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Agenda Packet City Council - 10/16/2012
Corpus Christi Meeting Agenda - Final City Council 1201 Leopard St Corpus Christi, TX 78401 CCtexas.com Tuesday, October 16, 2012 12:00 PM Council Chambers Public Notice - - THE USE OF CELLULAR PHONES AND SOUND ACTIVATED PAGERS ARE PROHIBITED IN THE CITY COUNCIL CHAMBERS DURING MEETINGS OF THE CITY COUNCIL. Members of the audience will be provided an opportunity to address the Council at approximately 4:00 p.m., or the end of the Council Meeting, whichever is earlier. Please speak into the microphone located at the podium and state your name and address. Your presentation will be limited to three minutes. If you have a petition or other information pertaining to your subject, please present it to the City Secretary. Si Usted desea dirigirse al Concilio y cree que su ingles es limitado, habra un interprete ingles- espanol en todas las juntas del Concilio para ayudarle. Persons with disabilities who plan to attend this meeting and who may need auxiliary aids or services are requested to contact the City Secretary's office (at 361- 826 -3105) at least 48 hours in advance so that appropriate arrangements can be made. A. Mayor Joe Adame to call the meeting to order. B. Invocation to be given by Pastor Robert Perkins, Parkway Church of Christ. 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 -00729 Proclamation declaring October 18, 2012 as "International Credit Union Day" Proclamation declaring October 19 -21, 2012 as "52nd Annual Texas Jazz Festival" Proclamation declaring October 26, 2012 as "70th Anniversary Day of Celebration of the Family Counseling Service" F. MINUTES: (NONE) G. BOARDS & COMMITTEE APPOINTMENTS: (NONE) Corpus Christi Page 1 Printed on 10/15/2012 City Council Meeting Agenda - Final October 16, 2012 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 2 - 16) 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. 2 12 -00668 Professional services agreement for transporting liquid waste and sludge to wastewater treatment plant for disposal (Requires 2/3 vote) 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 hauling contract Bid Tabulation - Sludge Haulinq.xls Service Agreement - Sludge Hauling.pdf 3 12 -00671 Supply Agreement for material to be used for traffic sign manufacturing and installation program (Requires 2/3 vote) 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 Corpus Christi Page 2 Printed on 10/15/2012 City Council Meeting Agenda - Final October 16, 2012 Engineering in FY 2012 -2013. Allied Tube & Conduit Corp. Harvey, Illinois Group I $42,644.00 Vulcan Signs Foley, Alabama Groups II & III $103,588.89 Total: $146,232.89 Attachments: Agenda Memo - Traffic Sign Blanks.docx Bid Tabulation - Traffic Sign Blanks.xlsx 4 12 -00696 Purchase of furniture for offices at water treatment plant (Requires 2/3 vote) 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 5 12 -00679 Service Agreement for City departments to utilize dump truck hauling of miscellaneous materials to designated areas throughout the city (Requires 2/3 vote) 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. Attachments: Agenda Memo - Dump Truck Haulinq.docx Bid Tabulation - Dump Truck Haulinq.xlsx Service Agreement - Dump Truck Haulinq.pdf Certification Support 4010 -31520 100912 6 12 -00669 Purchase agreement for four (4) Ford F -150 Crew Cab 4 x 4 Pickup Trucks to be used for beach rescue operations (Requires 2/3 vote) Corpus Christi Page 3 Printed on 10/15/2012 City Council Meeting Agenda - Final October 16, 2012 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. 7 12 -00675 Payment authorization for Mary Rhodes Pipeline emergency repair (Requires 2/3 vote) 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 8 12 -00692 Lease Agreement with Boy Scout Troop sponsor for property located near McKenzie Rd. and Allison Drive (Requires 2/3 vote) 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. Attachments: Agenda memo - West CC Rotary lease for Boy Scouts Ordinance - West CC Rotary Lease Lease - West CC Rotary Sept2012 9 12 -00693 Authorization for application to State reimbursement program for beach maintenance expenditures (Requires 2/3 vote) 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 10 12 -00694 Amendment to interlocal agreement for latchkey program (Requires 2/3 vote) Corpus Christi Page 4 Printed on 10/15/2012 City Council Meeting Agenda - Final October 16, 2012 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 11 12 -00690 State Interlocal agreement for failure to appear at Municipal Court (Requires 2/3 vote) 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 12 12 -00697 Professional services contract for wastewater permitting process assistance (Requires 2/3 vote) 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 13 12 -00703 Ratification of change order for improvements at the airport (Requires 2/3 vote) 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 14 12 -00691 Resolution adopting the City of Corpus Christi's State legislative priorities for the 83rd Texas Legislature in 2013. Corpus Christi Page 5 Printed on 10/15/2012 City Council Meeting Agenda - Final October 16, 2012 Attachments: Agenda memo - Legislative priorities Resolution- State Legislative 2013 LEGISLATIVE PRIORITIES 15 12 -00706 Second Reading Ordinance - Appropriating funds for equipment, cadets, and trainee intern program (1st reading 10/9/12) (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 16 12 -00702 Second Reading Ordinance - Amending the Capital Improvement Budget transferring funds; rescinding /executing contract for North Beach archway (1st reading 10/9/12) (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 Protect Budget - North Beach Entry Development.xlsx Location Map - North Beach Entry Development.pdf Ordinance - North Beach Entry Development.docx J. EXECUTIVE SESSION: (ITEM 17) 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. 17 12 -00738 Executive Session pursuant to Section 551.072 to deliberate the purchase, exchange, lease, or value of real property where deliberation Corpus Christi Page 6 Printed on 10/15/2012 City Council Meeting Agenda - Final October 16, 2012 in an open meeting would have a detrimental effect on the position of the City of Corpus Christi in negotiations with a third person with possible discussion and action in open session. K. PUBLIC HEARINGS: (ITEMS 18 - 22) 18 12 -00677 Public Hearing and First Reading Ordinance - Change of zoning from the "RS -TF" Two - Family District to the "ON" Office District at 5446 Lipes Boulevard (Requires 2/3 vote) Case No. 0812 -03 Michael G. Winnie and Liza Winnie: A change of zoning from the "RS -TF" Two - Family District to the "ON" Office District, resulting in a change of future land use from medium density residential to professional office. The property to be rezoned is described as Corpus Christi Retirement Residence Addition, Block 1, Lot 2, located along the north side of Lipes Boulevard, approximately 800 feet west of South Staples Street (FM 2444). Planning Commission and Staff Recommendation (August 15, 2012): Approval of the change of zoning from the "RS -TF" Two - Family District to the "ON" Office District. Ordinance Ordinance amending the Unified Development Code ( "UDC ") upon application by Michael G. Winnie and Liza Winnie, acting on behalf of Grace Bible Church of Corpus Christi, Texas ( "Owner"), by changing the UDC Zoning Map in reference to Corpus Christi Retirement Residence Addition, Block 1, Lot 2, from the "RS -TF" Two - Family District to the "ON" Office District; amending the Comprehensive Plan to account for any deviations; providing a repealer clause; providing for penalties; and providing for publication. Attachments: Agenda memo - Public Hearing and First Reading - Zoning - Winnie (2) Aerial Overview Map (3) Report for CC w Attchmts Winnie (FINAL 8- 29 -12) (4) Ordinance wAttchmt, Winnie (ON) 19 12 -00678 Public Hearing and First Reading Ordinance - Change of zoning from the "RS -6" Single - Family 6 District to the "RM -1" Multifamily 1 District at 3226 Houston Street (Requires 2/3 vote) Case No. 0812 -05: Nueces County Community Action Agency: A change of zoning from the "RS -6" Single - Family 6 District to the "RM -1" Multifamily 1 District, resulting in a change of future land use from low density residential to medium density residential. The property to be rezoned is described as Laughlin Addition, Block 3, Lot 25 -A, located along the north side of Houston Street approximately 400 feet east of Corpus Christi Page 7 Printed on 10/15/2012 City Council Meeting Agenda - Final October 16, 2012 Kostoryz Road. Planning Commission & Staff Recommendation (August 15, 2012): Approval of the change of zoning from the "RS -6" Single - Family 6 District to the "RM -1" Multifamily 1 District. Ordinance Ordinance amending the Unified Development Code ( "UDC ") upon application by Nueces County Community Action Agency ( "Owner"), by changing the UDC Zoning Map in reference to Laughlin Addition, Block 3, Lot 25 -A, from the "RS -6" Single - Family 6 District to the "RM -1" Multifamily 1 District; amending the Comprehensive Plan to account for any deviations; providing a repealer clause; providing for penalties; and providing for publication. Attachments: Agenda memo - Public Hearing and First Reading - Zoning NCCAA Aerial Overview Map, NCCAA Report for CC w Attchmts, NCCAA (8- 29 -12) Ordinance, NCCAA, FINAL 9 -12 -12 20 12 -00698 Public Hearing and First Reading Ordinance - Change of zoning from the "RM -3" Multifamily 3 District to the "CG -2" General Commercial District at 5879 South Padre Island Drive (Requires 2/3 vote) Case No. 0912 -02 Williams Airline Partners, Ltd.: A change of zoning from the "RM -3" Multifamily 3 District to the "CG -2" General Commercial District, resulting in a change of future land use from medium density residential to commercial. The property to be rezoned is described as being a 1.792 -acre tract of land out of Lot H, Wilkey Addition Unit 2, located on the north side of Williams Drive and approximately 1,200 feet west of Airline Road. Planning Commission and Staff Recommendation (September 12, 2012): Approval of the change of zoning from the "RM -3" Multifamily 3 District to the "CG -2" General Commercial District. Ordinance Ordinance amending the Unified Development Code ( "UDC ") upon application by Williams Airline Partners, Ltd. ( "Owner"), by changing the UDC Zoning Map in reference to a 1.792 -acre tract of land out of Lot H, Wilkey Addition Unit 2, from the "RM -3" Multifamily 3 District to the "CG -2" General Commercial District; amending the Comprehensive Plan to account for any deviations; providing for a repealer clause, penalties, and publication. Corpus Christi Page 8 Printed on 10/15/2012 City Council Meeting Agenda - Final October 16, 2012 Attachments: Agenda Memo, WAP Aerial Overview Map, WAP Report for CC, WAP (9- 12 -12) Ordinance, WAP (9- 21 -12) 21 12 -00700 Public Hearing and First Reading Ordinance - Change of Zoning: Request for a Special Permit for the wholesale storage of motor oils and lubricants in the "IL" Light Industrial District, at 5440 Ayers Street (Requires 2/3 vote) Case No. 0912 -01 Arnold Brothers Properties, L.P.: The applicant is requesting a Special Permit for the wholesale storage of motor oils and lubricants in the "IL" Light Industrial District, not resulting in a change of future land use. The property to be rezoned is described as being a 0.284 -acre tract of land out of Lot 6, Holly Industrial Subdivision, located on the east side of Ayers Street (SH 286 Business) and approximately 1,000 feet north of Holly Road. Planning Commission and Staff Recommendation (September 12, 2012): Approval of the Special Permit in the "IL" Light Industrial District subject to specified conditions. Ordinance Ordinance amending the Unified Development Code ( "UDC ") upon application by Arnold Brothers Properties, L.P. ( "Owner"), by changing the UDC Zoning Map in reference to a 0.284 -acre tract of land out of Lot 6, Holly Industrial Subdivision, by granting a Special Permit to the Owner in the "IL" Light Industrial District; amending the Comprehensive Plan to account for any deviations; and providing for a repealer clause, penalties, and publication. Attachments: Agenda memo - ABP Aerial Overview Map, ABP Report for CC, ABP (9- 25 -12) Ordinance, ABP (9- 21 -12) 22 12 -00701 Public Hearing and First Reading Ordinance - Change of Zoning from the "IL" Light Industrial District to the "CG -2" General Commercial District at 5218 Silverberry Drive (Requires 2/3 vote) Case No. 0912 -03 Starplex Operating, L.L.C.: A change of zoning from the "IL" Light Industrial District to the "CG -2" General Commercial District, not resulting in a change of future land use. The property to be rezoned is described as being a 7.7 -acre tract of land out of Lot 11, Block 3, S.P.I.C.E. Plaza, located along the east side of Silverberry Drive and along the south side of South Padre Island Drive (SH 358). Corpus Christi Page 9 Printed on 10/15/2012 City Council Meeting Agenda - Final October 16, 2012 Planning Commission and Staff Recommendation (September 12, 2012): Approval of the change of zoning from the "IL" Light Industrial District to the "CG -2" General Commercial District. Ordinance Ordinance amending the Unified Development Code ( "UDC ") upon application by Starplex Operating, L.L.C., acting on behalf of STORE SPE Starplex, LLC ( "Owner"), by changing the UDC Zoning Map in reference to a 7.7 -acre tract of land out of Lot 11, Block 3, S.P.I.C.E. Plaza, from the "IL" Light Industrial District to the "CG -2" General Commercial District; amending the Comprehensive Plan to account for any deviations; providing for a repealer clause, penalties, and publication. Attachments: Agenda Memo, Starplex Operating Aerial Map, Starplex Operating Report for CC, Starplex Operating Ordinance, Starplex Operating (9- 21 -12) L. REGULAR AGENDA: (ITEM 23) The following items are motions, resolutions and ordinances that will be considered and voted on individually. 23 12 -00722 Agreement to manage the American Bank Center (Requires 2/3 vote) 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 SMG Management Agreement 10 -11 -12 CPY DFT not rich text clean v 2 (2) Council Presentation - SMG Management Agreement - M. FIRST READING ORDINANCES: (ITEMS 24 - 26) 24 12 -00699 First reading ordinance - Utility easement closure to develop property located on the southwest corner of Ocean Drive and Airline Road (Requires 2/3 vote) Ordinance abandoning and vacating a 14 -foot wide portion of a 38 -foot wide utility easement out of Lots 1 and 2, Ocean Village Estates Unit 1, and Lot 3, Block 1, Ocean Village Estates; and requiring the owner, Airline and Ocean Investments, L.P., to comply with the specified Corpus Christi Page 10 Printed on 10/15/2012 City Council Meeting Agenda - Final October 16, 2012 conditions. Attachments: Ocean Village Estates, Agenda Memo, 10 -23 -12 Ocean Village -Ocean Village Estates Final Ordinance with Exhibits, 10 -23 -12 25 12 -00705 First Reading Ordinance - Approving Type A agreement and appropriating funds for constructing two plants at the port (Requires 2/3 vote) Ordinance approving a Type A Incentives Agreement between the Corpus Christi Business and Job Development Corporation ( "Type A Corporation ") and M &G Resins USA, LLC ( "M &G ") to provide a grant of up to $3,000,000 for constructing two plants in the inner harbor, investing $751 million, creating 220 full -time jobs, and paying at least $11.7 million in annual wages and authorizing the City Manager, or designee, to execute a Project Support Agreement with the Type A Corporation to administer the M &G Type A Incentives Agreement and appropriating $3,000,000 from the unreserved fund balance in the No. 1140 Business /Job Development Fund fora business incentive grant from the Type A Corporation to M &G for constructing two plants in the inner harbor, investing $751 million, creating 220 full -time jobs, and paying at least $11.7 million in annual wages; Changing the FY 2012 -2013 operating budget, adopted by Ordinance No. 029565, by increasing proposed expenditures by $3,000,000. Attachments: Agenda Memo Exec Summary Form - M &G Resins ORDINANCE MG 9 -28 -12 Type A Incentive Agreement - signed by MG 27Sept2012 Type A Business Support Agreement - MG 9 25 12 26 12 -00710 First Reading Ordinance - Use privilege agreement to allow communications cable to cross city right -of -way for private business operations (Requires 2/3 vote) Ordinance authorizing the City Manager to execute a use privilege agreement with Super Commercial Properties, LLC, and Gates E &S North America, Inc. ( "Permittees "), to install, operate, maintain, and remove an aerial fiber optic communications cable across the 44th Street public right -of -way from 134 44th Street to 123 44th Street, subject to Permittees' compliance with the specified conditions. Attachments: Agenda Memo - Gates ES North America UPA 10 -23 -2012 ORDINANCE - UPA Super Comm - Properties and Gates E S NA vFinal2 (10- Gates E &S North America UPA, Executed by Parties Corpus Christi Page 11 Printed on 10/15/2012 City Council Meeting Agenda - Final October 16, 2012 N. FUTURE AGENDA ITEMS: (ITEMS 27 - 32) 27 12 -00695 The following items are for Council's informational purposes only. No action will be taken and no public comment will be solicited. Lease - Purchase of Six (6) Side Loading Refuse Trucks for city -wide automated collection process Motion approving the lease- purchase of six (6) side - loading refuse trucks from Rush Truck Centers of Texas LP, Houston, Texas for a total amount of $1,576,127.60 of which $84,438.57 is required for the remainder of FY 2012 -2013. The award is based on the cooperative purchasing agreement with the Texas Local Government Purchasing Cooperative (TLGPC). All units are replacements to the fleet and will be used by the Solid Waste Department. Financing for the lease- purchase of the vehicles will be provided through the City's lease- purchase financing program. Attachments: Agenda Memo - Lease - Purchase Side - Loading Refuse Trucks -V2 Price Sheet - Lease - Purchase Side - Loading Refuse Trucks.xls 28 12 -00708 Approving purchase of electronic ticket writers for traffic officers Motion approving the purchase of fifteen (15) hand held ticket writers for the Corpus Christi Police Department in the amount of $69,419, from Brazos Technologies, College Station, Texas based on General Services Administration Contract No GS -35F- 0096X. Funds are available through the 2012 Edward Byrne Justice Assistance Grant. Attachments: Agenda Memo - Brazos Tech Ticket Writers Brazos quote 29 12 -00709 Professional services contract for geotechnical study for water line, gas line, and management information system conduit from Laguna Shores Boulevard to Padre Island Drive Motion authorizing the City Manager, or designee, to execute a Contract for Geotechnical Engineering Services with Kleinfelder Central, Inc. of Corpus Christi, Texas in the amount of $70,000.00 for the Padre Island Water Supply Study. Attachments: Memo - PI Water Supply Study Project Budget - Padre Island Water Supply Study.xls Location Map Padre Island Water Supply Study.pdf Agreement - Padre Island Water Supply Study 30 12 -00716 Master agreement for job order contracting for minor construction Corpus Christi Page 12 Printed on 10/15/2012 City Council Meeting Agenda - Final October 16, 2012 services and repair of city facilities Motion authorizing the City Manager or designee to execute a Master Agreement for Job Order Contracting (JOC) with Barcom Commercial, Inc. for a two -year term with option to renew administratively for up to three one -year periods, with no guaranteed minimum and a maximum aggregate of $2,000,000.00 in any one year; authorizing the City Manager or designee to execute all Job Order Contracts thereunder not exceeding $500,000.00; authorizing the City Manager or designee to execute a Master Agreement for Job Order Contracting (JOC) with CAS Companies, LP for a two -year term with option to renew administratively for up to three one -year periods, with no guaranteed minimum and a maximum aggregate of $2,000,000.00 in any one year; authorizing the City Manager or designee to execute all Job Order Contracts thereunder not exceeding $500,000.00. Attachments: Memo - JOC Evaluation Matrix - Job Order Contracting Barcom JOC Master Agreement - Job Order Contractinq.pdf CAS JOC Master Agreement - Job Order Contractinq.pdf 31 12 -00726 Certification of the 2012 Property Tax Levy Motion approving the 2012 Property Tax Levy of $81,245,941.65 based on the adopted property tax rate of $0.570557 per $100 valuation, in accordance with Section 26.09 (e) of the Texas Property Tax Code. Attachments: Certification of 2012 Tax Levy.doc 2012 City of CC Certification of Levy from Tax Office.pdf 32 12 -00713 Professional services contract for survey and design work to re -route power lines that cross water treatment plant Motion authorizing the City Manager, or designee, to execute a contract for professional services with AEP Texas Central Company in the amount of $400,000.00 for the O.N. Stevens Water Treatment Plant Transmission Line Relocation Project. Attachments: Memo - ONSWTP AEP Contract Protect Budget - ONSWTP AEP Transmission Line Reloc.xlsx Location Map - ONSWTP AEP Transmission Line Reloc. pdf Contract - AEP Powerpoint AEP Transmission Line Relocation FUTURE CORPORATION MEETING (ITEM 33) 33 12 -00727 Board of Director's Meeting of the Corpus Christi Community Improvement Corporation (CCCIC) 1. Call the Meeting to Order Corpus Christi Page 13 Printed on 10/15/2012 City Council Meeting Agenda - Final October 16, 2012 2. Secretary Armando Chapa calls roll 3. Approval of the minutes of September 25, 2012 4. Treasurer's Report 5. Motion to approve loan commitments for the Palms at Leopard project 6. Motion to approve loan commitments for the Hacienda Senior Apartments project 7. Public Comment 8. Adjournment Attachments: Agenda memo - CCCIC Board Meeting revision CCCIC AGENDA revision CCCIC12- Sept25 Minutes.doc O. UPDATES TO CITY COUNCIL: (ITEM 34) The following items are for Council's informational purposes only. No action will be taken and no public comment will be solicited. 34 12 -00707 Corpus Christi Regional Economic Development Corporation Semi - Annual report to the City Council Attachments: City Council Presentaion CCREDC 10 16 12 Quarterly Report October 2012 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 14 Printed on 10/15/2012 City Council Meeting Agenda - Final October 16, 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 15 Printed on 10/15/2012 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 0011 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 0011 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 0011_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 0011_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 0011_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 0011_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 0011_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 0011_3_Contract -TDPS Interlocal re FTA System TEXAS DEPARTMENT OF CITY OF CORPUS CHRISTI, TEXAS PUBLIC SAFETY Sheri Gipson Deputy Administrator 0011_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 \1007 CITY COUNCIL 10 16 2012 \0013 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 \1007 CITY COUNCIL 10 16 2012 \0013 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 \1007_City Council _10_16_2012 \0013_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. The statute authorizes a city to appoint someone to "represent the interests" of a transportation disadvantaged individual. Background: Chapter 451, Transportation Code, affects the Cities of Austin, Corpus Christi, Houston, and San Antonio, and their appointment to the rapid transit authority serving their respective municipality (Capital Metro, the B, Metro and VIA). Corpus Christi resident and long -time disability rights advocate Abel Alonzo believes transportation disadvantaged individuals deserve to represent themselves on the transit authority boards. Previous councils have appointed non - transportation disadvantaged individuals to the board . . R f'. ,FI�, 'f l _? ,Tl -. !� 'f.' t „�,d ., .rn: I �L,. f . ✓sp.�, J, ..y ✓�.?. f � t ,;, ✓ . L': J.l � n, ,f .. ::'.'.t.f L{ <. � �, 3 r . f ✓ . r r. S k . -3•e 4 "T ✓ �z 3w' { , i a L' X. � 3 ,,:U�,.�.!r ll�✓ i,. J,,, f .. z s"t i ..> E ,'. ?, < r { „-s ! . Z , # F >��'i'�cu /Yn. � fl, ✓ U r,A J.. 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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 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 Public Hearing and First Reading for the City Council Meeting of October 16, 2012 Second Reading /Action Item for the City Council Meeting of October 23, 2012 DATE: TO: FROM: September 12, 2012 Ronald L. Olson, City Manager Mark E. Van Vleck, P.E., Interim Director, Department of Development Services MarkVV @cctexas.com (361) 826-3246 PUBLIC HEARING — CHANGE OF ZONING Michael G. Winnie and Liza Winnie (Case No. 0812 -03) Change from "RS -TF" Two - Family District to "ON" Office District Property Address: 5446 Lipes Boulevard CAPTION: Case No. 0812 -03 Michael G. Winnie and Liza Winnie: A change of zoning from the "RS -TF" Two - Family District to the "ON" Office District, resulting in a change of future land use from medium density residential to professional office. The property to be rezoned is described as Corpus Christi Retirement Residence Addition, Block 1, Lot 2, located along the north side of Lipes Boulevard, approximately 800 feet west of South Staples Street (FM 2444). PURPOSE: The purpose of this item is to rezone the property from a duplex district to an office district in order to construct a 4,000- square -foot medical office. RECOMMENDATION: Planning Commission and Staff Recommendation (August 15, 2012): Approval of the change of zoning from the "RS -TF" Two - Family District to the "ON" Office District. BACKGROUND AND FINDINGS: The applicant is requesting a change of zoning from the "RS -TF" Two - Family District to the "ON" Office District in order to construct a medical office totaling 4,000 square feet on the 0.87 -acre site. The office would staff seven employees and would operate during normal business hours. The applicant has entered into a sales contract with the land owner and will close on the property subject to the approval of the zoning change. The single - family neighborhood would receive protection from the non - residential use by means of setbacks, buffer yards, screening, and stricter lighting standards. Located to the north and east of the subject property is a residential retirement home in the "RS -TF" District. To the east just past the entrance to the retirement home is a property that was recently rezoned to the "ON" Office District and developed with a physical therapy office. West of the subject property is a single - family neighborhood in the "RS -6" Single - Family 6 District. South of the subject property and across Lipes Boulevard, the land is vacant and zoned an "RS- 6" Single - Family 6 District. To the southeast of the subject property is a church in the "RM -1" Multifamily 1 District. The change of zoning to the "ON" Office District would be consistent with the surrounding uses and zoning patterns, such as the church, retirement home, apartments and physical therapy office. Additionally, the office use would provide a better transition between the commercial and apartment uses on South Staples Street and Lipes Boulevard and the single - family neighborhoods. Traffic generation from an office use would not substantially increase the volume of traffic through the area. ALTERNATIVES: 1. Approve an intermediate zoning district or Special Permit; or 2. Deny the request. OTHER CONSIDERATIONS: Not Applicable CONFORMITY TO CITY POLICY: The proposed change of zoning is not consistent with the adopted Future Land Use Plan, which slates the property for medium - density residential uses. The proposed change of zoning would be an acceptable expansion of a commercial use into a residential area and it would not negatively affect the desirability of the neighborhood. The development of a medical office building would provide a professional office use that would serve and be compatible with the nearby single - family and multifamily developments. EMERGENCY / NON - EMERGENCY: Non - Emergency DEPARTMENTAL CLEARANCES: Planning, Legal, and Planning Commission FINANCIAL IMPACT: ❑ Operating ❑ Revenue ❑ Capital Not applicable Fiscal Year: 2011- 2012 Project to Date Expenditures (CIP only) Current Year Future Years TOTALS Line Item Budget Encumbered / Expended Amount This item BALANCE Fund(s): Comments: None LIST OF SUPPORTING DOCUMENTS: 1.) Aerial Overview Map 2.) Zoning Report with Attachments 3.) Ordinance with Exhibit ZONING REPORT Case No.: 0812 -03 HTE No. 12- 10000024 Planning Commission Hearing Date: August 15, 2012 Applicant & Legal Description Applicant /Representative: Michael G. Winnie and Liza Winnie Owner: Grace Bible Church of Corpus Christi, Texas Legal Description /Location: Corpus Christi Retirement Residence Addition, Block 1, Lot 2, located along the north side of Lipes Boulevard and approximately 800 feet west of South Staples Street (FM 2444). Zoning Request From: "RS -TF" Two - Family District To: "ON" Office District Area: 0.87 acres Purpose of Request: To allow the construction of a 4,000- square -foot medical office. Existing Zoning and Land Uses Existing Zoning District Existing Land Use Future Land Use Site "RS -TF" Two - Family Vacant Medium Density Residential North "RS -TF" Two - Family Medium Density Residential Medium Density Residential South "RS -6" Single - Family 6 Vacant Low Density Residential East "RS -TF" Two - Family Medium Density Residential Medium Density Residential West "RS -6" Single - Family 6 Low Density Residential Low Density Residential ADP, Map & Violations Area Development Plan: The subject property is located in the Southside Area Development Plan (ADP) and is planned for medium density residential uses. The proposed change of zoning to the "ON" Office District is not consistent with the adopted Future Land Use Plan. Map No.: 045032 Zoning Violations: None Transport- ation Transportation and Circulation: The subject property has 185 feet of frontage along the north side of Lipes Boulevard, which is a "01" Minor Residential Collector Street. The subject property has indirect access to South Staples Street (FM 2224), which is an "A3" Primary- Arterial Divided Street, via Lipes Boulevard. Street R.O.W. Street Urban Transportation Plan Type Proposed Section Existing Section Traffic Volume (2011) Lipes Blvd. 01 Minor Residential Collector 60' ROW, 40' paved 60' ROW, 40' paved Not Available S. Staples St. (FM 2224) A3 Primary Arterial Divided 130' ROW, 79' paved 130' ROW, 65' paved 17,220 ADT Zoning Report Case #0812 -03 Michael G. Winnie and Liza Winnie Page 2 Staff Summary: Requested Zoning: The applicant is requesting a change of zoning from the "RS -TF" Two - Family District to the "ON" Office District to allow for the construction of a 4,000- square -foot medical office. Applicant's Development Plan: The applicant is proposing a 4,000 square foot structure on the subject property for Dr. Michael Winnie's medical office. The office would staff seven employees and would operate during normal business hours. The applicant has entered into a sales contract with the land owner and will close on the property subject to the approval of the zoning change. Existing Land Uses & Zoning: Located to the north and east of the subject property is a multifamily residential retirement home zoned in the "RS -TF" District. Also to the east just past the entrance to the retirement home is a property that was recently rezoned to the "ON" Office District and developed with a physical therapy office. To the west of the subject property is a single - family neighborhood in the "RS -6" Single - Family 6 District. To the south of the subject property and across Lipes Boulevard, the land is vacant and zoned an "RS -6" Single - Family 6 District. To the southeast of the subject property is a church in the "RM -1" Multifamily 1 District. AICUZ: The subject property is not located in one of the Navy's Air Installation Compatibility Use Zones (AICUZ). Buffering & Nuisance Abatement: The following are requirements of the Unified Development Code (UDC): 1.) A 10 -foot wide buffer yard and 10 buffer points are required between the proposed office and the adjacent residential district. 2.) A seven -foot wall is required when noise generators, such as dumpsters or mechanical equipment (air conditioning units), are located adjacent to a single - family district. 3.) All light fixtures located within fifty (50) feet of a residential property must not exceed fifteen (15) feet in height. 4.) A minimum six (6) foot solid screening fence is required between the proposed office and abutting residential neighborhood. 5.) Commercial structures must be setback from single - family uses a distance based on the height of the commercial structure. 6.) All roof, ground and wall- mounted mechanical equipment shall be screened from view from residential properties or public rights -of -way at ground level of the property line. Comprehensive Plan & Area Development Plan (ADP) Consistency: The proposed change of zoning is not consistent with the adopted Future Land Use Plan, which slates the property for medium - density residential uses. The proposed change of zoning would provide an office use that would serve and be compatible with the nearby single - family and multifamily developments. The rezoning is consistent with other relevant elements of the Comprehensive Plan such as: 1.) Expansion of commercial uses into or within residential areas may be permitted only if such expansion maintains or improves the residential desirability of the impacted neighborhoods (Comprehensive Plan, Commercial Policy Statement D). 2.) Commercial service areas designed to serve local neighborhoods should be conveniently located and in harmony with the surrounding neighborhood (Comprehensive Plan, Commercial Policy Statement G). 3.) Infill should be encouraged on vacant tracts within developed areas (Comprehensive Plan, Residential Policy Statement H). Zoning Report Case # 0812 -03 Michael G. Winnie and Liza Winnie Page 3 Plat Status: The subject property is currently platted. Department Comments: • The change of zoning to the "ON" Office District would be consistent with the surrounding uses and zoning patterns, such as the church, retirement home, apartments and physical therapy office. • The office use would provide a better transition between the commercial and apartment uses on South Staples Street and Lipes Boulevard and the single - family neighborhoods. • Traffic generation from an office use would not substantially increase traffic volumes. • The proposed medical office building would increase the availability of personal services in the area. • The Unified Development Code provides added protection when office uses located adjacent to single - family uses through buffer requirements, lighting restrictions, and noise abatement. Planning Commission and Staff Recommendation (August 15, 2012): Approval of the change of zoning from the "RS -TF" Two - Family District to the "ON" Office District. Notification Number of Notices Mailed — 18 within 200' notification area; 7 outside notification area As of August 23, 2012: In Favor In Opposition For 0.00% in opposition. — 0 (inside notification area); 0 (outside notification area) — 0 (inside notification area); 0 (outside notification area) Attachments: 1. Site Map (Existing Zoning & Notice Area) K: \DevelopmentSvcs \SHARED \ZONING CASES \2012 \0812 -03 Michael G. Winnie and Liza Winnie \0812 -03 Report for CC, Winnie (8- 13- 12).docx /[S -/63 CRQS T E, R 14J G UN-1 6 SUBJECT PROPERTY RS -TF RS RS -6 CN -1 C i C 2 G CQRNE 0 CN -1 i RM -1 CN -1 800 SAN MARIN 'Fee? Date Created 7 /20/20'12 Pre'pared By(jer�emym Department of Development:Services CASE: 0812 -03 2. SITE - EXISTING ZONING, NOTICE AREA & OWNERSHIP RM -1 Multifamily 1 RM -2 Multifamily 2 RM -3 Multifamily 3 ON Professional Office RM -AT Multifamily AT CN -1 Neighborhood Commercial CN -2 Neighborhood Commercial CR -1 Resort Commercial CR -2 Resort Commercial CG -1 General Commercial CG -2 General Commercial CI Intensive Commercial CBD Downtown Commercial CR -3 Resort Commercial FR Farm Rural H Historic Overlay BP Business Park IL Light Industrial IH Heavy Industrial PUD Planned Unit Dev. Overlay RS -10 Single - Family 10 RS -6 Single - Family 6 RS-4.5 Single - Family 4.5 RS -TF Two - Family RS -15 Single - Family 15 RE Residential Estate RS -TH Townhouse SP Special Permit RV Recreational Vehicle Park RMH Manufactured Home Subject Property with 200' buffer O Owners in favor 4 Owners within 200' listed on v Owners attached ownership table /� in opposition LOCATION MAP Ordinance amending the Unified Development Code ( "UDC ") upon application by Michael G. Winnie and Liza Winnie, acting on behalf of Grace Bible Church of Corpus Christi, Texas ( "Owner "), by changing the UDC Zoning Map in reference to Corpus Christi Retirement Residence Addition, Block 1, Lot 2, from the "RS -TF" Two - Family District to the "ON" Office District; amending the Comprehensive Plan to account for any deviations; providing a repealer clause; providing for penalties; and providing for publication. WHEREAS, the Planning Commission has forwarded to the City Council its reports and recommendations concerning the application of Michael G. Winnie and Liza Winnie, acting on behalf of Grace Bible Church of Corpus Christi, Texas ( "Owner"), for an amendment to the City of Corpus Christi's Unified Development Code ( "UDC ") and corresponding UDC Zoning Map; WHEREAS, with proper notice to the public, public hearings were held on Wednesday, August 15, 2012, during a meeting of the Planning Commission, and on Tuesday, October 16, 2012, during a meeting of the City Council, during which all interested persons were allowed to appear and be heard; and WHEREAS, the City Council has determined that this amendment would best serve the public health, necessity, convenience and general welfare of the City of Corpus Christi and its citizens. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF CORPUS CHRISTI, TEXAS: SECTION 1. The Unified Development Code ( "UDC ") of the City of Corpus Christi, Texas ( "City "), is amended by changing the zoning on Corpus Christi Retirement Residence Addition, Block 1, Lot 2 (the "Property "), located along the north side of Lipes Boulevard approximately 800 feet west of South Staples Street (FM 2444), from the "RS -TF" Two - Family District to the "ON" Office District (Zoning Map No. 045032), as shown in Exhibit "A." Exhibit "A," which is a location map pertaining to the Property, is attached to and incorporated in this ordinance by reference as if fully set out herein in its entirety. SECTION 2. The official UDC Zoning Map of the City is amended to reflect changes made to the UDC by Section 1 of this ordinance. SECTION 3. The UDC and corresponding UDC Zoning Map of the City, made effective July 1, 2011, and as amended from time to time, except as changed by this ordinance, both remain in full force and effect. SECTION 4. To the extent this amendment to the UDC represents a deviation from the City's Comprehensive Plan, the Comprehensive Plan is amended to conform to the UDC, as it is amended by this ordinance. SECTION 5. All ordinances or parts of ordinances in conflict with this ordinance are hereby expressly repealed. SECTION 6. A violation of this ordinance, or requirements implemented under this ordinance, constitutes an offense punishable as provided in Article 1, Section 1.10.1, and Article 10 of the UDC. SECTION 7. Publication shall be made in the official publication of the City of Corpus Christi as required by the City Charter of the City of Corpus Christi. The foregoing ordinance was read for the first time and passed to its second reading on this the day of , 2012, by the following vote: Joe Adame David Loeb Chris N. Adler John E. Marez Kelley Allen Nelda Martinez Larry Elizondo Mark Scott Priscilla G. Leal The foregoing ordinance was read for the second time and passed finally on this the day of , 2012, by the following vote: Joe Adame David Loeb Chris N. Adler John E. Marez Kelley Allen Nelda Martinez Larry Elizondo Mark Scott Priscilla G. Leal PASSED AND APPROVED this the day of , 2012. ATTEST: Armando Chapa City Secretary Joe Adame Mayor Zoning Ord Grace Bible Church MGWinnie LWinnie vFinal (1) Page 2 of 2 RS -/63 CRQS a TE, R 14J G ' U' N7' 6 RS -6 SUBJECT PROPERTY RS -TF RS -��5 CN -1 C CN- 1' 2 RS -6 STONEHGE UNI' A RM -1 400 800 SAN M A, R I N' iFeitt CASE: 0812 -03 1. SUBJECT PROPERTY Subject Property EXHIBIT A ONSTERLI G CORNE CN..11 CN -1 Date Created 7/20/20'12 Prepared�8 y(jer, emym Department of Development SeP7 ces LOCATION MAP AGENDA MEMORANDUM Public Hearing and First Reading for the City Council Meeting of October 16, 2012 Second Reading /Action Item for the City Council Meeting of October 23, 2012 DATE: September 12, 2012 TO: Ronald L. Olson, City Manager FROM: Mark E. Van Vleck, P.E., Interim Director, Department of Development Services MarkVV @cctexas.com (361) 826-3246 PUBLIC HEARING — CHANGE OF ZONING Nueces County Community Action Agency (Case No. 0812 -05) Change from "RS -6" Single - Family 6 District to "RM -1" Multifamily 1 District Property Address: 3226 Houston Street CAPTION: Case No. 0812 -05: Nueces County Community Action Agency: A change of zoning from the "RS -6" Single - Family 6 District to the "RM -1" Multifamily 1 District, resulting in a change of future land use from low density residential to medium density residential. The property to be rezoned is described as Laughlin Addition, Block 3, Lot 25 -A, located along the north side of Houston Street approximately 400 feet east of Kostoryz Road. PURPOSE: The purpose of this item is to rezone the property from a single - family district to a multifamily district to allow for the construction of a four -unit apartment development. RECOMMENDATION: Planning Commission & Staff Recommendation (August 15, 2012): Approval of the change of zoning from the "RS -6" Single - Family 6 District to the "RM -1" Multifamily 1 District. BACKGROUND AND FINDINGS: The applicant is requesting a change of zoning from the "RS -6" Single - Family 6 District to the "RM -1" Multifamily 1 District to allow for the construction of a four -unit multifamily housing development. The applicant owns the adjacent property to the west and is constructing a seven - unit apartment complex as Phase 1. The proposed rezoning would allow the expansion of the existing apartment complex by four additional dwelling units as Phase 2. The applicant is applying for City of Corpus Christi HOME funding for the construction of this project. Rezoning this particular lot to the "RM -1" District would be consistent with surrounding properties. Located to the north and east of the subject property is a single - family subdivision, which is zoned as the "RS -6" Single - Family 6 District, and a church is located to the northwest of the subject property. Located to the south of the subject property is an apartment complex (Wind Rush Apartments), which is zoned the "RM -3" Multifamily 3 District. To the west of the subject property is Phase 1 of the applicant's apartment complex, which is zoned "RS -TF" Two - Family District. The proposed rezoning is an acceptable expansion of the adjacent multifamily uses and will increase the amount of affordable housing in the area. The subject property has convenient access to an arterial street so traffic will be discouraged through residential streets. Lastly, the Unified Development Code affords protection of the adjacent single - family uses by means of setbacks, buffer yards, screening, and stricter lighting standards. ALTERNATIVES: 1. Approve an intermediate zoning district; or 2. Deny the request. OTHER CONSIDERATIONS: Not applicable CONFORMITY TO CITY POLICY: The proposed change of zoning is not consistent with the adopted Future Land Use Plan, but it is a reasonable expansion of the surrounding multifamily uses. This rezoning is consistent with other elements of the Comprehensive Plan and Southeast Development Plan, such as encouraging infill development and locating medium density residential establishments with convenient access to an arterial road so that traffic is not directed through local residential streets. The proposed development will also have convenient access to public transportation. EMERGENCY / NON - EMERGENCY: Non - Emergency DEPARTMENTAL CLEARANCES: Planning, Legal, and Planning Commission FINANCIAL IMPACT: ❑ Operating ❑ Revenue ❑ Capital Not applicable Fiscal Year: 2011- 2012 Project to Date Expenditures (CIP only) Current Year Future Years TOTALS Line Item Budget Encumbered / Expended Amount This item BALANCE Fund(s): Comments: None LIST OF SUPPORTING DOCUMENTS: 1. Aerial Overview Map 2. Zoning Report with Exhibits 3. Ordinance with Exhibits -,d }_ i-- `« .4. 1. y * -7 - _ rd i. • k :! e { - � � � � fY i - S` � , 1^, a 4' 1' i 'f - . hie I'' w t r { ,4,-.,,,,,..-,„,,,,L-,,,' • A f 1 � r [ it f 4-1 , �. ` w•per})/_ • r.i . a tk St 1 - r'r i } d 1, g 4)- F .C.f7 _' f ( t L � t - ' f" * - ZONING REPORT Case No.: 0812 -05 HTE No. 12- 10000026 Planning Commission Hearing Date: August 15, 2012 Applicant & Legal Description Applicant /Owner: Nueces County Community Action Agency Representative: Sam Esquivel Legal Description /Location: Laughlin Addition, Block 3, Lot 25 -A, located along the north side of Houston Street and approximately 400 feet east of Kostoryz Road. Zoning Request From: To: Area: Purpose development. "RS -6" Single - Family 6 District "RM -1" Multifamily 1 District 0.487 acres of Request: To allow the construction of a multifamily housing Existing Zoning and Land Uses Existing Zoning District Existing Land Use Future Land Use Site "RS -6" Single - Family 6 Vacant Low Density Residential North "RS -6" Single - Family 6 Low Density Residential Low Density Residential South "RM -3" Multifamily 3 Medium Density Residential Medium Density Residential East "RS -6" Single - Family 6 Low Density Residential Low Density Residential West "RS -TF" Two - Family Medium Density Residential Medium Density Residential ADP, Map & Violations Area Development Plan: The subject property is located in the Southeast Area Development Plan (ADP) and is planned for low density residential uses. The proposed change of zoning to the "RM -1" Multifamily 1 District is not consistent with the adopted Future Land Use Plan. Map No.: 045039 & 046039 Zoning Violations: None Transport -ation Transportation and Circulation: The subject property has 118 feet of frontage along the north side of Houston Street, which is a Local Residential Street, and has indirect access to Kostoryz Road, which is an "Al" Minor Arterial Undivided. Street R.O.W. Street Urban Transportation Plan Type Proposed Section Existing Section Traffic Volume Houston St. Local Residential 50' ROW, 28' paved 50' ROW, 28' paved Not Available Kostoryz Rd. "Al" Minor Arterial Undivided 95' ROW, 64' paved 80' ROW, 44' paved 12,896 Zoning Report Case #0812 -05, NCCAA Page 2 Staff Summary: Requested Zoning: The applicant is requesting a change of zoning from the "RS -6" Single - Family 6 District to the "RM -1" Multifamily 1 District to allow for the construction of a four -unit multifamily housing development. The applicant owns the adjacent property to the west and is constructing a seven -unit apartment complex as Phase 1. The proposed rezoning would allow the expansion of the existing apartment complex by four additional dwelling units as Phase 2. Applicant's Development Plan: The applicant plans to construct a small apartment complex consisting of four (4) three - bedroom, accessible dwelling units affordable to low- or moderate - income households. The proposed apartment complex would be Phase 2 of an apartment complex that the applicant constructed on Houston Street. Phase 1 consisted of seven one- and two - bedroom dwelling units. Phase 2 will provide four (4) three - bedroom units to compliment the housing options available within the complex. Phase 2 would share driveway access with Phase 1. The applicant is applying for City of Corpus Christi HOME funding for the construction of this project. Existing Land Uses & Zoning: Located to the north and east of the subject property is a single - family subdivision, which is zoned as the "RS -6" Single - Family 6 District, and a church is located to the northwest of the subject property. Located to the south of the subject property is an apartment complex (Wind Rush Apartments), which is zoned the "RM -3" Multifamily 3 District. To the west of the subject property is Phase 1 of the applicant's apartment complex, which is zoned as the "RS -TF" Two - Family District (formerly the "R -2" Multiple Dwelling Unit District). AICUZ: The subject property is not located in one of the Navy's Air Installation Compatibility Use Zones (AICUZ). Comprehensive Plan & Area Development Plan (ADP) Consistency: The proposed change of zoning is not consistent with the adopted Future Land Use Plan, which slates the subject property for low- density residential uses. With the recent development of the multifamily apartment complex to the west, rezoning the subject property to a multifamily district would be a reasonable extension of the multifamily use to the west and would be consistent with the existing multifamily zoning district to the south. Additionally, the following pertinent elements of the Comprehensive Plan and Southeast Area Development Plan (ADP) should be considered: • Encourage infill development on vacant tracts within developed areas (Comprehensive Plan, Residential Policy Statement H). • Medium - density residential development should be located in areas with convenient access to an arterial -type street (Comprehensive Plan, Residential Policy Statement F). • Traffic hazards should be lessened by discouraging through traffic within residential areas (Comprehensive Plan, Residential Policy Statement J.) Transportation: The Comprehensive Plan states that medium - density residential developments should have convenient access to arterial -type streets. The subject property is approximately 400 feet east of Kostoryz Road, which is an "Al" Minor Arterial Undivided street. Therefore, the subject property has convenient access to an arterial -type street without having to traverse the residential neighborhood. Plat Status: The subject property is platted. Zoning Report Case # 0812 -05, NCCAA Page 3 Department Comments: • Rezoning the subject property to a multifamily district would also be consistent with the existing multifamily developments to the west (applicant's Phase 1 apartments), which is zoned "RS -TF" Two - Family District, and to the south (Wind Rush Apartments), which is zoned "RM -3" Multifamily 3 District. • Despite the inconsistency with the Future Land Use Plan, staff supports this rezoning request as it is a reasonable expansion of the multifamily districts to the west and south because of the infill development which is one of the City's planning policies. • The proposed project would have convenient access to Kostoryz Road, which means that apartment tenants would be less likely to drive east on Houston Street through the single - family neighborhood creating cut - through traffic. Planninq Commission and Staff Recommendation (August 15, 2012): Approval of the change of zoning from the "RS -6" Single - Family 6 District to the "RM -1" Multifamily 1 District. c) a Notification Number of Notices Mailed — 16 within 200' notification area; 8 outside notification area As of August 23, 2012: In Favor In Opposition For 3.49% in opposition. — 0 (inside notification area); 0 (outside notification area) — 2 (inside notification area); 0 (outside notification area) Attachments: 1. Site Map (Existing Zoning & Notice Area) 2. Proposed Development Plan K: \DevelopmentSvcs \SHARED\ZONING CASES \2012 \0812 -05 Nueces Co. Community Action Agency \0812 -05 Report for CC, NCCAA (8- 14- 12).docx WY WOOD 1/ CASH-1II1DA (B ICE JJR H7 �) 9 E LW0 D 2 12 39 PARKWAY 28 -D RS PA (I $ R P 5 R AVA � 22 -A 21 -8 21 -A 20 -8 19 -C G -1 K O S CG -2 18 -A 18 SUBJECT PROPERTY Date Created/7 /30/20/12 7• 30 / Prepared Sy: jeremym DepartmehtKofiDNe4pme ttServices CASE: 0812 -05 2. SITE - EXISTING ZONING, NOTICE AREA & OWNERSHIP RM -1 Multifamily 1 RM -2 Multifamily 2 RM -3 Multifamily 3 ON Professional Office RM -AT Multifamily AT CN -1 Neighborhood Commercial CN -2 Neighborhood Commercial CR -1 Resort Commercial CR -2 Resort Commercial CG -1 General Commercial CG -2 General Commercial CI Intensive Commercial CBD Downtown Commercial CR -3 Resort Commercial FR Farm Rural H Historic Overlay BP Business Park IL Light Industrial IH Heavy Industrial PUD Planned Unit Dev. Overlay RS -10 Single - Family 10 RS -6 Single - Family 6 RS-4.5 Single - Family 4.5 RS -TF Two - Family RS -15 Single - Family 15 RE Residential Estate RS -TH Townhouse SP Special Permit RV Recreational Vehicle Park RMH Manufactured Home Subject Property O Owners with 200' buffer in favor 4 Owners within 200' listed on v Owners attached ownership table A in opposition SUBJECT PROPERTY :' (wait £10BI &SEr4i.SLS ATE EASEVE 3226 HOUSTON STREET 3220 HOUSTON STREET PHASE 2 - 4 UNITS PHASE 1- 7 UNITS 1,540 Bf STORAGE Z H Z L: Z `� "_ Z 0 a a ATE EASEVE 3226 HOUSTON STREET 3220 HOUSTON STREET PHASE 2 - 4 UNITS PHASE 1- 7 UNITS Ordinance amending the Unified Development Code ( "UDC ") upon application by Nueces County Community Action Agency ( "Owner "), by changing the UDC Zoning Map in reference to Laughlin Addition, Block 3, Lot 25 -A, from the "RS -6" Single - Family 6 District to the "RM -1" Multifamily 1 District; amending the Comprehensive Plan to account for any deviations; providing a repealer clause; providing for penalties; and providing for publication. WHEREAS, the Planning Commission has forwarded to the City Council its reports and recommendations concerning the application of Nueces County Community Action Agency ( "Owner") for an amendment to the City of Corpus Christi's UDC and corresponding UDC Zoning Map; WHEREAS, with proper notice to the public, public hearings were held on Wednesday, August 15, 2012, during a meeting of the Planning Commission, and on Tuesday, October 16, 2012, during a meeting of the City Council, during which all interested persons were allowed to appear and be heard; and WHEREAS, the City Council has determined that this amendment would best serve the public health, necessity, convenience and general welfare of the City of Corpus Christi and its citizens. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF CORPUS CHRISTI, TEXAS: SECTION 1. The Unified Development Code ( "UDC ") of the City of Corpus Christi, Texas ( "City "), is amended by changing the zoning on Laughlin Addition, Block 3, Lot 25 -A (the "Property "), located along the north side of Houston Street approximately 400 feet east of Kostoryz Road, from the "RS -6" Single - Family 6 District to the "RM -1" Multifamily 1 District (Zoning Map Nos. 045039 & 046039), as shown in Exhibit "A." Exhibit "A," which is a location map pertaining to the Property, is attached to and incorporated in this ordinance by reference as if fully set out herein in their entirety. SECTION 2. The official UDC Zoning Map of the City is amended to reflect the changes made to the UDC by Section 1 of this ordinance. SECTION 3. The UDC and corresponding UDC Zoning Map of the City, made effective July 1, 2011, and as amended from time to time, except as changed by this ordinance, both remain in full force and effect. SECTION 4. To the extent this amendment to the UDC represents a deviation from the City's Comprehensive Plan, the Comprehensive Plan is amended to conform to the UDC, as it is amended by this ordinance. SECTION 5. All ordinances or parts of ordinances in conflict with this ordinance are hereby expressly repealed. SECTION 6. A violation of this ordinance, or requirements implemented under this ordinance, constitutes an offense punishable as provided in Article 1, Section 1.10.1, and Article 10 of the UDC. SECTION 7. Publication shall be made in the official publication of the City of Corpus Christi as required by the City Charter of the City of Corpus Christi. The foregoing ordinance was read for the first time and passed to its second reading on this the day of , 2012, by the following vote: Joe Adame David Loeb Chris N. Adler John E. Marez Kelley Allen Nelda Martinez Larry Elizondo Mark Scott Priscilla G. Leal The foregoing ordinance was read for the second time and passed finally on this the day of , 2012, by the following vote: Joe Adame David Loeb Chris N. Adler John E. Marez Kelley Allen Nelda Martinez Larry Elizondo Mark Scott Priscilla G. Leal PASSED AND APPROVED this the day of , 2012. ATTEST: Armando Chapa City Secretary Joe Adame Mayor Zoning Ord NCCAA vFinal Page 2 of 2 WY WOOD 1/ CA SA LIN D A ( 8 H ) 9 E LWO D 2 12 39 PARKWAY RS-T RS-6 24 24A ALL R PER AVA R M 3 22-A 21-8 21-A 20-B 19-C 0.G-*/ KOS CG-2 18-A 18 SUBJECT PROPERTY Date Created/7/30/20/12 7. 30 13r'epiared Sy: jerernym DepartgehtKofiDNe4poeizt Services CASE: 0812-05 1. SUBJECT PROPERTY EXHIBIT A Subject Property AGENDA MEMORANDUM Public Hearing and First Reading for the City Council Meeting of October 16, 2012 Second Reading /Action Item for the City Council Meeting of October 23, 2012 DATE: TO: FROM: September 17, 2012 Ronald L. Olson, City Manager Mark E. Van Vleck, P.E., Interim Director, Department of Development Services MarkVV @cctexas.com (361) 826-3246 PUBLIC HEARING — CHANGE OF ZONING Williams Airline Partners, Ltd. (Case No. 0912 -02) Change from "RM -3" Multifamily 3 District to "CG -2" General Commercial District Property Address: 5879 South Padre Island Drive CAPTION: Case No. 0912 -02 Williams Airline Partners, Ltd.: A change of zoning from the "RM -3" Multifamily 3 District to the "CG -2" General Commercial District, resulting in a change of future land use from medium density residential to commercial. The property to be rezoned is described as being a 1.792 -acre tract of land out of Lot H, Wilkey Addition Unit 2, located on the north side of Williams Drive and approximately 1,200 feet west of Airline Road. PURPOSE: The purpose of this item is to rezone property to allow construction of a four -story hotel. RECOMMENDATION: Planning Commission and Staff Recommendation (September 12, 2012): Approval of the change of zoning from the "RM -3" Multifamily 3 District to the "CG -2" General Commercial District. BACKGROUND AND FINDINGS: The applicant is requesting a change of zoning from the "RM -3" Multifamily 3 District to the "CG -2" General Commercial District to allow the construction of a four -story hotel. The applicant is proposing a four -story hotel on an approximately two -acre site. Located to the south and east of the subject property is vacant land. Cheddar's Restaurant is north of the subject property and is zoned "CG -2" General Commercial District. The vacant land to the south is zoned "RM -3" Multifamily 3 District. The vacant land to the east is zoned "RM -1" Multifamily 1 District. West of the property is Our Lady of Perpetual Help Catholic Church, which is zoned "RS -6" Single - Family 6 District. Across Williams Drive is a single - family neighborhood and a few commercial and public uses. A change of zoning to the "CG -2" General Commercial District would be consistent with the properties located to the north which are zoned "CG -2" District. The proposed hotel will have access to a collector street which has convenient access to two arterial streets, both of which are less than a half mile from the property. There will also be shared access to South Padre Island Drive (SH 358), which is an "Fl" Freeway. Also, the configuration of this rezoning will leave a 250 -foot buffer along Williams Drive. This buffer area would be recommended for Neighborhood Commercial zoning in the future to create compatibility with the neighborhood across Williams Drive. ALTERNATIVES: 1. Approve an intermediate zoning district or Special Permit; or 2. Deny the request. OTHER CONSIDERATIONS: Not Applicable CONFORMITY TO CITY POLICY: The proposed change of zoning is not consistent with the adopted Future Land Use Plan, which slates the property for a medium density residential use. Although the zoning change is not consistent with the adopted Future Land Use Plan, it would be consistent with elements of the Comprehensive Plan. The proposed change of zoning would be an acceptable expansion of a commercial use, and the property would have convenient access to South Padre Island Drive which would discourage traffic from traveling through residential areas. EMERGENCY / NON - EMERGENCY: Non - Emergency DEPARTMENTAL CLEARANCES: Planning, Legal, and Planning Commission FINANCIAL IMPACT: ❑ Operating ❑ Revenue ❑ Capital Not applicable Fiscal Year: 2011- 2012 Project to Date Expenditures (CIP only) Current Year Future Years TOTALS Line Item Budget Encumbered / Expended Amount This item BALANCE Fund(s): Comments: None LIST OF SUPPORTING DOCUMENTS: 1.) Aerial Overview Map 2.) Zoning Report with Attachments 3.) Ordinance with Exhibit '4i r y; ZONING REPORT Case No.: 0912 -02 HTE No. 12- 10000028 Planning Commission Hearing Date: September 12, 2012 Applicant & Legal Description Applicant /Representative: Williams Airline Partners, Ltd./ Urban Engineering Owner: Williams Airline Partners, Ltd. Legal Description /Location: Being a 1.792 -acre tract of land out of Lot H, Wilkey Addition Unit 2, located on the north side of Williams Drive and approximately 1,200 feet west of Airline Road. Zoning Request From: "RM -3" Multifamily 3 District To: "CG -2" General Commercial District Area: 1.792 acres Purpose of Request: To allow construction of a four -story hotel. Existing Zoning and Land Uses Existing Zoning District Existing Land Use Future Land Use Site "RM -3" Multifamily 3 Vacant Medium Density Residential North "CG -2" General Commercial Commercial Commercial South "RM -3" Multifamily 3 Vacant Medium Density Residential East "RM -1" Multifamily 1 Vacant Medium Density Residential West "RS -6" Single - Family 6 Public Semi - Public Public Semi - Public & Commercial ADP, Map & Violations Area Development Plan: The subject property is located in the Southside Area Development Plan (ADP) and is planned for medium density residential use. The proposed change of zoning to the "CG -2" General Commercial District is not consistent with the adopted Future Land Use Plan. Map No.: 042035 Zoning Violations: None Transport- ation Transportation and Circulation: The subject property will have access to Williams Drive, which is a "C3" Primary Collector Street, and South Padre Island Drive (SH 358), which is an "Fl" Freeway. The subject property is approximately 1,200 feet west of Airline Road, which is an "A3" Primary- Arterial Divided Street. Street R.O.W. Street Urban Transportation Plan Type Proposed Section Existing Section Traffic Volume (2011) Williams Dr. "C3" Primary Collector 75' ROW, 50' paved 90' ROW, 26' paved 8,580 (2009 ADT) S.P.I.D. (SH 358) ( ) „F1„ Freeway /Expressway 400' ROW, varied paved width 280' ROW, 240' paved 12,222 (2011 ADT) Airline Rd. "A3" Primary- Arterial Divided 130' ROW, 79' paved 84' ROW, 65' paved 34,963 (2009) Zoning Report Case # 0912 -02 Williams Airline Partners, Ltd. Page 2 Staff Summary: Requested Zoning: The applicant is requesting a change of zoning from the "RM -3" Multifamily 3 District to the "CG -2" General Commercial District to allow construction of a four -story hotel. Hotels are allowed in both the "CN -1" Neighborhood Commercial District and "CG -2" General Commercial District, but the "CN -1" District has a height limitation of 35 feet, which would not allow a four -story building. Applicant's Development Plan: The applicant is proposing a four -story hotel on an approximately two -acre site. The subject property will have shared access to South Padre Island Drive (SH 358) and Williams Drive. Existing Land Uses & Zoning: Located to the south and east of the subject property is vacant land. Cheddar's Restaurant is north of the subject property and is zoned "CG -2" General Commercial District. The vacant land to the south is zoned "RM -3" Multifamily 3 District. The vacant land to the east is zoned "RM -1" Multifamily 1 District. West of the property is Our Lady of Perpetual Help Catholic Church, which is zoned "RS -6" Single - Family 6 District. Across Williams Drive is a single - family neighborhood and a few commercial and public uses. AICUZ: The subject property is not located in one of the Navy's Air Installation Compatibility Use Zones (AICUZ). Comprehensive Plan & Area Development Plan (ADP) Consistency: The proposed change of zoning is within the Southside Area Development Plan. The proposed development would not be consistent with the adopted Future Land Use Plan, which slates the property for a medium density residential use. Although there are inconsistencies with the adopted Future Land Use Plan, the proposed change of zoning would be consistent with elements of the Comprehensive Plan such as: 1.) Commercial service areas designed to serve local neighborhoods should be conveniently located and in harmony with the surrounding neighborhood (Comprehensive Plan, Commercial Policy Statement G). 2.) Infill should be encouraged on vacant tracts within developed areas (Comprehensive Plan, Residential Policy Statement H). 3.) Traffic hazards should be lessened by discouraging through traffic within residential areas (Comprehensive Plan, Residential Policy Statement J). Plat Status: The subject property is currently being replatted. Department Comments: • The "CG -2" District would be consistent with the zoning districts north of the subject property. • The "CG -2" District does not have a height restriction, and since there are no single- or two - family developments abutting the property, a four -story building would not be subject to setbacks based on height. • The proposed hotel will have access to a collector street which has convenient access to two arterial streets, both of which are less than a half mile from the property. There will also be shared access to South Padre Island Drive (SH 358), which is an "F1" Freeway. • The configuration of this rezoning will leave a 250 -foot buffer along Williams Drive. This buffer area would be recommended for Neighborhood Commercial zoning in the future to create compatibility with the neighborhood across Williams Drive. Zoning Report Case # 0912 -02 Williams Airline Partners, Ltd. Page 3 Planning Commission and Staff Recommendation (September 12, 2012): Approval of the change of zoning from the "RM -3" Multifamily 3 District to the "CG -2" General Commercial District. c) a Notification Number of Notices Mailed — 4 within 200' notification area; 4 outside notification area As of September 17, 2012: In Favor — 0 (inside notification area); 0 (outside notification area) In Opposition — 0 (inside notification area); 0 (outside notification area) For 0.00% in opposition. Attachments: 1. Site Map (Existing Zoning & Notice Area) K: \DevelopmentSvcs \SHARED \ZONING CASES \2012 \0912 -02 William Airline Partners, LTD \0912 -02 Report for CC, WAP (9- 12- 12).docx WILKEY AD I WILKEY PARITION G -� G MANOR TERRACE E R M - 3: O N' WILK UNIT 2 9 GWLF1NA112rppl2LINE PA „k # .F et 10 N - -7 D -3 Date Created: 8/24 /2012 Prepared By: jeremym Department of Development Services CASE: 0912 -02 2. SITE - EXISTING ZONING, NOTICE AREA & OWNERSHIP RM -1 Multifamily 1 RM -2 Multifamily 2 RM -3 Multifamily 3 ON Professional Office RM -AT Multifamily AT CN -1 Neighborhood Commercial CN -2 Neighborhood Commercial CR -1 Resort Commercial CR -2 Resort Commercial CG -1 General Commercial CG -2 General Commercial CI Intensive Commercial CBD Downtown Commercial CR -3 Resort Commercial FR Farm Rural H Historic Overlay BP Business Park IL Light Industrial IH Heavy Industrial PUD Planned Unit Dev. Overlay RS -10 Single - Family 10 RS -6 Single - Family 6 RS-4.5 Single - Family 4.5 RS -TF Two - Family RS -15 Single - Family 15 RE Residential Estate RS -TH Townhouse SP Special Permit RV Recreational Vehicle Park RMH Manufactured Home Subject Property O Owners with 200' buffer in favor 4 Owners within 200' listed on v Owners attached ownership table A in opposition SUBJECT PROPERTY l City of Corpus Christi Ordinance amending the Unified Development Code ( "UDC ") upon application by Williams Airline Partners, Ltd. ( "Owner "), by changing the UDC Zoning Map in reference to a 1.792 -acre tract of land out of Lot H, Wilkey Addition Unit 2, from the "RM -3" Multifamily 3 District to the "CG -2" General Commercial District; amending the Comprehensive Plan to account for any deviations; providing for a repealer clause, penalties, and publication. WHEREAS, the Planning Commission has forwarded to the City Council its reports and recommendations regarding the application of Williams Airline Partners, Ltd. ( "Owner "), for an amendment to the City of Corpus Christi's Unified Development Code ( "UDC ") and corresponding UDC Zoning Map; WHEREAS, with proper notice to the public, public hearings were held on Wednesday, September 12, 2012, during a meeting of the Planning Commission, and on Tuesday, October 16, 2012, during a meeting of the City Council, during which all interested persons were allowed to appear and be heard; and WHEREAS, the City Council has determined that this amendment would best serve the public health, necessity, convenience and general welfare of the City of Corpus Christi and its citizens. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF CORPUS CHRISTI, TEXAS: SECTION 1. The Unified Development Code ( "UDC ") of the City of Corpus Christi, Texas ( "City "), is amended by changing the zoning on a 1.792 -acre tract of land out of Lot H, Wilkey Addition Unit 2 (the "Property "), located on the north side of Williams Drive and approximately 1,200 feet west of Airline Road, from the "RM -3" Multifamily 3 District to the "CG -2" General Commercial District (Zoning Map No. 042035), as shown in Exhibit "A." Exhibit "A," which is a location map pertaining to the Property, is attached to and incorporated in this ordinance by reference as if fully set out herein in its entirety. SECTION 2. The official UDC Zoning Map of the City is amended to reflect changes made to the UDC by Section 1 of this ordinance. SECTION 3. The UDC and corresponding UDC Zoning Map of the City, made effective July 1, 2011, and as amended from time to time, except as changed by this ordinance, both remain in full force and effect. SECTION 4. To the extent this amendment to the UDC represents a deviation from the City's Comprehensive Plan, the Comprehensive Plan is amended to conform to the UDC, as it is amended by this ordinance. SECTION 5. All ordinances or parts of ordinances in conflict with this ordinance are hereby expressly repealed. SECTION 6. A violation of this ordinance, or requirements implemented under this ordinance, constitutes an offense punishable as provided in Article 1, Section 1.10.1, and Article 10 of the UDC. SECTION 7. Publication shall be made in the official publication of the City of Corpus Christi as required by the City Charter of the City of Corpus Christi. The foregoing ordinance was read for the first time and passed to its second reading on this the day of , 2012, by the following votes: Joe Adame David Loeb Chris Adler John E. Marez Kelley Allen Nelda Martinez Larry Elizondo, Sr. Mark Scott Priscilla Leal The foregoing ordinance was read for the second time and passed finally on this the day of , 2012, by the following votes: Joe Adame David Loeb Chris Adler John E. Marez Kelley Allen Nelda Martinez Larry Elizondo, Sr. Mark Scott Priscilla Leal PASSED AND APPROVED this the ATTEST: Armando Chapa City Secretary day of , 2012. Joe Adame Mayor Williams Airline Partners Ltd RM3 to CG2 vFinal 20120921 Page 2 of 2 WILKEY AD GG -2 WILKEY PARITION MANOR TERRACE E ON 9 GULF1NA11240b LINE PA „K # -F et 10 D -3 N - Date Created: 8/24 /2012 Prepared By: jeremym Department of Development Services CASE: 0912 -02 1. SUBJECT PROPERTY EXHIBIT A Subject Property SUBJECT PROPERTY l City of Corpus Christi AGENDA MEMORANDUM Public Hearing and First Reading for the City Council Meeting of October 16, 2012 Second Reading /Action Item for the City Council Meeting of October 23, 2012 DATE: September 17, 2012 TO: Ronald L. Olson, City Manager FROM: Mark E. Van Vleck, P.E., Interim Director, Department of Development Services MarkVV @cctexas.com (361) 826-3246 PUBLIC HEARING — CHANGE OF ZONING Arnold Brothers Properties, L.P. (Case No. 0912 -01) A Special Permit in the "IL" Light Industrial District Property Address: 5440 Ayers Street CAPTION: Case No. 0912 -01 Arnold Brothers Properties, L.P.: The applicant is requesting a Special Permit for the wholesale storage of motor oils and lubricants in the "IL" Light Industrial District, not resulting in a change of future land use. The property to be rezoned is described as being a 0.284 -acre tract of land out of Lot 6, Holly Industrial Subdivision, located on the east side of Ayers Street (SH 286 Business) and approximately 1,000 feet north of Holly Road. PURPOSE: The purpose of this item is to grant a Special Permit to allow the wholesale storage of motor oils and lubricants for an automotive parts supply business. RECOMMENDATION: Planning Commission and Staff Recommendation (September 12, 2012): Approval of the Special Permit in the "IL" Light Industrial District subject to the following four conditions: 1. ALLOWED USE: The only use authorized by this Special Permit, other than those uses allowed by right in the "IL" Light Industrial District, is the wholesale storage of motor oils and lubricants. 2. ABOVEGROUND TANKS: The property may contain up to 70 outdoor aboveground tanks for the wholesale storage of motor oil and lubricants, each tank not exceeding a capacity of 10,000 gallons. 3. FIRE DEPARTMENT APPROVAL: The aboveground storage of motor oils and lubricants by the Owner must meet all Fire Department requirements and approval of the City's Fire Marshall. 4. TIME LIMIT: This Special Permit expires one (1) year from the final approval date of this ordinance unless the property is being used by the Owner as stated in Condition 1 and in compliance with all other conditions specified in Section 2 of this ordinance. BACKGROUND AND FINDINGS: The applicant is requesting a Special Permit in the "IL" Light Industrial District to allow the wholesale storage of motor oils and lubricants in aboveground tanks. In 2009, a Special Permit was granted that allowed the owners of the property to have 70 tanks for the storage of motor oil and lubricants. The Special Permit that was granted has since expired because the Special Permit use was not established within one year. Therefore the applicant is requesting a new Special Permit. The wholesale storage of motor oils and lubricants is classified as a Heavy Industrial use and is allowed in the "IL" District only through a Special Permit. The applicant plans on placing no more than 70 storage tanks on the property, which will contain motor oil and lubricants. There are no plans to expand any of the existing structures on the remainder of the property. Each tank will hold a maximum of 10,000 gallons. The applicant plans to relocate existing storage containers from their current facility on North Broadway Street and Palo Alto Street to the subject property. The applicant will comply with spill containment regulations imposed by current laws. The Fire Department will require the applicant to meet all fire safety regulations. The Fire Department will review the type of storage tanks and their location on the property. The proposed location is acceptable, and the applicant will decide which tank model will be used. If the API 650 model is not going to be used, then the tanks must be the UL 142 model with containment. North of the subject property is vacant land, which is zoned "IL" Light Industrial District. West of the subject property is the remainder of the owner's property, which fronts on Ayers Street (SH 286 Business) and is zoned "IL" Light Industrial District. South of the subject property is a light industrial facility zoned "IL" Light Industrial District. East of the subject property is City -owned vacant land, which is zoned "IL" Light Industrial District. The property is in the vicinity of both light and heavy industrial properties. There are no residential developments around the property and therefore the storage of motor oils and lubricants would be appropriate. Granting a Special Permit would specify the storage limitations on the property and any deviation from the Special Permit would require Planning Commission and City Council action. Both the Fire Department and Technical Review Committee do not have any objections as long as the owners follow the conditions set forth in the Special Permit. ALTERNATIVES: 1. Approve a Special Permit with modified conditions; or 2. Deny the request OTHER CONSIDERATIONS: Not Applicable CONFORMITY TO CITY POLICY: Approval of the requested Special Permit is consistent with the adopted Future Land Use Plan, which slates the property for a light industrial use. Granting a Special Permit would retain the "IL" Light Industrial District rather than rezoning the property to an "I H" Heavy Industrial District to allow the wholesale storage of motor oils and lubricants. EMERGENCY / NON - EMERGENCY: Non - Emergency DEPARTMENTAL CLEARANCES: Planning and Environmental Services, Legal, and Planning Commission FINANCIAL IMPACT: ❑ Operating ❑ Revenue ❑ Capital Not applicable Fiscal Year: 2011- 2012 Project to Date Expenditures (CIP only) Current Year Future Years TOTALS Line Item Budget Encumbered / Expended Amount This item BALANCE Fund(s): Comments: None LIST OF SUPPORTING DOCUMENTS: 1. Aerial Overview Map 2. Zoning Report with Exhibits 3. Ordinance with Exhibits K: \DevelopmentSvcs \SHARED\ZONING CASES \2012 \0912 -01 Arnold Brothers Properties, LP \Council Packet \0912 -01 Agenda Memo, ABP (9-24 - 12).docx ZONING REPORT Case No.: 0912 -01 HTE No. 12- 10000027 Planning Commission Hearing Date: September 12, 2012 Applicant & Legal Description Applicant /Representative: Arnold Brothers Properties, L.P./ Jonathan M. Arnold Owner: Arnold Brothers Properties, L.P. Legal Description /Location: Being a 0.284 -acre tract of land out of Lot 6, Holly Industrial Subdivision, located on the east side of Ayers Street (SH 286 Business) and approximately 1,000 feet north of Holly Road. Zoning Request From: "IL" Light Industrial District To: "IL/SP" Light Industrial District with a Special Permit Area: 0.284 acres Purpose of Request: To allow the storage of motor oils and lubricants in aboveground storage containers. Existing Zoning and Land Uses Existing Zoning District Existing Land Use Future Land Use Site "IL" Light Industrial Vacant Light Industrial North "IL" Light Industrial Vacant Light Industrial South "IL" Light Industrial Light Industrial Light Industrial East "IL" Light Industrial Vacant Light Industrial & Public Semi - Public West "IL" Light Industrial Light Industrial Light Industrial ADP, Map & Violations Area Development Plan: The subject property is located in the Southside Area Development Plan (ADP) and is planned for a light industrial use. The proposed change of zoning to the "IL/SP" Light Industrial District with a Special Permit is consistent with the adopted Future Land Use Plan. Map No.: 048038 Zoning Violations: None Transpo- rtation Transportation and Circulation: The subject property is a portion of a larger property which has 205 feet of frontage on Ayers Street (SH 286 Business), which is an "Al" Minor Arterial Undivided Street. Ayers Street is currently under construction and will be built to its proposed width. Street R.O.W. Street Urban Transportation Plan Type Proposed Section Existing Section Traffic Volume Ayers St. (SH 286 Business) "Al" Minor Arterial Undivided 95' ROW, 64' paved 100' ROW, 50' paved 10,097 (2010 ADD Staff Summary: Requested Zoning: The applicant is requesting a Special Permit in the "IL" Light Industrial District to allow the aboveground storage of motor oils and lubricants. In 2009, a Special Permit was granted that allowed the owners of the property to have 70 tanks for the storage of motor oil Zoning Report Case #0912 -01 Arnold Brothers Properties, L.P. Page 2 and lubricants. The Special Permit that was granted has since expired because the Special Permit use was not established within one year. Therefore the applicant is requesting a new Special Permit. The wholesale storage of motor oils and lubricants is classified as a Heavy Industrial use and is allowed in the "IL" District through a Special Permit. Applicant's Development Plan: The applicant plans on placing no more than 70 storage tanks on the property, which will contain motor oil and lubricants. There are no plans to expand any of the existing structures on the remainder of the property. Each tank will hold a maximum of 10,000 gallons. The applicant plans to relocate existing storage containers from their current facility on North Broadway Street and Palo Alto Street to the subject property. The applicant will comply with spill containment regulations imposed by current laws. The Fire Department will require the applicant to meet all fire safety regulations. The Fire Department will review the type of storage tanks and their location on the property. The proposed location is acceptable, and the applicant will decide which tank model will be used. If the API 650 model is not going to be used, then the tanks must be the UL 142 model with containment. Existing Land Uses & Zoning: North of the subject property is vacant land, which is zoned "IL" Light Industrial District. West of the subject property is the remainder of the owner's property, which fronts on Ayers Street (SH 286 Business) and is zoned "IL" Light Industrial District. South of the subject property is a light industrial facility zoned "IL" Light Industrial District. East of the subject property is City -owned vacant land, which is zoned "IL" Light Industrial District. AICUZ: The subject property is not located in one of the Navy's Air Installation Compatibility Use Zones (AICUZ). Comprehensive Plan & Area Development Plan (ADP) Consistency: The proposed Special Permit is consistent with the adopted Future Land Use Plan, which slates the subject property for light industrial uses. Additionally, the following pertinent elements of the Comprehensive Plan should be considered: • Provide adequate and suitably -zoned land for both light and heavy industries (Comprehensive Plan, Industrial Land Use Policy A). • An active program should be developed to retain and expand existing industry (Comprehensive Plan, Industrial Land Use Policy B). Plat Status: The subject property is currently platted. Department Comments: • A Special Permit for the storage of motor oils and lubricants would be appropriate for this location, which is surrounded by other light and heavy industrial uses. • The applicant has met with the Fire Department and will comply with all safety regulations imposed by the Fire and Building Codes. • A Special Permit would specify the storage limitations and any changes to the Special Permit conditions would be subject to Planning Commission and City Council approval. • Other than Fire Department regulations, the Technical Review Committee has no objections to the proposed Special Permit. Zoning Report Case #0912 -01 Arnold Brothers Properties, LP Page 3 Planninq Commission and Staff Recommendation (September 12, 2012): Approval of the Special Permit in the "IL" Light Industrial District subject to the following four conditions: 1. ALLOWED USE: The only use authorized by this Special Permit, other than those uses allowed by right in the "IL" Light Industrial District, is the wholesale storage of motor oils and lubricants. 2. ABOVEGROUND TANKS: The property may contain up to 70 outdoor aboveground tanks for the wholesale storage of motor oil and lubricants, each tank not exceeding a capacity of 10,000 gallons. 3. FIRE DEPARTMENT APPROVAL: The aboveground storage of motor oils and lubricants by the Owner must meet all Fire Department requirements and approval of the City's Fire Marshall. 4. TIME LIMIT: This Special Permit expires one (1) year from the final approval date of this ordinance unless the property is being used by the Owner as stated in Condition 1 and in compliance with all other conditions specified in Section 2 of this ordinance. c) a Notification Number of Notices Mailed — 5 within 200' notification area; 3 outside notification area As of September 17, 2012: In Favor — 0 (inside notification area); 0 (outside notification area) In Opposition — 0 (inside notification area); 0 (outside notification area) For 0.00% in opposition. Attachments: 1. Site Map (Existing Zoning & Notice Area) SERVICE .E TER TR- EXEMPT CI, GG -2 B HEMIAN OLONY LANDS s Date Created: 8/23 /2012 Prepared By: jeremym Department of Development Services CASE: 0912 -01 2. SITE - EXISTING ZONING, NOTICE AREA & OWNERSHIP RM -1 Multifamily 1 RM -2 Multifamily 2 RM -3 Multifamily 3 ON Professional Office RM -AT Multifamily AT CN -1 Neighborhood Commercial CN -2 Neighborhood Commercial CR -1 Resort Commercial CR -2 Resort Commercial CG -1 General Commercial CG -2 General Commercial CI Intensive Commercial CBD Downtown Commercial CR -3 Resort Commercial FR Farm Rural H Historic Overlay BP Business Park IL Light Industrial IH Heavy Industrial PUD Planned Unit Dev. Overlay RS -10 Single - Family 10 RS -6 Single - Family 6 RS-4.5 Single - Family 4.5 RS -TF Two - Family RS -15 Single - Family 15 RE Residential Estate RS -TH Townhouse SP Special Permit RV Recreational Vehicle Park RMH Manufactured Home Subject Property O Owners with 200' buffer in favor 4 Owners within 200' listed on v Owners attached ownership table A in opposition Ordinance amending the Unified Development Code ( "UDC ") upon application by Arnold Brothers Properties, L.P. ( "Owner "), by changing the UDC Zoning Map in reference to a 0.284 -acre tract of land out of Lot 6, Holly Industrial Subdivision, by granting 'a Special Permit to the Owner in the "IL" Light Industrial District; amending the Comprehensive Plan to account for any deviations; and providing for a repealer clause, penalties, and publication. WHEREAS, the Planning Commission has forwarded to the City Council its reports and recommendations regarding the application of Arnold Brothers Properties, L.P. ( "Owner "), for an amendment to the City of Corpus Christi's Unified Development Code ( "UDC ") and corresponding UDC Zoning Map; WHEREAS, with proper notice to the public, public hearings were held on Wednesday, September 12, 2012, during a meeting of the Planning Commission, and on Tuesday, October 16, 2012, during a meeting of the City Council, during which all interested persons were allowed to appear and be heard; and WHEREAS, the City Council has determined that this amendment would best serve the public health, necessity, convenience and general welfare of the City of Corpus Christi and its citizens. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF CORPUS CHRISTI, TEXAS: SECTION 1. The Unified Development Code ( "UDC ") of the City of Corpus Christi, Texas ( "City "), is amended by granting a Special Permit to Arnold Brothers Properties, L.P. ( "Owner ") for the wholesale storage of motor oils and lubricants on a 0.284 -acre tract of land out of Lot 6, Holly Industrial Subdivision (the "Property "), located on the east side of Ayers Street (SH 286 Business) and approximately 1,000 feet north of Holly Road (Zoning Map No. 048038), as shown in Exhibit "A." Exhibit "A," which is a location map pertaining to the Property, and Exhibit "B," which is a site plan pertaining to the Property, are attached to and incorporated in this ordinance by reference as if fully set out herein in their entirety. SECTION 2. The Special Permit granted in Section 1 of this ordinance is subject to the following conditions: 1. ALLOWED USE: The only use authorized by this Special Permit, other than those uses allowed by right in the "IL" Light Industrial District, is the wholesale storage of motor oils and lubricants. 2. ABOVEGROUND TANKS: The property may contain up to 70 outdoor aboveground tanks for the wholesale storage of motor oil and lubricants, each tank not exceeding a capacity of 10,000 gallons. 3. FIRE DEPARTMENT APPROVAL: The aboveground storage of motor oils and lubricants by the Qwner must meet all Fire Department requirements and approval of the City's Fire Marshall. 4. TIME LIMIT: This Special Permit expires one (1) year from the final approval date of this ordinance unless'the property is being used by the Owner as stated in Condition 1 and in compliance with all other conditions specified in Section 2 of this ordinance. SECTION 3. The official UDC Zoning Map of the City is amended to reflect changes made to the UDC by Section 1 of this ordinance. SECTION 4. The UDC and corresponding UDC Zoning Map of the City, made effective July 1, 2011, and as amended from time to time, except as changed by this ordinance, both remain in full force and effect. SECTION 5. To the extent this amendment to the UDC represents a deviation from the City's Comprehensive Plan, the Comprehensive Plan is amended to conform to the UDC, as it is amended by this ordinance. SECTION 6. All ordinances or parts of ordinances in conflict with this ordinance are hereby expressly repealed. SECTION 7. A violation of this ordinance, or requirements implemented under this ordinance, constitutes an offense punishable as provided in Article 1, Section 1.10.1, and Article 10 of the UDC. SECTION 8. 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. The foregoing ordinance was read for the first time and passed to its second reading on this the day of , 2012, by the following votes: Joe Adame David Loeb Chris Adler John E. Marez Kelley Allen Nelda Martinez Larry Elizondo, Sr. Mark Scott Priscilla Leal Arnold Brothers Special Permit Ord vFinal 20120921 Page 2 of 3 The foregoing ordinance was read for the second time and passed finally on this the day of , 2012, by the following votes: Joe Adame David Loeb Chris Adler John E. Marez Kelley Allen Nelda Martinez Larry Elizondo, Sr. Mark Scott Priscilla Leal PASSED AND APPROVED this the day of , 2012. ATTEST: Armando Chapa City Secretary Joe Adame Mayor Arnold Brothers Special Permit Ord vFinal 20120921 Page 3 of 3 GG -2 18 17 SERVICE �-E TER TR- EXEMPT C1 S .414r 3 SUBJECT PROPERTY B I' L HEMIAN COLONY LANDS 5 2 2 400 • Feet 800 CASE: 0912 -01 1. SUBJECT PROPERTY Subject Property EXHIBIT A Date Created: 8/23 /2012 Prepared By: jeremym Department of Development Services r � O O 0 m I 0 0 r D 2J m Z N _ O Z Z 0 D Z C � � -1 O T)- rim N C CO /D O \ (/) Cl) 0 O Z AYERS S . (SH 286 7.21 20' B.L 0 ONIG1If18 ONI1SIX3 N29'00'00 "E_ aJA.) DD z 15' m 3- S29'00'00"W 95.0' ONla1lfl8 ONIISIXI v -ZZ 101 LOT LINE 20' Y.R L 1 IT- II F 0 S 0 D.E.�j CD C3 C O t! j Z D r CITY of CORPUS CHRISTI 2.401 ACRES w EXHIBIT B LOT 1, BLOCK 1 SERVICE CENTER TRACT 0 0^ 0 Z Z Z D C mm›, DZX gm D G7 Z�O.Z1 m— m.. m•• O z �m W� >D D > n z r2 c.) O�mZ ?O o Dm oo m O D • m O O �z T mr�* m 'S1V0 OOOOI NEV AGENDA MEMORANDUM Public Hearing and First Reading for the City Council Meeting of October 16, 2012 Second Reading /Action Item for the City Council Meeting of October 23, 2012 DATE: TO: FROM: September 17, 2012 Ronald L. Olson, City Manager Mark E. Van Vleck, P.E., Interim Director, Department of Development Services MarkVV @cctexas.com (361) 826-3246 PUBLIC HEARING — CHANGE OF ZONING Starplex Operating, L.L.C. (Case No. 0912 -03) Change from "IL" Light Industrial District to "CG -2" General Commercial District Property Address: 5218 Silverberry Drive CAPTION: Case No. 0912 -03 Starplex Operating, L.L.C.: A change of zoning from the "IL" Light Industrial District to the "CG -2" General Commercial District, not resulting in a change of future land use. The property to be rezoned is described as being a 7.7 -acre tract of land out of Lot 11, Block 3, S.P.I.C.E. Plaza, located along the east side of Silverberry Drive and along the south side of South Padre Island Drive (SH 358). PURPOSE: The purpose of this item is to rezone property to bring a non - conforming use into compliance with the current zoning regulations. RECOMMENDATION: Planning Commission and Staff Recommendation (September 12, 2012): Approval of the change of zoning from the "IL" Light Industrial District to the "CG -2" General Commercial District. BACKGROUND AND FINDINGS: The applicant, who operates Starplex Cinema, is requesting a change of zoning from the "IL" Light Industrial District to the "CG -2" General Commercial District in order to conform to the current Unified Development Code (UDC) zoning regulations. The eastern half of the property is zoned "CG -2" General Commercial District and the western half is zoned "IL" Light Industrial District with the movie theater split between the two districts. A movie theater is classified as an indoor recreational use, which is no longer allowed in the "IL" District. The owner is requesting that the whole property be zoned "CG -2" District to conform to the current regulations of the UDC. The Starplex Cinema has no plans for expansion, but in the event of destruction caused by natural or accidental events, Starplex wishes to eliminate any potential issues with reconstruction. North of the subject property are two restaurants, which are zoned "IL" Light Industrial District, and South Padre Island Drive (SH 358). East of the subject property is the remainder of the movie theater property, which is zoned "CG -2" General Commercial District. West across Silverberry Drive is a Wal -Mart Super Center, which is zoned "IL" Light Industrial District. South of the subject property is vacant land zoned "CG -2" General Commercial District. Approval of the proposed rezoning would be consistent with the adopted Future Land Use Plan and would help bring a nonconforming use into compliance. ALTERNATIVES: 1. Approve an intermediate zoning district or Special Permit; or 2. Deny the request. OTHER CONSIDERATIONS: Not Applicable CONFORMITY TO CITY POLICY: The proposed change of zoning is consistent with both the adopted Future Land Use Plan and portions of the Comprehensive Plan. This rezoning would help implement the Future Land Use Plan. EMERGENCY / NON - EMERGENCY: Non - Emergency DEPARTMENTAL CLEARANCES: Planning and Environmental Services, Legal, and Planning Commission FINANCIAL IMPACT: ❑ Operating ❑ Revenue ❑ Capital Not applicable Fiscal Year: 2011- 2012 Project to Date Expenditures (CIP only) Current Year Future Years TOTALS Line Item Budget Encumbered / Expended Amount This item BALANCE Fund(s): Comments: None LIST OF SUPPORTING DOCUMENTS: 1.) Aerial Overview Map 2.) Zoning Report with Attachments 3.) Ordinance with Exhibit ZONING REPORT Case No.: 0912 -03 HTE No. 12- 10000029 Planning Commission Hearing Date: September 12, 2012 Applicant & Legal Description Applicant /Representative: Starplex Operating, L.L.C./ John D. Bell Owner: STORE SPE Starplex, LLC Legal Description /Location: Being a 7.7 -acre tract of land out of Lot 11, Block 3, S.P.I.C.E. Plaza, located along the east side of Silverberry Drive and along the south side of South Padre Island Drive (SH 358). Zoning Request From: "IL" Light Industrial District To: "CG -2" General Commercial District Area: 7.7 acres Purpose of Request: To bring a non - conforming use into compliance with the current zoning regulations. Existing Zoning and Land Uses Existing Zoning District Existing Land Use Future Land Use Site "IL" Light Industrial Commercial Commercial North "IL" Light Industrial & "ON" Office Commercial & Public Semi - Public Commercial & Public Semi - Public South "CG -2" General Commercial Vacant Commercial East "CG -2" General Commercial Commercial Commercial West "IL" Light Industrial Commercial Commercial ADP, Map & Violations Area Development Plan: The subject property is located in the Westside Area Development Plan (ADP) and is planned for a commercial use. The proposed change in zoning to the "CG -2" General Commercial District is consistent with the adopted Future Land Use Plan. Map No.: 048039, 048038, 049038, 049039 Zoning Violations: None Transpor- tation Transportation and Circulation: The subject property has 30 feet of frontage on South Padre Island Drive (SH 358), an "Fl" Freeway /Expressway, and 680 feet of frontage on Silverberry Drive, which is a "C1" Minor Residential Collector street. Street R.O.W. Street Urban Transportation Plan Type Proposed Section Existing Section Traffic Volume S.P.I.D. (SH 358) "Fl" Freeway /Expressway 400' paved width varies 307' ROW, 275' paved 4,997 o Eastbound (2009 und Silverberry Dr. "C1" Minor Residential Collector 70' ROW, 48' paved 62' ROW, 48' paved Not Available Staff Summary: Requested Zoning: The applicant, who operates Starplex Cinema, is requesting a change of zoning from the "IL" Light Industrial District to the "CG -2" General Commercial District in order to conform to the current Unified Development Code (UDC) zoning regulations. The eastern half of the property is zoned "CG -2" General Commercial District and the western half is zoned "IL" Zoning Report Case #0912 -03 Starplex Operating Page 2 Light Industrial District with the movie theater split between the two districts. A movie theater is classified as an indoor recreational use, which is no longer allowed in the "IL" District. The owner is requesting that the whole property be zoned "CG -2" District to conform to the current regulations of the UDC. The Starplex Cinema has no plans for expansion, but in the event of destruction caused by natural or accidental events, Starplex wishes to eliminate any potential issues with reconstruction. Existing Land Uses: North of the subject property are two restaurants, which are zoned "IL" Light Industrial District, and South Padre Island Drive (SH 358). East of the subject property is the remainder of the movie theater property, which is zoned "CG -2" General Commercial District. West across Silverberry Drive is a Wal -Mart Super Center, which is zoned "IL" Light Industrial District. South of the subject property is vacant land zoned "CG -2" General Commercial District. AICUZ: The subject property is not located in one of the Navy's Air Installation Compatibility Use Zones (AICUZ). Comprehensive Plan & Area Development Plan (ADP) Consistency: The proposed change of zoning is consistent with the adopted Future Land Use Plan, which slates the property for a commercial use. The Comprehensive Plan also states that the City should evaluate zoning districts where existing zoning should be changed to implement the Land Use Plan (Westside Area Development Plan, Policy Statement C.3). Plat Status: The subject property is currently platted. Department Comments: • Approval of the proposed rezoning would be consistent with the adopted Future Land Use Plan and would help bring a nonconforming use into compliance. • The rezoning will help implement the Future Land Use Plan. Planning Commission and Staff Recommendation (September 12, 2012): Approval of the change of zoning from the "IL" Light Industrial District to the "CG -2" General Commercial District. c) a Notification Number of Notices Mailed — 8 within 200' notification area; 4 outside notification area As of September 17, 2012: In Favor — 0 (inside notification area); 0 (outside notification area) In Opposition — 0 (inside notification area); 0 (outside notification area) For 0.00% in opposition. Attachments: 1. Site Map (Existing Zoning & Notice Area) 2. Existing Site Plan K : \DevelopmentSvcs \SHARED\ZONING CASES \2012 \0912 -03 Starplex Operating \0912 -03, Report for CC, Starplex Operating.docx TWO FOUNT; NS UNIT 1 / TRACT NO. 2 ?$ NUECE CO HLTH WLFR° & SFTY, s+e T ACHERS COEAIT UNIO se o 5 IL 4 0 SPICE PLAZ SUBJECT PROPERTY 800 Feet XINGTON CE of De Date Created: 8/27 /2012 epared By: jeremym lopment Services CASE: 0912 -03 2. SITE - EXISTING ZONING, NOTICE AREA & OWNERSHIP RM -1 Multifamily 1 RM -2 Multifamily 2 RM -3 Multifamily 3 ON Professional Office RM -AT Multifamily AT CN -1 Neighborhood Commercial CN -2 Neighborhood Commercial CR -1 CR -2 CG -1 CG -2 CI CBD CR -3 FR H BP Resort Commercial Resort Commercial General Commercial General Commercial Intensive Commercial Downtown Commercial Resort Commercial Farm Rural Historic Overlay Business Park IL Light Industrial IH Heavy Industrial PUD Planned Unit Dev. Overlay RS -10 Single - Family 10 RS -6 Single - Family 6 RS-4.5 Single - Family 4.5 RS -TF Two - Family RS -15 Single - Family 15 RE Residential Estate RS -TH Townhouse SP Special Permit RV Recreational Vehicle Park RMH Manufactured Home Subject Property O Owners with 200' buffer in favor 4 Owners within 200' listed on V Owners attached ownership table A in opposition -BEAR LOCATION MAP „Ito irrrt trrrr g i aYpo a; qY6 i 9 fltjjaal� k it d■ t a 1 a AiVtio I- O aa 001•79. aY.a• r ii I R� littl15-1+140$111 01-I�,a -0 011111 1IIII10 l' IIf = sH lIZIT A411 ]j0 OIIIHII'04111 / 081111114 AMU PAWN iy 9t is it . �fi p • to a , 1 B� U p fnm I Ordinance amending the Unified Development Code ( "UDC ") upon application by Starplex Operating, L.L.C., acting on behalf of STORE SPE Starplex, LLC ( "Owner "), by changing the UDC Zoning Map in reference to a 7.7 -acre tract of land out of Lot 11, Block 3, S.P.I.C.E. Plaza, from the "IL" Light Industrial District to the "CG -2" General Commercial District; amending the Comprehensive Plan to account for any deviations; providing for a repealer clause, penalties, and publication. WHEREAS, the Planning Commission has forwarded to the City Council its reports and recommendations regarding the application of Starplex Operating, L.L.C., acting on behalf of STORE SPE Starplex, LLC ( "Owner "), for an amendment to the City of Corpus Christi's Unified Development Code ( "UDC ") and corresponding UDC Zoning Map; WHEREAS, with proper notice to the public, public hearings were held on Wednesday, September 12, 2012, during a meeting of the Planning Commission, and on Tuesday, October 16, 2012, during a meeting of the City Council, during which all interested persons were allowed to appear and be heard; and WHEREAS, the City Council has determined that this amendment would best serve the public health, necessity, convenience and general welfare of the City of Corpus Christi and its citizens. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF CORPUS CHRISTI, TEXAS: SECTION 1. T he Unified Development Code ( "UDC ") of the City of Corpus Christi, Texas ( "City "), is amended by changing the zoning on a 7.7 -acre tract of land out of Lot 11, Block 3, S.P.I.C.E. Plaza (the "Property "), located along the east side of Silverberry Drive and along the south side of South Padre Island Drive (SH 358), from the "IL" Light Industrial District to the "CG -2" General Commercial District (Zoning Map Nos. 048039, 048038, 049038, 049039), as shown in Exhibit "A." Exhibit "A," which is a location map pertaining to the Property, is attached to and incorporated in this ordinance by reference as if fully set out herein in its entirety. SECTION 2. The official UDC Zoning Map of the City is amended to reflect changes made to the UDC by Section 1 of this ordinance. SECTION 3. The UDC and corresponding UDC Zoning Map of the City, made effective. July 1, 2011, and as amended from time to time, except as changed by this ordinance, both remain in full force and effect. SECTION 4. To the extent this amendment to the UDC represents a deviation from the City's Comprehensive Plan, the Comprehensive Plan is amended to conform to the UDC, as it is amended by this ordinance. SECTION 5. All ordinances or parts of ordinances in conflict with this ordinance are hereby expressly repealed. SECTION 6. A violation of this ordinance, or requirements implemented under this ordinance, constitutes an offense punishable as provided in Article 1, Section 1.10.1, and Article 10 of the UDC. SECTION 7. Publication shall be made in the official publication of the City of Corpus Christi as required by the City Charter of the City of Corpus Christi. The foregoing ordinance was read for the first time and passed to its second reading on this the day of , 2012, by the following votes: Joe Adame David Loeb Chris Adler John E. Marez Kelley Allen Nelda Martinez Larry Elizondo, Sr. Mark Scott Priscilla Leal The foregoing ordinance was read for the second time and passed finally on this the day of , 2012, by the following votes: Joe Adame David Loeb Chris Adler John E. Marez Kelley Allen Nelda Martinez Larry Elizondo, Sr. Mark Scott Priscilla Leal PASSED AND APPROVED this the ATTEST: Armando Chapa City Secretary day of ,2012. Joe Adame Mayor Starplex Operating LLC Rezoning vFinai 20120921 Page 2 of 2 7W1? FOUNTd cst_-ECE 4`46, 3 E� /4. NS UNIT 1 TRACT No. 2 CO HLTH WLFR & SFTY- ACHERS CQEN IT UNIO SPICE PLAZA SUBJECT PROPERTY 800 Feet Date Created: 8/27 /2012 LEXINGTON CE i ' Prepared By: jeremym Department of Mt, - lopment Services CASE: 0912 -03 1. SUBJECT PROPERTY Subject Property EXHIBIT A LOCATION MAP 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 MANAGEMENT AGREEMENT FOR THE AMERICAN BANK CENTER BETWEEN CITY OF CORPUS CHRISTI AND SMG Page 1 of 44 SMG Management Agmt 10 -11 -2012 MANAGEMENT AGREEMENT THIS 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." II. The Operator is an organization whose principals have substantial experience and expertise in the management, operation, and marketing of public assembly facilities. III. 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 SMG'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 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. 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 Page 2 of 44 SMG Management Agmt 10 -11 -2012 Arena, 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. Pursuant to the Management Agreement, the City terminated the Management Agreement that was effective August 1, 2009 and authorized July 21, 2009 by City Council, with said termination effective , 2013. VIII. 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 beverage services at the Facility. The Food and Beverage Contract expires July 31, 2014 unless sooner terminated as a result of the termination of the Management Agreement under the provisions of the Management Agreement by providing no more than ninety (90) days' notice to Operator. IX. It is the City's intention that the Facility be operated in a First -Class and fiscally responsible manner with the objectives of offering 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: Page 3 of 44 SMG Management Agmt 10 -11 -2012 AGREEMENT ARTICLE 1 DEFINITIO NS 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 of which 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. Page 4 of 44 SMG Management Agmt 10 -11 -2012 "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 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" means the mutually agreed to customer satisfaction rating as measured by the results of a combination of "secret shopper surveys" and customer satisfaction surveys that shall be conducted by Operator and the City (or, in the case of the City, their designee), The rating shall be the average of the customer satisfaction ratings for the following categories of customers: (i) attendees of Events held at the Facility; (ii) suite holders and premium suite clients; and (iii) the Major Users of the American Bank Center. The City and Operator shall agree on forms of survey /questionnaire, survey content, and the events at which the surveys shall be issued. The City (or designee) shall be responsible for initiating the secret shopper surveys and Operator and the City (or designee) shall be responsible for distributing and collecting the customer satisfaction surveys following designated Events, and providing to the City copies of the surveys, together with a summary tabulation of the ratings of each survey. Operator shall be considered to have met the incentive eligibility criteria if, based on all responses received during the Fiscal Year from the customers, the aggregate average customer satisfaction score is better than "7.5" on a scale of "0" to "10." "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. Page 5 of 44 SMG Management Agmt 10 -11 -2012 "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 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" means the mutually agreed to building quality and safety rating as measured by a (frequency) performance assessment conducted by the City. The City and Operator shall agree on the performance assessment form, the assessment content, and the frequency at which the assessment shall be conducted. Operator shall be considered to have met the incentive eligibility criteria if, based on all assessments conducted during the Fiscal Year, the aggregate average score is better than "8.0" on a scale of "0" to "10." Page 6 of 44 SMG Management Agmt 10 -11 -2012 "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 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 /Loss for the rolling three (3) year period immediately preceding the current contract year. "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, and providing food and beverage services, 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/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. Page 7 of 44 SMG Management Agmt 10 -11 -2012 "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 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 pay Operator immediately following their Catering event based on the Outside Catering Agreement with that Outside Caterer and the Operator. Page 8 of 44 SMG Management Agmt 10 -11 -2012 "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" 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. "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 Page 9 of 44 SMG Management Agmt 10 -11 -2012 Facility. 2.3 Exclusion from Exclusive Rights. 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 , 2013, which is the date following the effective date of termination of the previous Management Agreement that was effective August 1, 2009 and authorized July 21, 2009 by City Council, (the "Effective Date ") and ends on the last day of the fifth (5lh) 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 RESPONSIBILITIES 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 3.9, no use of the Facilities shall be permitted without a Page 10 of 44 SMG Management Agmt 10 -11 -2012 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 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); Page 11 of 44 SMG Management Agmt 10 -11 -2012 (vii) 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); (viii) 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); (ix) 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. (x) Manage 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. (xi) 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; (xii) Plan, coordinate, and administer operation of the Facility and continue to identify, select, and train the Facility's staff; (xiii) 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; (xiv) Coordinate the work of all parties performing work in connection with the operating of the Facility; (xv) 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; (xvi) 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; (xvii) Devise and implement procedures (including preventive and predictive Page 12 of 44 SMG Management Agmt 10 -11 -2012 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 (xviii) 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; (xix) 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; (xx) 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; (xxi) 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; (xxii) Manage the current 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 (xxiii) 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 Page 13 of 44 SMG Management Agmt 10 -11 -2012 performance of the Facility. (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. 3.4 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 Page 14 of 44 SMG Management Agmt 10 -11 -2012 have parties other than Operator negotiate contracts for naming rights related to the Facility. Operator shall, 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 (i) 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 (iii) 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 SMG Management Agmt 10 -11 -2012 Page 15 of 44 RECORDS, ACCOUNTS AND REPORTS 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 Fund 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 furnish 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, Page 16 of 44 SMG Management Agmt 10 -11 -2012 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 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. Page 17 of 44 SMG Management Agmt 10 -11 -2012 ARTICLE 5 FUNDS AND ACCOUNTS 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. If at 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 month. (c) 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 insufficient 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 Page 18 of 44 SMG Management Agmt 10 -11 -2012 in fully secured demand deposit accounts or may be invested in accordance with guidelines provided by the City from time to time. 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 pay to the City, no later than December 31, 2012, the sum of Two Hundred Fifty Thousand Dollars ($250,000.00) ( "SMG Capital Contribution "), 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. 6.2 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 Page 19 of 44 SMG Management Agmt 10 -11 -2012 entered into by Operator requiring the consent of the City under this Agreement shall contain an express 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: (i) Final approval of menu items, portions and pricing, that is competitive in the marketplace. (ii) 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. (iii) Require Operator and Concessionaire to comply with all governmental rules and regulations, including City recycling and sustainability issues, as well as City approved MBE/WBE/DBE directives and goals. (iv) 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. (v) 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 or inactions. 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., 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 Page 20 of 44 SMG Management Agmt 10 -11 -2012 expiration of the Term without any penalty. 6.7 Transactions 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 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 terms 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. 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 Page 21 of 44 SMG Management Agmt 10 -11 -2012 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 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 of Budget. 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% 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 ovenuns 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 Page 22 of 44 SMG Management Agmt 10 -11 -2012 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 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 part 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 is required 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 tax 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. Page 23 of 44 SMG Management Agmt 10 -11 -2012 (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 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 (which may include affiliates of Operator) 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 24 of 44 SMG Management Agmt 10 -11 -2012 b. Operator and /or its designated Concessionaire 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 an Operating Expense. c. Alcoholic beverages may not be served at any Event; (i) If the Licensee desires that no alcoholic beverages be served at the Event; or (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 hereby granted the Exclusive Right to provide Catering services at the Facilities; however, Catering services provided for Events held at the Convention Center may be provided by any Outside Caterer approved by Operator, 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 Convention Center 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. a. Catering by Outside Caterers at the Convention Center shall be on a single event basis, and Outside Caterers servicing multiple Events will enter into an Outside Catering Agreement for each Event. Outside Caterers will be allowed to use the old catering kitchen located in the Convention Center, so long as it is available for use, and their use of any equipment belonging to the City is to be addressed in the Outside Catering Agreement. b. Operator will facilitate the use of Outside Caterers at the Convention Center, which may include, but is not limited to the following: (i) the preparation of a standard Outside Catering Agreement to be used by Operator; (ii) obtaining of certificate(s) of insurance from Outside Caterers; (iii) arranging for use of City -owned equipment if desired by an Outside Caterer and addressed in the Outside Catering Agreement; (iv) inspecting the old catering kitchen before and after an Event when it is used by an Outside Caterer; and Page 25 of 44 SMG Management Agmt 10 -11 -2012 caterer. (v) collecting and accounting for equipment rental and catering fees, which will be turned over to Operator after each Event. c. With regard to Catered Events at the Facilities, Operator will be the "default" 6B.5 Duties of Operator. d. 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. e. 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. f Unless otherwise agreed between the parties, Operator, as an Operating Expense, shall procure and maintain during the Term of this Agreement all appropriate licenses and 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. g. 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. h. 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. i. Operator, as an Operating Expense, shall hire all employees reasonably necessary to 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 not discriminate against any employee or applicant for employment because of 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 and agrees that a successful Page 26 of 44 SMG Management Agmt 10 -11 -2012 claim by any employee or applicant under any law or ordinance specified in this Article shall not be considered a breach or default by Operator under this Agreement. J. Operator, as an Operating Expense, 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. k. Operator, as an Operating Expense, 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 an Operating Expense, shall provide all uniforms for its employees. 1. Operator, as an Operating Expense, shall provide sufficient managerial and customer service personnel to provide first class Foodservices at the Facilities. m. Operator shall keep all records relating to the Foodservices on file for a period of three (3) 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, Operating Expenses, 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. n. 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. o. 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. p. 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 Operating Expenses and to maximize Gross Receipts, while maintaining a level of service that is satisfactory to the City. q. As an Operating Expenses, 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 an Operating Cost. Page 27 of 44 SMG Management Agmt 10 -11 -2012 r. 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; (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 Operating Expenses and advise the City if projected Operating Expenses 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 Operating Expenses. Operator shall have the right Page 28 of 44 SMG Management Agmt 10 -11 -2012 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.6 Compliance with the Law. Operator shall comply with all applicable laws, rules, regulations, ordinances relating to the use and operation of the Foodservices 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, or 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.7 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. 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 1 /12th 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 Page 29 of 44 SMG Management Agmt 10 -11 -2012 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 18.8% 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); and 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 does not surpass the Net Operating Income /Loss Benchmark, 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. 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) 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; (e) Excess Liability Insurance. At least $9,000,000 of excess liability on a per occurrence basis and $9,000,000 aggregate basis; Page 30 of 44 SMG Management Agmt 10 -11 -2012 (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. 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 HOLD HARMLESS. Operator, its officers, agents, and employees ( "Indemnitor ") shall indemnify and hold the City of Corpus Christi, Page 31 of 44 SMG Management Agmt 10 -11 -2012 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 of 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 at 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 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 indemnity 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 Page 32 of 44 SMG Management Agmt 10 -11 -2012 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 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. Page 33 of 44 SMG Management Agmt 10 -11 -2012 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 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. ARTICLE 11 BREACH 11.1 Breach. Each of the following shall constitute a breach under this Agreement: (i) 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 party; (ii) 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 Page 34 of 44 SMG Management Agmt 10 -11 -2012 continues to pursue the cure of the breach and actually cures the same within sixty (60) days following such notice. (iii) Interest on Delinquent Payments. Interest shall accrue on any sums not paid when due in accordance with the Prompt Payment Act. (iv) Non - Curable Material Breach by Operator. Each of the following shall constitute a non - curable breach of Operator under this Agreement: (v) 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 (vi) 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 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 (vii) 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 Page 35 of 44 SMG Management Agmt 10 -11 -2012 (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: (i) The right to cure, at the breaching party's cost and expense, any breach; \ (ii) The right to sue to collect any sums not paid when due, together with interest accrued thereon as provided in Section 11.2; (iii) 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; (iv) The right to terminate this Agreement; or (v) The right to seek specific performance of the breached obligation. ARTICLE 12 MISCELLANEOUS 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: With copy to: 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 Mr. Armando Chapa Page 36 of 44 SMG Management Agmt 10 -11 -2012 If to Operator: With copy to: 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 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, Pennsylvania19428 Telephone: 610 - 729 -7900 Fax: 610 - 729 -1590 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 requiring 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 Page 37 of 44 SMG Management Agmt 10 -11 -2012 "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 and 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. (I) 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 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 Page 38 of 44 SMG Management Agmt 10 -11 -2012 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. 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 Page 39 of 44 SMG Management Agmt 10 -11 -2012 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 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 Page 40 of 44 SMG Management Agmt 10 -11 -2012 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 events 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 ATTEST: City of Corpus Christi, Texas Armando Chapa City Secretary Ronald L. Olson City Manager EXECUTED IN DUPLICATE ORIGINALS this day of , 2012. SMG, a Pennsylvania general partnership By: Name: Title: EXECUTED IN DUPLICATE ORIGINALS this day of , 2012. SMG Management Agmt 10 -11 -2012 Page 41 of 44 EXHIBIT INSURANCE REQUIREMENTS I. SUCCESSFUL OPERATOR'S LIABILITY INSURANCE A. Successful Operator shall not commence work under this agreement until all insurance required herein has been obtained and approved by the City's Risk Manager or designee. Successful Operator must not allow any subcontractor to commence work until all similar insurance required of the subcontractor has been so obtained. B. Successful Operator shall furnish to the Risk Manager or designee two (2) copies of Certificates of Insurance and applicable policy endorsement(s), showing the following minimum coverage by an insurance company(s) acceptable to the Risk Manager or designee. The City must be named as an additional insured for the General Liability policy, and a waiver of subrogation is required on all applicable policies. TYPE OF INSURANCE MINIMUM INSURANCE COVERAGE 30 -Day Notice of Cancellation required on all certificates or by policy endorsement(s) Bodily injury and Property Damage Per Occurrence / aggregate COMMERCIAL GENERAL LIABILITY includii 1. Broad Form 2. Premises — Operations 3. Products /Completed Operations Hazard 4. Contractual Liability 5. Broad Form Property Damage 6. Independent Contractors $5,000,000 per occurrence $10,000,000 aggregate EXCESS LIABILITY (To follow form) $10,000,000 per occurrence LIQUOR LIABILITY $1,000,000 per occurrence $5,000,000 aggregate CRIME POLICY (including) 1. Employee Dishonesty 2. Computer Fraud 3. Forgery or Alteration 4. Theft 5. Robbery and Safe Burglary $500,000 per occurrence BUSINESS AUTOMOBILE LIABILITY 1. Owned 2. Hired & Non -owned $1,000,000 Combined Single Limit WORKERS' COMPENSATION Which complies with the Texas Workers' Compensation Act an paragraph IIi of this exhibit. Page 42 of 44 SMG Management Agmt 10 -11 -2012 EMPLOYER'S LIABILITY $500,000 / $500,000 / $500,000 PROPERTY INSURANCE Operator shall purchase property insurance to cover damage to Operator owned contents. C. In the event of accidents of any kind, Successful Operator shall furnish the Risk Manager with copies of all reports of such accidents within ten (10) days of the accident. ARTICLE 2II. ADDITIONAL REQUIREMENTS A. Successful Operator must obtain workers' compensation coverage through a licensed insurance company in accordance with Texas law. The contract for coverage must be written on a policy and 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 workers' compensation coverage is not written in accordance with Texas law, "All Other States" endorsement must be indicated on the certificate of insurance. B. Successful Operator's financial integrity is of interest to the City, therefore, subject to Successful Operators right to maintain reasonable deductibles in such amounts as are approved by the City, Successful Operator shall obtain and maintain in full force and effect for the duration of this agreement and any extension hereof, at Successful Operator's sole expense, insurance coverage written on an occurrence basis, by companies authorized and admitted to do business in the State of Texas and with an A.M. Best's rating of no 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). Successful Operator shall be required to comply with any such requests and shall submit a copy of the replacement certificate of insurance to City at the address provided below within 10 days of the requested change. Successful Operator shall pay any costs incurred resulting from said changes. All notices under this Article shall be given to City at the following address: City of Corpus Christi Attn: Risk Management P.O. Box 9277 Corpus Christi, TX 78469 -9277 Fax: (361) 826 -4555 SMG Management Agmt 10 -11 -2012 Page 43 of 44 D. Successful Operator agrees that with respect to the above required insurance, all insurance policies are to contain or be endorsed to contain the following required provisions: • Name the City and its officers, officials, employees, volunteers, and elected representatives as additional insured by endorsement, as respects operations and activities of, or on behalf of, the named insured performed under contract with the City, with the exception of the workers' compensation 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, Successful Operator shall provide a replacement Certificate of Insurance and applicable endorsements to City. City shall have the option to suspend Successful Operator's performance should there be a lapse in coverage at any time during this contract. Failure to provide and to maintain the required insurance shall constitute a material breach of this agreement. F. In addition to any other remedies the City may have upon Successful Operator's failure to provide and maintain any insurance or policy endorsements to the extent and within the time herein required, the City shall have the right to order Successful Operator to stop work hereunder, and /or withhold any payment(s) which become due to Successful Operator hereunder until Successful Operator demonstrates compliance with the requirements hereof. G. Nothing herein contained shall be construed as limiting in any way the extent to which Successful Operator may be held responsible for payments of damages to persons or property resulting from Successful Operator's or its subcontractor's performance of the work covered under this agreement. H. It is agreed that Successful Operator'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. I. It is understood and agreed that the insurance required is in addition to and separate from any other obligation contained in this agreement. Page 44 of 44 SMG Management Agmt 10 -11 -2012 The Deal (Cont.) 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 AGENDA MEMORANDUM Future Item for the City Council Meeting of October 16, 2012 Action Item for the City Council Meeting of October 23, 2012 DATE: October 4, 2012 TO: Ronald L. Olson, City Manager FROM: Mark E. Van Vleck, P.E., Interim Director, Development Services MarkVV @cctexas.com (361) 826-3246 UTILITY EASEMENT CLOSURE Abandoning and vacating a 14 -foot wide portion of a 38 -foot wide utility easement out of Lots 1 and 2, Ocean Village Estates Unit 1, and Lot 3, Block 1, Ocean Village Estates. CAPTION: Ordinance abandoning and vacating a 14 -foot wide portion of a 38 -foot wide utility easement out of Lots 1 and 2, Ocean Village Estates Unit 1, and Lot 3, Block 1, Ocean Village Estates; and requiring the owner, Airline and Ocean Investments, L.P., to comply with the specified conditions. PURPOSE: The purpose of this item is to reduce the width of a utility easement for the future development of the subject properties. BACKGROUND AND FINDINGS: Urban Engineering, on behalf of Airline and Ocean Investments, L.P. (Owner), is requesting the abandonment and vacation of a 5,644.43- square -foot portion of a 38 -foot wide utility easement out of Lots 1 and 2, Ocean Village Estates Unit 1, and Lot 3, Block 1, Ocean Village Estates. The properties are located on the southwest corner of Ocean Drive and Airline Road. The easement is adjacent and parallel to the northern property line of Seaside Memorial Cemetery. The abandonment and vacation of the utility easement is requested in order to accommodate the future development of the subject properties. Staff recommends that payment of fair market value be waived in accordance with City Code of Ordinance Sec. 49 -12, because Owner will be replatting said property and upon replatting will be dedicating utility easements of equal or greater value to off -set the proposed abandonment and vacation of the easement. The Owner must also comply with all the specified conditions of the abandon and vacate ordinance within 180 days of Council approval. C: \Program Files \Granicus \Legistar5 \Packet \1007_City Council_10_16_2012 \0024_1_Ocean Village Estates, Agenda Memo, 10- 23- 12.doc ALTERNATIVES: Denial of the utility easement closure. This will, however, adversely impact the Owner's ability to move forward with future development of the subject properties. OTHER CONSIDERATIONS: Not applicable CONFORMITY TO CITY POLICY: These requirements are in compliance with the City Code of Ordinances, Sec. 49 -13. EM ERGENCY / NON - EMERGENCY: Non - Emergency DEPARTMENTAL CLEARANCES: All public and franchised utilities were contacted. The City Wastewater Department does not have any objections to the closure, but does have a 10 -inch VCP sanitary sewer line within a portion of the said 38 -foot utility easement, and will seek reimbursement if adjustments to their facilities become necessary. AEP has an overhead primary electrical power line, and Grande Communications has fiber optic and coaxial cables within a 15 -foot section of the 38 -foot wide utility easement. AEP and Grande Communication had no objections to the easement closure, but will seek reimbursement if adjustments to their facilities become necessary. None of the other City departments or franchised utility companies had any facilities within or objections to the proposed partial easement closure. 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: None C: \Program Files \Granicus \Legistar5 \Packet \1007_City Council_10_16_2012 \0024_1_Ocean Village Estates, Agenda Memo, 10- 23- 12.doc RECOMMENDATION: Staff recommends approval of the easement closure. The Owner must comply with all the following specified conditions of the easement closure ordinance: a. Owner must dedicate to the City new utility easements of equal or greater value than the utility easements being released by the City in this easement closure action, in accordance with the Corpus Christi Code of Ordinances, Section 49 -12, within 180 days of City Council approval of this ordinance so that the requirement of paying fair market value for the properties can be waived. b. Upon approval by the City Council and issuance of the ordinance, all grants of easement closure and specified conditions must be recorded at Owner's expense in the Official Deed and Map Records of Nueces County, Texas, in which the affected properties are located. c. Prior to the permitting of any construction on the affected properties, the Owner must submit up -to -date surveys, abstracted for all easements and items of record, to the Director of Development Services, or his designee. d. Owner must comply with all specified conditions of the ordinance within 180 days of City Council approval. LIST OF SUPPORTING DOCUMENTS: Ordinance with Exhibits C: \Program Files \Granicus \Legistar5 \Packet \1007_City Council_10_16_2012 \0024_1_Ocean Village Estates, Agenda Memo, 10- 23- 12.doc Ordinance abandoning and vacating a 14 -foot wide portion of a 38- foot wide utility easement out of Lots 1 and 2, Ocean Village Estates Unit 1, and Lot 3, Block 1, Ocean Village Estates; and requiring the owner, Airline and Ocean Investments, L.P., to comply with the specified conditions. WHEREAS, Urban Engineering, acting as agent on behalf of Airline and Ocean Investments, L.P. ( "Owner "), is requesting the abandonment and vacation of a 14 -foot wide portion of a 38 -foot wide utility easement out of Lots 1 and 2, Ocean Village Estates Unit 1, and Lot 3, Block 1, Ocean Village Estates, located west of Airline Road and south of Ocean Drive, to accommodate the future development of the subject properties; WHEREAS, with proper notice to the public, public hearings were held on Tuesday, October 16, 2012, during a meeting of the City Council, during which all interested persons were allowed to appear and be heard; and WHEREAS, it has been determined that it is feasible and advantageous to the City of Corpus Christi to abandon and vacate a 14 -foot wide portion of a 38 -foot wide utility easement on the affected properties, subject to the provisions in this ordinance included below. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF CORPUS CHRISTI, TEXAS: Section 1. Pursuant to the request of Urban Engineering, acting as agent on behalf of Airline and Ocean Investments, L.P. ( "Owner "), a 14 -foot wide portion, containing 5,644.434 square feet, of a 38 -foot wide utility easement out of Lots 1 and 2, Ocean Village Estates Unit 1, and Lot 3, Block 1, Ocean Village Estates, located west of Airline Road and south of Ocean Drive, as recorded in Volume 12, Page 57 and Volume 48, Pages 124 -125, respectively, of the Official Deed and Map Records of Nueces County, Texas, is abandoned and vacated by the City of Corpus Christi ( "City "), subject to the Owner's compliance with the conditions specified in Section 2 of this ordinance. Exhibit "A," which is a site map and field notes map, and Exhibit "B," which is a metes and bounds description, are attached to and incorporated in this ordinance by reference as if each were set out at length in this section. Section 2. The abandonment and vacation of the utility easements described in Section 1 of this ordinance is expressly conditioned upon the Owner's compliance with the following requirements: a. Owner must dedicate to the City new utility easements of equal or greater value than the utility easements being released by the City in this easement closure action, in accordance with the Corpus Christi Code of Ordinances, Section 49- 12, within 180 days of City Council approval of this ordinance so that the requirement of paying fair market value for the properties can be waived. b. Upon approval by the City Council and issuance of the ordinance, all grants of easement closure and specified conditions must be recorded at the Owner's expense in the Official Deed and Map Records of Nueces County, Texas, in which the affected properties are located. c. Prior to the permitting of any construction on the affected properties, the Owner must submit up -to -date surveys, abstracted for all easements and items of record, to the Director of Development Services, or his designee. d. Owner must comply with all specified conditions of the ordinance within 180 days of City Council approval. The foregoing ordinance was read for the first time and passed to its second reading on this the day of , 2012, by the following votes: Joe Adame David Loeb Chris Adler John E. Marez Kelley Allen Nelda Martinez Larry Elizondo, Sr. Mark Scott Priscilla Leal The foregoing ordinance was read for the second time and passed finally on this the day of , 2012, by the following votes: Joe Adame David Loeb Chris Adler John E. Marez Kelley Allen Nelda Martinez Larry Elizondo, Sr. Mark Scott Priscilla Leal PASSED AND APPROVED this the day of , 2012. ATTEST: Armando Chapa Joe Adame City Secretary Mayor Abandon % 2011E %200cea n% 20Vi llage %20Estates %20vFinal %20Revd %2020121004[1 ] Page 2of2 p,sq Q. 0 z o ' 0 il4 maag �� m 3RD W co 0 ESTATE CrON Corpus Christi Bay OCEAN DR GAINES ERST AUTON Lot 3, Block 1 Ocean Village Estates Vol. 48. Pgs. 124 -125, Map Records of Nueces County, Texas • 'Point of ftinning" r fleldnote dmcdption 0 Site Lot 2, Brack 1 Ocean Vol. Records mosEnE 0. U LO CaQ"° Z0 CAPE dls a►� KOUT CAPE Lot 1, Block 1 !loge Estates Unit 1 12, Pg. 57, Map Nueces County, Texas (Plat =559'09'20 "€) S51'14'461 401.97' 838`47'31"W 0 (Plat =S38'50'40" W) N51' ( 4'46" W tgw4.48' at =N 1'09 , 2 C4 0 s 0 sty S NAM Fd. 5 8 I.R. No monumentation found or set unless otherwise noted. EXHIBIT A Map to Accompany N51 °9•'46"W 21.17 Acres out of 7 and 8. Section 1 Flour Bluff and Encino! Farm and Garden Tracts Vol. A. Pgs. 41 -43, Ma Records of Nunes County. Texas (Owner: Carriage Cemetery Services Inc.) 90 60 30 0 ITELONOTES for daakg of pagan of WV foal wide easemant out of la t and Z Ocean Igor L6dl 1, o mon of whkh is monied ha *kw 1$ Paw 37, Mop Rework of Notese Cants faros and Lot 4 block 1, Oman r a Mc of Leh k nicarrkti in Wane 4, pagm 124-124 Map Records of Nuevo Tana 60 Fd. 5/8" I.R. 120 Graphic Scale 1'1=602 LJR May 51�1012 ENGINEERING �1 JOG NG.: 33952.2,00 CORPUS CHRISTI, TEXAS 5HI T isii.01x41 ,„ 5 225 SL. [ a„ ef; nr 7 }e¢na yDD22��jii���r r�Q�r����^ n� � I�rv0Y.4811ti1UVlK�Y3 9Z1}OEaSeYrtE1R.saa "LU('9JN321TY.46!Z[7R.L ig$!]�p11Fjj w State of Texas County of Nueces Revised: October 4, 2012 May 11, 2012 Job No. 33952.B2.00 FIELDNOTES the closing of a portion of a 38.00 foot wide utility easement out of Lot 1 and. 2, Block 1, Ocean Village Estates Unit 1, a map of which is recorded in Volume 12, Page 57, Map Records of Nueces County, Texas and Lot 3, Block 1, Ocean Village Estates, a map of which is recorded in Volume 48, Pages 124 -125, Map Records of Nueces County, Texas; said closure being more fully described by metes and bounds as follows: Beginning at a point on the common boundary of Lot 2, Block 5, Seaside Subdivision, a map of which is recorded in Volume 37, Page 116, Map Records ofNueces County, Texas and said Lot 3, Block 1, for the southwest comer of this closure, from which point, a 5/8 inch iron rod found for the south corner of said Lot 2, Block 5, same being the west comer of said Lot 3, Block 1, bears South 38 °47'31" West (Plat=South 38 °50'40" West), a distance of 24.00 feet; Thence, North 38 °47'31" East (Plat =North 38 °50'40" East), along the common boundary of said Lot 2, Block 5 and said Lot 3, BIock 1, a distance of 14.00 feet for the northwest comer of this closure; Thence, South 51 °14'46" East (Plat =South 51 °09'20" East), parallel to the south boundary of said Lots 1, 2 and 3, Block 1 and 38.00 feet distant there from, measured at right angles thereto, a distance of 401.97 feet to a point on the west boundary of Airline Road, a public roadway, for the northeast corner of this closure; Thence, South 28 °37' 16" West, with said west boundary of Airline Road, a distance of 14.22 feet for the southeast comer of this closure, from which corner, a found 5/8 inch iron rod bears South 28'37'16" West, a distance of 24.38 feet; Thence, North 51 °14'46" West (North 51 °09'20" West), parallel to the south boundary of said Lots 3, 2 and 3, Block 1 and 24.00 feet distant there from, measured at right angles thereto, a distance of 404.48 feet to the Point of Beginning and containing 0.130 Acres (5,644.434 square feet) of land; The Northeast boundary of Lot 3, as monumented on the ground and shown as South 47 °37'08" East on the recorded plat of Lot 3, Block 1, Ocean Village Estates was used as the Reference Bearing. No monumentation found or set unless otherwise noted. Unless this fieldnotes description, including preamble, seal and signature, appears in its entirety, in its original form, surveyor assumes no responsibility for its accuracy. URBAN ENGINEERING D.,.,01/14 S : \Surve " 133952152001revfa33952B200c1osure .docx (361)854 -3101 2725 SWANTNER DR. • CORPUS CHRISTI, TEXAS 78404 www,urbraneng,com TBPE Firm 4145 Dan L. Urban, R.P.L.S. License No. 4710 Page FAX 361)854 -8001 EXHIBIT B AGENDA MEMORANDUM Future Item for the City Council Meeting of October 16, 2012 Action Item for the City Council Meeting of October 23, 2012 DATE: September 28, 2012 TO: Ronald L. Olson, City Manager THROUGH: Wes Pierson, Assistant City Manager (361) 826-3082 wesp@cctexas.com FROM: Mike Culbertson (361) 882 -7448 mculbertson@ccredc.com Type A Grant for M &G Resins USA, LLC to build two plants on the Inner Harbor CAPTION: Ordinance approving a Type A Incentives Agreement between the Corpus Christi Business and Job Development Corporation ( "Type A Corporation ") and M &G Resins USA, LLC ( "M &G ") to provide a grant of up to $3,000,000 for constructing two plants in the inner harbor, investing $751 million, creating 220 full -time jobs, and paying at least $11.7 million in annual wages and authorizing the City Manager, or designee, to execute a Project Support Agreement with the Type A Corporation to administer the M &G Type A Incentives Agreement and appropriating $3,000,000 from the unreserved fund balance in the No. 1140 Business /Job Development Fund for a business incentive grant from the Type A Corporation to M &G for constructing two plants in the inner harbor, investing $751 million, creating 220 full -time jobs, and paying at least $11.7 million in annual wages; Changing the FY 2012 -2013 operating budget, adopted by Ordinance No. 029565, by increasing proposed expenditures by $3,000,000. PURPOSE: Staff recommends awarding M &G Group $3,000,000 in Type A funds payable in one payment of $3,000,000 upon commencing operation of their proposed polyethylene terephthalate (PET) and purified terephthalic acid (PTA) plants to be located at the Port of Corpus Christi. Uses of the funds will be to reimburse company for site development costs associated with their project on the north side of the ship channel along the Joe Fulton Trade Corridor. BACKGROUND AND FINDINGS: M &G Group is a family owned chemical engineering and manufacturing group headquartered in Tortona, Italy. The company operates in the PET resin industry through its wholly -owned holding company Mossi & Ghisolfi International S.A. (M &G International). M &G International is the third largest producer of PET resin for packaging applications in the world, with a production capacity in 2010 of approximately 1.6 million tons per annum. M &G Group currently has three plants located in Italy, Brazil, and West Virginia. They are looking to expand their production. ALTERNATIVES: The Type A agreement is the only incentive program that the City has for this location. OTHER CONSIDERATIONS: All taxing entities are doing their part to get this plant here. Nueces County and Del Mar College are giving tax abatements. The Port of Corpus Christi is building a rail yard adjacent to the M &G site. They are incorporating M &G rail requirements into their plans. Texas Department of Transportation has awarded the Port $22 million for rail improvements. The Tuloso- Midway Independent School District has accepted the Chapter 313 tax limitation application from M &G. CONFORMITY TO CITY POLICY: This project is consistent with the City's stated goals of promoting economic development and incentivizing business to locate and thrive in Corpus Christi and the industrial districts. EMERGENCY / NON - EMERGENCY: NON - EMERGENCY DEPARTMENTAL /BOARD CLEARANCES: Legal Type A Board approved on September 17, 2012 FINANCIAL IMPACT: Operating /Type A ❑ 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 3,000,000 3,000,000 BALANCE 3,000,000 3,000,000 Fund(s): Type A Fund Comments: This item is obligating $3,000,000 in future years. The proposed payout year will be in the 2016 — 2017 fiscal year. RECOMMENDATION: Staff recommends approving the Type A grant for M &G Resins to build their two plants, investing $751 million, creating 220 full -time jobs, and having an annual payroll of at least $11,700,000. LIST OF SUPPORTING DOCUMENTS: Incentive application Ordinance Type A Agreement Business Support Agreement Page 1 of 3 Ordinance Approving a Type A Incentives Agreement between the Corpus Christi Business and Job Development Corporation ( "Type A Corporation ") and M &G Resins USA, LLC ( "M &G ") to provide a grant of up to $3,000,000 for constructing two plants in the inner harbor, investing $751 million, creating 220 full -time jobs, and paying at least $11.7 million in annual wages and authorizing the City Manager, or designee, to execute a Project Support Agreement with the Type A Corporation to administer the M &G Type A Incentives Agreement and appropriating $3,000,000 from the unreserved fund balance in the No. 1140 Business /Job Development Fund for a business incentive grant from the Type A Corporation to M &G for constructing two plants in the inner harbor, investing $751 million, creating 220 full -time jobs, and paying at least $11.7 million in annual wages; Changing the FY 2012 -2013 operating budget, adopted by Ordinance No. 029565, by increasing proposed expenditures by $3,000,000. WHEREAS, the Type A Corporation has budgeted funds to assist businesses create or retain jobs in the City of Corpus Christi, Texas ( "City "). WHEREAS, the Type A Corporation has requested proposals from businesses that will create or retain jobs within the City, and determined that the proposal from M &G to construct two new plants in the inner harbor within the City's industrial district will best satisfy this goal; WHEREAS, City Council deems that it is the best interest of the City and citizens to approve the business incentives agreement for M &G's construction of two new plants between the Type A Corporation and M &G; WHEREAS, there is a need for a business incentives project support agreement between the City and the Type A Corporation for the implementation and administration of the business incentives agreement for M &G's construction of two new plants between the Type A Corporation and M &G. Now, therefore, be it resolved and ordained by the City Council of the City of Corpus Christi, Texas: SECTION 1. That the business incentives agreement for the creation and retention of jobs between the Type A Corporation and M &G that provides for the construct two new plants in the inner harbor within the City's industrial district, which is attached to this ordinance as Exhibit A, is approved. SECTION 2. That the City Manager, or designee, is authorized to execute a project support agreement between the City and Type A Corporation for the implementation and administration of the business incentives agreement with M &G, which is attached to this ordinance as Exhibit B. 0025 2 ORDINANCE MG 9 -28 -12 Page 2of3 SECTION 3. That $3,000,000 from the unreserved fund balance in the No. 1140 Business /Job Development Fund is appropriated for a business incentive grant from the Type A Corporation to M &G for construction of two new plants. SECTION 4. That Ordinance No. 029565, which adopted the FY 2012 -2013 Operating Fund, is changed to increase proposed expenditures in the No. 1140 Business /Job Development Fund by $3,000,000 for a business incentive grant from the Type A Corporation to Craft Training Center for expansion of its facility. 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 0025 2 ORDINANCE MG 9 -28 -12 Joe Adame Mayor Page 3 of 3 0025 2 ORDINANCE MG 9 -28 -12 BUSINESS INCENTIVE AGREEMENT BETWEEN THE CORPUS CHRISTI BUSINESS AND JOB DEVELOPMENT CORPORATION AND M&G RESINS USA, LLC FOR CREATON AND RETENTION OF JOBS This Business Incentive Agreement for Capital Investments and the Creation and Retention of Jobs ("Ag into between the Corpus Christi Business and Job Develo ment Corporation ("Corporation") and M&G RESINS USA, LLC ("K8&G"), a Delaware limited liability company. WHEREAS, the Texas Legislature in Section 4A of Article 5190.6, Vernon's Texas Revised Civil Statutes (Development Corporation Act of 1979. now codified as Subtitle C1, Title 12, Texas Local Government Cnde, Section 504.002 et seq, ("the Act"), empowered local communities with the ability to adopt an optional local sales and use tax as a means of improving the economic health and prosperity of their citizens; WHEREAS, on November 5, 2002, residents of the City of Corpus Christi ("City") passed Proposition 2 , New and Expanded Business Enterprises, which authorized the adoption of a sales and use tax for the promotion and development of new and expanded business enterprises at the rate of one-eighth of one percent to be imposed for 15 years; WHEREAS, the 1/8th cent sales tax authorized by passage of Proposition 2 was subsequently enacted by the City Council and filed with the State Comptroller of Texas, effective April 1, 2003. to be administered by the Corpus Christi Business and Job Development Corporation Board; WHEREAS, the Corpus Christi Business and Job Development Corporation exists far the purposes of encouraging and assishng entities in the creation ofjobs for the citizens of Corpus Christi, Texas; VVHEREAG, the Board of Directors of the Corporation ("Board"), on September 10. 2007, amended the Corporation's Guidelines and Criteria for Granting Business Incentives /"TvpoA Guidelines"), which the City Council incorporated into the City of Corpus Christi Economic omit Development Incentive Policies 2009-2011 on November 17, 2009; VVHEREAS. Section 501.073 of the Act requires the City Council to approve all programs and expenditures of the Corporation; VVHEREA8. M&G plans to construct a PET and a PTA plant on the north side of the Port of Corpus Christi inner harbor; WHEREAS, M&G proposes to inves approximately $751.8U8.0DO over a three year period; WHEREAS, on September 17, 2012 the Board determined that it is in the best interests of the citizens of Corpus Christi, Texas that business development funds be provided to M&G, through this Agreement with KU&G, to be used by M&G to construct their manufacturirig facilities, which will result in the creation of at least 220 full-time 'nbu, with an estimated annualized salary of $11,700,000 (annual average salary of $53,181). In consideration of the covenants, promises, and conditions stated in this Agreement, Corporation and M&G agree as follows: Page 1of8 Type A Incentive Agreement ' REV ox^u(2) 1. Effeciive Dato. The effective date of thls Agreement ("Effective Date) is the latest date that either party executes this Agreement. 2. Term. The term of this Agreernent is for five years beginning on the effective date. 3. Performance Requirements and Grants. The Performance Requirements and Grants are listed in Exhibit A, which is attached to and incorporated into this Agreement. 4. Job Creation Qualification. a. In orde to count as a created job unde this Agreement, the job must pay wages at least as high as the median wage of the occupation in the Corpus Christi MSA as determined by Texas Workforce Commission's Texas Industry Profiles report. b. A "job" is defined in the Type A Guidelines as a full-time omp|oyue, contra or, consultant, or leased employee who has a home address in the Corpus Christi MSA. o. M&G agrees to confirm and document to the Corporation that the minimum number of jobs created as a result of funding provided by this Agreement is, after the creation of such jobs, maintained throughout the term of this Agreement. d. M&G agrees to provide Corporation with a sworn certificate by authorized representative of each business assisted under this Agreement certifying the number of full-time permanent employees employed by the business, o. M&G shall ensure that the Corporation is allowed reasonable access to personnel records of the businesses assisted under this Agreement, subject to any applicable privacy laws. 5. Utilization of Local Contractors and Suppliers, M&G agrees to exercise reasonable efforts in utilizing local contractors and suppliers in the construction of the Pnojao\, except where not reasonably possibte to do so without added expense, substantial incnovuninnoy, 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, with respect to the construction of the Pnojoot, being paid to local contractors and suppliers. For the purposes of this oeo8un, the term "local" as used to describe manufacturers, nuppUera, uontrauh)ro, and labor inc!udes firms, buainesoen, and persons who reside in or maintain an office within a 50 mile radius of Nueces County. For the purpose of this Section the term "construction of the Project" means activities related to the execution of the Project which take place at the Project miha, such as civil construction, installation of equipment, and fabrication at site of piping, materials or equipment. M&G mynnen, during the construction of the Project and for four years after Cump|e4|on, to maintain written records documenting the efforts of M&G to comply with the Local Requirnment, and to provide an annual report to the City Manager or designee, from which the City Manager or designee shall determine if M&G 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. It is understood that M&G may contract the supply and construction of the Project to an affiljate ar other nor,-Iocal contractor. In such case M&G may ensure compliance with this Section by including in such contract a flow through provision requiring such compliance, Page 2of0 Type A Incentive Agreement ' REV v-24-1uVV G. Utilization of Disadvantaged Business En (DBE"). M&G agrees to exercise reasonable efforts n utilizing contractors and suppUers that are determined 10 be disadvantaged business mobarpriseo, including minority business enterprises women-owned business enterprises and historically-underutilized business enterprises in the construction of the Project. 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 — thohomeof§oenfthabuoinauoaaoom[Uyin0withutotaorhadauylstmndendsforquaUOneU as qualification such an enterprise. M&G agrees to a goal of 30% of the total dollar amount of all construction contracts and supply agreements being paid to disadvantaged business enterprises, with a priority made for disadvantaged business enterprises which are local. For the purpose of this Section the term "construction of the Project" means activities na|ehad to the execution of the P ject which take place at the Project site, such as civil nonaLruction, installation of equipment, and fabrication at site of piping, materials or equipment. M&G agrees, during the construction the Project and for four yeam after Completion, to maintain written records documenting t— efforts of M&G 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 M&G is compliance with this requirement. FeUuretu uub�onbaKycomply vNth this requirement, in the in 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 eriterprises women-owned business enterprises and historically-underutilized business enterprises includes hrmn, bun|nesneu, and persons who reside in or maintain an office within m 50 mile radius of Nueces County. It is understood that M&G may contract the supply and construction of the Project to an affiliate or other non-DBE contractor, In such case M&G may ensure compliance with this Section by including in such contract a flow through provision requiring such compliance. 7. Living Wage Requirement. In order to count as a permanent full-time job under this agreement, the job should provide a "living wage" for the employee. The target living wage under this agreement is that annual amount equal or greater than poverty level for a family of three, established by the U.S. Department of Health and Human Services Poverty Guidelines, divided by 2,080 hours per year for that year. 8. Health Insurance. To qualify for this |nounbve, an employer shall certify that it has offered a health insurance program for lts employees during the term of the Agreement, 9. Warranties. M&G warrants and represents to Corporation the following: a. M&G is a limited liability company duly organized under the laws of the State of Da|uware, validly existing, and in good standing under the laws of the State of Texas, has all corporate power and authority to carry on its business in Texas. b. M&G has the authority to enter into and pnrform, and will perfonn, the terms of this Agreement to the bes of its ability. c. M&G has timely filed and will timely file all |oua|. State, and Federal tax reports and returns required by laws to be filed and all Texas, mn0000nnoohs, hseo, and other governmental charges, including appficable ad valorem taxes, have been timely paid and Vvi||ba timely paid, dudnQthe term of this Agreement, ' Page 3oyO Type x Incentive Agreement ' REV o-24'o(2) d. M&G has received a copy of the Act, and acknowledges that the funds granted in this Agreement must be utilized solely for purposes authorized under State law and by the terms of this Agreement. e. The person executing this Agreement on behalf f &G is duly authorized to execute this Agreement on behalf of M&G, f. M&G does not and agrees that it wilt not knowingly employ an undocumented worker, If, afte receiving payments under tNmAgmemort, M&G is convicted ofeviolationundwr §U.S.C. Section 1324aAO. M&G 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 M&G has been notified of the vtolalion. 10. Compliance with Laws. During the Term of this Agreement, M&G shall observe and obey all applicable laws, ond}nanuaa, regulations, and rules of (he Fmdera|. State, county, and city governments. 11. M&G covenants and agrees that M&G will not discriminate nor permit discrimination against any person or group of pe/nono, with regard to emcJeymont and the provision of services at, mn, or in the Facility, on the grounds of race, religion, national ohgln, marital mtaduo, oex, age, d|mmbUib/, or in any manner prohibited by the laws of the United States or the State of Texas. 12. Force Majeure. If the Corporation or M&G are prevented, wholly or in part, from fulfilling its obligations under this Agreement by reason of any act of 8od, unavoidable accident, acts of enemies, fires, floods, governmental restraint or regulation, other causes of force majeure, or by reason of circumstances beyond its control, then the obligations of the Corporation or M&G are temporarily suspended during continuation of the force majeure. If either party's obligation is affected by any of the causes of force majoune. the party affected shall promptly noUfvthe other party in writing, giving full particulars of the force majeura as soon as possible ' after the occurrence ofthe cause or causes relied upon. 13, Assignment. M&G may not assign all or any part of its dghte, privileges, or duties under this Agreement without the prior written approval of the Corporation and City, such approval not to be unreasonably withheld. Any attempted assignment without approval is void, and constitutes a breach of this Agreement. 14. Indemnity. M&G covenants to fully indemnify, save, and hold harmless the Corporation, the City, fheir respective officers, employees, and agents ('Yndaonm/te*s") against all Ilability, damage, !oss, c!aims demands, and actions of any kind on account of personal injuries (including, without limiting the foregoing, workers' compensation and death claims), or property loss or damage of any kind, which arise out of or are in any manner connected with, or are claimed to arise out of or be in any manner connected with M&G activities conducted under or incidental to this Agreement, including any injury, Ioss or damage caused by the sole or contributory negligence of any or all of the hndomndaem. M&G must, at its own expense, investigate all those claims and demands, attend to their settlement or other disposition, defend all actions based on those claims and demands with counsel satisfactory to Indemnitees, and pay all charges of attorneys and all other cost and expenses of any kind arising from the liability, damage, loss, claims, demands, or actions. Page 4of8 Type x Incentive Agreement ' REV nx*-1u(2) 15, Events of Default by M&G. The following events constitute a default of this Agre ent by M&G: a. Any representation or warranty on behalf of M&G contained in this Agreemen or in any financial atatamenN, certificate, napmf, or opinion submitted to the Corporation in connection with this Agreement is incorrect or misleading in any material respect when made; b. Any judgment is assessed against M&G or any attachment or other levy against the property of M&G with respect to a claim remains unpnW, undisoha/Aed, or not dismissed for a period of 120 days. c. M&G makes an assignmen for the benef of creditors. d. M&G files a petition in bankruptcy or is adjudicated insolvent or bankrupt. e. If taxes owed by M&G become delinquent, and M&G falis to timely and properly follow the legal procedures for protesl or contest. f. M&G changes the general character of busin as conducted as of the date this Agreement is approved by the Corporation. Q. M&G fails to comply with one or more of lhe terms of this Agreement. 16. Notice of Default. Should the Corporation or City determine that M&G is in default according to the terms of this Agreement, the Corporation or City shall notify M&G in writing of the event of default and provide 60 days from the date of the notice CCure Period") for M&G 10 cure the event of default. 17. Results of Uncured Defau/t by M&G. After exhausting good faith attempts to address any default during the cure Pehod, and taking into account any extenuating circumstances that might have occurred through no fault of KA&G, as determined by the Board of Directors of the CnrpanuUon, the following actions must be taken for any default that remains uncured after the Cure Period. a. M&G shall immediately repay all funds paid by Corporation to them under his Agreement. b. M&G shall pay Corporation reasonable attorney fees and costs of court to collect amounts due to Corporation if not immediately repaid upon demand from the Corporation. c. Upon payment by M&G of all sums due, the Corporation and M&G shall have no further obligations to one another under this Agreement. d. Neither the City, the Corporation, nor M&G may be held liable for any consequential damages. Page 5o[8 Type A Incentive Agreement ' REV ye4.1xp0 18. No Waiver. a. No waiver of any covenant or condition, or the breach of any covenant or condition of thls Aoneement, constitutes a waiver of any subsequent breach of the covenant or condition of the Agreernent. b. No waiver of any covenant or condition, or the breach of any covenant or condition of this Agreement, justifies or aut orizes the nonobservance on any other occasion of the covenant or condition or any other covenant or condition of this Agreement. c. Any waiver or indulgence of M&G's default may not be considered an estoppel against the Corporation. d. It is expressly understood that if at any time M&G is in default in any of its conditions or covenants of this Agreement. the failure on the part of the Corporation to promptly avail itself of the rights and remedies that the Corporation may have, will not be considered a waiver on the part of the Corporation, but Corporation may at any time avail itself of the rights or remedies or elect to terminate this Agreement on account of the default. 19. M&G specifically agrees that Corporation shali only be Iiable to M&G for the actual amount of the money grants to be conveyed to K8&G, and shall not be liable to M&G for any actual or consequential domaOaa, direct or indirect, interest, attorney fees, or cost of court for any act of default by Corporation under the terms af this Agreement. Payment by Corporation is strictly limited to those funds so mUmceted, budgeted, and collected solely during the grant term of this Agreement. Corporation shall use its best efforts to anticipate economic conditions and to budget accordingly. However, it is further understood and agreed that, should the actual total sales tax revenue collected for any one year be less than the total amount of grants to be paid to all contracting parties with Corporation for that year, then in that event, all contracting parties shall receive only their pro rata share of the available sales tax revenue for that year, less Corporation's customary and usual costs and expemoeo, as compared to each contracting parties' grant amount for that year, and Corporation shall not be Iiable to for any deficiency at that time or at any time in the future. In this ovent. Corporation will provide all supporting documentation, as requested. Payments to be made shall also require ovvritten request from M&G to be accompanied by all necessary supporting docurnentation, 20. The parties mutually agree and understand that funding under this Agreement is subject to annual appropriations by the City Council; that each fiscal year's funding must be included in the budget for that year; and the funding is not effective until approved by the City Council. 21. Notices. a. Any required written notices shall be sent mailed, certified mail, postage prepaid, addressed as follows: M&G: M&G RESINS USA LLC 450 Gears Road, Suite 240 Houston, TX 77067 Page 8o;8 Type x Incentive Agreement - REV �4-1x(2) Corporation: City of Corpus Christi Business and Job Deveopment Corporation Attn.: Executive Director 1201 Leopard Street Corpus Christi, Texas 78401 b. A copy of all notices and correspondence must be sent the City at the following address: City of Corpus Christi Attn.: City Manager P.O. Box S277 Corpus Christi, Texas 7846Q-A277 c. Notice is effective upon deposit in the United States mail in the manner provided above. 22, Inco4aoostiznuf other documents. The Type A Guidelines, as amended, are incorporated into this Agreement. In the event of any conflict between the Guidelines and this Agreement, the terms of this Agreement shall control. 23. Amendments orMod0ficabono No amendments or modifications to this Agreement may be madm, nor any provision waivod, unless in writing signed by a person duly authorized to sign Agreements on behatf of each party. 24. Relationship ofParties. In performing this Agreement, both the Corporation and M&G will act in an individual capacity, and not as agents, /apreoentahvea, 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. 25. Captions. The captions in this Agreement are for convenience only and are not a part of this Agreement. The captions do not in any way limit or amplify (he terms and provisions of this Agreement. 26. a. If for any reason, any nmnion, paraOnaAh, subdivision, clause, pnovision, phrase or word of this Agreement or the application of this Agreement to any person or circumstance is, to any extent, held U|aga|, invaUd, or unenforceabte under present or future law or by a final judgment of a court of competent jurisdiction, then the remainder of this Agreement, or the application of the term or provision to persons or circumstances other than those as to which it is held illegal, invalid, or unenforceable, will not be affected by the law or judgment, for it is the definite intent of the parties to this Agreement that every section, paragraph, subdivision, clause, provision, phrase, or word of this Agreement be given full force ancl effect for its purpose. b. To the extent that any clause or provision is held iUegm|, iAV8Ud, or unenforceable under present or future law effective during the term of this AUroomant, then the remainder of this Agreement is not affected by the law, and in lieu of any illegal, invalid, Page 7of8 Type xIncentive Agreement - REV 9-24-12 (2) or unenforceable clause or provision, a clause or provision, as similar in terms to the illegal, invalid, or unenforceable c!ause or provision as may be possible and be legal, valid, and enforceable, will be added to this Agreement automatically, 27. Venue. Venue for any legal action related to this Agreement is in Nueces County, Texas. 28. Sole Agreement. This Agreement constitutes the sole Agreement between Corporation and M&G. Any prior Agreements, pnnm|ueu, nmgoUaUono, or napnauentmhonn, verbal or otherwise, not expressly stated in this Agreement, are af no force and offect. 29. Survival nybennuofAgreement and obligations of parties. The terms of this Agreement and the obligation of the parties relating to Section 14.a and b shall survive the termination of this Agreement. Corpus Christi Business & Job Development Corporation By: Robert Tomez President Date: Attest By: Armando Chapa Assistant Secretary M&G RESINS USA, LLC By: Kevin McCarren Vce President, Finance Date: '71 -7-)4�1 Page 0ofO Type AmmotivoAgreement REV o-2^-1e(q THE STATE OF TEXAS COUNTY OF HARRIS This instrurnnt was acknowledged before me on Vice President, Finance for M &G RESINS USA, conlpany, on behalf of the company Notary public State of T Type A Incenllve Agreement - REV 9 -24 -12 (2) Page 9 of 8 LO , 2012, by Delaware for profit limited GUADALUPE R DIAZ My Commission Expires September 14, 2013 EXHIBIT A PERFORMANCE MEASURES AND CORPORATION GRANTS 1. M&G shall invest at least $751,000,000 to construct a PET and PTA manufacturing x over a three year period. M&G shall further, over the term of this Agreement, create 220 full- , time ^ubu, with an annualized salary equal to or greater than $11.700.000 (average annual salary of $53,181), as described in the schedule below. a. Grant, not to exceed $3,000,000, will be paid in full upon proof of creation of 220 new jobs, $751,000.000 in |oveutment, and an annualized salary equal to or greater than $11.700.000. b. Should the Company fall below the Performance Standards the Company shall receive a reduced percentage of the Cash Incentive. Such reduction will be in that percentage equal to the percentage the Company's performance falls below the Performance Standards. However if the Company falls below 70Y6 then there is no payment for that year. Type * Incentive Agreement REV 9-24-12 (2) BUSINESS INCENTIVE PROJECT SERVICE AGREEMENT This Business Incentives Project Service Agreement ( "Project Service Agreement ") is entered into between the Corpus Christi Business and Job Development Corporation ( "Type A Corporation ") and the City of Corpus Christi, Texas ( "City "). WHEREAS, the Texas Legislature in Section 4A of Article 5190.6, Vernon's Texas Revised Civil Statutes (Development Corporation Act of 1979), now codified as Subtitle 01, Title 12, Texas Local Government Code ( "the Act "), empowered local communities with the ability to adopt an optional local sales and use tax as a means of improving the economic health and prosperity of their citizens; WHEREAS, on November 5, 2002, residents of the City passed Proposition 2, New and Expanded Business Enterprises, which authorized the adoption of a sales and use tax for the promotion and development of new and expanded business enterprises at the rate of one - eighth of one percent to be imposed for 15 years; WHEREAS, the 1/8 cent sales tax authorized by passage of Proposition 2 was subsequently enacted by the City Council and filed with the State Comptroller of Texas, effective April 1, 2003, to be administered by the Type A Corporation's Board of Directors ( "Board "); WHEREAS, the Type A Corporation exists for the purposes of encouraging and assisting entities in the creation of jobs for the citizens of Corpus Christi, Texas; WHEREAS, the City Council approved the Corporation's amended Guidelines and Criteria for Granting Business Incentives on September 18, 2007, which the City Council incorporated into the City of Corpus Christi Economic Development Incentive Policies 2009 -2011 on November 17, 2009; WHEREAS, Section 501.073 of the Act requires the City Council to approve all programs and expenditures of the Type A Corporation; WHEREAS, M &G RESINS USA, LLC ( "M &G ") has submitted a proposal to the Type A Corporation for a $3,000,000 grant for investing in new facilities and new equipment for their manufacturing and distribution facilities; WHEREAS, the Board has determined that it is in the best interests of the citizens of Corpus Christi, Texas, to fund M &G's investing in new facilities and new equipment in their manufacturing facilities; and WHEREAS, the Type A Corporation, M &G has executed a business incentives agreement for the creation and retention of jobs related to M &G investing in new facilities and new equipment for their manufacturing facilities. In consideration of the covenants, promises, and conditions stated in this Project Service Agreement, the Type A Corporation and the City agree as follows: 1. Project Service Agreement to Implement Business Incentives Agreement. This Project Service Agreement between the City and the Type A Corporation is executed to implement the Business Incentive Agreement for the Creation of Jobs between the Type A Corporation and Page 1 of 3 0025_4_Type A Business Support Agreement - MG 9 25 12 M &G related to M &G PET manufacturing facility in Corpus Christi's industrial district ( "Business Incentive Agreement "). 2. Term. The term of this Project Service Agreement runs concurrently with the term of the Business Incentive Agreement. 3. Services to be Provided by City. a. The City Manager or designee shall administer funding on behalf of the Type A Corporation. b. The City Manager or designee shall perform contract administration responsibilities outlined in the Business Incentive Agreement for the Type A Corporation. 4. Appropriation of Funds. Any future payments by the City are subject to appropriation of funds by City Council. 5. Effective Date. The effective date of this Project Service Agreement is , 20_. 6. Amendments or Modifications. No amendments or modifications to this Project Service Agreement may be made, nor any provision waived, unless in writing signed by a person duly authorized to sign agreements on behalf of each party. 7. Severability. a. If for any reason, any section, paragraph, subdivision, clause, provision, phrase or word of this Project Service Agreement or the application of this Project Service Agreement to any person or circumstance is, to any extent, held illegal, invalid, or unenforceable under present or future law or by a final judgment of a court of competent jurisdiction, then the remainder of this Project Service Agreement, or the application of the term or provision to persons or circumstances other than those as to which it is held illegal, invalid, or unenforceable, will not be affected by the law or judgment, for it is the definite intent of the parties to this Project Service Agreement that every section, paragraph, subdivision, clause, provision, phrase, or word of this Project Service Agreement be given full force and effect for its purpose. b. To the extent that any clause or provision is held illegal, invalid, or unenforceable under present or future law effective during the term of this Project Service Agreement, then the remainder of this Project Service Agreement is not affected by the law, and in lieu of any illegal, invalid, or unenforceable clause or provision, a clause or provision, as similar in terms to the illegal, invalid, or unenforceable clause or provision as may be possible and be legal, valid, and enforceable, will be added to this Project Service Agreement automatically. 8. Captions. The captions in this Project Service Agreement are for convenience only and are not a part of this Project Service Agreement. The captions do not in any way limit or amplify the terms and provisions of this Project Service Agreement. Page 2 of 3 0025_4_Type A Business Support Agreement - MG 9 25 12 The City of Corpus Christi Corpus Christi Business & Job Development Corporation Ronald L. Olson Robert Tamez City Manager President Date: Date: Attest Armando Chapa City Secretary Page 3 of 3 0025_4_Type A Business Support Agreement - MG 9 25 12 AGENDA MEMORANDUM First Reading Ordinance for the City Council Meeting of October 16, 2012 Second Reading Ordinance /Action for the City Council Meeting of October 23, 2012 DATE: TO: Ronald L. Olson, City Manager 10/11/2012 FROM: Mark E. Van Vleck, Interim Director, Department of Development Services MarkVV @cctexas.com (361) 826-3246 Ordinance authorizing the City Manager, to execute a use privilege agreement with Super Commercial Properties, LLC, and Gates E &S North America, Inc., ( "Permittees "), to install, operate, maintain, and remove an aerial fiber optic communications cable across the 44th Street public right - of -way from 134 44th Street to 123 44th Street. CAPTION: Ordinance authorizing the City Manager to execute a use privilege agreement with Super Commercial Properties, LLC, and Gates E &S North America, Inc. ( "Permittees "), to install, operate, maintain, and remove an aerial fiber optic communications cable across the 44th Street public right -of -way from 134 44th Street to 123 44th Street, subject to Permittees' compliance with the specified conditions. PURPOSE: The purpose of the use privilege agreement is to allow a communications cable to cross City right -of -way (44th Street) from the permittees building located on the east side of the street to their other building located on the west side of the street. BACKGROUND AND FINDINGS: Super Commercial Properties, LLC, and Gates E &S North America, Inc. ( "Permittees ") have requested a Use Privilege Agreement (UPA) from the City to install, operate, maintain, and remove an aerial fiber optic communications cable from one of their three buildings (Building 2) located on the east side of 44th Street to another building (Building 1) located on the west side of the street right -of -way. The installation is to provide a communication service between their buildings. The cable to be installed will be approximately 50 linear feet (the entire width of the street right -of -way), and will maintain a minimum 16 -foot ground clearance at all times for the entire width of the 44th Street right -of -way. Staff recommends that the Owners pay an annual payment of $50.00 for a one -year use privilege agreement, and renewable for four additional one -year terms, for the use of the 44th Street public right -of -way. Owners must comply with all the specified conditions of the ordinance within 180 days of Council approval. ALTERNATIVES: Deny the request of a Use Privilege Agreement. OTHER CONSIDERATIONS: Not applicable. CONFORMITY TO CITY POLICY: City Charter Article IX, Section 1, requires City Council approval for use of any portion of public right -of -way for private purposes. EMERGENCY / NON - EMERGENCY: Non - Emergency DEPARTMENTAL CLEARANCES: All public and franchised utilities were contacted. None of the City departments or franchised utility companies had any facilities or objections regarding the proposed Use Privilege Agreement, provided the applicant meets the specified conditions set out in the Use Privilege Agreement. FINANCIAL IMPACT: ❑ Operating Revenue ❑ Capital ❑ Not applicable Fiscal Year: 2011- 2012 Project to Date Expenditures (CIP only) Current Year Future Years TOTALS Line Item Budget 0 Encumbered / Expended Amount This item $50.00 four successive annual term payments of $50.00 $250.00 BALANCE $50.00 $50.00 $250.00 Fund(s):Development Services 4670 Comments: Not applicable RECOMMENDATION: Staff recommends approval and adoption of the ordinance. Owners must comply with all the following specified conditions of the ordinance: 1. In exchange for the City's authorization to use the public right -of -way to place and maintain the aerial fiber optic communications cable ( "cable "), the Permittees agree to provide the City with an annual payment of $50. 2. The Permittees must ensure that the cable has a minimum 16 -foot ground clearance at all times for the entire width of the 44th Street public right -of -way. 3. The Permittees' use of the cable is strictly limited to serving facilities owned by the Permittees on 44th Street. Permittees may not provide nor permit anyone else to provide service through the cable to any facilities within the City owned by anyone other than the Permittees. 4. All cost incurred to maintain, repair, or remove the cable is the responsibility of the Permittees. LIST OF SUPPORTING DOCUMENTS: Ordinance Use Privilege Agreement Ordinance authorizing the City Manager to execute a use privilege agreement with Super Commercial Properties, LLC, and Gates E &S North America, Inc. ( "Permittees "), to install, operate, maintain, and remove an aerial fiber optic communications cable across the 44th Street public right -of -way from 134 44th Street to 123 44th Street, subject to Permittees' compliance with specified conditions. WHEREAS, Super Commercial Properties, LLC, a Texas limited liability company and property owner of 123 44th Street, Corpus Christi, Texas ( "Permittee No. 1 "), and Gates E &S North America, Inc., a Colorado corporation and property owner of 134 44th Street, Corpus Christi, Texas (who is also the lessee of 123 44th Street) ( "Permittee No. 2 ") (collectively, the "Permittees "), desire to install, operate, maintain, and remove an aerial fiber optic communications cable across the 44th Street public right -of -way; WHEREAS, the Permittees have requested, and the City of Corpus Christi ( "City ") desires to extend, a one -year use privilege agreement ( "Agreement "), renewable for four additional one -year terms, in order to accomplish the purpose and use intended of the public right -of -way; WHEREAS, with proper notice to the public, a public hearing was held on Tuesday, October 16, 2012, during a meeting of the City Council, during which all interested persons were allowed to appear and be heard; and WHEREAS, in accordance with Article IX, Section 1 of the City Charter, the City Council authorizes the City Manager to enter into the Agreement for the benefit of the City and the Permittees, subject to the Permittees' compliance with the specified provisions of the Use Privilege Agreement. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF CORPUS CHRISTI, TEXAS: SECTION 1. The City Manager, or his designee ( "City Manager"), is authorized to execute a one -year use privilege agreement ( "Agreement "), renewable for four additional one -year terms, with Super Commercial Properties, LLC, and Gates E &S North America, Inc. (collectively, the "Permittees ") to install, operate, maintain, and remove an aerial fiber optic communications cable across the public right -of -way on 44th Street, extending from 134 44th Street to 123 44th Street, such Agreement at all times subject to the Permittees' compliance with the conditions specified in the Agreement. A copy of the Agreement is attached to this ordinance as Exhibit "A," the terms and content of which are incorporated by reference into this ordinance as if fully set out herein in their entirety. SECTION 2. The Agreement authorized in Section 1 of this ordinance is subject to the Permittees' compliance with the conditions of the Agreement including, but not limited to, the provisions specified below: 1. In exchange for the City's authorization to use the public right -of -way to place and maintain the aerial fiber optic communications cable ( "cable "), the Permittees agree to provide the City with an annual payment of $50. UPA Super Comm Properties and Gates E & S NA ORDINANCE vFinal2 (10 -12 -2012) Page 1 of 2 2. The Permittees must ensure that the cable has a minimum 16 -foot ground clearance at all times for the entire width of the 44th Street public right -of- way. 3. The Permittees' use of the cable is strictly limited to serving facilities owned by the Perm ittees on 44th Street. Perm ittees may not provide nor permit anyone else to provide service through the cable to any facilities within the City owned by anyone other than the Permittees. 4. All costs incurred to maintain, repair, or remove the cable is the responsibility of the Permittees. The foregoing ordinance was read for the first time and passed to its second reading on this the day of , 2012, by the following vote: Joe Adame David Loeb Chris N. Adler John E. Marez Kelley Allen Nelda Martinez Larry Elizondo Mark Scott Priscilla G. Leal The foregoing ordinance was read for the second time and passed finally on this the day of , 2012, by the following vote: Joe Adame David Loeb Chris N. Adler John E. Marez Kelley Allen Nelda Martinez Larry Elizondo Mark Scott Priscilla G. Leal PASSED AND APPROVED this the day of , 2012. ATTEST: Armando Chapa City Secretary Joe Adame Mayor UPA Super Comm Properties and Gates E & S NA ORDINANCE vFinal2 (10 -12 -2012) Page 2 of 2 IIIIItii1iiiiIjIijhijj' 45T_ 111111111111111111 mar TIN 1 AGNES STREET PLAN VIEW USE PRIVILEGE AGREEMENT SUPER COMMERCIAL PROPERTIES, L.L.C. and GATES E &S NORTH AMERICA, INC. (123 44th Street and 134 44th Street) EXHIBIT A USE PRIVILEGE AGREEMENT STATE OF TEXAS § COUNTY OF NUECES § This use privilege agreement ( "Agreement ") is entered into by and between the City of Corpus Christi ( "City "), a Texas home -rule municipal corporation, Super Commercial Properties, LLC ( "Permittee No. 1"), a Texas limited liability company and property owner of 123 44th Street, Corpus Christi, Texas ( "Building 1"), whose business address is 4531 Ayers Street, Suite 201, Corpus Christi, Texas, and Gates E &S North America, Inc. ( "Permittee No. 2 "), a Colorado corporation and property owner of 134 44th Street, Corpus Christi, Texas ( "Building 2 "), who is also the lessee of Building 1. In accordance with Article IX, Section 1, of the City's City Charter and in consideration of payment of Fifty Dollars ($50.00) paid by Permittee No. 1 and Permittee No. 2 (collectively referred to in this Agreement as "Permittees"), the receipt of which is acknowledged, the City has granted and conveyed, and by these presents does grant and convey to Permittees, for the term and upon the conditions stated in this Agreement, a use privilege for the right to install, operate, maintain, and remove an aerial fiber optic communications cable from a private pole located on the north side of Building 2 crossing approximately 50 linear feet of the 44th Street public right -of -way and attaching to the highest portion of Building 1 ( "Aerial Fiber Optic Cable "), as shown in Exhibits "A" (plan view) and "B" (site plan). Copies of Exhibits "A" and "8" are attached to this Agreement and incorporated into this Agreement by reference as if fully set out here in their entireties. The area in which the use privilege is granted to locate the Aerial Fiber Optic Cable is referred to in this Agreement as the Use Privilege Area. TO HAVE AND TO HOLD the same unto Permittees, their successors and assigns, together with the right under the conditions specified in this Agreement, to at any time enter upon the above described public right -of -way to maintain the Aerial Fiber Optic Cable, and it is further understood that the use privilege granted by this Agreement is subject to the Permittees' compliance at all times with the following conditions: A. This Agreement, and the rights granted under the Agreement, may be revoked at any time by the City upon providing the Permittees not less than 30 days notice in writing by the City's City Manager, or his designee ( "City Manager "). In the event of a revocation by the City Manager or earlier termination of this Agreement by either party, no portion of any payment made under this Agreement is refundable to the Permittees. B. This Agreement is for a term of one (1) year. At the end of the initial term, this Agreement renews automatically for up to four (4) successive annual terms upon the payment of $50 by the Permittees, unless Permittee No. 1, Permittee No. 2, or the City provides written notice of intent not to renew to the non- terminating parties at least 60 days before the end of any annual term. UPA% 20Gates% 20Super% 20Comm %20Properties %20vFinal[1] Page 1 of 8 C. This Agreement may not be assigned by Permittees, either individually or collectively, without the City Manager's prior written consent. Any appropriately approved assignment of this Agreement to any tenant of Permittees (either individually or collectively), or other successor or assign of Permittees, shall cause all terms and conditions of this Agreement to become binding upon said tenant, successor, or assign. D. The Permittees shall acquire and maintain at all times for the term of this Agreement insurance coverages pertaining to the Use Privilege Area granted under this Agreement and the activities authorized by this Agreement. The types of required insurance coverages must be in the minimum amounts set forth in the attached Exhibit "C," the substantive content of Exhibit "C" being incorporated by reference into this Agreement as if fully set out here in its entirety. The insurance policies must name the City as an additional insured and may not be canceled, renewed, or materially changed by Permittees unless at least ten (10) days advance written notice has been provided to the City. Upon the City Manager's written request, Permittees shall provide copies of all requested insurance policies to the City's City Attorney. E. Should construction be deemed necessary by Permittees in the Use Privilege Area, construction plans and specifications for all proposed work shall be submitted in advance by the Permittees to the City's City Engineer for approval prior to beginning the construction process. The plans must show the depth, ground clearance (16 -feet minimum clearance), and location of the proposed construction and distance from existing water, storm water, wastewater, and gas lines. The Permittees shall also comply with any other laws, rules, regulations, and ordinances applicable to construction in the City and in the public right -of -way, including obtaining all required permits. E. Prior to the start of any approved construction, Permittees shall require every contractor and subcontractor to provide a Certificate of Insurance reflecting insurance in coverage amounts as set forth in Exhibit "C." Additionally, Permittees shall require their contractors and subcontractors to indemnify the City, its officers, officials, employees, representatives, agents, licensees, and invitees in the same manner that Permittees have provided indemnification to the City pursuant to this Agreement. G. Permittees shall provide all necessary and proper safety devices so as to prevent injuries or accidents in the Use Privilege Area, in as much as possible. H. At least 48 hours prior to beginning any approved construction, Permittees shall contact 1- 800 - DIG -TESS and the Lone Star Notification Center (1 -800- 669- 8344), and any other required agency or authority. Additionally, at least 48 hours prior to beginning any approved construction, Permittees shall give notice and verify depth and location of communication lines or communication fiber optic cables, whichever is applicable, to the following: UPA% 2OGates% 20Super% 20Cornm %2OProperties %200,irral[1] Page 2 of 8 ® City Utility Departments, including Water, Storm water, Wastewater and Gas; • American Electric Power (AEP); ® American Telephone and Telegraph (AT &T); e CenturyTel; O Time Warner; ® Grande Communications; and O Any and all other certified telecommunications providers. A City inspector may request a utility line be uncovered to verity its depth or location. I. Any construction process and use of the Use Privilege Area by Permittees shall not interfere with the construction, installation, operation, maintenance, repair, removal or replacement by the City or any of its agents, contractors, or franchisees of any existing or future proposed sidewalks, utility lines, or other uses. If the City or any franchisee with utilities currently located in said public right -of -way needs access to the right-of-way, Permittees shall pay for removing or relocating the Aerial Fiber Optic Cable in the Use Privilege Area to allow access to utility lines for maintenance, repair, removal, or replacement of the utility lines. The Permittees shall repair the Use Privilege Area to its original condition or cease to use the Use Privilege Area, at which time this AGREEMENT terminates immediately. J. Traffic Engineer requirements pertaining to this Agreement, if applicable in context: 1. At least 48 hours prior to commencing approved construction, the Permittees shall file and obtain approval for a traffic control plan with the City's Traffic Engineer, No closure or barricading of a public right -of -way or any portion of a public right -of -way may occur before approval of the traffic control plan and, if applicable, approval of a detour or barricade plan has been obtained from the City's Traffic Engineer. 2. Should Permittees require a trench, pit, or similar excavation be dug during approved construction, the Permittees shall file and obtain approval for barricading said trench, pit, or excavation in accordance with the Texas Manua! on Uniform Traffic Control Devices from the City's Traffic Engineer. [See paragraph "P" of this Agreement for additional requirements regarding trenches, pits and similar excavations.] K. If, as determined by the City Manager, damage occurs to any gas, water, storm water, or wastewater line, Permittees shall allow the City immediate access to the Use Privilege Area to perform an assessment, make repairs, or take any other action deemed necessary by the City. Determination of the extent of damage and repairs necessary to restore the utility line(s) shall be made by the City Manager. All costs of the City associated with said damage UPA% 20Gates% 205uper% 20Comrr m %20Properties %20vfinal[1] Page 3 of 8 and repair, including labor and materials, shall be paid by Permittees within 30 days of the City's invoice. L. Should construction become necessary near existing water or wastewater lines, Permittees shall take every precaution not to disturb the soil surrounding any such lines, including all thrust blocks. M. If any approved work is conducted near any existing water main, it shall be done under the inspection of a City inspector at a daily rate of three- hundred ten dollars and thirty -five cents ($310.35) for each day spent inspecting construction, installation, maintenance, repair, removal, or replacement in the Use Privilege Area. A half -day, being four hours or more of work time by the City inspector, constitutes a whole working day for purposes of calculation. Any time in excess of eight hours a day, or on Saturday, Sunday or holidays, shall be calculated at a daily rate of fifty -eight dollars and eighteen cents ($58.18) per hour. Any assessed inspection fees shall be paid by the Permittees to the appropriate City department within 30 days of the City's invoice. These amounts will be adjusted annually each year on August 1 to reflect any pay increases that may be attributable to the rates charged. N. At any and all times, Permittees shall be responsible for the repair and maintenance of the Aerial Fiber Optic Cable and Use Privilege Area, including any costs associated with damage occurring due to natural weather elements /occurrences or man -made forces. Should damage occur to the Aerial Fiber Optic Cable or Use Privilege Area, regardless of the type of damage, Permittees shall repair the damage within 30 days of notice by the City. Failure to so repair terminates this Agreement immediately without any further action needed on the part of the City. O. Permittees shall repair, or cause to be repaired, any damage to driveways, culverts, head walls, landscaping, sidewalks, curbs, gutters, and any other structure, public or private, resulting from or caused by reason of construction, installation, maintenance, repair, removal, replacement or operation of the Aerial Fiber Optic Cable and Use Privilege Area. P. If a trench, pit, or other excavation is required during approved construction, no trenches, pits, or other excavation, other than bore pits, shall be left open overnight, except as specifically authorized by the City's Director of Development Services and City's Engineer. Bore pits are not allowed open for a period of longer than 14 calendar days, regardless of location. All trenches, pits, or other excavations, other than bore pits, shall be backfilled by the Permittees promptly and in accordance with current City standards and specifications and as per the City inspector's request. All trenches, pits, and other excavations, including bore pits, shall be barricaded by the Permittees in accordance with the Texas Manual on Uniform Traffic Control Devices and as approved by the City's Traffic Engineer. [See paragraph "J.2." for additional requirements pertaining to trenches, pits, and other excavations.] UPA1 20Gates% 20Super% 20Comm %20Propertics %20vFina][1] Page 4 of 8 Q. If backfilling becomes necessary, all backfill, specifically including that in and around existing utilities, shall be made by Permittees according to current City standards and specifications and as required by a City inspector. R. Use of the Aerial Fiber Optic Cable authorized by this Agreement is strictly limited to serving Buildings 1 and 2 in the Use Privilege Area. Permittees shall not provide, nor permit anyone else to provide or receive, service through said Aerial Fiber Optic Cable or at any facilities within the City other than the buildings specifically included in this Agreement without first obtaining a franchise from the City. S. INDEMNIFICATION. PERMITTEES, THEIR RESPECTIVE OFFICERS, MEMBERS, PARTNERS, EMPLOYEES, AGENTS, AND LICENSEES, (COLLECTIVELY REFERRED TO FOR PURPOSES OF THIS SUBPARAGRAPH AS "INDEMNITORS ") SHALL FULLY INDEMNIFY, SAVE, AND HOLD HARMLESS THE CITY OF CORPUS CHRISTI, ITS OFFICERS, OFFICIALS, EMPLOYEES, REPRESENTATIVES, AGENTS, LICENSEES, AND INVITEES, ("INDEMNITEES"), AGAINST ANY AND ALL LIABILITY, DAMAGE, LOSS, CLAIMS, DEMANDS, AND ACTIONS OF ANY NATURE WHATSOEVER ON ACCOUNT OF PERSONAL INJURIES, (INCLUDING, WITHOUT LIMITATION ON THE FOREGOING, WORKERS' COMPENSATION AND DEATH CLAIMS), PROPERTY LOSS, OR DAMAGE OF ANY KIND WHATSOEVER, WHICH ARISE OUT OF OR ARE IN ANY MANNER CONNECTED WITH, OR ARE CLAIMED TO ARISE OUT OF OR BE IN ANY MANNER CONNECTED WITH, THE USE OF THE PROPERTY UNDER THIS AGREEMENT, INCLUDING SAID INJURY, LOSS OR DAMAGE CAUSED BY THE CONCURRENT OR CONTRIBUTORY NEGLIGENCE OF THE INDEMNITEES OR ANY OF THEM INDIVIDUALLY. INDEMNITORS SHALL, AT INDEMNITORS' OWN EXPENSE, INVESTIGATE ALL CLAIMS AND DEMANDS, ATTEND TO THEIR SETTLEMENT OR OTHER DISPOSITION, DEFEND ALL ACTIONS BASED THEREON WITH COUNSEL 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. UPA% 20Gates% 20Super% 20Cornm %20Properties %20vFinal[1] Page S of 8 T. All signatories signing this Agreement warrant and guarantee that they have the authority to act on behalf of the entity represented and make this Agreement binding and enforceable by their signatures. U. Unless otherwise stated in this Agreement, any notice required or permitted to be given under this Agreement must be in writing and sent by certified mail, return receipt requested to the following addresses: If to Permittee No. 1: If to Permittee No. 2: If to the City: Super Commercial Properties, LLC 4531 Ayers Street, Suite 201 Corpus Christi, TX 78415 Gates E &S North America, Inc. 134 44th Street Corpus Christi, TX 78405 City of Corpus Christi Attn: Director, Development Services Department P. 0. Box 9277 Corpus Christi, TX 78469 -9277 Any party shall, by notice to the others in accordance with the provisions of this paragraph, specify a different address or addressee for notice purposes within 10 days of any address change. V. This Agreement shall be construed under and in accordance with the laws of the State of Texas, and all obligations of the parties created pursuant to this Agreement are performable in Nueces County, Texas. Venue for all actions arising from, out of, or related to this Agreement must be brought in Nueces County, Texas. W. The Permittees further agree, in compliance with the City of Corpus Christi Ordinance No. 17112, to complete, as part of this Agreement, the "Disclosure of Interests" form attached to this Agreement as Exhibit "D." Completed versions of Exhibit "D" by Permittees No. 1 and No. 2 form a part of this Agreement and are incorporated• by reference into this Agreement as if set out here in their entireties. X. This instrument, including exhibits, constitutes the entire agreement between the City and the Permittees, and no prior written, oral, or contemporaneous promises, warranties, or representations shall be binding upon any parties. This Agreement may only be amended by written instrument signed by the City and Permittees and approved as required by City law. EXECUTED IN TRIPLICATE this / day of 0 UPA% 20Gates% 205uper% 20Comm %2OProperties %20vFinal[1] Page 6 o 8 ACCEPTED BA Zora• a1"'" ages Sup- om r ercial Properties, LLC ACKNOWLEDGMENT STATE OF TEXAS COUNTY OF NUECES This instrument was acknowledged before me on # , 2012, by Zorach J. Super, Manager of Super Commercial Properties, LLC, a Texas limited liability co s ; ,.,9,n,behalfof said company. • ACCEPTED BY: MARY RAMIREZ NOTARY PUBLIC State or Texas Comm. Exp, oBtatiora Eric McDonald, General Manager Gates E &S North America, Inc. Notarry Pr`dblic' Signatu ACKNOWLEDGMENT STATE OF jwi § COUNTY OF e § This instrument was acknowledged before me on Qc Q 2012, by Eric McDonald, General Manager, Gates E &S North America, Inc., a Colorado corporation, on behalf of said corporation. 11:131 ,11: ri. P Y COMMISSION 1.:XPIRly "Cp ruler h, 2013 o Notary Public's Signature t1PA% 20Gates% 205uper% 20Comm %20properties %20vFinal[1] Page 7 of 8 ATTEST: CITY OF CORPUS CHRISTI Armando Chapa Ronald L. Olson City Secretary City Manager APPROVED AS TO LEGAL FORM: , 2012 Elizabeth Hundley Assistant City Attorney for the City Attorney UPA/ 20Gates% 20Super% 20Comm %20Properties %2ovFinal[i] Page 8of 8 tR Rae STREkr AGNES STRUT KHAN VIEW USE PRIVILEGE AGREEMENT SUPER COMMERCIAL PROPERTIES, LAC. and GATES HAS NORTH AMERICA, INC. (123 44th Street and 134 44th Street) EXHIBIT A EXHIBIT C INSURANCE REQUIREMENTS 1. PERMITTEE'S LIABILITY INSURANCE A. Permittee must not commence work under this agreement until all insurance required herein has been obtained and such insurance has been approved by the City. Permittee must not allow any subcontractor to commence work until all similar insurance required of the subcontractor has been obtained. B. Permittee 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 blanket waiver of subrogation is required on all applicable policies. TYPE OF INSURANCE MINIMUM INSURANCE COVERAGE 30 day written notice of cancellation is required on all certificates or by policy endorsement Bodily Injury and Property Damage Per occurrence - aggregate Commercial General Liability including: 1. Commercial Broad Form 2. Premises — Operations 3. Underground Hazard (if applicable) 4. Products/ Completed Operations Hazard 5. Contractual Liability 6. Independent Contractor 7. Personal Injury/ Advertising Injury $. $1,000,000 Per Occurrence $2,000,000 Aggregate AUTOMOBILE LIABILITY 1. Owned Vehicles 2. Hired and Non -owned Vehicles $1,000,000 COMBINED SINGLE LIMIT WORKERS' COMPENSATION EMPLOYERS' LIABILITY WHICH COMPLIES WITH TFIE TEXAS WORKERS' COMPENSATION ACT AND PARAGRAPH II OF THIS EXHIBIT $500,000 /$500,000/$500,000 C. In the event of accidents of any kind, Permittee rnustfurniish the Risk Manager with copies of all reports related to this permit of such accidents within 10 days of any accident. tto A.t?t t' cioNA,ia A. Permittee 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. B. Permittee's financial integrity is of interest to the City; therefore, subject to Permittee's right to maintain reasonable deductibles in such amounts as are approved by the City, Permittee shall obtain and maintain in full force and effect for the duration of this Contract, and any extension hereof, at Permittee's sole expense, insurance coverage written on an occurrence basis, by companies authorized and admitted to do business in the State of Texas and with an A.M. Best's rating of no Tess than A- VII. C. The City shall be entitled, upon request and without expense, to receive copies of the policies, declarations page and all endorsements thereto as they apply to the limits required by the City, and may require the deletion, revision, or modification of particular policy terms, conditions, limitations or exclusions (except where policy provisions are established by law or regulation binding upon either of the parties hereto or the underwriter of any such policies). Permittee 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. Permittee 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. Permittee agrees that with respect to the above required insurance, all insurance policies are to contain or be endorsed to contain the following required provisions: • Name the City and its officers, officials, employees, volunteers, and elected representatives as additional insured by endorsement, as respects operations and activities of, or on behalf of, the named insured performed under contract with the City, with the exception of the workers' compensation and professional liability polices; O 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; O 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 Tess than ten (10) calendar days advance written notice for nonpayment of premium. B. Within five (5) calendar days of a suspension, cancellation, or non- renewal of coverage, Successful Bidder shall provide a replacement Certificate of Insurance and applicable endorsements to City. City shall have the option to suspend Permittee's performance should there be a lapse in coverage at any time during this contract. Failure to provide and to maintain the required insurance shall constitute a material breach of this agreement. �. In addition to any other remedies the City may have upon Permittee'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 Permittee to stop work hereunder, and/or withhold any payment {s} which become due to Permittee hereunder until Permittee demonstrates compliance with the requirements hereof, G. Nothing herein contained shall be construed as limiting in any way the extent to which Permittee may be held responsible for payments of damages to persons or property resulting from Permittee's or its subcontractor's performance of the work covered under this agreement. H. It is agreed that Permittee's insurance shall be deemed primary and noncontributory 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. Gates E &S North America Use Privilege Agreement (UPA) ins. req. 9/7/12 ds Risk Mgmt. DATE: TO: Ronald L. Olson, City Manager AGENDA MEMORANDUM Future Item for the City Council Meeting of October 16, 2012 Action Item for the City Council Meeting of October 23, 2012 10/16/2012 FROM: Michael Barrera, Assistant Director of Financial Services m ikeb(a�cctexas. com 361- 826 -3169 Lawrence Mikolajczyk, Director of Solid Waste Operations LawM(ccctexas.com 361- 826 -1972 Lease Purchase of Six (6) Side Loading Refuse Trucks CAPTION: Motion approving the lease- purchase of six (6) side - loading refuse trucks from Rush Truck Centers of Texas LP, Houston, Texas for a total amount of $1,576,127.60 of which $84,438.57 is required for the remainder of FY 2012 -2013. The award is based on the cooperative purchasing agreement with the Texas Local Government Purchasing Cooperative (TLGPC). All units are replacements to the fleet and will be used by the Solid Waste Department. Financing for the lease- purchase of the vehicles will be provided through the City's lease- purchase financing program. PURPOSE: The six (6) side loading refuse trucks will be used by the Solid Waste Department as part of the City- wide automated collection process. These units are replacements to the fleet. BACKGROUND AND FINDINGS: The City's garbage and recycling fleet consists of 32 automated side - loaders and 17 rear - loading collection trucks. The garbage collection fleet utilizes nineteen (19) automated side - loaders and three (3) rear - loaders for daily refuse collection. The recycling collection fleet, on most days, consists of ten (10) automated side - loaders and one (1) rear - loader. Of the 32 automated side - loaders, eleven (11) were placed in service more than 10 years ago. The six (6) side - loading refuse trucks recommended herein will replace six (6) of those eleven (11). 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: The refuse trucks will be funded for a sixty -month period with an estimated interest rate of 2.75 %. The actual interest rate will be determined after acceptance of the refuse trucks. The estimated annual payment is $337,754.28. Total estimated cost over the sixty -month period, including principal of $1,576,127.60 and interest of $112,643.80, is $1,688,771.40. 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: Solid Waste Department FINANCIAL IMPACT: Fiscal Year: 2012 -2013 Project to Date Expenditures (CIP only) Current Year Future Years TOTALS Line Item Budget $2,357,283.60 $1,604,332.83 $3,961,616.43 Encumbered / Expended Amount $180.41 $0.00 $180.41 This item $84,438.57 $1,604,332.83 $1,688,771.40 BALANCE $2,272,664.62 $2,272,664.62 Fund(s): Solid Waste 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 DATE: OCTOBER 16, 2012 BUYBOARD CONTRACT #358 -10 REFUSE TRUCKS PRICE SHEET Rush Truck Centers of Texas LP Houston, Texas ITEM DESCRIPTION QTY UNIT UNIT PRICE EXTENDED PRICE 1 2 Peterbilt 320 Cab /Chassis, Right Hand Drive, Tandem Rear Axle, and "Heil DP Python" 28 Cu Yd. Automated Side Loading Refuse Body. Peterbilt 320 Cab /Chassis, Right Hand Drive, Single Rear Axle, and "Heil DP Python" 24 Cu Yd. Automated Side Loading Refuse Body. 4 2 EACH $270,639.40 EACH $246,785.00 $1,082,557.60 $493,570.00 TOTAL $1,576,127.60 AGENDA MEMORANDUM Future Item for the City Council Meeting of October 16, 2012 Action Item for the City Council Meeting of October 23, 2012 DATE: TO: September 27, 2012 Ronald L. Olson, City Manager FROM: Floyd Simpson, Chief of Police flovdsCa�cctexas. com 886 -2603 Motion authorizing purchase of hand held ticket writers from Brazos Technologies CAPTION: Motion approving the purchase of fifteen (15) hand held ticket writers for the Corpus Christi Police Department in the amount of $69,419, from Brazos Technologies, College Station, Texas based on General Services Administration Contract No GS -35F- 0096X. Funds are available through the 2012 Edward Byrne Justice Assistance Grant. PURPOSE: The ticket writers will be used by the officers assigned to the Traffic Division of the Police Department. BACKGROUND AND FINDINGS: Traffic Officers will be issued hand held ticket writers to improve the quality of documentation on citations as well as enhance officer safety. The officer scans the magnetic strip on a license for driver information; officer fills in other blanks, and then prints the ticket on a wireless printer. This cuts down on the amount of time to issue a ticket as well as lessens the time an officer is exposed to traffic while issuing a citation. The number of citations thrown out of court due to illegible handwriting or improperly written citations is greatly reduced. The information from each ticket writer is downloaded into the Municipal Court system daily. Parking Enforcement and Code Enforcement are using the same product. ALTERNATIVES: None OTHER CONSIDERATIONS: None CONFORMITY TO CITY POLICY: Conforms to City Policy EMERGENCY / NON - EMERGENCY: Non - emergency DEPARTMENTAL CLEARANCES: Legal Purchasing Finance 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 $84,787.50 $84,787.50 Encumbered / Expended Amount This item $69,419 $69,419 BALANCE $15,368.50 $15,368.50 Fund(s): 1061 Police Grants Fund Comments: RECOMMENDATION: Staff recommends approval of the purchase.0 LIST OF SUPPORTING DOCUMENTS: Brazos Technology quotation GSA Contract GS-35F-0096X Quote Date: 09/20/2012 KEY PAD, WM w r.a ce w cc' 2 0 2 ci • • a_ O • 0 " 0 3 CD MOTOROLA, M MC75A8-P1FSWQRA9WR 04 Lrc: 0 0 0 2 2 04 04 0 0- 0 4.11 UJ 0 0 co 2 0 cc 0 0 04 tD cc) 11 R40-OUBA000N-00 , . , , 0 w 2 ' 2 0 Z 0 • .7EBRA, RW P 16614-G1-004 9 N 0 PLL'ESTAR WARRAN 18-13111MMIIINIMI IN-A-BOX, COP, ELECTRONIC CITATION, 1N-CAR PRINTER CHARGER WPRINTER MOUNT (QTY. 8) CC16614-G1 27BRA = N420, 12‘d P I LATER CHARGER (QTY, 8) 727-06 PRIN7i F1 JEHICLE PE ESTAL MOUNT (OTY. 8) :- SYSTEM INTEGP = =,LLIE LDD SEF 111(= ES AT 550 J-WARRANTY-50 STAR WAF r. r , 0 N co MM. r • IN-A-BOX, COP, ELECTRONIC CtTATION, 4 SLOT CRADLE (CtTY. 2) CRD7000-410F EL. MOT ROLA, MC70 AND MC75 FOUR SLOT ETHERNET CRADLE KIT, INCLUDES POWER SUPPLY, DC L 1E CORD, AC POWER CORD (QTY. 2) BSU-WARRANTY-50 BLUESTAR WARRANTY Valid for 30 days from date of quote. Brazos Technolo GSA Contract GS- 35F -0096X Quote Date: 09/20/2012 1' LLJ 4 Cd 4 u 0 4 4 >•• ce 2 0 4 0 L) 4 2 1- 0 0 z 0 0 2 0 4 LJ co AND US AC LINE CORD 414- 0 a. v, 0 2 ItC UJ 0 0 0 0 0 0 BSU - WARRAN' ....... ...... 0 1- 2 0 LsJ 0 • 1,..9 Z z < 0 1- uJ Z 0 0 < Z 41- 0 , 5 w 2 0 < 0 2 , o 2 0 u Z 0 0 41- 0 Ce > 0 toy 011 roo' 0 2 0 2 0 0 2 11.1 0 2 4-- 0 0 ex, 0 0 0 0 0 0 l- a. 2 0 0 LL1 u 0 (.6 2 ,TE 4- >z 0 0 u 0 SYSTEM INTEGRATION VALUE ADD SERVICES AT S50 BLUESTAR WARRANTY 9 4.0 CO m 9 0 14:L) BSU-WARRAN HI TS /RETURNS uJ 0 Non -GSA Items o 0 m 'a U4 00 01 N (-4 tn. 1.4 .1.11 Valid for 30 days from date of quote. AGENDA MEMORANDUM Future Item for the City Council Meeting of October 16, 2012 Action Item for the City Council Meeting of October 23, 2012 DATE: TO: September 24, 2012 Ronald L. Olson, City Manager FROM: Daniel Biles, P.E., Director of Engineering Services DanB @cctexas.com (361) 826 -3729 Gustavo Gonzalez, P.E., Director of Water Operations GustavoGo@cctexas.com (361) 826 -1874 Approval of Contract for Geotechnical Engineering Services: Padre Island Water Supply Study CAPTION: Motion authorizing the City Manager, or designee, to execute a Contract for Geotechnical Engineering Services with Kleinfelder Central, Inc. of Corpus Christi, Texas in the amount of $70,000.00 for the Padre Island Water Supply Study. PURPOSE: The purpose of this Agenda Item is to execute the contract for the Padre Island Water Supply Study so a geotechnical study may be performed. BACKGROUND AND FINDINGS: The project involves construction of about 17,000 linear feet of 18 -inch diameter water transmission main, eight inch diameter natural gas line, and a four -inch diameter Management Information System (MIS) conduit from Laguna Shores Boulevard to Padre Island. The purpose of the proposed investigation will be to provide recommendations for use during the design and construction of the water line, gas line, and MIS conduit. To accomplish this, services include exploring subsurface soil conditions, obtaining physical soil properties by laboratory testing, and providing recommendations for use during design of the line and conduit. This geotech agreement is only for the waterline directional drill contract. The study is necessary to design and bid the project. The gas line and MIS conduit will go in separately after the waterline project is complete. ALTERNATIVES: 1. Award the contract to Kleinfelder Central, Inc. as proposed. 2. Do not award the contract to Kleinfelder Central, Inc. as proposed. OTHER CONSIDERATIONS: Not applicable. CONFORMITY TO CITY POLICY: Conforms to statues regarding FY 2012 -2013 Water Capital Improvement Planning (CIP) Budget. EMERGENCY / NON - EMERGENCY: Non - emergency DEPARTMENTAL CLEARANCES: Water Department 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 $423,700.00 $3,360,800.00 4,320,000.00 $8,104,500.00 Encumbered / Expended Amount $423,700.00 $423,700.00 This item $70,000.00 $70,000.00 Future Anticipated Expenditures 3,290,800.00 3,959,740.00 $7,250,540.00 BALANCE $0.00 0.00 $360,260.00 $360,260.00 Fund(s): Water CIP #15 RECOMMENDATION: City staff recommends the Contract for Geotechnical Engineering Services be awarded to Kleinfelder Central, Inc. of Corpus Christi, Texas, in the amount of $70,000.00 for the Padre Island Water Supply Study. LIST OF SUPPORTING DOCUMENTS: Project Budget Location Map Agreement PROJECT BUDGET ESTIMATE PADRE ISLAND WATER SUPPLY STUDY Future Item for the City Council Meeting of October 16, 2012 Action Item for the City Council Meeting of October 23, 2012 FUNDS AVAILABLE: Water CIP $8,104,500.00 FUNDS REQUIRED: Construction (Estimate) Contingencies (10 %) 6,000,000.00 600,000.00 Consultant Fees: Consultant Design (Urban Engineering) * 414,240.00 Geotechnical Testing (Kleinfelder Central, Inc.) 70,000.00 Reimbursements: Contract Administration (Contract Preparation /Award /Admin) 135,000.00 Engineering Services (Project Mgt/Constr Mgt/Traffic Mgt) 210,000.00 Construction Observation 210,000.00 Finance 75,000.00 Misc. (Printing, Advertising, etc.) 30,000.00 TOTAL $7,744,240.00 ESTIMATED PROJECT BUDGET BALANCE $360,260.00 * Consultant Design Contract awarded on June 21, 2011 to Urban Engineering by Motion No. 2011 -134. Construction Observation Services are not included in Consultant Design Contract. \Mproject\councilexhibits\exhEl 01 72b. dwg CO2 T'LIS CHRISTI B.A1J PROPOSED INTERIM WATER TRANSMISSION MAIN IMPROVEMENTS LAr'LLJ f M DRE G2ILTOF MEXICO LOCATION MAP NOT TO SCALE PROJECT #E10172 PADRE ISLAND WATER SUPPLY STUDY CITY COUNCIL EXHIBIT CITY OF CORPUS CHRISTI, TEXAS DEPARTMENT OF ENGINEERING SERVICES PAGE: 1 of 1 AGREEMENT for Geotechnical Engineering Services This AGREEMENT is between the City of Corpus Christi, Texas, a Texas home-rule municipal corporation ("CITY"), acting through its duly authorized City Manager or designee ("City Engineer"), and KLEINFELDER CENTRAL, INC., a Texas corporation or partnership ("LAB"), acting through its duly authorized representative who is Emad Al Turk, P.E., Vice-President, which agree as follows: 1. DECLARATIONS: "CITY" desires to engage "LAB" to provide services in connection with City's project, described as follows: Padre Island Water Supply Study (Project No E10172) ("PROJECT"). 2. SCOPE OF WORK: "LAB" shall provide services to the PROJECT in accordance with the accompanying Scope of Services and Fee Schedule attached as "Exhibit A and the Terms and Conditions to AGREEMENT attached as "Exhibit C. 3. FEE: The ''CITY" agrees to pay the "LAB" for services provided in accordance with Exhibit "K, Scope of Services and Fee Schedule under this AGREEMENT, a total fee not to exceed $70,000.00 (Seventy Thousand Dollars and Zero Cents). Monthly invoices shall be submitted in accordance with Exhibit "D". 4. INDEMNIFICATION AND HOLD HARMLESS: The Consultant agrees to indemnify, save harmless and defend the City of Corpus Christi, and its agents, servants, and employees as more fully set forth in Exhibit "B". 5. CITY'S DISCLOSURE OF HAZARDOUS & TOXIC MATERIALS AND CONDITIONS AT THE PROJECT SITE. To the best of the City's knowledge, based upon currently available information, the only hazardous or toxic materials, as defined by the laws and regulations of the Federal government, the state, and city which exist at the PROJECT SITE are as follows: None. CITY OF CORPUS CHRISTI ER ENTRA Oscar R. Martinez, Assistant City Manager RECOMMENDED Daniel Biles, P.E. Director of Engineering Services Operating Department APPROVED AS TO FORM (Date) (Date) (Da e) Office of Management and Budget (Date) Legal Department ATTEST (Date) KLEIN ENTRAL, INC. Emad Al Turk, P.E. (Date) Vice-President 5002 Ambassador Row Corpus Christi, Texas 78416 (361) 854-4774 Office (361) 854-4924 Fax ENTERED SEP 25 2J12 CON I KAG1 MAN/ER Project No. E10172 Fund Source No. 550920-4479-00000-E10172 Water CIP Encumbrance No. Armando Chapa, City Secretary K:LENGINEERING DATAEXCHANGEUENNIFERSWATER1E10172 PADRE ISLAND WATER SUPPLYSTESTING AGREEMENT.DOC KLEINEELDER 8right People. Right SolutiOPS, July 20, 2012 Proposal No: 128140 City of Corpus Christi P. 0. Box 9277 Corpus Christi, Texas 78469-9277 Attention: Mr. Dan Biles, P.E. Interim Director of Engineering Services Subject: Proposed Geotechnical Study Padre Island Water Supply Corpus Christi, Texas Dear Mr. Biles: As requested, we are pleased to submit this proposal for professional geotechnical engineering services for the Padre Island Water Supply project. This proposal is based on project information provided to us by Mr. J. Douglas McMullan, P.E. with Urban Engineering. The scope of services was developed in consensus with Mr. McMullan. The following sections provide our understanding of the project and our proposed scope of services. PROJECT UNDERSTANDING The project involves construction of about 17,000 lineal feet of 18-inch diameter water transmission main, 8-inch diameter natural gas line, and a 4-inch diameter Management Information System (MIS) conduit from Laguna Shores Boulevard to Padre Island in Corpus Christi, Texas. The project includes about 6250 ft of pipe installed by the horizontal directional drilling (HDD) method. Polyvinyl chloride (PVC) pipe is proposed for use for the water line and MIS conduit. The natural gas line will be 8-inch DR9 HDPE. The water line alignment will follow the edge of pavement or retaining wall along the John F. Kennedy (JFK) Causeway, about 10 to 20 feet away from the structures. The water line and MIS conduit will be buried with about 2.5 feet of cover using conventional cut and cover method and with 10 to 50 feet of cover using the HDD method. The gas line will be located about 5 feet from the water line and buried with about 3 feet of cover. 128140 / CCH12P0236Draft2 Copyright 2012 Kleinfelder . . 5002 Ambassador Row, Corpus Christi, TX 78416 p 1 361.854.4774 f 1 361.854.4924 Page 1 of 6 July 20, 2012 EXHIBIT "A" Pa e I of 6 Based on review of available geological maps and our previous experience, the site is located on an outcropping of the Beaumont Formation with barrier island and beach deposits. These deposits consist of relatively thick layers of sand with clay and silt underlain by alternating strata of clay and sand. PURPOSE AND SCOPE OF BASIC SERVICES The purpose of the proposed study will be to provide recommendations for use during the design and construction of the water line, gas tine, and MIS conduit. To accomplish this purpose . the proposed Scope of Basic Services includes exploring subsurface soil conditions, obtaining physical soil properties by laboratory testing, and providing recommendations for use during design of the lines and conduit. This scope is discussed in detail below. Field Exploration • Coordinate field activities with the Texas Department of Transportation (TxDOT) and, as necessary, the City of Corpus Christi • Locate the proposed borings using GPS coordinates provided by Urban Engineering; the final locations will be recorded in the field using a hand -held GPS device • Contact Texas 811 to locate buried utilities within existing easements and right- of-ways • Mobilize a drilling rig to drill the following schedule of soil borings Schedule of Soil Borings No. of Soil Borings Location of Soil Borings Depth of Soil Boring (ft.) 4 HDD Pits — Onshore 30 3 Laguna Madre — Offshore 85 10 Adjacent to JFK Causeway — Onshore 15 • Three locations will be located offshore in the waters of the Laguna Madre. These locations will be drilled with a barge mounted drill rig. The remaining 14 borings will be located onshore and will be drilled using either a truck mounted drill rig or a marsh buggy mounted drill rig, as appropriate. 128140 / CCH12P0236Draft2 Page 2 of 6 Copyright 2012 Klelnfelder July 20, 2012 KLEINFELDER 5002 Ambassador Row, Corpus Christi, TX 78416 p 1381.854.4774 f 1361.854.4924 EXHIBIT "A" Page 2 of 6 Sample the subsurface soil near the ground surface or mud line in Laguna Madre and then every 5 feet thereafter; samples will be collected using either a tube sampler, or a split spoon sampler in conjunction with the standard penetration test, whichever is appropriate • Four (4) of the 15 -foot boreholes will be converted to temporary piezometers to monitor subsurface water levels and to estimate borehole recharge time • Backfill onshore boreholes with soil cuttings upon completion The borings will be logged in the field by a Kleinfelder geotechnical technician. Laboratory Testing Selected laboratory testing will be conducted on samples that are representative of materials obtained during the field exploration. The tests will be used to evaluate and classify the soils, identify subsurface site characteristics, and provide data for analysis. These tests may include: • Moisture content • Atterberg limits (liquid and plastic limits) • Percent passing No. 200 sieve • Particle size gradation (sieve analysis) • Unit dry weight and moisture content • Unconfined compressive strength Kleinfelder will retain soil samples for 90 days after submission of the final report. Further storage or transfer of samples can be made at owner expense upon written request. Engineering Analysis and Report An engineering analysis and evaluation of the field and laboratory data will be performed for the project, based on available project concepts. Information to be provided in the report includes the following items. • Description of the field exploration and laboratory testing • Summary of laboratory test results • Discussion of subsurface soil and groundwater conditions • General discussion of the site geology 128140 / CCH12P0236Draft2 Page 3 of 6 Copyright 2012 Klolnfelder July 20, 2012 KLEINFELDER 5002 Ambassador Row, Corpus Christi, TX 78416 p 1361.854.4774 f 1361.854.4924 EXHIBIT "A" Page 3 of 6 • Recommendations for pipe thrust restraints (passive earth pressures and sliding resistance) • Discussion of water, gas, and MIS lines bedding and backfilling requirements • General discussion of braced or sloped excavations • Discussion of apparent earth pressures for temporary trench support system evaluation • General discussion of HDD influence on adjacent structures • Discussion of subsurface water during our field sampling and subsurface dewatering • Recommendations for pavement subgrade reconstruction • Earthwork recommendation's • Plan of borings to scale illustrating the approximate location of each boring • A log of each boring indicating the boring number, depth of each stratum, soil classification and description, and groundwater information • One bound copy and one electronic copy of the report INFORAAATION/SERVICES PROVIDED BY CITY OF CORPUS CHRISTI OR URBAN ENGINEERING • Designate in writing a person to act as their representative, with respect to the services rendered in this proposal • Indicate a point of contact at the City of Corpus Christi that can grant site access /escort • Coordinate with the City of Corpus Christi to identify and mark water, wastewater, and gas utilities that are not located by Texas 811 that could be damaged during the field exploration program • Obtain rights -of -entry, permits, easements, landowner permission, or other access authorization required to perform the services described in this proposal • Survey borings (if that degree of accuracy is required) and provide coordinates • Provide site plan(s) indicating existing and proposed structures 128140 / CCH12P0236Draft2 Page 4 of 6 Copyright 2012 Klelnfetder July 20, 2012 KLEINFELDER 5002 Ambassador Row, Corpus Christi, TX 78416 p 1 361.854.4774 f 1 381.854.4924 • Provide current topographic map indicating existing grades and proposed grades and/or cross sections indicating proposed cut ll • Provide loading conditions and tolerance for differential movement for structures • Furnish available project data including previous geotechnical and /or forensic studies for this project ADDITIONAL SERVICES The following services are not included in the Scope of Basic Services and will be considered as Additional Services, if and when they are required or requested: • The services of specialty sub - consultants or other special outside services other than those described in the above Scope • Corrosion engineering • Bulldozer, all- terrain rig, clearing activities, or other equipment and personnel time required to access the boring locations other than those described in the above Scope • Meetings, other than those described in the above Scope • Additional report copies or submittals; report revisions after final submission, or report revisions resulting from changed regulations or design • Increased insurance coverage (if available) other than described in the Services Agreement • Coordination with regulatory agencies other than described in the above Scope • Sales or use taxes imposed and due on the professional services described in the above Scope after the date of this proposal • Any other services not specifically included in the above Scope COMPENSATION Kleinfelder proposes to perform the Scope of Basic Services for a fixed price of $70,000. This amount will not be exceeded without prior approval. Invoices will be issued on a periodic basis, or upon completion of a project, whichever is sooner. The net cash amount of this invoice is payable on presentation of the invoice. The City of Corpus Christi and Kleinfelder may subsequently agree in writing to provide for additional services to be rendered under this agreement for additional, negotiated compensation. 128140 / CCH12P0236Draft2 Copyright 2012 K einfeder Page 5 of 6 July 20, 2012 KLEINFELDER 5002 Ambassador Row. Corpus Christi, TX 78416 p 1361.854.4774 f 1 361.854.4924 ANTICIPATED SCHEDULE The field exploration will begin approximately 5 working days from the notice to proceed from the City of Corpus Christi and authorization from TxDOT are received. Completion of the field exploration will require approximately 8 working days, but will depend upon weather conditions and site accessibility. The engineering analyses and report preparation should be completed within 4 weeks after completion of the field exploration. If desired, preliminary data and recommendations can provided to assist with your design efforts. LIMITATIONS Our work will be performed in a manner consistent with that level of care and skill ordinarily exercised by other members of Kleinfelder's profession practicing in the same locality, under similar conditions and at the date the services are provided. Our conclusions, opinions and recommendations will be based on a limited number of observations and data. It is possible that conditions could vary between or beyond the data evaluated. Kleinfelder makes no guarantee or warranty, express or implied, regarding the services, communication (oral or written), report, opinion, or instrument of service provided. This proposal is valid for a period of 90 days from the date of this proposal. This proposal was prepared specifically for the client and its designated representatives and may not be provided to others without Kleinfelder's express permission. TERMS OF ENGAGEMENT We understand that an Agreement between the City and Kleinfelder will be provided as our notice to proceed. Acceptance of the proposal indicates the City's review and understanding of the scope of services. We appreciate the opportunity to provide you with this proposal, and look forward to working with you on this project. If you have any questions or wish to discuss, please contact us at (361) 854 -4774. Sincerely, KLEINFELDER CENTRAL, INC. Texas Registered Engineering Firm F-5.592 Don R. Rokohl, P.E. V'Jerry Lipstreu, S.E.T. Senior Professional Attachment: ASFE Statement Project Manager 1281401 CCH12P0236Draft2 Page 6 of 6 Copyright 2012 Kleinfelder KLEINFELDER 5002 Ambassador Row, Corpus Christi, TX 78416 July 20. 2012 p 1 361.854.4774 f 1361.854.4924 EXHIBIT "A" Page6of6 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 Tess 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 TERMS AND CONDITIONS TO AGREEMENT ARTICLE 1. SERVICES: "LAB" will: 1.1 Provide only those services requested by "CITY ENGINEER" that, in the opinion of "LAB ", lie within the technical or professional areas of expertise of "LAB" and which "LAB" is adequately staffed and equipped to perform. 1.2 Perform technical services under the supervision of a licensed professional engineer and in compliance with the basic requirements of the appropriate standards of the American Society for Testing and Materials, where applicable, and other standards designated in writing by the "CITY ENGINEER." 1.3 Promptly submit formal reports (printed and electronic copies) of tests, inspections and services performed indicating, where applicable, compliance with the PROJECT specifications or other contract documents. Such reports must be complete and factual, citing the tests performed, methods employed, values obtained, and parts of the structure of THE PROJECT area subjected to any testing. 1.4 Utilize testing equipment which has been calibrated according to applicable standards and, upon request, submit to the "CITY ENGINEER ", or his authorized representative, documentation of such calibration. Secure representative samples of those materials that the City's Contractor proposes to use which require testing, together with relevant data conceming such materials including the point of origin and supplier. 1.5 Consider reports to be confidential, and distribute reports only to those persons, organizations or agencies specifically designated in writing by the "CITY ENGINEER ". 1.6 Retain records relating to services performed for "CITY" for a period of two years following submission of any reports, during which period the records will be made available to the "CITY" at all reasonable times. 1.7 Pay salaries, wages, expenses, social security taxes, federal and state unemployment taxes, and any other similar payroll taxes relating to the services. ARTICLE 2. CITY RESPONSIBILITIES: City Engineer or authorized representative will: 2.1 Provide "LAB" with all plans, specifications, addenda, change orders, approved shop drawings and other information for the proper performance of services by "LAB ". 2.2 Issue authorization in writing giving "LAB" free access to THE PROJECT site, and to all shops or yards where materials are prepared or stored. 2.3 Designate in writing those persons or firms which will act as the "CITY's" representative with respect to "LAB'S" services to be performed under this AGREEMENT and which must be promptly notified by "LAB" when it appears that materials tested or inspected are in non- compliance. Only the "CITY ENGINEER" or his designated representative have authority to transmit instructions, receive information and data, interpret and define the CITY's policies and decisions with respect to THE PROJECT. "LAB" acknowledges that certain "CITY" representatives may have different types of authority concerning THE PROJECT. 2.4 Advise "LAB" sufficiently in advance of any operations so as to allow for assignment of personnel by "LAB" for completion of the required services. Such advance notice will be in accordance with that established by mutual agreement of the parties. EXHIBIT "C" Page 1 of 3 2.5 Direct THE PROJECT contractor, either by the Construction Contract or direct written order to: (a) Stop work at the appropriate times for "LAB" to perform contracted services; (b) Furnish such labor and all facilities needed by "LAB" to obtain and handle samples at THE PROJECT and to facilitate the specified inspection and tests; (c) Provide and maintain for use of "LAB" adequate space at THE PROJECT for safe storage and proper curing of test specimens which must remain on THE PROJECT site prior to, during, and up to 60 days after testing. ARTICLE 3. GENERAL CONDITIONS 3.1 "LAB ", by the performance of services covered hereunder, does not in any way assume, abridge or abrogate any of those duties, responsibilities or authorities with regard to THE PROJECT which, by custom or contract, are vested in THE PROJECT architects, design engineers, or any other design agencies or authorities. 3.2 "LAB" is not authorized to supervise, alter, relax, enlarge or release any requirement of THE PROJECT specifications or other contract documents nor to approve or accept any portion of the work. "LAB" does not have the right of rejection or the right to stop the work. "CITY ENGINEER" will direct THE PROJECT contractor to stop work at appropriate times for "LAB" to conduct the sampling, testing, or inspection of operations covered by the AGREEMENT. ARTICLE 4. FIELD MONITORING AND TESTING 4.1 "CITY" and "LAB" agree that "LAB" will be on -site to perform inspections for contracted services. The "CITY" and "LAB" also agree that "LAB" will not assume responsibility for PROJECT Contractor's means, methods, techniques, sequences or procedures of construction, and it is understood that the final services provided by "LAB" will not relieve the PROJECT Contractor of his responsibilities for performing the work in accordance with THE PROJECT plans and specifications. For the purposes of this AGREEMENT, the word "inspection" is used to mean periodic observation of the work and the conducting of tests by "LAB" as specified in the AGREEMENT. Continuous monitoring by "LAB" or its subcontractors does not mean that "LAB" is approving placement of materials. Inspection is not and should not be construed to be a warranty by "LAB" to the "CITY" or any other party. 4.2 Samples collected or tested by "LAB" remain the property of the "CITY" while in the custody of the "LAB ". "LAB" will retain the samples for a period of 60 days following the date of submission of any report related to the sample. Following the retention period, "LAB" will dispose of non- hazardous samples, and return hazardous, acutely toxic, or radioactive samples and samples containers and residues to "CITY". "CITY" agrees to accept such samples and samples containers. ARTICLE 5. STANDARD OF CARE AND WARRANTY Services performed by "LAB" will be conducted in a manner consistent with that level of care and skill ordinarily exercised by reputable members of the profession currently practicing under similar conditions in the same locality. No other warranty either expressed or implied is made or intended by the AGREEMENT or any reports. "LAB" will not be responsible for the interpretation or use by others of data developed by "LAB ". ARTICLE 6. SAFETY "CITY" and "LAB" agree that, in accordance with the generally accepted construction practice, the PROJECTS general contractor will be solely and completely responsible for working conditions on THE PROJECT, including safety of all persons and property during the performance of the work, and for EXHIBIT "C" Page 2 of 3 compliance with all municipal, state, and federal laws, rules and regulations, including OSHA. The duty of "LAB" in providing services is not, therefore, to include any review of, or responsibility for, the adequacy of the PROJECT'S general contractor's safety measures in, on, or near THE PROJECT site. ARTICLE 7. INVOICES AND PAYMENT "LAB" will submit progress invoices to "CITY ENGINEER" monthly and final invoice upon completion of services. Each invoice is due and payable by "CITY" within 30 days of receipt and approval to pay by the City Engineer. ARTICLE 8. EXTENT OF AGREEMENT 8.1 This AGREEMENT, including Exhibit "A" and these terms and conditions, represents the entire AGREEMENT between "CITY" and "LAB" and supersedes all prior negotiation, representations or agreements, written or oral. This AGREEMENT may be amended only by a written instrument signed by duly authorized representative of "CITY" and "LAB ". If any conflict occurs between these terms and conditions and this AGREEMENT, these terms and conditions are controlling. 8.2 In the event that any one or more of the provisions contained in this AGREEMENT are for any reason held invalid, illegal or unenforceable in any respect, the remaining terms will be in full effect and this AGREEMENT will be construed as if the invalid or unenforceable matters were never included in this AGREEMENT. No waiver of any default will be a waiver of any future default. 8.3 Neither party will assign this AGREEMENT without the express written approval of the other, but "LAB" may subcontract laboratory procedures as "LAB" deems necessary to meet the obligations of this AGREEMENT. EXHIBIT "C" Page 3 of 3 O d t0 a 0 E a O _ 0 3 I O > I— a 0 d a o 0 w Z ,r, H o W N 0 OOCa N a ? z o z0 W 0 v �O I- •, 0 > E J O` > C Q aa_ 0 z si E a o as L. C O 0 Basic Services: 100 %I O o% 0% 30% eeeee N O O O O 0 %I p %0E A- CO 00 0 00 o r- 40 O 0 o 0 - 0 0 O 0000 ooto 69. 00 u1 00 tr) D ° o _ 0 a 0 M 0 00 o O (N 0 O o 0 0 F• 0 0 N 0 O 0 O o 0 0 0 t ; 0 0 0 I- 0 O in N- 1 $6,000 $1,000 $1,250 $8,250 $750 $1,500 $2,500 oo9$ o$ oo9$ 000'z$ o$ o$ 0o0'3 0 1,120 0 1,120 0 0 0 0 0 1,627 1,627 0 0 0 TBD TBD TBD TBD TBD TBD TBD 0 m 0 H 0 I- I- 0 CO H 0 H 0 I-I- 0 m 0 I-- 0 m I - 0 m 0 I- 0 H 0 A- 1 $2,000 $1,120 $1,627 $4,747 $500 $0 $500 $6,000 $1,000 $1,250 $8,250 $750 $1,500 $2,500 1 2,000 1,120 1,627 4,747 500 0 5001 $8,000 $2,120 $2,877 $12,997 $1,250 $1,500 $3,000 Construction Phase Subtotal Basic Services Additional Services: O & M Manuals 0 co o Subtotal Additional Services Additional Services Fees Total of Fees IEXHIBIT "D" Page 1 of 1 MINIIM• =NM City of Corpus Chnsti SUPPLIER NUMBER TO BE IVISIOON CITY OF CORPUS CHRISTI DISCLOSURE OF INTEREST Citx 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: Kleiufelder P. O. BOX: STREET ADDRESS: 5802 Ambassador Row CITY: Corpus Christi ZIP: 78416 FIRM IS: 1. Corporation L 4. Association 2. Partnership 5. Other B 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 "fine: 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 0 FILING REQUIREMENTS If a person who requests official 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, you shall disclose that fact in a signed writing 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 true and correct as of the date of this statement, that I have not lrnowingly 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: Emad Al Turk, P. E. Title: Vice President (type or Plop Signature of Certifying Person: DEFINITIONS Date: X -10 -/Z 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. "Firm." Any entity operated for economic gain, whether professional. industrial or commercial, and whether established to produce or deal with a product or service, including but not limited to, entities operated in the foam 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, Department and Division Heads, and Municipal Court Judges of the City of Corpus Christi, Texas. f. "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. "Constructively held" refers to holdings or control established through voting trusts. proxies, or special terms of venture or partnership agreements. g. "Consultant." Any person or firm, such as engineers and architects, hired by the City of Corpus Christi for the purpose of professional consultation and recommendation. AGENDA MEMORANDUM Future Item for the City Council Meeting of October 16, 2012 Action Item for the City Council Meeting of October 23, 2012 DATE: TO: FROM: October 4, 2012 Ronald L. Olson, City Manager Daniel Biles, P.E., Director of Engineering Services danb @cctexas.com (361) 826 -3729 Approval of Master Agreements: Job Order Contracting (JOC) RFP No. 2012 -02 Barcom Commercial, Inc. CAS Companies, LP CAPTION: Motion authorizing the City Manager or designee to execute a Master Agreement for Job Order Contracting (JOC) with Barcom Commercial, Inc. for a two -year term with option to renew administratively for up to three one -year periods, with no guaranteed minimum and a maximum aggregate of $2,000,000.00 in any one year; authorizing the City Manager or designee to execute all Job Order Contracts thereunder not exceeding $500,000.00; authorizing the City Manager or designee to execute a Master Agreement for Job Order Contracting (JOC) with CAS Companies, LP for a two -year term with option to renew administratively for up to three one -year periods, with no guaranteed minimum and a maximum aggregate of $2,000,000.00 in any one year; authorizing the City Manager or designee to execute all Job Order Contracts thereunder not exceeding $500,000.00. PURPOSE: To obtain authority to award and execute two Job Order Contract Master Agreements for minor construction services and repair of city facilities on an as- needed basis. BACKGROUND AND FINDINGS: On June 11, 2012 Engineering Services issued a Request for Proposals for Job Order Contracting (JOC) Services (RFP No. 2012 -02). The five respondents to the RFP were Barcom Commercial, CAS Companies, LP, Cubit Contracting, Robles Service Group, and SafeNet Services, LLC. A staff panel evaluated each proposal based on the following criteria: A. Experience, Background, Qualifications (40 %) B. Proposal Plan (20 %) C. Price (proposed coefficients) (20 %) D. Local Business /Historically Underutilized Enterprise Participation Program (20 %) The panel selected Barcom Commercial and CAS Companies, LP as the most highly qualified contractors with proposals that offered the best value to the City. The evaluation matrix is attached. HTT P:/ /LEG (STAR. GRAN I CUS. CO M /CO RPU SCH RI STI /ATTACH M ENTS /7BCAC240 -A2F6- 4656- B32D- F393C569B7CB. DOCX Comments: Award of the two proposed Job Order Contracting Master Agreements as proposed will allow the City to employ this alternative delivery method with either contractor for maximum efficiency. Benefits include: ➢ A better defined scope with cost for the customer. ➢ A more cost efficient and timely delivery of routine work. ➢ As each delivery order is a stand -alone contract, awarding a contractor future jobs can be based on the contractor's performance during the previous job. ➢ Change Orders are minimized. ALTERNATIVES: 1. Award a JOC Master Agreement to neither Barcom Commercial nor CAS Companies, LP. 2. Award a JOC Master Agreement to Barcom Commercial only. 3. Award a JOC Master Agreement to CAS Companies, LP only. OTHER CONSIDERATIONS: The JOC Program is a solution — a method for dealing with a certain volume of recurrent facilities work that demands rapid project deployment. The process and workflow of the JOC Program should be permitted to meet that demand. Acknowledging this, the Texas Legislature amended the Government Code to provide that, for Job Order Contracts, the governing body of governmental entity shall approve each job, task, or purchase order that exceeds $500,000. Tex. Gov't Code Sec. 2267.403(c). By approval of these JOC Master Agreements, Council is approving the job orders to be issued under them that do not exceed $500,000, based on the set coefficients and unit prices, for no guaranteed minimum, and for a maximum aggregate amount of $2,000,000 in any one year. For any job that will exceed $500,000, that "job order contract" will be brought to you for your consideration and approval. The approval recommended by staff is provided for under our Government Code and will allow the JOC Program to function without interjecting further administrative requirements that would defeat its very purpose. CONFORMITY TO CITY POLICY: Conforms to city policy relating to RFP's and competitive sealed proposals, Chapter 2267 of the Texas Government Code relating to Job Order Contracts, and Section 2, Article X, City Charter related to contracts. EMERGENCY / NON - EMERGENCY: Not applicable. DEPARTMENTAL CLEARANCES: Not applicable. HTT P:/ /LEG (STAR. GRAN I CUS. CO M /CO RPU SCH RI STI /ATTACH M ENTS /7BCAC240 -A2F6- 4656- B32D- F393C569B7CB. DOCX 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 Amt. This item Future Expenditures BALANCE FUNDS: Not applicable. RECOMMENDATION: City staff recommends a JOC Master Agreement be awarded to Barcom Commercial and to CAS Companies, LP, for a two -year term with option to renew administratively for up to three one -year periods, with no guaranteed minimum and a maximum aggregate of $2,000,000.00 in any one year; authorizing the City Manager or designee to execute all Job Order Contracts thereunder not exceeding $500,000.00. LIST OF SUPPORTING DOCUMENTS: Evaluation Matrix Master Agreement — Barcom Commercial, Inc. Master Agreement — CAS Companies, LP HTT P:/ /LEG (STAR. GRAN I CUS. CO M /CO RPU SCH RI STI /ATTACH M ENTS /7BCAC240 -A2F6- 4656- B32D- F393C569B7CB. DOCX GENERAL CONTRACTOR JOB ORDER CONTRACT (JOC) 0 1- z w 2 2 0 0 .- ,r e, ..r, c4 w < I- Z F Z < 0 5 co ,r co ,r Lo ,r co r- ,r co ,r c4 co o co 1 -20 pts. Local and HUB. Local business or presence (12 pts). Sub - contracting plan and utilization of Minority, MBEs & HUB's (8 pts). ka .v. ;.... .4 . IA A 4 ° P,/.6 .4 .'1-i/i.i. 8 Ol/i4 4 Si ° il i,i 0 Nii 0 r104 i,i Ills 0 1 -20 pts. Price. Coefficients per price schedule plan. 000 41 `.. „ E , i• ,a I0 E o - E ,i , E ,o ,,.. .., 0 ."-...0,1 E ;.o d 0. E I0 - E o 0 ,, o 0 54.1A. 4 E 2 ,0 , IS 0 1 -20 pts. Proposed Plan. Contractor's and Sub - Contractor's approach to project; methodology and software, operational plan, job order management plan, project mgt plan, sub - contractor mgt plan, QA and safety plan, and training plan. g „,9 #54, Ts E S4 a a,, , .t.. = S4 E5- 2 s 0 , E E 0 A E o 0 E E , :,..., o f...; 0 . 0 . , EE -°,0° E „,;4„ o ,,•!,:y 0 .' ' ,, ti.‘ 0 E o 0 u -00 0 '004. E ,,i1;.., E ,,,,p, o St 0 ° E .; fig 0 1 -40 pts. Qualifications and Experience. Contractor's and Sub - Contractor's relevant experience under Job Order Contracting and projects, specific experience with public entities, resources, professional qualifications, certifications, safety record, and field representative with minimum of 5 years relevant experience. LU `8 c 0,..2 47, ia.., 2 'cii o 79 0 g , g o 2 . 2 o c '..6_ , (5 . mg 0) o ,D eg>, o E 40 ',Id :V?: a.) E E o 0 ',A 4::: a) - E E 40 • • • ,,,,., •,!;:,, a) M. E ,t," E 40 0 ::: - ° .k... t, a) E E o 0 ;•!•7”; t, 4.::: ..!„ o $11 0 0 E E it CAS, COMPANIES ROBLES SERVICE GROUP SAFENET SERVICES, LLC CUBIT CONTRACTING BARCOM COMMERCIAL JOB ORDER CONTRACT MASTER AGREEMENT THE STATE OF TEXAS § COUNTY OF NUECES § THIS AGREEMENT is entered into this the day of 2012, by and between the CITY OF CORPUS CHRISTI, a Texas home rule municipal corporation located in the County of Nueces, State of Texas, acting through its duly authorized City Manager or designee, termed in the Contract Documents as "City," and Barcom Commercial, Inc., a Corporation termed in the Contract Documents as — "Contractor," upon these terms, performable in Nueces County, Texas: r" ri WHEREAS, the City's Department of Engineering Services issued a Request For Proposals (RFP) No. 2012 -02 — Agreement for Job Order Contracting (JOC), for the Minor Construction, Repair, Rehabilitation, and Alteration of Facilities (the "RFP ") to provide Job Order Contracting Services on an on -call or as- needed basis, through individually priced job orders or job order contracts (Job Orders or JOCs) for the maintenance, repair, alteration, renovation, remediation, or construction of facilities; and WHEREAS, Contractor submitted a proposal in response to the and was selected for recommendation for award; and WHEREAS, the Corpus Christi City Council authorized award Agreement (the "Agreement ") to Contractor on day of WHEREAS, the parties desire to enter into a Job Order Contract set the terms and conditions the parties must follow, NOW THEREFORE, THE PARTIES AGREE AS FOLLOWS: 1. Terms. RFP (the "Proposal ") of this JOC Master , 2012; and Master Agreement to a. Agreement. This Agreement consists of the Contract Documents, the RFP No. 2012 -02, Contractor's Proposal submitted in response to RFP No. 2012 -02, and this Job Order Contract Master Agreement, including all attachments and exhibits (collectively, the "Agreement "), which provides terms and conditions with which the parties agree to comply for any "Job Order Task" or "Job Order Contract" (JOC) executed between the parties under the Department of Engineering's JOC Program. b. Job Order Contract Master Agreement/ (the "JOC Master Agreement" or the "Agreement ") refers to this Agreement, a competitively awarded master agreement with an undefined Statement of Work (SOW). The work is of an indefinite quantity and a recurring nature, delivered on an on -call or as needed basis, through individually priced job orders or job order contracts (JOC). The JOC Master Agreement may support a broad assortment of facilities construction Page 1 of 12 Rev. Jun -2010 work. In this Agreement, the JOC Master Agreement may also be referred to as the Agreement for Job Order Contracting, the JOC Agreement, or the Agreement. c. Job Order or Job Order Contract (JOC) as referred to in this Agreement is an individually priced job or task order, based on the Contractor's previously proposed coefficient(s) and a definitive SOW. Individual job orders are firm fixed price upon issuance. The term "job order" or "job order contract" refers to an individually priced job order based on pre - established unit prices applied to estimated quantities for a fixed lump sum price or a unit price order based on the quantities and line items delivered. In this Agreement, Job Order Contract (JOC) may also be referred to as Job Order, Job Order Task, or Task Order. d. Contract Documents. The Contract Documents for each JOC will include this Agreement, the bid proposal and instructions, the General and Special Provisions and Requirements for Municipal Construction Contracts of the City of Corpus Christi, plans and specifications, including all maps, plats, blueprints, and other drawings, any Performance and Payment bonds, addenda, the Contractor's Proposal to RFP No. 2012 -02, the JOC Master Agreement, and related documents which shall be made a part of each JOC, all of which will constitute the contract for each project or JOC. 2. General Scope of JOC. a. The City has awarded or will award one or more JOC Master Agreements or JOC Agreements. The type of work to be supported is for the maintenance, repair, alteration, renovation, remediation, or construction of facilities. The work is of a recurring nature but the delivery times are quantities are indefinite. b. JOCs apply to facilities work. The JOC Master Agreement and any individual JOC applies only to a facility that is a building, or a structure or land, whether improved or unimproved, that is associated with a building. The JOC does not apply to a highway, road, street, bridge, utility, wharf, dock, airport runway or taxiway, drainage, or related type of project associated with civil engineering construction. The City currently owns approximately 1200 properties that require a variety of minor construction, repair, rehabilitation, or alteration services, including but not limited to services for construction in three (3) areas: general mechanical /electrical /plumbing (MEP); and roofing. c. Minor construction may include new office construction (as well as demolition) to completing a new floor plan, etc. d. Repair is defined as work that involves the reparation of a broken system, component, or sub - component of a building such as doors, electrical outlets, plumbing, flooring, sheetrock, and /or air conditioning systems, etc. Page 2 of 12 Rev. Jun -2010 e. Rehabilitation is defined as work that involves the restoration of an office, floor, system or component of a system in order to restore functionality. Alteration is defined as work that involves extending a wall, upgrading lighting fixtures, installing a door where one did not exist, replacing flooring, etc. 3. Scope and Duty of Contractor. a. For each JOC, the Contractor shall construct and complete the improvements according to the Plans and Specifications in a good and workmanlike manner for the prices and conditions set out in the Contractor's bid proposal and as provided under the JOC. b. Contractor shall supply at its expense such materials, services, labor and insurance as required by the Contract Documents, including overseeing the entire job. c. Contractor shall be responsible for providing all labor, material, tools, instruments, supplies, equipment, transportation, mobilization, insurance, subcontracts, bonds, supervision, management, reports, incidentals, and quality control necessary to complete work for the minor construction, repair, rehabilitation and alteration of city facilities. 4. Time Limit for Bid Proposals Requested. There will be limited time from the time the City first contacts the Contractor and "assigns" the project to the time the City issues an authorization to begin work. The Contractor shall submit its Proposal as soon as possible, but not later than ten (10) calendar days after the City's request for that the Contractor investigate, plan, and submit an estimate and schedule (a proposal) for a given job order. Failure to comply with the Time Limit for Bid Proposals Requested is a breach of contract, under both this Agreement and under each JOC executed pursuant to the this Agreement. 5. Contractual unit prices. The City establishes contractual unit prices for job order contracts by specifying the R.S. Means Cost Data Books and certain applicable divisions or line items listed and more fully described in Section III.A of the RFP. 6. Coefficients or multipliers. The Contractor's proposed two (2) coefficients or multipliers are to be applied to the price book or prepriced work items as the price proposal. Coefficients or multipliers are more fully described in Section III.A of the RFP. 7. Compensation to Contractor. City shall pay Contractor in current funds for performance of each Job Order Contract in accordance with both this Agreement and the JOC, as the work progresses. 8. Maximum aggregate price. The maximum aggregate price for work over any one year of this Agreement's term is two million dollars. Page 3 of 12 Rev. Jun -2010 9. No guaranteed minimum. This JOC Master Agreement provides for no guaranteed minimum amount of job orders, no amount of work, and no dollar amount. Term. The Term of this Agreement is for a base term of two (2) years with the option to renew annually on an administrative basis for not more than three (3) additional years. The City Manager or designee (Director of Engineering Services) shall have the option to renew the agreement annually for not more than three additional years. The option to renew will be exercised administratively. 10. Performance and payment bonds required. The Contractor shall provide performance and payment bonds (1) if required by law, based on the amount or estimated amount of any job order; or (2) if otherwise required by the City regardless of the estimated amount of a job order. At a minimum, the JOC Contractor will be required to provide a payment bond on all job orders that exceed $25,000 and a performance bond on all job orders that exceed $100,000. 11. JOC Specific Requirements. a. With the exception of emergencies, any work required by the City shall be ordered through the issuance of a formal written Job Order Contract or JOC containing the approved Job Order Proposal along with a City Issued Purchase Order. b. Job Order Proposals are to be submitted to the City at no additional cost. The RFP resulted in multiple awards for multiple JOC Agreements, and the City may elect, at its own discretion, to solicit JOC Proposals from one or more of the awarded JOC Contractors depending upon the estimated value and /or complexity of the proposed project. Determination to solicit multiple proposals or from only one awarded JOC Contractor shall be on a case by case basis, as deemed in the best interest of the City. c. Upon review of the Job Order Proposal(s), the City shall have the right to reject all proposals, cancel a proposed project or elect to perform work utilizing city personnel. The City shall not be responsible for payment or costs incurred by the awarded contractors for the preparation and submission of a Job Order Proposal regardless of project outcome. d. In the event that design services, construction drawings and /or plans are required, the City shall obtain these services from city resources or from a third - party consultant. The Contractor will not be permitted to contract with or hire consultants. e. The Unit Price Book(s) shall serve as a basis for establishing the value of work to be performed. The Contractor's Job Order Proposal shall be submitted to the City as negotiated under this JOC Master Agreement, as submitted in accordance with the Contractor's Proposal, Exhibit E. Page 4 of 12 Rev. Jun -2010 12. Scheduling of Work a. The first day of performance shall be the effective date specified in the Job Order Contract. Any preliminary work started, materials ordered or purchased prior to receipt of the City's Purchase order shall be at the Contractor's risk and expense. b. The Contractor shall meticulously prosecute the Work to completion with the time set forth in the Job Order. c. The period of performance shall include allowance for mobilization; holidays; weekend days; inclement weather; cleanup and project acceptance procedures. d. When the Contractor considers the Work to be complete and ready for its intended use, the Contractor shall notify the Director of Engineering Services or designee. The City shall inspect the Work to determine the status for completion. The contractor shall proceed promptly to complete or correct items listed. e. Contractor shall endure that the purchase, delivery and storage of materials and equipment shall be made without interference to the City operations and personnel. f. The Contractor shall be responsible for removing furniture and /or portable office equipment from the immediate work area as well as replacing to its original location upon work completion. In the event that said items cannot be replaced within its original location, the City shall designate alternate locations(s) for placement. g. The Contractor shall take all necessary precautions to ensure that no damage shall result from operations to private of public property. All damages must be repaired or replaced by the Contractor at no additional cost to the City. The Contractor shall also be responsible for providing all necessary traffic control, to include but not limited to street blockages, traffic cones, flagmen, etc., as required for each Job Order. Proposed traffic control methods must be submitted to the City for approval prior to the commencement of work. h. The Contractor shall be responsible for obtaining all required permits applicable to performance under any single order placed against this contract. The City shall be responsible for the cost of any and all City permits. The Contractor shall allow authorized City personnel to inspect and audit any books, documents, papers, data and records relating to performance throughout the term of said JOC Agreement. The City reserves the right to audit and /or examine such records at any time during the progress of this Agreement and shall withhold payment if such documentation is found by the City to be incomplete or erroneous. Page 5 of 12 Rev. Jun -2010 Fin 13. Contractor's Project General Manager. The Contractor's Project General Manager shall be knowledgeable in multiple disciplines including electrical, mechanical, HVAC, paving, landscaping, painting, roofing and plumbing. 14. Safety Plan. The Contractor may be required to submit to the City for approval, a Safety Plan within fifteen (15) calendar days after Award of Agreement. Said plan must address all aspects of the Contractor's safety procedures including responsibility for OSHA compliance, drug testing, trend analysis, corrective action and interface with City inspectors. 15. Warranty of Construction. The Contractor shall warrant that work performed conforms to the Job Order requirements and is free of any defect in equipment, material or design furnished, or workmanship performed by the contractor of any of its subcontractors or suppliers at any tier. All work provided by the Contractor shall be warranted for a minimum period of one (1) year from the date of final acceptance of the Work. Equipment warranties shall be as required under the Statement of Work. 16. Training. Upon execution of this Agreement, the Contractor shall make arrangements and provisions to conduct a minimum of two (2) training classes for City staff to include but not limited to the JOC Process, explanation and use of the specific R.S. Means Cost Data Book, Cost Index, and the Unit Price Book, at no additional cost to the City. 17. "Green Building" Program." In an effort to conserve resources as well as preserve our environment, the City is in the process of developing a program to support a "Green Building" policy for all new city -owned and funded facilities. A "green building ", also known as a high performance building, shall include a structure or facility that is designed, build, renovated, and operated in a resource- efficient and healthful manner. Green buildings are designed to meet certain objectives such as: conserve energy and water, use renewable, recyclable or reclaimed materials, protect occupant health, optimize use of local and regional resources, and reduce the overall impact of that new structure to the environment. The program initiatives for a "Green Building" policy may include the following: a. All new buildings and major renovations constructed by the City of Corpus Christi or its contractors and funded directly by the City of Corpus Christi shall be designed and constructed with economical and technically feasible green building components. b. The City of Corpus Christi shall focus this green building policy in an effort to meet the requirements of the Texas Emissions Reduction Plan, specifically Chapter 388. Section 388.005 of the Texas Health and Safety Code, which states that certain political subdivisions should: (a) implement all cost effective "energy efficiency measures" in order to reduce electric consumption by the existing facilities, (b) establish a goal to reduce electric consumption by its facilities of five (5 %) percent each year for five years, and (c) annually report to Page 6 of 12 Rev. Jun -2010 State Energy Conservation Office (SECO) its efforts and progress in reduction of electricity. c. City staff will develop a green building program for the city facilities targeted in this policy. This green building program will describe the standards of the green building components, including standards for energy efficiency, renew- able materials, water conservation, air flow, and site location. This program shall also describe the target buildings, exemptions, and methods to achieve the goals of this policy. The development of this plan will include an evaluation of the AIA "2020 Challenge," the U.S. Green Building Council's Leadership in Energy and Environmental Design (LEED), and the Environmental Protection Agency's Energy Star Program. Feasible components of these programs will be incorporated into this plan. A review of the accomplishments made under this plan shall be reported to City Council annually. d. All maintenance practices performed by the City of Corpus Christi shall incorporate energy efficiency and green building practices, as reasonably possible. 18. Worker's Compensation Coverage. Texas law requires that contractors, subcontractors and others must be covered under Worker's Compensation insurance, authorized self - insurance or a worker's compensation coverage agreement. Throughout this Agreement such coverage must be provided. Contractor shall comply with the Insurance Requirements for Worker's Compensation Coverage as described and shown in the Notice to Contractors Attachment J. 19. Insurance. Contractor shall comply with the Insurance Requirements as described and shown in Attachment F. 20. Indemnification. Contractor shall fully indemnify and save harmless the City of Corpus Christi, its officers, agents and employees, as required in Attachment G. 21. Independent Contractor. Contractor, it and all persons designated by it to provide services in connection with this Agreement or any JOC executed pursuant to this Agreement is, (are) and shall be deemed to be independent contractor(s), responsible for its (their) respective acts or omissions, and that City shall in no way be responsible for Contractor's actions, and that none of the parties hereto will have authority to bind the others or to hold out to third parties, that is has such authority. 22. Goveming Law and Venue. This Agreement shall be construed and interpreted in accordance with the laws of the State of Texas, and venue of any litigation hereunder shall be in a court of competent jurisdiction sitting in Nueces County, Texas. Page 7 of 12 Rev. Jun -2010 23. Survivability. The unenforceability, invalidity or illegality of any provisions of this Agreement shall not render the other provisions unenforceable, invalid or illegal, but the parties shall negotiate as to the effect of said unenforceability, invalidity or illegality on the rights and obligations of the parties. 24. Captions. The captions, titles and headings in this Agreement are merely for the convenience of the parties and shall neither limit nor amplify the provisions of the Agreement itself. 25. Notices to be given by either party to the other relative to this Agreement shall be in writing. Both parties agree that any such notice shall be effective when personally delivered or deposited, postage paid, in the U.S. Mail addressed by certified mail, return receipt request, as follows: CITY: for legal notices send to: City of Corpus Christi Veronica Ocanas, Assistant City Attorney City Attorney's Office P.O. Box 9277 Corpus Christi, TX 78469-9277 Tel: 361-826-3375 Fax: 361-826-3239 for any Questions regarding the administration and management of this agreement send to: Graziella Mesa Project Manager Department of Engineering Services 1201 Leopard St. Corpus Christi, TX 78401 Tel: 361-826-3550 Fax: 361-826-3501 Email: graziellam@cctexas.com CONTRACTOR: 13,1 Name: E 16i n - f r rot PA JA Address: 5 j, )ii Lcr Z, n r I t f7S" la i000 Fax: - c;"?.,.9') „ Page 8 of 12 Rev. Jun-2010 26. TABLE RE DIVISION 01 DIVISION 01 01 11 31 Professional Consultants 01 11 31.10 01 11 31.30 ONLY ALLOWABLE AS REQUIRED BY STATEMENT OF WORK IF PERMITTED BY LAW 01 11 31.20 01 11 31.50 01 11 31.75 NOT AUTHORIZED 02 21 16 CONTINGENCY ALLOWANCE 01 21 16.50 NOT AUTHORIZED 01 21 55 JOB CONDITION ALLOWANCE 01 21 55.50 NOT AUTHORIZED 02 21 57 OVERTIME ALLOWANCE 01 21 57.50 ONLY ALLOWABLE AS REQUIRED BY STATEMENT OF WORK 01 21 61 COST INDEX 01 21 61.10 01 21 61.30 01 21 61.50 AVERAGE 01 21 63 TAXES 01 21 63.10 SHALL BE INCLUDED WITHIN CONTRACTORS COEFFICIENT 01 31 13 PROJECT COORDINATION 01 31 13.20 01 31.13.30 01 31.13.40 01 31 13.60 01 31 13.80 SHALL BE INCLUDED WITHIN CONTRACTORS COEFFICIENT 01 31 13.50 NO AUTHORIZATION 01 31 13.90 ALLOWABLE AS REQUIRED BY STATEMENT OF WORK 01 3213 SCHEDULING OF WORK 01 32 13.50 SHALL BE INCLUDED WITHIN CONTRACTORS COEFFICIENT 01 32 33 PHOTOGRAPHIC DOCUMENTATION 01 32 33.50 ROUTINE DOCUMENTATION FOR CONTRACTORS RECORDS, SHALL BE INCLUDED WITHIN CONTRACTORS COEFFICIENT 01 41 26 PERMITS 01 41 26.50 ITEM 0020 WILL BE AUTHORIZED AS REQUIRED BY STATEMENT OF WORK Page 9 of 12 Rev. Jun-2010 01 45 23 TESTING AND INSPECTING SERVICES 01 45 23.50 ROUTINE TEST FOR CONTRACTORS RECORDS AND DOCUMENTATION SHALL BE WITHIN CONTRACTORS COEFFICIENT. ADDITIONAL TESTING REQUIRED BY THE CITY WILL BE BY A SEPARATE CITY CONTRACT 01 51 13 TEMPORARY UTILITIES 01 51 13.80 ALLOWAB LE AS REQUIRED BY STATEMENT OF WORK 01 5213 FIELD OFFICES AND SHEDS 01 51 13.20 ALLOWABLE AS REQUIRED BY STATEMENT OF WORK 01 51 13.40 NOT AUTHORIZED 01 54 09 PROTECTIVE EQUIPMENT 01 54 23.60 01 54 23.70 01 54 23.75 01 54 23.80 ALLOWABLE AS REQUIRED BY STATEMENT OF WORK 01 54 23 TEMPORARY SCAFFOLDING AND PLATFORMS 01 54 23.60 01 54 23.70 01 54 23.75 01 54 23.80 ALLOWABLE AS REQUIRED BY STATEMENT OF WORK 01 54 26 TEMPORARY SWING STAGING 01 54 26.50 ALLOWABLE AS REQUIRED BY STATEMENT OF WORK 01 54 36 EQUIPMENT MOBILIZATION 01 54 36.50 ALLOWABLE AS REQUIRED BY STATEMENT OF WORK 01 54 39 CONSTRUCTION EQUIPMENT 01 54 39.70 SHALL BE INCLUDED WITHIN CONTRACTORS COEFFICIENT 01 55 23 TEMPORARY ROADS 01 55 23.50 ALLOWABLE AS REQUIRED BY STATEMENT OF WORK 01 5613 TEMPORARY AIR BARRIERS 01 56 13.60 01 56 13.90 ALLOWABLE AS REQUIRED BY STATEMENT OF WORK 01 56 23 TEMPORARY BARRICADES 01 56 23.10 ALLOWABLE AS REQUIRED BY STATEMENT OF WORK 01 56 26 TEMPORARY FENCING 01 56 26.50 ALLOWABLE AS REQUIRED BY STATEMENT OF WORK 01 56 29 TEMPORARY PROTECTIVE WALKWAYS 01 56 29.50 ALLOWABLE AS REQUIRED BY STATEMENT OF WORK 01 5813 TEMPORARY PROJECT SIGNGAGE 01 58 13.50 ALLOWABLE AS REQUIRED BY STATEMENT OF WORK 01 71 23 FIELD ENGINEERING 01 71 23.13 01 71 23.19 ONLY ALLOWABLE AS REQUIRED BY STATEMENT OF WORK, IF PERMITTED BY LAW Page 10 of 12 Rev. Jun -2010 01 74 13 PROGRESS CLEANING 01 74 13.20 019113 CONiI1111SSIONING Contract ContacUProject Manager. for any questions regarding of this agreement send to: Graziella Mesa Project Manager Department of Engineering Services 1201 Leopard St. Corpus Christi, TX 78401 Tel: 361- 826 -3550 Fax 361 - 826 -3501 Email: graziellam@cctexas.com CONTRACTOR: Name: Title: Address: the Tel: Fax: i j/7 ALLOWABLE AS REQUIRED BY STATEMENT OF WORK ALLOWABLE AS REQUIRED BY STATEMENT OF WORK administration and manage, ent ATTACHMENTS to JOC MASTER AGREE and to RFP No. 2012-02 Agreement for Job Order Contracting for Minor Construction, Repair, Rehabilitation, and TABLE OF CONTENTS era ENT on of Facil Facilities ATTACHMENTS Contractor's Completed Questionnaire Contractor's Completed and Signed Disclosure of Interest Form Contractor's Completed Litigation Disclosure Form e.. Contractor's Completed Minority/Minority Business Enterprise Cont ractor's Completed Pricing Schedule Form INSURANCE REQUIREMENTS Page 11 of 12 Rev, Jun-2010 RFP Attachment A RFP Attachment B RFP Attachment C RFP Attachment D RFP Attachment E RFP Attachment F INDEMNIFICATION RE Contractor's Com UIREMENTS RFP Attachment G leted S' nature Pa me RFP Attachment H Contractor's Co feted Pro osal Checklist WORKER'S COMPENSATION COVERAGE ADDENDUM TO SPECIAL AND GENERAL PROVISIONS SPECIAL PROVISIONS GENERAL PROVISIONS RFP Attachment I RFP Attachment J RFP Attachrnent K RFP Attachment RFP Attachment M Signed in 4 parts at Corpus Christi, Texas on the date shown above. ATTEST City Secretary APPROVED AS TO LEGAL FORM By: Asst. J ity Attorney ATTEST: (If Corporation) (Seal Below) (Note: If Person signing for corporation is not President, attach copy of authorization to sign) CITY OF CORPUS CHRISTI By: Oscar Martinez Assistant City Manager Public Works, Utilities, and Transportation By: Daniel Biles, P.E. Director of Engineering Services CONTRACTOR Barcorn Commercial, Inc. By CIA-ti Title: 5826 Bear Lane Corpus Christi, TX 78405 (361) 851-1000 Office (361) 851-1717 Fax Page 12 of 12 Rev. Jun-2010 r JOB ORDER CONTRACT MASTER AGREEMENT THE STATE OF TEXAS § § COUNTY OF NUECES § THIS AGREEMENT is entered into this the day of , 2012, by and between the CITY OF CORPUS CHRISTI, a Texas home rule municipal corporation located in the County of Nueces, State of Texas, acting through its duly authorized City Manager or designee, termed in the Contract Documents as "City," and CAS Companies. LP, a Partnership termed in the Contract Documents as "Contractor," upon these terms, performable in Nueces County, Texas: WHEREAS, the City's Department of Engineering Services issued a Request For Proposals (RFP) No. 2012 -02 — Agreement for Job Order Contracting (JOC), for the Minor Construction, Repair, Rehabilitation, and Alteration of Facilities (the "RFP ") to provide Job Order Contracting Services on an on -call or as- needed basis, through individually priced job orders or job order contracts (Job Orders or JOCs) for the maintenance, repair, alteration, renovation, remediation, or construction of facilities; and WHEREAS, Contractor submitted a proposal in response to the and was selected for recommendation for award; and WHEREAS, the Corpus Christi City Council authorized award Agreement (the "Agreement ") to Contractor on day of WHEREAS, the parties desire to enter into a Job Order Contract set the terms and conditions the parties must follow, NOW THEREFORE, THE PARTIES AGREE AS FOLLOWS: 1. Terms. RFP (the "Proposal ") of this JOC Master , 2012; and Master Agreement to a. Agreement. This Agreement consists of the Contract Documents, the RFP No. 2012 -02, Contractor's Proposal submitted in response to RFP No. 2012 -02, and this Job Order Contract Master Agreement, including all attachments and exhibits (collectively, the "Agreement "), which provides terms and conditions with which the parties agree to comply for any "Job Order Task" or "Job Order Contract" (JOC) executed between the parties under the Department of Engineering's JOC Program. b. Job Order Contract Master Agreement/ (the "JOC Master Agreement" or the "Agreement") refers to this Agreement, a competitively awarded master agreement with an undefined Statement of Work (SOW). The work is of an indefinite quantity and a recurring nature, delivered on an on -call or as needed basis, through individually priced job orders or job order contracts (JOC). The JOC Master Agreement may support a broad assortment of facilities construction Page 1 of 12 Rev. Jun -2010 work. In this Agreement, the JOC Master Agreement may also be referred to as the Agreement for Job Order Contracting, the JOC Agreement, or the Agreement. c. Job Order or Job Order Contract (JOC) as referred to in this Agreement is an individually priced job or task order, based on the Contractor's previously proposed coefficient(s) and a definitive SOW. Individual job orders are firm fixed price upon issuance. The term "job order" or "job order contract" refers to an individually priced job order based on pre - established unit prices applied to estimated quantities for a fixed lump sum price or a unit price order based on the quantities and line items delivered. In this Agreement, Job Order Contract (JOC) may also be referred to as Job Order, Job Order Task, or Task Order. d. Contract Documents. The Contract Documents for each JOC will include this Agreement, the bid proposal and instructions, the General and Special Provisions and Requirements for Municipal Construction Contracts of the City of Corpus Christi, plans and specifications, including all maps, plats, blueprints, and other drawings, any Performance and Payment bonds, addenda, the Contractor's Proposal to RFP No. 2012 -02, the JOC Master Agreement, and related documents which shall be made a part of each JOC, all of which will constitute the contract for each project or JOC. 2. General Scope of JOC. a. The City has awarded or will award one or more JOC Master Agreements or JOC Agreements. The type of work to be supported is for the maintenance, repair, alteration, renovation, remediation, or construction of facilities. The work is of a recurring nature but the delivery times are quantities are indefinite. b. JOCs apply to facilities work. The JOC Master Agreement and any individual JOC applies only to a facility that is a building, or a structure or land, whether improved or unimproved, that is associated with a building. The JOC does not apply to a highway, road, street, bridge, utility, wharf, dock, airport runway or taxiway, drainage, or related type of project associated with civil engineering construction. The City currently owns approximately 1200 properties that require a variety of minor construction, repair, rehabilitation, or alteration services, including but not limited to services for construction in three (3) areas: general mechanical /electrical /plumbing (MEP); and roofing. c. Minor construction may include new office construction (as well as demolition) to completing a new floor plan, etc. d. Repair is defined as work that involves the reparation of a broken system, component, or sub - component of a building such as doors, electrical outlets, plumbing, flooring, sheetrock, and /or air conditioning systems, etc. Page 2 of 12 Rev. Jun -2010 e. Rehabilitation is defined as work that involves the restoration of an office, floor, system or component of a system in order to restore functionality. Alteration is defined as work that involves extending a wall, upgrading lighting fixtures, installing a door where one did not exist, replacing flooring, etc. 3. Scope and Duty of Contractor. a. For each JOC, the Contractor shall construct and complete the improvements according to the Plans and Specifications in a good and workmanlike manner for the prices and conditions set out in the Contractor's bid proposal and as provided under the JOC. b. Contractor shall supply at its expense such materials, services, labor and insurance as required by the Contract Documents, including overseeing the entire job. c. Contractor shall be responsible for providing all labor, material, tools, instruments, supplies, equipment, transportation, mobilization, insurance, subcontracts, bonds, supervision, management, reports, incidentals, and quality control necessary to complete work for the minor construction, repair, rehabilitation and alteration of city facilities. 4. Time Limit for Bid Proposals Requested. There will be limited time from the time the City first contacts the Contractor and "assigns" the project to the time the City issues an authorization to begin work. The Contractor shall submit its Proposal as soon as possible, but not later than ten (10) calendar days after the City's request for that the Contractor investigate, plan, and submit an estimate and schedule (a proposal) for a given job order. Failure to comply with the Time Limit for Bid Proposals Requested is a breach of contract, under both this Agreement and under each JOC executed pursuant to the this Agreement. 5. Contractual unit prices. The City establishes contractual unit prices for job order contracts by specifying the R.S. Means Cost Data Books and certain applicable divisions or line items listed and more fully described in Section III.A of the RFP. 6. Coefficients or multipliers. The Contractor's proposed two (2) coefficients or multipliers are to be applied to the price book or prepriced work items as the price proposal. Coefficients or multipliers are more fully described in Section III.A of the RFP. 7. Compensation to Contractor. City shall pay Contractor in current funds for performance of each Job Order Contract in accordance with both this Agreement and the JOC, as the work progresses. 8. Maximum aggregate price. The maximum aggregate price for work over any one year of this Agreement's term is two million dollars. Page 3 of 12 Rev. Jun -2010 9. No guaranteed minimum. This JOC Master Agreement provides for no guaranteed minimum amount of job orders, no amount of work, and no dollar amount. Term. The Term of this Agreement is for a base term of two (2) years with the option to renew annually on an administrative basis for not more than three (3) additional years. The City Manager or designee (Director of Engineering Services) shall have the option to renew the agreement annually for not more than three additional years. The option to renew will be exercised administratively. rei 10. Performance and payment bonds required. The Contractor shall provide 1 performance and payment bonds (1) if required by law, based on the amount or estimated amount of any job order; or (2) if otherwise required by the City regardless of the estimated amount of a job order. At a minimum, the JOC Contractor will be required to provide a payment bond on all job orders that exceed $25,000 and a performance bond on all job orders that exceed $100,000. r in l 11. JOC Specific Requirements. a. With the exception of emergencies, any work required by the City shall be ordered through the issuance of a formal written Job Order Contract or JOC containing the approved Job Order Proposal along with a City Issued Purchase Order. b. Job Order Proposals are to be submitted to the City at no additional cost. The RFP resulted in multiple awards for multiple JOC Agreements, and the City may elect, at its own discretion, to solicit JOC Proposals from one or more of the awarded JOC Contractors depending upon the estimated value and /or complexity of the proposed project. Determination to solicit multiple proposals or from only one awarded JOC Contractor shall be on a case by case basis, as deemed in the best interest of the City. c. Upon review of the Job Order Proposal(s), the City shall have the right to reject all proposals, cancel a proposed project or elect to perform work utilizing city personnel. The City shall not be responsible for payment or costs incurred by the awarded contractors for the preparation and submission of a Job Order Proposal regardless of project outcome. d. In the event that design services, construction drawings and /or plans are required, the City shall obtain these services from city resources or from a third - party consultant. The Contractor will not be permitted to contract with or hire consultants. e. The Unit Price Book(s) shall serve as a basis for establishing the value of work to be performed. The Contractor's Job Order Proposal shall be submitted to the City as negotiated under this JOC Master Agreement, as submitted in accordance with the Contractor's Proposal, Exhibit E. Page 4 of 12 Rev. Jun -2010 12. Scheduling of Work a. The first day of performance shall be the effective date specified in the Job Order Contract. Any preliminary work started, materials ordered or purchased prior to receipt of the City's Purchase order shall be at the Contractor's risk and expense. b. The Contractor shall meticulously prosecute the Work to completion with the time set forth in the Job Order. c. The period of performance shall include allowance for mobilization; holidays; weekend days; inclement weather; cleanup and project acceptance procedures. 7 d. When the Contractor considers the Work to be complete and ready for its intended use, the Contractor shall notify the Director of Engineering Services or designee. The City shall inspect the Work to determine the status for completion. The contractor shall proceed promptly to complete or correct items listed. r e. Contractor shall endure that the purchase, delivery and storage of materials and equipment shall be made without interference to the City operations and personnel. f. The Contractor shall be responsible for removing furniture and /or portable office equipment from the immediate work area as well as replacing to its original location upon work completion. In the event that said items cannot be replaced within its original location, the City shall designate alternate locations(s) for placement. g. The Contractor shall take all necessary precautions to ensure that no damage shall result from operations to private of public property. All damages must be repaired or replaced by the Contractor at no additional cost to the City. The Contractor shall also be responsible for providing all necessary traffic control, to include but not limited to street blockages, traffic cones, flagmen, etc., as required for each Job Order. Proposed traffic control methods must be submitted to the City for approval prior to the commencement of work. h. The Contractor shall be responsible for obtaining all required permits applicable to performance under any single order placed against this contract. The City shall be responsible for the cost of any and all City permits. i. The Contractor shall allow authorized City personnel to inspect and audit any books, documents, papers, data and records relating to performance throughout the term of said JOC Agreement. The City reserves the right to audit and /or examine such records at any time during the progress of this Agreement and shall withhold payment if such documentation is found by the City to be incomplete or erroneous. Page 5 of 12 Rev. Jun -2010 13. Contractor's Project General Manager. The Contractor's Project General Manager shall be knowledgeable in multiple disciplines including electrical, mechanical, HVAC, paving, landscaping, painting, roofing and plumbing. 14. Safety Plan. The Contractor may be required to submit to the City for approval, a Safety Plan within fifteen (15) calendar days after Award of Agreement. Said plan must address all aspects of the Contractor's safety procedures including responsibility for OSHA compliance, drug testing, trend analysis, corrective action and interface with City inspectors. 15. Warranty of Construction. The Contractor shall warrant that work performed conforms to the Job Order requirements and is free of any defect in equipment, material or design furnished, or workmanship performed by the contractor of any of its subcontractors or suppliers at any tier. All work provided by the Contractor 7 shall be warranted for a minimum period of one (1) year from the date of final acceptance of the Work. Equipment warranties shall be as required under the Statement of Work. r 7 7 16. Training. Upon execution of this Agreement, the Contractor shall make arrangements and provisions to conduct a minimum of two (2) training classes for City staff to include but not limited to the JOC Process, explanation and use of the specific R.S. Means Cost Data Book, Cost Index, and the Unit Price Book, at no additional cost to the City. 17. "Green Building" Program." In an effort to conserve resources as well as preserve our environment, the City is in the process of developing a program to support a "Green Building" policy for all new city -owned and funded facilities. A "green building ", also known as a high performance building, shall include a structure or facility that is designed, build, renovated, and operated in a resource - efficient and healthful manner. Green buildings are designed to meet certain objectives such as: conserve energy and water, use renewable, recyclable or reclaimed materials, protect occupant health, optimize use of local and regional resources, and reduce the overall impact of that new structure to the environment. The program initiatives for a "Green Building" policy may include the following: a. All new buildings and major renovations constructed by the City of Corpus Christi or its contractors and funded directly by the City of Corpus Christi shall be designed and constructed with economical and technically feasible green building components. b. The City of Corpus Christi shall focus this green building policy in an effort to meet the requirements of the Texas Emissions Reduction Plan, specifically Chapter 388. Section 388.005 of the Texas Health and Safety Code, which states that certain political subdivisions should: (a) implement all cost effective "energy efficiency measures" in order to reduce electric consumption by the existing facilities, (b) establish a goal to reduce electric consumption by its facilities of five (5 %) percent each year for five years, and (c) annually report to Page 6 of 12 Rev. Jun -2010 State Energy Conservation Office (SECO) its efforts and progress in reduction of electricity. c. City staff will develop a green building program for the city facilities targeted in this policy. This green building program will describe the standards of the green building components, including standards for energy efficiency, renew- able materials, water conservation, air flow, and site location. This program shall also describe the target buildings, exemptions, and methods to achieve the goals of this policy. The development of this plan will include an evaluation of the AIA "2020 Challenge," the U.S. Green Building Council's Leadership in Energy and Environmental Design (LEED), and the Environmental Protection Agency's Energy Star Program. Feasible components of these programs will be incorporated into this plan. A review of the accomplishments made under this plan shall be reported to City Council annually. d. All maintenance practices performed by the City of Corpus Christi shall incorporate energy efficiency and green building practices, as reasonably possible. 18. Worker's Compensation Coverage. Texas law requires that contractors, subcontractors and others must be covered under Worker's Compensation insurance, authorized self - insurance or a worker's compensation coverage agreement. Throughout this Agreement such coverage must be provided. Contractor shall comply with the Insurance Requirements for Worker's Compensation Coverage as described and shown in the Notice to Contractors Attachment J. 19. Insurance. Contractor shall comply with the Insurance Requirements as described and shown in Attachment F. 20. Indemnification. Contractor shall fully indemnify and save harmless the City of Corpus Christi, its officers, agents and employees, as required in Attachment G. 21. Independent Contractor. Contractor, it and all persons designated by it to provide services in connection with this Agreement or any JOC executed pursuant to this Agreement is, (are) and shall be deemed to be independent contractor(s), responsible for its (their) respective acts or omissions, and that City shall in no way be responsible for Contractor's actions, and that none of the parties hereto will have authority to bind the others or to hold out to third parties, that is has such authority. 22. Governing Law and Venue. This Agreement shall be construed and interpreted in accordance with the laws of the State of Texas, and venue of any litigation hereunder shall be in a court of competent jurisdiction sitting in Nueces County, Texas. Page 7of12 Rev. Jun -2010 23. Survivability. The unenforceability, invalidity or illegality of any provisions of this Agreement shall not render the other provisions unenforceable, invalid or illegal, but the parties shall negotiate as to the effect of said unenforceability, invalidity or illegality on the rights and obligations of the parties. 24. Captions. The captions, titles and headings in this Agreement are merely for the convenience of the parties and shall neither limit nor amplify the provisions of the Agreement itself. 25. Notices to be given by either party to the other relative to this Agreement shall be in writing. Both parties agree that any such notice shall be effective when personally delivered or deposited, postage paid, in the U.S. Mail addressed by certified mail, return receipt request, as follows: CITY: for legal notices send to: City of Corpus Christi Veronica Ocanas, Assistant City Attorney City Attorney's Office P.O. Box 9277 Corpus Christi, TX 78469 -9277 Tel: 361- 826 -3375 Fax: 361 - 826 -3239 for any questions reaardina the administration and management of this agreement send to: Graziella Mesa Project Manager Department of Engineering Services 1201 Leopard St. Corpus Christi, TX 78401 Tel: 361- 826 -3550 Fax: 361 - 826 -3501 Email: graziellam @cctexas.com CONTRAC5OR: Name: (f y 'w�.�'`a�u''~ kitattgil (RQQ- Bac4Linl Title: p Address: 130 to rivi 109a , S' . 36 4 McsSe e I -m ga459 Tel: (i4 444- Fax: (-Si) 49q - tot/53 Page 8 of 12 Rev. Jun -2010 r r� Tri Trl 7 26. TABLE RE DIVISION 01 DIVISION 01 01 11 31 Professional Consultants 01 11 31.10 01 11 31.30 ONLY ALLOWABLE AS REQUIRED BY STATEMENT OF WORK IF PERMITTED BY LAW 01 01 01 11 31.20 11 31.50 11 31.75 NOT AUTHORIZED 02 21 16 CONTINGENCY ALLOWANCE 01 21 16.50 NOT AUTHORIZED 01 21 55 JOB CONDITION ALLOWANCE 01 21 55.50 NOT AUTHORIZED 02 21 57 OVERTIME ALLOWANCE 01 21 57.50 ONLY ALLOWABLE AS REQUIRED BY STATEMENT OF WORK 01 21 61 COST INDEX 01 21 61.10 01 21 61.30 01 21 61.50 AVERAGE 01 21 63 TAXES 01 21 63.10 SHALL BE INCLUDED WITHIN CONTRACTORS COEFFICIENT 01 31 13 PROJECT COORDINATION 01 31 13.20 01 31.13.30 01 31.13.40 01 31 13.60 01 31 13.80 SHALL BE INCLUDED WITHIN CONTRACTORS COEFFICIENT 01 31 13.50 NO AUTHORIZATION 01 31 13.90 ALLOWABLE AS REQUIRED BY STATEMENT OF WORK 01 3213 SCHEDULING OF WORK 01 32 13.50 SHALL BE INCLUDED WITHIN CONTRACTORS COEFFICIENT 01 32 33 PHOTOGRAPHIC DOCUMENTATION 01 32 33.50 ROUTINE DOCUMENTATION FOR CONTRACTORS RECORDS, SHALL BE INCLUDED WITHIN CONTRACTORS COEFFICIENT 01 41 26 PERMITS 01 41 26.50 ITEM 0020 WILL BE AUTHORIZED AS REQUIRED BY STATEMENT OF WORK Page 9 of 12 Rev. Jun -2010 01 45 23 TESTING AND INSPECTING SERVICES 01 45 23.50 ROUTINE TEST FOR CONTRACTORS RECORDS AND DOCUMENTATION SHALL BE WITHIN CONTRACTORS COEFFICIENT. ADDITIONAL TESTING REQUIRED BY THE CITY WILL BE BY A SEPARATE CITY CONTRACT 01 51 13 TEMPORARY UTILITIES 01 51 13.80 ALLOWAB LE AS REQUIRED BY STATEMENT OF WORK 01 5213 FIELD OFFICES AND SHEDS 01 51 13.20 ALLOWABLE AS REQUIRED BY STATEMENT OF WORK 01 51 13.40 NOT AUTHORIZED 01 54 09 PROTECTIVE EQUIPMENT 01 54 23.60 01 54 23.70 01 54 23.75 01 54 23.80 ALLOWABLE AS REQUIRED BY STATEMENT OF WORK 01 54 23 TEMPORARY SCAFFOLDING AND PLATFORMS 01 54 23.60 01 54 23.70 01 54 23.75 01 54 23.80 ALLOWABLE AS REQUIRED BY STATEMENT OF WORK 01 54 26 TEMPORARY SWING STAGING 01 54 26.50 ALLOWABLE AS REQUIRED BY STATEMENT OF WORK 01 54 36 EQUIPMENT MOBILIZATION 01 54 36.50 ALLOWABLE AS REQUIRED BY STATEMENT OF WORK 01 54 39 CONSTRUCTION EQUIPMENT 01 54 39.70 SHALL BE INCLUDED WITHIN CONTRACTORS COEFFICIENT 01 55 23 TEMPORARY ROADS 01 55 23.50 ALLOWABLE AS REQUIRED BY STATEMENT OF WORK 01 5613 TEMPORARY AIR BARRIERS 01 56 13.60 01 56 13.90 ALLOWABLE AS REQUIRED BY STATEMENT OF WORK 01 56 23 TEMPORARY BARRICADES 01 56 23.10 ALLOWABLE AS REQUIRED BY STATEMENT OF WORK 01 56 26 TEMPORARY FENCING 01 56 26.50 ALLOWABLE AS REQUIRED BY STATEMENT OF WORK 01 56 29 TEMPORARY PROTECTIVE WALKWAYS 01 56 29.50 ALLOWABLE AS REQUIRED BY STATEMENT OF WORK 01 5813 TEMPORARY PROJECT SIGNGAGE 01 58 13.50 ALLOWABLE AS REQUIRED BY STATEMENT OF WORK 01 71 23 FIELD ENGINEERING 01 71 23.13 01 71 23.19 ONLY ALLOWABLE AS REQUIRED BY STATEMENT OF WORK, IF PERMITTED BY LAW Page 10 of 12 Rev. Jun -2010 01 7413 PROGRESS CLEANING 01 74 13.20 ALLOWABLE AS REQUIRED BY STATEMENT OF WORK 01 91 13 COMMISSIONING Contractor's Completed and Signed Disclosure of Interest Form 01 91 13.50 ALLOWABLE AS REQUIRED BY STATEMENT OF WORK Contract Contact/Project Manager. for any questions regarding the administration and management of this agreement send to: Graziella Mesa Project Manager Department of Engineering Services 1201 Leopard St. Corpus Christi, TX 78401 Tel: 361- 826 -3550 Fax: 361 -826 -3501 Email: graziellam @cctexas.com CONTRACTOR: Name: /U z w�..`.- -�-- kriTge01 GIR? 130wL114 Title: PitkiliER Address: 13N0 ?Ni 1D9a Sqe. 3b4 Missouri Ohl, I X -4q459 T e l : (461),419- 4q4 - Fax: 81 499 - w,55 ATTACHMENTS to JOC MASTER AGREEMENT and to RFP No. 2012 -02 Agreement for Job Order Contracting for Minor Construction, Repair, Rehabilitation, and Alteration of Facilities TABLE OF CONTENTS ATTACHMENTS Contractor's Completed Questionnaire RFP Attachment A Contractor's Completed and Signed Disclosure of Interest Form RFP Attachment B Contractor's Completed Litigation Disclosure Form RFP Attachment C Contractor's Completed Minority /Minority Business Enterprise RFP Attachment D Contractor's Completed Pricing Schedule Form RFP Attachment E INSURANCE REQUIREMENTS RFP Attachment F Page 11 of 12 Rev. Jun-2010 INDEMNIFICATION REQUIREMENTS Contractor's Completed Signature Page Contractor's Completed Proposal Checklist WORKER'S COMPENSATION COVERAGE ADDENDUM TO SPECIAL AND GENERAL PROVISIONS SPECIAL PROVISIONS GENERAL PROVISIONS RFP Attachment G RFP Attachment H RFP Attachment I RFP Attachment J RFP Attachment K RFP Attachment L RFP Attachment M Signed in 4 parts at Corpus Christi, Texas on the date shown above. ATTEST City Secretary APPROVED AS TO LEG ° `' FORM By: Asst. City Attorney ATTEST: If Corporation (Seal Below) (Note: if Person signing for corporation is not President, attach copy of authorization to sign) CITY OF CORPUS CHRISTI By: Oscar Martinez Assistant City Manager Public Works, Utilities, and Transportation By: Daniel Biles, P.E. Director of Engineering Services CONTRACTOR CAS Companies, LP By: Title: 4402 Congressional Corpus Christi, TX 78413 (361) 298 -0227 Office (361) 499 -6655 Fax Page 12 of 12 Rev. Jun -2010 AGENDA MEMORANDUM Future Item for the City Council Meeting of October 16, 2012 Action Item for the City Council Meeting of October 23, 2012 DATE: October 23, 2012 TO: Ronald L. Olson, City Manager FROM: Constance P. Sanchez, Director of Financial Services ConstanceP ©cctexas.com (361) 826 -3227 Certification of 2012 Tax Levy CAPTION: Motion approving the 2012 Property Tax Levy of $81,245,941.65 based on the adopted property tax rate of $0.570557 per $100 valuation, in accordance with Section 26.09 (e) of the Texas Property Tax Code. PURPOSE: Approval of the certified tax levy by the governing body is required by the Texas Property Tax Code and is the last step in complying with the "Truth -in- Taxation" guidelines as it relates to the adoption of a property tax rate and the assessment of property taxes. BACKGROUND AND FINDINGS: The Texas Property Tax Code establishes rules for approval of the property tax levy. Section 26.09(e) of the Code requires the tax assessor to submit the unit's tax levy to the governing body for approval. The tax levy is the amount of current property taxes to be collected for the fiscal year (FY), which is derived by applying the adopted property tax rate to the certified appraisal roll. The property tax levy for 2012 that is based upon a property tax rate of $0.570557 per $100 valuation and a taxable value of $14,405,511,774 is as follows: Tax Levy $54,789,779.43 27,401,876.38 $82,191,655.81 279, 935.94 (1,225,650.10) $81,245,941.65 Component Supporting the City's maintenance and operations ($0.380339) Supporting the City's debt service ($0.190218) Add: Net Late Rendition Penalty — Personal Property Accounts Less: Over -65 /Disabled Homestead Frozen Levy Loss 2012 Ad Valorem Tax Levy As can be seen above, additional revenue for a late rendition penalty on personal property accounts is considered in the computation of the tax levy. The Chief Appraiser may impose a penalty on a person who fails to timely file the required rendition statement or property report on all tangible personal property used for production of income that the person owns or manages and controls as a fiduciary. The tax assessor shall then add the amount of the penalty to the amount of tax imposed on the property and include that amount on the individual's tax bill. Additionally, the over -65 /disabled homestead tax freeze is an important factor in the computation of the tax levy. Fiscal year (FY) 2012 -2013 reflects the effect of the eighth year of implementation of the over -65 /disabled homestead tax freeze. The loss of tax levy due to the tax freeze as compared to prior years is reflected in the following table: Fiscal Year Levy Loss FY 2012 -2013 $1,225,650 FY 2011 -2012 $ 1,508,251 FY 2010 -2011 $ 1,663,134 FY 2009 -2010 $ 1,740,803 FY 2008 -2009 $ 1,500,522 FY 2007 -2008 $ 1,210,235 FY 2006 -2007 $ 650,651 FY 2005 -2006 $ 396,701 It should also be noted that property taxes budgeted in the FY 2012 -2013 budget were based on the net appraised property values certified by the Nueces County Appraisal District of $14,386,376,098 — made up of 100% of the values of the properties not under protest and 85% of the values of the properties under protest. The total taxable values certified by the Nueces County Tax Office of $14,405,511,774 include 100% of the values of the properties not under protest and 100% (versus 85 %) of the properties under protest. This accounts for the $19,135,676 increase in assessed values certified by the Nueces County Tax Office. In the FY2012 -2013 budget adopted by the City Council on July 31, 2012, the total property tax levy budgeted in all funds (General Fund, Debt Service Fund, Reinvestment zone #2, and Reinvestment Zone #3) was $79,255,394. When comparing this figure to the certified ad valorem tax levy of $81,245,942, the collection rate certified for the year must be considered. The collection rate certified by the Nueces County Tax Office for FY 2012 -2013 is 100 %, but a collection rate of 97.5% was used in the calculation of property tax revenue in the City's operating budget. By applying a 97.5% collection rate to the certified levy, the resulting "net" levy is calculated to be $79,214,793 — which is $40,601 within the ad valorem tax revenue budgeted in the FY 2012 -2013 budget of $79,255,394. Therefore, no budgetary adjustments for ad valorem tax revenue will be needed for FY 2012 -2013. ALTERNATIVES: Not applicable OTHER CONSIDERATIONS: Not applicable CONFORMITY TO CITY POLICY: This item conforms to City policy. EMERGENCY / NON-EMERGENCY: Not applicable DEPARTMENTAL CLEARANCES: • Office of Management and Budget • Legal Department FINANCIAL IMPACT: ❑ Not Applicable ❑ Operating Expense X Revenue ❑ CIP FISCAL YEAR: Project to Date Exp. (CIP Only) Current Year Future Years TOTALS Budget - $ 79,255,394 $ - $ 79,255,394 Encumbered /Expended amount of (date) - - - - This item - $ - $ - $ - BALANCE - $ 79,255,394 $ - $ 79,255,394 FUND(S): 1020 "General Fund" $ 51,282,246 2010 "Debt Service Fund" $ 26,235,932 1111 "Reinvestment Zone #2" $ 1,668,193 1112 "Reinvestment Zone #3" $ 69,023 COMMENTS: Not applicable RECOMMENDATION: Staff recommends approval of the motion as presented. LIST OF SUPPORTING DOCUMENTS: Certification of Tax Levy for the Tax Year 2012 Nueces County Courthouse 901 Leopard, Suite 301 Corpus Christi, TX 78401 Kevin Kieschnick Assessor and Collector of Taxes CERTIFICATION OF TAX LEVY FOR THE TAX YEAR 2012 CITY OF CORPUS CHRISTI Total Appraised Value @ 100% of Market Value $ 19,222,001,743 Less: Partial Exemptions Ag -Use account value loss and abatements $ 4,816,489,969 Total Net Appraised Value $14,405,511,774 Assessment Ratio 100% Total Taxable Value $14,405,511,774 2012 Adopted Tax Rate .570557 /$100 2012 Ad Valorem Tax Levy $ 82,191,655.81 Less: Over -65 /Disabled Homestead Frozen Levy Loss $ 1,225,650.10 Plus: Late Rendition Penalty - Personal Property Accounts $ 294,499.25 Less: 5% of Late Rendition Penalty to the Appraisal District $ 14,724.96 Plus: Late Ag Penalty $ 161.65 2012 Total Ad Valorem Tax Levy $ 81,245,941.65 Submission of the Tax Levy for 2012 for approval by the City of Corpus Christi City Council in accordance with Section 26.09(e) of the Texas Property Tax Code. Kevin Kieschnick Nueces County Tax Assessor - Collector SWORN AND SUBSCRIBED TO before me at Corpus Christi, Texas this 't day of October, A.D., 2012. SUZAN COX Notary Public, State of Texas My Commission Expires October 27, 2015 Notary Public, S'te of Texas THE STATE OF TEXAS COUNTY OF NUECES The Tax Levy is hereby approved by the City of Corpus Christi City Council on this day of , A.D., 2012 ATTEST: City Secretary, City of Corpus Christi Mayor, City of Corpus Chrsiti AcInrinistration (361) 888 -0307 (361) 888 -0308 For rnJO ation contact: Motor Vehicle Properly lux Voter Registration voice (361) 888 -0459 (361) 888 -0230 (361) 888 -0404 lax (361) 888 - 0482 (361) 888 -0218 (361) 888 -0339 AGENDA MEMORANDUM Future Item for the City Council Meeting of October 16, 2012 Action Item for the City Council Meeting of October 23, 2012 DATE: TO: FROM: Daniel Biles, P.E., Director of Engineering Services danb @cctexas.com; 826 -3729 October 15, 2012 Ronald L. Olson, City Manager Gustavo Gonzalez, P.E., Director of Water Operations gustavogo @cctexas.com; 826 -1874 Approval of Professional Services Contract with American Electric Power (AEP) Texas Central Company CAPTION: Motion authorizing the City Manager, or designee, to execute a contract for professional services with AEP Texas Central Company in the amount of $400,000.00 for the O.N. Stevens Water Treatment Plant Transmission Line Relocation Project. PURPOSE: The purpose of this item is to approve a contract that will set forth the terms and conditions under which AEP Texas Central Company will proceed with preliminary engineering, survey and design work in connection with the AEP Texas 138 KV Lon Hill to Medio Creek Transmission Line relocation in connection with the City's O.N Stevens Water Treatment Plant. BACKGROUND AND FINDINGS: AEP Texas Central Company owns and operates the 138KV power lines that cross the ON Stevens Water Treatment Plant (ONSWTP). The ONSWTP uses no power from these lines, but if left in place, their location and elevation will interfere with the City of Corpus Christi's O. N. Stevens Water Treatment Plant Raw Water Influent Improvement project and future plant improvements. This project calls for collaboration between AEP and the City of Corpus Christi Water Department to re -route the power lines so that they do not interfere with future projects. In addition to re -route of the lines, AEP would be asked to replace the supporting poles with steel rather than the current wooden poles. To facilitate City's work schedule for current and future projects, AEP will perform critical path Preliminary Engineering to provide Preliminary Transmission and Distribution Line Design and associated Cost Estimates for Transmission and Distribution Line Relocation. Based on findings of Preliminary Engineering, the AEP will design (city funded with City consultant assistance) and construct (city funded) the relocation of the transmission /distribution line infrastructure. ALTERNATIVES: 1. Staff finds no equal measures available and is unable to recommend alternatives that are not in the best interest of public safety. OTHER CONSIDERATIONS: This project needs to be complete before other plant improvements can proceed. The current location of these power lines poses significant safety and operational concerns. Relocating these lines reduces the threat of plant shut downs and medical emergencies due to fallen power lines. CONFORMITY TO CITY POLICY: Comprehensive Policy Plan: Policy Statements; Water Master Plan; FY2012 -2013 CIP EMERGENCY / NON - EMERGENCY: Not Applicable DEPARTMENTAL CLEARANCES: Water Department FINANCIAL IMPACT: ❑ Operating ❑ Revenue X Capital ❑ Not applicable Fiscal Year: 2011- 2012 Project to Date Expenditures (CIP only) Current Year Future Years TOTALS Line Item Budget $937,500.00 $4,500,000.00 $5,437,500.00 Encumbered / Expended Amount This item $400,000.00 $400,000.00 Future Anticipated Expenditures $80,000.00 $4,500,000.00 $4,580,000.00 BALANCE $457,500.00 $0.00 $457,500.00 Fund(s): Water CIP, Project No. 5 Comments: This contract is critical to meet City's planned future projects for O.N Stevens Water Treatment Plant. RECOMMENDATION: City Staff recommend executing a Contract for Professional Services with AEP Texas Central Company in the amount of $400,000.00 for the O.N. Stevens Water Treatment Plant Transmission Line Relocation Project LIST OF SUPPORTING DOCUMENTS: Location Map Project Budget Power Point PROJECT BUDGET ONSWTP Transmission Line Relocation Project No. E10187 October 16, 2012 FUNDS AVAILABLE: Water CIP FY 2012 -2015 $ 5,437,500.00 TOTAL AVAILABLE. $ 5,437,500.00 FUNDS REQUIRED: Construction (Estimated) $ 4,000,000.00 Contingencies 6.25% $ 250,000.00 Consultant Fees: Consultant (AEP Texas Central) $ 400,000.00 Reimbursements: Contract Administration (Contract Preparation /Award /Admin) $ 100,000.00 Engineering Services (Project Mgt/Constr Mgt/Traffic Mgt) $ 150,000.00 Finance Reimbursements $ 60,000.00 Misc. (Printing, Advertising, etc.) $ 20,000.00 TOTAL $ 4,980,000.00 Estimated Project Balance $ 457,500.00 F, 624 RIVER 0.N. STEVENS WATER TREATMENT PLANT LOCATION HWY 44 kiece cou�y PROJECT #E10187 ITR AGNES CORPUS CHRISTI INTERNATIONAL AIRPORT SAN PATRICIO COUNTY NUECES BAY ROAD a�a H 37 .` r- ,j1p !!, BEAR Shi CORPUS CHRISTI BAY F.M. 43 4/0 FM 2444 LOCATION MAP 8410 O.N. STEVENS WTP AEP TRANSMISSION LINE RELOCATION CITY COUNCIL EXHIBIT CITY OF CORPUS CHRISTI, TEXAS DEPARTMENT OF ENGINEERING SERVICES PAGE 1 OF 1 AGREEMENT for PROFESSIONAL SERVICES This AGREEMENT is between the City of Corpus CbrisU. Texas, a Texas home-rule municipal corporation, (C|TY^), acting through its duly authorized City Manager or designee, and AEP Texas Central Company, (^AEPTCC~)^ acting through its duly authorized representative who is David A. Hawk, which agree as foliows: 1. DECLARATIONS. "CITY" desires to engage "AEP TCC^ to provide services in connection with City's puojecJ, described as follows: ON Stevens Water Treatment Plant AEP Transmission Line Relocation, Proiect No. E10187 "Project". 2. SCOPE OF WORK. "AEPTCC^ shall provide services for the PROJECT in accordance with the accompanying Letters, Scope of Services, and Fee attached as "Exhibit A". 3. FEE. The CITY" agrees to pay the AEP TCC' for services provided provrded in accordance with Exhibit 'A'. Scope of Services, and Fee under this AGREEMENT, a total fee not to exceed $400.000.00 (in figures) (Four Hundred Thousand Dotlars Dollars and Zero Cents ) (n words) 4. INDEMNIFICATION AND HOLD HARMLESS. "AEP TCC" agrees to indemnify, harmless and defend the "CITY", and its aganha, servants, and employees as more fully set forth and rnutually agreed upon in "Exhibit A", page 3. CITY OF CORPUS CHRISTI AEP TEXAS CENTRA [COK&PAWY Oscar R. Martinez Assistant City Manager RECO ENDED: Dire Enoin' |ngBorvices nzalezP.E ater Operations APPROVED AS TO FORM: (Date) (Date) No-5--19- (Date) Office of Mgmt and Budget (Date) David A. Hawk ' ' (Date) Manager Rates P.O. Box 2121 Corpus Christi, Texas 7O4O3 (361) 881-5317 Project Number: E10187 Water 2012 CIP Fund Funding Source: 550950-40 -08000-E10187 Encumbrance Number: umucuw,wrx AND a 000uwc*rmAensememr FOR PROFESSIONAL Sc°vICe,omov ENTERED SEP 27 2012 � CONTRACT ~ MANAGER ~~~~..~^ CUSTOMER SERVICES P.O. Box 2121, Corpus Christi, Texas 78403 September 10, 2012 Mr. Dan Biles, P.E. Director of Engineering Services City of Corpus Christi 1201 Leopard Street Corpus Christi, TX 78469 Re: Preliminary Engineering and Survey Work associated with the Relocation of the Lon Hill to Medio Creek 138 KV Transmission Line on the O.N. Stevens Water Treatment Plant Dear Mr. Biles: This letter agreement ( "Preliminary Agreement ") sets forth the terms and conditions under which AEP Texas Central Company ( "AEP Texas ") will proceed with the preliminary engineering, survey and design work described in the attached Exhibit A ( "Preliminary Work ") in connection with the AEP Texas 138 KV Lon Hill to Medio Creek Transmission Line ( "Transmission Line ") relocation in connection with the City of Corpus Christi's ( "City") O.N. Stevens Water Treatment Plant ( "WTP ") Raw Water Influent Improvements Project No. 8643 ( "WTP Project "). The WTP is located on Leopard St. at Hearne Road in Corpus Christi, Nueces County, Texas. The relocation will require the construction of a new section of 138 kV transmission line and the relocation of existing distribution lines by AEP Texas. AEP Texas and City recognize that substantial additional work beyond the scope of this Preliminary Agreement will need to be performed by AEP Texas in order to relocate the Transmission Line to the western perimeter of the City's property; and AEP Texas and City will continue to use diligent good faith efforts to negotiate the terms of a relocation agreement ( "Relocation Agreement ") for the performance of that additional work. However, to facilitate City's work schedule for the WTP Project, AEP Texas and City have agreed to perform some critical path preliminary engineering and survey work pursuant to the terms of this Preliminary Agreement pending completion of such a Relocation Agreement. This proposal to perform the Preliminary Work will expire on November 30, 2012, if City has not agreed to its terms by properly executing and returning a copy of this Preliminary Agreement (and delivering payment of the estimated cost of performing the Preliminary Work) to AEP Texas before that date. AEP Texas has agreed to commence the Preliminary Work at the City's request and upon City's execution and delivery of this Preliminary Agreement and payment of the estimated cost EXHIBIT "A" Page 1 of 4� of performing that work to AEP Texas. City shall make a prepayment ( "Prepayment ") to AEP Texas based on the preliminary estimated costs shown in the attached Exhibit A. City shall pay the Prepayment within thirty (30) days of execution of this agreement by both parties. AEP Texas shall have no obligation to proceed with work applicable to the relocation and line removal until the Prepayment is received. The proposed transmission line relocation and the existing transmission line removal are shown on the attached Exhibit B. City agrees to reimburse AEP Texas for all actual costs AEP Texas reasonably incurs in performing the Preliminary Work (including any federal tax gross up amount resulting from City's payments to AEP Texas) determined in accordance with AEP Texas's standard accounting practices. City will initially compensate AEP Texas for the Preliminary Work in accordance with AEP Texas's cost estimate as shown in Exhibit A, which City acknowledges is reasonable. However, Exhibit A reflects only estimates of the scope and cost of performing the Preliminary Work; City understands and agrees that the actual scope and cost of performing the Preliminary Work may deviate from that shown in Exhibit A. If the actual costs incurred exceed the Prepayment, AEP Texas will invoice City for the additional amount owed to AEP Texas, and City shall pay such amount to AEP Texas within sixty (60) days of receipt of the invoice. Upon completion of the Preliminary Work, the relocation and removal of the lines, and the determination of the final costs that AEP Texas has incurred in performing the Preliminary Work and the relocation and removal of the lines, the appropriate adjustments shall be tnade to true -up the payments made to AEP Texas with AEP Texas's actual costs incurred. If the relocation is determined not to be feasible as shown on Exhibit B, AEP will work with the City to resolve the issue. If the issue cannot be resolved, another transmission line route or deviation in the line route would have to be considered. If so, AEP Texas would provide City with additional cost estimates and scope of the additional work for their approval subject to the same terrns as in this Preliminary Agreement. City may cancel this Preliminary Agreement at any time upon written notice to AEP Texas. However, if City cancels this Preliminary Agreement, City shall pay AEP Texas for all actual costs that it has reasonably incurred (including costs that it has committed to expend that AEP actually incurs because such costs cannot be cancelled, provided that AEP provides the City with documentation showing that such costs cannot be canceled, and federal tax gross up amounts) related to the Preliminary Work through the date this Preliminary Agreement is canceled. In such event, the unused portion of the Prepayment shall be refunded within sixty (60) days of the final determination of such actual costs. City agrees to meet with AEP Texas and provide such information and assistance (at no cost to AEP Texas) as AEP Texas may request in connection with the performance of the Preliminary Work. AEP TEXAS MAKES NO WARRANTIES WITH RESPECT TO THE PRELIMINARY WORK AND AEP TEXAS HEREBY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, CONCERNING THE PRELIMINARY WORK, INCLUDING WITHOUT LIMITATION THE MERCHANTABILITY OR FITNESS OF THE PRELIMINARY WORK FOR ANY PARTICULAR PURPOSE. 2 TO THE EXTENT PERMITTED BY LAW, THE CITY SHALL INDEMNIFY, HOLD HARMLESS AND DEFEND AEP TEXAS, AND ITS AGENTS, EMPLOYEES, SUBCONTRACTORS, OFFICERS AND ASSIGNS FROM ANY AND ALL LIABILITIES, COSTS AND CLAIMS ASSOCIATED WITH AND ARISING OUT OF OR INCIDENTAL TO THE NEGLIGENT ACTIONS OR OMISSION OF THE CITY, ITS OFFICERS, AGENTS, EMPLOYEES, OR REPRESENTATIVES RELATED TO THE PRELIMINARY WORK, INCLUDING REASONS ATTORNEYS FEES AND ALL OTHER COSTS OF LITIGATION, AEP SHALL INDEMNIFY, HOLD HARMLESS AND DEFEND THE CITY OF CORPUS CHRISTI AND ITS OFFICERS, AGENTS, EMPLOYEES, AND REPRESENTATIVES FROM ANY AND ALL LIABILITIES, COSTS AND CLAIMS ASSOCIATED WITH AND ARISING OUT OF OR INCIDENTAL TO THE NEGLIGENT ACTIONS AND OMISSIONS OF AEP, ITS OFFICERS, AGENTS EMPLOYEES OR REPRESENTATIVES RELATED TO THE PRELIMINARY WORK, INCLUDING REASONABLE ATTORNEY FEES AND ALL OTHER COSTS OF LITIGATION. THE PARTIES AGREE THAT NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, LOSS OF REVENUE, OR LOSS OF PRODUCTION CAPACITY RESULTING FROM THE PERFORMANCE OR FAILURE TO PERFORM THE PRELIMINARY WORK OR FROM ANY OTHER BREACH OF THIS PRELIMINARY AGREEMENT. Vincent Deases, P.E. Principal Engineer cc: David Hawk -AEP Agreed and accepted: City of Corpus Christi By: Name: Title: Date: Agreed and accepted: AEP Tex a entr By: Name: Title: /241. -, Date: 9// Pi 20 ! Z EXHIBIT A Scope and Cost Estimate for Preliminary Work Scope of Preliminary Work • Preliminary survey work. • Preliminary ROW and easement work. • Preliminary Transmission Line Design. • Preliminary Distribution Line Design • Determination of cost estimates for transmission and distribution line relocation and removal of existing transmission line. • Interface with City and its engineering consultant. Cost Estimate for Preliminary Work S400,000 4 MITE. THE BOUNDARY/PROPERTY INFORMAL(* SHOWN HEREON IS APPROXIMATE, BASED ON THE BEST AVAILABLE INFORMATION. AND IS INTENDED FOR PLANNING PURPOSES ONLY, THIS INFORMATION COLS NOT IN ANY WAY CONSTITUTE AN ON THE GROUND SURVEY OF THE OWNERSHIP'S BOUNDARY /PROPERTY IINIS. hir\'t \\,\7\ , IT \ > -- \ L.,' .\ �\ / A %,, \ PROPOSED 1'1 11 1 DISTRIBUTION UNE / \ \ REROUTE �1 / EXHIBIT "B" i - — EXISTING DISTRIBUT'ON LINE TO BE REMOVED • / _T-- T77JT . ii-- T7/`,- ,I � - ;f I I i y > t._ __ J 1 ' if - r i ' ' �x; ' � i Y l City of Corpus Christi PROPOSED ,-TRANSMISSION LINE ROUTE ■ , I , ,-, '` `( / r 1 ' 1 LON HILL TO MEDIO CREEK REROUTE PROJECT AEP TEXAS CENTRAL COMPANY CORPUS CHRISTI, TEXAS 600' 300' 0 600' CDSmuery ENGINEERS • SURVEYORS DRAWN BY T. LUNG DATE JUNE 22. 2012 DRAWING NAME; 1120E3- Plonning.dwg AMERICAN` ELECTRIC POWER SUPPLIER NUMBER TO BE ASSIGNED BY CITY = PURCHASING DIVISION City of Corpus Christi 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: AEP Texas Central Company P. O. BOX: 2121 STREET ADDRESS: CITY: Corpus Christi ZIP: 78403 FIRM IS: 1. Corporation X 2. Partnership 4. Association ❑ 5. Other e 3. Sole Owner 0 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 EXHIBIT "C" Page 1 of 2 FILING REQUIREMENTS If a person who requests official 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, you shall disclose that fact in a signed writing 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 true and correct as of the date of this statement, that I 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 A. Hawk (Type or Print) Signature of Certifying Person: Title: Manager Rates Date: p�z- /zol DEFINITIONS 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. "Firm." Any entity operated for economic gain, whether professional, industrial or commercial, 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 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, Department and Division Heads, and Municipal Court Judges of the City of Corpus Christi, Texas. f. "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. "Constructively held" refers to holdings or control established through voting trusts, proxies, or special terms of venture or partnership agreements." g. "Consultant." Any person or firm, such as engineers and architects, hired by the City of Corpus Christi for the purpose of professional consultation and recommendation. EXHIBIT "C" Page 2 of 2 0 N co a a o •� � cu u cu •Ima CD z o� Presentation October 16, 2012 V • alma 4w 0 N r w OA CCI V .� 0 0 0 0 0 LO N FUNDS AVAILABLE: FUNDS REQUIRED: EA- Consultant Fees: Water CIP FY 2012 -2015 TOTAL AVAILABLE: Construction (Estimated) Contingencies 6.25% Consultant (AEP Texas Central) Reimbursements: TOTAL Estimated Project Balance w c • E w E i= + .• V 4u • O L a O Es N Es N N 0 r 5 0 M 0 N a 0 Cr M 0 N 0 r 5 C• r M 0 N 0 5 C• r AEP Power Lines Relocation Construction O.N. Stevens Raw Water Influent Improvements Construction C) c iTs E c al N w 0 AGENDA MEMORANDUM Future Item for the City Council Meeting of October 16, 2012 Action Item for the City Council Meeting of October 23, 2012 DATE: TO: October 4, 2012 Ronald L. Olson, City Manager THRU: Eddie Ortega, Director EddieO(ccctexas. com 826.3224 FROM: Rudy Bentancourt, CD Administrator RudyB @cctexas.com 826.3021 Board of Director's Meeting of the Corpus Christi Community Improvement Corporation CAPTION: Board of Directors Meeting of the Corpus Christi Community Improvement Corporation (CCCIC) PURPOSE: To provide a loan commitment for the Palms at Leopard project and the Hacienda Senior Apartments project from HOME funds which have previously been appropriated to the projects. BACKGROUND AND FINDINGS: The CCCIC has appropriated funding requested for the Palms at Leopard and Hacienda Senior Apartments. The motion will be to approve the loan commitment terms for both projects subject to the execution of the funding agreements for each. Both projects applied and received Housing Tax Credits from the Texas Department of Housing and Community Affairs. In order to secure the HTC's, the projects must receive a firm commitment from the local government of the project locations. Two motions will be provided for Hacienda Senior Apartments. Option 1 "A" motion is for the original amount of HOME funds requested in the amount of $120,000 with the loan terms identified as 1% interest for a 30 -year term to be amortized over a 30 year period paid from net cash flow. The funding amount for Option 1 "A" motion was approved by City Council on April 24, 2012 in the FY2012 Consolidated Annual Action Plan. Option 2 "B" motion is a funding request for the same project in the amount of $500,000 with the loan terms identified as 1% interest for a 30 -year term to be amortized over a 30 year period paid from net cash flow. The additional funds requested are to cover a shortfall in funds from the original projected cost of the project. ALTERNATIVES: "Not Applicable" OTHER CONSIDERATIONS: "Not Applicable" CONFORMITY TO CITY POLICY: The action conforms to all applicable City and CCCIC policies. EMERGENCY / NON - EMERGENCY: Non - Emergency. This item requires only one meeting of the CCCIC Board. DEPARTMENTAL CLEARANCES: Neighborhood Services and City Secretary's Office 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: N/A RECOMMENDATION: Recommendation is requested to approve the loan commitment terms for both projects to secure TDHCA funding. LIST OF SUPPORTING DOCUMENTS: Agenda for Meeting Minutes of September 25, 2012 Board Meeting AGENDA CORPUS CHRISTI COMMUNITY IMPROVEMENT CORPORATION REGULAR MEETING DATE: Tuesday, October 23, 2012 TIME: During the meeting of the City Council beginning at 12:00 noon. PLACE: City Council Chambers 1201 Leopard Street Corpus Christi, TX 78401 1. Call Meeting to order. 2. Secretary Armando Chapa calls roll. Board of Directors Nelda Martinez, President Chris N. Adler, Vice - President Joe Adame Larry Elizondo, Sr. Priscilla Leal David Loeb John E. Marez Mark Scott Kelley Allen Officers Ron L. Olson, General Manager Armando Chapa, Secretary Mary Juarez, Asst. Secretary Vacant, Treasurer Constance P. Sanchez, Asst. Treasurer 3. Approval of the minutes of September 25, 2012 4. Financial Statement 5. Motion to approve a loan commitment of $865,000 for the Palms at Leopard project, loan to be made from funds provided through the U. S. Department of Housing and Urban Development's HOME Program at 1% interest for a 20 -year term with payments amortized over 30 years and paid from available net cash flow, subject to execution of the funding agreements. 6. Option 1 A. Motion to approve a loan commitment of $120,000 for the Hacienda Senior Apartments Project, loan to be made from funds provided through the U. S. Department of Housing and Urban Development HOME Program at 1% interest for a 30 -year term with payments amortized over 30 years and paid from available net cash flow, subject to execution of the funding agreement; OR Option 2 B. Motion to approve a loan commitment of $500,000 for the Hacienda Senior Apartments Project, loan to be made from funds provided through the U. S. Department of Housing and Urban Development HOME Program at 1% interest for a 30 -year term with payments amortized over 30 years and paid from available net cash flow, subject to execution of the funding agreement; 7. Public Comment 8. Adjournment MINUTE S CORPUS CHRISTI COMMUNITY IMPROVEMENT CORPORATION September 25, 2012 1:00 P.M. PRESENT Board of Directors Nelda Martinez, President Chris N. Adler, Vice - President Priscilla Leal David Loeb John E. Marez Mark Scott Kelley Allen ABSENT Joe Adame Larry Elizondo, Sr. Officers Ronald L. Olson, General Manager Armando Chapa, Secretary Mary Juarez, Asst. Secretary Vacant, Treasurer Constance P. Sanchez, Asst. Treasurer President Martinez called the meeting to order in the Council Chambers of City Hall at 1:00 p.m. Secretary Chapa verified that a quorum was present to conduct the meeting and notice of the meeting had been posted. President Martinez called for the approval of the minutes from the September 11, 2012 meeting. Mr. Loeb made a motion to approve the minutes as presented, seconded by Ms. Adler, and passed. President Martinez opened discussion on Item 4, Appointments to the Loan Review Committee. Mr. Chapa explained that there were now six (6) vacancies, 2 — representing a Professions category (Legal, Real Estate, General Contractor /Remodeler/Homebuilder, Architect, Engineer, or Residential Home Designer), 1— Financial Institution representative, 3 — Community At Large. Appointments made by the Board of Directors include the following: 1. Ben Molina (Architect/Homebuilder) 2. Robert C. Pate (Legal) 3. Herbert Schueneman (Financial Institution) 4. Cathy Mehne (At Large) 5. Monique Espinosa (At Large) 6. Dalia Garcia (At Large) President Martinez called for public comment. Comments were made by Mr. Abel Alonzo, 1701 Thames, stating he appreciates the CCCIC/Loan Review Committee's great efforts in helping the community and also the work of the Community Development Staff. There being no further business to come before the Board, President Martinez adjourned the meeting at 1:05 p.m. on September 25, 2012. # ## AGENDA MEMORANDUM for the City Council Meeting of October 16, 2012 DATE: September 28, 2012 TO: Ronald L. Olson, City Manager THROUGH: Wes Pierson, Assistant City Manager 4 FROM Mike CulbertsonA' mculbertson@ocred (381) 882-7448 UPDATE TO CITY COUNCIL — Corpus Christi Regional Economic Development Corporation PRESENTER: Name 1. Roland Mower BACKGROUND: Title/Position President/CEO CCREDC semi-annual presentation to the City Council LIST OF SUPPORTING DOCUMENTS: PowerPoint Presentation Department CCREDC NT CORPORATION ■ E O o ■O W L � o cl i L � O O 0- CD L C .� - L . - " o a cn s— a) O Presented by: October 16, 2012 0 2 Econom 0)00000000000 0 0 0 0 0 0 0 0 0 0 0 0 N. ti M m a) 00 00 0 a) = Lei cis ai CNi ti a) ti L a N. M N N M r O 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 a In M M N O N a) a) = CC) cis cis N 1` LI) — — (C) N a f` r M M N M — %-00000000000 _ 00000000000 a 00 CC) 00 O '1 N a) O 1` CYC N N 1` N 1� N a • CO N M M N M O CL N 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 E M O CC) T- CD q* 00 N • CC) N a) (C) — N. L) N N N. W —3 00 N M M N M a N 0 0 0 0 0 0 0 0 0 0 0 co .%- 0 0 0 0 0 0 0 0 0 0 0 C N et) I[) N.. a) '4) (C) N. N. N c = CC) N a) '4) — 1` '4) CNI. 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