +00 TO 65 +83 CITY OF CORPUS CHRIST TEXAS WASTEWATER DEPARTMENT Deportment of Engineering Seniors I1M L HARMAN tNGINLNRINQ, LLC av labs OM.r. a. Ce pu. ChM, Tx Mil P. $414 42.3141 Pox 34I4n4211 1111 No. 1616171 11 EXHIBIT B REUSE WATER FOR IRRIGATION DESIGNATION OF RECLAIMED WATER SUPERVISOR User Name: The Coastal Bend Texas State Veterans Cemetery of the Veterans Land Board Address: 9974 IH 37Access Road Corpus Christi, Texas 78410 -1408 Reclaimed Water Supervisor Information: Full Name: Robert Krussow, Jr. Full Title: Operations Supervisor Work Phone #:361- 248 -4830 Emergency Phone #: 512 - 748 -4589 Cell or Pager #: 512 - 748 -4589 E-mail Address: rk@premiercemeteryservice.com USER: By: (Print Name) (Title) Effluent (Reclaimed Water) Supply for Irrigation User Agreement Designation of Reclaimed Water Supervisor EXHIBIT B Page 1 of 1 EXHIBIT C SPECIAL RECLAIMED WATER USE REQUIREMENTS The following use requirements are intended to satisfy the requirements of the Texas Water Commission for the safe use of reclaimed water for unrestricted landscape irrigation: 1. Runoff of reclaimed water and spray shall be minimized. 2. Signs in both English and Spanish shall be provided at main entrances to the Site and at reclaimed water hose bibs and faucets to inform the public that reclaimed water is being used. 3. Site shall be managed so that public contact with reclaimed water shall be minimized. 4. Above - ground reclaimed water facilities shall be marked by authorized methods to differentiate the reclaimed water facilities from the potable water facilities. Belowground reclaimed water facilities shall be similarly marked if newly constructed or if exposed for repair. 5. Reclaimed water valves, outlets, quick couplers and sprinklers shall be of a type, or secured in a manner, that permits operation only by USER'S authorized personnel. 6. For new underground construction, there shall be at least a 9 -foot horizontal and 1- foot vertical separation between all pipelines transporting reclaimed water and those transporting potable water, with the potable water pipeline above the reclaimed water pipeline. 7. A backflow prevention device shall be provided at all potable water service connections in reclaimed water use areas. There shall be no connection between potable water and reclaimed water piping. Supplementing reclaimed water with any potable water shall not be allowed except through an air -gap separation. 8. Drinking water facilities and swimming pools shall be protected from reclaimed water spray. 9. Adequate measures shall be taken to minimize ponding and to prevent breeding of mosquitoes. Effluent (Reclaimed Water) Supply for Irrigation User Agreement Special Reclaimed Water Use Requirements EXHIBIT C Page 1 of 2 10. Inspection, supervision and employee training shall be provided by USER to assure safe and proper operation of the reclaimed water system. 11. All valves of any type installed below grade (including existing valve boxes) shall be housed in a valve box with a purple locking cover. 12. Use of reclaimed water by subsequent owners or lessees will not be allowed unless they are advised of these requirements and sign a new User Agreement. Effluent (Reclaimed Water) Supply for irrigation User Agreement Special Reclaimed Water Use Requirements EXHIBIT C Page 2 of 2 EXHIBIT D CITY OF CORPUS CHRISTI EFFLUENT REUSE FACILITIES OPERATION AND MAINTENANCE PLAN LAST REVISED OCTOBER, 2011 (10 PAGES) O &M Manual attached here Effluent (Reclaimed Water) Supply for Irrigation User Agreement General Land Office/ Veteran's Land Board EXHIBIT D RECLAIMED WATER FACILITIES Operation and Maintenance Plan PREPARED BY CITY OF CORPUS CHRISTI WASTERWATER DEPARTMENT JUNE 2003 REVISED October 2011 Effluent (Reclaimed Water) Supply for irrigation User Agreement. Effluent Reuse Facilities Operation and Maintenance Plan EXHIBIT D Page 1 of 12 TABLE OF CONTENTS I. Regulatory Authority 1 II. General Requirements. 2 III. User's Reclaimed Water Supervisor 4 IV. On -Site Facility Modifications 5 V. Labeling and Separation of Facilities 6 VI. Access to Reclaimed Water Facilities 6 VII. Prevention of Human Exposure 7 VIII. Reclaimed Water Quality 7 IX. Monitoring, Sampling and Analysis: 8 X. Operation & Routine Maintenance: 8 XI. Training and Safety 9 XII. Contingency Plan 9 Effluent (Reclaimed Water) Supply for Irrigation User,4greement Effluent Reuse Facilities Operation and MaintenancePPlan EXHIBIT D Page 2 of 12 CITY OF CORPUS CHRISTI WASTEWATER DEPARTMENT EFFLUENT REUSE FACILITIES Operation and Maintenance Plan The City of Corpus Christi fully embraces responsible environmental stewardship of its resources. The City endorses the responsible use of reclaimed water by the serviced community. Delivery of reclaimed water will adhere to the tenets of the Texas Commission on Environmental Quality (TCEQ) Chapter 210; for Type I and /or Type II uses, and will be delivered when available for use. The City of Corpus Christi Wastewater Department has developed this plan to provide proper operation and maintenance of the user's reclaimed water facilities and addresses specific issues identified in the use of reclaimed water and the methods that will be employed to minimize potential problems. The plan may be updated, with notification to the TCEQ, to reflect any changes that occur within the system. 1. Regulatory Authority The City of Corpus Christi distributes reclaimed water for beneficial reuse under the authority of the State of Texas. On May 17, 1999, the TCEQ issued Authorization No. R10401 -003 to the City, which provides for Type I and /or Type II uses of wastewater treatment plant effluent from the following City —owned facilities: • Oso Wastewater Treatment Plant, TPDES Permit No.10401 -004; • Greenwood Wastewater TreatmentPtaat,JPDES.Permit No. 10401 -003; • Broadway Wastewater Treatment Plant, TPDES Permit No. 10401 -005; • Allison Wastewater Treatment Plant, TPDES Permit No.10401 -006; • Laguna Madre Wastewater Treatment Plant, TPDES Permit No. 10401 -008 (Type II only); • Whitecap Wastewater Treatment Plant, TPDES Permit No.10401 -009. On November 15, 2006, the TCEQ issued a separate authorization for each facility. The authorization numbers are the following: • Oso Wastewater Treatment Plant, Authorization No. R10401 -004; • Greenwood Wastewater Treatment Plant, Authorization No. R10401 -003; • Broadway Wastewater Treatment Plant, Authorization No. R10401 -005; Effluent (Reclaimed Water) Supply for Irrigation User Agreement Effluent Reuse Facilities Operation and Maintenance Plan EXHIBIT D Page 3 of 12 • Allison Wastewater Treatment Plant, Authorization No. R10401 -006; • Laguna Madre Wastewater Treatment Plant, Authorization No. R10401 -008 (Type 11 only); • Whitecap Wastewater Treatment Plant, Authorization No. R10401 -009. The effluent is to be used for the following Type I and Type 11 uses, as defined in 30 TAC, Chapter 210 and as permitted in the individual authorizations; the irrigation of golf courses, ball parks, schools, parks, industrial centers, apartment complexes, commercial properties, irrigation of a `closed' landfill, home lawn watering, road median and also used for cooling towers, fire fighting and road construction. Type I reclaimed water use includes irrigation or other uses in areas where the public may be present during the time when irrigation takes place or other uses where the public may come in contact with the reclaimed water. Type 11 reclaimed water use includes irrigation or other uses in areas where the public is not present during the time when irrigation takes place or other uses where the public would not come in contact with the reclaimed water. H. General Requirements: A. The user shall use the reclaimed water in accordance with this agreement, City ordinances, and TAC Chapter 210 relating to reclaimed water. B. The City of Corpus Christi will not be liable for misapplication of reclaimed water by users. The user is responsible for ensuring that reclaimed water overflow, crop stress, and undesirable soil contamination does not occur. C. The City of Corpus Christi may conduct periodic audits of appropriate controls implemented by reclaimed water users. D. Food crops that may be consumed raw by humans shall not be spray irrigated. Food crops including orchard crops that will be substantially processed prior to human consumption may be spray irrigated. Other types of irrigation that avoid contact of reclaimed water with edible portions of food crops are acceptable. E. There shall be no nuisance conditions resulting from the user's distribution, use, and /or storage of reclaimed water. Effluent (Reclaimed Water) Supply for irrigation User Agreement Effluent Reuse Facilities Operation and Maintenance Plan EXHIBIT D Page 4 of 12 F. Reclaimed water shall not be utilized in a way that degrades ground water quality to a degree adversely affecting its actual or potential uses. G. Reclaimed water managed in storage ponds must be prevented from discharge into waters in the state, except for discharges directly resulting from rainfall events or in accordance with a permit issued by the TCEQ. All other discharges are unauthorized. If any unauthorized overflow of storage pond occurs causing discharge into or adjacent to waters in the state, the user shall report any non- compliance within five working days of becoming aware of the overflow to the TCEQ and to the City of Corpus Christi. The written submission of such information shall be provided to the TCEQ regional office and to the Austin Office, Water Enforcement Section (MC -149) and shall contain a description of the noncompliance and its cause; the potential danger to human health or safety, or the environment; the period of noncompliance, including exact dates and times; if the noncompliance has not been corrected, the anticipated time it is expected to continue; and, steps taken or planned to reduce, eliminate, and prevent recurrence of the noncompliance, and to mitigate its adverse effects. H. Use of hose bibs and faucets are prohibited unless specifically approved by the City of Corpus Christi, Water Department Director. I. The reclaimed water user shall provide reasonable control of the application rates for reclaimed water applied to irrigation areas. These controls shall encourage the efficient use of reclaimed water and avoid excessive application of reclaimed water that results in surface runoff or excessive percolation below the root zone. J. The user may not resell, trade or transfer reclaimed water to any other person or legal entity. The user is also prohibited from conveying reclaimed water to any other premises or location. K. The user is solely responsible for any private distribution system, storage, or transmission costs, including the initial construction cost, and operation and maintenance of the private reclaimed water Effluent (Reclaimed Water) Supply for Irrigation User Agreement Effluent Reuse Facilities Operation and Maintenance Plan EXHIBIT D 3 Page 5of12 system on the users property. All facilities shall be designed, constructed, and operated in accordance with 30 TAC, Chapter 210. L. Distribution systems must be designed to prevent operation by unauthorized personnel. Irrigation operations shall be managed in a manner to minimize the inadvertent contact of reclaimed water with humans. Operational or tail water controls shall be provided and maintained to preclude discharge of reclaimed water from irrigation sites. M. The City shall install and maintain a reclaimed water meter, as desired, to monitor the reclaimed water deliveries made to User. Meter will be calibrated regularly. N. The reclaimed water User shall provide reasonable control of the application rates for reclaimed water. These controls shall encourage the efficient use of reclaimed water and avoid excessive application of reclaimed water. 111. User's Reclaimed Water Supervisor A. User shall designate an individual as User's Reclaimed Water Supervisor. The Reclaimed Water Supervisor shall be User's coordination manager and the direct contact person between the City and the User. The Reclaimed Water Supervisor shall be responsible for the proper operation of User's reclaimed water system, implementing the requirements of the Agreement relative to the on -site use of reclaimed water, monitoring of User's reclaimed water system for prevention of potential hazards, and coordination with the City and other regulatory agencies. It shall be the non - delegable responsibility of User to assure its Reclaimed Water Supervisor is trained in the use and handling of reclaimed water in accordance with all applicable rules, regulations and laws. B. User shall inform the City in writing of the name, position, address and daytime and nighttime telephone numbers of User's Reclaimed Water Supervisor and shall promptly inform the City in writing of any Effluent (Reclaimed Water) Supply for Irrigation User Agreement Effluent Reuse Facilities Operation and Maintenance PIan EXHIBIT D Page 6 of 12 changes of designee and /or phone numbers during the term of the Agreement. C. The Reclaimed. Water Supervisor or his representative shall be available during normal working hours at an address listed with the City for the purpose of hosting an inspection tour or for discussing operational aspects of the system and shall be available via telephone at a number listed with the City for emergency off -hours contact. D. The Reclaimed Water Supervisor shall be responsible for furnishing-'. the Operations Personnel system operating instructions, maintenance instructions, controller charts, and record drawings to ensure proper operation in accordance with the irrigation system design and these Regulations. At least one complete set of this information shall be kept on site or in the nearest field office or maintenance building established by the Reclaimed Water Supervisor. E. The Water Supervisor retains the responsibility of.properly disseminating this information to all appropriate Operations Personnel. IV. On -Site Facility Modifications A. If modifications are necessary to User's on -site facilities to conform to reclaimed water use requirements or to meet modified requirements, User shall submit its plans and specifications for such modifications to the City Engineering Services who shall review same before construction commences and whose approval shall not unreasonably be withheld. All modifications required in User's on- site facilities shall be the sole cost and responsibility of User. The City shall assist User in identifying the modifications and /or changes required in User's on -site facilities. It shall be User's responsibility to construct the modifications in accordance with the approved plans and specifications, and with applicable laws and regulations. Effluent (Reclaimed Water) Supply for Irrigation User Agreement Effluent Reuse Facilities Operation and Maintenances Plan EXHIBIT D Page 7 of 12 Labeling and Separation of Facilities A. All reclaimed water distribution facilities shall be labeled and separated from potable water distribution fadlities for the prevention of cross connection between reclaimed water lines and potable water lines. Supplementing reclaimed water with any potable water shall not be allowed except through an air -gap separation. B. Reclaimed water piping shall be separated from potable water piping when trenched by a distance of at least nine feet. C. All exposed piping, hose bibs and faucets shall be purple and designed to prevent connection to a standard water hose. All buried piping installed after the effective date of these rules shall be one of the following: manufactured in purple, purple fusion - bonded epoxy coated, or bagged in purple. All exposed piping should be stenciled in white with a warning reading "Non- Potable Water." D. One of the following requirements must be met by the user for any area where reclaimed water is stored or where there are hose bibs or faucets: Signs having a minimum size of eight inches shall be posted at all storage areas and on all hose bibs and faucets reading, in both English and Spanish, "Reclaimed Water, Do Not Drink" and "Agua Reclamada, No Bebe el Agua" or similar warning; or the area shall be secured to prevent access by the public. In addition, signs will also be posted around any lake or pond that receives Reclaimed Water reading in English and Spanish, "No Wading or Swimming." E. All sprinkler heads and sprinkler control box covers shall be purple. VI. Access to Reclaimed Water Facilities A. Reclaimed water facilities shall be secured to prevent unauthorized access. Such facilities shall be fenced or locked to restrict access to authorized users, and shall be clearly labeled. B. Access to areas under irrigation with Type II reclaimed water shall be restricted to ensure that the public shall not come in contact with reclaimed water. Effluent (Reclaimed Water) Supply for Irrigation User Agreement Effluent Reuse Facilities Operation and Maintenance Plan EXHIBIT D 6 Page 8 of 12 VII. Prevention of Human Exposure A. Reclaimed water shall be used in such a manner that will minimize the risk of inadvertent human exposure. Irrigation operations shall be at night or when the public is not present (potential for human contact is low). B. There shall be no off -site discharge, either airborne or runoff, or reclaimed water from the User's property except to a waste water treatment or wastewater treatment collection system unless the User obtains a permit from the State. C. Irrigation rates and times shall be managed to minimize "wet grass" conditions in unrestricted landscaped areas during the periods the area could be in use. Irrigation practices shall be designed to prevent incidental ponding or standing water. D. Irrigation systems shall be designed so that the irrigation spray does not reach any privately owned premises outside the designated irrigation area or reach public drinking fountains. E. There shall be no application of reclaimed water when the ground is saturated or frozen. VIII. Reclaimed Water Quality Reclaimed water shall be monitored in accordance with the sampling frequencies and water quality standards specified in TAC, Chapter 210, for Type I and /or Type II uses as applicable. Water Quality Standards: The following are numerical parameter limits pertaining to Type I and Type 11 reclaimed water use. At a minimum, the reclaimed water shall, on a 30-day average have a quality of: Type 1 Parameter Maximum 30 -day Average BOD5 or CBOD5 5 mg /I Turbidity 3 NTU Fecal Coliform 20 CFU /100 ml* Fecal Coliform 75 CFU /100 ml ** Effluent (Reclaimed Water) Supply for Irrigation User Agreement Effluent Reuse Facilities Operation and Maintenance Ran EXHIBIT D Page 9 of 12 Type II Parameter BOD5 Or CBOD5 Fecal Coliform Fecal Coliform * geometric mean single grab sample ** Maximum 30-day Average 20 mg /I 15 mg/I 200 CFU /100 ml* 800 CFU /100 rnI ** Wastewater treatment plant effluent which does not meet the minimum water quality standards for reclaimed water use will not be available for distribution by the City. IX. Monitoring, Sampling and Analysis: A. The City shall sample and analyze the reclaimed water prior to distribution to the user to ensure that the water quality is in accordance with the intended Type I or Type 11 use. Analytical methods shall be in accordance with those specified in 30 TAC, chapter 319 (General Regulations Incorporated into Permits). The minimum sampling and analysis frequency for Type I reclaimed water is twice per week and for Type I I reclaimed water is once per week. The samples shall be taken after the final treatment unit of the respective wastewater treatment plant. Records shall be maintained on a monthly basis and be available at the plant site for inspection by authorized representatives of the Commission for at least five years. B. If the User operates a reclaimed water storage facility, the facility shall incorporate an automatic leak detection system or shall adopt and implement a monitoring plan approved by TCEQ and the City. X. Operation & Routine Maintenance: A. A preventative maintenance program designed and implemented by the User shall ensure the continued operation of all system elements within the requirements of the Agreement and shall be evidenced by the Water Supervisor and open to inspection by the City. B. User shall perform regular maintenance, in accordance with 30 TAC Chapter 210.25.b, of all signs at all storage areas, hose bibs, faucets, and other points of access to reclaimed water. Effluent (Reclaimed Water) Supply for Irrigation User Agreement Effluent Reuse Facilities Operation and Maintenance Plan lan EXHIBIT D Page 10 of 12 C. User shall operate and maintain the pumps and control system so that any receiving lake or pond is not overfilled so as to discharge into the downstream watercourse, except for discharges directly resulting from rainfall events. All other discharges are unauthorized and, if such a discharge occurs that results in a discharge into or adjacent to waters of the state, it must be reported within twenty -four (24) hours to the City and five (5) days to TCEQ. D. All materials and equipment used for construction, maintenance and repair of reclaimed water facilities shall be in accordance with provisions of 30 TAC Chapter 210 and 217 and with approved plans and specifications. E. Operate and maintain all pumping facilities, piping and controls using routine maintenance schedules and. preventative maintenance on all mechanical equipment as specified by the manufacturer. Broken equipment shall be repaired promptly by User. XI. Training and Safety A. It shall be the responsibility of the User's Water Supervisor to ensure that all Operations Personnel are trained in and familiarized with the use of recycled water, and are familiar with all pertinent information contained in the Agreement and those applicable portions of Chapter 210. This information shall be supplied by the City upon request. B. Training in the safe and proper operation and maintenance of reclaimed water facilities and the proper use of reclaimed water shall be performed . and documented at least annually by the User. XII. Contingency Plan A. In the event of an upset of the wastewater treatment process which renders the effluent quality unfit for its intended Type I or Type 11 use, or of reclaimed water distribution facilities failure, distribution pumps and/or valves shall be locked and tagged out by the City, and distribution of reclaimed water shall be curtailed immediately and until such system failures are corrected. Reclaimed water transferred Effluent (Reclaimed Water) Supply for Irrigation User Agreement Effluent Reuse Facilities Operation and Maintenance Plan EXHIBIT D 9 Page 11 of 12 from a provider to a user shall be done on a demand only basis. This means that the reclaimed water user may refuse delivery of such water at any time. Effluent (Reclaimed Water) Supply for Irrigation User Agreement Effluent Reuse Facilities Operation and Maintenance O Plan EXHIBIT D Page 12 of 12 EXHIBIT E TCEQ AGREED ORDER AMENDING THE OPERATIONAL PROCEDURES AND CONTINUING AN ADVISORY COUNCIL PERTAINING TO SPECIAL CONDITION 5.B, CERTIFICATE OF ADJUDICATION NO. 21-3214; DOCKET NO. 2001- 0230 -WR (11 PAGES) Agreed Order attached here Effluent (Reclaimed Water) Supply for Irrigation User Agreement General Land Office/ Veteran's Land Board EXHIBIT E TEXAS NATURAL RESOURCE CONSERVATION COMMISSION AN AGREED ORDER Amending the operational procedures and continuing an Advisory Council .pertaining to Special Condition 5.8., Certificate of Adjudication No. 21- 3214; Docket No. 2001- 0230 -WR On April 4, 2001, came to be considered before the Texas Natural Resource Conservation Commission ( "Commission ") the Motion by the City of Corpus Christi and Nueces River Authority for the adoption of an amendment to the Agreed Order issued Apri128,1993, establishing operating procedures pertaining to. Special Condition 5.B:, Certificate of Adjudication No. 21 -3214, held by the City of Corpus Christi, the Nueces River Authority, and the City of Three Rivers " (the two cities and river authority shall be referred to herein as "Certificate Holders "). The Certificate Holders and the Executive Director of the Texas Natural Resource Conservation Commission have agreed to the provisions of this Agreed Order. The City of Corpus Christi (managing entity) requests that Section 2 of this Agreed Order be amended to add further detail to the provisions regarding the use of water for bays and estuaries and to Make changes in the required passage of inflows for the bays and estuaries automatic at 40 percent and 30 percent of total reservoir system capacity upon Institution of mandatory outdoor watering restrictions. Additionally, Certificate Holders request the most recent bathymnetric surveys be used for determining reservoir system 'storage capacity. The Certificate Holders request details be added regarding provisions for two projects to enhance/augment the amount of freshwater going into she receiving estuary and timelines for those projects. After considering the proposals and the presentations of the parties, the Commission finds that it has authority to establish operational procedures under Special Condition 5.B. of Certificate of Adjudication No 21 -3214, and that operational procedures previously established should be . amended. The Commission finds that, because of the need to continue to monitor the ecological environment and health ofrelated living marine resources of the estuaries to assess the effectiveness of freshwater inflows provided by requirements contained in this Agreed Order relating to releaties and spills from Choke Canyon Reservoir and Lake Corpus Christi' (collectively referred to as the Reseriroir System); as well as return flows, and to evaluate potential impacts which may occur to the reservoirs as well as to the availability ofwater to meet the needs of the Certificate Holders and their customers whichmay result from those operational procedures, the existing advisory council should be maintained to consider such additional information and related issues and to formulate recommendations for the Commission's review. The Commission additionally finds that based on the preliminary application of the Texas Water Development Board's Mathematical Programming Optimization Model, (GRG-2), 138,000 acre -feet of fresh water is necessary to achieve maximum harvest in the Nueces Sstuar ; and, therefore, when water is impounded in the Lake Corpus Christi -Choke Canyon Reservoir System to the extent greater than 70 percent of the system's storage capacity, the delivery of 138,000 Effluent (Reclaimed Water) Supply for Irrigation User Agreement TCEQ Agreed Order EXHIBIT E Page 1 of 11 acre -feet of water to Nueces Bay and/or the Nueces Delta, by a combination of releases and spills, together with diversions and return flows noted below, should be accomplished; and that during periods when the reservoir system contains less than 70 percent storage capacity, reductions in releases and spills, along with diversions and return flows, are appropriate in that a satisfactory level of marine harvest will be sustained and the ecological health of the receiving estuaries will be maintained. The Cotntnisaion finds that return flown, other than to Nueces Bay and/or the Nueces Delta, that are delivered to Corpus Christi Bay and other receiving estuaries are currently in the assumed mount of 54,000 acre -feet per annum (per calendar year), and that they shall be credited at this atnount until such time as it is shown that actual return flows to Corpus Christi Bay and other receiving estuaries exceed 54,000 acre-feet per annum. The Commission finds that by contractual relationships, the City of Corpus Christi is the managing entity for operating the Reservoir System. The Commission finds that the Motion by the City of Carpus Christi and Nueces River Authority to Amend this Agreed Order is reasonable and should be granted. Benefits of the proposed diversion project and operating changes will include increased water supply, increased reservoir storage levels, increased positive flow events for Rincon Bayou and the upper Nueces Delta, increased sources of nitrogen for the upper delta, and lower salinity levels in the upper delta. When the Commission uses the word "release" in this Order, release means spills, inflow passage, intentional releases, and return flows; provided, however, under this Order no release from storage is required to meet conditions of this Order. By consenting to the issuance of this Agreed Order, no party admits or denies any claim, nor waives with respect to any subsequent proceeding any interpretation or argument which may be contrary to the provisions of this Agreed Order. NOW, THEREFORE, BE IT ORDERED BY THE TEXAS NATURAL RESOURCE CONSERVATION COMMISSION THAT: 1. a. The City of Corpus Christi, as operator of the Choke Canyon/Lake Corpus Christi reservoirs (the "Reservoir System "), shall provide not leas than 151,000 acre -feet of water per 'annum. (per calendar year) for the estuaries by a cornbirtation of releases and spills from the Reservoir System at Lake Corpus Christi Dam and return flows to Nueces and Corpus Christi Bays and other receiving estuaries (including such credits as may be appropriate for diversion of river flows and/or return flews to the Nueces Delta and/or Nueces Bay), as computed and to the extentprovided for herein. b. When water impounded in the Reservoir System is greater than or equal to 70 percent of storage capacity, a target amount of 138,000 acre-feet is to•be delivered to Nueces Bay and/or the Nueces Delta by a combination of releases and spills from - Page 2 of 11 Effluent (Reclaimed Water) Supply for Irrigation User Agreement TCEQ Agreed Order EXHIBIT E Page 2 of 11 the Reservoir System as well as diversions and return flows. In accordance with the monthly schedule and except as provided otherwise in this Agreed Order, target inflows to Nueces Bay and/or the Nueces Delta shall be in the acre -foot amounts as follow: January 2,500 July 6,500 February 2,500 August 6,500 March 3,500 September 28,500 April 3,500 October 20,000 May 25,500 November 9,000 June 25,500 December 4,500 It is expressly provided, however, that releases from Reservoir System storage shall not be required to satisfy the above targeted inflow amounts, as calculated in Subparagraph d. c. When water impounded in the Reservoir System is less than 70 percent but greater than or equal to 40 percent of storage capacity, a targeted amount of 97,000 acre -feet is to be delivered to Nueces Bay and/or the Nudes Delta by a combination of releases and spills from the Reservoir System u well as diversions and return flows. In accordance with the monthly schedule and except as provided otherwise in this Agreed Order, target inflows to Nueces Bay and/or the Nueces Delta shall be in the acre -foot amounts as follows: January 2,500 July 4,500 February 2,500 August 5,000 March 3,500 September 11,500 April 3,500 October 9,000 May 23,500 November 4,000 June 23,000 December 4,500 R is expressly provided, however, that releases from Reservoir System storage shall not be required to satisfy the above targeted inflow amounts as calculated in Subparagraph d. d. The amounts of water required in subparagraphs 1.b. and 1.c. will consist of return flows, and intentional diversions, as well as spills and releases from the Reservoir System as defined in this subparagraph. For purposes of compliance with monthly targeted amountsprescribed above, the spills and releases described in this paragraph shall be measured at the U.S. Geological Survey stream monitoring station on the Nueces River at Cahalan, Texas (USGS Station No. 08211500), Any inflows, including measured wastewater effluent and rainfall runoffmeeting lawful discharge standards which are intentionally diverted to the upper Nueces Delta region, shall be credited toward the total inflow amount delivered to Nueoes Bay and/or the Nueces Page 3 of 11 Effluent (Reclaimed Water) Supply for Irrigation User Agreement TCEQ Agreed Order EXHIBIT E Page 3 of 11 Delta. Inflow passage fromthe Reservoir System forthepurpose ofcompliance with the monthly targeted amount¢ prescribed in subparagraphs 1.b. and 1.c. shall in no case exceed the estimated inflow to Lake Corpus Christi as if there were no iinpoundrnent of inflows at Choke Canyon Reservoir. The estimated inflow to Lake Corpus .Christi as if then were no impoundment of inflows at Choke Canyon Reservoir Shall be computed as the sum of the flows measured at the U.S. Geological Sutvey(USGS) STRBAMFLOW O/lOING STATIONS ON THE Names River near Three "Rivers (USES No. 08210000), Frio River at Tilden, Texas (USGS No 08206600), and San Miguel Creek near Tilden, Texas (USGS No. 08206700) less computed releases and spills from Choke Canyon Reservoir. e. The passage of inflow necessary to meet the monthly targeted allocations may be distributed over the calendar month in a manner to be determined by the City. Relief from the above requirements shall be available under subparagraphs (1) or (2) below and. Section 2.(b)iand 34o) at the option of the City of Corpus Christi, However, passage of inflow may only be reduced under one of those subparagraphs below, for any given month. (1) Inflows to Nueoes Bay and/or the Nueces Delta in excess of the required monthly targeted amount may be credited for up to fifty (50) percent of the targeted requirement for the following month, based on the amount received (2) When the mean salinity in Upper Nueces Bay (Lat. 27 °51'02 ", Long. 97 °28'S2 ") for a 1Q-day period, ending at any time during the calendar month for which the reduction of the passage of inflow is sought, is below the SUB *, pass through of inflow from the reservoir system for that same calendar month may be reduced as follows: (a) For any month other than May, Juno, September and Octobet, if 5 parts per thousand (ppt) below the SUB for the month, a reduction of 25% of the current months targeted Nueces Bay inflow; (b) If 10 ppt below the SUB for the month, a reduction of 50 % of the current month's targeted Nueces Bay inflow except that credit under thik provision is limited to 25 % during the months of May, June, September and October; * "SUB" means "salinity upper bounds" as set forth more specifically in Section 3.b. (c) If 15 ppt below the SUB for that month, a reduction of 75% of the current month's targeted Nueces Bay inflow. Page 4 of 11 Effluent (Reclaimed Water) Supply for irrigation User Agreement TCEQ Agreed Order EXHIBIT E Page 4.of 11 f. The City of Corpus Christi shall submit monthly reports to the Commission containing daily inflow amounts provided to the Nueces Estuary in accordance with this Agreed Order through releases, spills, return flows and other freshwater inflows. 2. a. Certificate holders are to provide in any future contracts or any amendments, modifications or changes to existing contracts the condition that all wholesale customers and any subsequent wholesale customers shall develop and have in effect a water conservation and drought management plan consistent with Commission rule. The City of Corpus Christi shall solicit from its customers and report to the Commission annually the result ofconservation under the City's plan, the customers' plans, and the feasibility of implementing conservation plant and programs for all users of water from the reservoir system. This report shall be submitted with the Certificate Holders annual water use report as provided by 31 T.A.C. §295.202. b. The Certificate Holders may reduce targeted Nueces Bay inflows during times of prolonged drought in accordance with this subparagraph 2. (1) When the combined storage in the Choke Canyon/Lake Corpus Christi reservoir system (Reservoir System Storage) falls below 50% of the total system storage capacity, the City of Corpus Christi shall issue public notice advising ' and informing the water users of the region of voluntary conservation measures that are requested immediately and required drought management measures to be taken should the Reservoir System Storage fall to under 40% and/or 30% of total system storage capacity. To the extent of its legal authority, the City of Corpus Christi shall require its wholesale customers to issue public notice advising and informing the water users ofthe region ofvoluntaryconservation measures that are requested immediately and required drought management measures to be taken should the Reservoir System Storage fall to under 40% and/or 30% of total system storage capacity. (2) In any month when Reservoir System Storage is less than 40 %, but equal to or greater than 30% of total system storage capacity, the City of Corpus Christi shall implement time of day outdoor watering restrictions and shall reduce targeted inflows to Nueces Bay to 1,200 acre -feet per month (1,200 acre-feet per month represents the quantity of water that is the median inflow. into Lake Corpus Christi during the drought ofrecord). Time of day outdoor watering restrictions prohibit lawn watering between the hours of 10:00 o'clock a.m. and 6:00 o'clock p.m. and are subject to additional conditions as described in the City of Corpus Christi's approved "Water Conservation and Drought Contingency Plan ("Plan")." To. the extent of its legal authority, the City of Corpus Christi shall require its wholesale customers to implement time of day outdoor watering restrictions similar to those of the City. Page 5 of 11 Effluent (Reclaimed Water) Supply for Irrigation User Agreement TCEQ Agreed Order EXHIBIT E Page 5of11 (3) In any month when Reservoir System Storage is less than 30% of total system storage capacity the City of Corpus Christi shall implement a lawn watering schedule in addition to time of day outdoor watering restrictions (see subparagraph 2.b.(2)). and shall suspend the passage of inflow from the Reservoir System For targeted inflows to Nueces Bay. However, return flows directed into Nueces.Bay and/or the Nueces Delta shall continue. The lawn watering schedule shall allow customers to water lawns no oftener every five days, subject to the time of day restrictions descried in subparagraph 2.b.(2) and any additional conditions as described in the City's Plan. (4) Certificate Holders' may implement whole or partial suspension of the passage of inflow through the reservoir as described above when the City implements, and requires its customers to implement, waterconservation and drought management measures at diminished Reservoir System levels, as set tbrth in subparagraphs b.(2) and b.(3). c. For purposes of this Agreed Order, Reservoir System storage capacity shall be determined by the most recently completed bathymetric survey of each reservoir. As of 2001, completed bathymetric surveys of each reservoir reports conservation storage capacities of 695,271 acre -feet (below 220.5 feet mean sea level) for Choke Canyon Reservoir (Volumetric Survey of Choke Canyon Reservoir, TWDB September 23,1993) °and 241,241 acre -feet (below 94 feet mean sea level) for Lake Corpus Christi (Regional Water Supply Planning Study- -Phase I Nueces River Basin, HDR, December, 1990). d. Percentage ofthe Reservoir System capacity shall be determined on a daily basis and shall govern, in part, the inflow to be passed through the reservoir during the remaining days of the month. e. With the first ten days of each month, the City of Corpus Christi shall submit to the Commission a monthly report containing the daily capacity ofthe Reservoir System in percentages and mean sea levels as recorded for the previous month as well as reservoir surface areas and estimated inflows to Lake Corpus Christi assuming no impoundment of inflows at Choke Canyon Reservoir. The report shall indicate which gages or measuring devices were used to determine Reservoir System capacity. and estimate inflows to Lake Corpus Christi. f. Concurrent with implementing subparagraphs 2.b.(1) through 2.b.(3), the City shall proceed to: 1. Acquire land rights to properties necessary to re -open the Nueces River Overflow Charnel andmakc the Nueccs River Overflow Channel and Rincon Bayou Overflow Channol permanent features ofthe Rincon Bayou Diversion; _Page 6of 11 Effluent (Reclaimed Water) Supply for Irrigation User Agreement TCEQ Agreed Order EXHIBIT E Page 6of11 2. Construct and operate a conveyance facility to deliver up to 3,000 acre-feet per month of required Reservoir System "pass »throughe" directly from the Calallen Pool into the Upper Rincon Bayou by use of one or two of the five authorized points of diversion under Certificate of Adjudication No 2464, being the existing San Patricio Municipal Water District point of diversion and/or: a point on the North bank of the Calallen Pool hosted: at Latitude 27.8823°N, Longitude 97.6254°W, also bearing S 27° 24' W, 4,739 feet from the southwest comer of the J.H.W. Ottman Survey, Abstract No, 212, San Patricio. County, Texas, where the water will be pumped at the maximum rate of 45,000 gprn; and 3. Implement an on -going monitoring and assessment program designed to tircilitate an "adaptive management" program for freshwatertnflows into the Nueces Estuary. 4. Construction necessary to implement subparagraph 2.f.1. shall be accomplished by December 31, 2001 and work necessary to accomplish subparagraph 2.f.2. shall be accomplished by December 31, 2002. 5. In the event the City fails to timely complete the work set forth in subparagraphs 211. and 2.6., this amendment shall automatically terminate and the provisions of the Agreed Order of April 28, 1995 shall be reinstated and become operative despite this amendment, unless the Executive Director grants a Modification after considering the recommendations of the Nueces Estuary Advisory Council. g. The Executive Director is delegated authority to make modifications to subparagraph► 2,f., aforconsideringthe recommendations of the Nueces Estuary AdvisoryCouncii. However, changes may be made through this process only with the City's consent if the changes result in increased costs to the City. If the Executive Director makes modifications to subparagraph 2.f as authorized in this paragraph, any 'affected person may file with the chief clerk a motion for rsconsideradon of the Executive Director's action no later than 23 days after the date the Executive Director mails notice ofthe modification to the City. This motion shall be considered under the provisions of 30 Teas Administrative Code § 50.39(d) and (e):. h. The City shall obtain all necessary permits from the Commission before beginning these projects. The deadlines set out above include time necessary to apply for, process and, if necessary, complete hearings on these permits. 3. a. The City of Corpus Christi, with the assistance and/or participation of federal, state and local entities, shall maintain a monitoring program to assess the effect of this Page 7 of 11 Effluent (Reclaimed Water) Supply for Irrigation Uaer Agreement TCEQ Agreed Order EXHIBIT E Page 7 of 11 - -. - -. _■••••• __. _- .seem operating plan on Nueces Bay. The cornerstone of this program is the development of a salinity monitoring program. The pmgram shall include at least two monitoring stations, one in upper Nueces Bay (Lat. 27°51'02", Long. 97°28'52") and one in mid pTtieces Bay (Lat. 27 °51'25 ", Long. 97 °2528 ") with the capability of providing continuous salinity and/or conductivity data, temperature, pH, and dissolved oxygen levels. Additional stations may be established at the recommendation of the Advisory Council (continued by paragraph 4 of this Agreed Order) to assess inflow effects throughout the estuarine system, but the City shall not be obligated to • establish such additional stations except to the extent authorized by its City Council. b. The City of Corpus Christi or its designated representatives shall monitor salinity levels in Upper and Mid•Nueces Bay. The lower (SLB) and upper (SUB) salinity bounds (in parts per thousand-ppt) developed for application of the Texas Estuarine Mathematical Programming Model and considered appropriate for use herein, are as fellows: SLB SUB SLB SUB January 5 30 July 2 25 February 5 30 August 2 25 March • 5 30 September 5 20 April • 5 30 October 5 30 May 1 20 November 5 30 June 1 20 December S 30 a. When the average salinity for the third week (the thin! week includes the seven days from the 15th through 21st) of any month is at or below the subsequent month's established SLB for upper Nueces Bay (Lat. 27°51'02", Long. 97°28'521, no releases from the Reservoir System to satisfy targeted Nueces Bay inflow mounts shall be required for that subsequent month. d. All data collected as a result of the monitoring program required by paragraph.3 of this•Agreed Order shall be submitted monthly to the Commission within the first ten days of the immediately following month. The Nueces Estuary Advisory Council shall study the feasibility of developing a method of granting credits for inflows which exceed the required amounts to replace the credits that are set out in subparagraph 1.e.(1) and make recommendations to the Commission for possible implementation. That method shall have as its goal the maintenance of the proper ecological environment and health of related living marine resources and the provision of maximum reasonable credits towards monthly inflow requirements. 4. a. To assist the Commission in monitoring implementation of this Order and making recommendations to the Commission relating to any changes to this Agreed Order and the establishment of future operating procedures, the Nueces Estuary Advisory Page 8 of 11 Effluent (Reclaimed Water) Supply for irrigation User Agreement TCEQ Agreed Order EXHIBIT E Page 8 of 11 Council shall be continued. Its members shall include, but are not limited to a qualified representative chosen by each of the following entities or groups: the Executive Director ofthe Texas Natural Resource Conservation Cornmlasion, whose representative shall serve u chairthe Texas Water Development Board; the Texas Parks and Wildlife Department; the Texas Department of Health; the General Land Office; the holders of Cettifioate of Adjudication No. 21 -3214 (the Cities of Corpus Christi and Three Rivers and the Nueees River Authority; the University of Texas Marine Science Institute; Texas A&M University - Corpus Christi; Save Lake Corpus Christi; Corpus Christi Chamber of Commerce; the City of Mathis; Coastal Bend Bays and $stuades Program, Inc.; a commercial bay fishing group; a conservation group (e.g the Sierra Club and the Coastal Bend Bays Foundation); wholesale water suppliers who are customers of the Certificate Holders (e.g., the South Texas Winter Authority and the San P.atrioio Municipal Water District); the Port of Corpus Christi Authority; and a representative of industry. The representatives should have experience and knowledge relating to current or fbture water use and management or environmental and economic needs of the Coastal Bend area. b. o modification shall be made to this Order without the unanimous consent of the Certificate Holders, except to the extent provided by law. o. Matters to be studied by the Nueces Estuary Advisory Council and upon which the Executive Director shall certify recommendations to the Commission shall include, but are not limited to: (1) the effectiveness of the inflow requirements contained in this Agreed Order on Nueces Estuary and any recommended changes; (2) the effect of the releases from the Reservoir System upon the aquatic and wildlife habitat and other beneficial and recreational uses of Choke Canyon Reservoir and Lake Corpus Christi; (3) the development and implementation of a short and longterm regional water management plan for the Coastal Bend Area; (4) the salinity level to be applied in Paragraphs 1.e. and 3.c., at which targeted inflows in the subsequent month may be suspended; (5) the feasibility of discharges at locations where the increased biological productivity justifies an inflow credit computed by multiplying the amount of discharge by a number greater than one; and development of a methodology for granting credits for inflows which exceed the required amount to replace the credits that are set out in subparagraph 1.e. That methodology shall have as its goal the maintenance of the proper ecological. Page 9 of 11 Effluent (Reclaimed Water) Supply for Irrigation User Agreement TCEQ Agreed Order EXHIBIT E Page 9 of 11 environment and health of related living marine resources and the provision of tnaxirnum reasonable credits towards monthly inflow requirements; and, (6) any other matter pertinent to the conditions contained in this Agreed Order. _ page 10 of 11 Effluent (Reclaimed Water) Supply for Irrigation User Agreement TCEQ Agreed Order EXHIBIT E Page 10 of 11 5. This Agreed Order shall remain in effect until amended or superseded by the Commission. Isueddate: APR 0 5 2001 TEXAS NATURAL RBSOtrRCB CONSERVATION COMMISSION Page 11 of 11 Effluent (Reclaimed Water) Supply for Irrigation -User Agreement TCEQ Agreed Order EXHIBIT E . Page 11 of 11 EXHIBIT F MEMORANDUM OF AGREEMENT AMONG THE VETERAN'S LAND BOARD OF THE STATE OF TEXAS AND NUECES COUNTY AND THE CITY OF CORPUS CHRISTI (20 PAGES) Memorandum of Agreement (MOA) attached here Effluent (Reclaimed Water) Supply for Irrigation User Agreement General Land Office/ Veteran's Land Board EXHIBIT F MEMORANDUM OF AGREEMENT AMONG THE VETERANS' LAND BOARD OF THE STATE OF TEXAS AND NUECES COUNTY AND THE CITY OF CORPUS CHRLSTI VLB CONTRACT No. 09- 052- 000 -3409 THIS MEMORANDUM OF AGREEMENT (the "Memorandum") is made and entered into by and among the Veteran's Land Board of the State of Texas (the "VLB "), Nueces County, Texas (the "County "), and the City of Corpus Christi (the "City "), Nueces County, Texas. WHEREAS, the 77th Texas State Legislature (the "776' Legislature ") enacted legislation to authorize the VLB to operate and maintain up to seven (7) veterans' cemeteries ( "State Veterans' Cemeteries ") throughout the State of Texas; and WHEREAS, the citizens of the State of Texas passed a constitutional amendment on November 6, 2001, to authorize funding for the planning, design, operation, maintenance, enlargement, or improvement of State Veterans' Cemeteries; and WHEREAS, the 77(1 Legislature established the Texas State Veterans' Cemeteries Committee (the "Committee ") that is required to establish the guidelines for the location and size of the State Veterans' Cemeteries, including site selection and eligibility requirements for burial in such cemeteries; and WHEREAS, the VLB will apply to the United States Department of Veterans Affairs (the "USDVA ") for grants under the State Cemetery grants program to provide federal funds for the cost of building the infrastructure of State Veterans' Cemeteries at locations selected by the Committee; and WHEREAS, state law prohibits expenditure of public funds for site acquisition for a State Veterans' Cemetery; and WHEREAS, the Committee, through a request for proposal for donation of suitable land for one or more Texas State Veterans' Cemeteries issued March 10, 2004 (the "RFP "), which is incorporated herein by reference, sought proposals from interested communities and entities throughout the State for the Location and establishment of one or more State Veterans' Cemeteries; and WHEREAS, on October 27, 2005, the Committee met and conditionally approved the site submitted by the County in its response to the RFP for potential submission for the USDVA's consideration for the location and establishment of a State Veterans' Cemetery during the VLB's 2009 Fiscal Year; and VLB Contract No. 09- 052 -000 Effluent (Reclaimed Water) Sjpply for Irrigation UfertAigiobbment General Land Olii4ei laieterarr's Land fgarc; EXHIBIT F a.. • • • • ' Page 1 of 20 WHEREAS, the County will enter into a Purchase (Donation) Agreement with Flint Hills Resources, L.P. (FHR) to acquire the site submitted by the County in its response to the RFP for purposes of transferring it to the State for construction and maintenance of a veteran's cemetery; NOW THEREFORE, in consideration of the benefits to the State of Texas and to the veterans therein, the VLB, the County, and the City enter into this Memorandum and agree to the following terms and conditions for the conveyance of the site submitted by the County in its response to the RFP for a State Veterans' Cemetery, and the acceptance of that donation by the VLB: 1. Upon its acquisition by the County, the County agrees to convey to the State of Texas, by and through the VLB, all right, title, and interest in and to the Surface Estate of a tract of land containing approximately 54.837 acres of land situated in the County of Nueces, Texas (the "Proposed Cemetery Site" or "Site "), being a plat showing the survey of 54.837 acre tract comprised of the following tracts of land being more or less out of a 2.158 acre tract recorded in Document No. 2004035681, Official Public Records of Nueces County, Texas, and out of a 34.19 acre tract recorded in Volume 2130, Page 84, Deed Records of Nueces County, Texas, and out of a 54.91 acre tract recorded in Volume 1713, Page 102, Deed Records of Nueces County, Texas, and also out of a 40 acre tract recorded in Volume 1810, page 224, Deed Records of Nueces County, Texas, and this tract being out of Desiderio Martinez Survey 420, A -857, and Pedro Hinojosa Survey, A -850, Nueces County, Texas, and better depicted on Exhibit A, the metes and bounds description and survey, attached hereto and incorporated herein for all purposes. Full legal title to the Proposed Cemetery Site described above shall be conveyed to the state of Texas, by and through the VLB, by the County, upon acquisition of the property from FHR, by way of a special warranty deed in a form agreed to by the parties and incorporated herein for all purposes as Exhibit B. Such conveyance shall occur within thirty (30) days of receipt of a written request from the VLB. The Parties acknowledge that approximately 4.289 acres of the property to be conveyed will be designated in the proposed special warranty deed as a "no gravesite area." 2. The County shall provide, through San Jacinto Title Services of Corpus Christi, L.L.C. (the "Title Company "), an owner's policy of title insurance covering the Proposed Cemetery site, in an amount equal to the value of the Cemetery Site as determined by an appraisal of the property for use as a cemetery. The County shall pay the cost of the title policy and deliver the policy to the VLB on the date of conveyance of the Proposed Cemetery Site. In addition, the County has provided to the VLB a title commitment for the Proposed Cemetery Site, together with copies of any and all instruments referred to in Schedules B and C of the Title Commitment. Schedule B of that Commitment, to which reference is hereby made, excludes from coverage several items consisting primarily of mineral leases and easements. 3. The County represents and warrants that the Proposed Cemetery Site is within the extraterritorial jurisdiction of the City and shall provide to the VLB, within thirty (30) days of the effective date of this memorandum, the Global Positioning System - derived coordinates in state plane for the northwesterly surveyed property corner of the Proposed Cemetery Site. 4. The VLB acknowledges that the County will acquire and transfer the Surface Estate only to the Proposed Cemetery Site. 5. The City will provide a pumping system and pipeline to the Proposed Cemetery Site VLB Contract No. 09- 052 -000 Effluent (Reclaimed Water) Supply for Irrigation btageAgefErement General Land O(t e; tteterart's`tend aqartt. EXHIBIT F d`.: • .•* ; • Page 2 of 20 to provide Type It reclaimed water for irrigation purposes, at no cost to the VLB. The City will not charge for the reclaimed water, but the quantity will be limited to an average of 50,000 gallons per day at a minimum of 70 gallons per minute, delivered to the boundary of the Proposed Cemetery Site. The Parties acknowledge that this volume of water is subject to seasonal use fluctuations. For example, during winter (usually a time of low demand) the volume of use will usually be reduced to substantially less than 50,000 gallons per day. In Summer (usually a time of peak demand) however, the volume will increase to around 100,000 gallons per day. The VLB shall notify the City when starting construction of the State Veterans' Cemetery, and the City will deliver the pipeline to the boundary of the site within twelve (12) months of such notice. 6. The City will allow connection to an existing 16 -inch water line adjacent to the Proposed Cemetery Site in Carbon Plant Road for domestic and fire water purposes. The City hereby confirms that there is adequate fire flow at the water line. The City agrees to install fire hydrants in the right -of -way areas adjacent to the property, if such hydrants are required by the City's Fire Marshal. Fees for setting a meter and for water consumption will be standard City rates. If a fire line is required on -site, the line will be built by the VLB. 7. The County will allow an on -site treatment system built by the VLB, provided the system meets all provisions of Texas Health and Safety Code, Chapter 366, On -Site Sewage Disposal Systems. 8. The County provided to the VLB letters from American Electric Power (AEP) and AT &T regarding the availability of electrical and communication services. 9. The City represents that non - public infrastructure (e.g., VLB -owned buildings, streets, drainage, and utilities that are built on -site) plan reviews and building permits will not be required. The City will not conduct any inspections of the non - public infrastructure improvements. 10. The Proposed Cemetery Site is within the extraterritorial jurisdiction limits of the City. The City will use its best efforts to annex the Site into the City of Corpus Christi, pursuant to Section 43.028 of the Texas Local Government Code. Such annexation procedure will commence upon transfer of the Proposed Cemetery Site to the VLB. Neither platting nor zoning will be required. 11. The City agrees to provide the VLB notice and an opportunity to provide written comments regarding any proposed development, zoning, and/or platting for the adjacent City tract. 12. The County agrees to provide and install six foot (6') high chain link fences on the north and north -east sides of the Site at no cost to the VLB. Fence will be installed prior to commencement of construction. The VLB shall notify the County when starting construction of the proposed cemetery, and the County will provide the fence within five (5) months of receiving such notice. 13. The County agrees to fulfill and/or abide by all other representation, commitments, and offers set forth in the County's Response to the RFP, which are incorporated herein in their entirety by reference for all purposes. In addition, all Exhibits to this Memorandum are incorporated herein for all purposes. VLB Contract No. 09- 052 -000 Effluent (Reclaimed Water) Supply for Irrigation UfteeAgfertement General Land OEfiseL ttetera 's L nd Board. EXHIBIT F .11 • • Page 3 of 20 14. The VLB will use its best efforts to begin construction of the Proposed State Veteran's Cemetery within five (5) years of the date of conveyance of the Site by the County, and continue with due diligence until the completion of such facilities and improvements, on or before two (2) years after commencement. Failure to commence and continue bona fide construction activities as described above on the Proposed Cemetery Site will subject the property to automatically revert back to the County without the necessity of re- entry, and the conveyance will be of no further force and effect. 15. The County agrees to pay all closing costs and expenses. 16. The Parties acknowledge that if the property conveyed herein or any part thereof is not acceptable by, or ceases in any particular or reason whatsoever to be acceptable to, the VLB in its sole discretion for the purposes indicated herein, the title to the property conveyed hereby shall upon notice of such unacceptable condition in duly recordable form to the County, automatically revert to the County. 17. The parties acknowledge further that the County hereby agrees to assign and transfer to the VLB any covenant of FHR, a Delaware Limited Partnership, to indemnify and hold harmless the County, its successors or assigns, from any and all liabilities, claims, demands and expenses of any kind or nature not the obligation of the County arising or accruing prior to the date of closing, and which are in any way related to the ownership, maintenance, or operation of the subject property by FHR or its affiliates, and all reasonable expenses related thereto including, without limitation, litigation costs and attorneys' fees, but not including any matter to the extent caused by the negligence or legal fault of the County or its employees or agents, or any matter relating to the pre - closing inspections for the Property by the County or its agents hereunder. 18. The County further agrees to assign any /all environmental remediation obligations provided by FHR. The proposed environmental remediation obligations of FHR are as follows: (1.) As used herein, the term "Pre - Closing Contamination" shall mean soil and/or water environmental contamination (if any) on or about the Property to the extent, and only to the extent, that (i) such contamination existed as of Closing; (ii) such contamination requires remediation under applicable law; and (iii) such contamination was caused by or arose out of the activities of FHR (or FHR's predecessors) on or in the vicinity of the Property, and was not caused or materially aggravated by the County or County's successors or assigns. (ii.) From and after Closing, FHR shall retain responsibility (as between Flint Hills and the County) for remediating Pre - Closing Contamination in accordance with applicable law. The State agrees to environmental remediation, as follows, if the Property is re- conveyed or reverts to the County. (i.) As used herein, the term "State's Contamination" shall mean soil and/or water environmental contamination (if any) on or about the Property to the extent, and only to the extent, that (i) such contamination existed as of the effective date of such reconveyancc or reversion of the Property to the County (the VLB Contract No. 09- 052 -000 Effluent (Reclaimed Water) Supply for Irrigation (NF g- -ement General Land Office / Vhtec&h's Lai d`t3bard.`• ' •EXHIBIT F • �' • • e Page 4 of 20 "Reconveyance or Reversion Closing Date "); (ii) such contamination requires remediation under applicable law; and (iii) such contamination was caused by, or arose out of, the activities of the VLB on or in the vicinity of the Property, and was not caused or materially aggravated by FHR or its predecessors, successors, or assigns. (ii.) From and after the Reconveyance or Reversion Closing Date, the VLB shall retain responsibility (as between the VLB and the County) for remediating the VLB's Contamination in accordance with applicable law. 19. The County and the VLB agree to enter into an Indemnification Agreement prior to Closing for purposes of setting out indemnification assignment and environmental remediation obligations of the respective parties as described in paragraph 18 above. This Memorandum shall be effective upon the date executed by the last party. The VLB may terminate this Memorandum immediately upon written notice to the County if: (i) the Proposed Cemetery Site is not approved by the USDVA for the location and establishment of a State Veterans' Cemetery; or (ii) if at any time prior to the commencement of operation of the Proposed Cemetery Site as a Texas State Veteran's Cemetery, it is discovered or determined, in the sole discretion of the VLB, that the site is not suitable for such purpose. This Memorandum may be amended only by written agreement of the parties. SIGNATURE PAGE FOLLOWS VLB Contract No. 09- 052 -000 Effluent (Reclaimed Water) Supply fot (rrigatiQn areA4Mement General Land Office/ Itett6Z's Lanii Beard EXHIBIT F • • • • ae • a • Page 5 of 20 SIGNATURE PAGE TO VLB CONTRACT No. 09- 052 -000 MEMORANDUM OF AGREEMENT FOR LAND DONATION FOR STATE VETERANS' CEMETERY IN CORPUS CHRISTI, TEXAS VETERANS LAND BOARD Y L. LAINE, CHIEF CLERK/ DEPUTY LAND COMMISSIONER Date of execution: PAUL E. MOORE EXECUTIVE SECRETARY Approved: NUECES COUNTY, TEXAS SAMUEL LOYD NEAL, JR. NUECES COUNTY JUDGE Date of execution,/'' __61/ Approved By: Diana Barrera Nueces County Clerk CITY OF CORPUS CHRISTI ,CITY MANAGER Ai,jgR.eSCoIx,r ate of execution: £% (16 0? l+`2 00T-,Z50.. AUTIi °RIM) IT MUNCH_ ... SECRETARY . ATTEST. AFINIANDO CHAPA CITY SECHET?,R" Effluent (Reclaimed Water) Supply for. Irrigatioq.User Agreement General Land OfficeMetertn's i n i. oarfl s EXHIBIT F ' :. = ' ' Page 6 of 20 EXHIBIT "A" 45943 METES AND BOUNDS DESCRIPTION OF A 54.837 ACRE TRACT Being 54.837 acres of land, more or less out of a 2.158 acre tract recorded in Document No. 2004035681, Official Public Records of Nueces County, Texas, and out of a 34.19 acre tract recorded in Volume 2130, Page 84, Dad Records of Nueces County, Texas, and out of a 54.91 acre tract recorded in Volume 1713, Page 102, Deed Records of Nueces County, Texas, and also out of a 40 acre tract recorded in Volume 1810, Page 224, Deed Records of Nueces County, Texas, and this tract being out of Desidcrio Martinez Survey 420, A -857, and Pedro Hinojosa Survey, A -850, and this 54.837 ace tract being more particularly described by metes and bounds as follows: Beginning at a found 5B -inch iron rod for the southeast comer oft is tract and said 34.19 acre tract, said corner also being the southwest comer of a 1.17 acre tract recorded in Volume 1810, Page 224, Deed Records of Nueces County, Texas, and said comer being on the north right - of-way line of Interstate Highway 37; Thence N 59 -22 -23 W with the south boundary of this tract and said 34.19 acre tract, the same being the north right -of -way line of 1.1-1.37, 67.14 feet, to a found broken concrete monument for a corner of this tract; Thence N 57.04.52 W and continuing with the south boundary of this tract and said 34.19 acre tract, the same being the north sight -of -way line of 1.11. 37, 1499.83 feet, to a found TxDot concrete monument with a brass disk for a comer of this tract; Thence N 53 -29 -10 W and continuing with the south boundary of this tract and said 34.19 acre tract, the same being the north right-of-way line of I.H. 37, 400.92 feet, to a found TxDot concrete monument with a brass disk for a comer of this tract; Thence N 47 -18 -22 W and continuing with the south boundary of this tract and said 34.19 acre tract, the same being the north right -of -way line of 1.H. 37, 256.03 feet, to the southwest corner of this tract, the same being the southeast corner of said 2.158 acre tract and said corner being the intersection of the north right -of -way line of I.H. 37 with the proposed east right -of- -way line of the Joe Fulton Trade Corridor; Thence N 15 -54-24 W with the west boundary of this tract and said 2.158 acre tract, the same being the proposed east right -of -way line of the Joe Fulton Trade Corridor, at 1.21 fat pass a found TxDot concrete monument with a brass disk, in all 138,00 het to a found TxDot concrete monument with a brass disk for a corner of this tract; Thence N 08 -52 -34 E with the west boundary of this tract and said 2.158 acre tract, the same being the proposed east right - of-way line of the Joe Fulton Trade Corridor, 120.00 feet, to a found TxDot concrete monument with a brass disk fora corner of this tract; Thence N 65 -11 -10 E with the west boundary of this tract and the proposed east right -of- way line of the Joe Fulton Trade Corridor and entering said 2.158 acre tract, 72.11 feet, to a found TxDot concrete monument with a brass disk for an inside corner of this tract, said corner being on the east boundary of said 2.158 acre tract; Thence N 05 -25 -57 E with the west boundary of this tract and the proposed east right -of- way line of the Joe Fulton Trade Corridor, at 151.33 feet leave said 34.19 acre tract and enter said 40 acre tract, at 293.33 feet leave said 40 acre tract and enter said 54.91 acre tract, in all 317.17 feet, to a set 5/8 -inch iron rod with cap for the northwest comer of this tract; Thence S 88 -44-26 E with the north boundary of this tract, at 820.80 feet leave said 54.91 acre tract and enter said 40 acre tract, in all 1 401.63 feet, to a set 5/8 -inch iron rod with cap for the north corner of this tract; Page 1 of 2 Effluent (Reclaimed Wptgr,. Supply iso, Irriiatjor,f./ser Agreement General Land OfficeY tPeMi r&'s band B a4 } EXHIBIT F . • • • Page 8 of 20 EXHIBIT "A" 45943 Thence S 34 -47 -58 E with the north boundary of this tract, 1186.18 feet, to a set 5/S -inch iron rod with cap for the northeast corner of this tract; Thence S 20 -59 -39 W with the east boundary of this tract, at 67.63 feet pass a found 5/8- inch iron rod being the northwest corner of said 1.17 acre tract • the same being the northeast corner of said 34.19 acre tract, in all 914.43 feet to the point of beginning and containing 54.837 acres of land, more or less. / Of Z 4P'4'1Sie •. •F•T GEORt1E RUItAI.t /ltt/l ti\ yACC Note: Hearings we State Plane Grid bearings. Page 2 of 2 Effluent (Reclaimed Wetr)« Supply for Irriga jor, User Agreement General Land Officel,VefretPri's 4anrPBgal '. EXHIBIT F Page 9 of 20 EXHIBIT A L\1WtgW *.k3N \OfUGry6C1WW-C -114.1 744/10 157:11 N WI V 4 h it r _ 0 54.837 ACRE TPIACT I 111ec ®Mf 'AND A YENS IQWDARY VEY tall FilmnsimMs 1M opwMLtnsY1111 1 M l a111/d M/ OW 1I 1 M yU/O 11017111101 wow Mlq Effluent (Reclaimed Water); Suppl+� los IrriiaVof&Jser Agreement General Land Office)eitym's I.anji► gprii EXHIBIT F ' +" ' +° a•* K. • • • •• Page 10 of 20 EXHIBIT "B" SPECIAL WARRANTY DEED STATE OF TEXAS § KNOW ALL MEN BY THESE PRESENTS: COUNTY OF NUECES § WHEREAS, The Texas Legislature has authorized the Veterans' Land Board of the State of Texas to plan and design, operate, maintain, enlarge, or improve state Veterans cemeteries on land duly selected by the Veterans' Land Board of the State of Texas for such cemetery sites; and WHEREAS, Nueces County, a political subdivision of the State of Texas, has been duly selected by the Veterans' Land Board of the State of Texas to provide one such site for such use; and WHEREAS, Nueces County as Grantor is ready to make one such site available to the Veterans' Land Board of the State of Texas for the establishment within a reasonable time of a State Veterans Cemetery. NOW THEREFORE, Nueces County, acting by and through its duly authorized officials, ( "Grantor "), for and in consideration of the premises stated and the obligation of the Veterans' Land Board of the State of Texas, ( "Grantee "), hereby conveys to Grantee the SURFACE ESTATE ONLY of the following described tract of land, situated in Nueces County, Texas, to -wit: Being 54.837 acres of land, more or less out of a 2.158 acre tract recorded in Document No. 2004035681, Official Public Records of Nueces County, Texas, and out of a 34.19 acre tract recorded in Volume 2130, Page 84, Deed Records of Nueces County, Texas, and out of a 54.91 acre tract recorded in Volume 1713, Page 102, Deed Records of Nueces County, Texas, and also out of a 40 acre tract recorded in Volume 1810, Page 224, Deed Records of Nueces County, Texas, and this tract being out of Desiderio Martinez Survey 420, A -857, and Pedro Hinojosa Survey, A -850, and this 54.837 acre tract being more particularly described by metes and bounds as follows: Page 1 of 7 Effluent (Reclaimed Water) Supplx for Irrigation Llser Agretierpent General Land Office/ Veteran's fond Ejoprd, • „. EXHIBIT F ` " • • • Re o Page 12 of 20 Beginning at a found 5/8 -inch iron rod for the southeast corner of this tract and said 34.19 acre tract, said corner also being the southwest corner of a 1.17 acre tract recorded in Volume 1810, page 224, Deed Records of Nueces County, Texas, and said corner being on the north right -of -way line of Interstate Highway 37; Thence N 59 -22 -23 W with the south boundary of this tract and said 34.19 acre tract, the same being the north right -of- way line of I.H. 37, 67.14 feet, to a found broken concrete monument for a corner of this tract; Thence N 57 -04-52 W and continuing with the south boundary of this tract and said 34.19 acre tract, the same being the north right -of -way line of I.H. 37, 1499.83 feet, to a found TxDot concrete monument with a brass disk for a comer of this tract; Thence 53 -29 -10 W and continuing with the south boundary of this tract and said 34.19 acre tract, the same being the north right -of -way line of I.H. 37, 400.92 feet, to a found TxDot concrete monument with a brass disk for a corner of this tract; Thence N 47 -18 -22 W and continuing with the south boundary of this tract and said 34.19 acre tract, the same being the north right -of -way line of I.H. 37,256.03 feet, to the southwest corner of this tract, the same being the southeast comer of said 2.158 acre tract and said corner being the intersection of the north right -of -way line of I.H. 37 with the proposed east right -of -way line of the Joe Fulton Trade Corridor; Thence N 15 -54 -24 W with the west boundary of this tract and said 2.158 acre tract, the same being the proposed east right -of -way line of the Joe Fulton Trade Corridor, at 1.21 Page 2of7 Effluet (Reclaimed Water) Supply fonlrrigatipn,l,ISerAgreg ent General Land Office / Veteran's 1arrcJBpard • • EXHIBIT F • • • • ► • • Page 13 of 20 feet pass a found TxDot concrete monument with a brass disk for a corner of this tract; Thence N 08 -52 -34 E with the west boundary of this tract and said 2.158 acre tract, the same being the proposed east right -of -way line of the Joe Fulton Trade Corridor, 120.00 feet, to a found TxDot concrete monument with a brass disk for a corner of this tract; Thence N 65 -11 -10 E with the west boundary of this tract and the proposed east right -of -way line of the Joe Fulton Trade Corridor and entering said 2.158 acre tract, 72.11 feet, to a found TxDot concrete monument with a brass disk for an inside corner of this tract, said comer being on the east boundary of said 2.158 acre tract; Thence N 05 -25 -57 E with the west boundary of this tract and the proposed east right -of -way line of the Joe Fulton Trade Corridor, at 151.33 feet leave said 34.19 acre tract and enter said 40 acre tract, at 293.33 feet leave said 40 acre tract and enter said 54.91 acre tract, in all 317.17 feet, to set 5/8- inch iron rod with cap for the northwest corner of this tract; Thence S 88 -44 -26 E with the north boundary of this tract, at 820.80 feet leave said 54.91 acre tract and enter said 40 acre tract, in all 1401.63 feet, to a set 5/8 -inch iron rod with cap for the north corner of this tract; Thence S 34 -47 -58 E with the north boundary of this tract, 1186.18 feet, to a set 5/8 -inch iron rod with cap for the northeast corner of this tract; Thence S 20 -59 -39 W with the east boundary of this tract, at 67.63 feet pass a found 5/8 -inch iron rod being the northwest corner of said 1.17 acre tract the same being the northeast corner of said 34.19 acre tract, in all 914.43 feet to Etflugt (Reclaimed Water) Supply for IrrigatioWser Agreement General Land Office/ Veteran'siana Board ; the point of beginning and containing 54.837 acres of land, more or less. Note: Bearings are State Plane Grid bearings. This conveyance is made SUBJECT HOWEVER, to the following exceptions: All easements, reservations, restrictive covenants and use regulations shown as exceptions to coverage in Schedule B of the Commitment For Title Insurance furnished Grantee as part of the consideration for this conveyance, to the extent the same are valid and subsisting; and all matters that are revealed in the survey furnished to Grantee, receipt of which is acknowledged Such above - described property (subject to the exceptions stated or referred to above), together with all and singular the rights and appurtenances belonging in any way to such property, shall hereinafter collectively be referred to as the "Property ". 1. The Property is intended for use as a cemetery and has disclosed to Grantee any and all information known to Grantor and relevant to the intended use of the Property. Grantor specifically represents that it is not aware of any active oil, gas and /or mineral leases which are producing from beneath and under the surface of the land conveyed hereby that would interfere with the use of the surface of the Property as a cemetery. 2. Grantee accepts the Property in its "AS IS" condition, without representation or warranty from Grantor (except as expressly provided for herein). Grantee recognizes that the Property has been used by others for certain oil and gas exploration/ production activities and that various mineral leases are listed on the title commitment furnished on the property. Grantor has located various wells that had been plugged and abandoned; otherwise, no drilling or other mineral exploration operations were observed by the Grantor on the surface of the property. 3. In the event Grantor requires access to the Property after the date of this instrument for any reason relating to environmental conditions for which Grantor is responsible for remediating pursuant to applicable law, Grantee (on behalf of Grantee and its successors and assigns) here grants Grantor (and its contractors) reasonable access to the Property for such purposes, without charge. If in the future, any environmental conditions are discovered on the Property for which Grantor is responsible for remediating pursuant to applicable law, Grantee (on behalf of Grantee and its successors and assigns) hereby agrees to not seek to require Grantor to conduct remediation activities in excess of that required by applicable law. Grantee represents that it has conducted, at substantial expense, extensive environmental studies of the Property regarding its plans to utilize the Property as a cemetery. Page 4 of 7 Effluent (Reclaimed Water) Supply for Irrigation User Agreement General Land Office/ Veteran's Land Board.`• ••• • *00 • • • : • EXHIBIT F - °- ' • • • • Page 15 of 20 4. Use Restriction. Grantor and Grantee respectively covenant, represent and warrant as follows: (a.) (i.) The Property shall be used only as a cemetery and for related governmental purposes, and in no event shall the surface estate be used for single family dwellings, multiple family dwellings, hotels /motels, day care centers, educational facilities, churches (except in the case of a chapel for use in conjunction with the cemetery), social centers, hospitals, elder care facilities, and/ or nursing homes. In no event shall potable water wells be installed on the Property. (ii.) No gravesites shall be located on that portion of the Property indicated as the "No Gravesites Area" on the survey map attached hereto as Exhibit 1. (b.) The covenants, conditions and restrictions set forth in this Paragraph 4 shall apply to and bind each and every owner of any part of the Property and their respective heirs, devises, personal representatives, successors and assigns, and shall operate as a covenant running with the land and passing with the title to the Property and any part thereof. (c.) The covenants, grants and restrictions contained in this Paragraph 4 shall continue unless and until terminated by Grantor (or, if Grantor ceases to exist, by Grantor's successors or assigns) and Flint Hills Resources, LP (or, if Flint Hills ceases to exist, by Flint Hills Resources, LP's successors or assigns). Invalidation of any of the terms and conditions of these restrictions, whether by court order or otherwise, shall in no way affect any of the other terms and conditions, all of which shall remain in full force and effect. TO HAVE AND TO HOLD the above described premises, together with all and singular, the rights and appurtenances in anywise belonging, unto the State of Texas, its successors and assigns forever, and Grantor does hereby bind itself, its successors and assigns, to WARRANT AND FOREVER DEFEND all and singular the said premises unto Grantee, the State of Texas, its successors and assigns, against every person whomsoever lawfully claiming or to claim the same or any part thereof, by through, or under the Grantor but not otherwise, and subject to the exceptions stated herein. Automatic Reversion. Grantee, on behalf of Grantee and its successors and assigns, agrees that unless within five (5) years from date of this conveyance: (i.) the necessary governmental permits /approvals (if any) required for the use of the Property . as an official State Veterans' Cemetery have been procured, and (ii.) bona fide construction activities relating to a State Veterans' Cemetery have commenced on the Property then this conveyance shall be null and void and such premises shall absolutely revert to the Grantor, without necessity for suit or re -entry by the County of Nueces or Efffcf'EOf�fe�laimed Water) Supply for Irrigation User Agreement General Land Office / Veteran's Land Board �• ; 4... e • * . • EXHIBIT F • * * • • o • _ • _ • ♦ e • s • • a • Page 16 of 20 its successors. Upon beginning construction of the State Veterans' Cemetery, bona fide construction activity shall continue thereafter with due diligence, until the completion of such facilities and improvements on or before two (2) years after the date of such construction commencement, or the Property will automatically revert back to the County, without necessity of re- entry, and this conveyance will be of no further force and effect. In the event of such reversion or any reconveyance by the VLB: (i) Grantee will ensure that the surface of the Property (to the extent impacted by Grantee or its assigns) and any improvements thereon are in a reasonable safe and stable condition; (ii) Grantee will not allow any interest to attach that may adversely impact title in the event of reversion or reconveyance to Grantor; (iii) Grantor will grant Grantee access rights of the same type and for the same purposes as Grantee granted to Grantor in Paragraph 3 above; and (iv) the parties will reasonably cooperate in drafting, executing, and recording (upon the request of either party) a document that would provide record notice of such reversion or reconveyance. IN WITNESS WHEREOF, the County of Nueces has caused these presents to be signed by its duly authorized County Judge, and attested by it duly authorized County Clerk, at Corpus Christi, 4 Nueces County. Texas, this £ day of ACCEPTED: THE STATE OF TEXAS ON BEHALF OF THE VETERANS LAND BOARD NUECES COUNTY, TEXAS ?i, 2008. PATTERSON MMISS ONER, GENERAL LAND OFFICE Chairman, Veterans Land Board Date of execution: Q 1 i t IOT PAUL E. MOORE EXECUTIVE SECRETARY Veterans' Land Board �/f� Contents Legal CJ� Deput b • ^' t f ia. SAMUEL LOYD NEAL, JR. NUECES COUNTY JUDGE Date of execution: "A°" Y . ATTEST: � �9 Ms. Diana T. Barrera NUECES COUNTY CLERK Effiel6fitlf72eclaimed Water) Supply for Irrigation User Agreement General Land Office / Veteran's Land Board." • •• • • *; • •t EXHIBIT F • • ' • • • • ; • • ; Page 17 of 20 STATE OF TEXAS COUNTY OF NUECES BEFORE ME, the undersigned, a notary public in and for said County and State, on this day personally appears SAMUEL LOYD NEAL, JR., known to me to be the person and officer whose name is subscribed to the foregoing instruments and acknowledged to me that the same was the act of the said County of Nueces, State of Texas, and that he executed the same as the act of such County for the purposes and consideration therein expressed, and in the capacity therein stated. GIVEN under my hand and seal of office this, the y day of t±1 , 2008. Notary Pubic, Nueces County, Texas VICKI KEACH NOTARY PUBLIC STATE OF 11`XAS �P. My C.ort missioh Exples, Effluenr.e8iaimed Water) Supply for Irrigation User Agreement General Land Office / Veteran's Land Board • • • • ` °: .'. • • EXHIBIT F ♦ • • • ' • • -• • • s • • • • a • & • ♦ a • • ♦ a Page 18 of 20 EXHIBIT "1" METES AND BOUNDS DESCRIPTION OF SITE'A' Being 4.289 acres of land, more or less, referred to as Site 'A' and being out of a 54.837 acre tract, said 54.837 acre tract being out of a 2.158 acre tract recorded in Document No. 2004035681, Official Public Records of Nueces County, Texas, and out of a 34.19 acre tract recorded in Volume 2130, Page 84, Deed Records of Nueces County, Texas, and out of a 54.91 acre tract recorded in Volume 1713, Page 102, Deed Records of Nueces County, Texas, and also out of a 40 acre tract recorded in Volume 1810, Page 224, Deed Records of Nueces County, Texas, and being out of Desiderio Martinez Survey 420, A- 857, and Pedro Hinojosa Survey, A-850, and this 4.289 acre tract being more particularly described by metes and bounds as follows: Beginning at the southeast corner of this tract, said coma being on the south boundary of said 54.837, the same being the north right -of -way line of Interstate Highway 37, and said confer bearing N 59 -22 -23 W, 67.14 feet, N 57 -04-52 W, 1338.92 feet, from a found 5/8 -inch iron rod for the southeast corner of said 54.837 acre tract and said 34.19 acre tract, the same being the southwest center of a 1.17 acre tract recorded in Volume 1810, Page 224, Decd Records ofNueccs County, Texas; Thence N 57 -04 -52 W with the south boundary of this tract and said 54.837 acre tract, the same being the north right -of -way line of 11137, 160.91 feet, to a found TxDOT concrete monument with a brass disk for a comer of this tract; Thence N 53 -29 -10 W and continuing with the south boundary of this tract and said 54.837 acre tract, the same being the north right -of -way line of 11137, 327.35 feet, to the southwest corner of this tract; Thence entering said 54.837 acre tract and leaving said right -of -way line, North, 213.35 feet, to the northwest corner of this tract; Thence N 81 -01 -39 E with the north boundary of this tract, 384.71 feet, to a corner of this tract; Thence East with the north boundary of this pact, 80.00 feet, to the northeast corner of this tract•, Thence South with the east boundary of this tract, 460.00 feet, to a corner of this tract; Thence S 32 -55 -07 W with the east boundary of this tract, 114.37 feet, to the point of beginning and containing 4.289 acres of land, more or less. Effluent (Reclaimed Water) Supply for Irrigation User Agreement •General Land Office/ Veteran's Land Board ••• • ••• ¢ • - • • EXHIBIT F • • . ° • • • • • o • • • • 4 0 S. Page 19 of 20 c \yr AIN forAI V 4 t4 L\Maq4o -jury 000011 45/21 P1 aI 1 1 EXHIBIT 1 .,, i i� .'i +i -- t 1[q „ ,t; // >a It d p$x ` MMR K 1 \ \\ I }g r \ \\ 1 ;r 1 r \\ \ of 4 \\ 1 \\ \\ o a \\ 1w ii 0 u1 w 1 1 1 1 • '1 I k I 54.037 ACRE TT ACT AND SITE 'A W- e MUMMY MET 41,-41t— Fat SEW 1.1_0 Effluent (Reclaimed Water) Supply for Irrigation User Agreement General Land Office/ Veteran's Land Board . 4 • " f • " EXHIBIT F • • 4 • w . < °" • � 4id — y a1TS Page 20 of 20 AGENDA MEMORANDUM for the City Council Meeting of August 14, 2012 DATE: TO: FROM: Daniel Biles, P.E., Director of Engineering Services danb @cctexas.com, (361) 826 -3729 August 10, 2012 Ronald L. Olson, City Manager Michael Morris, Director of Parks and Recreation michaelmo @cctexas.com, (361) 826 -3464 Approval of Resolution: Multiple Use Agreement with Texas Department of Transportation (Billings and Clem's boat ramps and parking lot project) CAPTION: Resolution authorizing the City Manager, or designee, to execute a Supplemental Agreement to the Master Multiple Use Agreement with the Texas Department of Transportation (TxDOT) for the Billings and Clems Parking Lot Improvements located within State right -of -way of Park Road 22 adjacent to the John F. Kennedy Memorial Causeway. PURPOSE: To determine respective responsibilities of the City of Corpus Christi and the State of Texas. BACKGROUND AND FINDINGS: The City of Corpus Christi has requested that the State of Texas permit repairs to the bulkhead, boat ramps and parking facilities with lighting, located within State right -of -way of Park Road 22 on the John F. Kennedy Memorial Causeway in Nueces County. The city currently leases this property from the Texas General Land Office. Repairs to the bulkhead and boat were completed in Fall 2011. Construction of Parking Lot Improvements is anticipated to start Fall 2012. ALTERNATIVES: No other alternatives were evaluated. OTHER CONSIDERATIONS: The State of Texas has indicated its willingness to approve such improvements and other uses as long as such improvements and uses are in the public interest and will not damage the highway facilities, impair safety, impede maintenance or in any way restrict the operation of the highway facility. C:AProgram Files \Granicus \Legistar5\ Packet \993_ City Council _8_14 2012 \0006_1_Memo - MUA w TXDOT Billings Clems.docx CONFORMITY TO CITY POLICY: Conforms to statutes regarding agreements between the State of Texas and municipalities. EMERGENCY / NON - EMERGENCY: Not Applicable DEPARTMENTAL CLEARANCES: Parks and Recreation FINANCIAL IMPACT: ❑ Operating ❑ Revenue ❑ Capital X Not applicable Fiscal Year: 2011 -2012 Project to Date Expenditures (CIP only) Current Year Future Years TOTALS Line Item Budget Encumbered / Expended Amount This item BALANCE Fund(s): Comments: This project has been funded in part by a grant from the Texas Parks and Wildlife Department — Boating Access Grant, as well as through donations from other agencies including the Saltwater- fisheries Enhancement Association (SEA). RECOMMENDATION: City Staff recommend the approval of the Multiple Use Agreement with the Texas Department of Transportation. LIST OF SUPPORTING DOCUMENTS: Location Map C:AProgram Files \Granicus \Legistar5\ Packet \993 City Council 814 2012 \00061Memo - MUA w TXDOT Billings Clems.docx File : \Mproject \councilexhibits \exh5243c.dwg LOCATION MAP NOT TO SCALE a. PROJECT # 5243 VICINITY MAP NOT TO SCALE BILLING'S AND CLEM'S MARINA BOAT RAMP REHABILITATION CITY COUNCIL EXHIBIT CITY OF CORPUS CHRISTI, TEXAS DEPARTMENT OF ENGINEERING SERVICES PAGE: 1 of 1 Resolution authorizing the City Manager, or designee, to execute a Supplemental Agreement to the Master Multiple Use Agreement with the Texas Department of Transportation (TxDOT) for the Billings and Clems Parking Lot Improvements located within State right -of -way of Park Road 22 adjacent to the John F. Kennedy Memorial Causeway. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF CORPUS CHRISTI, TEXAS: SECTION 1. The City Manager, or designee, is authorized to execute a Supplemental Agreement to the Master Multiple Use Agreement with the Texas Department of Transportation (TXDOT), executed on March 2nd, 1979, for the Billings and Clems Parking Lot Improvements located within State right -of -way of Park Road 22 adjacent to the John F. Kennedy Memorial Causeway. ATTEST: THE CITY OF CORPUS CHRISTI Armando Chapa City Secretary Joe Adame Mayor C: \Program Files \Granicus \Legistar5 \Packet \993_City Council _8_14_2012 \0006_3_Resolution - MUA w TXDOT Billings Clems.docx Corpus Christi, Texas of , 2012 The above resolution was passed by the following vote: Joe Adame Chris N. Adler Kelley Allen Larry Elizondo, Sr. Priscilla G. Leal David Loeb John E. Marez Nelda Martinez Mark Scott C: \Program Files \Granicus \Legistar5 \Packet \993_City Council _8_14_2012 \0006_3_Resolution - MUA w TXDOT Billings Clems.docx SUPPLEMENTAL AGREEMENT TO MASTER MULTIPLE USE AGREEMENT FOR BULKHEAD REPAIR, BOAT RAMP REPAIR AND PARKING FACILITIES WITH LIGHTING ON PARK ROAD 22 STATEOF TEXAS § COUNTY OF TRAVIS § This agreement supplements the previously executed Master Multiple Use Agreement for bulkhead repair, boat ramp repair and parking facilities with lighting on Texas Department of Transportation Right -of -Way within Nueces County dated the 2nd day of March_, 1 79, by and between the Texas Department of Transportation, hereinafter referred to as "State ", and the City of Corpus Christi, Texas, hereinafter referred to as the "City". The effective date of this Supplemental Agreement is that date on which the State affixed its signature. WITNESSETH WHEREAS, the City has requested the State to permit the repairs to the bulkhead, boat ramp and parking facilities with lighting, located within State right -of -way of Park Road 22 on the John F. Kennedy Memorial Causeway in Nueces County , and being more particularly described in the exhibits attached hereto and made a part hereof; and WHEREAS, the State is willing to approve the establishment of such repairs as evidenced by the State Highway Commission Minute Order Number 65169 and the City has complied with all conditions of State Highway Commission Minute Order 65169 by the execution of a Master Agreetent for Construction, Maintenance, and Operation of the bulkhead repair, boat ramp repair and parking facilities with lighting on Texas Department of Transportation right -of -way; and NOW, THEREFORE, Sidewalks, curb, ramps and other pedestrian elements to be constructed by the City shall be in accordance with the requirements of Title II of the American with Disabilities Act (ADA) and with the Texas Accessibility Standards (TAS). Elements constructed by the City and found not to comply with ADA or TAS shall be corrected at the entire expense of the City. The City shall submit the plans to the Texas Department of Licensing and Regulation (TDLR) for review and inspection. The City shall furnish TxDOT with a TDLR Certification of Substantial compliance for this project, and Page 1 of3 NOW, THEREFORE, TxDOT has made it a policy to be a proactive participant of the environment. It is the intent of this office, along with the City, to show a "good faith effort" with regards to this construction project and the prevention of any adverse effects to the environment during construction activities and NOW, THEREFORE, for all project - specific locations (PSI.'s) on or off the right of way (material sources, waste sites, parking areas, storage areas, field offices, staging areas, haul . roads, etc.), signing the Agreement certifies compliance with all applicable laws, rules and regulations pertaining to the preservation of cultural resources, natural resources, and the environment as issued by the following or other agencies: Occupational Safcty and Health Administration, Texas Commission on Environmental Quality (TCEQ), Texas Department of Transportation, Texas Historical Commission, Texas Parks and Wildlife Department, Texas Railroad Commission, U.S. Anny Corps of Engineers, U.S. Department of Energy, U.S. Department of Transportation, U.S. Environmental Protection Agency, U.S. Federal Emergency Management Agency, and the U.S. Fish and Wildlife Service and NOW, THEREFORE, it is understood that any uses contemplated under this Agreement is subject to the rights of the United States of America as described in that certain Spoil Disposal and Right-of -Way Easement Deed filed in the real property records of Nueces County, Texas on November 13, 1947 in Vol. 382, Page 307, Clerk's filing no. 250736. NOW, THEREFORE, in consideration of the premises and of the mutual covenants and agreements of the parties hereto to be by them respectively kept and perfonned as set forth in the Master Agreement; the City is hereby granted permission for construction, maintenance and operation of the bulkhead repair, boat ramp repair and parking facilities with lighting on State right -of -way of Park Road 22 on the John F. Kennedy Memorial Causeway in Nueces County , Texas, as more particularly described in the attached exhibits, to wit: a) Exhibit A - site location b) Exhibit B - site foundation plan c) Exhibit C - plans and specifications d) Exhibit D - TxDOT Form No. 1560, Certificate of Insurance Pagc2of3 IN WITNESS WHEREOF, the parties have hereunto affixed their signatures, the City on the day of , 20 , and the State on the day of , 20 CITY OF CORPUS CHRISTI By: City Manager STATE OF TEXAS Certified as being executed for the purpose and effect of activating and /or carrying out the orders, established policies, or work programs heretofore approved by Texas Department of Transportation Commission under the authority of Minute Order No. 100002 By: Director, Maintenance Division APPROVAL RECOMMENDED: District Engineer Director, Design Division Page 3 of 3 San Patricio County NUECES BAY CORPUS CHRISTI BAY HWY 44 1.tl. 43 P(� o 4� \moo I / } fit VICINITY MAP NOT TO SCALE MARINA PARKING AREA REHABILITATION PROJECT# 5243 PREPARED BY URS CORPORATION 711 NORTH CARANCAHUA, SUITE 1620 CORPUS CHRIST?, TX 78475 PH: (361) 884 -7140 FAX: (36 ?) 888 -4169 BILLING'S BAIT STAND & CLEM'S MARINA 0428 s.P.1.a. CWPPUS TXTASTI, TEXAS PREPARED BY: URS ry1MOATCNSMNGUW nurc Ma COVVICH7411 Tw$M@ /IC O$NCSWI1 W OORf.SEOAp SW CITY of CORPUS CHRISTI TEXAS Deportment of Engineering Services MARINA PARKING AREA REHABILITATION CONSTRUCTION SITE VICINITY MAP EXHIBIT NO. 1 d h gi 1 4 II • PREPARED BY: 111 NOUNC.I3WKAusN,nm lao CORPUS CUE" nut ram PN Wnwasa iMOwnal410 !MOM: faXIN0.1168 C!TY of CORPUS CHRISTI TEXAS Deportment of Engineering Services 111 o sD eo , SCALE: ,•.eo KEY Ej AMATO BE PAVED MARINA PARKING AREA REHABILITATION SITE LAYOUT EX $c IT ND. SGLE 1•Ne01 sI Pawl Tatla 1=112:=1==1 IM 011141u404 =I 0 EMI LOI L...1_ Q 1=7 �- IVO qN Mi NI0111 RCM 1=11=11=N w NYN\ ©©"r lur rNNwr ©mQ:4 SW Wm.. MI EDE ©®NIM IN NNA'I INEMN 0© L=3==1 N=MN 0 0-- YN .ii I D I=1) ....r• . 1 � . fl r 11 Mill ©=ECM_ 0*1•60V 01 i11* "WNW MO MMM IMI =I=_ ©®1=1:=1_ f0 MINI IN ©©L.i.a1:.LINN an 0144•11I3111 NMI Cf3 In'N1Y111 0IMI Yr C3==rI B! Pwt! Ms fNMvrl IM 011141u404 W M Ittr fir WNW/ 1A SW NI *I CUM IVO qN Mi NI0111 Il1 DM w NYN\ w lur rNNwr 1w SW Wm.. lid IY Yr IN NNA'I PI wN woar 110 UI YN MI 1013.3r1r W 11Y__WI_ 1* Oh -, 801.1•1211M I1, NO 0*1•60V 01 i11* "WNW MO W W p0Y111 CO f0 MINI IN Il. an 0144•11I3111 N Mr In'N1Y111 111 Yr iV NM1•11 PREPARED BY: MARINA PARKING AREA REHABILITATION 111 NORnN CMMIGVRIAQNR Imo CORN:101MA T0x 7?W1 tit 01111144140 U0$CCRP.M0110.3t61 CITY of CORPUS CHRIST) TEXAS Department of Engineering Services METES AND BOUNDS Erhart NO. Exhibit D TXDOT Form 1650 — Certificate of Insurance To be provided pending award of construction contract. AGENDA MEMORANDUM Future Item for the City Council Meeting of July 31, 2012 Action Item for the City Council Meeting of August 14, 2012 DATE: July 17, 2012 TO: Ronald L. Olson, City Manager FROM: Mark E. Van Vleck, P.E., Interim Director, Department of Development Services MarkVV @cctexas.com (361) 826-3246 PUBLIC HEARING — CHANGE OF ZONING CCLEL Investments, Inc. (Case No. 0612 -01) Change from "RS -6" Single - Family 6 District to "CG -2" General Commercial District Property Address: 6210 South Padre Island Drive CAPTION: PUBLIC HEARING — ZONING Case No. 0612 -01: CCLEL Investments, Inc.: A change of zoning from the "RS -6" Single - Family 6 District to the "CG -2" General Commercial District, resulting in a change of future land use from medium density residential to commercial. The property to be rezoned is a 2.30 -acre portion out of Lot 6, Section 13, Flour Bluff and Encinal Farm and Garden Tracts, located on the north side of South Padre Island Drive (SH 358) and east of Prince Drive. PURPOSE: The purpose of this item is to change the zoning district on property at 6210 South Padre Island Drive from Single - Family to General Commercial to allow for the construction of an auto dealership. RECOMMENDATION: Planning Commission and Staff Recommendation (June 20, 2012): Approval of the change of zoning from the "RS -6" Single - Family 6 District to the "CG -2" General Commercial District. BACKGROUND AND FINDINGS: The purpose of this zoning change is to allow for the construction of an auto dealership on a 3.40 -acre tract of land with frontage on South Padre Island Drive. The area of request is for the rear 2.30 acres because the front 1.10 acres of the property is already zoned "CG -2" General Commercial. The proposed auto dealership will sell new cars and will have a showroom, service shop, and indoor auto parts storage. The service shop would not provide auto body repairs. The rear portion of the property is not proposed for development at this time. The subject property is undeveloped land. To the north of the subject property is vacant land zoned for single - family development. Located to the west is a low- density residential neighborhood with an auto parts store at the South Padre Island Drive (SH 358) frontage. Located to the east is a self- storage facility zoned "CG -2" General Commercial and vacant land zoned "RM -1" Multifamily 1. To the south of the subject property is a freeway (SH 358). To protect single - family uses, the Unified Development Code (UDC) requires that commercial uses provide a buffer yard and screening fence where adjacent to single - family uses. This development would require a 15- foot -wide landscaped buffer yard. The UDC also requires that any lighting not bleed into neighboring properties. ALTERNATIVES: 1. Approve other intermediate zoning classifications or a Special Permit; or 2. Deny the request altogether. OTHER CONSIDERATIONS: N/A CONFORMITY TO CITY POLICY: The requested change of zoning to the "CG -2" General Commercial District would not be consistent with the Future Land use Map, which designates the property for medium density residential uses. Other pertinent policies of the Comprehensive Plan call for encouraging infill development on vacant tracts of land within developed areas and buffering high- intensity commercial areas from low- density residential areas. EMERGENCY / NON - EMERGENCY: Staff is requesting an emergency reading. According to Article II, Section 14 of the City Charter, an item can be classified as an emergency because it calls for "immediate action necessary for the efficient and effective administration of the city's affairs ". This is a routine, non - controversial item. DEPARTMENTAL CLEARANCES: Planning and Legal FINANCIAL IMPACT: ❑ Operating ❑ Revenue ❑ Capital Not applicable Fiscal Year: 2011- 2012 Project to Date Expenditures (CIP only) Current Year Future Years TOTALS Line Item Budget Encumbered / Expended Amount This item BALANCE Fund(s): Comments: None LIST OF SUPPORTING DOCUMENTS: 1. Aerial Overview 2. Zoning Report with Attachments 3. Ordinance with Exhibits ZONING REPORT Case No.: 0612 -01 HTE No. 12- 10000016 Planning Commission Hearing Date: June 20, 2012 Applicant & Legal Description Applicant /Owner: CCLEL Investments, Inc. / Leer Properties, Inc. Representative: Mark A. Adame Legal Description /Location: Being a 2.30 -acre portion of Lot 6, Section 13, Flour Bluff and Encinal Farm and Garden Tracts, located on the north side of South Padre Island Drive (SH 358) and east of Prince Drive. Zoning Request From: "RS -6" Single - Family 6 District To: "CG -2" General Commercial District Area: 2.30 acres Purpose of Request: For the development of an auto dealership for new auto sales. Existing Zoning and Land Uses Existing Zoning District Existing Land Use Future Land Use Site "RS -6" Single - Family Vacant Medium Density Residential & Commercial North "RS -6" Single - Family Vacant Medium Density Residential South "CG -2" General Commercial Vacant Commercial East "CG -2" General Commercial & RM -1 "Multifamily Vacant & Commercial Commercial & Medium Density Residential West "RS -6" Single - Family Low Density Residential Low Density Residential ADP, Map & Violations Area Development Plan: The subject property is located in the Southeast Area Development Plan (ADP) and is planned for commercial and medium density residential uses. The proposed change in zoning to the "CG -2" General Commercial District is not consistent with the adopted Future Land Use Map. Map No.: 041035 Zoning Violations: None Transport- ation Transportation and Circulation: The subject property has 165 feet of frontage along the access road of S. Padre Island Dr. (SH 358), which is an existing F1 Freeway as indicated in the Urban Transportation Plan. The subject property is located at the dead end of Winston Dr., a local residential street. The commercial development would not be allowed access to Winston Dr. Street R.O.W. Street Urban Transportation Plan Type Proposed Section Existing Section Traffic Volume 2011 S. Padre Island Dr. F1 Freeway 400' ROW, varied paved width 250' ROW, 230' paved width 4,342 ADT (Between Airline & Rodd Field) Zoning Report Case #0612 -01, CCLEL Investments, Inc. Page 2 Staff Summary: Requested Zoning: The applicant has requested a change of zoning from the "RS -6" Single - Family 6 District to the "CG -2" General Commercial District on 2.30 acres of land. The subject property is located north of S. Padre Island Dr. and east of the single - family neighborhood and commercial uses on Prince Dr. This zoning change has been initiated for the development of an auto dealership for new auto sales. Applicant's Development Plan: The applicant proposes to construct an auto dealership on a 3.40 -acre tract of land with frontage on S. Padre Island Dr. The requested zoning change is for the rear 2.30 acres because the front 1.10 acres is already zoned "CG -2" General Commercial. The auto dealership will have a showroom, service shop, and indoor auto parts storage. The service shop would not provide auto body repair. The rear portion of the property is not indicated for development at this time. Existing Land Uses: The auto dealership is proposed on a 3.40 -acre site, which is currently vacant and has a combination of two different zoning districts: "CG -2" General Commercial on the front 1.10 acres and "RS -6" Single - Family 6 on the rear 2.30 acres. To the north of the subject property is vacant land zoned for single - family development. Located to the west is a low density residential neighborhood with an auto parts store at the S. Padre Island Dr. frontage. Located to the east is a self- storage facility zoned "CG -2" General Commercial and vacant land zoned "RM -1" Multifamily. Located to the south is the freeway (S. Padre Island Dr.) Buffer Yard: A minimum 15 -foot buffer yard would be required between the future auto dealership and the "RS -6" neighborhood on the west. A solid screening fence will also be required between the commercial and single - family districts. Building Height: Commercial buildings must be setback from single - family uses by a distance that is, more or less, twice the height of the building, without including the first twelve feet in the calculation. Comprehensive Plan & Area Development Plan (ADP) Consistency: The Future Land Use Map slates the subject property for medium density residential uses with commercial uses along the S. Padre Island Dr. frontage road. The proposed change of zoning to the "CG -2" General Commercial District on the rear 2.30 acres would not be consistent with the adopted Future Land Use Plan. Other pertinent policies of the Comprehensive Plan call for encouraging infill development on vacant tracts of land within developed areas and buffering high- intensity commercial areas from low- density residential areas. Plat Status: The subject property is not platted. Department Comments: • The applicant's site plan for development of the lot indicates that the very rear portion of subject property is not needed at this time for the construction of the auto dealership. • The Future Land Use Map slates the subject property for commercial uses along the highway frontage road and for medium density residential at the rear. The change of zoning to "CG -2" District would not be consistent with the plan for the rear portion of the property. • The Unified Development Code (UDC) requires that commercial uses provide a buffer yard and screening fence where adjacent to single - family uses. The UDC also requires that any lighting not bleed into neighboring properties. Zoning Report Case #0612 -01, CCLEL Investments, Inc. Page 3 Planninq Commission & Staff Recommendation (June 20, 2012): Approval of the change of zoning from the "RS -6" Single - Family 6 District to the "CG -2" General Commercial District. Notification Number of Notices Mailed — 30 within 200' notification area; 5 outside notification area As of June 27, 2012: In Favor In Opposition For 3.87% in opposition. — 0 (inside notification area); 0 (outside notification area) — 3 (inside notification area); 0 (outside notification area) Attachments: 1. Site Map — Existing Zoning, Notice Area, & Ownership Map 2. Site Plan 3. Floor Layout 4. Exterior Building Elevations K: \DevelopmentSvcs \SHARED\ZONING CASES \0612-01 CCLEL Investments, Inc \0612 -01 Report for CC, CCLEL Investmts Inc, 6- 27- 12.doc SUBJECT PROPERTY 6/4/2012 Prepared By: jeremym Department of Development Services CASE: 0612 -01 2. SITE - EXISTING ZONING, NOTICE AREA & OWNERSHIP RM -1 Multifamily 1 RM -2 Multifamily 2 RM -3 Multifamily 3 ON Professional Office RM -AT Multifamily AT CN -1 Neighborhood Commercial CN -2 Neighborhood Commercial CR -1 Resort Commercial CR -2 Resort Commercial CG -1 General Commercial CG -2 General Commercial CI Intensive Commercial CBD Downtown Commercial CR -3 Resort Commercial FR Farm Rural H Historic Overlay BP Business Park IL Light Industrial IH Heavy Industrial PUD Planned Unit Dev. Overlay RS -10 Single - Family 10 RS -6 Single - Family 6 RS-4.5 Single - Family 4.5 RS -TF Two - Family RS -15 Single - Family 15 RE Residential Estate RS -TH Townhouse SP Special Permit RV Recreational Vehicle Park RMH Manufactured Home Subject Property O Owners with 200' buffer in favor 4 Owners within 200' listed on V Owners attached ownership table in opposition m -o z •■ NVld 311S 11Vel3AO •■ 'Th1'0120•T''' 165 32. L. _ - 61.76170•7''' 165 a, 5 > ;' . . r,n • >1 l J CORPUS CHRISTI FIAT SOUTH PADRE ISLAND DRIVE SITE PLAN J ,-- CORPUS CHRISTI FIAT SOUTH PADRE ISLAND DRIVE CORPUS CHRISTI TEXAS DESIGNED BY DATE 07;13,012 ' DISCLAIMER THIS DRAWING AND ACCOMPANYING S P Es Col rEl CI AwTIONL SE cAtEAALNF,DR SoH Ap E LRL,R EolvF1 ATI NH ET H E ARCHITECT OF RECORD THEY MAY NOT BE REUSED REPRODUCED OR ALTERED IN MY WAY WITHOUT THE EXPRESSED WRITTEN CONSENT FROM THE ARCHITECT OF RECORD , --, J 0;1 4111, l , DWN 13,,, ,,,,t,sr CHIC 131;m•er SOLICITATION NO CONTRACT NO TURNER t RAMIREZ ARCHITECTS & PLANNERS 5525 S STAPLES SUITE A 7 CORPUS CHRISTI TEXAS 7.11 .■ PLOT SCALE As No-FED PLOT DATE FILE NUMBER .12_02 _,, QUARK DESCRIPTION DATE APPR, m 5 0 -0 1 , z - —1 l 5 , ' J CORPUS CHRISTI FIAT SOUTH PADRE ISLAND DRIVE DIMENSION PLAN J ,-- CORPUS CHRISTI FIAT .L'TH PADRE .-'ND DMVE CORPUS CHRISTI TEXAS DESIGNED BY --, DATE 07;13,012 DISCLNMER THIS DRAWING PNO ACCOMPANYING SPECIFICATIONS ARE PNO SHALL REMAIN THE SOLE INTELLECTUAL PROPERTY OF THE ARCHITECT OF RECORD THEY MAY NOT BE REUSED REPRODUCED OR ALTERED INA., WAY WITHOUT THE EXPRESSED WRITTEN CONSENT FROM THE ARCHITECT OF RECORD --, J 0;1 4111, l J DWN BY Auter CHKD BY cne., .L.TAT.N N° CONTRACT NO NZIr4=ENZERS 5525 S STAPLES SUITE A 7 CORPUS alms, Tex. 7., .■ WN-F0WP-E PL' DATE 'LE NUMBER 201 2-02 IZE F,Le r,me _,, ,MARrc DESCRIPTION DA, APPR„ 5 z 0 11 m m < 5 5 z — —0 0 A > • —1 5 ;' m >-••=1 DI 2 A A CORPUS CHRISTI FIAT SOUTH PADRE ISLAND DRIVE EXTERIOR ELEVATIONS A ;I- CORPUS CHRISTI FOT S°L'TH PADRE IS'ND DRIB= CORPUS CHRISTI TEXAS DESIGNED BY -10 DA, 07;13,010 DISCl/0.1ER THIS DRAWING AND ACCOMPANYING SPECIFICATIONS ARE AND SHALL REMAIN THE SOLE INTELLECTUAL PROPERTY OF THE ARCHITECT OF RECORD THEY MAY NOT BE REUSED REPRODUCED OR ALTERED INN, WAY WITHOUT THE EXPRESSED ,R,EN CONSENT FROM THE ARCHITECT OF RECORD A A A 0;1 4111, A DM S7 Auter CHFR S7 cne., Sp.'''. N° CONTRACT NO ,go,r•r•=eNze. 5525 S STAPLES SUITE A 7 CORPUS alms, Tex. 7., A EroE0B0Cer EL' BARE ENE NUMBER 2,12-02 IFE 00, r,,,e 3; RMARK DESCRIPTION DA, APPR„ Ordinance amending the Unified Development Code ( "UDC ") upon application by CCLEL Investments, Inc., on behalf of Leer Properties, Inc. ( "Owner "), by changing the UDC Zoning Map in reference to a 2.30 -acre portion out of Lot 6, Section 13, Flour Bluff and Encinal Farm and Garden Tracts from the "RS -6" Single - Family 6 District to the "CG -2" General Commercial District; amending the Comprehensive Plan to account for any deviations from the existing Comprehensive Plan; providing a repealer clause; providing for penalties; 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 CCLEL Investments, Inc., on behalf of Leer Properties, Inc. ( "Owner "), for an amendment to the City of Corpus Christi's UDC and corresponding UDC Zoning Map; WHEREAS, with proper notice to the public, public hearings were held on Wednesday, June 20, 2012, during a meeting of the Planning Commission, and on Tuesday, August 14, 2012, during a meeting of the City Council, 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 the public health, necessity, convenience and general welfare of the City of Corpus Christi and its citizens. NOW, THERFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF CORPUS CHRISTI, TEXAS: SECTION 1. The Unified Development Code ( "UDC ") of the City of Corpus Christi, Texas ( "City "), is amended by changing the zoning on a 2.30 -acre portion out of Lot 6, Section 13, Flour Bluff and Encinal Farm and Garden Tracts (the "Property "), located on the north side of South Padre Island Drive (SH 358) and east of Prince Drive, from the "RS -6" Single - Family 6 District to the "CG -2" General Commercial District, resulting in a change of future land use from medium density residential to commercial uses (Zoning Map No. 041035). Exhibit "A," which is a metes and bounds description of the Property, and Exhibit "B," which is a location map pertaining to the Property, are both attached to and incorporated in this ordinance by reference as if fully set out herein in their entirety. SECTION 2. The official UDC Zoning Map of the City is amended to reflect the changes made to the UDC by Section 1 of this ordinance. SECTION 3. The UDC and corresponding UDC Zoning Map of the City, made effective July 1, 2011, and as amended from time to time, except as changed by this ordinance, both remain in full force and effect. SECTION 4. To the extent this amendment to the UDC represents a deviation from the Comprehensive Plan, the Comprehensive Plan is amended to conform to the UDC, as it is amended by this ordinance. SECTION 5. All ordinances or parts of ordinances in conflict with this ordinance are hereby expressly repealed. SECTION 6. A violation of this ordinance, or requirements implemented under this ordinance, constitutes an offense punishable as provided in Article 1, Section 1.10.1, and Article 10 of the UDC. SECTION 7. 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 8. 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 day of 2012. ATTEST: CITY OF CORPUS CHRISTI Armando Chapa City Secretary Joe Adame Mayor Rezoning Ord CCLEL Investmts LLC v02 20120716 Page 2 of 3 Corpus Christi, Texas day of , 2012 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 The above ordinance was passed by the following vote: Joe Adame Chris N. Adler Kelley Allen Larry Elizondo, Sr. Priscilla G. Leal David Loeb John E. Marez Nelda Martinez Mark Scott Joe Adame Mayor Rezoning Ord CCLEL Investmts LLC v02 20120716 Page 3 of 3 STATE OF TEXAS COUNTY OF NUECES THAT CERTAIN TRACT OF LAND LYING AND BEING SITUATED IN NUECES COUNTY, TEXAS; AND BEING A PORTION OF LOT 6, SECTION 13, FLOUR BLUFF AND ENCINAL FARM AND GARDEN TRACTS, AS SHOWN BY MAP RECORDED IN VOLUME A, PAGES 41 -43, MAP RECORDS OF NUECES COUNTY, TEXAS, BEING ALL OF THOSE TWO TRACTS DESCRIBED IN WARRANTY DEED RECORDED IN VOLUME 1407, PAGE 211 AND VOLUME 1439, PAGE 678, DEED RECORDS OF NUECES COUNTY, TEXAS, DESCRIBED AS FOLLOWS: COMMENCING AT A 5/8 INCH IRON ROD FOUND AT THE SOUTHEAST CORNER OF GULFGATE UNIT 2, AS SHOWN BY MAP RECORDED IN VOLUME 21, PAGE 79, MAP RECORDS OF NUECES COUNTY, TEXAS BEING ON THE NORTHERLY RIGHT -OF -WAY OF STATE HIGHWAY 358 (SOUTH PADRE ISLAND DRIVE). THENCE, ALONG THE EASTERLY LINE OF SAID GULFGATE UNIT 2, NORTH 29 DEGREES 00 MINUTES 00 SECONDS EAST 300.0 FEET TO A 5/8 INCH IRON ROD FOUND, FOR THE SOUTHEAST CORNER OF LOT 2 BLOCK 2 GULFGATE UNIT. 2 AND THE POINT OF BEGINNING AND SOUTHWEST CORNER OF THIS TRACT OF LAND; THENCE NORTH 29 DEGREES 00 MINUTES 00 SECONDS EAST ALONG THE EAST LINE OF GULFGATE UNIT 2, FOR A DISTANCE OF 605.19 FEET, TO A.1 INCH IRON PIPE FOUND FOR THE NORTHWEST CORNER OF THIS TRACT THENCE , SOUTH 61 DEGREES 01 MINUTES 20 SECONDS EAST, 165.32 FEET TO A 5/8 INCH IRON ROD FOUNDti;ON THE EASTERLY LINE OF SAID LOT 6, FOR THE NORTHEAST CORNER OF THIS TRACT THENCE ALONG SAID EASTERLY LINE OF LOT 6, SOUTH 29 DEGREES 00 MINUTES 00 SECONDS WEST, 605.19 FEET TO A 5/8 INCH IRON ROD FOUND, SOUTHEAST CORNER OF THIS TRACT THENCE NORTH 61 DEGREES 01 MINUTES 20 SECONDS WEST, 165.32 FEET TO THE POINT OF BEGINNING AND, CONTAINING 100,050 SQUARE FEET, MORE OR LESS. ExhibitA GULFW G L A VWI T 2 6/512012 800 Prepared By: jeremym -,Feet Department of Development Services CASE: 0612 -01 1. SUBJECT PROPERTY Subject Properly UBJE ' T PPlR Exhibit B LOCATION MAP AGENDA MEMORANDUM First Public Hearing For the City Council Meeting of August 14, 2012 Second Public Hearing For the City Council Meeting of August 21, 2012 DATE: August 14, 2012 TO: Ronald L. Olson, City Manager FROM: Constance P. Sanchez, Director of Financial Services ConstanceP ©cctexas.com (361) 826 -3227 Public Hearing on Fiscal Year 2013 Ad Valorem Taxes CAPTION: Public Hearing on Fiscal Year 2013 Ad Valorem Taxes PURPOSE: The State Property Tax code requires that two public hearings be held when a taxing unit proposes to impose an amount of property taxes that exceeds the preceding year's property taxes. BACKGROUND AND FINDINGS: The City of Corpus Christi is proposing to keep the ad valorem tax rate the same for fiscal year 2012 -2013 as it was for fiscal year 2011 -2012 at $0.570557 per $100 valuation. This rate will generate more revenue for fiscal year 2012 -2013 because of the increase in assessed property values and the new growth from the prior year. However, the City is not raising the property tax rate. If a proposed property tax rate exceeds the effective tax rate, the Property Tax Code requires that the governing body must schedule two public hearings on the proposal. Since the property tax rate in the adopted fiscal year 2012 -2013 budget of $0.570557 per $100 valuation exceeds the effective tax rate of $0.562666 per $100 valuation, then State law requires the City Council to hold two public hearings. This is the first of the two public hearings. The second public hearing will be held on Tuesday, August 21, 2012. ALTERNATIVES: n/a OTHER CONSIDERATIONS: n/a FINANCIAL IMPACT: ❑Not Applicable ❑ Operating Expense X Revenue ❑ CIP FISCAL YEAR: Project to Date Exp. (CIP Only) Current Year Future Years TOTALS Budget - $ 77,518,178 $ - $ 77,518,178 Encumbered /Expended amount of (date) - - - This item - $ 77,518,178 $ - $ 77,518,178 BALANCE - - $ - $ - FUND(S): General Fund $51,282,246 Debt Service Fund $26,235,932 COMMENTS: n/a RECOMMENDATION: Staff recommends approval of the ad valorem tax rate of $0.57557 per $100 valuation on August 28, 2012. CONFORMITY TO CITY POLICY: This item conforms to City policy. EMERGENCY / NON-EMERGENCY: • N/A DEPARTMENTAL CLEARANCES: • Legal Department LIST OF SUPPORTING DOCUMENTS: • None cc: Lisa Aguilar, Assistant City Attorney Eddie Houlihan, Assistant Director of Management and Budget Margie C. Rose, Assistant City Manager AGENDA MEMORANDUM Action Item for the City Council Meeting of August 14, 2012 DATE: TO: FROM: Armando Chapa, City Secretary armandoc(c�cctexas.com, (361) 826 -3105 August 2, 2012 Ronald L. Olson, City Manager Ordering a General Election CAPTION: Ordinance ordering a general election to be held on November 6, 2012, in the City of Corpus Christi for the election of Mayor and eight Council Members, and on the questions of authorizing bond issuances of the City supported by ad valorem taxes; providing for procedures for holding such election; providing for notice of election and publication thereof; providing for establishment of branch early polling places; designating polling place locations; authorizing a joint election with Nueces County; and a Runoff Election, if one is necessary; enacting provisions incident and relating to the subject and purpose of this ordinance; and declaring an emergency. PURPOSE: This item will allow for an election to be held on November 6, 2012 for the election of a Mayor and eight (8) Council Members; and the question of eight (8) Bond Propositions. Following are the eight propositions: (Actual ballot wording is listed in the ordinance) Proposition 1, Streets Proposition 2, City Hall Improvements Proposition 3, Service Center Complex Improvements Proposition 4, Parks & Recreation Proposition 5, Museum & Library Improvements Proposition 6, Public Health Improvements Proposition 7, Public Safety Improvements Proposition 8, Economic Development Projects BACKGROUND AND FINDINGS: $ 55, 000, 000 $ 1,750,000 $ 4,750,000 $ 16, 000, 000 $ 2,340,000 $ 820,000 $ 700,000 $ 8,400,000 On January 20, 2011, the United States Department of Justice precleared moving City Council elections to the November uniform election date on even numbered years. On Tuesday, July 24, 2012 the City Council passed a Resolution directing staff to prepare an election ordinance with the approved propositions and ballot language. ALTERNATIVES: Not Applicable OTHER CONSIDERATIONS: Not Applicable CONFORMITY TO CITY POLICY: The City Charter requires that an election be held in November 2012 for the election of officers. EMERGENCY / NON - EMERGENCY: Staff is requesting an emergency reading. In order to meet the deadline as prescribed by State law for calling the General Election on November 6, 2012, this ordinance must be approved as an emergency reading on August 14, 2012. According to Article II, Section 14 of the City Charter, an item can be classified as an emergency because it calls for "immediate action necessary for the efficient and effective administration of the city's affairs. DEPARTMENTAL CLEARANCES: Planning & Environmental Services Department Engineering Services Department Legal Department Finance Department Management and Budget Department City Secretary's Office FINANCIAL IMPACT: ❑ Operating ❑ Revenue ❑ Capital ❑ Not applicable Fiscal Year: 2012 -2013 Project to Date Expenditures (CIP only) Current Year Future Years TOTALS Line Item Budget 320,000 Encumbered / Expended Amount 0 This item 0 BALANCE 320,000 Fund(s): RECOMMENDATION: Approval of the Ordinance. LIST OF SUPPORTING DOCUMENTS: Ordinance 1 Ordinance Ordering a general election to be held on November 6, 2012, in the City of Corpus Christi for the election of Mayor and eight Council members, and on the questions of authorizing bond issuances of the City supported by ad valorem taxes; providing for procedures for holding such election; providing for notice of election and publication thereof; providing for establishment of branch early polling places; designating polling place locations; authorizing a joint election with Nueces County; and a runoff election, if one is necessary; enacting provisions incident and relating to the subject and purpose of this ordinance; and declaring an emergency. WHEREAS, the City Charter provides for the holding of a regular City election for Mayor and Council Members in the City of Corpus Christi, on the November Uniform Election Date in even - numbered years as authorized by State law, the same being November 6, 2012; with a runoff election, if one is necessary; and WHEREAS, it is provided in Section 3.004 of the Texas Election Code that municipal authorities shall order elections pertaining to municipal affairs, and other provisions of the Election Code provide for notice, appointment of officers to hold the election, and other matters related to the holding of the election; and WHEREAS, it is provided in Section 3.006 of the Texas Election Code that in addition to any other elements required to be included in an election order by other law, each election order must state the date of the election and the offices or measures to be voted on at the election; WHEREAS, Nueces County will also be conducting a General Election on November 6, 2012; NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF CORPUS CHRISTI, TEXAS, THAT: SECTION 1. A regular City election (hereinafter "the Election ") for a Mayor and eight Council Members shall be held in the City of Corpus Christi, Texas on Tuesday, November 6, 2012. SECTION 2. At the Election all qualified voters of the City of Corpus Christi shall be permitted to vote. SECTION 3. The names of candidates for the office of Mayor and the names of candidates for the office of the City Council members shall be placed on said ballot in the manner and form prescribed by law. In accordance with Election Code Section 52.072 (c), the propositions stating a measure shall appear on the ballot after the listing of offices. 2 SECTION 4. The eSlate direct recording equipment (DRE) shall be employed at the election in accordance with the Texas Election Code and the Election shall be held at the polling places in the regularly prescribed precincts of the City of Corpus Christi, as set forth on Attachment A (said Attachment to be attached when the polling places in the regularly prescribed precincts are finally determined), hereto incorporated by reference and made part of this ordinance. The Election shall be held in accordance with the Election Laws of the State of Texas. The polls shall be open from 7:00 a.m. to 7:00 p.m. on the date of the Election. SECTION 5. The City Secretary shall conduct the Election as directed by ordinance of the City Council and by law in accordance with the Joint Election Agreement to be entered into with Nueces County. The City Secretary is directed to request consideration by the U.S. Department of Justice of the submission of any change herein which require preclearance, and to provide such demographic data and information as required by law. SECTION 6. The eSlate direct recording equipment shall be used for the conduct of the Election on Election Day and for early voting. Early voting in person at each of the temporary branch polling places shall be conducted on October 22, 2012 through November 2, 2012. Such early voting in person may be conducted at the main early voting polling place located at Nueces County Courthouse, 901 Leopard, or at the temporary branch polling places as set forth in Attachment B, (said Attachment to be attached when the temporary branch polling places are finally determined), incorporated by reference and made a part of this ordinance. In addition, early voting in person may be conducted at the mobile temporary branch polling places set forth in Attachment C, (said Attachment to be attached when the mobile temporary locations are finally determined), and then incorporated by reference and made a part of this ordinance, during the days and hours specified therein. The City Secretary is authorized, in the event of an emergency, preventing any of the designated polling places from being utilized, to provide for suitable replacement locations. Each branch polling place and the main early polling place shall serve all election precincts. SECTION 7. The City Secretary is directed to post and publish such election notices as are required by the Election Laws of the State of Texas. The City Secretary is further appointed as the authority and officer responsible for the conduct of said election and is hereby authorized and directed to make all necessary arrangements for the holding of said election in accordance with and subject to the laws of this State, including, but not limited to coordinating the election process, in accordance with the Joint Election Agreement to be executed with Nueces County. The City Secretary is authorized to approve all lawful changes and additions to the procedures provide herein in order to implement such agreement, including, but not limited to, provisions for substations, mobile voting sites and election day polling sites. SECTION 8. At the Election, the voters shall be presented with the following propositions (in English and Spanish) in the form prescribed by the Texas Election Code: FOR AGAINST PROPOSITION NO. 1 STREETS 3 Shall the City of Corpus Christi, Texas be authorized, in accordance with applicable law, to issue bonds of the City, in one or more series or issues and in the aggregate principal amount of $55,000,000.00, with such series or issues of bonds, respectively, to mature serially or otherwise within not to exceed forty years from their date and to be sold at such prices and bear interest at such rates (whether fixed, floating, variable, or otherwise, but in no case at a rate that exceeds the maximum rate per annum authorized by applicable law at the time of any such issuance), as shall all be determined within the discretion of the City Council, for the purpose of making permanent public improvements or for other public purposes, to wit: designing, constructing, renovating, improving, and making permanent street improvements throughout the City, including (without limitation) constructing, reconstructing, restructuring and extending streets and thoroughfares and related sidewalks, streetscapes and collectors (but specifically excluding related City utility costs, which are the responsibility of the City's utility system), with priority given to the following street projects: *NAVIGATION BOULEVARD, generally from Up River Road to Leopard Street *SOUTH ALAMEDA STREET, generally from Ayers Street to Louisiana Avenue *GREENWOOD DRIVE, generally from Gollihar Road to Horne Road *OCEAN DRIVE, generally from Buford Street to Louisiana Avenue *TULOSO ROAD, generally from IH 37 to Leopard Street *SOUTH STAPLES STREET, generally from Brawner Parkway to Kostoryz Road *SOUTH STAPLES STREET, generally from Morgan Avenue to IH 37 *MCARDLE ROAD, generally from Nile Drive to Ennis Joslin Road *MCARDLE ROAD, generally from Whitaker Drive to Nile Drive *KOSTORYZ ROAD, generally from Brawner Parkway to Staples Street *HORNE ROAD, generally from Ayers Street to Port Avenue *MORGAN AVENUE, generally from Staples Street to Crosstown Freeway *TWIGG STREET, generally from Shoreline Boulevard to Lower Broadway *LEOPARD STREET, generally from Crosstown Freeway to Palm Drive *HOLLY ROAD, generally from Crosstown Freeway to Greenwood Drive (contingent on receipt of federal leveraging funds) *WILLIAMS DRIVE, generally from Staples Street to Airline Road (contingent on receipt of federal leveraging funds) *YORKTOWN BOULEVARD, generally from Rodd Field Road to Cimarron Boulevard *JFK CAUSEWAY AREA IMPROVEMENTS *CITY -WIDE ADA MASTER PLAN IMPROVEMENTS *CITY -WIDE SIGNAL IMPROVEMENTS AND STREET LIGHTING *CITY -WIDE STREET PROJECTS RECEIVING LEVERAGING FUNDS FROM THE 4 TEXAS DEPARTMENT OF TRANSPORTATION and in providing for the above public improvements, the City Council shall have the option to (i) utilize other funds available for such purposes and (ii) abandon such indicated public improvements that are reliant, in part, on external sources of funding that (for whatever reason) do not materialize, and after making due provision for the improvements listed above or determining that an expected external source of revenue will not become available, the City Council may, in its discretion, use any excess funds for constructing, reconstructing, restructuring and extending other streets, and thoroughfares and related sidewalks, streetscapes and collectors (but excluding related City utility costs, as specified above); and shall the City Council be authorized to levy and pledge, and cause to be assessed and collected, annual ad valorem taxes on all taxable property in the City sufficient to pay the annual interest and provide a sinking fund to pay the bonds at maturity and to pay the costs of any credit agreements executed in connection with the bonds? FOR AGAINST PROPOSITION NO. 2 CITY HALL IMPROVEMENTS Shall the City of Corpus Christi, Texas be authorized, in accordance with applicable law, to issue bonds of the City, in one or more series or issues and in the aggregate principal amount of $1,750,000.00, with such series or issues of bonds, respectively, to mature serially or otherwise within not to exceed forty years from their date and to be sold at such prices and bear interest at such rates (whether fixed, floating, variable, or otherwise, but in no case at a rate that exceeds the maximum rate per annum authorized by applicable law at the time of any such issuance), as shall all be determined within the discretion of the City Council, for the purpose of making permanent public improvements or for other public purposes, to wit: designing, constructing, renovating, improving, and equipping City Hall (including fire system improvements, roof repairs, and other general repairs and renovations); and shall the City Council be authorized to levy and pledge, and cause to be assessed and collected, annual ad valorem taxes on all taxable property in the City sufficient to pay the annual interest and provide a sinking fund to pay the bonds at maturity and to pay the costs of any credit agreements executed in connection with the bonds? FOR AGAINST PROPOSITION NO. 3 SERVICE CENTER COMPLEX IMPROVEMENTS 5 Shall the City of Corpus Christi, Texas be authorized, in accordance with applicable law, to issue bonds of the City, in one or more series or issues and in the aggregate principal amount of $4,750,000.00, with such series or issues of bonds, respectively, to mature serially or otherwise within not to exceed forty years from their date and to be sold at such prices and bear interest at such rates (whether fixed, floating, variable, or otherwise, but in no case at a rate that exceeds the maximum rate per annum authorized by applicable law at the time of any such issuance), as shall all be determined within the discretion of the City Council, for the purpose of making permanent public improvements or for other public purposes, to wit: designing, constructing, renovating, expanding, improving, and equipping the City's Service Center Complex (including Streets and Solid Waste Administration Building Roof Replacement, expansion of Signs /Signal Operations facilities, renovations and improvements to Animal Control facilities, roof repairs to Fleet Maintenance/Heavy Equipment facilities, construction of new facilities for Streets & Solid Waste); and shall the City Council be authorized to levy and pledge, and cause to be assessed and collected, annual ad valorem taxes on all taxable property in the City sufficient to pay the annual interest and provide a sinking fund to pay the bonds at maturity and to pay the costs of any credit agreements executed in connection with the bonds? FOR AGAINST PROPOSITION NO. 4 PARKS & RECREATION Shall the City of Corpus Christi, Texas be authorized, in accordance with applicable law, to issue bonds of the City, in one or more series or issues and in the aggregate principal amount of $16,000,000.00, with such series or issues of bonds, respectively, to mature serially or otherwise within not to exceed forty years from their date and to be sold at such prices and bear interest at such rates (whether fixed, floating, variable, or otherwise, but in no case at a rate that exceeds the maximum rate per annum authorized by applicable law at the time of any such issuance), as shall all be determined within the discretion of the City Council, for the purpose of making permanent public improvements or for other public purposes, to wit: designing, constructing, renovating, improving, and equipping City parks and recreation facilities, with priority given to the following City parks and recreation projects: * Community Park Development and Improvements * Hike & Bike Trail Development * Aquatic Facility Upgrades and Improvements * Tennis Center Repairs and Upgrades (H.E.B. & Al Kruse Centers) * Ocean Drive Park Improvements and in providing for the above public improvements, the City Council shall have the option to utilize other funds available for such purposes, and after making due provision for the improvements listed above, the City Council may, in its discretion, use any excess funds for designing, constructing, renovating, improving, and equipping other City parks and recreation facilities; and shall the City Council be authorized to levy and pledge, and cause to be 6 assessed and collected, annual ad valorem taxes on all taxable property in the City sufficient to pay the annual interest and provide a sinking fund to pay the bonds at maturity and to pay the costs of any credit agreements executed in connection with the bonds? FOR AGAINST PROPOSITION NO. 5 MUSEUM AND LIBRARY IMPROVEMENTS Shall the City of Corpus Christi, Texas be authorized, in accordance with applicable law, to issue bonds of the City, in one or more series or issues and in the aggregate principal amount of $2,340,000.00, with such series or issues of bonds, respectively, to mature serially or otherwise within not to exceed forty years from their date and to be sold at such prices and bear interest at such rates (whether fixed, floating, variable, or otherwise, but in no case at a rate that exceeds the maximum rate per annum authorized by applicable law at the time of any such issuance), as shall all be determined within the discretion of the City Council, for the purpose of making permanent public improvements or for other public purposes, to wit: designing, constructing, renovating, improving, and equipping City museums and libraries, with priority given to the following City museum and library projects: * Museum of Science and History Roof Replacement *Central Library Roof Replacement *Northwest Library and Garcia Library Roof Replacement *ADA improvements to South Texas Art Museum building and Barge Dock parking lot and in providing for the above public improvements, the City Council shall have the option to utilize other funds available for such purposes, and after making due provision for the improvements listed above, the City Council may, in its discretion, use any excess funds for designing, constructing, renovating, improving, and equipping other City museums and library facilities; and shall the City Council be authorized to levy and pledge, and cause to be assessed and collected, annual ad valorem taxes on all taxable property in the City sufficient to pay the annual interest and provide a sinking fund to pay the bonds at maturity and to pay the costs of any credit agreements executed in connection with the bonds? FOR AGAINST PROPOSITION NO. 6 PUBLIC HEALTH IMPROVEMENTS 7 Shall the City of Corpus Christi, Texas be authorized, in accordance with applicable law, to issue bonds of the City, in one or more series or issues and in the aggregate principal amount of $820,000.00, with such series or issues of bonds, respectively, to mature serially or otherwise within not to exceed forty years from their date and to be sold at such prices and bear interest at such rates (whether fixed, floating, variable, or otherwise, but in no case at a rate that exceeds the maximum rate per annum authorized by applicable law at the time of any such issuance), as shall all be determined within the discretion of the City Council, for the purpose of making permanent public improvements or for other public purposes, to wit: designing, constructing, renovating, improving, and equipping City public health facilities, with priority given to the following City public health facility projects: *Health Department East Rear Restroom Repair and WIC Building Roof Repair *Health Department Building Parking Lot and in providing for the above public improvements, the City Council shall have the option to utilize other funds available for such purposes, and after making due provision for the improvements listed above, the City Council may, in its discretion, use any excess funds for designing, constructing, renovating, improving, and equipping other City public health facilities; and shall the City Council be authorized to levy and pledge, and cause to be assessed and collected, annual ad valorem taxes on all taxable property in the City sufficient to pay the annual interest and provide a sinking fund to pay the bonds at maturity and to pay the costs of any credit agreements executed in connection with the bonds? FOR AGAINST PROPOSITION NO. 7 PUBLIC SAFETY IMPROVEMENTS Shall the City of Corpus Christi, Texas be authorized, in accordance with applicable law, to issue bonds of the City, in one or more series or issues and in the aggregate principal amount of $700,000.00, with such series or issues of bonds, respectively, to mature serially or otherwise within not to exceed forty years from their date and to be sold at such prices and bear interest at such rates (whether fixed, floating, variable, or otherwise, but in no case at a rate that exceeds the maximum rate per annum authorized by applicable law at the time of any such issuance), as shall all be determined within the discretion of the City Council, for the purpose of making permanent public improvements or for other public purposes, to wit: designing, constructing, renovating, improving, and equipping City public safety facilities (fire, police, animal control, and emergency medical services), with priority given to constructing Phase 2 of the Vehicle Impound Yard and Garage; and in providing for the above public improvements, the City Council shall have the option to utilize other funds available for such purposes, and after making due provision for the improvements listed above, the City Council may, in its discretion, use any excess funds for designing, constructing, renovating, improving, and equipping other City public safety facilities; and shall the City Council be 8 authorized to levy and pledge, and cause to be assessed and collected, annual ad valorem taxes on all taxable property in the City sufficient to pay the annual interest and provide a sinking fund to pay the bonds at maturity and to pay the costs of any credit agreements executed in connection with the bonds? FOR AGAINST PROPOSITION NO. 8 ECONOMIC DEVELOPMENT PROJECTS Shall the City of Corpus Christi, Texas be authorized, in accordance with applicable law, to issue bonds of the City, in one or more series or issues and in the aggregate principal amount not to exceed $8,400,000.00, with such series or issues of bonds, respectively, to mature serially or otherwise within not to exceed forty years from their date and to be sold at such prices and bear interest at such rates (whether fixed, floating, variable, or otherwise, but in no case at a rate that exceeds the maximum rate per annum authorized by applicable law at the time of any such issuance), as shall all be determined within the discretion of the City Council, for the purpose of making permanent public improvements or for other public purposes, to wit: designing, constructing, renovating, improving, and equipping City streets, sidewalks, and related facilities that are expected to promote and expand business activities in the City, with priority given to the following City streets, sidewalks, and related facility projects in promotion of economic development: *SeaTown Pedestrian Improvements *North Beach Area Road Improvements & Area Beautification *North Beach Breakwater, Plaza, North Shoreline Repair and Enhancement (contingent upon receipt of leveraging funds) *County Road 52 Extension, generally County Road 69 to FM 1889 (contingent upon receipt of leveraging funds) *International Boulevard (contingent upon receipt of leveraging funds) *Other street and utility construction projects for which the City receives developer participation and in providing for the above public improvements, the City Council shall have the option to (i) utilize other funds available for such purposes and (ii) abandon such public improvements that are reliant, in part, on external sources of funding that (for whatever reason) do not materialize, and after making due provision for the improvements listed above or determining that an expected external source of revenue will not become available, the City Council may, in its discretion, use any excess funds for designing, constructing, renovating, improving, and equipping City streets, sidewalks, and related facilities that are expected to promote and expand business activities in the City; and shall the City Council be authorized to levy and pledge, and cause to be assessed and collected, annual ad valorem taxes on all taxable property in the City sufficient to pay the annual interest and provide a sinking fund to pay the bonds at maturity and to pay the costs of any credit agreements executed in connection with the bonds? SECTION 9. The official ballots for said election shall be prepared in accordance with the Texas Election Code so as to permit the electors to vote "FOR" or "AGAINST" the aforesaid Propositions, with the ballots to contain such provisions, markings and language as required by law, and with such Propositions to be expressed substantially as follows: FOR AGAINST PROPOSITION NO. 1 STREETS 9 THE ISSUANCE OF BONDS FOR DESIGNING, CONSTRUCTING, RENOVATING, AND MAKING PERMANENT STREET IMPROVEMENTS IN THE AGGREGATE PRINCIPAL AMOUNT OF $55,000,000 INCLUDING: *NAVIGATION BOULEVARD, generally from Up River Road to Leopard Street *SOUTH ALAMEDA STREET, generally from Ayers Street to Louisiana Avenue *GREENWOOD DRIVE, generally from Gollihar Road to Horne Road *OCEAN DRIVE, generally from Buford Street to Louisiana Avenue *TULOSO ROAD, generally from II-137 to Leopard Street *SOUTH STAPLES STREET, generally from Brawner Parkway to Kostoryz Road *SOUTH STAPLES STREET, generally from Morgan Avenue to II-137 *MCARDLE ROAD, generally from Nile Drive to Ennis Joslin Road *MCARDLE ROAD, generally from Whitaker Drive to Nile Drive *KOSTORYZ ROAD, generally from Brawner Parkway to Staples Street *HORNE ROAD, generally from Ayers Street to Port Avenue *MORGAN AVENUE, generally from Staples Street to Crosstown Freeway *TWIGG STREET, generally from Shoreline Boulevard to Lower Broadway *LEOPARD STREET, generally from Crosstown Freeway to Palm Drive *HOLLY ROAD, generally from Crosstown Freeway to Greenwood Drive, (contingent upon receipt of federal leveraging funds) *WILLIAMS DRIVE, generally from Staples Street to Airline Road, (contingent upon receipt of federal leveraging funds) *YORKTOWN BOULEVARD, generally from Rodd Field Road to Cimarron Boulevard *JFK CAUSEWAY AREA IMPROVEMENTS *ADA MASTER PLAN IMPROVEMENTS- citywide *SIGNAL IMPROVEMENTS AND STREET LIGHTING - citywide *TXDOT PARTICIPATION PROJECTS *AND OTHER STREET IMPROVEMENTS. FOR AGAINST PROPOSITION NO. 2 CITY HALL IMPROVEMENTS 10 THE ISSUANCE OF BONDS FOR THE DESIGN, CONSTRUCTION, RENOVATION, IMPROVEMENT, AND EQUIPMENT OF CITY HALL IMPROVEMENTS IN THE AGGREGATE PRINCIPAL AMOUNT OF $1,750,000 INCLUDING: *CITY HALL FIRE SUPPRESSION AND FIRE ALARM UPGRADES *CITY HALL ROOF REPAIR AND WATERPROOFING (EXTERIOR) AND OTHER CITY HALL IMPROVEMENTS. FOR AGAINST PROPOSITION NO. 3 SERVICE CENTER COMPLEX IMPROVEMENTS THE ISSUANCE OF BONDS FOR THE DESIGN, CONSTRUCTION, RENOVATION, EXPANSION, IMPROVEMENT, AND EQUIPMENT OF THE CITY SERVICE CENTER COMPLEX IN THE AGGREGATE PRINCIPAL AMOUNT OF $4,750,000 INCLUDING: *STREETS AND SOLID WASTE ADMINISTRATION BUILDING ROOF REPLACEMENT *SIGNS /SIGNAL OPERATIONS - NEW SHOP AND OFFICE FACILITY *ANIMAL CONTROL REMODEL /IMPROVEMENTS *FLEET MAINTENANCE HEAVY EQUIPMENT SHOP ROOF *STREETS & SOLID WASTE STORAGE BUILDING STRUCTURE WITH SLAB (NEW FACILITY) *AND OTHER SERVICE CENTER COMPLEX IMPROVEMENTS. FOR AGAINST PROPOSITION NO. 4 PARKS & RECREATION THE ISSUANCE OF BONDS FOR DESIGNING, CONSTRUCTING, RENOVATING, IMPROVING, AND EQUIPPING CITY PARKS AND RECREATIONAL FACILITIES IN THE AGGREGATE PRINCIPAL AMOUNT OF $16,000,000 INCLUDING: *COMMUNITY PARK DEVELOPMENT AND IMPROVEMENTS *HIKE & BIKE TRAIL DEVELOPMENT *AQUATIC FACILITY UPGRADES AND IMPROVEMENTS *TENNIS CENTER REPAIRS AND UPGRADES (H.E.B. & AL KRUSE CENTERS) *OCEAN DRIVE PARK IMPROVEMENTS *AND OTHER PARK AND RECREATION IMPROVEMENTS. FOR AGAINST PROPOSITION NO. 5 MUSEUM & LIBRARY IMPROVEMENTS 11 THE ISSUANCE OF BONDS FOR DESIGNING, CONSTRUCTING, RENOVATING, IMPROVING AND EQUIPPING MUSEUM AND LIBRARY FACILITIES IN THE AGGREGATE PRINCIPAL AMOUNT OF $2,340,000 INCLUDING: *MUSEUM OF SCIENCE AND HISTORY ROOF REPLACEMENT *CENTRAL LIBRARY ROOF REPLACEMENT *NORTHWEST LIBRARY AND GARCIA LIBRARY ROOF REPLACEMENT *ADA IMPROVEMENTS TO SOUTH TEXAS ART MUSEUM BUILDING AND BARGE DOCK PARKING LOT *AND OTHER MUSEUM AND LIBRARY IMPROVEMENTS. FOR AGAINST PROPOSITION NO. 6 PUBLIC HEALTH IMPROVEMENTS THE ISSUANCE OF BONDS FOR DESIGNING, CONSTRUCTING, RENOVATING, IMPROVING AND EQUIPPING PUBLIC HEALTH FACILITIES IN THE AGGREGATE PRINCIPAL AMOUNT OF $820,000 INCLUDING: *HEALTH DEPARTMENT EAST REAR RESTROOM REPAIR AND WIC BUILDING ROOF *HEALTH DEPARTMENT BUILDING PARKING LOT *AND OTHER PUBLIC HEALTH IMPROVEMENTS. FOR AGAINST PROPOSITION NO. 7 PUBLIC SAFETY IMPROVEMENTS 12 THE ISSUANCE OF BONDS FOR DESIGNING, CONSTRUCTING, RENOVATING, IMPROVING, AND EQUIPPING PUBLIC SAFETY IMPROVEMENTS IN THE AGGREGATE PRINCIPAL AMOUNT OF $700,000 INCLUDING: *VEHICLE IMPOUND YARD AND GARAGE — PHASE 2 *AND OTHER PUBLIC SAFETY IMPROVEMENTS. FOR AGAINST PROPOSITION NO. 8 ECONOMIC DEVELOPMENT PROJECTS THE ISSUANCE OF BONDS FOR THE DESIGN, CONSTRUCTION, RENOVATING, IMPROVEMENT, AND EQUIPMENT OF CITY STREETS, SIDEWALKS, AND RELATED FACILITIES THAT ARE EXPECTED TO PROMOTE AND EXPAND BUSINESS ACTIVITIES, IN THE AGGREGATE PRINCIPAL AMOUNT NOT TO EXCEED $8,400,000, INCLUDING: *SEATOWN PEDESTRIAN IMPROVEMENTS *NORTH BEACH AREA ROAD IMPROVEMENTS AND AREA BEAUTIFICATION *NORTH BEACH BREAKWATER, PLAZA, NORTH SHORELINE REPAIR AND ENHANCEMENT (contingent upon receipt of leveraging funds) *COUNTY ROAD 52 EXTENSION, GENERALLY COUNTY ROAD 69 TO FM 1889 (contingent upon receipt of leveraging funds) *INTERNATIONAL BOULEVARD (contingent upon receipt of leveraging funds) *OTHER STREET AND UTILITY CONSTRUCTION PROJECTS FOR WHICH THE CITY RECEIVES DEVELOPER PARTICIPATION *AND OTHER ECONOMIC DEVELOPMENT PROJECTS. SECTION 10. The voter - approved obligations issued pursuant to Propositions 1, 2, 3, 4, 5, 6, 7, and 8 referenced above shall be secured by the full tax rate authorized by the Texas Constitution, in accordance with Article VIII, Section 1(b) of the City Charter. SECTION 11. By approving and signing this ordinance, the Mayor officially confirms as his action all matters recited in this ordinance which by law come within his jurisdiction. SECTION 12. 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 hereof be given full force and effect for its purpose. 13 SECTION 13. That upon 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 this the 14th day of August, 2012. ATTEST: City Secretary MAYOR THE CITY OF CORPUS CHRISTI 14 Corpus Christi, Texas Day of , 2012 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, Joe Adame Mayor Council Members The above ordinance was passed by the following vote: Joe Adame Chris N. Adler Kelley Allen Larry Elizondo, Sr. Priscilla G. Leal David Loeb John E. Marez Nelda Martinez Mark Scott 15 ATTACHMENT A [To be inserted - polling places in the regularly prescribed precincts of the City of Corpus Christi] 16 ATTACHMENT B [To be inserted - temporary branch polling places as set forth in Attachment B] 17 ATTACHMENT C [To be inserted - -the mobile temporary branch polling places, during the days and hours specified therein.] AGENDA MEMORANDUM Future Item for the City Council Meeting of August 14, 2012 Action Item for the City Council Meeting of August 21, 2012 DATE: August 1, 2012 TO: Ronald L. Olson, City Manager FROM: Floyd Simpson, Chief of Police flovdsCa�cctexas. com 886 -2604 Accepting and appropriating the FY 12 Edward Byrne Memorial Justice Assistance Grant (JAG) Program Local Solicitation CAPTION: Ordinance authorizing the City Manager or designee to execute all documents necessary to accept a grant from the U. S. Department of Justice, Bureau of Justice Assistance, in the amount of $169,575 for the FY 12 Edward Byrne Memorial Justice Assistance Grant (JAG) Program Local Solicitation within the Police Department, 50% of the funds to be distributed to Nueces County under an established interlocal agreement and appropriating $169,575 in the No. 1061 Police Grants Fund. PURPOSE: Accept the grant and appropriate the funds. BACKGROUND AND FINDINGS: JAG funds can be used for state and local initiatives, technical assistance, training, personnel, equipment, supplies, contractual support, and information systems for criminal justice for any one or more of the following purpose areas: • Law enforcement programs • Prosecution and court programs • Prevention and education programs • Drug treatment programs • Corrections and community corrections programs • Planning, evaluation, and technology improvement programs With this award, the program has provided a total of $5,038,791 in grant funds to the City since the program began in 1996. The funds have been used to purchase backbone equipment for the Mobil Data /Automated Vehicle Location project, 27 police package vehicles, 69 unmarked police units, a property van, SWAT equipment, a bomb suit, digitized radios, radios for the Communications van, digital cameras, radars, video cameras, personal computer hardware and software, an upgrade to the computer system and the radio microwave system, a mobile police substation, polygraph instrument, air packs, SWAT rescue vehicle, radios for Project 25 compliance, and other police equipment. The Police Department and Nueces County proposes to purchase law enforcement equipment within the Attorney General Priority areas of gang enforcement/prevention, cybercrime, and intelligence analysis. On 5/8/2012, City Council approved the grant application and an interlocal agreement with Nueces County to share the funds on a 50/50 basis. ALTERNATIVES: None OTHER CONSIDERATIONS: None CONFORMITY TO CITY POLICY: Conforms to all city policies. EMERGENCY / NON - EMERGENCY: Non - emergency DEPARTMENTAL CLEARANCES: Finance Legal FINANCIAL IMPACT: ❑ Operating ❑ Revenue ❑ Capital ❑ Not applicable Fiscal Year: 2012- 2013 Project to Date Expenditures (CIP only) Current Year Future Years TOTALS Line Item Budget Encumbered / Expended Amount This item $169,575 $169,575 BALANCE $169,575 $169,575 Fund(s): Police Grants Fund Comments: There is no match required by the City. The City will pay Nueces County a total of 50% or $84,787.50, of the JAG funds received from this award, per the interlocal agreement. RECOMMENDATION: Staff recommends accepting the grant and appropriating the funds. LIST OF SUPPORTING DOCUMENTS: Grant award letter Ordinance Authorizing the City Manager or designee to execute all documents necessary to accept a grant from the U. S. Department of Justice, Bureau of Justice Assistance, in the amount of $169,575 for the FY 12 Edward Byrne Memorial Justice Assistance Grant (JAG) Program; and Appropriating the $169,575 in the No. 1061 Police Grants Fund to fund the enhancement of law enforcement efforts by the Police Department and Nueces County under an established interlocal agreement which provides that 50% of the funds to be distributed to Nueces County BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF CORPUS CHRISTI, TEXAS: SECTION 1. The City Manager or designee is authorized to execute all documents necessary to accept a grant from the U. S. Department of Justice, Bureau of Justice Assistance, in the amount of $169,575 for the FY 12 Edward Byrne Memorial Justice Assistance Grant (JAG) Program. SECTION 2. That $169,575 is appropriated in the No. 1061 Police Grants Fund for the enhancement of law enforcement efforts by the Police Department and Nueces County under an established interlocal agreement. Under the interlocal agreement, 50% of the funds are to be distributed to Nueces County. That the foregoing ordinance was read for the first time and passed to its second reading on this the day of , 2012, by the following vote: Joe Adame Chris N. Adler Kelley Allen Larry Elizondo, Sr Priscilla G. Leal David Loeb John Marez Nelda Martinez Mark Scott That the foregoing ordinance was read for the second time and passed finally on this the day of , 2012 by the following vote: Joe Adame David Loeb Chris N. Adler John Marez Kelley Allen Nelda Martinez Larry Elizondo, Sr Mark Scott Priscilla G. Leal PASSED AND APPROVED this the day of , 2012. ATTEST: Armando Chapa Joe Adame City Secretary Mayor AGENDA MEMORANDUM Future Item for the City Council Meeting of July 31, 2012 Action Item for the City Council Meeting of August 14, 2012 DATE: July 19, 2012 TO: Ronald L. Olson, City Manager FROM: Floyd Simpson, Chief of Police flovdsCa�cctexas. com 886 -2604 Accepting and appropriating the Texas Automobile Burglary and Theft Prevention Authority grant CAPTION: Ordinance authorizing the City Manager or designee to execute all documents necessary to accept a grant from the Texas Automobile Burglary and Theft Prevention Authority (ABTPA) in the amount of $392,474 to continue the motor vehicle theft enforcement grant within the Police Department for Year 12, with a City match of $478,212, in -kind match of $14,019 in the No. 1020 Police General Fund, and program income match of $8,541 in the NO. 1061 Police Grants Fund for a total project cost of $893,246; and appropriating the $392,474 in the No. 1061 Police Grants Fund to continue the motor vehicle theft enforcement grant in the Police Department. PURPOSE: Accept the grant and appropriate the funds. BACKGROUND AND FINDINGS: The City of Corpus Christi has received Year 12 funding from the Texas Automobile Burglary and Theft Prevention Authority (ABTPA) to continue the motor vehicle theft unit in the Police Department. The ABTPA was established in 1991 due to rising auto thefts and is funded through an annual fee on every insured vehicle in Texas charged to insurance companies who provide vehicle insurance coverage in Texas. The unit focuses not only on detection and apprehension, but also on the salvage yards in the City and County to reduce the sale of stolen vehicles and parts. There is an extensive public awareness campaign that is a requirement of the grant.; numerous crime prevention programs focusing on reducing auto burglaries and thefts occur during each grant year. Since the inception of the unit in 2001, auto thefts have decreased by 69 %from 1,515to467 in2011. The grant provides funds for one Lieutenant to supervise the Unit, two sworn CCPD officers, and three civilians. The three civilians conduct data analysis, crime analysis, manage the required public awareness campaign, and maintain grant paperwork. In- kind contributions include office supplies, copy machine, and office space. Cash contributions from program income will cover travel expenses. The General Fund cash match is for three sworn officers who also work auto theft and auto burglary. Because these funds are neither Federal nor State but from an insurance fee, there is no set time limit for the grant to end; other grantees have been continuously funded for over 15 years. The City must reapply each year because the ATPA requires a very close review of performance and the grantee's ability to utilize the funds efficiently. ALTERNATIVES: None OTHER CONSIDERATIONS: None CONFORMITY TO CITY POLICY: Conforms to all city policies. EMERGENCY / NON - EMERGENCY: Non - emergency DEPARTMENTAL CLEARANCES: Finance Legal FINANCIAL IMPACT: ❑ Operating ❑ Revenue ❑ Capital ❑ Not applicable Fiscal Year: 2012- 2013 Project to Date Expenditures (CIP only) Current Year Future Years TOTALS Line Item Budget 500,772 500,772 Encumbered / Expended Amount 0 0 This item 392,474 392,474 BALANCE 893,246 893,246 Fund(s): Police General Fund, Police Grants Fund Comments: Year 12 of the grant requires at least a 20% match by the City. The match may be cash, in -kind, or program income. The Police General Fund will provide a cash match of $478,212 for sworn officers' salaries /benefits, in -kind contribution of $14,019 for office space /operating costs, and program income of $8,541 for travel and other operating costs. The grant period is 9/01/12 — 8/31/13. RECOMMENDATION: Staff recommends accepting the grant and appropriating the funds. LIST OF SUPPORTING DOCUMENTS: Grant award letter Ordinance authorizing the City Manager or designee to execute all documents necessary to accept a grant from the Texas Automobile Burglary and Theft Prevention Authority (ABTPA) in the amount of $392,474 to continue the motor vehicle theft enforcement grant within the Police Department for Year 12; and Appropriating the $392,474 in the No. 1061 Police Grants Fund BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF CORPUS CHRISTI, TEXAS: SECTION 1. The City Manager or designee is authorized to execute all documents necessary to accept a grant from the Texas Automobile Burglary and Theft Prevention Authority (ABTPA) in the amount of $392,474 to continue the motor vehicle theft enforcement grant within the Police Department for Year 12, with a City match of $478,212, in -kind match of $14,019 in the No. 1020 Police General Fund, and program income match of $8,541 in the NO. 1061 Police Grants Fund for a total project cost of $893,246; SECTION 2. That $392,474 grant is appropriated in the No. 1061 Police Grants Fund to continue the motor vehicle theft enforcement grant in the Police Department. That the foregoing ordinance was read for the first time and passed to its second reading on this the day of , 2012, by the following vote: Joe Adame David Loeb Chris N. Adler John Marez Kelley Allen Nelda Martinez Larry Elizondo, Sr Mark Scott Priscilla G. Leal That the foregoing ordinance was read for the second time and passed finally on this the day of , 2012 by the following vote: Joe Adame David Loeb Chris N. Adler John Marez Kelley Allen Nelda Martinez Larry Elizondo, Sr Mark Scott Priscilla G. Leal PASSED AND APPROVED this the day of , 2012. ATTEST: Armando Chapa City Secretary Joe Adame Mayor TEXAS AUTOMOBILE BURGLARY AND THEFT PREVENTION AUTHORITY GRANTEE ACCEPTANCE NOTICE AGREEMENT: That whereas City of Corpus Christi hereinafter referred to as Grantee, has heretofore submitted a grant application to the Automobile Burglary and Theft Prevention Authority, State of Texas, entitled Auto Theft Prevention Grant , and further identified by grant number SA- T01- 10045 -13 ; and Whereas, the Automobile Burglary and Theft Prevention Authority has approved the grant application as evidenced by the Statement of Grant Award from the Automobile Burglary and Theft Prevention Authority dated 06/26/2012, certain special requirements; and Whereas, the Grantee desires to accept the grant award, the Uniformed Grant and Contract Management Standards, and special requirements as evidenced by the Statement of Grant Award; Now, therefore, the Grantee accepts the aforementioned Statement of Grant Award, the Uniformed Grant and Contract Management Standards and special requirements in the grant application and the Statement of Grant Award as evidenced by the agreement, executed -by the project director, the - financial officer, and- the official -- authorized to sign the original grant application, or the official's successor, as presiding officer of and on behalf of the governing body of this grantee; and Now, therefore, the Grantee shall designate either the project director or the financial officer to coordinate and be solely responsible for submission of adjustments pertaining to both program and financial elements of the application, and the POSITION authorized to submit adjustments is NON - LOBBYING CERTIFICATION: We, the undersigned, certify that none of the grant funds, regardless of their source or character, including local cash assumption of cost funds, shall be used in any manner to influence the outcome of any election or the passage or defeat of any legislative measure. A finding that a grantee has violated the certification shall result in the immediate termination of funding of the project and the grantee shall not be eligible for future funding from the Automobile Burglary and Theft Prevention Authority. Certified By: Date: Signature of Project Director Signature of Project Manager Name & Title(must print or type) Name & Title(must print or type) Official Agency Address(street or post office box) Official Agency Address(street or post office box) City /Zip Code/Telephone Number City /Zip Code /Telephone Number Signature of Authorized Official Signature of Financial Officer Name & Title (must print or type) Name & Title (must print or type) Official Agency Address (street or post office box) Official Agency Address (street or post office box) City/Zip Code /Telephone Number City /Zip Code /Telephone Number Grant Number: Grantee Name: Project Title: Grant Period: Texas Automobile Burglary and Theft Prevention Authority Statement of Grant Award SA -T01- 10045 -13 City of Corpus Christi Corpus Christi Auto Theft Prevention Grant 09/01/2012 - 08/31/2013 ABTPA Award: Grantee Cash Match: Grantee In-Kind Match: Total Project Cost: $392,474 $486,753 $14,019 The Texas Automobile Burglary and Theft Prevention Authority (ABTPA) has awarded: the above - referenced grant. The approved budget is reflected in the attached Approved Budget Summary. This grant is subject to and conditioned upon acceptance of the ABTPA Grant Application and Administration Guidelines (Guide) promulgated for this specific program fund (referenced above) through the Automobile Burglary and Theft Prevention Authority. Applicable special conditions are contained in the Guide or cited below. Total project costs must be accounted for in accordance with the Uniform Grant and Contract Management Standards and the Guide. GRANTEE REQUEST FOR FUNDS All Grantee request for funds shall be submitted to ABTPA in accordance with the instructions provided by ABTPA and shall be in the form required by ABTPA. Requests for funds will not be honored until all special conditions outlined on the Statement of Grant Award and that required action on the part of the grantee have been satisfied. GRANT ADJUSTMENTS Grantee shall submit written requests for grant adjustments, as required by the applicable ABTPA Rule contained in the Grant Application and Administration Guidelines for this specific program fund. Special Conditions and Requirements: City /County Resolution JUL 0 9 2012 AWARD DATE CHARLES CALDWELL Automobile Burglary and Theft Prevention Authority 4000 Jackson Avenue, Austin, Texas 78731 512/374-5101 Texas Burglary and Automobile Theft Prevention Authority Approved Budget Summary Grant Number: SA - -T01- 10045 -13 Grantee:. City of Corpus Christi Project Title: • Corpus Christi Auto Theft Prevention Grant Grant Period: 09/01/2012 to 08/31/2013 Funding Source: Auto Burglary & Theft Prevention Authority Region: 2000 Date: 07/09/12 ABTPA Cash Match In -Kind TOTAL A. Personnel: $324,055 $478,212 $802,267, B. Contractual: $0. C. Travel: $10,000 $8,541 $18,541 D. Equipment: $0 E. Supplies: $58,419 $14,019 $72,438 F. Indirect: $0 Total: $392,474 $486,753 $14,019 $893,246 Budget Detail: A. Lieutenant $74,393; Detective $69,089; Detective $69,089; Grant Administrator $35,609; Criminal Analyst $38,088; Intake Specialist $30,047; Fringe Benefits $7,740 C. ABTPA Board Meetings $4,074; ABTPA Conference $5,556; TCPA $370 E. Office Supplies $5,000; Communications $12,000; Public Awareness $5,000; Postage $500; Fuel $20,000; Confidential Funds $5,000; Vehicle Maintenance $7,000; (10) TAVTI Registrations $1,500; TCPA Registion $330; BSM Wireless $2,089 -Law Enforcement, Detection and Apprehension Watch Your Car. TEXAS AUTO BURGLARY &1HEF7 PAEVEMIUH AUIHORIE4 July 9, 2012 Mr. Ronald Olson City Manager City of Corpus Christi 1201 Leopard Street Corpus Christi, Texas 78401 Re: GRANT NBR: SA- T01- 10045 -13 YEAR OF FUNDING: 11 APPLICATION: City of Corpus Christi TITLE: Corpus Christi Auto Theft Prevention Grant AMOUNT: $ 392,474 Dear Mr. Olson: I am pleased to inform you that the above referenced grant is approved in the amount indicated. The grant award must be accepted within 30 days by completing and returning the enclosed grantee acceptance notice to the Texas Automobile Burglary & Theft Prevention Authority. I look forward to working with you to ensure the success of your program. Any questions relating to the administration of this grant should be directed to our office by calling the Grant Administrator, Jan Gregg (512) 374 -5107. Sincerely, Charles Caldwell Director, ABTPA AGENDA MEMORANDUM Future Item for the City Council Meeting of July 31, 2012 Action Item for the City Council Meeting of August 14, 2012 DATE: July 20, 2012 TO: Ronald L. Olson, City Manager FROM: Floyd Simpson, Chief of Police flovdsCa�cctexas. com 886 -2604 Accepting and appropriating the Local Border Security Program grant CAPTION: Ordinance authorizing the City Manager or designee to execute all documents necessary to accept a grant from the Texas Ranger Division of the Texas Department of Public Safety in the amount of $155,000 for the FY2012 Local Border Security Program within the Police Department and appropriating $155,000 in the No. 1061 Police Grants Fund.. PURPOSE: Accept the grant and appropriate the funds. BACKGROUND AND FINDINGS: The Police Department will assist the Texas Department of Public Safety on an overtime basis with operations for border security. There is no match required. ALTERNATIVES: None OTHER CONSIDERATIONS: None CONFORMITY TO CITY POLICY: Conforms to all city policies. EMERGENCY / NON - EMERGENCY: Non - emergency DEPARTMENTAL CLEARANCES: Finance Legal FINANCIAL IMPACT: ❑ Operating ❑ Revenue ❑ Capital ❑ Not applicable Fiscal Year: 2012- 2013 Project to Date Expenditures (CIP only) Current Year Future Years TOTALS Line Item Budget Encumbered / Expended Amount This item 155,000 155,000 BALANCE 155,000 155,000 Fund(s): Police Grants Fund Comments: . RECOMMENDATION: Staff recommends accepting the grant and appropriating the funds. LIST OF SUPPORTING DOCUMENTS: Grant award letter Ordinance authorizing the City Manager or designee to execute all documents necessary to accept a grant from the Texas Ranger Division of the Texas Department of Public Safety in the amount of $155,000 for the FY2012; and Appropriating the $155,000 in the No. 1061 Police Grants Fund BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF CORPUS CHRISTI, TEXAS: SECTION 1. The City Manager or designee is authorized to execute all documents necessary to accept a grant from the Texas Ranger Division of the Texas Department of Public Safety in the amount of $155,000 for the FY2012 Local Border Security Program within the Police Department. SECTION 2. That $155,000 is appropriated in the No. 1061 Police Grants Fund. That the foregoing ordinance was read for the first time and passed to its second reading on this the day of , 2012, by the following vote: Joe Adame David Loeb Chris N. Adler John Marez Kelley Allen Nelda Martinez Larry Elizondo, Sr Mark Scott Priscilla G. Leal That the foregoing ordinance was read for the second time and passed finally on this the day of , 2012 by the following vote: Joe Adame David Loeb Chris N. Adler John Marez Kelley Allen Nelda Martinez Larry Elizondo, Sr Mark Scott Priscilla G. Leal PASSED AND APPROVED this the day of , 2012. ATTEST: Armando Chapa City Secretary Joe Adame Mayor Program Title: NOTICE OF GRANT AWARD TEXAS RANGER DIVISION Local Border Security Program FY 2012 (LBSP -12) Funding Instrument: General Appropriations Act, Rider 41, 82nd Legislature Administered by: Grant Number: Texas Ranger Division Texas Department of Public Safety P.O. Box 4087 Austin, Texas 78773 -0600 LBSP -12 -0005 Recipient: Corpus Christi Police Department Amount of Grant: $155,000.00 Period of Grant: July 6, 2012 through January 31, 2013 AGENCY APPROVAL GRANT ACCEPTANCE ty - t i'rector Printed Name: Title: Date: Date: moo/ Return Signed Original to: Texas Rangers Division Texas Department of Public Safety Attention: Brandy Prinz P.O. Box 4087 Austin, Texas 78773 -0600 AGENDA MEMORANDUM Future Item for the City Council Meeting of August 14, 2012 Action Item for the City Council Meeting of August 21, 2012 DATE: July 31, 2012 TO: Ronald L. Olson, City Manager FROM: Mark E. Van Vleck, P.E., Interim Director, Development Services MarkVV@cctexas.com (361) 826 -3246 UTILITY EASEMENT CLOSURE Abandoning and vacating a 3,357.08- square -foot portion of a 5- foot -wide utility easement out of Lot 1A, Block 6, Airport Industrial Subdivision, and a 6,721.94- square -foot portion of a 10- foot -wide utility easement out of Lot 3, Block 4, Airport Industrial Subdivision. CAPTION: Ordinance abandoning and vacating a 3,357.08- square -foot portion of a 5- foot -wide utility easement out of Lot 1A, Block 6, Airport Industrial Subdivision, and a 6,721.94- square -foot portion of a 10 -foot- wide utility easement out of Lot 3, Block 4, Airport Industrial Subdivision; and requiring the owner, Weatherford U.S., L.P., to comply with the specified conditions. PURPOSE: The purpose of this item is to eliminate a utility easement from an industrial property to allow for construction of an industrial building in the area where the utility easement is located. BACKGROUND AND FINDINGS: Urban Engineering, on behalf of Weatherford U.S., L.P. (Owner), is requesting the abandonment and vacation of a 3,357.08- square -foot portion of a 5- foot -wide utility easement out of Airport Industrial Subdivision, Block 6, Lot 1A, and a 6,721.94- square -foot portion of a 10- foot -wide utility easement out of Airport Industrial Subdivision, Block 4, Lot 3. The abandonment and vacation of the utility easement is requested in order to accommodate the future development of the property. Staff recommends that payment of fair market value be waived in accordance with City Code of Ordinance Sec. 49 -12, because Owner will be replatting said property and upon replatting will be dedicating utility easements of equal or greater value to off -set the proposed abandonment and vacation of the easement. The Owner must also comply with all the specified conditions of the abandon and vacate ordinance within 180 days of Council approval. ALTERNATIVES: Denial of the utility easement closure. This will, however, adversely impact the Owner's ability to move forward with construction on the property. OTHER CONSIDERATIONS: Not applicable CONFORMITY TO CITY POLICY: These requirements are in compliance with the City Code of Ordinances, Sec. 49 -13. EMERGENCY / NON - EMERGENCY: Non - Emergency DEPARTMENTAL CLEARANCES: All public and franchised utilities were contacted. None of the city departments or franchised utility companies had any facilities or objections regarding the proposed easement closure. FINANCIAL IMPACT: ❑ Operating ❑ Revenue ❑ Capital Not applicable Fiscal Year: 2011- 2012 Project to Date Expenditures (CIP only) Current Year Future Years TOTALS Line Item Budget Encumbered / Expended Amount This item BALANCE Fund(s): Comments: None RECOMMENDATION: Staff recommends approval of the easement closure subject to the Owner's compliance with all the following specified conditions of the easement closure ordinance: a. Owner must dedicate to the City new utility easements of equal or greater value than the utility easements being released by the City in this easement closure action, in accordance with the Corpus Christi Code of Ordinances, Section 49 -12, within 180 days of City Council approval of this ordinance so that the requirement of paying fair market value for the properties can be waived. b. Upon approval by the City Council and issuance of the ordinance, all grants of easement closure and specified conditions must be recorded at Owner's expense in the Official Deed and Map Records of Nueces County, Texas, in which the affected properties are located. c. Prior to the permitting of any construction on the affected properties, the Owner must submit up -to -date surveys, abstracted for all easements and items of record, to the Director of Development Services, or his designee. d. Owner must comply with all specified conditions of the ordinance within 180 days of City Council approval. LIST OF SUPPORTING DOCUMENTS: Ordinance with Exhibits Ordinance abandoning and vacating a 3,357.08- square -foot portion of a 5- foot -wide utility easement out of Lot 1A, Block 6, Airport Industrial Subdivision, and a 6,721.94- square -foot portion of a 10- foot -wide utility easement out of Lot 3, Block 4, Airport Industrial Subdivision; and requiring the owner, Weatherford U.S., L.P., to comply with the specified conditions. WHEREAS, Urban Engineering, acting as agent on behalf of Weatherford U.S., L.P., ( "Owner ") is requesting the abandonment and vacation of a 3,357.08- square -foot portion of a 5- foot -wide utility easement out of Lot 1A, Block 6, Airport Industrial Subdivision, and a 6,721.94- square -foot portion of a 10- foot -wide utility easement out of Lot 3, Block 4, Airport Industrial Subdivision, located north of State Highway 44 and west of North Padre Island Drive (State Highway 358), to accommodate future development of the property; WHEREAS, with proper notice to the public, a public hearing was held on Tuesday, August 21, 2012, 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, it has been determined that it is feasible and advantageous to the City of Corpus Christi to abandon and vacate a 3,357.08- square -foot portion of a 5- foot -wide utility easement out of Lot 1A, Block 6, Airport Industrial Subdivision, and a 6,721.94 - square -foot portion of a 10- foot -wide utility easement out of Lot 3, Block 4, Airport Industrial Subdivision, subject to the provisions in this ordinance included below. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF CORPUS CHRISTI, TEXAS: Section 1. Pursuant to the request of Urban Engineering, acting as agent on behalf of Weatherford U.S., L.P. ( "Owner"), a 3,357.08- square -foot portion of a 5- foot -wide utility easement out of Lot 1A, Block 6, Airport Industrial Subdivision, and a 6,721.94- square- foot portion of a 10- foot -wide utility easement out of Lot 3, Block 4, Airport Industrial Subdivision, located north of State Highway 44 and west of North Padre Island Drive (State Highway 358), as recorded in Volume 67, Page 208, and Volume 42, Page 143, respectively, of the Official Deed and Map Records of Nueces County, Texas, are abandoned and vacated by the City of Corpus Christi ( "City "), subject to Owner's compliance with the conditions specified in Section 2 of this ordinance. Exhibit "A," which is a site map, Exhibit "B," which is a metes and bounds description, and Exhibit "C," which is a field notes map, are attached to and incorporated in this ordinance by reference as if each were fully set out herein in its entirety. Section 2. The abandonment and vacation of the utility easements described in Section 1 of this ordinance is expressly conditioned upon Owner's compliance with the following requirements: a. Owner must dedicate to the City new utility easements of equal or greater value than the utility easements being released by the City in this easement closure action, in accordance with the Corpus Christi Code of Ordinances, Section 49- 12, within 180 days of City Council approval of this ordinance so that the requirement of paying fair market value for the properties can be waived. b. Upon approval by the City Council and issuance of the ordinance, all grants of easement closure and specified conditions must be recorded at Owner's expense in the Official Deed and Map Records of Nueces County, Texas, in which the affected properties are located. c. Prior to the permitting of any construction on the affected properties, the Owner must submit up -to -date surveys, abstracted for all easements and items of record, to the Director of Development Services, or his designee. d. Owner must comply with all specified conditions of the ordinance within 180 days of City Council approval. The foregoing ordinance was read for the first time and passed to its second reading on this the day of , 2012, by the following votes: Joe Adame David Loeb Chris Adler John E. Marez Kelley Allen Nelda Martinez Larry Elizondo, Sr. Mark Scott Priscilla Leal The foregoing ordinance was read for the second time and passed finally on this the day of , 2012, by the following votes: Joe Adame David Loeb Chris Adler John E. Marez Kelley Allen Nelda Martinez Larry Elizondo, Sr. Mark Scott Priscilla Leal EHord363 Weatherford Util Easemt AV Airport Industrial vFinal Page 2 of 3 PASSED AND APPROVED this the day of , 2012. ATTEST: Armando Chapa City Secretary Joe Adame Mayor EHord363 Weatherford Util Easemt AV Airport Industrial vFinal Page 3 of 3 SITE MAP N.T.S. EXHIBIT A URBANREV: APR. 5, 2012 DATE. FEB. 15, 2012 ENGINEERING SCALE N.T.S. JOB NO.: 33363.B2.01 CORPUS CHRISTI, TEXAS / / SHEET: 2 OF 2 Firm No. 145' 2725 Swantner St, Corpus Christi, 1X 76404 DRAWN BY: DL PHONE (361) 854 -3101 FAX. (361) 654 -6001 02012 by Urban Engineering 0 D 0 L_ 0_ 0 o 0 /o 0 0 E 0 > Hopkins 0 0 0 C I! I North Padre Island Road (State Highway 358) , _ f "Agnes °` Street (S • • r 44) Site \...__ o . 11 _,4,1%/ -o 0 S.H. 44 (') Forrest (� I\ c 0 u) c EXHIBIT A URBANREV: APR. 5, 2012 DATE. FEB. 15, 2012 ENGINEERING SCALE N.T.S. JOB NO.: 33363.B2.01 CORPUS CHRISTI, TEXAS / / SHEET: 2 OF 2 Firm No. 145' 2725 Swantner St, Corpus Christi, 1X 76404 DRAWN BY: DL PHONE (361) 854 -3101 FAX. (361) 654 -6001 02012 by Urban Engineering State of Texas County of Nueces Revised: April 5, 2012 February 16, 2012 Job No. 33363.B2.01 FIELDNOTES for the closing of a 10.00 foot wide utility easement out of Lot 3, Block 4, Airport Industrial Subdivision, a map of which is recorded in Volume 67, Page 208, Map Records of Nueces County, Texas and a 5.00 foot wide utility easement out of Lot 1A, Block 6, Airport Industrial Subdivision, a map of which is recorded in Volume 42, Page 143, Map Records of Nueces County, Texas; said closure being more fully described by metes and bounds as follows: Commencing at a 5/8 inch iron rod found on the north boundary of State Highway No. 44, a public roadway, for the southwest corner of said Lot 1A, same being the southeast corner of said Lot 3; Thence, South 78 °09'44" West (Record= South 80°07'19" West), along the north boundary of said State Highway No. 44, same being the south boundary of said Lot 3, a distance of 10.17 feet; Thence, North 01°28'44" West (Record= North 00 °02'20" West), along the west boundary of an existing 10 foot utility easement, a distance of 15.25 feet to the southwest corner of this closure; Thence, North 01°28'44" West (Record= North 00 °02'20" West), along the west boundary of this closure, a distance of 673.09 feet for the northwest corner of this closure; Thence, North 88 °33'58" East, along the north boundary of this closure, at 10.00 feet pass the common boundary of said Lot1A and said Lot 3, in all a total distance of 15.00 feet for the northeast corner of this closure; Thence, South 01 °28'44" East (Record= South 01°29'06" East), along the east boundary of this closure, a distance of 671.33 feet for the southeast corner of this closure; Thence, South 86 °38'00" West (Record= South 86 °10' 13" West), along the south boundary of this easement closure, a distance of 6.61 feet for an interior corner of this easement closure; Thence, South 78 °09'44" West (Record= South 80 °07' 19" West), continuing along the south boundary of this easement closure, a distance of 8.53 feet to the Point of Beginning and containing 0.231 acres (10,079.02 square feet) of land. Bearings based on GPS bearings, NAD83, Texas South Zone. National Geodetic Survey Monuments "SN -150" (North Coordinate = 17,175,917.840 East Coordinate = 1,317,744.166) and "SO -170" (North Coordinate = 17,175,176.393 East Coordinate = 1,306,952.3320) were used as control points for establishing basis of bearing. Unless this fieldnotes description, including preamble, seal and signature, appears in its entirety, in its original form, surveyor assumes no responsibility for its accurac \ \Urbanfs02\Data\ Surveying \33363\B201 \fn33363B201- Page 1 of 1 (361)854 -3101 EXHIBIT B URBAN ENGINEERING Juan J. Salazar, R.P.L.S. License No. 4909 2725 SWANTNER DR. • CORPUS CHRISTI, TEXAS 78404 FAX (361)854 -6001 www.urbaneng.com TBPE Firm #145 150 100 50 0 GRAPHIC SCALE 1 =100 Lot 1, Block 4 Airport Industrial Subdivision Vol. 67, Pg. 208, Map Records of Nueces County, Texas 100 1 200 0 5 o H '55 0 2c iiagS kr d o J20�Y.R. 15'U.E: an i.i N88633'58 "E 15.00' J 0 0. > 0A oa 0 N co o P o o 0 N 'O u0 Z Point of Be 151.1.E. (Record=S80'07'19"W) S78'09'44"W 8.53' State Highway No. 44 EXHIBIT C N01'28'44 "W 15.25' (Record= N00'02'20 "W) S78'09'44"W 10.17' (Record= S80'07' 19"W) Map to Accompany FIELDNOTES for the closing of a 10.00 foot wide utility easement out of Lot 3, Block 4, Airport Industrial Subdivision, a map of which is recorded in Volume 67, Page 208, Map Records of Nueces County, Texas and a 5.00 foot wide utility easement out of Lot 1A, Block 6, Airport Industrial Subdivision, a map of which is recorded in Volume 42, Page 143, Map Records of Nueces County, Texas. Easement aosure 0.231 Acres, 10,079.02 Sq.Ft. F 0 az th M n Lot 1A, Block 6 co Airport Industrial Subdivision Vol. 42, Pg. 143, Map Records of Nueces County, Texas L.IF = o �Sv 0 N ti o O§ (n 60' r (Record = 58610'13 "W) S86'38'00*W 6.61' Point of Commencement Fd. 5/8" I.R. 20'B.L. Note: No monumentation found or set unless otherwise noted. U ■■ e A Nt DATE: Aft. 5,52012 2012 ENGINEERING SCALE ' 100 JOB NO.: 33363.82.01 _, CORPUS CHRISTI, TEXAS / SHEET: 1 OF 2 Firm No. 145. 2725 Swantner St, capus Christi,, 7X 78404 / DRAWN BY: DL 02012 by Urban Engineering PHONE: (361) 854 -3101 FAX (361) 854 -6001 AGENDA MEMORANDUM Future Item for the City Council Meeting of August 14, 2012 Action Item for the City Council Meeting of August 21, 2012 DATE: July 25, 2012 TO: Ronald L. Olson, City Manager FROM: Rick Stryker, Museum Director ricks @cctexas.com 361- 826 -4660 Accept Sessions bequest and transfer receipts to the Friends of the Museum. CAPTION: Ordinance authorizing the City Manager to execute all documents necessary to accept disbursements from mineral interests from the Estate of L. Lloyd Sessions; appropriating distribution in the No. 1069 Museum Grants Fund and authorizing the transfer to the Friends of the Museum of Science and History for the benefit of the Museum PURPOSE: Enabling the receipt and transfer of mineral interest income from the Sessions Bequest and transferring those funds to the Friends of the Museum for benefit of the Museum. BACKGROUND AND FINDINGS: Funds are sometimes donated through estates to the City to benefit the Museum. The City typically transfers such bequests to the Friends of the Museum. The Friends use their resources to fund exhibits, education programs, and special projects at the Museum. The Museum was among the beneficiaries of the Estate of Lloyd Sessions. The Sessions Estate was finalized in 1999, but the City was not informed until 2012 that mineral interests had been bequeathed to the Museum. The 2012 Appraised value is $8,370. This action will enable the City Manager to sign a Division Order with Endeavor Energy Resources, LP which will distribute funds accumulated since 2004, estimated to be $20,000. These funds will transfer to the Friends and will be used for benefit of the Museum. Subsequent and ongoing distributions in much smaller amounts will be forthcoming and deposited with the Friends. The Friends will pay property taxes on these distributions. ALTERNATIVES: It is conceivable that the mineral interests could be sold, but that alternative is not recommended. OTHER CONSIDERATIONS: Not applicable CONFORMITY TO CITY POLICY: The Friends of the Museum of Science and History was formed nearly 40 years ago to encourage private philanthropy benefitting the Museum. It is in the City's interest to encourage the donation of funds to underwrite the cost of exhibits, education programs, and special projects because this lowers the operating cost of the Museum for the City. Individuals are much less likely to donate funds for the Museum directly to the City. The Friends routinely spend hundreds of thousands of dollars on Museum projects annually. EMERGENCY / NON - EMERGENCY: Non- emergency - this is a routine, non - controversial item. DEPARTMENTAL CLEARANCES: There were no departments and /or boards impacted by this action. FINANCIAL IMPACT: ❑ Operating ❑ Revenue ❑ Capital X Not applicable Fiscal Year: 2012- 2013 Project to Date Expenditures (CIP only) Current Year Future Years TOTALS Line Item Budget Encumbered / Expended Amount This item 20,000 20,000 BALANCE 0 20,000 20,000 Fund(s): 1069 Museum Grants Fund Comments: The $20,000 is an estimated amount. RECOMMENDATION: City staff recommend the passage of the ordinance that facilitate the receipt and transfer of the funds from the Sessions Bequest to the Friends of the Museum LIST OF SUPPORTING DOCUMENTS: Ordinance Ordinance authorizing the City Manager to execute all documents necessary to accept disbursements from mineral interests from the Estate of L. Lloyd Sessions; appropriating distributions in the No. 1069 Museum Grant Fund and authorizing the transfer to the Friends of the Corpus Christi Museum of Science and History for the benefit of the Museum. Now, therefore, be it ordained by the City Council of the City of Corpus Christi, Texas: Section 1. That the City Manager is authorized to execute all documents necessary to accept disbursements from mineral interests from the Estate of L. Lloyd Sessions for the benefit of the Corpus Christi Museum of Science and History. Section 2. That said disbursements are to be appropriated in the No. 1069 Museum Grant Fund, and transferred to the Friends of the Corpus Christi Museum of Science and History for the benefit of the Museum. Section 3. That this ordinance takes effect upon final approval of the City Council. That the foregoing ordinance was read for the first time and passed to its second reading on this the day of , 2012, by the following vote: Joe Adame David Loeb Chris N. Adler John E. Marez Kelley Allen Nelda Martinez Larry Elizondo Mark Scott Priscilla G. Leal That the foregoing ordinance was read for the second time and passed finally on this the day of , 2012, by the following vote: Joe Adame David Loeb Chris N. Adler John E. Marez Kelley Allen Nelda Martinez Larry Elizondo Mark Scott Priscilla G. Leal PASSED AND APPROVED, this the day of , 2012. ATTEST: Armando Chapa Joe Adame City Secretary Mayor AGENDA MEMORANDUM Future Item for the City Council Meeting of August 14, 2012 Action Item for the City Council Meeting of August 21, 2012 DATE: TO: May 23, 2012 Ronald L. Olson, City Manager FROM: Annette Rodriguez, Director of Public Health An netter(a� cctexas. com 361- 826 -7203 Amending the Code of Ordinances, Chapter 39, Article III, Section 39 -303, subsection (m), "Pay Plan HTH," to eliminate the grade 58 position pay range from the plan. CAPTION: A. Motion to approve the First Amendment to the Reformed Cooperative Agreement with Nueces County for operation of the Corpus Christi - Nueces County Public Health District in order to consolidate a nursing position under Pay Plan HTH and to authorize execution of the First Amendment by the City Manager. B. Ordinance amending the code of ordinances, chapter 39, article III section 39 -303, subsection (m), "Pay Plan HTH," to eliminate the grade 58 position pay range from the plan. PURPOSE: This allows the Health District to combine two positions into one higher paying position comparable to current job market pay scale. BACKGROUND AND FINDINGS: This is necessary due to two existing nurse practitioner positions that were paying lower than the market and the Health District was unable to fill either of those positions, therefore the City of Corpus Christi and Nueces County mutually agree to amend Attachment "B" (entitled terms and conditions ") of the existing Agreement and associated attachments to the terms and conditions to include the revisions set out in this document ( "First Amendment "). These revisions combine the two positions into one higher paying position that we were able to fill at higher salary. This position is necessary for the continuity of care for the Health Department patients. ALTERNATIVES: Leave Health District Pay Plan as is OTHER CONSIDERATIONS: None CONFORMITY TO CITY POLICY: Council approval required to approve amending the code of ordinances EMERGENCY / NON - EMERGENCY: Non - emergency DEPARTMENTAL CLEARANCES: Legal FINANCIAL IMPACT: ❑ Operating ❑ Revenue ❑ Capital X Not applicable Fiscal Year: 2011- 2012 Project to Date Expenditures (CIP only) Current Year Future Years TOTALS Line Item Budget Encumbered / Expended Amount This item BALANCE Fund(s): Comments: There is no fiscal impact for amending the code of ordinances. RECOMMENDATION: Staff recommends approve motion and amending code of ordinance LIST OF SUPPORTING DOCUMENTS: Ordinance ORDINANCE AMENDING THE CODE OF ORDINANCES, CHAPTER 39, ARTICLE III, SECTION 39 -303, SUBSECTION (m), "PAY PLAN HTH," TO ELIMINATE THE GRADE 58 POSITION PAY RANGE FROM THE PLAN. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF CORPUS CHRISTI, TEXAS: SECTION 1. The Code of Ordinances, Chapter 39, Article III, Section 39 -303, subsection (m), entitled "Pay Plan HTH," is revised by eliminating the Grade 58 position pay range from the pay plan, such position to be incorporated separately into the operating agreement governing the Corpus Christi - Nueces County Public Health District, and amending the subsection to read as follows: "Sec. 39 -303. Standard classifications, pay grades, and ranges. "(m) Pay Plan HTH. Pay Plan HTH will include positions in the Health District, excluding Animal Care Services and Vector Control. These positions may be designated as either exempt from overtime under the FLSA or as non - exempt and eligible for overtime under the FLSA. The pay grades and ranges for positions in Pay Plan HTH are as follows: HEALTH DISTRICT PAY PLAN* Pay Plan HTH Health District H10 -49 Non - Exempt (FLSA Overtime Eligible) H50 -99 Exempt (FLSA Overtime Ineligible) Effective 5/11/09 IyI 1/ /tr/I fY/ ,£ /if flf ?"'` r{^ .f'J/ f / /fY:f J� P� fY? F f f f%V f / / / /'llv `` /f /' /f f fyI £ (f f l '/'..'1` ✓`r /fill/ / %l %`. H11 $17,066 $22,743 $28,420 H12 18,432 23,936 29,440 H13 19,998 25,970 31,942 H14 21,797 28,307 34,817 H15 23,867 30,995 38,124 H16 26,254 34,096 41,938 H17 29,011 37,675 46,340 0018_2_Ordinance - Health District Pay Plan Amdmt Page 1 of 3 H18 31,728 41,583 51,438 H52 28,144 38,527 48,909 H53 30,536 41,802 53,066 H54 33,286 45,565 57,844 H55 36,448 49,894 63,340 H56 40,093 54,853 69,613 H57 44,305 60,648 76,991 H58 '19,177 6 0 85-4 6 Paid as agreed Paid as agreed Paid as agreed *This pay plan excludes positions in Animal Care Services and Vector Control." 0018_2_Ordinance - Health District Pay Plan Amdmt Page 2 of 3 The foregoing ordinance was read for the first time and passed to its second reading on this the day of , 2012, by the following vote: Joe Adame David Loeb Chris N. Adler John E. Marez Kelley Allen Nelda Martinez Larry Elizondo Mark Scott Priscilla G. Leal The foregoing ordinance was read for the second time and passed finally on this the day of , 2012, by the following vote: Joe Adame David Loeb Chris N. Adler John E. Marez Kelley Allen Nelda Martinez Larry Elizondo Mark Scott Priscilla G. Leal PASSED AND APPROVED this the day of , 2012. ATTEST: Armando Chapa City Secretary Joe Adame Mayor 0018_2_Ordinance - Health District Pay Plan Amdmt Page 3 of 3 FIRST AMENDMENT TO THE REFORMED COOPERATIVE AGREEMENT TO OPERATE A PUBLIC HEALTH DISTRICT WHEREAS, the City of Corpus Christi ( "City ") and Nueces County ( "County ") previously entered into an agreement ( "Agreement ") to cooperatively operate a public health district ( "Health District ") for the benefit of both parties; and WHEREAS, the City and County mutually desire to amend Attachment "B" (entitled "Terms and Conditions ") of the existing Agreement and associated attachments to the Terms and Conditions to include the revisions set out in this document ( "First Amendment "). Section 1. The language contained in the preamble above is incorporated by reference in this section. Section 2. Part "A" of the Terms and Conditions of the Agreement is amended by adding new subpart "8" to read as follows: "8. The County shall eliminate the Nurse Practitioner position, classified as a Grade H57 position, from Pay Plan HTH. The former Grade H57 position will be consolidated with the existing Senior Nurse Practitioner position in Grade H58 of Pay Plan HTH. Grade H58 Senior Nurse Practitioner position only will be compensated as set out in part G of these Terms and Conditions." Section 3. Part "G" of the Terms and Conditions of the Agreement is amended by revising the heading to read as follows: "G. THE CITY AND COUNTY SHALL SHARE IN FUNDING SALARY AND BENEFITS OF THE DIRECTOR AND ASSISTANT DIRECTOR OF PUBLIC HEALTH ADMINSTRATION POSITIONS AND THE SENIOR NURSE PRACTITIONER POSITION AT THE PERCENTAGE OF 60% CITY AND 40% COUNTY. THE DIRECTOR SHALL BE HIRED BY AND REPORT TO THE CITY MANAGER AND COUNTY JUDGE. THE ASSISTANT DIRECTOR AND THE SENIOR NURSE PRACTITIONER SHALL BE HIRED BY THE DIRECTOR WITH THE CONCURRENCE OF THE CITY MANAGER AND THE COUNTY JUDGE. THE ASSISTANT DIRECTOR AND SENIOR NURSE PRACTITIONER SHALL REPORT TO THE DIRECTOR. (MOU Item 7) Section 4. Part "G" of the Terms and Conditions of the Agreement is amended by adding new subpart "7" to read as follows: "7. The Senior Nurse Practitioner position shall remain in Pay Plan HTH as a Grade H58 and shall be compensated as follows: $110,000 annual salary and benefits. The County shall reimburse the City for 40% of the salary and benefits. 0018_3_Agreement - Health District Agmt Amdmtl Page 1 of 3 The City shall prepare an invoice detailing the salary and benefit costs by pay period and show the 40% amount owed to the City by the County. This invoice shall be sent to the County monthly." Section 5. Attachment "1" of the Terms and Conditions of the Agreement, entitled "Health District Job Title and Pay Grade Assignment," is amended by deleting the reference on page 4 of the attachment to the "Nurse Practitioner — County (1)" and all associated line -item information, as shown in Exhibit "1" of this First Amendment, which exhibit is attached to and incorporated in this amendment by reference. Pursuant to the foregoing, the parties mutually agree that the revised Attachment "1" of the Terms and Conditions of the Agreement, as set out in Exhibit "1" of this First Amendment, replaces the former Attachment "1" of the Terms and Conditions of the Agreement upon final approval of this First Amendment unless expressly stated otherwise. Section 6. Attachment "2" of the Terms and Conditions, entitled "Health District Pay Plan for Combined City /County Positions," is amended by modifying the low, mid - point, and maximum pay grade range amounts to reflect that the Grade H58 position is to be compensated in accordance with the provisions included in part "G" of the Terms and Conditions to the Agreement, to be styled "Compensation Subject to Terms and Conditions of Public Health District Cooperative Agreement." Section 7. The City shall submit an amended pay plan ordinance incorporating the changes to the Grade H58 position in Pay Plan HTH as set out in this First Amendment, subject to final approval by the City Council. Section 8. This First Amendment is made effective upon final approval of the parties' governing bodies to the execution of this document by the parties' representatives. (EXECUTION PAGE FOLLOWS) 0018_3_Agreement - Health District Agmt Amdmtl Page 2 of 3 Executed this day of , 2012 ATTEST: NUECES COUNTY, TEXAS Diane T. Barrera Samuel L. Neal, Jr. County Clerk County Judge APPROVED as to form: Laura Garza - Jimenez County Attorney ATTEST: CITY OF CORPUS CHRISTI, TEXAS Armando Chapa Ronald L. Olson City Secretary City Manager 0018_3_Agreement - Health District Agmt Amdmtl Page 3 of 3 CITY OF CORPUS CHRISTI CERTIFICATION OF FUNDS (City Charter Article IV, Sections 7 & 8) I, the Director of Financial Services of the City of Corpus Christi, Texas (or his /her duly authorized representative), hereby certify to the City Council and other appropriate officers that the money required for the current fiscal year's portion of the contract, agreement, obligation or expenditure described below is in the Treasury to the credit of the Fund specified below, from which it is to be drawn, and has not been appropriated for any other purpose. Future payments are subject to annual appropriation by the City Council. City Council Action Date: August 21, 2012 Agenda Item: Motion to approve the First Amendment to the Reformed Cooperative Agreement with Nueces County for operation of the Corpus Christi - Nueces County Public Health District in order to consolidate a nursing position under Pay Plan HTH and to authorize execution of the First Amendment by the City Manager. Amount Required: $ 0 Fund Name Account No. Fund No. Org. No. Project No. Amount Total $ ® Certification Not Required Director of Financial Services Date: AGENDA MEMORANDUM Future Item for the City Council Meeting of August 14, 2012 Action Item for the City Council Meeting of August 21, 2012 DATE: TO: May 23, 2012 Ronald L. Olson, City Manager FROM: Annette Rodriguez, Director of Public Health AnnetteR @cctexas.com 361- 826 -7203 Amending the Code of Ordinances, Chapter 39, Article III, Section 39 -303, subsection (m), "Pay Plan HTH," to eliminate the grade 58 position from the plan CAPTION: A. Motion to approve the First Amendment to the Reformed Cooperative Agreement with Nueces County for operation of the Corpus Christi - Nueces County Public Health District in order to consolidate a nursing position under Pay Plan HTH and to authorize execution of the First Amendment by the City Manager. B. Ordinance amending the code of ordinances, chapter 39, article III section 39 -303, subsection (m), "Pay Plan HTH," to eliminate the grade 58 position from the plan PURPOSE: This allows the Health District to combine two positions into one higher paying position comparable to current job market pay scale. BACKGROUND AND FINDINGS: The City of Corpus Christi and Nueces County mutually desire to amend Attachment "B" (entitled terms and conditions ") of the existing Agreement and associated attachments to the terms and conditions to include the revisions set out in this document ( "First Amendment "). ALTERNATIVES: Leave Health District Pay Plan as is OTHER CONSIDERATIONS: None CONFORMITY TO CITY POLICY: Council approval required to approve amending the code of ordinances EMERGENCY / NON - EMERGENCY: Non - Emergency DEPARTMENTAL CLEARANCES: Legal FINANCIAL IMPACT: ❑ Operating ❑ Revenue ❑ Capital X Not applicable Fiscal Year: 2011- 2012 Project to Date Expenditures (CIP only) Current Year Future Years TOTALS Line Item Budget Encumbered / Expended Amount This item BALANCE Fund(s): Comments: There is no fiscal impact for amending the code of ordinances. RECOMMENDATION: Staff recommends approve motion and amending code of ordinance LIST OF SUPPORTING DOCUMENTS: Ordinance ORDINANCE AMENDING THE CODE OF ORDINANCES, CHAPTER 39, ARTICLE III, SECTION 39 -303, SUBSECTION (m), "PAY PLAN HTH," TO ELIMINATE THE GRADE 58 POSITION FROM THE PLAN. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF CORPUS CHRISTI, TEXAS: SECTION 1. The Code of Ordinances, Chapter 39, Article 111, Section 39 -303, subsection (m), entitled "Pay Plan HTH," is revised by eliminating the Grade 58 position pay range from the pay plan, such position to be incorporated separately into the operating agreement governing the Corpus Christ - Nueces County Public Health District, and amending the subsection to read as follows: "Sec. 39 -303. Standard classifications, pay grades, and ranges. "(m) Pay Plan HTH. Pay Plan HTH will include positions in the Health District, excluding Animal Care Services and Vector Control. These positions may be designated as either exempt from overtime under the FLSA or as non - exempt and eligible for overtime under the FLSA. The pay grades and ranges for positions in Pay Plan HTH are as follows: HEALTH DISTRICT PAY PLAN* Pay Plan HTH Health District H10 -49 Non - Exempt (FLSA Overtime Eligible) H50 -99 Exempt (FLSA Overtime Ineligible) Effective 5/11/09 om- ve Id h 4.., i� ����- 4., H11 $ 17,066 $22,743 $28,420 H12 18,432 23,936 29,440 1-113 19,998 25,970 31,942 H14 21,797 28,307 34,817 H15 23,867 30,995 38,124 H16 26,254 34,096 41,938 H17 29,011 37,675 46,340 1-118 31,728 41,583 51,438 EHord360 Health District Pay Plan Amdmt Page 1 of 3 H52 28,144 38,527 48,909 H53 30,536 41,802 53,066 • H54 33,286 45,565 57,844 H55 36,448. 49,894 63,340 H56 40,093 54,853 69,613 H57 44,305 60,648 76,991 H58 49,177 67,320 Paid as agreed 85,461 Paid as agreed Paid as agreed *This pay plan excludes positions in Animal Care Services and Vector Control." PHord360 Health District Pay Plan Amdmt Page 2 of 3 The foregoing ordinance was read for the first time and passed to its second reading on this the day of , 2012, by the following vote: Joe Adame David Loeb Chris N. Adler John E. Marez Kelley Allen Nelda Martinez Larry Elizondo Mark Scott Priscilla G. Leal The foregoing ordinance was read for the second time and passed finally on this the day of , 2012, by the following vote: Joe Adame David Loeb Chris N. Adler John E. Marez Kelley Allen Nelda Martinez Larry Elizondo Mark Scott Priscilla G. Leal PASSED AND APPROVED this the day of , 2012. ATTEST: Armando Chapa City Secretary Joe Adame Mayor EHord360 Health District Pay Plan Amdmt Page 3 of 3 Attachment "1" Health District Job Title and Pay Grade Assignment City / County Current Job Title Current Grade Proposed Title Specific to Health District Proposed New Pay Grade Salary Cost Impact NON=EXEMPT POSITIONS . - . - Public Health Inspector I (1) 916 H 16 — City to acquire 1 County employee To City9 7445.09 (excludes value for vada antes) cation and $� ck leave Sanitation Inspector Envir & Cons (1) 16 Public Health Inspector 1 p Public Health Inspector II (1) 917 Public Health Inspector H H17 None Sanitarian TI (1) 918 Public Health Sanitarian H18 — City to acquire 1 County employee To City - Current vacant position; minimum bwk220 for grade 918 is $ Sanitarian — County (1) 20 NON-EXEMPT POSITIONS Staff Assistant (14) 911 Health Dist. Staff Assistant H I 1 none Clerk —County (1) 11 Data EntryClerk — CountyHealth (1) 11 District Data Entry Clerk H11 none Sr Staff Assistant (1) 912 Health Dist. Sr Staff Assistant H12 none Clinical Assistant — County (I) 13 Sr Clerk — County (4) 13 Community Service Aide (10) 913 Health Dist. Medical Assistant H13 none Clinic Aide — County (3) I 1 Intermediate Clerk — County (2) 11 LaboratoryAssistant — County I O 1 I Medical Laboratory Assistant H13 none Health Information Aide (1) 913 Health Information Aide H13 none Exhibit "1" 1 - 4, Health District Agmt Amdmtl Att B-1 v02 20120416 City / County Current Job Title Senior Account Clerk (2) Attachment "1" Health District Job Title and Pay Grade Assignment Current Grade 913 Proposed Title Specific to Health District Health Dist.Sr Account Clerk Proposed New Pay Grade H13 Salary Cost Impact none Community Service Aide (1) Laboratory Technician I (1) 913 914 Laboratory Technician — County (1) Lactation Peer Counselor (1) Management Aide (1) 11 914 915 Sr Admin. Clerk — County (2) Building Maintenance Technician Dental Assistant — County (1) Executive Assistant (1) Immunizations Info Specialist (2) 17 915 14 915 916 Information Specialist - County(1) LVN I (4) 19 916 LVN — County (3 ) 22 LVN II — County (1) 22 Health Dist. Med. Asst. Supv. Medical Laboratory Technician Lactation Peer Counselor Health Dist.Management Aide Health Dist. Building Maintenance Technician Dental Assistant Health Dist. Exec. Assistant Public Health Technician Licensed Vocational Nurse H14 H14 H14 H15 H15 H15 H15 H16 H16 none To County - 1 County employee would receive a $35.20 Bwkdy increase to move to minimum of proposed pay range. none none none none none none none 2 - 4, Health District Agmt Amdmtl Att B-1 v02 20120416 Attachment "1" Health District Job Title and Pay Grade Assignment City / County Current Job Title Current Grade Proposed Title Specific to Health District Proposed New Pay Grade Salary Cost Impact Health Education Specialist (1) 917 Health Dist. Education Specialist H17 none Community Service Officer 917 Community Health Service Officer H17 none Public Health Preparedness Specialist (1) 917 Public Health Preparedness Specialist H17 none _ .. .. ,...,m .. . . � ,m:.a?�e.,.>... .„.m " . �. m".m. 1?GS' e .. ..°....:... "..... ........ ..,,.......�� �� � .. ....., .. ".. _.,_.._.._..".a..."sx.".":...........>...,t«..<"_....".mcs.%w..re......r.9:..c?-. .,.... _. . ... .... e... _ ,.. ., ,_ ,:� . »: , ". .ma..i"." ..:. ..x_:.m."._..... a: -s:. r:¢eaa¢P ..." .... <..E <....t.e ...e. .«»a..,_%.eP. S...0 ^...� x .a..... Prw«.. <-. ... "at...9.«9G ° s........ ..'S... ..c....eoe...._.x......=a. .._ _,.........o90«c....._......,.x....r."..a8...,,..:.x?°R:e:ed�.».aa ...«".:?° . ..A..««.. ._...:..» sWe .�...SG:.af..:.....[",d m.....m:x�:^.'.::::.d.:;. ...«.,...« Bd: tF . ,_.....:8 aga..... ..., ....._. s.s ...:.., .F..» s....s^.,... §u:°:: .« . ^: x,.....> ..... ...A §. e., sEai.ve..,.:;Paw..". ..U;§ .R,u9a.. ,.... «naa,.,.s,...� v...._...._a....s'� ,".. Jd. ..<. _ ...,..F.....Ki. & »«:.:, sm. ..,..Y. ..YxF f:`:'-.,-£h:IddB:"°°:e^t_bjM`b.^x..zF.4."..,^t"..:..5 8�8%3s� ..,a:.,.,"Rw'..F.. �rr,..a•?z '�'evg•;»� mm ,.... F.".t`«...; ...e.e... .. '$§nave�§e t«—.�".4��'m :A.., .'S::a°.°¢'�P[ ".•xm°m .°..v m m:;gy°e�e�;"�=;s`�G:�eia e:tti..aaa°A;T?r;SS, Nutritionist (2) 612 Health Dist. Nutritionist H52 none Accountant (1) 613 Health Dist. Accountant H53 none Public Health Technician — County (1) 19 Public Health Techn. II H53 none Disease Intervention Specialist — County (1) 21 Microbiologist (3) 614 Health Dist. Microbiologist H54 none Public Health Nurse (4) 6I4 Public Health Nurse H54 none Public Health Nurse II - County (2) 28 Program Manager (1) 615 Health Dist. Program Manager H55 none HIV/STD Program Manager (1) 28 Senior Public Health Nurse (4) 616 Pubic Health Manager H56 none Infectious Disease Coordinator (1) 30 3 - 4, Health District Agmt Amdmtl Att B-1 v02 20120416 City / County Current Job Title Planner/Strategic National Stockpile — County (1) Public Health Administrator (3) Nurse Practitioner County (1) Sr Nurse Practitioner (1) End Attachment "1" Health District Job Title and Pay Grade Assignment Current Grade 26 617 -3-8- 618 Proposed Title Specific to Health District Health Dist. Planner/Strategic National Stockpile Coordinator Public Health Administrator Nurse Practitioner Sr Nurse Practitioner Proposed New Pay Grade H56 H57 14-5-7 H58 Salary Cost Impact none none none 4 - 4, Health District Agmt Amdmtl Att B-1 v02 20120416 FIRST AMENDMENT TO THE REFORMED COOPERATIVE AGREEMENT TO OPERATE A PUBLIC HEALTH DISTRICT WHEREAS, the City of Corpus Christi ( "City ") and Nueces County ( "County ") previously entered into an agreement ( "Agreement ") to cooperatively operate a public health district ( "Health District ") for the benefit of both parties; and WHEREAS, the City and County mutually desire to amend Attachment "B" (entitled "Terms and Conditions ") of the existing Agreement and associated attachments to the Terms and Conditions to include the revisions set out in this document ( "First Amendment "). Section 1. The language contained in the preamble above is incorporated by reference in this section. Section 2. Part "A" of the Terms and Conditions of the Agreement is amended by adding new subpart "8" to read as follows: "8. The County shall eliminate the Nurse Practitioner position, classified as a Grade H57 position, from Pay Plan HTH. The former Grade H57 position will be consolidated with the existing Senior Nurse Practitioner position in Grade H58 of Pay Plan HTH. Grade H58 Senior Nurse Practitioner position only will be compensated as set out in part G of these Terms and Conditions." Section 3. Part "G" of the Terms and Conditions of the Agreement is amended by revising the heading to read as follows: "G. THE CITY AND COUNTY SHALL SHARE IN FUNDING SALARY AND BENEFITS OF THE DIRECTOR AND ASSISTANT DIRECTOR OF PUBLIC HEALTH ADMINSTRATION POSITIONS AND THE SENIOR NURSE PRACTITIONER POSITION AT THE PERCENTAGE OF 60% CITY AND 40% COUNTY. THE DIRECTOR SHALL BE HIRED BY AND REPORT TO THE CITY MANAGER AND COUNTY JUDGE. THE ASSISTANT DIRECTOR AND THE SENIOR NURSE PRACTITIONER SHALL BE HIRED BY THE DIRECTOR WITH THE CONCURRENCE OF THE CITY MANAGER AND THE COUNTY JUDGE. THE ASSISTANT DIRECTOR AND SENIOR NURSE PRACTITIONER SHALL REPORT TO THE DIRECTOR. (MOU Item 7) Section 4. Part "G" of the Terms and Conditions of the Agreement is amended by adding new subpart "7" to read as follows: "7. The Senior Nurse Practitioner position shall remain in Pay Plan HTH as a Grade H58 and shall be compensated as follows: $110,000 annual salary and benefits. The County shall reimburse the City for 40% of the salary and benefits. 0019_4_Health District Agmt Amdmtl vFinal 20120425 Page 1 of 3 The City shall prepare an invoice detailing the salary and benefit costs by pay period and show the 40% amount owed to the City by the County. This invoice shall be sent to the County monthly." Section 5. Attachment "1" of the Terms and Conditions of the Agreement, entitled "Health District Job Title and Pay Grade Assignment," is amended by deleting the reference on page 4 of the attachment to the "Nurse Practitioner — County (1)" and all associated line -item information, as shown in Exhibit "1" of this First Amendment, which exhibit is attached to and incorporated in this amendment by reference. Pursuant to the foregoing, the parties mutually agree that the revised Attachment "1" of the Terms and Conditions of the Agreement, as set out in Exhibit "1" of this First Amendment, replaces the former Attachment "1" of the Terms and Conditions of the Agreement upon final approval of this First Amendment unless expressly stated otherwise. Section 6. Attachment "2" of the Terms and Conditions, entitled "Health District Pay Plan for Combined City /County Positions," is amended by modifying the low, mid - point, and maximum pay grade range amounts to reflect that the Grade H58 position is to be compensated in accordance with the provisions included in part "G" of the Terms and Conditions to the Agreement, to be styled "Compensation Subject to Terms and Conditions of Public Health District Cooperative Agreement." Section 7. The City shall submit an amended pay plan ordinance incorporating the changes to the Grade H58 position in Pay Plan HTH as set out in this First Amendment, subject to final approval by the City Council. Section 8. This First Amendment is made effective upon final approval of the parties' governing bodies to the execution of this document by the parties' representatives. (EXECUTION PAGE FOLLOWS) 0019_4_Health District Agmt Amdmtl vFinal 20120425 Page 2 of 3 Executed this day of , 2012 ATTEST: NUECES COUNTY, TEXAS Diane T. Barrera Samuel L. Neal, Jr. County Clerk County Judge APPROVED as to form: Laura Garza - Jimenez County Attorney ATTEST: CITY OF CORPUS CHRISTI, TEXAS Armando Chapa Ronald L. Olson City Secretary City Manager 0019_4_Health District Agmt Amdmtl vFinal 20120425 Page 3 of 3 AGENDA MEMORANDUM for the City Council Meeting of August 21, 2012 DATE: August 10, 2012 TO: Ronald L. Olson, City Manager FROM: Daniel Biles, P.E., Director of Engineering Services danb @cctexas.com; (361) 826 -3464 Michael Morris, Director of Parks & Recreation Services mmorris @cctexas.com; (361) 826 -3464 Approval of Construction Contract for Evelyn Price Park Improvements (Bond 2008) CAPTION: Motion authorizing the City Manager, or designee, to execute a Construction Contract with Safenet, LLC. of Corpus Christi, Texas in the amount of $137,764.63 for the Evelyn Price Park Improvements for the base bid. (Bond 2008 — Sports Field Improvements). PURPOSE: To execute a construction contract for the Evelyn Price Park Improvements. BACKGROUND AND FINDINGS: This project consists of the rehabilitation of portions of the existing parking lot, sidewalks, and drainage ditches at Evelyn Price Park. The project includes the removal and replacement of approximately 2,221 square yards Hot Mix Asphaltic Concrete (HMAC) parking area, associated ADA compliant pedestrian infrastructure, and installation of drainage culverts. This project is a Base Bid only. There are no Additive Alternates. CA Program Graic, t Legistar5Packet993 _ City Council _8_14_2012 \0020_1— Memo - Evelyn Price Park.docx On June 27, 2012, the city received proposals from five (5) bidders and their bids are as follows: Contractor Base Bid Safenet Services, LLC. Corpus Christi, Texas $137 764.63 Lougistics, LLC. San Antonio, Texas $163 522.62 Garrett Construction, Co. Ingleside, Texas $177 300.00 J. Carroll Weaver, Inc. Sinton, Texas $200 061.40 Barcom Construction, Inc. Corpus Christi, Texas $293 412.81 ALTERNATIVES: 1. Award construction contract as recommended. 2. Don't award construction contract. OTHER CONSIDERATIONS: This project was approved by the voters in the November 2008 bond election under the parent project, Sports Field Lighting and Other Improvements — City Wide) CONFORMITY TO CITY POLICY: Conforms to statutes regarding bid process; Bond Issue 2008; FY2012 -2013 Capital Budget. EMERGENCY / NON - EMERGENCY: Not Applicable DEPARTMENTAL CLEARANCES: Parks & Recreation G: \Prog am FilesvGranic,svLegistars \Packet \993_City Council_8_14_2012 \0020_ 1 _ Memo - Evelyn Price Park.docx FINANCIAL IMPACT: ❑ Operating ❑ Revenue X Capital ❑ Not applicable Fiscal Year: 2012- 2013 Project to Date Expenditures (CIP only) Current Year Future Years TOTALS Line Item Budget $1,626,800.00 $1,373,200.00 $0.00 $3,000,000.00 Encumbered / Expended Amount $1,626,800.00 $1,626,800.00 This item $137,764.63 $137,764.63 Future Expenditures $51,312.04 $51,312.04 BALANCE 0.00 $1,184,123.33 $1,184,123.33 Fund(s): Parks & Recreation CIP Comments: This project falls under the parent project, Sports Field Lighting and Other Improvements — City Wide (bond 2008), CIP PR 07. RECOMMENDATION: City staff recommends approval of a construction contract with Safenet Services, LLC. of Corpus Christi, Texas in the amount of $137,764.63 for the Evelyn Price Park Improvements. The construction contract completion time is 90 calendar days. The estimated project completion timeframe is January / February 2013. LIST OF SUPPORTING DOCUMENTS: Project Budget Location Map G: \Prog am FilesvGranic,svLegistars \Packet \993_City Council_8_14_2012 \0020_ 1 _ Memo - Evelyn Price Park.docx PROJECT BUDGET Evelyn Price Park Improvements - Bond 2008 Project No. E11128 August 21, 2012 FUNDS AVAILABLE: Parks & Recreation Capital Improvement Budget (Bond 2008) $ 3,000,000.00 TOTAL AVAILABLE. $ 3,000,000.00 FUNDS REQUIRED: Construction (Safenet Services, LLC.) $ 137,764.63 Contingencies 10% $ 13,776.46 Consultant Fees: Consultant Design (RVE, Inc.)* $ 24,470.00 Testing Agreement (Rock Engineering & Testing Laboratory) (Geotechnical $ 1,700.00 Inspection) ** Reimbursements: Contract Administration (Contract Preparation /Award /Admin) $ 3,788.53 Engineering Services (Project Mgt/Constr Mgt/Traffic Mgt) $ 4,821.76 Finance Reimbursements $ 2,066.47 Misc. (Printing, Advertising, etc.) $ 688.82 TOTAL $ 189,076.67 Additional Projects Completed under this Bond Program Line Item $ 1,626,800.00 Estimated Project Balance $ 1,184,123.33 * Consultant Contract awarded administratively January 20, 2012. ** Testing Agreement awarded administratively February 15, 2012. \Mproject \councilexhibits \exhE1 1 1 28.dwg RIVER _ UECES B'.A lW AGNES GA �.► • PROJECT SITE Evelyn Price Park FM 2444 M.2DRE LOCATION MAP NOT TO SCALE PROJECT #E11128 Evelyn Price Park Improvements CITY COUNCIL EXHIBIT CITY OF CORPUS CHRISTI, TEXAS DEPARTMENT OF ENGINEERING SERVICES PAGE: 1 of 1 AGENDA MEMORANDUM Future Item for the City Council Meeting of August 14, 2012 Action Item for the City Council Meeting of August 21, 2012 DATE: July 26, 2012 TO: Ronald L. Olson, City Manager THROUGH: Wes Pierson, Assistant City Manager (361) 826-3082 wesp@cctexas.com FROM: Mike Culbertson (361) 882 -7448 mculbertson@ccredc.com Type A Grant for Accion Texas Loan Buy Down Program for Fiscal Year 2013 CAPTION: Resolution approving a Small Business Incentives Agreement between the Corpus Christi Business and Job Development Corporation and Accion Texas, Inc. ( "Accion ") to provide grant amount up to $400,000 for the interest buy down and grant programs for small businesses and authorizing the City Manager, or designee, to execute a Project Support Agreement with the Corpus Christi Business and Job Development Corporation to administer the Accion Texas Small Business Incentives Agreement. PURPOSE: Approve a Type A Grant for Accion Texas Loan Buy Down Program for Fiscal Year 2013 BACKGROUND AND FINDINGS: Accion Texas Inc. supports small and start -up companies with a loan interest buy -down program when traditional financing is not available. Type A has provided funding since 2004. Accion has assisted over 250 small businesses in the city since the inception of this program. ALTERNATIVES: Enlist local banks to lend to small businesses. To qualify for this program, small businesses must have been turned down for a bank loan. Additionally local banks already participate in the Small Business Administration (SBA) loan program. OTHER CONSIDERATIONS: By assisting small businesses the City is increasing the economic development and growing future jobs. CONFORMITY TO CITY POLICY: This project is consistent with the City's stated goals of promoting economic development and assisting small businesses thrive in Corpus Christi. EMERGENCY / NON- EMERGENCY: NON - EMERGENCY DEPARTMENTAL CLEARANCES: FINANCIAL IMPACT: ❑ Operating ❑ Revenue ❑ Capital ❑ Not applicable Fiscal Year: 20121- 2013 Project to Date Expenditures (CIP only) Current Year Future Years TOTALS Line Item Budget 1,067,358 1,067,358 Encumbered / Expended Amount This item 400,000 400,000 BALANCE 667,358 667,358 Fund(s): Type A Fund Comments: RECOMMENDATION: Staff recommends that the City Council authorize the City Manager to enter into a one year Type A agreement LIST OF SUPPORTING DOCUMENTS: Certification of Funds Small Business Incentive Agreement Accion Business Support Agreement Page 1 of 2 RESOLUTION Resolution approving a Small Business Incentives Agreement between the Corpus Christi Business and Job Development Corporation and Accion Texas, Inc. ( "Accion ") to provide grant amount up to $400,000 for the interest buy down and grant programs for small businesses and authorizing the City Manager, or designee, to execute a Project Support Agreement with the Corpus Christi Business and Job Development Corporation to administer the Accion Texas Small Business Incentives Agreement. WHEREAS, the Corpus Christi Business and Job Development Corporation ( "Type A Corporation ") has budgeted funds to assist businesses create or retain jobs in the City of Corpus Christi, Texas ( "City "). WHEREAS, the Type A Corporation has requested proposals from businesses that will create or retain jobs within the City, and determined that the proposal from Accion for interest buy down and grant programs for small businesses within the City will best satisfy this goal; WHEREAS, City Council deems that it is the best interest of the City and citizens to approve the business incentives agreement for interest buy down and grant programs for small businesses between the Type A Corporation and Accion; WHEREAS, there is a need for a business incentives project support agreement between the City and the Type A Corporation for the implementation and administration of the business incentives agreement for interest buy down and grant programs for small businesses between the Type A Corporation and Accion. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF CORPUS CHRISTI, TEXAS: SECTION 1. That the business incentives agreement for the creation and retention of jobs between the Type A Corporation and Accion that provides for interest buy down and grant programs for small businesses within the City of Corpus Christi, which is attached to this resolution as Exhibit A, is approved. SECTION 2. That the City Manager, or designee, is authorized to execute a project support agreement between the City and Type A Corporation for the implementation and administration of the business incentives agreement with Accion, which is attached to this resolution as Exhibit B. This resolution takes effect upon City Council approval on this the day of , 2012. 0021_2_RESOLUTION Accion Business Incentive Agreement 7 -6 -12 Page 2of2 ATTEST: THE CITY OF CORPUS CHRISTI Armando Chapa City Secretary Joe Adame Mayor Corpus Christi, Texas of , 2012 The above resolution was passed by the following vote: Joe Adame Chris N. Adler Larry R. Elizondo, Sr. Kelley Allen Priscilla Leal David Loeb John E. Marez Nelda Martinez Mark Scott 0021_2_RESOLUTION Accion Business Incentive Agreement 7 -6 -12 SMALL BUSINESS INCENTIVES AGREEMENT BETWEEN THE CORPUS CHRISTI BUSINESS AND JOB DEVELOPMENT CORPORATION AND ACCION TEXAS, INC. FOR AN INTEREST BUY DOWN PROGRAM FOR SMALL BUSINESSES This Small Businesses Incentives Agreement for an Interest Buy Down Program for Small Businesses ("Agreement") is entered into between the Corpus Christi Business and Job Development Corporation ("Corporation") and ACCION Texas, Inc., a Texas nonprofit corporation ("ACCION Texas"). WHEREAS, the Texas Legislature in Section 4A of Article 5190.6, Vernon's Texas Revised Civil Statutes (Development Corporation Act of 1979), now codified as Subtitle 01, Title 12, Texas Local Government Code, Section 504.002 et seq, ("the Act"), empowered local communities with the ability to adopt an optional local sales and use tax as a means of improving the economic health and prosperity of their citizens; WHEREAS, on November 5, 2002, residents of the City of Corpus Christi ("City") passed Proposition 2, New and Expanded Business Enterprises, which authorized the adoption of a sales and use tax for the promotion and development of new and expanded business enterprises at the rate of one-eighth of one percent to be imposed for 15 years; WHEREAS, the 1/8th cent sales tax authorized by passage of Proposition 2 was subsequently enacted by the City Council and filed with the State Comptroller of Texas, effective April 1, 2003, to be administered by the Corpus Christi Business and Job Development Corporation Board; WHEREAS, the Corpus Christi Business and Job Development Corporation exists for the purposes of encouraging and assisting entities in the creation of jobs for the citizens of Corpus Christi, Texas; WHEREAS, the Board of Directors of the Corporation ("Board"), on September 10, 2007, amended the Corporation's Guidelines and Criteria for Granting Business Incentives ("Type A Guidelines"), which the City Council incorporated into the City of Corpus Christi Economic Development Incentive Policies 2009-2011 on November 17, 2009; WHEREAS, Section 501.073 of The Act requires the City Council to approve all programs and expenditures of the Corporation; WHEREAS, ACCION Texas is a Texas nonprofit corporation whose principal mission is to provide loans to small business owners lacking access to commercial credit; WHEREAS, ACCION Texas anticipates, over the next twelve months, providing interest buy down to 5.5% for approximately 60 loans with an average value of $25,000 to low and moderate income micro and small business owners in Corpus Christi to generate 20 new permanent full- time jobs; WHEREAS, the Board has determined that it is in the best interests of the citizens of Corpus Christi, Texas that business development funds be provided to ACCION Texas, through this contract with ACCION Texas, to be used by ACCION Texas to buy down the interest on commercial loans to 5.5% interest for small businesses and establish a small business grant program, both of which will result in creation of new full-time permanent jobs in the city of Corpus Christi. Page 1 of 12 SMALL BUSINESS INCENTIVE AGREEMENT - ACCION 06 27 2012.docx In consideration of the covenants, promises, and conditions stated in this Agreement, Corporation and ACCION Texas agree as follows: 1. Effective Date. The effective date of this Agreement ("Effective Date") is the latest date that either party executes this Agreement. 2. Term. The term of this Agreement is for one year from August 1, 2012, through July 31, 2013. This agreement may be extended at the option of the Corporation for up to two additional one year terms, contingent upon annual appropriation of funds and approval of the City Council. 3, Loan Loss Reserve Program. a. The Corporation has previously provided $75,000 for the Loan Loss Reserve Program. b. The Loan Loss Reserve Program funds will be used to a ow ACCION Texas to leverage additional capital for small business loans. c. "Small business is defined in the Corpus Christi Business & Job Development Corporation Guidelines & Criteria for Granting Business Incentives ("Corporation Guidelines), adopted on May 5, 2003, and amended on November 9, 2010. d. ACCION Texas anticipates that it will have one million dollars available on an annual basis to be lent to qualifying small businesses in Corpus Christi. e. For every $50,000 in loans that ACCI6N Texas provides to a small business in Corpus Christi, ACCI6N Texas shall ensure that the loan will result in the creation of one new full-time permanent job in the city of Corpus Christi. f. Businesses assisted must be located in or locating within the city limits of Corpus Christi, Texas, g. Businesses assisted must be unable to obtain a loan from traditional lending institutions. h. Loan amounts shall be within the range of $5,000 to $75,000. i. ACCION Texas shall provide the Corporation with quarterly reports to identify the loans made, name and address of business receiving loan, jobs created, and other reports as requested by the Corporation. j. ACCI6N Texas shall provide the corporation with quarterly reports of capital available for loans to qualified Corpus Christi small businesses or qualified small businesses locating to Corpus Christi. k. ACCION Texas will provide funds for operations and loan capital to implement and sustain the program. 4. Interest Buy Down Program. a. In consideration for creation and maintenance of new jobs as provided in this Agreement, the Corporation agrees to pay ACCION Texas up to $350,000 for the Page 2 of 12 SMALL BUSINESS INCENTIVE AGREEMENT - ACCION 06 27 2012 clocx Interest Buy-Down Program as follows: 1. ACCION Texas must first receive a request for a loan from a small business or start-up company that has the ability to produce jobs in the future and is located in Corpus Christi or will be locating in Corpus Christi ("Business"). ii. The request from the applicant must include a notarized affidavit stating that they have applied for normal financing from a bank, or similar lending institution, and have been denied a loan. iii. ACCION Texas shall review the request for a loan from the Business. iv. Upon ACCION Texas approval of a loan, and prior to the closing of the loan, ACCION Texas shall submit Attachment "A" to the Corporation requesting funds to buy down the interest rate from the interest rate allowable per the underwriting criteria to 5.5%. The Corporation authorizes an interest buy down up to 7% of the interest rate to finance the loan. Payment by Corporation shall not exceed $17,500 per loan and shall be calculated using the following formula: (Loan amount x interest rate to buy down to 5.5%) / 12 = N N x number of payments=interest buy down reimbursement to ACCION Texas for business loan. (The number of monthly payments shall not exceed sixty (60).) Example: ($10,000 x 7%) / 12 = 58.33 58.33 x 36 = $2,100 = amount to be reimbursed to ACCION Texas for business loan, v. The Corporation shall provide a response to approve or deny the reimbursement for the Interest Buy Down Program funds to ACCION Texas within 2 business days of receipt of Attachment "A." The Corporation shall reimburse funds within 30 days after evidence of closing the loan is submitted. vi. The total funds available on an annual basis under the Interest Buy Down Program under this agreement are $350,000. b. The loans assisted with the program must be within the range of $5,000 to $75,000. c. This program must result in the creation of one permanent full-time job per every loan of at least $50,000 assisted with the Interest Buy Down Program. ACCION Texas shall ensure that the loan will result in the creation of one new full-time permanent job in the city of Corpus Christi. d. Businesses assisted through this program must be: 1. A start-up or existing small business that is unable to obtain a loan from a traditional financial institution or unable to qualify for the total needed for a business loan through a bank or credit union, in which case ACCION Texas can Page 3 of 12 SMALL BUSINESS INCENTIVE AGREEMENT - ACCION 06 27 2012.docx loan the remaining amount with the buy down interest rate program in conjunction with the banklcredit union. ii. An existing small business that needs assistance to expand. iii. Any business assisted under the provisions of paragraphs i or il of this subsection, must be: A. Located in or locating in Corpus Christi city limits. B. Current on payment of all sales taxes. C. Current on payment of all ad valorem taxes in the City of Corpus Christi. e. The following projects are ineligible for this program: i. Refinancing of existing loans or debt ii. Businesses located outside the Corpus Christi city limits iii. Home-based businesses located outside the Corpus Christi city limits iv. Loans to existing businesses which are not planning on expanding v. Business retention. f. ACCION Texas may use up to $200,000 to assist start-up and existing small businesses that have little or no access to traditional credit, and up to $150,000 to existing small businesses that wish to expand. g. ACCION Texas shall provide the Corporation with quarterly reports as provided in Attachment "8" to identify the loans made, name and address of the business receiving the loan, jobs created under the Interest Buy Down Program, and other reports as requested by the Corporation. h. ACCION Texas shall provide funds for operations and loan capital to implement and sustain the program. 1. ACCION Texas shall develop loan underwriting criteria and payment terms and conditions for its loan program and provide to the Corporation. j. At the termination of this agreement and after repayment or other conclusion of all loans assisted by Interest Buy Down Program, ACCION Texas will return to the Corporation any unexpended funds remaining from the Loan Loss Reserve Program. 5. Small Business Grant Program. a. In consideration for creation and maintenance of new jobs as provided in this Agreement, the Corporation agrees to pay ACCION Texas up to $50,000 for the Small Business Grant Program as follows: Page 4 of 12 USINESS INCENTIVE AGREEMENT - ACCION 06 27 2012.docx 1. Grants to loan applicants who do not meet standard underwriting criteria, either because of capacity, cash flow, or credit, who could benefit from a grant to boost their ability to become successful. The grant amount may not exceed $2,500 or 10% of the principal amount requested, whichever is less. ii. Grants to loan applicants who want to use part of loan proceeds to reduce energy consumption or transition into green retail products. The grant amount may not exceed $2,500 or 25% of the upgrades presented in the loan file. Grants to loan applicants who provide services for working families (e.g. both children and adult day care centers) to improve their facilities to be compliant with state/federal standards. The grant amount may not exceed $2,500, iv. Grants to loan applicants that are veteran owned businesses. The grant amount may not exceed $500. v. Working capital grants to holders of existing loans with ACCION Texas. If the loans that have paid routinely on time for a period of 24 months, the maximum grant amount may not exceed $1,000. If the loans have been paid routinely on time for a period of 12 months on time payments, the maximum grant amount may not exceed $500 grant. b. The loans assisted with the program must be within the range of $500 to $25,000. c. This program must result in the creation of one permanent full-time job per every related loan of at least $50,000 assisted through the Interest Buy Down Program. ACCION Texas shall ensure that the loans will result in the creation of one new full-time permanent job in the city of Corpus Christi. d. Businesses assisted through this program must be: i. A start-up or existing small business that is Linable to obtain a loan from a traditional financial institution or unable to qualify for the total needed for a business loan through a bank or credit union, in which case ACCION Texas can loan the remaining amount with the Buy Down interest rate program in conjunction with the bank\credit union. ii. An existing small business that needs assistance to expand. iii. Any business assisted under the provisions of paragraphs i or ii of this subsection, must be: A. Located in or locating in Corpus Christi city limits. B. Current on payment of all sales taxes. C. Current on payment of all ad valorem taxes in the City of Corpus Christi, e. The following projects are ineligible for this program: Page 5 of 12 SMALL BUSINESS INCENTIVE AGREEMENT - ACCION 06 27 2012.docx 1. Businesses located outside the Corpus Christi city limits Home-based businesses located outside the Corpus Christi city limits iii. Grants to existing businesses which are not planning on expanding f. ACCION Texas shall provide the Corporation with quarterly reports as provided in Attachment "B" to identify the grants made, name and address of the business receiving the grant, jobs created under the related Interest Buy Down Program, and other reports as requested by the Corporation. g. ACCION Texas shall provide funds to implement and sustain the program. h. ACCION Texas shall develop grant award criteria and payment terms and conditions for the grant loan program, and must provide copies of the criteria, terms, and conditions to the Corporation. i. At the termination of this agreement or other conclusion of the Small Business Grant Program, ACCION Texas shall return to the Corporation any unexpended funds remaining from the Small Business Grant Program. 6. Job Creation Qualification. a. In order to count as a created job under this Agreement, the job must pay wages at least as high as the median wage of the occupation in the Corpus Christi MSA as determined by Texas Workforce Commission's Texas industry Profiles report. b. A "job" is defined in the Type A Guidelines as a full-time employee, contractor, consultant, or leased employee who has a home address in the Corpus Christi MSA. c. ACCION Texas agrees to confirm and document to the Corporation that each job created as a result of funding provided by this Agreement is maintained throughout the term of the loan to the Business. d. ACCION Texas agrees to provide Corporation with a sworn certificate by authorized representative of each shall business assisted under this Agreement certifying the number of full-time permanent employees employed by the small business. e. ACCION Texas shall ensure that the Corporation is allowed reasonable access to personnel records of the small businesses assisted under this Agreement. 7. Buy Local Provision. a. ACCION Texas agrees to use its best efforts to give preference and priority to local manufacturers, suppliers, contractors, and labor, except where not reasonably possible to do so without added expense, substantial inconvenience, or sacrifice in operating efficiency. b. For the purposes of this section, the term “Iocal" as used to describe manufacturers, suppliers, contractors, and labor includes firms, businesses, and persons who reside in or maintain an office within a 50 mile radius of Nueces County. Page 6 of 12 SMALL BUSINESS INCENTIVE AGREEMENT - ACCION 06 27 2012 dm: 8. Local Offices. Two staff persons of ACCION Texas offices shall be located in Corporation designated offices or a mutually agreeable location, 9. Representation on ACCION Texas governing board. ACCION Texas agrees to appoint a person designated by the Corporation as a member of ACCION Texas governing board. 10. Warranties. ACCI6N Texas warrants and represents to Corporation the following: a ACCI6N Texas is a corporation duly organized, validly existing, and in good standing under the laws of the State of Texas, has all corporate power and authority to carry on its business as presently conducted in Corpus Christi, Texas. b. ACCION Texas has the authority to enter into and perform, and will perform, the terms of this Agreement. c. ACCI6N Texas has timely filed and will timely file all local, State, and Federal tax reports and returns required by laws to be filed and all Texas, assessments, fees, and other governmental charges, including applicable ad valorem taxes, have been timely paid, and will be timely paid, during the term of this Agreement. d. ACCI6N Texas has received a copy of the Act and acknowledges that the funds granted in this Agreement must be utilized solely for purposes authorized under State law and by the terms of this Agreement. e. If an audit determines that the funds were not used for authorized purposes, ACCION Texas agrees to reimburse Corporation for the sums of money spent for purposes not authorized by law within 30 days written notice requesting reimbursement. f. The parties executing this Agreement on behalf of ACCION Texas are duly authorized to execute this Agreement on behalf of ACCION Texas. g. ACCI6N Texas does not and agrees that it will not knowingly employ an undocumented worker. lf, after receiving payments under this Agreement, ACCION Texas is convicted of a violation under §U.S.C. Section 132440, ACCION Texas shall repay the payments at the rate and according to the terms as specified by City Ordinance, as amended, not later than the 120th day after the date ACCION Texas has been notified of the violation. 11. Compliance with Laws. ACCION Texas shall observe and obey all applicable laws, ordinances, regulations, and rules of the Federal, State, county, and city governments. 12. Non-Discrimination. ACCION Texas covenants and agrees that ACCION Texas will not discriminate nor permit discrimination against any person or group of persons, with regard to employment and the provision of services at, on, or in the Facility, 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. 13. Force Majeure. If the Corporation or ACCION Texas are prevented, wholly or in part, from fulfilling its obligations under this Agreement by reason of any act of God, unavoidable accident, acts of enemies, fires, floods, governmental restraint or regulation, other causes of force majeure, or by reason of circumstances beyond its control, then the obligations of the Page 7 of 12 SMALL BUSINESS INCENTIVE AGREEMENT - ACCION 06 27 2012 docx Corporation or ACCION Texas are temporarily suspended during continuation of the force majeure. If either party's obligation is affected by any of the causes of force majeure, the party affected shall promptly notify the other party in writing, giving full particulars of the force majeure as soon as possible after the occurrence of the cause or causes relied upon. 14. Assignment. ACCION Texas may not assign all or any part of its rights, privileges, or duties under this Agreement without the prior written approval of the Corporation and City. Any attempted assignment without approval is void, and constitutes a breach of this Agreement. 15. Indemnity. ACCION Texas covenants to fully indemnify, save, and hold harmless the Corporation, the City, their respective officers, employees, and agents ("Indemnitees") against all liability, damage, loss, claims demands, and actions of any kind on account of personal injuries (including, without limiting the foregoing, workers' compensation and death claims), or property loss or damage of any kind, which arise out of or are in any manner connected with, or are claimed to arise out of or be in any manner connected with ACCION Texas activities conducted under or incidental to this Agreement, including any injury, loss or damage caused by the sole or contributory negligence of any or all of the Indemnitees. ACCION Texas must, at its own expense, investigate all those claims and demands, attend to their settlement or other disposition, defend all actions based on those claims and demands with counsel satisfactory to Indemnitees, and pay all charges of attorneys and alI other cost and expenses of any kind arising from the liability, damage, loss, claims, demands, or actions. 16. Events of Default. The following events constitute a default of this Agreement: a. Failure of ACCION Texas to timely, fully, and completely comply with any one or more of the requirements, obligations, duties, terms, conditions, or warranties of this Agreement. b. The Corporation or City determines that any representation or warranty on behalf of ACCI6N Texas contained in this Agreement or in any financial statement, certificate, report, or opinion submitted to the Corporation in connection with this Agreement was incorrect or misleading in any material respect when made; c. Any judgment is assessed against ACCION Texas or any attachment or other levy against the property of ACCION Texas with respect to a claim remains unpaid, undischarged, or not dismissed for a period of 30 days. d. ACCION Texas makes an assignment for the benefit of creditors. e. ACCION Texas files a petition in bankruptcy, or is adjudicated insolvent or bankrupt. f. If taxes owed by ACCION Texas become delinquent, and ACCI6N Texas fails to timely and properly follow the legal procedures for protest or contest, g. ACCION Texas changes the general character of business as conducted of he date this Agreement is approved by the Corporation. 17. Notice of Default. Should the Corporation or City determine that ACCION Texas is in default according to the terms of this Agreement, the Corporation or City shall notify ACCION Page 8 of 12 SMALL BUSINESS INCENTIVE AGREEMENT - ACCION 06 27 2012 docx Texas in writing of the event of default and provide 60 days from the date of the notice ("Cure Period") for ACCION Texas to cure the event of default. 18. Results of Uncured Default. After exhausting good faith attempts to address any default during the cure Period, and taking into account any extenuating circumstances that might have occurred through no fault of ACCION Texas, as determined by the Board of Directors of the Corporation, the following actions must be taken for any default that remains uncured after the Cure Period. a. ACCION Texas shall immediately repay all funds paid by Corporation under this Agreement. b. ACCION Texas shall pay Corporation reasonable attorney fees and costs of court to collect amounts due to Corporation. c. The Corporation shall have no further obligations to ACCION Texas under this Agreement. d. Neither the City nor the Corporation may be held liable for any consequential damages. e. The Corporation may pursue all remedies available under law. 19. No Waiver. a. No waiver of any covenant or condition, or the breach of any covenant or condition of this Agreement, constitutes a waiver of any subsequent breach of the covenant or condition of the Agreement. b. No waiver of any covenant or condition, or the breach of any covenant or condition of this Agreement, justifies or authorizes the nonobservance on any other occasion of the covenant or condition or any other covenant or condition of this Agreement. c. Any waiver or indulgence of ACCION Texas' default may not be considered an estoppel against the Corporation. d. It is expressly understood that if at any time ACCION Texas is in default in any of its conditions or covenants of this Agreement, the failure on the part of the Corporation to promptly avail itself of the rights and remedies that the Corporation may have, will not be considered a waiver on the part of the Corporation, but Corporation may at any time avail itself of the rights or remedies or elect to terminate this Agreement on account of the default. 20. ACCION Texas specifically agrees that Corporation shall only be liable to ACCION Texas for the actual amount of the money grants to be conveyed to ACCION Texas, and shall not be liable to ACCION Texas for any actual or consequential damages, direct or indirect, interest, attorney fees, or cost of court for any act of default by Corporation under the terms of this agreement. Payment by Corporation is strictly limited to those funds so allocated, budgeted, and collected solely during the grant term of this agreement, being August 1, 2012, through July 31, 2013. Corporation shall use its best efforts to anticipate economic conditions and to budget accordingly. However, it is further understood and agreed that, should the actual total sales tax SMALL BUSINESS INCENTIVE AGREEMENT - AC( Page 9 of 12 N 06 27 2012 docx revenue collected for any one year be less than the total amount of grants to be paid to all contracting parties with Corporation for that year, then in that event, all contracting parties shall receive only their pro rata share of the available sales tax revenue for that year, less Corporation's customary and usual costs and expenses, as compared to each contracting parties' grant amount for that year, and Corporation shall not be liable to for any deficiency at that time or at any time in the future. In this event, Corporation will provide all supporting documentation, as requested. Payments to be made shall also require a written request from ACCI0N Texas to be accompanied by all necessary supporting documentation. 21. Notices. a. Any required written notices shall be sent mailed, certified mail, postage prepaid, addressed as follows: ACCI6N Texas: ACCI6N Texas Attn.: Janie Barrera 2014 Flackberry San Antonio, Texas 78210 Corporation: City of Corpus Christi Business and Job Development Corporation Attn.: Executive Director 1201 Leopard Street Corpus Christi, Texas 78401 b. A copy of all notices and correspondence must be sent the City at the foltowing address: City of Corpus Christi Attn.: City Manager P.O. Box 9277 Corpus Christi, Texas 78469-9277 c, Notice is effective upon deposit in the United States mail in the manner provided above. 22. Incorporation of other documents. The Corpus Christi Business and Job Development Corporation Guidelines and Criteria for Granting Business Incentives ("Corporation Guidelines"), as amended, are incorporated into this Agreement. 23. Amendments or Modifications. No amendments or modifications to this Agreement may be made, nor any provision waived, unless in writing signed by a person duly authorized to sign agreements on behalf of each party. 24. Relationship of Parties. In performing this Agreement, both the Corporation and ACCION Texas will act in an individual capacity, and not as agents, representatives, employees, employers, partners, joint-venturers, or associates of one another. The employees or agents of Page 10 of 12 SMALL BUSINESS INCENTIVE AGREEMENT - AC ON 06 27 2012 docx either party may not be, nor be construed to be, the employees or agents of the other party for any purpose. 25. Captions. The captions in this Agreement are for convenience only and are not a part of this Agreement. The captions do not in any way limit or amplify the terms and provisions of this Agreement. 26. Severability. a. If for any reason, any section, paragraph, subdivision, clause, provision, phrase or word of this Agreement or the application of this Agreement to any person or circumstance is, to any extent, held illegal, invalid, or unenforceable under present or future law or by a final judgment of a court of competent jurisdiction, then the remainder of this Agreement, or the application of the term or provision to persons or circumstances other than those as to which it is held illegal, invalid, or unenforceable, will not be affected by the law or judgment, for it is the definite intent of the parties to this Agreement that every section, paragraph, subdivision, clause, provision, phrase, or word of this Agreement be given full force and effect for its purpose. b. To the extent that any clause or provision is held illegal, invalid, or unenforceable under present or future law effective during the term of this Agreement, then the remainder of this Agreement is not affected by the law, and in lieu of any illegal, invalid, or unenforceable clause or provision, a clause or provision, as similar in terms to the illegal, invalid, or unenforceable clause or provision as may be possible and be legal, valid, and enforceable, will be added to this Agreement automatically. 27. Venue. Venue for any legal action related to this Agreement is in Nueces County, Texas. 28. Sole Agreement. This Agreement constitutes the sole agreement between Corporation and ACCION Texas. Any prior agreements, promises, negotiations, or representations, verbal or otherwise, not expressly stated in this Agreement, are of no force and effect. 29. Survival of terms of agreement and obligations of parties. The terms of this agreement and the obligation of the parties relating to the Loan Loss Reserve Program and the Interest Buy Down Program shall survive the termination of this agreement. Corpus Christi Business & Job Development Corporation By: Date: E oy Salazar President Page 11 of 12 SMALL BUSINESS INCENTIVE AGREEMENT - ACCION 06 27 2012 docx Attest: By Armando Chapa Assistant Secretary ACCION Texas, Inc. By: Date: President and Chief Executive Officer THE STATE OF TEXAS COUNTY OF NUECES This instrument was acknowledged before me on Barrera, President and Chief Executive Officer for A corporation, on behalf of the corporation. Notary Public State of Texas 19 2012, by Janie Texas, Inc., a Texas non-profit ALICE G. GOMEZ Notary Public, State of Texas '7 My Commission Expires August 11, 2015 Page 12 of 12 SMALL BUSINESS INCENTIVE AGREEMENT - ACCION 06 27 2012.docx ATTACHMENT A — Request for Interest Buy -Down Business Name Business Owner: Business Address: City Corpus Christi, TX Zip Business Phone Type of Business Tax ID # Criteria for Eligibility. Check all that apply Unable to obtain a loan from a traditional financial institution Located in or locating to the Corpus Christi City. Company is a new or expanding business Company is current on their sales tax Company is current on ad valorem taxes in the City of Corpus Christi Unbankable Criteria: Please check one and provide a brief explanation Credit Score Loan to Value Ratio Collateral: Other: Briefly describe purpose of loan and how this loan will create a new job Existing Business. Purpose of the loan is for working capital and to expand.. The funds will help to insure the capital needed to hire an employee. Loan Amount Qualifying Interest Rate Term (months) Buy -Down Request $ 12.5 $ Provide the following information for existing jobs inistrative, cle [nagenat, 'supervisory) Estimatedi hourly Arai per job 40 TOTAL FTE JOBS Provide the following information forjob(s) to be created due to this loan. lassification dministrative, clerical, anageriat,'supervisory) Number of hours per meek Estimated hourly wa per job le 40 TOTAL FTE JOBS ****Median Wage confirmed by Texas Workforce Commission's Texas Industry Profiles report**** ** *Client will also confirm with report prior to actual hire date * * * ** ACCION TEXAS 8 Submitted by Vickie Garcia Title Loan Officer Date Send Attachment "A" to ATTN: Corpus Christi Business & Job Development Corp. Economic Development Office City of Corpus Christi P.O. Box 9277 Corpus Christi, TX 78469 Fax 361- 880 -3845 ATTACHMENT B - Quarterly Report Corpus Christi Business and Job Development Corporation Please check the box reflecting this report | |August1-Ootober31/DueNmv3CU 0 February 1 —Aph| 30 (Due May 31) O November 1 — January 31 (Due February 28) O May 1 — July 31 (Due August 31) Name of Organization: Acci6n Contact: Janie Barrera Mailing Address: 2014 S. HaokberryStreet City: San Antonio Phone: 210-226-3664 State: TX Fax: 210-533-2940 Loan Loss Reserve Program (list businesses secured with loan loss reserve) Business Receiving Loan Business Type Amount of cJorebsa Loan ted Jobs loan Retai made Defaul Reserve Balance to date B1 Capital leveraged from the Loan Loss Reserve Interest Buy down Program Business Receiving Loan Business Type Address City Amount of Loan Jobs Created Jobs Retained Date loan made Amount Reimbursed by Corporation I certify that the above information is true and correct to the best of my knowledge and that the businesses benefiting from the funds under the contract have met the criteria under the agreement and the Corpus Christi Business and Job Development Corporations Guidelines for granting business incentives. Signed Title Date Send Attachment "B" to ATTN: Corpus Christi Business & Job Development Corp. Economic Development Office City of Corpus Christi P.O. Box 9277 Corpus Christi, TX 78469 Fax (361)- 880 -3845 B -2 BUSINESS INCENTIVE PROJECT SERVICE AGREEMENT This Business Incentives Project Service Agreement ( "Project Service Agreement ") is entered into between the Corpus Christi Business and Job Development Corporation ( "Type A Corporation ") and the City of Corpus Christi, Texas ( "City "). WHEREAS, the Texas Legislature in Section 4A of Article 5190.6, Vernon's Texas Revised Civil Statutes (Development Corporation Act of 1979), now codified as Subtitle 01, Title 12, Texas Local Government Code ( "the Act "), empowered local communities with the ability to adopt an optional local sales and use tax as a means of improving the economic health and prosperity of their citizens; WHEREAS, on November 5, 2002, residents of the City passed Proposition 2, New and Expanded Business Enterprises, which authorized the adoption of a sales and use tax for the promotion and development of new and expanded business enterprises at the rate of one - eighth of one percent to be imposed for 15 years; WHEREAS, the 1/8 cent sales tax authorized by passage of Proposition 2 was subsequently enacted by the City Council and filed with the State Comptroller of Texas, effective April 1, 2003, to be administered by the Type A Corporation's Board of Directors ( "Board "); WHEREAS, the Type A Corporation exists for the purposes of encouraging and assisting entities in the creation of jobs for the citizens of Corpus Christi, Texas; WHEREAS, the City Council approved the Corporation's amended Guidelines and Criteria for Granting Business Incentives on September 18, 2007, which the City Council incorporated into the City of Corpus Christi Economic Development Incentive Policies 2009 -2011 on November 17, 2009; WHEREAS, Section 501.073 of the Act requires the City Council to approve all programs and expenditures of the Type A Corporation; WHEREAS, Accion Texas, Inc. ( "Accion Texas ") has submitted a proposal to the Type A Corporation for a $400,000 grant to provide loans to small business owners lacking access to commercial credit; WHEREAS, the Board has determined that it is in the best interests of the citizens of Corpus Christi, Texas, to fund Accion Texas' loan buy down program; and WHEREAS, the Type A Corporation and Accion Texas have executed a small business incentive agreement for an interest buy down and grant program. In consideration of the covenants, promises, and conditions stated in this Project Service Agreement, the Type A Corporation and the City agree as follows: 1. Project Service Agreement to Implement Business Incentives Agreement. This Project Service Agreement between the City and the Type A Corporation is executed to implement the Business Incentive Agreement between the Type A Corporation and Accion Texas related to Accion Texas' interest buy down and grant program helping small businesses in Corpus Christi ( "Business Incentive Agreement "). Page 1 of 3 0021_4_Type A Business Support Agreement - Accion 7 -13 -12 7 -13 -12 2. Term. The term of this Project Service Agreement runs concurrently with the term of the Business Incentive Agreement. 3. Services to be Provided by City. a. The City Manager, or the City Manager's designee, shall administer funding on behalf of the Type A Corporation. b. The City Manager, or the City Manager's designee, shall perform contract administration responsibilities outlined in the Business Incentive Agreement for the Type A Corporation. 4. Appropriation of Funds. Any future payments by the City are subject to appropriation of funds by City Council. 5. Effective Date. The effective date of this Project Service Agreement is August 1, 2012. 6. Amendments or Modifications. No amendments or modifications to this Project Service Agreement may be made, nor any provision waived, unless in writing signed by a person duly authorized to sign agreements on behalf of each party. 7. Severability. a. If for any reason, any section, paragraph, subdivision, clause, provision, phrase or word of this Project Service Agreement or the application of this Project Service Agreement to any person or circumstance is, to any extent, held illegal, invalid, or unenforceable under present or future law or by a final judgment of a court of competent jurisdiction, then the remainder of this Project Service Agreement, or the application of the term or provision to persons or circumstances other than those as to which it is held illegal, invalid, or unenforceable, will not be affected by the law or judgment, for it is the definite intent of the parties to this Project Service Agreement that every section, paragraph, subdivision, clause, provision, phrase, or word of this Project Service Agreement be given full force and effect for its purpose. b. To the extent that any clause or provision is held illegal, invalid, or unenforceable under present or future law effective during the term of this Project Service Agreement, then the remainder of this Project Service Agreement is not affected by the law, and in lieu of any illegal, invalid, or unenforceable clause or provision, a clause or provision, as similar in terms to the illegal, invalid, or unenforceable clause or provision as may be possible and be legal, valid, and enforceable, will be added to this Project Service Agreement automatically. 8. Captions. The captions in this Project Service Agreement are for convenience only and are not a part of this Project Service Agreement. The captions do not in any way limit or amplify the terms and provisions of this Project Service Agreement. The City of Corpus Christi Corpus Christi Business & Job Development Corporation Page 2 of 3 0021_4_Type A Business Support Agreement - Accion 7 -13 -12 7 -13 -12 Ronald L. Olson [name] City Manager President Date: Date: Attest Armando Chapa City Secretary Page 3 of 3 0021_4_Type A Business Support Agreement - Accion 7 -13 -12 7 -13 -12 AGENDA MEMORANDUM Future Item for the City Council Meeting of August 14, 2012 Action Item for the City Council Meeting of August 21 2012 DATE: July 26, 2012 TO: Ronald L. Olson, City Manager THROUGH: Wes Pierson, Assistant City Manager (361) 826-3082 wesp@cctexas.com FROM: Mike Culbertson (361) 882 -7448 mculbertson@ccredc.com Type A Grant for Del Mar College FastTrac® Growth Venture Program for Fiscal Year 2013 CAPTION: Resolution approving a Small Business Incentives Agreement between the Corpus Christi Business and Job Development Corporation and Del Mar College ( "Del Mar") to provide grant amount up to $120,000 for the FastTrac® Growth Venture program for small businesses and authorizing the City Manager, or designee, to execute a Project Support Agreement with the Corpus Christi Business and Job Development Corporation to administer the Del Mar FastTrac® Small Business Incentives Agreement. PURPOSE: Approve a Type A Grant for Del Mar College FastTrac® Venture Growth Program for Fiscal Year 2013 BACKGROUND AND FINDINGS: FastTrac® Growth Venture TM is a ten week, thirty hour, interactive, participatory program designed to help the astute business owner identify where the business is, critically analyze and evaluate current business operations to determine any `gaps', `problems' or `issues', develop goals and strategies to resolve those problems, and finally devise an effective plan to stop working in their business' and begin `working on their business'. During the period, 2008 — 2011, the Business Resource Center at Del Mar College has worked with a total of 30 business owners who completed the FastTrac® Growth Venture TM program. These businesses created or retained over 28 jobs. Some have grown and flourished, some have survived and some have had issues related to the economy, causing them to restructure their operations. The FastTrac® Venture program has been funded since 2008. ALTERNATIVES: There isn't any other program that design to educate the small business owner in a comprehensive way. OTHER CONSIDERATIONS: By helping small businesses the City is increasing the economic development and growing future jobs. CONFORMITY TO CITY POLICY: This project is consistent with the City's stated goals of promoting economic development and helping small businesses thrive in Corpus Christi. EMERGENCY / NON- EMERGENCY: NON - EMERGENCY DEPARTMENTAL CLEARANCES: FINANCIAL IMPACT: ❑ Operating ❑ Revenue ❑ Capital ❑ Not applicable Fiscal Year: 2012 -2013 Project to Date Expenditures (CIP only) Current Year Future Years TOTALS Line Item Budget 667,358 667,358 Encumbered / Expended Amount This item 120,000 120,000 BALANCE 547,358 547,358 Fund(s): Type A Fund Comments: RECOMMENDATION: Staff recommends that the City Council authorize the City Manager to enter into a one year Type A agreement LIST OF SUPPORTING DOCUMENTS: Certification of Funds Small Business Incentive Agreement Del Mar College FastTrac® Business Support Agreement Page 1 of 2 RESOLUTION Resolution approving a Small Business Incentives Agreement between the Corpus Christi Business and Job Development Corporation and Del Mar College ( "Del Mar ") to provide grant amount up to $120,000 for the FastTrac® Growth Venture program for small businesses and authorizing the City Manager, or designee, to execute a Project Support Agreement with the Corpus Christi Business and Job Development Corporation to administer the Del Mar FastTrac® Small Business Incentives Agreement. WHEREAS, the Corpus Christi Business and Job Development Corporation ( "Type A Corporation ") has budgeted funds to assist businesses create or retain jobs in the City of Corpus Christi, Texas ( "City "). WHEREAS, the Type A Corporation has requested proposals from businesses that will create or retain jobs within the City, and determined that the proposal from Del Mar for the FastTrac® Growth Venture program for small businesses within the City will best satisfy this goal; WHEREAS, City Council deems that it is the best interest of the City and citizens to approve the business incentives agreement for the FastTrac® Growth Venture program for small businesses between the Type A Corporation and Del Mar; WHEREAS, there is a need for a business incentives project support agreement between the City and the Type A Corporation for the implementation and administration of the business incentives agreement for the FastTrac® Growth Venture program for small businesses between the Type A Corporation and Del Mar. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF CORPUS CHRISTI, TEXAS: SECTION 1. That the business incentives agreement for the creation and retention of jobs between the Type A Corporation and Del Mar that provides for the FastTrac® Growth Venture program for small businesses within the City of Corpus Christi, which is attached to this resolution as Exhibit A, is approved. SECTION 2. That the City Manager, or designee, is authorized to execute a project support agreement between the City and Type A Corporation for the implementation and administration of the business incentives agreement with Del Mar, which is attached to this resolution as Exhibit B. This resolution takes effect upon City Council approval on this the day of , 2012. 0022_2_RESOLUTION Del Mar Fastrac Business Incentive Agreement 7 -11 -12 Page 2of2 ATTEST: THE CITY OF CORPUS CHRISTI Armando Chapa City Secretary Joe Adame Mayor Corpus Christi, Texas of , 2012 The above resolution was passed by the following vote: Joe Adame Chris N. Adler Larry R. Elizondo, Sr. Kelley Allen Priscilla Leal David Loeb John E. Marez Nelda Martinez Mark Scott 0022_2_RESOLUTION Del Mar Fastrac Business Incentive Agreement 7 -11 -12 SMALL BUSINESS INCENTIVE AGREEMENT BETWEEN THE CORPUS CHRISTI BUSINESS AND JOB DEVELOPMENT CORPORATION AND DEL MAR COLLEGE FOR THE FASTTRAC GROWTH VENTURE PROGRAM This Small Businesses Incentive Agreement ("Agreement") is entered into between the Corpus Christi Business and Job Development Corporation ("Corporation") and Del Mar College, a Texas junior college district ("Del Mar"). WHEREAS, the Texas Legislature in Section 4A of Article 5190.6, Vernon's Texas Revised Civil Statutes (Development Corporation Act of 1979), now codified as Subtitle C1, Title 12, Texas Local Government Code, Section 504.002 et seq, ("the Act"), empowered local communities with the ability to adopt an optional local sales and use tax as a means of improving the economic health and prosperity of their citizens; WHEREAS, on November 5, 2002, residents of the City of Corpus Christi ("City") passed Proposition 2, New and Expanded Business Enterprises, which authorized the adoption of a sales and use tax for the promotion and development of new and expanded business enterprises at the rate of one-eighth of one percent to be imposed for 15 years; WHEREAS, the 1/8th cent sales tax authorized by passage of Proposition 2 was subsequently enacted by the City Council and filed with the State Comptroller of Texas, effective April 1, 2003, to be administered by the Corpus Christi Business and Job Development Corporation Board; WHEREAS, the Corpus Christi Business and Job Development Corporation exists for the purposes of encouraging and assisting entities in the creation of jobs for the citizens of Corpus Christi, Texas; WHEREAS, the Board of Directors of the Corporation ("Board"), on September 10, 2007, amended the Corporation's Guidelines and Criteria for Granting Business Incentives ("Type A Guidelines"), which the City Council incorporated into the City of Corpus Christi Economic Development Incentive Policies 2009-2011 on November 17, 2009; WHEREAS, Section 501.073 of The Act requires the City Council to approve all programs and expenditures of the Corporation; WHEREAS, Del Mar is a Texas institution of higher education; WHEREAS, the Board has determined that it is in the best interests of the citizens of Corpus Christi, Texas that business development funds be provided to Del Mar, through this contract with Del Mar, to be used by Del Mar for the FastTract) Growth Venture'm Program, which will result in creation of at least 12 new full-time permanent jobs in the City of Corpus Christi. In consideration of the covenants, promises, and conditions stated in this Agreement, Corporation and Del Mar agree as follows: 1. Effective Date. The effective date of this Agreement ("Effective Date") is the latest date that either party executes this Agreement. 2. Term. The term of this Agreement is from August 1, 2012, through December 31, 201 Page 1 of 8 SMALL BUSINESS INCENTIVE AGREEMENT — Del Mar FastTrac 07 12 12 3. Grant. The Corporation will fund up to 24 $5,000 grants to be awarded to twelve successful participants in Del Mar's Fast Trace Growth VentureTM. Fast Trace) Growth Venture° is an intensive ten week, interactive course that targets existing, successful small business owners with a desire to grow their business. a. In order to receive an initial $5,000 grant, prior to June 30, 2013, the successful participants must: (1) Complete the course. (2) Retain all of their existing jobs. (3) Create at least one new job b. In order to receive a second $5,000 grant, the successful participants must retain at least one new job for a minimum of six months, while retaining all of their existing jobs. 4. Job Creation/Training Qualification. a. In order to count as a created job under this Agreement, the job must pay wages at least as high as the median wage of the occupation in the Corpus Christi MSA as determined by Texas Workforce Commission's Texas Industry Profiles report. b. In order to qualify for funds to provide job training under this Agreement, Del Mar agrees to create new jobs that pay wages at least as high as the wages required by Section 501.162 of the Act, which is the median wage of the occupation in the Corpus Christi MSA as determined by Texas Workforce Commission's Texas Industry Profiles report. c. A "job" is defined in the Type A Guidelines as a full-time employee, contractor, consultant, or leased employee who has a home address in the Corpus Christi MSA. d. Del Mar agrees to confirm and document to the Corporation that the minimum number of jobs created as a result of funding provided by this Agreement is maintained throughout the term by the Business. e. Del Mar agrees to provide Corporation with a sworn certificate by authorized representative of each business assisted under this Agreement certifying the number of full-time permanent employees employed by the business. f. Del Mar shall ensure that the Corporation is allowed reasonable access to personnel records of the businesses assisted under this Agreement. 5. Warranties. Del Mar warrants and represents to Corporation the following: a. Del Mar is a corporation duly organized, validly existing, and in good standing under the laws of the State of Texas, has all corporate power and authority to carry on its business as presently conducted in Corpus Christi, Texas, b. Del Mar has the authority to enter into and perform, and will perform, the terms of this Agreement to the best of its ability. Page 2 of 8 SMALL BUSINESS INCENTIVE AGREEMENT Del Mar Fasarac 07 12 12 c, Del Mar has timely filed and will timely file all local, State, and Federal tax reports and returns required by laws to be filed and all Texas, assessments, fees, and other governmental charges, including applicable ad valorem taxes, have been timely paid, and will be timely paid, during the term of this Agreement. d. Del Mar has received a copy of the Act, and acknowledges that the funds granted in this Agreement must be utilized solely for purposes authorized under State law and by the terms of this Agreement. e. The parties executing this Agreement on behalf of Del Mar are duly authorized to execute this Agreement on behalf of Del Mar. f. Del Mar does not and agrees that it will not knowingly employ an undocumented worker. If, after receiving payments under this Agreement, Del Mar is convicted of a violation under §U.S.C. Section 1324a(f), Del Mar shall repay the payments at the rate and according to the terms as specified by City Ordinance, as amended, not later than the 120th day after the date Del Mar has been notified of the violation. 6. Compliance with Laws. Del Mar shall observe and obey all applicable laws, ordinances, regulations, and rules of the Federal, State, county, and city governments. 7. Non-Discrimination, Del Mar covenants and agrees that Del Mar will not discriminate nor permit discrimination against any person or group of persons, with regard to employment and the provision of services at, on, or in the Facility, 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. 8. Force Majeure. If the Corporation or Del Mar are prevented, wholly or in part, from fulfilling its obligations under this Agreement by reason of any act of God, unavoidable accident, acts of enemies, fires, floods, governmental restraint or regulation, other causes of force majeure, or by reason of circumstances beyond its control, then the obligations of the Corporation or Del Mar are temporarily suspended during continuation of the force majeure. If either party's obligation is affected by any of the causes of force majeure, the party affected shall promptly notify the other party in writing, giving full particulars of the force majeure as soon as possible after the occurrence of the cause or causes relied upon. 9. Assignment. Del Mar may not assign all or any part of its rights, privileges, or duties under this Agreement without the prior written approval of the Corporation and City. Any attempted assignment without approval is void, and constitutes a breach of this Agreement. 10. Indemnity. Del Mar covenants to fully indemnify, save, and hold harmless the Corporation, the City, their respective officers, employees, and agents (lndemniteee) against all liability, damage, loss, claims demands, and actions of any kind on account of personal injuries (including, without limiting the foregoing, workers' compensation and death claims), or property loss or damage of any kind, which arise out of or are in any manner connected with, or are claimed to arise out of or be in any manner connected with Del Mar activities conducted under or incidental to this Agreement, including any injury, loss or damage caused by the sole or contributory negligence of any or all of the Indemnitees. De! Mar must, at its own expense, investigate all those claims and demands, attend to their settlement or other disposition, defend all actions based on those claims and demands with counsel satisfactory to Indemnitees, and pay all charges Page 3 of 8 SMALL BUSINESS INCENTIVE AGREEMENT Del Mar FastTrac 07 12 12 of attorneys and all other cost and expenses of any kind arising from the liability, damage, loss, claims, demands, or actions. 11. Events of Default by Del Mar. The following events constitute a default of this Agreement by Del Mar: a. The Corporation or City determines that any representation or warranty on behalf of Del Mar contained in this Agreement or in any financial statement, certificate, report, or opinion submitted to the Corporation in connection with this Agreement was incorrect or misleading in any material respect when made; b. Any judgment is assessed against Del Mar or any attachment or other levy against the property of Del Mar with respect to a claim remains unpaid, undischarged, or not dismissed for a period of 120 days. c. Del Mar makes an assignment for the benefit of creditors. d. Del Mar files a petition in bankruptcy, or is adjudicated insolvent or bankrupt. e. If taxes owed by Del Mar become delinquent, and Del Mar fails to timely and properly follow the legal procedures for protest or contest. f. Del Mar changes the general character of business as conducted as of the date this Agreement is approved by the Corporation. 12. Notice of Default. Should the Corporation or City determine that Del Mar is in default according to the terms of this Agreement, the Corporation or City shall notify Del Mar in writing of the event of default and provide 60 days from the date of the notice ("Cure Period") for Del Mar to cure the event of default. 13. Results of Uncured Default by Del Mar. After exhausting good faith attempts to address any default during the cure Period, and taking into account any extenuating circumstances that might have occurred through no fault of Del Mar, as determined by the Board of Directors of the Corporation, the following actions must be taken for any default that remains uncured after the Cure Period. a. Del Mar shall immediately repay all funds paid by Corporation to them under this Agreement. b. Del Mar shall pay Corporation reasonable attorney fees and costs of court to co ect amounts due to Corporation if not immediately repaid upon demand from the Corporation. c. Upon payment by Del Mar of all sums due, the Corporation and Det ar shall have no further obligations to one another under this Agreement. d. Neither the City, the Corporation, nor Del Mar may be held liable for any consequential damages. Page 4 of 8 SMALL BUSINESS INCENTIVE AGREEMENT -- Del Mar FastTrac 07 12 12 14. No Waiver. a. No waiver of any covenant or condition, or the breach of any covenant or condition of this Agreement, constitutes a waiver of any subsequent breach of the covenant or condition of the Agreement. b. No waiver of any covenant or condition, or the breach of any covenant or condition of this Agreement, justifies or authorizes the nonobservance on any other occasion of the covenant or condition or any other covenant or condition of this Agreement. c. Any waiver or indulgence of Del Mar's default may not be considered an estoppel against the Corporation. d. It is expressly understood that if at any time Del Mar is in default in any of its conditions or covenants of this Agreement, the failure on the part of the Corporation to promptly avail itself of the rights and remedies that the Corporation may have, will not be considered a waiver on the part of the Corporation, but Corporation may at any time avail itself of the rights or remedies or elect to terminate this Agreement on account of the default. 15. Del Mar specifically agrees that Corporation shall only be liable to Del Mar for the actual amount of the money grants to be conveyed to Del Mar, and shall not be liable to Del Mar for any actual or consequential damages, direct or indirect, interest, attomey fees, or cost of court for any act of default by Corporation under the terms of this Agreement. Payment by Corporation is strictly limited to those funds so allocated, budgeted, and collected solely during the grant term of this Agreement. Corporation shall use its best efforts to anticipate economic conditions and to budget accordingly. However, it is further understood and agreed that, should the actual total sales tax revenue collected for any one year be less than the total amount of grants to be paid to all contracting parties with Corporation for that year, then in that event, all contracting parties shall receive only their pro rata share of the available sales tax revenue for that year, less Corporation's customary and usual costs and expenses, as compared to each contracting parties' grant amount for that year, and Corporation shall not be liable to for any deficiency at that time or at any time in the future. In this event, Corporation will provide all supporting documentation, as requested. Payments to be made shall also require a written request from Del Mar to be accompanied by all necessary supporting documentation. 16. The parties mutually agree and understand that funding under this Agreement is subject to annual appropriations by the City Council; that each fiscal year's funding must be included in the budget for that year; and the funding is not effective until approved by the City Council. 17. Notices. a. Any required written notices shall be sent mailed, certified mail, postage prepaid, addressed as follows: Page 5 of 8 SMALL BUSINESS INCENTIVE AGREEMENT — Der Mar FastTrac 07 12 12 Del Mar College: Del Mar College Small Business Development Center 101 Baldwin, CED-146 Corpus Christi, TX 78404-3897 Attn: Director, SBDC Corporation: City of Corpus Christi Business and Job Development Corporation Attn.: Executive Director 1201 Leopard Street Corpus Christi, Texas 78401 b. A copy of all notices and correspondence must be sent the City at the following address: City of Corpus Christi Attn.: City Manager P.O. Box 9277 Corpus Christi, Texas 78469-9277 c. Notice is effective upon deposit in the United States mail in the manner provided above. 18. Incorporation of other documents. The Corpus Christi Business and Job Development Corporation Guidelines and Criteria for Granting Business Incentives ("Corporation Guidelines"), as amended, are incorporated into this Agreement. 19. Amendments or Modifications. No amendments or modifications to this Agreement may be made, nor any provision waived, unless in writing signed by a person duly authorized to sign Agreements on behalf of each party. 20. Relationship of Parties. In performing this Agreement, both the Corporation and Del Mar will act in an individual capacity, and not as agents, representatives, employees, employers, partners, joint-venturers, or associates of one 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. 21. Captions. The captions in this Agreement are for convenience only and are not a part of this Agreement. The captions do not in any way limit or amplify the terms and provisions of this Agreement. 22. Severabillty. a. If for any reason, any section, paragraph, subdivision, clause, provision, phrase or word of this Agreement or the application of this Agreement to any person or circumstance is, to any extent, held illegal, invalid, or unenforceable under present or future law or by a final judgment of a court of competent jurisdiction, then the remainder of this Agreement, or the application of the term or provision to persons or Page 6 of 8 SMALL BUSINESS INCENTIVE AGREEMENT — Del Mar FastTrac 07 12 12 circumstances other than those as to which it is held illegal, invalid, or unenforceable, will not be affected by the law or judgment, for it is the definite intent of the parties to this Agreement that every section, paragraph, subdivision, clause, provision, phrase, or word of this Agreement be given full force and effect for its purpose. b. To the extent that any clause or provision is held illegal, invalid, or unenforceable under present or future law effective during the term of this Agreement, then the remainder of this Agreement is not affected by the law, and in lieu of any illegal, invalid, or unenforceable clause or provision, a clause or provision, as similar in terms to the illegal, invalid, or unenforceable clause or provision as may be possible and be legal, valid, and enforceable, will be added to this Agreement automatically. 23. Venue. Venue for any legal action related to this Agreement is in Nueces County, Texas. 24. Sole Agreement. This Agreement constitutes the sole Agreement between Corporation and Del Mar. Any prior Agreements, promises, negotiations, or representations, verbal or otherwise, not expressly stated in this Agreement, are of no force and effect. 25. Survival of terms of Agreement and obligations of parties. The terms of this Agreement and the obligation of the parties relating to Section 14.a and b shall survive the termination of this Agreement. Corpus Christi Business & Job Development Corporation By: Date: Attest: By: Eloy Salazar President Armando Chapa Assistant Secretary Del Mar College By: Date: Dr. frk Escamilla, Ph.D Pre ident Page 7 of 8 SMALL BUSINESS INCENTIVE AGREEMENT Del Mar FastTrac 07 12 12 THE STATE OF TEXAS COUNTY OF NUECES This instrument was acknowledged before me on(l.� , 2012, by Dr. Mark Escamilla, PhD, for Del Mar College, a political subdivision of the State of Texas, on behalf of the colle +e district. No ary Public State of Texas A- . DELIA 0 PEREZ Notary Fuh c STATE OF TEXAS My Comm Exp •2-'G-2:)14 No Y iYvv r v -ti Page 8 of 8 MALL BUSINESS INCENTIVE AGREEMENT -- Del Mar FastTrac 07 12 12 EXHIBIT A PERFORMANCE MEASURES AND CORPORATION GRANTS 1 Del Mar will offer the Fast Trace Growth Venture TM course to small businesses located in Corpus Christi. 2, Del Mar will submit invoices for all participants that qualify for the first part of the grant. 3. Del Mar will track the graduates and obtain documentation of retention of all jobs and any created jobs. 4. Del Mar will submit invoices for all participants that qualify for the second part of the grant. A-1 SMALL BUSINESS INCENTIVE AGREEMENT — Del Mar FastTrac 07 12 12 BUSINESS INCENTIVE PROJECT SERVICE AGREEMENT This Business Incentives Project Service Agreement ( "Project Service Agreement ") is entered into between the Corpus Christi Business and Job Development Corporation ( "Type A Corporation ") and the City of Corpus Christi, Texas ( "City "). WHEREAS, the Texas Legislature in Section 4A of Article 5190.6, Vernon's Texas Revised Civil Statutes (Development Corporation Act of 1979), now codified as Subtitle 01, Title 12, Texas Local Government Code ( "the Act "), empowered local communities with the ability to adopt an optional local sales and use tax as a means of improving the economic health and prosperity of their citizens; WHEREAS, on November 5, 2002, residents of the City passed Proposition 2, New and Expanded Business Enterprises, which authorized the adoption of a sales and use tax for the promotion and development of new and expanded business enterprises at the rate of one - eighth of one percent to be imposed for 15 years; WHEREAS, the 1/8 cent sales tax authorized by passage of Proposition 2 was subsequently enacted by the City Council and filed with the State Comptroller of Texas, effective April 1, 2003, to be administered by the Type A Corporation's Board of Directors ( "Board "); WHEREAS, the Type A Corporation exists for the purposes of encouraging and assisting entities in the creation of jobs for the citizens of Corpus Christi, Texas; WHEREAS, the City Council approved the Corporation's amended Guidelines and Criteria for Granting Business Incentives on September 18, 2007, which the City Council incorporated into the City of Corpus Christi Economic Development Incentive Policies 2009 -2011 on November 17, 2009; WHEREAS, Section 501.073 of the Act requires the City Council to approve all programs and expenditures of the Type A Corporation; WHEREAS, Del Mar College ( "Del Mar ") has submitted a proposal to the Type A Corporation for a $120,000 grant for the FastTrac® Growth VentureTM Program, which will result in creation of at least 12 new full -time permanent jobs in the City of Corpus Christi; WHEREAS, the Board has determined that it is in the best interests of the citizens of Corpus Christi, Texas, to fund Del Mar's investing in new facilities and new equipment of their existing manufacturing and distribution facilities; and WHEREAS, the Type A Corporation and Del Mar have executed a business incentives agreement FastTrac® Growth VentureTM Program, which will help small businesses and result in the creation of at least 12 new full -time permanent jobs in the City of Corpus Christi. In consideration of the covenants, promises, and conditions stated in this Project Service Agreement, the Type A Corporation and the City agree as follows: 1. Project Service Agreement to Implement Business Incentives Agreement. This Project Service Agreement between the City and the Type A Corporation is executed to implement the Business Incentive Agreement for the Creation of Jobs between the Type A Corporation and Page 1 of 3 0022_4_Type A Business Support Agreement - Del Mar FastTrac 07 13 12 Del Mar related to Del Mar locating their headquarters in Corpus Christi ( "Business Incentive Agreement "). 2. Term. The term of this Project Service Agreement runs concurrently with the term of the Business Incentive Agreement. 3. Services to be Provided by City. a. The City Manager, or the City Manager's designee, shall administer funding on behalf of the Type A Corporation. b. The City Manager, or the City Manager's designee, shall perform contract administration responsibilities outlined in the Business Incentive Agreement for the Type A Corporation. 4. Appropriation of Funds. Any future payments by the City are subject to appropriation of funds by City Council. 5. Effective Date. The effective date of this Project Service Agreement is August 1, 2012. 6. Amendments or Modifications. No amendments or modifications to this Project Service Agreement may be made, nor any provision waived, unless in writing signed by a person duly authorized to sign agreements on behalf of each party. 7. Severability. a. If for any reason, any section, paragraph, subdivision, clause, provision, phrase or word of this Project Service Agreement or the application of this Project Service Agreement to any person or circumstance is, to any extent, held illegal, invalid, or unenforceable under present or future law or by a final judgment of a court of competent jurisdiction, then the remainder of this Project Service Agreement, or the application of the term or provision to persons or circumstances other than those as to which it is held illegal, invalid, or unenforceable, will not be affected by the law or judgment, for it is the definite intent of the parties to this Project Service Agreement that every section, paragraph, subdivision, clause, provision, phrase, or word of this Project Service Agreement be given full force and effect for its purpose. b. To the extent that any clause or provision is held illegal, invalid, or unenforceable under present or future law effective during the term of this Project Service Agreement, then the remainder of this Project Service Agreement is not affected by the law, and in lieu of any illegal, invalid, or unenforceable clause or provision, a clause or provision, as similar in terms to the illegal, invalid, or unenforceable clause or provision as may be possible and be legal, valid, and enforceable, will be added to this Project Service Agreement automatically. 8. Captions. The captions in this Project Service Agreement are for convenience only and are not a part of this Project Service Agreement. The captions do not in any way limit or amplify the terms and provisions of this Project Service Agreement. Page 2 of 3 0022_4_Type A Business Support Agreement - Del Mar FastTrac 07 13 12 The City of Corpus Christi Corpus Christi Business & Job Development Corporation Ronald L. Olson City Manager President Date: Date: Attest Armando Chapa City Secretary Page 3 of 3 0022_4_Type A Business Support Agreement - Del Mar FastTrac 07 13 12 AGENDA MEMORANDUM Future Item for the City Council Meeting of August 14, 2012 Action Item for the City Council Meeting of August 21, 2012 DATE: July 26, 2012 TO: Ronald L. Olson, City Manager THROUGH: Wes Pierson, Assistant City Manager (361) 826-3082 wesp@cctexas.com FROM: Mike Culbertson (361) 882 -7448 mculbertson@ccredc.com Type A Grant for Del Mar College Internship Program for Fiscal Year 2013 CAPTION: Resolution approving a Small Business Incentives Agreement between the Corpus Christi Business And Job Development Corporation and Del Mar College ( "Del Mar ") to provide grant amount up to $173,223 for an intern program for small businesses and authorizing the City Manager, or designee, to execute a Project Support Agreement with the Corpus Christi Business And Job Development Corporation to administer the Del Mar College Intern Program Small Business Incentives Agreement. PURPOSE: Approve a Type A Grant for Del Mar College Internship Program for Fiscal Year 2013 BACKGROUND AND FINDINGS: Del Mar College has a program where students can work for a local company as an intern. The local company will pay minimum wage while the Type A grant will match the wage. This encourages companies to hire interns, it allows the student to get real work experience, and has a goal to create new jobs. The Type A Board has funded this program since 2007. They are requesting $173,223 to fund 95 intern positions. ALTERNATIVES: Some local companies do offer internships but these are large companies and they recruit nationwide. This allows local small companies to use interns. OTHER CONSIDERATIONS: By helping students get intern position companies can see what young talent is already in our area and this also gives the students job training to get them to stay in Corpus Christi. CONFORMITY TO CITY POLICY: This project is consistent with the City's stated goals of promoting economic development and helping small businesses thrive in Corpus Christi. EMERGENCY / NON- EMERGENCY: NON - EMERGENCY DEPARTMENTAL CLEARANCES: FINANCIAL IMPACT: ❑ Operating ❑ Revenue ❑ Capital ❑ Not applicable Fiscal Year: 2012 -2013 Project to Date Expenditures (CIP only) Current Year Future Years TOTALS Line Item Budget 547,358 547,358 Encumbered / Expended Amount This item 173,223 173,223 BALANCE 374,135 374,135 Fund(s): Type A Fund Comments: RECOMMENDATION: Staff recommends that the City Council authorize the City Manager to enter into a one year Type A agreement LIST OF SUPPORTING DOCUMENTS: Certification of Funds Small Business Incentive Agreement Del Mar College Intern Program Business Support Agreement Page 1 of 2 RESOLUTION Resolution approving a Small Business Incentives Agreement between the Corpus Christi Business And Job Development Corporation and Del Mar College ( "Del Mar ") to provide grant amount up to $173,223 for an intern program for small businesses and authorizing the City Manager, or designee, to execute a Project Support Agreement with the Corpus Christi Business And Job Development Corporation to administer the Del Mar College Intern Program Small Business Incentives Agreement. WHEREAS, the Corpus Christi Business and Job Development Corporation ( "Type A Corporation ") has budgeted funds to assist businesses create or retain jobs in the City of Corpus Christi, Texas ( "City "). WHEREAS, the Type A Corporation has requested proposals from businesses that will create or retain jobs within the City, and determined that the proposal from Del Mar for an intern program for small businesses within the City will best satisfy this goal; WHEREAS, City Council deems that it is the best interest of the City and citizens to approve the business incentives agreement for an intern program for small businesses between the Type A Corporation and Del Mar; WHEREAS, there is a need for a business incentive project support agreement between the City and the Type A Corporation for the implementation and administration of the business incentives agreement for an intern program for small businesses between the Type A Corporation and Del Mar. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF CORPUS CHRISTI, TEXAS: SECTION 1. That the business incentives agreement for the creation and retention of jobs between the Type A Corporation and Del Mar that provides for an intern program for small businesses within the City of Corpus Christi, which is attached to this resolution as Exhibit A, is approved. SECTION 2. That the City Manager, or designee, is authorized to execute a project support agreement between the City and Type A Corporation for the implementation and administration of the business incentives agreement with Del Mar, which is attached to this resolution as Exhibit B. This resolution takes effect upon City Council approval on this the day of , 2012. 0023_2_RESOLUTION Del Mar Intern Business Incentive Agreement 7 -6 -12 Page 2of2 ATTEST: THE CITY OF CORPUS CHRISTI Armando Chapa City Secretary Joe Adame Mayor Corpus Christi, Texas of , 2012 The above resolution was passed by the following vote: Joe Adame Chris N. Adler Larry R. Elizondo, Sr. Kelley Allen Priscilla Leal David Loeb John E. Marez Nelda Martinez Mark Scott 0023_2_RESOLUTION Del Mar Intern Business Incentive Agreement 7 -6 -12 SMALL BUSINESS INCENTIVES AGREEMENT BETWEEN THE CORPUS CHRISTI BUSINESS AND JOB DEVELOPMENT CORPORATION AND DEL MAR COLLEGE FOR AN INTERN PROGRAM TO SUPPORT SMALL BUSINESSES This Small Business Incentives Agreement for ("Agreement") is entered into between the Corpus Christi Business and Job Development Corporation ("Corporation") and Del Mar College, a Texas institution of higher education ("Del Mar"). WHEREAS, the Texas Legislature in Section 4A of Article 5190.6, Vernon's Texas Revised Civil Statutes (Development Corporation Act of 1979), now codified as Subtitle C1, Title 12, Texas Local Government Code, Section 504.002 et seq, ("the Act"), empowered local communities with the ability to adopt an optional local sales and use tax as a means of improving the economic health and prosperity of their citizens; WHEREAS, on November 5, 2002, residents of the City of Corpus Christi ("City") passed Proposition 2, New and Expanded Business Enterprises, which authorized the adoption of a sales and use tax for the promotion and development of new and expanded business enterprises at the rate of one-eighth of one percent to be imposed for 15 years; WHEREAS, the 1/8th cent sales tax authorized by passage of Proposition 2 was subsequently enacted by the City Council and filed with the State Comptroller of Texas, effective April 1, 2003, to be administered by the Corpus Christi Business and Job Development Corporation Board; WHEREAS, the Corpus Christi Business and Job Development Corporation exists for the purposes of encouraging and assisting entities in the creation of jobs for the citizens of Corpus Christi, Texas; WHEREAS, the Board of Directors of the Corporation ("Board"), on September 10, 2007, amended the Corporation's Guidelines and Criteria for Granting Business Incentives ("Type A Guidelines"), which the City Council incorporated into the City of Corpus Christi Economic Development Incentive Policies 2009-2011 on November 17, 2009; WHEREAS, Section 501.073 of The Act requires the City Council to approve all programs and expenditures of the Corporation; WHEREAS, Del Mar has requested business development funds from the Board to assist small businesses by providing access to students, who will serve as interns in professional level positions; WHEREAS, the small businesses will pay the student interns minimum wage (currently $7.25 per hour) and Del Mar will match the small business contribution. WHEREAS, the interns will be selected based on the needs of the small businesses with the goal of providing the businesses with resources that make the businesses more effective and provide growth opportunities; WHEREAS, the primary goal of the program is to provide support to small businesses in Corpus Christi that will encourage growth, retention, economic development, and job creation; Page 1 of 9 BUSINESS INCENTIVE AGREEMENT -DEL MAR Interns 7 17 2012.docx WHEREAS, the goal of the project is the creation of 1 new full time job for every 10 internship positions funded (a 10% new job "return on investment"); WHEREAS, a secondary benefit of the small business intern program is providing students real- world experience, while they are making a living wage without working extended hours and developing potential full-time employment opportunities following graduation; In consideration of the covenants, promises, and conditions stated in this Agreement, Corporation and Del Mar agree as follows: 1. Effective Date. The effective date of this Agreement ("Effective Date') is the latest date that either party executes this Agreement. 2. Term, a. The term of this Agreement is for one year from August 17, 2012, through August 16, 2013. b. This Agreement may be extended at the option of the Corporation for up to four additional one year terms, contingent upon annual appropriation of funds and approval of the City Council. c. If this Agreement is extended for subsequent period, this Agreement may be amended by adoption of a revised Schedule A, which is attached to and incorporated into this Agreement. 3. Grant. a. The Corporation will grant Del Mar an incentive of up to One Hundred Seventy Three Thousand Two Hundred Twenty Three Dollars ($173,223.00), which must be used to fund one half of the salary of up to a total of 93 interns during the Fall Semester of 2012, Spring Semester of 2013, and Summer Session in 2013, and the entire salary on two interns hired to help administer the program during the Fall and Spring Semesters and Summer Session. The interns will be paid twice the minimum wage, while participating in Del Mar's Small Business Employer Intern Program. b. The Corporation's grant conditioned upon Del Mar's successful completion of the terms of this Agreement, including, but not limited to, the performance requirements and conditions precedent in Schedule A. c. The Corporation's grant shall be paid in monthly installments based upon evidence of the amount paid by Del Mar to the small business employers during the prior month. 4. Del Mar's Duties and Responsibilities. a. Del Mar shall provide administrative oversight and direct supervision for the placement of interns in the Del Mar's Small Business Employer Intern Program. b. Del Mar shall create and maintain not less than two part-time intern (2) employment positions to assist in the Small Business Employer Intern Program in Corpus Christi, Page 2 of 9 BUSINESS INCENTIVE AGREEMENT -DEL MAR Interns 7 17 2012,docx Nueces County, Texas, during the term of this Agreement The intern must be paid twice the minimum wage, which is scheduled to be $7.25 per hour. c. Del Mar shall place, with small businesses in Corpus Christi, up to the total number of interns specified in Schedule A, during any the academic year. (1) Since the primary goal of the Del Mar's Small Business Employer Intern Program is to provide support to small businesses in Corpus Christi that will encourage growth, retention, economic development, and job creation, placements must be based on the needs of the small business with the goal of providing the business with resources that make the business more effective and provide growth opportunities for the businesses. (2) For the purpose of this section a small business may include chambers of commerce, non-profit organizations, and other entity that will use the intern to assist existing, start-up, and home based small businesses in the City; recruit new small business to the City; assist the expansion of existing small businesses in the City; help entrepreneurs create start-up businesses; or help the owners and managers of small businesses develop their businesses. d. Del Mar shall ensure that the small business employer of each intern pays the student intern the minimum wage, and Del Mar shall match the small business employer's payments to the interns. e. Del Mar shall try to place the interns for 19 hours per week and 12 weeks per semester or summer session. f. Del Mar shall work with the small businesses that receive interns under the program to encourage the creation of permanent full time jobs for the interns or similarly qualified individuals. 5. Job Creation/Training Qualification. a. In order to count as a created job under this Agreement, the job must pay wages at least as high as the wages required by Section 501.162 of the Act, which is the median wage of the occupation in the Corpus Christi MSA as determined by Texas Workforce Commission's Texas Industry Profiles report. b. In order to qualify for funds to provide job training under this Agreement, Del Mar agrees to create new jobs that pay wages at least as high as the wages required by Section 501.162 of the Act, which is the median wage of the occupation in the Corpus Christi MSA as determined by Texas Workforce Commission's Texas Industry Profiles report. c. A "job" is defined in the Type A Guidelines as a full-time employee, contractor, consultant, or leased employee who has a home address in the Corpus Christi MSA. d. Del Mar agrees to confirm and document to the Corporation that the minimum number of jobs created as a result of funding provided by this Agreement is maintained throughout the term by the Business. Page 3 of 9 BUSINESS INCENTIVE AGREEMENT -DEL MAR Interns 7 17 2012.docx e. Del Mar agrees to provide Corporation with a sworn certificate by authorized representative of each business assisted under this Agreement certifying the number of full-time permanent employees employed by the business. f. Del Mar shall ensure that the Corporation is allowed reasonable access to personnel records of the businesses assisted under this Agreement. 6. Reports and Monitoring. a. Del Mar shall provide a report at the end of each semester or summer session certifying the status of compliance through the life of the Agreement. Documentation for jobs may be in the form of quarterly IRS 941 returns, Del Mar employer Quarterly Reports, or employee rosters that show the hours worked and the positions filled, and such other reports as may reasonably be required. b. Del Mar, during normal working hours shall allow the Corporation and its designee, City of Corpus Christi Economic Development Department, reasonable access to Del Mar's employment records and books, to verify employment and all other relevant records related to each of the other economic development considerations and incentives, as stated in this Agreement, but the confidentiality of the records and information must be maintained by Corporation and its designee, unless such records and information shall be required by a court order, a lawfully issued subpoena, or at the direction of the Office of the Texas Attorney General. 7. Warranties. Del Mar warrants and represents to Corporation the following: a. Del Mar is a Texas institution of higher education duly organized, validly existing, and in good standing under the laws of the State of Texas, has all institution power and authority to carry on its business as presently conducted in Corpus Christi, Texas. b. Del Mar has the authority to enter into and perform, and will perform, the terms of this Agreement to the best of its ability. c. Del Mar has timely filed and will timely file all local, State, and Federal tax reports and returns required by laws to be filed and all Texas, assessments, fees, and other governmental charges, including applicable ad valorem taxes, have been timely paid, and will be timely paid , during the term of this Agreement. d. Del Mar has received a copy of the Act, and acknowledges that the funds granted in this Agreement must be utilized solely for purposes authorized under State law and by the terms of this Agreement. e. The parties executing this Agreement on behalf of Del Mar are duly authorized to execute this Agreement on behalf of Del Mar. f. Del Mar does not and agrees that it will not knowingly employ an undocumented worker. If, after receiving payments under this Agreement, Del Mar is convicted of a violation under §U.S.C. Section 1324a(f), Del Mar shall repay the payments at the rate and according to the terms as specified by City Ordinance, as amended, not later than the 120th day after the date Del Mar has been notified of the violation. Page 4 of 9 BUSINESS INCENTIVE AGREEMENT -DEL MAR Interns 7 17 2012.docx 8. Compliance with Laws. Del Mar shall observe and obey all applicable laws, ordinances, regulations, and rules of the Federal, State, county, and city governments. 9. Non-Discrimination, Del Mar covenants and agrees that Del Mar will not discriminate nor permit discrimination against any person or group of persons, with regard to employment and the provision of services at, on, or in the Facility, 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. 10. Force Majeure. If the Corporation or Del Mar are prevented, wholly or in part, from fulfilling its obligations under this Agreement by reason of any act of God, unavoidable accident, acts of enemies, fires, floods, governmental restraint or regulation, other causes of force majeure, or by reason of circumstances beyond its control, then the obligations of the Corporation or Del Mar are temporarily suspended during continuation of the force majeure. If either party's obligation is affected by any of the causes of force majeure, the party affected shall promptly notify the other party in writing, giving full particulars of the force majeure as soon as possible after the occurrence of the cause or causes relied upon. 11. Assignment. Del Mar may not assign all or any part of its rights, privileges, or duties under this Agreement without the prior written approval of the Corporation and City. Any attempted assignment without approval is void, and constitutes a breach of this Agreement. 12. Indemnity. To the extent authorized by law Del Mar covenants to fully indemnify, save, and hold harmless the Corporation, the City, their respective officers, employees, and agents ("lndemnitees') against all liability, damage, loss, claims demands, and actions of any kind on account of personal injuries (including, without limiting the foregoing, workers' compensation and death claims), or property loss or damage of any kind, which arise out of or are in any manner connected with, or are claimed to arise out of or be in any manner connected with Del Mar activities conducted under or incidental to this Agreement, including any injury, loss or damage caused by the sole or contributory negligence of any or all of the lndemnitees. Del Mar must, at its own expense, investigate all those claims and demands, attend to their settlement or other disposition, defend all actions based on those claims and demands with counsel satisfactory to lndemnitees, and pay all charges of attorneys and all other cost and expenses of any kind arising from the liability, damage, loss, claims, demands, or actions. 13. Events of Default by Del Mar. The following events constitute a default of this Agreement by Del Mar: a. The Corporation or City determines that any representation or warranty on behalf of Del Mar contained in this Agreement or in any financial statement, certificate, report, or opinion submitted to the Corporation in connection with this Agreement was incorrect or misleading in any material respect when made; b. Any judgment is assessed against Del Mar or any attachment or other levy against the property of Del Mar with respect to a claim remains unpaid, undischarged, or not dismissed for a period of 120 days. c. Del Mar makes an assignment for the benefit of creditors. Page 5 of 9 BUSINESS INCENTIVE AGREEMENT ..DEL MAR Interns 7 17 2012xlecx d. Del Mar files a petition in bankruptcy, or is adjudicated insolvent or bankrupt. e. If taxes owed by Del Mar become delinquent, and Del Mar fails to timely and properly follow the legal procedures for protest or contest. f. Del Mar changes the general character of business as conducted as of the date this Agreement is approved by the Corporation. 14. Notice of Default. Should the Corporation or City determine that Del Mar is in default according to the terms of this Agreement, the Corporation or City shall notify Del Mar in writing of the event of default and provide 60 days from the date of the notice ("Cure Period") for Del Mar to cure the event of default. 15. Results of Uncured Default by Del Mar. After exhausting good faith attempts to address any default during the cure Period, and taking into account any extenuating circumstances that might have occurred through no fault of Del Mar, as determined by the Board of Directors of the Corporation, the following actions must be taken for any default that remains uncured after the Cure Period. a. Del Mar shall immediately repay all funds paid by Corporation to them under this Agreement. b. Del Mar shall pay Corporation reasonable attorney fees and costs of court to collect amounts due to Corporation if not immediately repaid upon demand from the Corporation. c. Upon payment by Del Mar of all sums due, the Corporation and Del Mar sh I have no further obligations to one another under this Agreement. d. Neither the City, the Corporation, nor Del Mar may be held liable for any consequential damages. 16. No Waiver. a. No waiver of any covenant or condition, or the breach of any covenant or condition of this Agreement, constitutes a waiver of any subsequent breach of the covenant or condition of the Agreement. b. No waiver of any covenant or condition, or the breach of any covenant or condition of this Agreement, justifies or authorizes the nonobservance on any other occasion of the covenant or condition or any other covenant or condition of this Agreement. c. Any waiver or indulgence of Del Mar's default may not be considered an estoppel against the Corporation. d. It is expressly understood that if at any time Del Mar is in default in any of its conditions or covenants of this Agreement, the failure on the part of the Corporation to promptly avail itself of the rights and remedies that the Corporation may have, will not be considered a waiver on the part of the Corporation, but Corporation may at any time avail itself of the rights or remedies or elect to terminate this Agreement on account of the default. Page 6 of 9 BUSINESS INCENTIVE AGREEMENT -DEL MAR Interns 7 17 2012 docx 17. Del Mar specifically agrees that Corporation shall only be liable to Del Mar for the actual amount of the money grants to be conveyed to Del Mar, and shall not be liable to Del Mar for any actual or consequential damages, direct or indirect, interest, attorney fees, or cost of court for any act of default by Corporation under the terms of this Agreement. Payment by Corporation is strictly limited to those funds so allocated, budgeted, and collected solely during the grant term of this Agreement. Corporation shall use its best efforts to anticipate economic conditions and to budget accordingly. However, it is further understood and agreed that, should the actual total sales tax revenue collected for any one year be less than the total amount of grants to be paid to all contracting parties with Corporation for that year, then in that event, all contracting parties shall receive only their pro rata share of the available sales tax revenue for that year, less Corporation's customary and usual costs and expenses, as compared to each contracting parties' grant amount for that year, and Corporation shall not be liable to for any deficiency at that time or at any time in the future. In this event, Corporation will provide all supporting documentation, as requested. Payments to be made shall also require a written request from Del Mar to be accompanied by all necessary supporting documentation. 18. The parties mutually agree and understand that funding under this Agreement is subject to annual appropriations by the City Council; that each fiscal year's funding must be included in the budget for that year; and the funding is not effective until approved by the City Council. 19. Notices. a. Any required written notices shall be sent mailed, certified mail, postage prepaid, addressed as follows: Del Mar: Del Mar College Attn: President 101 Baldwin Corpus Christi, Texas 78404 Corporation: City of Corpus Christi Business and Job Development Corporation Attn.: Executive Director 1201 Leopard Street Corpus Christi, Texas 78401 b. A copy of all notices and correspondence must be sent the City at the following address: City of Corpus Christi Attn.: City Manager P.O. Box 9277 Corpus Christi, Texas 78469-9277 c. Notice is effective upon deposit in the United States mail in the manner provided above. Page 7 of 9 BUSINESS INCENTIVE AGREEMENT -DEL MAR Interns 7 17 2012,docx 20. Incorporation of other documents. The Corpus Christi Business and Job Development Corporation Guidelines and Criteria for Granting Business Incentives ("Corporation Guidelines"), as amended, are incorporated into this Agreement. 21. Amendments or Modifications. No amendments or modifications to this Agreement may be made, nor any provision waived, unless in writing signed by a person duly authorized to sign Agreements on behalf of each party. 22. Relationship of Parties. In performing this Agreement, both the Corporation and Del Mar will act in an individual capacity, and not as agents, representatives, employees, employers, partners, joint-venturers, or associates of one 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. 23. Captions. The captions in this Agreement are for convenience only and are not a part of this Agreement. The captions do not in any way limit or amplify the terms and provisions of this Agreement. 24. Severability. a. If for any reason, any section, paragraph, subdivision, clause, provision, phrase or word of this Agreement or the application of this Agreement to any person or circumstance is, to any extent, held illegal, invalid, or unenforceable under present or future law or by a final judgment of a court of competent jurisdiction, then the remainder of this Agreement, or the application of the term or provision to persons or circumstances other than those as to which it is held illegal, invalid, or unenforceable, will not be affected by the law or judgment, for it is the definite intent of the parties to this Agreement that every section, paragraph, subdivision, clause, provision, phrase, or word of this Agreement be given full force and effect for its purpose. b. To the extent that any clause or provision is held illegal, invalid, or unenforceable under present or future law effective during the term of this Agreement, then the remainder of this Agreement is not affected by the law, and in lieu of any illegal, invalid, or unenforceable clause or provision, a clause or provision, as similar in terms to the illegal, invalid, or unenforceable clause or provision as may be possible and be legal, valid, and enforceable, will be added to this Agreement automatically. 25. Venue. Venue for any legal action related to this Agreement is in Nueces County, Texas. 26. Sole Agreement. This Agreement constitutes the sole Agreement between Corporation and Del Mar. Any prior Agreements, promises, negotiations, or representations, verbal or otherwise, not expressly stated in this Agreement, are of no force and effect. 27. Survival of terms of Agreement and obligations of parties. The terms of this Agreement and the obligation of the parties relating to Section 14.a and b shall survive the termination of this Agreement. Page 8 of 9 BUSINESS INCENTIVE AGREEMENT -DEL MAR Interns 7 17 2012.docx Corpus Christi Business & Job Development Corporation By: [name] President Date: Attest: By: Armando Chapa Assistant Secretary De Mar College By: Dr./Mark Escamilla, PhD President Date: THE STATE OF TEXAS COUNTY OF NUECES This instrument was acknowledged before me on Escamilla, Ph.D, for Del Mar College, a political sub' oI1egedistrict. ary Public ate of Texas JESSICA ANN ALANIZ Notary Public, State ol Texas My Commission Expires B7/16/2016 Page 9 of 9 BUSINESS INCENTIVE AGREEMENT -DEL MAR Interns 7 17 2011.docx , 2012, by Dr. Mark the State of Texas, on behalf of EXHIBIT A PERFORMANCE MEASURES AND CORPORATION GRANTS Placement of not more than a total of 93 interns with small businesses in Corpus Christi during the Fall Semester of 2012, Spring Semester of 2013, or Summer Session of 2014, plus employment of 2 interns to assist in program administration during the Fall and Spring Semesters and Summer Session. A-1 BUSINESS INCENTIVE AGREEMENT -DEL MAR Interns 7 17 2012.docx BUSINESS INCENTIVE PROJECT SERVICE AGREEMENT This Business Incentives Project Service Agreement ( "Project Service Agreement ") is entered into between the Corpus Christi Business and Job Development Corporation ( "Type A Corporation ") and the City of Corpus Christi, Texas ( "City "). WHEREAS, the Texas Legislature in Section 4A of Article 5190.6, Vernon's Texas Revised Civil Statutes (Development Corporation Act of 1979), now codified as Subtitle 01, Title 12, Texas Local Government Code ( "the Act "), empowered local communities with the ability to adopt an optional local sales and use tax as a means of improving the economic health and prosperity of their citizens; WHEREAS, on November 5, 2002, residents of the City passed Proposition 2, New and Expanded Business Enterprises, which authorized the adoption of a sales and use tax for the promotion and development of new and expanded business enterprises at the rate of one - eighth of one percent to be imposed for 15 years; WHEREAS, the 1/8 cent sales tax authorized by passage of Proposition 2 was subsequently enacted by the City Council and filed with the State Comptroller of Texas, effective April 1, 2003, to be administered by the Type A Corporation's Board of Directors ( "Board "); WHEREAS, the Type A Corporation exists for the purposes of encouraging and assisting entities in the creation of jobs for the citizens of Corpus Christi, Texas; WHEREAS, the City Council approved the Corporation's amended Guidelines and Criteria for Granting Business Incentives on September 18, 2007, which the City Council incorporated into the City of Corpus Christi Economic Development Incentive Policies 2009 -2011 on November 17, 2009; WHEREAS, Section 501.073 of the Act requires the City Council to approve all programs and expenditures of the Type A Corporation; WHEREAS, Del Mar College ( "Del Mar ") has submitted a proposal to the Type A Corporation has requested business development funds from the Board to assist small businesses by providing access to students, who will serve as interns in professional level positions; WHEREAS, the Board has determined that it is in the best interests of the citizens of Corpus Christi, Texas, to fund Del Mar's intern program; and WHEREAS, the Type A Corporation and Del Mar have executed a small business incentive agreement for an intern program to support small businesses. In consideration of the covenants, promises, and conditions stated in this Project Service Agreement, the Type A Corporation and the City agree as follows: 1. Project Service Agreement to Implement Business Incentives Agreement. This Project Service Agreement between the City and the Type A Corporation is executed to implement the Small Business Incentive Agreement between the Type A Corporation and Del Mar related to Del Mar's intern program to support small businesses in Corpus Christi ( "Business Incentive Agreement "). Page 1 of 3 0023_4_Type A Business Support Agreement - Del Mar Intern 2. Term. The term of this Project Service Agreement runs concurrently with the term of the Business Incentive Agreement. 3. Services to be Provided by City. a. The City Manager or designee shall administer funding on behalf of the Type A Corporation. b. The City Manager or designee shall perform contract administration responsibilities outlined in the Business Incentive Agreement for the Type A Corporation. 4. Appropriation of Funds. Any future payments by the City are subject to appropriation of funds by City Council. 5. Effective Date. The effective date of this Project Service Agreement is August 17, 2012. 6. Amendments or Modifications. No amendments or modifications to this Project Service Agreement may be made, nor any provision waived, unless in writing signed by a person duly authorized to sign agreements on behalf of each party. 7. Severability. a. If for any reason, any section, paragraph, subdivision, clause, provision, phrase or word of this Project Service Agreement or the application of this Project Service Agreement to any person or circumstance is, to any extent, held illegal, invalid, or unenforceable under present or future law or by a final judgment of a court of competent jurisdiction, then the remainder of this Project Service Agreement, or the application of the term or provision to persons or circumstances other than those as to which it is held illegal, invalid, or unenforceable, will not be affected by the law or judgment, for it is the definite intent of the parties to this Project Service Agreement that every section, paragraph, subdivision, clause, provision, phrase, or word of this Project Service Agreement be given full force and effect for its purpose. b. To the extent that any clause or provision is held illegal, invalid, or unenforceable under present or future law effective during the term of this Project Service Agreement, then the remainder of this Project Service Agreement is not affected by the law, and in lieu of any illegal, invalid, or unenforceable clause or provision, a clause or provision, as similar in terms to the illegal, invalid, or unenforceable clause or provision as may be possible and be legal, valid, and enforceable, will be added to this Project Service Agreement automatically. 8. Captions. The captions in this Project Service Agreement are for convenience only and are not a part of this Project Service Agreement. The captions do not in any way limit or amplify the terms and provisions of this Project Service Agreement. Page 2 of 3 0023_4_Type A Business Support Agreement - Del Mar Intern The City of Corpus Christi Corpus Christi Business & Job Development Corporation Ronald L. Olson City Manager President Date: Date: Attest Armando Chapa City Secretary 0023_4_Type A Business Support Agreement - Del Mar Intern Page 3 of 3 AGENDA MEMORANDUM Future Item for the City Council Meeting of August 14, 2012 Action Item for the City Council Meeting of August 21, 2012 DATE: July 26, 2012 TO: Ronald L. Olson, City Manager THROUGH: Wes Pierson, Assistant City Manager (361) 826-3082 wesp@cctexas.com FROM: Mike Culbertson (361) 882 -7448 mculbertson@ccredc.com Type A Grant for Corpus Christi Regional Economic Development Corporation to initiate an Economic Gardening program for Fiscal Year 2013 CAPTION: Resolution approving a Small Business Incentives Agreement between the Corpus Christi Business and Job Development Corporation and the Corpus Christi Regional Economic Development Corporation ( "EDC ") to provide grant amount up to $96,000 to initiate an Economic Gardening program to help small businesses in Corpus Christi and authorizing the City Manager, or designee, to execute a Project Support Agreement with the Corpus Christi Business and Job Development Corporation to administer the EDC Small Business Incentives Agreement. PURPOSE: Approve a grant of $96,000 for Corpus Christi Regional Economic Development Corporation to initiate an Economic Gardening program to assist small businesses in Corpus Christi. BACKGROUND AND FINDINGS: The Economic Gardening program is in response to a directive made at the 2011 CCREDC Board Retreat to research this option for our community. In December 2011, Roland Mower, Emily Martinez and Eloy Salazar, President, Type A Board, visited with leaders in Littleton, Colorado and Ft. Collins to learn more about the program. During our visit we met with the country's leading expert in Economic Gardening, Chris Gibbons who is the Director of Business /Industry Affairs for the City of Littleton, Colorado. He initiated this program for Littleton in 1987 as a result of a layoff of several thousand employees from the community's largest employer. The CCREDC has been challenged with researching and developing an economic gardening program for our area. It is our recommendation to begin with a pilot program through the Edward Lowe Foundation. This will allow us to test the program utilizing the resources of the Edward Lowe Foundation for a minimal cost compared to fully launching the program. OTHER CONSIDERATIONS: Economic Gardening is an entrepreneurial approach to economic development that seeks to grow the local economy from within. The focus is to provide market research and high -level technical assistance to small growth- oriented companies by providing accurate, timely and relevant information to local entrepreneurs about key areas such as their competitors, customers, markets, and industry trends. This allows small business owners to make better strategic decisions, avoid costly mistakes, and successfully grow their business. This program will give small businesses resources that are not available elsewhere in the community. CONFORMITY TO CITY POLICY: This project is consistent with the City's stated goals of promoting economic development and helping small businesses thrive in Corpus Christi. EMERGENCY / NON- EMERGENCY: NON - EMERGENCY DEPARTMENTAL CLEARANCES: FINANCIAL IMPACT: ❑ Operating ❑ Revenue ❑ Capital ❑ Not applicable Fiscal Year: 2012- 2013 Project to Date Expenditures (CIP only) Current Year Future Years TOTALS Line Item Budget 374,135 374,135 Encumbered / Expended Amount This item 96,000 96,000 BALANCE 278,135 278,135 Fund(s): Type A Fund Comments: RECOMMENDATION: Staff recommends that the City Council authorize the City Manager to enter into a one year Type A agreement LIST OF SUPPORTING DOCUMENTS: Certification of Funds Small Business Incentive Agreement CCREDC Economic Gardening Program Business Support Agreement Page 1 of 2 RESOLUTION Resolution approving a Small Business Incentives Agreement between the Corpus Christi Business and Job Development Corporation and the Corpus Christi Regional Economic Development Corporation ( "EDC ") to provide grant amount up to $96,000 to initiate an Economic Gardening program to help small businesses in Corpus Christi and authorizing the City Manager, or designee, to execute a Project Support Agreement with the Corpus Christi Business and Job Development Corporation to administer the EDC Small Business Incentives Agreement. WHEREAS, the Corpus Christi Business and Job Development Corporation ( "Type A Corporation ") has budgeted funds to assist businesses create or retain jobs in the City of Corpus Christi, Texas ( "City "). WHEREAS, the Type A Corporation has requested proposals from businesses that will create or retain jobs within the City, and determined that the proposal from the EDC for the Economic Gardening program for small businesses within the City will best satisfy this goal; WHEREAS, City Council deems that it is the best interest of the City and citizens to approve the business incentives agreement for the Economic Gardening program for small businesses between the Type A Corporation and the EDC; WHEREAS, there is a need for a business incentives project support agreement between the City and the Type A Corporation for the implementation and administration of the business incentives agreement for the Economic Gardening program for small businesses between the Type A Corporation and the EDC. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF CORPUS CHRISTI, TEXAS: SECTION 1. That the business incentives agreement for the creation and retention of jobs between the Type A Corporation and the EDC that provides for the Economic Gardening program for small businesses within the City of Corpus Christi, which is attached to this resolution as Exhibit A, is approved. SECTION 2. That the City Manager, or designee, is authorized to execute a project support agreement between the City and Type A Corporation for the implementation and administration of the business incentives agreement with the EDC, which is attached to this resolution as Exhibit B. This resolution takes effect upon City Council approval on this the day of , 2012. 0024_2_RESOLUTION Economic Gardening 7 -11 -12 Page 2of2 ATTEST: THE CITY OF CORPUS CHRISTI Armando Chapa City Secretary Joe Adame Mayor Corpus Christi, Texas of , 2012 The above resolution was passed by the following vote: Joe Adame Chris N. Adler Larry R. Elizondo, Sr. Kelley Allen Priscilla Leal David Loeb John E. Marez Nelda Martinez Mark Scott 0024_2_RESOLUTION Economic Gardening 7 -11 -12 SMALL BUSINESS INCENTIVES AGREEMENT BETWEEN THE CORPUS CHRISTI BUSINESS AND JOB DEVELOPMENT CORPORATION AND THE CORPUS CHRISTI REGIONAL ECONOMIC DEVELOPMENT CORPORATION FOR AN ECONOMIC GARDENING PROGRAM FOR SMALL BUSINESSES This Business Incentive Agreement for Capital Investments and the Creation and Retention of Jobs ("Agreement") is entered into between the Corpus Christi Business and Job Development Corporation ("Corporation") and Corpus Christi Regional Economic Development Corporation ("CCREDC"), a Texas non-profit corporation. WHEREAS, the Texas Legislature in Section 4A of Article 5190.6, Vernon's Texas Revised Civil Statutes (Development Corporation Act of 1979), now codified as Subtitle C1, Title 12, Texas Local Government Code, Section 504.002 et seq, ("the Act"), empowered local communities with the ability to adopt an optional local sales and use tax as a means of improving the economic health and prosperity of their citizens; WHEREAS, on November 5, 2002, residents of the City of Corpus Christi ("City") passed Proposition 2, New and Expanded Business Enterprises, which authorized the adoption of a sales and use tax for the promotion and development of new and expanded business enterprises at the rate of one-eighth of one percent to be imposed for 15 years; WHEREAS, the 1/8th cent sales tax authorized by passage of Proposition 2 was subsequently enacted by the City Council and filed with the State Comptroller of Texas, effective April 1, 2003, to be administered by the Corpus Christi Business and Job Development Corporation Board; WHEREAS, the Corpus Christi Business and Job Development Corporation exists for the purposes of encouraging and assisting entities in the creation of jobs for the citizens of Corpus Christi, Texas; WHEREAS, the Board of Directors of the Corporation ("Board"), on September 10, 2007, amended the Corporation's Guidelines and Criteria for Granting Business Incentives ("Type A Guidelines"), which the City Council incorporated into the City of Corpus Christi Economic Development Incentive Policies 2009-2011 on November 17, 2009; WHEREAS, Section 501.073 of The Act requires the City Council to approve all programs and expenditures of the Corporation; WHEREAS, CCREDC is a Texas non-profit corporation whose principal mission is to increase the economic activity in the Corpus Christi region; WHEREAS, CCREDC proposes to implement an Economic Gardening program to help small businesses grow and prosper; WHEREAS, the Board has determined that it is in the best interests of the citizens of Corpus Christi, Texas that business development funds be provided to CCREDC through this contract with CCREDC, to be used by CCREDC to implement an Economic Gardening program to assist small businesses in the city of Corpus Christi. In consideration of the covenants, promises, and conditions stated in this Agreement, Corporation and CCREDC agree as follows: Page 1 of 8 Small Business Incentive Agreement - CCREDC 7 11 12 1. Effective Date. The effective date of this Agreement ("Effective Date") is the latest date that either party executes this Agreement. 2. Term. The term of this Agreement is for one (1) year beginning on the effective date. 3. Performance Requirements and Grants. The Performance Requirements and Grants are listed in Exhibit A, which is attached to and incorporated into this Agreement. 4. Economic Gardening Program. a. CCREDC will implement an Economic Gardening program. b. CCREDC will use the Edward Lowe Foundation to handle the back office portion to help stage 2 and stage 3 small businesses. b. CCREDC will attend training at the Edward Lowe Foundation to keep abreast of the latest procedures and to interface with the foundation. 5. Warranties. CCREDC warrants and represents to Corporation the following: a. CCREDC is a corporation duly organized, validly existing, and in good standing under the laws of the State of Texas, has all corporate power and authority to carry on its business as presently conducted in Corpus Christi, Texas. b. CCREDC has the authority to enter into and perform, and will perform, the terms of this Agreement to the best of its ability. c. CCREDC has timely filed and will timely file all local, State, and Federal tax reports and returns required by laws to be filed and all Texas, assessments, fees, and other governmental charges, including applicable ad valorem taxes, have been timely paid, and will be timely paid , during the term of this Agreement. d. CCREDC has received a copy of the Act, and acknowledges that the funds granted in this Agreement must be utilized solely for purposes authorized under State law and by the terms of this Agreement. e. The parties executing this Agreement on behalf of CCREDC are duly authorized to execute this Agreement on behalf of CCREDC. f. CCREDC does not and agrees that it will not knowingly employ an undocumented worker. If, after receiving payments under this Agreement, CCREDC is convicted of a violation under §U.S.C. Section 1324a(f), CCREDC shall repay the payments at the rate and according to the terms as specified by City Ordinance, as amended, not later than the 120th day after the date CCREDC has been notified of the violation. 6. Compliance with Laws. CCREDC shall observe and obey all applicable laws, ordinances, regulations, and rules of the Federal, State, county, and city governments. 7. Non-Discrimination. CCREDC covenants and agrees that CCREDC will not discriminate nor permit discrimination against any person or group of persons, with regard to employment and the provision of services at, on, or in the Facility, on the grounds of race, religion, national origin, Page 2 of 8 Small Business Incentive Agreement - CCREDC 7 11 12 marital status, sex, age, disability, or in any manner prohibited by the laws of the United States or the State of Texas. 8. Force Majeure. If the Corporation or CCREDC are prevented, wholly or in part, from fulfilling its obligations under this Agreement by reason of any act of God, unavoidable accident, acts of enemies, fires, floods, governmental restraint or regulation, other causes of force majeure, or by reason of circumstances beyond its control, then the obligations of the Corporation or CCREDC are temporarily suspended during continuation of the force majeure. If either party's obligation is affected by any of the causes of force majeure, the party affected shall promptly notify the other party in writing, giving full particulars of the force majeure as soon as possible after the occurrence of the cause or causes relied upon. 9. Assignment. CCREDC may not assign all or any part of its rights, privileges, or duties under this Agreement without the prior written approval of the Corporation and City. Any attempted assignment without approval is void, and constitutes a breach of this Agreement. 10. Indemnity. CCREDC covenants to fully indemnify, save, and hold harmless the Corporation, the City, their respective officers, employees, and agents ('lndemnitees”) against all liability, damage, loss, claims demands, and actions of any kind on account of personal injuries (including, without limiting the foregoing, workers' compensation and death claims), or property loss or damage of any kind, which arise out of or are in any manner connected with, or are claimed to arise out of or be in any manner connected with CCREDC activities conducted under or incidental to this Agreement, including any injury, loss or damage caused by the sole or contributory negligence of any or all of the Indemnitees. CCREDC must, at its own expense, investigate all those claims and demands, attend to their settlement or other disposition, defend all actions based on those claims and demands with counsel satisfactory to Indemnitees, and pay all charges of attorneys and all other cost and expenses of any kind arising from the liability, damage, loss, claims, demands, or actions. 11. Events of Default by CCREDC. The following events constitute a default of this Agreement by CCREDC: a. The Corporation or City determines that any representation or warranty on behalf of CCREDC contained in this Agreement or in any financial statement, certificate, report, or opinion submitted to the Corporation in connection with this Agreement was incorrect or misleading in any material respect when made; b. Any judgment is assessed against CCREDC or any attachment or other levy against the property of CCREDC with respect to a claim remains unpaid, undischarged, or not dismissed for a period of 120 days. c. CCREDC makes an assignment for the benefit of creditors. d. CCREDC files a petition in bankruptcy, or is adjudicated insolvent or bankrupt. e. If taxes owed by CCREDC become delinquent, and CCREDC fails to timely and properly follow the legal procedures for protest or contest. f. CCREDC changes the general character of business as conducted as of the date this Agreement is approved by the Corporation. Page 3 of 8 Small Business Incentive Agreement - CCREDC 7 11 12 12. Notice of Default. Should the Corporation or City determine that CCREDC is in default according to the terms of this Agreement, the Corporation or City shall notify CCREDC in writing of the event of default and provide 60 days from the date of the notice ("Cure Period') for CCREDC to cure the event of default. 13. Results of Uncured Default by CCREDC. After exhausting good faith attempts to address any default during the cure Period, and taking into account any extenuating circumstances that might have occurred through no fault of CCREDC, as determined by the Board of Directors of the Corporation, the following actions must be taken for any default that remains uncured after the Cure Period. a. CCREDC shall immediately repay all funds paid by Corporation to them under this Agreement. b. CCREDC shall pay Corporation reasonable aftorney fees and costs of court to collect amounts due to Corporation if not immediately repaid upon demand from the Corporation. c. Upon payment by CCREDC of all sums due, the Corporation and CCREDC shall have no further obligations to one another under this Agreement. d. Neither the City, the Corporation, nor CCREDC may be held liable for any consequential damages. 14. No Waiver. a. No waiver of any covenant or condition, or the breach of any covenant or condition of this Agreement, constitutes a waiver of any subsequent breach of the covenant or condition of the Agreement. b. No waiver of any covenant or condition, or the breach of any covenant or condition of this Agreement, justifies or authorizes the nonobservance on any other occasion of the covenant or condition or any other covenant or condition of this Agreement. c. Any waiver or indulgence of CCREDC's default may not be considered an estoppel against the Corporation. d. It is expressly understood that if at any time CCREDC is in default in any of its conditions or covenants of this Agreement, the failure on the part of the Corporation to promptly avail itself of the rights and remedies that the Corporation may have, will not be considered a waiver on the part of the Corporation, but Corporation may at any time avail itself of the rights or remedies or elect to terminate this Agreement on account of the default. 15. CCREDC specifically agrees that Corporation shall only be liable to CCREDC for the actual amount of the money grants to be conveyed to CCREDC, and shall not be liable to CCREDC for any actual or consequential damages, direct or indirect, interest, attorney fees, or cost of court for any act of default by Corporation under the terms of this Agreement. Payment by Corporation is strictly limited to those funds so allocated, budgeted, and collected solely during the grant term of this Agreement. Corporation shall use its best efforts to anticipate economic conditions and to budget accordingly. However, it is further understood and agreed that, should Page 4 of 8 Small Business Incentive Agreement - CCREDC 7 11 12 the actual total sales tax revenue collected for any one year be less than the total amount of grants to be paid to all contracting parties with Corporation for that year, then in that event, all contracting parties shall receive only their pro rata share of the available sales tax revenue for that year, less Corporation's customary and usual costs and expenses, as compared to each contracting parties' grant amount for that year, and Corporation shall not be liable to for any deficiency at that time or at any time in the future. In this event, Corporation will provide all supporting documentation, as requested. Payments to be made shall also require a written request from CCREDC to be accompanied by all necessary supporting documentation. 16. The parties mutually agree and understand that funding under this Agreement is subject to annual appropriations by the City Council; that each fiscal year's funding must be included in the budget for that year; and the funding is not effective until approved by the City Council. 17. Notices. a. Any required written notices shall be sent maited, certified mail, postage prepaid, addressed as follows: CCREDC; Corpus Christi Regional Economic Development Corporation Attn: Roland C. Mower, President/Chief Executive Officer 800 N Shoreline Blvd Suite 1300 S Corpus Christi, Texas 78401 Corporation: City of Corpus Christi Business and Job Development Corporation Attn.: Executive Director 1201 Leopard Street Corpus Christi, Texas 78401 b. A copy of all notices and correspondence must be sent the City at the following address: City of Corpus Christi Attn.: City Manager P.O. Box 9277 Corpus Christi, Texas 78469-9277 c. Notice is effective upon deposit in the United States mail in the manner provided above. 18. Incorporation of other documents. The Corpus Christi Business and Job Development Corporation Guidelines and Criteria for Granting Business Incentives ("Corporation Guidelines"), as amended, are incorporated into this Agreement. Page 5 of 8 Small Business Incentive Agreement - CCREDC 7 11 12 19. Amendments or Modifications. No amendments or modifications to this Agreement may be made, nor any provision waived, unless in writing signed by a person duly authorized to sign Agreements on behalf of each party. 20. Relationship of Parties. In performing this Agreement, both the Corporation and CCREDC will act in an individual capacity, and not as agents, representatives, employees, employers, partners, joint-venturers, or associates of one 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. 21. Captions. The captions in this Agreement are for convenience only and are not a part of this Agreement. The captions do not in any way limit or amplify the terms and provisions of this Agreement. 22. Severability. a. If for any reason, any section, paragraph, subdivision, clause, provision, phrase or word of this Agreement or the application of this Agreement to any person or circumstance is, to any extent, held illegal, invalid, or unenforceable under present or future law or by a final judgment of a court of competent jurisdiction, then the remainder of this Agreement, or the application of the term or provision to persons or circumstances other than those as to which it is held illegal, invalid, or unenforceable, will not be affected by the law or judgment, for it is the definite intent of the parties to this Agreement that every section, paragraph, subdivision, clause, provision, phrase, or word of this Agreement be given full force and effect for its purpose. b. To the extent that any clause or provision is held illegal, invalid, or unenforceable under present or future law effective during the term of this Agreement, then the remainder of this Agreement is not affected by the law, and in lieu of any illegal, invalid, or unenforceable clause or provision, a clause or provision, as similar in terms to the illegal, invalid, or unenforceable clause or provision as may be possible and be legal, valid, and enforceable, will be added to this Agreement automatically. 23. Venue. Venue for any legal action related to this Agreement is in Nueces County, Texas. 24. Sole Agreement. This Agreement constitutes the sole Agreement between Corporation and CCREDC. Any prior Agreements, promises, negotiations, or representations, verbal or otherwise, not expressly stated in this Agreement, are of no force and effect. 25. Survival of terms of Agreement and obligations of parties. The terms of this Agreement and the obligation of the parties relating to Section 14.a and b shall survive the termination of this Agreement. Corpus Christi Business & Job Development Corporation By: Date: Small SmaHBusness Incentive Agreement - CCREDC 7 1 12 [name] President Page 6 of 8 Attest: By: Armando Chapa Assistant Secretary Corpus ChrisRegional Econo mt., *c g velopment Corporation By: Roland C. Mower, CEDC President /Chief Executive Officer Date: -201 THE STATE OF TEXAS COUNTY OF NUECES This instrument was acknowledged before me on 1 , 2012, by Roland C. Mower, PresidentlChief Executive Officer, for Corpus Ch i'i ti Regional Economic Development ration, Texas -profit cor +oration, on behalf of the corporation. No ary Public State of Texas Small Business Incentive Agreement - CCREDC 711 12 DAVID ALLEN BROCK Notary Public, State of Texas My Commission Expires March 22, 2016 Page 7 of 8 EXHIBIT A PERFORMANCE MEASURES AND CORPORATION GRANTS 1. CCREDC shall set up an Economic Gardening program. This program will help stage 2 and stage 3 small businesses take the next step in their growth. CCREDC will use the Edward Lowe Foundation to help with the database searches for these companies. CCREDC will also use their current office staff and resources in helping these companies. Small a. Grant, not to exceed $96,000 for the term of the agreement. b. The Corporation will reimburse CCREDC for all direct expenses with the Economic Gardening Program including Edward Lowe Foundation costs, supplies, and travel expenses. c. Invoices will be submitted throughout the term of this agreement, payable as invoiced. usiness Incentive Agreement - CCREDC 7 1112 A-1 BUSINESS INCENTIVE PROJECT SERVICE AGREEMENT This Business Incentives Project Service Agreement ( "Project Service Agreement ") is entered into between the Corpus Christi Business and Job Development Corporation ( "Type A Corporation ") and the City of Corpus Christi, Texas ( "City "). WHEREAS, the Texas Legislature in Section 4A of Article 5190.6, Vernon's Texas Revised Civil Statutes (Development Corporation Act of 1979), now codified as Subtitle 01, Title 12, Texas Local Government Code ( "the Act "), empowered local communities with the ability to adopt an optional local sales and use tax as a means of improving the economic health and prosperity of their citizens; WHEREAS, on November 5, 2002, residents of the City passed Proposition 2, New and Expanded Business Enterprises, which authorized the adoption of a sales and use tax for the promotion and development of new and expanded business enterprises at the rate of one - eighth of one percent to be imposed for 15 years; WHEREAS, the 1/8 cent sales tax authorized by passage of Proposition 2 was subsequently enacted by the City Council and filed with the State Comptroller of Texas, effective April 1, 2003, to be administered by the Type A Corporation's Board of Directors ( "Board "); WHEREAS, the Type A Corporation exists for the purposes of encouraging and assisting entities in the creation of jobs for the citizens of Corpus Christi, Texas; WHEREAS, the City Council approved the Corporation's amended Guidelines and Criteria for Granting Business Incentives on September 18, 2007, which the City Council incorporated into the City of Corpus Christi Economic Development Incentive Policies 2009 -2011 on November 17, 2009; WHEREAS, Section 501.073 of the Act requires the City Council to approve all programs and expenditures of the Type A Corporation; WHEREAS, Corpus Christi Regional Economic Development Corporation ( "CCREDC ") has submitted a proposal to the Type A Corporation for a $96,000 grant for implementing an Economic Gardening program; WHEREAS, the Board has determined that it is in the best interests of the citizens of Corpus Christi, Texas, to fund CCREDC's Economic Gardening program will help stage 2 and stage 3 small businesses grow; and WHEREAS, the Type A Corporation and CCREDC have executed a business incentives agreement for the creation and retention of jobs related to CCREDC investing in new facilities and new equipment of their existing manufacturing and distribution facilities. In consideration of the covenants, promises, and conditions stated in this Project Service Agreement, the Type A Corporation and the City agree as follows: 1. Project Service Agreement to Implement Business Incentives Agreement. This Project Service Agreement between the City and the Type A Corporation is executed to implement the Business Incentive Agreement for the Creation of Jobs between the Type A Corporation and Page 1 of 3 0024_4_Type A Business Support Agreement - CCREDC 07 13 12 CCREDC related to CCREDC locating their headquarters in Corpus Christi ( "Business Incentive Agreement "). 2. Term. The term of this Project Service Agreement runs concurrently with the term of the Business Incentive Agreement. 3. Services to be Provided by City. a. The City Manager, or the City Manager's designee, shall administer funding on behalf of the Type A Corporation. b. The City Manager, or the City Manager's designee, shall perform contract administration responsibilities outlined in the Business Incentive Agreement for the Type A Corporation. 4. Appropriation of Funds. Any future payments by the City are subject to appropriation of funds by City Council. 5. Effective Date. The effective date of this Project Service Agreement is August 1, 2012. 6. Amendments or Modifications. No amendments or modifications to this Project Service Agreement may be made, nor any provision waived, unless in writing signed by a person duly authorized to sign agreements on behalf of each party. 7. Severability. a. If for any reason, any section, paragraph, subdivision, clause, provision, phrase or word of this Project Service Agreement or the application of this Project Service Agreement to any person or circumstance is, to any extent, held illegal, invalid, or unenforceable under present or future law or by a final judgment of a court of competent jurisdiction, then the remainder of this Project Service Agreement, or the application of the term or provision to persons or circumstances other than those as to which it is held illegal, invalid, or unenforceable, will not be affected by the law or judgment, for it is the definite intent of the parties to this Project Service Agreement that every section, paragraph, subdivision, clause, provision, phrase, or word of this Project Service Agreement be given full force and effect for its purpose. b. To the extent that any clause or provision is held illegal, invalid, or unenforceable under present or future law effective during the term of this Project Service Agreement, then the remainder of this Project Service Agreement is not affected by the law, and in lieu of any illegal, invalid, or unenforceable clause or provision, a clause or provision, as similar in terms to the illegal, invalid, or unenforceable clause or provision as may be possible and be legal, valid, and enforceable, will be added to this Project Service Agreement automatically. 8. Captions. The captions in this Project Service Agreement are for convenience only and are not a part of this Project Service Agreement. The captions do not in any way limit or amplify the terms and provisions of this Project Service Agreement. The City of Corpus Christi Corpus Christi Business & Job Development Corporation Page 2 of 3 0024_4_Type A Business Support Agreement - CCREDC 07 13 12 Ronald L. Olson [name] City Manager President Date: Date: Attest Armando Chapa City Secretary Page 3 of 3 0024_4_Type A Business Support Agreement - CCREDC 07 13 12 AGENDA MEMORANDUM Future Item for the City Council Meeting of August 14, 2012 Action Item for the City Council Meeting of August 21, 2012 DATE: July 26, 2012 TO: Ronald L. Olson, City Manager THROUGH: Wes Pierson, Assistant City Manager (361) 826-3082 wesp@cctexas.com FROM: Mike Culbertson (361) 882 -7448 mculbertson@ccredc.com Type A Grant for Service Corps of Retired Executives (SCORE) Chapter 221 for Fiscal Year 2013 CAPTION: Resolution approving a Small Business Incentives Agreement between the Corpus Christi Business and Job Development Corporation and Service Corps of Retired Executives (SCORE) Chapter 221 to provide grant up to $50,000 to assist small businesses and authorizing the City Manager, or designee, to execute a Project Support Agreement with the Corpus Christi Business and Job Development Corporation to administer the SCORE Chapter 221 Small Business Incentives Agreement. PURPOSE: Approve a Type A Grant for SCORE to assist small businesses through workshops and counseling for Fiscal Year 2013 BACKGROUND AND FINDINGS: SCORE has been aiding small businesses in Corpus Christi through their outreach by holding workshops on various subjects of use to the small business owner, and by providing counseling through face to face meetings and through emails. SCORE will have a contractor to coordinate the workshops and the advertising for these workshops. They have helped over 2,000 small businesses in the city each year for the past three years. SCORE has received funding since 2008. ALTERNATIVES: The help that they provide is not available anywhere else. The Small Business Development Center could offer some of the counseling services but they are limited on resources. OTHER CONSIDERATIONS: By helping small businesses the City is increasing the economic development and growing future jobs. CONFORMITY TO CITY POLICY: This project is consistent with the City's stated goals of promoting economic development and helping small businesses thrive in Corpus Christi. EMERGENCY / NON- EMERGENCY: NON - EMERGENCY DEPARTMENTAL CLEARANCES: FINANCIAL IMPACT: ❑ Operating ❑ Revenue ❑ Capital ❑ Not applicable Fiscal Year: 2012 -2013 Project to Date Expenditures (CIP only) Current Year Future Years TOTALS Line Item Budget 278,135 278,135 Encumbered / Expended Amount This item 50,000 50,000 BALANCE 228,135 228,135 Fund(s): Type A Fund Comments: RECOMMENDATION: Staff recommends that the City Council authorize the City Manager to enter into a one year Type A agreement LIST OF SUPPORTING DOCUMENTS: Certification of Funds Small Business Incentive Agreement SCORE Business Support Agreement Page 1 of 2 RESOLUTION Resolution approving a Small Business Incentives Agreement between the Corpus Christi Business and Job Development Corporation and Service Corps of Retired Executives (SCORE) Chapter 221 to provide grant up to $50,000 to assist small businesses and authorizing the City Manager, or designee, to execute a Project Support Agreement with the Corpus Christi Business and Job Development Corporation to administer the SCORE Chapter 221 Small Business Incentives Agreement. WHEREAS, the Corpus Christi Business and Job Development Corporation ( "Type A Corporation ") has budgeted funds to assist businesses create or retain jobs in the City of Corpus Christi, Texas ( "City "). WHEREAS, the Type A Corporation has requested proposals from businesses that will create or retain jobs within the City, and determined that the proposal from SCORE to assist small businesses within the City will best satisfy this goal; WHEREAS, City Council deems that it is the best interest of the City and citizens to approve the business incentives agreement to assist small businesses between the Type A Corporation and SCORE; WHEREAS, there is a need for a business incentive project support agreement between the City and the Type A Corporation for the implementation and administration of the business incentives agreement to assist small businesses between the Type A Corporation and SCORE. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF CORPUS CHRISTI, TEXAS: SECTION 1. That the business incentives agreement for business development between the Type A Corporation and SCORE to assist small businesses within the City of Corpus Christi, which is attached to this resolution as Exhibit A, is approved. SECTION 2. That the City Manager, or designee, is authorized to execute a project support agreement between the City and Type A Corporation for the implementation and administration of the business incentives agreement with SCORE, which is attached to this resolution as Exhibit B. This resolution takes effect upon City Council approval on this the day of , 2012. 0025_2_RESOLUTION SCORE Business Incentive Agreement 7 -6 -12 Page 2of2 ATTEST: THE CITY OF CORPUS CHRISTI Armando Chapa City Secretary Joe Adame Mayor Corpus Christi, Texas of , 2012 The above resolution was passed by the following vote: Joe Adame Chris N. Adler Larry R. Elizondo, Sr. Kelley Allen Priscilla Leal David Loeb John E. Marez Nelda Martinez Mark Scott 0025_2_RESOLUTION SCORE Business Incentive Agreement 7 -6 -12 BUSINESS INCENTIVE AGREEMENT BE EEN THE CORPUS CHRISTI BUSINESS AND JOB DEVELOPMENT CORPORATION AND SERVICE CORPS OF RETIRED EXECUTIVES (SCORE) CHAPTER 221 FOR BUSINESS DEVELOPMENT This Business Incentive Agreement for Capital Investments and the Creation and Retention of Jobs (Agreement') is entered into between the Corpus Christi Business and Job Development Corporation ("Corporation") and Service Corps Of Retired Executives Chapter 221 ("SCORE"), a Washington, D.C. non-profit corporation. WHEREAS, the Texas Legislature in Section 4A of Article 5190.6, Vemon's Texas Revised Civil Statutes (Development Corporation Act of 1979), now codified as Subtitle C1, Title 12, Texas Local Government Code, Section 504.002 et seq, ("the Act"), empowered local communities with the ability to adopt an optional local sales and use tax as a means of improving the economic health and prosperity of their citizens; WHEREAS, on November 5, 2002, residents of the City of Corpus Christi ("City") passed Proposition 2, New and Expanded Business Enterprises, which authorized the adoption of a sales and use tax for the promotion and development of new and expanded business enterprises at the rate of one-eighth of one percent to be imposed for 15 years; WHEREAS, the 1/8th cent sales tax authorized by passage of Proposition 2 was subsequently enacted by the City Council and filed with the State Comptroller of Texas, effective April 1, 2003, to be administered by the Corpus Christi Business and Job Development Corporation Board; WHEREAS, the Corpus Christi Business and Job Development Corporation exists for the purposes of encouraging and assisting entities in the creation of jobs for the citizens of Corpus Christi, Texas; WHEREAS, the Board of Directors of the Corporation ("Board"), on September 10, 2007, amended the Corporation's Guidelines and Criteria for Granting Business Incentives ("Type A Guidelines"), which the City Council incorporated into the City of Corpus Christi Economic Development Incentive Policies 2009-2011 on November 17, 2009; WHEREAS, Section 501.073 of The Act requires the City Council to approve all programs and expenditures of the Corporation; WHEREAS, SCORE will provide assistance to small businesses, persons, and entities desiring to begin and operate a small business in Corpus Christi by mentoring clients; conducting workshops; and advising clients as to business plans, pro-forma statements, forms of business entity, financial implications of business decisions, and all other aspects of small business operations; WHEREAS, SCORE proposes retain an executive assistant/coordinator to assist SCORE volunteers in administrating the assistance program; WHEREAS, the Board determined that it is in the best interests of the citizens of Corpus Christi, Texas that business development funds be provided to SCORE, through this Agreement with SCORE, to be used by SCORE to provide assistance to small businesses. Page 1 of 8 SCORE Type A Small Business Development Agreement 07 12 12 In consideration of the covenants, promises, and conditions stated in this Agreement, Corporation and SCORE agree as follows: 1. Effective Date. The effective date of this Agreement ("Effective Date') is the latest date that either party executes this Agreement. 2. Term. The term of this Agreement is for one (1) year beginning on the effective date. 3. Performance Requirements and Grants. The Performance Requirements and Grants are listed in Exhibit A, which is attached to and incorporated into this Agreement. 4. Warranties. SCORE warrants and represents to Corporation the following: a. SCORE is a corporation duly organized, validly existing, and in good standing under the laws of the State of Texas, has all corporate power and authority to carry on its business as presently conducted in Corpus Christi, Texas. b. SCORE has the authority to enter into and perform, and will perform, the terms of this Agreement to the best of its ability. c. SCORE has timely filed and will timely file all local, State, and Federal tax reports and returns required by laws to be filed and all Texas, assessments, fees, and other governmental charges, including applicable ad valorem taxes, have been timely paid, and will be timely paid , during the term of this Agreement. d. SCORE has received a copy of the Act, and acknowledges that the funds granted in this Agreement must be utilized solely for purposes authorized under State law and by the terms of this Agreement. e. The parties executing this Agreement on behalf of SCORE are duly authorized to execute this Agreement on behalf of SCORE. f. SCORE does not and agrees that it will not knowingly employ an undocumented worker. If, after receiving payments under this Agreement, SCORE is convicted of a violation under §U.S.C. Section 1324a(f), SCORE shall repay the payments at the rate and according to the terms as specified by City Ordinance, as amended, not later than the 120th day after the date SCORE has been notified of the violation. 5. Compliance with Laws. SCORE shall observe and obey all applicable laws, ordinances, regulations, and rules of the Federal, State, county, and city governments. 6. Non-Discrimination. SCORE covenants and agrees that SCORE will not discriminate nor permit discrimination against any person or group of persons, with regard to employment and the provision of services at, on, or in the Facility, 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. 7, Force Majeure. If the Corporation or SCORE are prevented, wholly or in part, from fulfilling its obligations under this Agreement by reason of any act of God, unavoidable accident, acts of enemies, fires, floods, governmental restraint or regulation, other causes of force majeure, or by reason of circumstances beyond its control, then the obligations of the Corporation or SCORE Page 2 of 8 SCORE Type A Small Business Development Agreement 07 12 12 are temporarily suspended during continuation of the force majeure. If either party's obligation is affected by any of the causes of force majeure, the party affected shall promptly notify the other party in writing, giving full particulars of the force majeure as soon as possible after the occurrence of the cause or causes relied upon. 8. Assignment. SCORE may not assign all or any part of its rights, privileges, or duties under this Agreement without the prior written approval of the Corporation and City. Any attempted assignment without approval is void, and constitutes a breach of this Agreement. 9. Indemnity. SCORE covenants to fully indemnify, save, and hold harmless the Corporation, the City, their respective officers, employees, and agents ("Indemnitees") against all liability, damage, loss, claims demands, and actions of any kind on account of personal injuries (including, without limiting the foregoing, workers' compensation and death claims), or property loss or damage of any kind, which arise out of or are in any manner connected with, or are claimed to arise out of or be in any manner connected with SCORE activities conducted under or incidental to this Agreement, including any injury, loss or damage caused by the sole or contributory negligence of any or all of the lndemnitees. SCORE must, at its own expense, investigate all those claims and demands, attend to their settlement or other disposition, defend all actions based on those claims and demands with counsel satisfactory to lndemnitees, and pay all charges of attorneys and all other cost and expenses of any kind arising from the liability, damage, loss, claims, demands, or actions. 10. Events of Default by SCORE. The following events constitute a default of this Agreement by SCORE: a. The Corporation or City determines that any representation or warranty on behalf of SCORE contained in this Agreement or in any financial statement, certificate, report, or opinion submitted to the Corporation in connection with this Agreement was incorrect or misleading in any material respect when made; b. Any judgment is assessed against SCORE or any attachment or other levy against the property of SCORE with respect to a claim remains unpaid, undischarged, or not dismissed for a period of 120 days. c. SCORE makes an assignment for the benefit of creditors. d. SCORE files a petition in bankruptcy, or is adjudicated insolvent or bankrupt. e. If taxes owed by SCORE become delinquent, and SCORE fails to timely and properly follow the legal procedures for protest or contest. f. SCORE changes the general character of business as conducted as of the date this Agreement is approved by the Corporation. 11. Notice of Default. Should the Corporation or City determine that SCORE is in default according to the terms of this Agreement, the Corporation or City shall notify SCORE in writing of the event of default and provide 60 days from the date of the notice ("Cure Period") for SCORE to cure the event of default. Page 3 of 8 SCORE Type A Small Business Development Agreement 07 12 12 12. Results of Uncured Default by SCORE. After exhausting good faith attempts to address any default during the cure Period, and taking into account any extenuating circumstances that might have occurred through no fault of SCORE, as determined by the Board of Directors of the Corporation, the following actions must be taken for any default that remains uncured after the Cure Period. a. SCORE shall shaU immediately repay all funds paid by Corporation to them under this Agreement. b. SCORE shall pay Corporation reasonable attorney fees and costs of court to collect amounts due to Corporation if not immediately repaid upon demand from the Corporation. c. Upon payment by SCORE of all sums due, the Corporation and SCORE shall have no further obligations to one another under this Agreement. d. Neither the City, the Corporation, nor SCORE may be held liable for any consequential damages. 13, No Waiver. a. No waiver of any covenant or condition, or the breach of any covenant or condition of this Agreement, constitutes a waiver of any subsequent breach of the covenant or condition of the Agreement. b. No waiver of any covenant or condition, or the breach of any covenant or condition of this Agreement, justifies or authorizes the nonobservance on any other occasion of the covenant or condition or any other covenant or condition of this Agreement. c. Any waiver or indulgence of SCORE's default may not be considered an estoppel against the Corporation. d. It is expressly understood that if at any time SCORE is in default in any of its conditions or covenants of this Agreement, the failure on the part of the Corporation to promptly avail itself of the rights and remedies that the Corporation may have, will not be considered a waiver on the part of the Corporation, but Corporation may at any time avail itself of the rights or remedies or elect to terminate this Agreement on account of the default. 14. SCORE specifically agrees that Corporation shall only be liable to SCORE for the actual amount of the money grants to be conveyed to SCORE, and shall not be liable to SCORE for any actual or consequential damages, direct or indirect, interest, attorney fees, or cost of court for any act of default by Corporation under the terms of this Agreement. Payment by Corporation is strictly limited to those funds so allocated, budgeted, and collected solely during the grant term of this Agreement. Corporation shall use its best efforts to anticipate economic conditions and to budget accordingly. However, it is further understood and agreed that, should the actual total sales tax revenue collected for any one year be less than the total amount of grants to be paid to all contracting parties with Corporation for that year, then in that event, all contracting parties shall receive only their pro rata share of the available sales tax revenue for that year, less Corporation's customary and usual costs and expenses, as compared to each contracting parties grant amount for that year, and Corporation shall not be liable to for any Page 4 of 8 SCORE Type A Small Business Development Agreement 07 12 12 deficiency at that time or at any time in the future. In this event, Corporation will provide all supporting documentation, as requested. Payments to be made shall also require a written request from SCORE to be accompanied by all necessary supporting documentation. 15, The parties mutually agree and understand that funding under this Agreement is subject to annual appropriations by the City Council; that each fiscal year's funding must be included in the budget for that year; and the funding is not effective until approved by the City Council. 16. Notices. a, Any required written notices shall be sent mailed, certified mail, postage prepaid, addressed as follows: SCORE Chapter 221: SCORE 221 Chapter Chair 3649 Leopard St., Suite 411 Corpus Christi, Texas 78408 Corporation: City of Corpus Christi Business and Job Development Corporation Attn.: Executive Director 1201 Leopard Street Corpus Christi, Texas 78401 b. A copy of all notices and correspondence must be sent the City at the following address: City of Corpus Christi Attn.: City Manager P.O. Box 9277 Corpus Christi, Texas 78469-9277 c. Notice is effective upon deposit in the United States mail in the manner provided above. 17. Incorporation of other documents. The Corpus Christi Business and Job Development Corporation Guidelines and Criteria for Granting Business Incentives ("Corporation Guidelines"), as amended, are incorporated into this Agreement. 18. Amendments or Modifications. No amendments or modifications to this Agreement may be made, nor any provision waived, unless in writing signed by a person duly authorized to sign Agreements on behalf of each party. 19. Relationship of Parties. In performing this Agreement, both the Corporation and SCORE will act in an individual capacity, and not as agents, representatives, employees, employers, partners, joint-venturers, or associates of one 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. SCORE Type A Small Business Development Agreement Page 5 of 8 7 12 12 20. Captions. The captions in this Agreement are for convenience only and are not a part of this Agreement. The captions do not in any way limit or amplify the terms and provisions of this Agreement. 21. Severability. a. If for any reason, any section, paragraph, subdivision, clause, provision, phrase or word of this Agreement or the application of this Agreement to any person or circumstance is, to any extent, held illegal, invalid, or unenforceable under present or future law or by a final judgment of a court of competent jurisdiction, then the remainder of this Agreement, or the application of the term or provision to persons or circumstances other than those as to which it is held illegal, invalid, or unenforceable, will not be affected by the law or judgment, for it is the definite intent of the parties to this Agreement that every section, paragraph, subdivision, clause, provision, phrase, or word of this Agreement be given full force and effect for its purpose. b. To the extent that any clause or provision is held illegal, invalid, or unenforceable under present or future law effective during the term of this Agreement, then the remainder of this Agreement is not affected by the law, and in lieu of any illegal, invalid, or unenforceable clause or provision, a clause or provision, as similar in terms to the illegal, invalid, or unenforceable clause or provision as may be possible and be legal, valid, and enforceable, will be added to this Agreement automatically. 22. Venue. Venue for any legal action related to this Agreement is in Nueces County, Texas. 23. Sole Agreement. This Agreement constitutes the sole Agreement between Corporation and SCORE. Any prior Agreements, promises, negotiations, or representations, verbal or otherwise, not expressly stated in this Agreement, are of no force and effect. 24. Survival of terms of Agreement and obligations of parties. The terms of this Agreement and the obligation of the parties relating to Section 14.a and b shall survive the termination of this Agreement. Corpus Christi Business & Job Development Corporation By Date: Attest' By President Armando Chapa Assistant Secretary Page 6 of 8 SCORE Type A Small Business Development Agreement 07 12 12 [Business By: Jack Green President Date: THE STATE OF TEXAS COUNTY OF This instrument was acknowledged before me on —/ -16 , 2012, by Jack Green, President for Service Corps of Retired Executives (SCORE) Chapter 221, a Washington, D.C. non irofit corporation on behalf of the corporation. No a Ty usIic State o Texas 144 tREHE GARCIP, Notary Pubtic, State of -Texas My Commission EXPiTOS 30, 2012 Page 7 of 8 SCORE Type A Small Business Development Agreement 07 12 12 EXHIBIT A PERFORMANCE MEASURES AND CORPORATION GRANTS Corporation will reimburse SCORE by grant for all direct expenses related to the project. The total reimbursements may not exceed Fifty Thousand Dollars ($50,000.00. 2. Providing 1,620 hours of general and technical services to small businesses through volunteer counselors. 3. SCORE agrees to the following reporting and monitoring provisions, and failure to fully and timely comply with any one requirement is an act of default. 4. SCORE shall provide quarterly reports on its performance requirements. The reports must document: a. Number of face to face consultations between SCORE volunteers and small business owners or prospective owners. b. Number of workshops with description of workshop and number of attendees. c. Number of small business owners or prospective owners who were provided counseling by email or on-line services. 5. SCORE, during normal working hours, at its Corpus Christi, Texas, facility, shall allow Corporation and its designee, the City's Economic Development Department ("Department"), reasonable access to SCORE's employment records and books, to verify employment and all other relevant records related to each of the other economic development considerations and incentives, as stated in this agreement, but the confidentiality of records and information shall be maintained by Corporation and Department, unless the records and information shall be required by a court order, a lawfully issued subpoena, or at the direction of the Office of the Texas Attorney General. A-8 SCORE Type A Small Business Development Agreement 07 12 12 BUSINESS INCENTIVE PROJECT SERVICE AGREEMENT This Business Incentives Project Service Agreement ( "Project Service Agreement ") is entered into between the Corpus Christi Business and Job Development Corporation ( "Type A Corporation ") and the City of Corpus Christi, Texas ( "City "). WHEREAS, the Texas Legislature in Section 4A of Article 5190.6, Vernon's Texas Revised Civil Statutes (Development Corporation Act of 1979), now codified as Subtitle 01, Title 12, Texas Local Government Code ( "the Act "), empowered local communities with the ability to adopt an optional local sales and use tax as a means of improving the economic health and prosperity of their citizens; WHEREAS, on November 5, 2002, residents of the City passed Proposition 2, New and Expanded Business Enterprises, which authorized the adoption of a sales and use tax for the promotion and development of new and expanded business enterprises at the rate of one - eighth of one percent to be imposed for 15 years; WHEREAS, the 1/8 cent sales tax authorized by passage of Proposition 2 was subsequently enacted by the City Council and filed with the State Comptroller of Texas, effective April 1, 2003, to be administered by the Type A Corporation's Board of Directors ( "Board "); WHEREAS, the Type A Corporation exists for the purposes of encouraging and assisting entities in the creation of jobs for the citizens of Corpus Christi, Texas; WHEREAS, the City Council approved the Corporation's amended Guidelines and Criteria for Granting Business Incentives on September 18, 2007, which the City Council incorporated into the City of Corpus Christi Economic Development Incentive Policies 2009 -2011 on November 17, 2009; WHEREAS, Section 501.073 of the Act requires the City Council to approve all programs and expenditures of the Type A Corporation; WHEREAS, Service Corps Of Retired Executives Chapter 221 ( "SCORE ") has submitted a proposal to the Type A Corporation for a $50,000 grant to assist small businesses in Corpus Christi; WHEREAS, the Board has determined that it is in the best interests of the citizens of Corpus Christi, Texas, to fund SCORE's assistance of small businesses in Corpus Christi; and WHEREAS, the Type A Corporation and SCORE have executed a business incentives agreement for the creation and retention of jobs related to SCORE's assistance of small businesses in Corpus Christi. In consideration of the covenants, promises, and conditions stated in this Project Service Agreement, the Type A Corporation and the City agree as follows: 1. Project Service Agreement to Implement Business Incentives Agreement. This Project Service Agreement between the City and the Type A Corporation is executed to implement the Business Incentive Agreement for the Creation of Jobs between the Type A Corporation and SCORE related to SCORE's assistance of small businesses in Corpus Christi ( "Business Incentive Agreement "). Page 1 of 3 0025_4_Type A Business Support Agreement - SCORE 2. Term. The term of this Project Service Agreement runs concurrently with the term of the Business Incentives Agreement. 3. Services to be Provided by City. a. The City Manager or designee shall administer funding on behalf of the Type A Corporation. b. The City Manager or designee shall perform contract administration responsibilities outlined in the Business Incentives Agreement for the Type A Corporation. 4. Appropriation of Funds. Any future payments by the City are subject to appropriation of funds by City Council. 5. Effective Date. The effective date of this Project Service Agreement is , 20_. 6. Amendments or Modifications. No amendments or modifications to this Project Service Agreement may be made, nor any provision waived, unless in writing signed by a person duly authorized to sign agreements on behalf of each party. 7. Severability. a. If for any reason, any section, paragraph, subdivision, clause, provision, phrase or word of this Project Service Agreement or the application of this Project Service Agreement to any person or circumstance is, to any extent, held illegal, invalid, or unenforceable under present or future law or by a final judgment of a court of competent jurisdiction, then the remainder of this Project Service Agreement, or the application of the term or provision to persons or circumstances other than those as to which it is held illegal, invalid, or unenforceable, will not be affected by the law or judgment, for it is the definite intent of the parties to this Project Service Agreement that every section, paragraph, subdivision, clause, provision, phrase, or word of this Project Service Agreement be given full force and effect for its purpose. b. To the extent that any clause or provision is held illegal, invalid, or unenforceable under present or future law effective during the term of this Project Service Agreement, then the remainder of this Project Service Agreement is not affected by the law, and in lieu of any illegal, invalid, or unenforceable clause or provision, a clause or provision, as similar in terms to the illegal, invalid, or unenforceable clause or provision as may be possible and be legal, valid, and enforceable, will be added to this Project Service Agreement automatically. 8. Captions. The captions in this Project Service Agreement are for convenience only and are not a part of this Project Service Agreement. The captions do not in any way limit or amplify the terms and provisions of this Project Service Agreement. Page 2 of 3 0025_4_Type A Business Support Agreement - SCORE The City of Corpus Christi Corpus Christi Business & Job Development Corporation Ronald L. Olson [name] City Manager President Date: Date: Attest Armando Chapa City Secretary 0025_4_Type A Business Support Agreement - SCORE Page 3 of 3 AGENDA MEMORANDUM Future Item for the City Council Meeting of August 14, 2012 Action Item for the City Council Meeting of August 21, 2012 DATE: July 26, 2012 TO: Ronald L. Olson, City Manager THROUGH: Wes Pierson, Assistant City Manager (361) 826-3082 wesp@cctexas.com FROM: Mike Culbertson (361) 882 -7448 mculbertson@ccredc.com Type A Grant for Texas A &M University — Corpus Christi Internship Program for Fiscal Year 2013 CAPTION: Resolution approving a Small Business Incentives Agreement between the Corpus Christi Business And Job Development Corporation and Texas A &M University- Corpus Christi ( "TAMU -CC ") to provide grant amount up to $190,635 for an intern program for small businesses and authorizing the City Manager, or designee, to execute a Project Support Agreement with the Corpus Christi Business and Job Development Corporation to administer the TAMU -CC Intern Program Small Business Incentives Agreement. PURPOSE: Approve a Type A Grant for TAMU -CC Internship Program for Fiscal Year 2013 BACKGROUND AND FINDINGS: TAMU -CC has a program where students can work for a local company as an intern. The local company will pay minimum wage while the Type A grant will match the wage. This encourages companies to hire interns, it allows the student to get real work experience, and has a goal to create new jobs. The Type A Board has funded this program since 2007. They are requesting $190,635 to fund 105 intern positions. ALTERNATIVES: Some local companies do offer internships but these are large companies and they recruit nationwide. This program allows local small businesses to use interns. OTHER CONSIDERATIONS: By assisting students obtain intern positions businesses can see what young talent is available in our community, while providing the students job training opportunities. CONFORMITY TO CITY POLICY: This project is consistent with the City's stated goals of promoting economic development and helping small businesses thrive in Corpus Christi. EMERGENCY / NON- EMERGENCY: NON - EMERGENCY DEPARTMENTAL CLEARANCES: FINANCIAL IMPACT: ❑ Operating ❑ Revenue ❑ Capital ❑ Not applicable Fiscal Year: 2012 -2013 Project to Date Expenditures (CIP only) Current Year Future Years TOTALS Line Item Budget 228,135 228,135 Encumbered / Expended Amount This item 190,635 190,635 BALANCE 37,500 37,500 Fund(s): Type A Fund Comments: RECOMMENDATION: Staff recommends that the City Council authorize the City Manager to enter into a one year Type A agreement LIST OF SUPPORTING DOCUMENTS: Certification of Funds Small Business Incentive Agreement Texas A &M University — Corpus Christi Intern Program Business Support Agreement Page 1 of 2 RESOLUTION Resolution approving a Small Business Incentives Agreement between the Corpus Christi Business And Job Development Corporation and Texas A &M University- Corpus Christi ( "TAM U -CC ") to provide grant amount up to $190,635 for an intern program for small businesses and authorizing the City Manager, or designee, to execute a Project Support Agreement with the Corpus Christi Business and Job Development Corporation to administer the TAMU - CC Intern Program Small Business Incentives Agreement. WHEREAS, the Corpus Christi Business and Job Development Corporation ( "Type A Corporation ") has budgeted funds to assist businesses create or retain jobs in the City of Corpus Christi, Texas ( "City "). WHEREAS, the Type A Corporation has requested proposals from businesses that will create or retain jobs within the City, and determined that the proposal from TAMU -CC for an intern program for small businesses within the City will best satisfy this goal; WHEREAS, City Council deems that it is the best interest of the City and citizens to approve the business incentives agreement for an intern program for small businesses between the Type A Corporation and TAMU -CC; WHEREAS, there is a need for a business incentive project support agreement between the City and the Type A Corporation for the implementation and administration of the business incentives agreement for an intern program for small businesses between the Type A Corporation and TAMU -CC. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF CORPUS CHRISTI, TEXAS: SECTION 1. That the business incentives agreement for the creation and retention of jobs between the Type A Corporation and TAMU -CC that provides for an intern program for small businesses within the City of Corpus Christi, which is attached to this resolution as Exhibit A, is approved. SECTION 2. That the City Manager, or designee, is authorized to execute a project support agreement between the City and Type A Corporation for the implementation and administration of the business incentives agreement with TAMU -CC, which is attached to this resolution as Exhibit B. This resolution takes effect upon City Council approval on this the day of , 2012. 0026_2_RESOLUTION TAMUCC Business Incentive Agreement 7 -11 -12 Page 2of2 ATTEST: THE CITY OF CORPUS CHRISTI Armando Chapa City Secretary Joe Adame Mayor Corpus Christi, Texas of , 2012 The above resolution was passed by the following vote: Joe Adame Chris N. Adler Larry R. Elizondo, Sr. Kelley Allen Priscilla Leal David Loeb John E. Marez Nelda Martinez Mark Scott 0026_2_RESOLUTION TAMUCC Business Incentive Agreement 7 -11 -12 SMALL BUSINESS INCENTIVES AGREEMENT BETWEEN THE CORPUS CHRISTI BUSINESS AND JOB DEVELOPMENT CORPORATION AND TEXAS A & M UNIVERSITY -- CORPUS CHRISTI FOR AN INTERN PROGRAM TO SUPPORT SMALL BUSINESSES This Small Business Incentives Agreement for ("Agreement") is entered into between the Corpus Christi Business and Job Development Corporation ("Corporation") and Texas A & M University -- Corpus Christi, a Texas institution of higher education ("TAMU-CC"). WHEREAS, the Texas Legislature in Section 4A of Article 5190.6, Vernon's Texas Revised-Civil Statutes (Development Corporation Act of 1979), now codified as Subtitle C1, Title 12, Texas Local Government Code, Section 504.002 et seq, ("the Act"), empowered local communities with the ability to adopt an optional local sales and use tax as a means of improving the economic health and prosperity of their citizens; WHEREAS, on November 5, 2002, residents of the City of Corpus Christi ("City") passed Proposition 2, New and Expanded Business Enterprises, which authorized the adoption of a sales and use tax for the promotion and development of new and expanded business enterprises at the rate of one-eighth of one percent to be imposed for 15 years; WHEREAS, the 1/8th cent sales tax authorized by passage of Proposition 2 was subsequently enacted by the City Council and filed with the State Comptroller of Texas, effective April 1, 2003, to be administered by the Corpus Christi Business and Job Development Corporation Board; WHEREAS, the Corpus Christi Business and Job Development Corporation exists for the purposes of encouraging and assisting entities in the creation of jobs for the citizens of Corpus Christi, Texas; WHEREAS, the Board of Directors of the Corporation ("Board"), on September 10, 2007, amended the Corporation's Guidelines and Criteria for Granting Business Incentives ("Type A Guidelines"), which the City Council incorporated into the City of Corpus Christi Economic Development Incentive Policies 2009-2011 on November 17, 2009; WHEREAS, Section 501.073 of The Act requires the City Council to approve all programs and expenditures of the Corporation; WHEREAS, TAMU-CC has requested business development funds from the Board to assist small businesses by providing access to students, who will serve as interns in professional level positions; WHEREAS, the small businesses will pay the student interns minimum wage (currently $7.25 per hour) and TAMU-CC will match the small business contribution. WHEREAS, the interns will be selected based on the needs of the small businesses with the goal of providing the businesses with resources that make the businesses more effective and provide growth opportunities; WHEREAS, the primary goal of the program is to provide support to small businesses in Corpus Christi that will encourage growth, retention, economic development, and job creation; Page 1 of 9 BUSINESS INCENTIVE AGREEMENT TAMUCC Interns 07 9 2012 WHEREAS, the goal of the project is the creation of 1 new full time job for every 10 internship positions funded (a 10% new job "return on investment"); WHEREAS, a secondary benefit of the small business intern program is providing students real- world experience, while they are making a living wage without working extended hours and developing potential full-time employment opportunities following graduation; In consideration of the covenants, promises, and conditions stated in this Agreement, Corporation and TAMU-CC agree as follows: 1. Effective Date. The effective date of this Agreement ("Effective Date") is the Patest date that either party executes this Agreement. 2. Term. a. The term of this Agreernent is for one year from August 10, 2012, through August 2013. b. This Agreement may be extended at the option of the Corporation for up to four additional one year terms, contingent upon annual appropriation of funds and approval of the City Council. c. If this Agreement is extended for subsequent period, this Agreement may be amended by adoption of a revised Schedule A, which is attached to and incorporated into this Agreement. 3. Grant. a. The Corporation will grant TAMU-CC an incentive of up to One Hundred Ninety Thousand Six Hundred Thirty Five Dollars ($190,635.00), which must be used to fund one half of the salary of up to a total of 105 interns during the Fall Semester of 2012, Spring Semester of 2013, and Summer Session in 2013, and the entire salary on an intern hired to help administer the program during the fall and -Spring Semesters and Summer Session. The interns will be paid twice the minimum wage, while participating in TAMU-CC's Small Business Employer Intern Program. b. The Corporation's grant conditioned upon TAMU-CC`s successful completion of the terms of this Agreement, including, but not limited to, the performance requirements and conditions precedent in-Schedule A. c. The Corporation's grant shall be paid in monthly installments based upon evidence of the amount paid by TAMU-CC to the small business employers during the prior month. 4. TAMU-CC's Duties and Responsibilities. a. TAMU-CC shall provide administrative oversight and direct supervision for the placement of interns in the TAMU-CC's Small Business Employer Intern Program. b. TAMU-CC shall create and maintain not less than one part-time intern (1) employment position to assist in the Small Business Employer Intern Program in Corpus Page 2 of 9 BUSINESS INCENTIVE AGREEMENT TAMUCC Interns 07 9 2012 Christi, Nueces County, Texas, during the term of this Agreement. The intern must be paid twice the minimum wage, which is scheduled to be $7.25 per hour. c. TAMU-CC shall place, with small businesses in Corpus Christi, up to the total number of interns specified in Schedule A, during any the academic year. (1) Since the primary goal of the TAMU-CC's Small Business Employer Intern Program is to provide support to small businesses in Corpus Christi that will encourage growth, retention, economic development, and job creation, placements must be based on the needs of the small business with the goal of providing the business with resources that make the business more effective and provide growth opportunities for the businesses. (2) For the purpose of this section a small business may include a chambers of commerce, non-profit organizations, and other entity that will use the intern to assist existing, start-up, and home based small businesses in the City; recruit new small business to the City; assist the expansion of existing small businesses in the City; help entrepreneurs create start-up businesses; or help the owners and managers of small businesses develop their businesses. d. TAMU-CC shall ensure that the small business employer of each intern pays the student intern the minimum wage, and TAMU-CC shall match the small business employer's payments to the interns. e. TAMU-CC shall try to place the interns for 20 hours per week and 12 weeks per semester or summer session. f. TAMU-CC shall work with the small businesses that receive interns under the program to encourage the creation of permanent full time jobs for the interns or similarly qualified individuals. 5. Job Creation/Training Qualification. a. In order to count as a created job under this Agreement, the job must pay wages at least as high as the wages required by Section 501.162 of the Act, which is the median wage of the occupation in the Corpus Christi MSA as determined by Texas Workforce Commission's Texas Industry Profiles report. b. In order to qualify for funds to provide job training under this Agreement, TAMU-CC agrees to create new jobs that pay wages at least as high as the wages required by Section 501.162 of the Act, which is the median wage of the occupation in the Corpus Christi MSA as determined by Texas Workforce Commission's Texas Industry Profiles report. A "job" is defined in the Type A Guidelines as a full-time employee, contractor, consultant, or leased employee who has a home address in the Corpus Christi MSA. d. TAMU-CC agrees to confirm and document to the Corporation that the minimum number of jobs created as a result of funding provided by this Agreement is maintained throughout the term by the Business. Page 3 of 9 BUSINESS INCENTIVE AGREEMENT TAMUCC Interns 07 9 2012 e. TAMU-CC agrees to provide Corporation with a sworn certificate by authorized representative of each business assisted under this Agreement certifying the number of full-time permanent employees employed by the business. f. TAMU-CC shall ensure that the Corporation is allowed reasonable access to personnel records of the businesses assisted under this Agreement. 6. Reports and Monitoring. a. TAMU-CC shall provide a report at the end of each semester or summer session certifying the status of compliance through the life of the Agreement. Documentation for jobs may be in the form of quarterly IRS 941 returns, TAMU-CC employer Quarterly Reports, or employee rosters that show the hours worked and the positions filled, and such other reports as may reasonably be required. b. TAMU-CC, during normal working hours shall allow the Corporation and its designee, City of Corpus Christi Economic Development Department, reasonable access to TAMU- CC's employment records and books, to verify employment and all other relevant records related to each of the other economic development considerations and incentives, as stated in this Agreement, but the confidentiality of the records and information must be maintained by Corporation and its designee, unless such records and information shall be required by a court order, a lawfully issued subpoena, or at the direction of the Office of the Texas Attorney General. 7. Warranties. TAMU-CC warrants and represents to Corporation the following: a. TAMU-CC is a corporation duly organized, validly existing, and in good standing under the laws of the State of Texas, has all corporate power and authority to carry on its business as presently conducted in Corpus Christi, Texas. b. TAMU-CC has the authority to enter into and perform, and will perform, the terms of this Agreement to the best of its ability. c. TAMU-CC has timely filed and will timely file all local, State, and federal tax reports and returns required by laws to be filed and all Texas, assessments, fees, and other governmental charges, including applicable ad valorem taxes, have been timely paid, and will be timely paid, during the term of this Agreement. d. TAMU-CC has received a copy of the Act, and acknowledges that the funds granted in this Agreement must be utilized solely for purposes authorized under State law and by the terms of this Agreement. e. The parties executing this Agreement on behalf of TAMU-CC are duly authorized to execute this Agreement on behalf of TAMU-CC. f. TAMU-CC does not and agrees that it will not knowingly employ an undocumented worker. If, after receiving payments under this Agreement, TAMU-CC is convicted of a violation under §U.S.C. Section 13240), TAMU-CC shall repay the payments at the rate and according to the terms as specified by City Ordinance, as amended, not later than the 120th day after the date TAMU-CC has been notified of the violation. Page 4 of 9 BUSINESS INCENTIVE AGREEMENT TAMUCC Interns 07 9 2012 8. Compliance with Laws. TAMU-CC shall observe and obey all applicable laws, ordinances, regulations, and rules of the Federal, State, county, and city governments. 9. Non-Discrimination. TAMU-CC covenants and agrees that TAMU-CC will not discriminate nor permit discrimination against any person or group of persons, with regard to employment and the provision of services at, on, or in the Facility, 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. 10. Force Majeure. If the Corporation or TAMU-CC are prevented, wholly or in part, from fulfilling its obligations under this Agreement by reason of any act of God, unavoidable accident, acts of enemies, fires, floods, governmental restraint or regulation, other causes of force majeure, or by reason of circumstances beyond its control, then the obligations of the Corporation or TAMU-CC are temporarily suspended during continuation of the force majeure. If either party's obligation is affected by any of the causes of force majeure, the party affected shall promptly notify the other party in writing, giving full particulars of the force majeure as soon as possible after the occurrence of the cause or causes relied upon. 11. Assignment. TAMU-CC may not assign all or any part of its rights, privileges, or duties under this Agreement without the prior written approval of the Corporation and City. Any attempted assignment without approval is void, and constitutes a breach of this Agreement. 12. Indemnity. TAMU-CC covenants to fully indemnify, save, and hold harmless the Corporation, the City, their respective officers, employees, and agents (Indemnitees, against all liability, damage, loss, claims demands, and actions of any kind on account of personal injuries (including, without limiting the foregoing, workers' compensation and death claims), or property loss or damage of any kind, which arise out of or are in any manner connected with, or are claimed to arise out of or be in any manner connected with TAMU-CC activities conducted under or incidental to this Agreement, including any injury, loss or damage caused by the sole or contributory negligence of any or all of the Indemnitees. TAMU-CC must, at its own expense, investigate all those claims and demands, attend to their settlement or other disposition, defend all actions based on those claims and demands with counsel satisfactory to Indemnitees, and pay all charges of attorneys and all other cost and expenses of any kind arising from the liability, damage, loss, claims, demands, or actions, 13. Events of Default by TAMU-CC. The following events constitute a default of his Agreement by TAMU-CC: a. The Corporation or City determines that any representation or warranty on behalf of TAMU-CC contained in this Agreement or in any financial statement, certificate, report, or opinion submitted to the Corporation in connection with this Agreement was incorrect or misleading in any material respect when made; b. Any judgment is assessed against TAMU-CC or any attachment or other levy against the property of TAMU-CC with respect to a claim remains unpaid, undischarged, or not dismissed for a period of 120 days. c. TAMU-CC makes an assignment for the benefit of creditors. d. TAMU-CC files a petition in bankruptcy, or is adjudicated insolvent or bankrupt. Page 5 of 9 BUSINESS I NTIVE AGREEMENT TAMUCC Interns 07 9 2012 e. If taxes owed by TAMU-CC become delinquent, and TAMU-CC fails to timely and properly follow the legal procedures for protest or contest. f. TAMU-CC changes the general character of business as conducted as of the date this Agreement is approved by the Corporation. 14. Notice of Default. Should the Corporation or City determine that TAMU-CC is in default according to the terms of this Agreement, the Corporation or City shall notify TAMU-CC in writing of the event of default and provide 60 days from the date of the notice ('Cure Period') for TAMU-CC to cure the event of default. 15. Results of Uncured Default by TAMU-CC. After exhausting good faith attempts to address any default during the cure Period, and taking into account any extenuating circumstances that might have occurred through no fault of TAMU-CC, as determined by the Board of Directors of the Corporation, the following actions must be taken for any default that remains uncured after the Cure Period. a. TAMU-CC shall immediately repay all funds paid by Corporation to them under this Agreement. b. TAMU-CC shall pay Corporation reasonable attorney fees and costs of court to collect amounts due to Corporation if not immediately repaid upon demand from the Corporation. c. Upon payment by TAMU-CC of all sums due, the Corporation arid TA U-CC shall have no further obligations to one another under this Agreement. d. Neither the City, the Corporation, nor TAMU-CC may be held liable for any consequential damages. 16. No Waiver. a. No waiver of any covenant or condition, or the breach of any covenant or condition of this Agreement, constitutes a waiver of any subsequent breach of the covenant or condition of the Agreement. b. No waiver of any covenant or condition, or the breach of any covenant or condition of this Agreement, justifies or authorizes the nonobservance on any other occasion of the covenant or condition or any other covenant or condition of this Agreement. c. Any waiver or indulgence of TAMU-CC's default may not be considered an estoppel against the Corporation. d. It is expressly understood that if at any time TAMU-CC is in default in any of its conditions or covenants of this Agreement, the failure on the part of the Corporation to promptly avail itself of the rights and remedies that the Corporation may have, will not be considered a waiver on the part of the Corporation, but Corporation may at any time avail itself of the rights or remedies or elect to terminate this Agreement on account of the default. Page 6 of 9 BUSINESS INNTIVE AGREEMENT TAMUCC Interns 07 9 2012 17. TAMU-CC specifically agrees that Corporation shall only be liable to TAMU-CC for the actual amount of the money grants to be conveyed to TAMU-CC, and shall not be liable to TAMU-CC for any actual or consequential damages, direct or indirect, interest, attomey fees, or cost of court for any act of default by Corporation under the terms of this Agreement. Payment by Corporation is strictly limited to those funds so allocated, budgeted, and collected solely during the grant term of this Agreement. Corporation shall use its best efforts to anticipate economic conditions and to budget accordingly. However, it is further understood and agreed that, should the actual total sales tax revenue collected for any one year be less than the total amount of grants to be paid to all contracting parties with Corporation for that year, then in that event, all contracting parties shall receive only their pro rata share of the available sales tax revenue for that year, less Corporation's customary and usual costs and expenses, as compared to each contracting parties' grant amount for that year, and Corporation shall not be liable to for any deficiency at that time or at any time in the future. In this event, Corporation will provide all supporting documentation, as requested. Payments to be made shall also require a written request from TAMU-CC to be accompanied by all necessary supporting documentation. 18. The parties mutually agree and understand that funding under this Agreement is subject to annual appropriations by the City Council; that each fiscal year's funding must be included in the budget for that year; and the funding is not effective until approved by the City Council. 19. Notices. a. Any required written notices shall be sent mailed, certified mail, postage prepaid, addressed as follows: TAMU-CC: Texas A & M University —Corpus Christi Attn: Interim Vice President, Division of Research, Commercialization and Outreach 6300 Ocean Drive, Unit 5843 Corpus Christi, Texas 78412-5843 Corporation: City of Corpus Christi Business and Job Development Corporati Attn.: Executive Director 1201 Leopard Street Corpus Christi, Texas 78401 b. A copy of all notices and correspondence must be sent the City at the ollowing address: City of Corpus Christi Attn.: City Manager P.O. Box 9277 Corpus Christi, Texas 78469-9277 c. Notice is effective upon deposit in the United States ma in the manner provided above. BUSINESS NCENT Page 7 of 9 IVE AGREEMENT TAMUCC hterns 07 9 2012 20. Incorporation of other documents. The Corpus Christi Business and Job Development Corporation Guidelines and Criteria for Granting Business Incentives ("Corporation Guidelines"), as amended, are incorporated into this Agreement. 21. Amendments or Modifications. No amendments or modifications to this Agreement may be made, nor any provision waived, unless in writing signed by a person duly authorized to sign Agreements on behalf of each party. 22. Relationship of Parties. In performing this Agreement, both the Corporation and TAMU-CC will act in an individual capacity, and not as agents, representatives, employees, employers, partners, joint-venturers, or associates of one 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. 23. Captions. The captions in this Agreement are for convenience only and are not a part of this Agreement. The captions do not in any way limit or amplify the terms and provisions of this Agreement. 24. Severability. a. If for any reason, any section, paragraph, subdivision, clause, provision, phrase or word of this Agreement or the application of this Agreement to any person or circumstance is, to any extent, held illegal, invalid, or unenforceable under present or future law or by a final judgment of a court of competent jurisdiction, then the remainder of this Agreement, or the application of the term or provision to persons or circumstances other than those as to which it is held illegal, invalid, or unenforceable, will not be affected by the law or judgment, for it is the definite intent of the parties to this Agreement that every section, paragraph, subdivision, clause, provision, phrase, or word of this Agreement be given full force and effect for its purpose. b. To the extent that any clause or provision is held illegal, invalid, or unenforceable under present or future law effective during the term of this Agreement, then the remainder of this Agreement is not affected by the law, and in lieu of any illegal, invalid, or unenforceable clause or provision, a clause or provision, as similar in terms to the illegal, invalid, or unenforceable clause or provision as may be possible and be legal, valid, and enforceable, will be added to this Agreement automatically. 27. Venue. Venue for any legal action related to this Agreement is in Nueces County, Texas. 28. Sole Agreement. This Agreement constitutes the sole Agreement between Corporation and TAMU-CC. Any prior Agreements, promises, negotiations, or representations, verbal or otherwise, not expressly stated in this Agreement, are of no force and effect. 29. Survival of terms of Agreement and obligations of parties. The terms of this Agreement and the obligation of the parties relating to Section 14.a and b shall survive the termination of this Agreement. Page 8 of 9 BUSINESS INCENTIVE AGREEMENT TAMUCC Interns 07 9 2012 Corpus Christi Business & Job Development Corporation By: [name] President Date: Attest: By: Armando Chapa Assistant Secretary Texas A & M Uni — Corpus Christi By: Luis . Cifuentes Inter' Vice Presiden Division of Research, Commercialization and Outreach Date: 7 THE STATE OF TEXAS COUNTY OF NUECES This instrument was acknowledged before me on , 2012, by Luis A. Cifuentes, Interim Vice President, Division of Research, Commercialization and Outreach, Texas A & M University -- o us Christ a Texas institution of higher education, on behalf of the uniyesity. Notary Public State of Texas DEANNE HUBENAK Notary Public, State of Texas Commission Expires: 05-22-2016 Notary ithout Bond Page 9 of 9 BUSINESS INCENTIVE AGREEMENT TAMUCC Interns 07 9 2012 EXHIBIT A PERFORMANCE MEASURES AND CORPORATION GRANTS Placement of not more than a total of 105 interns with small businesses in Corpus Christi during the Fall Semester of 2012, Spring Semester of 2013, and/or Summer Session of 2013, plus employment of 1 intern to assist in program administration during the Fall and Spring Semesters and Summer Session. A -- 1 BUSINESS INCENTIVE AGREEMENT TAMUCC Interns 07 9 2012 BUSINESS INCENTIVE PROJECT SERVICE AGREEMENT This Business Incentives Project Service Agreement ( "Project Service Agreement ") is entered into between the Corpus Christi Business and Job Development Corporation ( "Type A Corporation ") and the City of Corpus Christi, Texas ( "City "). WHEREAS, the Texas Legislature in Section 4A of Article 5190.6, Vernon's Texas Revised Civil Statutes (Development Corporation Act of 1979), now codified as Subtitle 01, Title 12, Texas Local Government Code ( "the Act "), empowered local communities with the ability to adopt an optional local sales and use tax as a means of improving the economic health and prosperity of their citizens; WHEREAS, on November 5, 2002, residents of the City passed Proposition 2, New and Expanded Business Enterprises, which authorized the adoption of a sales and use tax for the promotion and development of new and expanded business enterprises at the rate of one - eighth of one percent to be imposed for 15 years; WHEREAS, the 1/8 cent sales tax authorized by passage of Proposition 2 was subsequently enacted by the City Council and filed with the State Comptroller of Texas, effective April 1, 2003, to be administered by the Type A Corporation's Board of Directors ( "Board "); WHEREAS, the Type A Corporation exists for the purposes of encouraging and assisting entities in the creation of jobs for the citizens of Corpus Christi, Texas; WHEREAS, the City Council approved the Corporation's amended Guidelines and Criteria for Granting Business Incentives on September 18, 2007, which the City Council incorporated into the City of Corpus Christi Economic Development Incentive Policies 2009 -2011 on November 17, 2009; WHEREAS, Section 501.073 of the Act requires the City Council to approve all programs and expenditures of the Type A Corporation; WHEREAS, Texas A &M University — Corpus Christi ( "TAMU -CC ") has submitted a proposal to the Type A Corporation has requested business development funds from the Board to assist small businesses by providing access to students, who will serve as interns in professional level positions;; WHEREAS, the Board has determined that it is in the best interests of the citizens of Corpus Christi, Texas, to fund TAMU -CC's intern program; and WHEREAS, the Type A Corporation, TAMU -CC has executed a small business incentive agreement for an intern program to support small businesses. In consideration of the covenants, promises, and conditions stated in this Project Service Agreement, the Type A Corporation and the City agree as follows: 1. Project Service Agreement to Implement Business Incentives Agreement. This Project Service Agreement between the City and the Type A Corporation is executed to implement the Small Business Incentive Agreement between the Type A Corporation and TAMU -CC related to TAMU -CC's intern program to support small businesses in Corpus Christi ( "Business Incentive Agreement "). Page 1 of 3 0026_4_Type A Business Support Agreement - TAMU -CC Intern 2. Term. The term of this Project Service Agreement runs concurrently with the term of the Business Incentive Agreement. 3. Services to be Provided by City. a. The City Manager or designee shall administer funding on behalf of the Type A Corporation. b. The City Manager or designee shall perform contract administration responsibilities outlined in the Business Incentive Agreement for the Type A Corporation. 4. Appropriation of Funds. Any future payments by the City are subject to appropriation of funds by City Council. 5. Effective Date. The effective date of this Project Service Agreement is August 10, 2012. 6. Amendments or Modifications. No amendments or modifications to this Project Service Agreement may be made, nor any provision waived, unless in writing signed by a person duly authorized to sign agreements on behalf of each party. 7. Severability. a. If for any reason, any section, paragraph, subdivision, clause, provision, phrase or word of this Project Service Agreement or the application of this Project Service Agreement to any person or circumstance is, to any extent, held illegal, invalid, or unenforceable under present or future law or by a final judgment of a court of competent jurisdiction, then the remainder of this Project Service Agreement, or the application of the term or provision to persons or circumstances other than those as to which it is held illegal, invalid, or unenforceable, will not be affected by the law or judgment, for it is the definite intent of the parties to this Project Service Agreement that every section, paragraph, subdivision, clause, provision, phrase, or word of this Project Service Agreement be given full force and effect for its purpose. b. To the extent that any clause or provision is held illegal, invalid, or unenforceable under present or future law effective during the term of this Project Service Agreement, then the remainder of this Project Service Agreement is not affected by the law, and in lieu of any illegal, invalid, or unenforceable clause or provision, a clause or provision, as similar in terms to the illegal, invalid, or unenforceable clause or provision as may be possible and be legal, valid, and enforceable, will be added to this Project Service Agreement automatically. 8. Captions. The captions in this Project Service Agreement are for convenience only and are not a part of this Project Service Agreement. The captions do not in any way limit or amplify the terms and provisions of this Project Service Agreement. Page 2 of 3 0026_4_Type A Business Support Agreement - TAMU -CC Intern The City of Corpus Christi Corpus Christi Business & Job Development Corporation Ronald L. Olson [name] City Manager President Date: Date: Attest Armando Chapa City Secretary Page 3 of 3 0026_4_Type A Business Support Agreement - TAMU -CC Intern AGENDA MEMORANDUM Future Item for the City Council Meeting of August 14, 2012 Action Item for the City Council Meeting of August 21, 2012 DATE: August 2, 2012 TO: Ronald L. Olson, City Manager FROM: Wes Pierson, Assistant City Manager — Business Support Services WesP @cctexas.com (361) 826 -3082 Professional Services Management Agreement for Corpus Christi Museum of Science and History. CAPTION: Motion authorizing the City Manager or his designee to execute a twenty four month agreement with Corpus Christi Museum Joint Venture (CCMJV) to operate and manage the Corpus Christi Museum of Science and History (Museum). PURPOSE: The Corpus Christi Museum of Science and History has been operating under management and funding models that have proven unsustainable. City staff has developed a proposal for an alternative business model with the intention of improving the museum's current performance and serving as a new template museum management across the country. BACKGROUND AND FINDINGS: Over the last 12 years, paid Museum attendance has decreased approximately 65 %, while budget cuts have resulted in fewer resources for the museum. In an effort to improve museum performance and to create a new business model for museum management, staff recommends the transfer of museum operations through a two -year management agreement to a group called Corpus Christi Museum Joint Venture (CCMJV), a subsidiary of Durrill Properties. The goal of management agreement includes: • To create a more engaging museum experience while maintaining the museum's science and history mission; • To ensure the museum's integrity by maintaining its accreditation through the American Association of Museums and its certification as an archeological repository through the Texas Historical Commission; • To preserve public access to museum collections; • To move toward a long -term management agreement; • To modernize (redesign /remodel) the interior and exterior of the building. 1 CCMJV proposes to use their extensive business experience to improve operational efficiency and to use their expertise in event planning, promotion, enhancing food and beverage service, and fund raising to increase the museum's attendance and revenue. Additionally, with a long history of providing both civic and monetary contributions to the Corpus Christi community, the Durrill's have a philanthropic interest in seeing the museum succeed. Process Staff engaged in an extensive process to ensure that the proposed agreement would both protect the interests of the museum and allow CCMJV the flexibility necessary to operate the museum successfully. The process included the following: • The creation of a taskforce made up of representatives from each of the three museum support groups (Museum Advisory Committee, Friends of the Museum, and Museum Auxiliary) to provide input regarding the concept. All three museum support groups passed motions of support for the proposed management structure and all three groups will largely maintain their current roles in support of the museum (the lone exception being that the Museum Auxiliary will transition management of the museum gift shop to CCMJV). • Constant communication with museum employees through group meetings and an employee selected working group to ensure that employees were informed of the progress being made regarding the concept and how they might be impacted through a transition from City to private management. • The formation of a City negotiating team made up of representatives from the City Manager's Office, Museum, Legal, Human Resources, Finance, Management and Budget departments to cover any potential issues that would require consideration under a new management agreement. • Staff used the previously agreed to Memorandum of Understanding (MOU) as the foundation of the proposed management model and worked diligently to ensure that every major point from the MOU was appropriately addressed in the new management agreement • The City has engaged Strategic Government Resources (an Executive Search Firm) to conduct a national search for a new Museum Director. The search is currently underway with a new director projected to be start work in October of 2012. Timeline The timeline for this proposed management agreement is a period of 24 months starting September 1, 2012 and running until August 31, 2014. During the two -year timeframe CCMJV will be required to provide to the City performance reports on a monthly and quarterly basis. Important milestones of the agreement include the following: • Selection and hiring of a new Museum Director (1St Quarter of the Agreement) • Employee Transition [See Museum Personnel section below] (six months after the effective date of the agreement) • Submission of a long -term business plan by CCMJV (18 months after effective date of the agreement). The long -term business plan will serve as a guide to make one of three decisions: 1) enter into a long -term extension; 2) enter into a short -term extension; or 3) terminate the agreement upon its expiration date. The final six months of the agreement will allow for implantation of whatever decision is agreed to. 2 Deal Points The key deal points in this agreement are as follows: • The City shall retain ownership of all museum land, buildings & collections (Recitals). • The City shall provide a flat budget (relative to Fiscal Year 2012) for Fiscal Years 2013 & 2014 (Article 5.3). • CCMJV shall maintain the museum's mission, certification, & accreditation (Articles 5.1, 5.2, 7.1). • CCMJV shall maintain citizen support & oversight of museum (Articles 20.1, 22.4). • CCMJV shall preserve public access to museum collections (Article 5.2). • A revenue sharing arrangement provides incentives for both facility improvements and improved financial performance. A diagram of the revenue sharing model is attached to this agenda item. (Articles 25, 26). Facility Improvements — Articles 10, 13, 14 & 25 The management agreement provides for a mechanism that encourages investment in the improvement of the museum facilities. The following is the process for handling proposed facility improvements: 1) CCMJV will submit a Facility Improvement Plan (FIP) shortly after execution of the management agreement. The Facility Improvement Plan sets the threshold for facility improvement reimbursements. (Article 13.2, 25). 2) The FIP is presented to Museum Advisory Board, who then provides a recommendation to the City Manager [or designee] (Article 13.3). 3) The City Manager (or designee) approves or disapproves the FIP (Article 13.1, 13.3). 4) If the FIP is approved, the first phase of implementation begins (Article 13.3) 5) The CCMJV General Manager and Museum Director will develop timeline for phased construction to mitigate disruption of operations (Article 13.3). 6) Once completed, improvements are accepted by City Manager (or designee). If improvements are not accepted, corrections will be made to make improvements acceptable (Article 13.3). 7) Per the management agreement, CCMJV can be reimbursed up to the amount approved in the FIP contingent upon generating revenue that exceeds the benchmark for covering annual operating expenses (Article 13.3, 25.1). 8) Any amount not reimbursed in the current fiscal year may be rolled over to the following fiscal year for reimbursement (Article 25.1). 9) Any amount not reimbursed at the end of the agreement due to revenues failing to exceed the revenue benchmarks identified in the management agreement will not be reimbursed unless otherwise agreed to as part of an extension of the agreement (Article 25.4). 10) Any increase in the costs of operations, programming, and maintenance as a result of new facilities and exhibits will be the responsibility of CCMJV (Article 10) 3 Museum Personnel - Articles 18, 19, 20 & 21 • Museum Staff will remain employees of the City for the first 6 months. During this period staff will decide if they would like to remain with the City or transition to CCMJV employment; CCMJV will evaluate staff performance to determine which employees they would like to retain (Article 18). • At the end of the 6 month period, museum staff may elect to: 1) transition to CCMJV employment; 2) be placed in an existing vacancy within the City per the City's Reduction in Force Policy; or 3) seek other employment opportunities independent of either the CCMJV or the City (Article 18.1). • A detailed Employee Transition Plan will be presented for Council approval by August 31, 2012; this plan will govern how the transition will take place (Article 18.4). • CCMJV is required to maintain 8 positions which shall be staffed by museum professionals. These positions include: Museum Director, Collection Manager, Registrar, Librarian, Educator, Education Assistant, Science Exhibit Project Manager and History Exhibit Project Manager (Article 21.1). • Professional staffing positions can only be modified by the Museum Director with approval of the City Manager (Article 21.2). ALTERNATIVES: 1) One alternative is to maintain the museum's existing management and funding models. However, this is not recommended because the status quo is not the highest and best use of City resources nor is it sustainable in the long run. OTHER CONSIDERATIONS: Not applicable. CONFORMITY TO CITY POLICY: This management agreement conforms to the guidelines that govern the use of professional services agreements. The management agreement also maintains the mission of the Corpus Christi Museum of Science and History. EMERGENCY / NON-EMERGENCY: Not applicable. DEPARTMENTAL CLEARANCES: Museum Museum Advisory Committee Friends of the Museum 4 FINANCIAL IMPACT: ® Operating ❑ Revenue ❑ Capital ❑ Not applicable Fiscal Year: 2012 -2013 Project to Date Expenditures (CIP only) Current Year Future Years TOTALS Line Item Budget 1,450,304 1,450,304 Encumbered / Expended Amount This item 1,450,304 1,450,304 BALANCE 0 0 Fund(s): General Fund - Museum Comments: The line item budget for museum operations for fiscal years 2013 and 2014 will be maintained at the approved fiscal year 2012 level. The management agreement requires CCMJV to cover over $1.2 million dollars in operational expenses. The remaining expense is associated with the City's self- insurance obligations to cover City property and will be the responsibility of the City. RECOMMENDATION: Staff recommends entering into a management agreement with Corpus Christi Museum Joint Ventures for 24 months. LIST OF SUPPORTING DOCUMENTS: Contract Exhibit — Museum Management Agreement Cash Flow Diagram 5 PROFESSIONAL SERVICE MANAGEMENT AGREEMENT FOR THE CORPUS CHRISTI MUSEUM OF SCIENCE AND HISTORY BETWEEN CITY OF CORPUS CHRISTI AND CORPUS CHRISTI MUSEUM JOINT VENTURE 1 ARTICLE 1 DEFINITIONS "Advisory Board" 14 "Affiliate" 14 "Annual Report" 14 "AAM" 14 "Auxiliary" 14 "Business Day" 14 "Capital Campaign" 14 "Code" 14 "City" 14 "City Council" 15 "City Documents" 15 "City Employees" 15 "Collection Committee" 15 "Collection Fund" 15 "Depository" 15 "Effective Date" 15 "Emergency Expenditure" 15 "Employee Transition Plan" 15 "Facility Improvement Expenditures" 15 "First - Class" 15 "Fiscal Year" 16 "Friends of the Museum" 16 "General Manager" 16 "Gross Revenue" 16 "Gross Revenue Benchmark" 16 "Gross Revenue Deficiency" 16 "Internal Strategic Objectives" 16 "Long -Range Plan" 17 "Management Fees" 17 "Museum" 17 2 "Museum Collection" 17 "Museum Collection Manager" 17 "Museum Department" 17 "Museum Director" 17 "Museum's Mission" 17 "Museum Purposes" 17 "Operating Expenses" 17 "Operations Manual" 18 "Operating Support Payment" 18 "Outside Caterers" 18 "Outside Catering Agreement 18 "Parking Lots" 18 "Personal Property Expenditures" 18 "Preexisting Condition" 18 "Premises" 19 "Property" 19 "Routine Repair and Maintenance" 19 "Transferred Employees" 19 "THC" 19 ARTICLE 2 INTRODUCTION 2.1 Term 19 2.2 Option to Extend Terms 19 2.3 Grant of Authority. 19 2.4 Nature of Relationship. 19 2.5 Contract Administrator 19 ARTICLE 3 MANAGEMENT AND OPERATION OF PREMISES AND PERSONAL PROPERTY 3.1 Premises 20 3.2 Personal Property. 20 (a) Vehicle and Forklift Assigned to Museum 20 3.3 Use of the Premises 20 (a) Required Use. 20 3 (b) Prohibited Use. 20 (c) No Illegal Uses or Nuisances. 20 3.4 Parking Lot Use 21 3.5 Occupancy Hours 21 ARTICLE 4 EXISTING THIRD -PARTY AGREEMENTS 4.1 Existing Third -Party Agreements 21 ARTICLE 5 OPERATIONS 5.1 CCMJV Responsibility. 21 5.2 Museum Mission 22 (a) Internal Strategic Objectives. 22 5.3 City Operations Support Payments. 22 (a) Operations Account 22 (b) Operation Support Payment 23 (c) Advancing of Funds for Operation Support. 23 (d) Modification of Operating Support Payment due to Wage Increase. 23 (e) Modification of Operational Support Payment due to Savings 23 (f) Over Budgeted Expenses 24 (g) Unbudgeted and Under Budgeted Expenses 24 5.4 City Paid Expenses 24 (a) City Employee Salaries and Wages 24 (b) City Provided Services. 24 (1) Municipal Information Systems Services 24 (2) Building Maintenance Service. 24,. (3) Fleet Services. 24 (c) Electricity. 25 (1) Conditions Affecting Electricity Usage 25 (2) McKinstry Essention Inc Notification 25 5.5 City Procurements 25 (a) Computers Procurement. 25 (b) Multifunction Copier Procurement 25 (c) Dumpster Service Procurement. 25 4 (d) Elevator Maintenance Procurement 25 5.6 Museum Accounts. 26 5.7 Consolidated Bill. 26 5.8 Water, Gas, and Waste Water. 26 5.9 Proportionate Year. 26 ARTICLE 6 LONG -RANGE PLAN 6.1 Long -Range Plan. 26 ARTICLE 7 ACCREDITATION, CERTIFICATION, LICENSING, AND PERMITS 7.1 Required Accreditation and Certification. 26 7.2 Licenses and Permits 26 7.3 City Representations. 27 ARTICLE 8 MUSEUM COLLECTION MANAGEMENT 8.1 Collection Inventory. 27 8.2 Collection Management Policy. 27 8.3 Deaccession of Collection 27 8.4 Deaccessioned Objects. 27 (a) Disposal by Sale. 28 (b) Disposal by Exchange or Donation 28 (c) Disposal by Transfer. 28 (d) Donor Notification. 28 8.5 Acquisitions, Loans, and Destructive Analysis of Collections. 29 ARTICLE 9 TECHNICAL APPEAL PROCESS 9.1 Technical Appeal Process. 29 ARTICLE 10 NEW FACILITIES OPERATING AND MAINTENANCE COSTS 10.1 New Facilities Operating and Maintenance Costs 29 ARTICLE 11 ADMISSIONS 11.1 Admissions 29 5 11.2 Access. 30 11.3 Admissions Tax. 30 ARTICLE 12 PURCHASES OF SUPPLIES AND SERVICES 12.1 Purchase of Supplies and Services 30 12.2 Contacting Historically Underutilized Businesses 30 12.3 Expenditures in Excess of Ten Thousand Dollars ($10,000) 31 12.4 CCMJV Municipality Status 31 ARTICLE 13 FACILITY IMPROVEMENTS AND ALTERATIONS 13.1 Facility Improvements and Alterations 31 13.2 Facility Improvement Plan 31 13.3 Facility Improvements Approval Process. 31 13.4 Approved Facility Improvements and Alterations 32 13.5 Title to Improvements 32 13.6 CCMJV's Personal Property . 32 ARTICLE 14 ENGINEERING, STRUCTURAL AND LAYOUT STUDIES 14.1 Structural Engineering Report. 32 14.2 Studies 33 ARTICLE 15 ADVERTISING 15.1 Museum Advertisement. 33 15.2 Advertisement Reimbursement 33 ARTICLE 16 NAMING RIGHTS 16.1 Museum Name. 33 16.2. Donation Acknowledgement. 33 ARTICLE 17 MAINTENANCE 17.1 General Maintenance 33 17.2 Random Inspection. 34 17.3 In -Kind Maintenance. 34 6 17.4 Contractor Insurance 34 ARTICLE 18 STAFFING AND EMPLOYEES 18.1 Generally 34 18.2 CCMJV Supervision of Employees. 34 18.3 Employees 35 18.4 Employee Transition Plan 35 18.5 Payroll and Taxation 35 (a) City Payroll Until Transition 35 (b) CCMJV Payroll After Transition. 35 ARTICLE 19 GOVERNANANCE 19.1 Governance. 35 ARTICLE 20 ROLES 20.1 Advisory Board 36 20.2 General Manager 36 20.3 Museum Director. 36 20.4 Museum Collection Manager 36 20.5 Museum Registrar 36 20.6 Museum Librarian 36 20.7 Museum Educator (Head Curator) 37 20.8 Museum Education Assistant 37 20.9 Science Exhibit Project Manager 37 20.10 History Exhibit Project Manager. 37 ARTICLE 21 PROFESSIONAL STAFF 21.1 Minimum Professional Staff. 38 21.2 Modification of Minimum Professional Staff 38 21.3 Minimum Qualification and Experience for Professional Staff 38 (a) Museum Director's Minimum Qualifications. 38 (b) Museum Collection Manager Minimum Qualifications 38 (c) Museum Registrar Minimum Qualifications 38 7 (d) Museum Librarian Minimum Qualifications 38 (e) Museum Educator Minimum Qualifications. 39 (f) Museum Educator Assistant Minimum Qualifications. 39 (g) Science Exhibit Project Manager Minimum Qualifications 39 (h) History Exhibit Project Manager Minimum Qualifications. 39 21.4 Waiver of Minimum Qualifications 39 ARTICLE 22 FISCAL MATTERS 22.1 Capital Campaign. 39 22.2 Miscellaneous Fees and Prices 39 22.3 Franchises or Concessions. 40 22.4 Solicitation of Private and Public Funding. 40 22.5 Grant Funding. 40 ARTICLE 23 PROHIBITED TRANSACTIONS AND BENEFITS 23.1 Benefits to Organizations 40 23.2 Memberships 40 23.3 Benefits to Individuals. 40 ARTICLE 24 REVENUE 24.1 Revenue Account 41 24.2 Revenue Withdrawals. 41 24.3 General Fund Revenue 41 24.4 Gross Revenue Deficiency 41 24.5 Proportionate Year 41 ARTICLE 25 FACILITY IMPROVEMENT REIMBURSEMENT 25.1 Excess Revenue. 42 25.2 No Excess Revenue. 42 25.3 Long Term Plan 42 25.4 Unreimbursed Facility Improvement Expenditures 42 8 ARTICLE 26 MANAGEMENT FEE 26.1 Management Fee 42 ARTICLE 27 REPORTING OBLIGATIONS 27.1 Annual Report for Financial Accounting 43 27.2 Annual Plan 43 27.3 Supplementary Reports 43 (a) Quarterly. Reports. 43 (b) Annual Report for Expenditures 43 (c) Monthly Report. 43 27.4 Annual Independent Audit. 43 27.5 Reconciliation of Accounts. 43 ARTICLE 28 BOOKS AND RECORDS 28.1 Financial Records. 44 28.2 City Audit Participation. 44 ARTICLE 29 CCMJV CODE OF ETHICS 29.1 CCMJV Code of Ethics. 44 29.2 Ethics Report 44 ARTICLE 30 INSURANCE 30.1 Liability Insurance. 44 (a) Commercial General Liability Insurance. 44 (b) Business Automobile Liability Insurance. 45 (c) Liquor Liability Insurance 45 (d) Crime and Fidelity Coverage 45 (e) Workers' Compensation and Employers' Liability. 45 30.2 Policy Rating and Primary Insurance Requirements. 45 30.3 Policy Requirements. 45 30.4 Proof of Policy 46 30.5 Request of Policy. 46 9 30.6 Commencement of Work 46 30.7 Primary Insurance. 46 30.8 Liability Insurance Modification. 47 30.9 Policy Renewal. 47 30.10 Failure to Insure 47 30.11 Property Insurance. 47 30.12 Business Interruption Insurance 47 30.13 Waiver of Subrogation. 47 30.14 Payment of Damages. 47 30.15 Report of Accident 47 30.16 Proceeds of Casualty Insurance. 48 ARTICLE 31 REPRESENTATIONS AND WARRANTIES 31.1 Representations and Warranties 48 (a) Mission 48 (b) Formation 48 (c) Authority 48 (d) Conflicts and Consents 49 (e) Conflict with Orders, etc 49 (f) Litigation 49 ARTICLE 32 FORCE MAJEURE 32.1 Force Majeure. 49 ARTICLE 33 INDEMNITY 33.1 Indemnification and Hold Harmless. 50 33.2 Relationship to Insurance Obligations 50 ARTICLE 34 DEFAULT; TERMINATION OF AGREEMENT; REMEDIES 34.1 Termination by City 50 34.2 Termination by CCMJV. 51 10 ARTICLE 35 SURRENDER OF PREMISES 35.1 Surrender of Premises; Transition. 51 ARTICLE 36 HAZARDOUS MATERIALS 36.1 Definitions. 52 (a) "Environmental Laws" 52 (b) "Hazardous Material" 52 (c) "Release" 52 36.2 No Hazardous Materials. 52 36.3 CCMJV's Environmental Indemnity 53 ARTICLE 37 AS SIGNMENTS; SUBCONTRACTING 37.1 Assignments; Subcontracting 53 ARTICLE 38 NOTICES 38.1 Notices. 53 ARTICLE 39 COMPLIANCE WITH LAWS 39.1 Generally 54 39.2 Preexisting Conditions. 54 39.3 Americans with Disabilities Act. 54 39.4 Non - Discrimination Ordinances. 55 ARTICLE 40 TAXES, ASSESSMENTS, LICENSES, PERMIT FEES, AND LIENS 40.1 Taxes, Assessments, Licenses, Permit Fees, and Liens. 55 40.2 Sales Tax 55 40.3 Unpaid taxes. 55 ARTICLE 41 MISCELLANEOUS 41.1 Liability of the City 55 41.2 Liability of CCMJV. 56 41.3 Liens. 56 11 41.4 Parties and Their Agents. 56 41.5 Dispute Resolution 56 41.6 No Implied Waiver. 56 41.7 Headings and Subheadings. 57 41.8 Successors and Assigns. 57 41.9 Access to Museum. 57 41.10 Relationship of Parties. 57 41.11 Agreement Made in Texas. 57 41.12 Integrated Agreement; Modification 57 41.13 Counterparts 57 41.14 Exhibits. 57 41.15 Non - Liability of Officials, Employees, and Agents. 57 41.16 Time of Essence 58 41.17 Survival of Indemnities 58 41.18 Good Faith Dealings. 58 41.19 Severability 58 EXHIBITS Exhibit A - Museum Premises Exhibit B - Museum Parking Lot Diagram Exhibit C - Current Accreditation and Certification Exhibit D - Licenses and Permits Exhibit E - Collection Management Policy Exhibit F - Museum Deaccession Process Exhibit G - Technical Appeal Process Exhibit H - Admission Fees Exhibit I - Capital Improvement Process Exhibit J - Governance Exhibit K - City Wide Insurance Policy Coverage Exhibit L - Museum Value for City Insurance Policy Coverage Exhibit M — Facility Use Policy Exhibit N — Energy Cost Savings Guarantee 12 CORPUS CHRISTI MUSEUM OF SCIENCE AND HISTORY PROFESSIONAL SERVICE MANAGEMENT AGREEMENT This Corpus Christi Museum of Science and History Professional Service Management Agreement (the "Agreement ") is entered into as of the day of 2012,between the CITY OF CORPUS CHRISTI, a Texas home rule municipal corporation (the "City ") and Corpus Christi Museum Joint Venture, LLC, a Texas limited liability company ( "CCMJV "). RECITALS I. The City, acting through its duly authorized City Manager ( "City Manager "), currently owns the Corpus Christi Museum of Science and History (the "Museum "), together with all facilities, machinery, attachments, appurtenance, collections, artifacts, and exhibits, located in the City of Corpus Christi. The Museum is located at 1900 N. Chaparral Street owned by City and described in greater detail in Exhibit "A ", which is attached; and II. CCMJV is an organization whose principals have substantial experience and expertise in the management, operation, and marketing of amusement services; and III. The Corpus Christi Museum of Science and History Advisory Board, as set forth in the Board minutes of the 7th day of June, 2012, approved a recommendation to the City Council supporting a process that results in a 24 month private /public partnership to operate the Museum with the following stipulations: - Mission of the Museum will be sustained - City retains ownership of Museum land, facilities, and structures - City retains ownership of Museum collections which must remain accessible to the public - City holds the 2012 budget flat for 24 months to support the Museum - City annually budgets HOT tax funding to support Museum advertising - The Museum must be operated in a manner that sustains accreditation by the American Association of Museums and certification as an archeological repository by the Texas Historical Commission; and VI. It is the City's intention that the Museum be operated in a First -Class and fiscally responsible manner with the objectives of creating a modern edutainment Museum that will appeal to both children and adults while maintaining the established history and science mission of the Museum, as well as the certification and accreditation; minimizing financial operating requirements required from public funds; and, in general, maximizing the utilization of the Museum for the benefit of the City, while minimizing, to the extent practical, the net cost to the City. NOW, THEREFORE, in consideration of the mutual promises and undertakings set forth and for other good and valuable consideration, the receipt and sufficiency of which are acknowledged, the parties agree as follows: 13 AGREEMENT ARTICLE 1 DEFINITIONS As used in this Agreement, the following terms shall have the following meanings: "Advisory Board" shall mean the Corpus Christi Museum of Science and History Advisory Board assembled under the authority of City Ordinance 2 -90. The Advisory Board is assembled to serve as an advisor to the Museum department and to the City Council in matters of support and development of the Museum. The board may adopt comprehensive policies relating to the management of collections, acquisitions for the collections, disposition and the deacquisition of objects in and for the collection, and use of Museum facilities. "Affiliate" shall mean with respect to any corporation, partnership or other entity, any other such entity which is and at all times remains Controlled (as hereinafter defined) by, under common Control with or which Controls the first such entity, and (ii) "Control" means direct or indirect ownership of not less than 10% of all the voting stock of a corporation or not less than 10% of the legal and equitable interest in a partnership or other entity or the ability to direct management, operations or policy decisions of such corporation, partnership or other entity. "Annual Report" shall mean the annual report prepared by CCMJV setting forth a summary of the operations of the Museum and the services provided by CCMJV for the preceding year, along with information regarding plans for the upcoming report year, as further described in 27.1 below. "AAM" shall mean the American Association of Museums or its successor as the nationally recognized agency for accrediting Museums. "Auxiliary" shall mean the Auxiliary of Corpus Christi Museum, an incorporated non - profit organization that is organized to assist the Director of Museum and Professional Staff in carrying out the functions of the institution. "Business Day" shall mean any day on which banks in the State of Texas are open for business, excluding Saturdays and Sundays. "Capital Campaign" shall mean an intensive fund raising effort designed to raise a specified sum of money within a defined time period for facility improvement to the Museum. These facility improvements can include the construction of new buildings, renovation or enlargement of existing buildings, purchase or improvement of land, acquisition of furnishings or equipment, and additions to endowment. "Code" shall mean the City of Corpus Christi Municipal Code, as it may be amended from time to time. "City" shall mean the City of Corpus Christi, Texas and all of its boards, commissions, departments, agencies and other subdivisions. 14 "City Council" shall mean the City Council of the City of Corpus Christi, Texas. "City Documents" shall mean City- created records and City -owned records pertaining to operation and management of the Museum that, on the Effective Date of this Agreement are in the City's custody. "City Employees" shall mean those persons who are and continue to be regularly employed in a part-time or a full -time job by the City in positions authorized in the "Corpus Christi Museum of Science and History" Program in the applicable, current City of Corpus Christi adopted budget. "City Manager" shall mean the City Manager of the City of Corpus Christi or the City Manager's designee. "Collection Committee" shall mean the committee responsible for accession and deaccesion of Museum Collections. The Collection Committee is made up of the Museum Collection Manager, Museum Librarian, Museum Registrar and the Museum Director, or as modified by Article 8 and Article 21 of this Agreement. "Collection Fund" shall mean an account which funds are only available for the purchase of Museum Collection objects. "Depository" shall mean the place agreed to by the City and CCMJV, in which the bank accounts for the funds required to be maintained under this Agreement are to be deposited. "Effective Date" shall mean September 1, 2012, or whatever later dates the City Manager and CCMJV agree to but in no event later than the date of last signature. "Emergency Expenditure" shall mean any expenditure to the extent not included within an approved budget and not expected by CCMJV to be incurred but which is necessary to correct any condition that poses an imminent threat to public safety or material damage to the Museum. "Employee Transition Plan" shall mean the plan adopted by the parties pursuant to Article 18 of this Agreement. City and CCMJV acknowledge and agree that cost savings with respect to the continued First -Class operations of the Museum can occur as a result of the Employee Transition Plan. "Facility Improvement Expenditures" shall mean all City Manager approved expenditures for building additions, alterations, renovations, repairs or improvements, and for purchases of permanent fixtures, machinery or equipment. "First - Class" shall mean quality of the best; the finest; the highest class, grade, or rank; and highest distinction with respect to the operation, management, marketing, and promotion of the Museum, including but not limited to: professional promotion and marketing efforts; service - oriented guest and tenant services; premium food and beverage services; timely repairs, 15 maintenance, and cleaning of building, equipment, and grounds; positive, safe and secure Museum for patrons and employees. "Fiscal Year" shall mean a 12 -month period beginning on August 1 of each calendar year and ending on July 31 of the following calendar year. The City may change its Fiscal Year in which case the city must notify CCMJV of the change in writing at least 120 days before the end of the Fiscal Year in which the change will occur and the definition of Fiscal Year in this Agreement shall automatically change to reflect the new definition of the City's Fiscal Year. "Friends of the Museum" shall mean the Friends of the Corpus Christi Museum, an incorporated non - profit profit organization that is organized to support and aid the Corpus Christi Museum of Science and History. "General Manager" shall mean the manager of the Museum employed by CCMJV to manage the Museum's finances, marketing and revenue generating operations. "Gross Revenue" shall mean all revenues excluding sales tax, from whatever source, received by CCMJV or the City from or in respect of the operation of the Museum and from any income generating activity associated with the Museum, including but not limited to the following: a) All revenues received from admission fees, concessions, rental events, and fees and charges for all other goods and services provided to the public at the Museum; b) membership fees received by CCMJV; c) all revenue from vending machines and the selling price of all merchandise sold in, on, about or from the Museum in the ordinary course of business; provided, however, that, with respect to revenue and sales of merchandise by vending machines not owned by or leased to CCMJV, only the amount paid to CCMJV on account of such sales shall be included; and d) all other charges of any character made by CCMJV for the rendering of any service or goods or work of any kind conducted in, on, about or from the Museum. Except for "basic" membership fees, as set forth in subsection (b) above, "Gross Revenue" shall not include contributions, donations, pledges, or other gifts made by third parties to the Museum or CCMJV that are not derived directly from the services provided by CCMJV related to the Museum. "Gross revenue" shall not include funds received by CCMJV from the City including Operational Support Payments. "Gross Revenue Benchmark" shall mean the projected Gross Revenue for the 2013 Fiscal Year and the 2014 Fiscal Year. The Gross Revenue Benchmark is $318,295 for the 2013 Fiscal Year. The Gross Revenue Benchmark is $347,231 for the 2014 Fiscal Year. "Gross Revenue Deficiency" shall mean the difference between the Gross Revenue Benchmark and the Gross Revenue in a Fiscal Year in which Gross Revenue does not exceed the Gross Revenue Benchmark. "Internal Strategic Objectives" shall mean the thoughtfully constructed plan employed to achieve the Museum's Mission. 16 "Long -Range Plan" shall mean a Long -Range Plan for multi -year operation of the Museum, including the Museum's Mission, vision, goals, and objectives. The Long -Range Plan is obligated to address maintaining the Museum's accreditations and certifications. The Long - Range plan should integrate financial plans, development plans, interpretive plans, and collections plans. "Management Fees" shall mean those fees payable to CCMJV under Article 26 in consideration for management services provided. "Museum" shall mean the Museum of Science and History and related facilities operated on the Premises, which is the subject of this Agreement. "Museum Collection" shall mean objects that form the core of the Museums activities for exhibitions, education, research, etc. All objects in the Museum Collection are included in the Museum Inventory referenced in Article 8. "Museum Collection Manager" shall mean the Museum employee responsible for supervising all aspects of collection care and collection inventories including managing acquisitions, accessions, and standardization of the collection catalogue. "Museum Department" shall mean City's Department of Museum. "Museum Director" shall mean the director of the Museum, being a museum professional, maintains the mission of the Museum, as well as the certification and accreditation. "Museum's Mission" is defined in Article 5.2. "Museum Purposes" shall mean all purposes related to Museum operations and development either on the Premises or elsewhere, including but not limited to charitable, scientific, educational, archeology programs, activities, events, grounds, gardens, parks, exhibits, and research. "Operating Expenses" shall mean all operating and maintenance expenses incurred by CCMJV in the operation of the Museum, including without limitation the following: a) salaries, payroll taxes, and other payroll expenses; b) charges for utility services; c) expenses for repair and maintenance of equipment and furnishings; d) expenses for maintenance and repair and for cleaning of the Museum, including but not limited to expenses related to vandalism or other damage to gates, equipment, supplies, or the Museum Premises or Property; e) the cost of supplies, equipment, and animals; f) the cost attributable to noncapital replacement of equipment and animals; g) license and permit fees; 17 h) the cost of insurance attributable to insuring the Property and insuring CCMJV against liability relating to the management and operation of the Museum; i) the cost of Workers' Compensation Insurance for employees of CCMJV; j) deductible amounts required and actually spent under any insurance policies; k) amounts paid by CCMJV in reasonable settlement of claims against CCMJV that are not paid by insurance carriers; 1) maintenance and repair of grounds, gardens, and adjacent parks and landscape areas; and m) any other expense approved by the City Manager. "Operations Manual" shall mean a document developed by CCMJV which contains terms regarding the management and operation of the Museum, including detailed policies and procedures to be implemented in operating the Museum, as agreed upon by both the City and CCMJV. The parties acknowledge that to the extent that such manual contains any proprietary information of CCMJV (e.g., CCMJV -wide (not Museum - specific) operating policies, procedures and/or software); such information shall remain the property of CCMJV and shall not be kept at the Museum after the expiration or termination of this Agreement. "Operating Support Payment" shall mean all funding to be provided by the City to CCMJV pursuant to Article 5 of this Agreement in consideration for operation support provided to the Museum by CCMJV. "Outside Caterers" shall mean any caterer entering into an Outside Catering Agreement to provide catering services at the Museum for a single event. CCMJV will establish minimum commissions and /or fees, insurance and security deposits required in order for an Outside Caterer to operate at the Museum. Outside Caterer will pay CCMJV immediately following their catering event based on the Outside Catering Agreement with that Outside Caterer and CCMJV. "Outside Catering Agreement" shall mean the written agreement between CCMJV and an Outside Caterer for a single event to be held at the Museum. "Parking Lots" shall mean any and all existing and future parking facilities that serve the Museum as shown in Exhibit "B" which the parties may amend from time to time. "Personal Property" shall mean the personal property described in Article 3.2 below. "Personal Property Expenditures" shall mean all expenditures for additional or replacement furniture, fixtures, machinery or equipment which are not a permanent fixture to the Museum. "Preexisting Condition" shall mean any condition of disrepair, structural weakness, latent defect or other fault of any part of the Property, or any noncompliance of any part of the Property with any applicable local, state or federal law, that existed on or before the Effective Date of this Agreement, except that such condition or noncompliance is not a pre- existing condition if either party knew of its existence on or before the Effective Date of this Agreement. 18 "Premises" shall mean the real property and improvements described in Article 3 below. "Property" shall mean the Premises and the Personal Property, collectively. "Routine Repair and Maintenance" shall mean all ordinary maintenance and repair of the Museum facilities and equipment, and replacement of supplies that are normally performed on a day -to -day, periodic, or routine basis in order to keep such facilities and equipment in a good, clean, efficient, and safe condition. "Routine Repair and Maintenance" shall include such minor improvements to the grounds, gardens, adjacent parks and landscaped area, the buildings, structures, equipment, and facilities of the Museum as are necessary in the reasonable discretion of CCMJV to improve appearance and management. "Transferred Employees" shall mean those persons who elect Museum - related employment with CCMJV pursuant to the Employee Transition Plan. "THC" shall mean the Texas Historical Commission or its successor as the state agency for historic preservation. ARTICLE 2 INTRODUCTION 2.1 Term. The term of this Agreement (the "Term ") begins on September 1, 2012 (the "Effective Date "), and ends on August 31, 2014 (the "Termination Date "), unless sooner terminated as provided in this Agreement. 2.2 Option to Extend Terms. The Term of this Agreement may be extended as may be mutually agreed to by CCMJV and the City, but not less than five (5) years beyond the Termination Date. 2.3 Grant of Authority. To enable CCMJV to perform its obligations under this Agreement, the City hereby grants to CCMJV, and CCMJV hereby accepts, the exclusive right and obligation subject to the provisions of this Agreement, in its own name, as an independent contractor and not as an agent of the City, to manage and operate the Museum. 2.4 Nature of Relationship. The parties agree that the only relationship created by this Agreement is that between the City, as owner, and CCMJV, as an independent contractor, for management and operating services and that CCMJV is an independent contractor, not an agent, employee, joint venturer or partner of the City. 2.5 Contract Administrator. Each party must appoint a Contract Administrator who shall monitor such party's compliance with the terms of this Agreement. CCMJV's Contract Administrator shall be its General Manager at the Museum, unless CCMJV notifies City of a substitute Contract Administrator in writing. City Manager shall notify CCMJV of the name of its Contract Administrator within thirty (30) days of execution hereof. Any and all references in this Agreement requiring CCMJV or City participation or approval shall mean the participation or approval of such party's Contract Administrator. 19 ARTICLE 3 MANAGEMENT AND OPERATION OF PREMISES AND PERSONAL PROPERTY 3.1 Premises. Subject to the terms, covenants, and conditions set forth in this Agreement, CCMJV shall exclusively manage and operate the Museum, comprising (a) Museum and all facilities as described in Exhibit A ( "Current Museum Premises "), and (b) the parking lot as described in Exhibit B. Together the Current Museum Premises and the parking lot shall be referred to collectively in this Agreement as the "Premises." 3.2 Personal Property. Subject to the terms, covenants, and conditions set forth in this Agreement, the City agrees to provide, at no cost to CCMJV, use of personal property located at the Museum necessary to the operation and maintenance of the Museum other than City Documents, the City vehicle, and forklift. CCMJV shall maintain all such Personal Property in good condition and repair, subject to Preexisting Conditions, and shall replace with items of good quality any of the Personal Property that becomes inoperable or unusable if such item is necessary for the operation of the Museum in CCMJV's reasonable discretion. The City will provide CCMJV with a video inventory of the Personal Property located at the Museum. Transferred Personal Property shall remain property of the City. (a) Vehicle and Forklift Assigned to Museum. The Vehicle and Forklift Assigned to the Museum shall not be transferred to CCMJV. Such vehicle and forklift shall remain at the Museum until the end of the Employee Transition Period. The vehicle and forklift shall only be used by qualified City Employees. City employees shall only use the vehicle and forklift for the performance of Museum or City duties. At the end of the Employee Transition Period, the City shall remove the vehicle and forklift from the Museum. 3.3 Use of the Premises. (a) Required Use. CCMJV shall use and continuously occupy the Property during the Term of this Agreement for the operation of a public museum and related and incidental purposes and programs, including but not limited to conservation, education, enterprise operations, and visitor services, in accordance with this Agreement, the Museum's Mission and the Long -Range Plan. Notwithstanding the above, the parties intend that the Museum can also be used as an event space for catered groups, weddings, business meetings, and similar high margin events. (b) Prohibited Use. The Museum may not be used in any way prohibited by policy adopted by Advisory Board and approved by the City Manager. Current policy is shown in Exhibit M and is subject to change. Any dispute concerning prohibited use will be resolved by decision of the City Manager. (c) No Illegal Uses or Nuisances. CCMJV shall not use or occupy any of the Premises, and shall not permit the use or occupancy of it, in any unlawful manner or for any illegal purpose, and shall not permit to be carried on any activity that would constitute an actionable nuisance under the laws of the State of Texas. CCMJV shall take all 20 reasonable precautions to eliminate any nuisances or hazards relating to its activities on or about the Premises, except as to Preexisting Conditions. 3.4 Parking Lot Use. CCMJV shall share the Museum parking lots with SMG and the American Bank Center. CCMJV shall not block off or barricade the Museum parking to prevent access by SMG or American Bank Center patrons. CCMJV shall not be responsible for existing violations of the Code or any other local laws regarding the Museum Parking Lot. 3.5 Occupancy Hours. CCMJV can only occupy the Museum during the Occupancy Hours of 6:00 am to 7:00 pm. CCMJV may occupy the Museum outside the Occupancy Hours upon giving the City notice within two weeks of the planned usage. The notice shall state the date or dates and times of operation CCMJV wishes to occupy the Museum. CCMJV shall occupy the Museum for the hours provided in the notice. CCMJV may also seek to alter occupancy hours upon giving the City notice within two weeks of the planned change. The notice shall state the new Occupancy Hours. CCMJV can only occupy the Museum during the Occupancy Hours in the notice. All notices shall be in writing. All notices shall include a reminder to the City Manager that the planned usage is to be submitted to McKinstry Essention Inc. in writing within two weeks of the usage change. CCMJV will be responsible for all expenses associated with modifying Occupancy Hours including electricity. ARTICLE 4 EXISTING THIRD -PARTY AGREEMENTS 4.1 Existing Third -Party Agreements. The Parties specifically acknowledge that there are existing leases, agreements, and arrangements between the City and third parties for the Museum or between CCMJV and third parties. CCMJV shall not interfere with non - assignable existing leases, agreements, and arrangements known to CCMJV between the City and third parties without written consent from the City. The City shall assign all such assignable leases, agreements, and arrangements affecting the Museum to CCMJV and CCMJV shall have the exclusive option (if the City had such option) of renewing such leases, agreements, and arrangements that expire during the term of this Agreement and any extensions, CCMJV is released from its obligation to make payments due after the effective date of this agreement or termination date of this agreement for assumed leases. City shall give CCMJV written notice of existing leases, agreements, and arrangements. ARTICLE 5 OPERATIONS 5.1 CCMJV Responsibility. CCMJV shall manage and operate the Museum as a museum, consistent with the Museum's Mission and Long -Range Plan, with emphasis on the Museum's scientific and educational purposes and programs. Management and operation of the Museum includes selection of new inter - active displays, reconfiguration of certain exhibits for presentations to the public, redesigning of floor layouts, devising a higher and best use for outdoor events, and designing special event spaces for both indoor and outdoor use. CCMJV is responsible for Operating Expenses including electricity. 21 5.2 Museum Mission. The mission of the Corpus Christi Museum of Science and History is to present the story of the cultural crossroads of the New World. With a unique confluence of natural history, science, people and environments, the South Texas area has served as a stage for the ongoing discovery of the Americas. Through innovative programs in history, culture, and science, the Museum is committed to enlarging a shared understanding of our history and heritage as well as the impact and importance of science to our lives. By telling this story, the Museum will inspire a thirst for knowledge, context, and understanding. (a) Internal Strategic Objectives. The following strategic objectives are used to operationalize the Museum Mission: (1) Corpus Christi Museum of Science and History will build programs around three basic themes: Humans, the Environment, and Science. (i) How has human migration, cultural encounters, and interactions shaped the unique human character of South Texas and, in turn, how has South Texas influenced the world? (ii) How have environmental features and resources been linked to the human migrations, settlements, and physical exploitation of South Texas resources? (iii)What does science tell us about the unique natural world of South Texas and how can we best conserve our unique resources? (2) The Museum will collect and preserve unique specimens, artifacts, and ephemera which illuminate our three basic themes and support innovative programming. (3) To create new knowledge, Museum Collections and resources will be shared with the public and researchers. (4) The Museum will promote an open and inclusive atmosphere of learning by encouraging the use of its physical facilities for special events, meetings, and other community gatherings. (5) The Museum will commit itself to sharing knowledge with the next generation by actively promoting programming and field trip policies which encourage participation by K -16 school groups. 5.3 City Operations Support Payments. (a) Operations Account. All Operation Support Payments shall be deposited in an account maintained in the Depository in the name of the City. CCMJV shall have the authority to withdraw from the Operations Account. Any balance shall be retained in the Operations Account as for reserve for payment of future Operating Expenses. If at the termination of the Agreement there shall be a balance in the Operations Account, CCMJV shall disburse such excess to the City on or before the fifteenth (15) day of such month. 22 (b) Operation Support Payment. The City shall pay CCMJV an Operation Support Payment for consideration of CCMJV providing operating services to the Museum. Operation Support Payments are to be used only to pay Operating Expenses. After the Effective Date, the City shall transfer to CCMJV an annual operations payment (the "Operations Support") equal to $1,059,077 for the first Fiscal Year of this Agreement and $1,209,140 for the second Fiscal Year of this Agreement. The Operations Support Payment shall be paid to CCMJV in four equal quarterly installments on or before the fifteenth (15th) day of each quarterly month. Each quarterly month is August, November, February and May. The first Operational Support Payment will be made on the Effective Date of this Agreement. (c) Advancing of Funds for Operation Support. If at any time during a particular quarter, the amount of monies on deposit in the Operation Support Payment and available for that purpose shall be insufficient for the payment of Operating Expenses then due or budgeted to become due during such quarter, CCMJV may present to the City Manager a request to advance the amount of such insufficiency from the approved budgeted payment scheduled to be paid in the succeeding quarter. If the City Manager approves the request, the advancement will be made. This advanced amount will then be subtracted from the scheduled Operation Support Payment for the succeeding quarter. If the City Manager disapproves, no advancement shall be made. (d) Modification of Operating Support Payment due to Wage Increase. If the City at any point grants City Employees a raise for the 2013 Fiscal Year, CCMJV's Operational Support Payment shall be increased by a budgeted estimate of the cost of the increased City Employees Salaries and Wages for each quarter. At the end of the employee transition period, the City shall calculate actual increases to City Employees Salaries and Wages and compare to the increase in Operational Support Payment. If the actual increase to City Employees Salaries and Wages is greater than the increase in Operational Support Payment, the following quarter's Operational Support Payment shall be increased by the difference. If the actual increase to City Employees Salaries and Wages is less than the increase in Operational Support Payment, the following quarter's Operational Support Payment shall be decreased by the difference. At the end of June 2013, the City shall calculate actual increases to City Employee Salary and Wage Expense for the City Employee remaining at the Museum after the Employee Transition Plan and compare to the increase in Operational Support Payment. If the actual increase to City Employee Salary and Wage is greater than the increase in Operational Support Payment the following quarter's Operational Support Payment shall be increased by the difference. If the actual increase to City Employee Salary and Wage is less than the increase in Operational Support Payment, the following quarter's Operational Support Payment shall be decreased by the difference. (e) Modification of Operational Support Payment due to Savings. The City entered into a design/build agreement for a fixed price energy performance contract with McKinstry Essention. Inc. (McKinstry). McKinstry guarantees energy savings for the Museum found in Exhibit N. If the actual energy savings exceed the projected energy savings in the McKinstry agreement for a Fiscal Year, the second quarterly Operational Support 23 (t) (g) Payment for the following Fiscal Year will be reduced by the excess savings. If McKinstry's projected savings are not realized in a Fiscal Year, the second quarterly Operational Support Payment for the following Fiscal Year shall be increased if CCMJV was not responsible for the failure for McKinstry's projected savings being realized. The second quarterly Operational Support Payment will be increased by the amount of the excess Electricity expense caused by the failure of McKinstry's projected savings to be realized. If CCMJV was responsible for the failure for McKinstry's projected savings being realized, Operational Support Payment shall not be increased. Increased electricity costs are subject to Article 5.3 (g). Over Budgeted Expenses. The City may request CCMJV's authorization to reduce the amount of Operational Support Payment due under the terms of this Agreement for Over Budgeted Expenses. CCMJV shall have the right to approve or deny the reduction of Operational Support Payment. Unbudgeted and Under Budgeted Expenses. CCMJV shall be responsible for Unbudgeted and Under Budgeted Expenses. CCMJV may present any Unbudgeted or Under Budgeted Expense to the City Manager for additional funds. The City Manager shall have the option to approve or deny increasing Operational Support Payment for Unbudgeted or Under Budgeted Expenses. 5_4 City Paid Expenses (a) City Employee Salaries and Wages. The City shall bill CCMJV monthly for Salaries and Wages paid to City Employees working at the Museum. CCMJV shall be responsible for any raises granted to City Employees after the Effective Date of this Agreement. (b) City Provided Services. The City will provide Municipal Information Systems Services, Building Maintenance Service, and Fleet Services. The City shall bill CCMJV monthly for these services. (1) Municipal Information Systems Services. The Municipal Information Systems (MIS) department shall assist in the delivery of quality products and services by managing the enterprise data centers and by providing connectivity & customer services that will allow for the optimum usage of enterprise data as well as effective and efficient data, voice and video communications at the Museum. The City shall bill CCMJV $2,671 monthly for services provided. (2) Building Maintenance Service. The City shall provide the labor for routine repairs and preventive maintenance for the Facility. CCMJV shall be responsible for supplying the parts for repairs and maintenance. The City shall bill CCMJV $1,275 monthly for services provided. (3) Fleet Services. The City shall provide a vehicle and fork lift to CCMJV for first six (6) months of this Agreement. The vehicle and forklift are to be operated only by qualified City Employees for Museum purposes. The City shall bill CCMJV $696 monthly for services provided. 24 (c) Electricity. The City shall pay the energy provider for Electricity provided to the Museum. For the Electricity invoices that the City pays directly, the City shall bill CCMJV monthly for reimbursement. (1) Conditions Affecting Electricity Usage. CCMJV shall immediately notify the City in writing with regards to any changes that will affect energy usage including occupancy or usage changes, computer load or other load changes, scheduling changes and sequence of operation changes. Such notice shall include a reminder to the City Manager that the changed usage is to be submitted to McKinstry Essention Inc. in writing within two weeks of the usage change. CCMJV will be responsible for all expenses associated with any changes that will affect energy usage. (2) McKinstry Essention Inc Notification. The City will notify McKinstry Essention Inc that CCMJV is taking over the management of the Museum and authorizing McKinstry to communicate with CCMJV in regards to the Energy Cost Saving Guarantee in Exhibit N. 5.5 City Procurements. (a) Computers Procurement. The City is a party to an Agreement for computers for the Museum. The City shall procure computers for the Museum during the term of this Agreement. The procurement includes four laptop computers with work station and six desk top work stations. CCMJV will have full use to the computers provided under the Agreement. The City shall bill CCMJV monthly for reimbursement for the procurement expense. (b) Multifunction Copier Procurement. The City is a party to an Agreement for a multifunction copier. The City shall procure a multifunction copier for the Museum during the term of this Agreement. CCMJV will have full use to the multifunction copier provided under the Agreement. The City shall bill CCMJV monthly for reimbursement for the procurement expense. (c) Dumpster Service Procurement. The City is a party to an Agreement for Dumpster Service. The City shall procure Dumpster Service for the Museum during the term of this Agreement. CCMJV will have full use to the Dumpster Service provided under the Agreement. The City shall bill CCMJV monthly for reimbursement for the for procurement expense. (d) Elevator Maintenance Procurement. The City is a party to Agreement for Elevator Maintenance. The City shall procure elevator maintenance for the Museum during the term of this agreement. The Museum elevators will be maintained during CCMJV operation of the Museum. The City shall bill CCMJV monthly for the procurement expense. 25 5.6 Museum Accounts. After the Effective Date of the Agreement, all Museum Accounts under the City of Corpus Christi shall be paid by the City. The City shall bill CCMJV monthly for reimbursement for Museum Accounts paid by the City. CCMJV may transfer or request the City to close these accounts. 5_7 Consolidated Bill. The City will generate a Consolidated Bill no later than thirty (30) calendar days after the month's end. The Consolidated Bill will itemize all City services, expenses and accounts paid for the Museum. CCMJV shall pay the Consolidated Bill fifteen (15) calendar days from the date of the invoice. 5.8 Water, Gas, and Waste Water. The City shall provide the Water, Gas, and Waste Water to the Museum. CCMJV is not responsible for Water, Gas, and Waste Water. 5.9 Proportionate Year. This section shall apply to the month of August 2014. All the conditions of Article 5 shall be proportionally applied. August 2014 conditions shall be proportionally applied based on the second Fiscal Year of this Agreement. ARTICLE 6 LONG -RANGE PLAN 6.1 Long -Range Plan. The Long -Range Plan is a tool to show how CCMJV will manage the Museum upon an extension or new contract to manage the Museum past the termination date. The Parties acknowledge that this Agreement contemplates the adoption by the City of the Long - Range Plan, created by CCMJV, on or before February 28, 2014. In the event that such a Plan is not adopted by August 31, 2014, CCMJV may choose not to extend this Agreement. ARTICLE 7 ACCREDITATION, CERTIFICATION, LICENSING, AND PERMITS 7.1 Required Accreditation and Certification. Throughout the Term (including any extensions), CCMJV shall cause the Museum to be at all times (a) accredited by the AAM; and (b) certified as an Archeological Repository by the THC. In addition, CCMJV shall be responsible for any reaccreditation and recertification that may be required during the term of this agreement. Any failure on the part of CCMJV to comply with this article shall constitute a material breach of this Agreement. Current accreditation and certification are shown in Exhibit C. 7.2 Licenses and Permits. All licenses and permits currently held by the City in connection with the operation of the Museum are shown in Exhibit D. Subject to any necessary approvals, the City agrees to transfer all such licenses and permits to CCMJV, and CCMJV and the City shall use their best efforts to either have those licenses and permits legally transferred to CCMJV or to have them canceled upon CCMJV's obtaining replacement permits or licenses in its name if transfer is not possible except that certain licenses and permits shall remain in the possession of the City and under the City's name, and CCMJV shall be authorized as the agent of the City to perform such services under such licenses and permits as are required in the operation of the Museum to the extent permitted by applicable law, if such licenses or permits are required to be 26 held by a governmental entity and /or owner of the Premises or for such other reasons as may be agreed to by the parties. Upon any termination of this Agreement for any reason, CCMJV shall transfer all licenses and permits back to the City and CCMJV shall use its best efforts to assist the City with the documentation of any such transfer or reapplication for any such permit or license to be held in City's name after such termination. 7.3 City Representations. City represents and warrants to CCMJV that the accreditation by the AAM and certification as an Archeological Repository by the THC, and all licenses and permits which are being assigned to CCMJV, are not currently in default, that City is not aware of any default that exists with respect to these items, that City has complied with the terms and conditions of the certifications, accreditations, licenses, and permits, and they are current with respect to any and all payments. ARTICLE 8 MUSEUM COLLECTION MANAGEMENT 8_1 Collection Inventory. CCMJV will be responsible for maintaining the inventory of the Museum's collections. The City will provide CCMJV with an electronic document and video inventory of the Museum's collection on record. In the event that there is a discrepancy between the video inventory and electronic document inventory, the video inventory shall control. 8.2 Collection Management Policy. The Museum's current Collection Management Policy was adopted September 2005. CCMJV shall follow the current Collection Management Policy in Exhibit E. Any provision in the Collection Management Policy that conflicts with this Agreement, the provision in this Agreement shall control. Any dispute regarding the Collection Management Policy can be submitted to the City Manager for approval. The City Manager's decision will be controlling as to any dispute. 8.3 Deaccession of Collection. Deaccession of a collection must follow the following procedure. A Collection Committee member shall submit the proposed deaccession to the Collection Manager. The proposal shall include the purpose, scope of the collection and the policy guidelines. The Collections Manager shall confirm title and check for any restrictions, legal issues, or ethical concerns regarding deaccession. After the Collection Manager's review, the Collection Committee reviews proposed deaccession based on the Museum's Mission, scope of the collection, and Collection Management Policy guidelines. The Collections Committee submits the proposed deaccesion and disposal method to the Museum Director for review. If the Museum Director disapproves of deaccession, the proposed item will remain in the collection. If the Museum Director approves deaccession, it shall be submitted to the Advisory Board for approval. If the Advisory Board approves, the proposed item will be deaccessed. If the Advisory Board disapproves of deaccession, it shall be submitted to the City Manager for the final decision on deaccession. The City Manager will make the final decision regarding whether the proposed item will remain in the collection or be deaccessed. The deaccession process is demonstrated in Exhibit F. 8.4 Deaccessioned Objects. Deaccessioned objects are removed from the collection by means of sale, exchange, donation, transfer, or destruction. Disposal of any deaccessioned object 27 will be carried out in accordance with all applicable federal, state, local, and international laws, treaties, and regulations including but not limited to laws protecting plants, wildlife, antiquities, historic properties, and the import, export, and transfer of cultural property. The Collection Manager is responsible for fully documenting disposal of objects. Deaccessioned objects will not be sold, or ownership otherwise transferred, to Museum staff, City of Corpus Christi employees, CCMJV employees, CCMJV members, CCMJV affiliates, Museum volunteers, members of Museum support groups, members of the Museum or City's governing authorities, or representatives or family members of these individuals. (a) Disposal by Sale. Net proceeds received from the sale of deaccessioned objects will be used only to acquire new objects for the collection. If there is any question as to the value of an object, CCMJV will get two informed outside appraisals on the object. These should document the object's authenticity and assure that CCMJV does not accept less than market value for the object. Disposal of objects from the collection will never be through the Museum shop, or in such a manner that it involves an interested entity helping in the liquidation of Museum assets. CCMJV shall collect & remit all applicable sales tax. Upon the sale of a deaccessed object, CCMJV shall open an account (Collection Fund) in the Depository in the name of the City. CCMJV shall have the authority to withdraw from the Collection Fund Account. Proceeds from the sale of an object will be placed in a Collections Fund. Proceeds from the sale of an object can only be used for purchasing acquisitions to the Museum's Collection. (b) Disposal by Exchange or Donation. Deaccessioned objects may be disposed of by exchange with, or transfer to, another appropriate museum, educational, or scientific institution. Deaccessioned objects will never be exchanged or donated to private individuals. (c) Disposal by Transfer. Deaccessioned objects may be transferred to the Museum's education department for use in educational programs. Objects subject to this action should have little or no market value, or historic or scientific significance. Any deaccessioned object transferred to the education department will be removed from collection storage, quarantine, or work areas. The object must be stored in an area dedicated to educational supply storage. The object is considered expendable and no longer a collection item. (d) Donor Notification. If the Museum disposes (by sale, exchange, or any other method) of a donation within two years of a donation, CCMJV is obligated to notify the donor and the IRS by filing form 8284. This provision applies if the donor has claimed a charitable deduction under Section 170 of the IRS code of more than $5,000 for either a single item or an aggregate of items donated to one or more institutions. The IRS code requires that if the value is more than $5,000, the donor must supply an appraisal summary to the Museum. Once the Museum establishes its clear and unrestricted title to an object, the donor has no legal interest in it. If a deaccession no longer falls under the statute of limitations of the Tax Reform Act of 1984, it is then only a practice of goodwill to notify the donor or heirs of the disposition of a collection or object. It is possible to label the 28 funds or new acquisition purchased with those funds as a gift from the donor. Appropriate action will be considered by the Museum Director on a case -by -case basis. 8_5 Acquisitions Loans and Destructive Analysis of Collections. All Acquisitions, Loans and Destructive Analysis shall be conducted in compliance with the Museum's currently adopted Collection Management Policy found in Exhibit E. ARTICLE 9 TECHNICAL APPEAL PROCESS 9.1 Technical Appeal Process. The Museum Director may challenge any proposed event or action made by CCMJV or the General Manager in matters conflicting with the Museum's Mission or that effect collections or exhibits. If the Museum Director and CCMJV or General Manager cannot resolve an issue regarding a proposed event or action in matters effecting the Museum 's mission, collection or exhibits, that issue is to be presented to the City Manager. Prior to making a decision on any issue, the City Manager will hear from both the Museum Director and the General Manager. The City Manager will make the final decision as regarding whether the proposed action or event does or does not commence. The technical appeal process is demonstrated in Exhibit G. ARTICLE 10 NEW FACILITIES OPERATING AND MAINTENANCE COSTS 10.1 New Facilities Operating and Maintenance Costs. As CCMJV funds and builds new exhibits and support and visitor facilities, the corresponding increases in operating, program, and maintenance costs will be the responsibility of CCMJV, with the City being the owner of such new exhibits and support or visitor facilities. CCMJV may request permission from the City Manager to use Operating Support Payment to pay for New Facilities Operating and Maintenance Costs. CCMJV must specify what new cost it seeks to pay with Operating Support Payment. Operation Support Payment can only be used for New Facilities Operating and Maintenance Costs approved by the City Manager. ARTICLE 11 ADMISSIONS 11.1 Admissions. Admission shall be set at their current rates shown in Exhibit H approved by the City Manager on August 19, 2010. The City Manager shall have the authority to set Museum admissions charges in accordance with City of Corpus Christi Code of Ordinance 36 -6. The Museum Director shall prepare such schedule which shall be submitted to the City Manager for approval, and such schedule shall be reviewed on an annual basis. Said fees and charges shall bear a reasonable relation to fees charged for admission to other similar attractions and similar 29 facilities, and shall be neither excessive nor grossly deficient by comparison; except that special provisions to assure access to all children shall be made, such as free periods of admission for children, and free admission for school groups. The approved schedule shall be filed with the City Secretary and copies shall be provided to the City Council. The City Manager's authority to approve such schedule of fees and charges shall include approval of discounts and special fees designed to promote the Museum and increase visitation, which may be accomplished through marketing agreements not exceeding three (3) years with other attractions or marketing companies whereby multiple attractions are packaged, or through other promotional plans customarily used for similar attractions and facilities. 11.2 Access. CCMJV agrees to operate the Museum with the goal of providing the widest possible access to the Museum to the general public, at an affordable cost. 11.3 Admissions Tax. The Parties acknowledge that no City admission taxes are currently charged on Museum admission. The Parties further agree that the Museum will continue to be exempt from City admission taxes, so long as similar facilities are exempt from such taxes. This is not a waiver of the City's portion of the applicable Sales Tax. ARTICLE 12 PURCHASES OF SUPPLIES AND SERVICES 12.1 Purchase of Supplies and Services. CCMJV shall have full authority and discretion as to the purchase of all equipment, materials, supplies, inventories and services reasonably required by it but shall endeavor to make all such purchases at the best price available as known to CCMJV, considering the quantities required and the quality desired, at the time available for the delivery and the sources of supply whenever possible as part of a volume purchase by CCMJV. CCMJV may acquire property or services from or otherwise transact business with its Affiliates for any of the goods to be purchased or services to be performed by it under this Agreement but only if the prices charged and services rendered are competitive with those obtainable from others rendering comparable services in the field. To insure compliance in this respect, CCMJV agrees to obtain at least two (2) other competitive bids from persons other than CCMJV's Affiliates, whenever CCMJV considers transacting business with an Affiliate for providing goods or services under this Agreement. All purchases by CCMJV of permanent fixtures, equipment, and all facility improvements shall be made in the name of the City. CCMJV shall establish an inventory control system to account for all such purchases. The City shall have the right to inspect the books and records of CCMJV to verify CCMJV's compliance with the provisions of this section. 12.2 Contacting Historically Underutilized Businesses. CCMJV shall, in making an expenditure of more than $3,000 but less than $50,000, shall contact at least two historically underutilized businesses on a rotating basis, based on information provided by the comptroller pursuant to Chapter 2161, Government Code and in compliance with Texas Local Government Code §252.0215. If there are more than two such businesses in the county, CCMJV can contact the listed businesses on a rotating basis. If the list fails to identify a historically underutilized business in Nueces County, CCMJV is exempt from contacting at least two historically 30 underutilized businesses. Any such notice shall be sent by certified mail and CCMJV shall keep record of all notices for four (4) years after the termination date of this agreement. 12.3 Expenditures in Excess of Ten Thousand Dollars ($10,000). CCMJV shall, in making expenditure in excess of $1.0,000 for any single item or more than $50,000 in the aggregate in any purchase order, utilize a competitive bidding process similar to that used by the City. CCMJV shall not avoid the application of competitive bidding by purposely dividing a single purchase into smaller components so that each component purchase is less than $50,000 or make component, sequential or incremental purchases to avoid the competitive bidding requirements. CCMJV shall make the purchase that offers the "best value" for the Museum. In consideration of "best value" CCMJV may consider the following factors: the purchase price; the reputation of the bidder and of the bidder's goods or services; the quality of the bidder's goods or services; the extent to which the goods or services meet the Museum 's needs; the bidder's past relationship with the Museum or City; the total long -term cost to the Museum to acquire the bidder's goods or services; and any relevant criteria specifically listed in the request for bids or proposals. 12.4 CCMJV Municipality Status. To the extent allowable under federal, state, and local law, City agrees to allow CCMJV to use its tax status as a municipality for the purchase of supplies and services. City agrees to execute such documents as may be required, and which the City is authorized to execute, to further this Agreement. ARTICLE 13 FACILITY IMPROVEMENTS AND ALTERATIONS 13.1 Facility Improvements and Alterations. CCMJV shall not under any condition make any facility improvement or alteration to the Museum, the Museum facilities, or Premises without prior approval from the City Manager. Any alterations or facility improvements made by CCMJV to or on the Museum must be approved by City Manager. 13.2 Facility Improvement Plan. CCMJV shall submit a Facility Improvement Plan to the City Manager for any facility improvement CCMJV wishes to commence. Such plan shall include a listing of the facility projects or equipment to be purchased, the projects ranked in order of preference, a timetable for the construction or completion of the project, a work schedule and time line to minimize disruptions of Museum operation during the completion of the improvements, justification for the project, an examination of the feasibility of the improvement and an explanation of expenses for the project. The plan shall also include a reminder to the City to submit the approved plans to McKinstry Essention Inc. for an energy usage evaluation. The reminder shall also notify the City that the plan is to be submitted to McKinstry Essention Inc. in writing within two weeks of the change to the facilities. CCMJV shall submit the Facility Improvement Plan for the 2013 Fiscal Year within forty five (45) days from the Effective Date of this Agreement. CCMJV shall submit the Facility Improvement Plan for 2014 Fiscal Year with the Annual Plan under Article 27. 13.3 Facility Improvements Approval Process. The General Manager and Museum Director shall develop a timeline for operations and facility improvement phases including a work schedule and time line to minimize disruptions of Museum operation during the completion 31 of the improvements. If the Museum Director does not approve of Facility Improvement Plan, the Museum Director shall follow the Technical Appeal Process in Article 9. If the Museum Director has no objections or the City Manager approves after the appeal process, CCMJV must present the Facility Improvements Plan to the Advisory Board for review. The Advisory Board will submit to the City Manager a recommendation. The City Manager will submit the plan to the City Engineering Department for review. The Structural Engineering Report required under Article 14 must be submitted to the City prior to the review of any project in the Facility Improvement Plan. The City Manager may approve or disapprove any project in the Facility Improvement Plan. If the City Manger does not approve, the facility improvements project will not proceed. If the City Manager approves a project, the first phase of improvement will begin. Upon completion, the City Manager will inspect first improvement phase. If the City Manager approves, CCMJV may be reimburse for Facility Improvement Expenditure in accordance with Article 25. If the City Manager does not approve, CCMJV shall make necessary corrections to gain approval. The Facility Improvement Process is demonstrated in Exhibit I. 13.4 Approved Facility Improvements and Alterations. Any alterations or facility improvements made by CCMJV to or on the Premises shall comply with any and all applicable local, state, and federal laws, rules and regulations, and CCMJV shall obtain any required permits for such alterations and facility improvements. Expenses for required permits shall be Facility Improvement Expenditures to be reimbursed under Article 25. Only Approved Facility Improvements shall be eligible for Facility Improvement Reimbursement. 13.5 Title to Improvements. Except as otherwise provided in this Agreement, all appurtenances, fixtures, improvements, equipment, additions, and other property attached to or installed in the Premises during the Term shall be and remain the property of City and shall not be removed by CCMJV without approval of the City Manager. 13.6 CCMJV's Personal Property. All furniture, furnishings, and articles of movable personal property installed in the Premises by or for the account of CCMJV, without expense to City, and which can be removed without structural or other material damage to the Premises (all of which are in this Agreement called "CCMJV's Property ") shall be and remain the property of CCMJV and may be removed by it subject to the provisions of Article 34. At least ten (10) days prior to delinquency, CCMJV shall pay all taxes levied or assessed upon CCMJV's Property and shall deliver satisfactory evidence of such payment to City. ARTICLE 14 ENGINEERING, STRUCTURAL AND LAYOUT STUDIES 14.1 Structural Engineering Report. CCMJV shall submit to the City a Structural Engineering Report evaluating the integrity of the building within the first Fiscal Year. The Structural Engineering report will be at the sole expense of CCMJV. Expenses for the Structural Engineering Report shall be a Facility Improvement Expenditure to be reimbursed under Article 25. Facility Improvements and Alterations will not proceed prior to completion of the Structural Engineering Report. 32 14.2 Studies. CCMJV shall notify the City Manager of all engineering, structural and layout studies of the Museum conducted by CCMJV at any time within 30 days of completion of the study. Any such study shall be provided to the City Manager within 30 days of request by the City Manager. Such studies shall be provided to the City free of cost. ARTICLE 15 ADVERTISING 15.1 Museum Advertisement. CCMJV may purchase or create advertisement for the Museum. Museum Advertisement materials should be presented in an objective, fair and accessible manner. Advertising campaigns should be justified and undertaken in an efficient, effective and relevant manner. All advertisements shall be in compliance with federal, state and local laws. 15.2 Advertisement Reimbursement. CCMJV shall keep record for all advertising expenditures and submit itemized expenditures to the City monthly. The City shall reimburse CCMJV up to $25,000 in advertising expenditures per Fiscal Year, subject to availability of funds in the Hotel Occupancy Tax fund. City agrees to submit this amount as part of the proposed budget for Hotel Occupancy and Tax fund. Reimbursement payment for advertising expenditure shall be made to CCMJV on or before the thirtieth (30th) day following the end of the Fiscal Year if available. ARTICLE 16 NAMING RIGHTS 16.1 Museum Name. Under no circumstances, with the exception of formal action by City Council, may the Museum's name be changed from "Corpus Christi Museum of Science and History ". 16.2. Donation Acknowledgement. Any donor recognition at the Museum shall be brought to the Advisory Board for review. The Advisory Board will submit to the City Manager a recommendation. If the City Manger does not approve, there will be no donor recognition. If the City Manager approves CCMJV may proceed with the donor recognition. CCMJV may seek to establish a naming policy for Museum facilities which would require Advisory Board adoption and City Manager's approval. ARTICLE 17 MAINTENANCE 17.1 General Maintenance. CCMJV shall be responsible for routine repairs, preventive maintenance, janitorial services, grounds keeping services, maintenance of all interior and exterior walls of the Facility, maintenance of the landscaping around the Facility; walking 33 inspections of the Facility on a daily basis, and grounds keeping of all the Parking Lots to City codes and standards. CCMJV shall maintain the Museum in a clean, safe, sanitary, and sightly condition, and as necessary to maintain all licenses and accreditations in accordance with Article 7 above; provided, however, that such obligation shall not, except as specifically set forth in this Agreement, require CCMJV to repair or otherwise remedy a Preexisting Condition. CCMJV shall employ sufficient personnel to maintain the Museum to the standard of a First -Class Museum. 17.2 Random Inspection. Random inspections will be made by a designated City employee to inspect the general maintenance of the Museum. Any deficiencies not to the standard established in Article 17.1 will be reported to CCMJV. CCMJV shall take the necessary action to remedy the deficiency in a timely fashion. 17.3 In -Kind Maintenance. In -Kind Maintenance can be provided by the City for repairs that are necessary for public health and safety. In -Kind Maintenance requires City Manager approval. At any time the Museum requires In -Kind Maintenance, the General Manager shall submit an In -Kind Maintenance request to the City Manager. Upon City Manager approval, the City shall make the necessary repairs. In -Kind Maintenance shall include City labor, materials, and indirect maintenance services in substantially the same manner of maintenance support that is currently provided by the City to the Museum. If the City Manager denies the In -Kind maintenance request, CCMJV shall be responsible for the repairs. 17.4 Contractor Insurance. Each party shall provide evidence acceptable to the other that every contractor engaged by a party to perform work on the Premises maintain insurance in amounts, on policies of coverage and offered by companies satisfactory to City and CCMJV, including but not limited to Workers' Compensation Insurance (including Employers' Liability Insurance) and insurance against liability for injury to persons and property arising out of all such contractor's operations, and the use of owned, nonowned, or hired automotive equipment in the pursuit of all such operations. ARTICLE 18 STAFFING AND EMPLOYEES 18.1 Generally. The Parties acknowledge that as of the date of this Agreement, there are approximately 17 full time City Employees employed in connection with the Museum. The Parties' intent is that the City Employees will remain at the Museum during the Employee Transition Period. At the end of the Employee Transition Period, City Employees shall be placed internally with the City, selected for hiring by CCMJV or terminated in compliance with the City's reduction of force policy. 18.2 CCMJV Supervision of Employees. Commencing on the Effective Date, CCMJV shall, in carrying out the responsibilities under this Agreement, manage, supervise, and direct those employees of the City who are employed at the Museum subject to the provisions of the City Charter, City Municipal Code, City rules, state legislation and any applicable collective bargaining agreements. The Museum shall operate under the Governance set out in Article 19. 34 CCMJV shall, in cooperation with the Human Resource Department and the City Manager, develop procedures for implementing this authority with regard to City Employees. 18.3 Employees. CCMJV shall comply with all applicable federal, state, and local laws, ordinances, and regulations pertaining to all employees at the Museum. In addition, CCMJV shall be an equal opportunity employer and make reasonable efforts to maintain a diverse work force. 18.4 Employee Transition Plan. CCMJV and the City will develop and propose an Employee Transition Plan and present it to the City Council by September 30, 2012. The proposed Employee Transition Plan will be accompanied by one or more proposed ordinances to implementing elements of the Employee Transition Plan that require such City Council action and to amending this Agreement accordingly. Although City Employees may voluntarily resign City employment and be hired by CCMJV, no City position existing in the "Museum Program" in the City's Adopted Budget as of the Effective Date of this Agreement will be eliminated nor an employee involuntarily transferred to CCMJV from these positions unless the change is adopted by the City Council by ordinances described above. 18.5 Payroll and Taxation. (a) City Payroll Until Transition. Until each City Employee leaves City employment, either to transition to CCMJV employment or otherwise, that employee will remain on the City payroll for the continued provision of City compensation and benefits, employee status, and payment of taxes and reporting, although the Museum Director will supervise them. (b) CCMJV Payroll After Transition. After each City Employee who chooses to transition to employment with CCMJV does so, CCMJV shall make or cause to be made all necessary payroll deductions for disability and unemployment insurance, Social Security, withholding taxes, and other applicable taxes, and prepare, maintain, and file or cause to be filed all necessary reports with respect to such taxes or deductions, and all other necessary statements and reports. ARTICLE 19 GOVERNANANCE 19.1 Governance. The. Museum shall be operated under the organizational chart set out in Exhibit J. The Governance can be changed if the Governance effects any accreditation or certification. The governance shall be modified to comply with any accreditation or certification standards. The Governance can be changed upon an agreement with CCMJV and the City. Any change in governance cannot effect any accreditation or certification. ARTICLE 20 ROLES 35 20.1 Advisory Board. The Advisory Board shall serve as an advisor to CCMJV and to the City in matters of support and development of the Museum. The board may adopt comprehensive policies relating to the management of collections, accession of objects for the collections, disposition and deaccession of objects in and for the collections, and use of Museum facilities. Any dispute with CCMJV and the Advisory Board shall be reviewed by the City Manager. The City Manager shall make the final decision regarding policy. 20.2 General Manager. The General Manager manages Museum's finances, marketing and revenue generating operations. General Manager's duties regarding the management of revenue generating operations include admissions, gift shop operation, food service sales, and hosting events. The General Manager can engage in fund raising activities on the behalf of the Museum. 20.3 Museum Director. The Museum Director is responsible for all core aspects of Museum operations including exhibits, collection, fund raising, maintenance, educational programs, accreditation and certifications. It is the director's responsibility to operate the Museum according to best Museum practices such that both accreditations by the AAM (reviewed in 2017) and archeological repository certification by the THC (reviewed in 2015) will be sustained. The Director ensures that the Museum operates in a manner that ensures that environmental and security standards associated with collection preservation continues to be maintained. 20.4 Museum Collection Manager. The Museum Collection Manager maintains collection catalog and object files and makes the collection catalog data publicly accessible. The Museum Collection Manager also supervises collection care for objects in storage, on exhibit, on loan, and ongoing collection inventory. Supervision of the collection includes monitoring environmental conditions in storage areas, making conservation recommendations and actively pursuing grants that benefit collections care and use. Furthermore, the Museum Collection Manager serves as a member of every exhibit development team to make certain that collections are integrated appropriately into exhibits and proper safeguards are in place for object preservation. The Museum Collections Manager can support the work of staff, volunteers, and researchers working with the collection and work with honorary curators, adjunct curators, and collection committee to develop collection management policies and procedures. 20.5 Museum Registrar. The Museum Registrar is responsible for accession of new acquisitions, assess condition, maintaining accession records, processing deaccessions and maintaining loans. Furthermore, Museum Registrar is responsible for maintaining a record of values for insurance and maintaining a graphic record of significant objects. The Museum Registrar also supervises and performs inventory of collections and data entry into collection catalog. Additionally, Museum Registrar serves as a member of exhibit development team to . make certain that collections are integrated appropriately into exhibits and proper safeguards are in place for object preservation. The Museum Registrar can supervise and train volunteers and staff in proper methods of handling objects, in data entry work in proper inventory processes. 20.6 Museum Librarian. The Museum Librarian is responsible for maintaining information regarding the collection and exhibits and making the library collection holdings publicly accessible. The Museum Librarian is also responsible for maintaining subscriptions and 36 acquiring reference publications for the collection, accession and inventory holdings and maintaining Museum catalog. Additionally, Museum Librarian cares for archival materials in storage, on exhibit, and on loan. This includes the supervision of staff, volunteers, and researchers working in the library. The Museum Librarian can also research images and acquire the rights for use of images in exhibits and educational presentations. 20.7 Museum Educator (Head Curator). The Museum Educator is responsible for leading the education program development and delivery team for adults and students. The Museum Educator also develops and presents programs for the public and for school tours including generating lesson plans and providing reference material for teachers and source materials for elementary students relevant to Museum exhibits and collections. Furthermore, the Museum Educator serves as a member of every exhibit development team to make certain that the needs of the school audience are addressed. The Museum Educator can work individually with teachers, group leaders, and event planners to provide excellent customer service. The Museum Educator can also recruit train, schedule and supervise staff and volunteers to provide needed programming. 20.8 Museum Education Assistant. Museum Education Assistant is responsible for presenting science topics and programs to the visiting public, youth groups, and school groups under the supervision of the Museum Educator. Museum Education Assistant is also responsible for putting information and classroom resources for teachers on the Museum's education website, as well as update education and program information on the Museum's main website. The Museum Education Assistant serves as a member of every exhibit development team to make certain that the needs of the school audience are addressed. 20.9 Science Exhibit Project Manager. Science Exhibit Project Manager is responsible for maintenance activities for all exhibits and the Facility. The Science Exhibit Project Manager is also responsible for assuring safety and security of collection objects from harm due to light, dust, heat, and visitors. Furthermore, the Science Exhibit Project Manager provides a regular program of safety training for staff and volunteers and an MSDS file for the chemicals currently used in the Museum. The Science Exhibit Project Manager can present educational programming to adult and student groups working collaboratively as a member of the education staff team under the supervision of the Museum Educator. 20.10 History Exhibit Project Manager. History Exhibit Project Manager is responsible for maintenance activities for all exhibits and the Facility. The History Exhibit Project Manager is also responsible for assuring safety and security of collection objects from harm due to light, dust, heat, and visitors. Furthermore, the History Exhibit Project Manager provides a regular program of safety training for staff and volunteers and an MSDS file for the chemicals currently used in the Museum. The History Exhibit Project Manager can present educational programming to adult and student groups working collaboratively as a member of the education staff team under the supervision of the Museum Educator. ARTICLE 21 PROFESSIONAL STAFF 37 21.1 Minimum Professional Staff. CCMJV shall maintain a professional staff of a minimum of 8 employees for the following positions: Museum Director, Educator, Education Assistant, Collection Manager, Librarian, Registrar, History Exhibits Project Manager, and Science Exhibits Project Manager. The Minimum Professional Staff is subject to Article 21.2 and the Employee Transition Plan in Article 18. Upon losing any one of these key positions, CCMJV shall have two (2) months to restaff the position. If the position cannot be restaffed within two (2) months, CCMJV may seek a two (2) month extension from the City Manager to fill that key position. 21.2 Modification of Minimum Professional Staff. The Professional Minimum Staff requirement in Article 21.1 can be increased or decreased upon request of the Museum Director and approval by the City Manager. If the Museum Director determines that the Professional Staff size needs modification, the Museum Director shall submit the details of the position/positions and duties of the position/positions the Museum Director is seeking to modify to the City Manager. The City Manager will make the final decision as to whether to modify or not modify the Minimum Professional Staff required. If the City Manager does not approve of the Professional Minimum Staff modification, the Minimum Professional Staff requirements in effect at the time of denial shall remain in effect. Any modification approved by the City Manager shall be in writing and will become the effective Minimum Staff Requirement. 21.3 Minimum Qualification and Experience for Professional Staff. CCMJV shall only hire professional staff that meets the following qualifications for key staff positions: (a) Museum Director's Minimum Qualifications. The Museum Director shall have a master's degree in Museum studies, natural history, history, anthropology, or academic field that relates to the collections of the Museum. This position requires ten years' experience working in the Museum field including three (3) years in a leadership position. (b) Museum Collection Manager Minimum Qualifications. The Museum Collection Manager must have a master's degree in Museum studies, natural history, history, or anthropology field that relates to the collections of the Museum. This position requires (2) two years' professional experience in a Museum or comparable facility; or any equivalent combination of training, education or experience. (c) Museum Registrar Minimum Qualifications. Museum Registrar must have a Bachelor's degree in Museum studies, history, public history, American studies, anthropology or other related field (Master's degree preferred). This position requires (2) two years' Museum work experience or work in a comparable facility; or any equivalent combination of training, education, or experience. (d) Museum Librarian Minimum Qualifications. Museum Librarian must have a Bachelor's degree in Museum studies, history, public history, American studies, anthropology, library science or related field (Master's degree preferred) This position requires (2) two years' experience working in a Museum or comparable facility; or any equivalent combination of training, education, and experience. 38 (e) Museum Educator Minimum Qualifications. The Museum Educator must have a master's degree in Museum studies, history, anthropology, or any field that relates to the collections of the Museum. This position requires two (2) years' experience working in a Museum or comparable facility; or any equivalent combination of training, education and experience. (f) Museum Educator Assistant Minimum Qualifications. The Museum Educator Assistant must a bachelor's degree in biology or environmental science, or any field that relates to the collections of the Museum. This position requires (2) two years' experience working in a Museum or comparable facility; or any equivalent combination of training, education and experience. (g) Science Exhibit Project Manager Minimum Qualifications. The Exhibit Project Manager must have a master's degree in Museum studies with a specialty in science /natural history that relates to the collections of the Museum. This position requires two (2) years' work experience in a Museum or comparable facility; or any equivalent combination of training, education, and experience. (h) History Exhibit Project Manager Minimum Qualifications. The Exhibit Project Manager must have a master's degree in Museum studies with a specialty in history /anthropology field that relates to the collections of the Museum. This position requires two (2) years' work experience in a Museum or comparable facility; or any equivalent combination of training, education, and experience. 21.4 Waiver of Minimum Qualifications. CCMJV may seek a waiver of Minimum Qualification for hiring a Professional Staff member. Any waiver sought shall only apply to a candidate and not to the Professional Staff positions. Any waiver of Minimum Qualification for Professional Staff shall be submitted in writing to the City Manager. If the City Manager denies the waiver request, CCMJV may not hire the unqualified candidate. If the City Manger waives the Minimum Qualification requirement, CCMJV may hire the candidate the waiver was sought for. The approved waiver will not apply to previous or future candidates. ARTICLE 22 FISCAL MATTERS 22.1 Capital Campaign. If CCMJV wishes to pursue any Capital Campaign, it must follow the same approval process as Facility Improvements in Article 13. Any Capital Campaign shall be conducted in good faith and must be in compliance with state and federal law. 22.2 Miscellaneous Fees and Prices. Subject to Article 11 of this Agreement, CCMJV shall have the authority to set the amount of all prices and fees for services rendered or sales made to the public or otherwise at the Museum, including without limitation, food and drink concessions, souvenirs, parking, special exhibits, and other special events. 39 22.3 Franchises or Concessions. CCMJV shall have exclusive authority to grant to any nonprofit corporation or public or private organization franchises or concessions that further the public use and enjoyment of the Museum. 22.4 Solicitation of Private and Public Funding. CCMJV shall assist the Friends of the Museum or any other non - profit organization created to benefit the Museum : (a) use its best efforts to (i) actively solicit private support for the Museum through membership fees and charitable contributions and (ii) actively solicit federal, state or local grants or other funds to support the operation and purposes of the Museum ; and (b) apply all funds contributed to it as membership fees, charitable donations, public grants or loans, or any other sources, to the Operating Expenses, Facility Improvements at the Museum and other Museum Purposes in accordance with this Agreement. Facility Expenditures or Advertisement paid for by Private or Public Funding shall not be reimbursed under Article 15, Article 25, or any other provision of this Agreement. 22.5 Grant Funding. The City shall allow CCMJV to apply for grants in the City's name for which CCMJV might not otherwise be eligible subject to prior approval by the City Manager or if the City Manager instructs, the City Council. The City Council retains the right to accept or not accept grant funds so applied for. All grants to the City received for Museum shall be transferred to CCMJV within thirty (30) days of the receipt of the grant funds, if permitted by the terms of the grant. All grant money shall be expend to enhance the Museum or applied in accordance to the terms of the grant. ARTICLE 23 PROHIBITED TRANSACTIONS AND BENEFITS 23.1 Benefits to Organizations. CCMJV shall not contribute, donate, contract, or provide any economic or non - economic benefits to the Friends of the Museum and their members, the Auxiliary and their members, the Advisory Board and their members, or any other organization created to benefit the Museum and their members. CCMJV shall not receive any contributions or receive any economic or non - economic benefits from the Friends of the Museum, the Auxiliary, or any other organization created for benefit the Museum. Only the Museum may receive any economic or non - economic benefits from non - profit. organizations. CCMJV may facilitate or manage the benefit received by the City made by an organization. At no time does the benefit become property of CCMJV. This article shall not apply to CCMJV's initial purchase of gift shop items from the Auxiliary. 23.2 Memberships. CCMJV members, employees, or any affiliates cannot be members of the governing board of Friends of the Museum, governing board of the Auxiliary, the Advisory Board, or any other governing board of an organization created to benefit the Museum. 23.3 Benefits to Individuals. CCMJV shall not provide any economic or non - economic benefit to any individual person affiliated with the City of Corpus Christi including City employees, City Council, and City Mayor. CCMJV shall not receive any economic or non- economic benefit from any individual person affiliated with the City of Corpus Christi including City employees, City Council, and City Mayor. 40 ARTICLE 24 REVENUE 24.1 Revenue Account. After the Effective Date, CCMJV shall collect all revenues and sales tax. Revenues collected may be held in a CCMJV account. All revenues less sales tax shall be deposited biweekly into an account maintained in the Depository in the name of the City. This account will be the Revenue Account. CCMJV is not authorized to withdraw from the Revenue Account. The City shall have the authority to withdraw proceeds from the Revenue Account. 24.2 Revenue Withdrawals. Beginning the third month of this Agreement, the City shall withdraw the previous month revenue from the Revenue Account on a monthly basis until such withdrawals total the Gross Benchmark Revenue for the Fiscal Year. The first month's revenue will remain in the account to pay for bank fees and charges. Gross Revenue over the Gross Revenue Benchmark shall be paid to CCMJV for reimbursement for Facility Improvement Expenditures in accordance with Article 25. Facility Improvement Expenditure reimbursement payments shall begin the following month Gross Revenue exceeds Gross Revenue Benchmark in a Fiscal Year. The Facility Improvement Expenditure payment shall be made on or before the fifteenth (15) day of such month. Management Fee payments shall begin the following month Gross Revenue exceeds the total of Gross Benchmark Revenue plus Facility Improvement Expenditure Reimbursement in a fiscal year. The Management Fee payment shall be made on or before the fifteenth (15) day of such month. The remaining excess revenue shall be withdrawn and applied to the City's General Fund. 24.3 General Fund Revenue. The revenue first -in within the Fiscal Year up to the Gross Benchmark Revenue shall be applied to the City's General Fund. All revenue in the amount of 50% of Gross Revenue that exceeds the total of Gross Benchmark Revenue plus Facility Improvement Reimbursement for each Fiscal Year shall be applied to the City's General Fund. 24.4 Gross Revenue Deficiency. CCMJV is required to generate a Gross Revenue of $318,295 for the 2013 Fiscal Year and $347,231 for the 2014 Fiscal Year. CCMJV shall pay the City the difference between the Gross Revenue Benchmark and the Gross Revenue for any Fiscal Year that Gross Revenue does not exceed the Gross Revenue Benchmark. The payment of the Gross Revenue Deficiency shall be made within 30 days of the end of the Fiscal Year in which there was a Gross Revenue Deficiency. CCMJV's obligations to pay the City the difference between the Gross Revenue Benchmark and Gross Revenue is subject to force majeure. Therefore, to the extent that Museum Operations are interrupted as a result of acts of God, war or civil disturbance, the obligation to make these payments will be suspended proportionately to the number of days that CCMJV is unable to operate the Museum. 24.5 Proportionate Year. This section shall apply to the month of August 2014. All the conditions of Article 24 shall be proportionally applied. August 2014 conditions shall be proportionally applied based on the second Fiscal Year of this Agreement. ARTICLE 25 FACILITY IMPROVEMENT REIMBURSEMENT 41 25.1 Excess Revenue. CCMJV shall be entitled to reimbursement of Facility Improvement Expenditures made under the Facility Improvement Plan submitted under Article 13. Only Approved Facility Improvements made under the Facility Improvement Plan shall be eligible for Facility Improvement Reimbursement. Facility Improvement Expenditures shall be reimbursed in any such Fiscal Year the Gross Revenue exceeds the Gross Benchmark Revenue. If the difference between Gross Revenue and Gross Benchmark Revenue is greater than Facility Improvement Expenditures, CCMJV shall be completely reimbursed for Facility Improvement Expenditures. If the difference between Gross Revenue and Gross Benchmark Revenue is less than Facility Improvement Expenditures, all the difference will be paid to reimburse CCMJV for Facility Improvement Expenditures. Any unreimbursed Facility Improvement Expenditures for the Fiscal Year shall carry forward to the following Fiscal Year. Any Facility Improvements Expenditures made in a Fiscal Year after Management Fees have been paid shall carry forward to the following Fiscal Year. Payments for Facility Improvement Reimbursements shall be made in accordance with Article 24. 25.2 No Excess Revenue. Facility Improvements expenditures which are not reimbursed in any Fiscal Year will be carried forward to the following year. CCMJV is not entitled to reimbursement for Facility Improvements if revenues do not exceed Gross Benchmark Revenues. At the end of the Agreement, any Facility Improvement Expenditures which have not been reimbursed will be at the sole expense of CCMJV, and the City shall have no responsibility for the payment of same. 25.3 Long Term Plan. Upon execution of a long term agreement between the City and CCMJV, CCMJV may carry over the Unreimbursed Facility Improvement Expenditures for reimbursement as per the long term agreement. 25.4 Unreimbursed Facility Improvement Expenditures. Facility Improvement Expenditures are not a loan to the City and the terms of this Agreement shall not be interpreted to construe or treat the Facility Improvement Expenditures as a loan to the City to be repaid to CCMJV by the City. Any Facility Improvement Expenditures that are not reimbursed under the terms of this Agreement shall not be reimbursed. CCMJV will receive no compensation for unreimbursed facility expenses and the City shall retain all facility improvements. The City makes no guarantee that Facility Improvement Expenditures shall be reimbursed. ARTICLE 26 MANAGEMENT FEE 26.1 Management Fee. As compensation to CCMJV for providing the services herein specified during the Term with regards to managing the Museum, the city shall pay CCMJV in the amount of 50% of Gross Revenue that exceeds the sum of Gross Benchmark Revenue and Facility Improvement Reimbursement for each Fiscal Year. ARTICLE 27 REPORTING OBLIGATIONS 42 27.1 Annual Report for Financial Accounting. On or before September 1 of each year throughout the Term of this Agreement, CCMJV shall, at its sole expense, prepare and submit to the City Manager for his or her review, the Annual Report. This report will provide a general summary of the Museum's operations and will include a complete financial accounting for all funds, including use of major maintenance funding and a listing of all capital investments made at the Museum. In addition, CCMJV will also evaluate its performance in the area of customer service. 27.2 Annual Plan. At least thirty (30) days prior to the beginning of each Fiscal Year for CCMJV, CCMJV shall, at its sole expense, prepare and submit to the City Manager for his or her information, an Annual Plan. The City Manager shall present this plan to the City Council as an informational item. The Annual Plan shall, at a minimum, present the Facility Improvement Plan for the Museum, an evaluation of existing exhibits, a description of major programmatic changes planned at that time for the ensuing year, and any proposed changes in fees at the Museum. 27.3 Supplementary Reports. In addition to submitting the Annual Report and Annual Plan to the City Manager, CCMJV shall also submit the following reports: (a) Quarterly Reports. Beginning six (6) months after the mutual execution of this Agreement and on a quarterly basis afterwards throughout the term of this Agreement, CCMJV shall, at its sole expense, prepare and submit to the City Manager a quarterly report setting forth a summary of the operations of the Museum and the services provided by CCMJV at the Museum for the preceding quarter. (b) Annual Report for Expenditures. Beginning six (6) months after the mutual execution of this Agreement and on an annual basis afterwards throughout the term of this Agreement and any renewal, whichever is shorter, CCMJV shall, at its sole expense, prepare and submit to the City Manager an annual report detailing the expenditures made by CCMJV for the preceding year. (c) Monthly Report. Beginning one month after the mutual execution of this Agreement and on a monthly basis afterwards throughout the term of this Agreement, CCMJV shall, at its sole expense, prepare and submit to the City Manager a monthly report outlining the finances of the Museum for the previous month. This report shall include a summary of revenue from various sources and an accounting of costs. 27.4 Annual Independent Audit. Within sixty (60) days after the end of each Fiscal Year, CCMJV shall arrange for an audit of its books and records by an independent, certified public accountant; this audit shall be conducted at CCMJV's sole cost and expense and shall cover the previous Fiscal Year. CCMJV shall deliver to the City Manager an original, signed copy of each such annual audit, by the earlier of: (a) thirty (30) days after the completion of such audit or (b) ninety (90) days after the end of the Fiscal Year covered by such audit. 27.5 Reconciliation of Accounts. Within sixty (60) days after the end of each Fiscal Year, CCMJV shall reconcile the Revenue Account, Operation Support Account, and Collection Fund Account for each Fiscal Year. 43 ARTICLE 28 BOOKS AND RECORDS 28.1 Financial Records. CCMJV shall establish and maintain books, records, and systems of account relating to the Museum's Gross Revenue and Operating Expenses in accordance with generally accepted accounting practices & City record retention policies. These records shall, to the extent necessary to meet requirements for audits under Article 28.2 of this Agreement, be retained by CCMJV for four (4) years after the termination date of this agreement and made available to the City upon request. 28.2 City Audit Participation. If requested by the City, CCMJV shall make available all information reasonably necessary for the City and the State Auditor to perform audits of the use and application of all revenues, grants, and fees, all City funds, except for private fundraising activities and private donor information, received by CCMJV during the current and preceding year, including Museum operations and management. ARTICLE 29 CCMJV CODE OF ETHICS 29.1 CCMJV Code of Ethics. CCMJV shall have a Code of Ethics governing its members, employees, and activities consistent with applicable requirements of state and federal laws and American Association of Museum and Texas Historical commission standards. The City may request from CCMJV those documents necessary for the City to confirm the establishment of an ethics and conflict of interest policy. 29.2 Ethics Report. CCMJV will report on compliance with the ethics and conflict of interest policy, and any issues that have arisen as a result, in the Annual Report. ARTICLE 30 INSURANCE 30.1 Liability Insurance. CCMJV, at no expense to the City, shall obtain and maintain continuously, throughout the Term of this Agreement, policies of insurance as enumerated below. Such policies: (i) shall be subject to approval by the City's Risk Manager as to company, form and coverage, and primary to all other insurance the City may secure; and (ii) must protect the City from any and all claims and risks in connection with any activity performed by CCMJV, or any of its respective officers, employees, agents, contractors or assigns, by virtue of this Agreement or any use and occupancy of the Premises authorized by this Agreement. It is understood and agreed that the insurance required is in addition to and separate from any other obligation contained in this Agreement. (a) Commercial General Liability Insurance. A policy of Commercial General Liability Insurance, written on an insurance industry standard occurrence form or equivalent, shall include all the usual coverages known as: Commercial Broad Form, Premises /Operations 44 Liability, Products /Completed Operations, Contractual Liability, Independent Contractors, and Personal /Advertising Injury. Such policy or policies must provide the minimum limit of $1,000,000 combined single limit insuring against all liability of CCMJV and its General Managers and/or Contract Administrators arising out of and in connection with CCMJV's use or occupancy of the Museum , and premises liability. The minimum limits on these policies will be adjusted periodically by the City so that the limits generally reflect the values of the policies as of the date this agreement is signed. (b) Business Automobile Liability Insurance. A policy of Business Automobile Liability Insurance, including coverage for any owned, nonowned, leased or hired vehicles, written on an insurance industry standard form or equivalent must provide the minimum limit of $500,000 combined single limit. (c) Liquor Liability Insurance. A policy of Liquor Liability Insurance written on an insurance industry standard form or equivalent must provide the minimum limit of Contingent Liquor liability insurance with a combined single limit of $1,000,000 and $2,000,000 in the aggregate. (d) Crime and Fidelity Coverage. A policy of Crime and Fidelity Insurance written on an insurance industry standard form or equivalent must provide the minimum limit of $500,000 per occurrence of coverage for (i) employee dishonesty, (ii) forgery or alteration, (iii) theft, disappearance and destruction inside and outside the Museum ; and (iv) robbery and safe burglary inside and outside the Museum . (e) Workers' Compensation and Employers' Liability. CCMJV must obtain Workers' Compensation and Employers' Liability 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. A policy of Workers' Compensation insurance written on an insurance industry standard form or equivalent, as may be required by law must provide the minimum limit, including employer's liability coverage of $500,000 per person per occurrence and $500,000 per person per disease, and $500,000 aggregate disease. 30.2 Policy Rating and Primary Insurance Requirements. All policies shall be subject to approval by the City's Risk Manager as to insurance company (must be rated A -VII or better in the A.M. Best's Key Rating guide and licensed to do business in the State of Texas or issued as a surplus lines by a Texas Surplus Lines broker), form and coverage, deductibles, and primary to all other insurance. 30.3 Policy Requirements. CCMJV agrees that with respect to the above required insurance, all insurance policies are to contain or be endorsed to contain the following required provisions: (1) 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' 45 Compensation policy; (2) 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; (3)Workers' Compensation and Employers' Liability policies will provide a waiver of subrogation in favor of the City; and (4) 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. 30.4 Proof of Policy. CCMJV shall furnish to the Risk Manager or designee two (2) copies of Certificates of Insurance with applicable policy endorsements, 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 waiver of subrogation in favor of the City is required on all applicable policies. 30.5 Request of Policy. 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). CCMJV 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. CCMJV 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 P.O. Box 9277 Corpus Christi, TX 78469 -9277 Fax # - (361) 826 -4555 30.6 Commencement of Work. Prior to the commencement of any work under the Agreement, CCMJV shall furnish an original completed Certificate(s) of Insurance to the City which shall be completed by an agent authorized to bind the named underwriter(s) and their company to the coverage, limits, and termination provisions shown thereon, and which shall furnish and contain all required information referenced or indicated thereon. The original certificate(s) must have the agent's original signature, including the signer's company affiliation, title and phone number, and be mailed directly from the agent to the City. The City shall have no duty to pay or perform under this Agreement until such certificate shall have been delivered to the City, and no officer or employee, other than the City's Risk Manager, shall have authority to waive this requirement. CCMJV 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. CCMJV must not allow any subcontractor to commence work until all similar insurance required of the subcontractor has been so obtained. 30.7 Primary Insurance. It is agreed that CCMJV's insurance shall be deemed primary and 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 Agreement. 46 30.8 Liability Insurance Modification. The City reserves the right to review the insurance requirements of this section during the effective period of the Agreement and any extension or renewal thereof and to modify insurance coverage and their limits when deemed necessary and prudent by the Risk Manager based upon changes in statutory law, court decisions, or circumstances surrounding the Agreement, but in no instance will the City allow modification whereupon the City may incur increased risk. 30.9 Policy Renewal. Within five (5) calendar days of a suspension, cancellation, or non- renewal of coverage, CCMJV shall provide a replacement Certificate of Insurance and applicable endorsements to City. Failure to provide and to maintain the required insurance shall constitute a material breach of this Agreement. 30.10 Failure to Insure. In addition to any other remedies the City may have upon CCMJV'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 CCMJV to stop work hereunder, and /or withhold any payment(s) which become due to CCMJV hereunder until CCMJV demonstrates compliance with the requirements hereof. 30.11 Property Insurance. The City currently maintains property insurance on a citywide . basis for its facilities, including facilities at the Museum. Throughout the Term of this Agreement, the City shall maintain such property insurance (and be responsible for all premiums for such insurance) on City facilities, including Museum facilities, as the City determines is fiscally responsible to maintain. The City will not determine what property insurance to maintain on Museum facilities separately, but only as part of its overall determination as to the appropriate level of property insurance for City facilities citywide. City's Property Insurance "scheduled" policy coverages are in Exhibit K and scheduled values for Museum facilities are in Exhibit L. 30.12 Business Interruption Insurance. The City will not be responsible for any "business interruption" losses suffered by CCMJV as a result of damage to a Museum facility. CCMJV shall determine whether to acquire insurance to cover any such losses. 30.13 Waiver of Subrogation. The parties release each other from any claims for damage caused by or resulting from risks insured against under any insurance policies carried by the parties under this Agreement. The parties agree to cause the issuers of the insurance policies maintained by them hereunder to include waivers of the rights of recovery and subrogation. 30.14 Payment of Damages. Nothing herein contained shall be construed as limiting in any way the extent to which CCMJV may be held responsible for payments of damages to persons or property resulting from CCMJV's or its subcontractors' performance of the work covered under this Agreement. 30.15 Report of Accident. In the event of accidents of any kind related to this Agreement, CCMJV shall furnish the Risk Manager with copies of all reports of such accidents within ten (10) days of the accident. 47 30.16 Proceeds of Casualty Insurance. If either the Museum or any part is damaged or destroyed by fire or other casualty, the City will determine whether or not repairs and restoration are practicable and feasible and will inform CCMJV in writing of its election to make or not make any such repairs and restoration within one hundred twenty (120) days following the date of such damage or destruction. All proceeds of any casualty insurance paid for by the City shall be the exclusive property of the City and CCMJV shall have no rights to receive any sums therefrom. If the City elects not to repair or restore, the City shall have the right to terminate this Agreement with respect to the Museum, without penalty, premium or fee, by sending notice to CCMJV. If the City elects not to restore any damaged or destroyed facilities' improvements and there is an outstanding approved facility expenditure due to CCMJV, then City shall pay to CCMJV from the casualty insurance proceeds that portion of the casualty insurance proceeds attributable to the improvements, but in no event in an amount to exceed the outstanding facility expenditure. If the City elects not to restore the Museum (whichever has been damaged) but within one (1) year following termination of this Agreement decides to restore the same, the City shall give written notice thereof to CCMJV whereupon CCMJV shall have a period of thirty (30) days in which to elect to enter into, and actually enter into, a new contract with the City for operation of the same following its restoration which contract shall be on the same terms and conditions described herein except that the term shall be only for the portion of the term hereof lost due to termination under this Section. If on the other hand, the City elects to repair and restore, the City shall give written notice thereof to CCMJV whereupon CCMJV shall have a period of thirty (30) days in which to elect to enter into, and actually enter into, a new contract with the City for operation of the same following its restoration which contract shall be on the same terms and conditions described herein except that the term shall be only for the portion of the term hereof lost due to termination under this Section. ARTICLE 31 REPRESENTATIONS AND WARRANTIES 31.1 Representations and Warranties. CCMJV represents and warrants to the City and covenants as follows: (a) Mission. CCMJV is capable in aspects related to the operation and management of the Museum and agrees to apply its best efforts and most efficient methods in the full operation and management of the Museum. (b) Formation. CCMJV is a limited liability company duly incorporated, validly existing and in good standing under the laws of the State of Texas. (c) Authority. CCMJV has full power and authority (corporate or otherwise) to enter into this Agreement and to consummate the transactions contemplated by it. This Agreement has been duly authorized by all necessary action on the part of CCMJV and no other corporate or other action on the part of CCMJV is necessary to authorize the execution and delivery of this Agreement. The individual executing this Agreement for CCMJV has full authority to do so and to bind CCMJV to its terms. 48 (d) Conflicts and Consents. The execution and delivery by CCMJV of this Agreement and the performance by CCMJV of the transactions contemplated in it will not violate any federal, state, or local law, rule, or regulation, or conflict with or result in any breach or violation of, or constitute a default (or an event which with notice or lapse of time or both would become a default) under, or constitute an event or condition that would permit termination or acceleration of the maturity of, the Articles of Incorporation, bylaws or partnership agreement of CCMJV (as applicable) or any indenture, mortgage, lease, agreement, or other instrument or obligation to which CCMJV is a party or by which it may be bound whose termination or acceleration would materially adversely affect the ability of CCMJV to perform its obligations under this Agreement. No approval, authorization, consent, or other order or action of, or filing or registration with, any person, entity, or governmental authority is required for the execution and delivery by CCMJV of this Agreement. (e) Conflict with Orders, etc. The execution and delivery by CCMJV of this Agreement will not conflict with any order, judgment, or decree of any court, government, government agency, or instrumentality, whether entered pursuant to consent or otherwise, by which CCMJV may be bound or affected. (f) Litigation. There is no litigation, action, arbitration, grievance, administrative proceeding, suit, or claim filed and pending, nor is there any investigation by a governmental agency of CCMJV or any of its affiliates that, if adversely decided, could have a material adverse impact on CCMJV's ability to perform its obligations under this Agreement. ARTICLE 32 FORCE MAJEURE 32.1 Force Majeure. As used in this Agreement, the term "Force Majeure" with respect to a delay in performance shall mean any delay that is attributable to: (a) any strike, lockout or other labor or industrial disturbance (whether or not on the part of the employees of either party), civil disturbance, future order claiming jurisdiction, act of the public enemy, war, riot, sabotage, blockade, embargo, inability to secure customary materials, supplies or labor through ordinary sources by reason of regulation or order of any government or regulatory body; (b) any changes in any applicable laws or the interpretation; or (c) any lightning, earthquake, fire, storm, hurricane, tornado, flood, washout, explosion, or any other cause beyond the reasonable control of the party from whom performance is required and of its contractors or other representatives. Any prevention, delay, or stoppage in a party's performance due to Force Majeure shall excuse the performance of the party affected for a period of time equal to any such prevention, delay, or stoppage; provided, however, that during the period of any such delay or stoppage, the party whose performance is excused shall take all reasonable steps to minimize the length of such delay or stoppage. ARTICLE 33 49 INDEMNITY 33.1 Indemnification and Hold Harmless. CCMJV, its officers, agents, and employees ( "Indemnitor ") shall indemnify and hold the City of Corpus Christi, its officers, agents, employees and representatives ( "Indemnitees "), harmless and defend with counsel retained by CCMJV, from and against any third -party action, cause of action, suit, debt, cost, directly - related reasonable expense (including reasonable attorneys' fees, court costs or investigation costs), claim, or demand brought or asserted by any third -party whomsoever (collectively, "Claims "), including but not limited to claims on account of personal injuries or death or damage to property, at law or in equity, which any Indemnitees may suffer or sustain or which may be asserted or instituted against any of Indemnitees resulting from or in connection with (i) the negligence or willful misconduct of CCMJV or its agents, contractors or employees; (ii) any breach or default by CCMJV of any of its warranties, representations, covenants, or obligations made in this Agreement; or (iii) the violation of any copyright, patent, service mark, trade name or trademark by CCMJV; provided, however, that the foregoing indemnification shall not extend to Claims to the extent such Claims (A) arise from any breach or default by the City of any of its warranties, representations, covenants or Obligations made in this Agreement, as determined by a court of competent jurisdiction, (B) are caused by or arise out of the services provided by the architects, engineers and other agents (other than CCMJV) retained by the City in connection with capital improvements or capital equipment purchases at the Facility, (C) arise from the fact that at any time prior to, as of, or after the commencement of the term hereof the Facility and its premises are not or have not been, in compliance with all federal, state, local and municipal regulations, ordinances, statutes, rules, laws and constitutional provisions including, but not limited to, all handicap accessibility laws, rules and regulations, (D) arise from any obligation or liability under or in respect of any contract, agreement or other instrument executed by CCMJV as authorized herein unless CCMJV's acts or omissions in administration thereof are the basis for such liability, as determined by a court of competent jurisdiction, (E) arise from any act or omission carried out by CCMJV at or pursuant to the express direction or instruction of the City's Contract Administrator (but only if CCMJV advises the City's Contract Administrator in writing, promptly following such direction, that CCMJV believes such direction to be imprudent) , or (F) arise from acts of negligence or willful misconduct of City's agents, employees or subcontractors. City agrees to promptly notify CCMJV of any Claim received by the City. This indemnity specifically includes any Claims brought by CCMJV's officers, agents, contractors, or direct employees. This indemnity shall continue notwithstanding the termination of this Agreement with respect to any act or occurrence preceding the termination. 33.2 Relationship to Insurance Obligations. Nothing contained in this Article 33 shall be construed to affect the allocation of responsibilities between the Parties or the insurance coverages required in Article 30 of this Agreement. ARTICLE 34 DEFAULT; TERMINATION OF AGREEMENT; REMEDIES 34.1 Termination la City. The City shall have the right to terminate this Agreement following an Event of Default. The following shall constitute "Events of Default" under this Agreement: 50 (a) failure of CCMJV to perform or comply with any covenant or condition made under this Agreement, or failure of any representation or warranty made by CCMJV in this Agreement to have been or to continue to be true and correct, provided CCMJV shall have a period of sixty (60) days from the date of written notice from the City within which to cure such default, or, if such default is not legally capable of cure within such 60 -day period, CCMJV shall have a reasonable period to complete such cure if CCMJV promptly undertakes action to cure such default within such 60 -day period and later diligently prosecutes such action to completion; (b) abandonment or assignment or encumbrance or transfer of this Agreement or of the Property by CCMJV, without the prior written consent of City; and (c) the appointment of a receiver to take possession of all or substantially all of the assets of CCMJV, or an assignment by CCMJV for the benefit of creditors, or any action taken or suffered by CCMJV under any insolvency, bankruptcy, reorganization, moratorium, or other debtor relief act or statute, whether now existing or later amended or enacted, if any such receiver, assignment, or action is not released, discharged, dismissed, or vacated within sixty (60) days. (d) The above is in addition to any other right to terminate explicitly given to the City elsewhere in this Agreement. 34.2 Termination by CCMJV. In the event the City fails to timely pay any portion of any fee due under this Agreement or to perform any other obligation required to be performed by the City, and such failure is not cured within sixty (60) days after written notice of such failure has been delivered to the City by CCMJV, CCMJV shall have the right to terminate this Agreement; provided that if such default is not legally capable of cure within such 60 -day period, the City shall have a reasonable period to complete such cure if the City promptly undertakes action to cure such default within such 60 -day period and later diligently prosecutes such action to completion. The above is in addition to any other right to terminate explicitly given to CCMJV elsewhere in this Agreement. ARTICLE 35 SURRENDER OF PREMISES 35.1 Surrender of Premises. Transition. Upon the Termination Date or other termination of this Agreement, CCMJV shall (a) promptly remit to the City funds which are due and owing pursuant to the terms of this Agreement, including funds not expended but held by CCMJV, and (b) peaceably quit and surrender to the City the Premises and Property together with all permanent improvements approved by the City, in good order and condition, normal wear and tear and damage caused by casualty or condemnation excepted. In order to determine the proper remittance to the City under the above- mentioned clause (a), CCMJV agrees throughout the term of this Agreement to segregate Revenue and Operation Support Payment in an account or accounts separate from other funds held by CCMJV. The Premises and Personal Property shall be surrendered free and clear of all liens and encumbrances other than presently existing liens and encumbrances and any other encumbrances created or approved in writing by City. CCMJV 51 shall, immediately before the Termination Date or other termination of this Agreement, remove all of CCMJV's Property as provided in this Agreement, and repair any damage resulting from the removal. CCMJV's obligations under this Article shall survive the Termination Date or other termination of this Agreement. Any items of CCMJV's Property which shall remain in the Premises after the Termination Date of this Agreement may, at the option of the City, be deemed abandoned and in such case may be disposed of by City in any manner allowed by law. Upon the termination of this Agreement for any reason, CCMJV and the City shall cooperate to the fullest reasonable extent in effecting an orderly and efficient transfer of the operation and management of the Museum from CCMJV to the City or its designee. Such cooperation shall include without limitation the entry into such agreement, the execution of such documents and the convening of such meetings as may be reasonable required to affect such transfer. ARTICLE 36 HAZARDOUS MATERIALS 36.1 Definitions. As used in this Agreement, the following terms shall have the meanings set forth below: (a) "Environmental Laws" means any applicable federal, state, and local laws (whether under common law, statute, ordinance, rule, regulation, code, or otherwise), permits, orders, decrees, and other requirements of governmental authorities relating to the protection of human health or the environment, whether existing as of this date, previously enforced, or subsequently enacted. (b) "Hazardous Material" means any element, compound, chemical, chemical mixture, or other substance that is identified as, or determined to be, a hazardous, toxic, or dangerous substance, pollutant, contaminant, waste, or material under, or is otherwise regulated under, any Environmental Law or other law relating to chemical management, environmental contamination, environmental cleanup, or nuisances, including, without limitation, petroleum and petroleum products, asbestos, radon and other radioactive materials, bio- hazards, and lead -based paint. (c) "Release" when used with respect to Hazardous Material shall include any actual or imminent spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing in, on, under, or about any other part of the Property. 36.2 No Hazardous Materials. CCMJV covenants and agrees that neither CCMJV nor any of its agents or Invitees shall cause or permit any Hazardous Material to be brought upon, kept, used, stored, generated, or disposed of in, on, or about the Property, or transported to or from the Property, provided that CCMJV may use such substances in such limited amounts as are customarily used in the operation and maintenance of a Museum so long as such use is in compliance with all applicable Environmental Laws. Each party shall immediately notify the 52 other party if and when such party learns or has reason to believe there has been any Release of Hazardous Material on or about the Property. 36.3 CCMJV's Environmental Indemnity. If CCMJV breaches any of its obligations contained in this Article, or, if any act, omission or negligence of CCMJV or any of its agents or Invitees results in any contamination of the Premises or any other part of the Property or in the Release of Hazardous Material from, on, about, in, on or beneath the Property, then CCMJV shall Indemnify the City from and against all losses (including, without limitation, the loss or restriction of the use of the Property and sums paid in settlement of claims, fines, civil penalties, attorney's fees, consultants' fees and experts' fees and costs) arising during or after the Term of this Agreement and relating to such Release; provided, however, that the Indemnity contained in this Article shall not apply to any losses resulting from a Preexisting Condition. The above - mentioned indemnity includes, without limitation, costs incurred in connection with the investigation of site conditions and all activities required to locate, assess, evaluate, remediate, clean up, remove, contain, treat, stabilize, monitor or otherwise control any Hazardous Material, and to restore the Property to its prior condition. Without limiting the above, if CCMJV or any of its agents or invitees causes or permits the Release of any Hazardous Materials on, about, in or beneath the Property, CCMJV shall, immediately, at no expense to the City, take any and all necessary actions to abate and remediate the Release in accordance with all Environmental Laws. CCMJV shall afford the City a full opportunity to participate in any discussions with governmental regulatory agencies regarding any settlement agreement, cleanup or abatement agreement, consent decree, or other compromise or proceeding involving Hazardous Material. ARTICLE 37 ASSIGNMENTS; SUBCONTRACTING 37.1 Assignments; Subcontracting. CCMJV has been chosen by the City to operate and manage the Museum in reliance upon CCMJV's stated and unique expertise, skill, knowledge, and mission. CCMJV shall not assign, transfer, mortgage or encumber its interest in this Agreement or any other right, privilege or license conferred by this Agreement, either in whole or in part. Any assignment or encumbrance shall be voidable and, at the City's election, shall constitute a material default under this Agreement. Without limiting the obligations of CCMJV under this Agreement, CCMJV shall have the right and the authority to enter into contracting arrangements with any other person or entity (including without limitation the City or other City agency) for the provision of any service required or allowed to be performed by CCMJV under this Agreement. ARTICLE 38 NOTICES 38.1 Notices. All notices required to be given shall be in writing and either delivered personally or sent by certified mail to the appropriate address listed below, or at such other address as shall be provided by written notice. Notice shall be deemed communicated two Business Days from the time of mailing if mailed as provided in this Article. For convenience of 53 the parties, copies of notices may also be given by other means; however, neither party may give official or binding notice except by personal delivery or by certified mail. If to Corpus Christi Museum Joint Venture: If to the City of Corpus Christi: William Durrill 615 Upper Broadway Corpus Christi, Texas 78401 Ronald L. Olson City Manager City of Corpus Christi 1201 Leopard P.O. Box 9277 Corpus Christi, Texas 78469 ARTICLE 39 COMPLIANCE WITH LAWS 39.1 Generally. CCMJV shall comply and conform with all laws and all governmental regulations, rules, and orders that may from time to time be put into effect relating to, controlling or limiting the use and operation of the Museum. CCMJV shall secure, or cooperate with the City in its securing, all permits and licenses specifically required for the operation of the Museum (copies of which shall be promptly provided to the City), and shall comply with all applicable laws and regulations relating to labor employed in and relating to the operation of the Museum. 39.2 Preexisting Conditions. Notwithstanding any other provision of this Agreement to the contrary, CCMJV shall incur no liability for, or assume any obligation to correct, any Preexisting Condition; provided, however, that CCMJV shall use its reasonable efforts to (a) identify all such Preexisting Conditions and notify the City immediately of their existence, (b) take all reasonable action necessary to minimize any risk of injury or liability that may be occasioned by such a Preexisting Condition, and (c) to the extent funds are or become available, as referred to in the following sentence, take all reasonable action necessary to correct any such Preexisting Condition; provided further, however, that the above shall not condition or limit City's Indemnity under Article 33 above. The City agrees to use its reasonable efforts to assist CCMJV in obtaining such grants or other funds as may be available to assist in the financing of any work performed to bring any building, structure or service within the Premises into compliance with any applicable local, state or federal law or regulation, including without limitation the Americans with Disabilities Act of 1990. Nothing in this Article shall eliminate any obligation of CCMJV to ensure that all new construction, remodeling or rehabilitation work performed by CCMJV at the Museum is completed in compliance with all applicable local, state, and federal laws and regulations. Either party shall have the option of terminating this Agreement in the event the parties are unable to satisfactorily resolve any Preexisting Condition. 39.3 Americans with Disabilities Act. CCMJV acknowledges that the Americans with Disabilities Act (the "ADA ") requires that programs, services, and other 'activities provided by a 54 public entity to the public, whether directly or through a contractor, must be accessible to the disabled public. CCMJV further acknowledges its obligation to comply with the ADA and any other federal, state or local disability rights legislation. CCMJV warrants that it will fulfill that obligation, and that it will not discriminate against disabled persons in the provision of services, benefits or activities pursuant to this Agreement. 39.4 Non- Discrimination Ordinances. CCMJV shall comply with all provisions of CORPUS CHRISTI, TEX., CODE §24 -82, as amended, recodified or reenacted from time to time, relating to equal opportunity in employment and business practices. Such provisions are incorporated in this Agreement and by reference made a part of this Agreement as though fully set forth in this Agreement. ARTICLE 40 TAXES, ASSESSMENTS, LICENSES, PERMIT FEES, AND LIENS 40.1 Taxes, Assessments, Licenses, Permit Fees, and Liens. CCMJV agrees to pay taxes of any kind, including any possessory interest taxes (unless exempt under Texas law), that may be lawfully assessed on or on account of the performance of this Agreement and to pay all other taxes, excises, licenses, permit charges, and assessments based on CCMJV's use of the Premises that may be imposed upon CCMJV by law, all of which shall be paid when such sums become due and payable and before delinquency. CCMJV agrees not to allow or suffer a lien for any such taxes to be imposed upon the Premises or upon any equipment or property located there without promptly discharging such lien, provided that CCMJV, if so desiring, may have reasonable opportunity to contest the validity of it. If CCMJV intends to contest or to fail to pay when due any tax or fee referred to in the preceding sentence, CCMJV shall provide the City with at least 30 -days' notice of that intention before the tax is due, explaining its reasons. 40.2 Sales Tax. CCMJV shall collect and remit all sales tax required by law. CCMJV shall be responsible for the payment of all sales tax collected. If CCMJV intends to contest or to fail to pay when due any tax or fee referred to in the preceding sentence, CCMJV shall provide the City with at least 30 -days' notice of that intention before the tax is due, explaining its reasons. 40.3 Unpaid taxes. The City may choose to pay the tax on behalf of CCMJV, and if it is later determined the tax or some portion of it validly owed, CCMJV shall reimburse the City within thirty (30) days of written demand. ARTICLE 41 MISCELLANEOUS 41.1 Liability of the City. The City's obligations to CCMJV under this Agreement shall be limited to the terms and conditions set forth in this Agreement. Notwithstanding any other provision in this Agreement to the contrary, in no event shall the City be liable, regardless of whether any claim is based on contract or tort, for any special, consequential, indirect or incidental damages, including without limitation lost profits, arising out of or in connection with this Agreement or the services performed in connection with this Agreement. 55 41.2 Liability of CCMJV. CCMJV's obligations to the City under this Agreement shall be limited to the terms and conditions set forth in this Agreement. Notwithstanding any other provision in this Agreement to the contrary, in no event shall CCMJV be liable, regardless of whether any claim is based on contract or tort, for any special, consequential, indirect or incidental damages, including without limitation lost profits, arising out of or in connection with this Agreement or the services performed in connection with this Agreement. 41.3 Liens. CCMJV shall keep the Premises and Personal Property free from any liens arising out of any work performed, material furnished or obligations incurred by or for CCMJV and any other liens or encumbrances. 41.4 Parties and Their Agents. As used in this Agreement, the term "agents" when used with respect to either party shall include the agents, employees, officers, and representatives of such party. All approvals, consents or other determinations permitted or required by the City shall be made by or through the City Manager unless otherwise provided in this Agreement or unless the City gives notice otherwise to CCMJV. 41.5 Dispute Resolution. In the event of a dispute between CCMJV and the City regarding any term of this Agreement, the parties shall attempt to resolve the matter informally through the following mechanism: the City Manager and CCMJV management, or their respective designees, shall meet to review and discuss the matters in dispute; if the City Manager and CCMJV are unable to reach a mutual resolution, either party may submit the matter to a nonbinding, structured mediation procedure fashioned by persons or organizations experienced in alternative dispute resolution ( "ADR ") procedures. The mediation may be requested by any party and shall be initiated within thirty (30) days from the date of the request unless extended by agreement of both parties. The alternative dispute resolution procedures utilized for the mediation shall include the exchange of written claims and responses, with supporting information, at least seven (7) days prior to the actual mediation. The positions expressed and mediator's recommendations shall not be admissible as evidence in any subsequent ADR or legal proceeding. If the matter is submitted to mediation and the matter is not resolved, an affected party shall be entitled to pursue any legal remedy available. 41.6 No Implied Waiver. No failure by either party to insist upon the strict performance of any obligation of the other party under this Agreement or to exercise any right, power or remedy arising out of a breach, irrespective of the length of time for which such failure continues (except in cases where this Agreement expressly limits the time for exercising rights or remedies arising out of a breach), shall constitute a waiver of such breach or of that party's right to demand strict compliance such term, covenant or condition or operate as a surrender of this Agreement. No waiver of any default or the performance of any provision shall affect any other default or performance, or cover any other period of time, other than the default, performance or period of time specified in such express waiver. One or more written waivers of a default or the performance of any provision shall not be deemed to be a waiver of a subsequent default or performance. The consent of either party given in any instance under the terms of this Agreement shall not relieve the other party of any obligation to secure the consent of the other party in any other or future instance under the terms of this Agreement. 56 41.7 Headings and Subheadings. The captions preceding the articles and sections of this Agreement and in the table of contents have been inserted for convenience of reference and such captions in no way define or limit the scope or intent of any provision of this Agreement. 41.8 Successors and Assigns. The terms, covenants, and conditions contained in this Agreement shall bind and inure to the benefit of the City and CCMJV and, except as otherwise provided in this Agreement, their personal representatives and successors and assigns. There are no third -party beneficiaries to this Agreement. 41.9 Access to Museum. The City and their duly authorized agents shall have access to the Premises and other Property at all times (a) for the purpose of inspection and to make any repairs, additions or renovations as the City may have the right to do under the provisions of this Agreement, and (b) for use by the City in case of emergency, as determined by City in its sole discretion. 41.10 Relationship of Parties. The services to be rendered by CCMJV pursuant to this Agreement are as an independent contractor only and the relationship between CCMJV and the City is solely that of owner and contractor. Nothing contained in this Agreement shall be construed to create a partnership, joint venture, or a relationship of employment or agency. 41.11 Agreement Made in Texas. This Agreement shall be deemed to be made in and shall be construed in accordance with the laws of the State of Texas. Venue of any action brought by one party against the other to enforce or arising out of this Agreement shall be in Nueces County, Texas. 41.12 Integrated Agreement; Modification. This Agreement contains all the agreements of the parties relating to the subject matter addressed in this Agreement, and cannot be amended or modified except by a written agreement approved by the City of Corpus Christi City Council and mutually executed between each of the parties. 41.13 Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same instrument. 41.14 Exhibits. All Exhibits to which reference is made in this agreement are deemed incorporated in this agreement in their entirety, whether or not actually attached. 41.15 Non - Liability of Officials, Employees, and Agents. No elective or appointive board, commission, member, officer, employee or other agent of the City shall be personally liable to CCMJV, its successors, and assigns, in the event of any default or breach by the City or for any amount which may become due to CCMJV, its successors, and assigns under this Agreement, or for any obligation of the City under this Agreement. Likewise, no board member, member, officer, employee or other agent of CCMJV shall be personally liable to the City, its successors, and assigns under this Agreement, in the event of any default or breach by CCMJV or for any 57 amount which may become due to the City, its successors, and assigns, or for any obligation of CCMJV under this Agreement. 41.16 Time of Essence. Time is of the essence of each provision of this Agreement. 41.17 Survival of Indemnities. Termination of this Agreement shall not affect the right of either party to enforce any and all Indemnities and representations and warranties given or made to the other party under this Agreement, nor shall it affect any provision of this Agreement that expressly states it shall survive such termination. 41.18 Good Faith Dealings. All parties will act in good faith in the preparation, execution, and resolution of any matter within the scope of this Agreement. These good faith acts shall be made in a lawful and ethical manner. 41.19 Severability. If any article, section, subsection, paragraph, sentence or clause of this Agreement shall be deemed to be illegal, invalid or unenforceable for any reason, such illegality, invalidity or unenforceability shall not affect the legality, validity or enforceability of the remainder of this Agreement. If any change occurs during the term of this Agreement with respect to any laws, rules, regulations or ordinances which affect the rights or obligations of CCMJV or the City under this Agreement, or the applicability of any taxes or fees, CCMJV and the City shall negotiate in good faith to bring this Agreement into conformance with such change or changes. In the event that such agreement cannot be reached, CCMJV or the City shall have the right to immediately terminate this Agreement upon written notice to the other party. IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first above written. CORPUS CHRISTI MUSEUM CITY OF CORPUS CHRISTI JOINT VENT RE I,LQ By: William -Du ni Principal 2_ By: Ron L. Olson City Manager Date Date Approved as to legal form: ft 2- , 2012 Buck Brice Assistant City Attorney For City Attorney 58 Museum Management Museum Parking Lots highlighted AMERICAN AAM Accreditation Commission Chair Bonnie Styles Director, Illinois State Museum, Illinois William Director, Georgia Museum of Art, Athens, Georgia Andrew Meech President and CEO, Senator John Heinz History Center, Pittsburgh, Pennsylvania Patricia Murphy Executive Director, Oberlin Heritage Center, Oberlin, Ohio Terrie Rause Founding and Former CEO for Visitor Services, United States Capitol Visitors Center, Washington, DC Mary Sue Sweeney Price Director, The Newark Museum, New Jersey James Weiu Director, Worcester Museum of Art, Worcester, Massachusetts ASOCIATION OF MUSEUMS Novem6er23,3O11 Mr. Richard R. Sttyker, Jr. Director Corpus Christi Muscuin ofScicncc and History 1900 N Chaparral St Corpus Christi, IX784O1-ll14 Dear Mr. Stryker: (]o behalf of the Accreditation Commission, it is my grea pleasure k` tell you that the Corpus Christi Museum of Science and History has been awarded subsequent AAM Museum Accreditation at the November 7-9, 2011 meeting! This means the museum mcets National Standards and Best Practices for U.S Museums and remains o member o[xcommunity of institutions that have chosen to hold themselves publicly accountable 10 exccllencc. Through a rigorous process o[ self assessment and review by its peers, the museum has shown itself to be a good steward of its resources held in the public trust and committed to a philosophy of continual institutional growth. We applaud the rnuscum for cxcelknt educational programs and cxhibitions that engage regional xodivocco.BvH6r6n�eo[dheu*utcmv*w,wecxpcctvnoomcviduoce o[astrategic planning and approved plan that, in partnership with th City of Cmp Christi, meets the An-titillation Commission's Expeckaions Regards- ng It/Villa/anal Planni ng (enclosed). The planning process should include a review of the mission statement and address governance issues, including clear delegation of authority to improve staff efficiency and morale. We encourage the City Council, as a partner and parent to the museum, to participate in the planning process and endorse a plan that will help the museum continue to meet best practices in the museum field, and achieve its full potential. Accreditcd museums are lookcd up to as leaders in ihe fictd and we encourage you to proactively fulfill this responsibility by scrving as a rncntor and resource for other muxocuuo*. Support and encourage rnuseutns working towards meeting standards, improving practices, or secking accreditation by attending and speaking at professional m0006ngm.being uoAA�� sharing your cxpertise in ather ways. To help ensure that accredited museums maintain their leei of profcssional performance they must undergo periodic reaccreditation reviews. Effecthrc in 2010, the Accrcditation Commission has itnplemented a temporary extension of the standard review cycle from 10 years to 15 years. The Accrcditation Program staff will therefore initiate the museum's next accreditation review- –starting with the self- process—in 2024./\n part ufthe cycle exteouiuo,/nu000cop will also be asked 10 periodically subinit updates/data electronically in 15nn EYE STREET NW, SUITE 4no WASHINGTON uoxu000 PHONE: 202.289,1818 FAX: 202,289.6578 WWW.AAM-US.ORG the intervening years. More information about this new component will be release( in the next couple of years. Congratulations on this achievement. I know everyone at the museum has worked hard to earn this honor. The Accreditation Program staff can always be reached at (202) 289-9116 or by e-mail at accreditation@aam-us.org if you have any questions about the program and maintaining your institution's accredited status. Sincerely yours, 5:24.4.14 rcow. Bonnie W. Styles, Ph.D. Chair, Accreditation Commission Director, Illinois State Museum Enclosures Accreditation Commission's Expectations Regarding Institntional Planning Award Kit Site Visit Report What You Need To Know About: The Museum's Visiting Committee Site Visit Report What You Need to Know About: The Temporary Reaccreditation Cycle Extension cc: Mr. Ronald L. Olson, Manager, City of Corpus Christi Mr. Bruce B. Eldredge, Visiting Committee Team Contact Ms. Laurie J. Rule, Visiting Committee Team Member By accepting accredited status, your institution agrees to abide by the decisions of the Accreditation Commission regarding continuing review, subsequent accreditation, and, if necessary, withdrawal of accreditation, and to comply with the administrative requirements of the program. You may display your certificates of accreditation and use the accreditation logo on printed materials as long as your institution meets the program requirements and standards for accreditation as determined by the Accreditation Commission. TEXAS HISTORICAL COMMISSION The State Agency for Historic Preservation RICK PERRY, GOVERNOR JOHN L. NAU, III, CHAIRMAN F, LAWRENCE OAKS, EXECUTIVE DIRECTOR November 8, 2005 Richard Stryker, Ph.D., Director Corpus Christi Museum of Science and History 1900 N. Chaparral Corpus Christi, TX 78401 Dear Rick, Congratulations on your successful certification through the Texas Historical Commission's (THC) Curatorial Facility Certification Program (CFCP). Your willingness to participate as the first curatorial facility to undergo the certification process has proved successful, both for your facility and the CFCP in general. The observations and suggestions you offered with regards to the program are very much appreciated and will be taken into consideration after the initial testing phase of the CFCP is complete. The Corpus ChriSti Museum of Science and History was granted certification with three deficiency factors at the quarterly meeting of the THC held in Jefferson, TX from October 26 — 28, 2005. The three noted deficiency factors include incomplete held-in-trust agreements for state-associated held-in-trust collections, substandard policies and substandard procedures as outlined in the CFCP handbook. Certification is granted for a period of ten years. Thus, initial certification for the Corpus Christi Museum of Science and History will expire on October 28, 2015. Prior to expiration, the Corpus Christi Museum of Science and History will be notified by the THC regarding the need to renew its certification. Mark Ryan, the Curatorial Facility Certification Program Coordinator, will work with you and your staff on monitoring progress towards efforts taken to remedy the noted deficiency factors. Please feel free to contact Mark at (512) 463-6252 for more information or to discuss any issues or concerns. Congratulations once more on your successful certification. F. La rence Oaks Executive Director FLO/M/1ft P. 0. BOX 12276 • AUSTIN, TX 78711-2276 • 512/463-6100 • FAX 512/475-4872 • TDD 1-800/735-2989 www.thc.statctx.us 1. PERMITTEE DEPARTMENT OF THE INTERIOR I , SE �� ! 2� {n U.S. FISH AND WILDLIFE SERVICE f L r V FEDERAL FISH AND WILDLIFE PERMIT CORPUS CHRISTI MUSEUM OF SCIENCE AND HISTORY CORPUS CHRISTI MUSEUM 11268A CORPUS CHRISTI, TX 78401 U.S.A. B. NAME AND TITLE OF PRINCIPAL OFFICER ( /151 IS a business) RICHARD S. STRYKER MUSEUM DIRECTOR 10. LOCATION WHERE AUTHORIZED ACTIVITY MAY BE CONDUCTED TEXAS 1900 N. CHAPARRAL NUECE8 COUNTY CORPUS CHRISTI TX , CONDITIONS AND AUTHORIZATIONS: 3.201 (I/97) 2. AUTHORITY- STATUTE 1 B USC 703 -712 REGULATIONS 50 CFR Pert 13 50 CFR 21.27 NUMBER MB11266A•0 4. RENEWABLE Ii. MAY COPY M j YES F YES III NO I NO EFFECTIVE 7. EXPIRES 09/01/2010 03131/2013 9. TYPE OF PERMIT SPECIAL PURPOSE POSSESSION- DEAD MIGRATORY BIRDS FOR EDUCATIONAL USE A. GENERAL CONDITIONS SET OUT IN SUBPART D OF 50 CFR 13, AND SPECIFIC CONDITIONS CONTAINED IN FEDERAL REGULATIONS CITED IN BLOCK #2 ABOVE, ARE HEREBY MADE A PART OF THIS PERMIT. ALL ACTIVITIES AUTHORIZED HEREIN MUST BE CARRIED OUT IN ACCORD WITH AND FOR THE PURPOSES DESCRIBED IN THE APPLICATION SUBMITTED. CONT.INUED VALIDITY, OR RENEWAL, OF THIS PERMIT IS SUBJECT TO COMPLETE AND TIMELY COMPLIANCE WITH ALL APPLICABLE CONDITIONS, INCLUDING THE FILING OF ALL REQUIRED INFORMATION AND REPORTS. 8. THE VALIDITY OF THIS PERMIT IS ALSO CONDITIONED UPON STRICT OBSERVANCE OF ALL APPLICABLE FOREIGN, STATE, LOCAL OR OTHER FEDERAL LAW. C. VALID FOR USE BY PERMITTEE NAMED ABOVE. D. You are authorized to possess for conservation education purposes lawfully acquired dead migratory bird specimen(s), Including parts, nests, and nonviable eggs. This authorization to possess migratory birds does not apply to bald eagles or golden eagles.. Species authorized: All. Note: No Bald & Golden Eagle, no Threatened & Endangered species Any person who is (1) employed by or under contract to you for the activities specified In this permit, or (2) otherwise designated a subpermittee by you in writing,, may exercise the authority of this permit. Authorized subpermittees: Corpus Christi Museum staff You and any subpermittees must comply with the attached Standard Conditions for Special Purpose Possession Deed Migratory Bird Educational Use Permits, ADDITIONAL CONDITIONS AND AUTHORIZATIONS ALSO APPLY 12. REPORTING REQUIREMENTS ANNUAL. REPORT DUE: 01/31 SSUED BY TITLE ADMINISTRATOR, MIGRATORY BIRD PERMIT OFFICE - REGION 2 1. peemine8 DEPARTMENT OF THE INTERIOR U.S. FISH AND WILDLIFE SERVICE FEDERAL FISH AND WILDLIFE PERMIT CORPUS CHRISTI MUSEUM OF SCIENCE AND HISTORY 1900 N. CHAPARRAL CORPUS CHRISTI, TX 78401 U.S.A. 8. NAME AND TITLE OF PRINCIPAL OFFICER ( 1 is a business) RICHARD S. STRYKER MUSEUM DIRECTOR E OF PERMIT DEAD EAGLE EXHIBITION 3•201 AUTHORITY-STA 18 USG 668a REGULATIONS 60 CFR PART 13 50 CFR 22.21 • NUMBER MB11265A-0 . RENEWABLE 11 YES NO 8. EFFECTIVE 09/01/2010 6. MAY COPY ElYES NO 1.E.)(PRES 03/31)2013 10. LOCATION WHERE AUTHORIZED ACTIVITY MAY SE CONDUCTED TEXAS 1900 N. CHAPARRAL NUECES COUNTY CORPUS CHRISTI TX 11. CONDITIONS AND AUTHORIZATIONS: A. GENERAL CONDITIONS SET OUT IN SUBPART OF 60 CFR 13, AND SPECIFIC CONDITIONS CONTAINED IN FEDERAL REGULATIONS CITED IN BLOCK ft2 ABOVE, ARE HERESY MADE A PART OF THIS PERMIT. ALL ACTNITIES AUTHORIZED HEREIN MUST BE CARRIED OUT IN ACCORD WITH AND FOR THE PURPOSES DESCRIBED IN THE APPLICATION SUBMITTED. coNTINIJED VALIDITY, OR RENEWAL OF THIS PERMIT IS SUBJECT TO COMPLETE AND TIMELY COMPLIANCE WITH ALL APPLICABLE CONDITIONS INCLUDING THE FILING OF ALL REQUIRED INFORMATION AND REPORTS. THE VALIDITY OF THIS PERMIT IS ALSO CONDITIONED UPON STRICT OBSERVANCE OF ALL APPLICABLE FOREIGN, STATE, LOCAL OR OTHER FEDERAL LAW. C. VALID FOR USE BY PERMITTEE NAMED ABOVE. D. You are authorized e Irnen s • -- ‘-_r____ for „,.._......_.._.. ________ _, _ Qt Speclmen Acquired from . Date Acq. 1 Bald Eagle, full mount donated by US FWS 7/16/1971 Golden Eagle, egg on loan Am. Mus, Nat. Hist. 1970 1 Golden Eagle, study skin 1973 2 Bald Eagle, egg Forbes Nat. Scl for Youth Fndn . , 5/17/1975 2 Eagle, wings donated by Charles Moss 6/3/1980 1 Bald Eagle, egg Forbes Nat. Sci. for Youth Fndn 11/19/1969 2 Bald Eagle, egg Forbes Nat. Sci. for Youth Fndn 6/17/1975 E. Any person who Is (1) employed by or under contract to you for the activities specified In this permit, or (2) otherwise designated a subperrnittee by you in writing, may exercise the authority of this permit. Authorized subpermittees: Corpus Christi Museum staff F. You and any subpermittees must comply with the attached Standard Conditions for Dead Eagle Exhibition Permits. ADDITIONAL CONDITIONS AND AuTHORIzATIONS ALSO APPLY 12. REPORTING REQUIREMENTS ANNUAL REPORT DUE: 01/31 ISSUED BY ADMINISTRATOR, MIGRATORY BIRD PERMIT OFFICE - REGION 2 E. Any person who Is (1) employed by or under contract to you for the activities specified In this permit, or (2) otherwise designated a subperrnittee by you in writing, may exercise the authority of this permit. Authorized subpermittees: Corpus Christi Museum staff F. You and any subpermittees must comply with the attached Standard Conditions for Dead Eagle Exhibition Permits. ADDITIONAL CONDITIONS AND AuTHORIzATIONS ALSO APPLY 12. REPORTING REQUIREMENTS ANNUAL REPORT DUE: 01/31 ISSUED BY ADMINISTRATOR, MIGRATORY BIRD PERMIT OFFICE - REGION 2 EDUCATIONAL DISPLAY PERMIT NUMBER EDU-0707-1404 IS HEREBY ISSUED TO; RICHARD STRYKER, JR, CORPUS CHRISTI MUSEUM OF SCIENCE AND HISTORY UNDER THE AUTHORITY OF CHAPTER 43, SUBCHAPTER C OF THE TEXAS PARKS AND WILDLIFE CODE The activities permitted by this document are to be carried out in accordance with the Texas Parks and Wildlife Code, the Rules and Regulations of the Texas Parks and Wildlife Commission, and all of the following provisions: 1. This permit may not be transferred, assigned or conveyed by the holder. 2. The issuance of this permit is not a guarantee that a subsequent permit or renewal of this permit will be granted. 3. Required information and data shall be maintained at the address of the permit holder and shall be available for inspection at the request of personnel of the Texas Parks and Wildlife Department during the active life of the permit 4. Acceptance of this permit constitutes an acknowledgment and agreement that the holder will comply with all Rules, Regulations, Orders and Proclamations of the Texas Parks and Wildlife Commission issued in accordance with the law and the conditions precedent to the granting of this perrnit. Failure to comply with any and all provisions of this permit may result in enforcement action, including criminal penalties authorized by the Parks and Wildlife Code, and the revocation of this permit, 1 5. This permit does not relieve the holder of the responsibility to obey all other local, county, state and federal laws while carrying out the authorized activities. - ADDITIONAL PROVISIONS FOLLOW ON ATTACHED PAGES. - August 11, 2011 Amended Date Carter Smith EXECUTIVE DIRECTOR TEXAS PARKS AND WILDLIFE DEPARTMENT Issued by: Mitch Lockwood Interim Director, Big Game Program 6. This permit will expire at midnight, August 2, 2013. 7. The following individuals may conduct the activities authorized by this permit under the guidance of the permittee: SUBPERMITTEES: ASHLEY HENDERSON, MAGDALENA MEDRANO, ROY GARRETT UNPERMITTED ASSISTANTS: A permittee engaging unperrnitted assistants shall maintain on file at their office activities. and possess on their person in the field a signed and dated list of all unpermit-ted persons assisting in permitted Page I of 6 Stryker, Richard Expire s 08/02/2013 ScenUflc Permit No. EDU-0707-1404 8. The following wildlife species+ in the specified quantities are authorized by this permit to be: a. received from legal sources and held on public display for educational purposes. Common Name Scientific Name Quantity Reptiles, excluding species listed by the Department as N.A. threatened or endangered, unless authorized below. Texas Tortoise American Alligator Gopherus berlandieri NTE 1 Alligator mississippi NT B 2 b. taken from the public waters of Texas for educational purposes. Common Name Freshwater and marine fishes and invertebrates, excluding species listed by the Department as threatened or endangered. Quantity NTE 20 specimens per species per year c. received and possessed for the purpose of salvage, specimens found dead or received from legal sources. Common Name Scientific Name Quantity Birds* (bird specimens, parts, eggs, or nests), mammals, reptiles, amphibians, and invertebrates. Excluding species listed by the Department as threatened or endangered, unless expressly authorized below. BIRDS (bird specimens Bald Eagle Golden Eagle White-tailed Hawk Reddish Egret Piping Plover Wood Stork Bachman's Sparrow Peregrine Falcon Whooping Crane Sooty Tern Least Tern Golden-cheeked Warbler Brown Pelican Spotted Owl White-faced Ibis MAMMALS Kangaroo Rat Dwarf Sperm Whale Killer Whale Humpback Whale Red Wolf Gray Wolf Black Bear Jaguar , parts, eggs, or nests) Haliaeetus leucocephalus Aquila chlysaetos Buteo alblcaudatus Egretta rufescens Charadrius melodus Mycteria Americana Aimphila aestivalis Falco peregrines Grits Americana Sterna fiscata Sterna antillarwn Dendrolca chrysoparia Pelecanus occidentalis Strix occidentalis Plegadis chihi Dipodomys elator Kogia simus Ornicus orca Megaptera novaeangliae Canis rufus Canis lupus Ursus americanus Panthera onca Page 2 of 6 N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A. • Stryker, Richard Expires 08/02/2013 REPTILES AND AMPHIBIANS Loggerhead Sea Turtle Green Sea Turtle Atlantic Hawksbill Sea Turtle Kemp's Ridley Sea Turtle Alligator Snapping Turtle Chihuahuan Mud Turtle Texas Tortoise Reticulate Collared Lizard Texas Horned Lizard Mexican Tree Frog Mexican Burrowing Toad INVERTEBRATES Sandbank Pocketbook Golden Orb FISH Smalltooth Sawfish PLANTS Black Lace Cactus Johnston's Frankenia South Texas Ambrosia Slender Rushpea Caretta caretta Chelonia mydas Eretmochelys imbricate Lepidochelys kempli Graptemys eaglet! Kinosternon hirtipes murrayi Gopherus berlandieri Crotaphytus reticulates Phrynosoma cornutum Smilisca baudinii Rhinophrynus dorsalis Lampsi lis satura Quadrula aurea Pristis pectinata Scientific Permit No, EDU-9707-1404 N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A. Echinocereus reichenbachil var. albertii N.A. Frankeniajohnstonli N.A. Ambrosia cheiranthifolla N.A. Hoffinannseggia tenella N.A. * In accordance with an appropriate valid US Fish & Wildlife Service federal permit. 9. Permittee is authorized to lend mounted or salvaged protected wildlife specimens held by atfthority of this permit, for use in educational programs. All specimens shall be individually tagged or otherwise marked in such a manner as to allow identification of the pennittee as the source of the specimen. Specimens must be accompanied by required specimen donation form provided by, the Department. A copy of the completed form must be submitted with the annual report. 10. The facilities in which protected wildlife are held shall be maintained in accordance with Attachment I (69.305 Facility Standards). 11. The following means for taking or capture are authorized by this permit: a. live-trap, net, by hand, salvage, collection along public roads and rights-of-way, 12. The foll owing locations for taking or capture are authorized by this permit: a. Nueces county, of the state of Texas. 13. All fish collection gear left unattended shall be clearly marked with permittee's name and permit number. 14. All specimens taken or captured shall be deposited with an appropriate collection of the Corpus Christi Museum, Corpus Christi State University, or otherwise disposed of in accordance with paragraph I 5d of this permit. Page 3 of 6 Stryker, Richard Expires 08/02/2013. Scientific Permit No. EDU-0707-I404 15. PERMIT HOLDER IS REQUIRED TO: a. File a completed report form annually (provided on issuance of this permit), and any reports or publications based on data collected under authority of this permit, with the Texas Parks and Wildlife Department, Wildlife Permits Section, 4200 Smith School Rd., Austin, TX, 78744, no later than fourteen days following the anniversary date of the permit (or the expiration date if the permit is due for renewal). YOUR PERMIT WILL NOT BE VALID UNLESS YOUR REPORT HAS BEEN RECEIVED b. Carry a copy of this permit at all times when exercising the provisions of this permit, which shall be subject to inspection by any authorized enforcement officer of the Department upon request, c. Notify the Parks and Wildlife Department Law Enforcement Office(s) in the region(s) of your field activities by telephone not less than 24 hours nor more than 72 hours prior to collection if collection techniques or devices being used are ordinarily classified as illegal (Le., shooting game aniinals at night by use of light; taking game species during closed seasons; using gill nets or electro- shocking devices to collect fish; hunting/collecting along public roads and rights-of-way, etc.). A confirmed res 'onse from the local ame warden Is re, uired rlor to e &dim if the sant I n activities being conducted involve methods of capture ordi arils classified as illegal. If the regional office(s) or telephone number(s) is unknown, the number(s) may be obtained at any time by calling a Parks and Wildlife Communication Center; Austin - (512) 389-4848; Houston - (281) 842- 8100. d. Dispose of protected wildlife taken under the authority of this permit in only one oflhe following ways: (1). Kill and utilize by examination, experimentation, necropsy, or dispose of as waste in accordance with state law and city or county regulations (burning is suggested if not in conflict with city, county or state regulations), (2). Hold permanently for educational purposes, or donate to another educational display, scientific, or zoological permit holder authorized to receive such specimens, with required specimen donation form provided by the Department. A copy of the completed form must be submitted with the annual report. (3). Release unharmed at collection site. 16. PERMIT HOLDER 15 PROHIBrIED FROM a. Selling or bartering specimens collected under the authority of this permit. Specimens may be donated to other permit holders by completing the receipt form enclosed with the permit. b. Collecting on private premises without prior written consent of the owner or operator. of the premises. c. Collecting in a state park without prior written permission from Texas Parks and Wildlife Department Natural Resource Program: email: david.riskindQtowd.state.tx.us d. Collecting in a wildlife management area without prior written permission from the area manager. e. Taking species listed by the department as threatened or endangered without express authority in paragraph 8 of this permit. Page 4 of 6 Stryker, Richard Expires 08/02/2013 Scientific Permit No EDU-0707-1404 17. ADDITIONAL PROVISIONS: a. No hunting or fishing license is required for permit holders or individuals listed in paragraph 7 while conducting the activities expressly authorized by this permit. Bach listed Individual should carry a copy of this permit during collection activities, and a letter of permission from the permittee if working Independently. b. This permit is subject to any applicable federal permit requirements. Where a federal permit is required, the perrnit holder is cautioned to carry a copy of the federal as well as the state permit during collecting activity. 18. PERMIT HOLDER'S ADDRLSS FOR RECORDICEEPING PURPOSES: Richard Stryker Corpus Christi Museum 1900 North Chaparral Street Corpus Christi, TX 78401 ******************#************************ ATTACHMENT §69.305. Facility Standards. (a) All live birds or animals possessed under an educational display permit, or under a zoological collection permit in a facility that is not accredited by the American Zoo and Aquarium Association, shall be kept in enclosures meeting or exceeding the standards set forth in this section. (b) The minimum cage sizes for mammals shall be as follows. An enclosure for mammals shall add 30 per cent of the minimum cage requirement for each additional mammal contained in the enclosure. For each: (1) pronghorn antelope - 2,500 square feet x 8 feet in height; (2) deer - 1,800 square feet x 8 feet In height; (3) desert bighorn sheep 500 square feet x 8 feet in height; (4) black bear - 400 square feet x 12 feet in height; (5) jaguar - 200 square feet x 8 feet in height; (6) fox - 180 square feet x 5 feet in height; (7) wolf - 150 square feet x 8 feet in height; (8) javelina - 120 square feet x 5 feet in height; (9) other felines - 100 square feet x 8 feet in height; (10) fur-bearing animals as defined by Parks and Wildlife Code, Chapter 71 (except fox) - 72quare feet x 5 feet in height; and (11) all other mammals - 24 square feet. The minimum cage sizes for alligators shall be as follows. For each alligator: (I) less than two feet In length: three square feet; and (2) greater than two feet In length: three square feet per foot of body length. (3) there shall be access to pooled water sufficient to provide full immersion and dry land sufficient to permit complete exit from the water. (d) The minimum cage sizes for birds shall be as follows: (1) raptors (excluding eagles): 10' x 10' x 12'; (c) Page 5 of 6 / Stryker, Richard �|���� ���=°����ww . �� ����� -_—'_-_-^..~�~~-°',''~"~, (2) eagles; 20'x4O`x}2';and (3) ail other birds: 0pn6'x 12`- (e) All enclosures for bear, mountain lion, and jagua must be constructed of chain-link and their frames securely braced and well anchored. Enclosures for other mammals and birds must be made of chainHnk or welded wire ofa mesh size that prevents escapo, and enelosures housing birds must be Iined with nylon or plastic netting. Enclosures for felines must be covered by nine-gauge chain-link. (f) A facility shall eusure that,: (() eah enctosure is supplied with clean water m all times, except as medical circumstance dictates otherwise; (2) authorized personnel observe and provide care for birds and animals daily, excep as specifically authorized by permft; and (3) all medical treatment ayanimals is performed in oonsultation with a Iicensed veterinarian. (g) The department at its discretion may inspect any facility at reasonable times to ass ss compliance with the provisions ofthis subchapter. Page 6 of 6 Corpus Christi Museum of Science and History 1900 North Chaparral Corpus Christi, TX 78401 Collection Management Policy PURPOSE OF THE MUSEUM The mission of the Corpus Christi Museum of Science and History is to present the story of the cultural crossroads of the New World. With a unique confluence of natural history, science, people and environments, the South Texas area has served as a stage for the ongoing discovery of the Americas. Through innovative programs in history, culture, and science, the museum is committed to enlarging a shared understanding of our history and heritage as well as the impact and importance of science to our lives. By telling this story, the Museum will inspire a thirst for knowledge, context, and understanding. Strategic Objectives To guide this mission the Advisory Committee adopted a series of Strategic Objectives: A. Corpus Christi Museum of Science and History will build programs around three basic themes: Humans, the Environment, and Science. 1. How have human migration, cultural encounters, and interactions shaped the unique human character of South Texas and, in turn, how has South Texas influenced the world? 2. How have environmental features and resources been linked to the human migrations, settlements, and physical exploitation of South Texas resources? 3. What does science tell us about the unique natural world of South Texas and how can we best conserve our unique resources? B. The Museum will collect and preserve unique specimens, artifacts, and ephemera which illuminate our three basic themes and support innovative programming. C. To create new knowledge, Museum collections and resources will be shared with the public and researchers. (Adopted by the Museum Advisory Committee - September 2005) 1 PURPOSE OF THE COLLECTION The Museum collects arid preserves unique specimens, artifacts, and ephemera which illuminate our three basic thernes and support innovative prograrnming. To create new knowledge, Museum collections and resources wilI be shared with the public and researchers. Responsibility for the Collection The City Council established the museum: an administrative department responsible for the operation of the Corpus Christi Museum of Science and History as a scientific institution for information, education and recreation; and support services for the museum advisory board. (Code of Ordinances, City of Corpus Christi, Texas, Article 111, Section 2-51) The City Council authorized the Advisory Committee to adopt comprehensive policies for acquiring, holding, and disposing of, by any legal means, real estate and personal property (collections) to further the purpose ofthe Museum. The Museum Advisory Committee consists oftweve (12) members appointed by the mayor with the advice and consent of the city council. The guidelines for selection of members and the terms of service are included in Code of Ordinances, City of Corpus Christi, Texas, Article IV, Division 5, Section 2-90. State laws pertaining to the operation of museums ves in the governi the power to acquire and conserve real estate and personal property under the following provisions: Article 4412a, Article 7l50` Section 4of Article 7|50, Section ]4of Article 7l50, Section 22&nf Article 7}5O. (See attached "Laws of Texas Pertaining to Museums") The Advisory Committee recognizes the unique situation of its members and recognizes museum ethical standards in addition to those ofthe City. The responsibility for implementing collection management policies and developing appropriate procedures rests with the Director, who has delegated the following duties and responsibilities: The Collection Manager is responsible responsible for supervising all aspects ofcollection care and collection inventories. He/She is responsible for managing acquisitions, accessions, and standardization of the collection catalogue. It is the Collection `o responsibility to mai tain cleanliness in all collection areas and 10 monitor environmental conditions. It is also his/her responsibility to work with adjunct and honorary curators and ad hoc collection committees to establish object conservation priorities and to pursue grant funding that will benefit the collection. Honorary curators, adjunct curators, and collection comrnittee rnembers are appointed by the director to assist him/her iri the development ofcollection plans, policies, and procedures. They may also be asked to give advice on acquisitions, deaccessions, and conservation practices. Honorary curators, adjunct curators, and collection committee members are privileged to perform collection based research and conduct educational classes utilizing the collection. It is expected that, through their activities, the collections might become more publicly accessible. The Registrar is responsible for accessioning new acquisitions, o& aud performing ongoing bzventor�moT the cnl�ctkau.The is also responsible all written records for the collection, including loan documentation. The Registrar will report to the Collection Manager any collection management practices deemed substandard, ill-advised, or improper. The Librarian is responsible for supervising all aspects of collection care for the library archival, and photographic collections. He/She is also responsible for managing the acquisition and accession 2 processes and managing the standardization of the library collection catalogue. The Librarian is responsible for supervising the ongoing collection inventory and making conservation recommendations. ACQUISITIONS Scope of the Museum Collection The early years from its foundi as a Junior Museum in 1957 to its transforming to a collecting institution were fairly open ended. In 1961, the Board voted to change the name from the Junior Museum to the Corpus Christi Museum. When it became clear that a broader base of support was needed, the City agreed to help fund the Museum. The growth ofthe collection accelerated thereafter under a mission that was very broad in scope. • "The primary purpose of this Museum is to contribute to the understanding of man's place in the wodd of nature and to impart this knowledge to the public." However, after a new director was hired in 1985 the Advisory Board was asked to provide some guidance for management of collection acquisition and development of exhibits and programs. By this time the scope ofthe collection was broad and the collection largely uncataloged. Some policy guidance was needed. • "The Corpus Christi Museum is an educational institution that collects and preserves objects and artifacts representing natural and cuitural history and uses these collections to contribute to the enjoyment and understanding of man's place in the world of nature and to impart this knowledge to the public. The museum does research based on its collection, offers education and arts programming and provides a facility for a center oflearning." (Adopted: 8/1/1985) This new mission provided a description of the broad range ofcollecting, and exhibitry that had developed over the formative years. 11 also gave definitive direction to staff that the Museurn was to continue to develop as a collection centric institution. The Museum's first collection management policy was adopted in 1987. This drove the expansion of staff, development of exhibits and programs, and the expenditure of resources. However, the director returned to the Advisory Board requesting that they give consideration to narrowing the scope and providing staff with a more focused direction. * "The Corpus Christi Museum of Science and History collects and preserves natural and cultural history objects with emphasis on South Texas and its place in the world. It presents educational exhibits and program to encourage learning related to its collections." (Adopted November 12, 1990) By narrowing the scope to south Texa the growth ofthe collection could be more focused and a deaccession program initiated. The backlog of cataloging for natural history specimens was gradually erased while the backlog of history collection cataloging remains about 50%. The use of the collection for educational purposes remained limited and the public acceptance of and interest in the display of systemic collections diminished, as reflected in 15 years of decreasing attendance. This prompted a revision of the mission in 2005 to one that removed collecting as an explicit mandate ofthe mission. Under the present missjon the Museum collects to illuminate three basic exhibit themes and to support innovative programming. Museum collections and resources will be shared with the public and researchers to create new knowledge. Responsibility for Acquisitions This change has driven a reprioritizing of staff resources. In 2005 there were five individuals whose primary functions were collections based while two people were focused on programming. That changed in 2006 with only two staff positions with collection based primary functions and five staff 3 positions which are focused on programming. C!early we are no longer interested in buildi a collection. Rather we are focusing our collection on current needs. Aspiring to become the best possible museum requires a prac ioc of acquiring the best available objects that are needed to "i!luminate our three basic exhibit themes and support innovative programming." Considerations for Accessioning Decisions 1. Care — Are there resources for providing proper storage, managernent, and care ofthe acquisition without compromising the rest ofthe collection? 2. Cooditioo — lmtbe acquisition in good condition? Will it take a large amount ofresources to stabilize or restore it? Is it so badly damaged that it will soon be worth!ess? 3. Cost of upkeep — Is the cost of keeping the acquisition equal to the benefits of having it in the collection? 4. Duplication — Does the acquisition duplicate something that is already in the collection? 5. Documentation — Is the documentation adequate to establish the significance of the acquisition to the museum? 6. Legal title — Will the museum be able to secure clear and legal title to the acquisition? 7. Legality of acquisition — The museum is responsible for making sure that everything it accessions was legaily obtained, exported, and imported. (Otherwise the rnuseum probably will not be able to claim ownership nf the ncquiaiboo.) 8. Potential use — Is the acquisition likely to be used for research, reference, loan, exhibition, education, or exchange? Is it an object, artifact, or specimen that is a voucher (an examp!e or proof) for research or other scholarship activity? 9. Provenance — Is the provenance established and adequately documented? 1 0. Public relations — How will the addition of this acquisition affect the museum's image? Will it attract visitors or damage public oupportY 11. Purchase price — Is the purchase price in line with current market values? 12. Relevance — Is the acquisition relevant to the mission and the scope of collections? 13. Restrictions — Is the acquisition free from restrictions on ownership, intellectual property rights, copyright, and trademark? 14. Safety and security — Will the acquisition compromise the safety or security of the staff or visitors? Will the acquisition require expensive safety measures to protect? 15. Scope — Does the acquisition fit the scope ofthe collection (geographic, subject, temporal, and use)? 16. Special considerations — Are there extenuating circumstances or conditions that affect the decision to acquire or not acquire the acquisition for the col!ection? COLLECTION DESCRIPTION A. Scientific Specimens The Museum collects scientific specirnens representing the environment of South Texas. It also collects relevant comparative specimens from other geographic regionmbzorder0ouidiu identification, exhibits, and education programs. The collection includes type and voucher specimens used as the basis for published scientific research. The Collection Manager is responsible for collection cmcc Specimens amused in exhibits and educational programs that are compatible with their preservation. Access to the collection may be allowed to interested visitors at the discretion of the Collection Manager. Access to all information relating to the Museum collection (except donor records) must be made publicly available. Unaecessioned specirnens may be used in educational programs. These are stored in more accessible areas and are considered expendable. 4 The Collection Committee seeks specimens that are needed for the collection and meet the collection criteria. With the approval of the director, they may be acquired through field expedition, donation, bequest, or purchase. The Collection Manager coordinates specimen preservation and conservation sets standards in the use and care ofthe natural history ob cotu. Specimens must have been collected and/or im with full knowledge and permission of the country or state of origin, ondincomp1iance with U.S. and Texas laws. IUCN Red Data Books, U.S. Fish and Wildlife Service Regu!ations, Texas Parks and Wildlife Code.) The Collection Manager acquires and maintains the necessary rnunicipa!, state, and federal permits to allow the Museum to hold these collections legaily. The permits should all be issued in the name of the Museum Director. B. Cultural Artifacts The Museum collects artifacts representing the history and culture of the people of South Texas. The Collection Manager is responsible for col!ection care. Artifacts are used in exhibits and educational programs that are compatible with their preservation. Access to the col!ection may be allowed to interested visitors at the discretion of the Collection Manager. Access to all information relating to the Museum collection (except donor records) must be made publicly available. Non accessioned artifacts may be used in educational programs. These are stored in more accessible areas and are considered expendable. The Collection Committee seeks artifacts that are needed for the col!ection and meet the collection criteria. With the approval of the director, they may be acquired through donation, bequest, or purchase. The Collection Manager coordinates artifact preservation and conservation and sets standards in the use and care of the cultural collections and exhibits Artifacts must have been collected and/or imported with full knowledge and permission of the country or state of origin, and in oonno iaoco`phh U.S. and Texas laws. Cultural properties from outside the United States offered as a donation must be accompanied by a signed and notarized statement from the donor attesting to clear title. (reference: U.S. Customs Laws, National Stolen Property Act, Pre- Columbian Statute of 1972, and Cultural Property Implementation Act of 1983.) C. Special Collections 1. Live animal specimens, acqubedhwdouadon,fieldexneddbno or purchase. The live animal collection is cared for and d of at the discretion of the Museum Eduoato� Clear cababUobcdbefore any openin�cu{o accepted and �nnux con�p|vvvdbaUmunicipal, mta1eundfedora laws regarding plants, fish and wildlife. Specimens in this collection are not accessioned, although donations are acknowledged. All live animals have a limited life span and are, therefore, considered expendable. 2. Las Dofias de la Corte gowns represent a tangible aspect of Buccaneer Days, an annua event with community-wide impact. They chronicle the history of this event and are interesting exhibit pieces. Examples may be added to the Museum collection. 3. Fine art objects may be collected to represent the cultural life of the people of South Texas as well as those works that represent the aesthetic visio of contemporary South Texa artists. The Museum will acquire artwork from living artists currently residing in the Corpus Christi area at the discretion of the director. Artworks will be used decoratively at the Museum and may be loaned for extended periods for display at public venues that are not museums. 5 4. Ora history interview may be taped with citizens on the subjec of Corpus Christi Oral history tapes are for educational purposes to be used by Museum staffand its associates. The wishes of the interviewed person will be respected regarding privacy of contents of the tape. No copy for third parties will be made unless permission is obtained in writing from the person interviewed. The person interviewed may request a copy of their own tape. The price of this copy will be the pdee of the tape. Afler the death ofthe person interviewed, the tapes will be considered released as to privacy. If the family of a person who passed on requests a tape and none has been made before, one copy will be made for the price ofthe tape. Although the tapes are not produced for use, the Museurn Auxiliary will make copies for responsible parties. & donation of$%5.O0tothe educational fund ofthe Auxiliary is requested for the task. The information contained in each tape is considered property of the Museum. No public use may be made oft. Educational use, in an)onon»nzo situation, is allowed. 5. Repository objects not belonging to Ihe Museum may be accepted for long term storage and curation. The Museum is the marine archaeology repository for the State ofTexas. The Museum Archaeologist is the curator of this collection although care is the responsibility ofthe Collection Manager. Adequate funds to provide for the care of the objects for the terrn of the repository agreement rnust corne with the collection and the director must give his approval. An agreementfor state-associated held-in-trust colleciions mus be concluded that identifies the agency, institution, objects/collections/documents, and housing/curation criteria for which stewardship is transferred. This Held-in-Trus/ agreement is made when stewardship of collection is transferred from to curatorial facility. All paper records for state-associated objects are kept in a secure record storage room. All electronic records are stored on ihe city servers at City Hall and backed up once a week on an exiernal hard drive. An annual report of all activity wi(h state-associated collecions will be submitted to THC. D. Library Collection The library is maintained as a non-circulating reference collection of books, periodicals, and other rnaterials for use by the museuin staif. Visitors may be allowed use ofthe library with permission of the director. The material contained in the library relates to the col!ection and interests ofthe Museum. The Librarian is responsible for care ofthis collection. Staffis encouraged to submit requests forthe purchase ofmateria] that wili enhance knowiedge in their area ofexpertise. Books are acquired by purchase or donation. Materials are purchased only with approval ofthe director. Materials in this collection are not accessioned, although donations are acknowledged. Library materials are subject to continued use and by their nature might be outdated by new information. These materials are considered expendable and may be disposed of at the discretion of the director. E. Archives Collection The Museum collect archival materials, ineluding photographs that represent the cuftural history ofthe peopfe of South Texas. These materials are generaily not stable enough for use in exhibits, but copies may be used in exhibits or for other educational purposes. Interested visitors may be allowed access to this collection at the discretion of the director. These materials are accessioned and are the responsibility ofthe Museum Librarian. Items may be added to this collection at the discretion ofthe director. DESTRUCTIVE ANALYSIS Destructive analysis is defined as an activity that alters the appearance or condition of an object. 6 Destructive Analysis of repository objects may only be done with the permission of the Texas Historical Commission, or the agency to which the object belongs. Frior to the analysis, a research proposal must be submitted to the Museum for evaluation that includes research goals and objectives, q hons of researcher, and specfic samples ur objects k/ be sampled. The loans will be made to the institution with which the researcher is associaied. /7 the proposal /x for state-associated hwld-h+1ruxt collections and /x rejected, an appeal can be made to 7YfC Destructive analysis may be warranted ifthe foliowing conditions 1) The object to be ana!yzed is not unique ue within the Museum collections. 2) Sacrificing the object or a part of the object will benefit science or will improve the Museum's conservation efforts. 3) The proposed analysis is highly likely to produce useful results and the institutions or individuals who perform the analysis are competent. 4) The analysis will be purfbnnod in a timely manner. 5) Results nfthe analysis will be published in a scientific journal in a timely manner. 6) The Museum Director and the owner of the object approve the analysis (if it is part of a repository collection). An object may be considered for destructive analysis if: 1) The analysis will contribute to the deve of more effective conservation techniques. 2) The analysis will provide answers to historical, archeological, or scientific questions that can be answered no other way. 3) The artifact is not unique. Once an object has been selected for d lysis the fo will be used: 1) The object will be thoroughly recorded with respect to its shape, size, mass, special etc., prior to submission for destructive analysis. The due dates of the loan will be tracked and exiended or recalled/returned as appropriate. 2) New records and results of analysis will be appended to the existing accession files. 3) Copies ofal! resulting articles will be filed in the Museum library. 4) The object will nol be deaccessioned. 5) All unused portions will be returned to the curatorial facility. DEACESSIONS AND DISPOSAL � Introduction For most of its history the collection of the Corpus Christi Museum of Science and History was considered the core ofthe Museum and the piirpose and the reason for its existence. To20O5mnew mission statement was adopted which removed collecting from the mission of the Museum and made it a strategic objective to support the mission. Strategic Objective 13. The Museum will collect and prescrve unique specimens, artifacts, and ephemera which illuminate our three basic themes and support innovative programming. Strategic Objective C. To create new knowledge, Museum collections and resources will be shared with the public and researchers. There was no intention through this action to dirninish the Museurn's responsibility to care for the collection, but there certainly was the intention 10 limit the growth of the collection and to eliminate it as the central focus of exhibits and programs. 7 Deaccessioning is the formal process used to legaily and permanently remove an accessioned object from the collection. Disposition is the manner in which the Museum transfers a deaccessioned object to a new owner or destroys it. The removal of any accessioned object from the collection is a sensitive and potentially controversial issue. Because the Museum's collections are held in public trust, the Advisory Committee and staff nfthe Museum are under particular scrutiny when deaccessioning an object. Deaccessioning can strengthen the col management ofthe collection, and save money which can then be applied to acquisitions. A strong policy and sound practices are important in order to preserve the reputation ofthe Museum and avoid elaims on other objects from heirs, estates, or seliers. An attorney's opinion should be sought on any deaccession thought to be controversial. The deaccession process, once begun, should be completely public. Because the collections of the Museum are held in public trust, it is useful to note Article 4412a. of the Laws ofTexas Pertaining to Museums. The Attorney General ofTexas has specific authority to take legal action to protect and preserve items of property held in "public trust," that is, for the use and benefit of the public. The statute covers any corporation, trust, community chest, fund, foundation, or other entity which is organized for charitable, scientific, philanthropic, "or other civic or public purpose. This broad defiiiition includes museum collections. 0L Authority and Responsibility Any member of the Collection Committee may recornmend that an object be considered for deaccession. The deaccession process is initiated by submitting a Deaccession and Disposal Record form to the Collection Manager. The Collectio is responsible for confirming clear and unrestricted title to objects proposed for deaccession as well as checking for any restrictions, legal issues, or ethical concerns affecting deaccession or disposition. The Collection Committee reviews the proposed deaccession based on the Museum's purpose, scope of the col and guidelines covered in this poli and makes a recommendation to the Director who will then approve or deny the proposed deaccession and disposal method. Deaccessions and disposals approved by the Director are brought before the Museum Advi Committee for final approval. III. Guidelines for Demnrmno pmm Before approving approving any object for deaccession, elear and unrestricted title to 11 rnust be established. See applicable sections of this policy for more information regarding clear and unrestricted title. No object may be deaccessioned in order to provide funds needed for the operation of the Museum. Proceeds frorn the disposal ofan object must be used for co!Iection acquisition. Objects proposed for deaccession will be evaluated based on the Museum's mission, scope of the collection, and guidelines as outlined in this policy. An object inay be deax000aioncd for the following reasons: 1. To remove an object that that uo longer falls within the Museum's mission, purpose, or scope ofcollections; 2. To remove an object that is sufficiently represented by duplicates in the collection or has 8 been replaced by a superior example; 3. To remove an object that is inferior, determined to be unauthentic, or has critically inadequate or absent provenance documentation; 4. To remove an object which has suffered damage or deterioration beyond the point at which reasonable and affordable measures could be taken to preserve it; 5. To remove an object that is unlikely to be used in exhibits, prograrns, or research in the foreseeable future; 6. To remove an object that is potentially hazardous to objects in the collection or human health and safety; 7. To transfer to another museum, or educational institution, an object that is deemed to be miQuifinuntlymore useful and relevant to the collection oYthe other institution than that of the Museum; 8. To carry out a mutually beneficial exchange of objects with other museums or educational or scientific institutions; 9. To formally document the removal of an object that has been lost or stolen; 10. To comply with any legal statutes or court rulings; 11. To accomplish any other purpose deemed by the Museum Advisory Committee to be appropnate within the splrlt of this policy, the Museum's mission, and applicable lax'. Reposited collections are not owned or accessioned by the Museum and, therefore, cannot be deaccessioned by the Museum and are not covered under this deaccession policy. On!y the Texas Historical Commission has the authority to deaccession state-owned held-in-trust collections. Other repository collections may only be deaccessioned by the repositing agency. For inforrnation regarding deaccession and disposal of repository collections, see the Reposited Collections section in this policy. Natural History specimens have been brought into the Museum as part of field collecting by curators, honorary eurators, research scientists, or citizens. These fic}dcollections are evaluated and significant specimens are catalogued. Specimens from these field collections are considered accessioned at the tirne of cataloguing. Therefore, specimens from field collections that have not been catalogued are not considered accessioned and may be disposed of during evaluation without being deaccessioned. Reference materials for the Museum's library have occasionally been accessioned in the past Current policy dictates that the Museum does not accession library reference materials. For the purpose of docutnentation and consistency, reference materials that were accessioned will be properly deaccessioned and disposed ofaccording to this policy and supporting procedures. Reference materials that have not been accessioned are considered general Museum assets and may be disposed ofn/i1|wmutdeuooemmioning. Education collections were maintained in the Museum's past. This practice was primarily followed with Natural History specimens. The objects so classified hold Iittle or no monetary, scientific, or historic value. The Museum no longer maintains separate education collections. Objects that were accessioned but marked "education collection" are considered part of the collection and must be properly deaccessioned and disposed of according to this policy and supporting procedures. Objects tha were not accessioned and were marked "education collection" are not part ofthe co!!ection and not subject to deaccession. However, disposal ofthese objects rnust be carefully considered because ofthe similarity to accessioned objects. Objects under this circumstance will be brought before the Collection Committee for careful consideration. The Director will make the final decision regarding disposal. Live animals are a special collection under the care of the Museum Educator. The collection is not accessioned and is exempt frorn this deaccessions and disposal policy. See the special collections section 9 oft his policy for information. IV. Disposal of Deaccessioned Objects Deaccessioned object are removed from the collection by means of sale, exchange, donation, transfer, or destruction. The sale or disposal of surplus property from Museum collections is exempt from the provisions of City Ordinance Code Sections 17'4 by Ordinance 19350. Disposal of any deaccessioned object will be carried out in accordance with all applicable federal, state, local, and international laws, treaties, and regulations including but not Iimited to Laws protecting Plant and Wildlife, Antiquities, and Historic Properties, and the Import, Export, and Transfer, of Cultural Property. The Collection Manager is responsible for fully documenting disposal of objects covered under laws as outlined in procedures. Applicable ethical standards will be eonsidered in disposal decisions including those established by the American Association of Museums and the Society for American Archeology. In d of objects by exchange or donation, the Museum becomes associated with the receiving institution. The practices of the receiving institution will be considered to prevent the Museum from becoming associated with unethical practices. Deaccessioned objects will not be sold, or ownership otherwise transferred, to Museum staff, City of Corpus Christi employees, vo\uo1nern,cnenzber ofMuseum support groups, members ofthe the Museum or City's governing authorities, or representatives or family members of these individuals. A. Disposal by Sale Net proceeds received from the sale ofdeaccessioned objects will be used only to acquire new objects for the collection. If there is any question as to the value of an object, the Museum will get two inform outside appraisals on the object. These should document the objects authenticity and assure that the Museum does not accept less than market value for the object. Disposal of object from the col!eclion will never be through the Museum shop, or in such a manner that it involves an interested entity helping in the liquidation ofMuseum assets. The disposa by sale of any deaccessioned object requires the foliowing process: I. The Director will propose that deaccessioned objects from the Museum collection be declared surplus and request, in writingurecommondation of the Museum Advisory Committee. 2. The Museum Advisory Committee rnust approve the Director's recommendation for disposal by sale. 3. The Director of Finance will be notified by the Museum Director after the Museum Advisory Committee approves the disposal by sale. 4. The Director of Finance will make provisions such that proceeds from the sale will be placed in a Collections Fund of the Museum Foundation which is dedicated to acquisitions to the collection. B. Disposal by Exchange or Donation Deaccessioned objects may be disposed ofby exchange with, or transfer to, another appropriate rnuseum, educational, or scientific institution. 1 O Deaccessioned object wil! never be exchanged or donated to private individuals. Deaccessioned objects may only be transferred 10 private individuals through sale as outlined in this policy. C. Disposal by Transfer Deaccessioned objects may be transferred to the Museum's education department for use in educational programs. Objects subject to this action should have liftle or no market value, or historic or scientiflc significance. Any deaccessioned object transferre to the education department wi|l6e removed from collection storage, quarantine, or work areas. The object must be stored in an area dedicated to educational supply storage. The object is considered expendable and is no !onger covered under this policy. V. Guidelines for Donor Notification One ofthe crucial components in the deaccession process is the Tax Reform Act of 1984. Under its provisions, if the museum disposes (by sale, exchange, or any other method) of a donation within two years of a donation, the museum is obligated to notify the donor and the IRS by filing form 8284. This provision applies if the donor has claimed a charitable deduction under Section 170 of the IRS code of more than $5,000 for either a single item or an aggregate of items donated to one or more institutions. The Act requires that ifthe value is more than $5,000, the donor must supply an appraisal sumrnary to the museum. The museum is subject to a $50 fine if the preceding is not adhered to. Once the Museum establishes its clear and unrestricted title to an object, the donor has no legal interest in it. If a deaccession no longer falls under the statute of limitations of the Tax Reform Act of 1984, it is then only a practice of goodwill to notify the donor or heirs of the disposition of a collection or object. It is possible to label the funds or new acquisition purchased with those funds as a gift from the donor. Appropriate action will be considered by the Museum Director on a case-by-case basis. VI. Required Documentation The Collection Manager, with delegation ofduties to the Registrar, is responsible for ensuring all proposed deaccessions and disposals are properly documented in accordance with this policy and the supporting procedures. A complete record of each deaceession, including a complete Deaccession and Disposal Record forrn, and all supporting docurnentation ofwil! be kept permanently in a secure storage room. LOANS Whether objects are bein into the Museum or sent out ofthe Museum (Ioaned), they are Ioans and subject to the laws pertaining to bailment. The Collections Committee must approve all conditions and terms associated with Ioans. The Corpus Christi Museum of Science and History Collections Committee is composed of the Museum Director, the Collections Manager, and 1 I Librarian and other individuals as appointed by the Director. The Executive Director of the Texas Historical Commission or his designee is included as a member of the Corpus Christi Museum of Science and History Collections Committee in all matters pertaining to the use of the La Belle Collection. Incoming Loans When an object is brought into the Museum, the lender is the bailor (the giving one) and the Museum is the bailee (the one receiving). A) The general rule is that any object taken into the custody of the Museum should receive care equal to or better than that devoted to objects in the Museum permanent collection. It should be carefully packed and transported, proper security and climate control should be provided and, above all, it should be accompanied by proper documentation. B) Any appropriate owner may be asked to lend an object to the Museum. The Collection Manager with the approval of the Collections Committee initiates all loans. The Collections Manager is responsible for the care and security of the object during the period of the loan and securing insurance coverage prior to the loan. C) The Collections Manager is responsible for documentation of loans (both outgoing and incoming) including the completion, execution, and distribution of all forms. The Collections Manager is responsible for packing, transport, and registration of the object. Details concerning handling, transportation, and care must be approved by the Collections Committee. D) There is a single loan form for both incoming and outgoing loans, and all such actions must adhere to the conditions and terms as stated on this form. The lending institution's loan form may be used with the concurrence of the Collections Committee. E) No loans will be accepted except for special exhibits and research. The loans should serve a public purpose. In carefully considered cases, there may be exceptions but only with the formal agreement of the Museum Advisory Committee. F) Photographs of the object may not be taken without permission of the lender. G) Loaned objects may not be loaned, assigned, mortgaged, claimed, or in any way encumbered by the borrower. H) Objects may be taken into the Museum for a very short term for study, identification, attribution or evaluation. Only the Director or Collection Manager may accept objects for this purpose. Under this pol icy: 1) Objects may never be appraised by Museum staff members. 2) The Collections Manager supplies a receipt of delivery which outlines the terms of this special type of loan. 3) The Museum and its employees are held blameless in the event of loss, damage or deterioration of the item(s). 4) Any item(s) not claimed within 30 calendar days becomes the property of the Museum. 5) In cases where the owner is unknown, public notice must be given before the item is accessioned. Only the Advisory Committee, with the advice of legal counsel, may approve the accession of such unclaimed loans. 6) Proper notice will be given to owners in cases where the owner is known. This will notify 12 them that the Museum w11 claim the item unless it is removed from the Museum premises. 7) Until the item is retrieved, it will be stored and maintained at the owner's expense. 1) No commercial exploitation of the fact that the object has been exhibited by the Museum may be used. This is to offset object being sold or auctioned at higher prices because of their selection for a Museum exhibition. J) No employee ofthe Museum or member ofthe Advisory Committee may lend an item to the Museum without public discussion and approval by the Advisory Committee. This is to avoid any appearance of self-dealing. Outgoing Loans When an object is lent out by (he Museum (Outgoing Loan), the Museum is the bailor (the giving one and the borrower is the bailee (the one receiving). The purpose of Ioans shall be to reach a wider audience and facilitate research. While on loan, objects must be afforded u level of care and protection aaprovidsdbvaodmuhiecttu1hunrittenuppnoYu/ofthe Collections Committee. Loans for exhibit purposes are made to a qualified institution and that institution shall assume responsibility for the proper administration of the loan and the care and security of the object(s). Loans for research purposes are made to a qualified institution with which the researcher is affiliated and that institution shall assume responsibility for the proper administration of the loan and the care and security of the object(s). A) The collections ofthe Corpus Chrisi Museuin of Science and History, including Texas Historica Commission collections, are held in public trust and maintained for the benefit of the people of Texas. Loans are made only to qualified institutions consistent with this poli Loans ofLa Be/le artifacts must be approved by the Collections Committee with a written affirmation by the Executive Director of the Texas Historical Cornmission or his designee. B) To assure objects for loan receive proper care and security, the requesting institution must present for approval of the Museum Collections Committee, verification of proper environmental, storage, exhibition, and security conditions and procedures for the handling and transit of objects. To this end, the requesting institution will complete a Revised Standard Facility Report as adopted by the Registrar's Committee of the Arnerican Association ofMuseums. On-site inspections by Museum staffrnay be required prior to agreeing to a loan ofobjects. The requesting institution should have a trained registrar, curator, or director to check inventory and prepare condition reports on materials borrowed. Following American Association of Museums and Accreditation and Review Council Guidelines, the requesting institution should have environmental controls and a fire marshal-approved fire suppression system. For exhibit loans, the facility should have standard museum security including: 1) Monitored i and egress, 2) Personnel circulating in the exhibit space with responsibility for security while the faciiity is open to the public, and 3) An electronic intrusion alarm system monitored by a certified central station or local law enforcement when the museum is closed, 4) Or a 24-hour security guard on duty beginning with the unloading and installation ofexbihb materials. A request for any variation in the above conditions must be made in writing by the institution for review 1 3 by the Coijections Committee. The request must include evidence of an acceptable arrangement to safeguard the stability and security of the loaned objects. Exhibition or research conditions shall be a part ofthe loan contract and evidence of adherence may be required. The use ofthe object(s) for the stated purpose must be adhered to by the borrowing institution. Packng and transportation methods are stated on the loan contract. The object(s) must be packed and transported in the safest possible way in accordance with the nature and condition ofthe object(s). C) The Collection is responsible for ensuring that a Condition Report is completed on objects prior to out-going loans and afier the loan is returned to the Museum. All objecls are catalogued before they are Ioaned. A Condition Report is required of the borrowing institution upon receipt of the loaned objects and prior to packing for return to the Museum. A copy of the Condition Report must be provided to the Museum. Damage or loss of objects while in transit or during tbe loan period rnust be reported verbally to the Collections Manager within 24 hours of the discovery of the loss followed by a written report detailing the extent and circumstances of the loss within two business days. Objects on loan cannot be altered, cleaned, or repaired unless permission to do so in writing is provided by the Collections Committee prior to any action being taken. D) Fine arts insurance for all objects sent out on loan is required. bmorance coverage shall be provided by the borrowing institution, unless the institution provides an acceptable acceptable bond. Current aiid reasonable insurance valuations are the responsibility of the Museum. With regard to the LaBelle collection, further approval of the Executive Director of the Texas Historical Commission or his designee is required. Under most circumstances, insurance io°fiue arts, all risk, wall-to-wall" coverage and shall remain in effect throughout the duration ofthe loan. The required arnount of insurance depends on the artifacts loaned. A certificate of insurance or acceptable bond is required from the borrowing institution prior to transportation o{ the loaned object and iu kept oofi|emtthe Museum with a copy provided to the Texas Historical Commission for La Belle artifacts. 1) The Museum shall be named as an insured party in the poli and the pol shall provide that notice shall be given to the Museum ten business days prior to cancellation or reduction in the amount of the policy. The Texas I-Iistorical Cornmission shal] be named as an insured party in the policy in the case ofLa Belle artifacts. In the event ofcaricellation or reduction ofthe insurance, the loan will then be subject to cancellation. Failure to maintain adequate insurance coverage in no way releases the borrowing institution from liability for loss or damage regardless of whether or not the Museum monitored the borrowing institution's insurance. 2) If a self-insured local, state, or federal governmental agency requests the loan or if the borrowing institution is unable to provide insurance, a request for an exception rnust be made in writing by the institution for review by the Coilections Committee, The request must inelude evidence of an acceptable plan of self-insurance or other arrangement to satisfy any liability that might result from a loss under the terms ofthis Agreement. ° E) An object(s) on loan must be returned promptly when the loan period expires. As appropriate, a reminder letter may be sent by the Museum to the borrowing institution. The Museum reserves the right to cancel or deny the renewal of any loan. The Museum will provide appropriate information and review and approve all text and Iabels relating to the exbibit of the loan in order to ensure accuracy and consistency in int cpnztu1ion. Any changes rnust be approved in writing by the Co]Ieetions Cornmittee. The object(s) on loan must be available for research purposes at all times. F) The borrowing institution has Iwo working days to chalienge the description ofthe items loaned. These challenges are subject to negotiation. Afier two working days, however, the borrowing institution 1 4 must comply with the physical description. G) Except for condition reports, all photography, reproduction, or replication of a borrowed object(s) requires prior written approval by the Collections Committee. Lighting conditions, environmental and/or applied chemical alterations, and other conditions of reproduction and replication must be approved in writing by the Collections Committee. Photographs, reproductions, and replicas may only be used for research, exhibition, and educational purposes. Commercial use of loaned objects is prohibited. H) With regard to the La Belle collection, the Texas Historical Commission and State of Texas must be credited in a suitable manner in all publications and exhibitions associated with the loaned object(s), including photographs and reproductions, and must receive two (2) copies of any news and other publication associated with the loaned objects. Other collections may require specifically worded credit lines. Otherwise the credit line should read, "From the Collections of the Corpus Christi Museum of Science and History, Corpus Christi, Texas." I) There is a single loan form for both incoming and outgoing loans and all such actions must adhere to the conditions and terms as stated on this form. Loan Contract Conditions 1) The Borrower agrees to abide by the guidelines for loans set forth below. This Agreement must be signed before any objects will be transferred to the Borrower. These conditions may be changed only in writing and with the approval of the Collections Committee of the Corpus Christi Museum of Science and History. Applications for change must be made through the Collections Manager of the Museum. 2) The Museum reserves the right to recall the loan by written notification at any time if these conditions are not met, and is not liable for any consequential damages resulting from such action. The Borrower has ten working days to comply. 3) Loans are made only to qualified institutions, not to individuals. Loans are made to the institution with which the individual is affiliated and that institution assumes responsibility for the proper administration of the loan and the care and security of the object(s). 4) Objects on loan may not be altered or modified in any way, except as stated in the purpose of the loan (e.g., destructive analysis) and as approved in writing by the Collections Committee. For a destructive analysis loan, if portions of the original object are not destroyed during the analysis, they must be returned. 5) The Borrower will exercise due care in the custody, handling, transport, unpacking, and repackaging of the loan. 6) Upon unpacking, the Borrower will immediately acknowledge receipt of the loan by signing and returning a copy of the inventory and receipt that will accompany the shipment. A copy is to be retained by the Borrower. 7) For return, the loaned object(s) must be packed in the same or better manner as received and with the same cases, pads, and packing materials, unless damage has occurred, in which case replacement or substitution can be obtained with permission of the Museum. Handling and shipping of the loan will be at the Borrower's expense. 15 8) The Borrower agrees to provide insurance, or provide a bond to the Museum. Insurance is fine arts aUcimkoud"�u�k/'p/aU". A acceptable , risk, ' --,_- -' the Museum before the loan is placed in transit. The Museum (or, in the case ofLa BelIe artifacts, the Texas Historical Commission) shall be named as an insured party and the insurer tnust be required to notify the Museum prior to cancellation or reduction of the amount of the policy. 9) The Borrower rnust maintain constant and adequate protection ofthe loaned object(s) to minirnize the risk of theft or damage from hand!ing. The Borrower also rnust maintain constant and adequate protection ofthe loaned object(s) from the hazards offire and flood, exposure to harmful light Ievels, extremes of temperature and relative humidity, pest attack, and harmful atmospheric conditions. 10) Any changes in the condition ofthe Ioaned object(s), loss, theft, or datnage to the loan in transit, during storage, or exhibit mus be reported within 24 hours of discovery to the Collections Manager (361- 826-4659). A written condition report, and photographs, ifrequested, must be sent to the Museum within 72 hours ofthe discovery ofthe loss, theft, or damage. 11) In the event of damage to the loaned during shi or while in the custody of the Borrower, the Borrower is responsible for all conservation costs necessary to return the loaned ob eo1(s) to their undamaged condition, if possible. The Museum may, in its sole diseretion, ion, determine that an object is damaged beyond repair and may select an alternative rernedy. 12) The lender is secured and held blameless from all losses, claims, liabilities, damages, costs, and expenses (including attorney's fees and costs) arising from, or in connection with, a loan agreement. 13) The loaned object(s) must not be photographed, filmed.televisedmodenwbse reproduced individually without the express, written prior consent ofthe Col!ections Cornmittee of [he Corpus Christi Museum of Science and History, with the exception that general views of an exhibition may be taken for publicity or documentation purposes. 14) The object(s) must be available and accessible to the Museum at all times for research purposes. 15) The J3orrower shall ensure that all !oaned on exhibition and/or in publication are identified as the property of the Corpus Christi Museurn of Science and History or other credit line as stipulated in the loan agreetnent. 16) The Museum will review and approv all text and labels relating to the exhibit nfthe loan in order to ensure accuracy and consistency in i nn. Any changes to the text must be approved in writi prior to exhibition. 17) The I3orrower must provide two copies to the Museurn of any news and other publications resulting from the exhibit or loan research on the objects. 18) Third party loans are prohibited. Any third party wishing to borrow objects on loan rnust contact the Museum in order that a separate loan contract may be developed and subsequently approved by the Collections Committee. Loaned objects may not be assigned, mortgaged, o(uin'ed, or in any way encumbered by the Borrower. 19) Transportation of loaned object(s) from one institution 10 another is prohibited. The borrower must return the loaned objects to the Museum prior to being loaned to another institution. 1 6 20) This loan agreement is in effect from midnight on the specified beginning date to midnight on the specified due date. The maximum loan period is one year, but may be reviewed and renewed annually. 2l) The object(s) loaned to the Corpus Christi Museum of Science and History must be promptly reclaimed. Under State Law a lender is considered to have donated loaned property to a museum if the lender fails to file an action to recover the property on loan to the museum within two years. 22) No commercial exploitation of the fact that the object has been exhibited by the Museum may be used. This is to offset objects being sold or auctioned at higher prices because of their selection for a Museum exhibition. 23) In the event of any conflict concerning this contract, this contract will be construed in accordance with the laws of the State of Texas. Venue for any action resulting from this contract shall be in Nueces County, Texas. MUSEUM ETHICS POLICY "Corpus Christi, The City of choice where we make it happen." This vision statement was developed by the executive team for the City of Corpus Christi and City department heads. The mission statement, developed by the same group, is to "provide exceptional service to enhance the quality of life." The Museum is a department of the City of Corpus Christi. This vision and mission is reflected in the daily commitment of those involved with providing services to the community through fulfilling the Museum's departmental mission. Governance City of Corpus Christi: The chief executive officer of the City under the voter approved City Charter and the City Council adopted Ordinance Code is the City Manager. The City Ordinance Code is the 17 guiding policy for the Museum and all other City departments. As a practical matter, ordinances are developed for City Council consideration by City administrators with specialized expertise resident in various Cty Departments (e.g. Finance, Budget, Emergency Management, Human Resources, Legal, Risk Management, etc.). Administrative policies, procedures, and ethical principles to which City employees are subject similarly caII upon the expertise from peop!e in various departments and are submitted to the City Manager for his approval. The administrator of the Museurn Departrnent, the Director, is appointed by the City Manager. Policies that are specitic and unique ue to the Museum are developed by the Museum Director as prescribed by the City Ordinanee Code. Museum ent: There are specialized laws, polici and ethica that apply to the Museum and not to other City departments. It is the Museum Director's responsibility to administer the Museum under the highes standard of conduct whether that is in the realm ofthe City ordinances, City administrative policies, City established procedures, vr the more opeoifiopolicies and procedures of the Museum. The Museum Director must develop those policies, procedures, and ethical guidelines that pertain exclusively to the Museum. Documents defining these policies, procedures, and ethical guidelines are typically reviewed administratively by the City Manager and/or a desi otud Assistant City Manager. Museum Advisory Board : The governing body ofthe City, the City Council, established a methodology by ordinance that delegates review of policy issues that are exclusive to the Museum to a 12 member Museum Advisory Committee "appointed by the mayor with the advice and consent of the city council." The City Manager is an ex officio member of the Museum Advisory Committee. Members are trained by the Museum Director and gain institutional experience by serving staggered three year terms, with a two term limit. This provides the City with a group of interested citizens with training and expertise to review the policies and procedures that are unique within the City to the Museum. Their advisory recomrnendations are given great weight by the Museum Director, City Manager, and the City Council. The advisory board shall serve as an advisor to fhe inuseum department departmeni and to the cily council in matters of support and development of the museum. The board inay adopt comprehensive policies relating ` to the: (1) Management of collections; (2) Acquisitions for the collection; (3) Disposition and deacquisition ofobject in and for the collection; (4) Use of museum facilities. When adopted by the advisory board and approved by the city manager, the director of the rnuseuin shali implement such policies. The Friends ofthe Museum, although not a City entity, provides significant funding to support the mission nf the Museum. Because o{ this role, review and revision ofthe Museurn's mission is done jointly by the Museum Advisory Committee and the Friends Board of Directors. S the Museum Advisory Committee adopts the mission statement which is then subject to review and approval by the Cily Manager. The Museum Director is responsible for training Advisory Committee members, Board members of both the Friends of the Museum and the Museum Auxiliary, staff, and volunteers in the policies, procedures, and ethical guidelines uodcrvvbicb<homouocunooyoratc». It is also his responsibiiity to make certain that all those who work for and on behalf of the Museum understand and support its mission and public trust responsibilities as both a department of the CiIy and as a rnuseurn. 18 Under the City and Museurn ethies policies, Museum staff, volunteers, members ofthe City Council, the City Manager, and members of the Museum Advisory Committee: • understand and fulfill their trusteeship roles and act corporately, not as individuals; • act legaily, ethically and with cultural sensitivity; w conduct themselves in such a way as to avoid conflicts between personal interests and affiliations and the operations, interests, and reputa inn ofthe City and Museum. � protect, maintain, and develop the Museum collections an programs and its physical, human, and financial resources in support of the mission of the City and the Museum; • are responsive to and represent the interests of the Corpus Christi community; • maintain relationships in which shared roles are recognized and separate responsibilities respected; • maintain working relationships that are based on equity and mutual respect; • ensure that professional standards and practices inform and guide museum operations; • ensure that po!icies are articutated and prudent oversight is practiced; • promote the public good rather than individua financial gain. Collection The Museuni collection is owned by the City ofCorpus Christi. The Museum a!so manages state-owned collections as the designated marine archeology repository for the State of Texas and as a repository for state-owned terrestrial archeology collections. Care of the collection is the responsibility nfthe Museum Director working in co 'uuctiou with the col!ection committee. The collection committee is chaired by the Coflection Manager and inc!udes the Registrar, Museum Archeologist, uudMumoumo[ibrudoo. On issues involving the state held-in-trust archeology collections, the Executive Director of the Texas Historical Commission or his designee is also a member ofthe collection committee. In 2005 a new mission statement was adopted which removed collecting from the mission of the Museum and made it a strategic objective to support the rnission. Strategic Objective B. The Museum will collect and preserve unique specimens, artifacts, and ephemera which illuminate our three basic themes and support innovative programming. Strategic Objective C. To create new knowledge, Museum collections and resources will be shared with the public and researchers. There was no intention through this action to diminish the Museum's responsibility to care for the coI1ection but there certainly was the intention to limit the growth of the collection and to eliminate it as the central focus ofexhibits and programs. In part to fulfihI this intent, collection staffjob descriptions were revised eliminating "curator" as a functional job title to deemphasize the connotations associated with the curator title. The provisions ofthe Collection Management Policy continue to provide important guidance on collection issues and management of the collection is now the responsibility of the Collection Manager. The Museum Director develops, the Advisory Committee adopts, and the City Manager approves the Collection Management Po!icy which includes guidelines guidelines for proper ethicat behavior. The Museum Director and the collection committee are stewards of collections owned or otherwise in the custody of the Museum. They are responsible for en ' that the collection: • supports the Museum mission; • objects receive the highest standards ofcare; m is properly managed, documented, and accounted for; • objects and associated information are pub!icly accessible within appropriate limitations; • acquisition, disposal and loan activities conform to the Museum's mission and public trust 1 9 responsibilities; � disposal through sale, trade, or research activities is solely for the advance nt of the Museum's mission; � sale proceeds from nonliving coileetions are to be used consistent with the established standards of the Museum's disciplines, but in no event shall they be used for anything other than acquisition of collections; • related activities are used to promote the public good rather than individual financial gain. It is the responsibility of the Collection Committee to recognize the unique and special nature of human remains, funerary, sacred, and cultural patrirnony objects from all cultures as the basis for all decisions concerning current or potential collections. Programs The change in rnission in 2005 eliminated the collection as the central focus of exhibits and programs. The new mission is as follows: The rnission of the Corpus Christi Museum of Science and History is to present the story of the cultural crossroads ofthe New World. With a unique coufluen000foa8/nalbiobzry,nukauoe, people and environrnents, the South Texas area has served as a stage for the ongoing discovery of the Americas. Through innovative programs in history, culture, and science, the museum is committed to enlarging a shared understanding of our history and heritage as well as the impact and importance of science to our lives. By tel!ing this story, the Museum will inspire a thirst for knowledge, context, and understanding. Under this mission, the central focus of Museum progra and exhibits tell stories that need to be told regardless mfwhether those stories are s by collections, All members of the Museum staff as well as Museum volunteers are a party to fulfilling this mission. The designated person to lead this coordinated effort is the Museum Educator working with a Program Comrnittee that includes the Science Educator and History Educator, volunteers, and other staff who assist in the development and delivery of programs and exhibits. It is the Program Committee's role to make certain that prograrns and exhibits: • are based on good scholarship; • are accessible 10 all and the widest possible audience are encourage to participate; • respect pluralistic vaiues, traditions, and concerns; • fulfill the Museum's mission and values even when they involve relationships with external entities; • promote the public good rather than individual financial gain. • CLEAR TITLE Simply stated, title is the possession of all the rights of ownership to an object. Within this definition are many qualifications and s .8ut there are two general considerations regarding title to an object: one is the cornpleteness of the title; the other is the qualily of the title. Once possession ofan object is obtained, the museum then needs to consider whether or not it also possesses the copyright and trademark right , and whether or not the donor has put any restrictions on the object (i.e. that it must be exhibited six months out ofthe year, or only with certain other objects, or that it may never be loaned). The museum must also consider the authenticity of the documents 2 O showing title. It must make sure that the object is truly as it is presented and that the documents are sufficient to insure title to the object. A. Determining the Owner One issue to consider is whether or not the perso representing himself as the own r or duly authorized representative of the owner is, in fact, that person. While the rnuseum cannot interroga e each donor, the museum Deed of Gift form should ask that the donor affirm that he is the true owner of the object, or a duly authorized representative ofthe owner. While gathering background bnformationonthe object, it may be possible to ask if anyone else, legal heirs, etc., might have an interes in the object. If the gift io given by an estate din prudent to have all heirs or their authorized representative sign the Deed of Gift. A minor may not legalty be able to give an object to the museum. The advice of a professional should be sought in these questionable instances. Although there is a remedy through the court if the museum acquisition is later found to have fau!ty title. lfthe inuseurn can show damages, then they may be able to show misrepresentation on the part of the donor. Iii the case ofpurchases, where the title or the object itself proves fautty, there is also remedy available through the courts. The Uniform Commercial Code provides several recourses for recovery. One is based on contract and requires that the museum prove that the seller misrepresented himself or the object, either on purpose or through negligence. Another section deats with objects that may be bought in good faith and sold in good faith as one thing but in subsequent research, turn out not to be what was offened. Several states have statutes regardi the sale of an object from a professional dculertnonnn- B. Stolen Objects Perhaps the biggest question concerns what happens ifthe rnuseum acquires an object and the object turns out to have been stolen? The general rule in the United States is that a thief cannot convey good title. Title remains in the hands of the person suffering the theft and the museum must return the object or its value. There is a statute oflinoiiudooa upon these claims, but court decisions vary and the museum cannot take the chance of being an innocent victim in this instance. C. Smuggled or Illegally Acquired Objects One ofthe most common of title has 10 do with objects removed from the country of origin. These objects may not be challenged until mariy years after the original acquisition. Objects from American Indian tribes may be sought for return on the basis of foreign nation status. Pertinent treaties and statutes should be consulted in all instances: "Treaty pfCooperation Between the U. S. and Mexico for the Recovery and Return of Stolen Cultural Properties," "U. S. Statute Regulating the Importation of Pre-Columbian Monunzentu| or Architectural Sculpture orMuro)o," "The American Indian Religious Freedom Act," etc. As always, laws concerning the collection, sale and trade of fish, wildlife and plants, should be consulted: "The Legacy Act," "Endangered Species Act" of|973,as amended, "Marine Mammal Protection Act," "Migratory Bird Treaty," "Bald Eagle Protection Act," "Antarctic Conservation Act" of 1978, etc. 2 l "The Antiquities Act" of]906, and the Resources Protection Act" of|A79, should be consutted in all cases of objects excavated or given by people working in archeological digs. D. Restrictions The Collections Management PoIicy provides guide]ines for considering exceptions &othoru|u that the museum will not accept any gifls with restrictions on them. Restrictions may range from never disposing of the object to only disposing of the object to another educational institution. While the former is almost always unacceptable, the latter should be considered based on the quality ofthe object. The language of any restrictions should be examined carefully. E. Copyright Special property rights which the creator may have in the work are distinc from the right to possess the work. Copyrights may be divided into five segments: the right of reproduction, tho right of adaptation, the right of distribution, the right of performance, and the right to display the work publicly. The "Copyright Lovv" of 1978 should be consulted in all instances. Before l970, when amuseum acquired an object, it was generally held that it acquired all ights. This is no longer true. Even ifthe objects were created before 1978 and previous publications show no "c", the work can still be considered copyrighted. This automatic copyright may be negated by publication of the work without the symbol. However, public display, donation, or sale of the work is not necessarily synonymous with publication. In other words, a museurn woutd be wise, in all instances, to have docurnents conveying copyright attached to purchases or gifts. Works created for hire are considered to have the copyright invested in the employer, since the term "for hire" can be disputed, this situation of copyrights should be covered in a contract. Works creat dhwb/n:l97RwithouNmoon{i000{copyriob<cmnno1beomurncd1ohavethnironyyright vested in the rnuseum. If a work is considered for reproduction, adaptation, etc. this must be checked. K the copyright does not accompany a work, the rnuseurn would do well to consider whether or not those rights are worthwhile to acquire. The museum should ask what the potential interests ofthe museum might be as well as those of the person retaining the copyright. 22 American Association of Museums, and Association of Art Museum Directors. Gifts uf Property, A Guide for Donors and Museums. Washington, D.C.: American Association of Museums, 1985. Buck, R.A. and J.A. (3i|boore. The New Museum Registration Methods. Washington D.C.: American &nmooid000fMuseums, 1998. Edson, Gary. Museum Ethics. London and New York: Roudedge,|997. Malaro, Marie C. A Lega Priiner on Managing Museum Collections. Washington, D.C.: Smithsonian Institution Press, 1985. Naumer, Helmuth J. Of Mutual Respect and Other Things An Essay on Museum Trusteeship Washington, D.C.: American Association ofMuseums, 1477. Porter, Daniel R. "Current Thoughts on Collections Policy." Technical Report 1. Nashville, Tennessee: /\/nchnauAxuooio1ion for State and Local History, 1985. Porter, Daniel R. "Developing a Collections Management Manual." Technical Report 7. Nashville, Tennessee: American Association for State and Local History, 1986. Simmons, John E. Things Great and Small, Collections Management Policies. Wuabin8ton,D.C.: American Association of Museurns, 2006. Ullberg, Alan D. and Ullberg, Patricia. Museurn Trusteeship. Washington, D.C.: American Association o[ Museums, l98l. 2 ] Purpose of the Museum Collection Purpose and Responsibility Acquisitions Collection Description Destructive Analysis Deaccessions Loans Museum Ethics Policy Museum Clear Title Guidelines Appendixes: Table of Contents 1 2 3 4 7 7 12 18 21 Bibliography 23 Attachments: A. City Code, Chapter 2, Article III, Section 2-51 - Creating a Department B. City Code, Chapter 2, Article IV, Division 5, Section 2-90 - Museum Advisory Committee C. Laws of Texas Pertaining to Museums D. City Code, Chapter 2, Article IV, Division 1 - Attendance Requirements, Term Limits E. City Code, Chapter 2, Article V, Division 1 - Code of Ethics F. "Deed of Gift" Form Museum Collection Deaccession Process MJV / ' Disposal , Member of `. Committee submits Deaccession and Record form,' to Collection \. Manager / A =, / Yes or Does Dire approve proposed deaccession disposal ethod? or and , No No Collections Committee Collections Manager confirms checks restrictions, issues, or concerns Y title, legal ethical ; Committee reviews proposed deaccession based on the Museum's purpose, scope of the collection, and 1 Policy guidelines. /7 /Doe /Fommitte recommend deaccession id disposa tho Yes Advisory Committee oes,Adviso--_ Committee approve? , __ _.._ / Collection 1. Yes. deaccessed Deaccession proposal presented to Museum Advisory Committee by Director Yes 2 u Q v��y `v� ���� �� n`` No Deaccession proposal reviewed by City Manager or designee/- Doe's City / or designee _ Manar g n �No� v n / Collection v '' p r / kept �� v approve \ \deaccession Technical Appeal Process plies Director beleire �`' Event/Action conflicts '� ,•-•;--- ; , _ i ! Event/Action commences," Yes _. `; l MJV proposes P P �` Event/Action that i ', effects exhibits or ! collections. ,'' .with Museum's mission '�, or operations? N 1 No Yes Event/Action proposal by City Manager or designee / // Does City or designee approve N\ Action? \. Manar ' Event/ /Event/Action reviewed `` does not \ commence '� No 0 City of Corpus Christi 6/26/2012 City of Corpus Christi August 16, 2010 To: From: Angel R. Escobar City Manager Rick Stryker Museum of Science Hist Subject: Proposed Changes to Policies On May 6, 2010 the Museum Advisory Committee adopted changes to Museurn policies that require City Manager approval. 1) Reduce the number of free admission days from 14 to 10. The new policy will eliminate the free days in September, October, April and May. This would increase admission revenue for the Museum (1020-308471) by $1,356.75 and the Ships (1020-308550) by $1,014.75. 2) Increase the charge for birthday party attendees over the 20 person limit from $5 to $7. In 2009 1,336 people attended 78 birthday parties in the Museum. It is not really possible to estimate the amount of money earned from this policy change because the data is not available. The primary puipose of this policy change is to limit the number of participants in a birthday party event to the capacity of the room. The revenue earned from this policy change would not be significant, 3) Impose a $7/person charge for rental event participants over the 50 person limit. In 2009 there were 16 social events during normal business hours to which this fee would have applied. It is not really possible to estimate the amount of money earned from this policy change because the data is not available. The primary purpose of this policy change is to limit the number of participants in an to the capacity of the room. The revenue earned from this policy change would not be significant.' With your approval, these policy changes will go into effect. C Li-sr)(itat-e-) Approved: 0 Margie C. Rose g R. Escobar AUG 2H ,010 Corpus Christi Museum of Science and History Admission Fee Policy Advisory Committee Adoption: 1/07/2010 Approval: Date: gel R. Escobar City Manager Fee Schedule: Adults (ages 18 and over) $12.50 Senior Citizens (age 65 and older) $10.00 Military (with ID) $ 9.00 Students (with ID, age 13 and older) $ 9.00 Children (ages 5 — 12) $ 6.00 Free Admission: • Children through age 4 • Students on group school tours (a $3.00 per student fee is still charged for students wishing to visit the ships) • Children under age 13 on Saturdays, 10 a.m. to Noon (a $3.00 per child fee is still charged for children wishing to visit the ships) • All visitors will be admitted to the Museum exhibits free on the first Thursday of each month from September through May and on the first Sundays in November, December, January, February, and March. (a $3.00 per person fee is still charged for those wishing to visit the ships) • Members of the Friends of the Corpus Christi Museum of Science and History • Museum Auxiliary volunteers Unaccompanied Children are not admitted Visitors under age 18 must be accompanied by an adult. At least one adult chaperone is required for every 10 children. Corpus Christi Museum of Science and History Birthday Party Policy Advisory Committee Adoption: January 7, 2010 Approval: Fee Schedule: $90 Members $150 Non-Members gel R. Escobar City Manager Date: Rental fee includes use of Junior League Lecture Hall for two hour period. Parties are scheduled Tuesday through Saturday at 10:00 A.M. to 12:00 noon or 1:00 to 3:00 P.M. Sunday parties are scheduled only from 1:00 to 3:00 P.M. Host is allowed 30 minutes prior and 30 minutes after for setup and take down. Up to 20 guests are included (any combination of adults and/or children) with a $5.00 fee per person over 20. That fee, if applicable, is collected at the end of the party. Cash, check, Visa or Mastercard is accepted for payment. • Reservations are only made with full payment. • Cancellation with a full refund takes 4 to 6 weeks. Scavenger Hunt is available for an additional charge of $15.00 Themed gift shop bags are available at $3.00 each. Museum provides: • Tables and chairs and cleans the room and takes out trash after the party. • Special recognition of birthday child with a foil crown and announcement over PA system. • Guests are encouraged to participate in, any Museum activities such as Saturday Craft Program or Treasure Hunt on Saturdays. (The Museum does not provide staff host or facilitator.) Host provides: • Host is responsible for decorations and refreshments. Food may be brought from home, from a deli, or pizza from an outside source. We have the phone number of a Pizza Hut that delivers to the Museum. (No helium balloons are allowed.) • Host may use mesquite trees behind the Museum for a pifiata. Host is to provide the pitiata, rope and stick. Corpus Christi Museum of Science and History Education Program Fee Schedule Adopted by the Museum Advisory Committee: September 6, 2007 Approved: Program Fees Date: Fact Hunt $15 per group of 25 (Includes one pencil per child) Focus Program $25 for group of 25 (for schools and scouts) Scavenger Hunt $15 for birthday party held Sunday through Friday (Includes small prize and pencil) Loan Kit Traveling Trunk $40 for 5 days (for schools only) Reservations via telephone. Facility Improvement Process KNid�nt�i " =s\ Facility2 1, Improvement Advisory/ Friends of GM creates Master Plan for FIP GM & Director develop timeline nmw&Director cannot agree, begin for operations & Technical Appeal improvement | Process i Phases Director presents FIP plan to Advisory & Friends fo recommendation! Friends Yes or No 1st phase of improvements begins Yes 1St phase of improvements completed MJV makes corrections CM or designee presented FlPPlan designee approve / Does CK8or construction? \`- ase? `` °. � `.` ` **r~ ,~ ~` pr#ven�entxnot\ MJV `\ \ made/ -- Questions to consider: • What constitutes Plan for F|P7 Does it need to include architectural plans? • Will a draft complete plan be required? • How will exhibits be effected? What wili construction do to operations? • At what point during construction are reimbursements approved? Who confirms construction is satisfactory? • How often will MJV be reimbursed for investments? Corpus Christi Science & History Museum - Governance & Organizational Structure CONFIDENTIAL Accredidation fission' Foundation Philanthropy City Council City Manager Museum Joint Ventures 06/05/12 Events Adaatinittrative Manager Lori .Bryant Development Director Patricia Drolet Exhibits Projec_ Cristina Chaves Exhibits. Project Mgr an Bequet Building & Grounds Custodian Ralph Sarmiento Building & Grounds Custodian Richard Esquivel Tour Guide sacira Prince Marina Maintenance Supervisor — Rudy Mircovich Carpenter & Joiner Trent Flanagan Education Maggie boratory :Ass nnie Randolph Sales Assistant Janie: Cleland Sales Assistant Laura Guererro incentives Sales Assistant Mary Herrera Debt Reduction evenue Focused City of Corpus Christi Purchased Insurance as of January 10, 2011 CONFIDENTIAL Coverage Insurance Carrier / Expiration Date Coverage limits Deductible Types of Claims Premium Cost Airport Liability Primary ayer Texas M� | un po League (TML) 11-4-2012 $2SMillion per occurrence $5,000 per occ$10'000 aggregate Liability claims occurring at the Airport 28,193.00 AirpnrtLiobi|hY-ExcewnLayer ACE - Illiriois Union Ins. Co./114-2O12 $50 Milhon per occurrence $25Million primary limit Airport Ilability claims in excess of pnmary limit $ 36'185.50 General LiabUty for CCPD Substation Flint Hilis agreement Texas Municipal League (TML)11-4-2012 $1.88O.O00per mz. /$2.008.000 annual aggregate $-0- Bodily injury or property damage claims $ 859.00 TBClinic Van Liability Physical Damage Texas Muriicipal League (TML)11-4-2012 Liability $1,000,000 per occ/ $25,000 Med Pay / Physical Damage ACV 0—Liability/ $250' Physical Omg.per mm, Auto liability & physical damage claims involving TB Clinic Van 082.00 Auto Physical Damage -CCPD Special Services Leased Vehicles / SWS trarisfer trailers/ scheduled Higher Valued units Texas Municipal League (TML)114-2U12 Physucal Damage ACV Private pass. vehs. $250, per occ./ Transfer Trailers - $500 per occ. / Higher Valued units - $2,500 per ncc. Comprehensive and or colflsion damage to the leased units; scheduled SWGhan8srtrailers/ scheduled higher value units 113,938.08 Fleet Catastrophic Physical Dmg Texas Municipal League (TMU11-4- 012 $15.0OO.O0Oper occurrence $258,O0Oper mz. Catastrophic damage to fleet vehicles in excess of deductible such as hail hurncane fire exp[osion etc $ 12.080.08 Mobile Equipment Texas Municipal League (TML)11-4-2012$2.737.270 pnrmccunemm $2.5O0per occurrence CnmpmhennixeundormoUi collision1otb o damage o scheduled mobile equipmment 10,297.00 Animal Mortality Texas Municipal League (TML)11-4-2012$12.5UO per canine 0 Canine coverage for LaRoy and Kimbo CCPD $1,139.00 Excess Gas Utility Liability- General Liability & Auto Liability Texas Municipal League (TML)114-2O12 $10 Million per occurrence/ annual aggregate $25O.0mUper nco Auto and general Ilability claims in excess of deductible »e,o*�.mn EmpFoyee Dishonesty/ Crime Coverage Texas Munieipal League (TML) 11-4-2012 $1 Mil per occ for employee theft, faithful performance, forgery or alteration, theft of money & securities inside premises; robbery or safe burglary inside prernises; outside premises; cornputer fraud; funds transfer fraud; money orders counterfeit paper currency/ $25.000 Credit Card Coverage $1U.00Odod.Per 000/ $250 ded.- credit card cov. Employee theft, faithful performance, forgery or alteration, theft of money & securities inside premises; robbery or safe burglary inside premises; outside preniises; computer fraud; funds transfer fraud money orders counterfeit paper currency $ 9.134,00 Prepared by Evelyn 7/9/2012 Page 1 of 2 City of Corpus Christi Purchased Insurance as of January 10, 2011 Insurance Broke Contract Expi 'on Date: Texas Municipal League 11/4/2014 McGriff, Seibels & Williams 5/4/2015 Prepared by Evelyn 7/9/2012 Page 2 of 2 Coverage Insurance Carrier/ Expiration Date Coverage limits Deductible Types of Claims Premium Cost Excess General Liability, Automobile Liability, Public Officials, Employment & Law Enforcement Liability / Excess Workers Compensabon Star Insurance Co. 3-1-2013 $5 Mil each acc.per ooc/$10 Mil Aggregate / Workers Compensation Statutory $5OO.0UOSIR for Liability other than WC / m35O^OQUSIR for VYC Monetary threshold of reserve that exceeds 50% of SIR or severe injuclaims such as fatality, spina cord, brain injury, 2nd m3rd degree bummm>58%cf body, amputation, vision impairrnent > 50%, nerve damage causing paralysis or loss af sensatiori in a Iirnb, intemal injuries, significant shattering or non - unon of Iimb WC claims nvorving total disability 360.000.80 Primary Flood specific locations Selective Insurarice Co Majority on 114'2011 varies per Iocation $2U0Oper building/ 820OOper contents flood / rising waterstorni tidal surge damage to specified buildings various amounts Commercial Property / Wind Coverage -f Excess Flood Multiple camer/ layers 5-4-2013 Property '$2SUMillion Blanket limit / Wind $100 Million Blanket Limit / Q3OMillion Flood limit / EDP $1O Million, Fine Arts $1 MiIIion/ unscehduled lona0oms$1Mi|0on 1 0% margin clause on Iocations excess of $3Milllon $2MiIIion Named Storni w/$25OKminimum/ $$Million max,$250K all other wind /$10U'OOO Excess Flood except flood zone A excess of maximum NFIP / $50,000 per occurrence - All other perils/ $10,000 EDP deductible Fire, Iightning, smoke, damage caused by vehicles or aircracft not or civrl commotron theft vandalism explosion,wind,excessUon� $ 2,717,910.52 Boiler &Machinery Travelers Ins. 5-4-2O13 $100 Miilion Property Damage Limit $2,500 property damage deductible per o� MechanicaF equipment breakdown or failure of systems such as electrical HVAC etc. $ 19,113.00 Insurance Broke Contract Expi 'on Date: Texas Municipal League 11/4/2014 McGriff, Seibels & Williams 5/4/2015 Prepared by Evelyn 7/9/2012 Page 2 of 2 1 Property Statement oflraittes ityofCorpusChrist Dept. Address Zip 1900 N Chaparral 78401 Museum Insured CC Musem of Science and History property Protection Class Occupancy Museum 4 ft:inst. Masonry Roof Steel/Cover 100% Values -3; 1.5 Total Insured , Value $22,750,000 $12,750,000 $10,000,000 Flood Zone B County: Nueces Flood (NFIF) Year Building $500,000 Contents $500,000 (sot) 85,000 Built 1965 2 1900 N Chaparral 78401 Museum Museum Mechanical Bldg Masonry Steel/Cover 1,5 $347,400 $97,400 $250,000 B $95,000 $210,000 1,200 1967 Facility Rental Policy - Corpus Christi Museum of Science and History Advisory Committee Adoption: January 7, 2010 City Manager Approval: Date: z/ fi/ el R. Escobar Museum/Plaza Facility rental is possible during non-public hours, for purposes that are consistent with the Museum's purpose and policies. Museum Room rental Is available during public hours and evening hours. Prices are applicable to a maximum of 4 hours of event time. The Museum may not be used as a forum for promotion, commercial sales, religious services, fund raising activities, or political gatherings. The Museum reserves the right to refuse rental of the facility for any event Inconsistent with the Museum's purpose and policies. Rates - Museum Seated Area Capacity Rental Fee WICultural Gpllery AT lighlitiffit*Mita Entire Museum (400) $ 2,200 $ 2,700 0110, OMMEMS North wing (150) 1,000 1,500 $11: ;;V:M-StMtM South wing (100) 700 Center wing ( 80) 500 Cultural Gallery for Wedding 500 Capacity of the Museum Is 2,500 people. Seating capacity varies with type of tables used and set-up area. Cost to remove exhibits from Children's Wharf $200 and from Cultural Gallery $280. Rates - Santa Maria Plaza Area Rental Fee W/Cultural Gallery 'AilW urfy. Pe�n North wing and Ships Plaza $ 1,500 $ 2,000 (Capacity: seated 500/outside, 150/inside) Ships Plaza $ 500 Ship Tours (per hour) 100 Ship tours are available as part of Museum rental. Additional Rental information Prices are apphcable to a maximum of 4 hours of event time gib_ jj_ litrismv ira woorin pmwojxgyik.msiwofgttmtttvgfm Wedding rehearsal 1 hour, wedding day 2 hours. Set-up may begin 1 hour before Museum/Plaza closes at 5 p.m. All equipment and supplies brought in for an event must be removed by 8 a.m. the following morning. Museum will provide: 10 - 8 ft. tables and 100 chairs (Inside use ix_ily) Plaza rental will Include: 14 tables and 32 benches. Renter will provide: Additional electronic equipment (lapel microphone, overhead projector, slide projector, and TVNCR) and any additional tables and chairs. A 10% catering fee Is charged to food and beverage service providers. Corpus Christi Museum of Science and History 1900 N. Chaparral, Carpus Christi, TX 78401 (361) 826-4664, Fax (361) 884-7392, e-mail bonnielacetexas.com Room Rental Policy Museum Facility rental is possible during non-public hours, for purposes that are consistent with Museum's purpose and policies. Museum Room rental is available during public hours and evening hours. The Museum may not be used as a forum for promotion, commercial sales, religious services, fund raising activities, or political gatherings. The Museum reserves the right to refuse rental of the facility for any event inconsistent with the Museum's purpose and policies. Area Room Rental Seating Can el Rate Watergarden Room 50-175 Lecture Hall 50-75 Conference Room 16-25 Dome Room 70 $150 125 75 200 Rooms may be used for meetings, and luncheons. receptions ask to see the Facility Rental Policy. Hrs. Available Meetings after 5 p.m. 8am-5pm $275 8am-5pm 250 8am-5pm 175 3 hours 500 For evening functions dinner or The Museum will provide: Tables and chairs for room set-up, screen and projector, connectors for computer presentations, podium and microphone. Museum Gift Shop will provide coffee and soft drinks for an additional fee. Corpus Christi Museum of Science and History Piano Recital Policy and Fee Schedule Advisory Committee Adoption: December 4, 2003 p Approval: Fee Schedule: ty Manager Date: iloy $100 for 2 hour use of the Front Porch area, Tuesday evenings, September — May $40 food and beverage set-up and custodial services The piano is tuned annually at Museum expense. Programs are provided by the Recital sponsor. "Doc" McGregor Photograph Collection Policy Advisory Committee Adoption: January 7, 2010 gel R. Escobar Fiber Base & Archival Mat Resin Coated Paper (Matte or Glossy Finish) 5 x 7 25.00 8 x 10.. ..... 55.00 11 x 1465.00 16 x 20 . . .. 80.00 20 x 24...........110.00 5 x 7........ ..... 15.00 8 x 10...........20.00 11 x 14.........30.00 16 x 20........50.00 20 x 24, .... _75.00 24 x 36........200.00 Sepia Tone Prints Flat rate per image: $10 Digital Images 100 dpi $10 300 dpi$25 Website use: Non-Profit $50 in addition to cost of picture printing Commercial $100 in addition to cost of picture printing Copies Archival Materials: $0.10 each McGregor Scanned Copy: $1.00 each Publication Use Text use of image in addition to cost of picture printing: Non-Profit $30 Commercial $50 Cover use of iiii e in addition to cost of picture printing: Non-Profit $50 Commercial $100 Re-use Fee for the use of same image: 34 of the original usage fee Fee Policies: *Fees must be paid in advance *No refunds or exchanges *All sales are final 3. Energy Savings 3.1 Guarantee Overview a. Philosophy: McKinstry is prepared to guarantee any portion of project over which it has direct control. b. This Project: For this project, McKinstry is prepared to guarantee the performance of the installed initiatives to reduce energy consumption. The target energy reductions for the Initiatives that will be implemented can be found in Table 11 of this section, Based upon the stipulated conditions as enumerated by the City of Corpus Christi, TX personnel and the utility rates as described below, the associated utility cost savings are also shown In Table 3.1. c. On-going Services: On-going Performance Assurance bopumna|forUncgtymrCo Chrsti, TX. The cost of On-going Performance Assurance in years after the first year is at the discretion of the city of Corpus Christi, TX. McKinstry is prepared to continue the guarantee as long as the clty of Corpus Christi, TX continues the on- going ocm|cesusgescribedhenein.whmnmoc|tyof Corpus Chrlstl, TX chooses to cancel the ongolng servlces, the guarantee will also be terminated at the same point In time. 3.2 FIM Specific Performance Assurance Methodology m. Guarantees: Table 3.1 - 'Energy Savings Guarantee Summary" provides the specific energy consumption savings for each facility mprovement measure and the guarantee that McKinstry will provlde associated with that measure. Savings calculations are based upon both baseline operating characteristics and proposed operation criteria: I. Baseline: "Baseline" refe to tIie existing characteristics y cos savings. The baseline operating characteristics, Including system performance and operational expenditures, which were used for this project are provided in Table 3.1. In general, all parties acknowledge the baseline associated with any specific measure has been derived from the following sources: 1) Actual operating information gathered through field observation, measurement, micro-data loggers, and owner's operating log books, 2) Owner provided information concernlng stipulated factors such as run times, bum hours, occupancy, or operational expenditures. 3) In some instances, a modified baseline may have been developed to address areas whereby pre- retrofit conditions do not reflect a system that Is operating per current code or what the City of Corpus Chrlstl, TX may deem as normal operation. |i Proposed: The proposed operating criteria, including system performance and operational expenditures, which were used for savings calculations are provided in Table 3.1. Systems must be operated per the proposed criteria to ensure energy cost savings are realized. McKinstry will provide the Initial start-up, commissioning, and programming of the system to ensure that the systems operate per the proposed operating criteria. the City of Corpus Christi, TX acknowledges Its responsibility to ensure that these criteria are maintained and associated energy savings are realized. Energy Savings Guarantees are predicated on the City of Corpus Christi, TX maintaining its responsibilities as provided below in "On-Going Owner Responsibilities." b. Performance Assurance (PA): Table 3.2 - 'Performance Assurance PIan OuU|ne^provides the specific on-going reporting tasks that McKinstry will perform to verify that the performing as specified. The Intent of the verification Is to measure and verify leading indicators on which the energy savings are based, Once these leading indicators are measured and are verified to be in accordance with the proposed criteria, the savings due to the performance of the equipment or measure shall be deemed as met. McKinstry has proposed measurement of these indicators. The site specific Performance Assurance Program encompasses the following elements: 1. Initial Commissioning Report: McKinstry will provide an Initial Commissioning Report during the one- Energy Service Proposal 1 Confidential and Proprietary 3. Energy Cost Savings Guarantee cont month period three months after the Notice of Commencement of Energy Savings, The scope of this report consists of the tasks outlined under the "Post-Retrofit" stage of Table 3.2. U. First Year 0n-gm|mnReporting: For this project, McK|osuY proposes reporting of th first year PA tasks as provided in Table 3.2 on a one-time basis, The scope of thls report consists of the tasks outlined under the "Annual Task" stage of Table 3.2. The first report shall be provided no later than one year after last date of Notice of Commencement of Energy Savings. However, if additional phases of work are involved, a single PA Report may be provided at regular interval(s) that reports across all relevant phases of work. 0. Post Year zJ]n-wino Reporting: This proposal includes a 10-Year Guarantee. This guarantee is only valid if the City Performance Assurance servlces for years 2 tiirough 10. Cost of those services Is $30.000 for year 2, escalated at 2.50/0 per year for each year thereafter. 3.3 Whole Facility (Option C) _ M&V Plan Details of the FIMs to be ir,stalled and thelr proposed proposed method of savings verification, specifically those FIMs proposed for the Airport, are detalled In Table 3.2. This section covers FIMs proposed to be verified uslng Optlon C. McKinstry proposes to install and implement extensive efficiency measures Including: lighting improvements, computer power marlagement, vending power management, HVAC controls and ngm'oomm|ss|on|uQ, and replacement of HVAC equipment, These measures will be Implemented at the foliowing buildings: • American Bank Center ° Health Department Arena and Convention Center ° Selena Auditorium • Central Library • Municipal Courts and Police Department • City Hall • Museum of Science and History OPTION C: WHOLE FACILITY ANALYSIS Because the proposed FIMs are expected to reduce building utility consumption by more than zoe, McKinstry will determine energy savings described in this section by following International Performance Measurement and Verification Protocol (IPMVP) Option C Whole Facility Analysis protocol to demonstrate the overall reduction in energy usage. Energy savings will be measured by comparing by comparing the guarantee perlod's total energy corisumption and demand to the total energy consumption and demand for the same area in the base year perlod. Base year ener y and demand will be adjusted for differences in weather, facility operation, and facility modifications. This method will provide an estimate of how much energy would have been used In the guarantee period if the FIMs had not been Implemented. Speclfic savings will be determined in the following manner: • Energy Saved — the difference between the adjusted base year consumption and the guarantee period consumption. ° Demand Saved — the difference between the adjusted base year demand and the guarantee period demand. • Energy Cost Savings — the difference between the cos of the base year consurnption and demand and the guarantee period consumption and demand. This process will be followed for each fuel type Involved In the guarantee In support of the Whole Faclllty Analysis, the M&V proces may include FIM speclflc review and analysis. This closer look Into individual systems Is often referred to as "retrofit isolation" and relies on the physical assessment of equlpment change-outs to ensure that the Installation is to specification. The potential to generate savings is Energy Service Proposal 1 Confidentlal and Proprietary 3. Energy ` ost Savings av"ngs GNa antee cont. verified through observations, and spot/short-term/continuous metering of energy or proven proxies of energy use. Following the collection of the measure specific data, the data will then be incorporated, if appropriate, into the computer simulation to account for energy impacts resulting from deviation from the project's performance ENERGY BASELINE DEVELOPMENT Baseline Definition Tile base year Is the period of time, as agreed agreed to iri this document, which establishes the pre-retrofit conditions used as the point of refer nce for determining guaranteed savings, The guarantee period Is any one or more billing periods during the term of the guarantee during which guaranteed savings are measured. The baseline is that set of parameters that descrlbes both the energy consumed in the base year and the conditions that caused that consumption to occur. This set of parameters includes utility pdo facility information, weather data and other information as may be necess to describe the base year cond|tians. In addition, the baseline includes certain mathematical values calculated by a model that is used to correlate the base year energy consumption with the factors that caused that consumption. The baseline to be used for this project Is fully defined in Section 5 - Exhibit 2 - Utility Data Assessment (UoA). Customer agrees to accept rnodifications to this baseline that are necessary to account for changes in the facilities and their use which many have occurred prior to the execution of this agreement but come to the attention of McKinstry after the execution of thls agreement. Determination of Adjusted Baseline LJtiIity base year consumption will be adjusted to estimate what the current guarantee period consumption wmuld have been had no FIMs been Implemented. This is accomplished by adjustlng for these factors: • Changes in the riumber of days between the base year and guarantee year billing periods • Changes in weather between the base year and guarantee year billing periods • Changes in facility use between the base year and guarantee year billing periods ° Modifications to the facility between the base year and guarantee year perlods Adjusted base year consumptiori Is calculated as foliows for each u type: 0~Co*(T1-T~J+CH* HOD, +Cc*CDc,+M/ Or, Adjusted Base Year Consumption = Weather Independent Consumption + Weather Dependent Consumption + Use and Modiflcation Adjustments Where: Q = adjusted base year consumption Cu~nconstantnenresendngunVsofcnnsumpdnnpenbi|Uogpe,nddoymscakulatedbymodel T1 = ending date of current bllPIng perlod Ti.1= ending date of previous billing period CH = a constant representing units of consumption per heating degree day as calculated by model HDD, = heating degree days in the current billing period Cc = a constant representing units of consumption per cooling degree day as calculated by model CDo/= cooling degree days iri the current bIIIing period MI = other adjustments for the current billing period (MI is described In detail below). Energy Service Proposal 1 Confidential and Proprietary 3 Energy Cost Savings Guarantee Cont. Adjusted base year demand is calculated with a slightly different formula as follows: D = DD * (T; - T_1) + DH * (HDD1/ (T1 - Ti.t) ) + Dc * (CDD1 / (T1 TI.1) ) + M1, Or, Adjusted Base Year Demand = Weather Independent Demand Modification Adjustments eather Dependent Demand + Use and Where: D = adjusted base year demand DD = a constant representing units of demand per billing period day as calculated by model DH = a constant representing units of demand per heating degree day as calculated by model Dc = a constant representing units of demand per cooling degree day as calculated by model Weather Independent Consumption This component of consumption can be regarded as base - load, or non -HVAC consumption. As utility meters are not always read on the same day of the month, the number of days In a meter's billing period frequently varies. The term, CD * (T, - T, -1), in the above equation is used to account for this difference, where (T - gives the number of days in the guarantee year billing period. Thus, Weather Independent Consumption Is the base load consumption per day times the number of days in the guarantee year billing period. The approach is identical for demand, except that the term DD is substituted for CD. Weather Dependent Consumption Change in weather between the base year and guarantee year periods is accounted for with the terms, CH * HDDi + CC * CDDi. Weather Dependent Consumption Is consumption per degree -day times the number of degree -days in the guarantee year billing period. A cooling degree-day is the difference between the average daily temperature and the balance point temperature (AvgTemp - BalanceTemp). A heating degree -day Is the difference between the balance point temperature and the average daily temperature (BalanceTemp - AvgTemp). Degree -days are always greater than or equal to zero. If the degree -day calculation yields a negative number, the period Is considered to have zero degree -days of that type. The balance point temperature Is different for each building and for each fuel type and will be defined in Section 1.5. Demand Is treated similarly. The exception being that "total degree -days per month " is substituted for "degree - days per day." This provides a measure of average daily weather Intensity. Other non -route Adjustments Additional non - routine adjustments to the base year may be made to compensate for modifications and additions to a facility and /or changes in how a facility is used. A list of known Causes for Adjustments Is shown in Section 1.6 along with means to determine the magnitude of these adjustments. The total adjustment for any given period will be determined with this equation: M;= Adj1+ Adj2 +...Adj„ Where Adji, Adj2 and Adj, are all of the adjustments determined to be necessary for the guarantee period. The sign of the adjustment will be positive when the change will cause an increase In utility and the sign of the adjustment will be negative when the change will cause a decrease in utility. Upon request, McKinstry will provide an explanation of the derivation of these adjustments to Customer. If additional changes occur, other than those listed In the M&V Plan, McKinstry will document to Customer how adjustments will be determined for said changes. Any such adjustment will be added to the term M, in the equation above. Energy Services Proposal Confidential and Proprietary 3 Energy Cost Savings Guarantee cont. ENERGY SAVINGS CALCULATION METHODOLOGY Determination of Energy Units saved Energy and demand units saved will be determined by the following equation: E =EB -EG Where: E = Energy (or demand) Units Saved EB = Adjusted Base Year Consumption (or Demand) EG = Guarantee Period Consumption (or Demand) Determination of Energy Dollars Saved For the purpose of this contract's guarantee, energy dollars saved will be determined as follows: $ = ($B- SG) +$5 +$0 +$M Where: $ = Energy Dollars Saved $B = Cost of Adjusted Base Year Energy, for All Fuel Types $G = Cost of Guarantee Period Energy, for All Fuel Types $s = Stipulated Energy Savings $o = Other Energy Savings $M = Maintenance /Other Savings The cost of energy In any period will be determined by applying the energy rates, as defined in table 3.3 or the actual energy rates during the period, at the discretion of McKinstry, to the energy used in a given period for each fuel type. BASELINE & SUPPORTING INFORMATION Meter Tuning Contract The purpose of meter tuning is to establish a relationship between the weather, or other independent variables, and consumption and demand measured by a particular meter. Tuning consists of identifying relationships between historic utility performance and the relevant Independent variables. The end result is a set of coefficients, which will be used In modeling the energy use of a facility to calculate the energy savings or penalty associated with weather normalizing the baseline energy use. During the project implementation period, McKinstry will select the 12 -month baseline period (typically the same period used as the base line for the energy savings guarantee) for each guaranteed meter and will determine the meter tuning coefficients. These coefficients will be included as a part of this contract and will be submitted to Customer for review prior to the start of the guarantee period. The meter tuning effects will be calculated using Metrix utility simulation software. Thls software package has been accepted as meeting the requirements of the IPMVP. Meter List Energy Services Proposal Confidential and Proprietary 3. Energy Cost Savings Guarantee cont The following meters will be used to measure actual energy consumption for both the base year and guarantee periods, Building 'Sep ved AME Meter Number 10032789439293451 Account. Number 4995056150 Utility Cu Rate Units AEP/ Direct Sec> 10 Energy kW/ STAP - 2009 kWh, kW AME 10032789490999491 4995056173 AEP/ Direct Energy Sec> 10 kW/ STAP - 2009 kWh, kW AME GA58094 City of Corpus Christi City Gas Therms AME 335494 City of Corpus Christi City Gas Therms AME GA61012R City of Corpus Christi City Gas Therms CEN 10032789435610861 4995056160 AEP /Dlrect Energy Sec> 10 kW/ STAP - 2009 kWh, kW CEN GT59346R City of Corpus Christi City Gas Therms CIT CIT 10032789494229351 8514656 4995056154 AEP /Direct Energy City of Corpus Christi Sec> 10 kW/ STAP - 2009 City Gas kWh, kW Therms CIT GT61002 City of Corpus Christi City Gas Therms HEA 10032789412459381 4995056159 AEP /Direct Energy Sec> 10 kW/ STAP - 2009 kWh, kW HEA TBD City of Corpus Christi City Gas Therms MUN 10032789410525840 4995056169 AEP /Direct Energy Sec> 10 kW/ STAP - 2009 kWh, kW MUN GA76764 City of Corpus Christi City Gas Therms MUS MUS 10032789422995252 10032789464587390 4995056173 4995056163 AEP /Direct Energy AEP /Direct Energy Sec> 10 kW/ STAP - 2009 City Gas kWh, kW kWh, kW MUS 57700 City of Corpus Ch risti City Gas Therms Energy Services Proposal 1 onfidential and Proprietary -� Energy Cost Savings ������ y������ ��. �-/ /�~i �4 � v~�����L ���um/�V N��~� �~���X�.C3i|����~ cont. � Building List The following table lists the buildings that were served by guarantee meters during the base year period. Bldg 10 AME Building Name Ara (h/} Comments�� American Bank Center 486,342 CEN Central Library CIT City Hall HEA Health Department 78,400 152,361 46,876 MUN Municipal Courts & Police 102,580 MUS Museum of Science & Natural History 85,000 Weather Data Source Data for weather compensation adjustments will be Daily Hlgh-Low Temperatures obtained frorri the National Weather Servlce Station Christi, TX (CRP). In the event the speclfied weather station Is deactivated, weather data will be collected from the nearest weather station with suitable observations. If the data source becomes unavailable or a superior source is identified, McKlnstry may select an alternative source with Customer's approval. NON-ROUTINE ADJUSTMENTS Causes For Adjustment Cause Addition of New Building or Renovation/Addition on Existing Building - with Independent Utility and *vxc Service Action Responsibility 1, None requ|md Should have no impact uotmcked meters 1. None Change Addition of Facllltles or service on Existing Utility and HVAC Service 2. Notify McKinstry of planned changes 3. McKinstry will revlew plans arid will determine if change is likely to impact energy use above thresholds 4. If change is expected exceed any threshold, all Incoming utilities and HVAC service will be sub-metered 5. If the chan impact 5 expected to be below threshold, then the change In energy use will be estimated using industry accepted methods 2. Customer 3, McKinstry 4. Customer 5. McKinstry Energy Services Proposal I onfidential and Proprietary 3. Energy Cost Savings �� cont. ��| |��| �4 � ^~�v~/.�� ����VN/ .���a Guarantee �~��| |L. __ Cause �� Customer Initiated � Ac ion Responsibility� 6. If less than 5% of this contract's annual guaranteed energy savings, no adjustment will be made to the savings measured under this contract 7. To measure aomPn,�onuwm to mac* agreement from MxKnxty, the resul m CI-FlM will be removed from this contract's savings 8. In no event will the original M&V plan's current year measured savings be reduced below the imrnediately preceding year's savings due ,ncz-��m 6. N/A 7. Customer 8. N/A Missing Bills 9. Customer m utility information directly from the utility or Customer will send complete and accurate copies of utility invoices for meters included in thls contract to mcxinstrywi0hin 10 days of receipt. 10. IrmcNnstry does not receive Invoices within 60 days of end «f service Pedod,McK|nyt'Yw|||est|ma'eoa«|n8s based onguuenteod savings ur previously achieved savings utMcNnstrydiscretion. 11. If McKlristry receives utility data subsequent to above action, McKinstry will incorporate utllity data into savings arialysls. If such data produces savings resulis greater than item 10, the greater amount will be used to 9. Customer 10. zU McKinstry 11. McNnstry Other Causes 12. Other causes for adjustment may occur due to changes i»c«�ambaycx»eo»»Wt|»ns and wiUbm|»«vauoa»e» � and a will beca|cu|amd using industry ucvevteumangords. 12. McKinstry ' Threshold Limits Area: 1% of base year area as described in Building List • Electricity: 1% of highest annual peak clemand resulting from the Meter Tunlrig Contract • Natural Gas: 1% of installed base year gas-heating capacity • Other Fuel: 1% of installed base year maximum capacity • Air Conditioning: z% of installed base year alr-coriditionlng capacity Calendar & Schedules Schedule and occupancy are docurnented in Table 3.4 Standards of Service and Comfort Customer agrees to operate the condltloned spaces in the facilities listed in the Building List within the temperatur ranges as detailed in Section 3.4. McKinstry reserves the right to adjust the baseline for operating conditions outside the range speclfied in this section. Other Key Baseline Informatlon Energy Services Proposal I Confidential and Proprletary 3. Energy Cost Savings Guarantee cont. The following are key baseline conditions and calculation assumptions. Significant deviation from any or all of these conditions constitutes a cause for adjustment. In the event a cause for adjustment occurs, McKinstry will use an appropriate means to estimate the effect of the change and add or subtract the adjustment for the current billing period. All calculations will be made available to the Customer upon request. Guaranteed savings assume that no significant increase or decrease in quantity or capacity will occur in installed equipment and plug loads such as fans, pumps, lighting, copiers, computers, printers, kitchen equipment, etc. McKinstry reserves the right to adjust for changes In quantity and/or capacity of any of these Items. Customer agrees to provide McKinstry access to Customer's premises and/or records for purposes of determining the occurrence and/or magnitude of any such changes. 3.4 Utility Rates a. Utility Rate: For the purpose of calculating savings, the utility rates used will be the utility rates as paid by the City of Corpus Christi, TX to the utility company during the pertinent period, adjusted for any rate schedule changes made by the utility company, except that the utility rate used for calculation will never go below the Floor Rate, or above the Ceiling Rate, as described below. In the event that a building has multiple meters on different rate schedules, the per-unit cost of the utility will be the average of all the rate schedules in effect at that facility. Base Utility Rate: Refer to table 3.3 for the Base Utility Rates (including sales tax). b. Floor Utility Rate: For the purpose of calculation of savings, the utility rate shall never drop below the base utility rates described above. This shall be known as the Floor Utility Rate. c. Ceiling Utility Rate: For the purpose of calculation of savings, the utility rate shall never ceed 1.5 times the base utility rate described above. This shall be known as the Ceiling Utility Rate. d. Rate Schedule Changes: When the utility company makes a change to the rate schedule, the new rate will be used for calculating savings realized during a given period. If a rate schedule change occurs partway through a period, an aggregate rate comprised of a weighted average between the old and the new rate will be used. The weighting will be based upon the portion of the period that each rate applied. 3.5 Standards of Comfort The following section provides the standards of comfort, which the City of Corpus Christi, TX must maintain to ensure the comfort of the occupants upon which all energy calculations were based. HVAC COMFORT Heating, ventilating and air conditioning (HVAC) systems provided by McKinstry will provide comfort and indoor air quality in accordance with the Standards of Comfort below. This standard will pertain only to buildings and areas of buildings in which McKinstry is Installing HVAC equipment that has direct control over space comfort conditions. HVAC comfort conditions cannot be guaranteed when operable windows or doors are open. Indoor Conditions: Occupied: Winter Heating Set Point - 68 degrees F Summer Cooling Set Point - 74 degrees F (where mechanical cooling systems are employed) Unoccupied: Minimum - 55 degrees F Maximum - 85 degrees F (where mechanical cooling systems are employed) Energy Services Proposal I Confidential and Proprietary 3. F-��������� Cost Savings Guarantee �~����� ��, �-� |�~| �4 � v_�v^�.�� ����wU| |��_� »������/ | |��~�~ cont. Unoccupied for Library arid Museum: M/nimum - Ssuen,ees F Maximum - 75 degrees F Minimum outslde air per occupant: zn accordance with ASHRAsstandards LIGHTING Illumination Levels Verification: Illumination levels shall be as recommended by the !Iluminatlng Engineers Society of North America (IESNA). Design calculations shall be made for each space, using an 80% lamp depreciation/maintenance factor, Iltumination Levels Design: The lighting and Illumination levels for lighting systems provided by the McKinstry Co. will meet or exceed current recommended practices by the Illuminating Engineering Society of North America for illumination levels for the various tasks that are conducted throughout the City of Corpus Christl, TX. 3.6 On-Going Owner Responsibilities The City of Corpus Christi, TX shall provide the following services as part of this energy services project. In the event tliat these services are not provlded, energy savings and assoclated guarantees will be modlrled to reflect the associated impact. 1) Maintain all equipment per manufacturer's recommendations and proposed maintenance schedule. 2) Maintain all sequence of operations and performance criteria related to installed systems as proposed and designed. 3) Provide other FIM specific on-going responsibilities as provided in Table 3.2 - 'Performance Assurance Plan Outline." 4) Provide McKinstry access to Energy Management and Control Systems for the purpose of collecting and logging data over time as requlred for perforniance verificatlon. 5) The City of Corpus Christi, TX shall notify McKinstry in writing with regards to any changes or alterations to buildings that will affect energy usage. This notification must be provided within two weeks of the change. This includes occupancy or use changes, computer Ioad or other load changes, scheduling changes, and sequence of operations changes. 3.7 Non-performance In the event the equlpment performance h not met, McKinstry accepts responsibility for additional electricity or gas used by the equipment as a result of the reduced performance. McKinstry may, at its preference, execute any of the following options: a. Repair or replace equlpment as requlred to meet required performance. b. Make payments for the extra energy consumption to the City of Corpus Christi, TX. In the event that McKinstry chooses the payment option, wcK|nstry reserves the right to select either an annual payment for the duration of the finance term or a one-time Iump-sum payment af the same aniount. In elther case, the payment will be calculated based upon the quantity of additlonal electricity used and the Base Utility Rate as described above. 3.8 Change of Use Energy Services Proposal 1 Confidential and Proprietary 3. Energy Cost Savings Guarantee cont. In the event that the City of Corpus Christi, TX chooses to make changes to the facility that require set point adjustments, longer operating hours, or continuous equipment operation, the City of Corpus Christi, TX agrees that: a. Savings deemed as met described above will continue to be deemed as met, b. Additional cost of extended equipment operation Is a cost of the change, not due to a failure of McKlnstry or its equipment. c. McKlnstry shall not be responsible for any increase In energy, maintenance, or any other costs incurred as a result of the extended equipment operation. d. McKinstry, at its option, may make a baseline energy use adjustment to account for a change-of-use at any facility. Energy Services Proposal 1 Confidential and Proprietary Table 3.1 - Energy Savings Summary AIR•09,01 Lighting Improvements City of Corpus Christi, TX ESPC Final 9/16/2011 AIR - Airport 100% 622.0 55,712 447,869 $37,571 -1,284 -$886 $42,397 AIR-16.01 Computer Power Management AIR - Airport 90% 0.0 $0 6,998 $587 0 ;0 $587 AIR-26.01 High Efficiency Hand Dryers AME-04.01 HVAC Controls Improvements (Selena Auditorium) AIR - Airport AME - American Bank Center 90% 90% 0,0 0.0 50 50 -1,805 320,513 -$151 526,884 90 $0 .5151 $26,884 AME-09,01 Lighting Improvements (Arena) A14E - American Bank Center 100% 573.0 $4,929 371,632 $31,172 O $0 $36,100 AME-09,01 Lighting Improvements (Convention Center) AME - American Bank Center 100.1. 1,711.0 $14,717 869,630 $72,943 0 $0 587,660 AME-09.01 Lighting Improvements (Selena Auditorium) AME • American Bank Center 100% 100.0 5060 82,714 $6,938 O $0 $7,798 AME-16.01 Computer Power Management AME American Bank Center 90°Ai 0.0 so 7,747 5650 O $0 0650 AME-16.02 Vending Power Management AME-25.01 Retro- Commissioning (Convention Center & Arena) AME • American Bank Center APSE - American Bank Center 90% 90% 0.0 0.0 50 00 8,492 435,984 $712 $36,569 O 50 0712 $36,569 CEN-04.01 HVAC Controls Improvements CEN - Central Library 95% 0.0 $0 232,188 $19,474 10,664 57,358 $26,833 CEN-09.01 Lighting improvements CEN - Central Library 100% 486.0 $4,180 199,429 $16,727 -561 -$387 $20,520 CEN-16,01 Computer Power Management CEN - Central Library 90% 0.0 00 23,126 $1,940 O $0 $1,940 CEN-16.02 Vending Power Management CEN Central Library 90% 0,0 $0 3,425 $287 0 50 $287 CIT•02.01 Primary Chillers & Cooling Tower Improvements CIT • Cfty Hat 90% -1,830.5 16,655 '784,707 464,193 107,090 $73,892 -$6,956 CIT-02.02 IT Chiller improvements CT - City Hall 90% 0.0 50 43,592 $3,659 $0 53,659 CIT-04.01 HVAC Controls Improvements CIT - City Hall 90% 0.0 $0 109,301 59,175 10,769 57,431 $16,606 C1T-09.01 Lighting Improvements CIT - City Hall 100% 1,192.0 $10,845 593,780 549,845 -1,749 -51,207 $59,483 CIT-16.01 Computer Power Management CIT - City Hall 90% 0.0 50 132,070 $11,087 $0 $11,087 CIT-16.02 Vending Power Management CIT - City Hall 90% 0.0 $0 14,948 $1,255 0 $0 $1,255 CIT-26.01 High Efficiency Hand Dryers HEA' 09.01 Lighting Improvements CIT - City Hall HEA - Health Department 90% 100% 0.0 627.0 $0 $5,393 -2,048 202,055 -$172 $16,948 50 -1,700 -51,173 -5172 021,168 HEA-16.01 Computer Power Management HEA-16.02 Vending Power Management HEA - Health Department HEA • Health Department 90% 90% 0.0 0.0 50 $0 24,429 5,864 $2,049 5492 50 0 $0 $2,049 $492 HEA-25,01 Commissioning HEA - Health Department 90% 0.0 50 179,899 $15,090 $0 $15,090 MUN•04,01 HVAC Equipment & Controls Improvements MUN - Municipal Courts and Police 90% 0.0 $0 381,092 531,965 0 $0 531,965 MUN-09.01 Lighting Improvements MUN Municipal Courts and Police 100% 775.0 $6,666 440,953 $36,986 0 50 $43,652 MUN-16.01 Computer Power Management MUN Municipal Courts and Police 90% 0.0 50 110,171 59,241 $0 59,241 Sheet 1 of 2 nstry Table 3.1 - Energy Savings Summary City of Corpus Christi, TX ESPC Final 9/16/2011 MUS-04.01 HVAC Controls Improvements MUS-09.01 Lighting Improvements MUS-16,01 Computer Power Management MUS - Museum of Science and History MUS - Museum of Science and History MUS - Museum of Science and History 90% 100% 90% Totals 0.0 1,011.0 0.0 kV1 (E.) se $0 123,620 207,788 2,387 4,813,132 k5Vr 810,369 917,429 $200 $403,727 111=1 $36,881 WLA 80 8110,280 $200 The savings shown in this table are less than the calculated savings unless a guarantee multiplier of 100% H shown. t. The guarantee is based on Key Performance Indicators shown In Table 3.2. Refer to Section 3 of the ESP for the method of converting Key Performance Indicators to dollars during the M&V period. The guarantee is based on the aggregate savings for all FIMs, not on individual FIM savings, Confidential and Proprietary Sheet 2 of 2 r p7lYerp�py stry Table 3.2 - M&V Plan Outline City of Corpus Christi, TX ESPC Final 9/16/x011 AIR -09,01 Ugh /improvements Fixture: Types and Quantity'.. Fixture Input Power Re Refer to DES E5 Refer to DES None ANSI Values Logging Collect Light Levels i e EPACT Requirements Spot Measurements Instantaneous spot Input Power Measurements Log 0u1 ryp, Norte f stry W any toll gtit ng stem. Maintain Equipment per MdGnstry and Manufacturer recommendations,. Notify McKinsey of any changes in operating AIR -16.01 Computer Power Management AIR - Airport Quantity of Computer �RU42r.1550C Power Teo Same as Baseline Quantity of computers Customer Interview crenced ENERGY STAR Customer Interview Power Management Local power management Networklevel power Settings only management Power Management settings None Confirm Network Power Management Solution Installed Properly None Nona None None None None Notify MGtfnstry of any significant changes to computer quantiles None management s0ategie per McKinstry recommendations AIR -26.01 High Widen Mand Dryers CIT -26.01 High Efficiency Hand pryers Efrdlen y 1.107 Power Units Paper Towel Availability Paper Towels Available 6° Paper towels available Baseline annual paper In selected restm°ms towel costs CIT - CJty tial1 Usage based drio°cupancy A 1. Hand pryer Power Input No Existing Hann; pryers High Efficiency 1.3W Input Power Units Paper T0001 Availability Pap erToweIs.Availe Hand Dryer Use paper towels aye in selected restroom Customer intent Verify paper towels available in selected restrooms None Nora nainxam new:ego pme'o per;rnanufacturer and rtcKfnstry mmendatlons. Ensure paper towels are not. provided In selected ;restrooms MCKInstry of .any signIficanteltanges an edupancy or use of the facility .. None Detailed Audit Provide as -built documentation per towels 110E gable in selected None None Usage based on occupancy Same as Basally data provided by customer Occupancy Customer Interviews None None None Maintain new equipment per manufacturer and MCKinstry recommendations. Ensure paper Mwe5100k are not amvid0' in 001 Y@stmams Notify Mtkinstry of any significant changes in occupancy or use of the Confidential and Proprietary Street 1 of 1 focltty Pro Tact LScaertario Date Table 3.3 - Base Utility Rates City of Corpus Christi, TX ESPC Final 9/16/2011 Building_Narne Utility_Provider Rate Name — Utility_Type Dollars_per Unit Units Published_Date_Effective AIR - Airport American Electric Power (AEP) AIR - Primary Service Electricity Demand $9.183174 kW 12/30/2009 AIR - Airport City of Corpus Christi (TX) Enterprise Gas Rate Natural Gas $0.690000 Therms 8/1/2009 AIR - Airport Direct Energy AIR - STAP 2009 Electricity $0.083888 kWh 12/30/2009 AME - American Bank Center American Electric Power (AEP) AME - Sec > 10 kW Electricity Demand $8.601236 kW 12/30/2009 AME - American Bank Center Direct Energy AME - STAP 2009 Electricity $0.083878 kWh 12/30/2009, CEN - Central Library American Electric Power (AEP) CEN - Sec > 10 kW Electricity Demand $8.601236 kW 12/30/2009 CEN - Central Library City of Corpus Christi (TX) City Gas Rate Natural Gas $0.690000 Themis 8/1/2009 CEN - Central Library Direct Energy CEN - STAP 2009 Electricity $0.083873 kWh 12/30/2009 CIT - City Hall American Electric Power (AEP) CIT - Sec > 10 kW Electricity Demand $9,097998 kW 12/30/2009 CIT - City Hall City of Corpus Christi (TX) City Gas Rate Natural Gas $0.690000 Therms 8/1/2009 CIT - City Hall Direct Energy CIT - STAP 2009 Electricity $0.083945 kWh 12/30/2009 HEA - Health Department American Electric Power (AEP) HEA - Sec> 10 kW Electricity Demand $8.601236 kW 12/30/2009 HEA - Health Department City of Corpus Christi (TX) City Gas Rate Natural Gas $0.690000 Themis 8/1/2009 HEA - Health Department Direct Energy HEA- STAP 2009 Electricity $0.083878 kWh 12/30 0 9 MUN - Municipal Courts and Police American Electric Power (AEP) MUN - Sec> 10 kW Electricity Demand $8.601236 kW 12/30/2009 MUN - Municipal Courts and Police Direct Energy MUN - STAP 2009 Electricity $0.083878 kWh 12/30/2009 MUS - Museum of Science and History American Electric Power (AEP) MUS - Sec > 10 kW Electricity Demand $8.601236 kW 12/30/2009 MUS - Museum of Science and History City of Corpus Christi (TX) City Gas Rate Natural Gas $0.690000 Therms 8/1/2009 MUS - Museum of Science arid History Direct Energy MUS - STAP 2009 Electricity $0.083878 kWh 12/30/2009 Sheet 1 of 1 City of Corpus Christi, TX Table 3.4 EMCS Schedules Location Occupied SChedulo Occupied Schedule American Bank Center -_-.,_.... ....„..._. ..�•._. _.:.�z;:...�e,.�:,.�,<a: _..a:. a• 7'00 AM 6'00 PM ♦ r • - 8'00 PM F r • ® 800 PM •� SOO PM �i ��� ,�.r..® ® ® ® M A 00 M _ u �.�::.�.gg 8 00 P 7 0® 8 P . .. �:�,i� a .'_ x, s6k�.w^.�`Ea'..a.'.++n.•eaE �R�i�i.� e L.� .€.�v..-: '«:ti d3 .a" ��KK� ,m�:`axw�'w.c..::: �v a .V: a�'�1"a 4: <.d,fiai.: £.-.r-.vsn.�-..... %'s..- ..r...re�i'T.rte-.,-.�-._._..� 6:00 AM 9.00 PM 6:00 AM 9-00 PM 6:00 AM 9:00 PM 6.00 AM 9.00 PM 6 00 AM9 00 PM s s ¢ OMMIZMOML 700 AM 600 PM 700 AM 600 PM 700 AM 600 PM 700 AM 6:00 PM 700 AM 6:00 PM + ,E=.7.== v.x=iLt .€. "au::v;: L �:r. •: 6:00 PM 6:00 AM 6:00 P 6:00 AM 12:00 A 6:00 PM 2:00AM 6:00 AM 6:00 PM x en•—• ours an.. unsay ours are • a ow or •erformances. AS other hours are for show setup, leanu • after shows, and maintainence. Municipal Police and Courts Municipal Police an. Courts AHU-5 AHU-6 Munidpa Police and Courts Munlcdpa Po ice and Courts AHU-10 AHU-11 Municipa Po ace and Courts Mundcipa Poiceand Courts Municipal Po ice and Courts AHU-20 AHU-20 AHU-24 Museum All Systems 24 rs :00 AM 6:00 PM 24 hrs :00 A 6:00 24 h 7:00 A 6:00 P E rs - 24 hrsMEM 7:00 AM 24 h 7:00 AM 6:00 P 7.00 AM 00 AM :00 AM 7:00 AM 7:00 AM :00 AM 7:00 AM :00 A :00 A :00 AM 6:00 PM 6:00 PM 6:00 PM 6:00 PM 6:00 PM 6:00 PM_ 6:00 M 6:00 PM 6:00 PM 6:00 PM 6:00 PM 7:00 AM 7:00 AM 7:00 AM 7:00 AM 7:00 AM :00 AM :00 AM 7:00 A 7:00 A 7:00 A ® R 24 6:00 AM 7:00 PM 6:00 AM 6:00 PM 6:00 PM 6:00 M 6:00 PM 6:00 PM 6:00 PM 6:00 PM 6:00 PM 6:00 6:00 PM 6:00 PM 7:00 AM 7:00 AM 7:00 AM 7:00 AM 7:00 AM :00 AM 7:00 AM :00 AM 7:00 AM 7:00 AM 24 hrs 6:00 AM 6:00 PM 6:00 PM 6:00 P 6:00 PM 6:00 PM 6:00 PM 6:00 PM 6:00 PM 6:00 0 6:00 0 7:00 PM 7:00 AM 7:00 AM 0 AM 7:00 A 7:00 AM 7:00 AM 7:00 A 00 AM 7:00 AM 7:00 AM 6:00 AM 6:00 PM 6:00 PM 6:00 PM 6:00 PM 6:00 PM 6:00 PM 6:00 PM 6:00 P 6:00 PM 6:00 PM 6:00 PM 7:00 PM :00 AM 7:00 A 7:00 A :00 AM 7:00 AM 7:00 AM 7:00 AM 7:00 AM 7:00 AM :00 AM 00 AM 6:00 A 6'00 PM 6:00 PM 6:00 PM 6:00 PM 6:00 P 6:00 PM 6:00 PM 6:00 PM 6:00 PM 6:00 PM 6:00 PM 7:00 PM - serves evi•ence area an • w1 •.. s- 0 egrees in cooling season and 65 degrees in heatin ason. ystem wi go into unoccupr • mo.e at nig 1, on the weekends, and durin • holida s. System will go into unoccupi-• mode at night, on the weekends and durin • holida s. ystem wi go into unoccupi-• m• -•e at nig t, on the weekends and durin• holidas. ystem wil go into unoccupied mode at night, on the weekends and durin•, holida s. ystem wi go into unoccupi •-• mo.e at nig t, on the weekends, and durin • halide s. System wi go into unoccupied mo•e at night, on the weekends and durin• holida s. ystem wi go into unoccupi--• m••eat nig t, on the weekends and durin. -holida , ystem wi I go into unoccupied mode at night, on the weekends and durin. holida ystem WI go auto unoccupie• mo•e at nig 1, on the weekends, and durin• holida s. System wi go into unoccupi-• mo.e at night, on the weekends and durin• hoiada - ystemwz. go intounoccupi -• m• .e at nig t, the weekends and durin• holiide s. System wi 1 go into unoccupi - • mode at nig t, on the weekends and durin• holida s. 6:00 AM 7:00 PM 6:00 AM 7:00 PM ours when the Museum Ls closed for employees orking in the space, Note: Setpoints will fall within the standards of comfort set in section 3. Energy savings calculations allow for extended runtime in areas where irregular use occurs. These events will be scheduled via temporary schedules after which the facility will return to normal operating conditions. Examplesinclude but are not limted to: 1. Arena 2. Selena Auditorium H l$af "int/ Table 35 - Operations and Maintenance (0 cM) Detail AIR-09.01 Lighting Improvements Cety of Carpus Chrsti, TX ESPC Final 0/36/2011 nd A1R -25.01 High Efficiency Hand pryers AIR - Airport. Paper Towels Paper Towel Cast Reduction 09,600 AME •94,01 Ughttng AME . American Bank Improvements (Arena) center 1. 0110.09.01 t:vghti00 AME - AmerInen Bank Improvements (CAnvent)An. Center Center) ea Maintenance. and Repel Lamps & Ballasts $5,172 AME -09,01 Lighting Improvements (Selena Pudendum) and Lamps 6 Balls CEN -09,00 Lighting Improvements CEN - Central Library Maintenance and Repairs Lamps 6 Ballasts 42,317 CIT -02.01 Primary 00illere 6 Cooling Tower Imprpvem ens CIT -C,1y 11011 M 0000 and Rep ai.. 6 5.09 010.02.02 LT Chiller Improvements CIT - City Hall Maintenance and Repairs $0,900 CIT -09.01 Lighting Improvements Hall C1T -26.01 High Efficiency Hand Dryers CIT - City Hall Paper Towels Paper Towel Cost Reduction 99,600 HEA- 99„91 .1igt Cmprovemen end Repairs 0200 Dallas MUN -04.91 HVAC HUH - Municipal Courts Equipment. & Controls s and Petra Improvements Maintenance and Repairs Materials $16,624 Pr 1 Lighting MUN - Municipal Courts entente and Police aintena9ce and Repels 115 -09.01 Lighting MUS - Museum of Science Improvements and History 1' Confidential and Proprietary Maintenance and Repairs Sheet 1 of Lamps 6 Ballasts $4,700 Table 3.6 - Construction Period Energy Savings (Non -Guaranteed) F,,:enanD Date Est ot PI-Er:cc:1 Corrp,-ctioDatel City of Corpus Christi, TX ESPC Final 9/16/2011 6/1/2012 Facility Improvement P=1,,asur'es AIR -09.01 Lighting Improvements AIR -16.01 Computer Power Management AIR -26.01 High Efficiency Hand Dryers AME -04.01 HVAC Controls AME -09.01 Lighting Improvements (Arena) AME -09.01 Lighting Improvements (Convention Center) AME -09.01 Lighting Improvements (Selena Auditorium) AME -16.01 Computer Power Management AME -16.02 Vending Power Management AME -25.01 Retro - Commissioning (Convention Center & Arena) CEN -04.01 HVAC Controls Improvements CEN -09.01 Lighting Improvements AIR - Airport 111111=111111 111=1 AME - American Bank Center AME - American Bank Center AME - American Bank Center AME - American Bank Center AME - American Bank Center AME - American Bank Center AME - American Bank Center CEN - Central Library Ell=1111 Ectet FIMEEErc. P, ad-1E1,r 2/1/2012 12/1/2011 1/1/2012 MIIIESETIE= 2/1/2012 2/1/2012 1/1/2012 12/1/2011 12/1/2011 1/1/2012 4/1/2011 2/1/2012 4 IBM 5 4 6 EMI •SavEv;,,,, $202 $587 $0 so $9,600 $800 $36,100 $87,660 $7,798 $650 $36,569 $26,833 $20,520 $3,008 $7,305 $650 $54 $59 $3,047 $2,236 $1,710 $304 $0 so $25 so so so $0 $193 • 1 of 2 Facility Improvement measures CEN-16.01 Computer Power Management Building '.1r. •iip., Bp•. PC Cdrdidl,' i,. r. 12,il, Cn-Ipl t P.n 12/1/2011 111= $1,940 -.•- -i.0 .. ti..-ii 1 .:,r1, ()F.! ' 111:11,--- - '''. $0 l,l, l'-.- I , C.'.1 $0 C.. '-." rip:1 cn :',. , d CEN-1602 Vending Power Management 12/1/2011 MEM UM.= -4,•k' ,,,,„' 1$ - 3,,,,, ,w CIT-02.01 Primary Chillers & Cooling Tower Improvements CIT - City Hall 5/1/2012 4580 - ,.. : $155,000 $12,917 Q, .... CIT-02,02 IT Chiller Improvements CIT-04.01 HVAC Controls Improvements CIT - City Hall 3/1/2012 3 4/1/2012 IIIIM $16,606 $305 $3,900 ,-,,,,,mrmmv,,:-:k, • s$0 $325 $0 .. '14 4, '.., 4.' ' *.* M CIT-09.01 Lighting Improvements 2/1/2012 t\<- - ' .; $370 ..... .. CIT-16.01 Computer Power Management CIT-16.02 Vending Power Management 12/1/2011 6 12/1/2011 MillillEal $11,087 ;:At7,2. ,., Wz„.',' $0 $0 $105 , - - — . - -,,,W. ,, — • ‘,...,.‘,X., C1T-26.01 High Efficiency Hand Dryers HEA-09.01 Lighting =III HEA - Health Department 2/1/2012 3/1/2012 NMIMICEMZEIP*', -$172 t..A.,.,... MIN $9 600 -me ZUP4.,-, 8131Improvements MAW '' atit.1 HEA-16.01 Computer Power Management HEA - Health Department 12/1/2011 6 $2,049 l.M.•,.,,,,,;.:" -13,' „Nm, $0 $0 att**1**Ait, HEA-16.02 Vending Power Management HEA-25.01 Commissioning HEA - Health Department HEA - Health Department 12/1/2011 MIIMEMIESEfte%"'". 6/1/2012 0 $15,090 ' -,,,,s. $0 -,.,----:i.-*& 1111.4t.\,--, . 1,,,,".A$ $0 . 4o $0 •NtmmA, -. fsUk,,,d.p.V."4, tto$40,-st: lt,ets*,,:szw-s MUN-04.01 HVAC Equipment & Controls Improvements MUM - Municipal Courts and Police 4/1/2012 $2,664 -....w.,..IMZN4 $1,385 MUN-09.01 Lighting Improvements MUN - Municipal Courts and Police 3/1/2012 .111.1=1.EMIL, „ — ,•'', $3,570 MUN-16.01 Computer Power Management MUN - Municipal Courts and Police 12/1/2011 6 III=11 ,'• ,„,,, $770 $0 , ..--1 $0 PACki,lPliWll'' en-Afoct*Iii*kw, MUS-04.01 HVAC Controls Improvements MUS - Museum of Science and History 3/1/2012 MI $3,073 7' $0 $0 MUS-09.01 Lighting Improvements MUS-16.01 Computer Power Management 101111111111111101111161 MUS - Museum of Science and History,.....,,, MUS - Museum of Science and History 2/1/2012 2 12/1/2011 IIIIIII MIIIIIMMIIIIIIIIII 11=III $200 $2,0724,788 ..**....,...m1 $ , 1, 4,,,.4,_ ',..•*, „‘„, t.,-- $0 Mtm '''' - ' '''-'1 $0 2 of 2 Table 4.2 - Facility Improvement Measure (FIM) Summary City of Corpus Christi, TX ESPC Final September 16, 2011 Facility Improvernent MeaSures , FIM Cisiscriptigu Buil ing Budge * aairidal Utility • 5avIngs• Ageual Ope-ationel ,-_,,,,,,,__ ., , .... ,,, - tample Payback ,..,' (SF.) Potential , _ ,„,,, ..reantives lUan-Cy'uai-anteed ., _ _ - _ , , i.let Cubtegier Lost (i.,,,ish Ii} rcentale= Nog, -Guaranteed •,. p _•,t-rg.e, h , 'oatInciantives) MUS -04.01 HVAC Controls Improvements Integrate the existing HVAC controls systems onto the new city-wide graphdaT user lnterface. Install new variable frequency drives and demand controlled ventilation technoTogy OTI the air -handling equipmeft. Provide retro- commissioning of the existing equipment to improve the overalT energy performance of the facility. MUS .. Museum of Science and History $132,182 $36,881 $0 3.6 $0 $132,182 3.6 M9. US -0 03. Light Improvements ing Upgrade the existing ..rlterior and exterior lighting systems with. new more efificlent lighting technologies including controls where applicable MUS - Museum of Science and History $279'866 $24,864 $4,788 9,4 $12,638 $267,228 9.0 C MUS -16.01 omoutr ' e Power Management Install na d progran, a software solution on (20) compute within this facility which will reduce energy consumption du- la oeriods of inactiAtv. r4US - Museum of . . Science and History 8480 8200 $0 2.4 $0 $480 2.4 MUS - museum of Science arid History (Total): $412,528 $61,946 $4,798 6.2 $12,638 $199,890 6.0 • Since design cost, audit cost, etc, are distributed among the FIMs, the total project cost will not go up or down by exactly the amounts shown here if a FIM or FIMs are dropped. • For non recurring operational savings, the values are averaged over the 10 year length of this analysis. .** Incentives are contingent on final approval and are not guaranteed. Fends are shown for reference only. Confidential and Proprietary CORPUS CHRISTI MUSEUM OF SCIENCE & HISTORY MANAGEMENT AGREEMENT CASH FLOW Supplants General Fund contribution over time. AGENDA MEMORANDUM Future Item for the City Council Meeting of August 14, 2012 Action Item for the City Council Meeting of August 21, 2012 DATE: August 9, 2012 TO: Ronald L. Olson, City Manager FROM: Margie C. Rose, Assistant City Manager Margier@cctexas.com 361.826.3232 Collective Bargaining Agreement — Corpus Christi Firefighters' Association CAPTION: Motion authorizing the City Manager to enter into a collective bargaining agreement with the Corpus Christi Firefighters' Association for wages, benefits and working conditions based on the Tentative Agreement. PURPOSE: Council authorization for the City Manager to enter into a collective bargaining agreement with the Corpus Christi Firefighters' Association for the period of August 1, 2011 through July 31, 2014. BACKGROUND AND FINDINGS: The City entered into collective bargaining negotiations with the Corpus Christi Firefighters' Association on April 1, 2011 and reached a Tentative Agreement on July 13, 2012. An election ratifying the Contract by the bargaining unit of the Fire Department was held on August 1, 2012. The bargaining unit voted in favor of ratification. The agreement includes the following changes: • 3 year agreement, August 1, 2011 through July 31, 2014; • 0% increase to base salary effective August 1, 2011; • 2% increase to base salary effective August 1, 2012; and • 2% increase to base salary effective August 1, 2013; • Gender neutral changes in Article II, Section 4; Article IV, Section 2(B), Section 4(B), Section 5; Article V, Section 6(1), 6(3); Article VI, Section 3, Section 4; Article VII, Section 1(D), Section 3, Section 5, Section 7; Article IX, Section 11(A); Article X, Section 2(Step 2), (Step 3), (Step 4), (Step 6), Step 6(c), Section 4; Article XII, Section 4; and Article XVI, Part I • 120 month step increase effective August 1, 2012 and August 1, 2013 for Firefighter II and Fire Captain; • Alternative Hiring- Section A is modified to: o eliminate the need for a current Firefighter Basic Certification; o added language to state that an applicant without a current Firefighter Basic Certification prior to entering the academy must pass the Firefighter Basic Certification exam in order successfully complete the academy; o added language to section stating those appointed under Alternative Hiring who have both a Firefighter Basic Certification and a Paramedic Certification would be equal to a starting Firefighter I salary, and will be a Firefighter I except seniority shall not begin to accrue until they are assigned to a station; o Those appointed under Alternative Hiring process with only Paramedic Certification shall be equal to the Cadet 12 months' salary step. They shall be Cadets for all purposes including seniority and benefits until they are assigned to a station, at which time they will become a Firefighter I. • Eliminated Section 5 of Article X- Grievance Procedure; • Article XII Health & Welfare, eliminated current Section 3 and agreed to a new Section 3 as follows: o Effective October 1, 2012, employees and retirees who were previously grandfathered in Plan II, later called Public Safety CitiCare, will be moved to the CitiCare Fire Health Insurance Plan. o The City will pay 100% of the employee's premium and 50% of the premium for dependent coverage towards the CitiCare Fire Health Insurance Plan. o The Association will be allowed to have representation on the Employee Insurance Advisory Committee and on any committee formed to evaluate proposals in response to Requests for Proposal related to negotiated benefits of the bargaining unit. o The City will notify the Association in writing of premium increases with a minimum of 60 calendar days' notice of any change and of health plan changes with a minimum of 30 days' notice of any change. o The City retains the right to negotiate with insurance carriers, third party administrators and their related sub - contractors and /or medical providers to provide insurance coverage and /or administration of the CitiCare Fire Health Insurance Plan. o The City will conduct a bi- annual actuarial study of the GASB Liability and adjust the cumulative recorded OPEB Liability, including past and current, as determined by the bi- annual actuarial study with the first adjustment occurring in fiscal year 2012 -2013. o Plan changes mandated by federal health care legislation will be implemented as required with notification to the Association of such changes. o The following components will be used to calculate the premiums for active employees and retirees under age 65: • Effective October 1, 2012, all employees /retirees who were grandfathered in Plan II, later called Public Safety CitiCare, will be moved to the CitiCare Fire Health Insurance Plan; • Third party administration administrative fees; • Stop loss premiums; • Incurred and paid medical and prescription drug claims (after stop loss adjustments, rebates, subrogation recoveries, coordination of benefit recoveries) of all plan participants (active employees, retirees, and participating dependents), with allowance for adjustment based upon expected benefit plan, enrollment or other changes. • Prorated contribution toward the cost of an onsite primary care clinic (the percentage of members covered under the CitiCare Fire Health Insurance Plan divided by the total covered members under the City's health plans who are eligible to use the clinic times the estimated annual cost of the clinic). • Incurred but not reported (IBNR) claims, as actuarially determined. • The net change in forecasted and prior period catastrophic reserve funding (10% of actuarial projected claims expense). • Assumptions for inflation and trend components used to estimate future claims will incorporate prevailing plan specific, regional, and national trends, as well as the anticipated impact of any mandated benefits, and any other factor(s) determined to impact the overall trend etc. • The Cumulative net fund balance (see page 41) o Recognition, funding and recovery of past, current and future OPEB liabilities o A new plan design structure as stipulated on pages 42- 45 o Retirees- see page 45 o Once a retiree reaches 65 or becomes eligible for Medicare, their insurance will cease under the City's CitiCare Fire Health Insurance Plan. The Medicare eligible retiree and their Medicare eligible dependents will be eligible to participate in the City's fully insured plan offerings for Medicare eligible retirees • On August 1, 2012, the City will make a one -time lump sum payment into the Corpus Christi Firefighter's Health and Benefits Trust Fund in the amount of one hundred thousand dollars ($100,000.00). • On August 1, 2013, the City will make a one -time lump sum payment into the Corpus Christi Firefighter's Health and Benefits Trust Fund in the amount of one hundred thousand dollars ($100,000.00). • Modification of Appendix D (change of dates) • Modification to Appendix E (changes of dates) ALTERNATIVES: Not Applicable OTHER CONSIDERATIONS: The attached Tentative Agreement conforms with Corpus Christi City Council Resolution No. 029542. CONFORMITY TO CITY POLICY: The attached Tentative Agreement conforms with all City and State policies and regulations. EMERGENCY / NON - EMERGENCY: Not Applicable DEPARTMENTAL CLEARANCES: Legal, Human Resources, Fire and Finance FINANCIAL IMPACT: X Operating ❑ Revenue ❑ Capital ❑ Not applicable Fiscal Year: 2011- 2012 Project to Date Expenditures (CIP only) Current Year Future Years TOTALS Line Item Budget Encumbered / Expended Amount This item $2,550,000 $2,550,000 $5,100,000 BALANCE $2,550,000 $2,550,000 $5,100,000 Fund(s): Comments: RECOMMENDATION: Staff recommends the ratification and execution of the collective bargaining agreement with the Corpus Christi Firefighters' Association for wages, benefits and working conditions based on the Tentative Agreement. LIST OF SUPPORTING DOCUMENTS: Tentative Collective Bargaining Agreement JULY 17, 2012 DRAFT OF THE TENTATIVE AGREEMENT BETWEEN THE CITY OF CORPUS CHRISTI AND THE CORPUS CHRISTI FIREFIGHTERS' ASSOCIATION August 1, 200 20 t t TO July 31, 20 14 TABLE OF CONTENTS Preamble 4 Article I - Definitions 4 Article II - Recognition and General Provisions 1. Recognitions 5 2. Amendments 6 3. Prevailing Rights 6 4. Rulings and Records of Civil Service Commission 6 Article III - Nondiscrimination 6 Article IV - Working Conditions 1. Work Week and Duty Hours 7 2. Personnel Assigned to 40 Hour Work Week 3. Overtime 4. Call -Backs 5. Illness 6. Holidays and Vacation 7. Personal Leave 8. Uniforms 9. Mileage Allowance 10. Meals 11. Relief 12. Use of Sick Leave in the Event of Death Or Serious Illness in the Immediate Family 13. Assignment Preference Forms 14. Reassignment from Fire Prevention 15. Station Assignment by Seniority 16. Employees Assigned to Specialized Training 7 8 9 9 10 10 11 12 12 12 12 12 12 13 13 Article V - Wages 1. Wages 13 -14 2. Longevity Pay 15 3. Certification Pay 15 4. Assignment Pay 15 5. Working Out -of- Classification 16 6. Education Incentive Pay 16 7. Performance Award 17 8. Salary of Deputy Chief and Assistant Chiefs 17 9. Pay Periods 17 10. Pay and Fiscal Certainty 17 Article VI - Emergency Medical Service 1. Certification Requirement 18 2. Service Requirement 19 2 3. Assistant EMS Director 19 4. Reassignment of Firefighter II EMT /Firefighter II Paramedics 20 5. Voluntary Demotion of Firefighter II EMT /Paramedics 20 6. EMT Certification After Promotion 20 7. Promotion to Firefighter II/Engineer 20 Article VII - Union Activities 1. Payroll Deduction of Dues 20 2. Negotiating Team 21 3. Union Activities 21 4. President's Time Off 22 5. Other Union Functions 22 6. City Facilities 22 7. Access 23 8. Orientation 23 9. Action Outside City Limits 23 10. Notification of Promotion 23 11. Parties to Select Their Own Representatives 23 12. Contract Administration 23 Article VIII - Management Rights 1. Management Functions 23 2. Rules and Regulations 24 3. Noninterference With Personal Lives 24 Article IX - Employee Selection and Promotion 1. Orientation for Firefighter II Drivers and Captains 24 2. Promotional Examinations for Firefighter Hs and Captains 25 3. Other Certification Requirements for Promotion to Rank of Captain 25 4. Appointment of Deputy Chief and Assistant Fire Chiefs 25 5. Probationary Period for New Employees 26 6. Corrections to Entrance or Promotional Examination Questions 26 7. Posting and Administration of Promotional Examinations 26 8. Administration of Entrance Examination 27 9. Promotional Procedures for the Rank of Battalion Chief and Assistant Chief 27 10. Promotional Testing while on Military Leave 28 11. Alternative Hiring 28 Article X - Grievance Procedure Article XV — Reopener Provision 41 1. Section 1 29 2. Grievance Procedure 29 3. Civil Service Appeals 31 4. Appeals from Promotional Bypass 32 5. Duration 32 Article XI - Appeals From Disciplinary Actions 32 Article XII - Health & Welfare 1. Labor - Management Committee 35 2. Identification Cards 35 3. Health Insurance and Life Premiums 35 4. Disability 37 5. Sick Leave and Retirement Pool 38 6. Toxicology Reports 39 7. Mandatory Drug Testing 39 8. Accrual of Vacation Days 39 Article XIII - Legal Procedures 1. Legal Defense 40 Article XIV- Association Health and Benefit Trust 1. Trust Creation 41 2. Indemnification 41 3 Article XVI - Impasse Procedures 41 Article XVII - Duration and Concluding Provisions 1. Duration 43 2. Severability 43 3. Conflict with Civil Sery ice Statute 43 4. Copies of Agreement 43 Concluding Provision 44 Appendices Attachment 1 - Fire Department's Alcohol and Drug Policy 45 Appendix "A" - Dues Deduction Authorization 52 Appendix "B" - Special Assessment Deduction Authorization 53 Appendix "C" - Termination of Regular or Special Dues Deduction Authorization 54 Appendix "D" - Conceptual Payroll Calculations .... 55 Appendix "E" - Calculating Drag -Up Sell Back.......57 Appendix "F" -Call Back Procedures 58 Appendix "G "- Grievance Form 65 PREAMBLE The following agreement is made by and between the City of Corpus Christi, Texas, hereafter referred to as "the City ", and the International Association of Firefighters, Local Union 936, hereinafter referred to as "the Union." The City and the Union agree that the establishment of fair and reasonable compensation and other conditions of employment is a primary purpose of this agreement as well as the promotion of harmonious relationships between the City and the Union. This agreement has been negotiated through the collective bargaining process with the objective of serving the aforementioned purpose and with the further object of fostering effective cooperation between the City and its Firefighters. Now, therefore, in consideration of mutual promises and agreements contained herein, the parties agree as follows: ARTICLE I DEFINITIONS 1. "Accredited college or university," means a college or university whose accreditation is approved by the Texas Higher Education Coordinating Board. 2. "City" means the City of Corpus Christi. 3. "Union" means the International Association of Firefighters, Local Union 936. 4. "Employee" means any sworn, certified, full -time paid employee who regularly serves in a professional fire fighting capacity. The Fire Chief and all civilian non- uniformed employees are excluded from receiving wages or benefits as provided under this contract, and therefore are not included within the definition of employee. 5. "Members" means any employee who is on the membership list of and pays dues to the Union. 6. "Supervisor" means any officer with the rank of Fire Captain or above. 7. "Civil Service Commission" means the Civil Service Commission of the City of Corpus Christi. 8. "Chief of the Department" means the Fire Chief of the City of Corpus Christi. 9. "City Manager" means the City Manager of the City of Corpus Christi. 10. "Chapter 143" means Chapter 143 of the Local Government Code, Vernon's Texas Codes Annotated, 1987. Article 5154c -1 shall mean "Chapter 174 Fire and Police Employee Relations" of the Vernon's Texas Codes Annotated, Local Government Code, Chapter 174. 11. "Cadet" means an individual employed by the Fire Department who is attending the Fire Academy and who has not graduated. 4 12. "Fire academy" means all training necessary to prepare and certify cadets for employment as a firefighter, to include State firefighter certification, and initial State EMT, and Paramedic certification. 13. "Certified EMT" (Emergency Medical Technician) means a firefighter who has a current certification as an Emergency Medical Technician from the appropriate State agency, and who maintains a current authorization to function as a medical care provider by the Corpus Christi Fire Department's Medical Director. 14. "EMT Certification" consists of a current certification as an Emergency Medical Technician from the appropriate State agency, and a current authorization to function as a medical care provider by the Corpus Christi Fire Department's Medical Director. 15. "Certified Paramedic" means a firefighter who has a current certification as an Emergency Medical Technician - Paramedic, or a current license as a Licensed Paramedic, from the appropriate State agency and who maintains a current authorization to function as a medical care provider by the Corpus Christi Fire Department's Medical Director. 16. "Paramedic Certification" consists of a current certification as an Emergency Medical Technician - Paramedic, or a current license as a Licensed Paramedic, from the appropriate State agency and a current authorization to function as a medical care provider by the Corpus Christi Fire Department's Medical Director. 17. "Probationary Period" shall be 18 months from the date of hire, unless a firefighter is unable to obtain initial paramedic certification under Texas law within twelve (12) months from the date of hire. If a firefighter fails to obtain said paramedic certification within twelve months of date of hire, the end of the probationary period will be six (6) months from the date the Employee was examined for the written portion of the paramedic examination (currently the National Registry exam) as long as, the Employee passed on that date and it was within eighteen (18) months of initial date of hire. Failure to obtain initial certification based on the paramedic examination taken within eighteen (18) months from the date of hire shall result in termination as per Article IX Section 5. For example — if an Employee hired on September 1, 2005, passed the written exam taken on December 1, 2006, the probationary period shall be extended to June 1, 2007. ARTICLE II RECOGNITION AND GENERAL PROVISIONS Section 1. Recognitions. The City recognizes the Union as the exclusive bargaining agent for a bargaining unit consisting of each sworn, certified Firefighter in the Fire Department of the City of Corpus Christi. It is understood that this bargaining unit does not include the Chief of the Department and does not include civilian non - uniformed personnel. 5 It is understood that this bargaining unit does not include Cadets enrolled in the Fire academy, but that such persons become members of the bargaining unit at the time they graduate from the Fire academy. Section 2. Amendments. The Union and the City may jointly agree to negotiate possible changes in the contract during its term. Such negotiations shall be set at the convenience of both parties. In order for the contract to be amended both parties must agree upon the amendment. Amendments to the contract must be ratified by appropriate parties. Section 3. Prevailing Rights. All rights, privileges, and working conditions enjoyed by the employees at the present time, which are not specifically mentioned in this agreement, shall remain in full force and effect and shall not be diminished in any manner during the term of this agreement, unless by amendment by mutual consent of the parties. Section 4. Rulings and Records of Civil Service Commission. All rules, opinions, directives, decisions, and orders issued by the Civil Service Commission shall be preserved in written minutes. Such actions need not be copied verbatim in the minutes; it shall be sufficient to accurately summarize such actions. The Chairman- Chairperson or, in his/her absence, the Vice- Chainriai Chairperson of the Commission shall sign the minutes; the signatures of the concurring members on any action shall not be required. The Commission may, if it desires, cause any rules, decisions, directives, or orders to be reduced to writing, apart from the minutes. All such written records of the Commission shall be public records. The City will notify the Union of any items on the Civil Service Commission's agenda that may affect Firefighters and/or the Fire Service. ARTICLE III NONDISCRIMINATION This agreement applies equally to all Firefighters of the City of Corpus Christi, and the parties agree to apply the provisions of this agreement to all Firefighters without discrimination because of race, color, sex, age, religious creed, national origin or Union affiliation. Specifically, the City will not: (1) Interfere with, restrain, or coerce employees in the exercise of their right to organize and bargain collectively as provided by law, or in the exercise of rights provided by this agreement; or encourage or discourage membership in or support of the Union; or interfere with the administration of the Union; (2) Discharge or otherwise discriminate against any employee in regard to tenure of employment or any term or condition of employment on account of membership in or support of the Union, or on account of any lawful Union activity. Specifically, the Union will not: 6 (1) Interfere with, restrain or coerce employees in the exercise of their right to organize and bargain collectively as provided by law, or in the exercise of rights provided by this agreement; (2) Cause or attempt to cause any employee to discriminate against any other employee because of the employee's membership or non - membership in any employee organization, or in any manner prohibited by this agreement. ARTICLE IV WORKING CONDITIONS Section 1. Work Week and Duty Hours. A. The regular work shift for fire fighting personnel assigned to fire suppression or emergency medical services duties shall be based upon a schedule of twenty four (24) hours on and forty eight (48) hours off for a yearly average of fifty four (54) hours per week. For purposes of overtime calculations under the Fair Labor Standards Act, the City shall utilize a twenty seven (27) day work cycle; sick leave, vacation and "Kelly Days" will not be considered as time worked for said overtime calculations. B. The regular duty hours for each shift shall begin at 8:00 a.m. on the day to be worked and shall end at 8:00 a.m. on the following day. For employees required to work the twenty four (24) hours on and forty eight (48) hours off schedule, twelve (12) scheduled working hours shall be counted as one (1) work day for vacation or sick leave purposes. C. Any work required in holdover from a shift as a result of a late return to the station from a fire call or ambulance call, shall be compensable to the nearest fifteen (15) minutes. The preceding sentence shall not apply where the holdover was a result of the employee having been ordered to be on standby or by his /her having been dispatched to a fire as a part of the relief for another crew. In any event, where the holdover period exceeds fifteen (15) minutes the employee shall be compensated for the entire holdover period at the overtime rate. D. If an employee is absent from work for a full calendar quarter, as a result of an on -duty injury, the employee will accrue no `Kelly Days" attributable to that calendar quarter. E. The firefighters understand and agree that the City compensates them in full for all their regularly scheduled hours. Firefighters assigned to fire suppression or emergency medical services receive straight time monetary compensation to work two hundred sixteen (216) hours in each twenty seven (27) day work period. Section 2. Personnel Assigned to 40 Hour Work Week. A. The regular work week for Employees at the rank of Battalion Chief and above, not assigned to 54 hour week, shall be a forty hour work week, with the schedule determined by the Fire Chief. B. The regular work week for personnel below the rank of Battalion Chief assigned to the Fire Prevention or Training Division shall be forty (40) hours per week. The regular weekly schedule will be four (4) ten (10) hour shifts per week. If the staffing level in the Fire 7 Prevention Division falls to 50% or less of the required level for that activity, the Fire Chief, at his /her discretion, may alter the regular weekly schedule of the employees assigned to that activity. In the Training Division, the Fire Chief, at his /her discretion, may alter the regular weekly schedule at any time. A four (4) ten (10) hour day weekly schedule will begin at 8:00 a.m. and will end at 6:30 p.m. with a thirty (30) minute unpaid meal period. C. Employees below the rank of Battalion Chief assigned to the Fire Prevention or Training Division may elect, once each year and with the approval of the Fire Chief, to work a weekly schedule of five (5) eight (8) hour shifts. This election will continue in effect for a year, subject to alteration by the Fire Chief as provided in paragraph B above. D. Employees who work a weekly schedule of four (4) ten (10) hour shifts will accrue and use, on an annual basis, three (3) ten (10) hour personal leave days, as provided in Article IV, Section 7, and seven (7) ten (10) hour holidays. If the employee does not work a weekly schedule of four (4) ten (10) hour shifts for an entire year, the personal leave and holiday hours accrued for that year shall be prorated accordingly. Section 3. Overtime. All employees shall be paid for authorized overtime work at the rate of 1 -1/2 times the regular rate. "Regular rate" and "regular rate of pay" after the date of execution of this agreement means base pay, longevity, education incentive, assignment and certification pay only. Such rate for positions with scheduled work weeks other than forty (40) hours shall be computed on the basis of 173.33 hours per month for payment of cycle pay and holiday pay. All other overtime will be computed on the basis of one hundred and ninety five (195) hours per month. Overtime will be computed only for actual hours worked over the scheduled work week. Compensatory time off equal to the actual hours of overtime may be taken in lieu of overtime pay upon the mutual agreement of the department head and the employee. Overtime shall be computed to the nearest quarter hour. The conceptual formula for the payment herein for overtime work after the date of execution of this agreement is set forth in Appendix D. Overtime at the rate of 1 -1/2 times the regular rate of pay will be paid for work performed on any City holiday as per Section 6 of Article IV. Any off -duty Firefighters who are called back to duty or subpoenaed to give testimony in court about events arising out of their employment shall be compensated at the rate of 1 -1/2 times the Firefighter's regular rate of pay from the time the Firefighter is ordered to report to duty, and shall be paid for the actual time worked in that shift or for a minimum of three (3) hours for any one (1) call-back incident. Compliance Provision. The parties agree and understand that the agreement of the parties to use 173.33 hours per month for cycle and holiday overtime pay and one hundred and ninety -five (195) hours per month for all other overtime pay does not constitute the straight time or regular rate for regularly scheduled hours of work for purposes of this agreement. 8 It is also agreed and understood that to the extent that the City's current or past payroll practice is inconsistent or conflicts with the provisions of the Texas Local Government Code Section 142.0015 and 142.0016, the provisions of this contract or past contract shall control. It is agreed by the parties that should any overtime liability result under the terms of this contract, state law, or the Fair Labor Standards Act that the City is entitled to use any extra overtime premium paid resulting from using overtime rates based on the 173.33 or one hundred and ninety- five (195) hours per month which exceed the overtime premium due calculated for twenty four (24) hour shift employees on the basis of two hundred and sixteen (216) hours worked in a twenty seven (27) day work period to offset such liability, where allowable by applicable law. It is further agreed and understood that to the extent that the methods of determining straight time and overtime pay listed in this agreement are inconsistent or conflict with the provisions of the Texas Local Government Code Section 142.0015, the provisions of this agreement shall control. Should any court rule or hold that the City is not entitled to the full credit provided herein, the City or the Association may reopen negotiations during the term of this contract to address any issue necessary as a result of such ruling, and the duty of each party to bargain under Texas Local Government Code Chapter 174 shall apply. Section 4. Call- backs. A. The parties have agreed that the provisions of the current agreed Call back procedure, Corpus Christi Fire Department SOP No. 101.09 attached hereto and marked "Appendix F ", shall remain in effect during the term of this agreement, unless amended by mutual agreement of the parties (which agreement by the Union may be approved by its Executive Board). B. A committee shall be appointed to develop a revised call back policy, with three (3) representatives appointed by the Chief and three (3) representatives appointed by the Association. In an emergency, which shall be any unexpected happening or event or unforeseen situation or crisis that calls for immediate action, the Chief may bypass employees from the call-back roster who reside outside the city limits. Said by- passed employees shall retain their standing on the roster for other scheduled call- backs. If the Chief or his/her designee inadvertently by- passes an employee in an emergency situation, the employee shall retain his/her standing on the roster until he /she is utilized. The Chief shall call the employee, who is by- passed, to work within a forty five (45) day period. Any employee inadvertently by- passed in an emergency situation shall within a forty five (45) day period be assigned overtime duty either of an emergency or non - emergency nature, for a time period of no less than the amount of time he /she would have worked if he /she had not been bypassed. Section 5. Illness. In the event of illness, the employee shall notify the appropriate Battalion Chief on duty immediately when the employee knows he /she will be absent on account of illness. Any shift employee absent more than two (2) consecutive work shifts, and any forty (40) hour week employee absent more than three (3) consecutive calendar days, shall be required to furnish a certificate of a 9 physician certifying to the illness of the employee. The Chief may at any time, call for a medical certificate if, in his /her judgment, he/she deems it appropriate for a just cause. Section 6. Holidays and Vacation. A. Holidays. Each employee shall receive the following holidays during each fiscal year: (1) New Year's Day (2) Memorial Day (3) Fourth of July (4) Labor Day (5) Thanksgiving Day (6) Christmas Day (7) One holiday to be determined by the City. Firefighters shall have the same number of holidays, or days in lieu thereof, that are granted to other municipal employees. The current practice of adding holidays to vacation time shall be retained. B. Vacation. Firefighters with less than fifteen (15) years of service shall be entitled fifteen (15) working days vacation a year which shall accrue on the basis of twenty six (26) biweekly pay periods per year. Firefighters with fifteen (15) years to twenty nine (29) years of continuous service shall accrue eighteen (18) working days vacation a year, which shall accrue on the basis of twenty six (26) pay periods a year. Firefighters with thirty (30) years of continuous service or more shall accrue twenty one (21) working days of vacation a year which will accrue on the basis of twenty six (26) biweekly pay periods a year. For twenty four (24) hour shift firefighters, twelve (12) scheduled working hours shall be counted as one (1) working day for determining the accrual of vacation leave. For those firefighters scheduled to work forty (40) hours a week, regardless of whether worked in shifts of eight (8) hours, ten (10) hours, or such other shifts as may be authorized under this Agreement, eight (8) hours shall be counted as one (1) working day for determining the accrual of vacation leave. Section 7. Personal Leave. Employees on the payroll as of August 1 of each year, except for cadets who have been with the department for less than twelve (12) months, shall receive three (3) personal leave days with pay. Personal leave days shall be non - cumulative and must be taken during the fiscal year received. Use of these days shall be subject to the operating needs of the department and the requests of the employees. 1. The parties have bargained this provision to provide extra time off, without increasing call back overtime cost to the City. 2. Effective August 1, 2005, the City will agree to allow two (2) additional personal leave days (12 hours of leave equal one day) for a total of five (5) personal leave days in each fiscal 10 year, provided that personal leave days must be taken as follows, rather than as currently taken in conjunction with vacation leave: For Suppression Shift Personnel: Three Shifts as follows: 12 PL /12 PL I2PL /12 PL I2PL /12V For 40 Hour Schedule Personnel: 40 hours of Personal Leave 3. Personal leave must be used with personal leave, except as shown. 4. All other policies and practices not inconsistent with this provision shall continue in effect. There shall be no payment for the accrued personal leave days if an employee terminates prior to using all of such days. Section 8. Uniforms. A. The City shall pay 100% of the cost of the original issue of uniforms to provide every uniformed employee with all required original issue items. The employee shall thereafter replace or repair said required clothing items. B. The City retains the right to establish the style and color of the official uniform and its insignia. If the City changes style and color of the uniform, and such changes cause the previous uniform to be obsolete, it shall pay 100% of the original cost. C. Original issue of uniforms, including patches, to each Firefighter shall be as follows: (1) Cadet, two (2) Class "A" uniforms; (2) One (1) belt and one (1) buckle; (3) Six (6) Class `B" pants and six (6) T- shirts; (4) One (1) sweatshirt; and (5) One (1) Jacket. D. Shoes shall be at the expense of the individual Firefighter. E. The clothing allowance shall continue to be $67.50 per month. F. Standards regarding the inspections, maintenance, and replacement of uniforms as well as, uniform specification shall be established by the Fire Chief subject to the provisions of this Contract. G. Each Firefighter's name, rank, and highest current EMS Certification shall be on all Firefighters shirts as per department policy. These shirts may also change in style and color 11 however, the City shall have no obligation for the T -shirt uniform change, beyond furnishing the 3 T- shirts, (Paragraph B., above, notwithstanding). Section 9. Mileage Allowance. Employees required to use their private automobiles for authorized Fire Department business or as a necessity in changing stations shall be compensated at the rate specified or to be specified in the compensation ordinance of the City, but not less than 32.5 cents per mile. Section 10. Meals. When it appears imminent that Firefighters will be engaged in firefighting duties at the scene of a fire or relocated to another station or engaged in ambulance duties two (2) hours past their normal mealtime, they shall be provided a meal at the City's expense for approximately $6.00 per meal per firefighter, effective upon signing of this agreement, to be reimbursed within two (2) weeks from date of submission of the form approved by the Chiefs office, which may be by fax or other mode of submission. A request by the senior officer present at the scene or approval by the first senior officer in the chain -of- command, if a senior officer is not present at the scene, is necessary before a meal will be provided. Section 11. Relief. Firefighters actively engaged in fire fighting duties at the scene of a fire for a period exceeding three (3) hours will be relieved from duty and given a rest period of at least thirty (30) minutes after any three (3) hours of fire fighting duties. In the event that any Firefighters are required to engage in fire fighting duties at the scene of the fire for a period of eight (8) hours or more, every reasonable effort will be made to relieve such Firefighters to other duties away from the scene. Section 12. Use of Sick Leave in the Event of Death or Serious Illness in the Immediate Family In the event of serious illness or death in the immediate family of the employee, the employee shall be granted sick leave or vacation at the request of the employee. The immediate family, for purposes of this contract, shall be defined to include parents, step - parents, legal guardian, spouse, mother -in -law and father -in -law, children, brothers, sisters, grandparents, and grandchildren. In the event of a death not in the immediate family of an employee, the employee may, upon approval of the Fire Chief, be granted time off to attend funeral services, and such time off shall be taken as vacation leave. Section 13. Assignment Preference Forms. Firefighters may submit Station Assignment Preference Forms, provided by the City, which will be considered by the Fire Chief in making such assignments. Factors used in determining such assignments will include, but will not be limited to, the needs of the Fire Department, the location of the preferred fire station, the residence of the individual, and the employee's seniority. Section 14. Reassignment from Fire Prevention. Any employee who has been assigned to Fire Prevention duties for a period of five (5) consecutive years or more shall be allowed to request reassignment to other duties as long as a vacancy is available. The Fire Marshall is excluded from this Provision. 12 Section 15. Station Assignment by Seniority. Whenever a vacancy occurs in the Fire Department due to retirement, termination, promotion, or demotion, said vacancy may be filled by a seniority bid system as follows: A. Only the five (5) persons with the most seniority per rank per shift shall be eligible to bid. For purposes of this section seniority is defined as time in rank. The five (5) most senior persons per rank who qualify to bid under this section may each choose the fire station to which he /she is presently assigned as his/her selection under this section. An assignment bid must be submitted. B. Only personnel regularly assigned to the shift in which the vacancy occurs may bid. Five (5) Firefighter I1's EMS are eligible to bid for station assignment under this provision, provided that no more than two (2) EMS seniority bids shall apply to any one EMS station. C. Assignment by seniority will be made only to non - ambulance stations for the rank of Firefighter I. D. Assignment by seniority bid will not be made if such an assignment would result in staffing of less than one (1) person per shift per station who is qualified and authorized to use the automatic defibrillation equipment. E. Seniority will not apply relative to move -outs. F. A Firefighter may be assigned based on seniority, only once every three (3) years. G. Vacancies will be posted for two (2) weeks. Employees will have seven (7) days after the two (2) week posting period to submit their assignment bid. The Fire Chief will post assignments within seven (7) days after the bid submission deadline. H. In the event that no bids are received from the five (5) senior employees, the assignment will be made at the Fire Chiefs discretion. The top five (5) employees on the seniority list who have chosen not to bid on a vacancy cannot be assigned to that vacancy. L Firefighters assigned to relief duty will be those most recently promoted to suppression. Section 16. Employees Assigned to Specialized Training It is understood that Firefighter personnel who are regularly assigned to fire suppression and work the fifty four (54) hour work week, may be placed on a forty (40) hour work schedule for the purpose of attaining specialized training. Specialized training includes but is not limited to HAZ- MAT training, rescue training, EMS certification and recertification classes, promotional orientation, fire prevention and/or arson training, as well as attendance to any Fire academy into which the Fire Department has enrolled the firefighter. If a firefighter is required to take leave time to attend specialized training and said time is for the purpose of transitioning to a forty (40) hour work schedule, such transition leave shall not break the cycle for FLSA purposes. ARTICLE V WAGES 13 404+4 MIEEEMMEMMEE 487 EINIE=MMEME MW. 3587 1172. 4-24 4354- 51d13 S —95 5535 t11 -44U4 3. 3855 1297 1395 4345 1574 4675 5256 4231 14 Section LWaues. The basic ra :s within Ll e fire De mruo�uL well as u applicable monthly pay rates obuUhcuofollows: 41ife-1—)rotecticiii or e (II class -at 8/1/2012 8/1/2013 Cadet 3039 111111 111111 UNE Firefighter Brefiti.h^'n Fire Captain Batt. Chief 3883 4618 5217 4055 4709 5369 5990 6261 Cadet PiruDuh^,\ 0mDchu'n Fire Captain U.xChief 111111111 11111111 3099 3960 4710 5321 41 6 4803 3232 4242 4806 5523 6547 5476 6386 4 4902 5633 6677 4515 4912 5731 6843 4618 5217 5990 UAW 4605 4710 5010 5321 5845 6109 6979 In order to qualify for the 120 month step, a Firefighter l must have 120 months of service th the CugDm Christi fire ~Dqarhuuonv including _time anu cadet. and hold a current advanced Structure lire Protection Personnel (ertitication 115)10 the Texas (oinniission on Fire Protection or an EMS certification of EMI-13 or hioher. 15 Section 2. Longevity Pay. Longevity pay shall be $6.00 per month for each complete year of service up to a maximum of fifteen (15) years of service. Thereafter, for each additional year of service, longevity pay shall be $4.00 per month for each year up to a maximum of twenty five (25) years of service. Section 3. Certification Pay. In addition to his/her regular monthly pay, a Firefighter who is certified by the appropriate State agency and meets all certification requirements of this agreement, shall receive certification pay in the amount indicated below, according to the level of his /her certification: Intermediate Fire Certification $20 per month Advanced Fire Certification $25 per month Master's Fire Certification $30 per month Certified EMT $35 per month Certified Paramedic $75 per month Fire Prevention Insp. $35 per month Arson Investigator $75 per month Basic Instructor $35 per month Intermediate Instructor, Advanced Instructor or Master Instructor $75 per month Section 4. Assignment Pay. In addition to his/her regular monthly pay, and certification pay, a Firefighter who is assigned to duty listed below shall receive the amount indicated: Regularly assigned HAZ -MAT -- $50 per month Regularly assigned to Rescue Truck/Station and HAZ -MAT qualified (Effective August 1, 1998) -- $50 per month Certified EMT Assigned to Ambulance -- $50 per month Certified Paramedic Assigned to Ambulance -- $50 per month Effective August 1, 1998, Firefighters currently assigned and who continuously serve for greater than five (5) and less than ten (10) years of service as permanently assigned to EMS shall receive an additional $50.00 assignment pay per month. For greater than ten (10) years of continuous service as permanently assigned to EMS, a Firefighter shall receive an additional $50.00 assignment pay per month for a total of an additional $100 per month as continuous assignment pay. Temporary reassignment pursuant to Article VI Section 6 shall not constitute a break in continuous service. Individuals assigned to a forty (40) hour work week, other than employees assigned on temporary, special or limited duty, will receive the following: 16 0 -3 years $150.00 per mo. 4 -5 years $200.00 per mo. 6 or more years $225.00 per mo. Section 5. Working Out -of- Classification. Any Firefighter who is assigned the duties of a higher classification for an accrued period of four (4) hours or more during any shift shall be paid acting- out -of- classification pay on a monthly basis as follows: Acting Firefighter II $18.00 per shift Acting Captain $24.00 per shift Acting Battalion Chief $36.00 per shift Acting Assistant Fire Chief $48.00 per shift Section 6. Education Incentive Pay. (1) In order to receive payment under this section, semester hours and degrees must be earned from an accredited college or university. Employees shall be eligible for educational incentive pay at the monthly rate of $1.00 per month for each academic semester hour satisfactorily completed provided that such hours are applicable toward a degree. In no event will more than $71.00 per month be paid without successful completion of the requirements and the receipt of an Associate Degree. If the employee is attending an upper level college, he/she may meet this requirement by filing a copy of his /her certified degree plan with the Director of Human Resources, noting his /her expressed intent to obtain a Bachelor's Degree. All approved hours above the Associate Degree will be eligible for educational pay at this rate up to an additional $53.00 per month or a combined total of $124.00 per month. Successful completion of the requirements and receipt of a Bachelor's Degree will qualify the employee for a maximum of $135.00 per month. (2) Approved hours above the Bachelor's Degree applicable toward a Master's Degree will be eligible for educational incentive pay at the same rate up to an additional $20.00 per month. Successful completion of the Master's Degree will qualify the employee for an additional $16.00 per month for a maximum combined total of an additional $36.00 per month on a Master's Degree. The addition of other compensable areas of study under this section shall not expand the practice of payment of expenses or provision of textbooks or materials to such other areas of study as presently provided for an Associate Degree in Applied Science for Fire Science at Del Mar College. (3) No probationary employee shall be eligible for educational incentive pay until after he /she has successfully passed his/her probationary period. (4) Performance award and acting -out of- classification pay under this Article shall not be considered as a component of salary or compensation for purposes of drag up pay or leave 17 (5) sell back or overtime by virtue of being moved to this Article from other articles in this or previous agreements, and no such change has been negotiated. Education incentive pay under this Article shall not be considered as a component of salary or compensation for purposes of drag up pay or leave sell back by virtue of being moved to this Article from other articles in this or previous agreements, and no such change has been negotiated. Section 7. Performance Award. Every November, each firefighter, excluding those on probationary status, shall receive a performance award in a lump sum payment of $150.00. Section 8. Salary of Deputy Chief and Assistant Chiefs. The position of Deputy Chief and the positions of Assistant Chiefs shall be compensated under the City's Managerial Pay Plan. Section 9. Pay Periods. Effective January 1, 2006, wages and other compensation specifically mentioned in this agreement, excluding overtime, shall be paid on the basis of twenty six (26) pay periods per year, paid every other week, unless specifically mentioned otherwise in the agreement. Section 10. Pay and Fiscal Certainty. A. The City and the Union agree that this agreement should set forth clearly and resolve any issues concerning the proper calculation of pay and other economic benefits. The City and the Union agree that the pay formulas in Attachment D & E of this Agreement reflect the correct standard for future payment. B. The Union agrees that the City's past pay practices are in compliance with the prior contract. C. All retroactive pay due for FY 03 -04 and FY 04 -05 under this Agreement will be paid using prior payroll payment practices. D. The City and the Union recognize that individual Association members have the right to assert a pay claim or grievance for past pay periods, subject to the City's legal and contractual defenses. However, it is also agreed that all pay claims which accrued and have not been filed by individual Association members prior to ratification of this Agreement shall be barred. This provides a reasonable opportunity for the assertion of any valid claims, and will allow the City Council to know the extent of any contingent liabilities when it takes action on this Agreement. E. The use and meaning of the terms "regular rate" and `regular rate of pay" in this Agreement pre -date the application of the FLSA to the employees under this agreement. It is agreed that the method of payment of overtime pay, drag up pay and vacation sell back shall be in accordance with this agreement. The parties agree that any contrary state law or local ordinance, including Texas Local Government Code Section 142.0015 is superseded. 18 F. By the inclusion of FLSA terminology in this agreement, neither party waives exemptions, credits or entitlements which otherwise apply. G. It is further understood and agreed that the City is entitled to use and does use the partial exemption under the Fair Labor Standards Act, 29 U.S.C. 207(k) as per the ruling in Collins, et al v. City of Corpus Christi, Civil Action No. C -00 -066, United States District Court for the Southern District of Texas, Corpus Christi Division. The parties also recognize that any release of FLSA claims must be in accordance with applicable law. ARTICLE VI EMERGENCY MEDICAL SERVICE Section 1. Certification Requirement. All Firefighters hired after May, 1985, must be certified Paramedics within eighteen (18) months from date of employment and must maintain Paramedic certification for a minimum of eight (8) full years as a condition of employment. Failure to maintain said certification shall result in termination. Any time period without certification will not count towards the minimum eight (8) full years requirement. Any Firefighter who has not met the minimum eight (8) full years requirement as a certified Paramedic because of loss of certification shall be granted either twelve (12) calendar months from the date she/he lost certification or, if the Firefighter enrolls, attends, and completes the next regionally available educational class that will assist him/her in regaining the Paramedic certification, ten (10) months from the date the class begins, whichever is longer, to regain Paramedic certification. If a Firefighter is unable to obtain Paramedic certification within the time granted, she/he will be terminated in accordance with Section 1 of this Article. Any Firefighter who is not a certified EMT or certified Paramedic shall lose EMT or Paramedic certification pay ninety (90) calendar days after notification of the loss of certification. If authorization to function as a medical care provider is suspended by the Fire Department's Medical Director, the Fire Chief will provide to the Firefighter in writing the necessary steps required to regain certification. If a Firefighter carrying the rank of Firefighter II EMS has failed to maintain Paramedic certification, she/he will be temporarily reassigned to Firefighter I duties immediately upon loss of certification. The Firefighter shall be granted ninety (90) calendar days from the date she/he lost certification to obtain certification. If at the end of this ninety (90) calendar -day period, the Firefighter has not obtained certification she/he will be demoted to the rank of Firefighter I. Any previous time in rank shall stand and the Firefighter shall be eligible for promotion to the rank of Firefighter II EMS after successfully completing the requirements of a certified Paramedic. If a Firefighter hired before May, 1985, carrying the rank of Firefighter II EMS and who has an EMT certification, has failed to maintain that EMT certification, she/he will be temporarily reassigned to Firefighter I duties immediately upon loss of certification. The Firefighter shall be granted ninety (90) calendar days from the date she/he lost certification, to obtain certification. If at the end of this ninety (90) calendar -day period, the Firefighter has not obtained certification she/he will be demoted to the rank of Firefighter I. Any previous time in rank shall stand and the 19 Firefighter shall be eligible for promotion to the rank of Firefighter II EMS after successfully completing the requirements of a certified Paramedic. The Fire Department will make available training materials or tutorial assistance up to, but not exceeding an equivalent of forty (40) hours, upon request of the Firefighter who has not met the recertification requirements. Such tutorial or training assistance shall be based upon the recommendations of the EMS training staff and the Fire Department's Medical Director. This tutorial or training assistance may require the Firefighter to be reassigned to a forty (40) hour work week to complete the training. The Department will assume no responsibility for time and expense incurred should the Firefighter desire training other than that offered by the Fire Department. Section 2. Service Requirement. All Firefighters hired after May, 1985, may be required to serve a minimum of five (5) years in the Emergency Medical Service during the eight (8) year period of paramedic certification requirement set out in Section 1 above. All Firefighters hired on or after January 1, 2006 must maintain certification at the level of EMT — Basic (or higher, whenever a higher certification is required in other provisions of this Agreement) while employed in the Fire Department. Failure to maintain said certification or to obtain re- certification as provided in Section 1 above, shall result in termination. Section 3. Assistant EMS Director. Effective August 1, 1999, any vacancy occurring in the position of Assistant E.M.S. Director shall be filled from the rank of Captain and shall be a Battalion Chief with all the rights and benefits of a Battalion Chief. This position shall be by appointment of the Fire Chief from Firefighters within the rank of Battalion Chief or Captain who are eligible to take the Battalion Chief Exam and are certified and qualified to serve as paramedics under this Agreement. It is understood that any individual appointed to this position, serves at the discretion of the Fire Chief, but if removed from this assignment, shall be reassigned at the same rank and/or position that he /she held when originally appointed, or achieved during the firefighter's tenure in the position as Assistant EMS Director. The person currently assigned, and for so long as he /she holds this position, shall retain Civil Service status, maintain and accrue vacation, sick leave, personal leave, and seniority; and receive longevity pay. The Assistant EMS Director shall continue to participate in the City's health and life insurance programs, and receive $150.00 per month in lieu of paramedic certification pay. It is understood that any individual appointed to this position, serves at the discretion of the Fire Chief, but if removed from this assignment, shall be reassigned at the same Civil Service Classification and/or position that he /she held when originally appointed, or achieved during tenure in the position as Assistant EMS Director. With the exception of the Assistant EMS Director, Emergency Medical Service supervisory officers assigned by the Chief shall receive $150 per month paramedic certification pay in lieu of the amount provided for in Article V, Section 3 of this Agreement. Section 4. Reassignment of Firefighter II EMT /Firefighter II Paramedics. Any Firefighter II EMT/Firefighter II Paramedic who is regularly assigned to EMS shall be entitled to receive, but only upon his /her request, temporary reassignment to Firefighter duties for as 20 much as two (2) pay periods in any six (6) month period; provided however, that during any pay period that such employee is performing such voluntary reassignment he/she shall be paid only at the maximum Firefighter I rate for Firefighter I duties performed during said period of reassignment. However, it is agreed that such reassigned employee will continue to hold his /her Firefighter II rank, and will be entitled to all other rights and privileges pertaining thereof. The scheduling of temporary reassignment shall be made at the reasonable discretion of the Fire Chief. Section 5. Voluntary Demotion of Firefighter II EMT/Paramedics. After five (5) years of actual ambulance service duty, which must be continuous, as a Firefighter II EMT/Firefighter II Paramedic hired prior to May 1985, the employee shall be granted upon request a voluntary demotion to Firefighter I, and will not be further required to maintain EMT certification. Section 6. EMT Certification After Promotion. Firefighters and Firefighter II EMT/Firefighter II Paramedics, hired prior to May 1985, who are promoted to Firefighter II - Drivers will not be required to maintain their EMT certification after promotion. Section 7. Promotion to Firefighter IllEngineer. All Firefighters hired after July 31, 1996 must serve either a minimum of two (2) consecutive years as a Firefighter Il/EMS on the ambulance, or eight (8) consecutive years as a Firefighter I, prior to becoming eligible to take the examination for promotion to Firefighter Il/Engineer. ARTICLE VII UNION ACTIVITIES Section 1. Payroll Deduction of Dues. A. The Union shall supply the City with all necessary papers and information for payroll deduction of dues and assessments. Such dues or assessments will be deducted in the amount specifically authorized by the individual employee and in accordance with the by- laws of the Union. B. The City agrees to deduct dues upon receipt from the Union of a "Dues Deduction Card" voluntarily and individually authorized, signed, and dated by each member of the Union. This authorization shall remain in full force and effect for the term of this agreement or until terminated by either the employee or the Union. Such "Dues Deduction Card" is found in Appendix "A" and is incorporated by reference into this agreement. The City shall begin such deductions on the following pay period after receipt of the "Dues Deduction Card." C. The City agrees to deduct special assessments upon receipt from the Union of a "Special Assessment Deduction Card" which is found in Appendix `B" and is incorporated by reference into this agreement. The City shall deduct such special assessment on the 21 following pay period after receipt of the "Special Assessment Deduction Card." The Union agrees to defray the City's Administrative cost for such special assessment in the amount of $50 per special assessment, to be invoiced by the City. I D. At any time a member of the Union desires to withdraw his /her membership, he/she may voluntarily and individually do so. Such action will be initiated through a "Termination of Dues Deduction Card" voluntarily and individually signed by the member of the Union and furnished by the City. Such "Termination of Dues Deduction Card" is found in Appendix "C" and is incorporated by reference into this agreement. The City shall terminate deduction of such dues on the following pay period after receipt of the "Termination of Dues Deduction Card." A copy of the Termination of Dues Deduction Card will be forwarded to the Union's Secretary- Treasurer. E. The City will be obligated to remit to the Union only those sums deducted as dues and assessments from the Union member's paycheck and will not be liable for damages to the Union, any individual employee; or other person for failure to deduct any authorized sum for any reason. Section 2. Negotiating Team. Four (4) members of the Union negotiating team (or a number equal to the size of the City's negotiating team, if larger) shall be allowed time off with pay in order to attend negotiating meetings mutually set by the employer and the Union when such meetings occur during the regularly scheduled working time of the employees. If a team member is on their regular day off, the employee shall receive time off in an amount equal to the number of hours the team member attended the negotiating meeting up to a maximum of ten hours time off per negotiating meeting. The number of hours granted under this section is not considered hours worked for purposes of the F.L.S.A. and will not be counted towards any overtime calculation provided for in this contract or in the F.L.S.A. The time off must be scheduled and approved by the Fire Chief or designee at least one shift before it is used. All negotiations shall be conducted exclusively between the designated bargaining representatives of the City and the Union. Neither party shall make any effort to bypass such representatives of the other party during collective bargaining for a new contract unless an impasse exists as defined in Section 174.152 of the Texas Local Government Code, V.T.C.A. Every effort will be made to begin negotiations sixty (60) days prior to the end of the contract term specified in Article XVI, Section 1 of this Agreement. Negotiations will be considered at impasse if said negotiations extend beyond that term unless extended by Agreement. Section 3. Union Activities. The Union may schedule small committee meetings pertinent to Union business on Fire Department property insofar as such meetings are not disruptive of the duties of the employees, or the efficient operation of the Fire Department, provided however, that permission for such meeting shall be obtained in advance from the Fire Chief or his /her designated representative. Union members or employees may conduct voluntary fund raising activities during working time, at their work location so long as the conduct of such business does not interfere with their duties as employees and advance permission of the Fire Chief for such volunteer work has been sought by 22 the sponsoring organization, and granted, and the Chief has given permission to the Union for such activity. Section 4. President's Time Off. In December of each year, the Association President may choose to be relieved of duty for the following year to perform Association duties. Written notice of the Association President's intent must be sent to the Fire Chief by the 20th of December. On August 1 of each year, if the Association President has chosen to be relieved of duty, each member of the bargaining unit shall contribute four (4) hours of personal leave to offset the Association President's base pay. The City shall continue to pay all benefits the Association President is entitled to receive. The period during which the Association President is relieved of duty shall not constitute a break in service. In the event of an emergency, the Chief may order the Association President to report for duty as assigned by the Chief. Section 5. Other Union Functions. No Firefighter shall be refused reasonable leave of absence without pay, provided that a sufficient number of employees to carry out the normal functions of the department shall be provided, for the purpose of attending any fire school, conventions, or meetings the purpose of which is to secure a more efficient department and better working conditions for the personnel thereof. The President of the Union and three (3) elected delegates shall each be allowed three (3) shifts off with pay each year of the contract term to attend the Union's state convention and a like number of shifts off with pay to attend the national convention. In addition, the President of the Union or his/her designee if the President is not available, will be allowed to attend, with pay, eight (8) regularly scheduled Union meetings per calendar year, not to exceed four (4) hours per meeting. In addition, two (2) pension trustees will be allowed two (2) shifts each with pay per calendar year to attend the state pension seminar approved by the Fire Chief. Travel expenses, food, lodging, etc. shall not be borne by the City. Any delegate leave days provided for in this paragraph and not used for attendance at the Union's national and state conventions, may, upon the Union's request, be used for attendance at seminars or training sessions during each year of the contract term. In addition to the delegate leave days granted by the preceding paragraph, if any Firefighter is elected to a position on the Union's state or national executive board, that Firefighter shall be allowed three (3) shifts off with pay to attend the state and national conventions. Section 6. City Facilities. The City facilities which are available to private organizations on a rental basis shall be made available to the Union under the same conditions that they are made available to other nonprofit organizations. Section 7. Access. Subject to prior notification to and approval from the Fire Chief or next highest ranking officer, the Union President or his/her appointee shall have the right to visit the premises of the Fire Department for purposes of administering this agreement. Visits shall be conducted in a manner and 23 at a time as not to interfere with the functions of the department. Such approval of the Chief shall not unreasonably be withheld. Section 8. Orientation. Neither the City nor the Union will attempt to use Fire Department academy training to solicit or discourage Union membership. During any portion of the Fire Department academy training devoted to explanation of Firefighters' rights and duties under this contract, a representative designated by the President of the Union shall assist the City's representative in explaining the contract. Section 9. Action Outside City Limits. A Firefighter who is ordered outside the City limits on any mission of the Fire Department shall be deemed to be in the line and in the course of his/her duty as a paid Firefighter and public safety officer for all purposes. Section 10. Notification of Promotion. Any employee promoted to a higher classification shall be notified in writing within twenty (20) days from the date of promotion. Section 11. Parties to Select Their Own Representatives. Both the City and the Union shall be entitled to select persons to represent them as members of the negotiating team, and to represent them on grievance and arbitration matters and in other proceedings; provided, however, that the City shall not select any employee of the Fire Department holding a rank below Assistant Chief, and the Union shall not select any employee of the Fire Department holding a rank above Battalion Chief. Section 12. Contract Administration. On duty training and/or orientation for all employees within the bargaining unit shall be conducted to inform such employees of their rights and obligations under this agreement. ARTICLE VIII MANAGEMENT RIGHTS Section 1. Management Functions. The Union recognizes that the City has statutory and Charter rights and obligations in matters relating to municipal operations. The City and the Chief shall retain all rights and authority to which by law they are entitled. It is understood by the parties that every duty connected with operations enumerated in job descriptions is not always specifically described, and the job descriptions are simply general guideline descriptions and are not specific descriptions of all duties which employees are required to perform. Except as provided in this agreement, the City retains the right to operate and manage its affairs in all respects. 24 It is understood that the City has the right to establish departmental rules of procedure; to discipline or discharge for cause; to determine work schedules and assignments, and to establish methods and processes by which work is to be performed, all subject to applicable statutes, the City Charter, Standard Instructions, rules and regulations and standing orders, and this contract. The City reserves the right to use civilians in the Fire Department to perform duties which do not require a certified Firefighter. The scope of such duties may include EMS administration, communications, informational systems, records, clerical support, and maintenance. Civilians performing such duties are not subject to the terms of this agreement. The City will be allowed a reasonable time to train civilians to assume these duties. Section 2. Rules and Regulations. The City recognizes the responsibility of management to reduce Standard Instructions, rules and regulations and standing orders to writing and to maintain the same at each station in order to achieve a uniform interpretation and application of such directives and regulations, within the contract year. Section 3. Noninterference With Personal Lives. A. The City will not publish, make or enforce any regulations or directives which will interfere with the personal lives or off -duty activities of employees, except to the extent that such regulations are related to their employment. This section will not supersede the rules and regulations of the Civil Service Commission. B. Firefighters may reside outside the city limits. Firefighters shall, however, reside in such a location as to be able to reach City Hall within sixty (60) minutes by traveling in an automobile at posted speeds in ordinary weekday traffic. ARTICLE IX EMPLOYEE SELECTION AND PROMOTION Section 1. Orientation for Firefighter II Drivers and Captains. All new Firefighter II Drivers and Captains who are promoted to these ranks shall be given a thorough orientation consisting of the responsibilities accompanying such ranking. This orientation shall include, but not be limited to: hydraulics, driving laws, safety procedures, responsibilities of the job, leadership in the fire service, and report writing (including all forms used within the Fire Department). The orientation shall be conducted by members of the Training staff and shall not be part of the promotional procedure nor shall be construed to be part of the final promotional grade. The orientation shall be conducted prior to the assignment of the newly promoted employees to their new positions. Attendance at such orientation shall not break a cycle for FLSA overtime pay purposes. Section 2. Promotional Examinations for Firefighter Its and Captains. A. Examinations for Firefighter Il and Captains shall be conducted entirely as provided by Chapter 143 and the grading methods and establishment of the eligibility roster shall also 25 be conducted entirely as provided by Chapter 143, except as provided in Article IX of this contract. Separate exams for Firefighter II Assigned Truck Driver and Firefighter II- Assigned Emergency Medical Service shall be administered. B. All Firefighters hired after July 31, 1996, will be required to serve a minimum of two (2) consecutive years as a Firefighter II/EMS on the ambulance or eight (8) consecutive years as a Firefighter I, prior to becoming eligible to take the examination for promotion to Firefighter II/Engineer. C. All Firefighters must serve either a minimum of two (2) consecutive years as a FFII/EMS or FFII/Eng prior to becoming eligible to take the examination for promotion to Captain. D. Only those Firefighters with paramedic certification will be eligible to take the Firefighter II- Assigned Emergency Medical Service exam and be promoted accordingly. The Firefighter II- Assigned Emergency Medical Service roster shall be used for Emergency Medical Services only. Section 3. Other Certification Requirements for Promotion To Rank of Captain. All Firefighters hired prior to May 2000, who have ever served as a Firefighter II for more than two (2) consecutive years and who have not terminated their employment with the department at any time, will be eligible to take the Captains exam without paramedic certification requirements. This requirement does not relieve the firefighter of any other EMS certification requirement described in this agreement. All Firefighters hired after May 2000, who have ever served as a Firefighter II for more than two (2) consecutive years, and who have not terminated their employment with the department at any time, must be certified paramedics to be eligible to take the Captains exam. Once promoted to the classification of Captain, said employees must maintain the paramedic certification for one (1) additional required recertification, or four (4) years, which ever is longer. Failure to maintain said certification shall be grounds for disciplinary action up to and including demotion or indefinite suspension. Section 4. Appointment of the Deputy Chief and Assistant Fire Chiefs. A. Promotion to the classification of Deputy Chief shall be exempt from competitive examination, and, instead, shall be made by appointment by the Chief, at the Chief's discretion. Promotion to the classification of Deputy Chief shall be made from the classifications of Assistant Fire Chief or Battalion Chief. The change in this section of the title of First Assistant Chief to Deputy Chief is only a change in the title of the classification and it is agreed that no vacancy, new, or additional positions is created in the Fire Department nor is such intended. B. Beginning August 1, 1990, the first two (2) position vacancies in the Assistant Chief rank shall be designated as exempt from competitive examination and, instead, shall be made by appointment by the Chief, at the Chief's discretion. These positions shall be called Assistant Chief A and Assistant Chief B and shall henceforth be filled by appointment of the Chief. Promotion into these positions shall be made from the classification of Battalion Chief. The 26 remaining Assistant Chief positions shall be filled by competitive examination as described in Article IX, Section 9 of this contract. It is understood and agreed that the inclusion of this provision in the agreement is not a waiver by the City, the Chief or the Association of any interpretation of the prior agreement. Further, the parties understand and agree that the continued inclusion of this section of the contract does not prevent either party from asserting a claim alleging a violation of this section nor does the inclusion prevent a defense to such claim. Section 5. Probationary Period for New Employees. A new employee in the Fire Department shall serve a probationary period of eighteen (18) months which shall begin with the date of first employment unless extended to obtain initial Paramedic Certification as per Article I #16. During the probationary period, such employee may be discharged at the discretion of the Chief, without appeal to arbitration, to the Commission, or to any court. All Cadets shall become immediately eligible for participation in the Corpus Christi Local Firefighters' Pension System as of the original date of employment. When the employees have completed the probationary period, they shall automatically become a full- fledged Civil Service employee and shall have full Civil Service protection as specified by Chapter 143 and this contract. In addition to insurance, sick leave, vacation, and holidays, it is understood that upon graduation from the Academy or being turned to duty and becoming a Firefighter I, Firefighters shall receive the following: (a) 100% of the uniform allowance, (b) longevity pay, (c) Firefighter Basic certification pay, and EMT Certification pay, if certified, (d) Paramedic Certification pay upon approval of the Corpus Christi Fire Department Medical Director and (e) supplemental insurance. After completion of the probationary period Firefighters will receive 100% of all benefits specified in this contract to which they are entitled. For promotional purposes, the effective date of the promotion indicated on the official City document (Form 12) will be used to determine the classification of Firefighter to meet eligibility requirements. Section 6. Corrections to Entrance or Promotional Examination Questions. The Civil Service Director shall have authority within five (5) days of the date of the examination to recommend to the Civil Service Commission changes to entrance or promotional examination questions where clerical errors in compiling the test questions have been discovered, or where a question arises as to general accuracy. This does not restrict the Firefighter from appealing questions to the Civil Service Commission. Section 7. Posting and Administration of Promotional Examinations. A listing of materials from which promotional examination questions are taken shall be posted annually each January for examinations administered within the one year period beginning the following April. Such materials shall be available at least thirty (30) days prior to the examination date. 27 Section 8. Administration of Entrance Examination. Entrance examinations may be administered at any time to qualified groups or individual applicants consistent with public posting requirements of Chapter 143. All applicants passing the written examination, oral examination, psychological examination, medical examination, strength and endurance examination, and any other exams deemed necessary by the Chief shall be ranked upon the eligibility list for Cadet based upon composite scores posted simultaneously. Such eligibility list shall be valid for a period of twelve (12) continuous calendar months from the date of original posting. Applicants who fail will be required to wait one (1) year before taking the test again. Section 9. Promotional Procedures for the Rank of Battalion Chief and Assistant Chief. Captains shall have two (2) continuous years in rank before becoming eligible to compete for a Battalion Chief vacancy. The classifications of Battalion Chief and Assistant Chief not appointed at the discretion of the Chief shall be filled by a promotional examination procedure consisting of two (2) parts as follows: A. Written Examination. (1) The written examination shall consist of questions relating to the specific duties of the position to be filled. The written examination shall have no specific failing score but will provide a ranking of participants from high to low score. In the event that written examination scores are the same, the earliest time for submitting the examination form to the test administrator for grading shall determine respective standings. Only the highest ten (10) participants shall be allowed to continue on to the next phase of the examination process (Assessment Center examination). (2) The posting of the results of the written examination shall contain only the names of the top ten (10) scoring applicants, in alphabetical order. Individual scores will be given to the employees but will not be posted. B. Assessment Center. (1) The Assessment Center shall consist of: six (6) persons from outside the Fire Department holding administrative level positions in a Fire Department operating in a city of 100,000 or more population shall be selected to serve as assessors. At least two (2) of the Fire Administrators must be from outside the state of Texas. All Assessors shall be chosen by the Director of Human Resources. Both the Chief and the Association President or his/her representative must approve the selections and must keep the list confidential. The Association member appointed to approve the list must not be a candidate for the promotional exam for which the list of assessors has been developed. If any individual on the list is not approved, a reason for the failure to approve and an alternate name must be submitted to the Director of Human Resources within five (5) days. No more than two (2) names can be struck from the list by either the Chief or the Association. (2) The Assessment Center Examination date will be posted on the same day the written test announcement is posted. A brief explanation of the center exercises shall be posted at least three (3) days prior to the written test. Assessors shall be trained for a minimum of eight (8) hours in the methods to be used in administering the test. All candidates will be given the opportunity to attend a classroom orientation concerning the assessment center process. The 28 (3) orientation will include general information concerning the exercises they will be taking during the assessment process. The assessment center process shall include at least three (3) exercises. Feedback shall be provided to each candidate in a "feedback" session by the assessment center coordinators. The purpose of this session will be to provide each candidate with his score, what areas he excelled in, what areas he did poorly in, and what he might do to improve his performance in the future. (4) The results of the Assessment Center examination shall be binding for one (1) year and, with the exception of fraud, shall not be appealable to the Civil Service Commission or to arbitration. C. Eligibility Lists. (1) Within forty eight (48) hours, excluding weekends and holidays, of the conclusion of the entire assessment center process an eligibility list shall be prepared and posted. Each eligibility list shall reflect the ranking of all applicants based on the following weights: (a) Written examination scores 40% (b) Assessment Center Board examination score 60% 100% Plus one point for each year of service in the department up to a maximum of ten points 10 points 110 points (2) Such eligibility list shall be valid for a period of twelve (12) continuous months from the date of final posting or until the list is exhausted. Section 10. Promotional testing while on Military Leave The Civil Service Commission may adopt procedures for testing personnel on military leave, which may dispense with the assessment center for all participants, with input from the HR Department and the Association. Section 11. Alternative Hiring. The provisions of this section are discretionary on the part of the Chief and may not be used to compel the City to hire any individual or to make an appointment where no vacancy exists. Despite any provisions of state law including Chapter 143 to the contrary, the provisions of this section shall prevail. A. Alternative Hiring Program. The Chief, without regard to the existence of or requirement for any eligibility list for beginning positions in the Department, may appoint applicants to beginning positions in accordance with this alternative hiring process. Each applicant must have41-)-a -6 ret Fire4i, i- ter -i ie-evriifi tan 1 {124 a Paramedic Certification. Each applicant must successfully complete entry requirements, including a medical examination, a physical fitness examination, a written examination, a background 29 investigation, a panel interview (panel to be appointed by the Chief) Drug test, and any other current eligibility requirements deemed appropriate by the Chief. Applicants who are appointed must successfully complete an academy specifically designed for applicants hired in accordance with this alternative hiring process. 1 � cantsv ho d ic C°ertitication rior tv enteriug academy mu successfully comple The Chief, in his /her sole discretion may deny the application of any applicant at any time. Such decisions shall not be subject to the Grievance procedure in this Agreement. Certification f xarl2 221 order to The beginning salary of employees those appointed under this alternative hiring process_ vho haee both a I ireii titer Basic C rtiflcation nd a i'arllledic Certification shall be equal to the They shall be except seniority ' hich sl benefits and probation. _. dic Ce sha ed under this i Cadets for :t11 tru C °adet 12 month; udiae seniorit and benefits unt n step. B. This provision shall be for the term of this agreement and not be subject to extension under Article XVII, except to the extent necessary to complete a hiring process which has been initiated during this contract, and which process has proceeded through administration of the written examination. ARTICLE X GRIEVANCE PROCEDURE Section 1. The purpose of this grievance procedure is to establish an effective method for the fair, expeditious and orderly adjustment of grievances, and is exclusively for contract grievances. A grievance is defined as any dispute, claim, or complaint involving the interpretations, application or alleged violation of any provisions of this Agreement. The Union or any bargaining unit member may file a grievance under the terms of this Agreement. Each grievance shall be submitted on a form attached hereto as Appendix "G" agreed to by the parties and must include: (1) a brief statement of the grievance and the facts or events on which it is based; (2) the sections(s) of the contract alleged to have been violated; and (3) the remedy or adjustment sought, and the bargaining unit members signature or if filed by the Union, the signature of the Grievance Committee Chairman or local Association President. 30 Section 2. Grievance Procedure: Step 1 An employee who is aggrieved should informally seek to resolve a grievance with his/her supervisor, in order for the City to have notice and an opportunity to correct any unintentional acts or conduct not consistent with this Agreement. Step 2 An employee who is aggrieved must file a grievance with the Union Grievance Committee within ten (10) calendar days of the date that the Firefighter knew or should have known of the facts or events giving rise to the grievance. A copy of the notice of receipt of the grievance shall be forwarded to the Fire Chief or hisiier designee by the Union Grievance Committee within three (3) calendar days of receipt of the grievance. The Union Grievance Committee shall within fifteen (15) calendar days of receipt of the grievance, determine if a Valid grievance exists. If the Union Grievance Committee determines that no valid grievance exists, it shall notify the Fire chief or his /her designee that no further proceedings will be necessary. If the Union Grievance Committee determines that the grievance is valid, it shall process the grievance on behalf of the Firefighter(s) by forwarding the written grievance to Step 3 of this procedure. Step 3 Any grievance found to be valid by the Union Grievance Committee shall be submitted to the Fire Chief within ten (10) calendar days of the Step 2 ruling. After receipt of the grievance, the Fire Chief shall, within fifteen (15) calendar days of receipt of the grievance submit his/her response in writing to the Union Grievance Committee. Step 4 If the grievance is not resolved at Step 3, the Union shall have ten (10) calendar days following its receipt of the decision of the Fire Chief, to submit the grievance to the City Manager. The City Manager shall within twenty five (25) calendar days of receipt of the grievance submit his /her response in writing to the Union Grievance Committee. Step 5 If the grievance is not resolved at Step 4, the Union shall have ten (10) calendar days from receipt of the City Manager's decision to submit the matter to arbitration. The arbitration procedure will be implemented by the Union notifying the City Manager in writing of their intent to submit the grievance to arbitration. Step 6 If a grievance is submitted to arbitration, the City and the Union may, within five (5) calendar days of such request, mutually agree to a neutral arbitrator. If the parties are unable to agree on such an appointment, the City or the Union shall, within five (5) calendar days, request a list of seven (7) arbitrators from the American Arbitration Association or the Federal Mediation and Conciliation Service. Within ten (10) calendar days following receipt of the list of arbitrators, the parties shall select an arbitrator by each party in turn striking one (1) name from the list until only one (1) name remains. The remaining individual on the list shall serve as the arbitrator. The arbitrator so selected shall, through the agency selected, be promptly notified of his /her selection and the parties in agreement with the arbitrator shall select a time, place and date for the hearing of the grievance. 31 (a) Within thirty (30) calendar days after conclusion of the hearing, the arbitrator shall issue a written opinion and ruling with respect to the issues presented, a copy of which shall be mailed or delivered to the Union and the City. (b) With respect to the application, interpretation and enforcement of the provisions of this Agreement the decision of the arbitrator shall be final and binding on the parties to this Agreement. It shall be the Association's burden of proof to establish the facts and merits of the Grievance. (c) The arbitrator's authority shall be limited to the interpretation and application of the terms of this Agreement and/or any supplement thereto. The hearing on the arbitration shall be informal and the strict rules of evidence or pleadings shall not apply. The arbitrator shall have no jurisdiction or authority to establish provisions of a new agreement. The arbitrator shall not have the power to add to, subtract from, or modify the applicable provisions of this agreement in arriving at a decision on the issue or issues presented but shall confine his /her decision to the interpretation, application or enforcement of this agreement as applicable to the facts and circumstances presented. The arbitrator shall confine himself/lerself to the issues submitted for arbitration, and shall have no authority to determine any issue not submitted to him/her. (d) If a transcript of the proceedings is requested, then the party so requesting shall pay for such transcript, unless otherwise agreed to by the parties. The losing party shall pay all the fees and expenses of the arbitrator. The arbitrator shall designate the losing party for purposes of this paragraph, and may find that both parties lost in part and apportion fees and expenses accordingly. Each party shall be responsible for the cost of the attendance of its witnesses at a contract grievance hearing. Nothing in this agreement shall prevent the Association from charging non - members a reasonable fee and expenses for representation, in accordance with its by -law and other applicable law. (f) For the purpose of this Article only, if the final date of any response and/or filing period falls upon a City holiday (observed date), Saturday or Sunday, then the due date will fall on the next business day. All time limits set forth in this Article may be extended by mutual consent, but if not so extended they must be strictly observed. Failure of the Union or the grievant to comply with the time limits set forth will serve to declare the grievance settled and no further action may be taken. Failure of the City to respond within the time limits shall constitute a denial of the grievance and the grievant (Union) may proceed to the next step. It is specifically and expressly understood that filing a grievance under this Article that has as its last step final and binding arbitration, constitutes an election of remedies and any appeal of an arbitrator's decision in this procedure shall be strictly and solely limited to the grounds that the arbitrator exceeded his or her authority and jurisdiction as provided under this Agreement, that the decision of the arbitrator was procured by fraud or collusion or that the arbitrators decision is based upon a clear and manifest error of law. (e) 32 Section 3. Civil Service Appeals. All appeals of Firefighters' disciplinary matters, promotional passovers, recommended demotions or other issues, heretofore heard by the Civil Service Commission or Hearing Examiner as provided in the Texas Local Government Code, Chapter 143, shall continue to be so heard and with all rights of appeals as provided in the Texas Local Government Code, Chapter 143, et seq., Vernon's Texas Codes Annotated, as amended, as modified by Article XI of this Agreement, and are not subject to the contract grievance procedure. Section 4. Appeals From Promotional Bypass. An employee who is bypassed for promotion pursuant to Chapter 143, Section 143.036, may appeal such decision to arbitration within ten (10) days of receiving written notice thereof. The notice of bypass shall state the Chief's reasons for such bypass. The employee's appeal shall be in writing and shall be filed with the Director of Human Resources. Said appeal shall be decided by one (1) arbitrator chosen in accordance with this policy. The City and the employee shall share equally the arbitration fees and expenses, except where the Union represents the employee it shall pay his /her share. With respect to promotional bypass, the employee shall have such right to appeal the arbitrator's decision to district court as he/she is given in Chapter 143 to appeal the Commission's decision, and no greater right. ARTICLE XI APPEALS FROM DISCIPLINARY ACTIONS A. Notwithstanding the provisions of Chapter 143 of the Local Government Code or any other provisions of this contract, the Chief shall have the authority to suspend an employee for a period of time not more than thirty (30) calendar days with said suspension subject to appeal. Appeals by an employee from a demotion, temporary suspension, or indefinite suspension under Chapter 143 shall be determined by the arbitration procedure provided herein, rather than by the Civil Service Commission. Notwithstanding Texas Local Government Code Section 143.036(a), the issuance of an indefinite suspension statement under Texas Local Government Code Section 143.052(b) shall not constitute a vacancy and no vacancy will result therefrom until all appeals are final or 30 days from the date of issuance if there is no appeal. Investigations of complaints against employees shall be conducted following current policies and practices. The parties agree that the provisions of this Article satisfy Texas Government Code §614.021(b) and that the provision herein control and prevail over Subchapter B of Texas Government Code Chapter 614 pursuant to Texas Local Government Code 174.006. B. Disciplinary action may be taken against a Firefighter within six (6) months of the discovery by the Chief of conduct by the Firefighter which would constitute a felony and not thereafter. Provided that such limitation shall not prevent disciplinary action against a 33 Firefighter based upon his conviction for any such crime notwithstanding that discovery of the conduct on which the conviction is based occurred more than six (6) months before the disciplinary action. Provided further that no disciplinary action may be taken for conduct on which the criminal statute of limitations has run, regardless of the date of discovery. C. Prior to any such disciplinary action, the employee shall be given written notice of contemplated disciplinary action, stating the action or actions contemplated and the reasons therefore, and notifying the employee that he may rebut the charges to the Chief, either orally or in writing, within a reasonable time, which time shall be stated in the notice. D. After the notice and opportunity for rebuttal provided in the preceding paragraph, the Chief may demote, suspend or terminate an employee by personal service on the employee of a written statement of charges. If the Chief should be unable to secure personal service after due diligence, service may be made by mailing it to the employee by certified mail, return receipt requested, in the mail addressed to the employee's last known address, along with delivery of the statement to the Association. Proof of such service shall be sufficient to support any disciplinary action. E. A copy of such statement, along with a copy of the notice of contemplated disciplinary action, shall be promptly filed with the Director of Human Resources of the City. F. The written statement shall point out the particular rule or rules alleged to have been violated by the employee and the specific act or acts alleged to be in violation. Said statement shall inform the employee that he has ten (10) days after receipt thereof to file a written appeal with the Director of Human Resources. If alternate service is had as provided herein, the employee shall then have ten (10) days from service upon the Association. G. Appeal from suspension, termination or demotion shall be decided by one (1) arbitrator, selected according to this contract. H. Upon receiving an appeal from an employee, the Director shall act immediately to notify the Association and the Chief of the appeal to arbitration. The employee and the City (the parties) shall attempt to mutually agree on an arbitrator. If the parties fail to agree on an arbitrator within ten (10) days after the appeal is filed, the Director shall immediately request a list of seven (7) qualified neutrals from the American Arbitration Association. The parties may mutually agree on one (1) of the seven (7) neutrals. If they do not so agree, the parties shall alternately strike the names on the list within five (5) working days after receipt of the list, and the remaining name shall be the arbitrator. All parties shall act to complete the selection process at the earliest possible date. The arbitrator shall be immediately notified of his selection. The hearing shall be commenced within such reasonable time as the arbitrator selected can be scheduled. If the arbitrator selected cannot commence the hearing within sixty (60) days from his selection, either party may within two (2) days of so learning, call for selection of a new arbitrator, and if the parties cannot agree upon a substitute within one (1) day of so learning, another arbitrator shall be selected from a new list of seven (7) names immediately requested from the American Arbitration Association, according to the procedure set out herein. The hearing shall be scheduled so that it can be completed without break, in consecutive calendar days (excluding weekends and holidays). The arbitrator shall make an award within thirty (30) days of the close of evidence in conventional arbitration hearings. 34 Post hearing briefs shall only be permitted in conventional arbitration hearings, and must be mailed to the arbitrator within seven (7) days of the close of evidence at the hearing. J. A stenographic transcription of the proceedings shall be made only upon written agreement of the parties prior to the commencement of the hearing. Should there be no agreement, the party desiring the transcript may have the transcript made at its sole expense. K. The award of the arbitrator shall state which particular factual charges he finds to be true, if any, and the particular rules he finds such conduct to have violated, if any. Where the charges are upheld, the award shall state whether the discipline imposed is upheld, or whether some lesser discipline is substituted. An employee shall be entitled to recover backpay for any part of a suspension not upheld by the arbitrator. L. The following rules shall govern the conduct of hearings under this section, and of certain preliminary matters: (1) Upon request of either party addressed to the opposing party at least two (2) days prior to the date of hearing, the parties shall exchange the names of witnesses expected to be called at the hearing. Upon failure of a party to disclose such witnesses, the arbitrator may exclude their testimony. (2) The arbitrator shall have the power to subpoena witnesses, records, and other evidence. Prior to the hearing, the Director of Human Resources shall issue subpoenas requested by the parties in the name of their arbitrator. A party may apply to the arbitrator to quash a subpoena so issued. (3) In all hearings under this section, the burden of proof shall be upon the City. (4) The parties, in writing, may request discovery from each other concerning the case. Should the other party not agree to provide the requested information within three (3) days of the request, the request, shall be deemed denied. The requesting party may then apply to the arbitrator, who shall order such discovery as appropriate to the nature of the case, subject to rules of discovery in Texas civil cases. In considering the application, the arbitrator shall consider the burden and expense of producing the information, the need of the requesting party, the amount of time available prior to the hearing, and such other matters as he may deem material. In no event shall discovery be permitted to delay the hearing, and in no event shall discovery be requested within three (3) days prior to the hearing. All hearings shall be public unless it is expressly agreed in writing by the parties that the hearing shall be closed to the public. In any event, the final decision of the arbitrator shall be public, although public announcement may be reasonably delayed upon request of the parties. (6) Unless otherwise provided in this contract, the conduct of the hearing shall be governed by the rules of the American Arbitration Association. M. The Arbitrator shall have all powers vested in the Commission under Chapter 143, and the Commission Rules, with respect to suspensions, terminations, and demotions, except the power to amend such rules. (5) 35 N. Any notice or statement required to be filed by the Fire Chief or the employee in a disciplinary proceeding under Chapter 143, under Commission Rules, or under this contract, shall be filed with the Director of Human Resources of the City. O. With respect to terminations, temporary suspensions, and demotions, the employee shall have such right to appeal the arbitrator's decision to district court as he is given in Chapter 143 to appeal the Commission's decision, and no greater right. P. Unless otherwise provided in this contract, in cases of conflict, the provisions of this contract will control over Chapter 143, Civil Service Commission Rules, and American Arbitration Association Rules; and Chapter 143 and Civil Service rules promulgated pursuant to it shall control over American Arbitration Association rules. Q. The City and the aggrieved employee shall share equally the fees and expenses of the arbitration. Where the Association represents the employee, it shall share equally the arbitration fees and expenses with the City. Nothing in this agreement shall prevent the Association from charging non - members a reasonable fee and expenses for representation, in accordance with its by -laws and other applicable law. All hearings which are expected to be completed in one (1) day shall be submitted for expedited arbitration. On all other hearings, the parties may agree to request expedited arbitration. R. Any deadline or time restrictions set out in this contract with respect to disciplinary proceedings may be modified by written agreement of the parties. However, neither party may be compelled to waive its right to insist upon the deadlines and time restrictions provided by this Contract. S. Suspensions by Agreement The Chief may suspend an employee for a period of time not more than sixty (60) calendar days provided that the employee agrees in writing to the suspension. The employee shall have no right to appeal such agreed suspension or to make it the subject of a grievance and no administrative or judicial body shall have the power to review such a suspension or to alter the terms of the agreement. ARTICLE XII HEALTH & WELFARE Section 1. Labor - Management Committee. The City and the Union, having recognized that cooperation between management and employees is indispensable to the accomplishment of sound and harmonious labor relations, shall jointly maintain and support a Labor Relations Committee. The Labor - Management Committee shall consider, discuss, and recommend to the Chief or the City any problems pertaining to the employment conditions of employees. The Union shall designate its representatives. The City shall designate its representatives. The Labor - Management Committee shall meet quarterly or at the call of either the Union members or the City members at times mutually agreeable to both parties. Section 2. Identification Cards. The City shall furnish all Firefighters identification cards bearing the member's name, photograph, rank, employee number, and containing a space for the signature of the member. 36 $196 92 $2r9.51- )ieieeiited side the 37 144e1+fee44e ‘ suranee—Go-ve-Fa#e fe(irenrent tifder the Corpus Christi- theipfe-v- shall, along with attnO eH4e++f-0e- - le 1..Titrallee PUNIC Safety CitiCare. or disabled ..spi+rtse-and &pen - siri&Fesstx -(4.1.1te4O-t+ - e ."ee. wen-age -shall remain in force for-said fonner employee while paid. such former employee while paid 'Pedicure A & I; ire ii,stirtii,ee covcrage ,Section 3.1-lealth Care insurance Plan and Life Premiums, A. Health Care Plan: The City shall irovide health care coveraoe for Fircltttliters and their dependents. The plan will be called CitiCare fare Health Insurance Plan. .Effective October 201 2 emplovees -.11id retirees who were M& ioush ii-itiftfalliered ilt MEI 1 litter called Public Safety CitiCare. 'Alit he 1110Ved to ti e C Ci-tre Fire Health Insurance Plan. B. \\ eekl - ireiniuin eosts for CtiCare Fire flealth insurance Plan October 11 2012 are as •fo llows: 38 (Formatted: Font: 12 pt Formatted: Font color: Auto Formatted: Indent: Left: 0.5, No bullets or numbering Formatted: Font: 12 pt Employee Cost !Employee Employee & Spouse $179.50 .Employee & Children $142.77 Employee & Fatally $290.28 City Cost $29698 $476.47 $439.75 $587.27 The City shall pay MO% of the entioyee's premiums and 50`80 of the premium for drzendent coverage. towards the CitiCare Fire flealth Insurance Plan. .Premium rates shall be determined tising the agreed 11lLt11odoIo gy described 111 tho, \ILLIIILHI lit thL event altentate 1 flb IUL iffirodaLLd it e tuture, t dollar r amount of City contribution i11 always be based upon the outcome of this toward all plans and employee tiers of coverage unless otherwise agreed upon lnr the Associat The City agrees to provide the Association and/or its consultant(s) information used detenninrennums (with the exception of information sribject 10 rivacy limitations under the federal aw„ whirling 1 11PP AA., unless no 101 1 ILLm(nts or a 111 trizatiom P0 have ee executed e Citv ti The City will notify the Association, in advance, if any E ,-reelnsuriince Advisory Committee meetings. -1111.e Association will be i'illowed 10 hrive reaesentation on the Employee insurance Advisory Committee, and 00 ator committees formed to evaluate proposals in response to Rewiests for Proposak reliited to negotiiited benefits of the bargainiiig uMt. The City shall notify the Association in writing of prennura increases with a minimum of sixty " crilendar days notice ol lu change. and of health plan cluinges with a minimum of thirty (301days notice of any change. 7111e City retains the right to negotiate with insurance carriers; third party administrators and their related sub-contractors and/or medical providers to provide insurance coverage and/or administration or the CitiGtre Fire lierilth.tristirance Rut The benefits in the )Ian that will be negotiated will be hos pocket amoillati co-pays and co-insurance percentages. dcdurtiblcs inaxrr uu:t of partici latlno p rider Service Areas shall always includc the following areas: Cr us Christi and e siiiiouioliiie area., South Texas, DallasiToil Worth Elouston t) .1,aredo and Austi Out of Network is the use of any hospital. physician or other health care Otcililv or o lessioiial that has t liIILO an -1.greement with the City's efened 'wider network. 39 Formatted: Font: 12 pt In the event a covered member does not live or Work in an area with indletwork providers, and in cases of emergency care, services provided outside the participating. provider service areas will be provided at the in-network level of benefits. Tire City wifl fulfill its oblioations -onduct i hi-annual actuarial study of thc GASB liability' and adjust the cumul(dive recorded OPEB liability accordingly. -111.e first adjustment to the cumulative recorded OPEB lit-Ability, including past and current; wifl be made in Fiscal 7CeLlr 12/13. Adjustments wiflcontintie to be mt-ide to the CUlatthltiVe recorded OPEB Oast and current; as detennihed by the 1I 101 actuarial study or the GASB 1 bit Plan changes mandated by federal health care leg'slation will he implemented as required. The Association ',\/111 be notified of such changes. The following components wifl be used to calculate the premiums for active employees and retirees under age 65: 1. Effective ()ember 1, 2012 employees and retirees who were previously grandththered titer called Public SJiletv CitiCare, wif ved 10 thL CitiCare Fire Health Insurance Plan. 2. Third Party Administrator TA adniinistiativc fees 3. Stop loss premiums 4. 11w-tined and laid medical and rescriation drug claims 'after sto loss Jidist ents, rebates, subrogation recovenes, coordination of benefit ecoveries ) of all -s (active emplovees„ retirees; and participating dependents)„ with allowance for adjustment based upon expected benefit plan, enrollment or other changes. The base time frame for this data N.Vill he based horn a consecutive seventeen (1 71 month time period ending seven (7) months prior to the effective date of such rate and benefit changes. The resulting net claim factors will be converted to a twelve (12) month L1U01ILnt f ses ol estab is base claims factor to be used in the calculation to determine contributions. 5. A uorated contribution toward the cost of an onsite primary care clinic (the percentage of meirtbers covered under the CitiCare Fire Health Insurance Plan divided by the total covered members under the City's health plans who are eligible to use the clinic times the estimated annual cost of the clinicl 6. Incurred But Not Reported (1i3NR clainis, as actuarially dctcnmned deters . 7. The net change in forecasted and prior period catastrophic reserve funding (105 of actuarial projected clahns expensel 8. —Assumptions for Jid trend components used to estimate future claims wilf incorporate prevailing plan specific, regional.. and national trends, as well as the anticipated im fact of Jim,' mandated benefits, and Jim,' other hictons determined to imfact the overall 40 trend. Actuarial and consultino Unita from both parties wilt agree upon the hictons) applied in accordance with professional, ethical and generally accepted practices. if agreement is 1101 r -ached.. within two (2' veeks lllLr the tictuary re is mis Tided to the Association., the Citssi11 lmpIeioeRl the recommendation of is Actuary. The City must notify the Association in writing of its intent to implement its actuarial recommendation. The Associtition has seven (7) calendar (Ittys from receipt of drat tionce bo m (1 in writing to the City INJanaGer or desio ee aiid rcsiest the dissutc rcsolution rocess as outlined below/ Each party's actuary lull 1111111 ilis T aoree 1111111 seven (7 i calendar days t on A third neutral actoars Thcartics shall sub ) E e s rviti from the date 01 his/her selection. A decision factors tipplied to determine the contribution requirements for active employees and retirees "der AlL'EC 65 shall he delivered to the martiessvitluii seven "7 calendar days and shall he binding on a nes. 1 i&.h iany s 91 av lhL lolil fees and ex nse, of thLir )wri actuary 11 leet e net ti a tit ass as to ilTLe and each shal as hall 01 lees and ex tenses 01 tise neutral a T "art'. 9. The cumulative net fund balance. a. The initial fund balance to be used for the first measurement period will be the actual CitiCare Fire llettith insurttnce Plan Fund Balance t.lso referred to tits' "fund btilance")„ but 1101 Ix. less uut $1,633,8571 restricted and unrestricted funds. Net fund balances for the plan (the difference between the total fund balance and the 01113 liability) will carry forward throughout this Agreement. .1.1 is tigreed that the Fiscal Year 12/13 opEB liability as well as all future OPE.B liatmihtv will be determined by the bi- annual actuarial study of the CASE; liability and \yin he funded by the fund balance. 11 is also agreed that the past cumulative recorded OPE.B hahihtv will be determined by the bi-annual actuarial study of the GAS.13 liahhts It is agreed that as of August L 2012 the past cumulative recorded opEB 11 Eipiiity is $4,653..600.00 and will be ad tied accordingly as determined hi the bi-annual actuarial study of the GASi3 liability. The first adjustment to the cumultitive recorded 0.0E13 liability.. including past and cunent„ will be made in Fiscal Year 12/13. Adjustments will continue to be made to the cumulative recorded opEB liability, including. past and current, as determined by the bi- a ial actuarial study 01 GASB .1.1 is also agreed that the east cu (11 GISo recorded ( l'E 3 1ahilits e addressed and recovered linni the fund balance as follows beoliming Fiscal Year 14/15 until it is rally recovered. or until 01'1/11 liabilities are longer 1.( aired or mandated by GAS!1 (Govenurtental Accounting StandtArds 130001) in which case arty monies allocated for opt"; liabilities will transfer back to the CitiCttre Fire 1 lean Insurance Plan cumulative laud balalice: Fiscal Year 1 4/ 15 2% of the past cumulat 1).13.111313 Fiscal Year 15/16 3% of the past cumulative recorded OP1/11 Fiscal Year 16/17 49 01.'"the past cumulat ve recorded orEB Fiscal Year 17/18 5% of the past cuniulative recorded 013E13 liability: and 41 5')/0 of the past cumulative recorded OPEB liability all fiscal years thereafter 17/18 ttlitil he past cumulative ()PTA; 1ia1ohtv is full \ reco■ ered. Formatted: Font: 12 pt The above schedule for recovery of the past cumulative recorded OPEB liability is separate and apart from the funding of the current and future OPEB liaPiliti. file above recovery schedule for the past cumulative recorded opEB liability sets the minimum standards for recovery. It is agreed that a higher \ercentage of recovery inav be made towards the past cumulative recorded opEB liability at the election of the Firefighters. Should the fund balance fall below $1...600,0100) at the end of each fiscal year on July 31„ the recovery of the past cumulative recorded OPEB liability\vill cease for that fiscal year until the next fiscal year. It is agreed that at the expiration of this contract, the past cumulative recorded OPEB liability as Well as all current and future OPEB liability will be recognized, addressed. recovered, funded and included in all contracts following til stud e GASB thereafter as determined O011; liabilities are iCOtLlTlti c ual ua Eler reuircd or inandatcd lovernmenta Standards Ilo a d' 111 IVITOOlTI case a as allocatcd fOr :pa; liabilities will transfer back to the CitiCare Fire I lean Insurance Plan cumulative fund balance. C. The plan shall be structured as tbllows: CITICARE FIRE HEALTH INSURANCE PLAN ,BENEFITS IN NETWORK (Participating Pro‘ hicrst OUT-OF-NE'INVORK ,PLAN YEAR DEDUCTIBLE No Plan Year 1)eductible $200 IPer Individual •$51)() Max Fail-lily yHYSICIAN SERVICES In-Patient Out-Patient Emergent:\ Room $15.0.) Co-Pav 70/305/ Cosliisuralice ,LABORATOR'Y SERVICES Physician's Office Lab Facilities Hospitals $10.00 Co-Pav 70/305/ Cosliisuralice ,X-Rays, Physician's Office: X-Rav Facilities: $100(J CosPa\- $15.01CosPay Co-liisirance 42 Formatted: Font: Times New Roman, 10 pt 1 ( Formatted: Centered (Formatted: Font: Times New Roman, 12 pt ( Formatted: Font: Times New Roman ( Formatted: Font: Times New Roman ((Formatted: Font: Times New Roman (Formatted: Font: Times New Roman (Formatted: Font: Times New Roman ( Formatted: Font: Times New Roman Emerge Room Services $50 Co-Pa \ .Lher Co-hisurance •7t)/3()°A)Co-Ilist.irattice • aliza " -Patient) $200 Individual Deductible 5600 Ma r. Family Deductible then S5/ [511/tt Co-Insurance 7()/3t/bi)Co-ritstirai pospitalization (Out-Patient) $ Deductible Per Individual 5250 Max Family Deductible then 55/15% Co-Insurance 70/30% Co-Insurai eta] Prescriptions $11— Generic $211 — l'reterred rand $411 — Noit-l'refen-ed rand No Deductible 70/30% Co-Insurance rrescriptions Mandatory Mail Order 90 Dav Stipp!v of aintenance PrescrPtioiis s: $0 — Generic $20 — lPreferred lBrand $40 Noit-Preferred lBrand No Deductible 70/30% Co-insurance ut-Of-Pocket Cost Excluding Deductibles Co-Pays $500 l'er htdividual $1.250 Max t dimly $700 l'er 51.750 Max l'amilt Benefit — S2,000.000, unless other-o‘ise required This is a suing-Bar\ ()nil\ plan document NI ill govern. * Employees and dependents covered bv the CitiCare Fire Itlealth Insurance Plan will be excluded from the dm!: formulary. ** E -men .Rooin Services. V/'iII increase to 550.00 co-Pav provided that 2 minor emert.tencv clinics are included one on the Southside of Covis Christi t-ind the other in the Calallen area. Should the number of minor ementencv clinics inn below 2 for mare than 9(1 consecutive days the Co-Pay will be $15.00. Other elitaible services and elitaible medical supplies as shostat in the CitiCare .Fire Insurance Plan document shrill be covered at 8511/0/151b, for_primary networks $100.00 deductible/ $250.00 family maximum deductible and 8011/0/2055 for special services or $200.00 deductible/ $500.00 family maximum deductible and 719/030% for out of network. When an expenditure is made toward a deductible and/or out-of-pocket requirements; it is caartutative in all three catettories. Participating .Provider Service Areas are those locations covered bv a primary network: 11 exits Dallas/ \Vorth, flouston, San t Laredo asd /5. ust 43 [Formatted: Font: Times New Roman Formatted: Font: Times New Roman ( Formatted: Font: Times New Roman Formatted: Font: Times New Roman [Formatted: Font: Times New Roman ( Formatted: Font: Times New Roman, 12 pt (—Formatted: Font: Times New Roman Formatted: Font: (Default) Times New Roman] Formatted: Font: (Default) Times New Roman, Bold ((Formatted: Font: 12 pt 0uofNetwo/k is the use of any hospital, physician n[other health care hicility or professional that has not signed uu agreement with the City orbo health care administrator to provide services as the prefen-ed provider. �uld the number italsumilable the network tiL|i below 2for more than 90- consecutive days.. the hospitalization shall be 8oY{DoY6. deductibles obJ|hc$ioo10mcrcnokcvvwrdimJiyidmL%30o10bmi|vomxiuum.. and out-of-nocbu shall bc$4&o10 per each covered individual until the nuniber oi hospllals is at least Should the number of total_physicians in the network fall below 388_ for more than 98- consecutive da»o. the reimbursement xcuemmgz for m»+`f-/u1wvrk2lryoiciau^orkvs'laboratory services and x-rays shall be 80`)/0/20`)/0, the deductible shall be $1 00.00 per each covered individua $300.00 family twtximunt, 11- cket shall be $4811.00 )e'r eleit covered individual u it number o[nkviclau the network is 30(1. � Mork vsiciamnmrone u ' s ecialtv remain for more tha )0- consecutive days below 5(1%o[ the number o[ network physicians who were iu the network iuthat nyecit-kv on October _L_20D2. ,t&-of-network _pbysici1ms services in nyecifi|n shall be reimbursed at 811`)/0/20y, the deductible shall be $1o0.00 per each covered individual, *300.00 family maximum and out-oh»ocket shall be $4 80.00 per each covered individual until the number o[oersvmt physicians iu that specialty bunumsmuzkoo50%o[ the number who were iuthe network in that specialty on October 1. 201 2. Provided however, that covered individual who 1135 hcuig treated bvu network physician within 9l-coxserubnr days before the dos the number fell below 50% shall pay Uu Primary Network Physicians' Services Co-Pay rate for that treating physician's senfices for up to 90-consecutive days u8er the number fell below 506if that treating physician has becoilie an out-of-network provider. The City n iuD pay 100% of the employee's for dependent coverage. Premium rates shall be determined by the City based t:fri the cost of the plan. The City has the authority to restructure buuUm, with the exception of hospitalization deductibles. maximum out of pocket amounts and reimbursement /enmuueco. The City also has the authority to restructure network composition o[ the nnfencd provider network. The !City 2dltins -the right movg`duuwith insmmrcu«dk" pm,id'rsOn benefits, cv,ontze and administration Linder CitiCare Fire Health Insurance Plan. lhe benelits 111 the outolotet\\ork portion (11 Uie l0lt 11131 001 be cliaitged unless negotiated and agreed tt f the City and the Association. The purpose of premiums io to generate revenues to cover claim costs. Co-pays are not intended m generate revenues. Formatted: Font: 12 pt 44 D. Pro‘ isions Apph int!. to All Offered Plans as of Auttust 1, 2012. HPV vaccinations u a 10 age 25 will be covercd at 1 t sub ect 10 any cc cost s tarn TV to a $56 annual )ene- and The routine inammograahv benefit will have a per procedure maximum benefit of $150 not subject 10 any co-pay Or cost sharing provision. .Benelits for Hospice Care; both facility and home based care; will be covered as any other llIpss tw-Jx-iirtum of ninety 911) days c yen-vac per lllLtlmL Benefits for .Home Health Care and Skilled INlursing..Fac tv Care will be covered as any other illness, maximum of ninety 19(1) days coverage per plan year. Retiree Healtitilnsurance Coverage. Employees who retire under the conditions of disability in accordance with the Corpus Christi Firefighters Retirement System or Social Security or under regular retirement under the Corpus Christi Firefighters Retirement System or under Social Security after ten (10 years of continuous service with the City, along with their articipating dependents covered 011 the last day of employment, shall be eligible to continue participation in the City's CitiCare Fire Health Insurance Plan at monthly premiums subject to periodic changes in rates as rL 0159 in the agreement. The Mtal cost of such continued coverage shall be paid entirely by the employee and/or spause. the spouse's rights shall continue Mier the employee's death, but shall terminate upon divorce. Coverage shall remain in 1/o1ce for the retiree while Ftid until he or she becomes eligible for .Ndedicare or reaches age 65 at which time coverage in the CitiCare hire Health Insurance Plan will cease. While the retiree remains in the City's CitiCare hire Healthilnsurance Plan, or fully insured plint otILrms tor Medicare eligible retirees. coven-Le shall rem M0 in force for the s 'muse while )aid 11111 isa 01 shI. becomes 5Inibl5 for Ddedicare or reaches t--1.2e 65 at which - COVCT000 in the CitiCare Fire Health Insurance Plan shall cease. Coverme shall remain force for the retiree's participating dependent children while paid until they become inelble as defined in the plan at which time coverage in the CitiCare Fire Health Insurance Plan shall cease. Medicare eligible retirees and their Medicare eligible dependents will be elio ibk )ate in City's bus 1101159 Isn OItLfllLO, tbr.Ndedicare elioible retirees. 2. '1:1-te City agrees to pay to the Union a contribution equal to $30.01 month per employee; which the 1,1Pion threes to use bor st knlLnt il 1155111055 110 0 105, for t-Jc. Are or retired Firetiohters. addition. the City shall aly to the Union August 1. 2018, ud each August I thereafter $150,000 for the Corpus Christi Firefighters Health and Benefit Trust. Effective August 2009. the Ja ties agree to use a contribution escalator for the contribution of the city caual tha base -eitta0e incrcasc aff orded members of Usa barsia ining uiut durine Usa fisca Year. 3. 'The City shall provide hash: ce COVeraoe. for erich Fireliohter LQU i il to the hirefiohter's anriiial salary. 45 On Chris dollars ($ 1. 2( }i2. the City agrees tc and Benet le lamp sum payuler s d hr the amount of one huardred ilxousand Christi dollars Corpus sand Formatted: No bullets or numbering (Formatted: Font: 12 pt Section 4. Disability. No sick leave shall be charged for injury or illness sustained in the line of duty. Employees shall be paid leave in an amount not to exceed their regular salary as provided by Section 143.073, Chapter 143 for injuries or illnesses occurring in the course of employment. The use of accrued sick leave may be granted to any Firefighter at the discretion of the Chief for job - related illnesses or injuries after injury leave has been exhausted. For purposes of line of duty illness or injury leave, "line of duty illness" shall be defined as an illness which has been directly and substantially caused by the duties of the position. Provided, however, that this definition applies only to a line of duty illness under Section 143.073, Chapter 143, and is in no way intended to govern the payment of benefits under the workers' compensation statutes, which benefits shall continue to be governed solely by the workers' compensation statutes. A disability shall be defined as a physical injury or illness which prevents an officer from fully performing the duties of the position to which he /she was assigned at the time his/her disability commenced. A "permanent disability" is an injury or illness which disables a Firefighter to the extent that it cannot be said in reasonable medical probability that he/she will be able to return to full duties within one (1) calendar year from the date that the Fire Chief determines in writing that the disability is permanent. Upon termination for permanent disability which is non job related, the Firefighter shall be entitled to a lump sum payment for all his accumulated sick leave, and for accumulated vacation leave not in excess of the limit established by Article XII, Section 8 of this Agreement. Upon termination for permanent disability which is job - related, the Firefighter shall be entitled to a lump sum payment for any injury leave he/she may have remaining out of the one (1) year provided in Chapter 143, Section 143.073, all accumulated sick leave, and for accumulated vacation leave not in excess of the limit established by Article XII, Section 8 of this Agreement. All such payments shall be calculated and compensated as of the date the employee is determined to be permanently disabled and shall not include additional accrual of sick leave, vacation, or holidays beyond that date. The procedure for determining the permanent disability shall be as follows: In the event the Chief determines after consultation with the City designated Physician that a Firefighter is permanently unable to perform his or her job duties, he /she may institute immediate termination or retirement whichever, is applicable. Prior to taking formal action on the above determination, the Chief will inform the Pension Board, in writing, of his /her intentions. The Firefighter may call for further examination by a board of three physicians. One such doctor shall be appointed by the City, one by the Firefighter, and the third by said doctors. Provided, however, that the third doctor must be approved by the City designated Physician. The doctor designated by the Firefighter shall be paid by him /her. The other 46 two doctors shall be paid by the City. The decision of a majority of three physicians as to whether a permanent disability as defined herein exists shall be final. A Firefighter who has previously been terminated due to disability may, if found to be otherwise qualified within two (2) years of the termination date for disability by the Chief, be eligible for reappointment at the same rank upon certification by the City's designated Physician that he or she has recovered and physically is able to perform full duties. Section 5. Sick Leave and Retirement Pool. A. Each Firefighter shall accumulate fifteen (15) days of sick leave with pay per year. Effective January 1, 1988, the Sick Leave Retirement Pool will have a maximum balance of 2,000 days. Quarterly accounting will be maintained to provide a current balance of such days. Days used in accordance with provisions outlined below will be deducted from the pool until it reaches a minimum of five hundred (500) days, at which time two (2) sick leave days per Firefighter per year will be transferred from his/her individual account into the pool until the pool reaches its 2,000 -day limit. The Pool shall be used to compensate Firefighters who retire, during the term of this contract, other than on disability retirement, with more than ninety (90) days of accrued sick leave to their individual credit. Subject to the maximum limits specified in Sub - Section B, below, the retiree shall be compensated from the Pool for the amount of sick leave accrued to his/her individual credit that exceeds ninety (90) days. B. Upon termination, other than on disability retirement, an employee's compensation for the sick leave accrued to his/her individual credit shall be limited to the following amounts, according to the employee's time in service. (1) (2) (3) (4) (5) (6) (7) (8) (9) (10) Less than 4 full years of service: zero days. 4 full years of service: not more than 30 days. 5 full years of service: not more than 40 days. 6 full years of service: not more than 50 days. 7 full years of service: not more than 60 days. 8 full years of service: not more than 70 days. 9 full years of service: not more than 80 days. 10 or more full years of service: not more than 90 days. 20 or more full years of service: not more than 150 days. 25 or more full years of service: not more than 180 days. C. If a Firefighter dies, any and all amounts he or she would have been entitled to under this section, or the entire amount of accumulated sick leave, whichever is greater, shall be paid to his or her dependents or estate. D. The parties agree that the payment of accrued sick leave as provided by state law and this contract shall be based only on base salary, longevity pay, certification pay, and assignment pay as per current payroll practice which is in compliance with state law and not in violation of this agreement and prior collective bargaining agreements. This provision will prevail 47 over the provisions of the Texas Local Government Code Section 143.045. Appendix E sets forth the pay methodology for eligible accrued sick leave. Section 6. Toxicology Reports. The City shall pay for the cost of toxicology reports in instances where a Firefighter dies as a result of an on- the -job injury or upon request by the employees family where recent exposure to excessive smoke or toxic fume inhalation is suspected as a contributing cause of death. Section 7. Mandatory Drug Testing. A. The City and the Union mutually agree that Firefighters may be called upon in hazardous situations without warning, and that it is imperative to the interest of Firefighters and the public to assure that Firefighters are not substance - impaired. In order to further their mutual interest in protecting Firefighters and the public, the City and the Union agree to testing, as described in the Fire Department's Alcohol & Drug Policy attached hereto as Attachment "1 ". The City Manager, Fire Chief and Director of Human Resources shall be included in the testing process. The fair and impartial statistical basis shall be by a non - discriminatory computerized program operated and certified as non - discriminatory by an independent firm hired by the City, and the employee shall be tested promptly upon being selected by the computer. B. Discipline shall be in accordance with the Fire Department's Alcohol & Drug Policy and the Civil Service Commission Rules and Regulations. C. No changes can be made to the language dealing with the provisions of the Corpus Christi Fire Department's Alcohol and Drug Policy without agreement by both the City and the Union. Section 8. Accrual of Vacation Days. All Firefighters hired after September 1, 1998, shall be allowed to accrue unlimited vacation leave hours (includes holiday leave hours), but upon retirement, resignation, or termination the Firefighter shall not be paid in excess of four hundred and eighty (480) hours for forty (40) hour workweek employees or seven hundred and twenty (720) hours for twenty four (24) hour shift employees. All Firefighters hired on or before September 1, 1998, shall be allowed to accrue unlimited vacation leave hours (includes holiday leave hours), but upon retirement, resignation, or termination the forty (40) hour workweek Firefighter shall not be paid in excess of an amount equal to seven hundred and twenty (720) hours plus the amount the Firefighter had on the books as of December 20, 1998. If the Firefighter is on the 24 hour shift, the Firefighter shall not be paid in excess of an amount equal to 1080 hours plus the amount the Firefighter had on the books as of December 20, 1998. Appendix E sets forth the pay methodology for eligible vacation leave. The City retains the current practice of permitting Firefighters to sell one (1) day of vacation for each day of vacation taken to a maximum of five (5) days per year. Firefighters can sell back only such vacation leave in excess of thirty (30) days accrued vacation leave pursuant to this provision. However, effective August 1, 1998, each Firefighter may sell back to the City two (2) days of vacation leave for each day of vacation leave taken during the year not to exceed a total of ten (10) days. For purposes of this Agreement, a Firefighter working a twenty four (24) hour shift shall be permitted to sell twelve (12) hours of accrued vacation leave per day not to exceed one hundred and twenty (120) hours (10 days times 12 hours) per year. All other Firefighters working forty (40) hours per workweek (regardless if on a 4 -10 schedule or 5 -8 schedule) shall be allowed to 48 sell back eighty (80) hours. Appendix E sets forth the pay methodology for eligible vacation sell back. The City shall distribute funds in cash or as contributions to a deferred compensation plan or as otherwise directed by the Firefighter. Any costs incurred for the transfer of funds for distributions other than direct payment to the employee shall be the responsibility of the Firefighter. The City may require that the Firefighter release and hold the City harmless for any penalties or other liability incurred by the City as a result of allowing the Firefighter to defer compensation under this provision. The City shall not be required to make a payment to a deferred compensation plan or other plan if it is determined, in the City's sole discretion, that such payment or distribution is not in compliance with all applicable laws, rules, and regulations. ARTICLE XIII LEGAL PROCEDURES Section 1. Legal Defense. The City will provide a legal defense to any Firefighter in a civil lawsuit, on account of any action taken by such Firefighter while acting within the course and scope of the Firefighter's employment for the City of Corpus Christi. The City will also provide legal defense for a Firefighter when he or she receives a traffic citation as a result of being involved in a traffic accident while making an emergency run to the scene of a fire or an emergency while acting in the course and scope of the Firefighter's employment for the City of Corpus Christi. The City, by conducting or participating in the employee's defense, does not assume any obligation or liability not otherwise imposed by law and does not expressly or impliedly waive any immunity or defense which is available to the City. The City shall assume no obligation not otherwise imposed by law for any judgment which is rendered against an employee. The City Manager may in his/her discretion refuse a legal defense for an employee where there are indications of intentional acts, gross negligence or recklessness which will be communicated to the employee in writing. The City shall provide such legal defense through an attorney not connected with the prosecution of such case. (1) The Firefighter shall notify the Fire Chief of any claim being made against such Firefighter not later than ten (10) days from the date that such Firefighter received notice of such claim, and shall request the City to assume the defense of the Firefighter regarding such claim. The City shall require that such request be made in writing. (2) If suit is brought against such Firefighter, such Firefighter shall immediately forward to the City Attorney every demand, notice, summons or other process received by him/her within twenty four (24) hours of receipt. Such Firefighter shall cooperate with the City and, upon the City's request, shall assist in making settlements, and the conduct of suits, and in enforcing any rights of contribution or indemnity against any person or organization who may be liable for all or part of such damages, and shall attend all hearings and trials and assist in securing and giving evidence and obtaining the attendance of witnesses. (3) 49 ARTICLE XIV ASSOCIATION HEALTH AND BENEFIT TRUST Section 1. Trust Creation. The City and the Corpus Christi Firefighters' Association agree that the Association Health and Benefit Trust is the sole responsibility of the Association and that the City has no involvement in the Trust. Section 2. Indemnification. The Association shall defend, indemnify and hold the City harmless from any and all claims, legal actions, liability, damages, and expense brought by any parties in connection with or arising out of the operation or administration of the Trust. ARTICLE XV REOPENER PROVISION The parties agree that the City or the Association may reopen negotiations as to matters included in the Tri -Data Comprehensive Analysis Fire and EMS Delivery Report currently being finalized, under Texas Local Government Code Chapter 174. Such negotiations shall be set at the convenience of both parties. This agreement shall also be subject to mutual renegotiation for a joint health plan group benefits pool with other classes of employees at any time during its term. In order for the contract to be amended both parties must agree upon the amendment. Amendments to the contract must be ratified by appropriate parties. As to the Tri -Data issues, this Provision will expire on August 1, 2007, otherwise it shall be in effect until a successor agreement is reached. ARTICLE XVI IMPASSE PROCEDURES PART I Negotiations for a new contract shall commence in accordance with The Fire and Police Employee Relations Act (the "Act") and Article VII, Section 2 of this contract. If impasse should be reached as defined in Section 174.152 of the "Act", either party may request mediation, and if mutually agreed upon, the parties shall immediately proceed to choose one mediator as provided herein. The function and powers of mediator shall be as specified in Section 174.151 of the "Act". The mediation shall extend for fourteen (14) calendar days. If no agreement is reached through mediation, upon request of either party, the parties shall submit the dispute to one Factfinder. The selection of the mediator and the Factfinder shall occur as follows. When either party requests mediation or factfinding, the parties may agree to choose any mediator or Factfinder or method of choosing same. If no agreement occurs within five (5) days from the request, the parties shall request a list of seven (7) neutrals from the American Arbitration Association (AAA). Upon receiving the list, the parties shall select the mediator or Factfinder by alternately striking names The request to AAA shall state the dates on which the neutrals must be available. The mediator and the Factfinder shall be selected within five (5) days after receipt of the list from the AAA. The fee and expenses of the mediator and the Factfinder shall be split equally between the City and the Union. All other expenses, including witness fees, shall be paid by the party incurring the expense or calling the witness. By agreement, the parties may submit any issue or issues to the Factfinders. If no such agreement is reached, then each party shall be entitled to submit two proposals to the 50 Factfinder, each proposal on one (1) distinct topic. For example, each of these constitute a distinct topic: salary, dependent health insurance coverage, promotional procedures, political activities. Each party may submit its two (2) proposals, and its alternatives to the other party's proposals. The Factfinder shall conduct a full and fair hearing on the issues submitted to him/her. The hearing shall be informal and strict rules of evidence shall not apply. After hearing all evidence offered by the parties, and any evidence requested independently by the Factfinder, the Factfinder shall render a written decision making findings of fact and recommendations as to all matters in dispute. In the opinion, the Factfinder shall exercise his /her independent judgment and shall not attempt to "split the difference." Where an issue is submitted to the Factfinder in the form of a proposal and an alternative to it, the Factfinder's decision with respect to that issue must recommend either the proposal or the alternative. The Factfinder's decision shall be submitted to the City Council and to the Association, and shall be advisory only. In making the findings of fact and recommendations, the Factfinder shall consider the following evidence submitted to him /her by the parties or obtained at his /her direction; the overall compensation in the current contract including direct salary and fringe benefits; the income available to the City and demands on that income; a comparison of wages, hours, and conditions of employment of Corpus Christi Firefighters with the wages, hours, and conditions of employment of other public and private employees performing similar services and with other employees generally in public and private employment in comparable communities and in Corpus Christi; the hazards of employment, physical, educational, and mental qualifications, job training and skills required of a Corpus Christi Firefighter; the cost of living in Corpus Christi relative to other communities; the rate of increase in the cost of living for the preceding twelve (12) month period using localized data to the fullest extent feasible; and any current national or state policies or guidelines with respect to compensation. It is agreed that in the interest of maintaining harmonious relations between the City and its Fire Fighters each party will make a sincere and earnest effort to resolve the dispute through the fact finding process. PART II It is agreed and understood that if the above fact finding procedure fails to result in an agreement, the City and the Association each retain any and all rights under Texas law, including but not limited to Chapter 174, irrespective of the inclusion of the fact finding process in this agreement. Any deadlines shall resume from the date of notice by either party, after the recommendation of the factfinder that the party has determined not to proceed further with a resolution under the fact finding process. ARTICLE XVII DURATION AND CONCLUDING PROVISIONS Section 1. Duration. This agreement shall be effective as of date of signing and shall remain in full force and effect until July 31, 244 2014, and thereafter until superseded by a new contract. 51 Section 2. Severabilitv. If any article or section of this agreement should be found invalid, unlawful, or unenforceable by reason of any existing or subsequent enacted legislation or by judicial authority, all other articles and sections of this agreement shall remain in full force and effect for the duration of this agreement. Section 3. Conflict with Civil Service Statute. To the extent that any of the provisions of the agreement conflict with Chapter 143 or any other State Civil Service Statute, the provisions of the agreement shall control and the applicability of such statutes are altered accordingly. Section 4. Copies of Agreement. The City shall provide sufficient copies of this agreement, without alteration, so that every employee covered herein shall have a copy. The City shall be responsible for the distribution of the copies of this agreement to members of the bargaining unit within 90 days of ratification and Union Negotiating Team members signatures. 52 CONCLUDING PROVISION IN WITNESS WHEREOF, we have executed this agreement this day of 21112. CITY OF CORPUS CHRISTI CORPUS CHRISTI FIREFIGHTERS ASSOCIATION, LOCAL UNION 936 [Aug c l 'MANAGER ald L. Olson, CITY Carlos Torres, PRESIDENT Negotiating Team Members Negotiating Team Members 53 54 Attachment 1 Fire Department's Alcohol and Drug Policy A. INTRODUCTION The Corpus Christi Fire Department has a responsibility to provide the highest level of public safety service attainable by a City. All employees of the Department share in this responsibility. The sensitive position of all firefighters involved in fire suppression and/or emergency medical services or other assigned duties requires assurance that there is no use of illegal or prohibited drugs. It also requires assurance that firefighters are not under the influence of alcohol while on duty. The City of Corpus Christi is also obligated under the Drug -Free Workplace Act of 1988 to provide and maintain a workplace free of illegal or prohibited drugs. B. EFFECTIVE DATE AND EMPLOYEES COVERED. The amendments provided by this policy become effective upon execution of the 2005 -2008 collective bargaining agreement between the City and the Union and will be incorporated into the Fire Department General Manual to be effective as of that date. This policy applies to all sworn personnel and cadets in the Fire Department, regardless of rank or assignment. All civilian personnel are covered under the citywide policy (H.R. 15.0). C. PROHIBITIONS: This policy prohibits: 1. The use, unauthorized possession, manufacture, distribution or sale of illegal drugs or drug paraphernalia. 2. The unauthorized use, possession, manufacture, distribution or sale of any controlled substance. 3. The presence of a detectable level of any illegal drug or unauthorized controlled substance or any metabolite of any such substance in the body upon being tested. 4. Being under the influence of alcohol or possessing alcohol while: (a) operating or occupying any city vehicle at any time; or (b) at any location during the firefighter's working hours including all lunch and break times. 5. Use of alcohol while off duty in violation of Civil Service Commission Rules and Regulations, and Chapter 143, Local Government Codes. 6. Unauthorized storage in any locker, desk, City vehicle or other repository on City premises or worksites of any illegal drug, drug paraphernalia, unauthorized controlled substances or alcohol. 55 7. Switching or adulterating any breath or urine sample submitted for testing. 8. Refusal to consent to testing and submit a specimen for testing when required under this policy. Consent is indicated by signing any form required by the City's Medical Advisor or laboratory collecting the specimen for testing. 9. Failure to pass any drug or alcohol test administered under this policy. 10. Refusal to consent to inspection of any desk, locker or other City property under a firefighter's control when requested by a supervisor or law enforcement officer 11. Arrest or conviction for any drug or alcohol - related crime committed at any time. 12. Failure to notify the Fire Chief within five (5) days after arrest or conviction for any drug or alcohol - related crime committed at any time. 13. Failure to report to his/her supervisor the use of any controlled substance prescribed by a physician or non - prescription drug which may impair the firefighter's ability to safely and fully perform his/her duties. 14. Failure to keep prescribed drugs in their original container which identifies the drug, date of prescription and prescribing physician or provide other proof of drug prescription and prescribing physician. 15. Failing to adhere to the provisions of any agreement executed by the firefighter which requires treatment or counseling for alcohol or drug abuse. 16. Refusing to sign a statement agreeing to comply with this Alcohol and Drug Policy. 17. Knowingly, taking prescribed medication in a manner or dosage other than as prescribed. D. DEFINITIONS UNDER THIS POLICY 1. ILLEGAL DRUG: includes heroin, cocaine, crack cocaine, cannabinoids (marijuana, hashish, THC), PCP (phencyclidine), LSD (lysergic acid diethylamide) and any other controlled substance not validly prescribed by a physician. 2. CONTROLLED SUBSTANCE: includes all of the above illegal drugs plus any other substances covered by Schedules I through V of the federal Controlled Substances Act (21 U.S.C. 801 et seq.) or the Texas Controlled Substances Act (Chapter 481, Texas Health and Safety Code). Controlled substances include amphetamines, barbiturates, methadone, benzodiazepines, methaqualone, morphine, codeine and anabolic steroids, A controlled substance is "unauthorized" if the firefighter does not have a valid prescription for that substance at the time of its use or possession. 56 3. CITY PREMISES OR WORKSITES: include all property, buildings, structures, job sites (where a firefighter is working), parking lots, and means of transportation owned, leased, or otherwise used for City business including motor vehicles, equipment, or machinery. An employee's vehicle is also included in this definition when being used to conduct City business or when parked during an employee's working hours, including lunch or break times; provided however, that personal vehicles parked on city property may only be inspected or searched by law enforcement personnel based on probable cause. 4. FAILING A DRUG TEST: is defined as a confirmation of initial test results which show positive evidence of the presence of an illegal drug or unauthorized controlled substance in the body. 5. PASSING A DRUG TEST: is defined as initial or confirmation test results which do not show evidence of the presence of an illegal drug or unauthorized controlled substance in the body. 6. DETECTABLE LEVEL: is defined as a quantity of a drug or drug metabolite equal to or greater than the detection limit for that substance as established by the testing laboratory, with the Chief's and Union's approval. E. DISCIPLINARY ACTION FOR VIOLATIONS OF THIS POLICY 1. The following violations of this policy shall be grounds for termination. a. unauthorized possession, use, manufacture, distribution or sale of any illegal drug, drug paraphernalia or controlled substance while on duty, in a City vehicle or on break time or, b. use without authorization of alcohol while on duty or while occupying any City vehicle or during break period, c. failing a drug test administered under this policy. 2. Any firefighter who violates any other provisions of this policy shall be disciplined up to and including termination. 3. No firefighter may be disciplined for reporting to duty when ordered to do so, if the firefighter has disclosed any consumption of alcohol during his/her off duty hours. F. DRUG TESTING Drug testing will be conducted using a laboratory certified by the Department of Health and Human Services (NIDA). Chain -of- custody procedures will be followed to account for the integrity of each urine sample by tracking its handling and storage from point of specimen collection to final disposition of the specimen. Each specimen submitted for testing under this policy shall be split and a sample shall be reserved for an independent analysis in the event of a positive result. 57 Each specimen submitted for testing under the testing provision of this policy with the exception of pre - employment, will be assayed for the presence of the following compounds. EMIT SCREEN GC -MS CONFIRMATION DETECTION LEVEL DETECTION LEVEL DRUG GROUP ng /ml* ng /ml* Amphetamine 1,000 500 Barbiturates 300 -1000 200 Benzodiazepines 300 200 Cocaine Metabolites 300 150 Marijuana 50 15 Metabolites 300 300 Methadone 300 200 Methaqualone 300 200 Opiate Metabolites 300 300 Phencyclidine 25 25 Propoxphene 300 200 *nanograms /milliliter The laboratory will also assay each specimen for signs of possible adulteration. Specimen alteration assays will consist of two or more of the following: * Creatinine * Chloride * Specific Gravity * Ph Pre - employment testing shall utilize the SAP 10. The initial test (also known as a screening test) shall be a enzyme immunoassay screen (EMIT) to eliminate "negative" urine specimens from further consideration. If the initial test indicates a positive result, a confirmation test by gas chromatography /mass spectrometry (GC/MS) will be used to confirm the presence of a specific drug or metabolite. The confirmation test shall be independent of the initial test and uses a different technique and chemical principle from that of the initial test in order to ensure reliability and accuracy. For classes of drugs where GC/MS is not an approved confirmation procedure, an alternative confirmation test will be used. 58 The Chief shall designate a Testing officer with full authority to order personnel compliance to oversee the integrity of the drug testing procedures and general administration of this policy. The Testing Officer's specific responsibilities and duties shall be established by the Chief. Drug testing under this policy will include: 1. Pre - employment: All job offers are contingent upon passing a drug test. Applicants who fail a drug test will be ineligible to apply for employment in the future. 2. Post - accident: Any firefighter, up to and including the Fire Chief, who, while operating a City vehicle, is involved in an accident, shall submit to drug and alcohol testing. The test shall be performed as soon as possible. 3. Reasonable Suspicion: If individualized reasonable suspicion exists that any firefighter has used or possessed an illegal drug or unauthorized controlled substance or has violated the alcohol - related provisions of this policy, the Chief may order the firefighter to submit a urine and/or blood specimen for alcohol and/or drug testing. 4. Random Testing: The Fire Department shall be divided into 45 groups consisting of the following work sites or groups: Administrative Offices (Includes the City Manager, Human Resources Director, and Fire Chief) Training Center Fire Prevention & Arson Investigation Each Station will consist of 3 separate groups (A, B, & C shifts) Three additional groups will be added upon opening of a new station. Random drug testing shall occur by the random selection of one of the above work groups or sites. The testing agency shall provide a computer -based random selection of the group to be tested each month. Two groups will be selected and tested each month. The Chief, or designee, will notify the employees selected for a test within no more than three (3) hours of the testing. Any firefighter either permanently or temporarily assigned, including members working trades for regular firefighters, shall be subject to testing. All testing will be conducted on site except for personnel assigned to Training, Fire Prevention & Arson, and Administration. Personnel not tested on site will be required to report to a designated lab within 3 hours of notification by their supervisor. Employees on vacation, sick leave, other leave, or on City business outside the city, will not be notified or have to take the test. G. COMPLIANCE WITH POLICY 1. Applicants and firefighters subject to testing will have the opportunity to submit a list of prescription and non - prescription drugs they have used in the last thirty (30) days and to explain 59 the circumstances surrounding the use of such drugs to the MRO before a decision regarding test results is made. 2. Any firefighter who has agreed in connection with a prior violation of this policy to submit to random testing for a prescribed period of time (maximum of one (1) year) may be tested as described in the agreement signed by the firefighter. 3. A firefighter with an alcohol content of .04% will be presumed to be under the influence of alcohol for purposes of this policy. 4. If the Medical Review Officer's (MRO) review of drug test results indicates a legitimate medical explanation for the confirmed positive test result, no further action will be taken against the firefighter and an applicant will be eligible for hire. If the MRO's review determines there is no legitimate medical explanation for the confirmed positive test result, the firefighter will be subject to disciplinary action up to and including discharge upon the first offense. H. MEDICAL REVIEW OFFICER The Medical Review Officer (MRO) for the City of Corpus Christi will be a City's Medical Advisor or any physician designated by the City Manager who is a licensed physician with knowledge of drug abuse disorders and certified as a Medical Review Officer for drug testing. The MRO shall review all drug testing results he/she receives and interpret confirmed positive test results to determine if there is an alternative medical explanation of the confirmed positive result. I. ALCOHOLISM AND DRUG ADDICTION While occasional or "social" use of drugs and alcohol can become detrimental to the workplace and to personal health, we recognize that alcoholism and drug addiction are medical disorders which can be treated. The City of Corpus Christi believes it has a responsibility to provide assistance to our employees through the Employee Assistant Program, but the initiative in seeking such help is the responsibility of the firefighter. Firefighters who voluntarily seek diagnosis and accept treatment for alcohol or drug- related problems before the problem becomes evident, will be offered rehabilitation help on a strictly confidential basis using the leave policies currently available for other health - related problems. Whether voluntary or mandatory rehabilitation is required, these costs are the responsibility of the firefighter. Medical Plan Insurance may be used to the extent provided under the individual's health insurance coverage. If misconduct or declining job performance brings illegal or non- prescribed drug or alcohol abuse problems to light, the firefighter will be subject to appropriate disciplinary action. 60 J. IMPLEMENTATION OF DRUG -FREE AWARENESS PROGRAM The Drug -Free Awareness Program will provide an ongoing education effort for the firefighters to prevent and eliminate drug and alcohol abuse that may affect the workplace. This program will cover: 1. The dangers of alcohol and drug abuse in the workplace; 2. This Alcohol and Drug Policy; 3. The availability of treatment and counseling for firefighters voluntarily seeking such counseling through the Employee Assistance Program; and 4. The discipline which will be imposed for violations of this policy. Supervisors are the "keys" to successfully implementing this policy. Initial and ongoing supervisory training will be mandatory for supervisors and will cover the following areas: 1. Identifying and documenting job performance and on-the-job behavior which may reflect the impact of personal problems; 2. Identifying evidence of on-the-job use or presence of alcohol or drugs; 3. Procedure for referral of troubled firefighters to the Employee Assistance Program; 4. Procedure for testing firefighter suspected of violating this policy; 5. Constructive confrontation techniques; 6. Orientation on drug procedures and technology; and 7. Procedures for conducting workplace inspections. Cadets will be trained on this Policy at the Academy and new supervisors will be trained through recurring sessions provided on the Training calendar. K. RECORDS PROCEDURES 1. RELEASE OF INFORMATION: Requests for employment verification or references for an individual terminated under this policy shall be forwarded to the Human Resources Department for response. For Texas Employment Commission hearing on granting unemployment insurance, the City will cite a rules violation as the reason for termination and will supply a copy of the letter of termination which states specific reasons. Where there is doubt about the release of information, the Legal Department shall be consulted for guidance. 2. REPORTING CONVICTION TO FEDERAL AGENCY: In compliance with the Drug Free Workplace Act, the Human Resources Department will notify the appropriate federal agency within ten (10) days after receiving notice from the firefighter of a conviction under criminal drug statutes. 61 APPENDIX "A" DUES DEDUCTION AUTHORIZATION INTERNATIONAL ASSOCIATION OF FIREFIGHTERS, LOCAL UNION NO. 936 Dues Title Code Payroll No. Employee No. Code No. Name (Last) (First) (MI) Social Security No. Address Zip Code I hereby authorize the City of Corpus Christi to deduct, each pay period, the sum of $ as certified by the International Association of Firefighters, Local 936, as the current rate of dues or an amount as may hereafter be established by the International Association of Firefighters, Local 936, as dues. This deduction is to be forwarded directly to the International Association of Firefighters, Local 936. The authorization of this deduction is entirely voluntary on my part. I understand that the City of Corpus Christi will be obligated to forward to the Association only those sums actually deducted and will not be liable for damages to me for failure to deduct any authorized sum for any reason. Signed Date 62 APPENDIX "B" SPECIAL ASSESSMENT DEDUCTION AUTHORIZATION INTERNATIONAL ASSOCIATION OF FIREFIGHTERS, LOCAL UNION NO. 936 Assessment Title Code Payroll No. Employee No. Code No. Social Name Security No. (Last) (First) (MI) Address Zip Code I hereby authorize the City of Corpus Christi to deduct a special assessment in the sum of $ as certified by the International Association of Firefighters, Local Union No. 936, for the express purpose of . The authorization of this special assessment deduction is entirely voluntary on my part. I understand that the City of Corpus Christi will be obligated to forward to the Association only those sums actually deducted and will not be liable for damages to me for failure to deduct any authorized sum for any reason. Signed Date 63 APPENDIX "C" TERMINATION OF REGULAR OR SPECIAL DUES DEDUCTION AUTHORIZATION INTERNATIONAL ASSOCIATION OF FIREFIGHTERS, LOCAL UNION NO. 936 Dues Title Code Payroll No. Employee No. Code No. Social Name Security No. (Last) (First) (MI) Address Zip Code I hereby terminate the authorization previously executed by me on (date) for dues deduction for the International Association of Firefighters, Local Union No. 936, and request that the City make no further ( ) regular or ( ) special dues deductions under said authorization. This termination of dues deduction is entirely voluntary on my part, and I understand that the City of Corpus Christi will not be liable for failure to promptly effectuate this termination for any reason. Signed Date 64 APPENDIX "D" THE FORMULAS DESCRIBED BELOW ARE A CONCEPTUAL DESCRIPTION OF THE CALCULATIONS AND DO NOT DESCRIBE THE EXACT COMPUTER PAYROLL PROCESS. A. CALCULATING FIRE SUPPRESSION OVERTIME PAY BASED ON 27 DAY WORK PERIOD In a 52 week, 365 day year, each suppression firefighter is scheduled to work a 24 hour shift every three days which equates to nine 24 hour shifts in each 27 day work period. Using the FLSA 7(k) exemption, overtime for cycle hours is due for hours actually worked from 204 to 216 hours in a 27 day work period. The "Add Pays" included in the calculations below are applicable longevity, assignment and certification pays listed in . - _ Article V WAGES in the " Auhust 1. 2011 to 2014 Collective Bargaining Agreement bet ;een the Cita of Corpus Christi and the Corpus as per the 1989 overtime grievance resolution plus education incentive pay, the EMS supervisory officers pay, and the Assistant EMS Director pay when applicable. 1. TO COMPUTE CYCLE AND HOLIDAY OVERTIME PAY: Annual Base Salary + Annual "Add Pays" 26 Pay Periods Pay Period Salary w/ "Add Pays" 80 Hours Per Contract Pay Period Salary w/ "Add Pays" 108 Hours Pay Period Salary w/ "Add Pays" Hourly Cycle/Holiday Rate Dock Rate (Regular rate) (Hourly Cycle/Holiday Rate) x (1.5) - (Dock Rate) = Cycle/Holiday Overtime Rate (Cycle/Holiday Overtime Rate) x (No. of Cycle Hours Worked) = Cycle Overtime Pay (Cycle/Holiday Overtime Rate) x (No. of Holiday Hours Worked) = Holiday Overtime Pay 2. TO COMPUTE OTHER OVERTIME PAY(HOLDOVER AND CALLBACK): Annual Base Salary + Annual "Add Pays" 26 Pay Periods = Pay Period Salary w/ "Add Pays" Pay Period Salary w/ "Add Pays" 90 Hours Per Contract = Hourly Call Back/Holdover Rate (Hourly Call Back/Holdover Rate) x (1.5 ) = Call Back/Holdover Overtime Rate (Call Back/Holdover Overtime Rate) x (Call Back Hours)# = Call Back Overtime Pay (Call Back/Holdover Overtime Rate) x (Holdover Hours) = Holdover Overtime Pay 65 # Call Back is for time worked or 3 hour minimum as per contract. B. CALCULATING OVERTIME PAY FOR TRAINING/PREVENTION & 40 HOUR EMPLOYEES 1. TO COMPUTE HOLIDAY OVERTIME PAY: Annual Base Salary + Annual "Add Pays" 26 Pay Periods Pay Period Salary w/ "Add Pays" 80 Hours per Pay Period (Dock Rate) x (1.5) - (Dock Rate) Pay Period Salary w/ "Add Pays" Dock Rate (Regular Rate) Holiday Overtime Rate (Holiday Overtime Rate) x (No. of Holiday Hours Worked) = Holiday Overtime Pay 2. TO COMPUTE OTHER OVERTIME PAY FOR TRAINING/PREVENTION & 40 HOUR EMPLOYEES ( CALLBACK ): Annual Base Salary + Annual "Add Pays" 26 Pay Periods Pay Period Salary w/ "Add Pays" Pay Period Salary w/ "Add Pays" 80 Hours Per Pay Period = Dock Rate (Regular rate) (Dock Rate) x (1.5) = Call Back Overtime Rate (Call Back Overtime Rate) x (Call Back Hours)# Call Back Overtime Pay # Call Back is for time worked or 3 hour minimum as per contract. 66 APPENDIX "E" CALCULATING "DRAG -UP PAY" (VACATION AND SICK LEAVE) AND VACATION LEAVE SELL BACK FOR FIRE EMPLOYEES Pursuant to the Arbitration Award of Arbitrator Don B. Hays, dated October 19, 1988, in AAA Case No. 71 390 0187 88, Corpus Christi Firefighters Association and City of Corpus Christi, the Collective Bargaining Agreement on Wages overrides the statutory calculation of payment of accrued sick leave on separation. The components of wages contractually agreed to be used in determining the hourly rate for payment of "drag -up pay" for eligible accrued vacation and sick leave are applicable monthly base salary, longevity, certification and assignment pays listed in Article V WAGES of the August 1, 2004 ?u1\ 31, 20 33 August 1, 2011 to !u1 31 2014 Collective Bargaining Agreement bet;een the City, of Corpus Christi and the Corpus Christi titers' Association plus the EMS supervisory officers pay and the Assistant EMS Director pay when applicable and excludes any other pays in any other Articles of that or subsequent Agreements. The Award also requires the city to use the average 54 hours per week for 24 hour shift employees to determine the hourly rate for drag -up pay. The formula below shall also be used to compute the amount paid for Vacation Leave Sell Back under Article 12 Section 8. 1. TO COMPUTE 24/48 HOUR SHIFT EMPLOYEE "DRAG -UP PAY" AND VACATION LEAVE SELL BACK HOURLY RATE: (Annual Base Salary) + (Annual Longevity, Assignment, and Cert ification Pay) * = Hourly Drag Up Rate (26 Pay Periods) x (54 hours /week) x (2 weeks /pay period) 2. TO COMPUTE 40 HOUR EMPLOYEE "DRAG -UP PAY" AND VACATION LEAVE SELL BACK HOURLY RATE: (Annual Base Salary) + (Annual Longevity, Assignment, and Cert ification Pay) * = Hourly Drag Up Rate (26 Pay Periods) x (40 hours /week) x (2 weeks /pay period) * Applicable wage components listed in Wa Article V WAGES, Section 1 -4, in Jule 31, 2111 flat At €01 st 1, 2011 to )u.1e% 31� 2014 Collective Bargaining Agreement between the Citv or Corpus Cltristi and the Corpus Christy l irefi htcrs' Association plus applicable EMS supervisory officers pay and Assistant EMS Director pay as described above. 67 APPENDIX "F" Title: Call Back Procedures Corpus Christi Fire Department Standard Operating Procedures No. 101.09 I. PURPOSE: To establish standard procedures and guidelines for utilizing the Fire Department call-back list. IL SCOPE: These instructions apply to call back situations as applicable. III. DEFINITIONS: A. Daily Staffing List: A list composed of firefighters needed to fulfill the Daily Staffing levels of normally assigned units. B. Daily Eligibility List: A daily list composed of the top eligible firefighters from the Daily Staffing List. C. Special Events List: A list composed of firefighters needed to fulfill positions for planned events. D. Special Events Call Back: Planned, anticipated events that allow the Department adequate time for scheduling. Examples may include such situations as jury duty, parades, etc. E. Holdover: A requirement for a firefighter to remain on duty after the completion of their normal shift for the purposes of determining morning staffing levels and completing those assignments. Additionally, a "holdover" may be used to augment staffing during promotional exams, and other short term assignments. F. Emergency Call Backs: A mandatory requirement to report to work in the event of an emergency or other situation as declared by the Fire Chief or his/her designee. Recognizing that both the citizens and on duty firefighters at the scene need immediate assistance, the Department may utilize any means necessary to initiate this assistance. Firefighters called in on an emergency call back will not lose their place on any call back list. IV. RESPONSIBILITY: A. It shall be the responsibility of the Fire Chief or his/her designee to ensure that this policy is adhered to when initiating a Call Back. B. Fire Department personnel have the responsibility and duty to report to work when contacted and advised that an emergency exists or has been declared by the Fire Chief, or his representative. 68 C. Failure of an employee to respond to a call back during an emergency without being excused by the Fire Chief, First Assistant Chief or the Shift Commander may result in disciplinary action being brought against said employee. V. CALL BACK LISTS: A call back list will be created for "Special Events" and a separate list for "Daily Staffing ". A firefighter's position on the Special Events List will not affect his/her position on the Daily Staffing List or vice versa. (Example: a firefighter is called back for a parade for three hours and consents to work. He /she remains in his/her position on the Daily Staffing List) VI. GENERAL: A. Each call back list shall include the name, rank, certifications (EMT, Paramedic, etc) and qualifications (assigned Rescue, HazMat, etc.) of all members of the shift. Firefighters who do not wish to be assigned to the Special Events List shall notify the Fire Chief in writing. B. Each callback list shall contain firefighters' permanent home telephone numbers. Pagers or cell phone are not permitted. The Department will not leave messages on answering machines, nor will the Department relay messages through a third party. C. Firefighters shall be called back in numerical order from the first position on a call back list to the last position on the list. After 8:00 a.m. vacancies will be filled by calling back a firefighter to complete the shift at the station in which the vacancy occurs. This will be accomplished by calling back the first firefighter on the list that is able to fill a position in the station in which the vacancy occurs, which will be a firefighter of equal or lower rank than the vacant position. Once a firefighter has been called back and works overtime, or declines a Special Events callback, his/her name shall be placed in the last numerical position on the applicable list. D. A firefighter reassigned to another shift shall be added to the call back list for that shift in the same numerical position held on the list before reassignment. In the event that more than one such firefighter is reassigned with the same numerical position on the applicable callback list, placement shall be by lot. A probationary firefighter will be placed in the last numerical position on the applicable callback list for his/her assigned shift, provided that placement order at the bottom of the list shall be by lot. E. For call backs that require staffing by specific rank, certification, or qualification, only firefighters on the applicable callback list who possess the needed rank, certification, or qualifications shall be eligible for the callback. F. For EMS callbacks, Firefighter 1 Paramedics, and FFII EMT and EMT -P's assigned to EMS and are qualified as per Article VI, Section 1 of the Collective 69 Bargaining Agreement shall be considered eligible. Firefighter I Paramedics who have served five years as a FFII EMS will not be called back for EMS staffing. Medic unit staffing shall include at least one paramedic. G. FFII EMS personnel routinely perform fire suppression duties (tailboard) in addition to EMS duties. For purposes of this policy, FFII EMS personnel shall be utilized in either position, however, FFII EMS personnel, when performing a call back, shall not be assigned to a FFII Engineer position. H. Personnel who are not immediately available to answer the telephone will be considered "unable to contact ". L Firefighters who on sick leave will not be eligible for overtime until reporting back to duty, or to other scheduled leave (vacation, Kelly, PL, etc.). VII. DAILY STAFFING GUIDELINES: A. This procedure will be used when the Fire Chief or his designee determines it is necessary to utilize the call back list to maintain the daily staffing needs of the Department. This list shall be a separate list from the Special Events list. B. To maintain daily staffing levels, this procedure will utilize personnel in their numerical order on the Daily Staffing List, and not rank for rank. The Fire Chief' s designee will make every attempt to utilize the list in the numerical order, with the exception of situations where the firefighter would be required to perform in a lower rank except as noted in paragraph VI -G. C. It is the responsibility of each firefighter to be adequately prepared to immediately report to duty when called back for Daily Staffing. If the firefighter is unable to immediately report to duty (upon being properly relieved,) to the assigned station, the firefighter shall be considered to have refused and his/her name shall be placed at the bottom of the Daily Staffing List. D. Firefighters who are called in for an overtime assignment must report to, and complete the assignment in person. Firefighters who are on approved leave shall not be considered for Daily Staffing callback. Standby periods for up to four hours are acceptable, provided that the firefighter that accepts the callback assignment is available to report to the assigned Station immediately. E. Firefighters may not perform the duties of those in a lower rank except as noted in paragraph VI. -G., i.e., a Captain will not be called in to fill a FFI assignment, etc. F. Firefighters who have been previously scheduled to "act" may be reassigned to accommodate a firefighter who is called back for daily staffing. Reassignment is at the discretion of the Fire Chief's designee. G. An EMS Supervisor vacancy shall be filled by using a Firefighter II EMS assigned to the shift and approved to act as EMS Supervisor. 70 H. Firefighters shall not be assigned to a medic unit when called in for daily staffing call back if the firefighter has worked a twenty four hour shift on a medic unit immediately preceding the call back. VIII. Daily Staffing Procedure: Firefighters shall have the right to refuse assignment for Daily Staffing without jeopardizing their position on the call back list except in situations as listed below. A. As per the Collective Bargaining agreement, firefighters should notify the Shift Commander on duty, immediately when the employee knows he /she will be absent on account of illness. If such determination is made by the employee past midnight, it is acceptable to report the illness between 6:30 a.m. and 7:00 a.m. In all cases, a report of illness should be made no later than 7:00 a.m. B. During each shift the Shift Commander shall make arrangements to fill anticipated, scheduled vacancies for the following shift by reassigning firefighters, and /or assigning firefighters to "act ". This list will be left available for the off -going Shift Commander to utilize for call back. C. At morning roll call, the Station Captain shall furnish the Shift Commander with the names of firefighters under his/her command who are declining to work overtime the following shift. The Shift Commander shall publish a list of the top eligible firefighters available for callback for Daily Staffing prior to noon. The number of firefighters on the list will be dependent on the anticipated needs of the Department. The Shift Commander shall provide the names of ten firefighters above the number anticipated to be needed. For example, if the shift is anticipated to be three firefighters short, the Shift Commander shall publish a list of the top thirteen eligible firefighters. These firefighters shall remain on duty until 8:00 a.m. so as to be available for callback assignment. D. Once the Daily Eligibility List is posted and a change occurs in the firefighter's eligibility status, he /she must contact the Shift Commander as soon as possible; but no later than 10:00 p.m. A change in condition, or refusal that occurs between the hours of 10:00 p.m., and 8:00 a.m. will result in the firefighter's name being placed at the bottom of the Daily Staffing list (the firefighter will be placed at the bottom of the list if the number of needed callbacks meets or exceeds his/her number /position on the list. This cannot be determined until after sick calls have been taken). E. Top eligible firefighters who previously declared available for callback and have not remained available at their station when contacted by the Shift Commander will be placed at the bottom of the list. The morning announcement of "0800 morning roll call" will serve as the official time for purposes of being placed at the bottom of the Daily Staffing List. In the event "8:00 a.m. Roll Call" is not announced at the appropriate time, the Station Captain should contact the District Chief. 71 Firefighters on the Daily Eligibility List who have remained available at their station after 08:00 a.m. may be contacted for callback, if a staffing need arises. If contacted after 8:00 a.m., these personnel may reject the assignment without loss of position on the Daily Staffing list. F. Should a vacancy occur following the 8:00 a.m. roll call, the Shift Commander may attempt to contact those firefighters available at their stations for Call Back. If unsuccessful, the Special Events list should be used. G. The Shift Commander shall make every effort to notify personnel that they will be used on a callback as early as possible. H. The Special Events List shall be utilized to fill vacancies that occur after 8:00 a.m., (except as noted in VIII.F) L Firefighters shall be called back in their numerical order on the call-back list and not rank for rank. IX. SPECIAL EVENTS LIST: A. Special events will include callbacks for events that allow the Department adequate time for scheduling. This will include jury duty, parades and other planned events. This list shall also be used for staffing regularly assigned apparatus after 8:00 am., (except as noted in VIII.F) B. Once a firefighter is called back for overtime on a scheduled event, or refused an offer for callback, his/her name will be placed at the bottom of the Special Events List. However, his/her name will remain unaffected on the Daily Staffing List. C. Firefighters will be called back for Special Events in a timely manner whenever possible. To accommodate the needs of the Department and the needs of the Firefighter, the call back will be scheduled as far in advance as practical. Additionally, there is no requirement to be on duty for a complete shift to be called back for a future Special Event. X. DIRECTIONS FOR COMPLETING CALL BACK LISTS: A. The person making the calls will enter the correct code; date (mm- dd -yy), time, and his/her own initials. Actual time contacted shall be noted. B. The Fire Chief's designee will ensure that the list is updated after each use and will provide an updated list to the First Assistant Chief and to the Union within 48 hours. 72 C. The OFF -GOING SHIFT is the shift which shall be contacted first during a CALL BACK. D. On duty shift Shift to Contact A C B A C B E. Each Special Event requiring a call back is a new incident and will require beginning at the top of the list. This will insure that firefighters who had previously been contacted/or attempted to be contacted, but remained in their position on the list are first called. Starting at the top, contact each firefighter who does not have a C.R. (refused), or a C.W. (worked) by their name. In the event additional firefighters are needed during the shift for Daily Staffing, the Shift Commander shall not start over at the top of the Special Events list, but shall begin after the last contacted firefighter. F. During an emergency, personnel living outside the city limits may be excluded from a call back as per Article IV, Section 4 of the Collective Bargaining Contract. G. The following codes should be used when noting the status of a contact attempt: CODE EXPLANATION REMAIN IN POSITION ON LIST 1. C.R. Contacted— refused yes, Daily Staffing no, Special Events 2. C.W. Contacted, and worked no 3. C.L. Contacted, but on leave yes 4. I.P.N. Incorrect phone # yes 5. U.C. Unable to contact yes 6. C.T. Contacted, but on Trade yes 7. C.U. Contacted, unable yes 73 • Definition, Leave: A firefighter is off work due to any scheduled leave including sick, vacation, personal, kelly, injury, training or other approved scheduled leave. • Definition: "Contacted, Unable" shall indicate the firefighter cannot accept the callback assignment due to previously assigned official Department business, i.e., schools, etc. • The Fire Chief shall be notified at any time a firefighter refuses to report to duty as ordered for an emergency callback. • Definition of refused: The firefighter cannot report to work for personal reasons, and the firefighter is not on an approved leave as described above. H. To facilitate callbacks requiring use of EMS certified personnel, a code shall be placed next to the rank of each firefighter on the list: a. "P" shall designate Firefighter I and Firefighter II EMS personnel who are qualified as per Article VI, Section 1 of the Collective Bargaining Agreement. In addition, FFI's who have previously served five years as a FFII EMS will not be required to work an EMS callback, and will not have a "P" designation. b. "E" shall designate FFII EMT's who are qualified as per Article VI, Section 1 of the Collective Bargaining Agreement. 74 Date: CASE NO.: APPENDIX "G" GRIEVANCE FORM Name Title I have discussed this complaint with my supervisor, and received his verbal answer on (date) . Because this answer is unacceptable to me, I wish to file my grievance complaint to Step 2. 1. Brief Statement of Grievance and the Facts or Events on which Grievance is Based: 2. Section(s) of contract alleged to be violated: 3. Remedy or adjustment sought by Grievant/Union: Grievant/Union Grievance Committee Chairman Date (Chairperson)/Union President's Signature Union Grievance Committee Chairman (Chair- Date Received person) /Grievance Committee Member Fire Chief or Designee Date Received *Submit all prior Grievance and Response Forms together at each Step on the Grievance Process 75 CASE NO.: RESPONSE OF UNION GRIEVANCE COMMITTEE STEP2 Name Title On day of , 200 , the Grievance Committee met to consider the attached Grievance and made the following determination. This is a valid grievance and should proceed to Step 3. No valid grievance exists and no further proceeding is necessary. Union Grievance Committee Chairman Date (Chairperson) /Grievance Committee Member Fire Chief or Designee Date Received *Submit all prior Grievance and Response Forms together at each Step on the Grievance Process. 76 CASE NO.: RESPONSE OF FIRE CHIEF STEP 3 Name Title Response: (Attach additional pages if necessary) Fire Chief Union Grievance Committee Chairman (Chairperson) /Grievance Committee Member Date Date Received The Grievance is not resolved at Step 3 and is submitted by the Union Grievance Committee to the City Manager for a Response at Step 4. City Manager's Office Date Received *Submit all prior Grievance and Response Forms together at each Step on the Grievance Process. 77 CASE NO.: RESPONSE OF CITY MANAGER STEP 4 Name Title The attached Grievance being received on , 200__, the following is the City Manager's Response: City Manager Date Grievance Committee Chairman Date Received (Chairperson) /Grievance Committee Member *Submit all prior Grievance and Response Forms together at each Step on the Grievance Process. 78 AGENDA MEMORANDUM Future Item for the City Council Meeting of August 14, 2012 Action Item for the City Council Meeting of August 21, 2012 DATE: August 21, 2012 TO: Ronald L. Olson, City Manager FROM: Constance P. Sanchez, Director of Financial Services ConstanceP ©cctexas.com (361) 826 -3227 Authorization for the Issuance of Utility System Revenue Bonds CAPTION: A. Motion authorizing the appointment of M. E. Allison, & Co., as Financial Advisor for one or more series of City of Corpus Christi, Texas Utility System Revenue Bonds, in an aggregate principal amount not to exceed $75,000,000. B. Ordinance authorizing the issuance of one or more series of City of Corpus Christi, Texas Utility System Revenue Bonds, in an aggregate principal amount not to exceed $75,000,000, pursuant to the delegation provisions set forth herein; making provisions for the payment and security thereof of a parity with certain currently outstanding Utility System revenue obligations; stipulating the terms and conditions for the issuance of additional revenue bonds on a parity therewith; prescribing the forms, terms, conditions, and resolving other matters incident and related to the issuance, sale and delivery of each series of bonds; including the approval and distribution of one or more Official Statements pertaining thereto; authorizing the execution of one or more paying agent /registrar agreements, one or more escrow agreements, and one or more purchase contracts; complying with the requirements imposed by the letter of representations previously executed with the depository trust company; establishing the City's intention to reimburse itself from the proceeds of any such series of bonds for the prior lawful expenditure of funds to construct various City improvements; delegating the authority to the Mayor and certain members of the City staff to execute certain documents relating to the sale of each series of bonds; and providing an effective date. PURPOSE: The City plans on issuing up to $75,000,000 of Utility System Revenue Bonds to fund utility projects outlined in Year 1 of the Fiscal Year 2013 Capital Improvement Plan. BACKGROUND AND FINDINGS: Part A: Issuance of bonds requires utilization of a financing team which is made up of three parts: the financial advisor, bond counsel, and the underwriting syndicate. Part A of this agenda item authorizes the appointment of M. E. Allison & Co., Inc. as financial advisor for this transaction. See Exhibit A for the Financial Advisor's fee schedule. Fulbright & Jaworski L.L.P. is currently under contract with the City to serve as the City's bond counsel and will serve as the second part of our financing team. The third part of the financing team is the underwriters, and selection of the syndicate of underwriters from the City's pool of approved underwriters is being recommended for delegation to the Mayor, City Manager, Assistant City Manager, and Director of Financial Services in Part B of this agenda item. Part B: With the beginning of the new fiscal year, it is the City's intent to fully fund the utility projects outlined in Year 1 of the Fiscal Year 2013 Capital Improvement Plan (CIP) with Utility System Revenue Bonds. Included in these bonds will be funding for capital expenditures related to the acquisition, construction, equipping, or furnishing of any project or facility related to the City's Combined Utility System. Because of the fluctuating conditions in the municipal bond market, our financial advisor has recommended that the City Council delegate to the Mayor, City Manager, Assistant City Manager for General Government and Operations Support, and the Director of Financial Services (the "Delegated Officials ") the authority to effect the sale of the bonds subject to the following parameters: (1) the principal amount of each series of bonds may not exceed $75,000,000; (2) none of the bonds shall bear interest at a rate greater than 7% per year, and (3) the bonds must have a rating issued by a nationally recognized municipal securities ratings organization in one of the four highest rating categories. The City's bond counsel has confirmed that the City can delegate the sale of the bonds to the Delegated Officials in the manner outlined above pursuant to the authority contained in Chapter 1371, as amended, Texas Government Code. In addition, this ordinance gives the City the authority to reimburse itself from bond proceeds for qualifying expenditures. In order to adhere to the time schedules to insure timely completion of the CIP projects, the City must move forward with contracts prior to the completion of the final closing on the bonds. These amounts will not exceed $75,000,000. For the City to be eligible for reimbursement of any expenditure incurred prior to the bond sale, the City must declare its intent to reimburse itself for payments made prior to the bonds being sold. This action must meet specific U. S. Treasury Regulations and requires approval by the City Council. ALTERNATIVES: An alternative funding mechanism would be to use the Commercial Paper Program as interim financing for the utility projects. However, it is the City's intent to discontinue the use of the Commercial Paper Program and issue utility revenue bonds at the beginning of the fiscal year instead to better manage the expenditures related to the CIP utility projects. OTHER CONSIDERATIONS: n/a FINANCIAL IMPACT: ❑ Not Applicable ❑ Operating Expense X Revenue ❑ CIP FISCAL YEAR: Project to Date Exp. (CIP Only) Current Year Future Years TOTALS Budget - $75,000,000 - $ 75,000,000 Encumbered /Expended amount of (date) - - - This item - $75,000,000 - $ 75,000,000 BALANCE - - - - FUND(S): CIP Funds COMMENTS: n/a RECOMMENDATION: Staff recommends approval of the motion and ordinance as presented. CONFORMITY TO CITY POLICY: This item conforms to City policy. EMERGENCY / NON-EMERGENCY: Issuance of municipal obligations are exempted from the City's charter provision regarding dual reading and /or emergency adoption provisions pursuant to the provisions of Section 1201.028, as amended, Texas Government Code. DEPARTMENTAL CLEARANCES: • Bond Counsel • Legal Department LIST OF SUPPORTING DOCUMENTS: Exhibit A — Financial Advisor Fee Schedule Ordinance cc: Lisa Aguilar, Assistant City Attorney Eddie Houlihan, Assistant Director of Management and Budget Margie C. Rose, Assistant City Manager (�. slaw. Jac. 1 NVESTMENT BANKERS FINANCIAL ADVISORY FEE SCHEDULE GENERAL OBLIGATION BONDS More than And Not More than $ $ 250,000 $7,500 plus $20.00 per $1,000 for all over $150,000 250,000 350,000 $9,500 plus $10.00 per $1,000 for all over $250,000 350,000 500,000 $10,500 plus $8.00 per $1,000 for all over $350,000 500,000 700,000 $11,700 plus $7.00 per $1,000 for all over $500,000 700,000 1,000,000 $13,100 plus $6.00 per $1,000 for all over $700,000 1,000,000 1,500,000 $14,900 plus $5.00 per $1,000 for all over $1,000,000 1,500,000 5,000,000 $17,400 plus $3.00 per $1,000 for all over $1,500,000 5,000,000 10,000,000 $27,900 plus $1.65 per $1,000 for all over $5,000,000 10,000,000 20,000,000 $36,150 plus $1.00 per $1,000 for all over $10,000,000 20,000,000 No Limit $46,150 plus $0.85 per $1,000 for all over $20,000,000 REVENUE BONDS AND COMBINATION TAX & REVENUE CERTIFICATES OF OBLIGATION In the event the Bonds to be issued are Revenue Bonds or Combination Tax and Revenue Certificates of Obligation, Refunding, Direct Pay Subsidy or Lease Purchase Obligations, the fee shall be the amount computed from the above schedule, plus 25 %. EXHIBIT A AGENDA MEMORANDUM Future Item for the City Council Meeting of August 14, 2012 Action Item for the City Council Meeting of August 21, 2012 DATE: August 21, 2012 TO: Ronald L. Olson, City Manager FROM: Constance P. Sanchez, Director of Financial Services ConstanceP ©cctexas.com (361) 826 -3227 Authorization for the Issuance of Utility System Revenue Bonds CAPTION: A. Motion authorizing the appointment of M. E. Allison, & Co., as Financial Advisor for one or more series of City of Corpus Christi, Texas Utility System Revenue Bonds, in an aggregate principal amount not to exceed $75,000,000. B. Ordinance authorizing the issuance of one or more series of City of Corpus Christi, Texas Utility System Revenue Bonds, in an aggregate principal amount not to exceed $75,000,000, pursuant to the delegation provisions set forth herein; making provisions for the payment and security thereof of a parity with certain currently outstanding Utility System revenue obligations; stipulating the terms and conditions for the issuance of additional revenue bonds on a parity therewith; prescribing the forms, terms, conditions, and resolving other matters incident and related to the issuance, sale and delivery of each series of bonds; including the approval and distribution of one or more Official Statements pertaining thereto; authorizing the execution of one or more paying agent /registrar agreements, one or more escrow agreements, and one or more purchase contracts; complying with the requirements imposed by the letter of representations previously executed with the depository trust company; establishing the City's intention to reimburse itself from the proceeds of any such series of bonds for the prior lawful expenditure of funds to construct various City improvements; delegating the authority to the Mayor and certain members of the City staff to execute certain documents relating to the sale of each series of bonds; and providing an effective date. PURPOSE: The City plans on issuing up to $75,000,000 of Utility System Revenue Bonds to fund utility projects outlined in Year 1 of the Fiscal Year 2013 Capital Improvement Plan. BACKGROUND AND FINDINGS: Part A: Issuance of bonds requires utilization of a financing team which is made up of three parts: the financial advisor, bond counsel, and the underwriting syndicate. Part A of this agenda item authorizes the appointment of M. E. Allison & Co., Inc. as financial advisor for this transaction. See Exhibit A for the Financial Advisor's fee schedule. Fulbright & Jaworski L.L.P. is currently under contract with the City to serve as the City's bond counsel and will serve as the second part of our financing team. The third part of the financing team is the underwriters, and selection of the syndicate of underwriters from the City's pool of approved underwriters is being recommended for delegation to the Mayor, City Manager, Assistant City Manager, and Director of Financial Services in Part B of this agenda item. Part B: With the beginning of the new fiscal year, it is the City's intent to fully fund the utility projects outlined in Year 1 of the Fiscal Year 2013 Capital Improvement Plan (CIP) with Utility System Revenue Bonds. Included in these bonds will be funding for capital expenditures related to the acquisition, construction, equipping, or furnishing of any project or facility related to the City's Combined Utility System. Because of the fluctuating conditions in the municipal bond market, our financial advisor has recommended that the City Council delegate to the Mayor, City Manager, Assistant City Manager for General Government and Operations Support, and the Director of Financial Services (the "Delegated Officials ") the authority to effect the sale of the bonds subject to the following parameters: (1) the principal amount of each series of bonds may not exceed $75,000,000; (2) none of the bonds shall bear interest at a rate greater than 7% per year, and (3) the bonds must have a rating issued by a nationally recognized municipal securities ratings organization in one of the four highest rating categories. The City's bond counsel has confirmed that the City can delegate the sale of the bonds to the Delegated Officials in the manner outlined above pursuant to the authority contained in Chapter 1371, as amended, Texas Government Code. In addition, this ordinance gives the City the authority to reimburse itself from bond proceeds for qualifying expenditures. In order to adhere to the time schedules to insure timely completion of the CIP projects, the City must move forward with contracts prior to the completion of the final closing on the bonds. These amounts will not exceed $75,000,000. For the City to be eligible for reimbursement of any expenditure incurred prior to the bond sale, the City must declare its intent to reimburse itself for payments made prior to the bonds being sold. This action must meet specific U. S. Treasury Regulations and requires approval by the City Council. ALTERNATIVES: An alternative funding mechanism would be to use the Commercial Paper Program as interim financing for the utility projects. However, it is the City's intent to discontinue the use of the Commercial Paper Program and issue utility revenue bonds at the beginning of the fiscal year instead to better manage the expenditures related to the CIP utility projects. OTHER CONSIDERATIONS: n/a FINANCIAL IMPACT: ❑ Not Applicable ❑ Operating Expense X Revenue ❑ CIP FISCAL YEAR: Project to Date Exp. (CIP Only) Current Year Future Years TOTALS Budget - $75,000,000 - $ 75,000,000 Encumbered /Expended amount of (date) - - - This item - $75,000,000 - $ 75,000,000 BALANCE - - - - FUND(S): CIP Funds COMMENTS: n/a RECOMMENDATION: Staff recommends approval of the motion and ordinance as presented. CONFORMITY TO CITY POLICY: This item conforms to City policy. EMERGENCY / NON-EMERGENCY: Issuance of municipal obligations are exempted from the City's charter provision regarding dual reading and /or emergency adoption provisions pursuant to the provisions of Section 1201.028, as amended, Texas Government Code. DEPARTMENTAL CLEARANCES: • Bond Counsel • Legal Department LIST OF SUPPORTING DOCUMENTS: Exhibit A — Financial Advisor Fee Schedule Ordinance cc: Lisa Aguilar, Assistant City Attorney Eddie Houlihan, Assistant Director of Management and Budget Margie C. Rose, Assistant City Manager ORDINANCE NO. DRAFT 8/02/12 AUTHORIZING THE ISSUANCE OF ONE OR MORE SERIES OF CITY OF CORPUS CHRISTI, TEXAS UTILITY SYSTEM REVENUE BONDS, IN AN AGGREGATE PRINCIPAL AMOUNT NOT TO EXCEED $75,000,000, PURSUANT TO THE DELEGATION PROVISIONS SET FORTH HEREIN; MAKING PROVISIONS FOR THE PAYMENT AND SECURITY THEREOF ON A PARITY WITH CERTAIN CURRENTLY OUTSTANDING UTILITY SYSTEM REVENUE OBLIGATIONS; STIPULATING THE TERMS AND CONDITIONS FOR THE ISSUANCE OF ADDITIONAL REVENUE BONDS ON A PARITY THEREWITH; PRESCRIBING THE FORMS, TERMS, CONDITIONS, AND RESOLVING OTHER MATTERS INCIDENT AND RELATED TO THE ISSUANCE, SALE, AND DELIVERY OF EACH SERIES OF BONDS; INCLUDING THE APPROVAL AND DISTRIBUTION OF ONE OR MORE OFFICIAL STATEMENTS PERTAINING THERETO; AUTHORIZING THE EXECUTION OF ONE OR MORE PAYING AGENT/REGISTRAR AGREEMENTS, ONE OR MORE ESCROW AGREEMENTS, AND ONE OR MORE PURCHASE CONTRACTS; COMPLYING WITH THE REQUIREMENTS IMPOSED BY THE LETTER OF REPRESENTATIONS PREVIOUSLY EXECUTED WITH THE DEPOSITORY TRUST COMPANY; ESTABLISHING THE CITY'S INTENTION TO REIMBURSE ITSELF FROM THE PROCEEDS OF ANY SUCH SERIES OF BONDS FOR THE PRIOR LAWFUL EXPENDITURE OF FUNDS TO CONSTRUCT VARIOUS CITY IMPROVEMENTS; DELEGATING THE AUTHORITY TO THE MAYOR AND CERTAIN MEMBERS OF THE CITY STAFF TO EXECUTE CERTAIN DOCUMENTS RELATING TO THE SALE OF EACH SERIES OF BONDS; AND PROVIDING AN EFFECTIVE DATE WHEREAS, the City Council (the City Council) of the City of Corpus Christi, Texas (the City) has heretofore issued, and there are currently Outstanding, revenue bonds (the Previously Issued Priority Bonds) secured by a first and prior lien on and pledge of the Net Revenues (as hereinafter defined) of the City's combined utility systems (as further described and defined herein, the System); and WHEREAS, in the City ordinances authorizing the issuance of the Previously Issued Priority Bonds, the City reserved the right to issue revenue bonds on a parity with the Previously Issued Priority Bonds; and WHEREAS, the City Council has heretofore authorized the issuance of revenue bonds (the Junior Lien Obligations) secured by a lien on and pledge of Net Revenues that is junior and inferior to the lien thereon and pledge thereof securing the repayment of the Priority Bonds; and 81222633.2 WHEREAS, in the City ordinance authorizing the issuance of the Junior Lien Obligations, the City reserved the right to issue revenue bonds on a parity with the Junior Lien Obligations from time to time outstanding; and WHEREAS, the City Council has heretofore entered into a certain Federal Contract (as hereinafter defined) supported by a lien on and pledge of the Net Revenues of the System inferior to the lien thereon and pledge thereof securing the Previously Issued Priority Bonds and the Junior Lien Obligations (such Federal Contract, the Previously Issued Inferior Lien Obligations); and WHEREAS, the City deems it appropriate and in its best interest to issue the hereinafter authorized revenue bonds, in one or more series, for the primary purpose of acquiring, purchasing, constructing, improving, repairing, extending, equipping, and renovating the System; and WHEREAS, the City Council hereby finds and determines that, pursuant to the authority provided by Chapter 1371, as amended, Texas Government Code (Chapter 1371), the delegation to the Authorized Representatives (defined herein) of the authority to execute an Approval Certificate relating to each series of bonds issued hereunder (a form of which certificate is attached hereto as Schedule I) to establish and approve the final terms of sale of any such series of bonds (within the parameters specified herein) is in the best interest of the City; and WHEREAS, the City is empowered by the provisions of Chapters 1371 and 1502, as amended, Texas Government Code, and the City's Home Rule Charter to issue revenue bonds in the manner herein contemplated; and WHEREAS, prior to the issuance of a series of bonds hereunder, the City may elect to initially utilize other lawfully available funds to enter into various contracts to finance some or all of the capital costs associated with the System improvements for which bonds are to be issued hereunder; and WHEREAS, the provisions of Section 1201.042, as amended, Texas Government Code (Section 1201.042) provide that the proceeds from the sale of obligations issued to finance the acquisition, construction, equipping, or furnishing of any project or facilities, such as the System improvements for which bonds are issued hereunder, may be used to reimburse the City for costs attributable to such project or facilities paid or incurred before the date of issuance of such bonds; and WHEREAS, the United States Department of Treasury (the Department) released Regulation Section 1.150 -2 (the Regulations) which establishes when the proceeds of obligations are spent and therefore are no longer subject to various federal income tax restrictions contained in the Internal Revenue Code of 1986, as amended (the Code); and WHEREAS, the City intends to reimburse itself, within eighteen months from the later of the date of expenditure or the date the property financed is placed in service (but in no event more than three years after the original expenditures are paid), for the prior lawful capital expenditure of funds from the proceeds of a series of bonds issued hereunder; and 81222633.2 -2- WHEREAS, under the Regulations, to fund such reimbursement with proceeds of bonds issued hereunder, the City must declare its expectation ultimately to make such reimbursement before making the expenditures; and WHEREAS, the City Council hereby finds and determines that the reimbursement for the prior expenditure of funds of the City is not inconsistent with the City's budgetary and financial circumstances; and WHEREAS, the City Council hereby finds and determines that the actions authorized hereby and the adoption of this Ordinance are in the best interest of the citizens of the City, now, therefore, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF CORPUS CHRISTI, TEXAS: SECTION 1: Bonds Authorized. One or more series of revenue bonds of the City shall be and are hereby authorized to be issued, from time to time and in accordance with the limitations described in Section 2, to be designated CITY OF CORPUS CHRISTI, TEXAS UTILITY SYSTEM REVENUE BONDS (as further designated by series and to reflect to the priority of the lien on revenue securing the repayment thereof, pursuant to Section 2) (each such series, the Bonds), under and in accordance with the terms of this ordinance (the Ordinance), for the purposes of (i) acquiring, purchasing, constructing, improving, repairing, extending, equipping, and renovating the System and (ii) paying the costs of issuance relating thereto. The Bonds shall be payable from and equally and ratably secured by a lien on and pledge of the all or a portion of the Net Revenues, at such level of priority as is determined by an Authorized Representative in accordance with Section 2), which pledge shall be on parity with the lien on and pledge of the City's utility system revenue bonds from time to time outstanding that are payable from a lien on and pledge of Net Revenues at such level of priority. The Bonds are authorized to be issued pursuant to the authority conferred by and in conformity with the laws of the State of Texas, including, particularly Chapters 1371 and 1502, as amended, Texas Government Code (together, the Act), the City's Home Rule Charter, and this Ordinance. SECTION 2: Delegation of Authority. As authorized by Chapter 1371, as amended, Texas Government Code (Chapter 1371), the Mayor of the City, the City Manager of the City, the Assistant City Manager for General Government and Operations Support, and the City's Director of Financial Services (each of the foregoing, individually, an Authorized Representative) are hereby authorized, appointed, and designated as the officers of the City authorized to individually act on behalf of the City in selling and delivering the Bonds authorized herein and carrying out the procedures specified in this Ordinance, including the: 81222633.2 (1) Aggregate principal amount of each maturity of the Bonds; and (2) Rate of interest to be borne on the principal amount of each maturity; and (3) Interest payment dates; and (4) Extraordinary, optional, and /or mandatory redemption provisions; and -3 - (5) Pricing of each series of Bonds, including use of premium, discount, underwriters' compensation, and costs of issuance; and (6) Underwriting syndicate for each series of Bonds, including the identification of the senior and book running manager and co- managers, respectively, for each such series; and (7) Bond date; and (8) Priority of the pledge of and lien on Net Revenues securing the repayment of the particular series of Bonds (being a pledge of and lien on Net Revenues that is on parity with the lien thereon and pledge thereof that secures the Previously Issued Priority Bonds or the Junior Lien Obligations, respectively); and (9) Further designation of each series of Bonds by year issued, number of similar series of bonds issued during the then - current calendar year, and the priority of lien on and pledge of Net Revenues securing such series of Bonds. Each series of Bonds issued under this Ordinance shall be issued within the following parameters: (1) The total principal amount of all series of Bonds issued hereunder shall not exceed $75,000,000. (2) The maximum maturity for any series of Bonds issued hereunder shall by July 15, 2043. (3) On a combined basis by series (and not on a per maturity basis within a series), he maximum net effective per annum interest rate applicable to any series of Bonds issued hereunder shall not exceed a rate greater 7% per annum, calculated in a manner consistent with the provisions of Chapter 1204, as amended, Texas Government Code (4) The final series of Bonds issued hereunder must be sold not later than August 14, 2013 (though the closing of a particular series of Bonds sold in accordance with this provision may occur after August 14, 2013, so long as such closing period is determined by an Authorized Representative to be of reasonable duration). (5) Each series of Bonds must be sold on a negotiated basis to an underwriting syndicate selected in accordance with this Section 2 (as provided above). In addition to the foregoing, each Authorized Representative is authorized to select the bond insurer and /or debt service reserve fund surety provider, if any, with respect to the Bonds. If the Authorized Representative chooses to purchase a debt service reserve surety policy or similar credit facility relating to the Bonds, then the Authorized Representative shall be permitted to execute an insurance or similar reimbursement agreement in substantially the form attached hereto as Exhibit F (which form is hereby approved) in connection with such purchase. The execution of the Approval Certificate shall evidence the sale date of the Bonds by the City to 81222633.2 -4- the Purchaser in accordance with the provisions of Chapter 1371. It is further provided, however, that notwithstanding the foregoing provisions, the Bonds shall not be delivered unless prior to their initial delivery, the Bonds have been rated by a nationally recognized rating agency for municipal securities in one of the four highest rating categories for long term obligations, as required by Chapter 1371. Upon execution of the Approval Certificate, Bond Counsel is authorized to complete a substantially similar version of this Ordinance, completed (as appropriate) with the information included in the applicable Approval Certificate and by incorporation of the terms of Exhibit A or Exhibit B hereto (as applicable), to reflect such final terms of the applicable series of Bonds issued hereunder. SECTION 3: Fully Registered Obligations - Authorized Denominations - Stated Maturities - Interest Rates - Dated Date. The Bonds are issuable in fully registered form only; shall be dated , 2012 (the Dated Date) shall be in denominations of $5,000 or any integral multiple thereof, shall be lettered "R -" and numbered consecutively from One (1) upward and principal shall become due and payable on July 15 in each of the years and in principal amounts (the Stated Maturities) and bear interest on the unpaid principal amounts from the Dated Date, or the most recent Interest Payment Date to which interest has been paid or duly provided for, to the earlier of redemption or Stated Maturity, at the rates per annum in accordance with the following schedule: Years of Principal Interest Stated Maturity Amounts ($) Rates ( %) 2013 2014 2015 2016 2017 2018 2019 2020 2021 2022 2023 2024 2025 2026 2027 2028 2029 2030 SECTION 4: Payment of Bonds - Interest Payments - Paying Agent/Registrar. The principal of, premium, if any, and interest on the Bonds, due and payable by reason of Stated Maturity, redemption, or otherwise, shall be payable in any coin or currency of the United States of America which at the time of payment is legal tender for the payment of public and private 81222633.2 -5 - debts, and such payment of principal of and interest on the Bonds shall be without exchange or collection charges to the Holder (as hereinafter defined) of the Bonds. The Bonds shall bear interest on the unpaid principal amount thereof at the per annum rates shown above in Section 2, computed on the basis of a 360 -day year of twelve 30 -day months, and interest thereon shall be payable semiannually on January 15 and July 15 of each year (the Interest Payment Date), commencing , 20 , while the Bonds are Outstanding. The selection and appointment of , Texas, to serve as the initial Paying Agent/Registrar (the Paying Agent /Registrar) for the Bonds is hereby approved and confirmed, and the City agrees and covenants to cause to be kept and maintained at the corporate trust office of the Paying Agent/Registrar books and records (the Security Register) for the registration, payment, and transfer of the Bonds, all as provided herein, in accordance with the terms and provisions of a Paying Agent/Registrar Agreement, attached, in substantially final form, as Exhibit D hereto, and such reasonable rules and regulations as the Paying Agent/Registrar and the City may prescribe. The City covenants to maintain and provide a Paying Agent/Registrar at all times while the Bonds are Outstanding, and any successor Paying Agent/Registrar shall be (i) a national or state banking institution or (ii) an association or a corporation organized and doing business under the laws of the United States of America or of any state, authorized under such laws to exercise trust powers. Such Paying Agent/Registrar shall be subject to supervision or examination by federal or state authority and authorized by law to serve as a Paying Agent/Registrar. The City reserves the right to appoint a successor Paying Agent/Registrar upon providing the previous Paying Agent/Registrar with a certified copy of a resolution or ordinance terminating such agency. Additionally, the City agrees to promptly cause a written notice of this substitution to be sent to each Holder of the Bonds by United States mail, first -class postage prepaid, which notice shall also give the address of the new Paying Agent/Registrar. Both principal of, premium, if any, and interest on the Bonds, due and payable by reason of Stated Maturity, redemption or otherwise, shall be payable only to the registered owner of the Bonds appearing on the Security Register (the Holder or Holders) maintained on behalf of the City by the Paying Agent/Registrar as hereinafter provided (i) on the Record Date (defined herein) for purposes of payment of interest thereon and (ii) on the date of surrender of the Bonds for purposes of receiving payment of principal thereof at the Bonds' Stated Maturity or upon prior redemption of the Bonds. The City and the Paying Agent/Registrar, and any agent of either, shall treat the Holder as the owner of a Bond for purposes of receiving payment and all other purposes whatsoever, and neither the City nor the Paying Agent/Registrar, or any agent of either, shall be affected by notice to the contrary. Principal of, and premium, if any, on the Bonds shall be payable only upon presentation and surrender of the Bonds to the Paying Agent/Registrar at its corporate trust office. Interest on the Bonds shall be paid to the Holder whose name appears in the Security Register at the close of business on the last business day of the month next preceding an Interest Payment Date for the Bonds (the Record Date) and shall be paid (i) by check sent by United States mail, first -class postage prepaid, by the Paying Agent/Registrar, to the address of the Holder appearing in the 81222633.2 -6- Security Register or (ii) by such other method, acceptable to the Paying Agent/Registrar, requested in writing by the Holder at the Holder's risk and expense. If the date for the payment of the principal of, premium, if any, or interest on the Bonds shall be a Saturday, Sunday, a legal holiday, or a day on which banking institutions in the city where the corporate trust office of the Paying Agent/Registrar is located are authorized by law or executive order to close, then the date for such payment shall be the next succeeding day which is not such a day. The payment on such date shall have the same force and effect as if made on the original date any such payment on the Bonds was due. In the event of a non - payment of interest on a scheduled payment date, and for thirty (30) days thereafter, a new record date for such interest payment (a Special Record Date) will be established by the Paying Agent/Registrar, if and when funds for the payment of such interest have been received from the City. Notice of the Special Record Date and of the scheduled payment date of the past due interest (the Special Payment Date - which shall be fifteen (15) days after the Special Record Date) shall be sent at least five (5) business days prior to the Special Record Date by United States Mail, first -class postage prepaid, to the address of each Holder appearing on the Security Register at the close of business on the last business day next preceding the date of mailing of such notice. SECTION 5: Redemption. A. Mandatory Redemption of Bonds. The Bonds stated to mature on July 15, 20 are referred to herein as the "Term Bonds ". The Term Bonds are subject to mandatory sinking fund redemption prior to their stated maturities from money required to be deposited in the Bond Fund (but not the Reserve Fund) for such purpose and shall be redeemed in part, by lot or other customary method, at the principal amount thereof plus accrued interest to the date of redemption in the following principal amounts on July 15 in each of the years as set forth below: Term Bonds Stated to Mature on July 15, 20 Principal Year Amount ($) *Payable at stated maturity 81222633.2 -7- The principal amount of a Term Bond required to be redeemed pursuant to the operation of such mandatory redemption provisions shall be reduced, at the option of the City, by the principal amount of any Term Bonds of such stated maturity which, at least 50 days prior to the mandatory redemption date (1) shall have been defeased or acquired by the City and delivered to the Paying Agent/Registrar for cancellation, (2) shall have been purchased and canceled by the Paying Agent/Registrar at the request of the City with money in the Bond Fund (but not the Reserve Fund), or (3) shall have been redeemed pursuant to the optional redemption provisions set forth below and not theretofore credited against a mandatory redemption requirement. B. Optional Redemption. The Bonds having Stated Maturities on and after July 15, 20 shall be subject to redemption prior to Stated Maturity, at the option of the City, on July 15, 20 , or any date thereafter, as a whole or in part, in principal amounts of $5,000 or any integral multiple thereof (and if within a Stated Maturity selected at random and by lot by the Paying Agent/Registrar), at the redemption price of par plus accrued interest to the date of redemption. C. Exercise of Redemption Option. At least forty -five (45) days prior to a date set for the redemption of Bonds (unless a shorter notification period shall be satisfactory to the Paying Agent/Registrar), the City shall notify the Paying Agent/Registrar of its decision to exercise the right to redeem Bonds, the principal amount of each Stated Maturity to be redeemed, and the date set for the redemption thereof. The decision of the City to exercise the right to redeem Bonds shall be entered in the minutes of the City Council. D. Selection of Bonds for Redemption. If less than all Outstanding Bonds of the same Stated Maturity are to be redeemed on a redemption date, the Paying Agent/Registrar shall select at random and by lot the Bonds to be redeemed, provided that if less than the entire principal amount of a Bond is to be redeemed, the Paying Agent/Registrar shall treat such Bond then subject to redemption as representing the number of Bonds Outstanding which is obtained by dividing the principal amount of such Bond by $5,000. E. Notice of Redemption. Not less than thirty (30) days prior to a redemption date for the Bonds, a notice of redemption shall be sent by United States Mail, first -class postage prepaid, in the name of the City and at the City's expense, by the Paying Agent/Registrar to each Holder of a Bond to be redeemed, in whole or in part, at the address of the Holder appearing on the Security Register at the close of business on the business day next preceding the date of mailing such notice, and any notice of redemption so mailed shall be conclusively presumed to have been duly given irrespective of whether received by the Holder. All notices of redemption shall (i) specify the date of redemption for the Bonds, (ii) identify the Bonds to be redeemed and, in the case of a portion of the principal amount to be redeemed, the principal amount thereof to be redeemed, (iii) state the redemption price, (iv) state that the Bonds, or the portion of the principal amount thereof to be redeemed, shall become due and payable on the redemption date specified, and the interest thereon, or on the portion of the principal amount thereof to be redeemed, shall cease to accrue from and after the redemption date, and (v) specify that payment of the redemption price for the Bonds, or the principal amount thereof to be redeemed, shall be made at the corporate trust office of the Paying Agent/Registrar only upon presentation and surrender thereof by the Holder. If a Bond is subject by its terms to 81222633.2 -8- redemption and has been called for redemption and notice of redemption thereof has been duly given or waived as herein provided, such Bond (or the principal amount thereof to be redeemed) so called for redemption shall become due and payable, and if money sufficient for the payment of such Bonds (or of the principal amount thereof to be redeemed) at the then applicable redemption price is held for the purpose of such payment by the Paying Agent/Registrar, then on the redemption date designated in such notice, interest on said Bonds (or the principal amount thereof to be redeemed) called for redemption shall cease to accrue, and such Bonds shall not be deemed to be Outstanding in accordance with the provisions of this Ordinance. This notice may also be published once in a financial publication, journal, or reporter of general circulation among securities dealers in the City of New York, New York (including, but not limited to, The Bond Buyer and The Wall Street Journal), or in the State of Texas (including, but not limited to, The Texas Bond Reporter). Additionally, this notice may also be sent by the City to any registered securities depository and to any national information service that disseminates redemption notices. F. Transfer/Exchange. Neither the City nor the Paying Agent/Registrar shall be required (i) to transfer or exchange any Bond during a period beginning forty -five (45) days prior to the date fixed for redemption of the Bonds or (ii) to transfer or exchange any Bond selected for redemption, provided; however, such limitation of transfer shall not be applicable to an exchange by the Holder of the unredeemed balance of a Bond which is subject to redemption in part. SECTION 6: Execution - Registration. The Bonds shall be executed on behalf of the City by its Mayor, its seal reproduced or impressed thereon, and attested by the City Secretary. The signature of either officer on the Bonds may be manual or facsimile. Bonds bearing the manual or facsimile signatures of individuals who were, at the time of the Dated Date, the proper officers of the City shall bind the City, notwithstanding that such individuals or either of them shall cease to hold such offices prior to the delivery of the Bonds to the Purchasers (defined herein), all as authorized and provided in Chapter 1201, as amended, Texas Government Code. No Bond shall be entitled to any right or benefit under this Ordinance, or be valid or obligatory for any purpose, unless there appears on such Bond either a certificate of registration substantially in the form provided in Section 8C, executed by the Comptroller of Public Accounts of the State of Texas or his duly authorized agent by manual signature, or a certificate of registration substantially in the form provided in Section 8D, executed by the Paying Agent/Registrar by manual signature, and either such certificate upon any Bond shall be conclusive evidence, and the only evidence, that such Bond has been duly certified or registered and delivered. SECTION 7: Registration - Transfer - Exchange of Bonds - Predecessor Bonds. The Paying Agent/Registrar shall obtain, record, and maintain in the Security Register the name and address of every owner of the Bonds, or, if appropriate, the nominee thereof. Any Bond may, in accordance with its terms and the terms hereof, be transferred or exchanged for Bonds of other authorized denominations upon the Security Register by the Holder, in person or by his duly authorized agent, upon surrender of such Bond to the Paying Agent/Registrar for cancellation, accompanied by a written instrument of transfer or request for exchange duly executed by the Holder or by his duly authorized agent, in form satisfactory to the Paying Agent/Registrar. 81222633.2 -9- Upon surrender for transfer of any Bond at the corporate trust office of the Paying Agent/Registrar, the City shall execute and the Paying Agent/Registrar shall register and deliver, in the name of the designated transferee or transferees, one or more new Bonds of authorized denomination and having the same Stated Maturity and of a like interest rate and aggregate principal amount as the Bond or Bonds surrendered for transfer. At the option of the Holder, Bonds may be exchanged for other Bonds of the same series and of authorized denominations and having the same Stated Maturity, bearing the same rate of interest and of like aggregate principal amount as the Bonds surrendered for exchange upon surrender of the Bonds to be exchanged at the corporate trust office of the Paying Agent/Registrar. Whenever any Bonds are so surrendered for exchange, the City shall execute, and the Paying Agent/Registrar shall register and deliver, the Bonds, to the Holder requesting the exchange. All Bonds issued upon any transfer or exchange of Bonds shall be delivered at the corporate trust office of the Paying Agent/Registrar, or be sent by registered mail to the Holder at his request, risk, and expense, and upon the delivery thereof, the same shall be the valid and binding obligations of the City, evidencing the same obligation to pay, and entitled to the same benefits under this Ordinance, as the Bonds surrendered upon such transfer or exchange. All transfers or exchanges of Bonds pursuant to this Section shall be made without expense or service charge to the Holder, except as otherwise herein provided, and except that the Paying Agent/Registrar shall require payment by the Holder requesting such transfer or exchange of any fee, tax or other governmental charges required to be paid with respect to such transfer or exchange. Bonds canceled by reason of an exchange or transfer pursuant to the provisions hereof are hereby defined to be Predecessor Bonds, evidencing all or a portion, as the case may be, of the same debt evidenced by the new Bond or Bonds registered and delivered in the exchange or transfer therefor. Additionally, the term Predecessor Bonds shall include any Bond registered and delivered pursuant to Section 30 in lieu of a mutilated, lost, destroyed, or stolen Bond which shall be deemed to evidence the same obligation as the mutilated, lost, destroyed, or stolen Bond. SECTION 8: Initial Bond(s). The Bonds herein authorized shall be issued initially either (i) as a single fully- registered Bond in the total principal amount of $ with principal installments to become due and payable as provided in Section 2 and numbered T -1, or (ii) as one (1) fully- registered Bond for each year of Stated Maturity in the applicable principal amount and denomination and to be numbered consecutively from T -1 and upward (the Initial Bond(s)) and, in either case, the Initial Bond(s) shall be registered in the name of the initial purchasers or the designee thereof. The Initial Bond(s) shall be the Bonds submitted to the Office of the Attorney General of the State of Texas for approval, certified and registered by the Office of the Comptroller of Public Accounts of the State of Texas and delivered to the initial purchasers. Any time after the delivery of the Initial Bond(s), the Paying Agent/Registrar shall cancel the Initial Bond(s) delivered hereunder and exchange therefor definitive Bonds of authorized denominations, Stated Maturities, principal amounts and bearing applicable interest rates for transfer and delivery to the Holders named at the addresses identified therefor; all pursuant to and in accordance with such written instructions from the initial purchasers, or the 81222633.2 -10- designee thereof, and such other information and documentation as the Paying Agent/Registrar may reasonably require. SECTION 9: Provisions Applicable to the Bonds Based on Priority of Lien on and Pledge of Net Revenues. [Insert terms indicated in Exhibit A hereto if the particular series of Bonds are issued as Additional Priority Lien Bonds or the terms indicated in Exhibit B if the particular series of Bonds are issued as Additional Junior Lien Obligations.] SECTION 10: Security of Funds. All money on deposit in the funds or accounts for which this Ordinance makes provision (except any portion thereof as may be at any time properly invested as provided herein) shall be secured in the manner and to the fullest extent required by the laws of Texas for the security of public funds, and money on deposit in such Funds or accounts shall be used only for the purposes permitted by this Ordinance. SECTION 11: Remedies in Event of Default. In addition to all the rights and remedies provided by the laws of the State of Texas, the City covenants and agrees particularly that in the event the City (a) defaults in the payments to be made to the Bond Fund, or (b) defaults in the observance or performance of any other of the covenants, conditions, or obligations set forth in this Ordinance, the Holders of any of the Bonds shall be entitled to seek a writ of mandamus issued by a court of proper jurisdiction compelling and requiring the governing body of the City and other officers of the City to observe and perform any covenant, condition, or obligation prescribed in this Ordinance. No delay or omission to exercise any right or power accruing upon any default shall impair any such right or power or shall be construed to be a waiver of any such default or acquiescence therein, and every such right and power may be exercised from time to time and as often as may be deemed expedient. The specific remedy herein provided shall be cumulative of all other existing remedies and the specification of such remedy shall not be deemed to be exclusive. SECTION 12: Notices to Holders Waiver. Wherever this Ordinance provides for notice to Holders of any event, such notice shall be sufficiently given (unless otherwise herein expressly provided) if in writing and sent by United States Mail, first -class postage prepaid, to the address of each Holder as it appears in the Security Register. In any case where notice to Holders is given by mail, neither the failure to mail such notice to any particular Holders, nor any defect in any notice so mailed, shall affect the sufficiency of such notice with respect to all other Holders. Where this Ordinance provides for notice in any manner, such notice may be waived in writing by the Holder entitled to receive such notice, either before or after the event with respect to which such notice is given, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Paying Agent/Registrar, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver. SECTION 13: Bonds Are Negotiable Instruments. Each of the Bonds authorized herein shall be deemed and construed to be a "security" and as such a negotiable instrument with the meaning of the Chapter 8 of the Texas Uniform Commercial Code. 81222633.2 SECTION 14: Cancellation. All Bonds surrendered for payment, transfer, redemption, exchange, or replacement, if surrendered to the Paying Agent/Registrar, shall be promptly canceled by it and, if surrendered to the City, shall be delivered to the Paying Agent/Registrar and, if not already canceled, shall be promptly canceled by the Paying Agent/Registrar. The City may at any time deliver to the Paying Agent/Registrar for cancellation any Bonds previously certified or registered and delivered which the City may have acquired in any manner whatsoever, and all Bonds so delivered shall be promptly canceled by the Paying Agent/Registrar. All canceled Bonds held by the Paying Agent/Registrar shall be destroyed as directed by the City. SECTION 15: Mutilated, Destroyed, Lost, and Stolen Bonds. If (1) any mutilated Bond is surrendered to the Paying Agent/Registrar, or the City and the Paying Agent/Registrar receive evidence to their satisfaction of the destruction, loss, or theft of any Bond, and (2) there is delivered to the City and the Paying Agent/Registrar such security or indemnity as may be required to save each of them harmless, then, in the absence of notice to the City or the Paying Agent/Registrar that such Bond has been acquired by a bona fide purchaser, the City shall execute and, upon its request, the Paying Agent/Registrar shall register and deliver, in exchange for or in lieu of any such mutilated, destroyed, lost, or stolen Bond, a new Bond of the same Stated Maturity and interest rate and of like tenor and principal amount, bearing a number not contemporaneously Outstanding. In case any such mutilated, destroyed, lost, or stolen Bond has become or is about to become due and payable, the City in its discretion may, instead of issuing a new Bond, pay such Bond. Upon the issuance of any new Bond or payment in lieu thereof, under this Section, the City may require payment by the Holder of a sum sufficient to cover any tax or other governmental charge imposed in relation thereto and any other expenses (including attorney's fees and the fees and expenses of the Paying Agent/Registrar) connected therewith. Every new Bond issued pursuant to this Section in lieu of any mutilated, destroyed, lost, or stolen Bond shall constitute a replacement of the prior obligation of the City, whether or not the mutilated, destroyed, lost, or stolen Bond shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Ordinance equally and ratably with all other Outstanding Bonds. The provisions of this Section are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement and payment of mutilated, destroyed, lost, or stolen Bonds. SECTION 16: Sale of Bonds- Official Statement Approval — Approval of Purchase Contract — Use of proceeds. The Bonds authorized by this Ordinance are hereby sold by the City to , , Texas, as the authorized representative of a group of underwriters (the Purchasers, and having all the rights, benefits, and obligations of a Holder) in accordance with the provisions of a Purchase Contract dated , 2012 (the Purchase Contract) attached hereto as Exhibit C and incorporated herein by reference as a part of this Ordinance for all purposes. The pricing terms of the sale of the Bonds are hereby found and determined to be 81222633.2 -12- the most advantageous reasonably obtainable by the City. The Initial Bonds shall be registered in the name of , , Texas. Any Authorized Representative is hereby authorized and directed to execute the Purchase Contract for and on behalf of the City and as the act and deed of the City Council, and in regard to the approval and execution of the Purchase Contract, the City Council hereby finds, determines and declares that the representations, warranties, and agreements of the City contained in the Purchase Contract are true and correct in all material respects and shall be honored by the City. Delivery of the Bonds to the Purchaser shall occur as soon as practicable after the adoption of this Ordinance, upon payment therefor in accordance with the terms of the Purchase Contract. Furthermore, the City hereby ratifies, confirms, and approves in all respects (i) the City's prior determination that the Preliminary Official Statement was, as of its date, "deemed final" in accordance with the Rule (hereinafter defined) and (ii) the use and distribution of the Preliminary Official Statement by the Purchaser in connection with the public offering and sale of the Bonds. The final Official Statement, being a modification and amendment of the Preliminary Official Statement to reflect the terms of sale (together with such changes approved by an Authorized Representative), shall be and is hereby in all respects approved and the Purchaser is hereby authorized to use and distribute the final Official Statement, dated , 2012, in the reoffering, sale and delivery of the Bonds to the public. The Mayor and /or City Secretary are further authorized and directed to manually execute and deliver for and on behalf of the City copies of the Official Statement in final form as may be required by the Purchaser, and such final Official Statement in the form and content manually executed by said officials shall be deemed to be approved by the City Council and constitute the Official Statement authorized for distribution and use by the Purchaser. Proceeds from the sale of the Bonds shall be applied as follows: A. The City received a net original reoffering premium from the sale of the Bonds of $ which is hereby allocated by the City to pay certain costs of issuance. B. The balance of the proceeds (after paying other costs of issuance and the other deposits referred to in paragraph A above) shall be deposited into the special construction account or accounts created for the projects to be constructed with the Bond proceeds. This special construction account shall be established and maintained at the City's depository bank and shall be invested in accordance with the provisions of Section [10] of this Ordinance. Interest earned on the proceeds of the Bonds pending completion of the projects financed with such proceeds shall be accounted for, maintained, deposited, and expended as permitted by the provisions of Chapter 1201, as amended, Texas Government Code, or as required by any other applicable law. Thereafter, such amounts shall be expended in accordance with Section [11]. SECTION 17: Covenants to Maintain Tax - Exempt Status. A. Definitions. When used in this Section, the following terms have the following meanings: Code means the Internal Revenue Code of 1986, as amended by all legislation, if any, effective on or before the Closing Date. 81222633.2 -13- Computation Date has the meaning set forth in Section 1.148 -1(b) of the Regulations. Gross Proceeds means any proceeds as defined in Section 1.148 -1(b) of the Regulations, and any replacement proceeds as defined in Section 1.148 -1(c) of the Regulations, of the Bonds. Investment has the meaning set forth in Section 1.148 -1(b) of the Regulations. Nonpurpose Investment means any investment property, as defined in section 148(b) of the Code, in which Gross Proceeds of the Bonds are invested and which is not acquired to carry out the governmental purposes of the Bonds. Rebate Amount has the meaning set forth in Section 1.148 -1(b) of the Regulations. Regulations means any proposed, temporary, or final Income Tax Regulations issued pursuant to sections 103 and 141 through 150 of the Code, and 103 of the Internal Revenue Code of 1954, which are applicable to the Bonds. Any reference to any specific Regulation shall also mean, as appropriate, any proposed, temporary or final Income Tax Regulation designed to supplement, amend or replace the specific Regulation referenced. Yield of (a) any Investment has the meaning set forth in Section 1.148 -5 of the Regulations; and (b) the Bonds has the meaning set forth in Section 1.148 -4 of the Regulations. B. Not to Cause Interest to Become Taxable. The City shall not use, permit the use of, or omit to use Gross Proceeds or any other amounts (or any property the acquisition, construction or improvement of which is to be financed or refinanced directly or indirectly with Gross Proceeds) in a manner which if made or omitted, respectively, would cause the interest on any Bond to become includable in the gross income, as defined in section 61 of the Code, of the owner thereof for federal income tax purposes. Without limiting the generality of the foregoing, unless and until the City receives a written opinion of counsel nationally recognized in the field of municipal bond law to the effect that failure to comply with such covenant will not adversely affect the exemption from federal income tax of the interest on any Bond, the City shall comply with each of the specific covenants in this Section. C. No Private Use or Private Payments. Except as would not cause the Bonds to become "private activity bonds" within the meaning of section 141 of the Code and the Regulations and rulings thereunder, the City shall at all times prior to the last Stated Maturity of Bonds: (1) exclusively own, operate and possess all property the acquisition, construction or improvement of which is to be financed or refinanced directly or indirectly with Gross Proceeds of the Bonds, and not use or permit the use of such Gross Proceeds (including all contractual arrangements with terms different than those applicable to the general public) or any property acquired, constructed or improved with 81222633.2 -14- such Gross Proceeds in any activity carried on by any person or entity (including the United States or any agency, department and instrumentality thereof) other than a state or local government, unless such use is solely as a member of the general public; and (2) not directly or indirectly impose or accept any charge or other payment by any person or entity who is treated as using Gross Proceeds of the Bonds or any property the acquisition, construction or improvement of which is to be financed or refinanced directly or indirectly with such Gross Proceeds, other than taxes of general application within the City or interest earned on investments acquired with such Gross Proceeds pending application for their intended purposes. D. No Private Loan. Except as would not cause the Bonds to become "private activity bonds" within the meaning of section 141 of the Code and the Regulations and rulings thereunder, the City shall not use Gross Proceeds of the Bonds, to make or finance loans to any person or entity other than a state or local government. For purposes of the foregoing covenant, such Gross Proceeds are considered to be "loaned" to a person or entity if: (1) property acquired, constructed or improved with such Gross Proceeds is sold or leased to such person or entity in a transaction which creates a debt for federal income tax purposes; (2) capacity in or service from such property is committed to such person or entity under a take -or -pay, output or similar contract or arrangement; or (3) indirect benefits, or burdens and benefits of ownership, of such Gross Proceeds or any property acquired, constructed or improved with such Gross Proceeds are otherwise transferred in a transaction which is the economic equivalent of a loan. E. Not to Invest at Higher Yield. Except as would not cause the Bonds to become "arbitrage bonds" within the meaning of section 148 of the Code and the Regulations and rulings thereunder, the City shall not at any time prior to the final Stated Maturity of the Bonds directly or indirectly invest Gross Proceeds in any Investment, if as a result of such investment the Yield of any Investment acquired with Gross Proceeds, whether then held or previously disposed of, materially exceeds the Yield of the Bonds. F. Not Federally Guaranteed. Except to the extent permitted by section 149(b) of the Code and the Regulations and rulings thereunder, the City shall not take or omit to take any action which would cause the Bonds to be federally guaranteed within the meaning of section 149(b) of the Code and the Regulations and rulings thereunder. G. Information Report. The City shall timely file the information required by section 149(e) of the Code with the Secretary of the Treasury on Form 8038 -G or such other form and in such place as the Secretary may prescribe. H. Rebate of Arbitrage Profits. Except to the extent otherwise provided in section 148(f) of the Code and the Regulations and rulings thereunder: (1) The City shall account for all Gross Proceeds (including all receipts, expenditures and investments thereof) on its books of account separately and apart from all other funds (and receipts, expenditures and investments thereof) and shall retain all records of accounting for at least six years after the day on which the last Outstanding Bond is discharged. However, to the extent permitted by law, the City may commingle 81222633.2 -15- Gross Proceeds of the Bonds with other money of the City, provided that the City separately accounts for each receipt and expenditure of Gross Proceeds and the obligations acquired therewith. (2) Not less frequently than each Computation Date, the City shall calculate the Rebate Amount in accordance with rules set forth in section 148(f) of the Code and the Regulations and rulings thereunder. The City shall maintain such calculations with its official transcript of proceedings relating to the issuance of the Bonds until six years after the final Computation Date. (3) As additional consideration for the purchase of the Bonds by the Purchasers and the loan of the money represented thereby and in order to induce such purchase by measures designed to insure the excludability of the interest thereon from the gross income of the owners thereof for federal income tax purposes, the City shall pay to the United States out of the Bond Fund or its general fund, as permitted by applicable Texas statute, regulation or opinion of the Attorney General of the State of Texas, the amount that when added to the future value of previous rebate payments made for the Bonds equals (i) in the case of a Final Computation Date as defined in Section 1.148 - 3(e)(2) of the Regulations, one hundred percent (100 %) of the Rebate Amount on such date; and (ii) in the case of any other Computation Date, ninety percent (90 %) of the Rebate Amount on such date. In all cases, the rebate payments shall be made at the times, in the installments, to the place and in the manner as is or may be required by section 148(f) of the Code and the Regulations and rulings thereunder, and shall be accompanied by Form 8038 -T or such other forms and information as is or may be required by section 148(f) of the Code and the Regulations and rulings thereunder. (4) The City shall exercise reasonable diligence to assure that no errors are made in the calculations and payments required by paragraphs (2) and (3), and if an error is made, to discover and promptly correct such error within a reasonable amount of time thereafter (and in all events within one hundred eighty (180) days after discovery of the error), including payment to the United States of any additional Rebate Amount owed to it, interest thereon, and any penalty imposed under Section 1.148 -3(h) of the Regulations. I. Not to Divert Arbitrage Profits. Except to the extent permitted by section 148 of the Code and the Regulations and rulings thereunder, the City shall not, at any time prior to the earlier of the Stated Maturity or final payment of the Bonds, enter into any transaction that reduces the amount required to be paid to the United States pursuant to Subsection H of this Section because such transaction results in a smaller profit or a larger loss than would have resulted if the transaction had been at arm's length and had the Yield of the Bonds not been relevant to either party. J. Bonds Not Hedge Bonds. (1) The City reasonably expects to spend at least 85% of the spendable proceeds of the Bonds within three years after such Bonds are issued. 81222633.2 -16- (2) Not more than 50% of the proceeds of the Bonds will be invested in Nonpurpose Investments having a substantially guaranteed Yield for a period of 4 years or more. K. Elections. The City hereby directs and authorizes each Authorized Official, or any combination of them, to make elections permitted or required pursuant to the provisions of the Code or the Regulations, as they deem necessary or appropriate in connection with the Bonds, in the Certificate as to Tax Exemption or similar or other appropriate certificate, form or document. Such elections shall be deemed to be made on the Closing Date. SECTION 18: Control and Custody of Bonds. The Mayor shall be and is hereby authorized to take and have charge of all necessary orders and records pending investigation by the Attorney General of the State of Texas and shall take and have charge and control of the Bonds pending their approval by the Attorney General of the State of Texas, the registration thereof by the Comptroller of Public Accounts of the State of Texas and the delivery of the Bonds to the Purchasers. Furthermore, any Authorized Official or any combination of them are hereby authorized and directed to furnish and execute such documents relating to the City and its financial affairs as may be necessary for the issuance of the Bonds, the approval of the Attorney General and their registration by the Comptroller of Public Accounts and, together with the City's Bond Counsel and the Paying Agent/Registrar, make the necessary arrangements for the delivery of the Initial Bond(s) to the Purchasers. SECTION 19: Satisfaction of Obligation of City. If the City shall pay or cause to be paid, or there shall otherwise be paid to the Holders, the principal of, premium, if any, and interest on the Bonds, at the times and in the manner stipulated in this Ordinance, then the lien on and pledge of Junior Lien Pledged Revenues under this Ordinance and all covenants, agreements, and other obligations of the City to the Holders shall thereupon cease, terminate, and be discharged and satisfied. The Bonds, or any principal amount(s) thereof, shall be deemed to have been paid within the meaning and with the effect expressed above in this Section when (i) money sufficient to pay in full such Bonds or the principal amount(s) thereof at Stated Maturity or to the redemption date therefor, together with all interest due thereon, shall have been irrevocably deposited with and held in trust by the Paying Agent/Registrar or an authorized escrow agent, or (ii) Government Securities shall have been irrevocably deposited in trust with the Paying Agent/Registrar, or an authorized escrow agent, which Government Securities have, in the case of a net defeasance, been certified by an independent accounting firm to mature as to principal and interest in such amounts and at such times as will insure the availability, without reinvestment, of sufficient money, together with any money deposited therewith, if any, to pay when due the principal of and interest on such Bonds, or the principal amount(s) thereof, on and prior to the Stated Maturity thereof or (if notice of redemption has been duly given or waived or if irrevocable arrangements therefor acceptable to the Paying Agent/Registrar have been made) the redemption date thereof for the Bonds. In the event of a gross defeasance of the Bonds, the City shall deliver a certificate from its financial advisor, the Paying Agent/Registrar, or another qualified third party concerning the deposit of cash and /or Government Securities to pay, when due, the 81222633.2 -17- principal of, redemption premium (if any), and interest due on any defeased Bonds. The City covenants that no deposit of money or Government Securities will be made under this Section and no use made of any such deposit which would cause the Bonds to be treated as arbitrage bonds within the meaning of section 148 of the Code (as defined in Section 35 hereof). Any money so deposited with the Paying Agent/Registrar, and all income from Government Securities held in trust by the Paying Agent/Registrar, or an authorized escrow agent, pursuant to this Section which is not required for the payment of the Bonds, or any principal amount(s) thereof, or interest thereon with respect to which such money has been so deposited shall be remitted to the City or deposited as directed by the City. Furthermore, any money held by the Paying Agent/Registrar for the payment of the principal of and interest on the Bonds and remaining unclaimed for a period of three (3) years after the Stated Maturity, or applicable redemption date, of the Bonds such money was deposited and is held in trust to pay shall upon the request of the City be remitted to the City against a written receipt therefor, subject to the unclaimed property laws of the State of Texas. Notwithstanding any other provision of this Ordinance to the contrary, it is hereby provided that any determination not to redeem defeased Bonds that is made in conjunction with the payment arrangements specified in subsection (i) or (ii) above shall not be irrevocable, provided that: (1) in the proceedings providing for such defeasance, the City expressly reserves the right to call the defeased Bonds for redemption; (2) gives notice of the reservation of that right to the owners of the defeased Bonds immediately following the defeasance; (3) directs that notice of the reservation be included in any redemption notices that it authorizes; and (4) at the time of the redemption, satisfies the conditions of (i) or (ii) above with respect to such defeased debt as though it was being defeased at the time of the exercise of the option to redeem the defeased Bonds, after taking the redemption into account in determining the sufficiency of the provisions made for the payment of the defeased Bonds. SECTION 20: Ordinance a Contract; Amendments - Outstanding Bonds. The City acknowledges that the covenants and obligations of the City herein contained are a material inducement to the purchase of the Bonds. This Ordinance shall constitute a contract with the Holders from time to time, binding on the City and its successors and assigns, and it shall not be amended or repealed by the City so long as any Bond remains Outstanding except as permitted in this Section. The City may, without the consent of or notice to any Holders, from time to time and at any time, amend this Ordinance in any manner not detrimental to the interests of the Holders, including the curing of any ambiguity, inconsistency, or formal defect or omission herein. In addition, the City may, with the written consent of Holders holding a majority in aggregate principal amount of the Bonds then Outstanding affected thereby, amend, add to, or rescind any of the provisions of this Ordinance; provided that, without the consent of all Holders of Outstanding Bonds, no such amendment, addition, or rescission shall (1) extend the time or times of payment of the principal of and interest on the Bonds, reduce the principal amount thereof, the redemption price therefor, or the rate of interest thereon, or in any other way modify the terms of payment of the principal of or interest on the Bonds, (2) give any preference to any Bond over any other Bond, or (3) reduce the aggregate principal amount of Bonds required for consent to any such amendment, addition, or rescission. 81222633.2 -18- SECTION 21: Printed Opinion. The Purchasers' obligation to accept delivery of the Bonds is subject to its being furnished a final opinion of Fulbright & Jaworski L.L.P., as Bond Counsel, approving certain legal matters as to the Bonds, said opinion to be dated and delivered as of the date of initial delivery and payment for such Bonds. Printing of a true and correct copy of said opinion on the reverse side of each of said Bonds, with appropriate certificate pertaining thereto executed by facsimile signature of the City's Secretary is hereby approved and authorized. SECTION 22: CUSIP Numbers. CUSIP numbers may be printed or typed on the definitive Bonds. It is expressly provided, however, that the presence or absence of CUSIP numbers on the definitive Bonds shall be of no significance or effect as regards the legality thereof, and neither the City nor attorneys approving said Bonds as to legality are to be held responsible for CUSIP numbers incorrectly printed or typed on the definitive Bonds. SECTION 23: Effect of Headings. The Section headings herein are for convenience only and shall not affect the construction hereof. SECTION 24: Benefits of Ordinance. Nothing in this Ordinance, expressed or implied, is intended or shall be construed to confer upon any person other than the City, Bond Counsel, Paying Agent/Registrar, and the Holders, any right, remedy, or claim, legal or equitable, under or by reason of this Ordinance or any provision hereof, this Ordinance and all its provisions being intended to be and being for the sole and exclusive benefit of the City, Bond Counsel, Financial Advisors, the Paying Agent/Registrar, and the Holders. SECTION 25: Inconsistent Provisions. All resolutions and ordinances, or parts thereof, which are in conflict or inconsistent with any provision of this Ordinance are hereby repealed to the extent of such conflict, and the provisions of this Ordinance shall be and remain controlling as to the matters resolved herein. SECTION 26: Governing Law. This Ordinance shall be construed and enforced in accordance with the laws of the State of Texas and the United States of America. SECTION 27: Severability. If any provision of this Ordinance or the application thereof to any person or circumstance shall be held to be invalid, the remainder of this Ordinance and the application of such provision to other persons and circumstances shall nevertheless be valid, and the City Council hereby declares that this Ordinance would have been enacted without such invalid provision. SECTION 28: Incorporation of Preamble Recitals. The recitals contained in the preamble hereof are hereby found to be true, and such recitals are hereby made a part of this Ordinance for all purposes and are adopted as a part of the judgment and findings of the City Council. SECTION 29: Authorization of Paying Agent/Registrar Agreement. The City Council hereby finds and determines that it is in the best interest of the City to authorize the execution of a Paying Agent/Registrar Agreement concerning the payment, exchange, and transferability of the Bonds. A copy of the Paying Agent/Registrar Agreement is attached hereto, in substantially final form, as Exhibit D and is incorporated by reference to the provisions of this Ordinance. 81222633.2 -19- SECTION 30: Public Meeting. It is officially found, determined, and declared that the meeting at which this Ordinance is adopted was open to the public and public notice of the time, place, and subject matter of the public business to be considered at such meeting, including this Ordinance, was given, all as required by Chapter 551, as amended, Texas Government Code. SECTION 31: Continuing Disclosure of Information. A. Definitions. As used in this Section, the following terms have the meanings ascribed to such terms below: EMMA means the MSRB's Electronic Municipal Market Access system, accessible by the general public, without charge, on the internet through the uniform resource locator (URL) http: / /www.emma.msrb.org. MSRB means the Municipal Securities Rulemaking Board. Rule means SEC Rule 15c2 -12, as amended from time to time. SEC means the United States Securities and Exchange Commission. B. Annual Reports. The City shall file annually with the MSRB, (1) within six months after the end of each fiscal year of the City ending in or after 2012, financial information and operating data with respect to the System of the general type included in the final Official Statement authorized by Section 31 of this Ordinance, being the information described in Exhibit E hereto, and (2) if not provided as part such financial information and operating data, audited financial statements of the City, when and if available. Any financial statements so to be provided shall be prepared in accordance with the accounting principles described in Exhibit E hereto, or such other accounting principles as the City may be required to employ from time to time pursuant to state law or regulation, and (ii) audited, if the City commissions an audit of such statements and the audit is completed within the period during which they must be provided. If the audit of such financial statements is not complete within such period, then the City shall file unaudited financial statements within such period and audited for the applicable fiscal year to the MSRB, when and if the audit report on such statements becomes available. If the City changes its fiscal year, it will file notice thereof with the MSRB of the change (and of the date of the new fiscal year end) prior to the next date by which the City otherwise would be required to provide financial information and operating data pursuant to this Section. C. Notice of Certain Events. The City shall file notice of any of the following events with respect to the Bonds to the MSRB in a timely manner and not more than 10 business days after occurrence of the event: (1) Principal and interest payment delinquencies; (2) Non - payment related defaults, if material; (3) Unscheduled draws on debt service reserves reflecting financial difficulties; 81222633.2 -20- (4) Unscheduled draws on credit enhancements reflecting financial difficulties; (5) Substitution of credit or liquidity providers, or their failure to perform; (6) Adverse tax opinions, the issuance by the Internal Revenue Service of proposed or final determinations of taxability, Notices of Proposed Issue (IRS Form 5701 -TEB), or other material notices or determinations with respect to the tax status of the Bonds, or other material events affecting the tax status of the Bonds; (7) Modifications to rights of Holders of the Bonds, if material; (8) Bond calls, if material, and tender offers; (9) Defeasances; (10) Release, substitution, or sale of property securing repayment of the Bonds, if material; (11) Rating changes; (12) Bankruptcy, insolvency, receivership, or similar event of the City, which shall occur as described below; (13) The consummation of a merger, consolidation, or acquisition involving the City or the sale of all or substantially all of its assets, other than in the ordinary course of business, the entry into of a definitive agreement to undertake such an action or the termination of a definitive agreement relating to any such actions, other than pursuant to its terms, if material; and (14) Appointment of a successor or additional Paying Agent/Registrar or the change of name of a Paying Agent/Registrar, if material. For these purposes, any event described in the immediately preceding paragraph (12) is considered to occur when any of the following occur: the appointment of a receiver, fiscal agent, or similar officer for the City in a proceeding under the United States Bankruptcy Code or in any other proceeding under state or federal law in which a court or governmental authority has assumed jurisdiction over substantially all of the assets or business of the City, or if such jurisdiction has been assumed by leaving the existing governing body and officials or officers in possession but subject to the supervision and orders of a court or governmental authority, or the entry of an order confirming a plan of reorganization, arrangement, or liquidation by a court or governmental authority having supervision or jurisdiction over substantially all of the assets or business of the City. The City shall file notice with the MSRB, in a timely manner, of any failure by the City to provide financial information or operating data in accordance with this Section by the time required by this Section. 81222633.2 -21- D. Limitations, Disclaimers, and Amendments. The City shall be obligated to observe and perform the covenants specified in this Section for so long as, but only for so long as, the City remains an "obligated person" with respect to the Bonds within the meaning of the Rule, except that the City in any event will give notice of any deposit that causes the Bonds to be no longer Outstanding. The provisions of this Section are for the sole benefit of the Holders and beneficial owners of the Bonds, and nothing in this Section, express or implied, shall give any benefit or any legal or equitable right, remedy, or claim hereunder to any other person. The City undertakes to provide only the financial information, operating data, financial statements, and notices which it has expressly agreed to provide pursuant to this Section and does not hereby undertake to provide any other information that may be relevant or material to a complete presentation of the City's financial results, condition, or prospects or hereby undertake to update any information provided in accordance with this Section or otherwise, except as expressly provided herein. The City does not make any representation or warranty concerning such information or its usefulness to a decision to invest in or sell Bonds at any future date. UNDER NO CIRCUMSTANCES SHALL THE CITY BE LIABLE TO THE HOLDER OR BENEFICIAL OWNER OF ANY BOND OR ANY OTHER PERSON, IN CONTRACT OR TORT, FOR DAMAGES RESULTING IN WHOLE OR IN PART FROM ANY BREACH BY THE CITY, WHETHER NEGLIGENT OR WITH OR WITHOUT FAULT ON ITS PART, OF ANY COVENANT SPECIFIED IN THIS SECTION, BUT EVERY RIGHT AND REMEDY OF ANY SUCH PERSON, IN CONTRACT OR TORT, FOR OR ON ACCOUNT OF ANY SUCH BREACH SHALL BE LIMITED TO AN ACTION FOR MANDAMUS OR SPECIFIC PERFORMANCE. No default by the City in observing or performing its obligations under this Section shall constitute a breach of or default under this Ordinance for purposes of any other provision of this Ordinance. Nothing in this Section is intended or shall act to disclaim, waive, or otherwise limit the duties of the City under federal and state securities laws. The provisions of this Section may be amended by the City from time to time to adapt to changed circumstances that arise from a change in legal requirements, a change in law, or a change in the identity, nature, status, or type of operations of the City, but only if (1) the provisions of this Section, as so amended, would have permitted an underwriter to purchase or sell Bonds in the primary offering of the Bonds in compliance with the Rule, taking into account any amendments or interpretations of the Rule to the date of such amendment, as well as such changed circumstances, and (2) either (a) the Holders of a majority in aggregate principal amount (or any greater amount required by any other provision of this Ordinance that authorizes such an amendment) of the Outstanding Bonds consent to such amendment or (b) a person that is unaffiliated with the City (such as nationally recognized bond counsel) determines that such amendment will not materially impair the interests of the Holders and beneficial owners of the Bonds. The City may also repeal or amend the provisions of this Section if the SEC amends or repeals the applicable provisions of the Rule or any court of final jurisdiction enters judgment that such provisions of the Rule are invalid, and the City also may amend the provisions of this 81222633.2 -22- Section in its discretion in any other manner or circumstance, but in either case only if and to the extent that the provisions of this sentence would not have prevented an underwriter from lawfully purchasing or selling Bonds in the primary offering of the Bonds, giving effect to (a) such provisions as so amended and (b) any amendments or interpretations of the Rule. If the City so amends the provisions of this Section, the City shall include with any amended financial information or operating data next provided in accordance with this Section an explanation, in narrative form, of the reasons for the amendment and of the impact of any change in the type of financial information or operating data so provided. E. Information Format — Incorporation by Reference. The City information required under this Section shall be filed with the MSRB through EMMA in such format and accompanied by such identifying information as may be specified from time to time thereby. Under the current rules of the MSRB, continuing disclosure documents submitted to EMMA must be in word - searchable portable document format (PDF) files that permit the document to be saved, viewed, printed, and retransmitted by electronic means and the series of obligations to which such continuing disclosure documents relate must be identified by CUSIP number or numbers. Financial information and operating data to be provided pursuant to this Section may be set forth in full in one or more documents or may be included by specific reference to any document (including an official statement or other offering document) available to the public through EMMA or filed with the United States Securities and Exchange Commission. SECTION 32: Book -Entry Only System. The Bonds are initially registered so as to participate in a securities depository system (the DTC System) with the Depository Trust Company, New York, New York, or any successor entity thereto (DTC), as set forth herein. Each Stated Maturity of the Bonds shall be issued (following cancellation of the Initial Bond(s) described in Section [7]) in the form of a separate single definitive Bond. Upon issuance, the ownership of each such Bond shall be registered in the name of Cede & Co., as the nominee of DTC, and all of the Outstanding Bonds shall be registered in the name of Cede & Co., as the nominee of DTC. The City and the Paying Agent/Registrar are authorized to execute, deliver, and take the actions set forth in such letters to or agreements with DTC as shall be necessary to effectuate the DTC System, including the Letter of Representations attached hereto as Exhibit G (the Representation Letter). With respect to the Bonds registered in the name of Cede & Co., as nominee of DTC, the City and the Paying Agent/Registrar shall have no responsibility or obligation to any broker - dealer, bank, or other financial institution for which DTC holds the Bonds from time to time as securities depository (a Depository Participant) or to any person on behalf of whom such a Depository Participant holds an interest in the Bonds (an Indirect Participant). Without limiting the immediately preceding sentence, the City and the Paying Agent/Registrar shall have no responsibility or obligation with respect to (i) the accuracy of the records of DTC, Cede & Co., or any Depository Participant with respect to any ownership interest in the Bonds, (ii) the delivery to any Depository Participant or any other person, other than a registered owner of the Bonds, as shown on the Security Register, of any notice with respect to the Bonds, including any notice of redemption, or (iii) the delivery to any Depository Participant or any Indirect Participant or any other Person, other than a Holder of a Bond, of any amount with respect to 81222633.2 -23- principal of, premium, if any, or interest on the Bonds. While in the DTC System, no person other than Cede & Co., or any successor thereto, as nominee for DTC, shall receive a Bond evidencing the obligation of the City to make payments of principal, premium, if any, and interest pursuant to this Ordinance. Upon delivery by DTC to the Paying Agent/Registrar of written notice to the effect that DTC has determined to substitute a new nominee in place of Cede & Co., and subject to the provisions in this Ordinance with respect to interest checks or drafts being mailed to the Holder, the word "Cede & Co." in this Ordinance shall refer to such new nominee of DTC. In the event that (a) the City determines that DTC is incapable of discharging its responsibilities described herein and in the Representation Letter, (b) the Representation Letter shall be terminated for any reason, or (c) DTC or the City determines that it is in the best interest of the beneficial owners of the Bonds that they be able to obtain certificated Bonds, the City shall notify the Paying Agent/Registrar, DTC, and the Depository Participants of the availability within a reasonable period of time through DTC of bond certificates, and the Bonds shall no longer be restricted to being registered in the name of Cede & Co., as nominee of DTC. At that time, the City may determine that the Bonds shall be registered in the name of and deposited with a successor depository operating a securities depository system, as may be acceptable to the City, or such depository's agent or designee, and if the City and the Paying Agent/Registrar do not select such alternate securities depository system then the Bonds may be registered in whatever name or names the Holders of Bonds transferring or exchanging the Bonds shall designate, in accordance with the provisions hereof. Notwithstanding any other provision of this Ordinance to the contrary, so long as any Bond is registered in the name of Cede & Co., as nominee of DTC, all payments with respect to principal of, premium, if any, and interest on such Bond and all notices with respect to such Bond shall be made and given, respectively, in the manner provided in the Representation Letter. SECTION 33: Declaration of Intent to Reimburse for the Prior Expenditure of Certain Expenses. This Ordinance shall serve as a declaration of intent to establish the City's reasonable, official intent under Section 1.150 -2 of the Regulations and Section 1201.042 to reimburse itself from certain of the proceeds of the Bonds for any capital expenditures previously incurred (not more than 60 days prior to the date hereof) or to be incurred with respect to the Project from the City's General Fund or other lawfully available funds of the City. The City intends to issue one or more series of Bonds hereunder and, within 30 days after the date of issuance of a series Bonds, allocated the proceeds therefrom to reimburse the City for prior lawful expenditures with respect to the System improvements for which the Bonds are issued in a manner to comply with the Regulations. Any such reimbursed expenditures will be a type properly chargeable to a capital account (or would be so chargeable with a proper election) under general federal income tax principals. The City intends to otherwise comply, in addition to those matters addressed within this Ordinance, with all the requirements contained in the Regulations. With respect to the proceeds of a series of Bonds allocated to reimburse the City for prior expenditures, the City shall not employ an abusive device under Section 1.148 -10 of the Regulations, including using within one year of the reimbursement allocation, the funds 81222633.2 -24- corresponding to the proceeds of such series of Bonds in a manner that results in the creation of "replacement proceeds ", as defined in Section 1.148 -1 of the Regulations, of the particular series of Bonds or another issue of tax - exempt obligations. SECTION 34: Further Procedures. The officers and employees of the City are hereby authorized, empowered and directed from time to time and at any time to do and perform all such acts and things and to execute, acknowledge and deliver in the name and under the corporate seal and on behalf of the City all such instruments, whether or not herein mentioned, as may be necessary or desirable in order to carry out the terms and provisions of this Ordinance, the initial sale and delivery of the Bonds, the Agreement, the Paying Agent/Registrar Agreement, and the Purchase Contract. In addition, prior to the initial delivery of the Bonds, each Authorized Official and Bond Counsel are hereby authorized and directed to approve any technical changes or corrections to this Ordinance or to any of the instruments authorized and approved by this Ordinance necessary in order to (i) correct any ambiguity or mistake or properly or more completely document the transactions contemplated and approved by this Ordinance and as described in the Official Statement, (ii) obtain a rating from any of the national bond rating agencies, or (iii) obtain the approval of the Bonds by the Texas Attorney General's office. In case any officer of the City whose signature shall appear on any certificate shall cease to be such officer before the delivery of such certificate, such signature shall nevertheless be valid and sufficient for all purposes the same as if such officer had remained in office until such delivery. SECTION 35: Unavailability of Authorized Publication. If, because of the temporary or permanent suspension of any newspaper, journal, or other publication, or, for any reason, publication of notice cannot be made meeting any requirements herein established, any notice required to be published by the provisions of this Ordinance shall be given in such other manner and at such time or times as in the judgment of the City or of the Paying Agent/Registrar shall most effectively approximate such required publication and the giving of such notice in such manner shall for all purposes of this Ordinance be deemed to be in compliance with the requirements for publication thereof. SECTION 36: No Recourse Against City Officials. No recourse shall be had for the payment of principal of, premium, if any, or interest on any Bond or for any claim based thereon or on this Ordinance against any official of the City or any person executing any Bond. SECTION 37: Covenants of Compliance. The City shall faithfully and punctually perform all duties with reference to the System required by the Act, all other applicable laws of the State of Texas, and the provisions of this Ordinance and that the City shall render no free service to any customers or other persons. SECTION 38: Construction of Terms. If appropriate in the context of this Ordinance, words of the singular number shall be considered to include the plural, words of the plural number shall be considered to include the singular, and words of the masculine, feminine, or neuter gender shall be considered to include the other genders. SECTION 39: Effective Date. This Ordinance shall be in force and effect from and after its final passage, and it is so resolved. 81222633.2 -25- 81222633.2 [The remainder of this page intentionally left blank.] -26- SIGNED AND SEALED THIS 14th DAY OF AUGUST, 2012. CITY OF CORPUS CHRISTI, TEXAS Mayor ATTEST: City Secretary (SEAL) APPROVED THIS DAY OF , 2012: Carlos Valdez, City Attorney SCHEDULE EXHIBIT A EXHIBIT B EXHIBIT C EXHIBIT D EXHIBIT E — EXHIBIT F — EXHIBIT G I — Form of Approval Certificate — Ordinance Provisions Relating to Priority Bonds — Ordinance Provisions Relating to Junior Lien Obligations — Purchase Contract — Paying Agent/Registrar Agreement Description of Annual Financial Information Form of Credit Agreement — DTC Letter of Representations 81222633.2 S -1 THE STATE OF TEXAS COUNTY OF N UECES CITY OF CORPUS CHRISTI I, the undersigned, City Secretary of the City of Corpus Christi, Texas, do hereby certify that the above and foregoing is a true, full and correct copy of an Ordinance passed by the City Council of the City of Corpus Christi, Texas (and of the minutes pertaining thereto) on the 14th day of August, 2012, authorizing the issuance of one or more series of the City's Utility System Revenue Bonds, which ordinance is duly of record in the minutes of said City Council, and said meeting was open to the public, and public notice of the time, place and purpose of said meeting was given, all as required by Texas Government Code, Chapter 551. EXECUTED UNDER MY HAND AND SEAL of said City, this the 14th day of August, 2012. 81222633.2 City Secretary (CITY SEAL) S -2 81222633.2 SCHEDULE I Form of Approval Certificate Schedule I -1 EXHIBIT A Ordinance Provisions Relating to Priority Bonds 81222633.2 SECTION 1: FORMS. A. Forms Generally. The Bonds, the Registration Certificate of the Comptroller of Public Accounts of the State of Texas, the Certificate of Paying Agent/Registrar, and the form of Assignment to be printed on each of the Bonds shall be substantially in the forms set forth in this Section with such appropriate insertions, omissions, substitutions, and other variations as are permitted or required by this Ordinance and may have such letters, numbers, or other marks of identification (including insurance legends in the event the Bonds, or any Stated Maturities thereof, are insured and identifying numbers and letters of the Committee on Uniform Securities Identification Procedures of the American Bankers Association) and such legends and endorsements (including any reproduction of an opinion of counsel) thereon as may, consistent herewith, be established by the City or determined by the officers executing the Bonds as evidenced by their execution thereof. Any portion of the text of any Bond may be set forth on the reverse thereof, with an appropriate reference thereto on the face of the Bond. The definitive Bonds shall be printed, lithographed, or engraved, produced by any combination of these methods, or produced in any other similar manner, all as determined by the officers executing the Bonds as evidenced by their execution thereof, but the Initial Bond(s) submitted to the Attorney General of Texas may be typewritten or photocopied or otherwise reproduced. B. Form of Definitive Bond. REGISTERED REGISTERED PRINCIPAL AMOUNT NO. $ United States of America State of Texas Counties of Nueces, Aransas, Kleberg, and San Patricio CITY OF CORPUS CHRISTI, TEXAS UTILITY SYSTEM JUNIOR LIEN REVENUE BONDS, SERIES 2012 Dated Date: , 2012 REGISTERED OWNER: Interest Rate: Stated Maturity: CUSIP NO: PRINCIPAL AMOUNT: DOLLARS The City of Corpus Christi, Texas (the City), a body corporate and a municipal corporation located in the Counties of Nueces, Aransas, Kleberg, and San Patricio, State of Texas, for value received, hereby promises to pay to the order of the Registered Owner specified above, or the registered assigns thereof, on the Stated Maturity date specified above, the Principal Amount specified above (or so much thereof as shall not have been paid upon prior A -1 redemption), and to pay interest on the unpaid Principal Amount hereof from the Dated Date (anticipated to occur on or about , 2012) or from the most recent interest payment date to which interest has been paid or duly provided for, to the earlier of redemption or Stated Maturity, at the per annum rate of interest specified above computed on the basis of a 360 -day of 30 -day months; such interest being payable on January 15 and July 15 of each year commencing 15, 2013. Principal and premium, if any, of the Bond shall be payable to the Registered Owner hereof (the Holder) upon presentation and surrender, at the corporate trust office of the Paying Agent/Registrar executing the registration certificate appearing hereon or a successor thereof. Interest shall be payable to the Holder of this Bond (or one or more Predecessor Bonds, as defined in the Ordinance hereinafter referenced) whose name appears on the Security Register maintained by the Paying Agent/Registrar at the close of business on the Record Date, which is the last business day of the month next preceding each interest payment date. All payments of principal of and interest on this Bond shall be in any coin or currency of the United States of America which at the time of payment is legal tender for the payment of public and private debts. Interest shall be paid by the Paying Agent/Registrar by check sent on the appropriate date of payment by United States Mail, first -class postage prepaid, to the Holder hereof at the address appearing in the Security Register or by such other method, acceptable to the Paying Agent/Registrar, requested by the Holder hereof at the Holder's risk and expense. This Bond is one of the series specified in its title issued in the aggregate principal amount of $ (the Bonds) pursuant to an ordinance adopted by the governing body of the City (the Ordinance), for the purpose of (i) building, improving, extending, renovating, enlarging, and repairing the System and (ii) the payment of their costs of issuance. The Bonds are authorized to be issued pursuant to the authority conferred by and in conformity with the Constitution and laws of the State of Texas, particularly Chapters 1371 and 1502, as amended, Texas Government Code, the City's Home Rule Charter, and the Ordinance. [The remainder of this page intentionally left blank] The Bonds stated to mature on July 15, 20 are referred to herein as the "Term Bonds ". The Term Bonds are subject to mandatory sinking fund redemption prior to their stated maturities from money required to be deposited in the Bond Fund (but not the Reserve Fund) for such purpose and shall be redeemed in part, by lot or other customary method, at the principal amount thereof plus accrued interest to the date of redemption in the following principal amounts on July 15 in each of the years as set forth below: Term Bonds Stated to Mature on July 15, 20 Principal Year Amount ($) *Payable at stated maturity The principal amount of a Term Bond required to be redeemed pursuant to the operation of such mandatory redemption provisions shall be reduced, at the option of the City, by the principal amount of any Term Bonds of such stated maturity which, at least 50 days prior to the mandatory redemption date (1) shall have been defeased or acquired by the City and delivered to the Paying Agent/Registrar for cancellation, (2) shall have been purchased and canceled by the Paying Agent/Registrar at the request of the City with money in the Bond Fund (but not the Reserve Fund), or (3) shall have been redeemed pursuant to the optional redemption provisions set forth below and not theretofore credited against a mandatory redemption requirement. The Bonds stated to mature on and after July 15, 20 may be redeemed prior to their Stated Maturities, at the option of the City, on July 15, 20 or on any date, in whole or in part in principal amounts of $5,000 or any integral multiple thereof (and if within a Stated Maturity selected at random and by lot by the Paying Agent/Registrar) at the redemption price of par, together with accrued interest to the date of redemption, and upon thirty (30) days prior written notice being given by United States mail, first -class postage prepaid, to Holders of the Bonds to be redeemed, and subject to the terms and provisions relating thereto contained in the Ordinance. If this Bond is subject to redemption prior to Stated Maturity and is in a denomination in excess of $5,000, portions of the principal sum hereof in installments of $5,000 or any integral multiple thereof may be redeemed, and, if less than all of the principal sum hereof is to be redeemed, there shall be issued, without charge therefor, to the Holder hereof, upon the surrender of this Bond to the Paying Agent/Registrar at its corporate trust office, a new Bond or Bonds of like Stated Maturity and interest rate in any authorized denominations provided in the Ordinance for the then unredeemed balance of the principal sum hereof. A -3 If this Bond (or any portion of the principal sum hereof) shall have been duly called for redemption and notice of such redemption duly given, then upon such redemption date this Bond (or the portion of the principal sum hereof to be redeemed) shall become due and payable, and, if money for the payment of the redemption price and the interest accrued on the principal amount to be redeemed to the date of redemption is held for the purpose of such payment by the Paying Agent/Registrar, interest shall cease to accrue and be payable hereon from and after the redemption date on the principal amount hereof to be redeemed. In the event of a partial redemption of the principal amount of this Bond, payment of the redemption price of such principal amount shall be made to the registered owner only upon presentation and surrender of this Bond to the corporate trust office of the Paying Agent/Registrar and, there shall be issued to the registered owner hereof, without charge, a new Bond or Bonds of like maturity and interest rate in any authorized denominations provided in the Ordinance for the then unredeemed balance of the principal sum hereof If this Bond is called for redemption, in whole or in part, the City or the Paying Agent/Registrar shall not be required to issue, transfer, or exchange this Bond within forty -five (45) days of the date fixed for redemption; provided, however, such limitation of transfer shall not be applicable to an exchange by the Holder of the unredeemed balance hereof in the event of its redemption in part. The Bonds of this series are special obligations of the City, issued as the initial series of Junior Lien Obligations, payable from and equally and ratably secured by a lien on and pledge of the Junior Lien Pledged Revenues, being (primarily) lien on and pledge of the Net Revenues derived from the operation of the City's utility system (as further described in the Ordinance, the System), that is junior and inferior to the lien thereon and pledge thereof securing the repayment of the Priority Bonds, but senior and superior to the lien thereon and pledge thereof securing the repayment of the Inferior Lien Obligations. In the Ordinance, the City reserves and retains the right to issue Additional Priority Bonds, Additional Junior Lien Obligations, Additional Subordinate Lien Obligations, and Additional Inferior Lien Obligations without limitation as to principal amount but subject to any terms, conditions, or restrictions set forth in the Ordinance or as may be applicable thereto under law or otherwise. The Bonds do not constitute a legal or equitable pledge, charge, lien, or encumbrance upon any property of the City or System, except with respect to the Junior Lien Pledged Revenues. The Holder hereof shall never have the right to demand payment of this obligation out of any funds raised or to be raised by taxation. Reference is hereby made to the Ordinance, a copy of which is on file in the corporate trust office of the Paying Agent/Registrar, and to all of the provisions of which the Holder by his acceptance hereof hereby assents, for definitions of terms; the description and nature of the Junior Lien Pledged Revenues pledged for the payment of the Bonds; the terms and conditions under which the City may issue Additional Priority Bonds, Additional Junior Lien Obligations, Additional Subordinate Lien Obligations, and Additional Inferior Lien Obligations; the terms and conditions relating to the transfer or exchange of the Bonds; the conditions upon which the Ordinance may be amended or supplemented with or without the consent of the Holders; the rights, duties, and obligations of the City and the Paying Agent/Registrar; the terms and provisions upon which this Bond may be redeemed or discharged at or prior to the Stated Maturity thereof, and deemed to be no longer Outstanding thereunder; and for the other terms A -4 and provisions specified in the Ordinance. Capitalized terms used herein have the same meanings assigned in the Ordinance. This Bond, subject to certain limitations contained in the Ordinance, may be transferred on the Security Register upon presentation and surrender at the corporate trust office of the Paying Agent/Registrar, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Paying Agent/Registrar duly executed by the Holder hereof, or his duly authorized agent, and thereupon one or more new fully registered Bonds of the same Stated Maturity, of authorized denominations, bearing the same rate of interest, and of the same aggregate principal amount will be issued to the designated transferee or transferees. The City and the Paying Agent/Registrar, and any agent of either, shall treat the Holder hereof whose name appears on the Security Register (i) on the Record Date as the owner hereof for purposes of receiving payment of interest hereon, (ii) on the date of surrender of this Bond as the owner hereof for purposes of receiving payment of principal hereof at its Stated Maturity, or its redemption, in whole or in part, and (iii) on any other date as the owner hereof for all other purposes, and neither the City nor the Paying Agent/Registrar, or any such agent of either, shall be affected by notice to the contrary. In the event of a non - payment of interest on a scheduled payment date, and for thirty (30) days thereafter, a new record date for such interest payment (a Special Record Date) will be established by the Paying Agent/Registrar, if and when funds for the payment of such interest have been received from the City. Notice of the Special Record Date and of the scheduled payment date of the past due interest (the Special Payment Date - which shall be fifteen (15) days after the Special Record Date) shall be sent at least five (5) business days prior to the Special Record Date by United States mail, first -class postage prepaid, to the address of each Holder appearing on the Security Register at the close of business on the last business day next preceding the date of mailing of such notice. It is hereby certified, covenanted, and represented that all acts, conditions, and things required to be performed, exist, and be done precedent to the issuance of this Bond in order to render the same a legal, valid, and binding special obligation of the City have been performed, exist, and have been done, in regular and due time, form, and manner, as required by law, and that issuance of the Bonds does not exceed any constitutional or statutory limitation; and that due provision has been made for the payment of the principal of and interest on the Bonds by a pledge of and lien on the Junior Lien Pledged Revenues. In case any provision in this Bond or any application thereof shall be deemed invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions and applications shall not in any way be affected or impaired thereby. The terms and provisions of this Bond and the Ordinance shall be construed in accordance with and shall be governed by the laws of the State of Texas. [The remainder of this page intentionally left blank] IN WITNESS WHEREOF, this Bond has been signed with the imprinted or lithographed facsimile signature of the Mayor of the City, attested by the imprinted or lithographed facsimile signature of the City Secretary, and the official seal of the City has been duly affixed to, printed, lithographed or impressed on this Bond. CITY OF CORPUS CHRISTI, TEXAS Mayor ATTEST: City Secretary (SEAL) C. *Form of Registration Certificate of Comptroller of Public Accounts to Appear on Initial Bond(s) Only. REGISTRATION CERTIFICATE OF COMPTROLLER OF PUBLIC ACCOUNTS OFFICE OF THE COMPTROLLER OF PUBLIC ACCOUNTS REGISTER NO. THE STATE OF TEXAS I HEREBY CERTIFY that this Bond has been examined, certified as to validity and approved by the Attorney General of the State of Texas, and duly registered by the Comptroller of Public Accounts of the State of Texas. WITNESS my signature and seal of office this Comptroller of Public Accounts of the State of Texas (SEAL) * Bond to Printer: Not to appear on printed Bonds Only. D. *Form of Certificate of Paying Agent/Registrar to Appear on Definitive Bonds CERTIFICATE OF PAYING AGENT/REGISTRAR This Bond has been duly issued under the provisions of the within- mentioned Ordinance; the Bond or Bonds of the above - entitled and designated series originally delivered having been approved by the Attorney General of the State of Texas and registered by the Comptroller of Public Accounts, as shown by the records of the Paying Agent/Registrar. Registered this date: * Bond to Printer: to appear on printed Bonds E. Form of Assignment. Texas, as Paying Agent/Registrar By: Authorized Signature AS SIGNMENT FOR VALUE RECEIVED the undersigned hereby sells, assigns, and transfers unto (Print or typewrite name, address, and zip code of transferee): (Social Security or other identifying number): the within Bond and all rights thereunder, and hereby irrevocably constitutes and appoints attorney to transfer the within Bond on the books kept for registration thereof, with full power of substitution in the premises. DATED: NOTICE: The signature on this assignment must correspond with the name of the registered owner as it appears on the face of the within Bond in every particular. Signature guaranteed: F. The Initial Bond(s) shall be in the form set forth in paragraph B of this Section, except that the form of a single fully registered Initial Bond shall be modified as follows: (1) immediately under the name of the Bond(s) the headings "Interest Rate" and "Stated Maturity" shall both be completed "as shown below "; (2) the first two paragraphs shall read as follows: REGISTERED OWNER: PRINCIPAL AMOUNT: The City of Corpus Christi, Texas (the City), a body corporate and a municipal corporation located in the Counties of Nueces, Aransas, Kleberg, and San Patricio, State of Texas, for value received, hereby promises to pay to the order of the Registered Owner named above, or the registered assigns thereof, the Principal Amount specified above on the fifteenth day of July in each of the years and in principal amounts and bearing interest at per annum rates in accordance with the following schedule: Years of Principal Interest Stated Maturity Amounts ($) Rates ( %) (Information to be inserted from schedule in Section 2 hereof). (or so much thereof as shall not have been paid upon prior redemption) and to pay interest on the unpaid Principal Amount hereof from the Dated Date, or from the most recent interest payment date to which interest has been paid or duly provided for, to the earlier of redemption or Stated Maturity, at the per annum rate of interest specified above computed on the basis of a 360 -day of 30 -day months; such interest being payable on January 15 and July 15 of each year, commencing 15, 2013. Principal of this Bond shall be payable to the Registered Owner hereof (the Holder), upon its presentation and surrender, at the corporate trust office of , Texas (the Paying Agent /Registrar). Interest shall be payable to the Holder of this Bond whose name appears on the Security Register maintained by the Paying Agent/Registrar at the close of business on the Record Date, which is the last business day of the month next preceding each interest payment date. All payments of principal of and interest on this Bond shall be in any coin or currency of the United States of America which at the time of payment is legal tender for the payment of public and private debts. Interest shall be paid by the Paying Agent/Registrar by check sent on or prior to the appropriate date of payment by United States mail, first -class postage prepaid, to the Holder hereof at the address appearing in the Security Register or by such other method, acceptable to the Paying Agent/Registrar, requested by, and at the risk and expense of, the Holder hereof. G. Insurance Legend. If bond insurance is obtained by the Purchasers or the City for the Bonds, the definitive Bonds and the Initial Bond(s) shall bear an appropriate legend as provided by the insurer. A -9 SECTION 2: Definitions. For all purposes of this Ordinance (as defined below), except as otherwise expressly provided or unless the context otherwise requires: (i) the terms defined in this Section have the meanings assigned to them in this Section, and certain terms used in Sections [35] and [49] of this Ordinance have the meanings assigned to them in such Sections, and all such terms include the plural as well as the singular; (ii) all references in this Ordinance to designated "Sections" and other subdivisions are to the designated Sections and other subdivisions of this Ordinance as originally adopted; and (iii) the words "herein ", "hereof', and "hereunder" and other words of similar import refer to this Ordinance as a whole and not to any particular Section or other subdivision. A. The term Additional Priority Bonds shall mean (i) any bonds, notes, warrants, or other evidences of indebtedness which the City reserves the right to issue or enter into, as the case may be, in the future under the terms and conditions provided in Section [19] of this Ordinance and which are equally and ratably secured by a first and prior lien on and pledge of the Net Revenues of the System that is senior and superior to the lien thereon and pledge thereof that is made a part of Junior Lien Pledged Revenues or that may secure the repayment of any Inferior Lien Obligations and (ii) obligations hereafter issued to refund any of the foregoing if issued in a manner so as to be payable from and equally and ratably secured by a first and prior lien on and pledge of the Net Revenues as determined by the City Council in accordance with applicable law. B. The term Additional Inferior Lien Obligations shall mean (i) any bonds, notes, warrants, or any similar obligations hereafter issued by the City that are payable wholly or in part from and equally and ratably secured by a lien and pledge of the Net Revenues, such pledge is subordinate and inferior to the lien on and pledge of the Net Revenues that are or will be pledged to the payment of the Priority Bonds or that is included in Junior Lien Pledged Revenues, and on parity with the lien on and pledge of the Net Revenues securing the payment of the then - Outstanding Inferior Lien Obligations and (ii) obligations hereafter issued to refund any of the foregoing that are payable from and equally and ratably secured by a subordinate and inferior lien on and pledge of the Net Revenues as determined by the City Council in accordance with applicable law. C. The term Additional Junior Lien Obligations shall mean (i) any bonds, notes, warrants, or any similar obligations hereafter issued by the City that are payable wholly or in part from and equally and ratably secured by a lien and pledge of the Junior Lien Pledged Revenues, such pledge to include a pledge of Net Revenues that is junior and inferior to the lien on and pledge of the Net Revenues that are or will be pledged to the payment of the Priority Bonds now Outstanding or hereafter issued by the City but senior and superior to the lien thereon and pledge thereof that are or will be pledged to the payment of the Inferior Lien Obligations now Outstanding or hereafter issued by the City, and (ii) obligations hereafter issued to refund any of the foregoing that are payable from and equally and ratably secured solely by a lien on and pledge of the Junior Lien Pledged Revenues, as determined by the City Council in accordance with applicable law. D. The term Additional Subordinate Lien Obligations shall mean (i) any bonds, notes, warrants, or any similar obligations hereafter issued by the City that are payable wholly or in part from and equally and ratably secured by a lien and pledge of the Net Revenues, such A -10 pledge is subordinate and inferior to the lien on and pledge of the Net Revenues that are or will be pledged to the payment of the Priority Bonds or that is included in Junior Lien Pledged Revenues, but senior and superior to the lien thereon and pledge thereof that are or will be pledged to the payment of the Inferior Lien Obligations now Outstanding or hereafter issued by the City, and on parity with the lien on and pledge of the Net Revenues securing the payment of the then - Outstanding Subordinate Lien Obligations and (ii) obligations hereafter issued to refund any of the foregoing that are payable from and equally and ratably secured by a subordinate and inferior lien on and pledge of the Net Revenues as determined by the City Council in accordance with applicable law. E. The term Authorized Official shall mean the Mayor of the City, the City Manager of the City, the Assistant City Manager for General Government and Operations Support, the Director of Financial Services, and , the City Auditor. F. The term Average Annual Debt Service Requirements shall mean that average amount which, at the time of computation, will be required to pay the Debt Service Requirements of obligations when due and derived by dividing the total of such Debt Service Requirements by the number of years then remaining before final Stated Maturity. The calculation of Average Annual Debt Service Requirements shall be net of (1) capitalized interest from bond proceeds and (2) the receipt or anticipated receipt of a refundable tax credit or similar payment relating to a series of Junior Lien Obligations irrevocably designated as refundable tax credit bonds, which payment shall be treated as one offset to regularly scheduled debt service of the series of Junior Lien Obligations to which it relates. G. The term Bonds shall mean the $ "CITY OF CORPUS CHRISTI, TEXAS UTILITY SYSTEM JUNIOR LIEN REVENUE BONDS, SERIES 2012 ", dated , 2012, authorized by this Ordinance. H. The term Bond Fund shall mean the special Fund or account created and established by the provisions of Section 13 of this Ordinance. I. The term Capital Additions shall mean a reservoir or other water storage facilities, a water or wastewater treatment plant or an interest therein, an electric generation facility and /or distribution system or an interest therein, a gas distribution system or an interest therein and associated transmission facilities with respect to each and any combination thereof, which shall become a part of the System. J. The term Capital Improvements shall mean any capital extensions, improvements and betterments to the System other than Capital Additions. K. The term City shall mean the City of Corpus Christi, Texas and, where appropriate, the City Council of the City. L. The term Closing Date shall mean the date of physical delivery of the Initial Bonds in exchange for the payment in full by the Purchasers. M. The term Credit Agreement shall mean a loan agreement, revolving credit agreement, agreement establishing a line of credit, letter of credit, reimbursement agreement, A -11 insurance contract, commitments to purchase Debt, purchase or sale agreements, interest rate swap agreements, or commitments or other contracts or agreements authorized, recognized, and approved by the City as a Credit Agreement in connection with the authorization, issuance, security, or payment of any Bond or the payment of any Credit Facility. N. The term Credit Facility shall mean (i) a policy of insurance or a surety bond, issued by an issuer of policies of insurance insuring the timely payment of debt service on governmental obligations, or (ii) a letter or line of credit issued by any financial institution. O. The term Credit Provider shall mean any bank, financial institution, insurance company, surety bond provider, or other institution which provides, executes, issues, or otherwise is a party to or provider of a Credit Agreement or Credit Facility. P. The term Debt shall mean (1) all indebtedness payable from Junior Lien Pledged Revenues and /or Net Revenues incurred or assumed by the City for borrowed money (including indebtedness payable from Junior Lien Pledged Revenues and /or Net Revenues arising under Credit Agreements) and all other financing obligations of the System payable from Junior Lien Pledged Revenues and /or Net Revenues that, in accordance with generally accepted accounting principles, are shown on the liability side of a balance sheet; and (2) all other indebtedness payable from Junior Lien Pledged Revenues and /or Net Revenues (other than indebtedness otherwise treated as Debt hereunder) for borrowed money or for the acquisition, construction, or improvement of property or capitalized lease obligations pertaining to the System that is guaranteed, directly or indirectly, in any manner by the City, or that is in effect guaranteed, directly or indirectly, by the City through an agreement, contingent or otherwise, to purchase any such indebtedness or to advance or supply funds for the payment or purchase of any such indebtedness or to purchase property or services primarily for the purpose of enabling the debtor or seller to make payment of such indebtedness, or to assure the owner of the indebtedness against loss, or to supply funds to or in any other manner invest in the debtor (including any agreement to pay for property or services irrespective of whether or not such property is delivered or such services are rendered), or otherwise. For the purpose of determining Debt, there shall be excluded any particular Debt if, upon or prior to the maturity thereof, there shall have been deposited with the proper depository (a) in trust the necessary funds (or investments that will provide sufficient funds, if permitted by the instrument creating such Debt) for the payment, redemption, or satisfaction of such Debt or (b) evidence of such Debt deposited for cancellation; and thereafter it shall not be considered Debt. No item shall be considered Debt unless such item constitutes indebtedness under generally accepted accounting principles applied on a basis consistent with the financial statements of the System in prior Fiscal Years. Q. The term Debt Service Requirements shall mean, as of any particular date of computation, with respect to any obligations and with respect to any period, the aggregate of the amounts to be paid or set aside by the City as of such date or in such period for the payment of A -12 the principal of, premium, if any, and interest (to the extent not capitalized) on such obligations; assuming, in the case of obligations without a fixed numerical rate, that such obligations bear interest calculated by assuming (i) that the interest rate for every 12 -month period on such bonds is equal to the rate of interest reported in the most recently published edition of The Bond Buyer (or its successor) at the time of calculation as the "Revenue Bond Index" or, if such Revenue Bond Index is no longer being maintained by The Bond Buyer (or its successor) at the time of calculation, such interest rate shall be assumed to be 80% of the rate of interest then being paid on United States Treasury obligations of like maturity and (ii) that, in the case of bonds not subject to fixed scheduled mandatory sinking fund redemptions, that the principal of such bonds is amortized such that annual debt service is substantially level over the remaining stated life of such bonds or in the manner permitted under Section 1371.057(c), as amended, Texas Government Code as the same relates to interim or non — permanent indebtedness, and in the case of obligations required to be redeemed or prepaid as to principal prior to Stated Maturity according to a fixed schedule, the principal amounts thereof will be redeemed prior to Stated Maturity in accordance with the mandatory redemption provisions applicable thereto (in each case notwithstanding any contingent obligation to redeem bonds more rapidly). For the term of any Credit Agreement in the form of an interest rate hedge agreement entered into in connection with any such obligations, Debt Service Requirements shall be computed by netting the amounts payable to the City under such hedge agreement from the amounts payable by the City under such hedge agreement and such obligations. R. The term Depository shall mean an official depository bank of the City. S. The term Engineer shall mean an individual, firm, or corporation engaged in the engineering profession, being a registered professional engineer under the laws of the State of Texas, having specific experience with respect to a combined municipal utility system similar to the System and such individual, firm, or corporation may be employed by, or may be an employee of, the City. T. The term Federal Contract shall mean Contract No. 6 -07 -01 -X0675 entered into by an among the United States of America, the City and the Nueces River Authority, dated June 30, 1976, and amended on June 16, 1980, with respect to the Nueces River Reclamation Project, pursuant to which the City has pledged the revenues of its waterworks system in support of the payment obligations of the City under the Federal Contract, subordinate and inferior to the pledge of and lien on the Net Revenues securing the payment of the Priority Bonds, the lien thereon and pledge thereof securing the payment of the Junior Lien Obligations, as a result of such Net Revenues being included as Junior Lien Pledged Revenues, and the lien thereon and pledge thereof securing the payment of the Subordinate Lien Obligations. U. The term Fiscal Year shall mean the twelve month accounting period used by the City in connection with the operation of the System which may be any twelve consecutive month period established by the City, which period presently commences on August 1 of each year and ends on the following July 31. V. The term Government Securities as used herein, shall mean (i) direct noncallable obligations of the United States, including obligations that are unconditionally guaranteed by, the United States of America; (ii) noncallable obligations of an agency or instrumentality of the A -13 United States, including obligations that are unconditionally guaranteed or insured by the agency or instrumentality and that, on the date the governing body of the issuer adopts or approves the proceedings authorizing the issuance of refunding bonds, are rated as to investment quality by a nationally recognized investment rating firm not less than AAA or its equivalent; (iii) noncallable obligations of a state or an agency or a county, municipality, or other political subdivision of a state that have been refunded and that, on the date the governing body of the issuer adopts or approves the proceedings authorizing the issuance of refunding bonds, are rated as to investment quality by a nationally recognized investment rating firm not less than AAA or its equivalent; and (iv) any additional securities and obligations hereafter authorized by the laws of the State of Texas as eligible for use to accomplish the discharge of obligations such as the Bonds. W. The term Gross Revenues shall mean all revenues, income, and receipts derived or received by the City from the operation and ownership of the System, including the interest income from the investment or deposit of money in any Fund created or confirmed by this Ordinance or maintained by the City in connection with the System, other than those amounts subject to payment to the United States of America as rebate pursuant to section 148 of the Code. X. The term Holder or Holders shall mean the registered owner, whose name appears in the Security Register, for any Bond. Y. The term Inferior Lien Obligations shall mean (i) the Previously Issued Inferior Lien Obligations, (ii) any Additional Inferior Lien Obligations, and (iii) any obligations issued to refund the foregoing payable and equally and ratably secured from a subordinate and inferior lien on and pledge of the Net Revenues as determined by the City Council in accordance with any applicable law. Z. The term Interest Payment Date shall mean the date semiannual interest is payable on the Bonds, being January 15 and July 15 of each year, commencing 15, 2013, while any of the Bonds remain Outstanding. AA. The term Junior Lien Obligations shall mean (i) the Bonds, (ii) any Additional Junior Lien Obligations, and (iii) obligations hereafter issued to refund any of the foregoing that are payable from and equally and ratably secured solely by a lien on and pledge of the Junior Lien Pledged Revenues, which includes a lien on and pledge of Net Revenues that is junior and inferior to the lien thereon and pledge thereof securing the repayment of the Priority Bonds, but senior and superior to the lien thereon and pledge thereof securing the repayment of the Inferior Lien Obligations, as determined by the City Council in accordance with applicable law. BB. The term Junior Lien Pledged Revenues means (1) the Net Revenues that remain after payment of all amounts, and funding of all funds, relating to any Priority Bonds, plus (2) any additional revenues, income, receipts, or other resources, including, without limitation, any grants, donations, or income received or to be received from the United States Government, or any other public or private source, whether pursuant to an agreement or otherwise, which hereafter are pledged by the City to the payment of the Bonds, and at the City's discretion, any Additional Junior Lien Obligations, and excluding those revenues excluded from Gross Revenues. A -14 CC. The term Net Revenues shall mean all Gross Revenues less Operating Expenses. DD. The term Operating Expenses shall mean the expenses of operation and maintenance of the System, including all salaries, labor, materials, repairs, and extensions necessary to render efficient service; provided, however, that only such repairs and extensions, as in the judgment of the City, reasonably and fairly exercised by the passage of appropriate ordinances, are necessary to render adequate service, or such as might be necessary to meet some physical accident or condition which would otherwise impair any Priority Bonds, Junior Lien Obligations, Inferior Lien Obligations, or other Debt of the System. Operating Expenses shall include the purchase of water, sewer and gas services as received from other entities and the expenses related thereto, and, to the extent permitted by law, Operating Expenses may include payments made on or in respect of obtaining and maintaining any Credit Facility. Operating Expenses shall never include any allowance for depreciation, property retirement, depletion, obsolescence, and other items not requiring an outlay of cash and any interest on the Bonds or any Debt. EE. The term Ordinance shall mean this Ordinance adopted by the City Council on July 10, 2012. FF. The term Outstanding shall mean when used in this Ordinance with respect to all Debt means, as of the date of determination, all Debt except: (1) those Priority Bonds, Junior Lien Obligations, Subordinate Lien Obligations, and Inferior Lien Obligations canceled by the Paying Agent/Registrar or delivered to the Paying Agent/Registrar for cancellation; (2) those Priority Bonds, Junior Lien Obligations, Subordinate Lien Obligations, and Inferior Lien Obligations for which payment has been duly provided by the City in accordance with the provisions of Section 37 of this Ordinance; and (3) those Priority Bonds, Junior Lien Obligations, Subordinate Lien Obligations, and Inferior Lien Obligations that has been mutilated, destroyed, lost, or stolen and replacement Bonds have been registered and delivered in lieu thereof as provided in Section 30 of this Ordinance. GG. The term Previously Issued Inferior Lien Obligations shall mean the Federal Contract. HH. The term Previously Issued Priority Bonds shall mean, as of the Closing Date (i) the Outstanding and unpaid obligations of the City that are payable solely from and equally and ratably secured by a prior and first lien on and pledge of the Net Revenues of the System, identified as follows: (1) "City of Corpus Christi, Texas Utility System Revenue Refunding Bonds, Series 2003 ", dated May 15, 2003, in the original principal amount of $28,870,000; (2) "City of Corpus Christi, Texas Utility System Revenue Refunding Bonds, Series 2005 ", dated January 1, 2005, in the original principal amount of $70,390,000; A -15 (3) [ "City of Corpus Christi, Texas Utility System Revenue Refunding Bonds, Series 2005A ", dated October 1, 2005, in the original principal amount of $68,325,000;] (4) "City of Corpus Christi, Texas Utility System Revenue Refunding and Improvement Bonds, Series 2006 ", dated October 1, 2006, in the original principal amount of $84,415,000; (5) "City of Corpus Christi, Texas Utility System Revenue Improvement Bonds, Series 2009 ", dated March 1, 2009, in the original principal amount of $96,490,000; (6) "City of Corpus Christi, Texas Utility System Revenue Improvement Bonds, Series 2010 ", dated March 1, 2010, in the original principal amount of $8,000,000; (7) "City of Corpus Christi, Texas Utility System Revenue Improvement Bonds, Taxable Series 2010 (Direct Subsidy -Build America Bonds) ", dated July 1, 2010, in the original principal amount of $60,625,000; (8) "City of Corpus Christi, Texas Utility System Revenue Improvement Bonds, Series 2010A ", dated July 1, 2010, in the original principal amount of $14,375,000; and (9) "City of Corpus Christi, Texas Utility System Revenue Bonds, Series 2012 ", dated April 1, 2012, in the original principal amount of $55,000,000. 11. The term Previously Issued Subordinate Lien Obligations shall mean the Series 2007 Certificates of Obligation. JJ. The term Priority Bonds shall mean the Previously Issued Priority Bonds, any Additional Priority Bonds, and obligations hereafter issued to refund any of the foregoing if issued in a manner so as to be payable from and equally and ratably secured by a first and prior lien on and pledge of the Net Revenues of the System, as determined by the City Council in accordance with any applicable law. KK. The term Purchasers shall mean the initial purchaser or purchasers of the Bonds named in Section 31 of this Ordinance. LL. The term Series 2007 Certificates of Obligation shall mean the City's "Combination Tax and Utility System Revenue Certificates of Obligation, Series 2007 ", dated March 1, 2007, in the original principal amount of $6,985,000, being the only series of Subordinate Lien Obligations currently Outstanding. MM. The term Special Project shall mean, to the extent permitted by law, any water, sewer, wastewater reuse, or municipal drainage system property, improvement, or facility declared by the City, upon the recommendation of the City Council, not to be part of the System, for which the costs of acquisition, construction, and installation are paid from proceeds of Special Project Bonds (as hereinafter defined) being a financing transaction other than the A -16 issuance of bonds payable from ad valorem taxes, Junior Lien Pledged Revenues, or Net Revenues and for which all maintenance and operation expenses are payable from sources other than ad valorem taxes, Junior Lien Pledged Revenues, or Net Revenues, but only to the extent that and for so long as all or any part of the revenues or proceeds of which are or will be pledged to secure the payment or repayment of such costs of acquisition, construction, and installation under such Special Project Bonds. NN. The term Stated Maturity shall mean the annual principal payments of the Bonds payable on July 15 of each year, as set forth in Section 3 of this Ordinance. 00. The term Subordinate Lien Obligations shall mean (i) the Previously Issued Subordinate Lien Obligations, (ii) any Additional Subordinate Lien Obligations, and (iii) any obligations issued to refund the foregoing payable and equally and ratably secured from a s lien on and pledge of the Net Revenues that is subordinate and inferior to the lien there on and pledge thereof securing the payment of the Priority Bonds and the Junior Lien Obligations but superior to the lien thereon and pledge thereof securing the payment of the Inferior Lien Obligations, as determined by the City Council in accordance with any applicable law. PP. The term System shall mean and include, whether now existing or hereinafter added (including additions made from time to time in accordance with the provisions of the City ordinances authorizing the issuance of the Outstanding Priority Bonds), the City's existing combined waterworks system, wastewater disposal system and gas system, together with all future extensions, improvements, enlargements, and additions thereto, including, to the extent permitted by law (and to be added at the sole discretion of the City), storm sewer and drainage within the waterworks system, solid waste disposal system, additional utility (including electricity), telecommunications, technology, and any other similar enterprise services, and all replacements, additions, and improvements to any of the foregoing, within or without the City limits; provided that, notwithstanding the foregoing, and to the extent now or hereafter authorized or permitted by law, the term System shall not include any waterworks, wastewater or gas facilities which are declared by the City to be a Special Project and not a part of the System and which are hereafter acquired or constructed by the City with the proceeds from the issuance of "Special Project Bonds ", which are hereby defined as being special revenue obligations of the City which are not secured by or payable from all or part of the Junior Lien Pledged Revenues and /or Net Revenues, but which are secured by and payable solely from special contract revenues, or payments received from the City or any other legal entity, or any combination thereof, in connection with such facilities; and such revenues or payments shall not be considered as or constitute Gross Revenues of the System, unless and to the extent otherwise provided in the ordinance or ordinances authorizing the issuance of such "Special Project Bonds ". SECTION 3: Pledge of Junior Lien Pledged Revenues. A. The City hereby covenants and agrees that the Junior Lien Pledged Revenues of the System are hereby irrevocably pledged to the payment and security of the Junior Lien Obligations, including the establishment and maintenance of the special funds or accounts created for the payment and security thereof, all as hereinafter provided; and it is hereby resolved that the Junior Lien Obligations, and the interest thereon, shall constitute a lien on and pledge of A -17 the Junior Lien Pledged Revenues and be valid and binding without any physical delivery thereof or further act by the City, and the lien created hereby on the Junior Lien Pledged Revenues for the payment and security of the Junior Lien Obligations, shall be, subject to the subordinate lien nature of the Junior Lien Pledged Revenues as herein described otherwise, prior in right and claim as to any other indebtedness, liability, or obligation of the City or the System. The Junior Lien Obligations are and will be secured by and payable only from the Junior Lien Pledged Revenues, and are not secured by or payable from a mortgage or deed of trust on any properties whether real, personal, or mixed, constituting the System. B. Chapter 1208, as amended, Texas Government Code, applies to the issuance of the Bonds and the pledge of Junior Lien Pledged Revenues granted by the City under subsection (A) of this Section, and such pledge is therefore valid, effective, and perfected. If Texas law is amended at anytime while the Junior Lien Obligations are Outstanding and unpaid such that the pledge of the Junior Lien Pledged Revenues granted by the City is to be subject to the filing requirements of Chapter 9, Texas Business & Commerce Code, then in order to preserve to the registered owners of the Junior Lien Obligations the perfection of the security interest in this pledge, the City Council agrees to take such measures as it determines are reasonable and necessary under Texas law to comply with the applicable provisions of Chapter 9, as amended, Texas Business & Commerce Code and enable a filing to perfect the security interest in this pledge to occur. SECTION 4: Rates and Charges. For the benefit of the Holders of the Bonds and in addition to all provisions and covenants in the laws of the State of Texas and in this Ordinance, the City hereby expressly stipulates and agrees, while any of the Junior Lien Obligations are Outstanding, to establish and maintain rates and charges for facilities and services afforded by the System that are reasonably expected, on the basis of available information and experience and with due allowance for contingencies, to produce Gross Revenues in each Fiscal Year sufficient: A. To pay all Operating Expenses, or any expenses required by statute to be a first claim on and charge against the Gross Revenues of the System. B. To produce Net Revenues, together with any other lawfully available funds, sufficient to satisfy the rate covenant contained in the ordinances authorizing the issuance of the Priority Bonds and to pay the principal of and interest on the Priority Bonds and the amounts required to be deposited in any reserve or contingency fund or account created for the payment and security of the Priority Bonds, and any other obligations or evidences of indebtedness issued or incurred that are payable from and secured solely by a prior and first lien on an pledge of the Net Revenues of the System; C. To produce Net Revenues, together with any other lawfully available funds, sufficient to pay the principal of and interest on the Junior Lien Obligations as the same become due and payable and to deposit the amounts required to be deposited in any reserve or contingency fund or account created for the payment and security of the Junior Lien Obligations, and any other obligations or evidences of indebtedness issued or incurred that are payable from and secured solely by a lien on and pledge of the Net Revenues, including the Junior Lien Pledged Revenues, that is junior and inferior to the lien thereon and pledge thereof securing the A -18 repayment of the Priority Bonds but senior and superior to the lien thereon and pledge thereof securing the repayment of the Inferior Lien Obligations; D. To produce Net Revenues, together with any other lawfully available funds, sufficient to pay the amounts that may be deposited in the special funds established for the payment of the Subordinate Lien Obligations; E. To produce Net Revenues, together with any other lawfully available funds, sufficient to pay the principal of and interest on the Inferior Lien Obligations as the same become due and payable and to deposit the amounts required to be deposited in any reserve or contingency fund or account created for the payment and security of the Inferior Lien Obligations, and any other obligations or evidences of indebtedness issued or incurred that are payable from and secured solely by a lien on and pledge of the Net Revenues that is subordinate and inferior to the lien thereon and pledge thereof securing the repayment of the Priority Bonds and the Junior Lien Obligations; and F. To pay, together with any other lawfully available funds, any other legally incurred Debt payable from the Net Revenues of the System and /or secured by a lien on any part of the System. The determination of the amount of principal of and interest on any obligations identified in this Section for the purpose of confirming the sufficiency of System rates and charges shall be made after giving consideration as an offset to debt service the receipt or anticipated receipt of a refundable tax credit or similar payment relating to any series of obligations irrevocably designated as refundable tax credit bonds pursuant to the City ordinance authorizing their issuance or otherwise relating thereto. SECTION 5: System Fund. The City hereby covenants, agrees, and ratifies its prior covenants and agreements that the Gross Revenues of the System shall be deposited, as collected and received, into a separate Fund or account (previously created and established and to be maintained with the Depository) known as the "City of Corpus Christi, Texas Utility System Revenue Fund" (the System Fund) and that the Gross Revenues of the System shall be kept separate and apart from all other funds of the City. All Gross Revenues deposited into the System Fund shall be pledged and appropriated to the extent required for the following uses and in the order of priority shown: A. First: To the payment of all necessary and reasonable Operating Expenses or other expenses required by statute to be a first charge on and claim against the revenues of the System. B. Second: To the payment of the amounts required to be deposited into the special funds and accounts created and established for the payment, security and benefit of the Previously Issued Priority Bonds and any Additional Priority Bonds hereafter issued by the City. C. Third: To the payment of the amounts required to be deposited into the special funds and accounts created and established for the payment, security and benefit of the Bonds and any Additional Junior Lien Obligations hereafter issued by the City. A -19 D. Fourth: To the payment of the amounts required to be deposited into the special funds and accounts created and established for the payment, security and benefit of the Previously Issued Subordinate Lien Obligations and any Additional Subordinate Lien Obligations hereafter issued by the City. E. Fifth: To the payment of the amounts that must be deposited in any special funds and accounts created and established for the payment, security, and benefit of the Previously Issued Inferior Lien Obligations and any Additional Inferior Lien Obligations hereafter issued by the City. Any Net Revenues remaining in the System Fund following such transfers may be used by the City for payment of other obligations of the System, and for any other lawful purpose; provided, however, that for so long as any Priority Bonds remain Outstanding, transfers made for purposes other than for payment of obligations of the System shall be made only at the end of the Year (if such limitation is imposed, and then, only to the extent imposed in the City ordinances authorizing the issuance of the Priority Bonds. SECTION 6: Bond Fund - Excess Funds. For purposes of providing funds to pay the principal of and interest on the currently Outstanding Junior Lien Obligations as the same become due and payable, the City agrees to maintain, at the Depository, a separate and special Fund or account to be created and known as the "City of Corpus Christi, Texas Utility System Junior Lien Revenue Bonds Interest and Sinking Fund" (the Bond Fund). The City covenants that there shall be deposited by an Authorized Official into the Bond Fund prior to each principal and interest payment date from the available Net Revenues an amount equal to one hundred per cent (100 %) of the amount required to fully pay the interest on and the principal of the currently Outstanding Junior Lien Obligations then falling due and payable, such deposits to pay maturing principal and accrued interest on the currently Outstanding Junior Lien Obligations to be made in substantially equal monthly installments on or before the 10th day of each month, beginning on or before the 10th day of the month next following the delivery of the Bonds to the Purchaser. As described further in Section 15 hereof, if the Junior Lien Pledged Revenues in any month are insufficient to make the required payments into the Bond Fund, then the amount of any deficiency in such payment shall be added to the amount otherwise required to be paid into the Bond Fund in the next month. The required monthly deposits to the Bond Fund for the payment of principal of and interest on the currently Outstanding Junior Lien Obligations shall continue to be made as hereinabove provided until such time as (i) the total amount on deposit in the Bond Fund and Reserve Fund is equal to the amount required to fully pay and discharge all Outstanding Junior Lien Obligations (principal and interest) or (ii) the Junior Lien Obligations are no longer Outstanding. Any proceeds of the Bonds, and investment income thereon, not expended for authorized purposes shall be deposited into the Bond Fund and shall be taken into consideration and reduce the amount of monthly deposits required to be deposited into the Bond Fund from the Net Revenues of the System. A -20 Any surplus proceeds from the sale of the Bonds, including investment income thereon, not expended for authorized purposes shall be deposited in the Bond Fund, and such amounts so deposited shall reduce the sums otherwise required to be deposited in such Fund from the Junior Lien Pledged Revenues. SECTION 7: Reserve Fund. To accumulate and maintain a reserve for the payment of the Bonds equal to 110% of the Average Annual Debt Service Requirements or such lesser amount as restricted by the Code (calculated by the City Council at the beginning of each Fiscal Year and as of the date of issuance of the Bonds and each series of Additional Junior Lien Obligations) for the Bonds (the Required Reserve Amount), the City hereby creates and establishes, and shall maintain at a Depository a separate and special fund known as the "Corpus Christi, Texas Utility System Junior Lien Revenue Bonds Reserve Fund" (the Reserve Fund). Earnings and income derived from the investment of amounts held for the credit of the Reserve Fund shall be retained in the Reserve Fund until the Reserve Fund contains the Required Reserve Amount; thereafter, such earnings and income shall be deposited to the credit of the System Fund. All funds deposited into the Reserve Fund shall be used solely for the payment of the principal of and interest on the Bonds, when and to the extent other funds available for such purposes are insufficient, and, in addition, may be used to retire the last Stated Maturity or Stated Maturities of or interest on the Bonds. The City may acquire a Credit Facility or Facilities issued by a Credit Provider in amounts equal to all or part of the Required Reserve Amount for the Bonds in lieu of depositing cash into the Reserve Fund; provided, however, that no such Credit Facility may be so substituted unless the substitution of the Credit Facility will not, in and of itself, cause any ratings then assigned to the Bonds by any Rating Agency to be lowered and the resolution authorizing the substitution of the Credit Facility for all or part of the Required Reserve Amount for the Bonds contains (i) a finding that such substitution is cost effective and (ii) a provision that the interest due on any repayment obligation of the City by reason of payments made under such Credit Facility does not exceed the highest lawful rate of interest which may be paid by the City at the time of the delivery of the Credit Facility. The City reserves the right to use Junior Lien Pledged Revenues to fund the payment of (1) periodic premiums on the Credit Facility as a part of the payment of the City's Operating Expenses, and (2) any repayment obligation incurred by the City (including interest) to the Credit Provider, the payment of which will result in the reinstatement of such Credit Facility, prior to making payments required to be made to the Reserve Fund pursuant to the provisions of this Section to restore the balance in such fund the Required Reserve Amount for the Bonds. Until the issuance of any Additional Junior Lien Obligations (or as from time to time recalculated by the City as provided in the first paragraph of this Section), the Required Reserve Amount is $ . This amount shall be deposited to the Reserve Fund at such time as may be required pursuant to the provisions of this Section from Revenues, paid from the System Fund at such level of priority as specified in Section 12, by the deposit of monthly installments, made on or before the 10th day of each month following the month in which such obligation to fund the Reserve Fund arises, of not less than 1 /60th of the amount to be maintained in the Reserve Fund. As and when Additional Junior Lien Obligations are delivered or incurred, the Required Reserve Amount shall be increased, if required, to an amount calculated in the manner provided A -21 in the first paragraph of this Section. Any additional amount required to be maintained in the Reserve Fund shall be so accumulated by the deposit of all or a portion of the necessary amount from the proceeds of the issue or other lawfully available funds in the Reserve Fund immediately after the delivery of the then proposed Additional Junior Lien Obligations, or, at the option of the City, by the deposit of monthly installments, made on or before the business day before the 10th day of each month following the month of delivery of the then proposed Additional Junior Lien Obligations, of not less than 1 /60th of the additional amount to be maintained in the Reserve Fund by reason of the issuance of the Additional Junior Lien Obligations then being issued (or 1 /60th of the balance of the additional amount not deposited immediately in cash) (such deposits, the Required Reserve Fund Deposits), thereby ensuring the accumulation in the Reserve Fund of the appropriate Required Reserve Amount. When and for so long as the cash and investments in the Reserve Fund equal the Required Reserve Amount, no deposits need be made to the credit of the Reserve Fund; but, if and when the Reserve Fund at any time contains less than the Required Reserve Amount (other than as the result of the issuance of Additional Junior Lien Obligations as provided in the preceding paragraph), the City covenants and agrees to cure the deficiency in the Required Reserve Amount by resuming the Required Reserve Fund Deposits to the Reserve Fund from the Junior Lien Pledged Revenues in monthly deposit amounts equal to not less than 1 /60th of the Required Reserve Amount covenanted by the City to be maintained in the Reserve Fund. Any such deficiency payments shall be made on or before the 10th day of each month until the Required Reserve Amount has been fully restored. The City further covenants and agrees that, subject only to the prior payments to be made to the Bond Fund, the Junior Lien Pledged Revenues shall be applied and appropriated and used to establish and maintain the Required Reserve Amount and to cure any deficiency in such amounts as required by the terms of this Ordinance, any City ordinance authorizing the issuance of the Priority Bonds, and any other ordinance pertaining to the issuance of Additional Junior Lien Obligations. During such time as the Reserve Fund contains the Required Reserve Amount, the City Council may, at its option, withdraw all surplus funds in the Reserve Fund in excess of the Required Reserve Amount. Any such withdrawn surplus shall be deposited to the Bond Fund or used by the City for any other lawful purpose; provided, however, to the extent that such excess amount represents Bond proceeds, then such amount must be transferred to the Bond Fund or be otherwise used in accordance with then - applicable State law. In the event a Credit Facility issued to satisfy all or a part of the City's obligation with respect to the Reserve Fund causes the amount then on deposit in the Reserve Fund to exceed the Required Reserve Amount for the Bonds, the City may transfer such excess amount to any fund or funds established for the payment of or security for the Bonds (including any escrow established for the final payment of any such obligations pursuant to the provisions of Chapter 1207), or be used for any lawful purposes; provided, however, to the extent that such excess amount represents Bond proceeds, then such amount must be transferred to the Bond Fund or be otherwise used in accordance with then - applicable State law. Notwithstanding anything to the contrary contained in this Section, the requirements set forth above to fund the Reserve Fund in the amount of the Required Reserve Amount shall be suspended for such time as the Junior Lien Pledged Revenues for each Fiscal Year are equal to at A -22 least 110% of the Average Annual Debt Service Requirements. In the event that the Junior Lien Pledged Revenues for any two consecutive Fiscal Years are less than 110% (unless such percentage is below 100% in any Fiscal Year, in which case the hereinafter — specified requirements will commence after such Fiscal Year) of the Average Annual Debt Service Requirements, the City will be required to commence making the deposits to the Reserve Fund, as provided above, and to continue making such deposits until the earlier of (i) such time as the Reserve Fund contains the Required Reserve Amount or (ii) the Junior Lien Pledged Revenues for a Fiscal Year have been equal to not less than 110% of the Average Annual Debt Service Requirements. SECTION 8: Deficiencies - Excess Junior Lien Pledged Revenues. A. If on any occasion there shall not be sufficient Junior Lien Pledged Revenues to make the required deposits into the Bond Fund, then such deficiency shall be cured as soon as possible from the next available unallocated Junior Lien Pledged Revenues, or from any other sources available for such purpose, and such payments shall be in addition to the amounts required to be paid into these Funds or accounts during such month or months. B. Subject to making the required deposits to the Bond Fund when and as required by any ordinance or resolution authorizing the issuance of the currently Outstanding Priority Bonds, the Junior Lien Obligations and the Inferior Lien Obligations, the excess Net Revenues of the System may be used by the City for any lawful purpose (as further provided in Section 12 hereof). SECTION 9: Payment of Bonds. While any of the Bonds are Outstanding, the Authorized Officials shall cause to be transferred to the Paying Agent/Registrar therefor, from funds on deposit in the Bond Fund, amounts sufficient to fully pay and discharge promptly each installment of interest on and principal of the Bonds as such installment accrues or matures; such transfer of funds must be made in such manner as will cause immediately available funds to be deposited with the Paying Agent/Registrar for the Bonds at the close of the business day next preceding the date a debt service payment is due on the Bonds. SECTION 10: Investments. Funds held in any Fund or account created, established, or maintained pursuant to this Ordinance shall, at the option of the City, be placed in time deposits, certificates of deposit, guaranteed investment contracts or similar contractual agreements as permitted by the provisions of the Public Funds Investment Act, as amended, Chapter 2256, Texas Government Code, or any other law, and secured (to the extent not insured by the Federal Deposit Insurance Corporation) by obligations of the type hereinafter described, including investments held in book -entry form, in securities including, but not limited to, direct obligations of the United States of America, obligations guaranteed or insured by the United States of America, which, in the opinion of the Attorney General of the United States, are backed by its full faith and credit or represent its general obligations, or invested in indirect obligations of the United States of America, including, but not limited to, evidences of indebtedness issued, insured, or guaranteed by such governmental agencies as the Federal Land Banks, Federal Intermediate Credit Banks, Banks for Cooperatives, Federal Home Loan Banks, Government National Mortgage Association, Farmers Home Administration, Federal Home Loan Mortgage Association, or Federal Housing Association; provided that all such deposits and investments A -23 shall be made in such a manner that the money required to be expended from any Fund or account will be available at the proper time or times. Such investments (except State and Local Government Series investments held in book entry form, which shall at all times be valued at cost) shall be valued in terms of current market value within 45 days of the close of each Fiscal Year. All interest and income derived from deposits and investments in the Bond Fund immediately shall be credited to, and any losses debited to, the Bond Fund. All such investments shall be sold promptly when necessary to prevent any default in connection with the Bonds. SECTION 11: Application of the Covenants and Agreements of the Priority Bonds. It is the intention of the City Council and accordingly hereby recognized and stipulated that the provisions, agreements, and covenants contained herein bearing upon the management and operations of the System, and the administering and application of Gross Revenues derived from the operation thereof, shall to the extent possible be harmonized with like provisions, agreements, and covenants contained in the City ordinances authorizing the issuance of the Priority Bonds now or hereafter Outstanding, and to the extent of any irreconcilable conflict between the provisions contained herein and in the City ordinances authorizing the issuance of the Priority Bonds now or hereafter Outstanding, the provisions, agreements and covenants contained therein shall prevail to the extent of such conflict and be applicable to this Ordinance, especially the priority of rights and benefits conferred thereby to the holders of the Priority Bonds now or hereafter Outstanding. It is expressly recognized that prior to the issuance of any Additional Junior Lien Obligations or Additional Inferior Lien Obligations, that the City must comply with each of the conditions precedent contained in this Ordinance and the City ordinances authorizing the issuance of the then - Outstanding Priority Bonds, as appropriate. SECTION 12: Issuance of Additional Priority Bonds, Additional Junior Lien Obligations, Additional Subordinate Lien Obligations, and Additional Inferior Lien Obligations. The City hereby expressly reserves the right to hereafter issue bonds, notes, warrants, certificates of obligation, or similar obligations, payable, wholly or in part, as appropriate, from and secured by a pledge of and lien on the Net Revenues of the System with the following priorities, without limitation as to principal amount, but subject to any terms, conditions, or restrictions applicable thereto under existing ordinances, laws, or otherwise: A. Additional Priority Bonds payable from and equally and ratably secured by a first and prior lien on and pledge of the Net Revenues of the System upon satisfying each of the conditions precedent contained in the City ordinances authorizing the issuance of the Priority Bonds now or hereafter Outstanding. B. Additional Junior Lien Obligations, secured by and payable from the Junior Lien Pledged Revenues, which includes (primarily) a lien on and pledge of Net Revenues that is junior and inferior to the lien thereon and pledge thereof securing the repayment of the Priority Bonds but senior and superior to the lien there on and pledge thereof securing the repayment of the Subordinate Lien Obligations and the Inferior Lien Obligations, upon satisfying each of the following conditions precedent: (1) The City Manager (or other officer of the City then having the responsibility for the financial affairs of the City) shall have executed a certificate stating (i) that the City is not then in default as to any covenant, obligation or agreement A -24 contained in any ordinance or other proceeding relating to any obligations of the City payable from and secured by a lien on and pledge of the Net Revenues and (ii) that the amounts on deposit in all Funds or Accounts created and established for the payment and security of all Outstanding obligations payable from and secured by a lien on and pledge of the Net Revenues are the amounts then required to be deposited therein. Such certificate shall be dated on or before the date of delivery of such Additional Junior Lien Obligations, but such certificate shall not be dated prior to the date an ordinance is passed authorizing the issuance of such Additional Junior Lien Obligations. (2) Conditions Precedent for Issuance of Additional Junior Lien Obligations - Capital Improvements and for any other Lawful Purpose except for Capital Additions or for Refunding. The City covenants and agrees that Additional Junior Lien Obligations will not be issued for the purpose of financing Capital Improvements, or for any other lawful purpose (except for Capital Additions or for refunding, which are to be issued in accordance with the provisions of Subsection (3) this Section and Section 20 hereof, respectively) unless and until the conditions precedent in Subsection (1) above have been satisfied and, in addition thereto, the City has secured a certification of the City Manager to the effect that, according to the books and records of the City, the Net Earnings (as hereinafter defined) for the preceding Fiscal Year or for 12 consecutive months out of the 15 months immediately preceding the month the ordinance authorizing the Additional Junior Lien Obligations is adopted are at least equal to 1.10 times the Average Annual Debt Service Requirements for all then - Outstanding Priority Bonds or Junior Lien Obligations after giving effect to the Additional Junior Lien Obligations then proposed. The foregoing notwithstanding, the City covenants and agrees that Additional Junior Lien Obligations may not be issued for the purpose of financing Capital Improvements when other Outstanding Junior Lien Obligations which have been issued for the purpose of financing Capital Additions and for which capitalized interest for such other Junior Lien Obligations has been provided for at least the twelve months subsequent to the date of issuance of the Additional Junior Lien Obligations then proposed to be issued, unless the conditions precedent in Subsection (1) above have been satisfied and, in addition thereto, the City has either (1) complied with the relevant conditions in this Subsection as set forth above, or (2) if the relevant conditions of this Subsection (2) as set forth above cannot be satisfied, the City has satisfied the conditions precedent in Subsection (3)(i) and (ii) of this Section (but, for purposes of such clauses, the term Capital Improvements shall be substituted for the term Capital Additions where the term Capital Additions appears therein to the extent necessary to give recognition to the fact that Capital Improvements, rather than Capital Additions, are then to be financed) and has secured a certification of the City Manager to the effect that, according to the books and records of the City, the Net Earnings for the preceding Fiscal Year or for 12 consecutive months out of the 15 months immediately preceding the month the ordinance authorizing the Additional Junior Lien Obligations is adopted are at least equal to 1.10 times the Average Annual Debt Service Requirements for all then - Outstanding Priority Bonds and Junior Lien Obligations (other than any Priority Bonds or Junior Lien Obligations issued for Capital Additions for which capitalized interest has been provided for at least the twelve months subsequent to the date of issuance of the Additional Junior Lien Obligations proposed to be issued) after giving effect to the Additional Junior Lien Obligations then proposed to be issued. A -25 (3) Conditions Precedent for Issuance of Additional Junior Lien Obligations - Capital Additions: Initial Issue. The City covenants and agrees that Additional Junior Lien Obligations will not be issued for the purpose of financing Capital Additions, unless the same conditions precedent specified in Subsection (1) above have been satisfied and, in addition thereto, either the relevant conditions precedent specified in Subsection (1) above are satisfied or, in the alternative, the City shall have obtained: (i) from the Engineer of Record a comprehensive engineering report for each Capital Addition to be financed, which report shall (A) contain (1) detailed estimates of the cost of acquiring and constructing the Capital Addition, (2) the estimated date the acquisition and construction of the Capital Addition will be completed and commercially operative, and (3) a detailed analysis of the impact of the Capital Addition on the financial operations of the system for which the Capital Addition is to be integrated and to the System as a whole during the construction thereof and for at least five Fiscal Years after the date the Capital Addition becomes commercially operative, and (B) conclude that (1) the Capital Addition is necessary and will substantially increase the capacity, or is needed to replace existing facilities, to meet current and projected demands for the service or product to be provided thereby, and (2) the estimated cost of providing the service or product from the Capital Addition will be reasonable in comparison with projected costs for furnishing such service or product from other reasonably available sources; and (ii) a certificate of the Engineer of Record to the effect that, based on an engineering report prepared thereby for each Capital Addition, the projected Net Earnings for each of the five Fiscal Years subsequent to the date the Capital Addition becomes commercially operative (as estimated in the engineering report) will be equal to at least 1.10 times the Average Annual Debt Service Requirements for the currently Outstanding Junior Lien Obligations or incurred and all Additional Junior Lien Obligations estimated to be issued, if any, for all Capital Improvements and for all Capital Additions then in progress or then being initiated, during the period from the date the first series of obligations for the Capital Additions is to be delivered through the fifth Fiscal Year subsequent to the date the Capital Addition is estimated to become commercially operative. (4) Completion Issues. Once a Capital Addition has been initiated by meeting the conditions precedent specified in Subsection (3)(i) and (ii) above and the initial Junior Lien Obligations issued therefor are delivered, the City reserves the right to issue Additional Junior Lien Obligations to finance the remaining costs of such Capital Addition in such amounts as may be necessary to complete the acquisition and construction thereof and make the same commercially operative without satisfaction of any condition precedent under Subsection (3)(i) and (ii) or Subsection (1) of this Section but subject to satisfaction of the following conditions precedent: (i) the City makes a forecast (the Forecast) of the operations of the System demonstrating the System's ability to pay all obligations, payable from the Net Revenues of the System to be Outstanding after the issuance of the Additional Junior Lien Obligations then being issued for the period (the Forecast Period) of each ensuing Fiscal Year through the fifth Fiscal Year subsequent to the latest estimated date such Capital Addition is expected to be commercially operative; and (ii) the Engineer of Record reviews such Forecast and executes a certificate to the effect that (A) such Forecast is reasonable, and based thereon (and such other factors deemed to be relevant), the Net Revenues of the System will be adequate to pay all the obligations, payable from the Junior Lien Pledged Revenues of the A -26 System to be Outstanding after the issuance of the Additional Junior Lien Obligations then being issued for the Forecast Period and (B) the proceeds from the sale of such Additional Junior Lien Obligations are estimated to be sufficient to complete such acquisition and construction. (5) Computations; Reports. With reference to Junior Lien Obligations anticipated and estimated to be issued or incurred, the Average Annual Debt Service Requirements therefor shall be those reasonably estimated and computed by the City's Director of Financial Services (or other officer of the City then having the primary responsibility for the financial affairs of the City) after giving effect to the receipt or anticipated receipt of a refundable tax credit or similar payment relating to any series of Junior Lien Obligations irrevocably designated as refundable tax credit bonds, which payment shall be treated as an offset to regularly scheduled debt service of the series of Junior Lien Obligations to which it relates. In the preparation of the engineering report required in Subsection (3)(i) above, the Engineer of Record may rely on other experts or professionals, including those in the employment of the City, provided such engineering report discloses the extent of such reliance and concludes it is reasonable so to rely. In connection with the issuance of Junior Lien Obligations for Capital Additions, the certification of the City Manager and the Engineer of Record, together with the engineering report for the initial issue and the Forecast for a subsequent issue, shall be conclusive evidence and the only evidence required to show compliance with the provisions and requirements and this clause of this Section. (6) Combination Issues. Junior Lien Obligations for Capital Additions may be combined in a single issue with Junior Lien Obligations for Capital Improvements or for any lawful purpose provided the conditions precedent set forth in Subsection (2) through (4) are complied with as the same relate to the appropriate purpose. (7) Definition of Net Earnings. As used in this Section, the term Net Earnings shall mean the Gross Revenues of the System after deducting the Operating Expenses of the System and those items identified in the SECOND level of priority in Section 12 hereof, but not expenditures which, under standard accounting practice, should be charged to capital expenditures. (8) Determination of Net Earnings. In making a determination of Net Earnings for any of the purposes described in this Section, the City Manager may take into consideration a change in the rates and charges for services and facilities afforded by the System that became effective at least 60 days prior to the last day of the period for which Net Earnings are determined and, for purposes of satisfying any of the Net Earnings test described above, make a pro forma determination of the Net Earnings of the System for the period of time covered by the City Manager's certification or opinion based on such change in rates and charges being in effect for the entire period covered by the City Manager's certificate or opinion. C. The City may issue Additional Subordinate Lien Obligations secured by a lien on and pledge of the Net Revenues of the System subordinate and inferior to the lien thereon and pledge thereof securing the Priority Bonds and that is included in the Junior Lien Pledged A -27 Revenues, respectively, but senior and superior to the lien there on and pledge thereof securing the repayment of the Inferior Lien Obligations, on the terms and conditions desired by the City, subject only to the limitations imposed by applicable and upon satisfying each of the conditions precedent contained in the ordinances authorizing the issuance of the currently- Outstanding Priority Bonds, this Ordinance, and the Previously Issued Subordinate Lien Obligations. D. The City may issue Additional Inferior Lien Obligations secured by a lien on and pledge of the Net Revenues of the System subordinate and inferior to the lien thereon and pledge thereof securing the Priority Bonds and that is included in the Junior Lien Pledged Revenues, respectively, on the terms and conditions desired by the City, subject only to the limitations imposed by applicable and upon satisfying each of the conditions precedent contained in the ordinances authorizing the issuance of the currently- Outstanding Priority Bonds, this Ordinance, and, to the extent applicable, the Federal Contract. SECTION 13: Refunding Bonds. The City reserves the right to issue refunding bonds to refund all or any part of the currently Outstanding Debt, pursuant to any applicable law then available, upon such terms and conditions as the City Council may deem to be in the best interest of the City, and if less than all such currently Outstanding Debt are refunded, the conditions precedent prescribed for the issuance of Additional Junior Lien Obligations set forth in Section 19 of this Ordinance shall be satisfied and the City Managers' certification required in Section 19 shall give effect to the Debt Service Requirements of the proposed refunding bonds (but shall not give effect to the Debt Service Requirements of the obligations being refunded following their cancellation or provision being made for their payment); provided that, if after giving effect to any such partial refunding the average annual Debt Service Requirements for all Priority Bonds and Junior Lien Obligations will be reduced after giving effect to the then - anticipated refunding, then the test set forth in Subsection 2 of Section 19 shall be applied by substituting "1.00" for "1.10 ". EXHIBIT B Ordinance Provisions Relating to Junior Lien Obligations 81222633.2 SECTION 1: FORMS. A. Forms Generally. The Bonds, the Registration Certificate of the Comptroller of Public Accounts of the State of Texas, the Certificate of Paying Agent/Registrar, and the form of Assignment to be printed on each of the Bonds shall be substantially in the forms set forth in this Section with such appropriate insertions, omissions, substitutions, and other variations as are permitted or required by this Ordinance and may have such letters, numbers, or other marks of identification (including insurance legends in the event the Bonds, or any Stated Maturities thereof, are insured and identifying numbers and letters of the Committee on Uniform Securities Identification Procedures of the American Bankers Association) and such legends and endorsements (including any reproduction of an opinion of counsel) thereon as may, consistent herewith, be established by the City or determined by the officers executing the Bonds as evidenced by their execution thereof. Any portion of the text of any Bond may be set forth on the reverse thereof, with an appropriate reference thereto on the face of the Bond. The definitive Bonds shall be printed, lithographed, or engraved, produced by any combination of these methods, or produced in any other similar manner, all as determined by the officers executing the Bonds as evidenced by their execution thereof, but the Initial Bond(s) submitted to the Attorney General of Texas may be typewritten or photocopied or otherwise reproduced. B. FORM OF DEFINITIVE BOND. REGISTERED NO. REGISTERED PRINCIPAL AMOUNT United States of America State of Texas Counties of Nueces, Aransas, Kleberg, and San Patricio CITY OF CORPUS CHRISTI, TEXAS UTILITY SYSTEM REVENUE IMPROVEMENT BOND SERIES 2012A Bond Date: , 2012 REGISTERED OWNER: PRINCIPAL AMOUNT: Interest Rate: Stated Maturity: CUSIP No.: The City of Corpus Christi, Texas (the "City "), a body corporate and a municipal corporation in the Counties of Nueces, Aransas, Kleberg, and San Patricio, State of Texas, for value received, hereby promises to pay to the order of the Registered Owner specified above, or the registered assigns thereof, on the Stated Maturity date specified above, the Principal Amount specified above (or so much thereof as shall not have been paid upon prior redemption) and to pay interest on the unpaid Principal Amount hereof from the Bond Date or from the most recent interest payment date to which interest has been paid or duly provided for until such Principal Amount has become due and payment thereof has been made or duly provided for, to the earlier B -1 of redemption or Stated Maturity, at the per annum rate of interest specified above computed on the basis of a 360 -day year of twelve 30 -day months; such interest being payable on January 15 and July 15 of each year commencing 15, 2013. The principal of and interest on this Bond are payable in lawful money of the United States of America, without exchange or collection charges. The principal of this Bond shall be paid to the registered owner hereof upon presentation and surrender of this Bond at maturity or upon the date fixed for its redemption prior to maturity, at the designated trust office in Austin, Texas (the "Designated Trust Office ") of , which is the "Paying Agent/Registrar" for this Bond. The payment of interest on this Bond shall be made by the Paying Agent/Registrar to the registered owner hereof on each interest payment date by check or draft, dated as of such interest payment date, drawn by the Paying Agent/Registrar on, and payable solely from, funds of the Issuer required by the ordinance authorizing the issuance of this Bond (the "Bond Ordinance ") to be on deposit with the Paying Agent/Registrar for such purpose as hereinafter provided; and such check or draft shall be sent by the Paying Agent/Registrar by United States mail, first -class postage prepaid, on each such interest payment date, to the registered owner hereof, at its address as it appeared on the last business day of the month next preceding each such date (the "Record Date ") on the Registration Books kept by the Paying Agent/Registrar, as hereinafter described. Any accrued interest due at maturity or upon the redemption of this Bond prior to maturity as provided herein shall be paid to the registered owner upon presentation and surrender of this Bond for redemption and payment at the Designated Trust Office of the Paying Agent/Registrar. The Issuer covenants with the registered owner of this Bond that on or before each principal payment date, interest payment date, and accrued interest payment date for this Bond it will make available to the Paying Agent/Registrar, from the "Debt Service Fund" created by the Bond Ordinance, the amounts required to provide for the payment, in immediately available funds, of all principal of and interest on the Bonds, when due. While the Bonds are held by the Purchaser, payment of principal of, premium, if any, and interest on the Bonds shall be made by federal funds wire transfer, at no cost to the Purchaser, to an account at a financial institution located in the United States designated by the Purchaser. If the date for the payment of the principal of or interest on this Bond shall be a Saturday, Sunday, a legal holiday, or a day on which banking institutions in the City where the Designated Trust Office of the Paying Agent/Registrar is located are authorized by law or executive order to close, or the United States Postal Service is not open for business, then the date for such payment shall be the next succeeding day which is not such a Saturday, Sunday, legal holiday, or day on which banking institutions are authorized to close, or the United States Postal Service is not open for business; and payment on such date shall have the same force and effect as if made on the original date payment was due. This Bond is one of a series of bonds of like tenor and effect except as to number, principal amount, interest rate, maturity, and right of prior redemption, dated as of the Bond Date specified above, aggregating $ (herein sometimes called the "Bonds "), issued for the purposes of (i) acquiring, purchasing, constructing, improving, repairing, extending, equipping, and renovating the City's combined waterworks system, wastewater disposal system and gas system (collectively, the "System ") and (ii) to pay the costs of issuing the Bonds. B -2 The Bonds stated to mature on July 15, 20 are referred to herein as the "Term Bonds ". The Term Bonds are subject to mandatory sinking fund redemption prior to their stated maturities from money required to be deposited in the Debt Service Fund (but not the Reserve Fund) for such purpose and shall be redeemed in part, by lot or other customary method, at the principal amount thereof plus accrued interest to the date of redemption in the following principal amounts on July 15 in each of the years as set forth below: Term Bonds Stated to Mature on July 15, 20 Principal Year Amount ($) *Payable at stated maturity The principal amount of a Term Bond required to be redeemed pursuant to the operation of such mandatory redemption provisions shall be reduced, at the option of the City, by the principal amount of any Term Bonds of such stated maturity which, at least 50 days prior to the mandatory redemption date (1) shall have been defeased or acquired by the City and delivered to the Paying Agent/Registrar for cancellation, (2) shall have been purchased and canceled by the Paying Agent/Registrar at the request of the City with money in the Debt Service Fund (but not the Reserve Fund), or (3) shall have been redeemed pursuant to the optional redemption provisions set forth below and not theretofore credited against a mandatory redemption requirement. The City reserves the right to redeem the Bonds stated to mature on and after July 15, 20 , in whole or in part, on July 15, 20 , or on any date thereafter, in such order of stated maturity as the City shall determine and by lot or other customary method within a stated maturity at the redemption price of par plus accrued interest to the date of redemption. At least thirty (30) days prior to the date any such Bonds are to be redeemed, a notice of redemption, authorized by appropriate resolution passed by the Governing Body, shall be given in the manner set forth below. A written notice of such redemption shall be given to the registered owner of each Bond or a portion thereof being called for redemption by depositing such notice in the United States mail, first class postage prepaid, addressed to each such registered owner at his address shown on the Registration Books (as hereinafter defined) kept by B -3 the Paying Agent/Registrar. By the date fixed for any such redemption, due provision shall be made by the City with the Paying Agent/Registrar for the payment of the required redemption price for the Bonds or the portions thereof which are to be so redeemed, plus accrued interest thereon to the date fixed for redemption. If such written notice of redemption is given, and if due provision for such payment is made, all as provided above, the Bonds, or the portions thereof which are to be so redeemed, thereby automatically shall be redeemed prior to their scheduled maturities, shall not bear interest after the date fixed for their redemption, and shall not be regarded as being Outstanding except for the right of the registered owner to receive the redemption price plus accrued interest to the date fixed for redemption from the Paying Agent/Registrar out of the funds provided for such payment. The Paying Agent/Registrar shall record in the Registration Books all such redemptions of principal of the Bonds or any portion thereof If a portion of any Bonds shall be redeemed, a substitute Bond or Bonds having the same stated maturity date, bearing interest at the same interest rate, in any denomination or denominations in any integral multiple of $5,000, at the written request of the registered owner, and in an aggregate principal amount equal to the unredeemed portion thereof, will be issued to the registered owner upon the surrender thereof for cancellation, at the expense of the City, all as provided in the Ordinance. All Bonds of this series are issuable solely as fully registered bonds, without interest coupons, in an Authorized Denomination. As provided in the Bond Ordinance, this Bond may, at the request of the registered owner or the assignee or assignees hereof, be assigned, transferred, converted into and exchanged for a like aggregate amount of fully registered Bonds, without interest coupons, payable to the appropriate registered owner, assignee or assignees, as the case may be, having any Authorized Denomination or Denominations as requested in writing by the appropriate registered owner, assignee or assignees, as the case may be, upon surrender of this Bond to the Paying Agent/Registrar at its Designated Trust Office for cancellation, all in accordance with the form and procedures set forth in the Bond Ordinance. Among other requirements for such assignment and transfer, this Bond must be presented and surrendered to the Paying Agent/Registrar, together with proper instruments of assignment, in form and with guarantee of signatures satisfactory to the Paying Agent/Registrar, evidencing assignment of this Bond or any portion or portions hereof in any authorized denomination to the assignee or assignees in whose name or names this Bond or any such portion or portions hereof is or are to be registered. The form of Assignment printed or endorsed on this Bond may be executed by the registered owner to evidence the assignment hereof, but such method is not exclusive, and other instruments of assignment satisfactory to the Paying Agent/Registrar may be used to evidence the assignment of this Bond or any portion or portions hereof from time to time by the registered owner. The one requesting such conversion and exchange shall pay the Paying Agent/Registrar's reasonable standard or customary fees and charges for converting and exchanging any Bond or portion thereof. In any circumstance, any taxes or governmental charges required to be paid with respect thereto shall be paid by the one requesting such assignment, transfer, conversion or exchange, as a condition precedent to the exercise of such privilege. The foregoing notwithstanding, in the case of the conversion and exchange of an assigned and transferred Bond or Bonds or any portion or portions thereof, such fees and charges of the Paying Agent/Registrar will be paid by the Issuer. The Paying Agent/Registrar shall not be required (i) to make any such transfer, conversion or exchange during the period beginning at the opening of business 30 days before the day of the first mailing of a notice of redemption and ending at the close of business on the day of such mailing, or (ii) to transfer, convert or exchange B -4 any Bonds so selected for redemption when such redemption is scheduled to occur within 30 calendar days; provided, however, such limitation of transfer shall not be applicable to an exchange by the registered owner of an unredeemed balance of a Bond called for redemption in part. Whenever the beneficial ownership of this Bond is determined by a book entry at a securities depository for the Bonds, the foregoing requirements of holding, delivering or transferring this Bond shall be modified to require the appropriate person or entity to meet the requirements of the securities depository as to registering or transferring the book entry to produce the same effect. In the event any Paying Agent/Registrar for the Bonds is changed by the Issuer, resigns, or otherwise ceases to act as such, the Issuer has covenanted in the Bond Ordinance that it promptly will appoint a competent and legally qualified substitute therefor, whose qualifications substantially are similar to the previous Paying Agent/Registrar it is replacing, and promptly will cause written notice thereof to be mailed to the registered owners of the Bonds. By becoming the registered owner of this Bond, the registered owner thereby acknowledges all of the terms and provisions of the Bond Ordinance, agrees to be bound by such terms and provisions, acknowledges that the Bond Ordinance is duly recorded and available for inspection in the official minutes and records of the Issuer, and agrees that the terms and provisions of this Bond and the Bond Ordinance constitute a contract between each registered owner hereof and the Issuer. The Bonds are special obligations of the Issuer payable solely from and equally secured, together with the currently Outstanding Previously Issued Priority Bonds, by a first lien on and pledge of the Pledged Revenues of the System. The Issuer has reserved the right, subject to the restrictions stated, and adopted by reference, in the Bond Ordinance, to issue Additional Priority Bonds which also may be made payable from, and secured by a first lien on and pledge of, the aforesaid Pledged Revenues, as well as Subordinated Obligations payable from a junior and inferior lien on and pledge of the Pledged Revenues. For a more complete description and identification of the revenues and funds pledged to the payment of the Bonds, and other obligations of the Issuer secured by and payable from the same source or sources as the Bonds, reference is hereby made to the Bond Ordinance. The Issuer has reserved the right, subject to the restrictions stated, and adopted by reference, in the Bond Ordinance, to amend the Bond Ordinance; and under some (but not all) circumstances amendments must be approved by the owners of a majority in aggregate principal amount of the Outstanding Priority Bonds. The Registered Owner hereof shall never have the right to demand payment of this Bond out of any funds raised or to be raised by taxation. It is hereby certified and covenanted that this Bond has been duly and validly authorized, issued and delivered; and that all acts, conditions and things required or proper to be performed, exist and be done precedent to or in the authorization, issuance and delivery of this Bond have B -5 been performed, existed and been done in accordance with law. Capitalized terms used in this Bond without definition shall have the respective means ascribed to them in the Bond Ordinance. [The remainder of this page intentionally left blank.] IN WITNESS WHEREOF, this Bond has been signed with the imprinted or lithographed facsimile signature of the Mayor of said Issuer, attested by the imprinted or lithographed facsimile signature of the City Secretary, and the official seal of said Issuer has been duly affixed to, printed, lithographed or impressed on this Bond. ATTEST: City Secretary (SEAL) CITY OF CORPUS CHRISTI, TEXAS Mayor [The remainder of this page intentionally left blank] C. FORM OF COMPTROLLER'S REGISTRATION CERTIFICATE TO APPEAR ON INITIAL BONDS ONLY. REGISTRATION CERTIFICATE OF COMPTROLLER OF PUBLIC ACCOUNTS OFFICE OF THE COMPTROLLER OF PUBLIC ACCOUNTS REGISTER NO. THE STATE OF TEXAS I HEREBY CERTIFY that this Bond has been examined, certified as to validity and approved by the Attorney General of the State of Texas, and duly registered by the Comptroller of Public Accounts of the State of Texas. WITNESS my signature and seal of office this (SEAL) Comptroller of Public Accounts of the State of Texas D. FORM OF REGISTRATION CERTIFICATE OF PAYING AGENT/REGISTRAR. REGISTRATION CERTIFICATE OF PAYING AGENT/REGISTRAR This Bond has been duly issued and registered under the provisions of the within- mentioned Bond Ordinance; the Bond or Bonds of the above entitled and designated series originally delivered having been approved by the Attorney General of the State of Texas and registered by the Comptroller of Public Accounts, as shown by the records of the Paying Agent/Regi strar. Registered this date: BOKF NA, dba BANK OF TEXAS, Austin, Texas, as Paying Agent/Registrar By: Authorized Signature E. FORM OF ASSIGNMENT. AS SIGNMENT FOR VALUE RECEIVED the undersigned hereby sells, assigns, and transfers unto (Print or typewrite name, address, and zip code of transferee): (Social Security or other identifying number): the within Bond and all rights thereunder, and hereby irrevocably constitutes and appoints attorney to transfer the within Bond on the books kept for registration thereof, with full power of substitution in the premises. DATED: NOTICE: The signature on this assignment must correspond with the name of the registered owner as it appears on the face of the within Bond in every particular. Signature guaranteed: [The remainder of this page intentionally left blank] F. FORM OF INITIAL BOND(S). The Initial Bond(s) shall be in the form set forth in paragraph (a) of this Section, except that the form of the single fully registered Initial Bond shall be modified as follows: (i) immediately under the name of the Bond, the headings "Interest Rate " and "Stated Maturity " shall both be completed "as shown below "; and (ii) the first paragraph shall read as follows: The City of Corpus Christi, Texas (the City), a body corporate and municipal corporation in the Counties of Nueces, Aransas, Kleberg, and San Patricio, State of Texas, for value received, hereby promises to pay to the order of the Registered Owner named above, or the registered assigns thereof, the Principal Amount specified above on the fifteenth day of July in each of the years and in principal amounts and bearing interest at per annum rates in accordance with the following schedule: Years of Principal Interest Stated Maturity Amounts ($) Rates ( %) (Information to be inserted from schedule in Section 2 hereof). (or so much thereof as shall not have been paid upon prior redemption) and to pay interest on the unpaid Principal Amount hereof from the Bond Date, or from the most recent interest payment date to which interest has been paid or duly provided for until the Principal Amount has become due and payment thereof has been made or duly provided for, at the per annum rates of interest specified above computed on the basis of a 360 -day year of twelve 30 -day months; such interest being payable on January 15 and July 15 of each year, commencing 15, 2013. G. INSURANCE LEGEND. If bond insurance is obtained by the City for any Bond, the appropriate definitive Bonds and the Initial Bonds shall bear an appropriate legend as provided by the insurer. SECTION 2: Definitions. For all purposes of this Ordinance, except as otherwise expressly provided or unless the context otherwise require, the terms defined in this Section have the meanings assigned to them in this Section, and certain terms used in Sections 21 and 30 of this Ordinance have the meanings assigned to them in such respective Sections. A. The term "Account" shall mean any account created, established and maintained under the terms of any ordinance authorizing the issuance of Priority Bonds. B. The term "Accountant" shall mean a nationally recognized independent certified public accountant, or an independent firm of certified public accountants. C. The term "Additional Priority Bonds" shall mean the additional revenue bonds which the City reserves the right to issue in the future on a parity with the Previously Issued Priority Bonds and the Bonds, as provided in the Base Ordinance and this Ordinance. D. The term "Amortization Installment" shall mean the amount of money which is required to be deposited into the Mandatory Redemption Account for retirement of Term Bonds (whether at maturity or by mandatory redemption and including redemption premium, if any). E. The term "Attorney General" shall mean the Office of the Attorney General of the State of Texas. F. The term "Authorized Denomination" shall have the meaning given such term in Section 2 of this Ordinance. G. The term "Average Annual Principal and Interest Requirements" shall mean that amount equal to the average annual principal and interest requirements (including Amortization Installments) of all Priority Bonds Outstanding. With respect to Additional Priority Bonds that bear interest at a rate which is not established at the time of issuance at a single numerical rate for each maturity of such series, Average Annual Principal and Interest Requirements shall be calculated by (i) assuming that the interest rate for every 12 -month period on such bonds is equal to 9.20% or (ii) using the highest numerical rate borne over the preceding 24 month period by such bonds, whichever is greater; provided, however, that if such bonds have not borne interest at a variable rate for such 24 month period, such rate shall be assumed to be 9.20% until such time as bonds have been Outstanding for a 24 month period. In making such determinations, it shall be assumed that the principal of such bonds is amortized such that annual debt service is substantially level over the remaining stated life of such bonds. H. The term "Base Ordinance" shall mean the ordinance authorizing the issuance of the Series 1990 Bonds. I. The term "Bonds" shall have the meaning given such term in Section 1 of this Ordinance. J. The term "Capital Additions" shall mean a reservoir or other water storage facilities, a wastewater treatment plant or an interest therein, a gas distribution system or an interest therein and associated transmission facilities with respect to each and any combination thereof, which shall become a part of the System. K. The term "Capital Improvements" shall mean any capital extensions, improvements and betterments to the System other than Capital Additions. L. The term "Capitalized Interest Account" shall mean the Account by that name which may be created within the Debt Service Fund. M. The terms "City" and "Issuer" shall have the meaning given such terms in the preamble of this Ordinance. B -11 N. The term "Closing Date" shall mean the date of physical delivery of the Initial Bonds in exchange for the payment in full by the Purchaser. O. The term "Comptroller of Public Accounts" shall mean the Office of the Comptroller of Public Accounts of the State of Texas. P. The term "Credit Facility" shall mean a policy of municipal bond insurance, a debt service reserve fund policy or surety bond or a letter or line of credit issued by a Credit Facility Provider in support of any Priority Bonds or Subordinated Obligations. Q. The term "Credit Facility Provider" shall mean (i) with respect to any Credit Facility consisting of a policy of municipal bond insurance or a surety bond, an issuer of policies of insurance insuring the timely payment of debt service on governmental obligations such as the Priority Bonds, provided that a Rating Agency having an outstanding rating on the Priority Bonds would rate the Priority Bonds fully insured by a standard policy issued by the issuer in its highest generic rating category for such obligations; and (ii) with respect to any Credit Facility consisting of a letter or line of credit, any financial institution, provided that a Rating Agency having an outstanding rating on the Priority Bonds would rate the Priority Bonds in its two highest generic rating categories for such obligations if the letter or line of credit proposed to be issued by such financial institution secured the timely payment of the entire principal amount of the series of Priority Bonds and the interest thereon. R. The term "Debt Service Fund" shall have the meaning given such term in Section 9 of this Ordinance. S. The term "DTC" shall have the meaning given such term in Section 4 to this Ordinance. T. The term "Eligible Investments" shall mean those investments in which the City is authorized by law, including, but not limited to, the Public Funds Investment Act of 1987 (Chapter 2256, as amended, Texas Government Code), to purchase, sell and invest its funds and funds under its control, and with respect to the investment of proceeds of any Priority Bonds, guaranteed investment contracts fully collateralized by Government Obligations. U. The term "Engineer of Record" shall mean the independent engineer or firm at the time employed by the City to perform and carry out the duties imposed on such engineer or firm by this Ordinance and having a favorable reputation nationally for skill and experience in the engineering of water, sanitary sewer and /or gas systems of comparable size and character as those forming parts of the System. V. The term "Fund" shall mean any fund created, established and maintained under the terms of any ordinance authorizing the issuance of Priority Bonds. W. The term "Government Obligations" shall mean (i) with respect to any Previously Issued Priority Bonds except the Series 2009 Bonds, the Series 2010 Bonds, the Series 2010 Taxable Bonds, and the Series 2010A Bonds, direct obligations of the United States of America, including obligations the principal of and interest on which are unconditionally guaranteed by the United States of America and (ii) with respect to the Series 2009 Bonds, the Series 2010 B -12 Bonds, the Series 2010 Taxable Bonds, the Series 2010A Bonds, the Bonds, and any Additional Priority Bonds hereafter issued by the City, (1) direct noncallable obligations of the United States, including obligations that are unconditionally guaranteed by, the United States of America, (2) noncallable obligations of an agency or instrumentality of the United States, including obligations that are unconditionally guaranteed or insured by the agency or instrumentality and that, on the date the governing body of the issuer adopts or approves the proceedings authorizing the issuance of refunding bonds, are rated as to investment quality by a nationally recognized investment rating firm not less than "AAA" or its equivalent, or (3) noncallable obligations of a state or an agency or a county, municipality, or other political subdivision of a state that have been refunded and that, on the date the governing body of the issuer adopts or approves the proceedings authorizing the issuance of refunding bonds, are rated as to investment quality by a nationally recognized investment rating firm not less than "AAA" or its equivalent; provided, however, that in the event the term "Government Obligations" shall be used in such a manner other than with respect to the defeasance of Priority Bonds pursuant to Section 17 of this Ordinance, its meaning shall be consistent with that specified in clause (i) above until such time as there are no longer Outstanding any Previously Issued Priority Bonds (except the Series 2009 Bonds, the Series 2010 Bonds, the Series 2010 Taxable Bonds, and the Series 2010A Bonds, which are excluded from the definition of Previously Issued Priority Bonds for purposes of this clause) and, thereafter, it shall have the meaning ascribed thereto in clause (ii). X. The term "Gross Revenues" shall mean all revenues, income, and receipts derived or received by the City from the operation and ownership of the System, including the interest income from the investment or deposit of money in any Fund created or confirmed by this Ordinance or maintained by the City in connection with the System, other than those amounts subject to payment to the United States of America as rebate pursuant to section 148 of the Code. Y. The term "Mandatory Redemption Account" shall mean the Account by that name within the Debt Service Fund and established, if at all, by an ordinance authorizing the issuance of Priority Bonds. Z. The terms "Net Revenues of the System" and "Net Revenues" shall mean all Gross Revenues less Operating Expenses. AA. The term "Operating Expenses" shall mean the expenses of operation and maintenance of the System, including all salaries, labor, materials, repairs, and extensions necessary to render efficient service; provided, however, that only such repairs and extensions, as in the judgment of the City, reasonably and fairly exercised by the passage of appropriate ordinances, are necessary to render adequate service, or such as might be necessary to meet some physical accident or condition which would otherwise impair any Priority Bonds. Operating Expenses shall include the purchase of water, sewer and gas services as received from other entities and the expenses related thereto, and, to the extent permitted by law, Operating Expenses may include payments made on or in respect of obtaining and maintaining any Credit Facility. Depreciation, and payments from the System Fund to other funds established in this Ordinance, shall never be considered as expenses of operation and maintenance. B -13 BB. The term "Outstanding" shall mean, as of the date of determination, all Priority Bonds theretofore issued and delivered except: (1) those Priority Bonds theretofore canceled by the respective paying agents for such Priority Bonds or delivered to such paying agents for cancellation; (2) those Priority Bonds for which payment has been duly provided by the City by the irrevocable deposit with the respective paying agents for such Priority Bonds of money in the amount necessary to fully pay principal of, premium, if any, and interest thereon to maturity or redemption, if any, as the case may be, provided that, if such Priority Bonds are to be redeemed, notice of redemption thereof shall have been duly given pursuant to the ordinance authorizing the issuance of such Priority Bonds, irrevocably provided to be given to the satisfaction of such paying agents, or waived; (3) those Priority Bonds that have been mutilated, destroyed, lost, or stolen and for which replacement bonds have been registered and delivered in lieu thereof; and (4) those Priority Bonds for which the payment of principal thereof, premium, if any, and interest thereon to Stated Maturity re redemption has been duly provided for by the City by the deposit in trust of money or Government Obligations, or both. CC. The term "Paying Agent/Registrar" shall mean the financial institution specified in Section 4.A of this Ordinance, or its herein - permitted successors and assigns. DD. The term "Pledged Revenues" shall mean (1) the Net Revenues, plus (2) any additional revenues, income, receipts, or other resources, including, without limitation, any grants, donations, or income received or to be received from the United States Government, or any other public or private source, whether pursuant to an agreement or otherwise, which hereafter are pledged to the payment of the Priority Bonds. EE. The term "Previously Issued Priority Bonds" shall have the meaning given said term in the preamble to this Ordinance. FF. The term "Priority Bonds" shall mean the Previously Issued Priority Bonds, the Bonds, and any Additional Priority Bonds. GG. The term "Prudent Utility Practice" shall mean any of the practices, methods and acts, in the exercise of reasonable judgment, in the light of the facts, including but not limited to the practices, methods and acts engaged in or approved by a significant portion of the public utility industry prior thereto, known at the time the decision was made, would have been expected to accomplish the desired result at the lowest reasonable cost consistent with reliability, safety and expedition. It is recognized that Prudent Utility Practice is not intended to be limited to the optimum practice, method or act at the exclusion of all others, but rather is a spectrum of possible practices, methods or acts which could have been expected to accomplish the desired B -14 result at the lowest reasonable cost consistent with reliability, safety and expedition. In the case of any facility included in the System which is owned in common with one or more other entities, the term "Prudent Utility Practice ", as applied to such facility, shall have the meaning set forth in the agreement governing the operation of such facility. HH. The term "Purchaser" shall have the meaning given such term in Section 25 of this Ordinance. II. The term "Rating Agency" shall mean any nationally recognized securities rating agency which has assigned a rating to the Priority Bonds. JJ. The term "Required Amount" shall have the meaning given such term in Section 10 of this Ordinance. KK. The term "Reserve Fund" shall have the meaning given such term in Section 10 of this Ordinance. LL. The term "Reserve Fund Obligations" shall mean cash, Eligible Investments, any Credit Facility, or any combination of the foregoing. MM. The term "Series 1990 Bonds" shall mean the $64,660,000 City of Corpus Christi, Texas Utility System Revenue Refunding Bonds, Series 1990, authorized by the ordinance adopted by the City on November 15, 1990; the term "Series 1999 Bonds" shall mean the $47,740,000 City of Corpus Christi, Texas Utility System Revenue Refunding and Improvement Bonds Series 1999, authorized by the ordinance adopted by the City on May 11, 1999; the term "Series 1999 -A Bonds" shall mean the $15,750,000 City of Corpus Christi, Texas Utility System Revenue Refunding and Improvement Bonds, Series 1999 -A, authorized by the ordinance adopted by the City on April 20, 1999; the term "Series 2000 -A Bonds" shall mean the $42,520,000 City of Corpus Christi, Texas Utility System Revenue Refunding Bonds, Series 2000 -A, authorized by the ordinance adopted by the City on September 19, 2000; the term "Series 2002 Bonds" shall mean the $92,330,000 City of Corpus Christi, Texas Utility System Revenue Refunding and Improvement Bonds, Series 2002, authorized by the ordinance adopted by the City on August 20, 2002; the term "Series 2003 Bonds" shall mean the $28,870,000 City of Corpus Christi, Texas Utility System Revenue Refunding Bonds, Series 2003, authorized by the ordinance adopted by the City on March 25, 2003; the term "Series 2004 Bonds" shall mean the $50,000,000 City of Corpus Christi, Texas Utility System Revenue Refunding and Improvement Bonds, Series 2004, authorized by the ordinance adopted by the City on July 13, 2004; the term "Series 2005 Bonds" shall mean the $70,390,000 City of Corpus Christi, Texas Utility System Revenue Refunding Bonds, Series 2005, authorized by the ordinance adopted by the City on December 21, 2004; the term "Series 2005A Bonds" shall mean the $68,325,000 City of Corpus Christi, Texas Utility System Revenue Refunding Bonds, Series 2005A, authorized by the ordinance adopted by the City on August 30, 2005; the term "Series 2006 Bonds" shall mean the $84,415,000 City of Corpus Christi, Texas Utility System Revenue Refunding and Improvement Bonds, Series 2006, authorized by the ordinance adopted by the City on September 26, 2006; the term "Series 2009 Bonds" shall mean the $96,490,000 City of Corpus Christ, Texas Utility System Revenue Improvement Bonds, Series 2009, authorized by the ordinance adopted by the City on February 24, 2009, the term "Series 2010 Bonds" shall mean the B -15 $8,000,000 City of Corpus Christi, Texas Utility System Revenue Improvement Bonds, Series 2010, authorized by the ordinance adopted by the City on March 9, 2010, the term "Series 2010 Taxable Bonds" shall mean the $60,625,000 City of Corpus Christi, Texas Utility System Revenue Improvement Bonds, Taxable Series 2010 (Direct Subsidy —Build America Bonds), authorized by the ordinance adopted by the City concurrently with the adoption of this Ordinance on June 22, 2010, and the term "Series 2010A Bonds" shall mean the $14,375,000 City of Corpus Christi, Texas Utility System Revenue Improvement Bonds, Series 2010A, authorized by the ordinance adopted by the City on June 22, 2010. NN. The term "Subordinated Obligations" shall mean any bonds, notes, or other obligations issued pursuant to law payable in whole or in part from the Pledged Revenues but subordinate to the Priority Bonds. 00. The term "System" shall mean and include, for so long as the Previously Issued Priority Bonds (except for the Series 2010 Bonds, the Series 2010 Taxable Bonds, and the Series 2010A Bonds, which are excluded from such definition for this purpose) remain Outstanding or until consents from the Holders thereof permitting an amendment to the applicable authorizing ordinances providing for an earlier date of effectiveness are secured, the City's existing combined waterworks system, wastewater disposal system and gas system, together with all future extensions, improvements, enlargements, and additions thereto, including, to the extent permitted by law, storm sewer and drainage within the waterworks system, and all replacements thereof; thereafter, the term "System" shall mean and include the City's existing combined waterworks system, wastewater disposal system and gas system, together with all future extensions, improvements, enlargements, and additions thereto, including, to the extent permitted by law (and to be added at the sole discretion of the City), storm sewer and drainage within the waterworks system, solid waste disposal system, additional utility (including electricity), telecommunications, technology, and any other similar enterprise services, and all replacements, additions, and improvements to any of the foregoing, within or without the City limits; provided that, notwithstanding the foregoing, and to the extent now or hereafter authorized or permitted by law, the term System shall not include any waterworks, wastewater or gas facilities which are declared by the City not to be a part of the System and which are hereafter acquired or constructed by the City with the proceeds from the issuance of "Special Facilities Bonds ", which are hereby defined as being special revenue obligations of the City which are not secured by or payable from the Pledged Revenues, but which are secured by and payable solely from special contract revenues, or payments received from the City or any other legal entity, or any combination thereof, in connection with such facilities; and such revenues or payments shall not be considered as or constitute Gross Revenues of the System, unless and to the extent otherwise provided in the ordinance or ordinances authorizing the issuance of such "Special Facilities Bonds ". PP. The term "System Fund" shall have the meaning given such term in Section 8 of this Ordinance. QQ. The term "Term Bonds" shall have the meaning given such term in Section 2 of this Ordinance. B -16 RR. The term "Value of Investment Securities" and words of like import shall mean the amortized value thereof; provided, however, that all United States of America, United States Treasury Obligations - -State and Local Government Series shall be valued at par and those obligations which are redeemable at the option of the holder shall be valued at the price at which such obligations are then redeemable. The computations made under this paragraph shall include accrued interest on the investment securities paid as a part of the purchase price thereof and not collected. For the purposes of this definition, "amortized value ", when used with respect to a security purchased at par, means the purchase price of such security. SS. The term "Year" shall mean the regular fiscal year used by the City in connection with the operation of the System, which may be any twelve consecutive months period established by the City, currently being the period of time beginning on August 1 and ending on July 31. SECTION 3: Pledge. A. Pledged Revenues. The Priority Bonds are and shall be secured by and payable from a first lien on and pledge of the Pledged Revenues including such revenues within the System Fund and the Funds hereinafter created in this Ordinance; and the Pledged Revenues are further pledged to the establishment and maintenance of the Debt Service Fund and the Reserve Fund as hereinafter provided. The Priority Bonds are and will be secured by and payable only from the Pledged Revenues, and are not secured by or payable from a mortgage or deed of trust on any properties, whether real, personal, or mixed, constituting the System. B. Security Interest. Chapter 1208, as amended, Texas Government Code, applies to the issuance of the Bonds and the pledge of the Pledged Revenues granted by the City under Subsection A of this Section, and such pledge is therefore valid, effective, and perfected. If Texas law is amended at any time while the Bonds are Outstanding and unpaid such that the pledge of the Pledged Revenues granted by the City is to be subject to the filing requirements of Chapter 9, as amended, Texas Business & Commerce Code, then in order to preserve to the registered owners of the Bonds the perfection of the security interest in said pledge, the City agrees to take such measures as it determines are reasonable and necessary under Texas law to comply with the applicable provisions of Chapter 9, as amended, Texas Business & Commerce Code and enable a filing to perfect the security interest in said pledge to occur. SECTION 4: System Fund. There has heretofore been created and established and there shall be maintained on the books of the City, and accounted for separate and apart from all other funds of the City, a special fund entitled the "City of Corpus Christi Utility System Fund" (the "System Fund "). All Gross Revenues shall be credited to the System Fund immediately upon receipt. All Operating Expenses shall be paid from such Gross Revenues credited to the System Fund as a first charge against same. SECTION 5: Debt Service Fund. A. Debt Service Fund Established. For the sole purpose of paying the principal amount of, premium, if any, Amortization Installments, if any, and interest on all Priority Bonds, there has heretofore been created and established and there shall be maintained on the books of the B -17 City a separate fund entitled the "City of Corpus Christi Utility System Revenue Improvement Bonds Debt Service Fund" (the "Debt Service Fund "). Money in the Debt Service Fund shall be deposited and maintained in an official depository bank of the City. B. Capitalized Interest Account. Within the Debt Service Fund there may hereafter be established a Capitalized Interest Account. The proceeds of Priority Bonds representing capitalized interest may be deposited into the Capitalized Interest Account. On or before the day next preceding any interest payment date of Priority Bonds or other obligations for which any interest has been capitalized, the City shall use the money in the Capitalized Interest Account to pay such interest on such Priority Bonds or other obligations to the extent of the amounts therein representing such capitalized interest. C. Mandatory Redemption Account. Within the Debt Service Fund there has heretofore been established the Mandatory Redemption Account. Amortization Installments shall be deposited to the credit of the Mandatory Redemption Account and be used to retire the principal amount of Term Bonds in the manner described in any ordinance, including this Ordinance, authorizing the issuance of Term Bonds. D. Surplus Proceeds. Effective at such time as the Previously Issued Priority Bonds are no longer Outstanding, the City may transfer excess amounts held in the Debt Service Fund to any fund or funds established for the payment of or security for the Priority Bonds (including any escrow established for the final payment of any such obligations pursuant to Chapter 1207, as amended, Texas Government Code) or use such excess amount for any lawful purpose now or hereafter provided by law; provided, however, to the extent that such excess amount represents bond proceeds, then such amount must remain in the Debt Service Fund. SECTION 6: Reserve Fund. A. Reserve Fund Established. There has heretofore been created and established and there shall be maintained on the books of the City a separate fund entitled the "City of Corpus Christi Utility System Revenue Improvement Bonds Reserve Fund" (the "Reserve Fund "). There shall be deposited into the Reserve Fund any Reserve Fund Obligations so designated by the City. Reserve Fund Obligations in the Reserve Fund shall be deposited and maintained in an official depository bank of the City. Reserve Fund Obligations in the Reserve Fund shall be used solely for the purpose of retiring the last of any Priority Bonds as they become due or paying principal of and interest on any Priority Bonds when and to the extent the amounts in the Debt Service Fund are insufficient for such purpose. The Reserve Fund shall be maintained in an amount equal to the Average Annual Principal and Interest Requirements of the Outstanding Priority Bonds after giving consideration as an offset to debt service the receipt or anticipated receipt of a refundable tax credit or similar payment relating to a series of Priority Bonds irrevocably designated as refundable tax credit bonds pursuant to a prior parity lien ordinance amendment (the "Required Amount "). The City may, at its option, withdraw and transfer to the System Fund, all surplus in the Reserve Fund over the Required Amount. Upon the issuance of the Bonds, the Required Amount shall be $ , representing an increase of $ attributable to the issuance of the Bonds. As permitted by Section 18B, the City will satisfy this increase in the Required Amount attributable to the issuance of the Bonds by depositing not less B -18 than $53,367.85 to the Reserve Fund not later than the 10th day of each month for 60 consecutive months, commencing , 2012. B. Credit Facility. The City may replace or substitute a Credit Facility for cash or Eligible Investments on deposit in the Reserve Fund or in substitution for or replacement of any existing Credit Facility. Upon such replacement or substitution, cash or Eligible Investments on deposit in the Reserve Fund which, taken together with the face amount of any existing Credit Facilities, are in excess of the Required Amount may be withdrawn by the City, at its option, and transferred to the System Fund; provided, however, that the face amount of any Credit Facility may be reduced at the option of the City in lieu of such transfer; provided further, however, that such transfer to the System Fund shall be spent only in accordance with applicable law including (but not limited to) restrictions on the expenditure of such funds to the extent that the same were originally derived from proceeds of bonds or other evidences of indebtedness. C. Withdrawals. If the City is required to make a withdrawal from the Reserve Fund for any of the purposes described in this Section, the City shall promptly notify any applicable Credit Facility Provider of the necessity for a withdrawal from the Reserve Fund for any such purposes, and shall make such withdrawal FIRST from available money or Eligible Investments then on deposit in the Reserve Fund, and NEXT from a drawing under any Credit Facility to the extent of such deficiency. D. Deficiencies. In the event of a deficiency in the Reserve Fund, or in the event that on the date of termination or expiration of any Credit Facility there is not on deposit in the Reserve Fund sufficient Reserve Fund Obligations, all in an aggregate amount at least equal to the Required Amount, then the City shall satisfy the Required Amount by depositing Reserve Fund Obligations into the Reserve Fund in monthly installments of not less than 1/60 of the Required Amount made on or before the 10th day of each month following such termination or expiration. E. Redemption; Defeasance. In the event of the redemption or defeasance of any Priority Bonds, any Reserve Fund Obligations on deposit in the Reserve Fund in excess of the Required Amount may be withdrawn and transferred, at the option of the City, to the System Fund, as a result of (i) the redemption of any Priority Bonds, or (ii) funds for the payment of any Priority Bonds having been deposited irrevocably with the paying agent or place of payment therefor in the manner described in any ordinance authorizing the issuance of Priority Bonds, the result of such deposit being that such Priority Bonds no longer are deemed to be Outstanding under the terms of any such ordinance. F. Reimbursement of Credit Facility Provider. In the event there is a draw upon a Credit Facility, the City shall reimburse the Credit Facility Provider for such draw, in accordance with the terms of any agreement pursuant to which the Credit Facility is issued, from Pledged Revenues; provided, however, such reimbursement from Pledged Revenues shall be subordinate and junior in right of payment to the payment of principal of and premium, if any, and interest on the Priority Bonds. G. Additional Priority Bonds. Upon the issuance of Additional Priority Bonds the money in the Reserve Fund shall be increased to the newly - established Required Amount in accordance with the provisions of Section 18.B of this Ordinance. B -19 SECTION 7: Subordinated Obligations Funds and Accounts. The City hereafter may create, establish and maintain on the books of the City separate funds and accounts from which money can be withdrawn to pay the principal of and interest on Subordinated Obligations which hereafter may be issued. SECTION 8: Investments. Money in any Fund established pursuant to this Ordinance may, at the option of the City, be placed or invested in Eligible Investments. Money in the Reserve Fund shall not be invested in securities with an average aggregate weighted maturity of greater than seven years. If money in a Fund herein established are permitted to be invested, the value of any such Fund shall be established by adding the money therein to the Value of Investment Securities. The value of each such Fund shall be established annually during the last month of each Year, and in addition thereto and with respect to the Reserve Fund, value shall be established within thirty days prior to the issuance of Priority Bonds and at the time or times withdrawals are made therefrom. Such investments shall be sold promptly when necessary to prevent any default in connection with the Priority Bonds. Earnings derived from the investment of money on deposit in the various Funds and Accounts created hereunder shall be credited to the Fund or Account from which money used to acquire such investment shall have come. SECTION 9: Funds Secured. Money in the System Fund and all Funds created by this Ordinance, to the extent not invested, shall be secured in the manner prescribed by law for securing funds of the City. SECTION 10: Flow of Funds. All money in the System Fund not required for paying Operating Expenses during each month shall be applied by the City, on or before the 10th day of the following month, commencing during the months and in the order of priority with respect to the Funds and Accounts that such applications are hereinafter set forth in this Section. A. Debt Service Fund. To the credit of the Debt Service Fund, in the following order of priority, to -wit: (1) such amounts, deposited in approximately equal monthly installments, commencing during the month in which the Priority Bonds are delivered, or the month thereafter if delivery is made after the 10th day thereof, as will be sufficient, together with other amounts, if any, in the Debt Service Fund available for such purpose (including specifically money on deposit in the Capitalized Interest Account, if any, dedicated thereto), to pay the interest scheduled to come due on Priority Bonds on the next succeeding interest payment date; (2) such amounts, deposited in approximately equal monthly installments, commencing during the month which shall be the later to occur of (i) the twelfth month before the first maturity date of Priority Bonds or (ii) the month in which Priority Bonds are delivered, or the month thereafter if delivery is made after the 10th day thereof, as will be sufficient, together with other amounts, if any, in the Debt Service Fund available for such purpose, to pay the principal scheduled to mature on Priority Bonds on the next succeeding principal payment date; and B -20 (3) Amortization Installments, in such amounts and on such dates as set forth in any ordinance authorizing a series of Priority Bonds which contain Term Bonds within such series, to pay scheduled principal amounts of Priority Bonds which constitute Term Bonds to be redeemed in accordance with the terms of said ordinance. B. Reserve Fund. To the credit of the Reserve Fund, such amounts, deposited in approximately equal monthly installments, commencing during the month in which the Priority Bonds are delivered, or the month thereafter if delivery is made after the 10th day thereof, equal to not less than 1/60 of the Required Amount, until such time as such amounts together with other amounts, if any, in the Reserve Fund, equal the Required Amount. When and so long as the Reserve Fund Obligations in the Reserve Fund are not less than the Required Amount, no deposits need be made to the credit of the Reserve Fund. When and if the Reserve Fund at any time contains less than the Required Amount due to any cause or condition other than the issuance of Additional Priority Bonds then, subject and subordinate to making the required deposits to the credit of the Debt Service Fund, commencing with the month during which such deficiency occurs, such deficiency shall be made up from the next available Pledged Revenues or from any other sources available for such purpose. Reimbursements to a Credit Facility Provider made in accordance with the terms of Subsection 10.F of this Ordinance shall constitute the making up of a deficiency to the extent that such reimbursements result in the reinstatement, in whole or in part, as the case may be, of the amount of the Credit Facility. If the Reserve Fund contains less than the Required Amount due to the issuance of Additional Priority Bonds, deposits shall be made to the Reserve Fund commencing during the month and in the amounts required by Subsection 18.B of this Ordinance, unless a Credit Facility is deposited in the Reserve Fund in an amount necessary to cause the sum of money and the value of Investment Securities and any other Credit Facilities in the Reserve Fund to equal the Required Amount. C. Surplus. The balance of any money remaining in the System Fund following such transfers may be used by the City for payment of other obligations of the System, including, but not limited to, Subordinated Obligations, and for any other lawful purpose; provided, however, that transfers made for purposes other than for payment of obligations of the System shall be made only at the end of the Year. SECTION 11: Deficiencies. If on any occasion there shall not be sufficient Pledged Revenues to make the deposits and other applications of money required by Section 14 with respect to the various Funds as provided therein, any such deficiencies shall be made up (in the order that each such Fund is provided for in Section 14) as soon as possible from the next available Pledged Revenues, or from any other sources available for such purpose. The foregoing notwithstanding, however, if any deficiency in the Reserve Fund occurs as a result of withdrawals therefrom or decreases in the market value of Eligible Investments on deposit therein, such deficiency will be made up from the next available Pledged Revenues within twelve months from the date of such deficiency is determined, with such deposits to the Reserve Fund to be made in not more than twelve substantially equal monthly payments. SECTION 12: Payment of Bonds. On or before the first scheduled Interest Payment Date, and on or before each interest payment date and principal payment date thereafter while any of the Priority Bonds are Outstanding and unpaid, the City shall make available to the paying agent therefor, out of the Debt Service Fund (and the other Funds, if necessary, in the order of B -21 priority set forth herein) money sufficient to pay such interest on and such principal amount of the Priority Bonds, as shall become due and mature on such dates, respectively, at maturity or by redemption prior to maturity. The Paying Agent/Registrar, or the bond registrar for each series of Priority Bonds shall destroy all paid Priority Bonds, as applicable, and furnish the City with an appropriate certificate of cancellation or destruction. SECTION 13: Issuance of Additional Priority Bonds. A. Reservation of Right to Issue Additional Priority Bonds. Subject to the provisions hereinafter appearing as conditions precedent which must first be satisfied, the City reserves the right to issue, from time to time as needed, Additional Priority Bonds for any lawful purpose relating to the System. Such Additional Priority Bonds may be issued in such form and manner as now or hereafter authorized by the laws of the State of Texas for the issuance of evidences of indebtedness or other instruments, and should new methods or financing techniques be developed that differ from those now available and in normal use, the City reserves the right to employ the same in its financing arrangements provided only that the same conditions precedent herein required for the authorization and issuance of Additional Priority Bonds are satisfied. B. Debt Service Fund and Reserve Fund; Funding Reserve Fund. The Debt Service Fund and the Reserve Fund confirmed by this Ordinance shall secure and be used to pay all Additional Priority Bonds hereafter issued. Upon the issuance and delivery of Additional Priority Bonds, the additional amount required to be deposited in the Reserve Fund shall be so accumulated by the deposit in the Reserve Fund of all or any part of said required additional amount in cash immediately after the delivery of such Additional Priority Bonds, or, at the option of the City, (i) by the deposit of said required additional amount (or any balance of said required additional amount not deposited in cash as permitted above) in approximately equal monthly installments, made on or before the 10th day of each month following the delivery of such Additional Priority Bonds, of not less than 1 /60th of said required additional amount (or 1 /60th of the balance of said required additional amount not deposited in cash as permitted above) or (ii) by the deposit of a Credit Facility which, in whole or in combination with deposits described in clause (i) above, is sufficient to satisfy the required additional amount to be on deposit in the Reserve Fund. C. Calculations. All calculations of Average Annual Principal and Interest Requirements made pursuant to this Section shall be made as of and from the date of the Additional Priority Bonds then proposed to be issued. SECTION 14: Further Requirements for Additional Priority Bonds. A. Conditions Precedent for Issuance of Additional Priority Bonds - General. As a condition precedent to the issuance of any Additional Priority Bonds, the City Manager (or other officer of the City then having the responsibility for the financial affairs of the City) shall have executed a certificate stating (i) that the City is not then in default as to any covenant, obligation or agreement contained in any ordinance or other proceeding relating to any obligations of the City payable from and secured by a lien on and pledge of the Pledged Revenues and (ii) that the amounts on deposit in all Funds or Accounts created and established for the payment and security of all Outstanding obligations payable from and secured by a lien on and pledge of the B -22 Pledged Revenues are the amounts then required to be deposited therein. Such certificate shall be dated on or before the date of delivery of such Additional Priority Bonds, but such certificate shall not be dated prior to the date an ordinance is passed authorizing the issuance of such Additional Priority Bonds. B. Conditions Precedent for Issuance of Additional Priority Bonds - Capital Improvements and for any other Lawful Purpose except for Capital Additions or for Refunding. The City covenants and agrees that Additional Priority Bonds will not be issued for the purpose of financing Capital Improvements, or for any other lawful purpose (except for Capital Additions or for refunding, which are to be issued in accordance with the provisions of Subsection C, D or E of this Section) unless and until the conditions precedent in Subsection A above have been satisfied and, in addition thereto, the City has secured a certificate or opinion of the Accountant to the effect that, according to the books and records of the City, the Net Earnings (as hereinafter defined) for the preceding Year or for 12 consecutive months out of the 15 months immediately preceding the month the ordinance authorizing the Additional Priority Bonds is adopted are at least equal to 1.25 times the Average Annual Principal and Interest Requirements for all Outstanding Priority Bonds after giving effect to the Additional Priority Bonds then proposed. The foregoing notwithstanding, the City covenants and agrees that Additional Priority Bonds may not be issued for the purpose of financing Capital Improvements when other Outstanding Priority Bonds which have been issued for the purpose of financing Capital Additions and for which capitalized interest for such other Priority Bonds has been provided for at least the twelve months subsequent to the date of issuance of the Additional Priority Bonds then proposed to be issued, unless the conditions precedent in Subsection A above have been satisfied and, in addition thereto, the City has either (1) complied with the relevant conditions in this Subsection as set forth above, or (2) if the relevant conditions of this Subsection B as set forth above cannot be satisfied, the City has satisfied the conditions precedent in Subsection C(i) and (ii) of this Section (but, for purposes of such clauses, the term Capital Improvements shall be substituted for the term Capital Additions where the term Capital Additions appears therein to the extent necessary to give recognition to the fact that Capital Improvements, rather than Capital Additions, are then to be financed) and has secured a certificate or opinion of the Accountant to the effect that, according to the books and records of the City, the Net Earnings for the preceding Year or for 12 consecutive months out of the 15 months immediately preceding the month the ordinance authorizing the Additional Priority Bonds is adopted are at least equal to 1.25 times the Average Annual Principal and Interest Requirements for all Outstanding Priority Bonds (other than any Priority Bonds issued for Capital Additions for which capitalized interest has been provided for at least the twelve months subsequent to the date of issuance of the Additional Priority Bonds proposed to be issued) after giving effect to the Priority Bonds then proposed. C. Conditions Precedent for Issuance of Additional Priority Bonds - Capital Additions: Initial Issue. The City covenants and agrees that Additional Priority Bonds will not be issued for the purpose of financing Capital Additions, unless the same conditions precedent specified in Subsection A above have been satisfied and, in addition thereto, either the relevant conditions precedent specified in Subsection B above are satisfied or, in the alternative, the City shall have obtained: (i) from the Engineer of Record a comprehensive Engineering Report for each Capital Addition to be financed, which report shall (A) contain (1) detailed estimates of the cost of acquiring and constructing the Capital Addition, (2) the estimated date the acquisition and construction of the Capital Addition will be completed and commercially operative, and (3) a B -23 detailed analysis of the impact of the Capital Addition on the financial operations of the system for which the Capital Addition is to be integrated and to the System as a whole during the construction thereof and for at least five Years after the date the Capital Addition becomes commercially operative, and (B) conclude that (1) the Capital Addition is necessary and will substantially increase the capacity, or is needed to replace existing facilities, to meet current and projected demands for the service or product to be provided thereby, and (2) the estimated cost of providing the service or product from the Capital Addition will be reasonable in comparison with projected costs for furnishing such service or product from other reasonably available sources; and (ii) a certificate of the Engineer of Record to the effect that, based on the Engineering Report prepared for each Capital Addition, the projected Net Earnings for each of the five Years subsequent to the date the Capital Addition becomes commercially operative (as estimated in the Engineering Report) will be equal to at least 1.25 times the Average Annual Principal and Interest Requirements for Priority Bonds then Outstanding or incurred and all Priority Bonds estimated to be issued, if any, for all Capital Improvements and for all Capital Additions then in progress or then being initiated, during the period from the date the first series of obligations for the Capital Additions is to be delivered through the fifth Year subsequent to the date the Capital Addition is estimated to become commercially operative. D. Completion Issues. Once a Capital Addition has been initiated by meeting the conditions precedent specified in Subsection C(i) and (ii) above and the initial Priority Bonds issued therefor are delivered, the City reserves the right to issue Additional Priority Bonds to finance the remaining costs of such Capital Addition in such amounts as may be necessary to complete the acquisition and construction thereof and make the same commercially operative without satisfaction of any condition precedent under Subsection C(i) and (ii) or Subsection B of this Section but subject to satisfaction of the following conditions precedent: (i) the City makes a forecast (the "Forecast ") of the operations of the System demonstrating the System's ability to pay all obligations, payable from the Pledged Revenues of the System to be Outstanding after the issuance of the Additional Priority Bonds then being issued for the period (the "Forecast Period ") of each ensuing Year through the fifth Year subsequent to the latest estimated date such Capital Addition is expected to be commercially operative; and (ii) the Engineer of Record reviews such Forecast and executes a certificate to the effect that (A) such Forecast is reasonable, and based thereon (and such other factors deemed to be relevant), the Pledged Revenues of the System will be adequate to pay all the obligations, payable from the Pledged Revenues of the System to be Outstanding after the issuance of the Additional Priority Bonds then being issued for the Forecast Period and (B) the proceeds from the sale of such Additional Priority Bonds are estimated to be sufficient to complete such acquisition and construction. E. Refunding Issues. The City reserves the right to issue refunding bonds to refund all or any part of the Outstanding Priority Bonds (pursuant to any law then available), upon such terms and conditions as the governing body of the City may deem to be in the best interest of the City and its inhabitants, and if less than all such Outstanding Priority Bonds are refunded, the conditions precedent prescribed in Subsection A and B of this Section shall be satisfied and the Accountant's certificate or opinion required by Subsection B shall give effect to the issuance of the proposed refunding bonds (and shall not give effect to the Priority Bonds being refunded following their cancellation or provision being made for their payment). In addition, the City reserves the right to refund all or any part of any other obligations of the System, upon such terms and conditions as the Governing Body of the City may deem to be in the best interest of B -24 the City and its inhabitants, provided that the conditions prescribed in Subsection A and B of this Section shall be satisfied. No Accountant's certificate otherwise required by Subsection B will be required for refunding bonds, after giving effect to such proposed refunding, if there is no increase in debt service for any Year in which there will be debt service on Priority Bonds Outstanding both before and after such refunding. F. Computations; Reports. With reference to Priority Bonds anticipated and estimated to be issued or incurred, the Average Annual Principal and Interest Requirements therefor shall be those reasonably estimated and computed by the City's Director of Financial Services (or other officer of the City then having the primary responsibility for the financial affairs of the City) after giving effect to the receipt or anticipated receipt of a refundable tax credit or similar payment relating to a series of Priority Bonds irrevocably designated as refundable tax credit bonds, which payment shall be treated as an offset to regularly scheduled debt service of the series of Priority Bonds to which it relates. In the preparation of the Engineering Report required in Subsection C(i) above, the Engineer of Record may rely on other experts or professionals, including those in the employment of the City, provided such Engineering Report discloses the extent of such reliance and concludes it is reasonable so to rely. In connection with the issuance of Priority Bonds for Capital Additions, the certificate of the City's Director of Financial Services and Engineer of Record, together with the Engineering Report for the initial issue and the Forecast for a subsequent issue, shall be conclusive evidence and the only evidence required to show compliance with the provisions and requirements and this clause of this Section. G. Combination Issues. Priority Bonds for Capital Additions may be combined in a single issue with Priority Bonds for Capital Improvements or for any lawful purpose provided the conditions precedent set forth in Subsection B through E are complied with as the same relate to the appropriate purpose. H. Subordinated Obligations. The City may, at any time and from time to time, for any lawful purpose, issue Subordinated Obligations, the principal of and redemption premium, if any, and interest on which is payable from and secured by a pledge of and lien on the Pledged Revenues junior and subordinate to the lien and pledge created hereby for the security of the Priority Bonds and the payments required to be made hereunder into the Debt Service Fund and the Reserve Fund; provided, however, that any such pledge and lien securing the Subordinated Obligations shall be, and shall be expressed to be, subordinate in all respects to the pledge of and lien on the Pledged Revenues as security for the Priority Bonds; and provided further that any default with respect to the issuance of Subordinated Obligations will not be deemed a default with respect to the Priority Bonds. I. Definition of Net Earnings. As used in this Section, the term "Net Earnings" shall mean the Gross Revenues of the System after deducting the Operating Expenses of the System, but not expenditures which, under standard accounting practice, should be charged to capital expenditures. J. Determination of Net Earnings. In making a determination of Net Earnings for any of the purposes described in this Section, the Accountant may take into consideration a change in the rates and charges for services and facilities afforded by the System that became effective at least 60 days prior to the last day of the period for which Net Earnings are determined and, for B -25 purposes of satisfying any of the Net Earnings test described above, make a pro forma determination of the Net Earnings of the System for the period of time covered by the Accountant's certification or opinion based on such change in rates and charges being in effect for the entire period covered by the Accountant's certificate or opinion. SECTION 15: General Covenants. The City further covenants and agrees that in accordance with and to the extent required or permitted by law: A. Performance. It will faithfully perform at all times any and all covenants, undertakings, stipulations, and provisions contained in this Ordinance, and each ordinance authorizing the issuance of Additional Priority Bonds; it will promptly pay or cause to be paid the principal amount of and interest on every Priority Bond, on the dates and in the places and manner prescribed in such ordinances and such Priority Bonds; and it will, at the time and in the manner prescribed, deposit or cause to be deposited the amounts required to be deposited into the System Fund and the Funds herein created; and any registered owner of any Priority Bond may require the City, its officials and employees to carry out, respect or enforce the covenants and obligations of this Ordinance, or any ordinance authorizing the issuance of Priority Bonds, by all legal and equitable means, including specifically, but without limitation, the use and filing of mandamus proceedings, in any court of competent jurisdiction, against the City, its officials and employees. B. City's Legal Authority. It is a duly created and existing home rule city of the State of Texas, and is duly authorized under the laws of the State of Texas to issue the Bonds; that all action on its part for the issuance of the Bonds has been duly and effectively taken, and that the Bonds in the hands of the owners thereof are and will be valid and enforceable special obligations of the City in accordance with their terms. C. Acquisition and Construction; Operation and Maintenance. (1) It shall use its best efforts in accordance with Prudent Utility Practice to acquire and construct, or cause to be acquired and constructed, any Capital Additions or Capital Improvements, in accordance with the plans and specifications therefor, as modified from time to time, with due diligence and in a sound and economical manner; and (2) it shall at all times use its best efforts to operate or cause to be operated the System properly and in an efficient manner, consistent with Prudent Utility Practice, and shall use its best efforts to maintain, preserve, reconstruct and keep the same or cause the same to be so maintained, preserved, reconstructed and kept, with the appurtenances and every part and parcel thereof, in good repair, working order and condition, and shall from time to time make, or use its best efforts to cause to be made, all necessary and proper repairs, replacement and renewals so that at all times the operation of the System may be properly and advantageously conducted. D. Title. It has or will obtain lawful title, whether such title is in fee or lesser interest, to the lands, buildings, structures and facilities constituting the System, that it warrants that it will defend the title to all the aforesaid lands, buildings, structures and facilities, and every part thereof, for the benefit of the owners of the Priority Bonds, against the claims and demands of all persons whomsoever, that it is lawfully qualified to pledge the Pledged Revenues to the payment of the Priority Bonds in the manner prescribed herein, and has lawfully exercised such rights. B -26 E. Liens. It will from time to time and before the same become delinquent pay and discharge all taxes, assessments and governmental charges, if any, which shall be lawfully imposed upon it, or the System; it will pay all lawful claims for rents, royalties, labor, materials and supplies which if unpaid might by law become a lien or charge thereon, the lien of which would be prior to or interfere with the liens hereof, so that the priority of the liens granted hereunder shall be fully preserved in the manner provided herein, and it will not create or suffer to be created any mechanic's, laborer's, materialman's or other lien or charge which might or could be prior to the liens hereof, or do or suffer any matter or thing whereby the liens hereof might or could be impaired; provided however, that no such tax, assessment or charge, and that no such claims which might be used as the basis of a mechanic's, laborer's, materialman's or other lien or charge, shall be required to be paid so long as the validity of the same shall be contested in good faith by the City. F. No Free Service. No free service or service otherwise than in accordance with the established rate schedule shall be furnished, directly or indirectly, by the System to any person, firm, corporation or other entity, other than the City. No part of the salary of any official or employee of the City or his replacement shall be paid from Pledged Revenues unless and only to the extent the duties and performances of such official or employee or his replacement appertain directly to the System. To the extent the City receives the services of the System, such services shall be accounted for according to the established rate schedule. G. Further Encumbrance. It will not additionally encumber the Pledged Revenues in any manner, except as permitted in this Ordinance in connection with Priority Bonds, unless said encumbrance is made junior and subordinate in all respects to the liens, pledges, covenants and agreements of this Ordinance; but the right of the City to issue Subordinated Obligations payable in whole or in part from a subordinate lien on the Pledged Revenues is specifically recognized and retained. H. Sale, Lease or Disposal of Property. No part of the System shall be sold, leased, mortgaged, demolished, removed or otherwise disposed of, except as follows: (1) To the extent permitted by law, the City may sell or exchange at any time and from time to time any property or facilities constituting part of the System only if (A) it shall determine such property or facilities are not useful in the operation of the System, or (B) the proceeds of such sale are $250,000 or less, or it shall have received a certificate executed by the Engineer of Record and the City Manager stating, in their opinion, that the fair market value of the property or facilities exchanged is $250,000 or less, or (C) if such proceeds or fair market value exceeds $250,000 it shall have received a certificate executed by the Engineer of Record and the City Manager stating (i) that system within the System of which the property or facilities comprises a part thereof and (ii) in their opinion, that the sale or exchange of such property or facilities will not impair the ability of the City to comply during the current or any future Year with the provisions of Subsection K of this Section. The proceeds of any such sale or exchange not used to acquire other property necessary or desirable for the safe or efficient operation of the System shall forthwith, at the option of the City (i) be used to redeem or purchase Priority Bonds, or (ii) otherwise be used to provide for the payment of Priority Bonds. The foregoing notwithstanding, if such property or facilities sold or exchanged constituted B -27 property or facilities comprising all or a part of a system within the System, the acquisition, improvement or extension of such system having not been financed by the City in any manner with the proceeds of Priority Bonds, or with the proceeds of obligations which were refunded in whole or in part with the proceeds of Priority Bonds, then the City may utilize the proceeds of such sale or exchange for any lawful purpose; and (2) To the extent permitted by law, the City may lease or make contracts or grant licenses for the operation of, or make arrangements for the use of, or grant easements or other rights with respect to, any part of the System, provided that any such lease, contract, license, arrangement, easement or right (A) does not impede the operation by the City of the System and (B) does not in any manner impair or adversely affect the rights or security of the owners of the Priority Bonds under this Ordinance; and provided, further, that if the depreciated cost of the property to be covered by any such lease, contract, license, arrangement, easement or other right is in excess of $500,000, the City shall have received a certificate executed by the Engineer of Record and the City Manager that the action of the City with respect thereto does not result in a breach of the conditions under this clause (2). Any payments received by the City under or in connection with any such lease, contract, license, arrangement, easement or right in respect of the System or any part thereof shall constitute Gross Revenues. I. Books, Records and Accounts. It shall keep proper books, records and accounts separate and apart from all other records and accounts, in which complete and correct entries shall be made of all transactions relating to the System and the City shall cause said books and accounts to be audited annually as of the close of each Year by the Accountant. J. Insurance. (1) Except as otherwise permitted in clause (2) below, it shall cause to be insured such parts of the System as would usually be insured by corporations operating like properties, with a responsible insurance company or companies, against risks, accidents or casualties against which and to the extent insurance is usually carried by corporations operating like properties, including, to the extent reasonably obtainable, fire and extended coverage insurance, insurance against damage by floods, and use and occupancy insurance. Public liability and property damage insurance shall also be carried unless the City Attorney gives a written opinion to the effect that the City is not liable for claims which would be protected by such insurance. At any time while any contractor engaged in construction work shall be fully responsible therefor, the City shall not be required to carry insurance on the work being constructed if the contractor is required to carry appropriate insurance. All such policies shall be open to the inspection of the bondholders and their representatives at all reasonable times. (2) In lieu of obtaining policies for insurance as provided above, the City may self - insure against risks, accidents, claims or casualties described in clause (1) above. (3) The annual audit hereinafter required shall contain a section commenting on whether or not the City has complied with the requirements of this Section with B -28 respect to the maintenance of insurance, and listing the areas of insurance for which the City is self - insuring, all policies carried, and whether or not all insurance premiums upon the insurance policies to which reference is hereinbefore made have been paid. K. Rate Covenant. It will fix, establish, maintain and collect such rates, charges and fees for the use and availability of the System at all times as are necessary to produce Gross Revenues and other Pledged Revenues equal to the greater of amounts determined in accordance with clauses (1) or (2) below, to -wit, amounts sufficient: (1) (A) to pay all current Operating Expenses of the System, and (B) to produce Net Revenues for each Year at least equal to 1.25 times the Average Annual Principal and Interest Requirements of all then Outstanding Priority Bonds; or (2) to pay the sum of (A) all current Operating Expenses, (B) the Average Annual Principal and Interest Requirements on the then Outstanding Priority Bonds, (C) deposits to the Reserve Fund required for the Priority Bonds, and (D) amounts required to pay all other obligations of the System reasonably anticipated to be paid from Gross Revenues during the current Year. The calculation of Average Annual Principal and Interest Requirements on all Outstanding Priority Bonds shall be net of (1) capitalized interest for such Priority Bonds only if the money in a Capitalized Interest Account received from proceeds of such Priority Bonds held in cash or are invested in Government Obligations and (2) the receipt or anticipated receipt of a refundable tax credit or similar payment relating to a series of Priority Bonds irrevocably designated as refundable tax credit bonds, which payment shall be treated as one offset to regularly scheduled debt service of the series of Priority Bonds to which it relates.. The foregoing notwithstanding, such rates, charges and fees shall be fixed, established, maintained and collected at a level sufficient to enable the City to pay debt service on Priority Bonds during the current Year. L. Audits. After the close of each Year while any Priority Bonds are Outstanding, an audit will be made of the books and accounts relating to the System and the Pledged Revenues by the Accountant. As soon as practicable after the close of each such Year, and when said audit has been completed and made available to the City, a copy of such audit for the preceding year shall be mailed to any holder of the then Outstanding Priority Bonds who shall so request in writing. Such annual audit reports shall be open to the inspection of the registered owners of the Priority Bonds and their agents and representatives at all reasonable times. M. Governmental Agencies. It will comply with all of the terms and conditions of any and all franchises, permits and authorizations applicable to or necessary with respect to the System, and which have been obtained from any governmental agency; and the City has or will obtain and keep in full force and effect all franchises, permits, authorization and other requirements applicable to or necessary with respect to the acquisition, construction, equipment, operation and maintenance of the System. N. No Competition. To the extent it legally may, it will not grant any franchise or permit for the acquisition, construction or operation of any competing facilities which might be used as a substitute for the System's facilities, and, to the extent that it legally may, the City will prohibit any such competing facilities. O. Rights of Inspection. The Engineer of Record or any registered owner of $100,000 in aggregate principal amount of the Priority Bonds then Outstanding shall have the right at all reasonable times to inspect the System and all records, accounts and data of the City relating B -29 thereto, and upon request the City shall furnish to the Engineer of Record or such registered owner, as the case may be, such financial statements, reports and other information relating to the City and the System as the Engineer of Record or such registered owner may from time to time reasonably request. EXHIBIT C Purchase Contract 81222633.2 EXHIBIT D Paying Agent/Registrar Agreement 81222633.2 EXHIBIT E Description of Annual Financial Information 81222633.2 EXHIBIT F Form of Credit Agreement N/A 81222633.2 EXHIBIT G DTC Letter of Representations 81222633.2 AGENDA MEMORANDUM Future Item for the City Council Meeting of August 14, 2012 Action Item for the City Council Meeting of August 21, 2012 DATE: July 18, 2012 TO: Ronald L. Olson, City Manager FROM: Mark E. Van Vleck, P.E., Interim Director, Department of Development Services MarkVV @cctexas.com (361) 826-3246 PUBLIC HEARING — CHANGE OF ZONING Calallen GP, LLC (Case No. 0612 -02) Change from "FR" Farm Rural District to "CG -2" General Commercial District Property Address: 14801 Northwest Boulevard CAPTION: PUBLIC HEARING — ZONING Case No. 0612 -02: Calallen GP, LLC: A change of zoning from the "FR" Farm Rural District to the "CG -2" General Commercial District, resulting in a change of future land use from commercial and medium density residential uses to commercial uses. The property to be rezoned is described as being a 36.896 -acre tract of land out of Lot 4, Block 2, Nueces River Irrigation Park, located on the southeast corner of Northwest Boulevard (FM 624) and FM 1889. PURPOSE: The purpose of this item is the change the zoning district on land at 14801 Northwest Boulevard from a Farm Rural district to a Commercial district to allow for construction of a grocery store and retail center. RECOMMENDATION: Planning Commission and Staff Recommendation (June 20, 2012): Denial of the applicant's request for the "CG -2" General Commercial District on 36.896 acres and, in lieu thereof, approval of the "CG -2" General Commercial District on Tract 1 (29.243 acres) and the "CN -1" Neighborhood Commercial District on Tract 2 (7.653 acres). BACKGROUND AND FINDINGS: The purpose of this zoning change is to allow for construction of mixed -use commercial retail center, which includes a grocery store and possible apartment complex or business park, on approximately 37 acres at the southeast corner of Northwest Boulevard (FM 624) and FM 1889. The applicant proposes to subdivide the property into eight commercial lots ranging from one to twelve acres each. During the first development phase, a 64,000- square -foot grocery store located in one building and approximately 64,000 square feet of general retail space located in four other buildings would be constructed on 22 of the 37 acres. There is no development plan for the remaining acreage at this time, but it is projected for possible medium density residential uses or business park. The applicant is in agreement the Planning Commission and Staff recommendation of the "CG -2" General Commercial District on 29.243 acres toward the front portion of the lot and the "CN -1" Neighborhood Commercial District on 7.653 acres toward the rear portion of the lot near the single - family neighborhood, which would provide an improved transition from the high - intensity commercial uses and the low- intensity residential uses to the south. ALTERNATIVES: 1. Approve the applicant's original request of "CG -2" General Commercial on 36.896 acres; 2. Approve an intermediate zoning district or Special Permit; or 3. Deny the request. OTHER CONSIDERATIONS: Not applicable CONFORMITY TO CITY POLICY: The change of zoning to commercial zoning on the 37 acres would not be consistent with the Future Land Use Map, which slates the rear portion of the subject property for medium density residential uses. However, the rezoning is consistent with Area Development Plan, which states that the most appropriate locations for small -scale commercial development is at intersections of arterial roadways. The modified rezoning request which incorporates Neighborhood Commercial zoning is consistent with a policy of the Comprehensive Plan, which calls for the buffering of low- intensity residential uses from high- intensity commercial uses with open space or transitional zoning districts. EMERGENCY / NON - EMERGENCY: Staff is requesting an emergency reading. According to Article II, Section 14 of the City Charter, an item can be classified as an emergency because it calls for "immediate action necessary for the efficient and effective administration of the city's affairs ". This is a routine, non - controversial item. DEPARTMENTAL CLEARANCES: Planning Commission, Planning and Legal FINANCIAL IMPACT: ❑ Operating ❑ Revenue ❑ Capital Not applicable Fiscal Year: 2011- 2012 Project to Date Expenditures (CIP only) Current Year Future Years TOTALS Line Item Budget Encumbered / Expended Amount This item BALANCE Fund(s): Comments: None LIST OF SUPPORTING DOCUMENTS: 1. Aerial Overview Map 2. Zoning Report with Attachments 3. Ordinance with Exhibits for the Planning Commission Recommendation 4. Ordinance with Exhibits for the Applicant's original request ZONING REPORT Case No.: 0612 -02 HTE No. 12- 10000017 Planning Commission Hearing Date: June 20, 2012 Applicant & Legal Description Applicant: CalaIlen GP, LLC Representative: Mark Johnson, Bury + Partners -SA, Inc. Owners: Lois Lowman, Connie Diane Brown Polk Laing, Herman Bruce Lowman, NRIP, LLC, and Cloudcroft Land Ventures, Inc. Legal Description /Location: Being a 36.896 -acre tract of land out of Lot 4, Block 2, Nueces River Irrigation Park, located on the southeast corner of Northwest Blvd. (FM 624) and FM 1889. Zoning Request From: "FR" Farm Rural District To: "CG -2" General Commercial District Area: 36.896 acres Purpose of Request: For the development of grocery and retail center, as well as a possible apartment complex. Existing Zoning and Land Uses Existing Zoning District Existing Land Use Future Land Use Site "FR" Farm Rural Agricultural Commercial & Medium Density Residential North "CG -2" General Commercial Vacant & Commercial Commercial South Outside City Limits Estate Residential Low Density Residential East "FR" Farm Rural Agricultural Commercial & Medium Density Residential West "CG -2" General Commercial & "CN -1" Neighborhood Commercial Agricultural & Commercial Commercial ADP, Map & Violations Area Development Plan: The subject property is located in the Northwest Area Development Plan (ADP) and is planned for commercial and medium density residential uses. The proposed change in zoning to the "CG -2" General Commercial District is partially consistent with the adopted Future Land Use Plan. Map No.: 068050 & 068051 Zoning Violations: None Transport- ation Transportation and Circulation: The subject property has approximately 1,000 feet of frontage along Northwest Blvd. (FM 624), which is an existing A3 Primary Arterial as indicated in the Urban Transportation Plan, and 1,500 feet of frontage on FM 1889, which is a proposed A2 Secondary Arterial. Street R.O.W. Street Urban Transportation Plan Type Proposed Section Existing Section Traffic Volume Northwest Blvd. (FM 624) "A3" Primary Arterial 130' ROW, 79' paved width 150' ROW, 65' paved width Year 2010 28,961 ADT (West of US 77) 10,652 ADT (West of FM 1889) FM 1889 "A2" Secondary Arterial 100' ROW, 54' paved width 100' ROW, 40' paved width Year 2011 4,551 ADT (South of FM 624) Zoning Report Case #0612 -02, Calallen GP, LLC Page 2 Staff Summary: Requested Zoning: The applicant has requested a change of zoning from the "FR" Farm Rural District to the "CG -2" General Commercial District on approximately 37 acres of land, located at the southeast corner of Northwest Blvd. and FM 1889. This zoning change has been initiated to allow for the development of a commercial center. Applicant's Development Plan: The applicant proposes to subdivide the property into eight commercial lots ranging from one to twelve acres each. During the first development phase, a 64,000- square -foot grocery store located in one building and approximately 64,000 square feet of general retail space located in four other buildings would be constructed on 22 of the 37 acres. There is no development plan for the remaining acreage at this time, but it is projected for possible medium - density residential uses. Existing Land Uses: The subject property is currently used for agricultural purposes. To the north of the subject property is Northwest Blvd., where there is vacant and commercial land zoned "CG -2" General Commercial. Located to the east of the subject property is a large vacant/agricultural lot zoned "FR" Farm Rural. The property immediately to the south of the subject property is outside city limits and is developed with one -acre residential estates. Located to the west and across FM 1889 is vacant land, a credit union, and gas station among other commercial uses. Comprehensive Plan & Area Development Plan (ADP) Consistency: The Comprehensive Plan and the Northwest Area Development Plan (ADP) slate the subject property for approximately 11 acres of commercial uses and 26 acres of medium density residential uses. The proposed change of zoning to the "CG -2" General Commercial District on the 37 acres would not be consistent with the Future Land Use Plan. However, the proposed rezoning is consistent with Land Use Policy Statement B.1.d from the Northwest ADP, which states that the most appropriate locations for small -scale commercial development is at intersections of arterial roadways (this pattern being described as "nodal commercial development "). Strip commercial development is discouraged from occurring along arterial roadways. Additionally, the Comprehensive Plan generally calls for the buffering of low density residential uses from higher intensity uses. Plat Status: The subject property is not platted. Department Comments: • The applicant's request of the "CG -2" District on 37 acres does not afford much protection to the adjacent single - family neighborhood from some of the more offensive uses allowed in the "CG -2" District, such as bars, restaurants greater than 2,500 square feet, self- storage facilities, and truck stops with overnight accommodations. • After discussing a modified zoning change request with the applicant, Staff recommends the "CN -1" Neighborhood Commercial District along a portion of FM 1889 and around the retention pond as a transition between the General Commercial area along Northwest Blvd. and the single - family neighborhood to the south. (Attachment 3). The applicant is in agreement with the modified request and will prepare a revised metes and bounds survey depicting the proposed zoning boundaries. • Incorporating the "CN -1" Neighborhood Commercial District as a transition between General Commercial and single - family zoning districts would be consistent with the zoning patterns across FM 1889 and in the Northwest Area. Zoning Report Case #0612 -02, Calallen GP, LLC Page 3 Planninq Commission & Staff Recommendation (June 20, 2012): Denial of the applicant's request for "CG -2" General Commercial District on 36.896 acres and, in lieu thereof, approval of the "CG -2" General Commercial District on Tract 1 (29.243 acres) and the "CN -1" Neighborhood Commercial District on Tract 2 (7.653 acres) (Attachment 3). Public Notifi cation Number of Notices Mailed — 15 within 200' notification area; 1 outside notification area As of July 10, 2012: In Favor In Opposition For 0.0% in opposition. — 2 (inside notification area); 0 (outside notification area) — 0 (inside notification area); 0 (outside notification area) Attachments: 1. Site Map — Existing Zoning, Notice Area, & Ownership Map 2. Site Plan 3. Planning Commission and Staff Recommendation K: \DevelopmentSvcs \SHARED\ZONING CASES \0612 -02 Calallen GP, LLC \0612 -02 Report for CC, Calallen GP LLC, 6- 27- 12.doc N12 6 RIV R wOHTS 1 NORTHWEST STATE LIMIT 2 1 NORTHWEST ESTATES TH EST BLVD ARE 1 i 13 1' 6/6/2012 -Prepared By_jeremym' Department of Development Se`rJices CASE: 0612 -02 2. SITE - EXISTING ZONING, NOTICE AREA & OWNERSHIP RM -1 Multifamily 1 RM -2 Multifamily 2 RM -3 Multifamily 3 ON Professional Office RM -AT Multifamily AT CN -1 Neighborhood Commercial CN -2 Neighborhood Commercial CR -1 Resort Commercial CR -2 Resort Commercial CG -1 General Commercial CG -2 General Commercial CI Intensive Commercial CBD Downtown Commercial CR -3 Resort Commercial FR Farm Rural H Historic Overlay BP Business Park IL Light Industrial IH Heavy Industrial PUD Planned Unit Dev. Overlay RS -10 Single - Family 10 RS -6 Single - Family 6 RS-4.5 Single - Family 4.5 RS -TF Two - Family RS -15 Single - Family 15 RE Residential Estate RS -TH Townhouse SP Special Permit RV Recreational Vehicle Park RMH Manufactured Home Subject Property O Owners with 200' buffer in favor 4 Owners within 200' listed on V Owners attached ownership table in opposition LOCATION MAP IRMA City o Corpus Christi ni • , 170,rsls000xlcw -43,51 ,,oec L DALE NCL REVISOR APPROVAL PLOTRNO SCALE: 1"= BO• DATE REVISED: June 11 2012 e:volles \s000%Ma ul. DRAWN BY: A CALALLEN COMMERCIAL NEIGHBORHOOD DEVELOPMENT DESIGNED BY: M. RENEWED BY: 1,1R1 PROJECT NO.: R0101165 -50002 FM 824 AND FM 1889 PRELIMINARY SITE EXHIBIT 37 ACRES 1) Bury Partners NI. 121o152s o9a ro� (212)525-0525 eu.y Wainer, -SP. hc. C p,Nght 2212 m¢jiwlnN}(o I n - .I1 STAFF RECOMMENDATION DAM rn Xm 1 rh PLOT1WG SCALE: 1, Ro OR1E Ptl D:Pm 1* mil RIL`■vm1IS0P000( A..+. CRAM RR *1 CALALLEN COMMERCIAL NEIGHBORHOOD DEVELOPMENT OEOCNED 6/: RR4 RETIVEED Olt MN PROJECT ROA 0110116 5 -00000 FM 624 AND FM 1889 PRELIMINARY SITE EXHIBIT 37 ACRES §.., F3 oz� a. Bury +Partners IN Im F4 00. to W Woks II '011 tIR p1gla-ela.n 111114 14 0.11 warn. Nuskr 1.1414 I0001am-Ol Wtl400kllm1l Ordinance amending the Unified Development Code ( "UDC ") upon application by Calallen GP, LLC, on behalf of Lois Lowman, Connie Diane Brown Polk Laing, Herman Bruce Lowman, NRIP, LLC, and Cloudcroft Land Ventures, Inc. ( "Owners "), by changing the UDC Zoning Map in reference to a 36.896 -acre tract of land out of Lot 4, Block 2, Nueces River Irrigation Park from the "FR" Farm Rural District to the "CG -2" General Commercial District on Tract 1 (29.243 acres) and the "CN -1" Neighborhood Commercial District on Tract 2 (7.653 acres); amending the Comprehensive Plan to account for any deviations from the existing Comprehensive Plan; providing a repealer clause; providing for penalties; 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 Calallen GP, LLC, on behalf of Lois Lowman, Connie Diane Brown Polk Laing, Herman Bruce Lowman, NRIP, LLC, and Cloudcroft Land Ventures, Inc. ( "Owners "), for an amendment to the City of Corpus Christi's UDC and corresponding UDC Zoning Map; WHEREAS, with proper notice to the public, public hearings were held on Wednesday, June 20, 2012, during a meeting of the Planning Commission, and on Tuesday, August 21, 2012, during a meeting of the City Council, 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 the public health, necessity, convenience and general welfare of the City of Corpus Christi and its citizens. NOW, THERFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF CORPUS CHRISTI, TEXAS: SECTION 1. The Unified Development Code ( "UDC ") of the City of Corpus Christi, Texas ( "City "), is amended by changing the zoning on a 36.896 -acre tract of land out of Lot 4, Block 2, Nueces River Irrigation Park (the "Property "), located on the southeast corner of Northwest Boulevard (FM 624) and FM 1889, from the "FR" Farm Rural District to the "CG -2" General Commercial District on Tract 1 (29.243 acres) and to the "CN -1" Neighborhood Commercial District on Tract 2 (7.653 acres) (Zoning Map Nos. 068050 and 068051). Exhibit "A," which is a description of Tract 1 of the Property, and Exhibit "B," which is a description of Tract 2 of the Property, are both attached to and incorporated in this ordinance by reference as if fully set out herein in their entirety. SECTION 2. The official UDC Zoning Map of the City is amended to reflect the changes made to the UDC by Section 1 of this ordinance. SECTION 3. The UDC and corresponding UDC Zoning Map of the City, made effective July 1, 2011, and as amended from time to time, except as changed by this ordinance, both remain in full force and effect. SECTION 4. To the extent this amendment to the UDC represents a deviation from the Comprehensive Plan, the Comprehensive Plan is amended to conform to the UDC, as it is amended by this ordinance. SECTION 5. All ordinances or parts of ordinances in conflict with this ordinance are hereby expressly repealed. SECTION 6. A violation of this ordinance, or requirements implemented under this ordinance, constitutes an offense punishable as provided in Article 1, Section 1.10.1, and Article 10 of the UDC. SECTION 7. 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 8. 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 day of 2012. ATTEST: CITY OF CORPUS CHRISTI Armando Chapa City Secretary Joe Adame Mayor 0612 -02 Ordinance, Calallen CG, LLC, CG -2 & CN -1 (rev 7- 18 -12) Page 2 of 3 Corpus Christi, Texas day of , 2012 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 The above ordinance was passed by the following vote: Joe Adame Chris N. Adler Kelley Allen Larry Elizondo, Sr. Priscilla G. Leal David Loeb John E. Marez Nelda Martinez Mark Scott Joe Adame Mayor 0612 -02 Ordinance, Calallen CG, LLC, CG -2 & CN -1 (rev 7- 18 -12) Page 3 of 3 Bury +Partners 29.243 ACRES (1,273,822 Sq. Ft.) 101165- 50002ZONING EXHIBIT- 1R.DWG EN NO. 101165 - 50002 -2 JUNE 27, 2012 JOB NO. R0101165-50002.97 FIELD NOTE DESCRIPTION (ZONING CG -2) OF A 29.243 ACRE TRACT OF LAND LOCATED IN NUECES COUNTY, TEXAS, BEING THE REMAINING PORTION OF LOT 4, BLOCK 2, NUECES RIVER IRRIGATION PARK, A SUBDIVISION OF RECORD IN VOLUME A, PAGE 54 OF THE NUECES COUNTY MAP RECORDS; SAID 29.243 ACRE TRACT BEING MORE PARTICULARLY DESCRIBED BY METES AND BOUNDS AS FOLLOWS WITH ALL BEARINGS BEING REFERENCED TO THE NORTH AMERICAN DATUM 1983, TEXAS COORDINATE SYSTEM, SOUTH ZONE; DISTANCES MAY BE CONVERTED TO GRID BY DIVIDING BY A COMBINED SCALE FACTOR OF 1.0000400: BEGINNING, AT A FOUND 5/8 INCH IRON ROD LOCATED IN THE SOUTHERLY RIGHT -OF -WAY LINE OF F.M. 624 (150' R.O.W.), BEING THE NORTHWESTERLY CORNER OF LOT 3, BLOCK 2, OF SAID NUECES RIVER IRRIGATION PARK SUBDIVISION, SAME BEING THE NORTHEASTERLY CORNER OF SAID LOT 4, BLOCK 2 AND HEREOF; SAID BEGINNING POINT HAVING A GRID COORDINATE OF (N = 17,201,555.76, E = 1,257,510.37); THENCE, S 09° 14' 45" W, LEAVING THE SOUTHERLY RIGHT -OF -WAY LINE OF F.M. 624, ALONG THE COMMON BOUNDARY LINE OF SAID LOT 4, BLOCK 2, AND SAID LOT 3, BLOCK 2, A DISTANCE OF 1146.65 FEET TO A POINT FOR THE MOST SOUTH - SOUTHEASTERLY CORNER OF HEREIN DESCRIBED TRACT; THENCE, CROSSING SAID REMAINDER PORTION OF LOT 4, BLOCK 2, THE FOLLOWING COURSES: N 81° 20' 57" E, A DISTANCE OF 79.96 FEET TO A POINT; S 09° 16' 46" W, A DISTANCE OF 80.61 FEET TO A POINT; S 87° 15' 34" W, A DISTANCE OF 684.50 FEET TO A POINT; N 08° 45' 34" E, A DISTANCE OF 215.80 FEET TO A POINT; N 81° 20' 57" W, A DISTANCE OF 315.60 FEET TO A POINT LOCATED IN THE EASTERLY RIGHT -OF -WAY LINE OF F.M. 1889 (120' R.O.W.); EXHIBIT A PAGE 2 OF 3 THENCE, ALONG THE EASTERLY RIGHT -OF -WAY LINE OF F.M. 1889, BEING THE WESTERLY LINE OF SAID LOT 4, BLOCK 2, THE FOLLOWING COURSES: N 10° 30' 40" E, A DISTANCE OF 238.44 FEET TO A SET INCH IRON ROD WITH BPI CAP; NORTHEASTERLY, ALONG THE ARC OF A CURVE TO THE LEFT HAVING A RADIUS OF 16,464.15 FEET, A CENTRAL ANGLE OF 00° 58' 56 ", AN ARC LENGTH OF 282.25 FEET AND A CHORD BEARING N 10° 01' 12" E, A DISTANCE OF 282.21 FEET TO A SET 3z INCH IRON ROD WITH BPI CAP; N 09° 31' 44" E, A DISTANCE OF 494.22 FEET TO A SET ' INCH IRON ROD WITH BPI CAP LOCATED AT THE SOUTHEASTERLY CUT -BACK RETURN AT THE INTERSECTION OF F.M. 1889 AND F.M. 624; THENCE, N 52° 31' 49" E, ALONG THE AFOREMENTIONED CUT -BACK RETURN, A DISTANCE OF 89.38 FEET TO A SET 'r'z INCH IRON ROD WITH BPI CAP LOCATED IN THE SOUTHERLY RIGHT -OF -WAY LINE OF F.M. 624; THENCE, S 85° 14' 01" E, ALONG THE SOUTHERLY RIGHT -OF -WAY LINE OF F.M. 624, A DISTANCE OF 997.23 FEET TO THE POINT OF BEGINNING, CONTAINING AN AREA OF 29.243 ACRES (1,273,822 SQ. FT.) OF LAND, MORE OR LESS. Note: Sketch of even date to accompany this Legal Description. "THIS DOCUMENT WAS PREPARED UNDER 22 TAC $663.212, DOES NOT REFLECT THE RESULTS OF AN ON THE GROUND SURVEY, AND IS NOT TO BE USED TO CONVEYED OR ESTABLISH INTERESTS IN REAL PROPERTY EXCEPT THOSE RIGHTS AND INTEREST IMPLIED OR ESTABLISHED BY THE CREATION OR RECONFIGURATION OF THE BOUNDARY OF THE POLITICAL SUBDIVISION FOR WHICH IT WAS PREPARED." � 7/2,r//z HAL B. LANE III REGISTERED PROFESSIONAL LAND SURVEYOR TEXAS REGISTRATION NUMBER 4690 BURY +PARTNERS, INC. 922 ISOM ROAD, SUITE 100 SAN ANTONIO, TEXAS 78216 210/525 -9090 EXHIBIT A PAGE3OF3 INDICATING UNDERGCUND GAS UNE\ "= 200' 0 100 200 300 400 Eve op PA+EiIV+T 1 "l40I� ?07.23' At! CURVE TABLE CURVE DELTA RADIUS LENGTH CHORD DIRECTION CHORD C1 00'58'56" 16344.15 280.19 N10'01'12 "E 280.15 C2 00'58'56" 16464.15 282.25 N10'01'12 "E 282.21 TRACT I 29243 ACRES (1,273,822 SQ. FT.) THE REMAINDER PORTION OF LOT 4, BLOCK 2, NUECES RIVER IRRIGATION PARK SUBDIVISION VOL. A, PG. 54 S67'15'34'W 6&4.50' THE REMAINDER PORTION of LOT 4. BLOCK 2, NUECES RIVER IRRIGATION PARK SUBDIVISION VOL. A. PG. 54 LEGEND - 32.11'W 1074.70' Bury +Partners 922 Isom Road, Suite 100 Seu Antonio, T% 70216 TeL (210)626 -9090 Fax (210)626 -0620 MPS Rob otratuoa Number F -1040 Bury +Parteere-SA, Inc.00opyrigMt 2012 SKETCH TO ACCOMPANY DESCRIPTION OF OF A 29.243 ACRE TRACT OF LAND LOCATED IN NUECES COUNTY, TEXAS, BEING THE REMAINING PORTION OF LOT 4, BLOCK 2, NUECES RIVER IRRIGATION PARK, A SUBDIVISION OF RECORD IN VOLUME A, PAGE 54 OF THE NUECES COUNTY MAP RECORDS; DATE: 06/27/12 I DRAWN BY: MAV • 1/2" IRON ROD FOUND O 1/2" IRON ROD SET ZONING CG -2 CALALLEN, TEXAS FILE:101165- 50002 /ZONING EXHIBIT- 1R.DWG FN NO. 101165- 50002 -2 I PROJECT No. R0101165- 50002.97 EXHIBIT A Bury +Partners 7.653 ACRES (333,354 Sq. Ft.) 101165- 50002ZONING EXHIBIT- 2R.DWG FN NO. 101165- 50002 -3 JUNE 27, 2012 JOB NO. R0101165- 50002.97 FIELD NOTE DESCRIPTION (ZONING CN -1) OF A 7.653 ACRE TRACT OF LAND LOCATED IN NUECES COUNTY, TEXAS, BEING THE REMAINING PORTION OF LOT 4, BLOCK 2, NUECES RIVER IRRIGATION PARK, A SUBDIVISION OF RECORD IN VOLUME A, PAGE 54 OF THE NUECES COUNTY MAP RECORDS; SAID 7.653 ACRE TRACT BEING MORE PARTICULARLY DESCRIBED BY METES AND BOUNDS AS FOLLOWS WITH ALL BEARINGS BEING REFERENCED TO THE NORTH AMERICAN DATUM 1983, TEXAS COORDINATE SYSTEM, SOUTH ZONE; DISTANCES MAY BE CONVERTED TO GRID BY DIVIDING BY A COMBINED SCALE FACTOR OF 1.0000400: COMMENCING, AT A FOUND 5/8 INCH IRON ROD LOCATED IN THE SOUTHERLY RIGHT -OF -WAY LINE OF F.M. 624 (150' R.O.W.), BEING THE NORTHWESTERLY CORNER OF LOT 3, BLOCK 2, OF SAID NUECES RIVER IRRIGATION PARK SUBDIVISION, SAME BEING THE NORTHEASTERLY CORNER OF SAID LOT 4, BLOCK 2 AND HEREOF; THENCE, S 09° 14' 45" W, LEAVING THE SOUTHERLY RIGHT -OF -WAY LINE OF F.M. 624, ALONG THE COMMON BOUNDARY LINE OF SAID LOT 4, BLOCK 2, AND SAID LOT 3, BLOCK 2, A DISTANCE OF 1146.65 FEET TO THE POINT OF BEGINNING, OF HEREIN DESCRIBED TRACT; SAID POINT HAVING A GRID COORDINATE OF (N = 17,200,424.05, E = 1,257,326.15); THENCE, S 09° 14' 45" W, ALONG THE COMMON BOUNDARY LINE OF SAID LOT 4, BLOCK 2, AND SAID LOT 3, BLOCK 2, A DISTANCE OF 374.46 FEET TO A FOUND 5/8 INCH IRON ROD LOCATED IN THE NORTHERLY LINE OF VALLEY VIEW SUBDIVISION, UNIT 2, A SUBDIVISION OF RECORD IN VOLUME 43, PAGE 178 OF SAID NUECES COUNTY MAP RECORDS FOR THE SOUTHEASTERLY CORNER OF SAID LOT 4, BLOCK 2, BEING THE SOUTHWESTERLY CORNER OF SAID LOT 3, BLOCK 2; THENCE, N 84° 32' 11" W, ALONG THE COMMON BOUNDARY LINE OF SAID LOT 4, BLOCK 2, AND SAID VALLEY VIEW SUBDIVISION, UNIT 2, A DISTANCE OF 1074.79 FEET TO A SET INCH IRON ROD WITH BPI CAP LOCATED IN THE EASTERLY RIGHT -OF -WAY LINE OF F.M. 1889 (120' R.O.W.); THENCE, ALONG THE EASTERLY RIGHT -OF -WAY LINE OF F.M. 1889, BEING THE WESTERLY LINE OF SAID LOT 4, BLOCK 2, THE FOLLOWING COURSES: EXHIBIT B PAGE 2 OF 3 N 09° 31' 05" E, A DISTANCE OF 99.56 FEET TO A SET INCH IRON ROD WITH BPI CAP; NORTHEASTERLY, ALONG THE ARC OF A CURVE TO THE RIGHT HAVING A RADIUS OF 16,344.15 FEET, A CENTRAL ANGLE OF 00° 58' 56 ", AN ARC LENGTH OF 280.19 FEET AND A CHORD BEARING N 10° 01' 12" E, A DISTANCE OF 280.15 FEET TO A SET INCH IRON ROD WITH BPI CAP; N 10° 30' 40" E, A DISTANCE OF 54.60 FEET TO A POINT FOR THE NORTHWESTERLY CORNER OF HEREIN DESCRIBED TRACT; THENCE, CROSSING SAID REMAINDER PORTION OF LOT 4, BLOCK 2, THE FOLLOWING COURSES: S 81° 20' 57" E, A DISTANCE OF 315.60 FEET TO A POINT; S 08° 45' 34" W, A DISTANCE OF 215.80 FEET TO A POINT; N 87° 15' 34" E, A DISTANCE OF 684.50 FEET TO A POINT; N 09° 16' 46" E, A DISTANCE OF 80.61 FEET TO A POINT; S 81° 20' 57" W, A DISTANCE OF 79.96 FEET TO THE POINT OF BEGINNING, CONTAINING AN AREA OF 7.653 ACRES (333,354 SQ. FT.) OF LAND, MORE OR LESS. Note: Sketch of even date to accompany this Legal Description. "THIS DOCUMENT WAS PREPARED UNDER 22 TAC $663.212, DOES NOT REFLECT THE RESULTS OF AN ON THE GROUND SURVEY, AND IS NOT TO BE USED TO CONVEYED OR ESTABLISH INTERESTS IN REAL PROPERTY EXCEPT THOSE RIGHTS AND INTEREST IMPLIED OR ESTABLISHED BY THE CREATION OR RECONFIGURATION OF THE BOUNDARY OF THE POLITICAL SUBDIVISION FOR WHICH IT WAS PREPARED." .;e4;x112X!iill 2' HAL B. LANE III / REGISTERED PROFESSIONAL LAND SURVEYOR TEXAS REGISTRATION NUMBER 4690 BURY +PARTNERS, INC. 922 ISOM ROAD, SUITE 100 SAN ANTONIO, TEXAS 78216 210/525 -9090 EXHIBIT B PAGE3OF3 INDICATING UNDERGDUND GAS UNE\ 'ACM 0 100 200 300 400 1" =200' 58514'01 E 997.23' CURVE TABLE CURVE DELTA RADIUS LENGTH CHORD DIRECTION CHORD C1 00'58'56" 16344.15 280.19 N10'01'12 "E 280.15 C2 00'58'56" 16464.15 282.25 N10'01'12 "E 282.21 THE REMAINDER PORTION OF LOT 4, BLOCK 2, NUECES RIVER IRRIGATION PARK SUBDIVISION VOL, A. PG. 54 581'205 J15.80' TRACT II 7.863 ACRES (333,354 SQ. FT.) THE REMAINDER PORTION OF LOT 4, BLOCK 2, NUECES RIVER JRRIGATION PARK SUBDIVISION VOL. A, PG. 54 N8432'11`Y 0074.79. Bury +Partners 922 IRDm Rod, Salts 100 Ssa Antonio. TX 78219 Tel. (210)525 -9090 Fax (210)625 -0629 IMPS Begetratloa Number R -1048 8ary +Partners -SA, Ine.40CoP7rljht 2012 DATE: 06/27/12 I DRAWN BY: MAV SKETCH TO ACCOMPANY DESCRIPTION OF OF A 7.653 ACRE TRACT OF LAND LOCATED IN NUECES COUNTY, TEXAS, BEING THE REMAINING PORTION OF LOT 4, BLOCK 2, NUECES RIVER IRRIGATION PARK, A SUBDIVISION OF RECORD IN VOLUME A, PAGE 54 OF THE NUECES COUNTY MAP RECORDS; LEGEND • 1/2 " IRON ROD FOUND O 1/2" IRON ROD SET ZONING CN -1 CALALLEN, TEXAS FILE: 101165 -50002 /ZONING EXHIBIT- 2R.DWGI FN NO. 101165- 50002 -3 PROJECT No. R0101165 -- 50002.97 EXHIBIT B AGENDA MEMORANDUM for the City Council Meeting of August 14, 2012 DATE: July 25, 2012 TO: Ronald L. Olson, City Manager FROM: Daniel Biles, P.E., Director of Engineering Services DanB @cctexas.com (361) 826-3729 UPDATE TO CITY COUNCIL Presentation on Packery Channel Quarterly Monitoring for 2011 -2012 (Project No. E11094) STAFF PRESENTER(S): Name Title /Position 1. Daniel Biles, P.E. Director 2. Michael Morris Director 3. OUTSIDE PRESENTER(S): Department Engineering Services Parks and Recreation Name Title /Position Organization 1. Deidre D. Williams Coastal Research Scientist Conrad Blucher Institute for Surveying and Science Texas A &M University- Corpus Christi 2. 3. BACKGROUND: Packery Channel monitoring began in 2003 by Texas A &M University- Corpus Christi, Division of Nearshore Research (DNR). DNR's monitoring was conducted under sponsorship of the U.S. Army Corps of Engineers (USACE), Galveston District. USACE ceased monitoring efforts in 2007. The City assumed sponsorship of monitoring in 2008 and contracted with DNR to continue monitoring. This presentation will provide results of the 2011 -2012 fiscal year monitoring. LIST OF SUPPORTING DOCUMENTS: PowerPoint CAPROGRAM FILES \GRANICUS LEGISTAR5\PACKET\993 CITY COUNCIL 8 14 2012 \0032 1 PACKERY CHANNEL MONITORING - PRESENTATION ITEM.DOCX Packery Channel Monitoring Program Pre- and Post -Dredge Status Presented to: City of Corpus Christi City Council August 14, 2012 Deidre D. Williams Coastal Research Scientist Conrad Blucher Institute for Surveying and Science Texas A&M University -Corpus Christi City Corpus Christi Program Sponsored by: The City of Corpus Christi Contributing Historic Sponsors: U.S. Army Engineer District -Galveston Engineering Research and Development Center Coastal Inlets Research Program CONRAD BLUCHER INSTITUTE I011. SLIP/VEXING AND SCIENCE 17 May 2012 Courtesy of Dr. Richard Watson Pre- and Post- Dredge Shoaling -32 -31 -30 -29 -28 -27 -26 -25 -24 -23 -22 -21 -20 -19 -18 -17 Feet 0 500 1,000 2,000 3,000 4,000 bypass Bar ass Earee Diffuses 0 500 7 000 2000 3000 d000 Pre -Dredge Sep 2011 Post -Dredge Mar 2012 (Winter Influence) (Peak Summer) Location of Post -Dredge Shoals 23 Mar 2012 n rEntrance Feet 0 250 500 1,000 1,500 2,000 Basin Shoal: • Linear Feature: 160 -ft long, 30 -ft wide • Potential: Navigation limitation Min. depth -4 to -5 ft (NAVD88) • Sand Volume: 3,000 cu yd (23 Mar 2012) - 32 -31 -30 -29 -28 -27 -26 -25 -24 -23 -22 -21 -20 -19 -18 -17 Entrance Channel Shoal: • Variable Feature: 500 -ft long, 200 -ft wide • Potential: Navigation limitation Min depth At -5 to -7 ft (NAVD88) • Sand Volume 24,000 cu yd (23 Mar 2012) How Does Sand Enter the Channel? - Wind (beach and dunes) - Surge (over jetties) - Scour (inland channel) - Spillover (inland channel) - No evidence of entry at mouth (Mar 2012) Why? Deep Scour at Mouth Legend (Depth, ft (MSL) 30 16 29 15 28 14 27 13 E n 26 12 - - 25 11 24 10 - 23 9 ▪ 22 8 - 21 = 20 6 I. 19 5 18 ® 4 17 3 More Sand Available in Surrounding Nearshore Post -Construction Aug 2006 Post -Dredge 23 Mar 2012 11001111111111111111=111111111111111111Fet 0 250 500 750 1,0iD0 Feet 125/50 500 755 1,600 Legend Depth, ft (NAVD88) - 32 -16 -31 -15 -30 -14 -29 -13 -28 -12 -27 -11 -26 -10 -25 -9 -24 -8 -23 -7 -22 -21 -20 • -4 -19 -18 -2 -17 11111111111M -1 Available Sand + Reduced Scour = Potential for Sand Entry from Gulf Eliminate Shoal and Channel Depth -4 Nearshore Depth Depth, ft (NAVD88) 2 - West 0 East -2 - -4 - -6 - -8 - -10 - -12 - -14 - -16 - -18 - -20 - -22 _ Legend Basin Shoal Inner Entrance Channel Entrance Channel E- Remaining Entrance Shoal Mean Centerline Depth = 12.82 ft -24 - 25 Sep 2011 (Pre -dredge) -26 -- 05 Mar 2012(Contractor Post -dredge) -28 -_ 23 Mar 2012 (CBI Post -dredge) -30 0 Depth at Mouth nearshore depth Gulf of Mexico 1 1 1 1 1000 2000 3000 4000 5000 6000 Distance Along Center Channel, ft 7000 8000 Potential for Development of Sediment Transport Pathway INTO Channel from Gulf • Mtive Region of Channel Boundary Change Channel Expansion Greatest on East Side Greatest Change from 2005-2008 Depth, ft (NAVD88) 5- 0 -5 - 10 - - 15 - - 20 - - 25 West Resident Transect 11 Total Change in Channel Width: Primary Bank = 100 ft Upper Bank = 50 ft Legend Aug 2005 Aug 2006 Aug 2008 Aug 2009 Sep 2010 Sep 2011 Mar 2012 1 1 1 1 1 1 -300 -200 -100 0 100 200 300 Distance Across Channel, ft 400 8 500 ustang stand ::North ern Limit of Benefit -- Legend Aug 2003 (Baseline) Sep 2011 May 2012 (Post -Nourishment) Benefits Extend ,500 ft South D 1:5,:°' C )© "5q inn Packery Channel Monitoring Program Focus 2012-2013 • Where are Shoals Developing? (Navigation Safety) (Dredge Planning) How Fast are Shoals Developing? (Navigation Safety) (Dredge Planning) • Where is the Sand Coming From? (System Management) • How Fast is Beach Eroding? • Is Inland Channel Expanding? (Nourishment Evaluation) (FEMA Reimbursement) (Habitat Protection) (Dredge Planning)