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Agenda Packet City Council - 10/09/2012
Corpus Christi Meeting Agenda - Final City Council 1201 Leopard St Corpus Christi, TX 78401 CCtexas.com Tuesday, October 9, 2012 1:30 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 Pastor Buddy Stevens, Bay Area Fellowship 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 -00717 Proclamation declaring October 12, 2012 as "Pink Mustache for Josie Day" Proclamation declaring October 2012 as "Employment Alliance for Persons with Disabilities Month" Proclamation declaring October 8 - 13, 2012 as "The 237th United States Navy Week" Swearing -in for all newly appointed Board, Commission and Committee Members "At Your Service" Award, City Employee Recognition F. MINUTES: Corpus Christi Page 1 Printed on 10/5/2012 City Council Meeting Agenda - Final October 9, 2012 2 12 -00718 Approval of Meeting Minutes - September 25, 2012. Attachments: Minutes - September 25, 2012.pdf G. BOARDS & COMMITTEE APPOINTMENTS: (NONE) 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 3 - 10) 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. 3 12 -00631 Second Reading Ordinance - Extending a State lease agreement to enable the boy scouts to finance and construct improvements on their permanent encampment. (1st Reading - 9/11/12) (Requires 2/3 vote) Ordinance authorizing the City Manager, or designee, to execute an extension of the Lease Agreement with Texas Parks and Wildlife Department for the use of an approximately 14,106 acre tract adjacent to Lake Corpus Christi through December 31, 2052; providing for severance; providing for publication; and providing an effective date. Attachments: TPWD Agenda Memo.docx TPWD Lease Extension Ordinance TPWD Lease Agreement 4 12 -00654 Second Reading Ordinance - Amending the Comprehensive Plan of the City of Corpus Christi and adopting the Corpus Christi Parks and Recreation Master Plan (1st reading 9/25/12) Ordinance amending the Comprehensive Plan of the City of Corpus Christi by adoption of the Corpus Christi Parks and Recreation Master Plan; providing for repeal of conflicting ordinances; and providing for severance. Corpus Christi Page 2 Printed on 10/5/2012 City Council Meeting Agenda - Final October 9, 2012 Attachments: Agenda memo - Strategic Parks & Recreation Master Plan Ordinance - Strategic Parks and Recreation Master Plan Executive Summary - Master Plan Presentation - Strategic Parks & Recreation Master Plan Summary 5 12 -00660 Second Reading Ordinance - Accepting and appropriating a State grant; transferring and appropriating City /InKind match to fund advocacy for victims of domestic violence (1st reading 9/25/12) (Requires 2/3 vote) Authorizing the City Manager or designee to execute all documents necessary to accept a grant from the State of Texas, Criminal Justice Division in the amount of $94,705.39 to continue the Violence Against Women Formula Grant (VAWA) grant within the Police Department for Year 13, with a City match of $47,165.68, in -kind match of $7,200 in the No. 1020 Police General Fund; and appropriating the $94,705.39 in the No. 1061 Police Grants Fund to continue the VAWA grant in the Police Department and authorizing the transfer of $47,165.68 from the No. 1020 Cash Contribution to and appropriating in the No. 1061 Police Grants Fund as grant matching funds for a total project cost of $149,071.07 Attachments: Agenda memo - VAWA 09.18.2012 revised Ordinance -VAWA grant 2012 - Police Contract - VAWA 6 12 -00650 Second Reading Ordinance - Repealing /reenacting ordinance creating the Corpus Christi Museum Advisory Board (1st reading 9/25/12) Ordinance repealing and reenacting section 2 -90 "created; membership; terms; filling vacancies" of the code of ordinances, dissolving the Corpus Christi Museum of Science and History Advisory Board and creating a new Corpus Christi Museum of Science and History Advisory Board; amending section 2 -92 "Meetings; function" of the code of ordinances by modifying the meeting from monthly to quarterly; providing an effective date; providing for severance; and providing for publication. Attachments: Agenda Memo - CC Museum Advisory Board Ordinance Revision Ordinance - Repealing and Reenacting CC Museum Advisory Board 7 12 -00688 Second Reading Ordinance - Appropriating funds for marketing and co- promotion expenditures at the American Bank Center (1st reading 9/25/12) (Requires 2/3 vote) Ordinance appropriating $600,000 from the unreserved fund balance in the No. 1130 Arena Facility Fund and transferring to and appropriating in the No. 4710 Visitors Facilities Fund for American Bank Center Corpus Christi Page 3 Printed on 10/5/2012 City Council Meeting Agenda - Final October 9, 2012 Marketing and Co- Promotion Expenditures; appropriating $115,999.96 from the reserved fund balance in the No. 4710 Visitors Facilities Fund for American Bank Center Marketing and Co- Promotion Expenditures; changing the FY 2012 -2013 Operating Budget adopted by Ordinance No. 029577 to increase revenues by $600,000 and expenditures by $ 1, 315, 999.96. Attachments: Agenda Memo - SMG Marketing & Co -pro 9- 25- 12.docx Ordinance approp transfer SMG Marketing & Co -pro 9- 18- 12.docx 8 12 -00685 Second Reading Ordinance - State lease agreement to store materials for offshore artificial reef construction (1st reading 9/25/12) (Requires 2/3 vote) Ordinance authorizing the City Manager or designee to execute a Coastal Surface Lease with the State of Texas to lease approximately 3.0 acres of filled submerged land for the storage of reefing material for use in constructing an offshore artificial reef, for a term of four years, for $500 per month for the first two years, and $833.33 per month for the last two years. Attachments: Agenda memo - Artificial reef lease COASTAL SURFACE LEASE NO SL20120044 Ordinance - Submerged Lease Council Exhibit 9 12 -00653 Second Reading Ordinance - Professional service contract to improve operations of the J. C. Elliott landfill gas collection system (1st reading 9/25/12) (Requires 2/3 vote) Ordinance amending the FY 2013 Capital Improvement Budget adopted by Ordinance No. 029565 to add Project No. E12108 J.C. Elliott Landfill Gas Collection and Control System Repairs; transferring budgeted funds in the amount of $108,432 from the Citizens Collection Center Flour Bluff / Padre Island Area Project to the J.C. Elliott Landfill Gas Collection and Control System Repairs Project; and authorizing the City Manger or designee to execute a contract for professional services with SCS Field Services of Bedford, Texas in the amount of $100,400 for the J.C. Elliott Landfill Gas Collection and Control System Repairs Project. Attachments: Memo - JC Elliott Project Budget - JC Elliott Location Map - J. C. Elliott Landfill Gas Collection and Control System Repairs.[ Ordinance - JC Elliott Contract Professional Services - J. C. Elliott Landfill Gas Collection and Control 10 12 -00652 Second Reading Ordinanace - Amending the Capital Improvement Corpus Christi Page 4 Printed on 10/5/2012 City Council Meeting Agenda - Final October 9, 2012 Budget to transfer funds and execute a construction contract for street improvements including utilities from Leopard Street to Maple Leaf Drive and offsite Storm Water improvements from Lois Drive to Turkey Creek along Leopard Street (BOND 2008) (1st reading 9/25/12) (Requires 2/3 vote) Ordinance amending the FY 2013 Capital Improvement Budget adopted by Ordinance No. 029565 to transfer $41,928 in budgeted wastewater project savings and $16,450 in budgeted water project savings from the TXDOT Participation Project and $267,499 in budgeted storm water project savings from the Staples Street Outfall Project to the Charles Drive from Leopard to Maple Leaf Project; increasing expenditures in the amount of $325,877; authorizing the City Manager or designee execute a construction contract with Jhabores Construction Company of Corpus Christi, Texas in the amount of $1,735,439.03 for the Charles Drive from Leopard Street to Maple Leaf Drive Project for the base bid. Attachments: Memo - Charles Drive Project Budget - Charles Drive.xls Location Map - Charles Drive.pdf Ordinance - Charles Drive Powerpoint - Charles Drive J. EXECUTIVE SESSION: (ITEM 11) 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. 11 12 -00719 Executive session pursuant to Section 551.071(1)(A) of the Texas Government Code for consultation with attorneys regarding contemplated litigation with a construction contractor with possible discussion and action in open session. K. PUBLIC HEARINGS: (NONE) L. REGULAR AGENDA: (ITEM 12) The following items are motions, resolutions and ordinances that will be considered and voted on individually. 12 12 -00676 Agreement for temporary tax abatement for future mixed use development located at 401 N Chaparral Street (Requires 2/3 vote) Resolution authorizing the execution of an agreement with Cosmopolitan Corpus Ltd providing for temporary property tax abatement. Corpus Christi Page 5 Printed on 10/5/2012 City Council Meeting Agenda - Final October 9, 2012 Attachments: Agenda Memorandum for Cosmopolitan Tax Abatement RESOLUTION - Cosmopolitan Tax Abatement Cosmopolitan Tax Abatement Application Cosmopolitan Tax Abatement Agreement M. FIRST READING ORDINANCES: (ITEMS 13 - 14) 13 12 -00706 First Reading Ordinance - Appropriating funds for equipment, cadets, and trainee intern program (Requires 2/3 vote) Ordinance appropriating $430,000 from the unreserved fund balance in No. 9010 Crime Control District Fund for "one- time" expenditures in the FY 2012 -2013 operating budget, and changing the FY 2012 -2013 operating budget adopted by Ordinance No. 029577 by increasing appropriations by $430,000. Attachments: Agenda memo - Crime Control Appropriations Ordinance - Crime Control Appropriation - 2012 - Police 14 12 -00702 First Reading Ordinance - Amending the Capital Improvement Budget transferring funds; rescinding /executing contract for North Beach archway (Requires 2/3 vote) Ordinance amending the FY 2013 Capital Improvement Budget adopted by Ordinance No. 029565 to transfer $40,000 in budgeted project savings from the Heritage Park Cultural Center Renovation Project to the North Beach Entry Development Project; increasing expenditures in the amount of $40,000; rescinding the award of the North Beach Entry Development (Bond 2008) Re -Bid contract to Largin Construction Services, LLC. awarded on June 26, 2012 by Motion M2012 -119; and authorizing the City Manager, or designee, to execute a construction contract with Barcom Commercial, Inc. of Corpus Christi, Texas in the amount of $427,609.49 for the North Beach Entry Development (Bond 2008) Re -Bid for the Base Bid. Attachments: Memo - North Beach Entryway Project Budget - North Beach Entry Development.xlsx Location Map - North Beach Entry Development.pdf Ordinance - North Beach Entry Development.docx N. FUTURE AGENDA ITEMS: (ITEMS 15 - 28) The following items are for Council's informational purposes only. No action will be taken and no public comment will be solicited. 15 12 -00668 Professional services agreement for transporting liquid waste and sludge to wastewater treatment plant for disposal Corpus Christi Page 6 Printed on 10/5/2012 City Council Meeting Agenda - Final October 9, 2012 Motion approving a service agreement with Stump Enterprises, LLC, Rockport, Texas for the hauling of liquid waste and sludge in accordance with Bid Invitation No. BI- 0201 -12, based on lowest responsible bid, for an estimated annual expenditure of $86,250 of which $71,875 is required for the remainder of FY 2012 -2013. The term of the contract shall be for twelve months with an option 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 the Wastewater Department in FY 2012 -2013. Attachments: Agenda Memo - Sludge Haulinq.docx Bid Tabulation - Sludge Haulinq.xls Service Agreement - Sludge Haulinq.pdf 16 12 -00671 Supply Agreement For material to be used for traffic sign manufacturing and installation program Motion approving supply agreements with the following companies in the following amounts for traffic sign blanks, sheeting /roll goods, and traffic sign posts /anchors in accordance with Bid Invitation No. BI- 0216 -12, based on lowest responsible bidder, for an estimated annual expenditure of $146,232.89 of which $121,860.74 is required for the remainder of FY 2012 -2013. The terms of the agreements shall be for twelve (12) months with options to extend for up to two (2) additional twelve -month periods, subject to the approval of the suppliers and the City Manager or designee. Funds have been budgeted by Traffic Engineering in FY 2012 -2013. Attachments: Agenda Memo - Traffic Sign Blanks.docx Bid Tabulation - Traffic Sign Blanks.xlsx 17 12 -00696 Purchase of furniture for offices at water treatment plant Motion approving the purchase of furniture for the O.N. Stevens Facility Alteration Project from Business Interiors by Staples, Houston, Texas in the amount of $98,422.94. The award is in accordance with the State's Cooperative Purchasing Program (TXMAS). Funds are available in the Water Department Fund No. 4088 - 2012 Capital Improvement Program (CI P) Fund. Attachments: Agenda Memo - Furniture.doc Price Sheet - Furniture.xls 18 12 -00679 Service Agreement for City departments to utilize dump truck hauling of miscellaneous materials to designated areas throughout the city Motion approving a service agreement with Tahoe Trucking, Inc., Corpus Corpus Christi Page 7 Printed on 10/5/2012 City Council Meeting Agenda - Final October 9, 2012 Christi, Texas for dump truck hauling in accordance with Bid Invitation No. BI- 0217 -12, based on only bid, for an estimated annual expenditure of $270,000.00 of which $225,000.00 is required for the remainder of FY 2012 -2013. The term of the agreement shall be for twelve (12) months with options to extend for up to two (2) additional twelve -month periods, subject to the approval of the supplier and the City Manager or designee. Funds have been budgeted by the Water, Storm Water, Street Operations and Solid Waste Operations Departments in FY 2012 -2013. Attachments: Agenda Memo - Dump Truck Hauling.docx Bid Tabulation - Dump Truck Haulinq.xlsx Service Agreement - Dump Truck Hauling.pdf Certification Support 4010 -31520 100912 19 12 -00669 Purchase agreement for four (4) Ford F -150 Crew Cab 4 x 4 Pickup Trucks to be used for beach rescue operations Motion approving the purchase of four (4) Ford F -150 Crew Cab 4 X 4 pickup trucks from Philpott Motors, Nederland, Texas for a total amount of $114,173.00. The award is based on the cooperative purchasing agreement with the Texas Local Government Purchasing Cooperative (TLGPC). Funds for the purchase of the Ford F -150 Crew Cab 4 X 4 pickup trucks are available in the Capital Outlay Budget of the Park and Recreation Department in FY 2012 -2013. Attachments: Agenda Memo - Purchase of four (4) Pickup Trucks.docx Bid Tabulation - Purchase of four (4) Ford F -150 Crew Cab 4 X 4 Pickup Trucks. 20 12 -00675 Payment authorization for Mary Rhodes Pipeline emergency repair Motion to authorize payment of $95,512.04 for Mercer Construction Company for emergency repair to Mary Rhodes Pipeline. Attachments: Agenda memo - Mary Rhodes Pipeline Repair Motion.doc Executed Contract for Services.pdf Mercer Construction invoice 21 12 -00692 Lease Agreement with Boy Scout Troop sponsor for property located near McKenzie Rd. and Allison Drive Ordinance authorizing the City Manager, or designee, to execute a three -year Lease Agreement with West Corpus Christi Rotary Club for the use of property near McKenzie Road and Allison Drive by Boy Scout troop sponsored by the Rotary Club, in consideration of the Rotary Club maintaining the premises and improvements; providing for severance; and declaring an emergency. Corpus Christi Page 8 Printed on 10/5/2012 City Council Meeting Agenda - Final October 9, 2012 Attachments: Agenda memo - West CC Rotary lease for Boy Scouts Ordinance - West CC Rotary Lease Lease - West CC Rotary Sept2012 22 12 -00693 Authorization for application to State reimbursement program for beach maintenance expenditures Resolution authorizing the City Manager or designee to execute all documents necessary to request continued financial assistance for beach cleaning and maintenance on North Padre Island and Mustang Island during FY 2012 -2013 under the Texas General Land Office's Beach Cleaning and Maintenance Assistance Program. Attachments: Agenda memo - GLO Beach Maintenance Application Resolution -GLO beach maintenance 23 12 -00694 Amendment to interlocal agreement for latchkey program Resolution authorizing the City Manager or designee to execute an Amended Interlocal Agreement with the Corpus Christi Independent School District to operate the latchkey program with term of approximately five years. Attachments: Agenda Memo - Amendment to Latchkey Interlocal with CCISD Amendment- Latchkey Interlocal Resolution - Amended Interlocal for Latchkey 24 12 -00690 State Interlocal agreement for failure to appear at Municipal Court Resolution authorizing the City Manager to execute an Interlocal Cooperation Agreement with the Texas Department of Public Safety relating to the Failure To Appear Program Attachments: Agenda memo - TDPS FTA Interlocal Resolution -TDPS FTA Interlocal Contract -TDPS Interlocal re FTA System 25 12 -00697 Professional services contract for wastewater permitting process assistance Motion authorizing the City Manager, or designee, to execute a Contract for Professional Services with RPS Espey of Austin, Texas in the amount of $70,000.00 for the Wastewater Permit Assistance FY 2012. Attachments: Agenda Memo - Wastewater Permit Assistance.docx Project Budget - Wastewater Permit Assistance.xls Location Map - Wastewater Permit Assistance.pdf Contract - WW Permit Assistance Corpus Christi Page 9 Printed on 10/5/2012 City Council Meeting Agenda - Final October 9, 2012 26 12 -00703 Ratification of change order for improvements at the airport Motion authorizing the City Manager, or designee, to ratify Change Order No. 2 with Beecroft Construction, LTD of Corpus Christi, in the amount of $168,499.36 for the CCIA Communication Center, Perimeter Security, Standby Generator and Commercial Aviation Apron Lighting Upgrades - Rehabilitate Terminal Building FIS. Attachments: Memo - CCIA Communications Change Order Summary - CCIA COMMUNICATIONS CENTER PERIMETER SI Location Map- CCIA COMMUNICATION CENTER PERIMETER SECURITY.pd 27 12 -00691 Resolution adopting the City of Corpus Christi's State legislative priorities for the 83rd Texas Legislature in 2013. Attachments: Agenda memo - Legislative priorities Resolution- State Legislative 2013 LEGISLATIVE PRIORITIES 28 12 -00722 Agreement to manage the American Bank Center Motion authorizing the City Manager or his designee to execute a new five year agreement with SMG to manage the American Bank Center under new fees, terms and conditions, including a new base management fee and incentive fee formula, new performance requirements, and new food and beverage service provisions. Attachments: Agenda memo - SMG 1st Amended SMG Management Agreement 10 -4 -12 CPY DFT CLEAN Council Presentation - SMG Management Agreement - O. UPDATES TO CITY COUNCIL: (NONE) The following items are for Council's informational purposes only. No action will be taken and no public comment will be solicited. 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. Corpus Christi Page 10 Printed on 10/5/2012 City Council Meeting Agenda - Final October 9, 2012 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 11 Printed on 10/5/2012 Corpus Christi Meeting Minutes - Final City Council 1201 Leopard St Corpus Christi, TX 78401 CCtexas.com Tuesday, September 25, 2012 12:00 PM Council Chambers 10:30 A.M. - 11:30 A.M. LEGISLATIVE PRIORITIES WORKSHOP 1 City Council Legislative Priorities Workshop Mayor Pro Tem Allen verified that a quorum of the Council was present for the Workshop Meeting - State Legislative Priorities. Ron Olson, City Manager stated that the purpose of the workshop is to advise the Council on legislative priorities that have been identified by staff and coordinated with other jurisdications and entities, and to receive input from the Council on the City's legislative program. Mr. Olson stated that they plan to bring a Resolution to formalize the City's Legislative Goals in October 2012. Mr. Tom Taglibue, Director of Intergovernmental Relations provided the Council an update and discussed the timeline; and the following levels of importance of legislative issues: Priority, Actively Support /Oppose, and Endorse. Mr. Taglibue then presented the Proposed City Legislation for Priority Level, Actively Support, Actively Oppose, and Endorse. He then discussed legislation for the following entities: Nueces County, Del Mar College, Texas A &M University -CC, and Metro 8 Chambers of Commerce. A. Call meeting to order. B. Invocation. Mayor Pro Tem Allen called the meeting to order. The invocation was delivered by Mayor Pro Tem Kelley Allen. C. Pledge of Allegiance. D. Roll Call. The Pledge of Allegiance was led by Council Member John Marez. City Secretary Chapa verified that the necessary quorum of the Council and the following necessary Charter Officers, City Manager Ron Olson, City Attorney Carlos Valdez and City Secretary Armando Chapa were present to conduct the meeting. Present: 7 - Council Member ChrisAdler,Council Member KelleyAllen,Council Member Priscilla LeabCouncil Member David Loeb,Council Member John Marez,Council Member Nelda Martinez, and Council Member Mark Scott Absent: 2 - Mayor Joe Adame, and Council Member Larry Elizondo Corpus Christi Page 1 Printed on 10/4/2012 City Council Meeting Minutes - Final September 25, 2012 E. Proclamations / Commendations 2 F. MINUTES: Proclamation declaring October 2012 as "Domestic Violence Awareness Month" Proclamation declaring October 1 - 7, 2012 as "Ideas Week Corpus Christi" Proclamation declaring October 2, 2012 as "National Night Out" Mayor Pro Tem Allen read and presented the Proclamation(s). 3 Approval of Meeting Minutes - September 18, 2012. A motion was made by Council Member Scott, seconded by Council Member Martinez to approve the minutes as presented and passed. G. BOARDS & COMMITTEE APPOINTMENTS: Arts and Cultural Commission Committee for Persons with Disabilities Island Strategic Action Committee The following new appointments and reappointments were made to the City's boards, commissions and committees: Arts and Cultural Commission: New Appointments - Joseph Schenk (Visual Arts), Cathy Harrison (Economic Development/Tourism), and Stephen Rybak (Marketing) Committee for Persons with Disabilities: New Appointments - David Ramos and Anthony Mulheron Island Strategic Action Committee: New Appointments - Stan Hulse (Padre Isles), Jodi Steen and Ralph Tapscott Enactment No: I. CONSENT AGENDA: (ITEMS 5 - 10) Mayor Pro Tem Allen called for consideration of the Consent Agenda, Items 5 - 10. Mayor Pro Tem Allen asked for comments from the audience. There were no comments. The items were approved by one vote: Deferment agreement with Calallen Retail Partners, L.P., for public improvements located at the Southeast corner of Farm to Market Rd. 624 (Northwest Blvd.) and Farm to Market Rd. 1889. Motion finding reasonable cause exists to delay completion of public improvements in accordance with Section 8.1.10.B of the Unified Development Code and authorizing the City Manager, or designee, to execute a deferment agreement with Calallen Retail Partners, L.P. Corpus Christi Page 2 Printed on 10/4/2012 City Council Meeting Minutes - Final September 25, 2012 ( "Developer "), in the amount of $228,800.00 for public improvements to property located at the southeast corner of Farm to Market Rd. 624 (Northwest Blvd.) and Farm to Market Rd. 1889, contingent upon receipt of a letter of credit approved by the City prior to the filing of the final plat by the Developer. The foregoing motion was passed and approved by the following vote: Aye: 7 - Council Member Adler, Council Member Allen, Council Member Leal, Council Member Loeb, Council Member Marez, Council Member Martinez and Council Member Scott Absent: 2 - MayorAdame and Council Member Elizondo Abstained: 0 Enactment No: M2012 -172 6 Employee Transition Plan for the Professional Service Management Agreement for the Corpus Christi Museum of Science and History Motion authorizing the City Manager or his designee to execute the Employee Transition Plan with Corpus Christi Museum Joint Venture (CCMJV), amending the Professional Service Management Agreement to operate and manage the Corpus Christi Museum of Science and History. The foregoing motion was passed and approved with the following vote: Aye: 7 - Council Member Adler, Council Member Allen, Council Member Leal, Council Member Loeb, Council Member Marez, Council Member Martinez and Council Member Scott Absent: 2 - MayorAdame and Council Member Elizondo Abstained: 0 Enactment No: M2012 -173 7 Professional services contract amendment for the extension of a runway and taxiway threshold and two new taxiways Motion authorizing the City Manager, or designee, to execute Amendment No. 9 to the Professional Services contract with KSA Engineers, Inc. of Longview, Texas, in the amount of $1,000,000.00 for a total restated fee not to exceed $3,403,226.95 for the Corpus Christi International Airport Runway 17/35 Extension /Displacement and Connecting Taxiway Project. The foregoing motion was passed and approve with the following vote: Aye: 7 - Council Member Adler, Council Member Allen, Council Member Leal, Council Member Loeb, Council Member Marez, Council Member Martinez and Council Member Scott Corpus Christi Page 3 Printed on 10/4/2012 City Council Meeting Minutes - Final September 25, 2012 Absent: 2 - MayorAdame and Council Member Elizondo Abstained: 0 Enactment No: M2012 -174 8 Second Reading Ordinance - Appropriating and transferring funds to be used for capital expenditures (First Reading 9/18/12) 9 Ordinance appropriating $65,417 from the No. 4611 Airport Capital Reserve Fund and transferring $65,417 to the No. 4610 Airport Operating Fund as a result of the July 10, 2012 refunding of the Series 2000 A & B Bonds that eliminated the reserve fund requirement; amending the FY 2012 -13 Operating Budget adopted by Ordinance No. 029577 to increase revenue and expenditures by $65,417. The foregoing ordinance was passed and approved on second reading with the following vote: Aye: 7 - Council Member Adler, Council Member Allen, Council Member Leal, Council Member Loeb, Council Member Marez, Council Member Martinez and Council Member Scott Absent: 2 - MayorAdame and Council Member Elizondo Abstained: 0 Enactment No: 029635 Second Reading Ordinance - Accepting and appropriating a State grant; transferring and appropriating City /InKind match to fund victims of crime (First Reading 9/18/12) Ordinance authorizing the City Manager or designee to execute all documents necessary to accept a grant from the State of Texas, Criminal Justice Division in the amount of $79,188.69 to continue the Victims of Crime Act (VOCA) grant within the Police Department for Year 13, with a City match of $16,731.84, in -kind match of $4,000 in the No. 1020 Police General Fund; and appropriating the $79,188.69 in the No. 1061 Police Grants Fund to continue the VOCA grant in the Police Department and authorizing the transfer of $16,731.84 from the No. 1020 Cash Contribution to and appropriating in the No. 1061 Police Grants Fund as grant matching funds for a total project cost of $99,920.53. The foregoing was passed and approved on second reading with the following vote: Aye: 7 - Council Member Adler, Council Member Allen, Council Member Leal, Council Member Loeb, Council Member Marez, Council Member Martinez and Council Member Scott Absent: 2 - MayorAdame and Council Member Elizondo Corpus Christi Page 4 Printed on 10/4/2012 City Council Meeting Minutes - Final September 25, 2012 10 Abstained: 0 Enactment No: 029636 Second Reading Ordinance - Appropriating funds for purchase of 164 In -Car Video Recording Systems and completion of fiber network for police substations (First Reading 9/18/12) Ordinance appropriating $1,216,225 in the General Fund No. 1020 for the purchase of 164 vehicle video recording systems for the Police Department's patrol fleet; changing the FY 2012 -2013 Operating Budget adopted by Ordinance No. 029577 by increasing appropriations by $1,216,225; transferring an amount of $80,000 from the General Fund No. 1020 to and appropriating in the MIS Fund No. 5210 to facilitate completion of the fiber network for use by the Tuloso and Waldron Police Department Substations; changing the FY 2012 -2013 Operating Budget adopted by Ordinance No. 029577 by increasing revenues and appropriations by $80,000 each; awarding and authorizing the purchase of 164 vehicle video recording systems from Coban Technologies, Inc. for $1,426,611.30 based on the cooperative purchasing agreement with the Houston - Galveston Area Council of Governments (H -GAC). The foregoing ordinance was passed and approved on second reading with the following vote: Aye: 7 - Council Member Adler, Council Member Allen, Council Member Leal, Council Member Loeb, Council Member Marez, Council Member Martinez and Council Member Scott Absent: 2 - MayorAdame and Council Member Elizondo Abstained: 0 Enactment No 029637 J. EXECUTIVE SESSION: (NONE) K. PUBLIC HEARINGS: (ITEM 11) Mayor Pro Tem Allen referred to Item No. 11. Michael Morris, Director of Parks and Recreation stated that this is a Public Hearing and First Reading Ordinance adopting the Corpus Christi Parks & Recreation Master Plan. Mr. Morris added that the primary function of the plan is to assess the current park system, identify needs and deficiencies in the system and establish goals and priorities for maintaining, improving and developing a park system that meets the recreation needs of the community. He added that the Planning Commission approved the Master Plan. A motion was made by Council Member Scott, seconded by Council Member Loeb to open the public hearing and passed. There were no comments. A motion was made by Council Member Scott, seconded by Council Member Corpus Christi Page 5 Printed on 10/4/2012 City Council Meeting Minutes - Final September 25, 2012 11 Loeb to close theh public hearing and passed. Second Reading Ordinance - Amending the Comprehensive Plan of the City of Corpus Christi and adopting the Corpus Christi Parks and Recreation Master Plan (1st reading 9/25/12) Ordinance amending the Comprehensive Plan of the City of Corpus Christi by adoption of the Corpus Christi Parks and Recreation Master Plan; providing for repeal of conflicting ordinances; and providing for severance. The foregoing ordinance was passed and approved on first reading with the following vote: Aye: 7 - Council Member Adler, Council Member Allen, Council Member Leal, Council Member Loeb, Council Member Marez, Council Member Martinez and Council Member Scott Absent: 2 - MayorAdame and Council Member Elizondo Abstained: 0 L. REGULAR AGENDA: (ITEM 12) 12 Agreement for temporary tax abatement for future mixed use development located at 908 and 916 -928 Staples Street Resolution authorizing the execution of an agreement with Mr. Owen A. Norton providing for temporary property tax abatement. Mayor Pro Tem Allen referred to Item No. 12. Emily Martinez, Economic Development stated that the request is for a temporary tax abatement agreement in the Norton Street area. The improvement are to a 8,950 square foot building for restaurant and retail office space. The estimated improvements are approximately $425,000 and will create 10 permanent jobs. Mayor Pro Tem Allen called for comments from the audience. There were no comments. Ms. Martinez stated that an amendment to the agreement is necessary to clarify that this agreement is a "small business agreement" and not a Manufacturing Facility on Page 4 of the agreement. A motion was made by Council Member Scott, seconded by Council Member Martinez to amend the agreement and passed. The foregoing resolution was passed and approved as amended with the following vote: Aye: 7 - Council Member Adler, Council Member Allen, Council Member Leal, Council Member Loeb, Council Member Marez, Council Member Martinez and Council Member Scott Absent: 2 - MayorAdame and Council Member Elizondo Abstained: 0 Enactment No: 029638 Corpus Christi Page 6 Printed on 10/4/2012 City Council Meeting Minutes - Final September 25, 2012 M. FIRST READING ORDINANCES: (ITEMS 13 - 18) 13 First Reading Ordinance - Accepting and appropriating a State grant; transferring and appropriating City /InKind match to fund advocacy for victims of domestic violence Authorizing the City Manager or designee to execute all documents necessary to accept a grant from the State of Texas, Criminal Justice Division in the amount of $94,705.39 to continue the Violence Against Women Formula Grant (VAWA) grant within the Police Department for Year 13, with a City match of $47,165.68, in -kind match of $7,200 in the No. 1020 Police General Fund; and appropriating the $94,705.39 in the No. 1061 Police Grants Fund to continue the VAWA grant in the Police Department and authorizing the transfer of $47,165.68 from the No. 1020 Cash Contribution to and appropriating in the No. 1061 Police Grants Fund as grant matching funds for a total project cost of $149,071.07 The foregoing ordinance was passed and approved on first reading with the following vote: Aye: 7 - Council Member Adler, Council Member Allen, Council Member Leal, Council Member Loeb, Council Member Marez, Council Member Martinez and Council Member Scott Absent: 2 - MayorAdame and Council Member Elizondo Abstained: 0 14 First Reading Ordinance - Repealing /reenacting ordinance creating the Corpus Christi Museum Advisory Board Ordinance repealing and reenacting section 2 -90 "created; membership; terms; filling vacancies" of the code of ordinances, dissolving the Corpus Christi Museum of Science and History Advisory Board and creating a new Corpus Christi Museum of Science and History Advisory Board; amending section 2 -92 "Meetings; function" of the code of ordinances by modifying the meeting from monthly to quarterly; providing an effective date; providing for severance; and providing for publication. The foregoing ordinance was passed and approved on first reading with the following vote: Aye: 7 - Council Member Adler, Council Member Allen, Council Member Leal, Council Member Loeb, Council Member Marez, Council Member Martinez and Council Member Scott Absent: 2 - MayorAdame and Council Member Elizondo Abstained: 0 Corpus Christi Page 7 Printed on 10/4/2012 City Council Meeting Minutes - Final September 25, 2012 15 First Reading Ordinance - Appropriating funds for marketing and co- promotion expenditures at the American Bank Center Ordinance appropriating $600,000 from the unreserved fund balance in the No. 1130 Arena Facility Fund and transferring to and appropriating in the No. 4710 Visitors Facilities Fund for American Bank Center Marketing and Co- Promotion Expenditures; appropriating $115,999.96 from the reserved fund balance in the No. 4710 Visitors Facilities Fund for American Bank Center Marketing and Co- Promotion Expenditures; changing the FY 2012 -2013 Operating Budget adopted by Ordinance No. 029577 to increase revenues by $600,000 and expenditures by $ 1,315,999.96. The foregoing ordinance was passed and approved on first reading with the following vote: Aye: 7 - Council Member Adler, Council Member Allen, Council Member Leal, Council Member Loeb, Council Member Marez, Council Member Martinez and Council Member Scott Absent: 2 - MayorAdame and Council Member Elizondo Abstained: 0 16 First Reading Ordinance - State lease agreement to store materials for offshore artificial reef construction Ordinance authorizing the City Manager or designee to execute a Coastal Surface Lease with the State of Texas to lease approximately 3.0 acres of filled submerged land for the storage of reefing material for use in constructing an offshore artificial reef, for a term of four years, for $500 per month for the first two years, and $833.33 per month for the last two years. The foregoing ordinance was passed and approved on first reading with the following vote: Aye: 7 - Council Member Adler, Council Member Allen, Council Member Leal, Council Member Loeb, Council Member Marez, Council Member Martinez and Council Member Scott Absent: 2 - MayorAdame and Council Member Elizondo Abstained: 0 17 First Reading Ordinance - Professional service contract to improve operations of the J. C. Elliott landfill gas collection system Ordinance amending the FY 2013 Capital Improvement Budget adopted by Ordinance No. 029565 to add Project No. E12108 J.C. Elliott Landfill Gas Collection and Control System Repairs; transferring budgeted funds in the amount of $108,432 from the Citizens Collection Center Flour Bluff / Padre Island Area Project to the J.C. Elliott Landfill Corpus Christi Page 8 Printed on 10/4/2012 City Council Meeting Minutes - Final September 25, 2012 18 Gas Collection and Control System Repairs Project; and authorizing the City Manger or designee to execute a contract for professional services with SCS Field Services of Bedford, Texas in the amount of $100,400 for the J.C. Elliott Landfill Gas Collection and Control System Repairs Project. The foregoing ordinance was passed and approved on first reading with the following vote: Aye: 7 - Council Member Adler, Council Member Allen, Council Member Leal, Council Member Loeb, Council Member Marez, Council Member Martinez and Council Member Scott Absent: 2 - MayorAdame and Council Member Elizondo Abstained: 0 First Reading Ordinanace - Amending the Capital Improvement Budget to transfer funds and execute a construction contract for street improvements including utilities from Leopard Street to Maple Leaf Drive and offsite Storm Water improvements from Lois Drive to Turkey Creek along Leopard Street Ordinance amending the FY 2013 Capital Improvement Budget adopted by Ordinance No. 029565 to transfer $41,928 in budgeted wastewater project savings and $16,450 in budgeted water project savings from the TXDOT Participation Project and $267,499 in budgeted storm water project savings from the Staples Street Outfall Project to the Charles Drive from Leopard to Maple Leaf Project; increasing expenditures in the amount of $325,877; authorizing the City Manager or designee execute a construction contract with Jhabores Construction Company of Corpus Christi, Texas in the amount of $1,735,439.03 for the Charles Drive from Leopard Street to Maple Leaf Drive Project for the base bid. The foregoing ordinance was passed and approved on first reading with the following vote: Aye: 7 - Council Member Adler, Council Member Allen, Council Member Leal, Council Member Loeb, Council Member Marez, Council Member Martinez and Council Member Scott Absent: 2 - MayorAdame and Council Member Elizondo Abstained: 0 N. FUTURE AGENDA ITEMS: (NONE) RECESS THE CITY COUNCIL MEETING 19 Board of Director's Meeting of the Corpus Christi Community Improvement Corporation (CCCIC) Corpus Christi Page 9 Printed on 10/4/2012 City Council Meeting Minutes - Final September 25, 2012 1. Call meeting to order 2. Secretary Armando Chapa calls roll. 3. Approve minutes from Board meeting of September 11, 2012. 4. Appointments to the Loan Review Committee 5. Public Comment 6. Adjournment This Corporation Meeting was held. RECONVENE THE CITY COUNCIL MEETING O. UPDATES TO CITY COUNCIL: P. Public Comment. Mayor Pro Tem Allen called for public comment. Jerry Garcia spoke in support of the renaming of the Greenwood Library to the Ben McDonald Library, and stated that he supports additional projects in the westside area; Abel Alonzo spoke in support of increases for City employees. Q. CITY MANAGER'S COMMENTS: Update on City Operations Ron Olson, City Manager referred to Item No. 10 on today's consent agenda, In -Car Video Recording System. Mr. Olson spoke in support of this item and stated that it deals with safety and the ability to perform and use in the court system as evidence, when necessary. Mr. Olson announced that Assistant City Manager Troy Rigg's last day is Friday, September 28 and that he has begun the process to move forward with a Search Firm to replace Mr. Riggs. R. ADJOURNMENT There being no further business to come before the meeting, Mayor Pro Tem Allen adjourned the meeting at 1:15 p.m. Corpus Christi Page 10 Printed on 10/4/2012 AGENDA MEMORANDUM First Reading of Ordinance September 11, 2012 Second Reading of Ordinance October 9, 2012 DATE: August 20, 2012 TO: Ronald L. Olson, City Manager FROM: Gustavo Gonzalez, Director of Water Operations GustavoGo@cctexas.com 361- 826 -1874 Extension of lease agreement with Texas Parks and Wildlife Department CAPTION: Ordinance authorizing the City Manager, or designee, to execute an extension of the Lease Agreement with Texas Parks and Wildlife Department for the use of an approximately 14,106 acre tract adjacent to Lake Corpus Christi through December 31, 2052; providing for severance; providing for publication; and providing an effective date PURPOSE: To extend the lease agreement between the City of Corpus Christi and Texas Parks and Wildlife Department (TPWD) until December 31, 2052 unless extended or terminated by agreement of the parties. BACKGROUND AND FINDINGS: The original 99 -year lease between the City of Corpus Christi and a predecessor agency to TPWD was authorized by City Council in Ordinance No. 457, and entered into on February 13, 1934, and is currently scheduled to expire in 2033. This lease was clarified and amended by agreements between the City of Corpus Christi and TPWD dated October 26, 1944, April 30, 1958, October 20, 1977, and May 11, 1981. On October 26, 1944, authorized by City Ordinance No. 1742, the City of Corpus Christi, TPWD, and the Gulf Coast Council of the Boy Scouts of America (Boy Scouts) agreed to allow construction by the Boy Scouts of a permanent encampment of about 126 acres. To enable the Boy Scouts to finance and construct improvements to their permanent encampment, with estimated value of $2.4 million in Phase 1, and $2 million in Phase 2 which is estimated to begin in 2013, and for the benefit provided by the improvements which serve as buffering are for the Lake, TPWD requested an extension of the lease until 2052. TPWD intends to extend the sublease to the Boy Scouts for the same duration. ALTERNATIVES: None. OTHER CONSIDERATIONS: None. CONFORMITY TO CITY POLICY: This lease agreement conforms to City Charter requirements. EMERGENCY / NON - EMERGENCY: Per City Charter, a 28 -day delay is required between first and second readings of the ordinance since the term of the lease is over five years. The second reading is scheduled to occur on October 9, 2012. DEPARTMENTAL CLEARANCES: Water 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 BALANCE Fund(s): Water Comments: None. RECOMMENDATION: Approval of extension of lease agreement with Texas Parks and Wildlife Department. LIST OF SUPPORTING DOCUMENTS: TPWD Lease Extension Ordinance TPWD Lease Agreement Ordinance authorizing the City Manager, or designee, to execute an extension of the Lease Agreement with Texas Parks and Wildlife Department for the use of an approximately 14106 acre tract adjacent to Lake Corpus Christi through December 31, 2052; providing for severance; providing for publication; and providing an effective date. Be it ordained by the City Council of the City of Corpus Christi, Texas: SECTION 1. The City Manager, or his designee, is authorized to execute an extension of the Lease Agreement with Texas Parks and Wildlife Department for the use of an approximately 14,106 acre tract adjacent to Lake Corpus Christi through December 31, 2052. A copy of the contract shall be filed with the City Secretary. SECTION 2. If, for any reason, any section, paragraph, subdivision, clause, phrase, word, or provision of this ordinance shall be held invalid or unconstitutional by final judgment of a court of competent jurisdiction, it shall not affect any other section, paragraph, subdivision, clause, phrase, word or provision of this ordinance, for it is the definite intent of the City Council that every section, paragraph, subdivision, phrase, word and provision hereof shall be given full force and effect for its purpose. SECTION 3. Publication shall be made in the official publication of the City of Corpus Christi as required by the City Charter of the City of Corpus Christi. This extension takes effect on December 31, 2012. 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 City Secretary Joe Adame Mayor LEASE OF REAL PROPERTY — EXTENSION STATE OF TEXAS COUNTY OF NUECES Date: September 11, 2012 Landlord: City of Corpus Christi § § § KNOW ALL BY THESE PRESENTS: Landlord's Address: 1201 Leopard St. Corpus Christi, TX 78401 Tenant: Texas Parks and Wildlife Department (TPWD) Tenant's Address: 4200 Smith School Road, Austin, TX, 78744 Premises: SURFACE ONLY of approximately 14105.99 acres of land, situated in San Patricio, Jim Wells, and Live Oak counties, Texas, as described in Exhibit A, less the tract described in Exhibit B ( "Land "), known as Lake Corpus Christi State Park. Commencement Date: December 31, 2012 Termination Date: December 31, 2052 Recitations: The original 99 -year lease between the City of Corpus Christi and a predecessor agency to TPWD was authorized by City Council in Ordinance No. 457, and entered into on February 13, 1934, and is currently scheduled to expire in 2033. This lease was clarified and amended by agreement dated October 26, 1944, authorized by City Ordinance 1724. On November 29, 1944, authorized by City Ordinance No. 1742, the City of Corpus Christi, TPWD, and the Gulf Coast Council of the Boy Scouts of America (Boy Scouts) agreed to allow construction by the Boy Scouts of a permanent encampment of about 126 acres. By agreement dated April 8, 1957, Document No. 6500026, the area subleased by TPWD to the Boy Scouts was revised by providing additional acreage to compensate for an increase in the size of Lake Corpus Christi, said additional acreage is described on Exhibit C. By agreement dated October 20, 1977, authorized by City Ordinance 13944, 5.79 acres were removed from the lease between the City of Corpus Christi and TPWD. By agreement dated May 11, 1981, authorized by City Ordinance 16115, 1.23 acres were added to the lease between the City of Corpus Christi and TPWD. To enable the Boy Scouts to finance and construct improvements to their permanent encampment, with estimated value of $2.4 million in Phase 1, and $2 million in Phase 2 which is estimated to begin in 2013, and for the benefit provided by the improvements which serve as buffering area for the Lake, the City of Corpus Christi and TPWD desire to extend the lease until 2052. TPWD intends to extend the sublease to the Boy Scouts for the same duration. NOW THEREFORE, the City of Corpus Christi and TPWD agree as follows: 1. The lease of February 13, 1934, as clarified and amended by agreements between the City of Corpus Christi and TPWD dated October 26, 1944, October 20, 1977, and May 11, 1981, shall have an expiration date of December 31, 2052, unless extended or terminated by agreement of the parties. 2. Except for the change in term of the lease, this agreement does not modify the conditions and reservations contained in the instruments referenced in the preceding paragraph. CITY OF CORPUS CHRISTI By: Its: Date: This instrument was acknowledged before me on , 20 , by of Notary Public in and for the State of Texas. Print Name: My commission expires: TEXAS PARKS AND WILDLIFE DEPARTMENT By: Its: Date: This instrument was acknowledged before me on , 20 , by of Notary Public in and for the State of Texas. Print Name: My commission expires: EXHIBIT A From Corpus Christi City Ordinance No. 1724: "2127.6 acres purchased by grantor herein from Wallis D. Wade, et ux, in three tracts, as follows: First Tract: 1426.3 acres out of a tract of 10,200.42 acre tract in Jim Wells County, Texas, being fully described in deed dated October 3, 1927, recorded in Vol. 88, Pages 151 -154 of the Deed Records of San Patricio County, Texas. Second Tract: 379.3 acres out of an 832 acre tract in San Patricio County, Texas, being fully described in deed dated October 3, 1927, recorded in the Deed Records of San Patricio County, Texas, in Vol. 88, Pages 151 -154. Third Tract: 322. acres out of the aforementioned 832 acre tract in San Patricio County, Texas, being fully described in deed dated July 18, 1934, recorded in the Deed Records of San Patricio County, Texas, in Vol. 110, Pages 60 -61. Reference is made to the abovementioned original deeds and the records thereof for all purposes. ALSO, 164.89 acres, more or less, situated in San Patricio County, Texas, fully described in deed from J. A. Henderson to grantor herein, recorded in Vol. 93, Pages 77 -78 of the Deed Records of San Patricio County, Texas, to which deed and the record thereof reference is made for all purposes. ALSO, 141.62 acres, more or less, situated in Live Oak County, Texas, fully described in deed from H. Roos and R. C. Roos to grantor herein, recorded in Vol. 29, Page 41 of the Deed Records of Live Oak County, Texas, to which deed and the record thereof reference is made for all purposes. ALSO, 11,676.44 acres, more or less, situated in Jim Wells, San Patricio, and Live Oak Counties, being the land under and adjacent to Lake Corpus Christi, easements on and over which were conveyed to grantor herein by various persons. Reference is made for all purposes to these said easements and the records thereof in the offices of the County Clerks of the three aforementioned counties of the State of Texas. The total of the above listed acreages is taken to be 14,110.55 acres." From Corpus Christi Ordinance 016115: Being part of a 1.23 acre tract out of Juan Miguel, Pedro and Nepomuceno Delgado 4 League Grant, Abstract No. 4 conveyed by S. Finley Ewing to James H. Ewing by Deed dated May 5, 1941, recorded in Volume 128, Page 53, Deed Records of San Patricio County, Texas, and being the same property Clyde D. Staves, by Deed dated May 17, 1960, recorded in Volume 255, Page 433, Deed Records of San Patricio County, Texas, and further being the same property as described in that certain Deed dated October 11, 1960, signed by Clyde D. Staves as Grantor to W.R. Hubler and Ed Byrne as Grantors to the City of Corpus Christi, Texas, which deed is recorded in Volume 635, Page 71 -73 of the Deed Records of San Patricio County, Texas, to which reference is here made. EXHIBIT B (from Corpus Christi Ordinance No. 013944) FIELD NOTES for 5.79 acres of land out of a 65.5 acre tract of land conveyed to the City of Corpus Christi, from Arthur C. Jones dated August 24, 1934 and recorded in Volume 105, Pages 153, 154, Deed Records of San Patricio County, Texas; BEGINNING at the upper Southeast corner of said 65.5 acre tract for the Southeast corner of this tract; THENCE North 75° 14' 40" West, along an existing fence line on the boundary line of said 65.5 acre tract, 525.00 feet for the Southwest corner of this tract; THENCE North 46° 11' 00" East 421.90 feet for a corner of this tract; THENCE North 66° 43' 35" East 378.63 feet for an inside corner of this tract; THENCE North 0° 08' 40" West 190.15 feet for a corner of this tract; THENCE North 13° 14' 15" West 91.05 feet for a corner of this tract; THENCE North 44° 52' 00" East 80.00 feet to a point on the North boundary line of said 65.5 acre tract for the Northwest corner of this tract; THENCE South 68° 50' 00" East, along said North boundary line, 99.43 feet for the Northeast corner of this tract; THENCE South 11° 27' 40" West 658.15 feet for a corner of this tract; THENCE South 31° 37' 20" West 270.08 feet to the POINT OF BEGINNING. Exhibit C From Corpus Christi City Ordinance 1742, and filed for record in San Patricio County Deed Recordds on February 21, 1945 in Vol. 141, pages 128 -129: "City and [TPWD} lease to Boy Scouts, for their possession and use, approximately one hundred twenty -six (126) acres of land situated in San Patricio County, Texas, and being in the M. P. Delgado Survey, Abstract No. 4, and more definitely described as follows: Beginning at a point in the Northwest line of the said M. P. Delgado Survey, Abstract No. 4, which point is the West corner of the Lillian Schroeder tract; thence in a Southeasterly direction with the Lillian Schroeder Southwest line, two thousand (2,000) feet; thence in a Southwesterly direction and parallel with the Northwest line of the said M. P. Delgado Survey, Abstract No. 4, to the water's edge of Lake Corpus Christi, thence in a Northwesterly direction with the water's edge of Lake Corpus Christi to the point where the Northwest line of the M. P. Delgado Survey, Abstract No. 4, intersects with the water's edge of Lake Corpus Christi; thence in a Northwesterly direction with the Northwest line of the M. P. Delgado Survey, Abstract NO. 4, to the place of beginning. Thereon with all improvements located theron or which may be placed thereon, for a period concurrent with the lease from the City of Corpus Christi, Texas, and the [TPWD]. From lease between Texas State Parks Board (predeccsor agency to TPWD) and Gulf Coast Council Boy Scouts of America, executed April 8, 1957, and marked as Document 6500026 and 6500027: "Paragraph 1 of the original lease is hereby amended by adding tho the end of such paragraph the following: Also, the Board leases to Boy Scouts, for their possession and use, the following described land in the M. P. Delgado Survey, Abstract No. 4, to -wit: The Place of Beginning is NE corner of the approximately 126 acre tract of land originally leased to the Lessee and more particularly described in the lease dated 26 October 1944, above referred to as recorded in Volume 141, Pages 128 -129, Deed Records of San Patricio County, Texas. Thence in a South Easterly direction in prolongation of the Northeast line of the original 126 acre tract, which original line was also the Lillian Schroeder Southwest line, 150 feet to a point; Thence in a Southwesterly direction and parallel with the Northwest Line of the M. P. Delgado Survey, Abstract No. 4, to the water's edge of Lake Corpus Christi; Thence, in a Northwesterly direction with the water's edge to the Southeast corner of the original 126 acre tract above referred to: Thence in a Northeasterly direction with the SE line of the said 126 acre tract, to the Place of Beginning." AGENDA MEMORANDUM Public Hearing and First Reading for the City Council Meeting of September 25, 2012 Second Reading Agenda Item for the City Council Meeting of October 9, 2012 DATE: 7/30/2012 TO: Ronald L. Olson, City Manager FROM: Michael Morris, Director of Parks and Recreation MichaelMo(c�cctexas.com; 361- 826 -3464 Parks and Recreation Master Plan CAPTION: Ordinance amending the Comprehensive Plan of the City of Corpus Christi by adoption of the Corpus Christi Parks and Recreation Master Plan; providing for repeal of conflicting ordinances; and providing for severance. PURPOSE: The Texas Parks and Wildlife Department requires all local parks and recreation departments to have a new master plan approved every eight to ten years or before any major developments occur which will significantly impact the recreation needs of a community. An approved master plan serves as major point value in the TPWD Grant Application and Evaluation Process. The primary function of the Strategic Parks and Recreation Master Plan (Master Plan) is to assess the current park system, identify needs and deficiencies in the system and establish goals and priorities for maintaining, improving and developing a park system that meets the recreation needs and demands of the community. BACKGROUND AND FINDINGS: The previous Corpus Christi Parks, Recreation and Open Space Master Plan was completed and adopted in 2002. Updates to the plan and priority development lists were made in 2006, 2008 and 2010. In October 2010, City Council approved a contract for professional services with Halff Associaties, Inc to assist the Parks and Recreation Department with the development of the 2012 Corpus Christi Parks and Recreation Master Plan. In addition to conducting a complete inventory and assessment of the current park system, Halff conducted over 10 public meetings and presentations, met with key staff members, stakeholders, advisory groups and commissions and conducted extensive web based and telephone surveys to gather input on recreation priorities and needs throughout the community over the course of 18 months. The proposed Master Plan was approved by the Parks and Recreation Advisory Committee on Wednesday, July 11, 2012. A public hearing was held and the plan approved by the Planning Commission meeting on Wednesday, August 29, 2012. A link to view the Master Plan document has been added to the City of Corpus Christi webpage and a copy is also available in the City Secretary's office for review by the public. ALTERNATIVES: Do not approve ordinance. OTHER CONSIDERATIONS: Not applicable CONFORMITY TO CITY POLICY: The City Council must approve all amendments to the Comprehensive Plan of the City of Corpus Christi. EMERGENCY / NON - EMERGENCY: Non - Emergency. As per City policy, a public hearing must be held to amend the Comprehensive Plan of the City of Corpus Christi. DEPARTMENTAL CLEARANCES: Legal FINANCIAL IMPACT: Not applicable Fiscal Year: 2012 -2013 Project to Date Expenditures (CIP only) Current Year Future Years TOTALS Line Item Budget 0.00 Encumbered / Expended Amount This item 0.00 BALANCE 0.00 Fund(s): Comments: There is no budget impact from this agenda item. RECOMMENDATION: Approve the proposed ordinance. LIST OF SUPPORTING DOCUMENTS: Ordinance Summary — 2012 Corpus Christi Strategic Parks and Recreation Master Plan Page 1 of 2 Ordinance amending the Comprehensive Plan of the City of Corpus Christi by adoption of the Corpus Christi Strategic Parks and Recreation Master Plan; providing for repeal of conflicting ordinances; and providing for severance. Whereas, in accordance with proper notice to the public, a public hearing was held on Wednesday, August 29, 2012, during a meeting of the Planning Commission and on Tuesday, September 25, 2012, during a meeting of the City Council, in the Council Chambers at City Hall in the City of Corpus Christi allowing all interested persons to appear and be heard regarding the proposed Corpus Christi Strategic Parks and Recreation Master Plan; and Whereas, under the laws of the State of Texas and the City Charter of the City of Corpus Christi, the City Council shall adopt the comprehensive plan and amendments to the comprehensive plan by ordinance; and Whereas, the City Council has determined that the adoption of the Corpus Christi Strategic Parks and Recreation Master Plan, an element of the Comprehensive Plan of the City of Corpus Christi, would best serve public health, necessity and convenience and the general welfare of the City of Corpus Christi and its citizens; Now, therefore, be it ordained by the City Council of the City of Corpus Christi, Texas: SECTION 1. That the Comprehensive Plan of the City of Corpus Christi, Texas is amended by the adoption of the Corpus Christi Strategic Parks and Recreation Master Plan. A copy of the Corpus Christi Strategic Parks and Recreation Master Plan shall be filed with the Office of the City Secretary. SECTION 2. That the Corpus Christi Strategic Parks and Recreation Master Plan shall replace the Corpus Christi Parks, Recreation and Open Space Master Plan. SECTION 3. That the City of Corpus Christi Strategic Parks and Recreation Master Plan establishes the City of Corpus Christi's policies for development and maintenance of parks and recreation services and the acquisition and preservation of open space within the City. The City of Corpus Christi Strategic Parks and Recreation Master Plan is a portion of the Comprehensive Plan of the City. SECTION 4. That all ordinances or parts of ordinances in conflict herewith are hereby expressly repealed. Where any provision of this ordinance imposes standards or restrictions different from those imposed by any other provision of any other City ordinance, rule, or regulation, the provisions of this ordinance shall control. SECTION 5. It is the definite intent of this City Council that every section, paragraph, subdivision, clause, phrase, word or provision of this ordinance be given full force and effect for its purpose. Therefore, if 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. Page 2of2 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 City Secretary Joe Adame Mayor Executive Summary - 2012 Corpus Christi Parks, Recreation and Open Space Master Plan Background The City of Corpus Christi prepared a Parks, Recreation and Open Space Master Plan in 2002 and performed a major update in 2006. Additional updates were performed in 2008 and 2010 to realign recreation priorities. This Master Plan will provide guidance to City staff and elected officials for the timeframe of 2012 to 2022. The 2012 Parks, Recreation and Open Space Master Plan reflects current sentiments that residents have about City parks and provides direction regarding: 1. Operations and maintenance cost savings, and 2. The expenditure of future funds to maximize the benefit for Corpus Christi residents. Key Steps in the Master Planning Process The master planning process was very interactive, incorporating over 40 meetings with residents, stakeholders, the Master Plan Advisory Committee and City staff. Key steps in the master planning process included: 1. Inventory and assessment of existing parks and recreation facilities 2. Public Engagement Meetings with Master Plan Advisory Committee Community meetings with Residents and stakeholders Web and Telephone surveys 3. Needs Assessment and Prioritization 4. Preliminary Master Plan Preparation Public meetings to present findings and recommendations 5. Master Plan Finalization 6. Master Plan Approvals and Adoption Master Plan Advisory Committee PRAC Planning Commission City Council Key Findings Compared to other cities in Texas, Corpus Christi has a high number of park sites per 1,000 population. However, on average, Corpus Christi's parks are significantly smaller in size than other cities. Through the public engagement process, residents expressed their desire for parks that are attractive, well maintained and offer numerous recreation activities that benefit a diverse range of the population. Based on preferences provided by residents through the telephone and web surveys, as well as through public meetings, the top recreation priorities for CC residents are: • Walking, Jogging, Bicycling (Trail related activities) • Music, dance, theater • Swimming and Water Play • Canoeing and Kayaking • Picnicking • Festivals and special events • Bird watching and nature study • Fishing — Saltwater • Fitness classes and Programs • Playgrounds and play equipment Key Recommendations Based on the results of public engagement and review of the park inventory specific recommendations are provided to realign the organization, maintenance and development of new facilities within the Corpus Christi Parks and Recreation Department. These include: 1. Create seven Park Planning Areas within the City to help guide future park maintenance and development 2. Reclassify parks and recreation facilities to more accurately reflect current usage and circumstances 3. Create new maintenance levels that correspond to levels of use between parks and within certain parks 4. Reduce the number of small parks and parks that are under utilized 5. Focus new development on larger, "Major Investment Parks ", with at least one per Park Planning Area 6. Provide new off road trails and on- street bike lanes to provide connections to major parks and activity centers cn cn a) V 0 P-1 •O ro ro CU ro O 0 .O cu cu rt cn cn r0 F-�•I u r0 CA O ° r0 rt o0 � N O u jI .., ri o N ".15-) o6 �� O r CU 0 r U Ci) ;) bA r0 r0 o o a4 o 4 .V CJ � o 1 ,� o V v -V ro ci) O O Increase recreation opportunities and activities r0 a) ^^ C/5 O v QJ 4 G- -Iro-� CD �-I r 1-1 r0 a) E cu el 1 V co V ov � O 7.1 co ,-1 1 (f) _L_, a) 8 co co .—_, U� O� +' v - ca--+t E; RI 4 cu p E c„ +J r•-1 A-"-1 +J V t ro CU cn 'd t u '-' ft rt ft �--+ CU cu cn I-1 ft Cn .5 r +-+ V ; �ro� �� E EO r0� ■. ro -' — 40 0 ft 2 L1-1 U CU ft .P.1 ra qj ;-' 17) 4-1 CU 1-0 CD o v cn Icn r0 CI) • 7 • �..� 1-1 V CU r0 1 Ct CU rt r0 O O v fi es 0 8 0 Ordinance Authorizing the City Manager or designee to execute all documents necessary to accept a grant from the State of Texas, Criminal Justice Division in the amount of $94,705.39 to continue the Violence Against Women Formula Grant (VAWA) grant within the Police Department for Year 13, with a City match of $47,165.68, in -kind match of $7,200 in the No. 1020 Police General Fund; and appropriating the $94,705.39 in the No. 1061 Police Grants Fund to continue the VAWA grant in the Police Department and authorizing the transfer of $47,165.68 from the No. 1020 Cash Contribution to and appropriating in the No. 1061 Police Grants Fund as grant matching funds for a total project cost of $149,071.07 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 State of Texas, Criminal Justice Division in the amount of $94,705.39 to continue the Violence Against Women Formula Grant (VAWA) grant within the Police Department for Year 13, with a City match of $47,165.68, in -kind match of $7,200 in the No. 1020 Police General Fund. SECTION 2. That $94,705.39 grant is appropriated in the No. 1061 Police Grants Fund to continue the VAWA grant in the Police Department and authorizing the transfer of $47,165.68 from the No. 1020 Cash Contribution to and appropriating in the No. 1061 Police Grants Fund as grant matching funds for a total project cost of $149,071.07. 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 City Secretary Joe Adame Mayor State o f T ex as O f f i c e o f t h e G o v e r n o r Criminal Justice Division Rick Perry Governor September 05, 2012 Mr. Troy Riggs Assistant City Manager PREVIEW - Corpus Christi, City of - PREVIEW - 321 John Sartain, P.O. Box 9016 Corpus Christi, Texas 78401 -2511 Dear Mr. Riggs: Congratulations on your award! To activate your agency's grant, the Authorized Official must log on to eGrants at https:/ /cjdonline.governor.state.tx.us and go to the `My Home' tab. In the `Project Status' column, locate the application that is in `Pending Acceptance of Award' status. Click on the grant number and proceed to the `Accept Award' tab. From this tab, click on the `Accept' button. Be sure to review the attached memo for a quick overview of general items every grantee should be aware of. You can also find more detailed information on the eGrants website including helpful resources, links, and tools needed to properly administer CJD grants; an eGrants Users Guide; and the new Guide to Grants containing answers to questions frequently asked by grantees. The Public Policy Research Institute (PPRI) at Texas A &M University will send a detailed information packet to the Project Director containing progress reporting forms and instructions on completing and submitting those forms. I hope you continue to find the online environment of eGrants to be a positive experience. We are continually improving the efficiency of processes so that you can dedicate your time to the priorities of service within your communities. We look forward to working with you to ensure the success of your program. Sincerely, Christopher Burnett Executive Director Post Office Box 12428 Austin, Texas 78711 (512) 463 -1919 (Voice) / (512) 475 -2440 (FAX)/ Dial 7-1-1 For Relay Services OFFICE OF THE GOVERNOR CRIMINAL JUSTICE DIVISION STATEMENT OF GRANT AWARD Grant Number: WF- 12 -V30- 15171 -14 Program Fund: WF- Violence Against Women Formula Grants Grantee Name: PREVIEW - Corpus Christi, City of - PREVIEW - Project Title: Victim Assistance Program Grant Period: 09/01/2012 - 08/31/2013 Liquidation Date: 11/29/2013 Date Awarded: September 05, 2012 CJD Grant Manager: Meg Kee CFDA or State ID: 16.588 CJD Award Amount: Grantee Cash Match: Grantee In Kind Match: Total Project Cost: $94,705.39 $47,165.68 $7,200.00 $149,071.07 The Statement of Grant Award is your official notice of award from the Governor's Criminal Justice Division (CJD). The approved budget is reflected in the Budget /Details tab for this record in eGrants. The grantee agrees to comply with the provisions of the Governor's Criminal Justice Division's rules in Title I, Part I, Chapter 3, Texas Administrative Code in effect on the date the grant is awarded. By clicking on the 'Accept' button within the 'Accept Award' tab, the grantee accepts the responsibility for the grant project and agrees with the following conditions of grant funding. The grantee's funds will not be released until the grantee has satisfied the requirements of the following Condition(s) of Funding and Other Fund - Specific Requirement(s), if any, cited below: Condition(s) of Funding and Other Fund - Specific Requirement(s): 1 Rick Perry Governor State o f T ex as O f f i c e o f t h e G o v e r n o r Criminal Justice Division Memorandum To: CJD Grant Recipients From: Aimee Snoddy, Deputy Director Contact: (512) 463 -1919 Re: Grantee Responsibilities Date Awarded: September 05, 2012 Congratulations on your grant award from Governor Rick Perry's Criminal Justice Division (CJD). It is important to make you aware of a few things to consider as you implement strategies to successfully manage your program. For more information and resources, refer to the Grant Resources section of eGrants available online at https//: ejdonline.governor.state.tx.us: Financial Reporting — Financial Status Reports must be submitted to CJD via eGrants. Financial Status Reports may be submitted monthly but must be submitted at least quarterly. Financial Status Reports are due after each calendar quarter, regardless of when the grant was awarded. Due dates are: April 22 (January-March quarter) July 22 (April -June quarter) October 22 (July- September quarter) January 22 (October- December quarter) The final Financial Status Report must be submitted to CJD on or before the grant liquidation date or funds will lapse and CJD will provide them as grants to others who need the funding. Payment Authorization — Payments will be generated based on expenditures reported in the Financial Status Reports. Upon CJD approval of the Financial Status Report, a payment will be issued through direct deposit or electronic transfer. Generated Program Income — Any income generated as a direct result of the grant activities must be reported to CJD through the Financial Status Report and grant adjustment processes. Program income must be expended prior to seeking payments from CJD. Program income must be accounted and used for the purposes of the grant activites as awarded. Grant Funded Personnel — Staff whose salaries are supported by this award must be made aware that continued funding is contingent upon the availability of appropriated funds as well as the outcome of the annual application review conducted by CJD. Project Changes — Grantees may submit a request for grant adjustment via eGrants for any proposed budgetary or programmatic changes, including updating contact information for grant officials. Equipment — Equipment purchased with grant funds must be used for the purpose of the grant and as approved by CJD. An inventory report should be kept on file containing all equipment purchased with any grant funds during the grant period. This report must agree with the approved grant budget and the final Financial Status Report. Fidelity Bond — Each nonprofit corporation receiving funds from CJD will obtain and have on file a blanket fidelity bond that indemnifies CJD against the loss and /or theft of the entire amount of grant funds, including matching funds. The fidelity bond should cover at least the CJD grant period. Required Notifications — Grantees must immediately notify CJD in writing of any misappropriation of funds, fraud, theft, embezzlement, forgery, or any other serious irregularities indicating noncompliance with grant requirements. Grantees must notify the local prosecutor's office of any possible criminal violations. Grantees must immediately notify CJD in writing if a project or project personnel become involved in any litigation, whether civil or criminal, and the grantee must immediately forward a copy of any demand notices, subpoenas, lawsuits, or indictments to CJD. If a federal or state court or administrative agency renders a judgment or order finding discrimination by a grantee based on race, color, national origin, sex, age, or handicap, the grantee agrees to immediately forward a copy of the judgment or order to CJD. Project Effectiveness — Grantees should regularly evaluate the effectiveness of their projects. This includes a reassessment of project activities and services to determine whether they continue to be effective. Grantees must show that their activities and services effectively address and achieve the project's stated purpose. Programmatic Reporting — Grantees must submit required reports regarding grant information, performance, and progress towards goals and objectives in accordance with the instructions provided by CJD, or its designee. To remain eligible for funding, the grantee must be able to show the scope of services provided and the impact and quality of those services. Monitoring — Grantees must readily make available to CJD or its agents all requested records. CJD may make unannounced monitoring visits at any time. The grantee must make every effort to resolve all issues, findings, or actions identified by CJD within the time frame specified by CJD. Audit Requirements — Grantees expending over $500,000 in state or federal grant funds during the fiscal year are subject to the Single Audit requirements set forth in OMB Circular No. A 133 at http://www.whitehouse.gov/omb/circulars/index.html and the State Single Audit Circular issued under the Uniform Grant Management Standards (UGMS) at http://www.governor.state.tx.us/orants/what/. Grantees must electronicall submit to CJD copies of the results of any single audit conducted in accordance with OMB Circular No. A -133 at http. / /www.whitehouse.gov /omb /circulars /index.html or in accordance with the State Single Audit Circular issued under UGMS, within 30 calendar days after the grantee receives the audit results or nine months after the end of the audit period, whichever is earlier. Supplanting — Awarded funds must be used to supplement existing funds for program activities and not replace (supplant) funds that have been appropriated for the same purpose. Grant monitors and auditors will look for potential supplanting during reviews. Violations may result in a range of penalties, including suspension of future funds, suspension or debarment from receiving federal or state grants, recoupment of monies provided under the grant, and civil or criminal penalties. Refer to the Guide to Grants at https./ /cjdonline.governor.state.tx.us /updates.aspx for additional information on supplanting. Conflict of Interest — Grantees should have in place established safeguards to prohibit employees from using their positions for a purpose that is, or gives the appearance of being motivated by a desire for private gain for themselves or others, particularly those with whom they have family, business, or other ties. Contracting and Procurement — Grantees must follow their established policy and best practices for procuring goods or services with grant funds. Contracts must be routinely monitored for delivery of services or goods. When a contractual or equipment procurement is anticipated to be in excess of $100,000, grantees must submit a Procurement Questionnaire https: / /cjdonline. governor .state.tx.us /updates.aspx to CJD for approval prior to procurement. Travel — Grantees must follow their established policies and good fiscal stewardship related to travel expenses. If the grantee does not have established policies regarding in -state and out -of -state travel, grantee must use the travel guidelines established for state employees. Uniform Crime Reporting — Local units of governments receiving funds from CJD must comply with all requirements for uniform crime reporting and will ensure that prompt reporting will remain current throughout the grant period. Limited English Proficiency — Grantees must take reasonable steps to ensure that persons with limited English proficiency have meaningful access to services. Meaningful access may entail providing language assistance services, including oral and written translation when necessary. Additional information on this requirement can be found at http://www.lep.gov. Law Enforcement Programs — Law enforcement programs receiving funds from CJD must be in compliance with all rules developed by the Texas Commission on Law Enforcement Officer Standards and Education. 28 C.F.R. Part 23 Training - Any grant funded individual responsible for entering information into or retrieving information from an intelligence database must complete continuing education training on operating principles described by 28 C.F.R. Part 23 at least once for each continuous two -year period the person has primary responsibility for entering data into or retrieving data from an intelligence database. Programs Approved to Pay Overtime for Personnel - Overtime is allowable to the extent that it is included in the CJD approved budget. Overtime reimbursements paid by CJD will be based on the following seven eligibility requirements: (1) Federal regulations governing these funds prohibit use of grant funds to pay an individual for the same hours in which the individual is being paid by a unit of government. For example, if an officer's regular work hours are 7 a.m. to 4 p.m. and he takes a day of paid annual leave, he is not eligible to be reimbursed with grant funds for any hours he voluntarily works between 7 a.m. and 4 p.m. He may be eligible for any hours worked that day outside of 7 a.m. to 4 p.m. provided the hours worked comply with the grantee agency's requirements for hours worked prior to eligibility for overtime pay. The regulation regarding hours of eligibility for overtime does not apply to an officer who volunteers to work on his regularly scheduled days off provided he complies with the grantee agency's requirements for hours worked prior to eligibility for overtime pay. (2) Hours worked is defined as physical hours on the job and does not include paid annual leave, compensatory leave, sick leave, holiday leave or other paid leave. (3) On -call hours should not be included in physical hours worked or as eligible hours for overtime. (4) Personnel receiving grant funds for overtime must maintain time and activity reports for all time physically worked. The activity description should include detailed information about the actual activities performed. (5) Time should be recorded to the nearest quarter hour. (6) Grantee records must include a clear calculation in how the overtime was computed. (7) Overtime payments issued outside this policy are the responsibility of the grantee agency. Cancellation for Awards - Grantees must take reasonable steps to commence project activities upon receiving notice of a grant award: Commencement Within 60 Days. If a project is not operational within 60 days of the original start date of the award period or grant award date as noted on this memorandum, whichever is later, the grantee must report by letter to CJD the steps taken to initiate the project, the reasons for delay, and the expected revised start date. Commencement Within 90 Days. If a project is not operational within 90 days of the original start date of the award period or grant award date as noted on this memorandum, whichever is later, the grantee must submit a second statement to CJD explaining the implementation delay. Upon receipt of the 90 -day letter, CJD may cancel the project and redistribute the funds to other project areas. CJD may also, where extenuating circumstances warrant, extend the implementation date of the project past the 90 -day period. Public Information Requests - Grantees must immediately notify and provide a copy to CJD of any Public Information Request received by the agency related to this grant award. Prohibited Acts of Agencies and Individuals - Grant funds may not be used in connection with the following acts by agencies or individuals employed by grant funds: • Grant funds may not be used to finance or otherwise support the candidacy of a person for an elected local, state, or federal office. This prohibition extends to the direct or indirect employment of a person to perform an action described by this subsection. In addition, grant- funded or grant - leased motor vehicles may not be used for the purpose described above. • Grant officials or grant funded employees may not use official authority or influence or permit the use of a program administered by the grantee agency of which the person is an officer or employee to interfere with or affect the result of an election or nomination of a candidate or to achieve any other political purpose. • Grant funded employees may not coerce, attempt to coerce, command, restrict, attempt to restrict, or prevent the payment, loan, or contribution of anything of value to a person or political organization for a political purpose. • Grantees must comply with the federal Hatch Act (5 U.S.C. §§ 1501- 1508) which restricts the political activity of some state and local employees who work in connection with federally funded programs. Covered state and local employees may not: 1) be candidates for public office in a partisan election; 2) use official authority or influence to interfere with or affect the results of an election or nomination; or, 3) directly or indirectly coerce contributions from subordinates in support of a political party or candidate. Employment of a Lobbyist - Grant funds may not be used to employ, as a regular full -time or part -time or contract employee, a person who is required by Chapter 305 of the Government Code to register as a lobbyist. Furthermore, grant funds may not be used to pay, on behalf of the agency or an officer or employee of the agency, membership dues to an organization that pays part or all of the salary of a person who is required by Chapter 305 of the Government Code to register as a lobbyist. Legislative Lobbying - Grant funds may not be used to attempt to influence the passage or defeat of a legislative measure. Use of Alcoholic Beverages - Grant funds may not be used to compensate an officer or employee who uses alcoholic beverages on active duty. In addition, grant funds may not be used to purchase an alcoholic beverage or to pay or reimburse a travel expense that was incurred for an alcoholic beverage. OneStar Foundation Registration and Organization Profile for Nonprofit Corporations - Each nonprofit corporation receiving funds from CJD must register and connect their organization with the OneStar Foundation at http://www.onestarfoundation.org/paoe/registration/. Each nonprofit corporation is also encouraged to create an organizational profile with the OneStar Foundation at http://www.onestarfoundation.org/pageorg-profile. By completing the Organizational Profile, your organization will be eligible to receive notification of opportunities, such as: • Organizational excellence scholarships to build the capacity of your organization, including organizational assessments, trainings, consulting, conferences and other professional development activities; • Funding announcements and events related to national service and volunteerism; and • Chances to participate in important research on the needs and trends of the social sector and its stakeholders. AGENDA MEMORANDUM Future Item for the City Council Meeting of September 25, 2012 Action Item for the City Council Meeting of October 9, 2012 DATE: TO: September 5, 2012 Ronald L. Olson, City Manager FROM: Wes Pierson, Assistant City Manager for Business Support Services WesP@cctexas.com 826 -3082 Replacing /revising ordinance creating the Corpus Christi Museum Advisory Board CAPTION: Ordinance repealing and reenacting section 2 -90 "created; membership; terms; filling vacancies" dissolving the Corpus Christi Museum of Science and History Advisory Board and creating a new Corpus Christi Museum of Science and History Advisory Board and amending section 2 -92 "Meetings; function" of the code of ordinances by modifying the meeting from monthly to quarterly; providing an effective date; providing for severance; and providing for publication. PURPOSE: The Museum is operating under a management agreement with CCMJV. The Museum Advisory Board Ordinance is being changed to fit the requirements of the new operating plan. BACKGROUND AND FINDINGS: The Museum Advisory Board has an important role under the Management Agreement with Corpus Christi Museum Joint Venture (CCMJV). The City Council remains the governing authority for the Museum and ownership of the facility and collections is retained by the City. A pivotal measure of the Museum's success will continue to be American Association of Museums (AAM) Accreditation and Texas Historical Commission (THC) Certification. The City retains policy making responsibility and the Advisory Board will continue to provide important guidance and input to the City on those policy decisions. However, the Committee's role in operational issues has changed over time. The Museum Advisory Committee Ordinance was last revised 25 years ago. That revision did not envision the much greater role that the Friends of the Museum and the Museum Auxiliary have assumed in funding the Museum. Component expenses that were funded by the Museum at that time are now funded by the Friends or the Auxiliary including exhibits, education programs, collections care, staff travel, subscriptions, and many minor capital expenditures for equipment and improvements. The migration of funding decisions to the Boards of Directors of the Friends and Auxiliary made much of the work of the Advisory Board redundant. The Friends will continue their current role in collaboration with CCMJV. However, under the Management Agreement operational decisions are much more structured. As a result of these changes the number serving on the Advisory Board has been reduced from 12 to 6 while allowing for the expansion of this number through advisory appointees. The frequency of meetings has been reduced from monthly to quarterly although more frequent meetings can be called by the Board chair. ALTERNATIVES: It is possible to continue with the current number of appointees and the current frequency of meetings, but it is not thought necessary. OTHER CONSIDERATIONS: Not Applicable CONFORMITY TO CITY POLICY: Not applicable EMERGENCY / NON - EMERGENCY: This is a routine, non - controversial item. DEPARTMENTAL CLEARANCES: The Museum Advisory Board reviewed and approved this proposal on August 2, 2012. 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: Not applicable RECOMMENDATION: Staff recommends adoption of this ordinance. LIST OF SUPPORTING DOCUMENTS: Ordinance — Revising CC Museum Advisory Board Ordinance Repealing and reenacting section 2 -90 "created; membership; terms; filling vacancies" of the code of ordinances, dissolving the Corpus Christi Museum of Science and History Advisory Board and creating a new Corpus Christi Museum of Science and History Advisory Board; amending section 2 -92 "Meetings; function" of the code of ordinances by modifying the meeting from monthly to quarterly; providing an effective date; providing for severance; and providing for publication. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF CORPUS CHRISTI, TEXAS, THAT: SECTION 1. That Section 2 -90 "created; membership; terms; filling vacancies" of Article IV of Chapter 2 of the Code of the City of Corpus Christi is hereby repealed with the following sections reenacted to read as follows: Sec. 2 -90. - Created; membership; terms; filling vacancies. There is hereby created the Corpus Christi Museum of Science and History Advisory Board which shall consist of six (6) members. The board members shall be appointed by the mayor with the advice and consent of the city council. Their terms shall run for a full three (3) years. Upon the occurrence of any vacancy, it shall be filled for the unexpired term. The board members shall be selected as follows: Two (2) members shall be nominated by the Friends of the Museum; and four (4) members shall be nominated by the Mayor who shall seek at least one member from each of the following fields: K -12 education, higher education and the business community. Ex officio members shall include the city manager and the superintendent of the Corpus Christi Independent School District or their designated representative. The mayor shall have the authority to appoint such individuals as the mayor deems serve the best interest of the museum as advisory members who shall serve without pay and without vote. The term of each advisory member shall be three (3) years. SECTION 2. That Section 2 -92 "Meetings; function." of Article IV of Chapter 2 of the Code of the City of Corpus Christi is hereby amended to read as follows: Sec. 2 -92. - Meetings; function. The board shall hold regular meetings at least once each month quarterly and such special meetings as may be called by the chairman with notice to all members. The advisory board shall 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: (1) Management of collections; (2) Acquisitions for the collections; (3) Disposition and the deacquisition of objects 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 museum shall implement such policies. SECTION 3. The effective date of this ordinance is October 1, 2012. SECTION 4. 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. SECTION 5. Publication shall be made one time in the official publication of the City of Corpus Christi as required by the City Charter of the City of Corpus Christi. 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 Chris N. Adler Kelley Allen Larry Elizondo, Sr Priscilla G. Leal David Loeb John Marez Nelda Martinez Mark Scott PASSED AND APPROVED this the day of , 2012. ATTEST: Armando Chapa Joe Adame City Secretary Mayor AGENDA MEMORANDUM First Reading for the City Council Meeting of September 25, 2012 Second Reading for the City Council Meeting of October 9, 2012 DATE: October 9, 2012 TO: Ronald L. Olson, City Manager FROM: Wes Pierson, Assistant City Manager WesP ©cctexas.com 361.826.3082 Appropriation of Funds Related to the American Bank Center's Marketing and Co- Promotion Fund CAPTION: Ordinance appropriating $600,000 from the unreserved fund balance in the No. 1130 Arena Facility Fund and transferring to and appropriating in the No. 4710 Visitors Facilities Fund for American Bank Center Marketing and Co- Promotion Expenditures; appropriating $115,999.96 from the reserved fund balance in the No. 4710 Visitors Facilities Fund for American Bank Center Marketing and Co- Promotion Expenditures; changing the FY 2012 -2013 Operating Budget adopted by Ordinance No. 029577 to increase revenues by $600,000 and expenditures by $ 1,315,999.96. PURPOSE: City Council's approval is needed to appropriate $715,999.96 of funds that the Corpus Christi Business and Job Development Board (i.e., the "Type A Board ") previously approved from the unreserved fund balance in the Fund 1130 "Arena Facility Fund" for marketing and co- promotion expenditures at the American Bank Center. Part of those funds were approved by the Type A Board in April 2012 ($600,000) and reside in Fund 1130 "Arena Facility Fund ". This ordinance authorizes the transfer of these funds to Fund 4710 "Visitors Facilities Fund" where the expenditures will be made. Additionally in Fund 4710 "Visitors Facilities Fund ", there is another $115,999.96 of unexpended marketing and co- promotion funds from prior fiscal years that the Type A Board previously approved that will be appropriated by this agenda item. The sum of the $600,000 from Fund 1130 "Arena Facility Fund" and the $115,999.96 from Fund 4710 "Visitor Facilities Fund" totals $715,999.96 which is the amount of increased appropriations in Fund 4710 "Visitor Facilities Fund" that results from this agenda item. Ordinance No. 029577, adopting the FY 2012 -2013 operating budget, must increase expenditures by $1,315,999.96, however, because the $600,000 is an expenditure in Fund 1130 "Arena Facility Fund" that is being transferred to Fund 4710 "Visitors Facilities Fund ", and $715,999.96 will become an expenditure in Fund 4710 Visitors Facilities Fund ". The sum of the expenditures from these two funds equals $1,315,999.96. Since the ordinance adopting the FY 2012 -2013 operating budget approves total revenue for all funds and total expenditures for all funds, the ordinance for this agenda item must include the sum of the increase in expenditures for both funds. BACKGROUND AND FINDINGS: On May 15, 2009 the Corpus Christi Business and Job Development Board (i.e. the "Type A Board ") approved to spend $500,000 from Fund 1130 "Arena Facility Fund" for marketing co- promotion to promote, retain, secure, and host various events at the Arena facility. At July 31, 2012, $11,000 of this $500,000 remained uncommitted and unspent, and $104,999.96 had been previously committed but unspent at July 31, 2012. On April 16, 2012 the Type A Board approved an additional $600,000 to be spent in the same manner. This additional $600,000 had not previously been brought to the City Council for approval and appropriation. This action is necessary to appropriate the funds in the Fund 1130 "Arena Facility Fund" and to approve the transfer to the Fund 4710 "Visitors Facility Fund" so that they can be expensed in the current fiscal year. The additional $115,999.96 that is being appropriated in the Fund 4710 "Visitors Facility Fund" is sum of the unspent amount from prior years noted above that was reserved in fund balance at July 31, 2012 and the uncommitted amount from prior years that is in the unreserved fund balance in the Fund 4710 "Visitors Facility Fund ". Any funds remaining at July 31, 2013 will be again be reserved in fund balance in Fund 4710 "Visitors Facilities Fund" and will either be included in the fiscal year 2013 -2014 operating budget for Fund 4710 "Visitors Facilities Fund" or will be appropriated during fiscal year 2013 -2014 as the need arises. ALTERNATIVES: None. OTHER CONSIDERATIONS: None. FINANCIAL IMPACT: ❑ Not Applicable X Operating Expense ❑ Revenue ❑ CIP FISCAL YEAR: Project to Date Exp. (CIP Only) Current Year Future Years TOTALS Budget - $ - $ - $ - Encumbered/Expended amount of (date) - - - - This item - $ 715,999.96 $ - $ 715,999.96 BALANCE - $ 715,999.96 $ - $ 715,999.96 FUND(S): Fund 1130 "Arena Facility Fund" Fund 4710 "Visitors Facility Fund" COMMENTS: The SMG contract was approved by the City Council on February 24, 2009. The amount listed in this agenda item has already been approved by the Type A Board. RECOMMENDATION: Staff recommends that City Council approve this agenda item as presented. CONFORMITY TO CITY POLICY: This item conforms to City policy. EMERGENCY / NON-EMERGENCY: Non - Emergency. DEPARTMENTAL CLEARANCES: • Financial Services Department • Legal Department LIST OF SUPPORTING DOCUMENTS: Ordinance Page 1 of 2 Ordinance Appropriating $600,000 from the unreserved fund balance in the No. 1130 Arena Facility Fund and transferring to and appropriating in the No. 4710 Visitors Facilities Fund for American Bank Center Marketing and Co- Promotion Expenditures; appropriating $115,999.96 from the reserved fund balance in the No. 4710 Visitors Facilities Fund for American Bank Center Marketing and Co- Promotion Expenditures; changing the FY 2012 -2013 Operating Budget adopted by Ordinance No. 029577 to increase revenues by $600,000 and expenditures by $1,315,999.96. Be it ordained by the City Council of the City of Corpus Christi, Texas: SECTION 1. That $600,000 is appropriated from the unreserved fund balance in the No. 1130 Arena Facility Fund and transferred to and appropriated in the No. 4710 Visitors Facility Fund for American Bank Center Marketing and Co- Promotion Expenditures, and that $115,999.96 is appropriated from the reserved fund balance in the No. 4710 Visitors Facility Fund for American Bank Center Marketing and Co- Promotion Expenditures. SECTION 2. That the FY 2012 -2013 operating budget adopted by Ordinance 029577 is amended to increase revenues by $600,000 and expenditures by $1,315,999.96. ATTEST: CITY OF CORPUS CHRISTI Armando Chapa City Secretary 0007_2_Ordinance approp transfer SMG Marketing Co- pro_9 -18 -12 Joe Adame Mayor Page 2of2 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 City Secretary 0007_2_Ordinance approp transfer SMG Marketing Co- pro_9 -18 -12 Joe Adame Mayor AGENDA MEMORANDUM First Reading for the City Council Meeting of September 25, 2012 Second Reading for the City Council Meeting of October 9, 2012 DATE: September 14, 2012 TO: Ronald L. Olson, City Manager FROM: Daniel Biles, P.E. Director of Engineering Services DanB @cctexas.com 361- 826 -3729 Coastal Surface Lease Agreement with State of Texas for Artificial Reef Project CAPTION: Ordinance authorizing the City Manager or designee to execute a Coastal Surface Lease with the State of Texas to lease approximately 3.0 acres of filled submerged land for the storage of reefing material for use in constructing an offshore artificial reef, for a term of four years, for $500 per month for the first two years, and $833.33 per month for the last two years. PURPOSE: The City will lease a 3 acre site from the State of Texas for the purposes of storing concrete debris and material provided by the Texas Parks and Wildlife Department, Saltwater Enhancement Association and the Coastal Conservation Association for use in constructing an offshore artificial reef. BACKGROUND AND FINDINGS: On October 20, 2009, a presentation on artificial reefs was made to City Council by the Texas Parks and Wildlife Department (TPWD). Mr. Dale Shively, Program Coordinator of State of Texas Artificial Reef Program covered the purpose and details of the State's reefing program, called the Near Shore Reefing Program. The program was designed to increase marine habitat in the Gulf of Mexico, enhance fishing and diving opportunities close to shore within State waters. Council expressed support of the project after the presentation. On October 26, 2010, TPWD gave another presentation and proposed a Joint Artificial Reefing Project between the City of Corpus Christi, Texas Parks and Wildlife, and Saltwater Fisheries Enhancement Association (SEA). The plan would be for the TPWD to obtain the concrete material obtained from donations, the City would be responsible for providing the storage site for these materials, and SEA would match the City's funding up to $50,000 to help pay for finding additional reef materials, transportation, and other available storage sites. Since then, the Coastal Conservation Association (CCA) has also joined in and has pledged $100,000 in support of the project. Upon hearing this second presentation, City Council again expressed support of the project and for funding the cost of the material storage site. City staff has recently negotiated a surface lease with the State of Texas through their General Land Office. The lease area contains 3 acres at the north end of Rincon Road on the Rincon Channel as shown on the attached Council Exhibit. The lease fee is $500 per month for the first two years and then increases to $833.33 per month for the last two years. Total expenditure is almost $32,000 for the four year term. Permitting for the reef has already been obtained by TPWD from the U.S. Corp of Engineers for a 160 -acre reef site located approximately 10.4 miles east/northeast of the Packery Channel jetties. Concrete material is now readily available and more will soon be available from the future demolition of the Copano Bay bridge. The approval of this lease will enable TPWD to begin stockpiling the material. ALTERNATIVES: None OTHER CONSIDERATIONS: Not Applicable CONFORMITY TO CITY POLICY: Leasing of private or state owned lands conforms to City policy. This action does not surpass the $50,000 threshold requiring approval by Council but is instead presented to acknowledge the support indicated in prior council presentations. EMERGENCY / NON - EMERGENCY: Non - Emergency DEPARTMENTAL CLEARANCES: Engineering Department FINANCIAL IMPACT: X Operating ❑ Revenue ❑ Capital ❑ Not applicable Fiscal Year: 2012- 2013 Project to Date Expenditures (CIP only) Current Year Future Years TOTALS Line Item Budget 4,500.00 27,499.92 31,999.92 Encumbered / Expended Amount 0 0 This item 4,500.00 27,499.92 31,999.92 BALANCE 0 0 0 Fund(s): General Fund 1020 - 11155 - 530160 Comments: The Lease will become effective on November 1, 2012 and will endure the remaining nine months of the 2012 -2013 fiscal year. Lease payments will be made on a monthly basis of $500.00 per month. RECOMMENDATION: Approval of the lease agreement with State of Texas as presented. LIST OF SUPPORTING DOCUMENTS: Ordinance Surface Lease Agreement Project Exhibit STATE OF TEXAS COUNTY OF NUECES TEXAS GENERAL LAND OFFICE COASTAL SURFACE LEASE NO. SL20120044 KNOW ALL MEN BY THESE PRESENTS: This Surface Lease, (the "Lease "), is granted by virtue of the authority granted in Section 51.121, et seq., TEX. NAT. RES. CODE ANN. 31 'I'EX. ADMIN. CODE § 13 (Land Resources), et seq., and all other applicable statutes and rules, as the same may be amended from time to time, and is subject to all applicable regulations promulgated from time to time. ARTICLE I. PARTIES 1.01. In consideration of the mutual covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the STATE OF TEXAS, acting by and through the Commissioner of the Texas General Land Office, on behalf of the Permanent School Fund of the State of Texas (the "State "), hereby grants to City of Corpus Christi, whose address is PO Box 9277, Corpus Christi, TX, 78469 -9277 ( "Lessee "), the right to use the surface estate of certain Permanent School Fund land (the "Leased Premises ") for the purposes identified in Article V below. ARTICLE II. PREMISES 2.01. The Leased Premises is described below and further described or depicted on Exhibits attached hereto and collectively incorporated by reference for all purposes: Approximately 3.0 acres of filled submerged land in Submerged Land Tracts 749 & 788 2.02. LESSEE HAS INSPECTED THE PHYSICAL AND TOPOGRAPHIC CONDITION OF THE LEASED PREMISES AND ACCEPTS SAME "AS IS" IN ITS EXISTING PHYSICAL AND TOPOGRAPHIC CONDITION. LESSEE IS NOT RELYING ON ANY REPRESENTATION OR WARRANTY OF THE STATE REGARDING ANY ASPECT OF THE PREMISES, BUT IS RELYING ON LESSEE'S OWN INSPECTION OF THE PREMISES. THE STATE DISCLAIMS ANY AND ALL WARRANTIES OF HABITABILITY, MERCHANTABILITY, SUITABILITY, FITNESS FOR ANY PURPOSE, AND ANY OTHER WARRANTY WHATSOEVER NOT EXPRESSLY SET FORTH IN THIS LEASE. THE STATE AND LESSEE HEREBY AGREE AND ACKNOWLEDGE THAT THE USE OF THE TERMS "GRANT" AND /OR "CONVEY" IN NO WAY IMPLIES THAT THIS LEASE OR THE LEASED PREMISES ARE FREE OF LIENS, ENCUMBRANCES AND /OR PRIOR RIGHTS. LESSEE IS HEREBY PUT ON NOTICE THAT ANY PRIOR GRANT AND /OR ENCUMBRANCES MAY BE OF RECORD AND LESSEE IS ADVISED TO EXAMINE ALL RECORDS OF THE STATE AND COUNTY IN WHICH THE LEASED PREMISES ARE LOCATED. THE PROVISIONS OF THIS SECTION SHALL SURVIVE THE EXPIRATION OR EARLIER TERMINATION OF THIS LEASE. ARTICLE IH. TERM 3.01. This Surface Lease No. SL20120044 is for a term of two (2) years, commencing on November 1, 2012 and terminating on October 31, 2014, unless earlier terminated as provided herein. The State reserves the right to review, amend, cancel or otherwise modify this agreement at any time during its term upon 60 -day written notice to Lessee as prescribed in 3.01. 3.02 Provided that Lessee has complied with all terms of this Lease, Lessee shall have the right to extend and renew this Lease for a two (2) year extension upon the same terms and conditions herein, except that consideration shall increase according to Article IV. Lessee must give Lessors written notice of its intent to extend this Lease no less than 90 days prior to the expiration of the then- current term, as it may be extended. ARTICLE IV. CONSIDERATION 4.01. A. As consideration ( "Consideration ") for the granting of this Lease, Lessee shall pay rent ("Rent") to the State (payable to the Commissioner of the General Land Office at Austin, Texas) Six Thousand And 00 /100 Dollars ($6,000.00) per year, with payments of $500 per month beginning November 1, 2012 and ending October 31, 2014. Dwells Page 1 SL20120044 B. If Lessee exercises its option to extend the Lease pursuant to Section 3.02, then Lessee shall pay rent to the State in the amount of Ten Thousand and 00 /100 ($10,000) per year with payments of $833.33 per month beginning November 1, 2014 and ending October 31, 2016. C. Past due Rent and other past due payments shall bear interest from maturity at the rate of ten percent (10 %) per annum from the date when due until actually paid, as provided in Section 51.301, TEX. NAT. RES. CODE ANN. Failure of Lessee to make a payment on or before the date the same becomes due shall, at the State's option, make all payments due and payable immediately. ARTICLE V. USE OF THE PREMISES 5.01. The Leased Premises may be used by Lessee solely for the storage of reefing material for use in constructing an offshore artificial reef and for no other purpose. The Leased Premises are to remain in their current topographical and hydrologic condition during the term of the Lease. Lessee is specifically prohibited from modifying the premises in any manner not authorized herein, and from using, or allowing the use by others of the Leased Premises for any other purpose 5.02. Lessee shall not use, or permit the use of, the Leased Premises for any illegal purpose. Lessee will comply with, and will cause its officers, employees, agents and invitee to comply with, all applicable federal, State and local laws, ordinances and rules concerning the use of the Leased Premises. 5.03. The State reserves the exclusive right to grant easements, rights -of way and/or other grants of interest authorizing use of the Leased Premises, provided such use does not unreasonably interfere with Lessee's use thereof. 5.04. Lessee shall not grant other rights in or to the Leased Premises to any other person or entity, and any attempt to do so shall be void and of no effect and shall constitute a default by Lessee hereunder. 5.05. State reserves the right to enter upon the Leased Premises at any time with or without prior notice to Lessee to inspect the condition thereof and/or take action authorized by this Lease. 5.06. The Leased Premises are subject to prospecting, production and development of oil, gas and other minerals and other materials of commercial value by the State, its lessees, permittee, licensees or other agents, assigns or representatives. Lessee shall not interfere with such use of the Leased Premises and shall allow any lessee, permit holder, licensee or other agent, assignee or representative of the State and/or the School Land Board the right of ingress and egress over, across and through, and the use of, the Leased Premises for any and all purposes authorized by State. 5.07. Lessee may not charge State's authorized lessees, permit holders, licensees or other agents, assigns or representatives surface damages, or any other fee, for use of the Leased Premises; provided, however, the foregoing shall not limit the liability of any person or entity to Lessee for damages caused to property owned by Lessee. 5.08. Lessee's use of the Premises is subject to and contingent upon compliance with the following covenants, obligations and conditions (the "Special Conditions "): 1. Before placing any construction materials or equipment on the Premises, User shall conduct a photographic survey of the Premises to identify, document and record its physical condition prior to User's use of the Premises under this Agreement. Upon request, User shall deliver to State, at no expense to State, color copies of any and all photographs taken of the Premises by or for User. 2. User may not maintain or allow nuisances or public hazards on the Premises, and shall be under a duty to abate or remove any activity or property constituting or contributing to a hazard or nuisance. 3. User shall, at User's sole cost and expense, inspect the Premises and perform general maintenance and repair duties on the Premises to ensure that the Premises are maintained in a reasonably safe and orderly condition. User shall be responsible for the collection and disposal of all trash associated with its operations at the Premises (whether or not such trash is generated by User or its customers and invitees). In addition, User shall promptly inform the State of any additional maintenance or repair needs with respect to the Premises that come to the attention of User. If mutually agreed to by the State and User, and only upon the State's prior express written approval, User shall perform additional maintenance or such repairs according to an agreed amount and repayment plan. Dwells Page 2 SL20120044 4. User shall not allow the presence on or within the Premises of any Hazardous Substance in any manner that violates any federal, state or local laws or regulations. "Hazardous Substances" shall mean any substance or material defined or designated as a hazardous waste, toxic substance or other pollutant or contaminant, by any law or regulation. User shall not allow any Hazardous Substances to migrate off the Premises or the release of any Hazardous Substances into adjacent surface waters, soils, underground waters or air in violation of any federal, state or local laws or regulations. If User violates any law or regulation concerning the presence or use of Hazardous Substances at or affecting the Premises or the handling or storing of Hazardous Substances at or affecting the Premises, User shall promptly take whatever action is necessary to determine the type or extent of the release, to mitigate and to correct the violation. If User does not act in a prudent and prompt manner after reasonable notice by the State to User specifying what actions the State requires to be performed, the State may, but is not obligated to, come onto the Premises, act in place of User and take any such action as the State has specified in such notice and that User has not taken to ensure compliance with such law or regulation or to mitigate any violation thereof. If the State reasonably believes that User is in violation of any law or regulation, or that User's actions or inactions present a threat of violation of any federal, state or local law or regulation or a threat of damage to the Premises, the State may, enter the Premises and take such corrective or mitigating action as the State has specified as necessary and that User has not taken. All direct costs and actual expenses incurred by the State in connection with any such actions shall become immediately due and payable by User upon presentation of an invoice therefor. ARTICLE VL ASSIGNMENTS 6.01. Lessee shall not assign the Premises or the rights granted herein, in whole or part, to any third party for any purpose without the prior written consent of the State, which may be granted or denied in the State's sole discretion. Any unauthorized assignment shall be void and of no effect and such assignment shall not relieve Lessee of any liability for any obligation, covenant, or condition of this Agreement. This provision, and the prohibition against assignment contained herein, shall survive expiration or earlier termination of this agreement. For purposes of this agreement, an assignment is any transfer, including by operation of law, to another of all or part of the property, interest or rights herein granted. ARTICLE VII. PROTECTION OF NATURAL AND HISTORICAL RESOURCES 7.01. Lessee shall take no action on the premises which results in the discharge of any solid or liquid material. Lessee shall use the highest degree of care and all appropriate safeguards to: (i) prevent pollution of air, ground, and water in and around the Premises, and (ii) to protect and preserve natural resources and wildlife habitat. Lessee shall comply with all applicable rules and regulations of the Texas General Land Office and other governmental agencies responsible for the protection and preservation of public lands and waters. In the event of pollution or an incident that may result in pollution of the Premises or adjacent property which is the result of Lessee's (or Lessee's employees, contractors, invitees and agents) acts or omissions, Lessee shall immediately notify the State, use all means reasonably available to recapture any pollutants which have escaped or may escape, and mitigate for any and all natural resources damages caused thereby. 7.02. LESSEE IS EXPRESSLY PLACED ON NOTICE OF THE NATIONAL HISTORICAL PRESERVATION ACT OF 1966, (PB- 89 -66, 80 STATUTE 915; §470) AND THE ANTIQUITIES CODE OF TEXAS, CHAPTER 191, TEX. NAT. RES. CODE ANN. IN THE EVENT THAT ANY SITE, OBJECT, LOCATION, ARTIFACT OR OTHER FEATURE OF ARCHEOLOGICAL, SCIENTIFIC, EDUCATIONAL, CULTURAL OR HISTORIC INTEREST IS ENCOUNTERED DURING ANY ACTIVITY ON THE PREMISES, LESSEE WILL IMMEDIATELY CEASE SUCH ACTIVITIES AND WILL IMMEDIATELY NOTIFY STATE AND THE TEXAS HISTORICAL COMMISSION, P.O. BOX 12276, AUSTIN, TEXAS 78711, SO THAT ADEQUATE MEASURES MAY BE UNDERTAKEN TO PROTECT OR RECOVER SUCH DISCOVERIES OR FINDINGS, AS APPROPRIATE. ARTICLE VIII. INDEMNITY 8.01. LESSEE SHALL BE FULLY LIABLE AND RESPONSIBLE FOR ANY DAMAGE, OF ANY NATURE, ARISING OR RESULTING FROM ITS OWN ACTS OR OMISSIONS RELATED TO ITS EXERCISE OF THE RIGHTS GRANTED HEREIN. TO THE EXTENT PERMITTED BY LAW LESSEE AGREES TO AND SHALL INDEMNIFY AND HOLD THE STATE, THE STATE'S OFFICERS, AGENTS, AND EMPLOYEES, HARMLESS FROM AND AGAINST CLAIMS, SUIT, COSTS, LIABILITY OR DAMAGES OF ANY KIND, INCLUDING STRICT LIABILITY CLAIMS, WITHOUT LIMIT AND WITHOUT REGARD TO CAUSE OF THE DAMAGES OR THE NEGLIGENCE OF ANY PARTY, EXCEPT FOR THE CONSEQUENCES OF THE NEGLIGENT ACTS OR WILLFUL MISCONDUCT OF THE STATE, THE STATE'S OFFICERS, AGENTS, EMPLOYEES, OR INVITEES, ARISING DIRECTLY OR INDIRECTLY FROM LESSEE'S USE OF THE PREMISES (OR ANY ADJACENT OR CONTIGUOUS PSF LAND) OR FROM ANY BREACH BY LESSEE OF THE TERMS, COVENANTS OR CONDITIONS CONTAINED HEREIN. THE PROVISIONS OF THIS SECTION SHALL SURVIVE EXPIRATION OR EARLIER TERMINATION OF THIS AGREEMENT. Dwells Page 3 SL20120044 ARTICLE IX. DEFAULT, TERMINATION AND EXPIRATION 9.01. If, following 30 days prior written notice from the State specifying a default or breach, Lessee fails to pay any money due hereunder or is in breach of any term or condition of this Agreement, the State shall have the right, at its option and its sole discretion, to terminate this Agreement and all rights inuring to Lessee herein by sending written notice of such termination to Lessee in accordance with ARTICLE XI of this Agreement. Upon sending of such written notice, this Agreement shall automatically terminate and all rights granted herein to Lessee shall revert to the State. Such termination shall not prejudice the rights of the State to collect any money due or to seek recovery on any claim arising hereunder. 9.02. If Lessee fails to remove its personal property from the Leased Premises within the time specified in Section 9.01. above, or if Lessee fails to remove improvements placed or constructed on the Leased Premises by or behalf of Lessee pursuant to a notice by the State to do so pursuant to Section 9.01. above, then State may, at its sole option, remove and dispose of such property (with no obligation to sell or otherwise maintain such property in accordance with the Uniform Commercial Code), at Lessee's sole cost and expense, or the State may elect to own such property by filing a notice of such election pursuant to Section 51.302, et seq., 'TEXAS NATURAL RESOURCES CODE ANNOTATED. If the State elects to remove Lessee's property and dispose of it pursuant to this section, then in such an event Lessee shall be obligated to reimburse the State for the reasonable costs of such removal and disposal within ten (10) days of State's demand for reimbursement THE TERMS OF THIS SECTION SHALL SURVIVE EXPIRATION OR EARLIER TERMINATION OF THIS LEASE. 9.03. IF LESSEE CONTINUES TO OCCUPY THE LEASED PREMISES OR OTHERWISE INTERFERE WITH ITS USE BY THE STATE OR THE GENERAL PUBLIC AFTER THE EXPIRATION OF THIS LEASE, LESSEE SHALL REMAIN A TENANT AT SUFFERANCE, SUBJECT TO THE TERMS AND OBLIGATIONS OF THIS LEASE, INCLUDING PAYMENT OF RENT, BUT RENT SHALL BE INCREASED TO 200% OF THE AMOUNT PREVIOUSLY PAYABLE HEREUNDER, PRORATED ON A MONTHLY BASIS, AND LESSEE MAY BE EJECTED BY THE STATE WITHOUT NOTICE AT ANY TIME. 9.04. The Leased Premises are subject to or trade. In the event the Leased Premises are offered for trade, the State may terminate this Lease upon sixty (60) days written notice to Lessee. Upon conveyance or award of the Leased Premises to a party acquiring the Leased Premises by trade, this Lease shall automatically terminate unless otherwise agreed in writing by such party and Lessee 9.05. The State reserves the right to remove from this Lease such acreage as the State may determine necessary for purposes other than those described herein, in which event this Lease shall be canceled as to the part so removed by the State and Rent shall be prorated on the remaining acreage. 9.06. In addition to the above, Lessee shall pay and discharge any and all taxes, general and special assessments, and other charges which during the term of this Agreement may be levied on or assessed against the Premises or the Improvements constructed thereon, provided such taxes result from Lessee's use of this easement. Lessee shall pay such taxes, charges, and assessments not less than five (5) days prior to the date of delinquency thereof directly to the authority or official charged with the collection thereof. Lessee shall have the right in good faith at its sole cost and expense to contest any such taxes, charges, and assessments, and shall be obligated to pay the contested amount only if and when finally determined to be owed. 9.07. TO THE EXTENT PERMITTED BY LAW LESSEE AGREES TO AND SHALL PROTECT AND HOLD THE STATE HARMLESS FROM LIABILITY FOR ANY AND ALL SUCH TAXES, CHARGES, AND ASSESSMENTS, TOGETHER WITH ANY PENALTIES AND INTEREST THEREON, AND FROM ANY SALE OR OTHER PROCEEDING TO ENFORCE PAYMENT THEREOF. ARTICLE X. HOLDOVER 10.01. If Lessee holds over and continues in possession of the Premises after expiration or earlier termination of this Agreement, Lessee will be deemed to be occupying the Premises on the basis of a month -to -month tenancy subject to all of the terms and conditions of this Agreement, except that as liquidated damages by reason of such holding over, the amounts payable by Lessee under this Agreement shall be increased such that the Consideration payable under Article IV of this Agreement and any other sums payable hereunder shall be two hundred percent (200 %) of the amount payable to the State by Lessee for the applicable period immediately preceding the first day of the holdover period. Lessee acknowledges that in the event it holds over, the State's actual damages will be difficult, if not impossible, to ascertain, and the liquidated damages herein agreed to be paid are reasonable in amount and are payable in lieu of actual damages and are not a penalty. Lessee further acknowledges that acceptance of hold over Consideration does not imply State consent to hold over. 10.02. The tenancy from month -to -month described in Section 10.01 of this Agreement may be terminated by either party upon thirty (30) days written notice to the other. Dwells Page 4 SL20120044 10.03. The Consideration due after notice of termination has been given is to be calculated according to Section 10.01 hereinabove on a pro rata basis. If upon notice of termination by the State, Lessee pays Consideration in excess of the amount due and payable and the State accepts such payment, the acceptance of such payment will not operate as a waiver by the State of the notice of termination unless such waiver is in writing and signed by the State. Any such excess amounts paid by Lessee and accepted by the State shall be promptly refunded by the State after deducting therefrom any amounts owed to the State. ARTICLE XL NOTICE 11.01. Any notice which may or shall be given under the terms of this Agreement shall be in writing and shall be either delivered by hand, by facsimile, or sent by United States first class mail, adequate postage prepaid, if for the State to Deputy Commissioner, Professional Services, addressed to his attention, 1700 North Congress Avenue, Austin, Texas 78701 -1495, FAX: (512) 463 -5304, and if for Lessee, to City of Corpus Christi, PO Box 9277, Corpus Christi, TX 78469 -9277. Any party's address may be changed from time to time by such party by giving notice as provided above, except that the Premises may not be used by Lessee as the sole notice address. No change of address of either party shall be binding on the other party until notice of such change of address is given as herein provided. 11.02. For purposes of the calculation of various time periods referred to in this Agreement, notice delivered by hand shall be deemed received when delivered to the place for giving notice to a party referred to above. Notice mailed in the manner provided above shall be deemed completed upon the earlier to occur of (i) actual receipt as indicated on the signed return receipt, or (ii) three (3) days after posting as herein provided. ARTICLE XII. INFORMATIONAL REQUIREMENTS 12.01. A. Lessee shall provide written notice to the State of any change in Lessee's name, address, corporate structure, legal status or any other information relevant to this Agreement. B. Lessee shall provide to the State any other information reasonably requested by the State in writing within fifteen (15) days following such request or such other time period approved by the State (such approval not to be unreasonable withheld). ARTICLE XIIL MISCELLANEOUS PROVISIONS 13.01. With respect to terminology in this Agreement, each number (singular or plural) shall include all numbers, and each gender (male, female or neuter) shall include all genders. If any provision of this Agreement shall ever be held to be invalid or unenforceable, such invalidity or unenforceability shall not affect any other provisions of the Agreement, but such other provisions shall continue in full force and effect. 13.02. The titles of the Articles in this Agreement shall have no effect and shall neither limit nor amplify the provisions of the Agreement itself. This Agreement shall be binding upon and shall accrue to the benefit of the State, its successors and assigns, Lessee, Lessee's successors and assigns (or heirs, executors, administrators and assigns, as the case may be); however, this clause does not constitute a consent by the State to any assignment by Lessee, but instead refers only to those instances in which an assignment is hereafter made in strict compliance with Article VI above, or in the case of a deceased natural person Lessee, refers to the instances previously referred to in this sentence and also circumstances in which title to Lessee's interest under this Agreement passes, after the demise of Lessee, pursuant to Lessee's will or the laws of intestate succession. The words "hereof," "herein," "hereunder," "hereinafter" and the like refer to this entire instrument, not just to the specific article, section or paragraph in which such words appear. 13.03. Neither acceptance of Consideration (or any portion thereof) or any other sums payable by Lessee hereunder (or any portion thereof) to the State nor failure by the State to complain of any action, non - action or default of Lessee shall constitute a waiver as to any breach of any covenant or condition of Lessee contained herein nor a waiver of any of the State's rights hereunder. Waiver by the State of any right for any default of Lessee shall not constitute a waiver of any right for either a prior or subsequent default of the same obligation or for any prior or subsequent default of any other obligation. No right or remedy of the State hereunder or covenant, duty or obligation of Lessee hereunder shall be deemed waived by the State unless such waiver be in writing, signed by a duly authorized representative of the State. 13.04. No provision of this Agreement shall be construed in such a way as to constitute the State and Lessee joint ventures or co- partners or to make Lessee the agent of the State or make the State liable for the debts of Lessee. 13.05. In all instances where Lessee is required hereunder to pay any sum or do any act at a particular indicated time or within an indicated period, it is understood that time is of the essence. Dwells Page 5 SL20120044 13.06. Under no circumstances whatsoever shall the State ever be liable hereunder for consequential damages or special damages. The terms of this Agreement shall only be binding on the State during the period of its ownership of the Premises, and in the event of the transfer of such ownership interest, the State shall thereupon be released and discharged from all covenants and obligations thereafter accruing, but such covenants and obligations shall be binding during the Agreement term upon each new owner for the duration of such owner's ownership. 13.07. All monetary obligations of the State and Lessee (including, without limitation, any monetary obligation for damages for any breach of the respective covenants, duties or obligations of either party hereunder) are performable exclusively in Austin, Travis County, Texas. 13.08. The obligation of Lessee to pay all Consideration and other sums hereunder provided to be paid by Lessee and the obligation of Lessee to perform Lessee's other covenants and duties under this Agreement constitute independent, unconditional obligations to be performed at all times provided for hereunder, save and except only when an abatement thereof or reduction therein is expressly provided for in this Agreement and not otherwise. Lessee waives and relinquishes all rights which Lessee might have to claim any nature of lien against, or withhold or deduct from or offset against, any Consideration or other sums provided hereunder to be paid to the State by Lessee. Lessee waives and relinquishes any right to assert, either as a claim or as a defense, that the State is bound to perform or is liable for the nonperformance of any implied covenant or implied duty of the Grantor not expressly set forth in this Agreement. 13.09. In the event of a conflict between any provision of this Agreement and any administrative rule promulgated by the General Land Office and/or the School Land Board, this Agreement shall control. ARTICLE XIV. FILING 14.01. Lessee shall, at its sole cost and expense, record a memorandum of lease in the Nueces County Real Property Records and provide a file marked copy of same to Lessor within 60 days after this Lease is executed by all parties. ARTICLE XV. ENTIRE AGREEMENT 15.01. This Lease, including any exhibits to the same, constitutes the entire agreement between the State and Lessee; no prior written or prior oral contemporaneous oral promises or representations shall be binding. The submission of this Lease for examination by Lessee or the State and/or execution thereof by the Lessee or the State does not constitute a reservation of or option for the Leased Premises and this Lease shall become effective only upon execution of all parties hereto and deliver of a fully executed counterpart thereof by the State to the Lessee. This Lease shall not be amended, changed or extended except by written instrument signed by both parties thereto. Dwells Page 6 SL20120044 IN TESTIMONY WHEREOF, witness my hand and Seal of Office. THE STATE OF TEXAS LESSEE: City of Corpus Christi By: By: JERRY E. PATTERSON (Signature) Commissioner, General Land Office Date: APPROVED: Contents: Legal: Deputy: Executive: STATE OF COUNTY OF (Printed Name) Date: (Title) ACKNOWLEDGMENT This instrument was acknowledged before me on the by ld'.!'.S.S <',( representative sig ?1 , this document) day of , 20 Notary Public, State of My commission expires: Information collected by electronic mail and by web form is subject to the Public Information Act, Chapter 552, Government Code. Dwells Page 7 SL20120044 Page 1 of 2 Ordinance authorizing the City Manager or designee to execute a Coastal Surface Lease with the State of Texas to lease approximately 3.0 acres of filled submerged land for the storage of reefing material for use in constructing an offshore artificial reef, for a term of four years, for $500 per month for the first two years, and $833.33 per month for the last two years. 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 a Coastal Surface Lease with the State of Texas, by and through the State of Texas General Land Office (GLO) to lease approximately 3.0 acres of filled in submerged land (Submerged Land Tracts 749 & 788) for the storage of reefing material for use in constructing an offshore artificial reef, for a term of four years, for $500 per month for the first two years, and $833.33 per month for the last two years. ATTEST: CITY OF CORPUS CHRISTI Armando Chapa City Secretary Joe Adame Mayor C: \Program Files \Granicus \Legistar5 \Packet \1005_City Council _10_9_2012 \0008_3_Ordinance - Submerged Lease.docx Page 2 of 2 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 E. Marez Nelda Martinez Mark Scott 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, Sr. Mark Scott Priscilla G. Leal PASSED AND APPROVED on this the day of , 2012. ATTEST: Armando Chapa City Secretary Joe Adame Mayor C: \Program Files \Granicus \Legistar5 \Packet \1005_City Council _10_9_2012 \0008_3_Ordinance - Submerged Lease.docx Fife: \ Mproject \councilexh \RinconleaseRdwg PROJECT LOCATION PORT OF CORPUS CHRISTI AUTHORITY RINCON ROAD CANAL B LOCATION MAP 33.26 ACRE G.L.O. TRACT PORT OF CORPUS HRISTI AUTHORITY CANAL A VICINITY MAP NOT TO SCALE PROPOSED LEASE SITE 3 ACRES OUT OF 33.26 ACRE G.L.O. TRACT CITY COUNCIL EXHIBIT CITY OF CORPUS CHRISTI, TEXAS DEPARTMENT OF ENGINEERING SERVICES PAGE: 1 of 1 - IIIIINIF AGENDA MEMORANDUM Future Item for the City Council Meeting of September 25, 2012 Action Item for the City Council Meeting of October 9, 2012 DATE: TO: August 28, 2012 Ronald L. Olson, City Manager FROM: Daniel Biles P.E., Director of Engineering Services DanB @cctexas.com 826 -3729 Lawrence Mikolajczyk, Director of Solid Waste Operations lawm@cctexas.com 826 -1972 Approval of Contract for Professional Services: J. C. Elliott Landfill Gas Collection and Control System Repairs CAPTION: Ordinance amending the FY 2013 Capital Improvement Budget adopted by Ordinance No. 029565 to add Project No. E12108 J.C. Elliott Landfill Gas Collection and Control System Repairs; transferring budgeted funds in the amount of $108,432 from the Citizens Collection Center Flour Bluff / Padre Island Area Project to the J.C. Elliott Landfill Gas Collection and Control System Repairs Project; and authorizing the City Manger or designee to execute a contract for professional services with SCS Field Services of Bedford, Texas in the amount of $100,400 for the J.C. Elliott Landfill Gas Collection and Control System Repairs Project. PURPOSE: The purpose of this Agenda Item will authorize the proposed consultant to begin designing and installing required improvements. BACKGROUND AND FINDINGS: The proposed project will implement corrective actions to improve the overall operations of the Landfill's Gas System, prevent air intrusion into the waste mass, and to increase gas quality and flow rates in general. The recommended corrective actions include; Cap Evaluation, Repair of Header Obstruction and Wellfield Balancing, Carbon Monoxide Sampling, Repair of Flex Coupling from Main Header to Knockout Pot, Replacement of Sump Pumps, and Repair of Sump 5 & Reconnection of Header. This project will address Low Quality Readings at the Flares, Potential Oxidation Issues near C\PROGRAM FILES \G RAN ICUS \ LEG I STARS \PACKET \1005 CITY COUNCIL 10 9 2012\0009 1 MEMO - JC ELLIOTT .DOCX Sump 5 and overall improve Landfill Gas Collection and Control System. SCS was selected for this project based on the Landfill Gas Collection and Control System Assessment at J. C. Elliot Landfill, Furthermore, they will be involved in the future project J. C. Elliott Gas Management to Energy, as listed in the RFQ 2011 -05. ALTERNATIVES: 1. Award the contract to SCS Field Services as proposed. 2. Do not award the contract to SCS Field Services as proposed. OTHER CONSIDERATIONS: Not applicable. CONFORMITY TO CITY POLICY: Conforms to statutes regarding FY 2012 -13 Capital Improvement Budget. EMERGENCY / NON - EMERGENCY: Not applicable. DEPARTMENTAL CLEARANCES: Solid Waste Services 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 $108,432.00 $108,432.00 Encumbered / Expended Amount This item $100,400.00 $100,400.00 Future Expenditures 8,032.00 8,032.00 BALANCE 0.00 0.00 Fund(s): Sanitary Landfill 2006 CIP Comments: This project is being added to the FY2012 -2013 Capital Budget & Capital Improvement Guide to improve operations of the system funding which will come from the budget reserves of another planned Solid Waste project, the Citizens Collection Center to be located in the Flour Bluff /Padre Island area. This transfer of funds will not affect the integrity of the Citizens Collection Center Project. RECOMMENDATION: City staff recommends the Contract for Professional Services be awarded to SCS Field Services C\PROGRAM FILES \G RAN ICUS \ LEG I STARS \PACKET \1005 CITY COUNCIL 10 9 2012\0009 1 MEMO - JC ELLIOTT .DOCX of Bedford, Texas, in the amount of $100,400.00 for professional services. LIST OF SUPPORTING DOCUMENTS: Project Budget Location Map Ordinance C\PROGRAM FILES \G RAN ICUS \ LEG I STARS \PACKET \1005 CITY COUNCIL 10 9 2012\0009 1 MEMO - JC ELLIOTT .DOCX PROJECT BUDGET ESTIMATE J. C. ELLIOTT LANDFILL GAS COLLECTION AND CONTROL SYSTEM REPAIRS (Project No. E12108) October 9, 2012 FUNDS AVAILABLE: Sanitary Landfill 2008 CIP $108,432.00 FUNDS REQUIRED: Design and Install Fees: Design and Install (SCS Field Services) 100,400.00 Reimbursements: Contract Administration (Contract Preparation /Award /Admin) 2,761.00 Engineering Services (Project Mgt/Constr Mgt/Traffic Mgt) 3,514.00 Finance Issuance 1,255.00 Misc. (Printing, Advertising, etc.) 502.00 TOTAL $108,432.00 ESTIMATED PROJECT BUDGET BALANCE $0.00 File: \ Mproject \councilexhibits \exhE12108.dwg NUECES BAY AGNES HWY 44 CORPUS w CHRISTI m INTERNATIONAL AIRPORT CORPUS CHRISTI BAY u_ OSO CREEK J.C. ELLIOTT LANDFILL FM 2444 LOCATION MAP PROJECT # E12108 NOT TO SCALE J.C. ELLIOTT LANDFILL GAS COLLECTION AND CONTROL SYSTEM REPAIRS CITY COUNCIL EXHIBIT CITY OF CORPUS CHRISTI, TEXAS DEPARTMENT OF ENGINEERING SERVICES PAGE: 1 of 1 ■ ■ Ordinance amending the FY 2013 Capital Improvement Budget adopted by Ordinance No. 029565 to add Project No. E12108 J.C. Elliott Landfill Gas Collection and Control System Repairs; transferring budgeted funds in the amount of $108,432 from the Citizens Collection Center Flour Bluff / Padre Island Area Project to the J.C. Elliott Landfill Gas Collection and Control System Repairs Project; and authorizing the City Manger or designee to execute a contract for professional services with SCS Field Services of Bedford, Texas in the amount of $100,400 for the J.C. Elliott Landfill Gas Collection and Control System Repairs Project. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF CORPUS CHRISTI, TEXAS: SECTION 1. The FY 2013 Capital Improvement Budget adopted by Ordinance No. 029565 is amended to add Project No. E12108 J.C. Elliott Landfill Gas Collection and Control System Repairs. SECTION 2. Budgeted funds in the amount of $108,432 are transferred from the Citizens Collection Center Flour Bluff / Padre Island Area Project to the J.C. Elliott Landfill Gas Collection and Control System Repairs Project. SECTION 3. The City Manager or designee is authorized to execute a contract for professional services for the J.C. Elliott Landfill Gas Collection and Control System Repairs Project in the amount of $100,400 with SCS Field Services. ATTEST: THE CITY OF CORPUS CHRISTI Armando Chapa City Secretary Joe Adame Mayor C: \Program Files \Granicus \Legistar5 \Packet \1005_City Council _10_9_2012 \0009_4_Ordinance - JC Elliott.docx 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, Sr. 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, Sr. Mark Scott Priscilla G. Leal PASSED AND APPROVED on this the day of , 2012. ATTEST: Armando Chapa City Secretary Joe Adame Mayor C: \Program Files \Granicus \Legistar5 \Packet \1005_City Council _10_9_2012 \0009_4_Ordinance - JC Elliott.docx CONTRACT FOR PROFESSIONAL SERVICES AGREEMENT Vir9inta. This AGREEMENT is between the ty of Corpus Christi, Texas, a Texas home-rule municipal corporation, ''CITY", acting throu h its duly authorized City Manager or designee ("City Engineer"), and SCS FIELD SERVICES., a orporation, acting through its duly authorized representative who is David Mezzacappa, P.E., Project Director (CONSULTANT), which agree as follows: 1 DECLARATIONS. "CITY" desires to engage "CONSULTANT" to provide services in connection with City's project, described as follows: J. C. Elliott Landfill — Gas Collection and Control System Repairs (Project No. E12108) "Project". 2. SCOPE OF WORK. "CONSULTANT" shall provide services for the PROJECT in accordance with the accompanying Letter, Scope of Services, and Fee attached as "Exhibit A", 3. FEE. The "CITY" agrees to pay the "CONSULTANT" for services provided in accordance with Exhibit "A", Scope of Services, and Fee under this AGREEMENT, a total fee not to exceed $100,400.00 (in figures), (One Hundred Thousand Four Hundred Dollars and Zero Cents) (in words). 4. INDEMNIFICATION AND HOLD HARMLESS. The "CONSULTANT" agrees to indemnify, save harmless and defend the "CITY", and it's agents, servants, and employees as more fully set forth in 'Exhibit B". CITY OF CORPUS CHRISTI Oscar R. Martinez, Assistant City Manager RECOMMENDED: IELD SERVICES es. F/ ' 49(ts 12 (Date) David - P.E. Date) Project 1 rec o 1901 Central Drive, Suite 550 Bedford, TX 76021-5872 (361) 571-2288 Office (361) 571-2188 Fax Daniel Biles, P E (Date) Director of Engineering Services Operating Department (Date) APPROVED AS TO FORM: Office of Management and Budget (Date) Legal Department (Date) KIENGINEERING DATAEXCHANGEIANGIELIASOLID WASTESEL-noa JC ELLIOTT LANDFILL GAS COLLECITION & CONTROL SYSTEM REPAIRSlAE AGREEMEI'IT,DOC ATTEST Armando Chapa, City Secretary Project Number: E12108 Funding Source:550950- 3365- 00000- E12108 Encumbrance Number: KIENGINEERING DATAEXCHANGEIANGIEMISOLID WASTElE12108 JC ELLIOTT LANDFILL GAS COLLECTTION & CONTROL SYSTEM REPAIRSAE AGREEMENT.DOC Solid Waste Management Consultants and Contractors 1901 Central Drive Suile 550 Bedford. Texas 76021 - 5872 817 571 -2288 FAX 817 571 -2188 www.scsengineers. com July 27, 2012 SCS Proposal No. 070106212 Mr. Bill Green, P.E. Major Projects Manager City of Corpus Christi Engineering Services PO Box 9277 Corpus Christi, TX 78469 Subject: J. C. Elliott Landfill — Corpus Christi. Texas Proposal for Providing Gas Collection and Control System Repairs Dear Mr. Green: SCS Engineers (SCS) is pleased to provide the enclosed proposal to the City of Corpus Christi (City) for Gas Collection and Control System (GCCS) repairs at the J. C. Elliott Landfill. Details related to background, scope, schedule, assumptions, and costs are provided in the proposal. SCS appreciates the opportunity to provide this proposal for services to the City. If you have any questions or comments related to the proposal, please contact David Mezzacappa at telephone number (817) 358 -6108. Sincerely. Jason Lewallen Project Manager SCS FIELD SERVICES Enclosure David Mezzacappa. A.E. Project Director SCS ENGINEERS Offices Nationwide EXHIBIT "A" Page 1 of 18 Landfill Gas Collection and Control System Repairs J.C. Elliott Landfill SIMMONS, 11•11•11•1 MOW 11•11111111 111•11t DIEN .01011:..•■P Presented to: CITY OF CORPUS CHRISTI Solid Waste Operations 2525 Hygeia Corpus Christi, Texas 78415 Presented by: SCS FIELD SERVICES 1901 Central Drive Suite 550 Bedford, Texas 76021 July 27, 2012 SCS Proposal No. 070106212 Offices Nationwide www.scsengineers.com EXHIBIT "A" Page 2of18 J.C. Elliott Landfill eS CsS? F'1:E L STZVE;R.VL "C.E'Si Table of Contents Section Page 1 INTRODUCTION 1 2 SCOPE OF SERVICES 1 Task 1 — Cap Evaluation and General Engineering Support 1 Task 2 — Repair of Header Obstruction and Wellfield Rebalancing 1 Task 3 — Carbon Monoxide Sampling 2 Task 4 — Repair of Flex Coupler From Main Header to Knockout Pot 2 Task 5 — Replacement of 6 Sump Pumps 2 Task 6 — Repair of Sump 5 and Reconnection of Header 3 3 SCHEDULE 3 4 ASSUMPTIONS AND CONDITIONS 4 5 COST ESTIMATE 4 6 CONCLUSION 5 EXHIBIT "A" Page 3of18 J.C. Elliott Landfill 5? =EI:E edLS_ ReV I;C1E'.5 1 INTRODUCTION SCS completed a Landfill Gas Collection and Control System (GCCS) Assessment at the City of Corpus Christi (City) J.C. Elliott Landfill (Site) in June 2012. As part of that report. several GCCS corrective actions were recommended to improve the overall operation of the Site's gas system, prevent air intrusion into the waste mass, and to increase gas quality and flow rates in general. This proposal is being presented to satisfy the recommended corrective actions. The scope of services provided in the next section has been divided into 6 tasks to accomplish the recommended GCCS repairs and upgrades as outlined in section 4 of the Assessment Report. Although a two -phase process was included in the Assessment so that samples for carbon monoxide (CO) can be confirmed prior to disturbing and repairing Sump 5. this final repair is simply included as Task 6 in this proposal. As recommended by SCS, this task will not proceed until the CO levels have been confirmed. Lastly, as discussed in Task 1, since the extent or need for geosynthetic landfill cap repairs at Sump 5 is not known, this proposal only includes an evaluation of the cap as possible during the Sump 5 repairs in Task 6. Past the potential need for cap repair. all items from the Assessment are included in this proposal. 2 SCOPE OF SERVICES SCS Field Services (SCS -FS) is proposing to implement the corrective actions as described below to address the recommendations as outlined in the J.C. Elliott Landfill GCCS Assessment Report prepared by SCS in June 2012. TASK 1 — CAP EVALUATION AND GENERAL ENGINEERING SUPPORT Task 1 includes engineering support during the project. It includes up to 10 hours of David Mezzacappa's time for issues that may arise during construction. This task assumes that City personnel will coordinate directly with the TCEQ regional office as necessary regarding any cap disturbances needed for the repairs in Tasks 2 through 6. so that no additional authorizations are required. Task 1 also includes a one -day site visit by an SCS Engineers employee experienced with liner and cap construction during the Sump 5 repair to assess as possible whether and to what extent cap repair and/or restoration is recommended. Photos will be taken and a short memorandum provided to the City with our recommendation. As an additional service if needed, SCS can provide a proposal to facilitate this repair. TASK 2 - REPAIR OF HEADER OBSTRUCTION AND WELLFIELD REBALANCING During the recent J.C. Elliott site assessment activities, a large belly /obstruction was discovered in the header in an area on the north side of the landfill which has historically been problematic. This blockage is located just west of Sump 1 on the main 16" header, and due to its location it is causing vacuum Toss to a large portion of the wellfield. The blockage is a result of settlement issues which have created a low spot. resulting in condensate becoming trapped in the pipe and EXHIBIT "A" Page 4 of 18 J.C. Elliott Landfill WC S2ECE:L1318 :eRIV 1.'C-E >5° severely restricting the available vacuum. Historically this area has experienced this type of problem several times in the past. SCS -FS proposes to excavate the approximately 200 feet of header affected by the settlement, and re -grade the existing trench line, thereby restoring the flow of condensate to the recovery sumps as originally designed. This process will involve excavation of the header to allow for re- grading of the trench bottom with sand which will alleviate the settlement. SCS -FS will separate and salvage the cover materials currently in place over the header during excavation for use in restoring the cap to its original condition after all re- grading activities. Once the obstruction in the north header has been removed and vacuum restored, the wellfield will require rebalancing since the GCCS vacuum will redistribute itself throughout the piping network. Therefore, as a secondary part of this task, a tuning event for all the wells located at the Site will also be performed by SCS -FS staff to optimize the systems LFG recovery after vacuum is restored. TASK 3 — CARBON MONOXIDE SAMPLING SCS recommends the collection of 10 CO samples from wells near Sump 5. Well RTC -A03. and a few other areas which showed higher screening -level CO readings during the site assessment activities. SCS -FS will utilize Summa® canisters to collect gas samples from the 10 wells designated for further investigation. After collection, the samples will be shipped to a laboratory for a (2 -day) analysis of CO levels and to provide final verification that the CO levels in the targeted locations are below 100ppm. SCS Engineering staff will review the results and compare them to the screening -level field results obtained as part of the previous Assessment. An email will be prepared for the City with SCS' findings and recommendation as to whether the disturbance required to repair Sump 5 is recommended. TASK 4 — REPAIR OF FLEX COUPLER FROM MAIN HEADER TO KNOCKOUT POT During the field investigation it was noted that the flex coupling between the header pipe and the pipe leading to the flare required replacement and could be allowing air intrusion into the GCCS. It was also reported that several of the pipe welds were showing signs of impending failure and that the pipe supports in the area were no longer providing the required support for the pipe weight. SCS -FS is proposing to disassemble the 16" header at the junction between the knockout pot and main line from the field. This portion of the header can then be reconstructed from its original parts to realign the header and therefore eliminate the need for a flex coupling. Reconstructing the header will also provide an opportunity to repair the failing pipe welds. The existing pipe stands will also be repositioned and modified to carry the weight of the header in this area as originally designed. TASK 5 — REPLACEMENT OF 6 SUMP PUMPS SCS -FS is proposing to perform a complete replacement of the Blackhawk pumps in Sumps 1, 2, 3, 5, 6, and 7, with QED AP4 auto pumps. The six existing pumps are currently in disrepair and 2 EXHIBIT "A" Page 5 of 18 J.C. Elliott landfill rSt'i5'ZIE E even more importantly, lack automatic on/off capabilities, making it difficult to maintain efficient operation without the sumps periodically watering -out. SCS -FS will remove the current sump pumps, and QED Short AP4 Bottom - Loading Auto Pumps will be installed in each of the six sumps. All pumps, tubing, rope, fittings. and other supplies needed to complete the pump installations will be provided by SCS -FS. Additionally, this task includes new valves and hoses for the pump in Sump 4 which was not recommended for replacement, but was recommended to have these upgrades in SCS' Assessment report. TASK 6 — REPAIR OF SUMP 5 AND RECONNECTION OF HEADER SCS -FS is proposing a complete replacement of the damaged Sump 5 and reconnection of the 12" header pipe at the point south of Sump 5 where it was cut and capped in order to isolate the failed Sump. Prior to the project start, SCS -FS will have a replacement condensate sump manufactured and delivered to the Site which matches the dimensions of the damaged Sump 5 currently in place. The area around Sump 5 will then need to be excavated along with approximately 200 feet of the existing 12" header in each direction from the sump location. The damaged sump will be carefully removed and the exposed 12" header on each side of the sump. which has subsided slightly resulting in low spots, will be re- graded to re- establish the required grade requirements for condensate flow. At this point the new Sump 5 will be installed and reconnected to the existing header by means of 12" flanged connections. The exposed header and sump area will then be backfilled with bedding materials provided by the Site, and the cap reconstructed with the cover materials stockpiled from the initial excavation. After the replacement of Sump 5. SCS -FS will commence reconnection of the 12" header where it was cut and capped to provide system isolation. The 12" cap will be removed from the active side of the header and a section of 12" header will be spliced back into place utilizing 12" electro fusion couplers, bringing the isolated portion of the system back on line. Once Sump 5 has been replaced and vacuum restored to the southwest section of the landfill, the wellfield will once again require rebalancing since the GCCS vacuum will redistribute itself throughout the piping network. Therefore, as a secondary part of this task, another tuning event for all the wells located at the Site will also be performed by SCS -FS staff to optimize the LFG recovery at the Site after the repairs are completed. As mentioned above, this task will only be initiated once CO monitoring results have been evaluated and approved by SCS Engineering staff and the City. Also, an SCS Engineering representative will be on -site one day during this construction when the cap is being disturbed to evaluate potential damage during the course of the Sump 5 repairs. 3 SCHEDULE SCS is prepared to commence the scope of services described in this proposal within six weeks of receiving authorization to proceed from the City. Assuming acceptable results from the CO sampling (Task 3), the Sump 5 replacement (Task 6) will be performed in conjunction with 3 EXHIBIT "A" Page 6 of 18 J.C. Elliott Landfill iSrC:Sr�'EI'EfL�D:�'�5`E�R V IiGE.'S� Tasks 1 -5 and the entire project should be completed within four weeks of the commencement of on -site activities. If the CO sampling results are such that they present any cause for concern in the target areas, then the Sump 5 replacement will be temporarily postponed until corrective measures are taken. 4 ASSUMPTIONS AND CONDITIONS In preparing this proposal, SCS offers the following assumptions and conditions: 1. The City will provide and deliver to the Site, sand from their stockpiles for use by SCS - FS in the bedding and re- grading activities of the header and Sump 5 Task. 2. Any waste generated from excavation activities will be placed back into the excavation/trench and covered during backfill activities. 3. No regularly scheduled meetings between the City and SCS have been accounted for in the scope of services; however, it is anticipated that SCS technicians may meet with City personnel on site when performing services. 4. This proposal is valid for 60 days from the date of this submittal. This proposal is confidential and for (Client) use only. If awarded the work, this proposal will become part of a mutually acceptable contract or purchase order. 5 FEE ESTIMATE SCS proposes to perform the above described tasks on a lump sum (Task 1) and a time -and- material basis (Tasks 2 through 6) for the estimated amounts shown in the table below. These estimates include costs for labor. project administration and management, equipment. materials. travel and per -diem assumed necessary for the completion of the task as described in the scope of work. A copy of SCS' Field Services Fee Schedule is attached. Task Number Type of Service Estimated Fee 1 Cap Evaluation and General Engineering Support S5000 ' 2 Repair of Header Obstruction $15,000 3 Carbon Monoxide Sampling $4,600 4 Repair of Hex Coupler From Main Header to Knockout Pot $7500 ' 5 Replacement of 6 Sump Pumps S42,300 6 Repair of Sump 5 and Reconnection of Header 526000 ' Total $100,400 4 EXHIBIT "A" Page 7 of 18 J.C. Elliott Landfill 6 CONCLUSION I'S'G`.S`W�F CE:L`DtyS�E?RiV 1:C;EsS$ SCS appreciates the opportunity to present this proposal to the City of Corpus Christi for your consideration. Please feel free to contact David Mezzacappa, P.E. at (817) 358 -6108 and Jason Lewallen at (817) 680 -2264 if you have any questions regarding this proposal. s EXHIBIT "A" Page 8 of 18 APPENDIX A FEE SCHEDULE EXHIBIT "A" Page 9 of 18 Environmental Consultants and Contractors 1901 Central Drive Suite 550 Bedford. TX 76021 817 -571 -2288 FAX 817- 571 -2188 wvnv. scsfieldservices.com FEE SCHEDULE (Effective May 1, 2012 through April 30, 2013) Technical Field Personnel Rate ($) /Hour Laborer 57 Fusion Technician 62 Technician 70 Equipment Operator 75 Foreman 78 Senior Technician 82 Plant Operator 88 Mechanic 92 Superintendent 98 Field Network Specialist 120 Senior Superintendent 135 Management /Support Personnel Rate ($) /Hour Secretarial 50 Project Administrator 68 Field Data Analyst 75 Senior Project Administrator 80 Designer/Drafter 85 Project Coordinator 95 Project Professional /I-1&S Specialist 125 Field Compliance Auditor 162 Senior Project Professional 170 Project Manager 185 Regional Manager /Project Director 125 General Terms 1. Labor rates are in effect until April 30, 2013. Any work performed after that date is subject to a new Standard Fee Schedule. 2. The above rates include salary, overhead, and profit. Other direct charges, such as subcontractors, construction equipment, materials, air travel, freight, auto rental, permits, fees, taxes, tolls. and other costs incurred for the project, will be billed at cost plus 15 percent. The cost of equipment owned by SCS Field Services will not be subject to administrative mark -up. Automobile mileage cost is $0.50 per mile. Trucks will be charged at $18.00/hour. (No administrative mark -up will be applied to charges for company owned vehicles.) Offices Nationwide SCS Field Services Fee Schedule Mayl, 2012 through April 30, 2013 Page 2 3. Invoices will be prepared monthly for work in progress, unless otherwise agreed. Invoices are due and payable upon receipt. Any invoices not paid within 30 days of receipt are subject to a service charge of 1.5 percent per month on the unpaid balance. 4. Payment of SCS Field Services invoices for services performed will not be contingent upon the client's receipt of payment from other parties. The client agrees to pay legal costs, including attorney's fees, incurred by SCS Field Services in collecting any amounts past due and owing on the client's accounts. 5. Rates for Principals may be negotiated on a project - specific basis. For special situations, such as expert testimony or international assignments, hourly rates will be on an individually negotiated basis. 6. On short -term or one -time assignments, services which require less than eight (8) hours, but more than four (4) hours, will be billed at eight (8) hours. A minimum of four (4) hours will be billed for any service requested which is not conducted in conjunction with an ongoing project (including call -outs after normal work hours), and will be charged portal -to- portal from SCS Field Services offices. 7. For operation, construction, and/or repair work performed on weekends and/or nights (if work exceeds 8 hours in a day), the above rates will be marked up 40 percent. For work performed on Company recognized holidays or beyond 12 hours in a day, the above rates will be marked up 70 percent. 8. These rates are based on non - union, non - prevailing wage scales. 9. For long -term on -site project assignments, rates may be discounted on an individually negotiated basis. Long -term on -site personnel are permitted to return home every four (4) weeks. Travel expense shall be invoiced to the client at cost plus 15 percent. 10. Costs for equipment and analysis will be billed in accordance with the rates contained on SCS Field Services Standard Fee Schedule for Equipment and Analysis. EXHIBIT "A" Page 11 of 18 Environmental Consultants and Contractors 1901 Central Drive Suite 550 Bedford. TX 76021 817-571-2288 FAX 817 -571 -2188 www.scsfieldservices.com SCS FIELD: Si FEE SCHEDULE FOR EQUIPMENT AND ANALYSIS (Effective May 1. 2012 through April 30, 2013) GEM 2000 Gas Analyzer: • Daily Rate 185 /day • Weekly Rate 555 /week • Monthly Rate 1 ,665 /month H2S Gas Pod 10 /day Rate ($) SEM 500 Emissions Monitor: • Daily Rate 185 /day • Weekly Rate 555 /week • Monthly Rate 1,665 /month Q Rae Gas Analyzer 02/H2S /CO /Combustibles 50 /day Micro Max Gas Analyzer 02/H2S /CO /COI Combustibles 50 /day M -40 Gas Analyzer 02/H2S /Combustibles 50 /day Magnehelic Pressure Set 20/day Kurz Air Velocity Meter 35 /day Digital Readout Thermocouple 15 /day DrItger Detector Tubes/Pump 15 /each Metal Bellows Vacuum Pump 35 /day Bar Punch: • Daily Rate 10 /day • Weekly Rate 30 /week • Monthly Rate 90 /month Fisher M95 Metal Detector 30 /day Dewatering Pump (Trash Pump) 45 /day TVA -1000 Flame Ionization Detector: • Daily Rate 185 /day • Weekly Rate 555 /week • Monthly Rate 1,665 /month MiniRae 2000 PID: • Daily Rate 150 /day • Weekly Rate 500 /week • Monthly Rate 1,500 /month Offices Nationwide SCS Field Services Fee Schedule for Equipment and Analysis May1, 2012 through April 30, 2013 Page 2 Rate ($) Air Sampling Station: • Daily Rate 50 /day • Weekly Rate 200 /week Transit: Level: • Daily Rate 15 /day • Weekly Rate 75 /week • Monthly Rate 250 /month • Daily Rate 15 /day • Weekly Rate 65 /week • Monthly Rate 195 /month Pipe Laser: • Daily Rate 50 /day • Weekly Rate 220 /week • Monthly Rate 650 /month Water Trailer 75 /day PAS 3000 Personal Air Sampling Pump 25 /day Tedlar Bag (10- Liter) 40 /each Non - Contaminating Air Sampling Pump 25 /day Interface Probe 50 /day Submersible Pump: • Daily Rate 50 /day • Weekly Rate 1S0 /week • Monthly Rate 450 /month Water Level Indicator: • Daily Rate 20 /day • Weekly Rate 60 /week • Monthly Rate 180 /month 100 -Foot Temperature Probe: • Daily Rate 15 /day • Weekly Rate 45 /week • Monthly Rate 135 /month EXHIBIT "A" Page 13 of 18 SCS Field Services Fee Schedule for Equipment and Analysis Mayl, 2012 through April 30, 2013 Page 3 Rate ($) Teflon Well Bailer 10 /each Vacuum Box/Carbon Canister and Blower 150 /day Tool Truck 144/day No. 12 P.E. Fusion Machine (1 " -2 "): • Daily Rate 50 /day • Weekly Rate 150 /week • Monthly Rate 450 /month No. 14 P.E. Fusion Machine (1 "-4 "): • Daily Rate 80 /day • Weekly Rate 240 /week • Monthly Rate 720 /month No. 28 P.E. Fusion Machine (2 " -8 ") 150 /day 412 P.E. Fusion Machine (4 " -12 "): • Daily Rate 225 /day • Weekly Rate 67S /week • Monthly Rate 2,025 /month 618 P.E. Fusion Machine and Tool Truck 400 /day Trackstar 500 Fusion Machine 425/day Sidewinder P.E. Fusion Machine 100 /day Air Compressor 60 /day Arc Welder 75 /day Generator (3,500 -Watt) 45 /day Generator (5,000 -Watt) 60 /day Generator (6,000 - Watt): • Daily Rate 65 /day Generator (8,000 Watt): • Daily Rate 75/day • Weekly Rate 225 /week Isolation Pinch -off Tools: • Daily Rate 251day • Weekly Rate 75 /week • Monthly Rate 225 /month EXHIBIT "A" Page 14 of 18 SCS Field Services Fee Schedule for Equipment and Analysis May1, 2012 through April 30, 2013 Page 4 Rate ($) Leister Extrusion Welding Gun 120 /day Plate Compactor 75 /day 4- Wheeler (ATV): • Daily Rate 50 /day • Weekly Rate 150 /week • Monthly Rate 450 /month 4- Wheeler with 44" Mow Deck: • Daily Rate 100 /day • Weekly Rate 300 /week • Monthly Rate 900 /month Cub Cadet: • Daily Rate 175 /day • Weekly Rate 525 /week • Monthly Rate 1,575 /month Chain Saw: • Daily Rate 10 /day • Weekly Rate 30 /week • Monthly Rate 90 /month Friatec Electrofiision Machine: • Daily Rate 100 /day • Weekly Rate 300 /week • Monthly Rate 900 /month Horiba Water Quality Meter: • Daily Rate 40 /day • Weekly Rate 120 /week • Monthly Rate 360 /month Hydrogen Sulfide Meter: • Daily Rate 100 /day • Weekly Rate 300 /week • Monthly Rate 90 /0month EXHIBIT "A" Page 15 of 18 SCS Field Services Fee Schedule for Equipment and Analysis Mayl, 2012 through April 30, 2013 Page 5 Rate ($) Infrared Thermometer: • Daily Rate 10 /day • Weekly Rate 30 /week • Monthly Rate 90 /month Micropurge Flow Cell (Groundwater): • Daily Rate 100 /day • Weekly Rate 300 /week • Monthly Rate 900 /month Oiless Compressor and Control Box (Groundwater): • Daily Rate 75/day • Weekly Rate 225 /week • Monthly Rate 675 /month Earth/Resistance Tester: • Daily Rate 100 /day • Weekly Rate 300 /week • Monthly Rate 900 /month Pitot Tube and Gauges: • Daily Rate 10 /day • Weekly Rate 30 /week • Monthly Rate 90 /month Pressure Washer: • Daily Rate 50 /day • Weekly Rate 150 /week • Monthly Rate 300month Squeeze Tool: • Daily Rate 10 /day • Weekly Rate 30 /week • Monthly Rate 90 /month Turbidity Meter /Conductivity Meter: • Daily Rate 25 /day • Weekly Rate 75 /week • Monthly Rate 225 /month EXHIBIT "A" Page 16 of 18 SCS Field Services Fee Schedule for Equipment and Analysis May 1, 2012 through April 30, 2013 Page 6 Rate ($) Vacuum Air Pump: • Daily Rate 100 /day • Weekly Rate 300 /week • Monthly Rate 900 /month Video Camera System 200 /day Weed Trimmer • Daily Rate 25 /day • Weekly Rate 75 /week • Monthly Rate 225 /month Safety Equipment: • Tyvek Suit (each) 15 /each • Polyethylene suit (each) 20 /each • Nitrite gloves (per pair) 15 /each • PVC Gloves (per pair) 15 /each • Rubber booties (per pair) 15 /each • Organic Vapor Cartridges (per pair) 20/each • Organic Vapor /Acid Cartridges (per pair) 25 /each • Cartridges pre - filters (per pair) 15 /each • Half face respirator (each) 20 /day • Full face respirator (each) 25/day • Ventilator /manhole blowers 25 /day • Parachute harness 10 /day • Tripod: - Daily Rate 35 /day - Weekly Rate 105 /week - Monthly Rate 315 /month • SCBA 55 /day General Terms 1. Rates are in effect until April 30, 2013. Any work performed after that date will be subject to a new Schedule of Fees. 2. Equipment usage rates are exclusive of freight charges to and from the project site. Freight is an additional expense chargeable to the client. 3. Rates for mobile blower /flare stations are exclusive of expenses for mobilization and demobilization, electric line installation, electricity, generators, fuel or permits or weekly routine operation and maintenance. These expenses are charged to the client separately. EXHIBIT "A" Page 17 of 18 SCS Field Services Fee Schedule for Equipment and Analysis Mayl, 2012 through April 30, 2013 Page 7 4. Shipping, supplies, equipment rental, materials, vehicle mileage, and other non -labor equipment costs or direct costs are billed at cost plus 15 percent. 5. Equipment rented will be charged portal - to-portal from SCS Field Services offices. Renter is responsible for return charges. 6. The cost of equipment owned by SCS Field Services will not be subject to administrative mark-up. EXHIBIT "A" Page 18 of 18 Exhibit B Mandatory Requirements (Revised November, 2005) INDEMNIFICATION AND HOLD HARMLESS For non - professional services, Consultant agrees to indemnify, save harmless and defend the City of Corpus Christi, and its agents, servants, and employees, and each of them against and hold it and them harmless from any and all lawsuits, claims, demands, liabilities, losses and expenses, including court costs and attorney fees, for or on account of any injury to any person, or any death at any time resulting from such injury, or any damage to any property, which may arise or which may be alleged to have arisen out of or in connection with the work covered by this contract. For professional services, Consultant agrees to indemnify, save harmless and defend the City of Corpus Christi, and its agents, servants, and employees, and each of them against and hold it and them harmless from any and all lawsuits, claims, demands, liabilities, losses and expenses, including court costs and attorney fees, for or on account of any injury to any person, or any death at any time resulting from such injury, or any damage to any property, to the extent caused or alleged to have been caused by the Consultant's negligent acts, errors or omissions in the performance of professional services under this contract. The foregoing indemnity shall apply except if such injury, death or damage is caused by the sole or concurrent negligence of the City of Corpus Christi, its agents, servants or employees or any other person indemnified hereunder. SUPPLIER NUMBER TO BE ASSIGNED BY CITY = PURCHASING DIVISION rw�tir City of Corpus Chnsti CITY OF CORPUS CHRISTI DISCLOSURE OF INTEREST City of Corpus Christi Ordinance 17112, as amended, requires all persons or firms seeking to do business with the City to provide the following information. Every question must be answered. If the question is not applicable, answer with `NA ". See reverse side for Filing Requirements, Certifications and definitions. COMPANY NAME: SCS Engineers P. O. BOX: STREET ADDRESS: 1901 Central Drive, Suite 550 CITY: Bedford, TX ZIP: 76021 FIRM IS: 1. Corporation 4. Association 2. Partnership 5. Other 3. Sole Owner ❑ DISCLOSURE QUESTIONS If additional space is necessary, please use the reverse side of this page or attach separate sheet. 1. State the names of each `employee" of the City of Corpus Christi having an "ownership interest" constituting 3% or more of the ownership in the above named "firm.' Name Job Title and City Department (if known) N/A 2. State the names of each "official" of the City of Corpus Christi having an "ownership interest" constituting 3% or more of the ownership in the above named "firm." Name Title N/A 3. State the names of each "board member" of the City of Corpus Christi having an "ownership interest" constituting 3% or more of the ownership in the above named "firm." Name Board, Commission or Committee N/A 4. State the names of each employee or officer of a "consultant" for the City of Corpus Christi who worked on any matter related to the subject of this contract and has an 'ownership interest" constituting 3% or more of the ownership in the above named "firm." Name Consultant N/A FILING REQUIREMENTS If a person who requests ofl icial action on a matter knows that the requested action will confer an economic benefit on any City official or employee that is distinguishable from the effect that the action will have on members of the public in general or a substantial segment thereof. von shall disclose that fact in a signed %vritin' to the City official. employee or body that has been requested to act in the matter. unless the interest of the City official or employee in the matter is apparent. The disclosure shall also be made in a signed writing filed with the City Secretary. [Ethics Ordinance Section 2-349 (d)] CERTIFICATION I certify that all information provided is the and correct as of the date of this statement. that I have not knowingly withheld disclosure of any inlormation requested: and that supplemental statements will be promptly submitted to the City of Corpus Christi. Texas as changes occur. Certifying Person: David Mezzacappa, P. E. p-o 'ring) 6% Signature of Certifying Person: Title: Project Director DEFI NITIONS Date: 4 boh a a. "Board member." A member of any board, commission. or committee appointed by the City Council of the City of Corpus Christi. Texas. b. "Economic benefit". An action that is likely to affect an economic interest if it is likely to have an effect on that interest that is distinguishable from its effect on members of the public in general or a substantial segment thereof. c. "Employee.- Any person employed by the City of Corpus Christi. "Texas either on a full or part -time basis, but not as an independent contractor. d. "First." Any entity operated for economic vain. whether professional. industrial or contrnercial, and whether established to produce or deal with a product or service. including but not limited to, entities operated in the form of sole proprietorship. as sell - employed person, partnership. corporation. joint stock company. joint venture. receivership or trust. and entities which for purposes of taxation are treated as non- profit organizations. e. "Official." The ,Mayor. members of the City Council. City Manager. Deputy City Manager, Assistant City Managers, Department and Division Pleads. and Municipal Court Judges of the City of Corpus Christi. Texas. is "Ownership Interest." Legal or equitable interest, whether actually or constructively held. in a firm, including when such interest is held through an agent. trust, estate. or holding entity. "Constnictively held" refers to holdings or control established through voting trusts. proxies. or special terms of venture or partnership agreements." g. "Consultant." Any person or tint. such as engineers and architects. hired by the City of Corpus Christi tier the purpose of professional consultation and recommendation. AGENDA MEMORANDUM Future Item for the City Council Meeting of September 25, 2012 Action Item for the City Council Meeting of October 9, 2012 DATE: September 12, 2012 TO: Ronald L. Olson, City Manager FROM: Daniel Biles, P. E., Director of Engineering Services danb @cctexas.com (361) 826 -3729 Execute Construction Contract Charles Drive from Leopard Street to Maple Leaf Drive BOND ISSUE 2008 CAPTION: Ordinance amending the FY 2013 Capital Improvement Budget adopted by Ordinance No. 029565 to transfer $41,928 in budgeted wastewater project savings and $16,450 in budgeted water project savings from the TXDOT Participation Project and $267,499 in budgeted storm water project savings from the Staples Street Outfall Project to the Charles Drive from Leopard to Maple Leaf Project; and authorizing the City Manager or designee execute a construction contract with Jhabores Construction Company of Corpus Christi, Texas in the amount of $1,735,439.03 for the Charles Drive from Leopard Street to Maple Leaf Drive Project (Bond Issue 2008) for the base bid. PURPOSE: The purpose of this Agenda Item is to execute a construction contract for the Charles Drive from Leopard Street to Maple Leaf Drive project. BACKGROUND AND FINDINGS: The contract has bid and the City Council approval is required for construction to commence. The project consists of reconstruction of approximately 600 linear feet of two lane street improvements consisting of 12' Flexible base, Prime Coat and 3" Hot Mixed Asphaltic Concrete (HMAC) with associated Curb & Gutter, Sidewalks, ADA Curb Ramps, Installation of Water, Waste Water and Storm Water Utilities. The project also includes 4,000 -feet of Offsite Storm Water improvements from Lois Drive to Turkey Creek along Leopard Street to resolve flooding issues in the neighborhood. C: \PROGRAM FILES \GRANICUS \LEGISTAR5 \PACKET \1005 CITY COUNCIL 10_9_2012 \ 001 0 1 MEMO - CHARLES DRI V E.DOCX On June 27, 2012, the City received proposals from three (3) bidders and the bidders and their respective bids are as follows: Contractor Base Bid Jhabores Construction Company Corpus Christi, Texas $1,735,439.03 Berry Contracting Corpus Christi, Texas $1,864,807.05 Huff & Mitchell Cypress, Texas $2,143,333.00 ALTERNATIVES: 1. Execute the construction contract as recommended. 2. Do not execute the construction contract. OTHER CONSIDERATIONS: The City's consultant, Bass & Welsh Engineering, conducted a bid analysis of the three (3) proposals submitted to the City. The lowest bidder based on the Total Base Bid is Jhabores Construction Company of Corpus Christi, Texas. Based on the information submitted for Special Provisions A -28, A -29, and A -30, Jhabores Construction Company has the experience and resources to complete the project. CONFORMITY TO CITY POLICY: Conforms to statutes regarding construction procurement criteria; FY 2012 -2013 Capital Improvement Planning (CIP) Budget. EMERGENCY / NON - EMERGENCY: Not emergency DEPARTMENTAL CLEARANCES: Street Department 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 $133,000.00 $968,800.00 $1,101,800.00 Utility Savings Transfer $1,075,877.00 $1,075,877.00 Encumbered / Expended Amount $133,000.00 $133,000.00 This item $1,735,439.03 $1,735,439.03 Future Anticipated Expenditures $290,105.83 $290,105.83 BALANCE $0.00 $19,132.14 $19,132.14 Fund(s): Street, Storm Water, Wastewater, Water, CIP ST 26 SW 22 Comments: The project requires 150 calendar days, with anticipated completion approximately March 2013. Thus, funding for this contract will only be required during Fiscal Year 2012 -2013. C: \PROGRAM FILES \GRANICUS \LEGISTAR5 \PACKET \1005 CITY COUNCIL 10_9_2012 \ 001 0 1 MEMO - CHARLES DRI V E.DOCX RECOMMENDATION: City staff recommends that the construction contract be awarded to Jhabores Construction Company of Corpus Christi, Texas in the amount of $1,735,439.03 for the Charles Drive from Leopard Street to Maple Leaf Drive for the Base Bid. LIST OF SUPPORTING DOCUMENTS: Project Budget Location Map Ordinance C: \PROGRAM FILES \GRANICUS \LEGISTAR5 \PACKET \1005 CITY COUNCIL 10_9_2012 \ 001 0 1 MEMO - CHARLES DRI V E.DOCX PROJECT BUDGET CHARLES DRIVE FROM LEOPARD STREET TO MAPLE LEAF DRIVE BOND ISSUE 2008 Project No. 6508 September 25, 2012 FUNDS AVAILABLE: Street CIP $600,000.00 Storm Water CIP . 1,366,499.00 Wastewater CIP ... 126,728.00 Water CIP . .... 76,450.00 Gas CIP . .. 8,000.00 TOTAL $2,177,677.00 FUNDS REQUIRED: Construction (Jhabores Construction Company) Base Bid . ... $1,735,439.03 Contingencies (10 %) . 173,543.90 Consultant Fees: Consultant Design (Bass & Welsh Engineering) * . .. 93,400.00 Construction Materials Testing (estimate)... .... 16,904.00 Geotechnical Engineering Testing (Rock Engineering & Testing Laboratory) . ... 9,100.00 Reimbursements: Contract Administration (Contract Preparation /Award /Admin) . 39,047.38 Engineering Services (Project Mgt /Constr Mgt /Traffic Mgt) . .. 60,740.37 Finance . .., 21,692.99 Misc. (Printing, Advertising, etc.) ... 8,677.19 TOTAL $2,158,544.86 BALANCE . $19,132.14 * Consultant Design Contract awarded on April 13, 2010 to Bass & Welsh Engineering (Motion No. M2010 -074). Construction Observation Services is included in Consultant Design Contract. \Mproject \councilexhibits \exh6508b.dwg PROJECT SITE Charles Drive from Leopard Street to Maple Leaf Drive Charles Drive Improvements, Leopard Street to Maple Leaf Drive (BOND 2008) CITY COUNCIL EXHIBIT CITY OF CORPUS CHRISTI, TEXAS DEPARTMENT OF ENGINEERING SERVICES PAGE: 1 of 1 ■ ■ Page 1 of 2 Ordinance amending the FY 2013 Capital Improvement Budget adopted by Ordinance No. 029565 to transfer $41,928 in budgeted wastewater project savings and $16,450 in budgeted water project savings from the TXDOT Participation Project and $267,499 in budgeted storm water project savings from the Staples Street Outfall Project to the Charles Drive from Leopard to Maple Leaf Project; and authorizing the City Manager or designee execute a construction contract with Jhabores Construction Company of Corpus Christi, Texas in the amount of $1,735,439.03 for the Charles Drive from Leopard Street to Maple Leaf Drive Project for the base bid BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF CORPUS CHRISTI, TEXAS: Section 1. The FY 2013 Capital Improvement Budget adopted by Ordinance No. 029565 is amended to transfer $41,928 in budgeted wastewater project savings and $16,450 in budgeted water project savings from the TXDOT Participation Project and $267,499 in budgeted storm water project savings from the Staples Street Outfall Project to the Charles Drive from Leopard to Maple Leaf Drive Project. Section 2. The City Manager or designee is authorized to execute a construction Contract with Jhabores Construction Company in the amount of $1,735,439.03 for the Charles Drive from Leopard Street to Maple Leaf Drive Project for the base bid. (Bond 2008) ATTEST: CITY OF CORPUS CHRISTI Armando Chapa City Secretary 0010 4 Ordinance - Charles Drive Joe Adame Mayor Page 2 of 2 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 Larry Elizondo, Sr. Nelda Martinez Kelly Allen 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 Larry Elizondo, Sr. Nelda Martinez Kelly Allen Mark Scott Priscilla G. Leal PASSED AND APPROVED on this the day of , 2012. ATTEST: Armando Chapa City Secretary 0010 4 Ordinance - Charles Drive Joe Adame Mayor w •? co w w 0 co 0 Elma Elma CD CD • VI cu c, CD 4u o V J m ssue 2008 (Project No. 6508) Presentation 0 September 18, 2012 z ) L) L) N r w w s V N elmo V • 0 CI. 0 44 C 0 2 �0 co 7.1 alma O V alma V • O 0 0 0 0 0 0 0 0 0 0 o' 00 0 0 O 0)' N Uf) O O' •cr ' N O O' (0 0 0 00 o 0 co ' ti Ems. d U d U S $2,177,677.00' J H 0 H FUNDS REQUIRED: $1,735,439.03 0 0 ) 00 00 00 CO 000 cri O O (Ni O..- Lc) co CO- C) 0 6) O 0) EA D m (1) U) c 0 E 0 0 c 0 U 2 c 0 0 U) 0 o co 0 L • .0 O 0 O a) L 0) (7 c 0 O 0 Consultant Fees: 1 0) c a) a) c O c w L U) aa)) U) U) m_ c 0) .U) a) 0 c c-' U) c 0 U 0 0 J L a) a) w a) - o U E Construction Materials Testin c U) a) H c a) a) c c w To U c U a) 0 a) CD Reimbursemen $2, w U z H J 0 a m c o O O 2 o U c O 0) a .a) w• -0 To 5 U co a) c6-0 m � O U O O O N � U L�♦ W Q a O C O O c6 a) a) c6 � O O U O � U O U C O C • U co or- -,O O o CNI O . U * Z AGENDA MEMORANDUM Future Item for the City Council Meeting of October 9, 2012 Action Item for the City Council Meeting of October 16, 2012 DATE: September 14, 2012 TO: Ronald L. Olson, City Manager THROUGH: Wes Pierson, Assistant City Manager (361) 826 -3082 wesp @cctexas.com FROM: Emily Martinez.; (361) 882 -7448 emartinez @ccredc.com Temporary Tax Abatement for Cosmopolitan Corpus, Ltd. for the property located at 401 N Chaparral Street (Lichtenstein Building) CAPTION: Resolution authorizing the execution of an agreement with Cosmopolitan Corpus Ltd. providing for temporary tax abatement PURPOSE: Granting a temporary tax abatement to Cosmopolitan Corpus Ltd. for a term of up to eight years. BACKGROUND AND FINDINGS: Cosmopolitan Corpus submitted an application for incentives to the City of Corpus Christi requesting tax abatement for the building located at 410 N Chaparral Street, the old Lichtenstein's building. The development is located within the Downtown TIF. Downtown is a council identified catalyst area. The Downtown Management District has written a letter of support for this project to receive a tax abatement. In accordance with the City's Tax Abatement Guidelines and Criteria, Cosmopolitan is seeking tax abatement as per section 3 of the Guidelines: The level of any New Facility, Expansion, or Modernization that is located within a Catalyst Area or that is a Locally -Owned Facility is increased by one level above the standards set forth in Section 2(i)(1) and (2) above, with a minimum level of 3 for any the project. Further, if a Facility qualifies under both the capital investment qualification criteria and the new jobs and salary criteria, the Facility will be increased by one level above the highest criteria level achieved. Level 3 provides a maximum number of 8 years tax abatement, including up to 2 years during construction. The increment value of the City's ad- valorem tax will be abated based on the following schedule: • Years 1 -5 100% (not to exceed 2 years for construction) • Year 6 75% • Year 7 50% • Year 8 25% They plan to construct 160 residential units and have 6,392 square feet of retail including 216 parking spaces. Improvements are estimated to be approximately $14,000,000. This project will create approximately 17 permanent jobs. The property is currently appraised at $882,006 and is currently vacant. The City receives $5,032.31 in taxes. ALTERNATIVES: There are no other incentives available to a project this size. It is below the investment limits for a County or College District abatement. OTHER CONSIDERATIONS: Not applicable CONFORMITY TO CITY POLICY: This tax abatement is eligible for a Tier 3 treatment. It is in a Texas Enterprise Zone. EMERGENCY / NON-EMERGENCY: NON - EMERGENCY 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 439,329 439,329 BALANCE 439,329 439,329 Fund(s): Comments: This revenue is over and above the amount that would be received at the current valuation. RECOMMENDATION: Staff recommends approval to grant tax abatement to Cosmopolitan Corpus Ltd., the owner of taxable property located at 401 North Chaparral Street in accordance with the City's Tax Abatement Guidelines and Criteria. LIST OF SUPPORTING DOCUMENTS: Tax Abatement Application Tax Abatement Agreement Page 1 of 2 Resolution Authorizing the execution of an agreement with Cosmopolitan Corpus Ltd providing for temporary property tax abatement Whereas, the Texas Property Redevelopment and Tax Abatement Act (the "Act "), Texas Tax Code, Chapter 312, as amended, authorizes the City of Corpus Christi, Texas (the "City ") to enter into tax abatement agreements for projects meeting the guidelines and criteria for granting tax abatement duly adopted by the City; and Whereas, an application for temporary tax abatement has been filed with the City by Cosmopolitan Corpus Ltd for the construction of a facility in the City; and Whereas, the property to be covered by the proposed tax abatement agreement is located in the city limits of the City within an area designated as a reinvestment zone eligible for property tax abatement under the provisions of the Act; and Whereas, the project is not located on property that is owned or leased by a person who is a member of the City Council of the City of Corpus Christi; Now, therefore, be it resolved by the City Council of the City of Corpus Christi, Texas: SECTION 1. The City Council finds and determines that the terms of the proposed agreement with Cosmopolitan Corpus Ltd providing for temporary property tax abatement and the property subject to the proposed agreement meet the applicable guidelines and criteria, as amended, adopted by the City. The City Council further determines that the proposed project is feasible and the proposed temporary abatement of taxes will inure to the long term benefit of the City. SECTION 2. The Tax Abatement Agreement with Cosmopolitan Corpus Ltd, attached as Exhibit A, is approved, and the City Manager is authorized to execute the agreement. This resolution takes effect upon City Council approval on this the day of , 2012. ATTEST: THE CITY OF CORPUS CHRISTI Armando Chapa City Secretary 0012_2_RESOLUTION - Cosmopolitan Tax Abatement Joe Adame Mayor Page 2of2 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 0012_2_RESOLUTION - Cosmopolitan Tax Abatement APPLICATION FOR TAX ABATEMENT This application should be filed prior M the beginning of construction or the installation of improvements. The filing of this document acknowledges familiarity and conformance with Guidelines and Criteria for Granting Tax Abatement. This application will become part of the Tax Abatement Agreement and any knowingly false representations will be grounds for terminating the Agreement. This Application should be submitted to the City Manager, City Hall, 1201 Leopard, P.Q. Box 9277, Corpus Christi, Texas 78469 for properties inside the City limits) and to the County Judge, Nueces County Courthouse, 901 Leopard Street, Corpus Christi, Texas 78401 (for properties in unincorporated areas). FOUR COPIES OF TUE APPLICATION SHOULD HE FILED WITH THE APPROPMATE GOVERNMENTAL UN T, Applicant Information Date 5— coznpany Naine 64'414 POL,1 7-kV Address ATfACH ANNUAL REPORT LTD Number cif Employees Project Information Use of Facility, 0Basic Nlianufacturing or Service industry :Petrochemical Facility o Regional Visitor/Amusement Facility 9 Renewal Community Facility Describe Product, Service or Facility to be provided. li"gDZ VC C....oPMC "VT bp 44 644 rEA)5i; Tle -7g1qCD, ORegional Distribution Center .0 Regional Telecommunications Facility ntcrprise Zone Residential Redevelopmera Facility /AO STZ iitzs v7iA vEtoPmE vvr ar- 160 vej Project Description" ' 6'14 Pti7,, Kt cplok 9 pit; Attach as Exhibit A (one or more letter-size pages) a statement fully explaining the project, describing the existing site and improvements, describing all proposed improvements and investments, and providing a list of impnwements and ptoperty for which abatement is requested, F-0 ZIA) i-OX UPS L5 -r- or Rtt-Ne, 40/ rJ. Operation Address and Legal Description City PORPU„S /RI 571 School District (7,26:PcIs NRI sr- BIEW PROJECT DEXPANS lON OMODERNI/ATION vS STt 1)665e„g pylopj Attach as Exhibit B (one or more letter-size pages) a complete legal deseripUoilandior map showing proposed site Economic Information Co_nstraction Estimates Commencement Dates Completion Date: Peak Construction Jobs. Twat Cost of Construction: 300 4.1L' 000 000 Perlilartent Employment Estimates tlF rErj 4t 1)ennarient Employment i Number of Jobs Created PAGE TWO IF MODERNIZATION'. Estimated Economic Life of Existing Plant: 0 years Added Ecomunic Life from Modernization: 5Q years -Re•-t-AIL IA 8la Estimated Appraised Value on Site Land Improvements Personal Property As ofianuan, 1 Preceding Abatement Agreement .. # PO, 369t9 4 73D, Y(0 #0' Value of Abated Property upon Completion of Project. Value upon Completion of Project of any Property and Protect Improvements not Subject to Abatement Is the land currently under an agricultural-use OT open-space exemption? Yes Dodo Er" LandlImp. Tax Acct No, Personal Prop. Acct. No VARIANCE. Is the applicant seekmg variance under Section 3(f) of the Guidelines? Yes ONo DIf 'yes' attach the required supplementary information_ OTHER ABATEMENTS:11as the applicant made application or abatement of this project by another taxing ,turisdiction or nearby counties'? Yes ONo Rill-yes' provide dates of application,. hearing dates, if held or schedule,d, name of jurisdictions and contacts, and letters of intern_ COMPANY REPRESENTATIVE TO BE CONTACT: Name: Tide. e T Signature of utho zed Company official Name and Title of Authorized Callum-1y Official Address_ It S OAP IT-AL oF 7—ele4 5 HcLoY So Ausr--/ j 1—X 11b "relephoric, INSTRUCTIONS Applicants and projects must meet the requirements established by the Guidelines and Criteria in order to receive positive consideration. Section 2 of the Guidelines, for example, sets out regulations governing eligible facilities, eligible and ineligible improvements. terms and economic qualifications. Conformance with all sections is required for eligibility, APPLICATION INFORMATION The taxing unit limy consider Applicant's financial capacity in determining whether to enter into an abatement agreement. Established companies for which public information is available, or the wholly-owned businesses of such companies, should attach a statement showing when the company was established, business references (name, contact and telephone number of principal bank, accountant and attorney) and may be required to %Ranii an audited financial statement and business plan. PROJECT INFORMATION Only facilities listed in the Guidelines may receive abatement without applying for a variance, Check the definitions in the Guidelines to see if your project qualifies. If the project is a Basic Manufacturing or Service Industry or a Regional Distribution Center, the Application should include market studies, business plans or other materials demonstrating that the facility is intended to serve a market the majority of whieb is outside of the Nucces County region. ECONOMIC INFORMATION Permanent Employment Estirnates — n estiniating permanent employment, include the total number of jobs (using Tull Time Equivalents) created at this site by your firm as well as known permanent jobs of service contractors required for operation. Estimated Appraised Value on Site The value January 1 preceding abatement should be the value established by the Nueees Count i Appraisal District. If the Applicant must estimate value because the taxable value is not known or is combined with our properties under a single tax account, please so state. To qualify, the abated properties must meet the criteria outlined in the Tax Abatement Policy. Projections of value should be a 'test estimate" based on taxability in Texas, TAX ABATEMENT AGREEMENT THE STATE OF TEXAS } } COUNTY OF NUECES This Tax Abatement Agreement ("Agreement") is made and entered into by and between the City of Corpus Christi, Texas ("City") and Cosmopolitan Corpus, LTD, a Texas limited partnership ("Owner"), the owner of taxable property in the City of Corpus Christi, Texas, located on 401 North Chaparral Street, Corpus Christi, Nueces County, Texas ("Property"). AUTHORIZATION This Agreement is authorized by the Texas Property Redevelopment and Tax Abatement ALA, Texas Tax Code, Chapter 312, as amended ("Act"), and is subject to the laws of the State of Texas and the charter, ordinances, and orders of the City. DEFINITIONS A. As used in this Agreement, the following terms have the following meanings: 1. "Abatement" means the temporary or partial exemption from ad valorem taxes of certain added value to real and personal property in a zone designated for economic development purposes under the Act 2. "Added Value" means the increase in the assessed value of the Eligible Property as a result of "expansion" or "modernization" of an existing facility or construction of a "new facility." It does not mean or include "deferred maintenance."' 3. "Base Year Value" means the assessed value of the Improvements on the Property as certified by the Nueces County Appraisal District as of the January 1 preceding the execution of this Agreement, plus the agreed upon value of Improvements made after January 1, but before the execution of this Agreement. 4. "Construction Phase" means the period during which a material and substantial improvement of the Property occurs which represents a separate and distinct construction operation undertaken for the purpose of erecting the Improvements. (a) The Construction Phase ends upon the earliest to occur of the following events: (1) When a certificate of occupancy is issued for the project (if within City limits). Page 1 of 15 Cosmopolitan Tax Abatement Agreement 06 18 12 (2) When commercial production of a product or provision of a service is achieved at the facility. (3) When the architect or engineer supervising construction issues a certificate of substantial completion, or some similar instrument. (4) Two (2) years after the date of this Agreement. (b) The determination of the end of the Construction Phase is made by the City, in its sole and absolute discretion, based upon the above criteria and the other factors as the City may deem relevant. (c) The determination of the end of the Construction Phase by the City is conclusive, and any judicial review of the determination is governed by the substantial evidence rule. 5. "Eligible Property" means the buildings, structures, site improvements, and that office space and certain personal property necessary to the operation and administration of the Facility to be constructed under this Agreement. A list of the Eligible Property is set forth in the Project Description, which is attached to this Agreement as Exhibit A and made a part of this Agreement. During the Construction Phase of the Eligible Property, the Owner may make the change orders to the Eligible Property as are reasonably necessary to accomplish its intended use, provided that no change order may be made which will change the qualification of the project as a "Facility" under the Guidelines and Criteria for Granting Tax Abatement approved by the City. 6. "Facility" means a Basic Manufacturing or Service Facility, Regional Distribution Center Facility, Regional Telecommunications/Data Processing Center Facility, Regional Visitor Amusement Facility, Central Business District (CBD) Residential Facility, Renewal Community Facility, or Petrochemical Facility approved by the City as set forth in the Guidelines and Criteria for Granting Tax Abatement adopted by the City. 7. "Improvements" means the buildings, portions of buildings, and other improvements, including fixed machinery and equipment, used for commercial or industrial purposes on the Property. 8. "Ineligible Property" means land; inventories; supplies; tools; furnishings and other forms of movable personal property; vehicles; vessels; aircraft; housing; hotel accommodations; deferred maintenance investments; property to be rented or leased, except as provided in Section 2(e); any improvements, including those to produce, store or distribute natural gas, fluids or gases, which are not integral to the operation of the Facility; improvements to real property which have an economic life of less than 15 years; property owned or used by the State of Texas or its political subdivisions or by any organization owned, operated, or Page 2 of 15 Cosmopolitan Tax Abatement Agreement 06 18 12 directed by a political subdivision of the State of Texas; unless any of the above types of property are specifically authorized by the City. 9. The Guidelines and Criteria for Granting Tax Abatement adopted by the City are incorporated as a part of this Agreement. Except as the guidelines and criteria are specifically modified by this Agreement, all definitions in the guidelines and criteria are applicable to this Agreement. 111. PROPERTY A. The Property is an area within the City of Corpus Christi, Texas, located in whole or in part within the jurisdiction of the City, and is more fully described in Exhibit B, which is attached to this Agreement and made a part of this Agreement. The Property is located within a zone for tax abatement established under Chapter 312 of the Texas Tax Code, as amended, by the City of Corpus Christi, Texas. B. The Nueces County Appraisal District has established the following values for the Property as of the January 1 valuation date prior to the date of execution of this Agreement. Account No. 0540-0012-0010 (R191705) Land $149,360 C. The City and the Owner agree that the value of any additions to the Improvements made after January 1 or not otherwise reflected on the above valuation of Improvements is: Additional Improvements: $732,646 D. Addition of the above amount to the valuation of the Improvements as of the January 1 valuation date prior to the date of execution of this Agreement results in a Base Year Value as follows: Base Year Value: $882,006 IV. TERM OF ABATEMENT AND AGREEMENT A. The City agrees to abate the ad valorem taxes on the Eligible Property under this Article and Articles V and VI of this Agreement. The Abatement is effective with the January 1 valuation date immediately following the date of execution of this Agreement. The Abatement continues for up to two (2) years during the period of the Construction Phase and for the next six (6) full tax years after the Construction Phase, expiring as of December 31 of the 2020 tax year. If the period of the Construction Phase exceeds two (2) years, the Facility is considered completed for purposes of Abatement, and in no case may the period of Abatement, inclusive of construction and completion exceed eight (8) tax years. The years of Abatement provided in this Agreement in each instance coincide with the tax year commencing on January 1 and expiring on Page 3 of 15 cosmopoiitan Tax Abatement Agreement 06 18 12 December 31, and in no event may the Abatement extend beyond December 31 of the 2020 tax year. This Abatement also covers as Eligible Property those supplemental improvements to the Eligible Property that are added or constructed during the post- construction two (2) year period of Abatement. In no event, however, may the total Abatement period for the Eligible Property exceed the maximum six (6) year Abatement period for the entire project as specified in this Agreement. B. The term of this Agreement continues for a period of five (5) years following expiration of the abatement period. All terms and conditions imposed upon the Owner continue in effect during the period, and the Owner is obligated specifically to continue the minimum employment levels specified in this Agreement. Any default is subject to the provisions of Article VIII of this Agreement. V. TAXABILITY During the period that the Abatement is effective, taxes are payable as fo llows: 1. The value of the land comprising the Property is fully taxable. 2. The Base Year Value of existing Improvements comprising the Property is fully taxable. 3. The value of Ineligible Property is fully taxable. 4. The Added Value of Eligible Property is abated under Article VI of this Agreement. VI. AMOUNT OF ABATEMENT A. The Abatement provided by this Agreement is based upon a mixed use facility located in the Downtown catalyst area, Owner represents and warrants that this project will add seventeen (17) additional permanent or full-time operating or contract employee and will maintain the same level of employment for the term of the abatement agreement, the percentage of tax abated is under the following schedule: Percentage of Abatement Construction Period (not to exceed 2 years) Year I Year 2 Year 3 Year 4 100% 100% 100% Cosmopolitan Tax Abatement Agreement 06 18 12 100% 75% Page 4 of 15 Year 5 Year 6 50% 25% B. In order to be counted as a permanent job under this Agreement, the job must be a full-time position providing regular work schedules at least 35 hours per week. For compliance purposes, the determination date is January 1 of each year commencing with the January 1 following the date of completion of construction. The percentage of abatement provided each year under this Agreement is based upon the employment information as of January 1 of the year. As a result, the actual amount of abatement may vary from year to year based upon employment levels and property valuations. C. At the time of execution of this Agreement, the Owner reasonably estimates and represents to the City that the Added Value comprising permanent Improvements upon completion of the Construction Phase is: $14,000,000 ("Estimated Added Value' , o which $14,000,000 is eligible for tax abatement. D. In the event that upon completion of the Construction Phase, the Added Value of permanent Improvements, as determined by the Appraisal District, is at any time during the period of Abatement less than eight-five percent (85%) of the Estimated Added Value, not due to circumstances beyond the control of Owner, the Owner agrees to pay, as additional taxes under this Agreement, an amount equal to the then current tax rate of the City applied to the difference between the Added Value from eighty-five percent (85%) of the Estimated Added Value, multiplied by 100%, minus the net percentage of Abatement provided under this Agreement. For the purposes of this provision, the term "circumstances beyond the control of Owner" includes casualty losses, national economic factors, shutdowns due to governmental regulations, strikes, acts of war; and the like. E. The formula for calculating the additional tax is outlined as follows: (Tax Rate] x [(85% of Est. Added Value - Actual AV) x (100% - Abatement %)] Additional Tax. VII. CONTEMPLATED IMPROVEMENTS A. The contemplated improvements are set forth in the Project Description attached as Exhibit "A." During the Construction Phase, the Owner may make the change orders to the project that are reasonably necessary, provided that no change order may be made that will change the qualification of the project as a "Facility" under the Guidelines and Criteria for Granting Tax Abatement approved by the City. All improvements must be completed under all applicable laws, ordinances, rules or regulations. During the term of this Agreement, use of the Property is limited to operation of the Facility described in Page 5 of 15 Cosmopolitan Tax Abatement Agreenient Agreement 06 18 12 the Project Description consistent with the general purpose of encouraging deveiooment or redevelopment of the zone during the period of this Agreement B. Owner represents and warrants that this project will add seventeen (17) additional permanent or full-time operating or contract employee and will maintain the same level of employment for the term of the abatement agreement. Also, Owner represents and warrants the project is not expected to solely or primarily have the effect of transferring employment from one part of Nueces County to another. VIII. EVENTS OF DEFAULT AND RECAPTURE A. Failure to Commence Operation During Term of Agreement. In the event that the Facility is not completed and does not begin operation with the minimum number of eight (8) permanent jobs by the January 1 following the completion of construction, no abatement is given for that tax year, and the full amount of taxes assessed against the property is due and payable for that tax year. In the event that the Owner fails to begin operation with the minimum number of seventeen (17) permanent jobs by the next January 1, then this Abatement Agreement terminates and all abated taxes during the period of construction are recaptured and must be paid within 60 days of the termination. B. Discontinuance of Operations During Term of Abatement. In the event the Facility is completed and begins operation with the required minimum number of permanent jobs, but subsequently discontinues operations or the minimum number of permanent jobs is not maintained on any January 1 during the term of the Agreement after the completion of construction, for any reason except on a temporary basis due to fire, explosion, or other casualty, accident, or natural disaster, the Agreement may be terminated by the City, and all taxes previously abated by virtue of this Agreement are recaptured and must paid within 60 days of the termination. C. Delinquent Taxes. In the event that the Owner allows its ad valorem taxes to become delinquent or fails to timely and properly follow the legal procedures for their protest or contest, this Agreement terminates and the abatement of the taxes for the calendar year of the delinquency also terminates. The total taxes assessed without abatement for that calendar year must be paid within sixty (60) days from the date of termination. Penalty and interest do not begin to accrue on the additional amount of taxes due as the result of recapture under this provision until the first day of the month following the sixty (60) day notice, at which time penalty and interest accrues under the laws of the State of Texas. Penalty and interest on the amount of taxes originally levied based upon the Abatement begin to accrue as of the date the taxes were due under the laws of the State of Texas. D. Notice of Default. Should the City determine that the Owner is in default under the terms and conditions of this Agreement, City must notify the Owner that if the default is not cured within sixty (60) days from the date of the notice ("Cure Period"), then this Agreement may be terminated. In the event the Owner fails to cure the default during Page 6 of 15 Cosmopolitan Tax Abatement Agreement 06 18 12 the Cure Period, this Agreement may be terminated and the taxes abated by virtue of the Agreement will be recaptured and must be paid as provided in this Agreement, E. Actual Added Value. Should the Nueces County Appraisal District determine that the total level of Added Value during any year of the term of this Agreement after completion of the Construction Phase is lower than the Estimated Added Value then a lower percentage of Abatement is applicable. For each year during which an Abatement has been granted, the difference between the tax abated and the tax that should have been abated based upon the actual Added Value as determined by the City and must paid within 60 days of notification to the Owner of the determination. Penalty and interest does not begin to accrue upon the sum until the first day of the month following the sixty (60) day notice, at which time penalty and interest accrues under the laws of the State of Texas. F. Reduction in Rollback Tax Rate. 1. If during any year of the period of Abatement any portion of the abated value is added to the current total value of the City, but is not treated as "new property value" (as defined in Section 26.012 (17) of the Texas Tax Code) for the purpose of establishing the "effective maintenance rate" in calculating the "rollback tax rate" under Section 26.04 (c) (2) of the Texas Tax Code and if the City's budget calculations indicate that a tax rate in excess of the "rollback tax rate" is required to fund the operations of the City for the succeeding year, then the City recaptures from the Owner a tax in an amount equal to the lesser of the following: (a) The amount of the taxes abated for that year by the City with respect to the Property. (b) The amount obtained by subtracting the rollback tax rate computed without the abated property value being treated as new property value from the rollback tax rate computed with the abated property value being treated as new property value and multiplying the difference by the total assessed value of the City. 2. If the City has granted an abatement of taxes to more than one taxpayer, then the amount of the recapture calculated under subparagraph (b) above is prorated on the basis of the value of the abatement with respect to each taxpayer. 3. This event does not constitute a "default" under this Agreement, and the sixty (60) day Cure Period provided above does not apply. The recaptured taxes must be paid within thirty (30) days after notice of the rollback in tax rate has been given to the Owner. Penalty and interest do not begin to accrue upon the sum until the first day of the month following the thirty (30) day notice, at which time penalty and interest accrue under the laws of the State of Texas. Page 7 of 15 Cosmopolitan Tax Abatement Agreement 06 18 12 G. Continuation of Tax Lien. 1. The amount of tax abated each year under the terms of this Agreement is secured by a first and prior tax lien, which continue in existence from year to year until the time as this Agreement between the City and Owner is fully performed by Owner, or until all taxes, whether assessed or recaptured, are paid in full. H. City Council Reserves Right to Terminate of Modify Agreement. In the event of any default by Owner, the City Council reserves the right to terminate or modify this Agreement. I. Owner's right to appeal. 1. Owner must be afforded written notice of the default and the opportunity to cure as provided above. 2. If Owner believes the action was improper, Owner may file an appeal in Nueces County district court within sixty (60) days after written notice of the action by the City. 3. Owner shall remit to the City, within the 60-day period, any additional or recaptured taxes levied under the payment provisions of Texas Tax Code § 42.08. 4. If the final determination of the appeal increases Owner's tax liability above the amount paid, Owner shall remit the additional tax under Tax Code § 42.42. 5 If the final determination of the appeal decreases Owner's tax liability, the City will refund the Owner the difference between the amount of tax paid and the amount of tax for which Owner is liable under Tax Code § 42.43. IX. ADMINISTRATION A. Inspections. The Owner shall allow employees and/or representatives of the City to have access to the Property during the term of this Agreement to inspect the Facility to determine compliance with the terms and conditions of this Agreement. All inspections will be made only after the giving of twenty-four (24) hours prior notice, and conducted in the manner as to not unreasonably interfere with the construction or operation of the Facility. All inspections must be made with one or more representatives of the Owner and under Owner's safety standards. B. Appraisals. 1. The Chief Appraiser of the Nueces County Appraisal District annually determines: Page 8 of 15 Cosmopolitan Tax Abatement Agreement 06 18 12 (a) The taxable value of the real and personal property comprising the Property taking into consideration the Abatement provided by this Agreement. (b) The full taxable value without Abatement of the real and personal property comprising the Property. 2. The Chief Appraiser records both the abated taxable value and the full taxable value in the appraisal records. 3. The full taxable value figure listed in the appraisal records is used to compute the amount of abated taxes that are required to be recaptured and paid in the event this Agreement is terminated in a manner that results in recapture. 4. Each year the Owner shall furnish the Chief Appraiser with the information outlined in Chapter 22, Texas Tax Code, as amended, as may be necessary for the administration of the Agreement specified in this Agreement. C. Annual Reports. 1. Owner shall certify to the governing body of the City on or before April 1 each year that the Owner is in compliance with each applicable term of this Agreement. 2. Additionally, during the initial four years of the term of property tax abatement, Owner shall provide to the City an annual report covering those items listed on Schedule I attached to this Agreement in order to document the efforts of the Owner to acquire goods and services on a local basis. 3. The annual report is prepared on a calendar year basis and is submitted to the City no later than ninety (90) days following the end of each the calendar year. 4. Owner will provide a copy of the Application for Tax Abatement Exemption (available on the State of Texas Comptrollers website) to the City. D. Utilization of Local Contractors and Suppliers. Developer agrees to exercise reasonable efforts in utilizing local contractors and suppliers in the construction of the Project, except where not reasonably possible to do so without added expense, substantial inconvenience, or sacrifice in operating efficiency in the normal course of business, with a goal of 50% of the total dollar amount of all construction contracts and supply agreements for elements that are not owner-provided or owner affiliate-provided being paid to local contractors and suppliers. 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. The Developer agrees, during the construction of the Project and for four years after Completion, to maintain written records documenting the efforts Page 9 of 15 Cosmopolitan Tax Abatement Agreement 06 18 12 of the Developer to comply with the Local Requirement, and to provide an annual report to the City Manager or designee, from which the City Manager or designee shall determine if Developer is in compliance with this requirement. Failure to substantially comply with this requirement, in the sole determination of the City Manager or designee, shall be a default hereunder. E. Utilization of Disadvantaged Business Enterprises. Developer agrees to exercise reasonable efforts in utilizing contractors and suppliers that are determined to be disadvantaged business enterprises, including minority business enterprises women- owned business enterprises and historically-underutilized business enterprises, in the construction of elements of the Project that are not owner-provided or owner affiliate- provided. In order to qualify as a business enterprise under this provision, the firm must be certified by the City, the Regional Transportation Authority or another governmental entity in the jurisdiction of the home office of the business as complying with state or federal standards for qualification as such an enterprise. The Developer agrees to a goal of 30% of the total dollar amount of all construction contracts and supply agreements, for elements of the Project that are not owner-provided or owner affiliate- provided, being paid to disadvantaged business enterprises, with a priority made for disadvantaged business enterprises which are local. The Developer agrees, during the construction of the Project and for four years after Completion, to maintain written records documenting the efforts of the Developer to comply with the DBE Requirement, and to provide an annual report to the City Manager or designee, from which the City Manager or designee shall determine if Developer is in compliance with this requirement. Failure to substantially comply with this requirement, in the sole determination of the City Manager or designee, shall be a default hereunder. For the purposes of this section, the term "local" as used to describe contractors and suppliers that are determined to be disadvantaged business enterprises, including minority business enterprises women-owned business enterprises and historically-underutilized business enterprises includes firms, businesses, and persons who reside in or maintain an office within a 50 mile radius of Nueces County. F. Undocumented Workers. [Company] does not and agrees that it will not knowingly employ an undocumented worker. If, after receiving payments under this Agreement, [Company] is convicted of a violation under U.S.C. Section 1324a(f), [Company] 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 [Company] has been notified of the violation. X. ASSIGNMENT A. The Owner may assign this Agreement to any one or more corporation(s), 50% or more of the outstanding voting securities of which are owned, directly or indirectly, by one of the Owners, or any partnership(s) or limited partnership(s) in which an Owner, or a subsidiary of an Owner, is a general partner. Page 10 of 15 Cosmopolitan Tax Abatement Agreement 06 18 12 B. The Owner may assign this Agreement to any other new owner or lessee of the Facility with the prior written consent of the City, which consent may not be unreasonably withheld. C. Any assignment must provide that the assignee shall irrevocably and unconditionally assume all the duties and obligations of the assignor and become the Owner upon the same terms and conditions as set out in this Agreement. D. In the event more than one entity is Owner under this Agreement, the obligations of the entities is joint and several. E. Any assignment of this Agreement is to an entity that must provide substantially the same improvements to the Property, except to the extent the improvements have been completed. F. No assignment is approved if the Owner or any assignee is indebted to the City for ad valorem taxes or other obligations. I. NOTICES A. Any notice required to be given under the provisions of this Agreement must be in writing and is duly served when deposited, with the proper postage prepaid, and registered or certified, return receipt requested, with the United States Postal Service, addressed to the City or Owner at the addresses listed below. B. If mailed, any notice or communication is deemed to be received three days after the date of deposit in the United States Mail. Unless otherwise provided in tis Agreement, all notices are delivered to the following addresses: To the City: To the Owner: CITY OF CORPUS CHRISTI 1201 Leopard Street P. 0. Box 9277 Corpus Christi, Texas 78469 Attn: City Manager Cosmopolitan Corpus, Ltd 1101 South Capital of Texas Highway Suite F200 Austin, Texas 78743 C. Either party may designate a different address by giving the other party ten days written notice. This Agreement has been executed by the parties in multiple originals or counterparts, each having full force and effect. Executed this day of , 2012. ATTEST: CITY OF CORPUS CHRISTI, TEXAS Page 11 of 15 Cosmopolitan Tax Abatement Agreement 06 18 12 By: By: Armando Chapa City Secretary City Manager OWNER: By: 010 Corpus, Ltd Rick J. De se Managing eneral Partner Cosmopolitan Corpus, Ltd STATE OF TEXAS § § COUNTY OF-VANAS § ACKNOWLEDGMENT KNOW ALL BY THESE PRESENTS This instrument was acknowledged before me on t , 2012, by Rick J. Deyoe, President, Cosmopolitan Corpus, a Texas domestic for profit limited partnership, on behalf of the partnership. jtli GONZALEZ Notary PoOrc. Stater of Texas My Cornir.tion Expires July 30, 01 Cosmopolitan Tax Abatement Agreerneflt 06 18 12 NO Y PUB IC, S ate o State] Page '12 of 15 SCHEDULE 1 "Buy Local" Annual Reports The following information is reported to the City on a calendar-year basis during the first four years of the tax abatement program: 1. Dollar amount spent for materials* (local). 2. Dollar amount spent for materials (total). 3. Dollar amount spent for labor** (local). 4. Dollar amount spent for labor** (total). 5. Number of jobs created in the construction project (local). 6. Number of jobs created in the construction project (total), 7. Number of jobs created on a permanent basis (local). 8. Number of jobs created on a permanent basis (total). * "Materials" are defined to include all materials used in excavation, site improvement, demolition, concrete, structural steel, fire proofing, piping, electrical, instruments, paintings and scaffolding, insulation, temporary construction facilities, supplies, equipment rental in construction, small tools and consumables. This term does not include major items of machinery and equipment not readily-available locally. ' 'tabor" is defined to include all labor in connection with the excavation, site improvement, demolition, concrete construction, structural steel, fire proofing, equipment placement, piping, electrical, instruments, painting and scaffolding, insulation, construction services, craft benefits, payroll burdens, and related labor expenses. This term does not include engineering services in connection with the project design. The term "local" as used to describe manufacturers, suppliers, contractors and labor shall include firms, businesses, and persons who reside within a 50 mile radius of Nueces County. Page 13 of 15 Cosmopolitan Tax Abatement Agreernent 06 18 12 Exhibit A Project Plan The Cosmopolitan of Corpus Christi, when completed will be comprised of 130 multifamily apartment units and +1 - 10,000 sq. ft. of retail space. The project will be marketed to families and individuals that enjoy downtown living. The site is approximately 56,000 sq.ft. (almost a complete city block) and is located alone Chaparral, Lawrence, and Mesquite streets. The unit mix will consist of 60 one-bedroom/one bathroom units which range from 675 sf. to 925 sf. and 70 two-bedroom/two bathroom units which range from 1,025 sf to 1,270 sf. The proposed rents for each unit type will range from $925 to $1,195 per month for a one bedroom unit, and from $1,275 to $1,625 for a two bedroom unit. The apartment units are planned to be constructed in a single multi-story building and will be wood frame type V construction over a one story concrete podium which will house parking and the retail space. Exterior walls will be comprised of brick and stucco. There will be a large clubhouse/leasing facility alone with a resort-style swimming pool. Also included will be a media room with audio- visual equipment, a fitness center, executive business center with free computer and internet access and a kitchen for use by staff and residents. Restrooms and changing rooms for the swimming pool and fitness center will also be located within the clubhouse. Other common amenities include barbecue grilles w/ picnic tables, and well landscaped congregation areas. Every apartment home will exceed the requirements for the Energy Star Rating which is not limited to, but includes having energy efficient appliances including, a frost-free refrigerator with icemakers, a self-cleaning oven, a microwave, a dishwasher, and a garbage disposal. All apartment homes have carpet, faux-wood floor, granite countertops, W /D connections, walk-in closets with built in shelving, and energy efficient ceiling fans in the living and bedroom areas. There will be cable, phone and internet connections in the living room and each bedroom. The ceiling heights are currently designed for 9' ft ceilings. The tenants will be responsible for paying their own electricity, water and sewer bills; however the use of energy efficient appliances and emphasis on sustainable construction will greatly reduce their out of pocket expenses. Realtex prides itself in creating communities that are environmentally, physically, economically, socially sustainable, combined with exceptional design. We want to create progressive communities that push the envelope for socially conscious design. From the inception of the project, Realtex Development chooses a particular site for its unique features and prime location. Selecting a site near major employment centers, household necessities and near major transit areas is a vital aspect of site location. In the design stages of the development, Realtex initiates various green features in each development. Page 14 of 15 Cosmopolitan Tax Abatement Agreement Lichtenstein 09 11 2012 EXHIBIT Property Description The Lichtenstein building located at 401 North Chaparral Street. The building consists of 113,580.0 square feet of main area. The restaurant, second floor, and open porch consists of 9,435 square feet. The property is Beach Lot 1A block 12 Page 15 of 15 Cosmopolitan Tax Abatement Agreement Lichtenstein 09 11 2012 AGENDA MEMORANDUM First Reading for the City Council Meeting of October 9, 2012 Second Reading for the City Council Meeting of October 16, 2012 DATE: TO: September 25, 2012 Ronald L. Olson, City Manager FROM: Floyd Simpson, Chief of Police flovdsCa�cctexas. com 886 -2603 Appropriating $430,000 from unreserved fund balance in Crime Control District Fund CAPTION: Ordinance appropriating $430,000 from the unreserved fund balance in No. 9010 Crime Control District Fund for "one- time" expenditures in the FY 2012 -2013 operating budget, and changing the FY 2012 -2013 operating budget adopted by Ordinance No. 029577 by increasing appropriations by $430,000. PURPOSE: On September 19, 2012 the Crime Control Board approved $430,000 for one time expenditures as follows: 1) Replacement tasers for $75,000, 2) Adding five cadets to the January 2013 Police Academy for $145,000, and 3) Police Trainee Intern program for January 2013 Academy for $60,000 and August 2013 Academy for $150,000. BACKGROUND AND FINDINGS: 1. Replacement of 59 Tasers — includes tasers for 20 cadets in January academy and 39 that are out of warranty. 2. The FY2013 General Fund Police budget provides for 15 Police traineess to begin an academy in January, 2013. With the department operating 18 officers short with 7 pending retirements in January, there is a need for additional trainees. The Crime Control District will only pay for the Academy costs associated with the 5 cadets until they graduate in July, at which time they will be transferred to the General Fund. Generally two to three trainees do not graduate from the Academy. 3. The Police Department has expanded the recruiting program to all year round with applications being accepted at any time. The Police Trainee Intern program will allow for the hiring of qualified individuals before an academy begins. Previously applicants were lost to other departments because we could not hire them before an academy began. Once hired, they will be assigned to work in all divisions of the department. A police trainee is classified as a non -sworn position. The "unaudited" fund balance as of 09.26.2012 is $2,807,130.18. Historically the Crime Control District Board approves funds for the purchase of one time items each fiscal year. ALTERNATIVES: None OTHER CONSIDERATIONS: None CONFORMITY TO CITY POLICY: Conforms to City Policy EMERGENCY / NON - EMERGENCY: Non - emergency DEPARTMENTAL CLEARANCES: Legal Finance 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 $430,000 $430,000 BALANCE $430,000 $430,000 Fund(s): 9010 Crime Control and Prevention District Fund RECOMMENDATION: Staff recommends approval of the ordinance. LIST OF SUPPORTING DOCUMENTS: Ordinance Ordinance Appropriating $430,000 from the unreserved fund balance in no. 9010 Crime Control District fund for "one- time" expenditures in the FY 2012 -2013 operating budget; and changing the FY 2012 -2013 operating budget adopted by ordinance 029577 by increasing appropriations by $430,000. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF CORPUS CHRISTI, TEXAS: SECTION 1. That $430,000 is appropriated from the unreserved fund balance in the No. 9010 Crime Control District Fund for "one- time" expenditures in the FY 2012 -2013 operating budget. SECION 2. That the FY 2012 -2013 Operating Budget, adopted by Ordinance No. 029577, is changed by increasing appropriations by $430,000. 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 AGENDA MEMORANDUM First Reading for the City Council Meeting of October 9, 2012 Second Reading for the City Council Meeting of October 16, 2012 DATE: TO: September 18, 2012 Ronald L. Olson, City Manager FROM: Daniel Biles, P.E., Director of Engineering Services DanB @cctexas.com (361) 826 -3729 Michael Morris, Director of Parks and Recreation MI chaelMo@cctexas.com (361) 826-3464 Execute Construction Contract North Beach Entry Development (Bond 2008) Re -Bid CAPTION: Ordinance amending the FY 2013 Capital Improvement Budget adopted by Ordinance No. 029565 to transfer $40,000 in budgeted project savings from the Heritage Park Cultural Center Renovation Project to the North Beach Entry Development Project; increasing expenditures in the amount of $40,000; rescinding the award of the North Beach Entry Development (Bond 2008) Re -Bid contract to Largin Construction Services, LLC. awarded on June 26, 2012 by Motion M2012 -119; and authorizing the City Manager, or designee, to execute a construction contract with Barcom Commercial, Inc. of Corpus Christi, Texas in the amount of $427,609.49 for the North Beach Entry Development (Bond 2008) Re -Bid for the Base Bid. PURPOSE: The purpose of this Agenda Item is to execute the construction contract for the North Beach Entry Development so work may proceed. BACKGROUND AND FINDINGS: This project is a tourist area improvement project which consists of the construction of a new arch entrance on Burleson Street between Timon Boulevard and Surfside Boulevard. The Base Bid includes the entry archway structure spanning over Burleson Street, landscaping and irrigation system installation. Graphics consisting of entry archway letters and images (seahorses, turtles and sandals plaque) will be made of a synthetic material mounted to the wood truss archway. A new 100 -year commemorative bronze plaque for the Texas Section of the American Society of Civil Engineers (ASCE) will be mounted on the north pylon of the archway structure. There were no additive alternates for this project. On April 25, 2012, the City received proposals from three (3) bidders and their respective bids are as follows: Contractor Base Bid Largin Construction Services, LLC. Corpus Christi, TX $404,960.93 Barcom Commercial, Inc. Corpus Christi, TX $427,609.49 SafeNet Services, LLC. Corpus Christi, TX $561,747.81 The City's consultant, Wright Architects, conducted a bid analysis of the three (3) proposals submitted to the City. The lowest bidder was Largin Construction Services, LLC. of Corpus Christi, Texas. On June 26, 2012, the City Council awarded the project to the low bidder, Largin Construction Services, LLC. After the June 26, 2012 award, but before signing the contract, the City received new information that indicates to the City that Largin Construction Services, LLC. is not the lowest responsible bidder. Therefore, Barcom Commercial, Inc. is determined now to be the lowest responsible bidder. ALTERNATIVES: 1. Award the construction contract. 2. Do not execute the construction contract. OTHER CONSIDERATIONS: This project was approved by the voters in the November 2008 bond election to improve existing conditions on North Beach resulting in a safer, more welcoming area. The project was initially bid in September 2010 with the sidewalk improvements project; however, because of performance issues with the contractor, the archway portion was rebid separately. Engineering staff is also currently evaluating options and associated costs for installing lights on the archway. CONFORMITY TO CITY POLICY: Conforms to statues regarding bid process; Bond Issue 2008; FY 2012 -2013 Parks and Recreation Capital Improvement Planning (CIP) Budget. EMERGENCY / NON - EMERGENCY: Non - emergency DEPARTMENTAL CLEARANCES: Parks and Recreation 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 $200,100.00 $465,153.51 $0.00 $665,253.51 Encumbered / Expended Amount $200,100.00 $200,100.00 This item $427,609.49 $427,609.49 Future Anticipated Expenditures $36,816.10 $36,816.10 BALANCE $0.00 727.92 $727.92 Fund(s): Parks and Recreation CIP #12 Comments: This project requires 120 calendar days with anticipated completion approximately March 2013. RECOMMENDATION: City staff recommends amending the FY 2013 Capital Improvement Budget adopted by Ordinance No. 029565 to transfer $40,000 in budgeted project savings from the Heritage Park Cultural Center Renovation Project to the North Beach Entry Development Project; increasing expenditures in the amount of $40,000; rescinding the award of the North Beach Entry Development (Bond 2008) Re -Bid contract to Largin Construction Services, LLC. awarded on June 26, 2012 by Motion M2012 -119; and recommends approval of a construction contract with Barcom Commercial, Inc. of Corpus Christi, Texas in the amount of $427,609.49 for the North Beach Entry Development (Bond 2008) Re -Bid for the Base Bid. LIST OF SUPPORTING DOCUMENTS: Project Budget Location Map Ordinance PROJECT BUDGET North Beach Entry Development (Bond 2008) Re -Bid Future Item for the City Council Meeting of October 9, 2012 Action Item for the City Council Meeting of October 16, 2012 FUNDS AVAILABLE: North Beach Entry Development Project Ordinance Amending 2011 -2012 Capital Budget* Ordinance Amending 2012 -2013 Capital Budget FUNDS REQUIRED: Construction (Barcom Commercial, Inc.) Contingencies (10 %) Consultant Fees: Consultant (Wright Architects) Consultant (Blue Bay Construction) Materials Testing (Rock Engineering) Materials Testing (Arias & Associates) Windstorm Certifications (HNS Engineering) $200,100.00 $425,153.51 $40,000.00 $665,253.51 427,609.49 42,760.95 44,132.00 33,149.15 5,696.50 3,900.00 3,750.00 Reimbursements: Contract Administration (Contract Preparation /Award /Admin) 12,621.00 Engineering Services (Project Mgt /Constr Mgt/Traffic Mgt) 68,457.00 Construction Inspection 14,966.33 Finance 5,345.12 Misc. (Printing, Advertising, etc.) 2,138.05 TOTAL $ 664,525.59 ESTIMATED PROJECT BUDGET BALANCE $727.92 * Amendment to Capital Budget approved on June 26, 2012 by Ordinance No. 029543 File : \ Mproject \councilexhibits \exh3394.dwg NUEC2S By HWY 44 AGNES PROJECT LOCATION CORPUS CHRISTI INTERNATIONAL AIRPORT McGLOIN RD W POINT CORPUS CHRISTI B.Ay LOCATION MAP NOT TO SCALE MARKET ST Q ,�. P CORPUS CHRISTI RA I] PROJECT #3394 SITE PLAN NOT TO SCALE NORTH BEACH ENTRY DEVELOPMENT CITY COUNCIL EXHIBIT CITY OF CORPUS CHRISTI, TEXAS DEPARTMENT OF ENGINEERING SERVICES PAGE: 1 of 1 Page 1 of 2 Ordinance amending the FY 2013 Capital Improvement Budget adopted by Ordinance No. 029565 to transfer $40,000 in budgeted project savings from the Heritage Park Cultural Center Renovation Project to the North Beach Entry Development Project; increasing expenditures in the amount of $40,000; rescinding the award of the North Beach Entry Development (Bond 2008) Re -Bid contract to Largin Construction Services, LLC. awarded on June 26, 2012 by Motion M2012 -119; and authorizing the City Manager, or designee, to execute a construction contract with Barcom Commercial, Inc. of Corpus Christi, Texas in the amount of $427,609.49 for the North Beach Entry Development (Bond 2008) Re -Bid for the Base Bid. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF CORPUS CHRISTI, TEXAS: Section 1. The FY 2013 Capital Improvement Budget adopted by Ordinance No. 029565 is amended to transfer a total of $40,000 in budgeted project savings from the Heritage Park Cultural Center Renovation Project to the North Beach (CC Beach) Entry Development Project. Section 2. The FY 2013 Capital Improvement Budget adopted by Ordinance No. 029135 is amended to increase expenditures by $40,000. Section 3. The award of the North Beach Entry Development Contract to Largin Construction by Motion M212 -119 is rescinded. Section 4. The City Manager, or designee, is authorized to execute a construction contract with Barcom Commercial, Inc. of Corpus Christi, Texas in the amount of $427,609.49 for the North Beach Entry Development. ATTEST: CITY OF CORPUS CHRISTI Armando Chapa City Secretary Joe Adame Mayor Page 2 of 2 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, Sr. 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, Sr. Mark Scott Priscilla G. Leal PASSED AND APPROVED on this the day of , 2012. ATTEST: CITY OF CORPUS CHRISTI Armando Chapa Joe Adame City Secretary Mayor AGENDA MEMORANDUM Future Item for the City Council Meeting of October 9, 2012 Action Item for the City Council Meeting of October 16, 2012 DATE: 10/9/2012 TO: Ronald L. Olson, City Manager FROM: Michael Barrera, Assistant Director of Financial Services m ikeb(a�cctexas. com 361- 826 -3169 Foster Crowell, Director of Wastewater Operations fosterc@cctexas.com 361- 826 -1801 Liquid Waste /Sludge Hauling CAPTION: Motion approving a service agreement with Stump Enterprises, LLC, Rockport, Texas for the hauling of liquid waste and sludge in accordance with Bid Invitation No. BI- 0201 -12, based on lowest responsible bid, for an estimated annual expenditure of $86,250 of which $71,875 is required for the remainder of FY 2012 -2013. The term of the contract shall be for twelve months with an option 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 the Wastewater Department in FY 2012- 2013. PURPOSE: This service agreement will be used by the Wastewater Department to transport liquid waste and sludge from the Oso Wastewater Treatment Plant to the Greenwood Wastewater Treatment Plant. BACKGROUND AND FINDINGS: The Oso Wastewater Treatment Plant is currently under construction to build a sludge biosolids handling facility. This contract will be utilized to transport biosolids to the Greenwood Wastewater Treatment Plant where the sludge will be treated and disposed of in accordance with regulatory requirements. ALTERNATIVES: Not applicable. OTHER CONSIDERATIONS: Not applicable. CONFORMITY TO CITY POLICY: This supply agreement conforms to all City purchasing policies and procedures and State statutes regulating procurement. EMERGENCY / NON-EMERGENCY: Not applicable. DEPARTMENTAL CLEARANCES: Wastewater Department FINANCIAL IMPACT: Fiscal Year: 2012 -2013 Project to Date Expenditures (CIP only) Current Year Future Years TOTALS Line Item Budget $100,000.00 $14,375.00 $114,375.00 Encumbered / Expended Amount $0.00 $0.00 This item $71,875.00 $14,375.00 $86,250.00 BALANCE $28,125.00 $28,125.00 Fund(s): Current year: Wastewater Department Comments: RECOMMENDATION: Staff recommends approval of the motion as presented. LIST OF SUPPORTING DOCUMENTS: Bid Tabulation CITY OF CORPUS CHRISTI PURCHASING DIVISION SENIOR BUYER: GABRIEL MALDONADO DATE: OCTOBER 9, 2012 LIQUID WASTE /SLUDGE HAULING BID TABULATION SHEET - BI- 0201 -12 STUMP ENTERPRISES LLC LIQUID ENVIRONMENTAL SOLUTION OF TEXAS LLC ROCKPORT, TEXAS DALLAS, TEXAS ITEM DESCRIPTION QTY UNIT UNIT EXTENDED PRICE PRICE UNIT EXTENDED PRICE PRICE 1 Liquid Waste /Sludge Hauling TOTAL 2,300,000 GALLONS $0.0375 $86,250.00 $86,250.00 $0.12 $276,000.00 $276,000.00 UID WASTE/SLUDGE HAULING SERVICE AGREEMENT Service Agree Agreemeut No THIS Li uid Waste/Slud aul° Service A e (this "Agreement") is entered into by and between (the "Contractor") and the City of Corpus Christi, a Texas home-rule municipal corporation (the "City"), by and through its duly authorized City Manager or designee ("City Manager'), effective for all p ses upon execution by the City Manager or designee. EREAS Contractor has proposed to provide Liquid Waste/Sludge Hauling Service in response to Bid Invitation No BI-0201-12 (which includes Specification 1249, dated 02/24/12) which is incorporated and attached as Exhibit A; EREAS the City has determined Contractor to be the lowest responsible bidder; NOW, THEREFORE, Contractor and City enter into this Agreement and agree as follows: 1, Services, Contractor will provide Liquid Waste/Sludge Hauling Service in accordance with Bid Invitation No BI-0201-12 (which includes Specification 1249, dated 02/24/12). 2. Term, This Agreement is for twelve (12) months commencing on and continuing through . The term includes an option to extend for up to two additional twelve-month periods subject to the approval of the Contractor and the City Manager. 3. Contract Administrator, The Contract Administrator designated by the City is responsible for approval of all phases of perfo ance and operations under this Agreement including deductions for non-performance and authorizations for payment. All of the Contractor's notices or communications regarding this Agreement must be directed to the Contract Administrator, who is the Director of Wastewater Department or designee. 4. Independent Contractor. Contractor will perform the services hereunder as an independent contractor and will hrnish such services in its own nrer and method, and under no circumstances or conditions may any agent, servant or employee of the Contractor be considered an employee of the City. 5. Insurance, Before activities can begin under this Agreement, the Contractor's insurance company(ies) must deliver a Certificate of Insurance, as proof of the required insurance coverages and the perfo rmance bond to the Contract Administrator. Additionally, the Certificate must state that the Director of Wastewater Department or designee will be given at least thirty (30) days' notice, by certified mail, of cancellation, material change in the coverages or intent not to renew any of the policies. The City must be named as an Additional Insured. The City Attorney must be given copies of all insurance policies within 15 days of the City Manager's written request. 6. Assignment. No assig ent of this Agreement or any right or interest therein by the Contractor is effective unless the City first gives its tten consent to such assig ent. The performance of this Agreement by the Contractor is of the essence of this Agreement and the City's right to withhold consent to such assignment is within the sole discretion of the City on any ground whatsoever. 7. Fiscal Year. All parties recognize that the continuation of any contract after the close of any fiscal year of the City (the City's fiscal year ends on July 315), is subject to appropriations and budget approval providing for covering such contract item as an expenditure in said budget. The City does not represent that said budget item will be actually adopted as that dete illation is within the sole discretion of the City Council at the time of adoption of each budget. 8. Waiver. No waiver of any breach of any te or condition of this Agreement, or Bid Invitation No. 81-020142 (which includes Specification 1249, dated 02/24/12), or the Contractor's bid offer to Bid Invitation No. BI-020142 waives any subsequent breach of the same. 9. Compliance with Laws. This Agreement is subject to all applicable federal. state and local laws. All duties of the parties will be performed in the City of Corpus Christi, Texas. The applicable law for any legal disputes arising out of this Agreement is the law of Texas and such form and venue for such disputes is the appropriate district, county or justice court in and for Nueces County, Texas. 10. Subcontractors. The Contractor may use subcontractors in connection with the work performed under this Agreement. When using subcontractors, however, the Contractor must obtain prior written approval from the Director of Wastewater Department or designee. In using subcontractors, the Contractor is responsible for all their acts and omissions to the s e extent as if the subcontractor and its employees were employees of the Contractor. Al! requirements set forth as part of this Agreement are applicable to all subcontractors and their employees to the e extent as if the Contractor and its employees had performed the services. 11. Amendments, This Agreement may be amended only by ten Agreement duly authorized by the parties hereto and signed by the parties. 12. Termination, The City Manager may terminate this Agreement for Contractor's failure to perform the services specified in Bid Invitation No. BI-020142 (which includes Specification 1249, dated 02/24/12). Failure to keep all ins .nce policies and perfo ance bonds in force for the entire term of this Agreement is grounds for te ination. The Contract Administrator must give the Contractor written notice of the breach and set out a reasonable opportunity to cure. If the Contractor has not cured within the cure period, the City Manager may te inate this Agreement • ediately thereafter. Alternatively, the City may terminate this Agreement upon twenty (20) days' written notice to the Contractor. However, the City may terminate this Agreement on twenty-four (24) hours' written notice to the Contractor for failure to pay or provide proof of payment of taxes as set out herein. 13. Taxes. The Contractor covenants to pay payroll taxes, Medicare taxes, FICA taxes, unemployment taxes and all other related taxes according to Circular E Employer's Tax Guide, Publication 15, as it may be amended. Upon his request, the City Manager shall be provided proof of payment of these taxes within fifteen (15) days of such request. The Contractor may terminate this Agreement upon ninety (90) days' 'tten notice to the City. 14. Drug Policy. The Contractor rrtust adopt a Drug Free Workplace policy, 15. Violence Policy. The Contractor must adopt a Violence in the Workplace policy. 16. Notice. Notice may be given by fax, hand delivery or certified mail, postage prepaid, and is received on the day faxed or hand - delivered and on the third day after deposit in the U.S. mail if sent certified mail. Notice shall be sent as follows :: IF TO CITY: City of Corpus Christi Attention: Director of Wastewater Dep ent P.O. Box 9277 Corpus Christi, Texas 78469 -9277 IF TO CONTRACTOR: Contractor Contact Address: City, State, Stump Enterprises LLC Marvin Stum 313. E. Sagebrush Rockort TX 78382 17. Month-to-Month Extension. If the City has not completed the procurement process and awarded a new Agreement upon expiration of the original contract period or any extension period, the Contractor shall continue to provide goods /services under this Agreement, at the most c ent price under the terms of this Agreement or extension, on a month -to -month basis, not to exceed six months. This Agreement automatically expires on the effective date of a new contract. 18. Severab city. Each provision of the Agreement shall be considered to be severable and, if; for any reason, any such provision or any part thereof, is dete : .ined to be invalid and contrary to any existing or future applicable law, such invalidity shall not impair the operation of or affect those portions of this Agreement that are valid, but this Agreement shall be construed and enforced in all respects as if the invalid or unenforceable provision or part thereof had been omitted. 19. INDEMNIFICATION. CONT CTOR SHALL INDEMNIFY, HOLD LESS AND DEFEND THE CITY OF CORPUS CHRISTI AND ITS OFFICERS, OYEES AND AGENTS ( "INDEMNITEES ") FROM AND AGAINST ANY AND ALL LIABILITY, LOSS, CLAIMS, DEMANDS, SUITS AND CAUSES OF ACTION OF A NATURE ON ACCOUNT OF DEATH, PERSONAL IN; ES, PROPERTY LOSS OR DAMAGE OR ANY OTHER KIND OF D AGE, INCLUDING ALL EXPENSES OF LITIGATION, COURT COSTS, ATTORNEYS' FEES AND EXPERT WITNESS FEES WHICH ARISE OR ARE CLAIMED TO ARISE OUT OF OR IN CO_ ECTION WITH THIS AGREEMENT OR THE PERFO " s,i u 1 OF THIS AGREEMENT, REGARDLESS OF ETHER THE INJURIES, DEATH OR DAMAGES CAUSED CLAIMED T. BE CAUSED BY THE CONCURRENT NT I UT NEGLIGENCE INDEMNITEES, BUT NOT BY THE SOLE NEGLIGENCE OF INDEMNITEES UNMIXED WITH THE FAULT OF ANY OTHER PELSON OR GROUP. CONTRACTOR. MUST, AT ITS © EXPENSE, INVESTIGATE LL CLAIMS AND DEMANDS, ATTEND THEIR SETTLEMENT OR OTHER DISPOSITION, DEFEND ALL ACTIONS BASED THEREON WITH COUNSEL ,S N .B. Y SATISFACTORY TO IN DE !TEES S AN , Y ALL C RGES OF ATTORNEYS AND T 1 COSTS AND EXPENSES OF A KIND ARISING FROM ANY OF SAID LIABILITY, DAMAGE, LOSS, CLAIMS, DEMANDS OR ACTIONS. THE INDEMNIFICATION LI. NS OF CONTRACTOR UNDER THIS SECTION SHALL SURVIVE TIIE TI ON OR SOONER TERMINATION ' 'T THIS AGREEMENT. SINED this day of CITY OF CORPUS CI-RISTI ( "CITY ") Michael B era Date Assistant Director of Financial. Services Incorporated by Reference: Exhibit A: Bid Invitation No. BI- O2O1 -12 Exhibit B: Bidder's Bid Contractor Ma in Stu Title: Owner AGENDA MEMORANDUM Future Item for the City Council Meeting of October 9, 2012 Action Item for the City Council Meeting of October 16, 2012 DATE: TO: October 9, 2012 Ronald L. Olson, City Manager FROM: Michael Barrera, Assistant Director of Financial Services mikeb(c�cctexas.com (361) 826 -3169 Dan Biles, Director of Engineering Services danb(c�cctexas.com (361) 826-3729 Traffic Sign Blanks, Sheeting /Roll Goods, Traffic Sign Posts /Anchors CAPTION: Motion approving supply agreements with the following companies in the following amounts for traffic sign blanks, sheeting /roll goods, and traffic sign posts /anchors in accordance with Bid Invitation No. BI- 0216 -12, based on lowest responsible bidder, for an estimated annual expenditure of $146,232.89 of which $121,860.74 is required for the remainder of FY 2012- 2013. The terms of the agreements shall be for twelve (12) months with options to extend for up to two (2) additional twelve -month periods, subject to the approval of the suppliers and the City Manager or designee. Funds have been budgeted by Traffic Engineering in FY 2012- 2013. Allied Tube & Conduit Corp. Harvey, Illinois Group I $42,644.00 Total: $146,232.89 Vulcan Signs Foley, Alabama Groups II & III $103,588.89 PURPOSE: This supply agreement will be utilized by Traffic Engineering's traffic sign manufacturing and installation program. BACKGROUND AND FINDINGS: All extensions to the previous supply agreements have been exercised, thus requiring the City to issue a new Bid Invitation. Specifications and estimated quantities were developed in cooperation with Traffic Engineering. ALTERNATIVES: Not applicable. OTHER CONSIDERATIONS: Pathmark Traffic Products of Texas submitted an incomplete bid. When comparing like items, the bid from Allied Tube & Conduit Corp. was $3,982.50 lower for Group I items and the bid from Vulcan Signs was $8,016.00 lower for Group 11 items. CONFORMITY TO CITY POLICY: This purchase conforms to the City's purchasing policies and procedures and State statutes regulating procurement. EMERGENCY / NON - EMERGENCY: Non - emergency. DEPARTMENTAL CLEARANCES: Traffic Engineering FINANCIAL IMPACT: x Operating ❑ Revenue ❑ Capital ❑ Not applicable Fiscal Year: 2012- 2013 Project to Date Expenditures (CIP only) Current Year Future Years TOTALS Line Item Budget $175,000.00 $24,372.15 $199,372.15 Encumbered / Expended Amount $36,733.20 0 $36,733.20 This item $121,860.74 $24,372.15 $146,232.89 BALANCE $16,406.06 $16,406.06 Fund(s): Street Fund Comments: RECOMMENDATION: Staff recommends approval of the motion as presented. LIST OF SUPPORTING DOCUMENTS: Bid Tabulation CITY OF CORPUS CHRISTI PURCHASING DIVISION BUYER: GERALD GOODWIN BID TABULATION BID INVITATION NO. BI- 0216 -12 TRAFFIC SIGN BLANKS, SHEETING /ROLL GOODS, POSTS /ANCHORS GROUP 1 ALLIED TUBE & CONDUIT CORP. Harvey, IL VULCAN SIGNS Foley, AL 3M CO. St. Paul MN PATHMARK TRAFFIC PRODUCTS OF TX San Marcos, TX US STANDARD SIGN Franklin Park, IL AMERICAN SIGNAL San Antonio, TX ITEM DESCRIPTION QTY UNIT UNIT PRICE EXTENDED PRICE UNIT PRICE EXTENDED PRICE UNIT PRICE EXTENDED PRICE UNIT PRICE EXTENDED PRICE UNIT EXTENDED PRICE PRICE UNIT PRICE EXTENDED PRICE 1.0 TRAFFIC SIGN POSTS Items include sign posts and anchor systems in various sizes and hardware. 3550 EA NO BID $42,644.00 $46,341.50 $53,222.00 NO BID $40,967.50 INCOMPLETE BID (1) NO BID $64,859.00 $77,259.00 GROUP 2 ALLIED TUBE & CONDUIT CORP. Harvey, IL VULCAN SIGNS Foley, AL 3M CO. St. Paul MN PATHMARK TRAFFIC PRODUCTS OF San Marcos, TX US STANDARD SIGN Franklin Park, IL AMERICAN SIGNAL San Antonio, TX ITEM DESCRIPTION QTY UNIT UNIT PRICE EXTENDED PRICE UNIT PRICE EXTENDED PRICE UNIT I EXTENDED PRICE PRICE UNIT PRICE EXTENDED PRICE UNIT PRICE EXTENDED PRICE UNIT PRICE EXTENDED PRICE 2.0 TRAFFIC SIGN BLANKS Items include aluminum and extruded aluminum sign blanks in various sizes. 4800 EA ROLLS NO BID NO BID $46,341.50 NO BID $37,157.00 INCOMPLETE BID (1) $49,939.00 NO BID $64,859.00 GROUP 3 ALLIED TUBE & CONDUIT CORP. Harvey, IL VULCAN SIGNS Foley, AL 3M CO. St. Paul MN PATHMARK TRAFFIC PRODUCTS OF San Marcos, TX US STANDARD SIGN Franklin Park, IL AMERICAN SIGNAL San Antonio, TX ITEM DESCRIPTION QTY UNIT UNIT PRICE EXTENDED PRICE UNIT PRICE EXTENDED PRICE UNIT PRICE EXTENDED PRICE UNIT PRICE EXTENDED PRICE UNIT EXTENDED PRICE PRICE UNIT PRICE EXTENDED PRICE 3.0 TRAFFIC SIGN SHEETING /ROLL GOODS Items include reflective and /or pressure sensitive metal sheeting and application tape in various sizes, and protective film. 289 ROLLS NO BID $57,247.39 $70,915.39 NO BID NO BID NO BID TOTAL AWARD $42,644.00 $103,588.89 (1) Pathmark Traffic Products of Texas submitted an incomplete bid. When comparing like items, the bid from Allied Tube & Conduit Corp. was $3,982.50 lower for GrouD I items and the bid from Vulcan Sians was $8.016.00 lower for GrouD I I items. Page 1 oft DATE: TO: Ronald L. Olson, City Manager AGENDA MEMORANDUM Future Item for the City Council Meeting of October 9, 2012 Action Item for the City Council Meeting of October 16, 2012 10/9/2012 FROM: Michael Barrera, Assistant Director of Financial Services m ikeb(a)cctexas. com 361- 826 -3169 Gustavo Gonzalez, Director of Water Operations qustavogo(c�cctexas. com 361- 826 -1874 Furniture CAPTION: Motion approving the purchase of furniture for the O.N. Stevens Facility Alteration Project from Business Interiors by Staples, Houston, Texas in the amount of $98,422.94. The award is in accordance with the State's Cooperative Purchasing Program (TXMAS). Funds are available in the Water Department Fund No. 4088 - 2012 Capital Improvement Program (CIP) Fund. PURPOSE: The Water Department has converted the vacant control center at the O.N. Stevens Water Plant into offices, thus necessitating the requirement for the furniture recommended herein. BACKGROUND AND FINDINGS: The O.N. Stevens Facility Alteration project relocates the existing administrative and operational spaces at the O. N. Stevens Water Treatment Plant to an area away from the chemical storage tanks. The furniture consists of modular office desks, tables, chairs, lateral files and bookcases. ALTERNATIVES: Not applicable. OTHER CONSIDERATIONS: Not applicable. CONFORMITY TO CITY POLICY: This purchase conforms to the City's purchasing policies and procedures and Texas State procurement laws. EMERGENCY / NON - EMERGENCY: Non - Emergency DEPARTMENTAL CLEARANCES: Water Department FINANCIAL IMPACT: Fiscal Year: 2012 -2013 Project to Date Expenditures (CIP only) Current Year Future Years TOTALS Line Item Budget $1,131,200.00 $3,469,600.00 $4,600,800.00 Encumbered / Expended Amount $1,131,200.00 $3,172,000.00 $4,303,200.00 This item $98,422.94 $98,422.94 BALANCE $0.00 $199,177.06 $199,177.06 Fund(s): Water Department Capital Funds; CIP Project Water #04 Comments: Not applicable. RECOMMENDATION: Staff recommends approval of the motion as presented. LIST OF SUPPORTING DOCUMENTS: Price Sheet CITY OF CORPUS CHRISTI PRICE SHEET PURCHASING DIVISION TXMAS- 9- 71I030 BUYER: GABRIEL MALDONADO TXMAS -11 -71050 DATE: OCTOBER 9, 2012 PURCHASE OF FURNITURE ITEM NO. DESCRIPTION Business Interiors by Staples Houston, Texas TOTAL PRICE 1.0 MODULAR RECEPTION DESKS, OFFICE DESKS, MODULAR CONTROL DESK, CREDENZAS 2.0 CONFERNCE TABLES, KITCHEN TABLES TRAINING TABLES & END TABLES 3.0 KITCHEN CHAIRS, OFFICE CHAIRS, RECEPTION CHAIRS, TRAINGING CHAIRS, SOFA & STOOLS. 4.0 LATERAL FILES, BOOK CASES, CREDENZA, MARKER BOARDS, AND PODIUM. 5.0 SPACE PLANNING, RECEIVING, INSTALLATION AND TRASH REMOVAL $15,905.34 $21,162.67 $28,938.32 $19,913.61 $12,503.00 AWARD TOTAL: $98,422.94 AGENDA MEMORANDUM Future Item for the City Council Meeting of October 9, 2012 Action Item for the City Council Meeting of October 16, 2012 DATE: TO: October 9, 2012 Ronald L. Olson, City Manager FROM: Michael Barrera, Assistant Director of Financial Services mikeb(a�cctexas.com (361) 826 -3169 Valerie H. Gray, Director of Storm Water and Street Operations valerieq(a� cctexas. com (361) 826 -1875 Lawrence Mikolajczyk, Director of Solid Waste Operations lawm (a�cctexas. com (361) 826 -1972 Gustavo Gonzalez, Director of Water Operations q ustavoq o(c� cctexas. com (361) 826 -1874 Dump Truck Hauling CAPTION: Motion approving a service agreement with Tahoe Trucking, Inc., Corpus Christi, Texas for dump truck hauling in accordance with Bid Invitation No. BI- 0217 -12, based on only bid, for an estimated annual expenditure of $270,000.00 of which $225,000.00 is required for the remainder of FY 2012 -2013. The term of the agreement shall be for twelve (12) months with options to extend for up to two (2) additional twelve -month periods, subject to the approval of the supplier and the City Manager or designee. Funds have been budgeted by the Water, Storm Water, Street Operations and Solid Waste Operations Departments in FY 2012 -2013. PURPOSE: This service agreement will be utilized by City Departments to haul dirt, concrete and miscellaneous materials (brush, sand, gravel, wet dirt, etc.) from various locations throughout the City to the J. C. Elliott Transfer Station or other designated areas. Contractor will be called each day for the number of dump trucks needed for the following day. BACKGROUND AND FINDINGS: Currently, the various City Departments are obtaining bids each week on the open market for this service. This service agreement will alleviate the bidding administration requirements and City Departments will be able to order at the contract price on an as- needed basis. ALTERNATIVES: Not applicable. OTHER CONSIDERATIONS: Not applicable. CONFORMITY TO CITY POLICY: This purchase conforms to the City's purchasing policies and procedures and State statutes regulating procurement. EMERGENCY / NON - EMERGENCY: Non - emergency. DEPARTMENTAL CLEARANCES: Water Department, Storm Water Department, Street Operations, Solid Waste Operations FINANCIAL IMPACT: V Operating ❑ Revenue ❑ Capital ❑ Not applicable Fiscal Year: 2012- 2013 Project to Date Expenditures (CIP only) Current Year Future Years TOTALS Line Item Budget $4,557,704.11 $45,000.00 $4,602,704.11 Encumbered / Expended Amount $0 $0 $0 This item $225,000.00 $45,000.00 $270,000.00 BALANCE $4,332,704.11 $4,332,704.11 Fund(s): Water Fund, Storm Water Fund, Street Fund, General Fund Comments: RECOMMENDATION: Staff recommends approval of the motion as presented. LIST OF SUPPORTING DOCUMENTS: Bid Tabulation CITY OF CORPUS CHRISTI PURCHASING DIVISION BUYER: GERALD GOODWIN ITEM DESCRIPTION QTY. UNIT BID TABULATION BID INVITATION NO. BI- 0217 -12 DUMP TRUCK HAULING SERVICE MONTHS TAHOE TRUCKING, INC. CORPUS CHRISTI, TEXAS UNIT PRICE ANNUAL COST 1 Rental of 12 -14 cubic yard tandem dump trucks to haul dirt, concrete, and miscellaneous materials from vaious locations throughout the City to the J.C. Elliott Transfer Station or other designated areas 300 Hours 12 $75 $270, 000 $270,000 DUMP TRUCK HAULING SERVICE AGREEMENT Service Agreement No. THIS Dump Truck Hauling Service Agreement (this "Agreement ") is entered into by and between Tahoe Trucking, Inc. (the "Contractor ") and the City of Corpus Christi, a Texas home -rule municipal corporation (the "City "), by and through its duly authorized City Manager or designee ( "City Manager'), effective for all purposes upon execution by the City Manager. WHEREAS Contractor has proposed to provide Dump Truck Hauling Service in response to Bid Invitation No. BI- 0217 -12 (which includes Specification 1237, dated 03/07/11) which is incorporated and attached as Exhibit A; WHEREAS the City has determined Contractor to be the lowest responsible bidder; NOW, THEREFORE, Contractor and City enter into this Agreement and agree as follows: 1. Services. Contractor will provide Dump Truck HaulingService in accordance with Bid Invitation No. BI- 0217 -12 (which includes Specification 1237, dated 03/07/11). 2. Term. This Agreement is for twelve (12) months commencing on and continuing through . The term includes an option to extend for up to two additional twelve -month periods subject to the approval of the Contractor and the City Manager. 3. Contract Administrator. The Contract Administrator designated by the City is responsible for approval of all phases of performance and operations under this Agreement including deductions for nonperformance and authorizations for payment. All of the Contractor's notices or communications regarding this Agreement must be directed to the Contract Administrator, who is the Storm Water Contract Administrator. 4. Independent Contractor. Contractor will perform the services hereunder as an independent contractor and will furnish such services in its own manner and method, and under no circumstances or conditions may any agent, servant or employee of the Contractor be considered an employee of the City. 5. Insurance. Before activities can begin under this Agreement, the Contractor's insurance company(ies) must deliver a Certificate of Insurance, as proof of the required insurance coverages, to the Contract Administrator. Additionally, the Certificate must state that the Storm Water Contract Administrator will be given at least thirty (30) days' notice, by certified mail, of cancellation, material change in the coverages or intent not to renew any of the policies. The City must be named as an Additional Insured. The City Attorney must be given copies of all insurance policies within 15 days of the City Manager's written request. 6. Assignment. No assignment of this Agreement or any right or interest therein by the Contractor is effective unless the City first gives its written consent to such assignment. The City's right to withhold consent to such assignment is within the sole discretion of the City on any ground whatsoever. 7. Fiscal Year. All parties recognize that the continuation of any contract after the close of any fiscal year of the City (the City's fiscal year ends on July 318), is subject to appropriations and budget approval providing for covering such contract item as an expenditure in said budget. The City does not represent that said budget item will be actually adopted as that determination is within the sole discretion of the City Council at the time of adoption of each budget. 8. Waiver. No waiver of any breach of any term or condition of this Agreement, or Bid Invitation No. BI- 0217 -12 (which includes Specification 1237, dated 03/07/11), or the Contractor's bid offer to Bid Invitation No. BI- 0217 -12 waives any subsequent breach of the same. 9. Compliance with Laws. This Agreement is subject to all applicable federal, state and local laws. All duties of the parties will be performed in the City of Corpus Christi, Texas. The applicable law for any legal disputes arising out of this Agreement is the law of Texas and such form and venue for such disputes is the appropriate district, county or justice court in and for Nueces County, Texas. 10. Subcontractors. The Contractor may use subcontractors in connection with the work performed under this Agreement. When using subcontractors, however, the Contractor must obtain prior written approval from the Storm Water Contract Administrator. In using subcontractors, the Contractor is responsible for all their acts and omissions to the same extent as if the subcontractor and its employees were employees of the Contractor. All requirements set forth as part of this Agreement are applicable to all subcontractors and their employees to the same extent as if the Contractor and its employees had performed the services. 11. Amendments. This Agreement may be amended only by written Agreement duly authorized by the parties hereto and signed by the parties. 12. Termination. The City Manager may terminate this Agreement for Contractor's failure to perform the services specified in Bid Invitation No. BI- 0217 -12 (which includes Specification 1237, dated 03/07/11). Failure to keep all insurance policies and performance bonds in force for the entire term of this Agreement is grounds for termination. The Contract Administrator must give the Contractor written notice of the breach and set out a reasonable opportunity to cure. If the Contractor has not cured within the cure period, the City Manager may terminate this Agreement immediately thereafter. Alternatively, the City may terminate this Agreement upon twenty (20) days' written notice to the Contractor. However, the City may terminate this Agreement on twenty -four (24) hours' written notice to the Contractor for failure to pay or provide proof of payment of taxes as set out herein. 13. Taxes. The Contractor covenants to pay payroll taxes, Medicare taxes, FICA taxes, unemployment taxes and all other related taxes according to Circular E Employer's Tax Guide, Publication 15, as it may be amended. Upon his request, the City Manager shall be provided proof of payment of these taxes within fifteen (15) days of such request. The Contractor may terminate this Agreement upon ninety (90) days' written notice to the City. 14. Drug Policy. The Contractor must adopt a Drug Free Workplace policy. 15. Violence Policy. The Contractor must adopt a Violence in the Workplace policy. 16. Notice. Notice may be given by fax, hand delivery or certified mail, postage prepaid, and is received on the day faxed or hand- delivered and on the third day after deposit in the U.S. mail if sent certified mail. Notice shall be sent as follows: IF TO CITY: City of Corpus Christi Attention: Storm Water Contract Administrator P.O. Box 9277 Corpus Christi, Texas 78469 -9277 Fax No.: (361) 826 -4352 IF TO CONTRACTOR: Contractor Tahoe Trucking, Inc. Contact Mark Davis Address: PO Box 10371 City, State, Corpus Christi TX 78460 17. Month -to -Month Extension. If the City has not completed the procurement process and awarded a new Agreement upon expiration of the original contract period or any extension period, the Contractor shall continue to provide goods /services under this Agreement, at the most current price under the terms of this Agreement or extension, on a month -to- month basis, not to exceed six months. This Agreement automatically expires on the effective date of a new contract. 18. Severability. Each provision of the Agreement shall be considered to be severable and, if, for any reason, any such provision or any part thereof, is determined to be invalid and contrary to any existing or future applicable law, such invalidity shall not impair the operation of or affect those portions of this Agreement that are valid, but this Agreement shall be construed and enforced in all respects as if the invalid or unenforceable provision or part thereof had been omitted. 19. INDEMNIFICATION. CONTRACTOR SHALL INDEMNIFY, HOLD HARMLESS AND DEFEND THE CITY OF CORPUS CHRISTI AND ITS OFFICERS, EMPLOYEES AND AGENTS ( "INDEMNITEES ") FROM AND AGAINST ANY AND ALL LIABILITY, LOSS, CLAIMS, DEMANDS, SUITS AND CAUSES OF ACTION OF ANY NATURE ON ACCOUNT OF DEATH, PERSONAL INJURIES, PROPERTY LOSS OR DAMAGE OR ANY OTHER KIND OF DAMAGE, INCLUDING ALL EXPENSES OF LITIGATION, COURT COSTS, ATTORNEYS' FEES AND EXPERT WITNESS FEES WHICH ARISE OR ARE CLAIMED TO ARISE OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE PERFORMANCE OF THIS AGREEMENT, REGARDLESS OF WHETHER THE INJURIES, DEATH OR DAMAGES ARE CAUSED OR ARE CLAIMED TO BE CAUSED BY THE CONCURRENT OR CONTRIBUTING NEGLIGENCE OF INDEMNITEES, BUT NOT BY THE SOLE NEGLIGENCE OF INDEMNITEES UNMIXED WITH THE FAULT OF ANY OTHER PERSON OR GROUP. CONTRACTOR MUST, AT ITS OWN EXPENSE, INVESTIGATE ALL CLAIMS AND DEMANDS, ATTEND TO THEIR SETTLEMENT OR OTHER DISPOSITION, DEFEND ALL ACTIONS BASED THEREON WITH COUNSEL REASONABLY SATISFACTORY TO INDEMNITEES AND PAY ALL CHARGES OF ATTORNEYS AND ALL OTHER COSTS AND EXPENSES OF ANY KIND ARISING FROM ANY OF SAID LIABILITY, DAMAGE, LOSS, CLAIMS, DEMANDS OR ACTIONS. THE INDEMNIFICATION OBLIGATIONS OF CONTRACTOR UNDER THIS SECTION SHALL SURVIVE THE EXPIRATION OR SOONER TERMINATION OF THIS AGREEMENT. SIGNED this 8th day of August, 2012. CITY OF CORPUS CHRISTI ( "CITY ") Michael Barrera Assistant Director of Financial Services Incorporated by Reference: Exhibit A: Bid Invitation No. BI- 0217 -12 Exhibit B: Bidder's Bid Contractor Tahoe Trucking Inc. Title: General Manager Date m Customize Pa DATE: TO: AGENDA MEMORANDUM Future Item for the City Council Meeting of October 9, 2012 Action Item for the City Council Meeting of October 16, 2012 10/9/2012 Ronald L. Olson, City Manager FROM: Michael Barrera, Assistant Director of Financial Services m ikeb(a�cctexas. com 361- 826 -3169 Michael Morris, Director of Park and Recreation m i ch ae l m o (a� cctexa s. co m 361- 826 -3464 Purchase of four (4) Ford F -150 Crew Cab 4 X 4 Pickup Trucks CAPTION: Motion approving the purchase of four (4) Ford F -150 Crew Cab 4 X 4 pickup trucks from Philpott Motors, Nederland, Texas for a total amount of $114,173.00. The award is based on the cooperative purchasing agreement with the Texas Local Government Purchasing Cooperative (TLGPC). Funds for the purchase of the Ford F -150 Crew Cab 4 X 4 pickup trucks are available in the Capital Outlay Budget of the Park and Recreation Department in FY 2012 -2013. PURPOSE: These vehicles will be used for beach rescue operations which involve lifeguard service, emergencies and patrolling the beach. All four (4) Ford F -150 Crew Cab 4 X 4 pickup trucks are replacement units to the fleet. BACKGROUND AND FINDINGS: The Parks and Recreation Department's Beach Operations and Rescue Division currently has 11 vehicles. The corrosive environment on the beach requires the department to replace vehicles on the beach frequently. Replaced vehicles will be disposed of through the City's standard disposal procedures, which include live auctions and internet auctions. ALTERNATIVES: Not applicable. OTHER CONSIDERATIONS: Not applicable. CONFORMITY TO CITY POLICY: This purchase conforms to the City's purchasing policies and procedures and Texas State procurement laws. EMERGENCY / NON-EMERGENCY: Not applicable. DEPARTMENTAL CLEARANCES: Park and Recreation Department FINANCIAL IMPACT: Fiscal Year: 2012 -2013 Project to Date Expenditures (CIP only) Current Year Future Years TOTALS Line Item Budget $127,000.00 $127,000.00 Encumbered / Expended Amount This item $114,173.00 $114,173.00 BALANCE $12,827.00 $12,827.00 Fund(s): Park and Recreation Department Comments: Not applicable. RECOMMENDATION: Staff recommends approval of the motion as presented. LIST OF SUPPORTING DOCUMENTS: Price Sheet CITY OF CORPUS CHRISTI PURCHASING DIVISION SENIOR BUYER: GABRIEL MALDONADO COUNCIL DATE: OCTOBER 9, 2012 PRICE SHEET FORD F -150 CREW CAB BuyBoard Contract # 358 -10 PHILPOTT MOTORS NEDERLAND, TEXAS ITEM DESCRIPTION QTY UNIT UNIT EXTENDED PRICE PRICE 1. 2013 Ford F -150 XLT Crew Cab 4 x 4 Pickup Truck, trailer tow package, 5.0 flex fuel engine, off road package TOTAL: 4 EA $28,543.25 $114,173.00 $114,173.00 AGENDA MEMORANDUM Future item for the City Council Meeting of October 9, 2012 Action item for the City Council Meeting of October 16, 2012 DATE: TO: FROM: September 24, 2012 Ronald L. Olson, City Manager Gustavo Gonzalez, Director of Water Operations GustavoGo@cctexas.com 361- 826 -1874 Payment authorization for Mary Rhodes Pipeline Repair CAPTION: Motion to authorize payment of $95,512.04 for Mercer Construction Company for emergency repair to Mary Rhodes Pipeline. PURPOSE: The water department requires the assistance of an outside contractor to expeditiously determine and repair water leaks when they occur on Mary Rhodes Pipeline. This unforeseen leak was identified on July 30, 2012 and had to be fixed immediately to provide water supply and protect the public health of the municipality's residents. BACKGROUND AND FINDINGS: At 12:30 p.m. on July 30, 2012, a water leak was discovered on the Mary Rhodes Pipeline, South of Lake Texana. The Pipeline Manager notified the Water Department Director, other Water Department employees, the Purchasing Department, contacted a pipeline contractor and made arrangements to meet the contractor the following morning (July 31) at the leak site. Upon inspection of the site, in order to determine the extent of the leak, the Pipeline Manager requested the contractor to mobilize the following morning (August 1). Purchasing contacted the contractor prior to mobilization (July 31), secured the necessary insurance coverage, submitted a service contract and received the signed contract during mobilization (Aug.1) to the job site. The contract was set not to exceed $50,000 without additional written amendment. Before the contract was fully executed, the emergency work was completed on August 7. Following the repair, the contractor determined the total cost for the repair to be $95,512.04. Although the initial contract amount was $50,000.00, the contract did contain a provision for additional work upon written amendment. The contractor was able to complete the emergency repairs within 8 calendar days, utilizing over 680 hours of labor. ALTERNATIVES: None. OTHER CONSIDERATIONS: A service agreement may be necessary to address any such future situations on a time and materials basis. CONFORMITY TO CITY POLICY: The Local Government Code § 252.022 (a) exempts this procurement from State competitive bidding requirements because it is necessary to: 1. preserve or protect the public health or safety of the municipality's residents; and 2. is due to unforeseen damage to public machinery, equipment or other property. EMERGENCY / NON - EMERGENCY: This was an emergency situation that needed immediate action. DEPARTMENTAL CLEARANCES: Water FINANCIAL IMPACT: X Operating ❑ Revenue ❑ Capital ❑ Not applicable Fiscal Year: 2012 -2013 Project to Date Expenditures (CIP only) Current Year Future Years TOTALS Line Item Budget $150,000.00 Encumbered / Expended Amount This item $45,512.04 BALANCE $104,487.96 Fund(s): Water Comments: $50,000 was encumbered in FY 11 -12 budget. RECOMMENDATION: Authorize payment as requested LIST OF SUPPORTING DOCUMENTS: Contract with Mercer Construction Company Invoice from Mercer Construction Company CONTRACT FOR SERVICES MARY RHODES PIPELINE REPAIR Service Agreement No. (to be determined) THIS Service Agreement (this "Agreement") is entered into by and between Mercer Construction Co. (the "Contractor") and the City of Corpus Christi , a Texas home-rule municipal corporation (the "City"), , effective for all purposes upon execution by and through its authorized Agent. WHEREAS Contractor has proposed to provide pipeline repair services for the Mary Rhodes Pipeline (the "Work"), see Exhibit A Work Scope, which is incorporated and attached to this Agreement, in response to a request from the City. NOW, THEREFORE, Contractor and City enter into this Agreement and agree as follows: 1. Services. Contractor will provide pipeline repair services for the Mary Rhodes Pipeline ("Work") in accordance with the Scope of Work, Exhibit A. Contractor shall provide all labor, supervision, equipment, materials, small tools, consumables, safety equipment, transportation and all other items of expense required to perform and complete the Work. The Work will include all quality assurance, testing and inspections reasonably required by good industry practice to ensure that the Work complies with the terms and conditions of all the Contract Documents, unless more stringent quality assurance is required by other industry standards. 2. Term. This Agreement shall commence on or about 7/31/2012 and expires on 8/31/2012. Provided, however, that the term of this contract shall automatically terminate upon the completion and acceptance of the Work by the City. 3. Project Manager. The Project Manager designated by the City is responsible for approval of all phases of performance and operations under this Agreement including deductions for nonperformance and authorizations for payment. The Project Manager for this project is Rene Marroquin, cell: 361-815-6159, email: renema©cctexas.com. 4. Independent Contractor. Contractor will perform the services hereunder as an independent contractor and will furnish such services in its own manner and method, and under no circumstances or conditions may any agent, servant or employee of the Contractor be considered an employee of the City. City of Corpus Christi CONTRACT FOR SERVICES 5. Insurance. Before the Work can begin under this Agreement, the Contractor's insurance company(ies) must deliver a Certificate of Insurance, as proof of the required insurance coverages to the City's Risk Manager; Exhibit B (attached) defines the City's requirements. The City must approve and accept the policies prior to the commencement of the Work. 6. Assignment. No assignment of this Agreement or any right or interest therein by the Contractor is effective unless the City first gives its written consent to such assignment. The performance of this Agreement by the Contractor is of the essence of this Agreement and the City's right to withhold consent to such assignment is within the sole discretion of the City on any grounds whatsoever. 7. Waiver. No waiver of any breach of any term or condition of this Agreement waives any subsequent breach of the same. 8. Compliance with Laws. This Agreement is subject to all applicable federal, state and local laws. All duties of the parties will be performed in the City of Corpus Christi, Mary Rhodes Pipeline easement located on property VI-032 Bennet Wood Interest, station number 556-00, near LaSalle, Texas. The applicable law for any legal disputes arising out of this Agreement is the law of Texas and such form and venue for such disputes is the appropriate district, county or justice court in and for Nueces County, Texas. 9. Subcontractors. The Contractor may use subcontractors in connection with the work performed under this Agreement. When using subcontractors, however, the Contractor must obtain prior written approval from the City. In using subcontractors, the Contractor is responsible for all their acts and omissions to the same extent as if the subcontractor and its employees were employees of the Contractor. All requirements set forth as part of this Agreement, including insurance requirements, are applicable to all subcontractors and their employees to the same extent as if the Contractor and its employees had performed the services. 10. Amendments. This Agreement may be changed only by written amendment(s) duly authorized and signed by the parties hereto. 11. Termination. The City may terminate this Agreement for Contractor's failure to perform the services specified. Failure to keep all insurance policies and/or 2 City of Corpus Christi CONTRACT FOR SERVICES any performance bonds (when requested) in force for the entire term of this Agreement is grounds for termination. The City must give the Contractor written notice of the breach and set out a reasonable opportunity to cure. If the Contractor has not cured within the cure period, the City may terminate this Agreement immediately thereafter. Either Party may terminate this Agreement at any time, with or without cause upon providing twenty (20) days' prior written notice. 12. Compensation. The City agrees to reimburse the Contractor for and in consideration of the complete, satisfactory and timely performance of the Work pursuant to the Contractors rate sheets attached (Exhibit C) and all the requirements contained in this Agreement. The total value of this Agreement shall be limited to an amount equal to or less than $50,000.00 (fifty thousand dollars), unless changed by written amendment. 13. Invoices. All invoices must reference this Agreement number (to be determined) Remit invoices to: City of Corpus Christi P.O. Box 9277 Corpus Christi, TX 78469-9277 Attn: Accounts Payable 14. Terms. The City will remit payments net 30 days from the date received by the City. 15. Contracts Administrator. All of the Contractor's notices, communications or questions regarding this Agreement must be directed to the Contract Administrator, who is Tom Richey, Senior Buyer, ph:361-826-3176, email: tomri@cctexas.com 16. Notice. Notice may be given by email, hand delivery or certified mail, postage prepaid, and is received on the day emailed or hand-delivered and on the third day after deposit in the U.S. mail if sent certified mail. Notice shall be sent as follows: IF TO CITY: City of Corpus Christi Attention: Tom Richey, Water Dept. P.O. Box 9277 Corpus Christi, Texas 78469-9277 tomricctexas.com City of Corpus Christi CONTRACT FOR SERVICES IF TO CONTRACTOR: Contractor Mercer Construction Co. Contact Mike Mercer Address: 909 N. Colorado St. City,State,Zip Edna, TX mmercer(a� mercerconstco.com 77957 17. Entire Agreement. This Agreement and any attached appendices constitute the sole and entire Agreement between the parties hereto and supersede any previous written or oral agreements. Any additional terms and conditions must be agreed to in writing by both parties. 18. Severability. Each provision of the Agreement shall be considered to be severable and, if, for any reason, any such provision or any part thereof, is determined to be invalid and contrary to any existing or future applicable law, such invalidity shall not impair the operation of or affect those portions of this Agreement that are valid, but this Agreement shall be construed and enforced in all respects as if the invalid or unenforceable provision or part thereof had been omitted. 19. INDEMNIFICATION. CONTRACTOR SHALL INDEMNIFY, HOLD HARMLESS AND DEFEND THE CITY OF CORPUS CHRISTI AND ITS OFFICERS, EMPLOYEES AND AGENTS ( "INDEMNITEES ") FROM AND AGAINST ANY AND ALL LIABILITY, LOSS, CLAIMS, DEMANDS, SUITS AND CAUSES OF ACTION OF ANY NATURE ON ACCOUNT OF DEATH, PERSONAL INJURIES, PROPERTY LOSS OR DAMAGE OR ANY OTHER KIND OF DAMAGE, INCLUDING ALL EXPENSES OF LITIGATION, COURT COSTS, ATTORNEYS' FEES AND EXPERT WITNESS FEES WHICH ARISE OR ARE CLAIMED TO ARISE OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE PERFORMANCE OF THIS AGREEMENT, REGARDLESS OF WHETHER THE INJURIES, DEATH OR DAMAGES ARE CAUSED OR ARE CLAIMED TO BE CAUSED BY THE CONCURRENT OR CONTRIBUTING NEGLIGENCE OF INDEMNITEES, BUT NOT BY THE SOLE NEGLIGENCE OF INDEMNITEES UNMIXED WITH THE FAULT OF ANY OTHER PERSON OR GROUP. CONTRACTOR MUST, AT ITS OWN EXPENSE, INVESTIGATE ALL CLAIMS AND DEMANDS, ATTEND TO THEIR SETTLEMENT OR OTHER DISPOSITION, DEFEND ALL ACTIONS BASED THEREON WITH COUNSEL REASONABLY SATISFACTORY TO INDEMNITEES AND PAY ALL CHARGES OF ATTORNEYS AND ALL OTHER COSTS AND EXPENSES OF ANY KIND ARISING FROM ANY OF SAID LIABILITY, DAMAGE, LOSS, CLAIMS, DEMANDS OR ACTIONS. THE INDEMNIFICATION OBLIGATIONS OF CONTRACTOR UNDER THIS SECTION SHALL SURVIVE THE EXPIRATION OR SOONER TERMINATION OF THIS AGREEMENT. 4 City of Corpus Christi CONTRACT FOR SERVICES 20. Commencement of Work. No Work shall be performed under this Agreement until the Contractor has submitted to the City a signed and dated copy of this Agreement and the Agreement has been signed by the City. SIGNED this III day of Atitiohir , 20 Contractor: Mercer Construction Co. CITY OF CORPUS CHRISTI ("CITY") Michael Barrera Date Assistant Director of Financial Services APPROVED THIS DAY OF , 20 . CITY ATTORNEY By: Lisa Aguilar, Assistant City Attorney For the City Attorney Incorporated by Reference: Exhibit A: Work Scope Exhibit B: Insurance Requirements Exhibit C: Contractors Rate Sheets, dated 06/01/2012. 5 EXHIBIT A Scope of work Mercer Construction Co. will provide all labor, supervision, equipment, materials, small tools, consumables, safety equipment, transportation and all other items of expense required to perform and complete the excavation and repairs to the Mary Rhodes Pipeline. The Mary Rhodes Pipeline repair services will be done in two phases: Phase One Exploratory excavation of the pipeline to determine the location and nature of the leak. Phase Two The repair(s), as required, to return the pipeline to its normal functioning capacity. The leak location is described as being on the City of Corpus Christi, Mary Rhodes Pipeline easement, located on property VI-032 Bennet Wood Interest, at station number 556+00, near LaSalle, Texas. EXHIBIT B INSURANCE REQUIREMENTS A. Contractor must not commence work under this agreement until all insurance required herein has been obtained and such insurance has been approved by the City. Contractor must not allow any subcontractor to commence work until all similar insurance required of the subcontractor has been obtained. B. Contractor must furnish 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 waiver of subrogation is required for the General Liability and Workers Compensation policies. TYPE OF INSURANCE MINIMUM INSURANCE COVERAGE 30-Day written notice of cancellation required on all certificates or by applicable policy endorsements Bodily Injury and Property Damage Per occurrence - aggregate COMMERCIAL GENERAL LIABILITY including: 1. Commercial Broad Form 2. Premises — Operations 3. , Products/ Completed Operations 4. Contractual Liability 5. Independent Contractors 6. Personal Injury — Advertising Injury $1,000,000 COMBINED SINGLE LIMIT — $2,000,000 Aggregate AUTOMOBILE LIABILITY including: 1. Owned Vehicles 2. Hired & non-Owned vehicles $1,000,000 COMBINED SINGLE LIMIT TRANSIT COVERAGE to include 1. Motor Truck Cargo/ Transportation $25,000 - Value of equipment being transported WORKERS' COMPENSATION EMPLOYERS' LIABILITY WHICH COMPLIES WITH THE TEXAS WORKERS' COMPENSATION ACT AND SECTION II OF THIS EXHIBIT 500,000/500,000/500,000 C. In the event of accidents of any kind relative to this agreement, the Contractor must furnish the Risk Manager with copies of all reports of such accidents within ten (10) days of accident. II. ADDITIONAL REQUIREMENTS A. Contractor must obtain workers' compensation coverage through a licensed insurance company in accordance with Texas law. The contract for coverage must be written on a policy and 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. If coverage not written in accordance with Texas law, All Other States (AOS) endorsement must be indicated on the certificate of insurance. B. Contractor's financial integrity is of interest to the City; therefore, subject to Contractor's right to maintain reasonable deductibles in such amounts as are approved by the City, 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 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. C. The City shall be entitled, upon request and without expense, to receive copies of the policies, declarations page and all endorsements thereto as they apply to the limits required by the City, and may require the deletion, revision, or modification of particular policy terms, conditions, limitations or exclusions (except where policy provisions are established by law or regulation binding upon either of the parties hereto or the underwriter of any such policies). Contractor 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. Contractor 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 (361) 826-4555- Fax # D. Contractor agrees that with respect to the above required insurance, all insurance policies are to contain or be endorsed to contain the following required provisions: Name the City and its officers, officials, employees, volunteers, and elected representatives as additional insured by endorsement, as respects operations and activities of, or on behalf of, the named insured performed under contract with the City, with the exception of the workers' compensation policy; Provide for an endorsement that the "other insurance" clause shall not apply to the City of Corpus Christi where the City is an additional insured shown on the policy; • Workers' compensation and employers' liability policies will provide a waiver of subrogation in favor of the City; and • Provide thirty (30) calendar days advance written notice directly to City of any suspension, cancellation, non-renewal or material change in coverage, and not less than ten (10) calendar days advance written notice for nonpayment of premium. E. Within five (5) calendar days of a suspension, cancellation, or non-renewal of coverage, 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. F. 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. G. 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. H. 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. kL- c MERCER CONSTRUCTION COMPANY CURRENT EQUIPMENT CHARGE SCHEDULE 06/01/12 HEAVY MACHINERY RUBBER TIRE BACKHOE RUBBER TIRE LOADER TRACK EXCAVATOR u . to 135 TRACK EXCAVATOR >210 DAILY RATES $ 230.00 390.00 450.00 975.00 450.00 365.00 180.00 MOTOR CRANE - SMALL DUMP TRUCK 5 -6 YDS./WATER TRUCK SUPPORT EQUIPMENT AIR COMPRESSOR W /HOSES PUMPS W /SUCTION & DISCHARGE - VA" & 2" CUT OFF SAW ELECTRIC GENERATOR BORING MACHINE TRENCH BOX SPECIAL WELLPOINT SYSTEM BY PASS PUMPING TRANSPORTATION PICKUP PASSENGER VEHICLE 1 -TON PICKUP & GOOSENECK TRAILER TANDEM AXLE TRACTOR & LOW -BOY TRAILER NOTES ON MACHINERY RATES: DAILY RATES $ 70.00 50.00 70.00 40.00 30.00 250.00 125.00 - FROM $2,700.00 FIRST WEEK - FROM $230.00 PER DAY RATE /MILE $ .65 1.80 3.00 FOR LONG TERM RENTAL (3 +MONTHS) DISCOUNTS TO THE DAILY RATE MAY APPLY Q; ICustomerChargeslEquip Billing Rates.doc tx.k 6I+ C. MERCER CONSTRUCTION COMPANY CURRENT BILLING RATES 06/01/12 LABOR: ALL LABOR IS TABULATED AT THE FOLLOWING RATES: UNSKILLED LABOR $ 32.00/HR SKILLED LABOR II $ 37.00/HR MACHINE OPERATOR $ 43.00/HR SUPERVISOR $ 125.00/HR ADD 25% MARKUP TO TOTAL LABOR FOR SPECIAL CONDITIONS ENCOUNTERED (OVERTIME, ETC.) 2. SUBCONTRACTORS: CHARGES DUE TO SUBCONTRACTORS UNDER OUR SUPERVISION ARE BASED ON NEGOTIATION WITH A MINIMUM MARKUP OF 15 %. EQUIPMENT: ALL MACHINERY CHARGES ON OUR OWN MACHINERY IS TO BE TABULATED ACCORDING TO THE CURRENT EQUIPMENT CHARGE SCHEDULE. EQUIPMENT RENTED BY US FOR A SPECIFIC JOB WILL BE HANDLED IN THE SAME MANNER AS SUBCONTRACTORS (SEE ABOVE). 4. MILEAGE: ALL VEHICLE MILEAGE ASSOCIATED WITH A SPECIFIC JOB WILL BE TABULATED ACCORDING TO THE CURRENT EQUIPMENT CHARGE SCHEDULE. MATERIAL: MATERIAL WILL BE TABULATED ACCORDING TO TYPE AND AVAILABILITY * MATERIAL MAY BE SUBJECT TO SPECIAL HANDLING CHARGES (25 % +) 6. ADDITIONAL ITEMS: *YARD TIME INVOLVED IN PREPARING FOR A SPECIFIC JOB WILL BE CHARGED OUT AT THE CURRENT LABOR RATES. *OVERTIME IS CONSIDERED ANYTHING OVER 8 HOURS IN ONE DAY (25% PREMIUM WHEN NECESSARY) SPECIAL CHARGES MAY APPLY FOR: *EXCESSIVELY HAZARDOUS WORK *SPECIAL EMERGENCIES *PERMITS OR DRAWINGS *SPECIAL LAYOUT *INCLEMENT WEATHER *SALTY OR CORROSIVE ENVIRONMENT *NIGHT OR WEEKEND WORK S6 Q:ICustomer ChargeslLabor Billing Rates.doc ACORb® CERTIFICATE OF LIABILITY INSURANCE DATE (MMIDD /YYYY) 7/31/2012 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER Insurance Alliance 1776 Yorktown, Suite 200 Houston TX 77056 NSURED Mercer Construction Company PO Box 888 Edna TX 77957 -0888 MERCE -3 CONTACT NAME: Janice Lucas (A/C, "No, Ext):713- 966 -1775 E -MAIL ADDRESS:)IuCas @Ins- alliance .CO FAX No):713- 966 -1700 INSURER(S) AFFORDING COVERAGE INSURER A:BitlJmin9u.,s Casualty Corp INSURER B :Texas Mutual Ins Co___ INSURER C: INSURER D : INSURER E : INSURER F : NAIC B 0095 122945 COVERAGES CERTIFICATE NUMBER: 1579672063 REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE INDICATED. NOTWITHSTANDING ANY REQUIREMENT, CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. �UBR WVD LISTED BELOW HAVE BEEN TERM OR CONDITION OF ANY THE INSURANCE AFFORDED BY LIMITS SHOWN MAY HAVE BEEN ISSUED TO THE INSURED CONTRACT OR OTHER THE POLICIES DESCRIBED REDUCED BY PAD CLAIMS. POLICY EFF POLICY EXP (MMIDEN Y) �(MNStMYYYY) NAMED ABOVE FOR THE POLICY PERIOD DOCUMENT WITH RESPECT TO WHICH THIS HEREIN IS SUBJECT TO ALL THE TERMS, INSR TYPE OF INSURANCE ADDL LTR 'INSR POLICY NUMBER LIMITS A GENERAL LIABILITY Y Y CLP3565574 2/1/2012 2/1/2013 EACH OCCURRENCE $1000,000 - -_ -' DAMAGE TORENTED X COMMERCIAL GENERAL 1_IABILITY PREMISES (Ea occurrence) $100,000 CLAIMS -MADE X OCCUR MED EXP (Any one person) $5,000 T PERSONAL & ADV INJURY 31000000 GENERAL AGGREGATE $2,000,000 GEN'L AGGREGATE LIMIT APPLIES PER PRODUCTS - COMP /OP AGG $2,000,000 POLICY X JECT I LOC $ R AUTOMOBILE LIABILITY CAP3565573 2/12012 2 C D SINGLE LIMIT (Ea accid ent) $1,000000 BODILY INJURY (Per person) ----- - - - - -- $ (X 1 ANY AUTO j ALL OWNED ! SCHEDULED BODILY INJURY (Per accident) $ AUTOS AUTOS NON -OWNED .._ PROPERTY DAMAGE HIRED AUTOS ' AUTOS '.. '.. '.. '.. (Per accident) A X UMBRELLA LIAB X OCCUR Y Y CUP2590927 2/1/2012 b112013 EACH OCCURRENCE $5,000,000 EXCESS LIAB CLAIMS -MADE AGGREGATE $5,000,000 DED X RETENTON$10,000 $ g WORKERS COMPENSATION Y TSF0001112948 /1/2012 /1/2013 Ix VVC STArU- OTH i__ TORY LIMITS ER AND EMPLOYERS' LIABILITY YIN E L EACH ACCIDENT ANY PROPRIETOR /PARTNER /EXECUTIVE $1,000,000 OFFICER /MEMBER EXCLUDED? N N I A ■ - - - - - -- - - - - - -- - - - - -- (Mandatory in NH) E L DISEASE - EA EMPLOYEE, ... 01,000,000 If yes, describe under - -- -_- DESCRIPTION OF OPERATIONS below '. '.. '... E DISEASE - POLICY LIMIT $1,000000 DESCRIPTION OF OPERATIONS / LOCATIONS/VEHICLES (Attach ACORD 101, Additional Remarks Schedule, if more space is required) The General Liability, Auto Liability, and Umbrella policies include a blanket automatic additional insured endorsement that provides additional insured status only when there is an executed written contract that requires such status. The General Liability, Auto Liability, Umbrella policies include a blanket automatic waiver of subrogation endorsement only when there is an executed written contract that requires such status Additional Insured: City of Corpus Christi CERTIFICATE HOLDER CANCE ATION City of Corpus Christi Attn: Risk Management P O. Box 9277 Corpus Christi TX 78469 -9277 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZED REPRESENTATIVE ACORD 25 (2010/05) © 1988 -2010 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD CONSTRUCTION 909 North Colorado • P.O; BCM 888 • Edna, Texas 77957 1361)782-7163 * (280,342-4301 + (800)533-7163 + (361)782-7167 fax City of Corpus Christi P,O. Box 9277 Corpus Cbtisti, Texas 78469-9277 MCCJob #: 505.2620 RE: Repairs to 64" Mary Rhodes Pipeline near Edna, Texas. Work completed 8107/12. Item Number Description Total Charges as detailed on followitig WOrk Reports &: Invoices Freight Subtotal INVOICE . 02814 August 22, 2012 Quantity. Unit Price Amount l LS $95,512.04 $95,512.04 N/A $95,512.04 ' Sales Tax N-/A Total Invoice $95;512.04 Respectfully Submitted By ME ER ONO Li TION COMPANY Michael C. Mercer, Exec. Vice President 02S/4 /1111,1028 rnhinie AGENDA MEMORANDUM Future Item for the City Council Meeting of October 9 Action Item for the City Council Meeting of October 16 DATE: TO: FROM: Michael Morris, Director of Parks and Recreation MichaelMo(c�cctexas.com; 361- 826 -3464 September 19, 2012 Ronald L. Olson, City Manager Foster Crowell, Director of Wastewater FosterC(a�cctexas.com; 361- 857 -1801 Renewal of Lease with West Corpus Christi Rotary Club CAPTION: Ordinance authorizing the City Manager, or designee, to execute a three -year Lease Agreement with West Corpus Christi Rotary Club for the use of property near McKenzie Road and Allison Drive by Boy Scout troop sponsored by the Rotary Club, in consideration of the Rotary Club maintaining the premises and improvements; providing for severance; and declaring an emergency. PURPOSE: The Parks and Recreation Department and Wastewater Department seek approval to enter into a three (3) year lease agreement with the West Corpus Christi Rotary Club as sponsors for Boy Scout Troop 18 for the parcel and improvements located near McKenzie Road and Allison Drive. BACKGROUND AND FINDINGS: The West Corpus Christi Rotary Club (WCCRC) sponsors Boy Scout Troop 18 in accordance with the governing rules of the South Texas Council of the Boy Scouts of America. Boy Scout Troop 18 activities are held at a Boy Scout hut on the leased premises and are offered to all boys meeting eligibility requirements. ALTERNATIVES: Do not approve the lease. OTHER CONSIDERATIONS: Not applicable. CONFORMITY TO CITY POLICY: City Council must authorize the City Manager or his designee to execute the necessary documents to allow for a three -year lease agreement. EMERGENCY / NON - EMERGENCY: Staff is requesting an emergency reading. This is a routine, non - controversial item. DEPARTMENTAL CLEARANCES: Legal Department FINANCIAL IMPACT: Not applicable ❑ Operating ❑ Revenue ❑ Capital ❑ Not applicable Fiscal Year: 2011- 2012 Project to Date Expenditures (CIP only) Current Year Future Years TOTALS Line Item Budget 0.00 Encumbered / Expended Amount This item 0.00 BALANCE 0.00 Fund(s): Comments: This item will not have any impact on the operating budget. RECOMMENDATION: Staff recommends approving the lease agreement. LIST OF SUPPORTING DOCUMENTS: Ordinance Lease Agreement Ordinance authorizing the City Manager, or designee, to execute a three -year Lease Agreement with West Corpus Christi Rotary Club for the use of property near McKenzie Road and Allison Drive by Boy Scout troop sponsored by the Rotary Club, in consideration of the Rotary Club maintaining the premises and improvements; providing for severance; and declaring an emergency. Be it ordained by the City Council of the City of Corpus Christi, Texas: SECTION 1. That the City Manager or his designee is authorized to execute a three - year Lease Agreement with West Corpus Christi Rotary Club for the use of City property near McKenzie Road and Allison Drive by Boy Scout troop sponsored by the Rotary Club, in consideration of the Rotary Club maintaining the premises and improvements. A copy of the contract shall be filed with the City Secretary's Office. SECTION 2. If, for any reason, any section, paragraph, subdivision, clause, phrase, word, or provision of this ordinance shall be held invalid or unconstitutional by final judgment of a court of competent jurisdiction, it shall not affect any other section, paragraph, subdivision, clause, phrase, word or provision of this ordinance, for it is the definite intent of the City Council that every section, paragraph, subdivision, phrase, word and provision hereof shall be given full force and effect for its purpose. SECTION 3. 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 day of , 2012. ATTEST: THE CITY OF CORPUS CHRISTI Armando Chapa City Secretary Joe Adame Mayor 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, 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 LEASE AGREEMENT BETWEEN CITY OF CORPUS CHRISTI AND WEST CORPUS CHRISTI ROTARY CLUB STATE OF TEXAS ' KNOW ALL BY THESE PRESENTS COUNTY OF NUECES' This lease is entered into by and between the City of Corpus Christi ( "City "), a Texas home - rule municipal corporation, acting through its duly authorized City Manager, or the City Manager's designee, and WEST CORPUS CHRISTI ROTARY CLUB ( "Lessee "), a Texas unincorporated association, Corpus Christi, Texas, a service club acting as sponsors of the Boy Scout Troop, for the citizens of Corpus Christi, acting through its duly authorized President. Section 1. Definitions. For the purposes of this Lease: City means the City of Corpus Christi, Nueces County, Texas, a home rule municipal corporation. City Council means the City Council of the City. City Manager means the City Manager of the City or the City Manager's designee. Director means the City's Director of Parks and Recreation or that Director's designee. Engineering Services Director means the City's Director of Engineering Services. Holdover Period means any period of time in which the Lessee remains in the Premises after the expiration of the original term of this Lease and continues to provide consideration in lieu of paying rent to the City under the terms of this lease. Improvements means buildings and other structures located on the Premises. Lease means this document, including all attachments and exhibits that are referred to in this document. Lessee means WEST CORPUS CHRISTI ROTARY CLUB, a Texas unincorporated association, Corpus Christi, Texas. Parks and Recreation means the City's Parks and Recreation Department. Premises means a tract or parcel of land McKenzie Road designated as Tract "B ", as shown on the attached drawing, Exhibit Al, together with all improvements. Page 2 of 17 Regular hours of operation means the regularly scheduled hours of Lessee's operation. Risk Manager means the City's Director of Risk Management or that Director's designee. Sign means any signs, advertisements, notices, or other lettering that are exhibited, inscribed, painted, erected, or affixed on or about the Premises, or any part of the Premises. Wastewater Director means the City's Director of Wastewater. Section 2. Purpose. The purpose of this Lease, between the City and Lessee, is to enable Lessee to sponsor the Boy Scout Troop. Lessee may not operate the Leased Premises for any other purpose without the prior written approval of the Director. Section 3. Leased Premises. The Leased Premises is a tract or parcel of land near McKenzie Road and Allison Drive designated as Tract "B ", as shown on the drawing attached as Exhibit Al, together with all improvements. Section 4. Use of Leased Premises Subject to Lease. The Lessee's use of the Leased Premises is subject to the terms and conditions in this lease. The detailed conditions for using the Leased Premises are contained in the attached Exhibit A2. Exhibit A2 may be amended as often as necessary upon mutual agreement by the Parks Director and the Lessee. This lease is made in consideration of the mutual promises and covenants contained in this lease. Section 5. Limitation of Leasehold. City does not warrant its title to the Leased Premises. This Lease and the rights and privileges granted Lessee in and to the Leased Premises are subject to all covenants, conditions, restrictions, and exceptions of record or apparent. Nothing contained in this Lease may be construed to imply the conveyance to Lessee of rights in the Leased Premises that exceed those owned by City. Section 6. Term. The City leases the Premises, subject to all terms and conditions of this Lease, to the Lessee for a period of three (3) years subject, however, to the right of either party to cancel this Lease by giving thirty (30) days written notice to the other party, unless sooner terminated under Section 31. This Lease begins immediately after City Council approval. a. Lessee may continue to occupy the Premises after the expiration of this Lease on a month -to -month tenancy if the Lessee continues to provide consideration in lieu of paying monthly rent as required by this lease, and upon the same terms and conditions as set out in this lease. b. The Holdover Period may not exceed six months in length. c. The City Manager has the absolute right to terminate the month -to -month tenancy with or without cause upon thirty (30) days written notice to Lessee. Page 3 of 17 Section 7. Abandonment of Leased Premises. If the Lessee abandons the Leased Premises or if the Lessee fails to take possession of the Leased Premises within ten days after commencement of the term of this Lease, then this Lease shall terminate automatically and City Manager may take immediate possession of the Leased Premises. "Abandoned" means that the Leased Premises become vacant or deserted for a continuous period of thirty (30) days. Section 8. Cessation of Use. a. If Lessee for any reason ceases to use the Leased Premises for the purposes specified in Section 2, Lessee has the right during the first year following the cessation of use to terminate this Lease by written notice to the City Manager. b. The written notice of termination must be given at least three (3) months prior to the effective date of termination. c. If the cessation of use occurs and continues for one year or longer, and Lessee does not exercise the right to terminate this Lease, then the City may terminate this Lease by giving Lessee at least one (1) months notice prior to the effective termination date. d. Lessee's obligation to provide consideration in lieu of paying rent ceases upon termination, but no consideration provided prior to termination will be refunded. e. During any cessation of use, Lessee must maintain and regulate the use and occupancy of the Leased Premises at Lessee's expense as specified in Sections 2, 4, 22, 24, 28, and 29. Upon termination or expiration of the Lease, the Lessee must, if requested in writing by the Director, remove the scout hut from the Leased Premises under Section 12e. Section 9. Surrender. Lessee acknowledges and understands that the City's agreement to lease the Premises to Lessee is expressly conditioned on the understanding that the Premises must be surrendered, upon the expiration, termination, or cancellation of this Lease, in as good a condition as received, reasonable use and wear, acts of God, fire and flood damage or destruction where Lessee is without fault, excepted. Section 10. Lease Consideration. For and in consideration of the rights and privileges granted in this lease, and in lieu of lease payments to the City, Lessee must construct and maintain a scout hut for use by a Boy Scouts troop (sponsored by lessee) on the Premises. Further, Lessee must maintain the Premises by mowing, collecting litter, etc. as directed in writing by the Director. Section 11. Lessee responsible for activities on Premises. Notwithstanding any right of City to inspect or approve any improvement or activity under this lease, Lessee covenants that it and its members are solely and exclusively responsible for all activities on the Premises and have control of the Premises; that the City has no responsibility for safety of, or any activity on, the Premises; and that Lessee shall not rely on any City inspection or action. Lessee is solely responsible for the safety of all activities on the Premises. Page 4 of 17 Section 12. Alterations. a. Lessee may not make any alterations, additions, or improvements to, in, on, or about the Premises, without the prior written consent of the Director. Lessee must also obtain clearance from the Risk Manager as required by Section 29.f. of this Lease. b. Lessee, if directed by the Director, must construct and maintain screening or other safety barriers to ensure, to the extent reasonable, that activities are confined to the premises. c. Prior to making any alterations, additions, or improvements to, in, on, or about the Premises, Lessee must submit the plans and specifications for the alterations, additions, or improvements to the Director, and Engineering Services Director for review and written consent. d. If the Director and Engineering Services Director consent to, and the Risk Manager grants clearance for, the alterations, additions, or improvements, the Lessee shall obtain all required permits for the construction; and the construction is subject to inspection by the Director, Engineering Services Director, City's Building Official, Wastewater Director and their designated representatives. e. All approved alterations, improvements, and additions made by the Lessee upon the Premises, although at Lessee's own expense, shall, if not removed by Lessee at any termination or cancellation of this Lease, become the property of the City in fee simple without any other action or process of law. Lessee agrees to be contractually and financially responsible for repairing any and all damage caused by the removal. If items are installed in a manner that they become fixtures, the fixtures may not be removed by Lessee upon termination and become the property of the City. Section 13. Taxes, Assessments, Licenses, and Fees. a. Lessee must pay, in full prior to each respective due date, all taxes, assessments, licenses, and fees required by the Lessee's use of the Leased Premises; this includes, but is not limited to, any ad valorem taxes, personal property taxes, and sales taxes, that could be assessed against the Leased Premises and any buildings, improvements, or fixtures appurtenant to the Leased Premises.. b. Lessee covenants to pay, in full prior to each respective due date, payroll taxes, Medicare taxes, FICA taxes, unemployment taxes, and all other related taxes according to Circular E Employer's Tax Guide, publication 15, as it may be amended. c. Lessee must provide proof of payment of all taxes within 30 days after Director requests proof of payment. Failure to pay or provide proof of payment is grounds to terminate this Lease. Section 14. No Debts. Lessee may not incur any debts or obligations on the credit of the City during the term of this Lease, and including during any Holdover Period that may occur. Page 5 of 17 Section 15. No Liens. Lessee agrees not to permit any mechanic's lien, materialman's lien, tax lien, or any other lien to become attached to the Leased Premises, or any part or parcel of the Leased Premises, or the improvements on the Leased Premises, because of any work or labor performed by any mechanic, materials furnished by any materialman, or any other reason. Section 16. Assignment and Subleasing. a. Lessee may not assign or encumber this lease, without the prior written consent of the City Manager. Any assignment or sublease must be approved in advance by the City Manager, which approval will not be unreasonably withheld. b. Upon approval of the assignment, Lessee may request the City to release Lessee from any further liability under the Lease. City will grant the release if the assignee covenants to assume all obligations and duties of Lessee of this Lease. c. Any attempted assignment or sublet without the prior written consent of the City Manager renders this Lease void. d. An assignment of the Lease under the same terms and conditions is not an amendment of the Lease. e. Each provision, term, covenant, obligation, and condition required to be performed by Lessee must be binding upon any assignee, and is partial consideration for City's consent to the assignment. f. Any failure of assignee to strictly comply with each provision, term, covenant, obligation, and condition in this lease may render this Lease null and void. Section 17. Signs; Warning Signs Posted. a. Lessee may not exhibit, inscribe, paint, erect, or affix any sign at, on, or about the Premises, or any part of this Lease, without the prior written approval of the Director. b. The City may require Lessee to remove, repaint, or repair any Signs allowed. If Lessee does not remove, repaint, or repair the Signs within ten (10) days of the Director's written demand, the City may elect to terminate this Lease after ten (10) days written notice to Lessee. Alternatively, the City may do or cause the work to be done, and Lessee shall pay the City's costs within thirty (30) days of receipt of the Director's invoice. If payment is not timely made, the City may terminate this Lease upon ten (10) days written notice to Lessee. c. Lessee must post the Premises with signs warning that it is a Boy Scout hut and no trespassing is allowed. The Director shall approve the wording on the signs and shall determine the placement of the signs. Section 18. Laws Affecting Operation of Premises and Performance. Lessee shall comply with all Federal, State, and local laws, ordinances, rules, and regulations applicable to Page 6 of 17 Lessee's operation of the Premises and Lessee's performance under this Lease. This Lease is also subject to applicable provisions of the City Charter. Section 19. Nondiscrimination. Lessee covenants and agrees that Lessee 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 Premises, on the grounds of race, religion, national origin, marital status, sex, age, disability, or in any manner prohibited by the laws of the United States or the State of Texas. The City hereby reserves the right to take the action as the United States may direct to enforce this covenant. Section 20. Drug Policy. Lessee must adopt a Drug Free Workplace and drug testing policy that substantially conforms to the City's policy. Section 21. Violence Policy. Lessee must adopt a Violence in the Workplace and related hiring policy that substantially conforms to the City's policy. Section 22. Maintenance. Lessee shall maintain the Leased Premises and all improvements in good and safe condition during the Lease term. Section 23. Furniture, Fixtures, and Equipment. a. It is understood that Lessee is responsible for furnishing and equipping the Premises and that the City has no obligation to furnish any equipment or furnishings for Lessee. b. All personal property and trade fixtures furnished by or on behalf of Lessee remain the property of the Lessee, unless the personal property and trade fixtures are specifically donated to the City during the term of this Lease or any Holdover Period. c. The Director retains the right to approve all furnishings and fixtures that may be installed in the Premises, during the term of this Lease and any Holdover Period, prior to installation. Section 24. Utilities. Lessee must pay for all utilities used by it on the Premises or used by any other activities sponsored by the Lessee on the Premises. Section 25. City's Right of Inspection. Any officer or authorized employee of the City may enter upon the Premises, at all reasonable times and without notice, to determine whether Lessee is providing maintenance in accordance with and as required by Section 22 or for any other purpose incidental to the City's retained rights of and in the Premises. Section 26. Director's Right to Access Premises in Emergency. a. Lessee shall provide the Director with keys to the Premises, and a current list of names and phone numbers, for use by the Director, in the event of an emergency. b. The Director has the right to enter the premises during the regular hours of operation or at anytime in an emergency. Page 7 of 17 Section 27. City Use. The City retains the right to use or cross the Premises with utility lines and easements. City may exercise these rights without compensation to Lessee for damages to the Premises from installing, maintaining, repairing, or removing the utility lines and easements. City must use reasonable judgment in locating the utility lines and easements to minimize damage to the Premises. Section 28. indemnity. In consideration of allowing Lessee to use the Premises, Lessee ( "lndemnitor' ) covenants to fully indemnify, save and hold harmless the City, its officers, agents, representatives, and employees (collectively, "Indemnitees') from and against any and all liability, loss, damages, claims, demands, suits, and causes of action of any nature whatsoever asserted against or recovered from City on account of injury or damage to person including, without limitation on the foregoing, premises defects, workers' compensation and death claims, or property loss or damage of any other kind whatsoever, to the extent any injury, damage, or loss may be incident to, arise out of, be caused by, or be in any way connected with, either proximately or remotely, wholly or in part: (1) Lessee's performance under this Lease; (2) Lessee's use of the Premises and any and all activities associated with the Lessee's use of the Premises under this Lease; (3) the violation by Lessee, its officers, employees, agents, or representatives or by Indemnitees, or any of them, of any law, rule, regulation, ordinance, or government order of any kind pertaining, directly or indirectly, to this Lease; (4) the exercise of rights under this Lease; or (5) an act or omission on the part of Lessee, its officers, employees, agents, or representatives or of Indemnitees, or any of them, pertaining to this Lease, regardless of whether the injury, damage, loss, violation, exercise of rights, act, or omission is caused or is claimed to be caused by the contributing or concurrent negligence of Indemnitees, or any of them, but not if caused by the sole negligence of Indemnitees, or any of them, unmixed with the fault of any other person or entity, and including all expenses of litigation, court costs, and attorneys' fees, which arise, or are claimed to arise, out of or in connection with the asserted or recovered incident. Lessee covenants and agrees that, if City is made a party to any litigation against Lessee or in any litigation commenced by any party, other than Lessee, relating to this Lease, Lessee shall, upon receipt of reasonable notice regarding commencement of litigation, at its own expense, investigate all claims and demands, attend to their settlement or other disposition, defend City in all actions relating to this Lease with legal counsel satisfactory to the City Attorney, and pay all charges of attorneys and all other costs and expenses of any kind whatsoever arising from the liability, injury, damage, loss, demand, claim, or action. Section 29. Insurance. a. Lessee shall secure and maintain at Lessee's expense, during the term of this Lease, insurance of the type and with the amount of coverage shown on the attached Exhibit B, which is incorporated in this Lease by reference. Lessee shall use an insurance company or companies acceptable to the Risk Manager. Failure to maintain the insurance during the term of this Lease, at the limits and requirements shown on Exhibit B, constitutes grounds for termination of this Lease. Page 8 of 17 b. The Certificate of Insurance must be sent to the Risk Manager prior to occupancy of and operations at the Premises. The Certificate of Insurance must provide that the City will have thirty (30) days advance written notice of cancellation, intent to not renew, material change, or termination of any coverage required in this Lease. c. Lessee shall provide, during the term of this Lease, copies of all insurance policies to the Risk Manager upon written request by the City Manager. d. The Risk Manager retains the right to annually review the amount and types of insurance maintained by Lessee, to require increased coverage limits, if necessary in the interest of public health, safety, or welfare, and to decrease coverage, if so warranted. In the event of any necessary increase, Lessee must receive thirty (30) days written notice prior to the effective date of the requirement to obtain increased coverage. e. Lessee shall, prior to any addition or alteration to, in, on, or about the Premises, obtain prior clearance, in writing, from the Risk Manager that the proposed addition or alteration will not necessitate a change or modification in the existing insurance coverage maintained by Lessee. This clearance is in addition to the prior consent required by Section 12(a) of this lease. f. Lessee is responsible for insuring its own personal property at the Premises. Section 30. Default. The following events constitute default under this Lease: (1) Failure to provide consideration in lieu of paying rent or failure to make other payments under this Lease. (2) Failure to pay utilities before the due date. (3) Failure to perform scheduled maintenance. (4) Abandonment of the Premises. (5) Failure to maintain any insurance coverages required in this lease. (6) Failure to timely pay City's invoice for the removal, repainting, or repair of any Signs at the Premises. (7) Failure to keep, perform, and observe any other promises, covenants and conditions contained in this Lease. Section 31. City's Remedies on Lessee's Default. Upon the occurrence of any event of default, the City may, at its option, in addition to any other remedy or right given under this Lease or by law: (1) Give notice to Lessee that this Lease terminates upon the date specified in the notice, which date will be no earlier than five (5) days after the giving of the notice. Page 9 of 17 (2) Immediately or at any time after the occurrence of the event of default and without notice or demand, or upon the date specified in a notice, if given, or in any notice issued under law, the City may enter into and upon the Leased Premises and retake possession, by legal proceedings or otherwise, expel Lessee and anyone claiming through or under Lessee, remove Lessee's or a claimant's goods and effects, forcibly, if necessary, and store the goods in the name and at the expense of Lessee. Section 32. Enforcement Costs. If the City files any legal action or proceeding to repossess the Premises, collect the lease payment(s) due under this Lease, collect for any damages to the Premises, or to enforce in any other way the provisions of this Lease, Lessee agrees to pay all court costs and expenses and the sum that a court of competent jurisdiction adjudges as reasonable attorneys' fees in the action or proceeding, or in an appeal, if a judgment is rendered in favor of the City. Section 33. Modifications. No provision of this Lease may be changed, modified, or waived, unless the change, modification, or waiver is made in writing and signed by persons authorized to sign agreements on behalf of each party. Section 34. Contact Person /Lease Administrator. For this Lease, the City's contact person and lease administrator is the Director. Section 35. Notice. a. All notices, demands, requests, or replies provided for or permitted under this Lease by either party must be in writing and must be delivered by one of the following methods: (i) by personal delivery; (ii) by deposit with the United States Postal Service as certified or registered mail, return receipt requested, postage prepaid; (iii) by prepaid telegram; (iv) by deposit with an overnight express delivery service, for which service has been prepaid; or (v) by fax transmission. b. Notice deposited with the United States Postal Service in the manner described above will be deemed effective two (2) business days after deposit with the United States Postal Service. Notice by telegram or overnight express delivery service will be deemed effective one (1) business day after transmission to the telegraph company or overnight express carrier. Notice by fax transmission will be deemed effective upon transmission with proof of delivery. c. All the communications must only be made to the following: IF TO CITY: IF TO LESSEE: City of Corpus Christi Parks and Recreation Dept. P.O. Box 9277 Corpus Christi, TX 78469-9277 Attn: Director of Park & Recreation (361) 880 -3464 LQ G. Arerflui,u , President West Corpu§ Christi Rotary Club P.O. Box 4613 Corpus Christi, TX 78469 -4613 (361) 815 -3099 Page 10 of 17 d. Either party may change the address to which notice is sent by using a method set out in subsection (a) of this section. Lessee shall notify the City of an address change within ten (10) days after the address is changed. Section 36. Force Majeure. No party to this Lease shall be liable for delays or failures in performance due to any cause beyond the party's control including, without limitation, any delays or failures in performance caused by strikes, lock outs, fires, acts of God or the public enemy, common carrier, severe inclement weather, riots or interference by civil or military authorities. The delays or failures to perform extend the period of performance until these exigencies have been removed. The Lessee shall inform the City in writing of proof of the force majeure within three (3) business days or otherwise waive this right as a defense. Section 37. Relationship of Parties. This Lease establishes a landlord /tenant relationship, and no other relationship. This Lease must be construed conclusively in favor of that relationship. In performing this Lease, the City and Lessee will each 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. Section 38. Not for Benefit of Third Parties. This Lease is only for the benefit of the City and Lessee, and no third party has any rights or claims under this Lease or against the City. Section 39. Publication Costs. Lessee shall pay for the cost of publishing the Lease description and related ordinance, as required by the City's Charter, in the legal section of the local newspaper. Section 40. Interpretation. This Lease shall be interpreted according to the Texas laws that govern the interpretation of contracts. Venue lies in Nueces County, Texas, where this Lease was entered into and will be performed. Section 41. Survival of Terms. Termination or expiration of this Lease for any reason does not release either party from any liabilities or obligations under this Lease that (a) the parties have expressly agreed survive any the termination or expiration; (b) remain to be performed; or (c) by their nature would be intended to be applicable following the termination or expiration of this Lease. Section 42. Captions. The captions utilized in this Lease are for convenience only and do not in any way limit or amplify the terms or provisions of this Lease. Section 43. Severability. a. It is the definite intent of the parties to this Lease that every section, paragraph, subdivision, clause, provision, phrase, or word of this Lease be given full force and effect for its purpose. Therefore, if, for any reason, any section, paragraph, subdivision, clause, provision, phrase, or word of this Lease or the application of this Lease 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 Lease, or the application of the term or provision to persons or circumstances other than Page 11 of 17 those as to which it is held illegal, invalid, or unenforceable, will not be affected by the law or judgment. 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 Lease, then the remainder of this Lease is not affected, 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 Lease automatically. Section 44. Venue. Venue lies in Nueces County, Texas, where this lease was entered into and will be performed. Section 45. Entirety Clause. This Lease and the attachments and exhibits incorporated into this Lease constitute the entire agreement between the City and Lessee for the purpose granted. All other agreements, promises, representations, and understandings, oral or otherwise, with reference to the subject matter of this Lease, unless contained in this Lease are expressly revoked, as the parties intend to provide for a complete understanding within the provisions of this Lease and its exhibits of the terms, conditions, promises, and covenants relating to Lessee's operations and the Premises to be used in the operations. Section 46. Binding Lease. It is further mutually understood and agreed that the covenants and agreements contained in the Lease, to be performed by the respective parties, are binding on the parties, and their respective successors and assigns. Section 47. Acknowledgment. Each party expressly agrees that it has independently read and understood this Lease. By Lessee's execution of this Lease, Lessee acknowledges and understands that this Lease is not binding on the City until properly authorized by the Council and executed by the City Manager or by his designee. EXECUTED IN DUPLICATE ORIGINALS on the ,29.1.A day of Aova f- , 2012. LESSEE: WEST CORPUS CHRISTI ROTARY CLUB ATTEST: CITY OF CORPUS CHRISTI Armando Chapa Ronald C. Olson City Secretary City Manager Page 12 of 17 EXHIBIT A An area 300' by 400' from Tract B, Nueces View Tract, recorded in Volume 28, page 64, Nueces County Plat Records, the same area more particularly described by the following metes and bounds: From the center line of McKenzie Road, a distance along the center of Alison Drive of 918', more or less, to a 2" pipe located upon the approximate right -of -way line (West) of Allison Drive, for a place of beginning, thence 400' Northwest to a 2" pipe, thence 300' Northeast to a 2" pipe, thence 400' Southeast to a 2" pipe on the approximate right -of -way line of Allison Drive, thence 300' Southwest along Allison Drive to the point of beginning, all of which being a 2.75 acre tract of land. • l !• • Exhibit A -1 • i i Pa g e ~13 1 r) • re Jct.; Qawmao •le �ssoetq�,l�w. • 4� 1 •' Rae G I. Noes e ry ��// F.. .._ 'cf� fir;' • I' --=`a°' 1' J.1":.4141."'.• a �.. �••�� l� .� •• ' • 5 1 1 of 17 Page 14 of 17 EXHIBIT A -2 DETAILEDCONDITIONS FOR USING PREMISES CITY OF CORPUS CHRISTI, TEXAS LEASE & USE AGREEMENT WITH THE WEST CORPUS CHRISTI ROTARY CLUB This Exhibit A2 contains detailed conditions for using the Premises ( "Premises ") defined in, and is attached to and governed by, the CITY OF CORPUS CHRISTI, TEXAS Lease and Use Agreement with WEST CORPUS CHRISTI ROTARY CLUB. 1. Lessee Services and Responsibilities. 1.1 Boy Scouts. Annually Lessee will offer sponsorship of Boy Scout Troop 18 in accordance with the governing rules of the South Texas Council of the Boy Scouts of America. Boy Scout Troop 18 activities are held at a Boy Scout hut on the Premises and will be offered to all boys meeting eligibility requirements. 1.2 City Use. If Lessee is not using its Premises, City may use any or all of the area. 1.3 Maintenance. Lessee must maintain the Premises and improvements constructed thereon. If Lessee fails to perform maintenance tasks as scheduled, or fails to perform repairs in a timely manner, City may do so and bill Lessee. Lessee must pay City within 30 days after Director's written demand. At a minimum, maintenance includes: a. Lessee shall pick up and properly dispose of litter on a daily basis whenever the Premises are being used and weekly during the rest of the year; b. Lessee shall keep the Premises (including any buildings, permanent or temporary) operational and in good repair; including, but not limited to, all improvements, irrigation systems and fair weather parking area. c. Lessee must immediately report any vandalism to the Director, or his designee, and the Corpus Christi Police Department, Nueces County, Texas; d. Lessee must keep safe and in good repair all improvements. Lessee must make all repairs within 48 hours after the need for repair is, or should have been discovered. e. Lessee must keep any parking areas and access roads free of debris, properly designated, and free of potholes in accordance with standards issued by the Director. Lessee must repair potholes using the appropriate material, concrete or asphalt, within ten (10) working days after the need for repair is or should have been discovered; f. Lessee must ensure that parking is confined to designated areas; Page 15 of 17 g. Lessee must maintain the Premises within the Lease boundary lines. Grass on the Premises must not exceed 6 inches. Failure to keep the grass below 6 inches shall be grounds for termination. 1.4 Registration, etc. Lessee will promote the program so that the public is aware of the organization's activities. Lessee will conduct all registration, take all fees, and schedule all meetings. 1.5 Utilities. Lessee must pay for all utilities, such as electricity, water, wastewater, and solid waste bills associated with its usage of the Premises. Lessee must pay for all its phone bills. 1.6 Complaint Notice. Lessee will post a notice at Premises, in a form approved by the Director, that if any participant or spectator has any complaints or concerns they may contact the City at 826 -3461 and talk to the Director, or designee. 2. City Responsibilities. 2.1 Debt Service. City will pay bond debt for Premises. 2.2 Maintenance. City will maintain the areas outside of the Premises determined by this lease. 2.3 Capital Improvements. City will fund capital improvements determined by the City that are needed at its discretion. 2.4 Contact Person. For the Lease, the City's contact person is the Director. Page 16 of 17 EXHIBIT B INSURANCE REQUIREMENTS I. LESSEE'S LIABILITY INSURANCE A. Lessee must not commence work under this agreement until all insurance required herein has been obtained and such insurance has been approved by the City. Lessee must not allow any subcontractor to commence work until all similar insurance required of any subcontractor has been obtained. B. Lessee must furnish to the City's Risk Manager, 2 copies of Certificates of Insurance, 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 on 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, material change, non - renewal, or termination and 10 day written notice of cancellation for non- payment of premium is required on all certificates Bodily Injury and Property Damage Per occurrence aggregate Commercial General Liability including: 1. Commercial Form 2. Premises — Operations 3. Products /Completed Operations Hazard 4. Contractual Liability 5. Broad Form Property Damage 6. Independent Contractors 7. Personal Injury $1,000,000 COMBINED SINGLE LIMIT C. In the event of accidents of any kind, Lessee must furnish the Risk Manager with copies of all reports of such accidents within 10 days of the accident. 11. ADDITIONAL REQUIREMENTS A. Certificate of Insurance: 1. The City of Corpus Christi must be named as an additional insured on the General Liability coverage and a blanket waiver of subrogation is required on all applicable policies. Page 17 of 17 2. If your insurance company uses the standard ACORD form, the cancellation clause (bottom right) must be amended by adding the wording "changed or" between "be" and "canceled ", and deleting the words, "endeavor to ", and deleting the wording after "left ". 3. The name of the project must be listed under "Description of Operations" 4. At a minimum, a 30 -day written notice to the Risk Manager of cancellation, material change, non - renewal or termination and a 10 day written notice of cancellation for non - payment of premium is required. B. If the Certificate of Insurance does not show on its face the existence of the coverage required by items 1.B (1) -(7), an authorized representative of the insurance company must include a letter specifically stating whether items 1.B. (1) -(7) are included or excluded. West CC Rotary Club Lease for Boy Scouts ins. req. 7- 13 -12. AGENDA MEMORANDUM Future Item for the City Council Meeting of October 9, 2012 Action Item for the City Council Meeting of October 16, 2012 DATE: TO: September 20, 2012 Ronald L. Olson, City Manager FROM: Michael Morris, Director MichaelMo@cctexas.com 361- 826 -3494 Texas General Land Office Beach Cleaning and Maintenance Assistance Program CAPTION: Resolution authorizing the City Manager or designee to execute all documents necessary to request continued financial assistance for beach cleaning and maintenance on North Padre Island and Mustang Island during FY 2012 -2013 under the Texas General Land Office's Beach Cleaning and Maintenance Assistance Program. PURPOSE: The Beach Cleaning and Maintenance Assistance Program provides reimbursement for some portion of the City of Corpus Christi's beach maintenance expenditures. BACKGROUND AND FINDINGS: The Texas General Land Office (TGLO) Beach Cleaning and Maintenance Assistance Program uses a funding formula to reimburse cities and counties so the reimbursement amount varies from year to year. Currently, the principal portion of the beach maintenance appropriations is distributed among the twelve communities that contain public beaches within their jurisdiction and have made application for funding. For FY11 and FY12, the City received $73,484.34 and $67,737.35 respectively. ALTERNATIVES: Do not apply for beach maintenance funding. OTHER CONSIDERATIONS: Cities which qualify for eligibility under the Natural Resources Code, may receive up to, but no greater than two - thirds reimbursement for eligible expenses incurred in cleaning and maintaining the beaches; however, actual state appropriations have always limited this reimbursement to the range of 10 to 20 percent of actual local costs. CONFORMITY TO CITY POLICY: The City Council must pass a resolution to apply for the Texas General Land Office program. EMERGENCY / NON - EMERGENCY: Non - Emergency DEPARTMENTAL CLEARANCES: Legal, Finance FINANCIAL IMPACT: ❑ Operating X Revenue ❑ Capital ❑ Not applicable Fiscal Year: 2012 -2013 Project to Date Expenditures (CIP only) Current Year Future Years TOTALS Line Item Budget n/a 0 0 Encumbered / Expended Amount n/a 0 0 This item n/a $45,000 $45,000 BALANCE n/a $45,000 $45,000 FUND(S): The revenue from this reimbursement program is budgeted in General Fund 1020. Comments: The FY13 revenue estimate for GLO Reimbursement of $45,000 is lower than actual revenue received during FY12. The Texas General Land Office notified participants that reimbursement would be lower during the FY12 -13 funding year. RECOMMENDATION: Staff recommends the City Council authorize the application for continued financial assistance through the Texas General Land Office for beach cleaning, life guarding, and police patrols at North Padre and Mustang Islands and to execute all necessary documents in connection with the reimbursement application. LIST OF SUPPORTING DOCUMENTS: Resolution Resolution authorizing the City Manager or designee to execute all documents necessary to request continued financial assistance for beach cleaning and maintenance on North Padre Island and Mustang Island during FY 2012 -2013 under the Texas General Land Office's Beach Cleaning and Maintenance Assistance Program. Be it resolved by the City Council of the City of Corpus Christi, Texas: SECTION 1. The City Manager or his designee is authorized to execute all documents necessary to apply for continued financial assistance for cleaning and maintaining beaches under the City's jurisdiction on North Padre Island and Mustang Island during FY 2012 -2013 under the Texas General Land Office's Beach Cleaning and Maintenance Assistance Program. SECTION 2. This Resolution shall take effect and be in full force immediately after its adoption by the City Council. 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 Kelley Allen Larry Elizondo, Sr. Priscilla G. Leal David Loeb John E. Marez Nelda Martinez Mark Scott AGENDA MEMORANDUM Future Item for the City Council Meeting of October 9, 2012 Action Item for the City Council Meeting of October 16, 2012 DATE: September 19, 2012 TO: FROM: Ronald L. Olson, City Manager Michael Morris, Director M ichael Mo @cctexas. com 361- 826 -3494 Amended Latchkey Interlocal Agreement with CCISD CAPTION: Resolution authorizing the City Manager or designee to execute an Amended Interlocal Agreement with the Corpus Christi Independent School District to operate the latchkey program with term of approximately five years. PURPOSE: The purpose of this document is to update the Interlocal Agreement between the Latchkey Program and Corpus Christi Independent School District (CCISD). The amendment includes implementation of the Corpus Christi Independent School District's Student Code of Conduct while students attend the Latchkey program, and adherence to CCISD Policy governing visitors to a campus. BACKGROUND AND FINDINGS: The Latchkey program utilizes 35 CCISD locations to conduct the Afterschool, Summer and Vacation Station programs. Both the City of Corpus Christi and CCISD endeavor to provide a safe environment for District students. ALTERNATIVES: Do not approve amendment. OTHER CONSIDERATIONS: Not applicable. CONFORMITY TO CITY POLICY: Amendments to Interlocal Agreements require City Council approval. EMERGENCY / NON - EMERGENCY: Non - Emergency DEPARTMENTAL CLEARANCES: Legal 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 BALANCE 0 Fund(s): Comments: There is no budget impact related to this amendment. RECOMMENDATION: Staff recommends that the amendment be executed. LIST OF SUPPORTING DOCUMENTS: Amendment to Interlocal Agreement AMENDED INTERLOCAL AGREEMENT BETWEEN THE CORPUS CHRISTI INDEPENDENT SCHOOL DISTRICT AND THE CITY OF CORPUS CHRISTI THE LATCHKEY PROGRAM THIS INTERLOCAL AGREEMENT, hereinafter referred to as "the Agreement ", is made by and between the Corpus Christi Independent School District (hereinafter referred to by name or as the "District "), a political subdivision of the State of Texas, and the City of Corpus Christi, a Texas municipal corporation (hereinafter referred to by name or as the "City "), pursuant to chapter 791 of the Texas Government Code, to achieve efficiency in meeting intergovernmental responsibilities. WHEREAS, the City is sponsoring a child -care and activities program for those elementary students who meet Latchkey's participant guidelines and who attend schools with Latchkey sites. WHEREAS, the District agrees to provide building, playground facilities, utilities, and janitorial services for the Latchkey program ( "Latchkey Program "); WHEREAS, both parties endeavor to provide a safe environment for District students; and WHEREAS, both parties seek to update their Interlocal Agreement concerning the Latchkey Program executed on or about May 24, 2007, by way of this amended agreement; NOW, THEREFORE, the City and District, in consideration of the mutual covenants contained herein, agree as follows: ARTICLE 1. CONTRACT TERM This Agreement begins upon full execution of the Agreement, and ends May 31, 2017, subject to the rights of both parties to terminate this Agreement as stated below. The parties agree that by execution of this Agreement the executed document replaces the prior document in full. ARTICLE 2. DISTRICT RESPONSIBILITIES The District shall have the following obligations and responsibilities pursuant to this Agreement: a. The District agrees to provide building and playground facilities for the Latchkey Program operated by the City during Latchkey's full hours of operation sufficient to meet Latchkey program guidelines. This includes building utilities such as water, gas, electricity, and access to telephones Page 1 1 for emergency calls; use of tables, chairs, televisions, and VCRs; and access to restrooms and playground facilities; b. The District agrees to conduct site inspections to determine compliance with applicable safety codes. This includes yearly fire and gas line inspections and continual monitoring and repair of alarm systems and safety equipment; c. The District agrees to provide health care supplies, including lined trashcans, paper towels, and toilet paper for each site; d. The District agrees to provide after - program custodial maintenance, including the emptying of trash containers, the sweeping and mopping of floors, and spray waxing of furniture as needed; and e. The District agrees to provide at least 48 hours advance notice to the City if Latchkey is to be moved to a different area of the building. Space will be in compliance with State licensing regulations. ARTICLE 3. CITY RESPONSIBILITIES The City shall have the following obligations and responsibilities pursuant to this Agreement: a. The Latchkey staff is responsible for administration of the entire Latchkey Program, including: (I) Setting and collecting fees; providing and monitoring rules and regulations related to student discipline; replacing items that are damaged during the Latchkey Program; (2) Other administrative responsibilities such as hiring and training of staff and coordinating assignments; and (3) Compliance with established program guidelines. b. The Latchkey staff shall: (1) Report violations of the Student Code of Conduct or District policy governing student conduct as soon as possible to the campus principal or other appropriate District official; (2) Report violations of District policy and instances of verbal abuse or offensive physical conduct by non - students, including parents Page 1 2 and Latchkey staff, as soon as possible to the campus principal or other appropriate District official. c. The City will be responsible for the repair or replacement of the facility or equipment that is damaged or lost during the Latchkey Program. The decision as to repair or replacement of a damaged or lost item shall be mutually agreed upon by the City and District. The City will reimburse the District for the damage or loss at current market value. The District will provide proof of value of damaged or lost items by providing the City with any or all of the following: fixed asset records, purchase order, or copies of invoice; d. The City shall coordinate its site inspections to determine compliance with health and safety codes. Latchkey staff will cooperate with school site personnel to monitor the site for a determination of and response to health and safety hazards; e. The City shall be responsible for all Latchkey Program activities including arts and crafts and structured recreational play, This includes storing such materials at the sites where space allows; f. During the Latchkey Program, the City shall provide the following: cleaning the tops of tables and placing trash in trash cans; cleaning chairs; placing chairs under tables; and returning furniture and fixtures to their original arrangements. For safety purposes, Latchkey personnel will be instructed to not place chairs on top of tables. ARTICLE 4. STUDENT CONDUCT DURING LATCHKEY PROGRAM In addition to any rules and regulations provided for by the Latchkey staff, District students participating in the Latchkey Program will abide by the District's Student Code of Conduct as well as District Policy governing student behavior, including but not limited to those prohibiting the use, sale or possession of alcoholic beverages, tobacco, illegal drugs, and firearms (see CCISD Board Policy FNCD, FNCF, and FNCG; see also FFI, FNC, FNCA, FNCB, FNCC, FNCE, FNCH and FNCI), student freedom from discrimination, harassment and retaliation (see CCISD Board Policy FFH), and student freedom from bullying (see CCISD Board Policy FFI). Students who violate the Student Code of Conduct or other District Policy governing student conduct will be subject to discipline by the District in addition to any discipline that may be imposed by Latchkey staff. Page 1 3 ARTICLE 5. CONDUCT BY NON - STUDENTS, INCLUDING PARENTS AND LATCHKEY STAFF, DURING LATCHKEY PROGRAM Any non - student present during the Latchkey program, including parents and Latchkey staff, will abide by District Policy governing visitors to a campus, including but not limited to those prohibiting the use, sale or possession of alcoholic beverages, illegal drugs, and firearms, and the use of tobacco products on school property [see Policy GKA; See also Policies GKC, and GKD], student freedom from discrimination, harassment and retaliation [see CCISD Board Policy FFH], and student freedom from bullying [see CCISD Board Policy FFI]. Those who violate District Policy or engage in verbal abuse or offensive physical conduct toward students, District employees, Latchkey staff, parents, or others present while at the Latchkey program may be banned from the campus and all other District property for a specified time period designated by the campus principal or other appropriate District official. [See GKC(REGULATION)]. ARTICLE 6. USES OF DISTRICT INFORMATION AND RECORDS BY THE CITY The City may, from time to time, have access to, and use of, confidential student information obtained from the District for the sole purpose of the assistance of District students participating in the Latchkey Program. For students with special education requirements, the District will share information and records_with the _Gity regarding said students to ensure that the City's Latchkey Program employees are aware of any individual education plans or special needs for such students, so that appropriate accommodations may be made for such students. The City shall not release or disclose to the public or any third party student information or records without the prior written consent of the parent(s) of the minor in question, except as required by state or federal law. Each party shall take all steps necessary to ensure that the student information and records are viewed only by authorized representatives of the City for the permissible uses stated herein. Said information is considered confidential, and shall not be used by the City or any of its employees or agents for private purposes. The City acknowledges and understands that the unauthorized release of student information or records may subject the individual or entity to criminal and civil penalties. Accordingly, the City will educate and inform its staff regarding the District's "Acceptable Use Guidelines for Technology ", permissible uses of the student information and records obtained from District databases (or other sources), and the Family Educational Rights and Privacy Act (see 20 U.S. C., Section 1232g and 34 C.F.R., Section 90, a seq.). The City further agrees that the information or records disclosed or obtained pursuant to this Agreement will be destroyed by the City after the need for such information ceases to exist. ARTICLE 7. TERMINATION This Agreement may be terminated by any of the following occurrences: A. By mutual agreement and consent in writing by both parties; B. By either party upon thirty (30) days written notice to the other party; Page 1 4 C. By either party upon the failure of the other party to fulfill its obligations as set forth in this Agreement. ARTICLE 8. AMENDMENTS Any and all changes to this Agreement may be enacted by written amendment or addendum properly executed by the appropriate representative of each party. ARTICLE 9. ASSIGNMENT Neither party shall assign, sublet or transfer its interests in this Agreement without the prior written consent of the other party. ARTICLE 10. CONSIDERATION Expenses incurred through Latchkey Program activities are the City's responsibility. Facility and site expenses are the District's responsibility. ARTICLE 11. LICENSING The City will maintain all licenses as may be required by the State of Texas. Monitors for Latchkey sites may make random visits to determine compliance with State guidelines. ARTICLE 12. SITES Site selection is based on need for services as determined by community survey(s) and by availability of required space and fixtures. Selection is also based on access to restrooms, janitorial service availability, and other criteria as determined by the District and the City's Park & Recreation Department. Current space requirements are a minimum of 30 square feet of indoor play space per child. If the City is cited for licensing violations that are due to facility non - compliance issues, the City reserves the right to cease operating the Latchkey Program at that site based upon the compliance date established in the citation unless the District chooses to remedy the noncompliance at its cost or allows the City the right to implement non - structural remedies at its cost. ARTICLE 13. LIMITATION ON LOCATION Notwithstanding Section 10 above, all activities conducted in accordance with this Agreement must be conducted exclusively on a school campus of the Corpus Christi Independent School District pursuant to this Amended Interlocal Agreement. Page 1 5 ARTICLE 14. CONTROL OF FACILITIES AND ANNOUNCEMENTS The District does not give up ultimate control of the facilities and retains the right to enforce all necessary laws, rules and regulations, as well as the right to make announcements as the District may deem necessary in the interest of public safety. The City will cooperate and cause its agents and employees to cooperate with the delivery of such announcements. ARTICLE 15. LIABILITY To the extent permitted by law, neither party shall be responsible to the other for personal injuries, losses, claims, damages, or demands caused by the acts or omissions, if any, of such party or its agents, employees, contractors, patrons, guests, licensees, or invitees related to the City conducting the Latchkey Program at District sites. Liability, if any, of either party shall be that prescribed by the laws of the State of Texas. ARTICLE 16. PUBLIC HEARINGS Pursuant to the Texas Education Code, Section 33.902, the District is required to annually consider, during at least two (2) public hearings, the need for, and availability of, child care before, after, or both before and after, the school day, and during school holidays and vacations for the District's school -age students. The public is notified of the hearings through advertisements in the Corpus Christi Caller -Times and press releases distributed to the media. ARTICLE 17. PROGRAMMATIC CHANGES If the City and District determine that programmatic changes are necessary that modify the responsibilities of either party as set forth in this Agreement, the City Manager and the District's Superintendent of Schools must mutually agree to the change(s) before they are implemented. ARTICLE 18. NOTICES All notices from either party to the other required under this Agreement shall be personally delivered or mailed to such party at the following address: For the City: Mr. Michael Morris, Director City of Corpus Christi Parks & Recreation Department P.O. Drawer 9277 Corpus Christi, Texas 78469 -9277 Page 1 6 For C.C. I.S.D.: Mr. Scott Kucera Corpus Christi I.S.D. P.O. Drawer 110 801 Leopard Street Corpus Christi, Texas 78403 -0110 ARTICLE 19. APPROPRIATION OF FUNDS The City and District agree that the performance of each is subject to the ability of the parties to provide or pay for the services required under this Agreement. The City and District acknowledge that this Agreement between them is entered into in accordance with the Interlocal Cooperation Act, Chapter 791, Texas Government Code. In accordance with said Act, the parties hereto acknowledge that any payments made pursuant to the terms of this Agreement shall be made from current revenues available to the paying party, and any future payments are subject to appropriations. ARTICLE 20. EQUAL OPPORTUNITY The parties shall provide all services associated with the subject matter of this Agreement in compliance with the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972 (34 C.F.R., Section 106, et seq.), and all other applicable federal and state nondiscrimination statutes or laws. ARTICLE 21. LAW GOVERNING AND VENUE The parties agree that the law governing this Agreement shall be that of the State of Texas, and that any disputes arising under this Agreement shall have venue in a State District Court of Nueces County, Texas. ARTICLE 22. MEDIATION The parties agree that any dispute that may arise under this Agreement shall be first submitted to mediation in an attempt to resolve any such dispute before litigation is filed. The parties may seek injunctive relief from a Nueces County District Court prior to mediation if there is an imminent risk of loss or damages. ARTICLE 23. FORCE MAJEURE Each party hereto shall be excused from performance hereunder for any period and to the extent that it is prevented from performing any act, in whole or in part, as a result of delays caused by the other party, or an act of God, war, civil disturbance, court order, labor disputes, third party non - performance, or other cause beyond its reasonable control, including, but not limited to, failures or fluctuations in electrical power, heat, light, air conditioning, or telecommunications equipment. Such non - performance shall not be a default or a ground for termination under this Agreement. Page 1 7 ARTICLE 24: MERGER AND INTEGRATION This Agreement and exhibits, if any, attached hereto contain the entire agreement of the parties with respect to the subject matter of this Agreement, and supersede all prior negotiations, agreements and understandings with respect thereto. WHEREAS, the City of Corpus Christi and the Corpus Christi Independent School District agree to the terms as set forth above, this Agreement shall be effective upon full execution of the Agreement by the proper authorities of each entity, after approval by the governing bodies of such entities, if required by law. SIGNED: CITY OF CORPUS CHRISTI By: Ronald L. Olson City Manager Date: By: Armando Chapa City Secretary Date: Approved as to legal form: By: oC Lisa Aguiia ssistant City Attorney for the City Attorney Date: Page 1 8 CORPUS CHRIST INDEPENDENT SCHOOL DISTRICT By: D. Scott EIflff, Superintendent of Sc Date: 94(/ Reviewed and Approved for Purchasing Compliance By: Br' .�1 SBA, C.P.M. Di'ector for P rchasing and Distribution Date: 9151/ Z Approved as to legal form: By: John J. Janssen, General Counsel for CCISD Date: 4i‹*-- 2r112-- Page 1 9 Resolution authorizing the City Manager or designee to execute an Amended Interlocal Agreement with the Corpus Christi Independent School District to operate the Latchkey program with term of approximately five years. Whereas, by Resolution 027278, on May 22, 2007 the City Council approved a ten year Interlocal Agreement with CCISD to operate a latchkey program; Whereas, both parties seek to update the Interlocal agreement; 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 Amended Interlocal Agreement with the Corpus Christi Independent School District through May 31, 2017 for the City of Corpus Christi to operate a Latchkey program during the school year and summer months on CCISD school grounds. A copy of the agreement is on file in the Office of the City Secretary. SECTION 2. This Resolution shall take effect and be in full force immediately after its adoption by the City Council. 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 Kelley Allen Larry Elizondo, Sr. Priscilla G. Leal David Loeb John E. Marez Nelda Martinez Mark Scott AGENDA MEMORANDUM Future Item for the City Council Meeting of 10/09/2012 Action Item for the City Council Meeting of 10/16/2012 DATE: September 19, 2012 TO: Ronald L. Olson, City Manager FROM: R. Jay Reining, Interim Director, Municipal Court iavr@cctexas.com (361) 826 -2540 Interlocal Cooperation Agreement with the Texas Department of Public Safety relating to the Failure To Appear Program CAPTION: Resolution authorizing the City Manager to execute an Interlocal Cooperation Agreement with the Texas Department of Public Safety relating to the Failure To Appear Program PURPOSE: Adopt an interlocal agreement required by the Texas Department of Public Safety (TDPS) to allow the City to continue its participation in the TDPS' Failure to Appear (FTA) Program authorized by Chapter, Texas Transportation Code. The FTA program withholds renewal of driver's licenses persons who fail to appear for a complaint or citation or fail to pay or satisfy a judgment ordering payment of a fine and costs in the manner ordered by courts. BACKGROUND AND FINDINGS: The interlocal agreement primarily deals with the procedures for providing information to and the compensation of TDPS' vendor, OmniBase Services of Texas by the Municipal Court. The City has been participating in the FTA or OmniBase program since it was first authorized. The FTA program is an important tool to get defendant's to appear and resolve their cases. The Municipal Court has seen a noticeable increase in defendant's trying to resolve their cases so they can renew their driver's licenses. Most employers involved in the Eagle Ford Shale development are requiring new and existing employees to provide proof of valid driver's licenses. If the City has the interlocal agreement with TDPS, we can charge each defendant who fails to appear or fails to pay or satisfy a judgment a fee of $30.00 (called the FTA fee), if we refer their complaint to Omnibase so TPDS will place a hold on the renewal of their driver's license. The City is required to send the State 2/3 ($20.00) of the $30.00 fee. Under the interlocal agreement, we are required to pay Omnibase a service fee of $6.00. The City gets to keep the remaining $4.00 for its general fund. In FY 2012, we collected a total of $55,202 in FTA fees, sent the State $36,801, paid Omnibase $11,040, and kept $7,360 in revenue to the General Fund. ALTERNATIVES: The alternative to executing the interlocal agreement is to forego participation in the FTA program. OTHER CONSIDERATIONS: Not applicable. CONFORMITY TO CITY POLICY: Not applicable. EMERGENCY / NON- EMERGENCY: This is a routine, non - controversial item. DEPARTMENTAL CLEARANCES: Not applicable. 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 BALANCE Fund(s): RECOMMENDATION: City Council should adopt the resolution authorizing the City Manager to execute the interlocal agreement with TDPS. LIST OF SUPPORTING DOCUMENTS: Resolution Interlocal Cooperation Agreement Page 1 of 2 RESOLUTION AUTHORIZING THE CITY MANAGER TO EXECUTE AN INTERLOCAL COOPERATION AGREEMENT WITH THE TEXAS DEPARTMENT OF PUBLIC SAFETY RELATING TO THE FAILURE TO APPEAR PROGRAM NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF CORPUS CHRISTI, TEXAS: SECTION 1. The City Manager is authorized to execute an interlocal cooperation agreement with the Texas Department of Public Safety relating to the Failure to Appear Program, under Chapter 706, Texas Transportation Code. SECTION 2. The City Manager is authorized to make editorial and non - substantive modifications and execute amendments to the interlocal cooperation agreement without the further approval of the City Council that do not require the appropriation of additional funds or exceed the City Manager's authority to amend contracts, including, but not limited to, time extensions, modifications to schedule, modifications in scope of work, and any changes dictated by entities providing grant funding for the project. ATTEST: THE CITY OF CORPUS CHRISTI Armando Chapa City Secretary 0024 2 Resolution -TDPS FTA Interlocal Joe Adame Mayor Page 2of2 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 0024 2 Resolution -TDPS FTA Interlocal Interlocal Cooperation Contract STATE OF TEXAS § COUNTY OF NUECES § I. Parties This Interlocal Cooperation Contract ( "Contract ") is made and entered into between the Texas Department of Public Safety ( "TDPS "), a political subdivision of the State of Texas, and the City of Corpus Christi, Texas, a local political subdivision of the State of Texas. II.Overview The purpose of this Contract is to implement the provisions of Texas Transportation Code Chapter 706. A local political subdivision may contract with the TDPS to provide information necessary to deny renewal of the driver license of a person who fails to appear for a complaint or citation or fails to pay or satisfy a judgment ordering payment of a fine and cost in the manner ordered by the court in a matter involving any offense that a court has jurisdiction of under Chapter 4, Code of Criminal Procedure. The TDPS has authority to contract with a private vendor ( "Vendor ") pursuant to Texas Transportation Code §706.008. The Vendor will provide the necessary goods and services to establish an automated system ( "FTA System ") whereby information regarding violators subject to the provisions of Texas Transportation Code Chapter 706 may be accurately stored and accessed by the TDPS. Utilizing the FTA System as a source of information, the TDPS may deny renewal of a driver license to a person who is the subject of an FTA System entry. Each local political subdivision contracting with the TDPS will pay monies to the Vendor based on a fee established by this Contract. The TDPS will make no direct or indirect payments to the Vendor. The Vendor will ensure that accurate information is available to the TDPS, political subdivisions and persons seeking to clear their licenses at all reasonable times. 111. Definitions "Complaint" means notice of an offense as defined in Article 27.14(d) or Article 45.019, Code of Criminal Procedure. "Department" or 'TDPS" means the Texas Department of Public Safety. "Failure to Appear Program" or "FTA Program" refers to the implementation efforts of all parties, including those system components provided by the TDPS, local political subdivisions and the Vendor, including the FTA System. 1 0024_3_Contract -TDPS Interlocal re FTA System "Failure to Appear System" or "FTA System" refers to the goods and services, including all hardware, software, consulting services, telephone and related support services, supplied by the Vendor. "FTA Software" refers to computer software developed or maintained now or in the future by the Vendor to support the FTA System. "Originating Court" refers to the court in which an applicable violation has been filed for which a person has failed to appear or failed to pay or satisfy a judgment and which has submitted an appropriate FTA Report. "State" refers to the State of Texas. "Local political subdivision" refers to a city or county of the State of Texas Unless otherwise defined, terms used herein shall have the meaning assigned by Texas Transportation Code Chapter 706 or other relevant statute. Terms not defined in this Contract or by other relevant statutes shall be given their ordinary meanings. IV. Governing Law This Contract is entered into pursuant to Texas Government Code Chapter 791 and is subject to the laws and jurisdiction of the State of Texas and shall be construed and interpreted accordingly. V. Venue The parties agree that this Contract is deemed performable in Travis County, Texas, and that venue for any suit arising from the interpretation or enforcement of this Contract shall lie in Travis County, Texas. VI. Application and Scope of Contract This Contract applies to each FTA Report submitted to and accepted by the TDPS or the Vendor by the local political subdivision pursuant to the authority of Texas Transportation Code Chapter 706. VII. Required Warning on Citation for Traffic Law Violations A peace officer authorized to issue citations within the jurisdiction of the local political subdivision shall issue a written warning to each person to whom the officer issues a citation for a traffic law violation. This warning shall be provided in addition to any other warnings required by law. The warning must state in substance that if the person fails to appear in court for the prosecution of the offense or if the person fails to pay or satisfy a judgment ordering the payment of a fine and cost in the manner ordered by the court, the person may be denied renewal of the person's driver license. The written warning may be printed on the citation or on a separate instrument. 2 0024_3_Contract -TDPS Interlocal re FTA System VIII. FTA Report If the person fails to appear or fails to pay or satisfy a judgment as required by law, the local political subdivision may submit an FTA Report containing the following information: (1) the jurisdiction in which the alleged offense occurred; (2) the name of the local political subdivision submitting the report; (3) the name, date of birth and Texas driver license number of the person who failed to appear or failed to pay or satisfy a judgment; (4) the date of the alleged violation; (5) a brief description of the alleged violation; (6) a statement that the person failed to appear or failed to pay or satisfy a judgment as required by law; (7) the date that the person failed to appear or failed to pay or satisfy a judgment; and (8) any other information required by the TDPS. There is no requirement that a criminal warrant be issued in response to the person's failure to appear. The local political subdivision must make reasonable efforts to ensure that all FTA Reports are accurate, complete and non - duplicative. IX. Clearance Reports The originating court that files the FTA Report has a continuing obligation to review the report and promptly submit appropriate additional information or reports to the Vendor or the TDPS. The clearance report shall identify the person, state whether or not a fee was required, advise the TDPS to lift the denial of renewal and state the grounds for the action. All clearance reports must be submitted immediately from the time and date that the originating court receives appropriate payment or other information that satisfies the citizen's obligation to that court. To the extent that a local political subdivision utilizes the FTA Program by submitting an FTA Report, there is a corresponding obligation to collect the statutorily required $30.00 administrative fee. If the person is acquitted of the underlying offense for which the original FTA Report was filed, the originating court shall not require payment of the administrative fee. The local political subdivision shall submit a clearance report immediately advising the TDPS to lift the denial of renewal and identifying the grounds for the action. 3 0024_3_Contract -TDPS Interlocal re FTA System The local political subdivision must immediately file a clearance report upon payment of the administrative fee and: (1) the perfection of an appeal of the case for which the warrant of arrest was issued or judgment arose; (2) the dismissal of the charge for which the warrant of arrest was issued or judgment arose; (3) the posting of a bond or the giving of other security to reinstate the charge for which the warrant was issued; (4) the payment or discharge of the fine and cost owed on an outstanding judgment of the court; or (5) other suitable arrangement to pay the fine and cost within the court's discretion. The TDPS will not continue to deny renewal of the person's driver license after receiving notice from the local political subdivision that the FTA Report was submitted in error or has been destroyed in accordance with the local political subdivision's record retention policy. X. Compliance with Law The local political subdivision understands and agrees that it will comply with all local, state and federal laws in the performance of this Contract, including administrative rules adopted by the TDPS. XI. Accounting Procedures An officer collecting fees pursuant to Texas Transportation Code §706.006 shall keep separate records of the funds and shall deposit the funds in the appropriate municipal or county treasury. The custodian of the municipal or county treasury may deposit such fees in an interest - bearing account and retain the interest earned thereon for the local political subdivision. The custodian shall keep accurate and complete records of funds received and disbursed in accordance with this Contract and the governing statutes. The custodian shall remit $20.00 of each fee collected pursuant to Texas Transportation Code §706.006 to the Comptroller on or before the last day of each calendar quarter and retain $10.00 of each fee for payment to the Vendor and credit to the general fund of the municipal or county treasury. XII. Payments to Vendor The TDPS has contracted with OmniBase Services of Texas ( "Vendor "), a corporation organized and incorporated under the laws of the State of Texas, with its principal 4 0024_3_Contract -TDPS Interlocal re FTA System place of business in Austin, Texas, to assist with the implementation of the FTA Program. Correspondence to the Vendor may be addressed as follows: OmniBase Services of Texas 7320 North Mo Pac Expressway, Suite 310 Austin, Texas 78731 (512) 346 -6511 ext 100 (512) 346 -9312 (fax) The local political subdivision must pay the Vendor a fee of $6.00 per person for each violation which has been reported to the Vendor and for which the local political subdivision has subsequently collected the statutorily required $30.00 administrative fee. In the event that the person has been acquitted of the underlying charge, no payment will be made to the Vendor or required of the local political subdivision. The parties agree that payment shall be made by the local political subdivision to the Vendor no later than the last day of the month following the close of the calendar quarter in which the payment was received by the local political subdivision. XIII. Litigation and Indemnity In the event that the local political subdivision is aware of litigation in which this Contract or Texas Transportation Code Chapter 706 is subject to constitutional, statutory, or common -law challenge, or is struck down by judicial decision, the local political subdivision shall make a good faith effort to notify the TDPS immediately. Each party may participate in the defense of a claim or suit affecting the FTA Program, but no costs or expenses shall be incurred for any party by the other party without written consent. To the extent authorized by law, the local political subdivision City agrees to indemnify and hold harmless the TDPS against any claims, suits, actions, damages and costs of every nature or description arising out of or resulting from the performance of this Contract, and the local political subdivision City further agrees to satisfy any final judgment awarded against the local political subdivision City or the TDPS arising from the performance of this Contract, provided said claim, suit, action, damage, judgment or related cost is not attributed by the judgment of a court of competent jurisdiction to the sole negligence of the TDPS. It is the agreement of the parties that any litigation involving the parties to this Contract may not be compromised or settled without the express consent of the TDPS, unless such litigation does not name the TDPS as a party. This section is subject to the statutory rights and duties of the Attorney General for the State of Texas 5 0024_3_Contract -TDPS Interlocal re FTA System XIV. Contract Modification No modifications, amendments or supplements to, or waivers of, any provision of this Contract shall be valid unless made in writing and executed in the same manner as this Contract. XV. Severability If any provision of this Contract is held to be illegal, invalid or unenforceable under present or future laws effective during the term hereof, such provision shall be fully severable. This Contract shall be construed and enforced as if such illegal, invalid or unenforceable provision had never comprised a part hereof, and the remaining provisions shall remain in full force and effect and shall not be affected by the illegal, invalid or unenforceable provision or by its severance therefrom. XVI. Multiple Counterparts This Contract may be executed in a number of identical counterparts, each of which shall be deemed an original for all purposes and all of which constitutes, collectively, one Contract. But, in making proof of this Contract, it shall not be necessary to produce or account for more than one such counterpart. XVII. Effective Date of Contract This Contract shall be in effect from and after the date that the final signature is set forth below. This Contract shall automatically renew on a yearly basis. However, either party may terminate this Contract upon thirty days written notice to the other party. Notice may be given at the following addresses: City of Corpus Christi Attn: Director, Municipal Court 102 N. Chaparral Street Corpus Christi, Texas 78401 (361) 826 -2560 [fax] Texas Department of Public Safety Attn: Enforcement and Compliance Service 5805 North Lamar Boulevard Austin, Texas 78773 -0001 (512) 424 -5311 [fax] Notice is effective upon receipt or three days after deposit in the U. S. mail, whichever occurs first. After termination, the local political subdivision has a continuing obligation to report dispositions and collect fees for all violators in the FTA System at the time of term ination. 6 0024_3_Contract -TDPS Interlocal re FTA System TEXAS DEPARTMENT OF CITY OF CORPUS CHRISTI, TEXAS PUBLIC SAFETY Sheri Gipson Deputy Administrator 0024_3_Contract -TDPS Interlocal re FTA System Ronald Olson City Manager Date Attest: Armando Chapa City Secretary 7 AGENDA MEMORANDUM Future Item for the City Council Meeting of October 9, 2012 Action Item for the City Council Meeting of October 16, 2012 DATE: TO: September 13, 2012 Ronald L. Olson, City Manager FROM: Daniel Biles, P.E., Director of Engineering Services DanB @cctexas.com (361) 826 -3729 Foster Crowell, Director of Wastewater Services FosterC @cctexas.com (361) 826 -1801 Approval of Contract for Professional Services: Wastewater Permit Assistance FY 2012 CAPTION: Motion authorizing the City Manager, or designee, to execute a Contract for Professional Services with RPS Espey of Austin, Texas in the amount of $70,000.00 for the Wastewater Permit Assistance FY 2012. PURPOSE: The purpose of this Agenda Item will authorize the proposed consultant to begin assisting the City of Corpus Christi in the wastewater permitting process. BACKGROUND AND FINDINGS: The City Wastewater Department is in the process of renewing or amending wastewater discharge permits as part of its business treatment plant operations. This execution of this project will provide subject matter expertise related to regulatory requirements and issues for the City of Corpus Christi's six (6) Wastewater treatment plants. RPS Espey will utilize its strong treatment, water quality and regulatory expertise to assist the City in the wastewater permitting process. The Espey team will work in close cooperation with City staff to understand its goals and will coordinate with the Texas Commission on Environmental Quality (TCEQ) regularly about permit issues. The Espey team will also provide assistance on addressing regulatory issues, rule changes, enforcement letters and on the decommissioning of plant operations. This project will be completed on a Time and Materials basis by work orders defined by the City. RPS Espey was selected to perform this work based on selection through RFQ No. 2011 -05. ALTERNATIVES: 1. Award the contract to RPS Espey as proposed. 2. Do not award the contract to RPS Espey as proposed. OTHER CONSIDERATIONS: Not applicable. CONFORMITY TO CITY POLICY: Conforms to statues regarding FY 2012 -2013 Wastewater Operating Budget. EMERGENCY / NON - EMERGENCY: Non - emergency DEPARTMENTAL CLEARANCES: Wastewater 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 $75,250.00 $75,250.00 Encumbered / Expended Amount This item $70,000.00 $70,000.00 Future Anticipated Expenditures $5,250.00 $5,250.00 BALANCE $0.00 $0.00 Fund(s): Wastewater Operating Comments: This is a multiple year contract with an initial one year period and may be renewed for up to five years. RECOMMENDATION: City staff recommends the Contract for Professional Services be awarded to RPS Espey of Austin, Texas, in the amount of $70,000.00 for the Wastewater Permit Assistance FY 2012. LIST OF SUPPORTING DOCUMENTS: Project Budget Location Map Contract PROJECT BUDGET ESTIMATE WASTEWATER PERMIT ASSISTANCE FY 2012 Future Item for the City Council Meeting of October 9, 2012 Action Item for the City Council Meeting of October 16, 2012 FUNDS AVAILABLE: Wastewater Operating $75,250.00 FUNDS REQUIRED: Construction (preliminary estimate) Contingency (10 %) 0.00 0.00 Consultant Fees: Consultant (RPS Espey) 70,000.00 Reimbursements: Contract Administration (Contract Preparation /Award /Admin) 1,575.00 Engineering Services (Project Mgt/Constr Mgt/Traffic Mgt) 2,450.00 Finance 875.00 Misc. (Printing, Advertising, etc.) 350.00 TOTAL $75,250.00 ESTIMATED PROJECT BUDGET BALANCE $0.00 \ Mproject \councilexhibits \exhE12151. dwg ALLISON WWTP BROADWAY WWTP LAGUNA MADRE WWTP GREENWOOD WWTP FM 2444 WHITECAP WWTP LOCATION MAP NOT TO SCALE PROJECT #E12151 WASTEWATER PERMIT ASSISTANCE FY 2012 CITY COUNCIL EXHIBIT CITY OF CORPUS CHRISTI, TEXAS DEPARTMENT OF ENGINEERING SERVICES PAGE: 1 of 1 CITY OF CORPUS CHRISTI CONTRACT FOR PROFESSIONAL SERVICES The City of Corpus Christi, a Texas home rule municipal corporation, P.O. Box 9277, Corpus. Christi, Nueces County, Texas 78469 -9277 (City) acting through its duly authorized City Manager or Designee (Director of Engineering Services) and RPS E$pev (Architect/Engineer — AIE), hereby agree as follows: 1. SCOPE OF PROJECT (Wastewater Permit Assistance FY 2012, Project No.E12151) The Espey team will utilize its strong treatment, water quality and regulatory expertise to assist the City of Corpus Christi (City) in the wastewater permitting process. The Espey team will work in close cooperation with the City staff to understand its goals and will coordinate with the Texas Commission on Environmental Quality (TCEQ) regularly about permit issues. The Espey team will also provide assistance on addressing regulatory issues, rule changes, enforcement letters and on the decommissioning of plant operations. 2. SCOPE OF SERVICES The A/E hereby agrees, at its own expense, to perform professional services as described in Exhibits "A" and "A -1 ". In addition, A/E will provide monthly status updates (project progress or delays, gantt charts presented with monthly invoices) and provide contract administration services, as described in Exhibits "A" and "A -1 ", to complete the project. Work will not begin on Additional Services until requested by the A/E (provide breakdown of costs, schedules), and written authorization is provided by the Director of Engineering Services. 3.. ORDER OF SERVICES Work will not begin on any phase or any Additional Services until requested in writing by the NE and written authorization is provided by the Director of Engineering Services. The anticipated schedule is shown on Exhibit "A ". This schedule is not to be inclusive of all additional time that may be required for review by the City staff and may be amended by or with the concurrence of the Director of Engineering Services. The Director of Engineering Services may direct the NE to undertake additional services or tasks provided that no increase in fee is required. Services or tasks requiring an increase of fee will be mutually agreed and evidenced in writing as an amendment to this contract. NE shall notify the City of Corpus Christi within three (3) days of notice if tasks requested requires an additional fee. 4. INDEMNITY AND INSURANCE A/E agrees to the mandatory contract indemnification and insurance requirements as set forth in Exhibit "B ". Contract for Engineering (ME) Services K:%Engineering 6ataExchengelJENNIFERLWASTEWATER1E12151 WASTEWATER PERMIT ASSISTANCE FY 20121Contract.doc Page 1 of 3 5. FEE The City will pay the NE a fee, as described in Exhibit "A ", for providing services authorized, a total fee not to exceed $70,000 (Seventy Thousand Dollars and Zero Cents), renewable for five years. Monthly invoices will be submitted in accordance with Exhibit «p ». 6. TERMINATION OF CONTRACT The City may, at any time, with or without cause, terminate this contract upon seven days written notice to the NE at the address of record. In this event, the NE will be compensated for its services on all stages authorized based upon NE and City's estimate of the proportion of the total services actually completed at the time of termination. 7. ASSIGNABILITY The A/E will not assign, transfer or delegate any of its obligations or duties in this contract to any other person without the prior written consent of the City, except for routine duties delegated to personnel of the NE staff. If the A/E is a partnership, then in the event of the termination of the partnership, this contract will inure to the individual benefit of such partner or partners as the City may designate. No part of the A/E fee may be assigned in advance of receipt by the NE without written consent of the City. The City will not pay the fees of expert or technical assistance and consultants unless such employment, including the rate of compensation, has been approved in writing by the City. 8. OWNERSHIP OF DOCUMENTS All documents including contract documents (plans and specifications), record drawings, contractor's field data, and submittal data will be the sole property of the City, may not be used again by the NE without the express written consent of the Director of Engineering Services. However, the A/E may use standard details that are not specific to this project. The City agrees that any modification of the plans will be evidenced on the plans, and be signed and sealed by a professional engineer prior to re -use of modified plans. 9. DISCLOSURE OF INTEREST A/E further agrees, in compliance with City of Corpus Christi Ordinance No. 17112, to complete, as part of this contract, the Disclosure of Interests form attached as Exhibit "C ". CITY OF CORPUS CHRISTI RPS Espey Oscar R. Martinez, Date David Harkins, P.E. Date Assistant City Manager 4801 Southwest Parkway Parkway 2, Suite 150 Austin, TX 78735 (512) 326 -5659 Office (512) 326 -5723 Fax Contract for Engineering (A/E) Services K:1EngineeAng DalaExchange \JENNIPERIWASTEWATER{E12161 WASTEWATER PERMIT ASSISTANCE FY 20121Cantract,doC Rage 2 of 3 RECOMMENDED ID IL niel Biles, P.E., Date 'rector of Engineering Services Operating Department Date APPROVED AS TO FORM Office of Management Date and Budget Legal Department ATTEST Date Armando Chapa, City Secretary Project No. E12151 Fund Source No. 530000 - 4200-33000- E12151 Encumbrance No. WCI5K, C eK 0 p cM1v Contract for Engineering (AIE) Services K1Engineering DataExchangaWENNIFERIWASTEWATEME 12151 WASTEWATER PERMIT ASSISTANCE FY 2O121Contracl.doc Page 3 of 3 EXHIBIT "A" CITY OF CORPUS CHRISTI, TEXAS Wastewater Permit Assistance FY 2012 (Project No. E12151) 1. SCOPE OF SERVICES A. Basic Services. None B. Additional Services (ALLOWANCE) This section defines the scope (and ALLOWANCE) for compensation for additional services that may be included as part of this contract, but the A/E will not begin work on this section without specific written approval by the Director of Engineering Services. Fees for Additional Services are an allowance for potential services to be provided and will be negotiated by the Director of Engineering Services as required. The A/E will, with written authorization by the Director of Engineering Services, do the following: 1. Wastewater Permit Assistance. Furnish the City all engineering data and documentation necessary for all required permits and permitting assistance. As necessary, the A/E will prepare this documentation for all required signatures. The A/E will prepare and submit all permits as applicable to the appropriate local, state, and federal authorities, including, but not limited to: a. TxDOT Permits /Amendments b. Wetlands Delineation and Permit c. Temporary Discharge Permit d. NPDES Permit/Amendments e. Texas Commission of Environmental Quality (TCEQ) Permits /Amendments f. U.S. Fish and Wildlife Service (USFWS) g. U.S. Army Corps of Engineers (USACE) h. United States Environmental Protection Agency (USEPA) Refer to Exhibit A -1 for detailed task list. 2. SCHEDULE There is not a typical schedule for this contract. It will be an annual project with different delivery requests. 3. FEES A. Fee for Basic Services. None B. Fee for Additional Services. For services authorized by the Director of Engineering Services under Section 1.B. "Additional Services," the City will pay the A/E a not -to- exceed fee as per the table below: K1Engineering DatRExchangelJENNIFERIWASTEWATER \E12151 WASTEWATER PERMIT ASSISTANCE FY20121Exhibit A.doc EXHIBIT "A" Page 1 of 2 ummary of Fees Basic Services Fees 1. Preliminary Phase $0.00 2. Design Phase $0.00 3. Bid Phase $0.00 4. Construction Phase $0.00 Sub -Total Basic Services Fees $0.00 Additional Services Fees (Allowance) 1. Wastewater Permit Assistance $70,000.00 Sub -Total Additional Services Fees $70,000.00 Total Authorized Fee $70,000.00 EXHIBIT "A" Page 2 of 2 K1Enginaaring DataExchange \JENNIFERIWASTEWATERLE12151 WASTEWATER PERMIT ASSISTANCE FY 20121Exhibit A.doo EXHIBIT "A -1" SCOPE OF WORK (Provides supplemental description to Exhibit "A ". Exhibit "A -1" Task List does not supersede Exhibit "Al CITY OF CORPUS CHRISTI, TEXAS WASTEWATER PERMIT ASSISTANCE FY 2012 PROJECT NO. E12151 TABLE OF CONTENTS ADDITIONAL SERVICES 1. Wastewater Permit Assistance 2 1.1. Task 1 — Meet with City Staff 2 1.2. Task 2 — Data Collection 2 1.3. Task 3 — Perform regulatory agency interaction and coordination 3 1.4. Task 4 — Provide assistance in preparation of the City's position on permitting issues 3 1.5. Task 5 -- Provide support to the City in responding to specific regulatory requirements and issues presented by the TCEQ 3 1.6. Task 6 — Assist the City with the preparation of response to regulatory enforcement letters 3 1.7. Task 7 — Provide assistance with full and partial decommissioning of treatment plant processes 4 1.8. Task 8 — Provide assistance with other water quality regulatory issues 4 1.9. Task 9 — Advise the City of anticipated regulatory permit requirements and rule changes for treatment processes 4 1.10. Task 10 — Additional Meetings with Corpus Christi and TCEQ 4 1.11. Task 11 — Contested Case Hearing Support 4 EXHIBIT "A -1" Page 1 of 4 Introduction The Espey team will utilize its strong treatment, water quality and regulatory expertise to assist the City of Corpus Christi (City) in the wastewater permitting process. The Espey team will work in close cooperation with the City staff to understand its goals and will coordinate with the Texas Commission on Environmental Quality (TCEQ) regularly about permit issues. The Espey team will also provide assistance on addressing regulatory issues, rule changes, enforcement letters and on the decommissioning of plant operations. This project will be completed on a Time and Materials basis by work orders defined by the City. BASIC SERVICES - NIA ADDITIONAL SERVICES 1. Wastewater Permit Assistance Provide permitting assistance as described and in accordance with Exhibit A. ENGINEER will provide coordination with regulatory personnel as required to ensure approval by all state /federal agencies. This will involve detailed correspondence with TCEQ during the preliminary design and design phases to ensure their timely approval of the proposed process improvements and/or modifications and to maintain compliance with the City's discharge permit. Provide backup documentation, clarifications, answers as requested by the permitting agencies. 1.1. Task 1 — Meet with City Staff Espey team will meet with City staff at Corpus Christi to ensure project goals are defined. The meeting will also allow team members to meet the City staff that will be working on this project. 1.2. Task 2 — Data Collection After City goals have been defined, the Espey team will collect and review the appropriate data. This may include existing permits, permit applications, timelines for permit renewals, treatment changes occurring between permitting cycles, discharge monitoring records, flow estimates, contested case issues (if any), environmental issues, reports and/or technical memos form other consultants, treatment plant design documents, etc. Plant visits may be conducted to further gather information about each plant's treatment layout. 1.3. Task 3 — Perform regulatory agency interaction and coordination The Espey team will obtain preliminary TCEQ input to considerations to be applied to permitting actions for the City. Espey will bring this information back to the City for validating City expectations for the project and adjusting as necessary the strategy for advancing he project. The team will then continue to coordinate with the TCEQ regularly to ensure that each item identified by the City will be addressed and move in a timely fashion through the TCEQ permitting process. 1.4. Task 4 — Provide assistance in preparation of the City's position on permitting issues Espey team will complete the wastewater permit renewal application in order to meet the 180 day submittal deadline including the preparation of Attachments and Technical reports as required by the TCEQ. Additionally, Espey team will complete any required analytical sampling. The Espey team will submit the application for a renewal permit to discharge wastes from domestic wastewater operations for the City of Corpus Christi WWTP. The permit application process includes posting a public notice of the request for a reuse permit and communication with TCEQ for additional information requested by the TCEQ after the initial application submission. Permit and notice fees are not included as part of this proposal. 1.5. Task 5 -- Provide support to the City in responding to specific regulatory requirements and issues presented by the TCEQ After the City submits applications for permits and/or renewals, the TCEQ may ask for clarification or additional information on the project. The Espey team will assist the City in developing the responses to these requests in a timely manner. The Espey team has extensive experience in providing additional documentation to the TCEQ. 1.6. Task 6 — Assist the City with the preparation of response to regulatory enforcement letters If the City has enforcement letters from TCEQ, the Espey team will assist the City in developing responses to the letters in a timely manner. The Espey team will also work with the City to recommend solutions for the problems causing the TCEQ to issue the enforcement letter. 1.7. Task 7 — Provide assistance with full and partial decommissioning of treatment plant processes Should the City's plan of action result in full or partial decommissioning of the City's facilities, the Espey team will coordinate a meeting with City operations of that facility to discuss options for physical removal of facilities, constraints during construction, and identification of any operational needs that arise resulting from the loss of the facilities. The Espey team will then structure an implementation plan for this decommissioning, present it to City for review, and incorporate comments prior to implementing the plan. Implementations considerations will include preparation of construction plans and operational contingency plans, but in preparing both, the Espey team will place emphasis on the critical nature of avoiding impact to operations during implementation. 1.8. Task 8 — Provide assistance with other water quality regulatory issues The Espey team will provide assistance and guidance for the water quality issues related to any of the permits or WWI-Ps. This could include a simple water quality analysis or a complicated set of water quality models. The Espey team has extensive experience to provide any and all water quality services. 1.9. Task 9 — Advise the City of anticipated regulatory permit requirements and rule changes for treatment processes The Espey team will continue to advise the City on regulatory issues that arise from TCEQ or EPA to ensure that the WWTPs are meeting all required regulations. The Espey team will discuss changes in regulations with the City far enough in advance of the new rules to allow the City to plan and construct facilities to meet these new regulations. 1.10. Task 10 — Additional Meetings with Corpus Christi and TCEQ Espey team will coordinate throughout the course of the project participate in meetings with City and TCEQ staff. These meetings will be used to collect data, respond to TCEQ comments, assist TCEQ in technical explanations, and negotiate the terms of the permit. 1.11. Task 11 — Contested Case Hearing Support Occasionally when a wastewater permit renewal application is submitted and the public notice has been posted, concerned parties will protest the permit application. If this permit application is protested and becomes a contested case, Espey team has capable staff available to defend and process the application through the contested case hearing process. However, these tasks are not included in this current scope of work. EXHIBIT "A -1" Page 4 of 4 EXHIBIT "B" INSURANCE REQUIREMENTS Insurance Requirements A. Consultant 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 Consultant must not allow any subcontractor to commence work until all similar insurance required of the subcontractor has been obtained. B. Consultant must furnish to the City's Risk Manager, two (2) copies of Certificates of Insurance with applicable policy endorsements, showing the following minimum coverages by insurance company(s) acceptable to the City's Risk Manager. The City must be named as an additional insured for all liability policies (except Workers Compensation /EL and Professional Liability), and a blanket waiver of subrogation is required on all applicable policies (except Professional Liability). TYPE OF INSURANCE MINIMUM INSURANCE COVERAGE 30 -Day Written Notice of Cancellation, or reduction in coverage or limits required on all certificates or by policy endorsements Bodily Injury & Property Damage Per occurrence - aggregate COMMERCIAL GENERAL LIABILITY including: 1. Broad Form 2. Premises - Operations 3. Products/ Completed Operations 4. Contractual Liability 5. Independent Contractors 6. Personal Injury / Advertising Injury $1,000,000 COMBINED SINGLE LIMIT Per Occurrence and in the aggregate AUTOMOBILE LIABILITY to include: 1. Owned vehicles 2. Hired — Non -owned vehicles $1,000,000 COMBINED SINGLE LIMIT UMBRELLA — EXCESS LIABIITY Must follow form $1,000,000 COMBINED SINGLE LIMIT PROFESSIONAL LIABILITY including: Coverage provided shall cover all employees, officers, directors and agents 1. Errors and Omissions $2,000,000 per claim / $2,000,000 aggregate (Defense costs not included in face value of the policy) If claims made policy, retro date must be prior to inception of agreement; have extended reporting period provisions and identify any limitations regarding who is an Insured WORKERS' COMPENSATION EMPLOYERS' LIABILITY Applicable to paid employees while on City property Which Complies with the Texas Workers Compensation Act $500,000/$500,000/$500,000 EXHIBIT "B" Page 1 of 3 C. In the event of accidents of any kind related to this agreement, Consultant must furnish the Risk Manager with copies of all reports within (10) ten days of accident. D. Consultant must obtain workers' compensation coverage through a licensed insurance company in accordance with Texas law. The contract for coverage must be written on a policy and 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. E. Consultant's financial integrity is of interest to the City; therefore, subject to Successful Consultant's right to maintain reasonable deductibles in such amounts as are approved by the City, Consultant shall obtain and maintain in full force and effect for the duration of this Contract, and any extension hereof, at Consultant's sole expense, insurance coverage written on an occurrence basis (except for Professional Liability), 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. F. City shall be entitled, upon request and without expense, to receive Certificates of Insurance and all endorsements thereto as they apply to the limits required by the City. 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 G. Consultant agrees that with respect to the above required insurance, all insurance policies are to contain or be endorsed to contain the following required provisions: i. Name the City and its officers, officials, employees, volunteers, and elected representatives as additional insured by endorsement, as respects operations and activities of, or on behalf of, the named insured performed under contract with the City, with the exception of the workers' compensation and professional liability policies; ii. 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; iii. Workers' compensation and employers' liability policies will provide a waiver of subrogation in favor of the City; and iv. Provide thirty (30) calendar days advance written notice directly to City on CGL and Auto policies of any suspension, cancellation, non - renewal or reduction in coverage or limits in coverage, and not less than ten (10) calendar days' advance written notice for nonpayment of premium. Consultant shall provide this notice to City on Workers Compensation and Professional Liability policies. H. Within five (5) calendar days of a suspension, cancellation, or non - renewal of coverage, Successful Consultant shall provide a replacement Certificate of Insurance and applicable endorsements to City. City shall have the option to suspend Consultant'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. I. In addition to any other remedies the City may have upon Consultant'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 Consultant to stop work hereunder, and/or withhold any payment(s) which become due to Consultant hereunder until Consultant demonstrates compliance with the requirements hereof. J. Nothing herein contained shall be construed as limiting in any way the extent to which Successful Consultant may be held responsible for payments of damages to persons or property resulting from Consultant's or its subcontractors' performance of the work covered under this agreement. K. It is agreed that Consultant'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. L. It is understood and agreed that the insurance required is in addition to and separate from any other obligation contained in this agreement. INDEMNIFICATION AND HOLD HARMLESS Consultant shall indemnify, save harmless and defend the City of Corpus Christi, and its agents, servants, and employees, and each of them against and hold it and them harmless from any and all lawsuits, claims, demands, liabilities, losses and expenses, including court costs and attorneys' fees, for or on account of any injury to any person, or any death at any time resulting from such injury, or any damage to any property, which may arise or which may be alleged to have arisen out of or in connection with the negligent performance of Consultant's services covered by this contract. The foregoing indemnity shall apply except if such injury, death or damage is caused by the sole or concurrent negligence of the City of Corpus Christi, its agents, servants, or employees or any other person indemnified hereunder. EXHIBIT "B" Page 3 of 3 S J PI.II?R NUMLIHR TO 1311. ASS IONID CI CITY- - t't1RC1IASINCi DIVISION City ty of CITY OF CORPUS: CIIR[STI �orin DISCLOSURE OF INTEREST iirl5tt City of Corpus Christi Ordinance 17112 as amended, requires all persons or firms seeking to do business with the City to provide the following infoiinatto ..Evory uestionymust� <beyanswcred1 4tffthelgttestiott` isvnotea� plicablo : <answer,with `Nr1'" See reverse side for filing Requirements, Certifications and dellnitlatis. COMPANY NAME: Espey Consultants, Inc. dba ).PI'S Espey P. O. sox: STREET ADDRESS; 4501 Southwest Pkwy, Pkwy z, Suite Ise CITY: Austin, TX FIRM IS: I. Corporation 2. Partnership S. Other 3. Sole Owner 4. Association LJ L ZIP: 78735 DISCLOSURE QUESTIONS additional space is necessary, please use the reverse side of this page or attach. separate sheet. State the names of each `employee" of the City, of Corpus Christi having an "ownership interest" constituting 3% or more of the ownership in the above maned "tirtn. Name Job Title and City Department (if known) i�ltrE P f�, State the names of each "official" of the City of' Corpus Christi having an "ownership interest" constituting 3% or more of the ownership in the above named "fine." Naive Title ,State the names of each "board member" of the City of Corpus Christi having an "ownership interest" constituting 3. %0 or more Of the ownership in the above named "firm:" Name Beard, Commission or Committee State the Mantes of each employee or officer of a "consultant" for the City of Corpus. Christi who worked on any matter related to the subject of this contract and has an ownership interest° constituting 3% or more of the ownership in the above named "fiuti." Name 4p e Consultant EXHIBIT "C" Rage 't oft FILING REQUIREMENTS. If a person who requests official action on a matter knoyvs that the requested action will confer an economic benefit; on any City official or employee that is distinguishable from the effect that the action will have an members of the, public in general or a,sttbstantial segment thereof, you shall disclose that fact in a signed writing to the City official, employee or body that has been . requested to aet in the. matter, unless the interest of the City official or employee in the matter is apparent, 'Fhe disclosure shall also bo made in a signed writing flied with the- City Secretary. [Mies Ordinance Section 2 -340 (d)] CERTIFICATION 1 certify that all information provided is true and correct as of the date of this statement, that l have not knowingly withheld disclosure of any information requested; and that supplemental statements will be promptly submitted to the City of Corpus Christi, Texas as changes occur. Certifying Person; David K. Harkins, Ph.t)., I':)E;., D.WIU . Titles Vice President t'rypc'or Print) DEFINITIONS n. "Board member." A nictnber of any board, commission, or committee appointed by the City Council of the City of Corpus Christi, Texas. b. "Economic benefit". An action that is likely to affect an economic interest if it is likely to have an effect on that interest that is distinguishable from its effect on members of the public in general or n substantial segment thereof. c,: "Employee," Any person employed by the City of Corpus Christi, Texas either on a Bill or part -time basis, but not as an independent contractor. d. "Firm." Any entity operated far economic gain, whether professional, industrial or commercial, and whether established to produce ordeal with a product or service, including but not limited to, entities operated in the loran of sole proprietorship, as self-employed person, partnership, corporation, joint stock company, joint venture, receivership or trust, and entities which for purposes of taxation are treated as non - profit organizations. e. "Official." The Mayor, members of the City Council, City Manager, Deputy City Manager, Assistant City Managers, Departitient and Division heads, and Municipal Court Judges of the :City af.Carnt's. Christi, Texas. f. "Ownership Interest." legal or equitable interest, whcthee acttial ly or constructively held, in a 'firm, 'isiclttcfing. when such interest is held through an agent, trust, estate, or holding entity, "Constructively held" refe rs to holdings or control established through voting trusts, proxies, or special terms Of venture or partnership agreements." g. "Consultant." A,ny person or first, such as engineers and architects, hired by the City of Corpus Cliristi,for the purpose of professional consultation and recommendation. EXHIBIT "C" Page 2 of 2 ▪ vi °0 • cp E N E E ace w 2 Z Invoice Date: (1) • 0 o a- • 0 O . Q C 0 0 G 0 O Z a 0 Z E a 0 O O r 0 O LO 0 O 0 o 0 o C) 25% o 0 0 a a o r r o co r 23 %I 1000'3 000'3 0$ 000'3 0$ 0$ 000'1.$ 0 Lo_ r 0 o L a o r 0 O M 0 0 0 O 000000 o CV 0 0 0 I 1,-. 0 coo u) 0 0 0 0 N M 00 r 0 l[) N 1009`Z$ 009'14 09L$ 09Z`8$ 09e3 000`1.$ 000`9$ O co 00Q 0 0 0 p N O. 0 00 000 0❑❑ 0 N 63 0 0 N 7, r 0 0 r N- 0 00 N r N❑❑❑ cflI-1-I- e- 0 0 CO ❑❑❑ m m CO m 00 CO I" CO 0 CO H 0 H CO m CO 1- CO 0 CO H 0 H CO m 0 CO I- H 009$ 0$ 00S$ Lti1`17$ LZ9`4$ OZ 1,14$ 000`Z$ 0O9`Z$ OOS` 4$ 09L$ 09Z`8$ 09Z` 4$ 000'1,$ 000`9$ 1 2,000 1,120 1,627 4,747 500 0 500 I000`E$ 009`4$ 09Z`4$ L66`ZL$ La' ZS OZ4`Z$ 000'9$ Basic Services: a) 2 N � a. N c (� 0 co (L • N �o c ctl • .N a 0_ O CO 0 Subtotal Basic Services Additional Services: Subtotal Additional Services • 0 LL LL CO 2 b (o E U O co co m Additional Services Fees Total of Fees EXHIBIT "D" Page 1 of 1 AGENDA MEMORANDUM Future Item for the City Council Meeting of October 9, 2012 Action Item for the City Council Meeting of October 16, 2012 DATE: September 19, 2012 TO: Ronald L. Olson, City Manager FROM: Daniel Biles, P.E., Director of Engineering Services danb @cctexas.com, (361) 826 -3729 Fred Segundo, Director of Aviation freds @cctexas.com, (361) 289 -0171 Execute Ratification of Change Order No. 2 CCIA Communication Center, Perimeter Security, Standby Generator and Commercial Aviation Apron Lighting Upgrades CAPTION: Motion authorizing the City Manager, or designee, to ratify Change Order No. 2 with Beecroft Construction, LTD of Corpus Christi, in the amount of $168,499.36 for the Corpus Christi International Airport (CCIA) Communication Center, Perimeter Security, Standby Generator and Commercial Aviation Apron Lighting Upgrades — Rehabilitate Terminal Building Federal Inspection Services (FIS). PURPOSE: The purpose of this Agenda Item is to obtain authority to execute Ratification of Change Order No. 2 for the CCIA Communication Center, Perimeter Security, Standby Generator and Commercial Aviation Apron Lighting Upgrades. BACKGROUND AND FINDINGS: Change Order No. 2 provides for additional funds to accommodate additional required construction to complete the project. The additional construction required was a result of unforeseen changes and an improved project during construction, including: • The installation of a sanitizer including excavation, backfill, sewer connection, electrical and concrete work and fencing • Apron Striping for jetway bridge holding position markings and diversion aircraft parking • Installation of hurricane shutters at the new Federal Inspection Services (FIS) area (Custom & Border Control) C: \PROGRAM FILES \GRANICUS \LEGISTAR5 \ PACKET \1005 CITY COUNCIL 10 9 2012 \0026 1 MEMO - CCIA COMMUNICATIONS.DOCX Cost Summary: • CR16 — Sanitizer Installation • CR20 — Apron Striping • CR24 — Hurricane Shutters ALTERNATIVES: $ 89,600.00 $ 58, 900.00 $ 19, 999.36 Total cost for unforeseen changes $ 168,499.36 1. Execute Ratification of Change Order No. 2 as recommended. 2. Do not execute Ratification of Change Order No. 2. OTHER CONSIDERATIONS: Not applicable CONFORMITY TO CITY POLICY: Conforms to statutes regarding construction procurement criteria; §2, Article 10 of the City Charter regarding contracts; Tex. Loc. Gov't Code § 252.048 regarding Change Orders; FY 2012 -2013 Airport Capital Improvement Planning (CIP) Budget. EMERGENCY / NON - EMERGENCY: Not applicable DEPARTMENTAL CLEARANCES: Not applicable FINANCIAL IMPACT: CIP Fiscal Year: 2012 -2013 Project to Date Expenditures (CIP only) Current Year Future Years TOTALS Line Item Budget $215,097.69 $215,097.69 Encumbered / Expended Amount This item $168,499.36 $168,499.36 Future Anticipated Expenditures $46,598.33 $46,598.33 BALANCE $215,097.69 $215,097.69 Fund(s): Airport CIP Comments: Change Order No. 2 adds 80 calendar days, with anticipated completion approximately January 2013. Thus, funding for this contract will only be required during Fiscal Year 2012 -2013. RECOMMENDATION: City staff recommends that Ratification of Change Order No. 2 be executed with Beecroft Construction, LTD in the amount of $168,499.36 for the CCIA Communication Center, Perimeter Security, Standby Generator and Commercial Aviation Apron Lighting Upgrades. LIST OF SUPPORTING DOCUMENTS: Location Map Change Order Summary Certification of Funds C: \PROGRAM FILES \GRANICUS \LEGISTAR5 \ PACKET \1005 CITY COUNCIL 10 9 2012 \0026 1 MEMO - CCIA COMMUNICATIONS.DOCX PROJECT: APPROVED: CONTRACTOR: DEPARTMENT OF ENGINEERING SERVICES CHANGE ORDER SUMMARY SHEET September 19, 2012 CCIA COMMUNICATIONS CENTER PERIMETER SECURITY (Project No. E10075) City Council Motion No. 2011 -216 on September 27, 2011 Beecroft Construction P.O. Box 2643 Corpus Christi, TX 78403 TOTAL CONTRACT AMOUNT (Sept. 27, 2011) $2,493,665.79 Motion No. 2011 -216 25% Limit Amount $623,416.45 Change Order No. 1 $49,900.00 Administrative Approved Change Order No. 2 $168,499.36 Motion No. 2012 - TOTAL All Change Orders $218,399.36 8.8% < 25% NEW CONTRACT PRICE $2,712,065.15 C: \Program Files \Granicus \Legistar5 \Packet \1005_City Council_ 10_ 9_ 2012 \0026_2_Change Order Summary - CCIA COMMUNICATIONS CENTER PERIMETER SECURITY.doc File : \ Mproject \councilexhibits \exhE10075.dwg NUECES F. 624 N'UECES B.Ny 4IIPOINTIF14PIPS = W. ,' YO<� PROJECT LOCATION LOCATION MAP NOT TO SCALE CORPUS C3(RIS?I B.si1I N SUBJECT PERIMETER SECURITY UPGRADES CORPUS CHRISTI INTERNATIONAL AIRPORT -' PROJECT # E10075 SITE PLAN NOT TO SCALE SUBJECT COMMUNICATIONS CENTER, STANDBY GENERATOR AND COMMERCIAL AVIATION APRON LIGHTING UPGRADES CORPUS CHRISTI INTERNATIONAL AIRPORT COMMUNICATIONS CENTER, PERIMETER SECURITY, STANBY GENERATOR AND COMMERCIAL AVIATION APRON LIGHTING UPGRADES 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 October 9, 2012 Action Item for the City Council Meeting of October 16, 2012 DATE: TO: September 28, 2012 Ronald L. Olson, City Manager FROM: Tom Tagliabue, Director, Intergovernmental Relations tomtag @cctexas.com 361.826.3850 (work) Resolution adopting the City of Corpus Christi's state legislative priorities for the 83rd Texas Legislature in 2013. CAPTION: Resolution adopting the City of Corpus Christi's state legislative priorities for the 83rd Texas Legislature in 2013. PURPOSE: Approve the list of legislative policy and appropriations issues the City of Corpus Christi wants the Intergovernmental Relations staff and the City's contract external lobbyists to pursue on behalf of the City during the 83rd Regular Legislative Session and any possible special sessions. BACKGROUND AND FINDINGS: Prior to the beginning of each state and federal legislative session, the City of Corpus Christi staff, working with input and support from the City Council, the City's lobby team, interested stakeholders, the Texas Municipal League (TML), and other cities, develop a list of potential legislative policy and appropriations recommendations. The City's success is measured by both passage of beneficial legislation as well as preventing passage of legislation that could have detrimental effects on the City, its programs and services, tax base, citizens, business, and industry. ALTERNATIVES: n/a OTHER CONSIDERATIONS: The City Council will be provided periodic updates by IGR staff during the state legislative session to provide progress reports on the City's adopted legislative priorities and discuss emerging issues. Depending on the timing and importance of the updates, some may be by written report and some may be by briefings during Council meetings. IGR staff and legislative consultants may provide individual briefings on specialized issues, if Council members request. CONFORMITY TO CITY POLICY: The legislative priorities are consistent with the City's Mission Statement. EMERGENCY / NON - EMERGENCY: This is a non - emergency item. DEPARTMENTAL CLEARANCES: City Manager, City Attorney, ACM - Public Works and Utilities; ACM - Business Support Services. ACM - General Government and Operations Support, ACM - Safety, Health and Neighborhoods, Police Department, Water, Engineering, Airport, Economic Development. 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: Additional items may be presented to Council as issues emerge or conditions warrant during the 83rd Legislative Session and any special sessions. RECOMMENDATION: Staff recommends approval of the policy issues in the respective categories shown in the attached report. LIST OF SUPPORTING DOCUMENTS: Legislative Priorities Report Resolution Resolution Adopting the City of Corpus Christi's State Legislative Priorities for 2013. WHEREAS, the 83rd Regular Session of the Texas Legislature convenes on January 8, 2013. WHEREAS, Every session, thousands of bills are filed and many have the potential to either directly or indirectly impact the City, its programs and services, its citizens, the tax base, and community needs; and WHEREAS, The City's Intergovernmental Relations (IGR) Department is responsible for monitoring state and federal governmental activities, developing legislative programs approved by City Council, managing the City's legislative consultants, and coordinating legislative activities with other public and private sector entities and municipal advocacy organizations; and WHEREAS, it is necessary to provide guidance for the City's officers and representatives in conducting the City's legislative efforts and relations; and WHEREAS, to be successful, this ever - evolving business environment requires close contact and constant communication with legislative leadership, external legislative consultants, municipal advocacy organizations, statewide municipal partners, community leadership, and community stakeholders. Now, therefore, be it resolved by the City Council of the City of Corpus Christi, Texas: SECTION 1. The City Council adopts the City of Corpus Christi State Legislative Priorities, which is attached to and incorporated into this resolution. SECTION 2. The Legislative Priorities remain in effect until amended by the City Council. SECTION 3. The City Manager is directed to distribute these Legislative Priorities to the local legislative delegation, legislative leadership, external legislative consultants, municipal advocacy organizations, statewide municipal partners, community leadership, and community stakeholders to solicit their advice and support. This resolution takes effect upon City Council approval on this the day of , 2012. Resolution 2013 State Legis Priorities 9 -27 -12 ATTEST: THE CITY OF CORPUS CHRISTI Armando Chapa Joe Adame City Secretary 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 Resolution 2013 State Legis Priorities 9 -27 -12 City of Corpus Christi STATE LEGISLATIVE PRIORITIES 83rd Texas Legislature 2013 Tom Tagliabue, Director, Intergovernmental Relations 361.826.3850 tomtag@cctexas.com Page 1 of 37 Introduction Prior to the beginning of each state and federal legislative session, the City of Corpus Christi staff, working with input and support from the City Council, the City's lobby team, interested stakeholders, the Texas Municipal League (TML), and other cities, develop a list of potential legislative policy and appropriations recommendations. The City's success is measured by both passage of beneficial legislation as well as preventing passage of legislation that could have detrimental effects on the City, its programs and services, tax base, citizens, business, and industry. Texas Legislative Preview As Texas continues to recover from the economic recession of the past several years, revenue projections for the State of Texas is improving. However, Governor Rick Perry and the Legislative Budget Board have directed state agencies to develop their legislative appropriations requests for the 2014 -2015 biennial budget, to identify 10 percent savings (in five percent increments) in general revenue - related funding. The leadership also warned state agencies they may be asked to reduce their fiscal year 2013 budgets should state fiscal conditions warrant it. During the interim (mid -2011 through 2012), committees of the Texas Senate and House conducted policy studies, in which City staff monitored and participated. These committees will issue reports towards the end of 2012 with recommendations for the 83rd Texas Legislature to consider. The outcome of the November 6, 2012, General Election could alter who will play critical roles in the Texas Legislature for many of the City's priorities. Although there is expected to be significant turnover in membership (more than 40 members of the House and at least five in the Senate), the Texas Legislature is anticipated to remain a fiscally conservative body. Because statewide elected offices are not on the ballot this year, Governor Rick Perry remains in a strong and influential position on policy and appropriations issues. As in the past, the legislature has a negative reaction to legislation which has an associated cost to implement -- in legislative terms "a positive fiscal note ". Bills that have no cost (a "zero fiscal note ") or provide a cost savings have a better chance at passage. During a legislative interim hearing this summer, Mike Reissig of the Comptroller of Public Accounts said a "slowing economy" for Texas is expected over the next few years due to European debt crisis, weakness in China and India, sluggish U.S. growth and lower global demand for oil. He indicated state employment growth is anticipated to slow, personal income growth is expected to decline, and the gross state product is expected to grow. Tax collections in 2012 are growing modestly — sales taxes, motor vehicle sales and franchise taxes. The Legislature will face some daunting challenges when it convenes in January 2013. Despite a projected budget surplus, the Legislative Budget Board expects to need a supplemental appropriation bill to deal with a Medicaid funding need of $4.7 billion, $180 million for wildfire recovery, $60 million for correctional health care, possibly $2 billion for public education to deal with school enrollment growth, and perhaps another $800 million for higher education will be Page 2 of 37 needed. Even Speaker of the Texas House of Representatives Joe Straus predicted the state will need an additional $9 billion. Legislative Program Administration The execution of the City's legislative program is coordinated and carried out on a day -to -day basis by the Director of Intergovernmental Relations, under the general supervision of the Assistant City Manager for Business Support Services and the general direction of the City Manager upon approval of the program by the City Council. The City also contracts with professional legislative liaisons at both the state and federal level, who coordinate with and receive direction from the Director of Intergovernmental Relations. As in the past, the City anticipates working closely with the local legislative delegation to both sponsor the City's legislative priorities and assist in defeating measures with a negative or harmful impact on the City, its residents or tax base. In addition, the City will work continue to work closely with the Texas Municipal League (TML) and the major metropolitan cities in Texas on issues of importance and value to municipalities. It is recognized that this policy will often be implemented in the context of great numbers of voluminous proposals being considered within short time periods. City representatives, under the direction of the City Manager, shall be authorized to act on behalf of the City consistent with the necessarily broad policy concerns set forth in this policy. LEGISLATIVE TIMELINES May -June 2012 Solicit ideas for possible legislative proposals July- August 2012 Research ideas with City staff, Texas Municipal League, lobby team, stakeholders, state and federal agencies September 25, 2012 Council workshop on state legislative policy & appropriation issues October 9, 2012 Council discussion of state legislative policy & appropriation recommendations on Future Agenda. October 16, 2012 Council vote on state legislative policy & appropriation recommendations October - November- December 2012 Prepare bill draft, analysis, supporting documentation. Deliver report to City lobby team & begin discussions with possible authors /sponsors. November 6, 2013 General Election Day November 12, 2012 Pre - filing of legislation begins for 83rd Texas Legislature January 3, 2013 113th U.S. Congress convenes January 8, 2013 83rd Texas Legislature convenes January 20, 2013 Presidential Inauguration Day March 8, 2013 Deadline for filing bills and joint resolutions other than local bills, emergency appropriations, and bills that have been declared an emergency by the governor May 27, 2013 83rd Texas Legislature adjourns Sine Die June 16, 2013 Last day governor can sign or veto bills passed during the regular legislative session Page 3 of 37 The City of Corpus Christi's state and federal legislative priorities will be approved by the city council several months ahead of the 83rd Regular Session of the Texas Legislature and the 113th U.S. Congress convening in January 2013. The City's legislative policy recommendations address specific desired outcomes, but also gives the IGR staff and contract external lobbyists guidance to respond and react to emerging policy and funding issues that materialize during the time - constrained crunch of the legislative sessions. In the event the IGR staff requires guidance, specific resolutions may be brought to the city council in order to give direction or when the situation requires a higher level of input. General State Legislative Guidelines %. r f. .. /r✓^.. i r � ' ,r` !� s � yy ✓7 l l� l�. (ll 1, .. Yr.� (f , � l� f( ✓, , (f ?// ..., , .o`. ..ate' i � y `�s %, %%r jr �rGf ' ' fr' ylr( yr '� y / �'° / � �:��� a a0f �`fa° ® �f f ��r'.�r�r //� l T - ((. � / ,. (ri J ./ � S ; / .F .. '- f rs fr .� ,� /p/ ,, /I y �f � �f �f �f ��� /yr �y fy fy fy fy fy fy fy fy fy fy fy fy fy fy fy fy fy fy fy fy fy fy fy fy yv,,r, • Protect and enhance City revenues. • Undermine the principle of home rule and local control by the City. • Reduces or eliminates costs to the City. • Results in the loss of revenue or negatively impacts potential revenue growth to the City. • Support local control. • Diminishes the authority of cities to regulate • Protects policies previously established by City leadership and manage their growth and development. • through the Charter, ordinances, resolutions, and master plans. Provide increased educational opportunities for the citizens of • Nullify or undermine the City's policies contained in existing provisions of the Charter, ordinances, resolutions, and master plans, unless such changes expand the City's ability to manage its own affairs. Corpus Christi and the Coastal Bend region by supporting its public schools, community colleges, and universities. • Imposes unfunded mandates that requires any expenditures by the City unless all costs are fully reimbursed by the mandating governmental entity. The City's IGR Department places three levels of importance on legislative issues. ■ Priority — means the City will actively pursue and support/oppose the policy, including, if necessary, seeking introduction and passage of legislation. This would include purely local Corpus Christi bills, as well as very important legislation of statewide application. ■ Actively Support /Oppose — means the City will aggressively attempt to influence passage /defeat of a measure if it is introduced by some other entity. ■ Endorse — means the City will make its support or opposition known, but will not actively pursue the issue. Page 4 of 37 CITY OF CORPUS CHRISTI STATE LEGISLATIVE PRIORITIES NOTE: Please see Appendix A for more detailed briefing information on Priority topics. No additional briefing information provided on Actively Support /Oppose and Endorse items. P R I O R I T Y 1. Windstorm Insurance reform to include de- populating the windstorm insurance pool; spreading the risk to a larger pool of insured; repealing Class 2 and 3 post -event bonds; allowing single adjuster for TWIA loss claims; limiting frivolous lawsuits; creating incentives for insurance companies to write policies in the voluntary market, and setting reasonable premiums for policyholders. 2. Expand authority of Joint Airport Zoning Board in Chapter 241, Local Government Code, to prevent and mitigate electromagnetic and radar interference. 3. Seek funding to protect Texas military installations from future budget cuts or BRAC- like actions by improving operational efficiency, enhancing the strategic military mission, or eliminating potential incompatible land uses near Texas military bases. 4. Give local governments access to a variety of financing tools, and remove any restrictions that limit flexibility to use economic incentives to address community- specific transportation infrastructure needs through all project phases. 5. Strongly protect and proactively oppose any effort to take away the City's existing water rights. No legislation needed 6. Exempt the Corpus Christi Aquifer Storage and Recovery District from the requirement of developing a "desired future condition" of the aquifer in Chapter 36, Water Code. 7. Validate actions of the Lower Nueces Water Supply District to protect City's real property interests near Lake Corpus Christi. 8. Create a dedicated funding source to implement long -term water management strategies in the 2012 State Water Plan. 9. Allow a County to use its Texas Enterprise Zone designations for a company that is in the extraterritorial jurisdiction of a City that is not in that County. 10. Allow Texas Enterprise Zone designations to be broken down into halves or quarters. 11. Constitutional amendment authorizing gaming at destination locations in Texas. 12. Eliminate or reduce the population threshold in the Local Government Code and Government Code to allow smaller municipalities flexibility in contracting available to larger municipalities. Page 5 of 37 13. Amend Chapter 451, Transportation Code, to change city appointment to rapid transportation authority board representing transportation disadvantaged individuals. 14. Stop non - transportation - related diversions from Fund 6 (State Gasoline Tax). No legislation needed A C T I V E L Y S U P P O R T 1. Limitation on boating sales tax to create incentive for large boats to be registered in Texas. 2. Pass a constitutional amendment (authorize referendum) to protect local governments from unfunded mandates. 3. Oppose further cuts in Mental Health and Mental Retardation (MHMR) funding. 4. Fair and equitable school finance system that strives for excellence, maximizes local control and encourages students to achieve academic success and prepares them for career opportunities in the future. 5. Texas should enhance existing formula funding to increase efficiency and encourage graduates from Texas universities and community colleges to support the critical role of providing a skilled workforce for the Texas economy. 6. Reinstate the dispersal of Law Enforcement Officers Standards and Education (LEOSE) funds to law enforcement entities across the state to defer the cost of the required continuing education of Texas peace officers. 7. Authorize sobriety checkpoints and other driving while intoxicated (DWI) prevention and enforcement tools without limitation to population, including the use of ignition interlocks on those convicted of a DWI offense. 8. Amend Section 28.08 the Texas Penal Code, to enhance prosecution of graffiti cases in which the offender continues repeating the offense. If it is shown on the trial of the offense that the defendant has been previously convicted of two or more offenses under this section, then the current offense is enhanced to the next highest degree (except for a felony of the first degree offense). 9. Return back into the Texas Transportation Code the penalty of a $200 fine for driving a vehicle without a license plate. 10. Amend Section 38.04, Texas Penal Code, to increase the penalty for those suspects who flee from law enforcement on foot and while doing so, enter into a building or habitation without consent of the owner. Establish the penalty of a State Jail Felony when the components of the offense include the act of a suspect fleeing into a building and Page 6 of 37 establish a Third Degree Felony when a suspect flees into a residence, both without effective consent of the owner. A C T I V E L Y O P P O S E 1. Changes to the Public Education and Government one percent franchise fee for state cable franchises. 2. Flow control restrictions in solid waste management. 3. Changes in funding or structure that might weaken the long -term viability and actuarial soundness of the Texas Municipal Retirement System (TMRS) and limit or restrict a municipality's benefit flexibility. 4. Changes to the school start date. 5. Limitations on local control and restrictions on city's extra - territorial jurisdiction. 6. Revenue Caps or erosion of local control over budgeting process; 7. Limits on land use regulatory authority; 8. Limits on building and construction permit fees; 9. Reduction in revenue collected for right of way rental (i.e. Franchise fees); and 10. Elimination or limits on the use of economic development tools. E N D O R S E 1. Benefit plan flexibility. 2. Continuation of economic development incentives and funding for the Governor's Office. 3. Continuation of funding for State agencies that provide critical services in the Coastal Bend, including Texas Parks and Wildlife Department, Texas Commission on the Arts, Texas Historical Commission, Texas Health and Human Services agencies, Texas Department of Transportation, Texas General Land Office, Texas Commission on Environmental Quality, Texas Department of Public Safety, and others. 4. Amend Section 551.002(c), Local Government Code, to remove the restriction on when a home rule municipality can protect streams, watersheds, and aquifers in the city's extraterritorial jurisdiction. Page 7 of 37 APPENDIX A City of Corpus Christi State Legislative Priority Summaries Page 8 of 37 CATEGORY: PRIORITY Problem Description: The Texas Windstorm Insurance Association's (TWIA) growth in the last five to seven years has made it one of the biggest insurers on the Texas Coast, shifting TWIA's role from "residual" market to the only market in some areas. Interested parties have expressed concern about TWIA's overall structure and funding mechanisms, given the tremendous growth of TWIA. The Joint Interim Committee to Study Seacoast Territory Insurance was appointed to assess alternate ways of providing windstorm insurance to businesses and homeowners along the coastline. Background: The Texas windstorm insurance program was created in 1971 and its statutory authority can be found in Chapter 2210, Texas Insurance Code. The stated purpose in statute for TWIA is the provision of an adequate market for windstorm and hail insurance along the Texas coast. TWIA is intended to serve as a residual insurer of last resort for windstorm and hail insurance, is not supposed to be a direct competitor in the private market, and only provide windstorm and hail insurance coverage to those who are unable to obtain that coverage in the private market. TWIA provides windstorm and hail insurance in 14 "first tier" Texas coastal counties: Aransas, Brazoria, Calhoun, Cameron, Chambers, Galveston, Jefferson, Kenedy, Kleberg, Matagorda, Nueces, Refugio, San Patricio, Willacy, and a portion of Harris County. Nueces County represents 18 percent of the policies in force with TWIA (almost $13 billion in building and contents covered) behind only Galveston and Brazoria Counties. TWIA is composed of all property insurers licensed to do business in Texas. There are nine members on the TWIA Board of Directors and one additional member — a licensed engineer - who serves as a nonvoting member to advise the board on issues related to the inspection process. The board has four insurance industry representatives. Of the five remaining members, four must reside in the first tier and at least one must be a licensed property and casualty agent. The final member must come from a non - coastal area. Former State Representative Gene Seaman and former Port Aransas Mayor Georgia Neblett serve on the TWIA Board. TWIA is run by a General Page 9 of 37 Page 10 of 37 Manager. TWIA Ex s osures, Policies & Premiums Written {j1 //f / % �.` ? ✓?(fUSJ' / l /S` /rlt,?fFf.. r� � F. �' -}!( � k: f fr',r � >f l�j /f 1- 1l11i ��� lrrili"1;'gGll %fX;'r'� J /�d��i, �`;•��i ✓% �tT %i a�'Jr1s5 /Yf fGl �f`/SalJl `%/� ff f�'�Y fS) � �, r'rs'�`f f^`'f ✓S 31 �ff5 ���f �?+I /f`�1+�%e1`SrP �/",, ll %JjrS fS c�j' i f � �rlff r"7 �f�ldip �'`�1� �5 7`` '" /f11 11lsrr�tr+ firffl i )l3 xssa ��`� 15I% rf` Sl`�jt� Dwelling $54,938,217,667 229,549 $59,195,536,040 244,941 Mobile $30,613,176 692 $37,829,968 813 Homes Non- $12,796,872,847 13,296 $12,815,498,419 13,297 Dwelling Totals $67,765,703,690 243,537 $72,048,864,427 259,051 Source: Texas Windstorm Insurance Association Overview, by TDI, 4/25/12 Quarterly Statistical Report as of 3/31/11 and 3/31/12 from Texas Windstorm Insurance Association Paying covered losses Loss claims made by insured property owners are paid from: (1) premiums and other revenues, (2) catastrophe reserve trust fund (CRTF) - The CRTF was created by the Legislature in 1993 to fund losses in excess of premiums. The balance in the CRTF as of 3/31/12 was $147,962,563. (3) reinsurance (if any) - TWIA has a reinsurance policy in effect from June 1, 2011 through May 31, 2012 in the amount of $636 million in excess of a $1.6 billion retention. (4) pre -event and post -event bonds sold by TWIA. Class 1 bonds are pre- or post -event bonds and are limited to one billion dollars per catastrophe year. Class 1 bonds must be paid back within 14 years. Class 2 bonds are post -event bonds and are limited to one billion dollars per catastrophe year. Class 3 bonds are post -event bond and are limited to $500 million per catastrophe year. Class 2 and 3 bonds must be paid back within 10 years. Rates /Premiums TWIA rates must be reasonable, adequate, not unfairly discriminatory, and nonconfiscatory as to any class of insurer. Rates must consider prior loss experience and potential losses, operating expenses, profit and contingencies, the cost to issue and repay Class 1 bonds, and other relevant factors. Residential and Commercial rates are filed annually with TDI. The average rate change is capped at ±10% than the rate in effect on the date TWIA files with TDI. The rate for an Page 10 of 37 individual rating class is capped at ± 15 %. TWIA may also change rates ± 5% under a file and use system. 2000 -2012 TWIA Rate Change Histor Pyf r}Y...�jff rt fJ l/y`'(.`,',l`c if%P/3 Y �drb" I/ V'!k�`;��l�p,�:f`�F' .... f... f. ..f...f...f...f...f...f...f...f . �. �. �. �.. �.. f... f.. f.. f.. f.. f.. f.. f.. f.. f., /T r`�: .' r f;l /n rrfi �"rf #�„j •Jfiy,✓ } P �� f`��1, J�,'lri�f) Jriil 1. r:.. r,. r:. r:.. 5,.. 5,..r{... f... f... f... f... f... f... f... f... f... f... f... f... f... f... f... f... f... f... f... f... f...... r'� �/ �:�z,^:. J lr!':�P �,p /� ,: 5�";rP/✓/ /f S{fi %' l' �� 0 0� f fI �� /fJlf/; f... f... f... f... f... f... f... f... f... f... f... f... f... f... f... f... f... f... f... f... f.. .f...f...f...f...f...f...f...f9 2000 8.7% 9.0% 2001 18.5% 4.0% 2002 0.0% 5.0% Separation of residential rates from benchmark rates 1/1/2003 0.0% 10.0% 1/1/2004 9.6% 10.0% 1/1/2005 0.0% 10.0% 1/1/2006 0.0% 5.0% 7/1/2006 3.1% 8.0% 1/1/2007 4.2% 3.7% 2/1/2008 8.2% 5.4% 2/1/2009 12.3% 15.6% NOTE: 10.0% cap removed due to catastrophes 1/1/2011 5.0% 5.0% 1/1/2012 5.0% 5.0% July 2012 (proposed) 5.0% 5.0% Source: Texas Windstorm Insurance Association Overview, by TDI, 4/25/12 Page 11 of 37 CATEGORY: PRIORITY Problem Description: The radar used to track both general aviation, commercial and military aviation take -offs, landings, and approaches at the Corpus Christi International Airport receives interference from a number sources, including wind turbines. The Joint Airport Zoning Board has limited authority to address these land -based interferences in areas five miles off the ends of each runway and 1 1/2 miles from the centerline of each runway, but have no authority for areas further away. Encroachments to military installations and equipment jeopardize the health, safety and welfare of the traveling public and weaken the standing of the base for future Base Realignment and Closure (BRAC) activities. Background: The Joint Airport Zoning Board was formed jointly by Nueces County and the City of Corpus Christi in May 1957. San Patricio County was added to it in 1979. The board has met sporadically, as needed, over the last 45 years. It was re- activated in mid -2012. The Board is being re- activated to address the growing conflicts with interferences. The majority of the radar and electromagnetic spectrum interferences come from wind turbines within 25 miles of the airport radar. The Corpus Christi International Airport's radar controls general aviation, commercial and military training flights. The Corpus Christi International Airport, Naval Air Station — Corpus Christi, Naval Air Station Kingsville and their outlay landing fields have approximately 800,000 operations combined— that is take -offs and landings of commercial, military and unmanned aircraft — more than the Dallas -Fort Worth International Airport. Approximately 60 percent of the 100,000 operations at the Corpus Christi International Airport are conducted by the military aircraft in our area. Encroachments, either on land in the form of developments, or in the airspace in the form of navigational interferences, severely weakens a military base's standing for future Base Closure and Realignment Commission (BRAC) -type activities. While other states, such as Oklahoma, Louisiana, Florida, and Virginia, are investing in efforts to buy out land encroachments, Page 12 of 37 and development rights to avoid conflicts with base missions and operations, Texas communities do not have the tools needed — yet — to address concerns. A Department of Defense report stated: "Wind turbines in close proximity to military training, testing, and development sites and ranges can adversely impact the "train and equip" mission of the Department. Existing processes to include engagement with local and regional planning boards and development approval authorities should be employed to mitigate such potential impacts." Page 13 of 37 CATEGORY: PRIORITY KA KAcK K t KA KAKA KA KA KA KA KA W W KAK KAKAK t KA �t �t A KAKA KA �t �t A OK: KA A KAKA KA Problem Description: The next round of Base Re- alignment and Closure (BRAC) of military installations is anticipated to occur in 2015. There has been no statewide coordinated effort to protect Texas military installations by assisting with infrastructure improvements, such as electric, water and wastewater utilities, to improve operational efficiency; enhancing the strategic military mission of a base, or providing funding to purchase development rights and outright land purchases to remove encroachments that might threaten the future viability of a base. Background: Numerous states, including Alaska, Arkansas, Florida, Louisiana, North Carolina, Oklahoma, and Washington are actively investing in initiatives to strengthen the standing of military installations in those respective states prior to the next round of base re- alignment and closures. The Pentagon is expected to cut approximately $487 billion over the next 10 years. The Army is expected to shrink from 562,000 soldiers to 490,000 soldiers. The Marine Corps is expected to shrink by 20,000 Marines to 182,000. Governor Rick Perry's office is examining the possibility of recommending both statutory revisions and making appropriations to the Military Preparedness Council that would proactively assist military bases prepare and prevent BRAC actions in Texas. One model Texas could follow is called Florida Forever, which provides funds to acquire land and conservation easements near military installations that both protect important conservation areas and prevent encroachment. Additionally, they enhance Florida's ability to attract federal Department of Defense Readiness and Environmental Protection Initiative (REPI) funds to help buffer military installations. Without the buffering, encroachment could make Florida bases vulnerable to closure. Naval Air Station - Corpus Christi, the Corpus Christi Army Depot and Naval Air Station - Kingsville not only have significant military value, but are major employers in the Coastal Bend. Military from all branches of the service, civil service employees and contractors now work at NAS Corpus Christi. The military's regional economic impact has been measured at $3.6 billion. The CCAD alone contributes about Page 14 of 37 12 percent of the local Corpus Christi economy, with a $2.171 billion economic impact. However, there are challenges, such as incompatible land use encroachments, aging infrastructure, and competition for pilot training from other bases. Texas efforts have previously assisted communities impacted by after BRAC decisions to close military bases in Texas (for example, Kelly Air Force Base and Naval Station Ingleside). It has fallen to local governments and community organizations to fund efforts to protect individual military bases. A recent study by Texas A &M University- Corpus Christi's College of Business and EDA University Center on the impacts to San Patricio County from the previous BRAC that closed Naval Station Ingleside stated: "Historical data depict a vivid picture of the impact of the closure of Naval Station Ingleside on San Patricio County, which witnessed a loss of over 3,000 residents during that process. In addition to those jobs eliminated directly by the federal government, the county lost more than 850 jobs, or about 3 percent of its workforce. While the actual impact seemed more tenuous than most forecasts, the economic pain felt by local residents and business owners far exceeded their gains in tax savings from BRAC." Page 15 of 37 CATEGORY: PRIORITY A A eif KA /fl. A eif KA /fl. A eifl. K /fl cK eif KA /fl. A eifl efl. KA. e '-. Problem Description: As the population of Texas grows, the need for new transportation infrastructure to address congestion and improve mobility and connectivity is not being met by the existing funding system. An average of 30,000 more vehicles are added to Texas roads every month due to population growth. Total miles traveled and population growth far exceed the growth in new highway capacity. The state tax on gasoline and diesel has not been raised in more than 20 years and inflation has reduced its purchasing power by 40 %. The state (TxDOT) is about to run out of borrowing capacity for its highway projects. Funding options for local governments that are willing to take on a bigger share of the transportation infrastructure demand are limited by statute. Famed Texas economist Ray Perryman said: "...The quality of roadways affects productivity and quality of life through time lost sitting in traffic. As traffic congestion worsens, it can have a negative effect on future development across a spectrum of industries..." Background: According to the Texas Department of Transportation (TxDOT), the state's main source of highway funding, the 20- cent- per - gallon motor fuel tax, is generating only about $2.6 billion a year -- far less than adequate for a state that, by one estimate, needs $14 billion a year to keep up with growth in population and jobs. One option is to raise vehicle registration fees by $50 a year, which is estimated to yield about $1.1 billion in added annual revenue. The Texas Association of Business supports increasing the state vehicle registration fee. Several key lawmakers, including new Senate Finance Committee Chairman Senator Tommy Williams and House Transportation Committee member Representative Drew Darby expressed support for the increase publicly. TxDOT believes solving the state's current funding problems will require a multi -level approach, with all Texans involved in the planning process. One study indicates that Texas should be Page 16 of 37 investing more than $19 billion each year (on average) in the state's highways, transit, aviation, marine, rail, bicycle, and pedestrian systems to meet the anticipated growth in population, trade, and related traffic expected between now and 2035. The current Texas constitution does not allow counties to issue bonds for transportation infrastructure projects. The 82nd Texas Legislature proposed a constitutional amendment (HJR 63/Proposition 4) in 2011 to authorize counties to use this important financing tool to expand and improve transportation options for local communities, but it was defeated by voters (59.73% against to 40.26% for). This financing tool may be resurrected with revisions during the 83rd Regular Legislative Session in 2013. Other funding options have been up for discussion during previous legislative sessions and during the interim, including: • increasing the statewide motor fuels tax by adjusting it to annual inflation; • local- option motor fuels tax; • local- option vehicle registration fee; • replacing the existing motor fuels tax with a vehicle miles traveled tax; • shifting the motor vehicle sales tax to highway construction; • expanded authority to use public - private partnerships; • additional state and local bonding authority; • establishing transportation reinvestment zones; • toll roads. In the Coastal Bend, the replacement of the Harbor Bridge is a prime example of a project that could benefit greatly if cities and counties were given access to a variety of financing and revenue generating tools and were empowered to tailor community - specific strategies to partner with the Texas Department of Transportation on everything from right -of -way acquisition, engineering, design, permitting, construction, and maintenance. Page 17 of 37 Page 18 of 37 CATEGORY: PRIORITY Problem Description: Current Water Code requires all groundwater conservation districts (GCDs) to establish every five years the desired future condition of the aquifer from which the GCD draws its water. The desired future condition process requires extensive groundwater availability modeling, studies, public hearings and notices, which is very expensive. Background: The Corpus Christi ASR District was created by the 79th Texas Legislature in 2005 by Senate Bill 1831. It became effective on June 17, 2005. The requirement in Chapter 36, Water Code, to establish the Desired Future Condition of an aquifer, was created by the 79th Legislature in 2005 by House Bill 1763. It became effective on September 1, 2005. The Corpus Christi ASR District is the only ASR District in Texas. The El Paso Public Service Board, the San Antonio Water System and the Kerr County GCD all have ASR projects, but not districts. The purpose of the Corpus Christi ASR District is to use the Gulf Coast aquifer to store surface water transported by pipeline and pumped into the aquifer. Sec. 8811.052, Special District Local Laws Code, prohibits recovering more water from the aquifer than the amount stored, so the District should not impact the desired future condition of the aquifer. The Corpus Christi ASR District fully participates and supports the desired future condition process for Groundwater Management Area (GMA) 16, which was submitted in 8/30/10. The Corpus Christi ASR District is prohibited from imposing a tax or issuing bonds, so it has no mechanism to pay for required modeling, studies, and notice requirements by the desired future conditions process. Page 19 of 37 Page 20 of 37 CATEGORY: PRIORITY . � .,r,r ry rrr - 1. y,: y, .F: r .1%,s><., >I..�.,,.r , .,,i „-, ✓. / ., t rz1;, �tr . r' l!, ,�. .,> -,,., ,�.. r rY . , >� . }' / . J' / �' ✓X /`,'> I ..� r.., >� /'� . /,!, , s r'f rFJ✓`... t; /, o,,. �, G �.,> .,53 J f.' „ .Y l %�.� .€ t sue`.. , /u✓r,r ..,', -� I l r� rt ✓ c✓.. .l,.ls 'r .r, ff ",I .r .lY S "✓: ;',. �r�. . ✓, t ,��'r �� /rr r ,1 z ✓r >, r � Y �, t, f r ✓ >r Y, r, f �' r ✓ ,..>, rt! .Frr.l .l�r J. ' �. t S /J 'r':f('` �.l .e`F✓ ,� . _rrn`1 , f J r"�✓ "s . �I. C..rYZ ' J .rr .W', a >,l, l:. 37 fi /„ / ... .,! ' ( / r I'. ,✓ .i .. Jlr /�, r> J'" ,� /�... l� ,,..F ,s /..,r, .�r 1, ,> j �/`„ > .,t,s,r.s ,, .! x J. ✓,f' £..,? � /` J . z ,/ :� ,.s f'�" l✓I / ,yrtoF f ,:t .✓✓) % //. .!. 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Documentation of the District formally conveying the assets back to the City have not been located. Recording of those real property asset transfers was completed, although not recorded at the count courthouse in Atascosa, San Patricio, Live Oak and Jim Wells counties for approximately 25 years due to records being inadvertently misplaced. Once discovered, the City properly recorded those transactions in the respective counties. To avoid any potential adverse possession claims against the City, a validation act is needed to perfect the land transfers from the now - dissolved District back to the City. Background: In 1949, the Lower Nueces Water Supply District was formed to serve as the financing vehicle for construction of the Wesley Seale Dam — the impounding dam for Lake Corpus Christi. The City of Corpus Christi conveyed certain of its land rights (fee simpletitle and easements) and other assets to the District and signed a note in the amount of $2,071,165, all of which was confirmed by voters in an election on December 13, 1952. The City paid off the note and in 1985, State Senator Carlos Truan and State Representative Ted Roberts passed SB 1254 to require the District to discharge any remaining debts, convey all of its assets to the City by August 1, 1986, and then dissolve the District. Records of the District formally conveying the assets back to the City have not been found. Research in 2010 as part of lawsuit involving illegal construction of a dam on the City's flood easement, uncovered boxes of missing real property transactions conveying District lands back to the City. 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Page 21 of 37 Page 22 of 37 CATEGORY: PRIORITY Problem Description: The population of Texas is booming (expected to increase 82 percent between 2010 and 2060) and there is insufficient water supply to serve the municipal, irrigation, manufacturing, livestock, mining, and steam - electric power needs of that growing population. In addition, the State does not have a long- term, affordable and sustainable method of financing water management strategies in the State Water Plan. Background: According to the 2012 State Water Plan developed by the 16 regional water planning groups through the Texas Water Development Board (TWDB), in serious drought conditions, Texas does not and will not have enough water to meet the needs of its people, its businesses, and its agricultural enterprises. The Coastal Bend Regional Water Planning Area includes 11 counties, portions of the Nueces River Basin, and its adjoining coastal basins, including the Nueces Estuary. The region's largest economic sectors are service, retail trade, government, and the petrochemical industry. Corpus Christi is the region's largest metropolitan area. The next largest cities in the region are Kingsville, Alice, Beeville, Portland, and Robstown. The Coastal Bend Regional Water Planning Group recommended a variety of water management strategies to meet future needs including two proposed off - channel reservoirs, groundwater development, interbasin transfers of surface water from the Colorado River Basin, brackish and seawater desalination, re -use, and conservation. The total capital costs estimated to implement the recommended water management strategies in Region N is $656 million. According to the TWDB's legislative recommendation to the 83rd Texas Legislature: The estimated total capital cost of the 2012 State Water Plan, representing the capital costs of all water management strategies recommended in the 2011 regional water plans, is $53 billion. Based on surveys conducted as part of the planning process, water Page 23 of 37 providers will need nearly $27 billion in state financial assistance to implement strategies for municipal water user groups. In response to the 2007 State Water Plan, the Legislature has authorized $1.67B to provide funding for state water plan projects through three of the TWDB 's financial assistance programs. To date, TWDB has provided over $974,487,000 million in low - interest loans and grants to implement 35 projects through 44 loans or grants across the state. Once fully implemented, these projects will supply over 1.5 million acre-feet of water needed during times of drought to millions of Texans. In 2011, the 82nd Texas Legislature authorized adding funding to finance approximately $100 million in state water plan projects. These funds will be available during state fiscal years 2012 and 2013. TWDB has also provided over $500 million in funding to implement water management strategies recommended in the 2007 State Water Plan through other loan programs not specifically targeting State Water Plan projects. The number of fully implemented projects today, 65, shows a significant increase from the 21 projects that the 2007 State Water Plan reported had been implemented from the 2002 State Water Plan. The implementation of many of these projects would not have been possible without the funding provided by the Texas Legislature through TWDB 's financial programs. A long -tern, affordable and sustainable method of financing the State Water Plan is needed to increase implementation the State Water Plan and alleviate the reliance on general revenue to fund the Plan. If an entity seeks state assistance to implement a water management strategy in the State Water Plan, it would seek funding through three TWDB programs: the Water Infrastructure Fund, the State Participation Program, and the Economically Distressed Areas Program. In previous legislative interim committee analyzed a number of funding options, but none have been enacted into law: • a state sales tax increase; • a water conservation and development fee; • a water rights fee; Page 24 of 37 • a water connection fee; and • a sales tax on bottled water The City of Corpus Christi is a member of an organization known as H2O4Texas, which includes water customers and water providers, as well as representatives from the public and private sectors. H2O4Texas is committed to mobilizing public support for full implementation of the State Water Plan. Page 25 of 37 CATEGORY: PRIORITY Problem Description: The current Texas Enterprise Zone statute prevents a county from designating a company to receive the benefit of the enterprise zone if the project is located in the extraterritorial jurisdiction (ETJ) of a city that is not located in the county that nominates the project. For example, San Patricio County is unable to nominate a company for enterprise zone benefits if that company will be located in Corpus Christi's ETJ in San Patricio County. Background: According to the Governor's Economic Development and Tourism Division, the Texas Enterprise Zone Program is an economic development tool for local communities to partner with the State of Texas to promote job creation and significant private investment that will assist economically distressed areas of the state. Approved projects are eligible to apply for state sales and use tax refunds on qualified expenditures. A distressed county is defined by statute as one that has a poverty rate above 15.4 percent; one in which at least 25.4 percent of the adult population does not hold a high school diploma or high school equivalency certificate; and one that has an unemployment rate that has remained above 4.9 percent during the preceding five years. The level and amount of sales and use tax refunds a qualified business may receive is related to the capital investment it makes and the jobs created at the qualified business site. $40,000 $399,999 $1,000,000 $4,999,999' Double Jumbo Project $2,500,000 $2,500 2,511? $2,500 500 $5,000 Page 26 of 37 $150000;000 $249,999,999 A local community must nominate a company as an Enterprise Project to be eligible to participate in the Enterprise Zone Program. Texas law limits the number of allocations that may be awarded to local communities per biennium. Corpus Christi has nine (9) allocations. Nueces County and San Patricio County have six (6) allocations available each biennium. Corpus Christi always has more demand for enterprise zone allocations than spots available. In order to qualify a project for the Enterprise Zone Program, local communities must offer incentives to the project such as tax abatement, tax increment financing, and one -stop permitting. Communities may nominate projects, for a designation period up to five years, non - inclusive of a 90 -day window prior to the application deadline. Employment and capital investment commitments must be incurred and met within this timeframe. Two years ago, Rep. Connie Scott authored HB 1560 to allow a county to nominate for designation as an enterprise project a project by a qualified business that is located in the county and in the ETJ of a municipality primarily located in another county. Page 27 of 37 Page 28 of 37 ..r . /...., .S sY /., ft f .S tI/ CATEGORY: PRIORITY ,r 1 r s "✓ f ,f- l rr�;rr .r' :.f r "YI {. .r'. rs Y f f. s. "i'r;" /'. . > >r�., , f, :.. ✓. . l`Cf ,rr 3. l" r fJ( / .l .,l f .✓ rJ . (f f � �.,1. :?'. /. /, y.., u' ,(" ..E> 5 . / "F.. ..f (u:"'. ,! .( ", {. 7 :/ f : r / 3 /r ..S r /t,„ w. {l s �.� r, l f /" , ✓, r.r >, r. r. r' .i' / / w „u sf� 1 ,'.l Y / .} f^ Ui .. �. >. f J �. . "r r. 1 ". /... s ,?.,. ,�/ / .rr•(f Y s / 9 �U ✓ >, .v>, Y , f / f .., { ,` � P/% ! Flu , .. � .% Sf ✓ ..% '::( / l .� / .. a s P {. / ii '✓ f S ,� 3� a :, ,' „%r' s , " / . f .. � . I S ..,>I'�, . / J , l � l ✓i �5 Yrr' J; / 5 f� .5 (f 2.! {. 7%x.13 . /.�l% ,J :( ➢'. t�f l l� -1 s'"' /. r r r "r r r r "r r r r "r r r r "r r r r � f f( � f f( � f f( � f f( � f f( The current Texas Enterprise Zone statute is targeted to projects that promote job creation and significant private investment. The program only allows for full allocations, which limits a community's ability to recruit smaller scale, but still significant Problem Description: economic development projects. Allowing for full, half or quarter designations, a community has maximum flexibility to target economic development activities. The half or quarter designations would not apply to the double or triple jumbo designations. According to the Governor's Economic Development and Tourism Division, the Texas Enterprise Zone Program is an economic development tool for local communities to partner with the State of Texas to promote job creation and significant private investment that will assist economically distressed areas of the state. Approved projects are eligible to apply for state sales and use tax refunds on qualified expenditures. A distressed county is defined by statute as one that has a poverty rate above 15.4 percent; one in which at least 25.4 percent of the adult population does not hold a high school diploma or high school equivalency certificate; and one that has an unemployment rate that has remained above 4.9 percent during the preceding five years. Background: The level and amount of sales and use tax refunds a qualified business may receive is related to the capital investment it makes and the jobs created at the qualified business site. $40,000 $399,999 10 $25,000 $2,500 °$400 000 — $999,999 2 $ 2 ( fl $2,5 ?: $1,000,000 $4,999,999 125 $312,500 $2,500 S,9t 11,000 - $ 49,999,999 500 $1 250,00(1 ; $2500 Double Jumbo Project 500 $2,500,000 $5,000 Page 29 of 37 Page 30 of 37 $1 50,000,000 - $249,999,999 Tr%p!e .Tutubo Project 9250,000,000 ar rtic re 500 $3,750,000 $7,500 A local community must nominate a company as an Enterprise Project to be eligible to participate in the Enterprise Zone Program. Texas law limits the number of allocations that may be awarded to local communities per biennium. Corpus Christi has nine (9) allocations. Nueces County and San Patricio County have six (6) allocations available each biennium. Corpus Christi always has more demand for enterprise zone allocations than spots available. In order to qualify a project for the Enterprise Zone Program, local communities must offer incentives to the project such as tax abatement, tax increment financing, and one -stop permitting. Communities may nominate projects, for a designation period up to five years, non - inclusive of a 90 -day window prior to the application deadline. Employment and capital investment commitments must be incurred and met within this timeframe. ,l �.s. '3•e . "i r`. � � �z .rl .�.. > /(i6h� Y `3 rxr�.7 .i /ups ?� J 5G 2 i' r, J�,.r >.£ t£ r , �., 7 �# b ✓(� ��.✓ -1 , , �, �.T, ,. r. >3�r� ,£` ,�£. J Y✓ ..G mss, t` .Y, rS„r f ✓ .✓% )f. 3 I. i`lY �G ,r5 ✓{ ✓/t' � �i. 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Problem Description: There are limited types of legal gaming in Texas. Texas exports billions in revenues to other states, thousands of jobs and misses an economic development opportunity by prohibiting casino gambling. Casino gambling can only become legal by amending the Texas Constitution, which requires a 2 /3rds vote of both chambers (House and Senate) and a majority vote by the voters of Texas in a constitutional amendment election. Background: The Texas Gaming Association states: "According to some estimates, Texans spend close to $3.5 billion annually in other states enjoying casino gaming destinations." Texans make up nearly 44 percent of the gaming market in Louisiana and almost 37 percent of the market in Oklahoma. Over 80 percent of Texans live within a three hour drive of a casino, not including horse and greyhound racetracks. According to the most recent comprehensive data available, in 2007, over 2.6 million Texans visited Las Vegas spending a total of $3.8 billion during their stay in the Las Vegas market. A number of gaming and tourism websites reference studies that estimate that in 2009 casinos located adjacent to Texas generate the following revenues: • New Mexico, $1.03 billion; • Oklahoma, $3.21 billion, and • Louisiana, about $2.5 billion. It is believed that much of this revenue is from Texans crossing over to neighboring states. A 2007 study reported that approximately 2.6 million Texans travelled to the city of Las Vegas and were estimated to have spent nearly $3.8 billion dollars during their stay. The State of Texas regulates three games of chance: pari- mutuel wagering on horses and dogs, bingo and the state lottery. Pari- mutuel wagering on horses and dogs was approved by the voters of Texas in 1987. In 2000, the industry reached a peak with attendance of 3.3 million and wagering of $633 million on live and simulcast racing. The industry was hit in 2001 with the negative impacts of 9/11 and significantly increased competition from tracks in the surrounding states. By 2009, track attendance in Page 31 of 37 Texas had declined 35 percent from 2000 while wagering had plummeted 37 percent. The lottery was authorized by voters in 1991 and the lottery sales began in 1992. Off -shore casino gambling was passed by the Texas Legislature in 1991. The Texas Treasure cruise ship operated out of Port Aransas and Aransas Pass from late 2000 to May 2008. During the 82nd Regular Session in 2011, a Rep. Chente Quintanilla of El Paso authored House Joint Resolution (HJR) 43 to authorize the Texas Legislature to legalize and regulate the conduct of gaming in the State of Texas. Gambling would be legalized in counties that by local option elections approve of the conduct of gaming in their county. This would allow the idea of gaming to be handle on a county by county basis, much like the way counties throughout the state have chosen to be either dry or wet counties in relation to the sale of alcohol. Page 32 of 37 CATEGORY: PRIORITY Problem Description: Eliminating or reducing the population thresholds in two statutes (Sec. 252.048, Local Government Code, dealing with change orders for public works contracts and Sec. 2267.354, Government Code, dealing with limitations on the number of design -build projects) will give smaller cities (or at least those of 300,000 or more) the same flexibility that larger cities of 500,000 or more have in contracting. Currently, cities of less than 500,000 are permitted to have fewer design -build public works contracts and are not limited in the dollar volume of change orders an administrative officer can approve. Mid -size cities, like Corpus Christi, have the contracting expertise and project management experience, to award more design -build contracts and approve larger change orders just like larger cities of 500,000 or more. The population bracket limitation is arbitrary and adds costly and unnecessary delays to public works projects. Background: Change Orders In 1973, the Legislature first authorized a change order for a public works project by an administrative official if the change order increased or decreased by $5,000 or less. The Legislature changed increased the charge order approval level to $15,000 in 1981, to $25,000 in 1995, and finally to $50,000 in 2011. A different bill in 2011 allowed cities of 500,000 or more to approve change orders on public works projects of $100,000 or less. From 1973 to 2011 (38 years), the only limitation on an administrative official's ability to approve a change order was the dollar size of the change order - not the population size of a city. Limiting administrative approval of public works change orders causes unnecessary and costly delays to projects. For almost 40 years, cities have had the statutory authority and managed administrative approval of contract change orders without the population bracket limitations. The City of Corpus Christi routinely handles administrative Page 33 of 37 approval of change orders, but the arbitrary population bracket limitation handcuffs City staff on larger public works contracts. Design Build In 2007, the 80th Texas Legislature passed HB 1886 authorizing cities, counties, special districts and authorities to use design - build for civil works projects, including: roads and streets; bridges; utilities; water supply projects; water and wastewater plants; water distribution and wastewater conveyance facilities; airport runways and taxiways; storm drainage and flood control projects; and transit facilities. The bill had a scheduled phase -in and population brackets that allowed larger cities with more resources to implement the program first and provide experience and examples for smaller entities. For the first four years of the scheduled phase -in (2008- 2012), a governmental entities of certain populations are limited in the number of design -build projects they can enter into -- 500,000 or more - three (3); 100,000 or more, but less than 500,000 - two (2). After the first four years of the scheduled phase -in (2013 and beyond), a governmental entities of certain populations are limited in the number of design -build projects they can enter into — 500,000 or more - six (6); 100,000 or more, but less than 500,000 - four (4). The City has pursued design -build projects under HB 1886. Design -build is a process the City is eager to pursue for a number of high profile projects that are under discussion and negotiation, but for which details cannot be released at this time. Being limited to four projects for the foreseeable future will hinder its ability to maximize its economic development and public works plans. Page 34 of 37 Page 35 of 37 l /AL Sf ✓frSfl { d .! r' >v t ! 3gr1 l �f %L�.!s j ✓'F/ >rS` a`rrlf: ✓Ifj. /� >f�„ff,fl,, .e /. f✓i .,X�. '.f.,rl r ✓::yy��:r� f t (r T llll { .'Y T CATEGORY. : PRIORITY .?) PI fJj .f I IB r' ✓ff 1 I ® fLr. .S. ( ? / ✓� i{ ">j %� /tfF }ifs ✓ /l %,f{.: 66 9 e✓ rjf rlf ✓t { //? r�' '' ,,r'�s ,/C J? rn t i i� f J9�� li J'if.✓".r"�'(' f / f�, 1�;�.. ✓�1 ,, sl : /.T {t Jf J:.. �'s'f I t /fr :,�LP`iS' ✓E'.. y.;✓.�' /r j%re .f rr r. i.riiri��; .ru�r:. .. r, .� / /f .r'/ I rF' / f �r'lf,, ltf v 1r� r r' 3 ✓' ,/' /i fJ . ,. `I rr' / f1 { Sp. }i`s'"% J }✓lr! r I�1 3 sjs Problem Description: The statute does not require a city to appoint someone who is transportation disadvantaged (i.e. elderly, persons with disabilities or low- income individuals) to serve on metropolitan rapid transit authority board. 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Problem Description: Previous legislatures have taken state gasoline taxes that could have been used to pave new roads, ease traffic congestion, or improve transportation infrastructure, have instead been appropriated to supplement other state agency budgets. Background: Every year $700 million is diverted from the State Highway Trust Fund to non - transportation related purposes. These diversions combined with the $1.3 billion in debt service that TXDOT pays every year, is further slowing our state's ability to build and maintain roadway infrastructure. The Chambers support the elimination of diversion for all non - transportation programs that are not directly associated with the maintenance and expansion of the state highway system, except for the 25 percent diversion to education required by the Texas Constitution. Fund 6 is the state's primary highway funding mechanism, collecting the vast majority of highway- related revenue from federal reimbursements, state motor fuels taxes, motor vehicle registrations, and various fees. The Legislature may appropriate funds from Fund 6 for various highway- related purposes, in accord with constitutionally and statutorily established limits. State statutes further restrict the dollar amount of bonds that may be issued on the fund's credit, and the Texas Constitution requires that revenue from Fund 6 be used to pay minimum necessary debt service on bonds and other public securities secured by Fund 6. T . >' r !if.✓0t, "rr .� !r ( r1'r�n, ./t. -. €.. ,! I/., r' 'd"nvf sf /', x > >fr "n!. > i rs:,r rG„.., 2 /J.t- / � n ,l ns,nrl r .n✓ ,r , >.s:.r, ,rf ./in`ra i. R f,. ry ,Ir✓�t .� /:7., n>' P. {/^;. rl,,rl >F �.r r'If vlrf, J .,SP f£ .f ).f��.rfr ./"!6. t., �1 ,r` 1 � ,�, .:r y. 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"� ,m I'1, I d, I" d," I" d," f" f" f" f" f" f" f" f" f" f" f" f" f" f" f" f" f" f" f" f" f" f" f" f" f" f" f" f" f "f "f "f "f "f "f "f "f "f "f<tz<}„<,,. .,"¢i „c ✓y 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 rr'. Page 37 of 37 AGENDA MEMORANDUM Future Item for the City Council Meeting of October 9, 2012 Action Item for the City Council Meeting of October 16, 2012 DATE: TO: September 26, 2012 Ronald L. Olson, City Manager FROM: Wes Pierson, Assistant City Manager — Business Support Services WesP@cctexas.com (361) 826-3082 Management Agreement with SMG for the American Bank Center CAPTION: Motion authorizing the City Manager or his designee to execute a new five year agreement with SMG to manage the American Bank Center under new fees, terms and conditions, including a new base management fee and incentive fee formula, new performance requirements, and new food and beverage service provisions. PURPOSE: Approve a new five year agreement with SMG to manage the American Bank Center under new fees, terms, and conditions. BACKGROUND AND FINDINGS: Since 2003, the operations at the American Bank Center have been managed privately on a contract basis. The facility operations have been managed by SMG, while the food and beverage operations have been managed by Centerplate. In 2009, Council authorized the City Manager to negotiate a new five year agreement with SMG to operate and manage the American Bank Center and to manage the food and beverage agreement with Centerplate. The new agreement required the City to solicit and entertain proposals from private venue management firms to manage and operate the American Bank Center at the end of the third year of the agreement (July 31, 3012). The new agreement also afforded the City the option of terminating the agreement, with our without cause, by providing no more than 90 days' notice to SMG without the payment of any penalty or fees. The new agreement was executed on July 21, 2009 with an effective date of August 1, 2009. On May 4, 2012, as required by the management agreement, the City of Corpus Christi released a Request for Proposal (RFP). The initial due date for responses was June 15, 2012. There was only one participant (SMG) in the first pre - proposal conference on May 17, 2012. On May 18, 2012 City Staff was contacted by a second venue management company (Global Spectrum) requesting additional time to conduct the due diligence necessary to respond to the RFP. As a result, the initial RFP deadline was extended to June 29, 2012. The RFP deadline was extended a final time to July 6, 2012 to allow staff the time to finalize response to clarifying questions submitted by the RFP respondents. On July 6, 2012, the City received one response (SMG) to its Request for Proposal for management services at the American Bank Center. Global Spectrum decided not to submit their proposal because of an existing management agreement with Nueces County for the Richard M. Borchard Regional Fairgrounds. On September 18, 2012 the City Council approved a Motion directing the City Manager or designee to: i) prepare a document analyzing and summarizing the financial and strategic options available to the City for the operation and management of the ABC; (ii) provide recommendations to the City Council related to the operation and management of the American Bank Center; and (iii) conduct time - limited negotiations with SMG for the operation and management of the American Bank Center (ABC). The following terms were agreed to as a result of the negotiations between SMG and the City and are reflected in the attached draft management agreement. City, SMG, and Bond Legal Counsel are finalizing review of the draft of the management agreement. A final executed agreement will be completed prior to final Council consideration on October 16, 2012: Term 5 Years (First three years guaranteed with a City option to terminate the agreement with or without cause with a 90 day notice during the final two years of the agreement — pursuant to IRS Revenue Procedure 97 -13). The City retains the right to issue an RFP after year three of the agreement but is not required to do so. SMG Grant: At the commencement of the new management agreement SMG will provide a grant of $250,000 to the City. The City, at its sole discretion, can determine how it would like to use the grant funds. In the case of termination before five years, SMG is entitled to reclaim the amount of the initial grant as depicted in the following example: if the City terminates the contract at the end of three years, the City would owe SMG $100,000 or $50,000 each of the two unrealized years of the contract; if the contract is terminated at the end of four years the City would owe SMG $50,000, etc. Base Management Fee: $125,000 (subject to an annual increase equal to the CPI) Incentive Fee: The incentive fee is based on the cumulative performance of the entire facility. In order to be eligible to receive an incentive payment, SMG must achieve all four of the following criteria: 1. Net Operating Income surpasses the Net Operating Income /Loss Benchmark 2. Food & Beverage operating profit margin be a minimum 34.5% 3. Meet mutually agreed upon Customer Satisfaction Goals (i.e. Food & Beverage quality and pricing, Customer Experience, etc.) 4. Meets mutually agreed upon Maintenance /Capital Goals If SMG achieves the above criteria it would earn 25% of the following: the difference between the actual operating revenue and the budgeted operating revenue. This difference will be capped in an amount equal to the amount in which the actual Net Operating Income /Loss surpasses the Net Operating Income /Loss Benchmark for each contract year. Note: Pursuant to IRS Revenue Procedure 97 -13, the total amount of the incentive fee cannot exceed the amount of the base management fee on an annual basis. Termination for Poor Performance: The following language was included in the agreement to provide the City an option to pursue in the event of ongoing poor performance by SMG: Termination by the City: The parties have agreed that a material condition to SMG's engagement under this agreement is the improved financial performance of the American Bank Center. As such SMG's incentive compensation is based on SMG surpassing the Net Income /Loss Benchmark for each contract year. In addition, notwithstanding anything to the contrary contained in this Agreement, if SMG's performance under this Agreement results in the increase of Actual Operating Expenses over the Budgeted Operating Expenses (i) in any Contract Year, then within fifteen (15) days of SMG's submission of the Annual Report, SMG shall provide to the City an explanation of the reasons for such failure and a plan to address such failure for the next Contract Year (but in no event shall such explanation and plan be delivered later than seventy -five (75) days following the end of such Contract Year) and (ii) in any two (2) consecutive years, then the City shall have the right to terminate this Agreement upon ninety (90) days written notice to SMG. However, if Actual Operating Expenses have increased over the approved budgeted expenses and there are corresponding revenues to offset such increase than it will not trigger this provision. It is important to note that except for these new terms, no material changes are being made to the terms of the existing agreement. The new agreement encompasses the terms of the current management agreement. ALTERNATIVES: 1) Accept proposed management agreement 2) Direct staff to continue negotiations to improve the proposed management agreement 3) Reject proposed management agreement and issue a new Request for Proposal OTHER CONSIDERATIONS: The new management agreement consolidates management of both facility and food and beverage operations under one provider (SMG). Upon execution of the new agreement the existing management agreement would have to be terminated. The existing agreement requires 90 day notice for termination which notice must also be given to Centerplate (through SMG) effectively ending Centerplate's tenure as the provider of food and beverage services at the American Bank Center. CONFORMITY TO CITY POLICY: This agreement conforms to City Policy EMERGENCY / NON - EMERGENCY: Not applicable. DEPARTMENTAL CLEARANCES: Assistant City Manager — Business Support Services, Finance, Legal 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 $269,986.04 $1,051,010 $1,320,996.04 Encumbered / Expended Amount $0.00 $0.00 $0.00 This item $250,000.00 $1,051,010 $1,301,010 BALANCE $19,986.04 $0.00 $19,986.04 Fund(s): Visitor's Comments: On an annual basis, Staff will budget sufficient funds to cover both the base management fee as well as the maximum possible incentive fee. The maximum amount budgeted for in year one of the agreement will be $250,000. That amount will only change in future years to adjust for inflation. It is anticipated that Hotel Occupancy Tax Dollars will be transferred into the Visitor's Fund to cover these expenditures consistent with Staff's current practice. RECOMMENDATION: Staff recommends Council approve a new five year management agreement with SMG for the management of the American Bank Center incorporating the fees, terms, and conditions outlined above. LIST OF SUPPORTING DOCUMENTS: Draft Contract FIRST AMENDED MANAGEMENT AGREEMENT FOR THE AMERICAN BANK CENTER BETWEEN CITY OF CORPUS CHRISTI AND SMG Page 1 of 49 SMG 1st Amended Agmt 10 -4 -12 CPY DFT FIRST AMENDED MANAGEMENT AGREEMENT THIS FIRST AMENDED MANAGEMENT AGREEMENT ( "Agreement ") is made and entered into effective as of , 2012 by and between SMG, a Pennsylvania general partnership ( "Operator" or "SMG ") and the CITY OF CORPUS CHRISTI, a Texas home rule municipal corporation ( "City "). RECITALS I . The City, acting through its duly authorized City Manager ( "City Manager "), owns and has constructed a Multi- purpose Arena ( "Arena "), the Bayfront Plaza Convention Center and the Selena Auditorium ( "the latter two collectively defined in this Agreement as "the Convention Center ") located in the City of Corpus Christi, Texas, at 1901 North Shoreline Boulevard, which, together with all facilities, machinery, attachments and appurtenances now or hereafter attaching thereto, is hereafter referred to as the "Facility" and also known as the "American Bank Center." 11. The Operator is an organization whose principals have substantial experience and expertise in the management, operation, and marketing of public assembly facilities. 111. The City and Operator are parties to that certain Pre - Opening Services and Management Agreement dated December 18, 2001, as amended by (i) that certain First Amendment to the Pre- Opening Services and Management Agreement, authorized October 14, 2003 by City Council; and as further amended by (ii) that certain Second Amendment dated May 18, 2004; (iii) that certain Third Amendment, dated August 17, 2004; (iv) and that certain Fourth Amendment, dated August 1, 2006 (collectively, the "Original Agreement "), pursuant to which SMG provides management services for the Facility on the terms and conditions set forth therein. The Convention Center portion of the Original Agreement expires July 31, 2009, and the Arena portion expires November 30, 2009. IV. On February 24, 2009, the City Council authorized the City Manager or his designee to negotiate a five year agreement with SMG to operate and manage the American Bank Center under new fees, terms, and conditions, and with the negotiated agreement to include but not be limited to a term: (i) adding to SG's duties the duty to manage all food and beverage services at the Facility, including management of all alcoholic beverage services; (ii) acknowledging that SMG shall be assigned both the Food and Beverage Services Agreement with Centerplate and the Alcohol Service Management Agreement with the Corpus Christi International Seamen's Center; (iii) stating that, immediately following the third year of the Agreement, the City shall solicit and entertain proposals from private venue management firms to operate and manage the American Bank Center; and (iv) giving the City the ri ght, immediately following the third year, to terminate the agreement, with or without cause, by providing no more than ninety (90) days' notice to SMG, without the payment of any penalty, fee or premium. V. The City and Operator are parties to that certain Management Agreement effective August 1, 2009, authorized July 21, 2009 by City Council by Motion #2009 -207 ( "The Management Agreement "), pursuant to which SMG provides management services for the Arena, Page 2 of 49 SMG 1st Amended Agmt 10 -4 -12 CPY DFT the Convention Center and the Selena Auditorium (collectively, the "Facility ") the terms and conditions of which included: (i) SMG's duty and exclusive right to manage all food and beverage services at the Facility, including management of all alcoholic beverage services as well as the Food and Beverage Services Agreement with Operator and the Alcohol Service Management Agreement with the Corpus Christi International Seamen's Center; (ii) stating that, immediately following the third year of the Agreement, the City shall solicit and entertain proposals from private venue management firms to operate and manage the American Bank Center; and (iii) giving the City the right, immediately following the third year, to terminate the agreement, with or without cause, by providing no more than ninety (90) days' notice to SMG, without the payment of any penalty, fee or premium. The Management Agreement expires September 30, 2014 unless sooner terminated under the provisions of the Management Agreement. VI. Pursuant to The Management Agreement, on or about May 4, 2012, the City solicited and entertained proposals from private venue management firms to operate and manage the American Bank Center, of which the Operator was the successful bidder. As a result, the City and the Operator desire to enter into this ;Agreement to (i) grant SMG the exclusive right to manage all food, beverage and alcoholic beverage services at the Facility using the vendor(s) of their choice; (ii) provide for a five (5) year term; (iii) give the City the right, immediately following the third year of the Agreement, to terminate the agreement, with or without cause, by providing no more than ninety (90) days' notice to SMG, without the payment of any penalty, fee or premium, (iv) state a management fee to be paid to the Operator; (v) state a performance -based incentive fee to be paid to the Operator upon performance; (vi) other terms and conditions as stated herein. VII. The Operator is a party to that certain Food and Beverage Services Agreement with Service America Corporation, d/b/a/ Centerplate ( "Centerplate "), effective August 1, 2009 (the "Food & Beverage Contract "), pursuant to which Centerplate provides food and non - alcoholic beverage services at the Facility. The Food and Beverage Contract expires September 30, 2014 unless sooner terminated under the provisions of the Management Agreement by providing no more than ninety (90) days' notice to Operator. VI. It is the City's intention that the Facility be operated in a First -Class and fiscally responsible manner with the objectives of coffering diverse event activity (e.g., cultural, educational, entertainment, sporting, social and other activities) to area residents and visitors; attracting events (e.g., conventions and tradeshows) that generate economic and fiscal activity thereby stimulating the economy; minimizing financial operating requirements required from public funds; and, in general, maximizing the utilization of the Facility for the benefit of the City, while minimizing, to the extent practical, the net cost to the City. The parties accordingly agree as follows: AGREEMENT ARTICLE 1 DEFINITIO NS SMG 1st Amended Agmt 10 -4 -12 CPY DFT Page 3 of 49 The following words, unless the context otherwise requires, have the meanings ascribed to them below. "Affiliate" means, 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. "Agreement" has the meaning ascribed above, as amended from time to time. "Architects" means the architects of record, whether one or more, engaged by the City to prepare the plans and specifications for the Facility with regard to any future improvements /renovations. "Arena" means the approximate 9,500 seat (8,000 fixed and 1,500 movable/ portable), multi- purpose arena, together with all facilities, machinery, attachments and appurtenances, now or hereafter attaching thereto. "Bonds" mean and refer collectively to the City bonds used to finance the Facility or the Bonds that will further finance the Facility, the interest on which is or will be excludable from the bondholder's gross income for federal income tax purposes under Section 103 of the Internal Revenue Code of 1986, as amended. "Budget" means any budget to be prepared by Operator under the provisions of Article 4 of this Agreement. An "Approved Budget" means any Budget submitted by Operator to and approved in writing by the City (including any amendment thereto approved in writing by the City). With respect to each Budget referenced in this Agreement, a separate Budget shall be established for the Arena and the Convention Center and Operator shall operate each of the Arena and the Convention Center in accordance with such separate Approved Budgets, as provided by Article 4 and more specifically by Section 4.8 of this Agreement. "Capital Expenditures" means all expenditures for building additions, alterations, renovations, repairs or improvements, and for purchases of additional or replacement furniture, fixtures, machinery or equipment, the depreciable life of which, according to generally accepted accounting principles, is in excess of one (1) year and the value ofwhich is equal to or greater than $5,000. "Catering" means functions where payment is received in advance from one party for prearranged Foodservices, including but not limited to, dinners, banquets, and receptions and hosted bars. "City" shall have the meaning assigned to it in the opening paragraph above. "Code" means the Texas Alcoholic Beverage Code. "Concessionaire" shall mean the party or parties selected by Operator to manage any or all of the Foodservices on site, excluding Outside Catering. "Concessions" means Foodservices where payment is made at the time that food and beverage services Page 4 of 49 SMG 1st Amended Agmt 10 -4 -12 CPY DFT and products are served or delivered. An example of this includes an individual purchasing items at a concession stand or from a cash bar. "Contract Administrator" means any officer, agent, employee of, or independent contractor retained or employed by either party, acting within the scope of authority given such person by such party. "Contractor" means, whether one or more, the general contractor(s) selected by the City to repair, replace, improve, remove, renovate or modify the Facility. "Convention Center" means and refers collectively to the Bayfront Plaza Convention Center and the Selena Auditorium. "Customer Satisfaction Goals" ** This is a reminder that we need a definition or a section detailing these. "Depository" means the place selected by the City in which the bank accounts for the funds required to be maintained under this Agreement are to be deposited. "Emergency Expenditure" means any expenditure to the extent not included within an Approved Budget and not expected by the Operator to be incurred but which is necessary to correct any condition that poses an imminent threat to public safety or material damage to the Facility. "Event" refers to all events held at the Facility including, but not limited to, concerts, sporting events, family shows, tradeshows, consumer shows, banquets, receptions, meetings, seminars, and any other functions held at the Facility consistent with this Agreement. "Event Expenses" means ;any and all expenses incurred or payments made by Operator in connection with the occurrence of events at the Facility, including but not limited to costs for event staffing including ticket takers, security and other event staff, and costs relating to setup and cleanup. "Facility" means, collectively, the Arena, the Convention Center, and the Selena Auditorium. "First- Class" means 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 Facility, including but not limited to • professional promotion and marketing efforts; • service - oriented guest and tenant services; • premium food and beverage services; • timely repairs, maintenance, and cleaning of building, equipment, and grounds; • positive, safe and secure Facility for patrons and employees; • state -of -the -art technology to patrons; and • parking services "Fiscal Year" means, at the time of this Agreement's execution, a period of time beginning on August 1 and ending on the immediately following July 31, inclusive. The City may change its Fiscal Year, in which case the City must notify Operator of the change in writing at least 120 days before the end of Page 5 of 49 SMG 1st Amended Agmt 10 -4 -12 CPY DFT 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. "Foodservices" means planning, preparation, service, accounting and management of food and beverage services to be provided hereunder, including without limitation, Catering and Concessions, vending machines, staffing and liquor license procurement and maintenance in accordance with the laws of the Texas Alcoholic Beverage Code and regulations promulgated by the Texas Alcoholic Beverage Commission. "Foodservice Premises" means all areas, improvements, fixtures, and trade fixtures on the Facility's premises that are or may in the future be used in connection with the operation of the Foodservices, including adequate storage and office space, as described in Exhibit "B" hereto, The Foodservice Premises may not be changed without the prior written approval of the City, which shall not be unreasonably withheld or delayed. "Food Products" means all food and beverages, and shall include without limitation, alcoholic beverages, candy, tobacco, and confections, except that as long as, the Anticipated Arrangement remains in effect, "Food Products" will not include alcoholic beverages, except where sold pursuant to a catering permit. "General Manager" means the chief operating officer of the Operator at the Facility. "Licensee" means a person or entity entering into a written agreement to host an Event at the Facility. "Maintenance /Capital Goals" ** This is a reminder that we need a definition or a section detailing these. "Major User" means any professional sports team, franchise or university using the Facility as the site of its home games, as well as any event traditionally held at the Facility whose use thereof consists of more than thirty (30) days during any Fiscal Year. "Management Fees" means those fees payable to the Operator under Article 7. "Net Operating Income" means with respect to a Fiscal year, the excess, if any, Operating Revenues for such Fiscal Year over Operating Expenses, as set forth on the year end audited financial statements, for such Fiscal Year. "Net Operating Income Benchmark" means the projected Net Operating Income in the Approved Budget for that particular Fiscal Year. "Net Operating Loss" means with respect to a Fiscal Year, the excess, if any, of Operating Expenses for such Fiscal Year over Operating Revenues as set forth in the year end audited financial statements, for such Fiscal Year. "Net Operating Income/Loss Benchmark" is equal to the average of the actual combined Net Operating Income for the rolling three (3) year period immediately preceding the current contract year. Page 6 of 49 SMG 1st Amended Agmt 10 -4 -12 CPY DFT "Operating Expenses" means all expenditures or obligations of whatever kind or nature made or incurred by SMG in promoting, operating, maintaining, marketing and managing the Facility during any specified period during the term of this Agreement, all contract labor; all Reimbursable Expenses; all fees paid to Operator under this Agreement; maintenance and repairs; utilities; deposits for utilities; telephone; telescreen and/or scoreboard operations; security; fees payable to subcontractors; refuse removal; cleaning; sales use, or any other taxes or impositions applicable to the operation of the Facility; building supplies; ticket commissions; premiums for insurance maintained under Article 8; data processing; advertising; marketing; public relations; pest control; travel, lodging and related out -of- pocket expenses; audit fees; legal fees and other professional fees; professional development and training expenses for the benefit of the Facility, and Facility related entertainment; office supplies, employment fees; freight and delivery; lease of equipment; Master Card, VISA and other credit and debit facilities and telecheck fees and expenses; bank fees, all damages, losses or expenses suffered or paid by the City (or, at the City's written direction, by Operator) as the result of any and all claims, demands, suits, causes of action, proceedings, judgments and liabilities, including reasonable attorneys' fees incurred in litigation or otherwise, assessed, incurred or sustained; and fees and commissions paid to any third party engaged by the City (or, upon the City's written request, by Operator) to provide services with respect to advertising naming rights, pouring rights, the marketing and sale of luxury boxes or the sale of personal seat licenses, but excludes any SMG Capital Contributions and Capital Expenditures, costs for corporate overhead, indemnity obligations and damage payments owed to the City, amortization (including the SMG Capital Contribution), depreciation and other non -cash charges and any debt service on the Bonds. Expenses shall be calculated separately for the Arena and the Convention Center. Solely for purposes of the submission of the budgets hereunder and the calculation of Net Operating Income and Loss, the Net Operating Income Benchmark, the Net Operating Loss Benchmark, and SMG's incentive fees hereunder, the fees payable to SMG under this Agreement shall not be included therein. "Operating Fund" means a fund maintained under Section 5.1. "Operating Revenue Account" has the meaning ascribed by Section 5.1. "Operating Revenues" means all receipts (including, without limitation, seat license fees and surcharges, rental revenues, use license fees, merchandise sales revenue, advertising sales revenues, box office income, suite sales, sponsorship revenues, promotional fees, and equipment rental fees), revenues, income, and cash received or collected (1) for the use of, operation, or admission to, the Facility or any portion thereof, (2) for the right to sell, or in respect of the sale of, any product or advertisement in the Facility including all rents, royalties, and concessions from tenants, concessionaires, and licensees (but specifically excluding the gross receipts of such concessionaires, tenants, and licensees); (3) for rental or use of the Facility equipment, or (4) as fees for services rendered at the Facility. Excluding from Operating Revenues in all events are, any portion of ticket sales payable to the performers in or promoters of any event in the Facility or the portion of such ticket sales if any payable as a commission to any entity or person providing ticket distribution services, for and on behalf of and actually paid to a user of the Facility; applicable excise, sales occupancy and use taxes, or similar government taxes, duties, levies, or charges collected directly from patrons or guests, or as a part of the sales price of any goods, services or displays, such as gross receipts, admission, cabaret, or similar or equivalent taxes; receipts from financing, receipts from the sale or other disposition of capital assets and other items not in the ordinary course of the Facility's operations and income derived from securities and other property acquired and held for investment; receipts from awards or sales in connection with any taking, from other transfers in lieu of and Page 7 of 49 SMG 1st Amended Agmt 10 -4 -12 CPY DFT under the threat of any taking, and other receipts in connection with any taking; proceeds of any insurance, including the proceeds of any business income insurance (provided that the proceeds of business income insurance shall be included to the extent the same reimburse the City for revenues actually lost); proceeds of advances made by the City to fund net operating deficits from the operation of the Facility and funds advanced for capital expenditure; rebates (including tax rebates from the City, State of Texas or other governmental authorities and any interdepartmental funding from other departments of the City in the nature of reimbursements or otherwise), discounts or credits of a similar nature (not including charge or credit card discounts, which shall not constitute a deduction from revenues in determining Operating Revenues, but shall constitute Operating Expenses in determining Operating Income or Operating Loss). Operating Revenues shall be calculated separately for the Arena and the Convention Center and, in no event, shall Operating Revenue ever be deemed to include the proceeds of any hotel occupancy taxes. "Operator" has the meaning assigned to it in the opening paragraph above. "Operations Manual" means a document developed by Operator which contains terms regarding the management and operation of the Facilities, including detailed policies and procedures to be implemented in operating the Facilities, as agreed upon by both the City and the Operator. The parties acknowledge that to the extent that such manual contains any proprietary information of SMG (e.g., SMG -wide (not Facility- specific) operating policies, procedures and/or software), such information shall remain the property of SMG and shall not be kept at the Facility after the expiration or termination of this Agreement. "Outside Caterers" means any caterer, other than Operator ' or a Concessionaire for all Foodservices at the Facilities with whom Operator may contract, entering into an Outside Catering Agreement provide Catering services at the Facilities for a single event. The Operator will establish minimum Commissions and/or fees, insurance and security deposits required in order for an Outside Caterer to operate at the Facilities. Outside Caterer will paytOperator immediately following their Catering event based on the Outside Catering Agreement with that Outside Caterer an d the Operator. "Outside Catering Agreement" means the written agreement between the Operator and an Outside Caterer for a single Event to be held at the Facilities. "Parking Lots" means any and all existing and future parking facilities that serve the Facilities, as shown in Exhibit "C" which the parties may amend from time to time. "Prompt Payment Act's means Chapter 2251 of the Government Code in force in the State of Texas. "Reimbursable Expenses" means all of the following expenses incurred by the Operator in performing its services under this Agreement to the extent (but no further) the same are provided for in an Approved Budget or are incurred as part of an Emergency Expenditure, salaries, wages, and benefits of Operator's personnel working at the Facility; payments made by Operator to unrelated parties from its own funds or liabilities incurred by Operator for actual and direct expenses under contracts related to the operation of the Facility but then only if entered into by Operator in accordance with this Agreement; travel, lodging, and entertainment expenses. Page 8 of 49 SMG 1st Amended Agmt 10 -4 -12 CPY DFT "Renovations" means any renovations of the Facility that may be undertaken by the City. "Revenue Benchmark" means the projected operating revenues in the Approved Budget for the Facility and excludes the sale of naming rights for the Facility. "TABC" means the Texas Alcoholic Beverage Commission. "Utilities" means electrical, water, and gas services. Operator is responsible for utilities. For the electricity invoices that the City pays directly, the City will make every effort to submit the invoices to Operator for reimbursement in a timely manner, but in no case later than ten (10) calendar days after City makes the direct payment to electricity provider. Operator shall pay all invoices within fifteen (15) calendar days from the date of the invoice, in accordance with Section 5.3 of this Agreement. ARTICLE 2 INTRODUCTION 2.1 Grant of Authority. To enable Operator to perform its obligations under this Agreement, the City hereby grants to the Operator, and the Operator hereby accepts, the exclusive right and obligation subject to the provisions of Section 3.7 and the other terms and 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 Facility. 2.2 Exclusive Rights Granted. The City hereby grants to Operator, subject to the terms and conditions of this Agreement, the "Exclusive Right" to operate themselves or to contract with outside concessionaires for vending machines and for the provision of the Foodservices, to oversee the provision of those services by such concessionaires, and to allow such concessionaires the exclusive use of the Foodservice Premises at the Facilities, subject to any limitations contained in this Agreement concerning Catering at the Convention Center, The City grants Operator the exclusive rights to sell novelties, souvenirs, programs, records, tapes, clothing and gifts (collectively, "Novelties") at all Events held at the Facility. 2.3 Exclusion from Exclusive fights. The following shall be excluded from the Exclusive Right to provide Foodservices: (a)Fairs or Festivals. Foodservices provided at fair or festival type Events at the Facility may be excluded if, in the opinion of the City, the selling of the items from booths is an important part of the Event. Additionally, the Exclusive Right to provide Food and Beverage Services shall not prevent or prohibit an exhibitor from distributing without charge a sample portion of the type of food or merchandise manufactured and distributed in the normal course of the exhibitor's business, or from selling food items intended for consumption off the premises. 2.4 Nature of Relationship. The parties agree that the only relationship created by this Agreement is that between the City, as owner, and the Operator, as an independent contractor, for management and operating services and that the Operator is an independent contractor, not an agent, employee, joint venturer or partner of the City. 2.5 Term. The term of the Agreement begins on SMG 1st Amended Agmt 10 -4 -12 CPY DFT , 2012 (the "Effective Page 9 of 49 Date ") and ends on the last day of the fifth (51h) full year following the Effective Date unless sooner terminated under the provisions of this Agreement. The City may, effective the last day of the third year and anytime thereafter, terminate this Agreement with or without cause and without payment of any penalty, fee or premium in accordance with Article 10 of this Agreement. 2.6 Contract Administrator. Each party must appoint a contract administrator who shall monitor such party's compliance with the terms of this Agreement. Operator's contract administrator shall be its General Manager at the Facility, unless Operator notifies City of a substitute contract administrator in writing. City shall notify Operator of the name of its contract administrator within thirty (30) days of execution hereof Any and all references in this Agreement requiring Operator or City participation or approval shall mean the participation or approval of such party's contract administrator. ARTICLE 3 RESPONSIBILIT IFS OF OPERATOR 3.1 Standard of Care (a) Subject to the limitations on Operator's authority set forth in this Agreement and subject to the Approved Budget, the Operator shall exercise its diligent, good faith efforts in managing and operating the Facilities so as to minimize Operating Expenses and maximize Operating Revenues. In this connection, the parties agree that the Operator, in recommending and implementing booking policies approved by the City, may schedule not only those events that generate substantial direct revenue to the Facilities, but also those events that produce less direct revenue but, in the Operator's good faith judgment, generate either a significant economic, cultural, or other benefit to the City or otherwise serve the public interest; provided that, except where provided under Sections 3.8 and 39, no use of the Facilities shall be permitted without a reasonable charge or reimbursement of costs of operation of the Facilities, as may be prudent under the circumstances, for such use with respect to the Arena and/or Convention Center, as applicable. (b)Subject to the limitations set forth in this Agreement, the Operator shall do the following (or cause the same to be performed): (i) Manage and operate the Facilities and contract for its use in a manner that will promote and maximize the use to further the purposes for which the Facilities is to be constructed, as set forth in the Recitals to this Agreement, (ii) Manage all aspects of the Facilities in accordance with the Operations Manual and the terms of this Agreement, including but not limited to cost containment, revenue generation, profit maximization, promotions, advertising, energy conservation, security, box office admission procedures and general user services; (iii) Maintain the Facility in accordance with the Operations Manual and the terms of this Agreement, including but not limited to 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 inspections of the Facility on a daily basis, and Page 10 of 49 SMG 1st Amended Agmt 10 -4 -12 CPY DFT maintenance of all the Parking Lots to city codes and standards; (iv) Update, and further develop as necessary, the Operations Manual for the Facility for the City's review and approval no later than December 31, 2012, and regularly thereafter as appropriate; (v) Manage the Foodservices, including alcoholic beverage services, at the Facility. Negotiate and enter into contracts, if any, at and for the Facility for the sale of food, beverages, souvenirs, novelties and programs, as provided by Article 2 and Article 6B, as applicable (including without limitation the execution and delivery of such contracts in Operator's name as an independent contractor), (vi) Negotiate, execute, and perform contracts, use agreements, licenses and other agreements (A) with persons who desire to schedule events, performances, telecasts, broadcasts or other transmissions in, from or to the Facility or who desire otherwise to use the Facility or any part thereof or (B) that otherwise pertain to the use, operation and occupancy of the Facility or any part thereof, as provided in Sections 6.4, 6.6, 6.8, and 6.13, as applicable (including without limitation the execution and delivery of such contracts in Operator's name as an independent contractor), (iv) Market the sale of luxury suites or boxes and personal seat licenses, as provided in Sections 6.4, 6.6, 6.8, and 6.13, as applicable (including without limitation the execution and delivery of such contracts in Operator's name as an independent contractor); (v) Coordinate and negotiate contracts for all advertising, licensing, promotional activities, marketing and public relations for the Facility, as provided in Sections 6.4, 6.6, 6.8, and 6.13, as applicable (including, without limitation the execution and delivery of such contracts in Operator's name as an independent contractor), Coordinate the efforts of advertising promotional activities, marketing, and public relations at the Facility of City activities and efforts, as requested by the City, from time to time. Menage other facilities and projects at the request of the City, as these opportunities arise, and coordinate such new efforts by meeting with the City to agree to the scope of and other terms related to such management. (viii) Coordinate the efforts of all parties involved in the operation of the Facility and establish and maintain consistent procedures for cost estimating and reporting, maintenance and payment of invoices, including preparation of Budgets and reports as contemplated by Article 4; (ix) Plan, coordinate, and administer operation of the Facility and continue to identify, select, and train the Facility's staff; (xi) Retain legal counsel in connection with the discharge of its duties hereunder and cause such counsel to coordinate with the City's legal department where necessary or appropriate. Operator acknowledges that the City's legal department shall at all times represent the interests of the City; (xi i) Coordinate the work of all parties performing work in connection with the operating of the Facility; Page 11 of 49 SMG 1st Amended Agmt 10 -4 -12 CPY DFT (xi i i) Monitor actual and projected Operating Expenses and Operating Revenues and advise the City, in a timely fashion as part of its Monthly Report, if projected costs exceed the amounts set forth in the Approved Budgets, as provided in Section 6.12, as well as the reasons for the discrepancy; (xiv) Furnish all services, personnel, materials, tools, machinery, equipment and other items necessary to accomplish the foregoing requirements of this Paragraph, Article 3, and other provisions of this Agreement; (xv) Devise and implement procedures (including preventive and predictive maintenance procedures) reasonably designed to keep the Facility in good order and condition, subject to ordinary wear and tear, and maintain the Facility in such order and condition; and (xvi) Require that all persons using the Facility or attending events therein comply with all legal requirements of all governmental authorities having jurisdiction over the Facility; (xvi i) Not create, assume or suffer to exist any mortgage, pledge, lien, charge or security interest or other encumbrance of any nature whatsoever relating to this Agreement or its rights and obligations under this Agreement, except any pledge or other encumbrance of the fees due Operator pursuant to this Agreement; (xvi i i) Promptly and fully discharge and pay all of its obligations under this Agreement at or prior to the time specified for performance or payment thereof including without limitation, the payment of all Operating Expenses from the funds available for that purpose under Article 5. Operator shall have the right to contest its obligations to make payments to third parties so long as (x) Operator does so in good faith, diligently and by appropriate proceedings, and (y) such contest does not subject the City to any potential civil or 'criminal liability or constitute a breach of any law, rule, code or regulation applicable to the City; (xix) Develop a comprehensive marketing plan and brochure, a booking policy, and a complimentary sales responsibilities plan with the Convention and Visitors Bureau of the City and begin implementation thereof as soon thereafter as the same is approved by the City; (xx) Manage the cuixent Naming Rights Agreement between Operator and the American Bank Center, and seek, negotiate and enter into contracts with future naming rights partners subject to the terms of this Agreement, for the naming rights of the Facility, and maximize additional naming rights revenue at the Facility to the extent not under the scope of the current Naming Rights Agreement to the maximum extent possible, not in conflict with the current Naming Rights Agreement; and (xxi) Operator will be required to use its best efforts to implement energy efficiency and conservation measures, consistent with those established by the City of Corpus Christi, in an effort to meet and achieve a 5% annual reduction in electricity consumption. In order to meet these goals, Operator will propose capital improvement projects to increase energy efficiency at the Facility. The goal of this requirement is to achieve sustainability and to reduce the operating costs at the Facility. Operator must facilitate the City's energy audits of the Facility, review the results of the energy audit and make recommendations to City to improve the energy performance of the Facility. Page 12 of 49 SMG 1st Amended Agmt 10 -4 -12 CPY DFT (c) Section 3.1 and each provision in the above subsection "b" shall be subject to the Approved Budget. 32 Compliance with the Law; Duty. The Operator shall comply with all applicable laws, rules, regulations, ordinances ( "Laws ") relating to the use and operation of the Facility and the employment of its employees. The Operator shall perform its obligations hereunder in good faith and in conformity with the standard to which a good operator would operate in similar circumstances. If compliance with applicable Laws with regard to the condition of the Facility requires funds not provided for in an Approved Budget and the City refuses to consent to amendment to the Approved Budget providing for the expenditure of funds necessary to cause the Facility to comply with such applicable Laws, then the Operator may terminate this Agreement upon ninety (90) days prior written notice to the City (which notice shall described with specificity the applicable Laws violated and the actions needed to remedy the same) if (x) the failure to comply with such applicable Laws subjects the Operator to potential civil or criminal liability, and (y) the City fails, within such ninety (90) day period, to make provision for the funds necessary to correct such violation, in accordance with Section 5.3 of this Agreement. 3.3 No Construction or Design Responsibilities. Notwithstanding Operator's review of and recommendations, upon request by the City, in respect to any Facility's design, improvements or renovations, the Operator will not have responsibility to the City or any other person for or authority concerning any final plans and specifications for the Facility's design, improvements or renovations, and will not supervise or be responsible in any manner for construction, if any, of said improvements or renovations. The City acknowledges that Operator's recommendations are based solely upon Operator's practical experiences in the operation of public assembly facilities similar to the Facility. The City agrees to look to the Contractor, subcontractors, Architects, engineers and other design professionals for all matters related to design and construction of any work and not to Operator. Duty and Liability. The Operator shall owe to the City a duty to perform its obligations under this Agreement and to conduct the management and operating of the Facility at all times with integrity and good faith and in a manner which is in the best interests of the Facility and the City and consistent with the terms of this Agreement. 3.5 Funding Limitations. The City recognizes and agrees that performance by Operator of its responsibilities under Article 3 and otherwise under this Agreement is subject to the City's provision of funds to Operator for such purposes as hereinafter provided, and is limited by the Approved Budgets. 3.6 Financial Statements. At the City's request, Operator shall provide the City with the opportunity to review certain financial statements of Operator (the "Financial Statements "). In connection with such financial statement review, Operator shall represent and warrant to the City that (i) such Financial Statements were prepared in accordance with generally accepted accounting principles consistently applied and are true and correct in all material respects and present fairly the Operator's financial position as of the date thereof, and that (ii) to the best of Operator's knowledge there has been no material adverse change in Operator's financial position from that reflected in the Financial Statements. 3.7 Certain Excluded Services. Notwithstanding the foregoing, the City reserves the right to have parties other than Operator negotiate contracts for naming rights related to the Facility. Operator shall, Page 13 of 49 SMG 1st Amended Agmt 10 -4 -12 CPY DFT however, after execution of a contract for naming rights be responsible for insuring that all obligations of the City and the other parties thereto are duly and timely performed; provided, however, in so doing Operator shall not have to accept any liability or obligation therefor not already provided for in this Agreement. 3.8 Use of Facility at Direction of City. (a) At the direction of the City Manager, upon reasonable advance notice and subject to availability, Operator shall provide use of the Facility or any part thereof to civic, special interest groups and nonprofit organizations located in Corpus Christi area at reduced rates below the published rate schedule. (b) Subject to the Policies and Guidelines established by Operator and approved or modified by the City, the City shall not schedule use of the Facility pursuant to subsection (a) and Section 3.9, below, if such use will conflict with paying events booked by Operator and shall in all instances be subordinate thereto in terms of priority of use of the Facility. In instances when the Facility, or part thereof, is to be used at the City's request or by the City pursuant to subsections (a) and Section 3.9, below, a rent or use fee which otherwise would be chargeable for such event shall be deemed to have been paid and such deemed payment shall constitute Operating Revenues for the purpose of calculating Operator's incentive fee pursuant to Article 7 hereof. 3.9 Use of Facility by City. Subject to availability, the City shall have the right to use the Facility or any part thereof rent -free for meetings, seminars, training classes or other noncommercial uses, provided that the City shall promptly reimburse Operator, for deposit into the Operating Revenue Account, for any incremental out-of-pocket expenses incurred by Operator (such as the cost of ushers, ticket-takers, set -up and take -down personnel, security expenses and other expenses) not included in the Approved Budget in connection with such use. Such non - commercial use of the Facility by the City shall O not compete with or conflict with the dates previously booked by Operator for paying events, (ii) not consist of normally touring attractions (such as concerts and family shows); and ) be booked in advance upon reasonable notice to Operator pursuant to the Facility's Policies and Guidelines as approved or modified by the City. Upon request of the City, Operator shall provide to the City a list of available dates for City's use of the Facility. To the extent that Operator has an opportunity to book a revenue - producing event on a date which is otherwise reserved for use by the City, Operator may propose alternative dates for the City's event, and the City shall use commercially reasonable efforts to reschedule its event to allow Operator to book the revenue - producing event. For purposes of calculating Operator's Incentive Fee, Operator shall receive a "paper" credit for an amount equal to the difference between the published Facility rate and the rate (if any) charged to the City for such use of the Facility only in the event that the Manager had a bona fide opportunity to book a revenue - producing event. ARTICLE 4 RECORDS, ACCOUNTS AND REPORTS Page 14 of 49 SMG 1st Amended Agmt 10 -4 -12 CPY DFT 4.1 Books. The Operator shall maintain at the Facility books of account with respect to its management and operation of the Facility in accordance with generally accepted accounting principles and industry standards. Operator shall maintain such books and records for a period of three (3) years following the expiration or sooner termination of this Agreement. Separate books of account shall be maintained for the Arena and the Convention Center. 4.2 Access to Information. The City shall have the unqualified right to obtain from the Operator (and/or from any of Operator's subcontractors), at any reasonable time upon request, such information and to inspect and audit such books and records concerning the management and operation of the Facility as may be deemed necessary or desirable by the City. It is the City's intent to conduct a performance audit during the Term of the Agreement. 4.3 Annual Audit. As soon as practicable at the close of each Fiscal Year, but not later than 90 calendar days after the end of the Fiscal Year, the Operator shall furnish to the City a balance sheet, a Schedule of Revenues, Expenditures and Changes in Fun d Balance prepared in accordance with generally accepted accounting principles and accompanied by an auditor's report containing an opinion of the independent certified public accountant preparing the report, which shall be a firm selected by the City, paid directly by the Operator. 4.4 Monthly Reports. Not later than thirty (30) days after the end of each month during the Period, the Operator shall furnish to the City a report in the same format as SMG has provided under the Original Agreement. 4.5 Daily Event Flash and Other Reports. At City's request, from time to time, Operator shall famish to the City other reports, including but not limited to a daily event "flash" report. 4.6 Capital Improvements Budget. Not later than 120 days before the beginning of each Fiscal Year (after the first year of the Agreement), the Operator shall submit a Budget for projected Capital Expenditures for such Fiscal Year. This Budget shall be subject to the procedures customarily employed in connection with the development, approval, and implementation of capital budgets for the City and shall in all cases be subject to the approval of the City. 4.7 Annual Budget. Not later than 120 days prior to the beginning of each Fiscal Year after the first Fiscal Year, the Operator shall submit an annual Budget for such upcoming Fiscal Year, listing all projected Operating Revenues and Operating Expenses (including Reimbursable Expenses) by category. The Operator may at any time submit to the City for its consideration amendments to a Budget to reflect unanticipated revenues or expenses or other changes. The Annual Budget must be consistent with City policy. Separate Budgets shall be submitted for the Arena and the Convention Center. 4.8 Budget Approval. The City shall promptly review all proposed Budgets and amendments thereto and promptly communicate to the Operator any comments or suggested revisions thereto. The City shall, in any event, complete its Budget review and deliver its comments in accordance with the City's budget calendar. Final approval of any Budget shall, except for amendments thereto that are not material, be completed in accordance with procedures applicable to the general City budget which is to be adopted by the end of each Page 15 of 49 SMG 1st Amended Agmt 10 -4 -12 CPY DFT immediately preceding Fiscal Year. In the event a proposed Budget has not been approved in a manner which permits its incorporation into the general City budget for approval on or before the end of each immediately preceding Fiscal Year, the Budget for the previous period shall continue to control except that the portions thereof relating to salaries, wages, and benefits included as part of Reimbursable Expenses shall be deemed increased by an amount equal to the increase in the Index (defined below) on the first day of such period over the Index in effect as of the same day of the immediately preceding year. Each Budget shall be considered approved only upon written approval thereof by the City. Each Budget, once approved in writing by the City, and each capital Budget, once approved in writing by the City, shall constitute an "Approved Budget." Operator shall operate and manage the Facilities in accordance with the Approved Budget and in no event (other than in connection with an Emergency Expenditure) may Operator incur costs or expenses in excess of the amounts budgeted therefor, except as otherwise provided for in Article 6, below. Not later than sixty (60) days after the Effective Date of the Agreement, Operator shall submit an Amended Budget to reflect any changes required by the new terms of this Agreement. Operator recognizes that approval of the Budgets shall be made or withheld by the City in the City's sole and absolute discretion. The base for computing the adjustment described in the opening paragraph of this Section is the Consumer Price Index for the Houston-Galveston-Brazoria, TX area, all Urban Consumers (base year 1984 100), published by the United States Department of Labor, Bureau of Labor Statistics ( "Index "). The Index published most immediately preceding the adjustment date in question ( "Interim Index' ") is to be used in determining the amount of the adjustment. If the Interim Index has increased over the Index as of the date the previous Approved Budget was approved (the "Initial Index "), the portion of the Budget to be adjusted as provided for in the opening paragraph of this Section shall be set by multiplying the then applicable base by. a fraction, the numerator of which is the Interim Index and the denominator of which is the Initial Index- If the Index is changed so that the, base year differs from that in effect as provided above, the Index shall be converted in accordance with the conversion factor published by the United States Department of Labor, Bureau of Labor Statistics. If the Index is discontinued or revised during the term, such other government index or computation with which it is replaced shall be used in order to obtain substantially the same result as would be obtained if the Index had not been discontinued or revised. 4.9 Estimated Budgets. The City recognizes that each Approved Budget shall reflect Operating Revenues and Operating Expenses based upon the Operator's best, good faith judgment and may also be predicated upon the assumptions set forth therein with regard to the matters described below in this Section. In the event that Operating Revenues and Operating Expenses assumptions are, for any reason other than Operator's default under this Agreement, overstated, the parties agree to promptly meet and attempt to agree upon revisions to the Budgets. ARTICLE 5 FUNDS AND ACCOUNTS SMG 1st Amended Agmt 10 -4 -12 CPY DFT Page 16 of 49 5.1 Operating Revenue Account. After the Effective Date the Operator shall collect all Operating Revenues and deposit them in separate accounts (one for each of the Arena and Convention Center) maintained in the Depository in the name of the City (each, an "Operating Fund "). The Operator shall have authority to withdraw proceeds from the Operating Fund. Moneys in the Operating Fund and any interest thereon shall be applied first to the payment of Operating Expenses. Any balance shall be retained in the Operating Fund as reserve for payment of future Operating Expenses. If, at the end of any Fiscal Year, there shall be a balance in the Operating Fund in an amount in excess of the anticipated Operating Expenses for the first month of the ensuing year, the Operator shall, at the request of the City, disburse such excess to the City on or before the fifteenth (15) day of such month. (a) Operating Account for Convention Center. To the extent that the City subsidizes the operations of the Convention Center, and in order to provide the funding necessary to afford Operator to perform its obligations hereunder with respect to Expenses not funded by the Operating Revenues deposited in the Operating Revenue Account for the Convention Center, the City shall deposit into the Operating Revenue Account an amount equal to 1112th the amount of the subsidy in the Approved Annual Budget to the Operator for the operations of the Convention Center no later than the fifth (5th) working day of each month of the Fiscal Year in which a subsidy has been included in the Approved Annual Budget. (b) Advancing of Funds for Convention Center. Fat any time during a particular month, the amount of monies on deposit in the Operating Fund and available for that purpose shall be insufficient for the payment of Expenses then due or budgeted to become due during such month, the Operator may request that the City advance the amount of such insufficiency from the approved budgeted subsidy scheduled to be paid in the succeeding month. This advanced amount will then be subtracted from the scheduled deposit for the succeeding °nth: Application to Emergency Needs.' If at any time or from time to time, by reason of any occurrence of an Emergency Expenditure, moneys on deposit in the Operating Fund are nsufficient to pay an Emergency Expenditure the Operator may request the City to provide monies to the Operator to make such Emergency Expenditure or, at the City's option, the City may elect to pay for the Emergency Expenditure directly from City moneys. If the Emergency Expenditure is in an amount which will require the City to seek either City Council or Board approval prior to the outlay of such expenditure, the City will take such action, and reimburse the Operator for such expenditure within five (5) days of receipt of formal approval. 5.2 Security for and Investment of Funds. All funds and accounts required to be maintained by the Operator under this Article 5 are and shall be the property of the City and shall be maintained in the Depository, which shall be a bank or branch located in Corpus Christi, Texas. The Operator shall require of the Depository that all funds held in any account maintained under this Article 5 be secured to such an extent and in such a manner as is required by applicable law in connection with the deposit of funds of the City. Money on deposit in the Operating Fund may be retained un- invested and on deposit in fully secured demand deposit accounts or may be invested in accordance with guidelines provided by the City from time to time. Page 17 of 49 SMG 1st Amended Agmt 10 -4 -12 CPY DFT 5.3 No Obligation of Operator to Advance Funds. The City is solely responsible for and shall promptly pay, or provide funds to the Operator to enable the Operator to pay, all Operating Expenses, Emergency Expenditures, and Capital Expenditures, and to otherwise to comply with its obligations under this Agreement. The Operator shall not be obligated to make any advance of its own funds to or for the account of the City or to pay any sums incurred for the performance of services or goods delivered to the Facilities. Nothing in this Section shall, however, limit, modify, or impair Operator's indemnification obligations hereunder or Operator's liability to the City for Operator's breach of this Agreement. 5.4 Capital Contribution. SMG shall Facilitiespay to the City, no later than December 31, 2012, the sum of Two Hundred Fifty Thousand Dollars ($250,000`.00) ( "SMG Capital Contribution ") for Capital Improvements and Capital Equipment purchases, which may be used at the City's discretion for improvements to the Facilities, including for cosmetic improvements to the exterior of the Facilities. If the City terminates the Agreement early, the City would owe SMG $50,000 for each of the unrealized years of the Agreement. Without affecting the foregoing, the parties understand and agree, however, that SMG's Capital Contribution of $250,000.00 is not a loan to the City, and the terms of this Agreement shall not be interpreted to construe or treat the Capital Contribution as a loan to the City to be repaid to SMG by the City. The payment of any such unamortized amounts shall be made to SMG no later than thirty (30) days following the effective date of such expiration or termination. ARTICLE 6 POWER AND FUNCTIONS 6.1 Authority of Operator. The Operator shall have the right and authority to exercise all rights, powers and duties conferred or imposed on the Operator in this Agreement. 61 No Sale of Property. Although the Operator shall have authority to sell or otherwise dispose of all movable property that is surplus to the needs of the Facilities (so long as the same is accomplished in accordance with procedures established by the City of which Operator has been advised in writing and that apply generally to the sale of property by the City), the Operator shall otherwise have no authority to sell or otherwise alienate any portion of the Facilities or any equipment therein. All proceeds from the sale of property shall be deposited into the Operating Revenue Account. 6.3 No Capital Improvements. The Operator shall have no authority to make any alterations or any capital improvements to the Facilities without the prior written consent of the City (capital improvements reflected in an Approved Budget shall be deemed approved by the City). 6.4 Contracts. The Operator shall have no authority, without the prior written consent of the City, to enter into any contract for the provision of goods and services to the Facilities at any time beyond the date for the expiration of the term of this Agreement, including the City's unilateral early termination rights under Section 10.4 hereof. Operator shall have the right to enter into, execute, and deliver contracts with users of the Facilities which extend beyond or relate to dates falling after the expiration of the term of this Agreement, subject to the written approval thereof by the City. The Operator's authority with regard to contracts with Major Users shall, however, be as set forth in Section 6.13 below. All contracts entered into by Operator requiring the consent of the City under this Agreement shall contain an express Page 18 of 49 SMG 1st Amended Agmt 10 -4 -12 CPY DFT provision acknowledging that the same is subject to the City's approval. All contracts entered into by Operator shall provide that the same are assignable to the City and, notwithstanding any contrary provision hereof, upon termination or expiration of this Agreement for any reason, Operator shall assign to the City and the City shall assume in writing, all then outstanding contracts affecting the Facilities entered into by Operator in accordance with the authority granted Operator hereunder; provided, however, the City shall not be obligated to assume any contracts or agreements entered into by Operator in violation of this Agreement. Furthermore, notwithstanding the foregoing, the City shall not assume and shall not have responsibility for any acts or omissions of Operator with regard to such contracts or agreements prior to the termination of this Agreement except as a consequence to the City's failure to provide funds under this Agreement. 6.5 Rights Retained by the City. City retains the following rights which must be cited in Operator's new Food & Beverage Contract with the Concessionaire: • • • • • Final approval of menu items, portions and pricing, that is competitive in the marketplace. Require Operator and Concessionaire to manage Foodservices in a First Class manner in terms of service levels as well as the quality and variety of the offerings. Require Operator and Concessionaire to comply with all governmental rules and regulations, including City recycling and sustainability issues, as well as City approved MBEANBE/DBE directives and goals. Require Operator to ensure that all of their employees and employees of any of their agents or subcontractors such as the Concessionaire, represent the City in a respectful and First Class manner. To establish minimum acceptable insurance levels that Operator and all of the subcontractors, including the Concessionaire must carry, naming the City as an additional insured and indemnifying the City from Operator, its contractors' or subcontractors' actions nactions. 6.6 Execution of Contracts. Subject to the paragraph above, and under terms consistent with terms of this Agreement, Operator shall enter into service contracts, Foodservice Agreements and other contracts related to the Facilities, on behalf of the City, acting as independent contractor. Any material agreements relating to the Facilities shall contain the standard indemnification and insurance obligations on the part of each vendor, licensee, or service provider. Additionally, with respect to any contract relating to the Facilities for which the City's approval is required hereunder (i.e., the Food & Beverage Contract, contracts with any Major User, and any contract described in the last sentence of this section), the City will determine with its bond counsel if any such contract needs to be compliant with Revenue Procedure 97 -13 and will so advise Operator of such requirement in connection with its response to such approval request. Operator shall also obtain the prior approval of the City (which approval shall not be unreasonably withheld or delayed) before entering into any such contract with a term that expires after the Term of this Agreement, unless such contract, by its express terms, can be terminated by Operator or City following expiration of the Term without any penalty. 6.7 Transactions with Affiliates. As provided in this Article 6, Operator shall not enter into Foodservice contracts with Affiliates. Subject to this Article 6, transactions with Affiliates in connection with its obligations hereunder relating to the purchase or procurement of services (other than Foodservices) for the Facilities (including ticketing services, Commercial Rights sales, web design services and graphic Page 19 of 49 SMG 1st Amended Agmt 10 -4 -12 CPY DFT design services), Operator may purchase or procure such services, or otherwise transact business with, an Affiliate of Operator, provided that the prices charged and services rendered by such Affiliate are competitive with those obtainable from any unrelated parties rendering comparable services. Operator shall, at the request of the City, provide reasonable evidence establishing the competitive nature of such prices and services. Without limiting the foregoing but subject to the terms under this Agreement, the parties specifically agree that Operator may engage its Affiliate(s) to provide ticketing services for the Facilities, to provide Commercial Rights marketing services for the Facilities, on terms to be approved by the City, such approval not to be unreasonably withheld. Prior to Operator engaging any other of its Affiliates, Operator shall notify the City, and the City may require Operator to obtain at least two other competitive bids from unrelated parties to ensure that such services are being provided on competitive terms. 6.8 Employees. (i) All employees needed to operate and manage the Facilities shall be hired by Operator. Employees hired by the Operator shall be employees of the Operator and not of the City, although the employment costs of such employees (including, without limitation, wages, salary, benefits, and the costs of complying with local, state, and federal employment laws) shall be part of the Reimbursable Expenses. The Operator shall have complete and absolute discretion and authority with respect to the number, functions, qualifications, compensation and other teens and conditions relating to its employees. (ii) City shall have the right (but not the obligation) of reasonable approval of the individuals (and their successors) proposed by the Operator for the following Facilities positions: General Manager, assistant general manager director of sales and marketing, controller, director of operations, human resources director and chief engineer. The Operator will not, in any year, re- assign more than two of such personnel to other properties owned, managed, or operated by Operator without the prior consent of City. (iii) The City covenants and agrees that neither it nor its Contract Administrator shall during the term hereof or for a period of 18 months following termination of this Agreement hire, employ, solicit for hire, or engage in any manner or for any purpose of any person who has served as General Manager or Contract Administrator during the term of this Agreement or any other of Operator's "senior personnel." "Senior personnel" means and refer to the personnel of Operator who report directly to the General Manager, but shall not include the chief engineer. (iv)Attached hereto as Schedule 6.10 is a chart reflecting the positions of the key personnel of Operator described in Section 6.10(ii) above. 6.9 Purchase of Supplies and Services. The Operator shall have full authority and discretion as to the purchase of all equipment, materials, supplies and inventories reasonably required by it but shall endeavor to make all such purchases at the best price available as known to the Operator, 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 the Operator. Operator shall, for the purchase of all equipment, materials, supplies, services, and inventories in excess of $10,000 for any single item or more than $50,000 in the aggregate in any one purchase order, utilize Page 20 of 49 SMG 1st Amended Agmt 10 -4 -12 CPY DFT a competitive bidding process similar to that used by the City in the purchase of its supplies and services common to the market in which Operator shall seek the same. Under such circumstances, Operator shall, to the extent practicable and feasible, solicit three (3) competitive bids. Notwithstanding such procedures, Operator shall not be obligated to accept the lowest bid but shall be entitled to take into account, in the award of any such contract, the quality of the service or product and award the contract accordingly. The Operator 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 ensure compliance in this respect, Operator agrees to obtain at least two (2) other competitive bids from persons other than the Operator's Affiliates, whenever the Operator considers transacting business with an Affiliate for providing goods or services under this Agreement. All purchases by Operator of furniture, fixtures, and equipment and all capital improvements shall be made in the name of the City. Operator 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 Operator to verify Operator's compliance with the provisions of this section. 6.10 No Expenditures in Excess o.fBudget. The Operator shall not, without advance written authorization by the City, incur in any Fiscal Year obligations for Expenses at either the Facilities aggregating in excess of the amount of total Expenses set forth in the Approved Budget for the Facilities, as the case may be, except for (i) Emergency Expenditures, and (ii) expenses for services provided to the Facilities by third parties the costs of which is not within the reasonable control of Operator such as, by way of illustration but not limitation, costs of utilities, costs of insurance and necessary and reasonable expenses which vary with increases in. revenue generation and usage. Operator shall have the right, however, to expend `savings achieved in any line item of the Approved Budget (but not more than an amount not less than 10 °10 and not more than 15% of such line item, the percentage, within such range, is to be agreed upon between the City and the Operator) to offset any overruns in other line items of the same Approved Budget. If Operator incurs any expense not provided for in the Approved Budget, excluding Emergency Expenditures and those expenses not within the reasonable control of Operator as aforesaid, and the same is not approved by the City, Operator shall be responsible for such excess expenditure from Operator's own funds. With respect to Emergency Expenditures, Operator shall have the right to make the same, up to an amount agreed upon by the parties (but in no event less than $15,000 nor more than $50,000) per item, without prior approval from the City. If any Emergency Expenditure will exceed the agreed upon maximum, Operator shall submit the same to the City for the City's prior written approval. The City agrees to respond to any request of Operator for an Emergency Expenditure within 24 hours from the receipt of the request therefor, or within such lesser time as is appropriate under the circumstances. For those expenditures in Excess of Budget that have been approved by the City, if those amounts will cause the Operator to exceed the total Approved Budget amount for the year, then the Operator shall present a proposed budget amendment to the City for consideration and further approval by City Council prior to the end of the Fiscal Year. 6.11 Major Users. Operator shall negotiate contracts with Major Users. Operator shall Page 21 of 49 SMG 1st Amended Agmt 10 -4 -12 CPY DFT submit any such contract, after negotiation thereof, to the City for the City's approval or disapproval of the same. The City agrees to respond to such request within ten (10) business days following receipt of such request, failing which the City shall be deemed to have disapproved the same. The City shall have the right to participate in all negotiations with Major Users including, without limitation, attending all meetings and participating in all other negotiations. To that end, Operator shall provide the City's Contract Administrator reasonable advance notice of the time and date of any such negotiations. 6.12 Settlement of Claims. Operator has been advised by the City (and the City shall continue to keep Operator apprised of) the City's procedures and requirements with respect to settlement of third party claims filed against Operator (to the extent related to the Facilities), the City, or with respect to the Facilities. Operator agrees to comply with such settlement claims and procedures as it has been advised in writing by the City. All costs and expenses thereof, including the settlement thereof, penalties, and interest thereon, shall be deemed an Operating Expense in accordance with the terms and provisions of this Agreement unless the cause therefor is Operator's (or its employees) negligence or willful misconduct or is the result of Operator's breach of this Agreement, in which event Operator shall bear all such costs, penalties and settlement. 6.13 Bond Financing. Operator acknowledges that the Facilities is to be financed in large P with the proceeds of one or more series of City bonds ("Bonds") the interest on which is intended to be excluded from gross income for federal income tax purposes. In order to assist the City in preserving the tax- exempt nature of the Bonds (the City hereby agreeing that Operator shall have no responsibility to the City or any other party if the tax treatment of the Bonds should be different than that intended by the City), Operator acknowledges and agrees as follows: (a) In determining whether to grant or withhold any approval of a contract for which approval of the City isrequired under this Agreement, the City may consider the effect of such contract for federal tax purposes on the exclusion of interest on the Bonds for federal income purposes. (b) Each of the following described contracts must be approved by bond counsel to the City before execution thereof by Operator: (i) Any contract relating to the Facilities which grants a leasehold interest, term for years, or other real estate interest in the Facilities (other than a revocable license), or grants a long term right to use the Facilities on a basis different from that of the general public. (ii) Any contract for the provision of services related to the Facilities must, to the extent applicable, comply with the provisions of Revenue Procedure 97 -13 and the interpretations thereof. (iii) Any contract for the use of the Facilities for shows, programs, conventions and other events unless such contracts provide for use on a fixed fee basis (excluding the sale of merchandise or concessions in respect thereto which may be on a percentage of merchandise or concession revenues), determined on an event by Page 22 of 49 SMG 1st Amended Agmt 10 -4 -12 CPY DFT event basis and where the right of the user to the Facilities are those of a transient occupant rather than full legal possessory interest in the Facilities as a lessee. (c) Any approval of a contract by the City required under this Section shall be given within ten (10) business days following receipt by the City of a request for approval, failing which the City shall be deemed to have disapproved the same. (d) If required by bond counsel to the City or counsel to the underwriters, Operator agrees to make modifications to this Agreement so that the same is, in the opinion of such counsel, a qualified management contract for purposes of Revenue Procedure 97 -13 promulgated by the Internal Revenue Service. In the event such modifications shall materially increase Operator's obligations hereunder or materially decrease Operator's rights hereunder, then Operator shall have the right to terminate this Agreement upon not less than ninety (90) days prior written notice to the City which notice must be provided to the City within ten (10) business days after Operator is requested by the City in writing to enter into an amendment or modification hereof pursuant to this paragraph. If Operator timely exercises its right of termination under this paragraph, Operator shall continue to perform its obligations hereunder through the date of termination and the City shall continue to pay Operator therefor in accordance with this Agreement, upon termination, neither party shall have any obligations accruing thereafter hereunder. ARTICLE 6B FOOD AND BEVERAGE SERVICES 6B.1 Foodservices Operation and Management. Operator shall operate themselves or shall contract with Concessionaires other than Operator to operate and provide the Foodservices and oversee the provision of those services by such Concessionaires, if any. Any agreement with a Concessionaire other than Operator must comply with the provisions of Revenue Procedure 97 -13 and the interpretations thereof. 6B.2 Operator, upon request, shall provide the City a copy of all agreements, if any, entered into between Operator and Concessionaires other than Operator, and each of these agreements shall provide that in the event the City terminates this Agreement with Operator, the agreements between Operator and Concessionaires other than Operator are likewise terminated or, at the City's request, assigned to a party designated by the City. The City may contact the Concessionaires other than Operator directly with respect to matters associated with the services subject to the agreement between Operator and said Concessionaire. 6B.3 Alcoholic Beverages. a. The sale of alcoholic beverages will be permitted and conducted in accordance with regulations established by the City and the Texas Alcoholic Beverage Code ( "Code ") and the Texas Alcoholic Beverage Commission's regulations under the Code, as such regulations may be amended from time to time. Page 23 of 49 SMG 1st Amended Agmt 10 -4 -12 CPY DFT b . Operator shall work expeditiously to apply for, obtain and maintain all appropriate licenses and permits under the TABC Regulations and any other applicable law in order to store, sell and serve alcoholic beverages at event at the Facilities. The costs of obtaining and maintaining such licenses and permits shall be a Direct Operating Expense. c. Alcoholic beverages may not be served at any Event; or (i) If the Licensee desires that no alcoholic beverages be served at the Event; (ii) If the General Manager determines that it is not appropriate for alcoholic beverages to be served at a particular Event; or (iii) if any service of alcoholic beverages at the Event would result in violation of any law or regulation. d. All employees of Operator or a Concessionaire other than Operator who are involved in the serving of alcoholic beverages must be certified through a TAM or ABC - approved program. 6B.4 Catering. Operator is granted the Exclusive Right to provide Catering services at the Facilities; however, Catering services provided for Events held at the Facilities may be provided by any reputable Outside Caterer, provided that the Licensee has requested the Outside Caterer's services and that the Outside Caterer enters into an Outside Catering Agreement. Operator agrees to facilitate the use of the Facilities with any Outside Caterer and to require Outside Caterer to provide proof of any and all licenses, permits and insurance required for Outside Catering services. 6B.5 Duties of Operator. e. Operator shall conduct the Foodservices so that all persons at the Facilities shall have a reasonable opportunity to purchase the Food Products sold at all Events held at the Facilities. It is understood and agreed by the Parties that it is not always feasible to operate all of the Concession facilities for each and every Event held at the Facilities, and Operator shall have the right not to operate one or more of the Concession facilities at any Event held at the Facilities, as Operator reasonably determines to be appropriate for the efficient and cost - effective performance of Foodservices hereunder. Concessions shall be open and operational for every Event at the Facilities unless otherwise agreed by the Parties. f. Operator shall use its reasonable best efforts to operate the Concessions services so that all customers at the Facilities shall be promptly and satisfactorily served the Food Products sold by way of Concessions. All Food Products sold by Operator in providing the Foodservices shall be of the highest standard of quality and purity, and shall be appropriately prepared and appropriately served. All Food Products and Foodservices shall conform to all requirements of applicable federal, state, county, and municipal laws and ordinances. g. Unless otherwise agreed between the parties, Operator, as a Direct Operating Cost, shall procure and maintain during the Term of this Agreement all appropriate licenses and Page 24 of 49 SMG 1st Amended Agmt 10 -4 -12 CPY DFT permits which may be required for the operation of the Foodservices; provided, however, that the City shall provide Operator with the assistance as it shall reasonably request in connection with any application by Operator for any license or permit, or the renewal thereof. h. Operator shall not take, and shall use its reasonable best efforts not to permit any other person, firm or entity to take any action that is inconsistent with, or would constitute a violation of, any of the terms and conditions of Operator's on -site liquor license for the Facilities, or any other license or permit obtained by Operator in connection with the operation of the Concessions hereunder. i. Operator shall pay and discharge when due all sales use, excise and other taxes imposed on Operator's sales of all Food Products and Foodservices at the Facilities. Operator, as a Direct Operating Cost shall hire all employees reasonably necessary tol conduct the Foodservices. On being hired the employees shall be subject to any and all legal requirements in connection with the employment by Operator. All persons hired by Operator shall be employees of Operator and not employees of the City. Operator shall comply with all applicable federal state county and municipal laws'and ordinances pertaining to wages and hours of employment for all its employees at the Facilities. Operator shall snot discriminate against any employee or applicant for employment becauseof race creed sex color national origin age, or disability in violation of any applicable federal, state county, or municipal law or ordinance; provided however that the City hereby acknowledges 4and agrees that a successful claim by any employee or applicant under any law or ordinance specified in this Article shall not be considered a breach car default by Operator under this Agreement. k. Operator, as a Direct Operating Cost, shall at all times maintain the Foodservice Premises in a neat, clean and sanitary condition. Employees of Operator shall deposit trash and garbage resulting from :the Foodservices into suitable containers provided by Operator for waste removal, !Operator shall make all arrangements for the collection of waste products from the Facilities. 1. Operator, as a Direct Operating Cost, shall be responsible for repairing and maintaining all Foodservice equipment, including cleaning supplies, used in the operation of the Foodservices as well as interior areas the Foodservice Premises. Operator, as a Direct Operating Cost, shall provide all uniforms for its employees. m. Operator, as a Direct Operating Cost, shall provide sufficient managerial and customer service personnel to provide first class Foodservices at the Facilities. n. Operator shall keep all records relating to the Foodservices on file for a period of two (2) years following the end of the Fiscal Year to which they apply, including the last Fiscal Year of the Term. Operator shall maintain suitable books of account, showing Gross Receipts, Direct Operating Costs, with respect to Foodservices at the Facilities, and the books shall be available for inspection by the City during regular business hours, upon reasonable advance notice to Operator. The City shall make reasonable efforts to ensure that the inspection shall not interfere with Operator's operation of the Food Services. Page 25 of 49 SMG 1st Amended Agmt 10 -4 -12 CPY DFT o. Operator agrees that its employees and agents will comply with and observe all rules concerning conduct of its employees at the Facilities which the City may from time to time impose on SMG's employees and agents at the Facilities, subject to restrictions imposed on Operator by any federal, state or local statute, law, code or regulation, or by any collective bargaining agreement or other contract affecting the employee or agent. p. At all times during the Term of this Agreement, Operator shall maintain its practices of employment and services to the patrons of the Facilities in full compliance with all applicable federal, state and local laws, regulations and governmental orders. q. Subject to the limitations on Operator's authority under this Agreement, and subject to the limits of any Approved Budget, Operator shall exercise its diligent, good faith efforts in managing and operating the Foodservices at. the Facilities so as to minimize Direct Operating Costs and to maximize Gross Receipts, while maintaining a level of service that is satisfactory to the City. r. As a Direct Operating Cost, Operator will advertise, promote activities, market, and conduct public relations for the Foodservices. Operator covenants and agrees, subject to the reasonable consent of the City, to develop all intellectual property rights required for the advertisement, promotional activities, marketing, and public relations for the Foodservices, the cost of all of which shall be a Direct Operating Cost. s. Subject to the limitations set forth in this Agreement, Operator shall do the following (or cause the following to be performed) throughout the Term: (i) Manage and operate the Foodservices at the Facilities in a manner that will promote and further the purposes for which the Facilities exists, as set forth in the Recitals to this Agreement; (ii) Negotiate, execute, and perform contracts, use agreements, licenses and other agreements for 'food and beverage services with persons who desire to schedule Events at the Facilities ("Licensees"), (iii) Negotiate contracts for and operate at and for the Facilities, concerning the sale of Food Products and Novelties, as allowed under this Agreement; (iv) Plan, coordinate, and administer the Foodservice operation at the Facilities and continue to identify, select, and train the Foodservice staff; (v) Retain legal counsel in connection with the discharge of its duties hereunder (to the extent, and no further, Operator considers it appropriate in its sole discretion) and cause the counsel to coordinate with legal counsel for the City where necessary or appropriate. Operator acknowledges that the legal department or outside legal counsel of the City shall at all times represent the respective interests of SMG and the City; Page 26 of 49 SMG 1st Amended Agmt 10 -4 -12 CPY DFT (vi) Coordinate the work of all parties performing work in connection with the Foodservices. This includes facilitating services provided by Outside Caterers and collecting the Catering fees from Outside Caterers. (vii) Monitor actual and projected Direct Operating Costs and advise the City if projected Direct Operating Costs exceed the amounts set forth in the Approved Budgets; (viii) Furnish all Foodservices, personnel, materials, tools, machinery, equipment and other items necessary to accomplish the foregoing requirements of this Agreement; (ix) Devise and implement procedures (including preventive and predictive maintenance procedures) reasonably designed to keep the Foodservice equipment at the Facilities in reasonably good order and condition, subject to ordinary wear and tear, and maintain the Foodservice Premises at the Facilities in the same order and condition; and (x) Not create, assume or suffer to exist any mortgage, pledge, lien, charge or security interest or other encumbrance of any nature whatsoever relating to this Agreement, or its right and obligations under this Agreement, except any pledge or other encumbrance of the Management Fees due Operator under this Agreement; and (xi) Promptly and fully discharge and pay all of its obligations under this Agreement at or before the time specified for performance or payment thereof, including without limitation, the payment of all Direct Operating Costs. Operator shall have the right to contest its obligations to make payments to third parties so long as (a) Operator does so in good faith, diligently and by appropriate proceedings, and (b) the contest does not subject the City to any potential civil or criminal liability or constitute a breach of any law, rule, code, or regulation applicable to the City. 6B.5 Compliance with the Law. Operator shall comply with all applicable laws, rules, regulations, ordinances relating to the use and operation of the F.00dservices and the employment of persons in providing the services. Operator shall perform its obligations hereunder in good faith. If compliance with applicable laws, rules, regulations, or ordinances with regard to the condition of the Facilities requires funds not provided for in an. Approved Budget and SMG refuses to consent to amendment of the Approved Budget providing for expenditure of funds necessary to cause the Facilities to comply with the applicable laws, rules, regulations, or ordinances, then Operator may terminate this Agreement on ninety (90) days' prior written notice to SMG (which notice shall describe with specificity the applicable laws, rules, regulations, or ordinances violated and the actions needed to remedy the violations) if (a) the failure to comply with the applicable laws, rules, regulations, o ordinances subjects Operator to potential civil or criminal liability, and (b) SMG fails, within the ninety (90) day period, to provide the funds necessary to correct the violation. 6B.6 Funding Limitations. The City recognizes and agrees that performance by Operator of its responsibilities under this Agreement is limited by the Approved Budgets and approved Emergency Expenditures. Page 27 of 49 SMG 1st Amended Agmt 10 -4 -12 CPY DFT ARTICLE 7 FEES AND EXPENSES 7.1 Facilities Base Management Fee. As base compensation to Operator for providing the services herein specified during the Term with regard to the Facilities, the City shall pay Operator during the Term, an annual fixed fee of One Hundred Twenty Five Thousand ($125,000) which amount shall be adjusted upward on the first day of each Fiscal Year, other than the Fiscal Year ending July 31, 2013, during the term hereof by the percentage change in the Consumer Price Index All Urban Consumers (CPI -U) for the Houston - Galveston- Brazoria, TX area — All Items, during the one year period immediately preceding such Fiscal Year, as published by the Bureau of Labor Statistics of the U. S. Department of Labor, or of any revised or successor index hereafter published by the Bureau of Labor Statistics or other City of the United States Government succeeding to its functions (as adjusted, the "Fixed Fee "). In consideration of its services with regard to the Facilities, the Operator will be paid a monthly management fee which shall be deemed earned as of the first day of each month of the term following the Effective Date but which shall be due and payable in arrears following receipt by the City of Operator's monthly report reflecting results from operations at the Facilities for the prior month, such payment to be made within the time periods prescribed by the Prompt Payment Act. The amount of monthly management fee is fixed and shall be 1112th of the Fixed Fee, 7.2 Facilities Incentive Fee. In addition to the Base Management Fee, Operator shall be entitled to an annual Incentive Fee with respect to each Fiscal Year during the Term if in any such Fiscal Year (i) the Net Operating Income is an improvement over the Net Operating Income/Loss Benchmark; and (ii) the food and beverage operating profit margin is 34.5° % or greater, and (iii) Operator meets mutually agreed upon Customer Satisfaction Goals (defined herein); and (iv) Operator meets mutually agreed upon Maintenance and Capital Goals (defined herein) The Net Operating Income/Loss Benchmark is equal to the average of the actual combined Net Operating Income for the rolling three (3) year period immediately preceding the current contract year. The Incentive Fee shall be equal to twenty -five percent (25 %) of the amount by which the Operating Revenues for such Fiscal Year exceed the Revenue Benchmark (which is the projected revenue in the Approved Budget for the Facilities); provided, however, that (i) the amount by which the Operating Revenues exceed the Revenue Benchmark shall be capped at the amount that is equal to the amount in which the actual Net Operating Income surpasses the Net Operating Income /Loss Benchmark for the current contract year; and (ii) in no event shall the annual Incentive Fee for any Fiscal Year under this Section 7.2(a) exceed 100% of the Base Management Fee payable pursuant to Section 7.1(a) for such Fiscal Year. In the event that the Net Operating Income in a Fiscal Year is not equal to or an improvement of the budgeted Net Operating Income for such Fiscal Year, Operator shall not be entitled to receive the Incentive Fee described in this Section 7.2(a). Additionally, but solely for purposes of calculating such Incentive Fee, Operating Revenues shall not include the revenues related to the sale of naming rights for the Facilities. The Incentive Fee shall be paid to Operator no later than thirty (30) days following the completion of the annual audit by the City. ARTICLE 8 INSURANCE 8.1 Insurance to be Maintained by the City. The City shall provide property insurance for the Facilities and for City -owned contents. Page 28 of 49 SMG 1st Amended Agmt 10 -4 -12 CPY DFT 8.2 Insurance to be Maintained by Operator. The Operator shall obtain and maintain (or cause to be obtained and maintained) in effect the following policies of insurance, the cost of which shall be a Reimbursable Expense: (a) Workers' Compensation. Such workers' compensation insurance coverage as may be required by law, including employer's liability coverage of at least $500,000 per person per occurrence and $500,000 per person per disease, and $500,000 aggregate disease, (b) Commercial General Liability. Commercial general liability and property damage insurance with a combined single limit of at least $5,000,000 per occurrence and $5,000,000 aggregate insuring against all liability of the Operator and its General Managers and/or Contract Administrators arising out of and in connection with the Operator's use or occupancy of the Facilities, and premises liability; (c) Liquor Liability. Contingent Liquor liability insurance with a combined single limit of $1,000,000 and $5,000,000 in the aggregate; (d) (e) Business Automobile Policy. At least $1,000,000 of coverage, including bodily injury and property damage, arising out of the operations, maintenance or use of owned and non -owned automobiles, hired, or other vehicles; Excess Liability Insurance. At least $9,000,000 of excess liability on a per occurrence basis and $9,000,000 aggregate basis; (f) Crime and Fidelity Coverage. At least $500,000 per occurrence of coverage for (i) employee dishonesty, (ii) forgery or alteration, (iii) theft, disappearance and destruction inside and outside the Facilities; and (iv) robbery and safe burglary inside and outside the Facilities; (g) Operator and any subcontractors are responsible for all damage to their own equipment or property. 8.3 Insurance Requirements. All insurance required under this Agreement shall be issued by insurance companies licensed to do business in the State of Texas with the financial rating of at least A- vii status as rated in the most recent edition of Best's Insurance Reports, shall be issued as a primary policy, shall contain an endorsement requiring sixty (30) days written notice from the insurance companies to the City and the Operator before cancellation, non - renewal, termination, or change in the coverage, scope or amount of any policy, and shall, in the case of the Commercial General Liability Insurance, name the City as an additional insured. 8.4 American Bank, N.A. Operator must name American Bank, N.A. (as naming rights sponsor) as an additional insured on all insurance required hereunder, excluding any worker's compensation insurance coverage or crime and fidelity coverage. Page 29 of 49 SMG 1st Amended Agmt 10 -4 -12 CPY DFT 8.5 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. 8.6 Proceeds of Casualty Insurance. If either the Facilities 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 Operator 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 Operator 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 Facilities (whichever has been damaged), without penalty, premium or fee, by notice to Operator. If the City elects not to restore the Facilities (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 Operator whereupon Operator 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, payments of the base management fee attributable to the Facilities, as the case may be, shall be equitably reduced (taking into account the volume of services provided by Operator during reconstruction) until the Facilities, as the case may be, is reopened to the public, however, the City shall continue to reimburse Operator for Reimbursable Expenses until the Facilities (whichever has been damaged) is re- opened to the public. 8.7 INDEMNIFICATION .AND HARMLESS. Operator, 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 Operator, 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 ofa Operator or its agents, contractors or employees; (ii) any breach or default by Operator 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 the Operator; 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 Operator) retained by the City in connection with capital improvements or capital equipment purchases at the Facilities, (C) arise from the fact that a.t any time prior to, as of, or after the commencement of the term hereof the Facilities and its premises are not or have not been, in compliance Page 30 of 49 SMG 1st Amended Agmt 10 -4 -12 CPY DFT 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 Operator as authorized herein unless Operator's acts or omissions in administration thereof are the basis for such liability, as determined by a court of competent jurisdiction, or (E) arise from any act or omission carried out by Operator at or pursuant to the express direction or instruction of the City's Contract Administrator (but only if Operator advises the Ci)7's Contract Administrator in writing, promptly following such direction, that Operator believes such direction to be imprudent). City agrees to promptly notify Operator of any Claim received by the City. This indemnify specifically includes any Claims brought by Operator's officers, agents, contractors, or direct employees. This indemnity specifically includes any Claims brought relating to the sale or service of alcoholic beverages. This indemnity shall continue notwithstanding the termination of this Agreement with respect to any act or occurrence preceding the termination. ARTICLE 9 EQUAL EMPLOYMENT OPPORTUNITY 9.1 Discrimination Prohibited.! Neither the Operator, nor any Affiliate of the Operator performing services under this Agreement, shall knowingly discriminate against any employee or applicant for employment because of age, race, creed, sex, color, disability, or national origin, and the Operator and its Affiliates shall take affirmative action to ensure that any employee or applicant for employment is afforded equal employment opportunities without discrimination because of age, race, creed, sex, color or national origin. Such action shall be taken with reference, but not be limited to, recruitment, employment, job assignment, promotion, upgrading, demotion, transfer, layoff or termination, rates of pay or other forms of compensation in selection for training or retraining including apprenticeship and on the job training. Subject to compliance with such obligations, the Operator shall have plenary power with respect to the hiring and discharge of its employees. 9.2 MWDBE. The Operator and its subcontractors shall comply with applicable City minority, women and disadvantaged business enterprise policies in performing Operator's services hereunder, which policy consists of an obligation on the part of Operator to use its commercially reasonable efforts to achieve a level of at least twenty -five percent (25 %) minority participation in Operator's employment practices and in respect to contractual relations for the provision of goods and services for the Facilities designated by the City. ARTICLE 10 CERTAIN MATTERS REGARDING TERMINATION 10.1 Surrender of Improvements. Upon expiration or sooner termination of this Agreement, Operator shall promptly surrender the Facilities to the City, leaving to the City all equipment, supplies, manuals, books, records, and, inventories that are the property of the City or that have been purchased from Operating Revenues or from funds made available by the City, and Operator hereby quitclaims, transfers, sells, assigns, and conveys to the City, without recourse, representation, or warranty, all right, title, and interest that Operator may have to all improvements made to the Facilities and all equipment, materials, supplies, inventories and all other property so purchased. All such items including equipment shall be returned in Page 31 of 49 SMG 1st Amended Agmt 10 -4 -12 CPY DFT their original condition less only normal wear and tear. Operator agrees to execute any and all documents necessary to evidence such transfer promptly upon request therefore by the City. Operator shall also deliver all documents, records, and other work product generated by Operator for the City during the term of this Agreement. 10.2 Continuation of Performance. In the event of termination of this Agreement, Operator, at the City's option, shall continue to perform under the provisions of this Agreement for a reasonable time as determined by the parties to enable the City to make arrangements for a successor as operator of the Facilities; provided, however, that Operator shall not be required to perform for a period of time during which the Operator's actual Expenses and the management fees payable under this Agreement are not promptly and timely funded and paid by the City and in no event for more, than six (6) months following such termination. 10.3 Termination by the City for Lack of Funding. Should the City elect to terminate funding for the operation and maintenance of the Facilities, the City shall have the right to terminate this Agreement with regard to the Facilities, upon written notice to Operator, such termination to be effective on the ninetieth (90th) day after such election to terminate. In such event, the City shall pay to Operator all fees and other sums due to Operator hereunder through and including the date of termination with respect to the Facilities; otherwise, such termination by the City shall be without penalty or liability. In the event in lieu of termination of all funding for operation and maintenance of the Arena or Convention Center the City's annual budget or other budget process results in a reduction of the funds available to be paid to Operator hereunder, Operator shall have the right to either accept such reduced funding or, at Operator's election, to terminate this Agreement as to the affected Facilities by written notice to the City given within sixty (60) days following Operator's receipt of notice of the reduction in funding. Should funding be restored by the City for operation and maintenance of the Facilities, after this Agreement has been terminated due to termination or reduction in funding the City shall provide written notice thereof to Operator whereupon Operator shall have the first right to enter into a new contract on the same terms and conditions set forth herein. In the event Operator elects to exercise such right and option, Operator and the City shall promptly thereafter execute and enter into an amendment to this Agreement as to the Facilities, reinstating the same to its original terms and conditions. 10.4 Termination at Will. The City may, effective the last day of the third year and anytime thereafter, terminate this Agreement with or without cause upon providing ninety (90) days prior written notice to that effect to Operator, such termination to be without the payment of any penalty, fee or premium. In the event of termination, however, the City shall pay Operator any base management fees accrued but unpaid as of the date of termination and any earned but unpaid portion of the incentive fees described in Section 7.3 above. 10.5 Termination by the City: The parties have agreed that a material condition to SMG's engagement under this agreement is the improved financial performance of the American Bank Center. As such, SMG's incentive compensation is based on SMG surpassing the Net Income /Loss Benchmark for each contract year. In addition, notwithstanding anything to the contrary contained in this Agreement, if SMG's performance under this Agreement results in the increase of Actual Operating Expenses over the Budgeted Operating Expenses (i) in any Page 32 of 49 SMG 1st Amended Agmt 10 -4 -12 CPY DFT Contract Year, then within fifteen (15) days of SMG's submission of the Annual Report, SMG shall provide to the City an explanation of the reasons for such failure and a plan to address such failure for the next Contract Year (but in no event shall such explanation and plan be delivered later than seventy -five (75) days following the end of such Contract Year); and (ii) in any two (2) consecutive years, then the City shall have the right to terminate this Agreement upon ninety (90) days written notice to SMG. However, if Actual Operating Expenses have increased over the approved budgeted expenses and there are corresponding revenues to offset such increase then it will not trigger this provision. (i) ARTICLE 11 BREACH 11.1 Breach. Each of the following shall constitute a breach under this Agreement: Failure to pay when due any amount required to be paid under this Agreement, if the failure continues for, in respect to any regularly scheduled payment due hereunder, ten (10) days after notice has been given to the breaching party, or in respect to any payment due hereunder which is not a regularly scheduled payment, thirty (30) days after notice has been given to the breaching per; Failure to perform any other obligation under this Agreement (including Operator's failure to meet the standards of performance hereunder), if the failure to perform is not cured within thirty (30) days after notice ' has been given to the breaching party, except that if the breach cannot reasonably be cured within thirty days, a breach shall not be deemed to have occurred if the breaching party begins to cure the breach within the thirty (30) day period and diligently and in good faith continues to pursue the cure of the breach and actually cures the same within sixty (60) days following such notice. Interest on Delinquent Payments. Interest shall accrue on any sums not paid when due in accordance with the Prompt Payment Act. Non- Curable Material Breach by Operator. Each of the following shall constitute a non- curable breach of Operator under this Agreement: Any representation or warranty of Operator contained herein which shall be knowingly false or misleading in any material respect as of the date made or deemed to have been made; or The Operator shall (A) admit in writing its inability to pay its debts as they become due or (B) file a petition in bankruptcy or for the reorganization or for the adoption of an arrangement under the Bankruptcy Code as now or in the future amended, or file a pleading asking for such relief, or have or suffer to be filed an involuntary petition in bankruptcy against it which is not contested and discharged within sixty (60) days, or (C) make an assignment for the benefit of creditors, or (D) consent to an appointment of a trustee or receiver for all or a major portion of its property, or (E) be finally adjudicated a bankrupt or insolvent under any federal or state law, or (F) suffer the entry of a court order, any federal or state law appointing a receiver or trustee for all or a major part of its property or ordering the winding up or liquidation of its affairs, or approving a Page 33 of 49 SMG 1st Amended Agmt 10 -4 -12 CPY DFT petition filed against it under the Bankruptcy Code, as now or in the future amended, which order, if not consented to by it shall not be vacated, denied, set aside or stayed within sixty (60) days after the date of its entry, or (G) suffer the entry of a final judgment for the payment of money and the same shall not be discharged or a provision made for its discharge within thirty (30) days from the date of entry thereof or an appeal or other appropriate proceeding for review thereof shall not be taken within said period and a stay of execution pending such appeal shall not be obtained, or (H) suffer a writ or warrant of attachment or any similar process to be issued by any court against all or any substantial portion of its property and such writ or warrant of attachment or similar process is not stayed or is not released within forty -five (45) days after its entry or levy or after any stay is vacated or set aside, or (I) suffer the placing of a judgment lien on its property and failure to cause such lien to be released and discharged within forty -five (45) days from the date such lien took effect; or Operator shall conceal, remove or permit to be concealed or removed, any part of its property with the intent to hinder, delay or defraud its creditors or shall make any transfer of any of its property to, or for the benefit of a creditor at a time when other creditors similarly situated have not been paid, or suffer or permit while insolvent any creditor to obtain a lien upon its property through legal proceedings, which lien is not vacated within thirty (30) days from the date thereof, or (viii) Operator breaches the provisions of Section 6.10 (ii) above or the provisions of Article 14 below. 11.2 Breach Notices. Each party shall promptly notify the other of any acts or omissions believed to be a breach by the other under this Agreement. In order to be effective for purposes of Section 11.1 or 11.2, a notice of a breach must be timely given, must state that it is a notice of breach and must specify in reasonable detail the acts or omissions alleged to constitute a breach of this Agreement. 11.3 Rights of Non - Breaching Party. If a breach occurs and is not waived in writing by the non - breaching party, then the non-breaching party shall have the following remedies which are not exclusive but cumulative in addition to any other remedies now or later allowed by law: The right to cure, at the breaching party's cost and expense, any breach; The right; to sue to collect any sums not paid when due, together with interest accrued thereon as provided in Section 11.2; The right to sue to collect damages suffered by the non breaching party by reason of the occurrence of a willful breach other than breach in the payment of money; The right to terminate this Agreement; or The right to seek specific performance of the breached obligation. ARTICLE 12 MISCELLANEOUS SMG 1st Amended Agmt 10 -4 -12 CPY DFT Page 34 of 49 12.1 Notices. Unless expressly otherwise provided elsewhere in this Agreement, any election, notice or other communication required or permitted to be given under this Agreement shall be in writing and deemed to have been duly given if and when delivered personally (with receipt acknowledged) or otherwise actually received by the intended recipient, or three (3) days after mailing the same (by certified mail, return receipt requested) with proper postage prepaid, or when sent by a national commercial courier service (such as Federal Express or DHL Worldwide Express) for expedited delivery, to be confirmed in writing by such courier, or when telecopied, telegraphed or telexed to a party, at such party's address set forth below or at such other address as a party may designate by notice given to the other in accordance with the foregoing. To the City: Mr. Ronald L. Olson City Manager City of Corpus Christi 1201 Leopard P.O. Box 9277 Corpus Christi, Texas 78469 -9277 Phone: 361 -880 -3220 Fax: 361- 880 - 3839 With copy to: Mr. Armando Chapa, City Secretary City of Corpus Christi 1201 Leopard P.O. Box 9277 Corpus Christi, Texas 78469 -9277 Telephone: 361- 880 -3105 Fax: 361-880-3113 If to Operator: Mr. Carlos Valdez City Attorney 1201 Leopard P.O. Box 9277 Corpus Christi, Texas 78469 -9277 Telephone: 361- 880 -3361 Fax: 361- 880 -3239 Mr. Wes Westley SMG 300 Four Falls Corporate Center 300 Conshohocken State Road West Conshohocken, Pennsylvania 19428 Telephone: 610 - 729 -7900 Fax: 610 - 729 -1590 Page 35 of 49 SMG 1st Amended Agmt 10 -4 -12 CPY DFT with copy to: Mr. Steven A. Scolari, Esq. Stradley, Ronon, Stevens & Young, LLP 30 Valley Stream Parkway Malvern, PA 19355 -1481 Telephone: 610- 640 -8005 Fax: 610 - 640 -1965 Notice shall, in all events, be effective upon receipt by the addressee except that notice by facsimile electronic transmission shall, if received after 5:00 p.m. or any day which is not a business day, be deemed received on the next following business day. Notwithstanding the foregoing, for purposes of approval of Budgets and contracts requiting the approval of the City, the City shall be deemed to have received the same only upon the City's actual receipt thereof. 12.2 Amendments. This Agreement may be amended only in a written instrument signed by both parties. 12.3 Title and Captions. All articles or section titles or captions in this Agreement are for convenience of reference only. They should not be deemed to be part of this Agreement or to in any way define, limit, extend, or describe !the scope or intent of any provisions of this Agreement. Except as specifically otherwise provided, reference to "Articles," "Sections," and "Schedules" are to Articles and Sections of and Schedules to this Agreement. 12.4 Pronouns and Plurals. Whenever the context may require, any pronoun used in this Agreement shall include the corresponding masculine, feminine or neuter forms, and the singular form of nouns, pronouns an verbs shall include the plural and vice versa. 12.5 Right of Ingress and Egress. Operator acknowledges that the City shall have the right to enter the Facilities and grant to others the right of ingress and egress to and from the Facilities for the purpose of inspection thereof or the conduct of capital improvements and for other purposes. The City agrees to coordinate such entry with Operator so as to minimize interference with scheduled activities at the Facilities. 12.6 Intellectual Property Rights. (1) Pursuant to the terms of this Agreement, the Operator has agreed to advertise, promote activities, market and conduct public relations for the Facilities. Operator covenants and agrees, subject to the reasonable consent of the City, to develop all intellectual property rights required for the advertisement, promotional activities, marketing and public relations for the Facilities, the cost of all of which shall be an Expense. Any and all intellectual property rights including, without limitation, all names and logos for the Facilities, shall be the sole and exclusive property of the City, subject to paragraph (ii) below. Operator hereby conveys to the City, without recourse, representation or warranty, any right, title and interest that Operator may have in and to any such intellectual property rights, including, without limitation, all rights of common law, copyrights, rights of copyright renewal, trademarks and trademark rights, and Operator agrees to execute any documentation reasonably required by the City Page 36 of 49 SMG 1st Amended Agmt 10 -4 -12 CPY DFT to evidence such transfer. (ii) The City hereby grants to Operator a license during the term of this Agreement to use and to grant to others the right to use the intellectual property rights in connection with the advertising, promotional activities, marketing and public relations for the Facilities. 12.7 Severability. Each provision of this Agreement shall be considered to be severable and, if, for any reason, any such provision or any part thereof, is determined to be invalid and contrary to any existing or future applicable law, such invalidity shall not impair the operation of or affect those portions of this Agreement that are valid, but this Agreement shall be construed and enforced in all respects as if the invalid or unenforceable provision or part thereof had been omitted. 12.8 Successors. This Agreement shall be binding upon and insure to the benefit of the parties and their respective heirs, executors, successors, and assigns but this provision shall not be deemed to permit any assignment by a party of any of its rights or obligations under this Agreement except as expressly provided herein. 12.9 Assignment. Operator shall not voluntarily assign or encumber its ' interest in this Agreement without first obtaining the City's consent. Any assignment or encumbrance without the City's consent shall be voidable and, at the City's election within thirty (30) days of actual knowledge of an assignment or encumbrance, shall constitute a breach which shall be a breach unless the assignment or encumbrance is rescinded within thirty (30) days after the City has given the Operator notice of the City's election to treat the assignment or encumbrance as a breach. The Operator shall, however, have the right without the City's consent but upon prior notice to the City, to assign this Agreement (i) to any Affiliate of Operator if such Affiliate executes an agreement in form reasonably acceptable to the City assuming the Operator's obligations hereunder, whether arising prior to or after the date of such assignment; or (ii) to any entity with which' the Operator has merged or consolidated or to a purchaser of all or substantially all of the Operator's assets, if the assignee executes an in form reasonably acceptable to the City assuming the Operator's obligations hereunder, whether arising prior to or after the date of such assignment. No such assignment shall release or relieve Operator from any of the obligations of the Operator hereunder, whether arising prior to or after the date of such assignment. 12.10 Further Action. Each party , within ten (10) days after notice from the other party, shall execute and deliver to the party a certificate stating that this Agreement is unmodified and in full force and effect, or in full force and effect as modified, and stating the modifications, and the other party is not, to the best of the party's knowledge, in breach under this Agreement or stating the exact nature of any breach alleged to have occurred. 12.11 Gratuities. It shall be a breach of Operator's obligations hereunder to offer, give, or agree to give any employee or former employee of the City a gratuity or offer of employment in connection with any decision, approval, disapproval, recommendation, preparation of any part of any purchase request, influence in the consent of any specification or procurement standard, rendering of advice, investigation, auditing, or in any other advisory capacity in any proceeding or application, request for ruling, determination, claim or controversy or other particular matter, pertaining to or solicitation of any contract or proposal therefor by Operator from the City. Page 37 of 49 SMG 1st Amended Agmt 10 -4 -12 CPY DFT 12.12 No Solicitations. Operator shall not accept any solicitations, requests for services, contributions, gifts, favors, tickets, gratuities or other benefits from any party or any person on behalf of the City who seeks to do or is doing business with the Facilities. 12.13 Entire Agreement; Attorneys' Fees. This Agreement, including the attached exhibits, contains the entire agreement of the parties and supersedes all prior and contemporaneous agreements and understandings, oral or otherwise, among the parties with respect to the matters contained in this Agreement and may not be modified or amended except as set forth in this Agreement. The prevailing party in any litigation arising out of this Agreement or relating hereto shall be entitled to recover, in addition to any award made in such dispute, reasonable attorneys' fees and costs incurred by such party in preparing for and participating in such litigation. 12.14 Counterparts. This Agreement may be executed in one or more counterparts and each of such counterparts, for all purposes, shall be deemed to be an original, but all of such counterparts together shall constitute but one and the same instrument, binding upon the parties, notwithstanding that all of the parties may not have executed the same counterpart. 12.15 Applicable Law. This Agreement shall be governed by, and construed and enforced in accordance with, the laws of Texas. The district courts of Nueces County, Texas shall be the exclusive place of venue for any disputes arising under or with respect to this Agreement. 12.16 Limitation of Liability. Notwithstanding any contrary provision hereof, the City agrees that no partner, co- venturer, employer, agent, director, officer shareholder or Affiliate of the Operator shall be personally liable to the City or anyone claiming by, through or under the City, by reason of any default by the Operator under this Agreement, any obligation of Operator to the City, or for any amount that may become due to the City by the Operator under the terms of this Agreement or otherwise. 12.17 No Representation as to Operations Results. The City recognizes that Operating Revenues for the Facilities are incapable of being estimated with reasonable certainty given that the entertainment industry as a whole fluctuates based upon general economic conditions, current trends in entertainment, available income of patrons, competitive facilities, and a variety of rapidly changing factors beyond the control of Operator. Operator has made no and disclaims any purported or actual representation or warranty as to the results which can be expected from the ownership and operation of the Facilities including, without limitation, the Operating Revenues, or Operating Expenses or the accuracy of its projections and estimates thereof The City recognizes and accepts that all Budgets and projections represent Operator's estimate of the expected expenditures and revenues and that Operator is in no way responsible or liable if the actual expenditures and revenues are more or less than that projected (unless such situation is the results of a breach of this Agreement by Operator). 12.18 Force Majeure.Neither party shall be in default hereunder or liable to the other for failure to perform where such default or failure is the result of acts of God, war, or any other similar cause outside of the reasonable control of the party who asserts that default or failure to perform is excused under this Section; provided, that in no event shall the provisions of this Section extend to any default or failure to perform due to labor shortages or strikes or economic hardship. In the event of a delay in performance excused by the operation of this Section, such delay shall only be for the period which the party claiming the delay was actually Page 38 of 49 SMG 1st Amended Agmt 10 -4 -12 CPY DFT delayed in the performance of its obligation by the event outside of its reasonable control. ARTICLE 13 CONSULTING SERVICES 13.1 General Consulting Services. The City owns, in addition to the proposed Facilities, certain other public facilities. The Operator, for the consideration and other fees recited hereinabove, agrees to provide certain consulting services to the City with regard to such facilities upon request therefor by the City. ARTICLE 14 NON - COMPETITION During the term hereof, Operator agrees that it shall not, directly or indirectly, own, manage or provide consulting or other management, consulting, marketing or promotions services, whether as a principal, partner, joint venturer, officer, director, member, employee, consultant, agent, independent contractor, or stockholder of any company or business engaged in operating, managing, marketing, promoting or providing consulting services with respect to, public assembly or other arena -type Facilities located within a 100 -mile radius of the Facilities which competes with the Facilities. The foregoing restriction and covenant shall not, however, (x) apply to facilities which are within the restricted area which Operator is managing under a contract in effect as of the date hereof, such facilities being listed on Schedule 14 attached hereto and made part hereof for all purposes, or (y) be , deemed breached by Operator's participation as a promoter, sponsor, or co- promoter of event's at� any facilities if either (a) the same event has been scheduled to appear at the Facilities within 12 months of its occurrence at such other Facilities or (b) the same has not been scheduled to appear at the Facilities because the participants (i.e., the promoter of the event in question or the principal performer of the event in question) in such event refuse or decline to appear at the Facilities (upon request, Operator shall provide the City's Contract Administrator reasonable evidence thereof). In addition to its rights to terminate this Agreement should Operator breach the provisions of this Article 14, the City may collect from the Operator, as liquidated damages and not as a penalty (a) reimbursement of all actual costs incurred by the City to replace Operator's management team plus (b) all fees paid to Operator hereunder during the 12 -month period immediately preceding such termination. Operator hereby stipulates and agrees that the foregoing restrictions on Operator are reasonable in light of the services which Operator will render hereunder both in terms of geography and duration. Operator further agrees that the stipulated, liquidated damages set forth in the preceding paragraph hereof are reasonable due to the uncertainty to Owner of the amount of damages Owner will actually incur should Operator breach such provisions, Operator hereby stipulating and agreeing the Owner will actually incur damages in such event. The undersigned have executed this Agreement as of the date first set forth above. CITY OF CORPUS CHRISTI, TEXAS SMG, a Pennsylvania general partnership Page 39 of 49 SMG 1st Amended Agmt 10 -4 -12 CPY DFT By: Name. Title: Page 40 of 49 SMG 1st Amended Agmt 10 -4 -12 CPY DFT ice1 ▪ ZGERALD 0 g PALO ALTO 'O.VL1R STREET w 4 \ o 0 4 Q °ce w w_ H J_ U LJ- C9 H (1) w LL 0 a • w CD1- J_ U L.L rZ S T�� c7 N WATERGAROEN B 5 A MOEN AREA . 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Incentive Fee - Eligibility Criteria - Net Operating Income surpasses the Net Operating Income /Loss Benchmark - Food & Beverage operating profit margin be a minimum 34.5% - Meet mutually agreed upon Customer Satisfaction Goals - Meets mutually agreed upon Maintenance /Capital Goals